Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem has dismissed two connected appeals challenging the retirement age of employees of Cooperative Societies. The Court held that the retirement age remains fixed at 58 years in terms of SRO 233 of 1988 and cannot be altered based on draft amendments or departmental recommendations. The Division Bench recorded that while one of the appellants had continued in service beyond 58 years pursuant to an interim order, such continuance was explicitly at his own risk and responsibility and did not entitle him to claim salary for the extended period. The Bench concluded that without amendment to the statutory rules, the retirement age of Cooperative Society employees cannot be enhanced to 60 years.

The two intra-court appeals were directed against separate judgments delivered by the Single Judge, whereby writ petitions filed by employees of Cooperative Societies were dismissed. Both cases raised a common legal issue regarding the retirement age of Cooperative Society employees, leading the Division Bench to decide the matters together by a common judgment.

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The first appellant was employed in the Cooperative Super Market Limited, Pulwama, and had been notified by the authorities that his retirement would take effect on 31 March 2021 upon his attaining the age of 58 years. This decision was taken in terms of SRO 233 of 1988, which prescribes the age of retirement for Cooperative Society employees. The appellant challenged the notification, contending that the Government had already raised the retirement age of Government employees to 60 years by SRO 164 of 2014 and that a recommendation for enhancement of the retirement age of Cooperative Society employees had also been approved by the Registrar Cooperative Societies on 1 August 2019. On this basis, the appellant sought to continue in service until the age of 60 years.

The second appellant, an employee of the Cooperative Marketing Society, Sopore, also contended that his retirement age should be considered as 60 years in line with SRO 164 of 2014 and the Board of Directors’ decision recommending such enhancement. He had retired on 30 April 2018 upon attaining 58 years of age but sought a declaration entitling him to serve until 60 years.

The respondents in both matters, representing the Union Territory of Jammu & Kashmir and Cooperative Department authorities, contested the petitions. They maintained that the service conditions of Cooperative Society employees are governed exclusively by SRO 233 of 1988, which remains in force and has not been amended to alter the retirement age. They contended that departmental communications, draft amendments, or recommendations had no statutory force and could not override the existing rules.

The Single Judge before whom the writ petitions were initially filed dismissed both petitions. The Court held that Cooperative Society employees are governed by SRO 233 of 1988, which prescribes a retirement age of 58 years. It was further held that the enhancement of retirement age of Government employees under SRO 164 of 2014 had no applicability to Cooperative Society employees unless SRO 233 of 1988 was correspondingly amended. Dissatisfied with these findings, the petitioners filed Letters Patent Appeals.

The Division Bench recorded the career background of the appellants, both of whom were appointed in the common services of Cooperative Societies and eventually rose to the positions of Assistant Manager and Manager respectively. The Court noted that communications had indeed been exchanged between departmental authorities regarding the possibility of enhancing the retirement age from 58 to 60 years, including draft amendment rules. However, no final decision or amendment was ever notified to alter the statutory rules.

On 16 September 2023, during the pendency of the appeals, the Division Bench recorded submissions made on behalf of the appellants that they would confine their claims only to the salary for the period worked beyond 58 years. The Court directed the Government Advocate to verify whether the appellants had in fact worked beyond 58 years. Pursuant to this, affidavits were filed. In the case of the first appellant, it was affirmed that he continued in service until 20 December 2022 on the strength of an interim order of the Writ Court dated 2 November 2021. In the case of the second appellant, it was affirmed that he did not work beyond 58 years of age.

The Court recorded these facts and proceeded to examine the statutory framework. It noted that the Cooperative Societies Act of 1960 empowered the Government to make rules governing the service conditions of Cooperative Society employees. In exercise of this power, SRO 233 of 1988 was enacted, which expressly provides in Rule 13 that an employee shall retire on attaining the age of 58 years. These provisions were saved under the subsequent Cooperative Societies Act of 1989 and thus remained in force. The Court stated that SRO 233 of 1988 had the force of law and occupied the field. Draft amendments or departmental recommendations had no statutory backing and were not enforceable.

The Division Bench observed: “Admittedly, the appellants were borne on the cadre strength of Jammu and Kashmir Cooperative Societies and thus their Service Conditions are governed under SRO 233 of 1988, which came to be promulgated in exercise of the powers conferred by Section 124 of the J&K Cooperative Societies Act, 1960.”

The Court stated: “Therefore, it is abundantly made clear that Service Conditions of the appellants are governed by the Statutory Rules enacted in terms of the Act of 1960, and same stands saved by the Act of 1989.”

The Court further recorded: “Rule 13 of SRO 233 of 1988 deals that the matter related to retirement and resignation of the employees of Cooperative Societies and in this regard Rule 13(1) inter-alia provides that person appointed to the service shall retire on attaining the age of 58 years.”

Addressing the scope of departmental recommendations, the Division Bench noted: “From the perusal of SRO 233 of 1988, we did not find that anywhere that the power is conferred or delegated to the respondents to alter the age of retirement of the employees of the Cooperative Societies. Therefore, mere making of recommendations by the respondents in no manner have the overriding effect over the provisions or SRO 233 of 1988.”

The Court also considered the factual position regarding the work performed by the appellants beyond the age of 58 years. It observed: “Perusal whereof reveals that vide order dated 02.11.2021, the Writ Court directed that the appellant-petitioner shall be allowed to continue to work on his present post, however, at his own risk and responsibility.”

The Bench clarified: “Since we have dealt with the matter at length on the anvil of statutory provisions governing the service condition of appellants, therefore, once the appellant being conscious of the fact that as per the statutory rules governing the service conditions, the retirement age is 58 years, but still have volunteered to take the risk of performing the duties beyond 58 years, more so when the order of the Writ Court allowing him to continue was subject to at his own risk and responsibility, in that event he shall not be legally entitled to the salary for the period worked beyond the age of 58 years.”

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On the legal weight of recommendations, the Division Bench stated: “From the above discussion, what is deducible is that the reliance of the appellants on the inter-se departmental communications between the respondents in respect of proposal for enhancement of the age of retirement of its employees from 58 to 60 years as well as draft amendment rules are sans the statutory backing, hence are not binding and not enforceable by the court of law.”

The Court stated the continuing force of SRO 233 of 1988: “On the other hand, SRO 233 of 1988 came to be promulgated in exercise of the power conferred under the Act of 1960, therefore, have the force of law and is binding on the appellants.”

After a detailed consideration, the Division Bench issued its final decision. It recorded: “For the foregoing reasons, we do not find any error of fact or law in the judgments under challenge, thus appeals are found to be without merit and, therefore, same are, accordingly, dismissed.”

The Bench further directed: “Let writ record be dispatched with due diligence.”

Advocates Representing the Parties

For the Petitioners: Mr. L. A. Latief, Advocate

For the Respondents: Mr. Fahim Nissar Shah, Government Advocate

Case Title: Mohammad Yousuf Mir v. Union Territory of J&K & Ors. with Abdul Majid Doshaba v. State of J&K & Ors.

Case Number: LPA No. 4/2023 in WP(C) No. 747/2021 c/w LPA No. 223/2022 in SWP No. 872/2018

Bench: Justice Sindhu Sharma, Justice Shahzad Azeem