Jammu & Kashmir High Court – Srinagar Bench
Mohammad Yousuf Mir vs Union Territory Of J&K Through on 26 August, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 11.08.2025
Pronounced on: 26.08.2025
LPA No. 4/2023 in
WP (C) No. 747/2021
Mohammad Yousuf Mir, Aged 59 years
Son of Abdul Rahman Mir, ...Petitioner(s)/Appellant(s)
Resident of Nikas, Pulwama
Through: Mr. L. A. Latief, Adv.
Vs.
1. Union Territory of J&K through
Commissioner cum Secretary to Government,
Cooperative Department, Civil Secretariat,
Srinagar
2. Registrar Cooperative Societies, J&K Srinagar.
3. Additional Registrar Cooperative Societies,
Kashmir, Srinagar.
4. Deputy Registrar Cooperative Societies,
Pulwama, J&K
5. General Manager/Administrator,
Cooperative Super Market Limited, Pulwama. ...Respondent(s)
Through: Mr. Fahim Nissar Shah, GA
LPA No. 223/2022 in
SWP No. 872/2018
Abdul Majid Doshaba aged 57 years
...Petitioner(s)/Appellant(s)
S/o Ab. Khaliq Doshaba
R/o Model Town, Sopore, District Baramulla
Through: None
Vs.
1. Union Territory of J&K through
Commissioner cum Secretary to Government,
Cooperative Department, Civil Secretariat,
Srinagar
LPA No. 4/2023 c/w LPA No. 223/2022
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2. Registrar Cooperative Societies, Kashmir,
Srinagar.
3. Deputy Registrar Cooperative Societies,
Baramulla, (Administrator Marketing Society,
Sopore)
4. Assistant Registrar Cooperative Societies, Block
Sopore Transport Workers Cooperative Societies,
Limited Sopore
5. President, Board of Management, Cooperative
Marketing Society, Sopore. ...Respondent(s)
Through: Mr. Fahim Nissar Shah, GA
CORAM:
HON'BLE MS. JUSTICE SINDHU SHARMA, JUDGE
HON'BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
JUDGMENT
Per Shahzad Azeem, J.
I. SUBJECT MATTER OF CHALLENGE:
1. These intra-court appeals are directed against the judgment
dated 15.12.2022 passed in WP (C) No. 747/2021 titled Mohammad
Yousuf Mir vs. Union Territory of JK & Ors. and 15.09.2022 passed in
WP (C) No. 872/2018 titled Abdul Majid Doshaba vs. State of J&K &
Ors. respectively, passed by the learned Single Judge [“the Writ
Court”] whereby the Writ Court has dismissed the above titled writ
petitions. Both the appeals involving common question of law,
therefore, came to be clubbed together and thus we propose to dispose
of by this common judgment.
II. INTRODUCTION:
LPA No. 4/2023 in
WP (C) No. 747/2021
2. Appellant-petitioner has thrown challenge to the order dated
15.03.2021 passed by the respondents, whereby the respondents have
notified to the appellant the date of his superannuation as, 31.03.2021,
LPA No. 4/2023 c/w LPA No. 223/2022
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in terms of SRO 233 of 1988, i.e., going to attain the age of 58 years.
The appellant has assailed the legality of order dated 15.03.2021 before
the Writ Court mainly on the ground that Government has already
taken a decision for enhancement of the age of the Government
employees from 58 years to 60 years in terms of SRO 164 of 2014 and
also respondent No. 2 vide order dated 01.08.2019 has approved the
recommendation for enhancement of the age of the employees of the
Cooperative Societies from 58 years to 60 years. Therefore, according
to appellant-petitioner, the impugned order, whereby he has been
notified the retirement age on attaining the age of 58 years, being
contrary to law, thus, prayed to allow him to perform the duty beyond
31.03.2021 i.e., till attaining the age of 60 years.
LPA No. 223/2022 in
WP (C) No. 872/2018
3. Appellant-petitioner also being the employee of the
Cooperative Societies filed a writ petition praying therein to allow him
to continue till attaining the age of 60 years in terms of SRO 164 of
2014 read with the proposal of the Registrar Cooperative Societies,
Kashmir, Srinagar on the basis of decision taken by the Board of
Directors.
III. FACTS:
4. Briefly put, the appellants, Mohammad Yousuf Mir and
Abdul Majid Doshaba came to be appointed to the common services of
Cooperative Societies and with the passage of time have arisen to the
position of Assistant Manager and Manager, respectively.
5. It is seen that the appellants were to retire on attaining the
age of 58 years i.e., precisely on 31.03.2021 and 30.04.2018,
respectively.
6. It appears that the respondents have exchanged certain
communications on the basis of the representations of the employees of
the Department for enhancement of their age from 58 years to 60 years
and in this regard, beside proposal(s), there is a draft on record for
LPA No. 4/2023 c/w LPA No. 223/2022
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amendment of rules dealing with service conditions of the employees,
but no final decision was taken by the respondents. Thus, in this
backdrop, the appellants have approached the Writ Court and
challenged the action of the respondents in retiring them at the age of
58 years, instead of 60 years i.e., at par with the Government
employees of other departments, whose age of retirement came to be
enhanced from 58 years to 60 years in terms of SRO 164 of 2014.
IV. PROCEEDINGS BEFORE THE WRIT COURT:
7. The Writ Court came to the conclusion that since the
appellants were the employees of the Cooperative Societies/Institutions
and were subject to the provisions of SRO 233 of 1988 which forms a
Common Service Rule for the Cooperative Institution employees and
the provisions of the said SRO have been occupying the field as on
date as same having not been either modified, altered or repealed,
therefore, the appellants are to be superannuated at the age of 58 years.
8. The Writ Court further held that the appellants cannot claim
to remain in service of the respondents upto the age of 60 years on any
ground or any basis including on the strength of SRO 164 of 2014, as
admittedly the Service Conditions of the appellants are being governed
under SRO 233 of 1988.
9. Therefore, on the above premise, the Writ Court had come to
the conclusion that the writ petitions are misconceived, hence
dismissed the writ petitions, vide impugned judgments, dated,
15.12.2022, and 15.09.2022, respectively.
V. THE CHALLENGE:
10. The appellants have thrown challenge to the impugned
judgments passed by the Writ Court almost on similar lines, therefore,
for the sake of brevity, suffice to say that the appellants mainly relied
upon the Communication dated 01.08.2019, passed by the Registrar,
Cooperative Societies, J&K, Srinagar, whereby, the recommendation
for enhancement of the age from 58 years to 60 years was approved.
Further, the appellants have placed reliance on SRO 164 of 2014,
LPA No. 4/2023 c/w LPA No. 223/2022
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whereby the Government has raised the superannuation age of the
Government employees from 58 years to 60 years and also the
appellants emphasized on the Draft Amendment Rules of the Societies.
11. Per contra, the learned counsel appearing for the respondents
mostly relied upon the reasoning prevailed with the Writ Court in
dismissing the writ petition. Therefore, we do not deem it proper to
burden this judgment, with the submissions made in this regard,
however, note of the same shall be taken hereafter at appropriate stage.
VI. THE ISSUE(S):
12. Having taken note of the rival submissions and navigated
through the paper book, the point arises for our consideration is that;
as to whether without amending Statutory Rules
governing the Service Conditions of the employees of
the Cooperative Societies, merely on the basis of draft
Rules or recommendations of the respondents, the
retirement age of the employees of the Societies can
be altered.
VII. ANALYSIS
13. 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 [for short “Act of 1960”] which
came to be repealed by J&K Cooperative Societies Act, 1989 [for short
“Act of 1989”], however, in terms of Section 177 of the Act of 1989,
all the actions taken, order or notification issued, rule or bye-laws made
under the provisions of the Act of 1960 are saved and deemed to have
been done, taken, issued and made under the corresponding provisions
of the Act of 1989. 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.
LPA No. 4/2023 c/w LPA No. 223/2022
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14. Section 124 of the Act of 1960 deals with the power to make
rules and Rule 124 (2) (o-1) and (o-2) specifically deals with the
service, qualifications, remunerations, allowances, recruitment and
other conditions of service of the officers and other employees of
different classes of Cooperative Societies. Similarly, under the
amended Act of 1989, Rule 176 deals with the power to make rules and
Section 176 (xiv) and (xv) deals that the Service Conditions of the
employees of different classes of Cooperative Societies.
15. It is in exercise of this Rule making power, the SRO 233 of
1988, was made by virtue of which, the service conditions of the
employees of the Cooperative Societies have been laid down, which
admittedly is occupying the field as on date.
16. 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.
17. 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, which came to be promulgated in
exercise of power conferred under the Act of 1960 and saved by the
Act of 1989.
18. Notwithstanding the above position of law, it is important to
place on record that when the appeals have come up before the court on
16.09.2023, following order came to be passed:-
“1. LPA NO. 4/2023:
2. Learned counsel for the appellant submits that the appellant
shall confine his claim only in respect of salary for the period
for which he has worked beyond the age of 58 years till 60
years.
3. Mr. Faheem, learned GA shall report instructions as to
whether the appellant has worked beyond the age of 58 years
till 60 years or not.
4. List on 9.10.2023.
LPA No. 4/2023 c/w LPA No. 223/2022
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5. LPA NO. 223/2022:
6. Learned counsel for the appellant submits that the appellant
shall confine his claim only in respect of salary for the period
for which he has worked beyond the age of 58 years till 60
years.
7. Mr. Faheem, learned GA shall report instructions as to
whether the appellant has worked beyond the age of 58 years
till 60 years or not.
8. List as above.”
19. Again, vide order dated 09.12.2024, learned counsel for the
respondents was directed to file affidavit along-with the relevant
documents so as to find out as to whether appellants have performed
the duties beyond 58 years. In compliance to the order dated
09.12.2024, respondents have filed affidavits in both the LPAs.
20. To be specific, in LPA No. 4/2023 titled Mohammad Yousuf
Mir vs. Union Territory of JK & Ors, the deponent, Deputy Registrar,
Cooperative Societies, District Pulwama deposed that the appellant
Mohammad Yousuf Mir has attained the age of 58 years on
31.03.2021. He filed the writ petition and obtained interim order on
02.11.2021 and on strength of the order of the Writ Court, Mohammad
Yousuf Mir continued to work till 20.12.2022. In so far as in LPA No.
223/2022, the appellant-Abdul Majid Doshaba is concern, the affidavit
filed by Assistant Registrar Cooperative Societies, Block Sopore,
reveals that the appellant-Abdul Majid Doshaba had attained the age of
58 years on 30.04.2018 and it is deposed that the appellant did not
render any service beyond the age of superannuation as envisaged
under SRO 233 of 1988.
21. Although we have touched the merits of case, nonetheless,
the appellants are bound by order dated 16.09.2023, wherein they have
undertaken to confine their respective claims only to the extent of
salary for the period they worked beyond the age of 58 years.
22. Confronted with this situation, we have no doubt in our
minds that the appellant, Abdul Majid Doshaba (in LPA No. 223/2022)
did not perform duty beyond the age of 58 years in view of affidavit
sworn by the Assistant Registrar Cooperative Societies, Block Sopore
LPA No. 4/2023 c/w LPA No. 223/2022
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in compliance to the order dated 09.12.2024, therefore, question of
claim to the salary beyond 58 years did not arise.
23. Now coming to LPA No. 4/2023 filed by Mohammad
Yousuf Mir. In his case, as per the affidavit sworn by Deputy Registrar,
Cooperative Societies, District Pulwama, the appellant stated to have
worked till, 20.12.2022 on the strength of the interim order passed by
the Writ Court dated 02.11.2021, whereas the appellant-Mohammad
Yousuf Mir as per the SRO 233 of 1988 was enjoined upon to retire on
attaining the age of 58 years i.e., on 31.03.2021. Faced with this
position, we have examined the writ record of WP (C) No. 747/2021
filed by appellant-Mohammad Yousuf Mir. 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.
24. 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, because Statutory
Rules do not permit to perform or continue in service beyond 58 years.
25. 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. 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. In this view of the matter, we are of the opinion that so long
SRO 233 of 1988 occupies the field, the service conditions of the
LPA No. 4/2023 c/w LPA No. 223/2022
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appellants/employees of Cooperative Societies cannot be altered in any
manner on the strength of the resolution(s)/approval/recommendations
of the respondents.
26. As a corollary to the above factual and legal position, we are
of the opinion that the retirement age of the employees of the
Cooperative Societies can be altered or enhanced only by making
suitable amendments to the Statutory Rules (SRO 233 of 1988)
governing the service conditions of the employees of the Cooperative
Societies, and thus in the wake of this inbuilt inhibition, the work done
beyond the age of 58 years particularly at the personal risk and
responsibility do not entitle for the salary for such overstayal period.
VIII. RELIEF
27. 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.
28. Let writ record be dispatched with due diligence.
(SHAHZAD AZEEM) (SINDHU SHARMA)
JUDGE JUDGE
SRINAGAR:
26.08.2025
Altaf
Whether approved for reporting? Yes
LPA No. 4/2023 c/w LPA No. 223/2022
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