ROHTAS SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition has been filed by a farmer who grows sugarcane on the land, which has been assigned to respondent No. 4-Panipat Cooperative Sugar Mills Limited (hereinafter referred to as 'Sugar Mill'). He is also the share holder of the said Sugar Mill. The grievance of the petitioner is that respondent No. 5-Bir Singh has been appointed as the Managing Director of the Sugar Mill in violation of the provisions of Sec. 31 of the Haryana Co-operative Societies Act, 1984 (hereinafter referred to as 'the Act') on the ground that he has attained super-annuation on 30/4/2018 and, therefore, ceased to be the member of the Haryana Civil Services (Executive Branch) (hereinafter referred to as 'HCS (EB)') and could not have been given extension for a period of six months from 1/5/2018 to 31/10/2018 vide order dtd. 30/4/2018 (Annexure P-1) with his further appointment as the Managing Director of the Sugar Mill.

(2.) It is the contention of the learned counsel for the petitioner that respondent No. 5 had earlier worked as the Managing Director of the Sugar Mill from the year 2006 to 2010 when an enquiry was held against him and the vigilance report also went against him and in pursuance thereto, he had to deposit an amount, which was found to have been wrongly claimed by him. His further contention is that as per Sec. 31 of the Act, only that person can be appointed as a Managing Director who is a member of the HCS (EB), as provided under Sec. 31 of the Act. On retirement on 30/4/2018, respondent No. 5 ceased to be a HCS (EB) officer and, therefore, could not have been re-employed in the said capacity. He further contends that as per Rule 143 (1) Chapter 11 of the Haryana Civil Services (General) Rules 2016 (hereinafter referred to as '2016 Rules'), an Administrative Department has the power to retain a Government employee after the age of super-annuation for a period of two years and such retention in service by way of re-employment has to have the approval of the Council of Ministers. He contends that the retention in service or extension in service or re-employment, after attaining the age of super-annuation, can only be so done in public interest and in exceptional circumstances and there are no exceptional circumstances which would entitle respondent No. 5 to be granted re-employment in the HCS (EB) Cadre. His assertion is that respondent No. 5 does not have exceptional service record nor there existed such a situation which would require his continuation as the Managing Director of the Sugar Mill. Relying upon the judgment of this Court in R.K.Verma and others vs. State of Haryana and others, 2017 4 SCT 379, he contends that extension in service beyond the age of superannuation is permissible only in the pubic interest or in the special exigencies which cannot be taken care of without retaining the retiring employee in service. A subjective satisfaction must be recorded showing application of mind to the requirement of not only the exigencies of service but also to the requirement to the provisions of Rules and Instructions regulating the same. This approval cannot be granted merely on the asking of a retiring employee or on recommendation of a minister in his favour as in the case of the petitioner. He contends that simply because the Minister of the Co-operative Department has recommended re-employment of respondent No. 5 in service can not be a ground in itself for permitting such retention in service. It cannot be said that there is no alternative available to respondent No. 5. He, thus, contends that the impugned order dtd. 30/4/2018 (Annexure P-1) passed by the Government of Haryana cannot sustain and deserves to be set aside.

(3.) On the other hand, learned counsel for the State-respondent No. 1 submits that the petitioner has not come to this Court with clean hands as the correct prevalent Sec. 31 of the Act has not been reproduced. The amendment, which has been inserted in Sec. 31 of the Act in the year 2006, has not been intentionally reproduced in the body of the writ petition. According to the insertion in Sec. 31 (1) proviso, a person with professional qualifications and experience can also be appointed as the Managing Director of the Co-operative Society. In the context of Rule 143 of 2016 Rules, counsel for respondent No. 1 has referred to para-4 of the preliminary submissions of the reply to contend that prior to the superannuation of respondent No. 5, Office Note bearing No. 326 dtd. 16/3/2018 was received from the Minister of State for Cooperation recommending re-employment of respondent No. 5 keeping in view the vast experience of more than 10 years which respondent No. 5 had as the Managing Director of the Co-operative Sugar Mill, Panipat, Rohtak and Asandh and also he being well conversant with the working of Sugar Mills and Distillery Units. Further, the project for shifting of Panipat Cooperative Sugar Mill from the existing site to another site for enhancement of capacity, which was under progress and he having handling the project since the very inception, recommendation was made for extending the service of respondent No. 5 for a period of six months or till successful completion of the new Sugar Complex of respondent No. 4-Sugar Mill. The said proposal of re-employment of respondent No. 5 was approved ex-post facto for a period of six months by the Council of Ministers in its meeting dtd. 25/9/2018 and on re-consideration, as per Rule 31, approval of the Council of Ministers has been obtained. The terms and conditions of reemployment of respondent No. 5 have also been finalized and vide order dtd. 03/4/10/2018 (Annexure R-1/2) it has been asserted that all the Annual Confidential Reports of respondent No. 5 are good and there were no disciplinary/criminal proceedings or vigilance enquiry pending against him at the time of his retirement with the personnel department. He, on the basis of the above, asserts that keeping in view his experience and his handling of the project of shifting of the Panipat Co-operative Sugar Mill from existing site to the new site at Dahar with enhanced capacity from 1800 TCD to 5000 TCD with Co-generation Plant of 18 MW along with 45 KLPD Distillery/Ethanol Plant, which was under progress, which had been handled by him from the very inception, the exigency was very much there which persuaded the Government to take a decision to re-employ him for a period of six months for the smooth shifting/relocation of the plant. He, thus, contends that the order passed by the State fulfilling the conditions of statutory provisions and the Rules does not call for interference.