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LAKHPAT SINGH versus DIRECTOR, RAJYA KRISHI UTPADAN MANDI PARISHAD AND OTHERS.

High Court of Judicature at Allahabad

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Lakhpat Singh v. Director, Rajya Krishi Utpadan Mandi Parishad And Others. - WRIT - A No. 23159 of 2004 [2004] RD-AH 548 (16 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                                             Reserved

              Civil Misc. Writ Petition No. 23159 of 2004

Lakhpat Singh               Versus          Director, Rajya Krishi Utpadan Mandi

                                                           Kishan Mandi Bhawan,Vibhuti,Khand

                                                           Gomti Nagar Lucknow and others

                                   Connected with

W.P. Nos. 23181,23260, 23705, 25513,25515,25518, 25783,25785,25786,25788, 26094,26330,26332,26353,26748,28333,28415,20616,22393,23167,16922,25511,26770,29089, 29093,29173 and 29365 of 2004.

                                                   

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The controversy involved in these writ petitions relates to the age of superannuation of the employees of Mandi Samiti as to whether it should be 58 years or 60 years. Since common question of law and facts are involved they are being decided by a common judgment given in leading case being Writ Petition No. 23159 of 2004.

The petitioners are employees of Mandi Samiti. They are being retired on attaining the age of 58 years. The terms and conditions of the employees of Mandi Samiti are governed by Krishi Utpadan Mandi Adhiniyam, 1965.  The U. P. Agricultural Produce Market Commodities (Centralized) Services Regulations, 1984 have been framed by the State Agricultural Produce Market Board in exercise of powers under Sections 25-A and 26-X (hereinafter referred as the Regulations) of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964. In regulation 46(1) of the Regulations 1984, the age of superannuation of the employees of Krishi Utapadan Mandi Samiti is provided as 58 years.  It is as under:-

Regulation 46 " 46. Age of retirement"

(1) The date of superannuation of a member of the service shall be the date on which he attains the age of 58 years or that decided by the Board from time to time.

(2) No member shall be retained in service beyond the date of superannuation without specific extension in service or re-employment being granted by the Board, which, in no case, shall go beyond the age of 60 years with the prior approval of the State Government.

(3) Irrespective of the date on which a member attains the age of superannuation, he will retire on the last day of the month in which he attains the age of superannuation."

It is stated by the counsel for the petitioner that from reading of the regulation it is evident that the age of superannuation of an employee of the Mandi Samiti will be 58 years or as would be decided by the Board from time to time.

He submits that in the present case the Board passed a resolution on 7.2.2004 providing that the age of retirement would be 60 years. The resolution was sent to the U.P. Government under covering letter dated 23.2.2004. It is urged by the counsel for the petitioner that the resolution of the Board is in two parts. First part of the resolution provides that as per the agenda of meeting dated 7.2.2004, proposal in respect of enhancement of age of superannuation of employees from 58 years to 60 years was approved and the second part of the resolution provides for incorporating amendment in regulation of 1984. He submits that from perusal of the resolution it is clear that the Board decided to enhance the superannuation age from 58 years to 60 years and then sent the resolution for incorporating amendment in the rules. It is further submitted that since the Board had decided and passed the resolution in this regard for enhancing the age of superannuation stands enhanced from 58 years to 60 years as the second part of regulation 46 (1) does not affect this decision, and therefore the employees of Mandi Samiti are entitled to continue in employment up to the age of 60 years.  It is also submitted that even otherwise they are entitled to continue in employment up to 60 years of age even though amendment suggested in regulation 46 may not have carried out and incorporated in the Regulations as the decision taken by the Board is final.  

It is lastly submitted that vide G.O. dated 28th November, 2001 the U.P. Government has itself enhanced the age of superannuation from 58 years to 60 years, as such, there is no justification for the State Government for not granting approval to the resolution of the Board uptil now for amendment in the rules.

Relying upon the judgment rendered by the Lucknow Bench of this Court in Writ Petition No. 1619 of 2004, Abdul Hakim Vs. State of U.P., it is submitted that it is   clear that the aforementioned aspect of the matter was neither raised in above petition nor it has been examined. In view of this decision the petitioner is   entitled to continue up to 60 years of age.

On the other hand, senior counsel for Mandi Samiti Sri B.D.Mandhyan assisted by Sri M.P.Niranjan submits that the decision of the Board has no effect till regulation 46 sub-clause-1 is approved by the State Government and till then the date of superannuation of member of services shall be the date on which he attains 58 years. He submits that Regulation 26(x) provides for prior approval of State Govt. The regulations were made with the approval of State Government, hence, amendment has also to be made with the prior approval of the State Govt. Sub clause 3 of Section 26(x) does not wipe the effect of sub-section (1) of Section 26(x). The Board is   competent to make amendments in regulation with prior approval of State Government in view of section 26(x) (1) of U.P. Krishi Utpadan Mandi Adhiniyam. The regulation 46 cannot be treated to have been amended or deemed to have been amended as no approval had been accorded by the State Government.

He has placed a recent decision dated 6.4.2004 rendered by Lucknow Bench of this Court where this very controversy has been considered and it was held that the age of superannuation of the employees of Mandi Samiti is 58 years.  He has also relied upon a judgment of the Division Bench of this Court reported in  (2002) 2 U.P.L.B.E.C. 1511, Harwindra Kumar Vs. Chief Engineer, Karmik, U.P. Jal Nigam, Lucknow and others where the similar controversy was raised and it has been held that unless there was amendment in Rules/Regulations, employees can not get benefit of extension of age of superannuation from 58 years to 60 years.

Reliance has also been placed by the counsels for the respondents upon the judgments given in W.P. No. 6804 of 2002, Ram Naresh Nigam Vs. Mandi Nideshak, U.P. and others, W.P. No. 34555 of 2002, Lal Bahadur Vs. Krishi Utpadan Mandi Samiti Roora, Kanpur Dehat and another connected with W.P. No. 41524 of 1999 and W.P. No. 619 (S/S) of 2004, Abdul Hakeem Khan Vs. State of U.P. and others and has urged that similar petitions challenging the age of retirement on basis of the same resolution as if the present case have been dismissed. He submits that if the point was not raised, in earlier petition it can not be raised now in view of explanation (iv) of Section 11 C.P.C. as principles of constructive resjudicata apply to writ petition and in this view of the matter the argument of the counsel for the petitioner that the provisions of Section 26(x)(3) of the Act have not been considered in the aforesaid judgment is fallacious.

The matter involved in the writ petition has been considered by this Court in several petitions earlier and has been rejected. The question whether the age of retirement would be 58 years or 60 years in view of the resolution read with Sections 26(x) 3 and 46 (1) of the Adhiniyam was directly and substantially in issue in those writ petitions between Krishi Utapadan Mandi Samiti and its employees. The matter, which might and ought to have been made ground of defence or attack in such former writ petitions, is directly and substantially in issue in the present writ petitions. Accordingly any relief claimed in this petition on basis of same facts would be deemed to have been refused in the former writ petitions. This position of law is well entrenched by a catena of decision. Since matter already stands decided in former writ petition, subsequent writ petition is not maintainable. The matter having been raised and decided earlier in former writ petitions is also barred by principle of constructive res-judicata. Reference may be made to (1993) 3 SCC 259 D.K.Yadav Vs. J.M.A. Industries Ltd, in which the Apex Court relying upon Ambika Prasad Mishra Vs. State of U.P. (1980) 3 SCC 719 held that:-

"Once an authoritative law is laid after considering all the relevant provisions and the previous precedent, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the Court deemed appropriate to refer to a larger bench in the large public interest to advance the cause of justice. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned."

            For the reasons stated above, the writ petition is not maintainable and is dismissed. No order as to costs.

Dated: 16.8.2004

CPP/RPK/


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