Judgment and Order (Cav)
Manojit Bhuyan, J.
1. Heard Mr. PK Roychoudhury, learned counsel representing the appellant/writ petitioner as well as Dr. B Ahmed, learned counsel representing the Co-operation Department. Having regard to the issues for determination, service of notice upon the remaining respondents is not deemed necessary. Accordingly, the present writ appeal is taken up for final disposal.
2. To traverse the facts briefly, the appellant/writ petitioner i.e. Sri Rupak Barman had joined the Gauhati Co-operative Bank Ltd. in the year 1991 as Assistant Cashier and continued as such until he retired from service. The appellant was constrained to institute WP(C) 5122/2015 challenging two orders/letters issued by the Gauhati Co-operative Urban Bank (hereinafter alluded to as the Bank ) dated 1.6.2015 and 31.7.2015. By the former letter dated 1.6.2015 the appellant was informed that he would retire from service on 2.8.2015 on attaining the age of 58 years on that date. He was requested to produce all original papers and certificates in connection with his service for calculation of retirement benefits. By the second letter dated 31.7.2015 the appellant was informed that although his date of superannuation fell on 2.8.2015, however, he would be allowed to work up to 12.00 noon on 31.8.2015 for the purpose of calculation of his salary and other retirement benefits. A representation was made by the appellant on 16.7.2015 for extension of his service up to 60 years of age, as extended to Government employees and other employees of the Bank. The said representation, however, was rejected on 26.8.2015. On a challenge made to the said letters/orders dated 1.6.2015 and 31.7.2015, the plea of the appellant did not find favour with the learned Single Judge and by judgment and order dated 17.11.2015 the said WP(C) 5122/2015 stood dismissed, wherefore the present appeal is laid.
3. The contentions put forth by Mr. Roychoudhury, learned counsel representing the appellant, before the learned Single Judge as well as in this appeal are that the Bank in question has no Service Rules of its own but in matters of discipline the Bank follows the provisions under the Assam Services (Discipline and Appeal) Rules, 1964 (for short the Rules ). According to Mr. Roychoudhury, the applicability of the aforesaid Rules, expressly and impliedly, suggests that the appellant is at par with the State Government employees and the Bank is also required to follow the conditions of service as extended by the State Government to its employees. To this end, Mr. Roychoudhury refers to the Office Memorandum dated 25.1.2005 issued by the Personnel Department, Govt. of Assam, whereby the age of superannuation of State Govt. employees had been enhanced to 60 years. Entitlement to extension of service up to 60 years of age is laid on the aforesaid aspect. In addition, Mr. Roychoudhury also submits that there are numerous instances in the Bank where services of employees have been extended beyond 58 years of age. In so far as the representation filed by the appellant is concerned, the submission is that the same had been rejected by a non-speaking order and for the fact that the rejection order dated 26.8.2015 does not disclose any application of mind, as such, the said action of the respondent Bank invited intervention of the Court.
4. Though the Co-operation Department is not directly involved in the controversy, yet Dr. Ahmed submits that the writ petition was itself not maintainable in the very first place. According to him, the Gauhati Co-operative Bank is purely a co-operative society and is neither a State nor other authority within the meaning of Article 12 of the Constitution of India, and, therefore, was not amenable to the writ jurisdiction of this Court.
5. The stand of the Bank, as can be gathered from the affidavit-in-opposition filed in WP(C) 5122/2015, is that the Bank follows the provisions of the Rules, 1964 only for the purpose of conducting disciplinary action/proceedings in respect of its employees. In so far as the date of retirement is concerned, the Bank has consistently followed the criteria where 58 years of age has been held as the retirement age. The alleged age of superannuation at the age of 60 years was never adopted by the Bank and this fact was well within the knowledge of the appellant on the date of joining service. However, in case of extension of service of Bank employees beyond the age of 58 years, the same is based on Resolution adopted by the Board of Directors. The parameters for granting extension are on satisfactory performance of duties, physical fitness as certified by the registered medical practitioner and production of certificate showing willingness to work beyond 58 years of age. These parameters are examined by the Board and only upon due satisfaction, necessary Resolution towards extension of service is granted. The said affidavit of the Bank also discloses that although there are instances where the Board/Management had taken decision for extension of service of some of the employees from time to time having regard to the parameters aforementioned, the case of the appellant was however different. The appellant was not physically fit to continue in service beyond 58 years as he had undergone coronary angioplasty in the year 2007 and had suffered from neurological problem for which he had undergone treatment at Chennai Apollo Hospital in the year 2015. Further, the service record of the appellant also disclosed that he was placed under suspension in the year 2001 and pursuant to a disciplinary proceeding, punishment was also imposed upon him by way of stoppage of pay. At paragraph 10 of the said affidavit, a categorical statement is made that all these facts were considered by the Board and a decision was taken on 8.8.2015 declining extension of service of the appellant beyond 58 years of age. To this end, the Bank had also apprised the appellant by letter dated 26.8.2015 of the fact that Resolution No.2 had been adopted by the Board in its meeting dated 8.8.2015 and upon due deliberations and upon examination of his health and the entire service record in the Bank, the prayer for extension had been negated.
6. On the touchstone above, the learned Single Judge arrived at the finding that matters involving extension of service beyond the normal superannuation age of 58 years remain at the discretion of the Board of Directors. The caveat expressed is that while exercising discretionary power, the same has to be done in a reasonable and rational manner. At the same time, learned Single Judge held that while considering extension of service, the competent authority is required to assess the continued utility in service of the employee concerned. The various parameters for assessing the continued utility in service of the appellant, as had been taken recourse to by the Bank, were duly considered by the learned Single Judge. The decision of the Bank in declining the request of the appellant for extension of service, as appearing from the affidavit-in-opposition filed by the Bank, was duly recorded and considered by the learned Single Judge. In conclusion, it was held that it was always open to the competent authority to assess the service career of an employee while considering the continued utility in service beyond the normal age of superannuation. In the case in hand, the learned Single Judge found that the decision taken by the Bank for not extending the service of the petitioner beyond the age of 58 years cannot be termed as erroneous or untenable in law. In no uncertain words, the learned Single Judge also held that discretion exercised by the Board of Directors of the Bank does not suffer from unreasonableness or arbitrariness. Finding no merit in the writ petition, WP(C) 5122/2015 was dismissed. It was also observed that no mandamus can be issued to direct the Bank to extend the service of the petitioner beyond the superannuation age of 58 years.
7. From the facts above, what is noticeable is that the Gauhati Co-operative Bank does not have Service Rules of its own and notwithstanding the same, the Bank has always adopted 58 years as the age of retirement. There are instances where the Board of Directors had exercised discretion allowing some employees to serve beyond the superannuation age of 58 years, but only upon satisfaction of the parameters. Also, with regard to the provisions under the Assam Services (Discipline and Appeal) Rules, 1964, the same found its applicability only in matters involving disciplinary action/proceedings initiated against its employees. The issue in hand primarily revolves round one fundamental aspect, that is, whether the Bank/Board has the power to exercise the discretion in matters involving grant of extension of service and whether such discretion was exercised in a reasonable and rational manner in so far as the appellant is concerned.
8. It is too well settled in law that exercise of discretion would stand vitiated if the action proposed to be taken is bereft of rationality and lacks objective and purposive approach. It has been held by the Apex Court, more than once, that prescribing the age of retirement is a managerial function and such decisions are taken on consideration of various aspects. The foremost consideration is the need of the institution, its functional requirement and efficient management of its manpower. Under the Service Rules or as a sound administrative norm there may be provisions or instances for granting extension of service after attainment of age of superannuation. In such cases, where refusal is expressed by an employer towards granting extension, the employee concerned cannot justifiably claim to be deprived of any right or privilege. The employer has discretion to grant or not to grant such extension having regard to the interest of the employer or the establishment. To take it further and as held by the Apex Court in State Bank of Bikaner and Jaipur v. Jag Mohan Lal, reported in 1989 (suppl.) (1) SCC 221 {relied upon in P Venugopal v. Union of India reported in (2008) 5 SCC 1}, the Bank has no obligation to extend the services of all officers even if they are found suitable in every respect. The interest of the Bank is of primary consideration for giving extension of service. On this count, there is no scope for the concerned employee to complain of arbitrariness in a matter involving extension of service to retiring persons. The caveat expressed by the Apex Court is that these are the areas where the Court should not normally venture and judgment in this area should be best left with the authorities who are in charge of running or managing such institutions.
9. Having noticed the scope and ambit of this Court in matters pertaining to managerial functions of the Bank and the caveat so expressed by the Apex Court, this Court would not venture to interfere with the administrative action and decision declining grant of extension of service to the appellant. To address the issue as to whether the exercise of discretion by the Bank was an arbitrary exercise of power, the materials on record disclose that the continued utility in service of the appellant had received due consideration of the Board of Directors and on ground of unsuitability a decision was arrived at declining request for extension of service. The said ground which fell for consideration before the Board of Directors/Bank have been elaborated in the affidavit-in-opposition filed by the Bank and the same also fell for consideration before the learned Single Judge. In our opinion, the power exercised by the Bank for declining extension of service does not make out a case that the same stood vitiated on account of irrationality and unreasonableness. In other words, we do not find any error in the decision of the respondent Bank. The judgment under appeal do not call for any interference.
10. From the foregoing discussions, we find no merit in the present appeal. The inevitable conclusion is that this appeal must fail. Accordingly, the same stands dismissed, however, without any order as to costs.