IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 28463 of 2007(L)
1. K.M.JAYASENAN, S/O. K.MADHAVAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE SECRETARY TO GOVERNMENT,
3. THE PRINCIPAL SECRETARY TO GOVERNMENT,
4. THE DIRECTOR OF HEALTH SERVICES,
For Petitioner :SRI.T.A.SHAJI
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :25/09/2007
O R D E R
V.GIRI, J.
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W.P.(C).No.28463 of 2007 L
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Dated this the 25th day of September, 2007.
JUDGMENT
The petitioner is working as a Lay Secretary and
Treasurer of the General Hospital, Alappuzha in the Kerala
Government Health Services Department. He attained the age
of 55 years as on 16.9.2007 and is due to retire on
superannuation on 30.9.2007.
2. The VIIIth Pay Revision Commission appointed by
the Government submitted a report on 22.2.2006. One of the
recommendations made by the said Pay Commission was
extension of retirement age of the employees by another three
years. Apparently, the recommendations have been
considered by the Government and Ext.P1 order has been
passed. The petitioner specifically refers to Clause 4 of Ext.P1,
which reads as follows:
“4. The commission submitted its final report
to Government on 22.2.2006. After examining the
recommendations of the Pay Revision
Commission, the Government are pleased to
accept these in toto without any modification.”
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3. Learned counsel for the petitioner Sri.Shaji
contends that on the Government accepting the
recommendations of the Pay Revision Commission in toto,
essentially, the Government has, therefore, proposed to
enhance the retirement age of the employees from 55 years
to 58 years. Relying on Ext.P1 order, the petitioner sent a
representation to the Chief Minister. Apparently, it was
forwarded to the Government and it was dismissed by Ext.P2
order, in which it is stated that no decision, as such, has
been taken by the Government hitherto regarding the
enhancement of the retirement age and therefore, it is not
possible to accede to the request of the petitioner. Ext.P3 is
another reply given from the Finance Department, which
reads as follows:
“With reference to the above, I am to inform
you that State Government have no intention to
enhance retirement age of employees. Hence
Government regrets its inability to consider your
request.”
4. The petitioner has filed Ext.P4 representation to
the Chief Secretary to the Government, in which referring to
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these factors, he requested the chief Secretary to look into
the matter and to take necessary action to issue orders
enhancing the pension age of the employees as
recommended by the Pay Revision Commission.
5. Mr.Nandakumar, Senior Government Pleader
brought to my notice the judgment of a learned single Judge
of this court in W.P.(C)No.8863/06 dated 24.3.2006 and the
judgment of a Division Bench in W.A.No.656/06 dated
30.3.2006, which inter alia, affirms the decision of the
learned single Judge. A contention was raised in the said
case that in the light of Ext.P1 Government Order, which
purportedly accepts the recommendations of the Pay
Revision Commission in toto, there is now, in force, a
decision of the Government which contemplates to extend
the retirement age from 55 years to 58 years. This
contention was considered and the Division Bench held as
follows:
“The recommendations of the Pay Revision
Commission remains as recommendations and
even though the Government has accepted it in
toto, unless consequential changes are brought in
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the Service Rules, it may not be possible for the
petitioners to contend that automatically the
retirement age of an employee is to be deemed as
different than that was laid down by the statutory
rules. The Government Pleader also points out that
any other view may not be possible to be adopted.”
6. In my view, the substantial question raised in
this writ petition, based on Clause (4) of the Government
Order, stands covered by the decision of the Division Bench.
Learned counsel for the petitioner Sri.Shaji further contends
that a decision taken by the Government to accept the
recommendations of the Pay Revision Commission should
be translated into an amendment in the statutory rules,
especially Rule 60(a) of Part I Kerala Service Rules. After all,
it is for Government to amend the said Rule. According to
him, this aspect has not been correctly understood by the
Government while passing Exts.P2 and P3, wherein the
petitioner’s request was rejected. Essentially, the
government has not taken a policy decision as such.
7. I am unable to accept this contention. In my
view, even if Ext.P1 order reflects that the recommendations
of the Pay Revision Commission inter alia, as regards the
W.P.(C).No.28463 of 2007
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enhancement of the retirement age of the employees is to be
accepted by the Government, it does not ipso facto result in
enforcement of the decision to enhance the age from 55 to
58 years. The prescription of the age of retirement in the
statutory provision, obviously, must have preceded the
decision of the Government to fix the age of retirement at 55.
The prescription of the retirement age must have also been
preceded by recommendations made by appropriate
authorities and consideration of the same and deliberate
decision by the Government to prescribe the retirement age
of 55 years. The acceptance of the report of the Pay
Revision Commission by itself cannot be treated as a final
decision taken by the Government to enhance the retirement
age from 55 to 58 years. If Ext.P1 is, therefore, not treated
as a final decision by the Government deciding to enhance
the age from 55 to 58 years, there is no other material to
indicate that there is a decision of the Government which will
afford an enforceable right to the employees.
8. No doubt, Exts.P2 and P3 proceeded on the
premise that the Government has not taken a policy decision
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to enhance the age from 55 to 58 years. In my view, the
absence of felicity of expression in the order issued by a
Deputy Secretary, obviously, cannot be laid at the door step
of the Government.
For all these reasons, I find that there is no merit in
the writ petition and the same stands dismissed.
Sd/-
(V.GIRI)
JUDGE
sk/
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P.S. To Judge