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Dr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009

Kerala High Court
Dr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 13018 of 2009(V)


1. DR.N.RAMANI BAI,
                      ...  Petitioner

                        Vs



1. GOVERNMENT OF KERALA,
                       ...       Respondent

2. PRINCIPAL SECRETARY TO GOVERNMENT,

3. THE DIRECTOR,

4. DR.M.R.VASUDEVAN NAMBOODIRI,

                For Petitioner  :SRI.S.ABDUL RAZZAK

                For Respondent  :ADVOCATE GENERAL

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :16/10/2009

 O R D E R
                                                                  "C/R"
                   T.R. RAMACHANDRAN NAIR, J.
                    ~~~~~~~~~~~~~~~~~~~~~~~~~~~
                         W.P.(C). No.13018/2009-V
                     ~~~~~~~~~~~~~~~~~~~~~~~~~~~
                 Dated this the 16th day of October, 2009

                              J U D G M E N T

In this writ petition the petitioner is aggrieved by orders by which the

fourth respondent is allowed to continue beyond 30/04/2009 and stands

promoted as Director of Ayurveda Medical Education in a vacancy which

arose on 01/05/2009, as per Exts.P6 and P7.

2. Even though notice was served on the fourth respondent, he has

not chosen to appear.

3. The petitioner is working as Principal of the Government

Ayurveda College, Thripunithura. The petitioner will complete 55 years of

age on 30/11/2009 and will be retiring from service on 30/04/2010. The

date of birth of the fourth respondent is 30/04/1954. He superannuated

from service on 29/04/2009 and his date of retirement ought to have been

30/04/2009 being the last day of the academic year, contends the petitioner.

4. Ext.P3 is the order by which the Government ordered that the

date 30th of April will be fixed as the end of every academic year for

Ayurveda Medical Education Department. It is ordered in Ext.P3 that the

teaching staff under Directorate of Ayurveda Medical Education who are

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eligible to get extension of service beyond the date of superannuation under

Rule 60(c) Part I K.S.R will be allowed to continue in service till the last

day of April of the succeeding year.

5. The Government brought into force G.O.(P).No.154/2009/Fin

dated 24/04/2009 unifying the date of retirement of Government employees

and Teachers. Ext.P4 is the copy of the said Government Order. As per

clause 4(a), all Government employees and teachers who attain the age of

55 years during the course of the financial year will continue in service till

the end of that financial year. It is specified that the date of retirement of

Government employees and Teachers will be 31st March every year. It is

also specified therein that in the case of teachers in those institutions where

the academic year closes on a date subsequent to 31st March they will be

allowed to continue till the last day of the month in which the academic year

closes.

6. When the writ petition was filed, Ext.P4 order was in force. It

was the contention of the petitioner that going by Ext.P4, the fourth

respondent has to retire from service on 30/04/2009. Later, the Government

brought an amendment to the relevant Rules of Part I K.S.R as per Ext.P6

and, thereafter, the writ petition was amended. Presently, everything turns

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upon the interpretation of the amended rules contained in Ext.P6. Ext.P6 is

published in the Extra Ordinary Gazette dated 07/07/2009 with

retrospective effect from 24/04/2009. Ext.P7 order granting promotion to

the fourth respondent is dated 25/07/2009.

7. Heard the learned counsel for the petitioner Shri S.A.Razzak

and Shri N.Manojkumar, Special Government Pleader for respondents.

8. The contentions of the petitioner are three fold. It is pointed

out that the fourth respondent superannuated from service on 29/04/2009 on

completing 55 years of age. The vacancy in the post of Director arose on

01/05/2009 after the expiry of the extended date of retirement, i.e., till the

end of academic year, on 30/04/2009. Therefore, his continuance beyond

30/04/2009 and the promotion granted thereafter are illegal.

9. The relevant rule governing the retirement of the fourth

respondent is sub-rule (c) of Rule 60 of Part I K.S.R as amended and,

consequent on the operation of the same he will have to retire on the last

day of the month in which the academic year ends. Rule 60 (a) of Part I

K.S.R will not apply to him. Going by Rule 28A of the Kerala State and

Subordinate Service Rules also the promotion granted as per Ext.P7 is

illegal.

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10. For a proper consideration of the issues raised in this writ

petition it may be appropriate to consider the unamended Rules 60(a) and 60

(c) of Part I K.S.R as well as the amended provisions. Rules 60(a) and 60(c)

as unamended stood as follows:-

“60(a):- Except as otherwise provided in these rules

the date of compulsory retirement of an officer shall take

effect from the afternoon of the last day of the month in

which he attains the age of 55 years. He may be retained

after this date only with the sanction of Government on

public grounds which must be recorded in writing, but he

must not be retained after the age of 60 years except in

very special circumstances.

60(c):- The teaching staff of all educational

institutions (including Principals of Colleges) who

complete the age of 55 years during the course of an

academic year shall continue in service till the last day of

the month in which the academic year ends. They shall

be entitled to the benefits of increments and promotion

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which fall due, before the last day of the month in which

they attain the age of 55 years. But they shall not be

eligible for increment or promotion during the period of

their service beyond such date. If they are on leave on

the day they attain the age of 55 years and if there is no

prospect of their returning to duty before the closing day

of the academic year for vacation they shall be retired

with effect from the last day of the month in which they

attain the age of 55 years. But in cases where officers

coming under this rule are under suspension on the date

of superannuation or thereafter but before the closing

day of the academic year, they shall be retired from

service on the date of superannuation or on the date of

suspension whichever is later.

(Other provisions are omitted)

The amended provisions in Rule 60 of Part I K.S.R are also extracted

below:-

“(i) for sub-rule (a), the following shall be substituted, namely:-

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(a) Except as otherwise provided in these rules the

date of compulsory retirement of employees and teachers

shall take effect from the afternoon of the last day of the

financial year in which they attain the age of 55 years.

They may be retained after this date only with the

sanction of Government on public grounds which must

be recorded in writing, but they must not be retained

after the age of 60 years except in very special

circumstances.

Note:- The extended period of service under sub-rule (a)

shall be reckoned for all service benefits such as

increment, pension, higher grade, accrual of leave,

promotion and pay revision.”

(ii) for sub-rule (c), except Explanation and note thereunder, the following

shall be substituted, namely:-

“(c) The teaching staff of all Educational Institutions

(including Principals of Colleges) where the academic

year ends on a date subsequent to 31st March, shall

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continue in service till the last day of the month in which

the academic year ends.

(iii) The existing Note under sub-rule (c) shall be renumbered as Note 2 and

before the Note as so renumbered, the following Note shall be inserted,

namely:-

“Note 1:- The extended period of service under sub-rule

(c) shall be reckoned for all service benefits such as

increment, pension, higher grade, accrual of leave,

promotion and pay revision.”

(iv) for Note 7, the following Note shall be substituted, namely:-

“Note 7:- Completion of 55 years of age in service is in

the afternoon and not in the forenoon. A person whose

date of birth is 1st April completes his 55th year on 31st

March and that date is the last day of the month in which

he completes the 55th year. On 1st of April he is on his

56th year and that day is not a working day for him. He

shall cease to be in service on and from 1st April.”

(v)    Note 8 and 11 shall be omitted.

W.P.(C). No.13018/2009
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11. Going by the unamended provision the Government employees

were covered by sub-rule (a) of Rule 60 and Teachers were governed by

sub-rule (c). The extended period of service available to teachers, cannot be

reckoned for any service benefits like increment, pension, higher grade

promotion etc. as per the said provisions. Now, after the unification of the

retirement age, going by the notes added to sub-rule (a) and sub-rule (c), the

extended period of service shall be reckoned for all service benefits such as

increment, pension, higher grade, accrual of leave, promotion and pay

revision. Going by the unamended rule 60(a), the officer has to

compulsorily retire from the afternoon of the last day of the month in which

he attains the age of 55 years. Presently, the employees and teachers will

compulsorily retire from the afternoon of the last day of the financial

year in which they attain the age of 55 years.

12. Herein, the learned counsel for the petitioner Shri Razzak laid

emphasis on the words “except as otherwise provided in these rules”, in

sub-rule (a) to contend for the position that as far as teachers in whose case

the academic year ends subsequent to 31st March are concerned sub-rule (a)

will not apply and in their case sub-rule (c) alone will apply. It is pointed

out that as otherwise the said words would not have found a place in sub-

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rule (a). It is therefore contended that going by sub-rule (c), where the

academic year ends on a date subsequent to 31st March, a member of the

teaching staff can continue in service only till the last day of the month in

which the academic year ends. It is a special provision for such class of

members of teaching staff. He will not get the benefit of continuance till the

last day of the financial year in which he attains the age of 55 years, which

is the provision available under sub-rule (a). It is therefore submitted that,

herein, as far as teaching staff in Ayurveda Medical Education Department

are concerned, already going by Ext.P3 they can continue in service only till

the last day of the month in which the academic year ends, namely, 30th of

April of the year. If that be so, the fourth respondent will be deemed to

have retired from service on that day. It is therefore submitted that the

continuance of the fourth respondent beyond 30/04/2009 cannot be

supported at all.

13. The learned counsel further laid emphasis on Note 7 contained

in Ext.P6. Going by Note 7, the fourth respondent will be deemed to have

completed 55 years of age on 29/04/2009. The vacancy in the post of

Director arose on 01/05/2009. Therefore, as on the date of occurrence of

the vacancy, he has no claim for promotion. It is further submitted that

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going by Rule 28A of Part II K.S. & S.S.R also he is not entitled for

promotion, since in terms of the proviso members of service who do not

have atleast one year of service beyond superannuation after appointment to

the post are not entitled for consideration at all. As per Rule 28A,

appointment by promotion or by transfer shall be made on the basis of merit

and ability, seniority being considered only when merit and ability are

approximately equal. The learned counsel for the petitioner placed heavy

reliance upon the proviso to Rule 28A of K.S. & S.S.R which is extracted

below:-

“Provided that the lists for consideration for

appointment by promotion or by transfer to the posts

shall not ordinarily consist of members of service who

do not have at least one year of service before the date of

their superannuation after appointment to such a post.”

The contention, that is developed, is that the fourth respondent ought not

have been promoted in the light of the specific bar provided in the proviso.

14. The learned Government Pleader, Shri Manojkumar, submitted

that even going by the averments in the writ petition, the petitioner would

attain the age of superannuation on 30/11/2009. Therefore, if the said

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contention is accepted, the petitioner also will not be eligible for promotion.

It is clear from the averments in paragraph (3) of the writ petition, the

petitioner will complete 55 years of age on 30/11/2009 and will have to

retire on 30/11/2009.

15. Going by the proviso itself there is no absolute bar for

considering persons who have less than one year of service before the date

of their superannuation after appointment. The word “ordinarily” used in

the proviso is an indication in this regard. It is not an invariable rule. In

that view of the matter, the contention that the proviso creates an absolute

bar for the fourth respondent for being promoted is not correct. The

important question therefore, is whether the extension granted to the tenure

of the fourth respondent can be justified.

16. The arguments raised by the learned counsel for the petitioner Shri

S.A. Razzak are forceful and attractive, and they require a deeper scrutiny.

17. The first thing to be examined is the question whether it is sub-

rule (a) or (c) of Rule 60 of Part I K.S.R that will apply. Sub-rule (a) applies

in the case of employees and teachers alike. Under the unamended

provision, only employees other than teachers were covered by the

provisions of Rule 60(a). In respect of teachers, it was sub-rule (c) that was

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applicable. Now, there is a change in the scheme in the sense that sub-rule

(a) will take the care of teachers and other employees alike. A uniform

provision is brought into force in that, the retirement of these categories will

take effect from the afternoon of the last day of the “financial year” in which

they attain the age of 55 years. Therefore, as far as employees and teachers

are concerned, uniformly, they will retire only on 31st of March of the year

in which they attain the age of 55 years. It is clear from the note to the said

provision that the extended period of service shall be reckoned for all

service benefits such as increment, pension, higher grade, accrual of leave,

promotion and pay revision. Therefore, even if a vacancy in the higher post

arises after the date on which they attain the age of 55 years, they are

entitled to be promoted. There is no legal embargo for the same.

18. Therefore, the further question is whether sub-rule (c) of Rule

60 of Part I K.S.R alone will apply as far as teachers in whose case the

academic year ends on a different date are concerned. Sub-rule (c)

practically applies in a case where, in an educational institution, the

academic year ends on a date subsequent to 31st March, and it is in those

circumstances sub-rule (c) allows them to continue in service till the last day

of the month in which the academic year ends. This provision is introduced

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obviously to avoid any difficulty to the students whose course structure will

extend beyond 31st March. Therefore, in such circumstances where the

academic year ends only on 30th April as in this case the teacher can

continue upto that date also. He will get the benefit of extension of service

as per sub-rule (a) and will further get the benefit of sub-rule (c). As

explained in the counter affidavit, this is to avoid inconvenience and

difficulty to the student community in such institutions. Such cases may be

very few like the one here wherein the academic year specifically ends only

on 30th April. In those cases also Note 1 under sub-rule (c) provides that the

extended period of service shall be reckoned for all service benefits such as

increment, pension, higher grade, accrual of leave, promotion and pay

revision. When the general provision in sub-rule (a) applies in the case of

the fourth respondent, he can continue in service till 31st March 2010. In the

light of the sub-rule (c), he can continue in service till 30th April 2010, when

the academic year ends. Going by Note 1 to sub-rule (c), he will be entitled

to get promotion also in any vacancy which may arise during his tenure;

herein admittedly, a vacancy arose on 01/05/2009. Since he is entitled to

continue in service till 30/04/2010, the claim for promotion cannot be

denied. Sub-rule (c) supplements sub-rule (a) and it is not an exclusive

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provision or a special provision which overrides sub-rule (a) of Rule 60.

The provisions will have to be construed harmoniously.

19. The learned counsel for the petitioner relied upon a decision of

the learned Single Judge of this Court in Abraham v.Accountant General

[1988 (1) KLT 441], especially paragraph (4) therein. The said decision is

relied upon to support the plea that since the fourth respondent has attained

55 years of age as on 29/04/2009, he is eligible to get the rights which he

had prior to the attainment of 55 years alone. Therefore, even if he is

entitled to continue upto 30/04/2010 he cannot be promoted to the higher

post, the learned counsel vehemently contends. The facts of the said case

show that the petitioner therein attained the aged of 55 years on 20/07/1983

and he retired as Headmaster on 30/04/1984 after availing the benefit of

Rule 60(c) of Part I K.S.R. He was promoted as Headmaster as per Ext.P1

order dated 18/07/1983, and he joined as such on 06/08/1983. While

considering the eligibility to reckon the service of Headmaster for the

purpose of pensionery benefits, this Court examined the question whether he

was eligible for promotion prior to the attainment of 55 years of age. In that

context, it was held thus in paragraph (4):-

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“4. Under Rule 60(c), teaching staff of all educational

institutions who are allowed to continue in service till

the last day of the month in which the academic year

ends, are entitled to the benefits of increments and

promotion, which fall due before the last day of the

month in which they attain the age of 55 years. Therefore

the question is whether promotion of the petitioner fell

due before the last day of July, 1983, during which

month he attained 55 years. Ext.P-1 order was dated

18/07/1983. By that order the petitioner along with

others was promoted as Headmaster and that order was

directed to take place immediately. The word ‘due’

means payable immediately or on demand-see Webster’s

II New Riverside University Dictionary, page 408. It

can only mean that the officer must have been eligible

for promotion and not whether he actually took charge in

the promoted post. The petitioner’s eligibility for

promotion as Headmaster had crystalised into a concrete

right before he attained the age of 55 and also before the

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last day of the month in which he attained the age of 55

years. Only because of certain administrative delay he

could join duty in the higher post during the next month.

That is not material or relevant in considering whether

he should be given the benefit of the promotion.”

It was observed that merely because of certain administrative delay he could

join duty in the higher post only later, and since he was eligible to be

promoted before he attained the age of 55 years, he cannot be denied the

benefit. Herein, the situation is different. It is true that as on 30/04/2009,

the vacancy did not arise in the post of Director and he attained 55 years of

age on 29/04/2009 also. But his eligibility for promotion arises only in the

light of the amended provision of Rule 60(a) by which he is eligible to

continue in service till the end of the financial year. Since, he is entitled to

get the benefit of sub-rule (c), he can continue in service till 30th April 2010

and therefore, he is eligible to be considered for promotion on the date of

occurrence of vacancy i.e. 01/05/2009. Therefore, the above decision,

which considered the unamended Rule 60(c), cannot help the case of the

petitioner.

W.P.(C). No.13018/2009
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20. The learned counsel for the petitioner then relied upon the

Apex Court judgment in Chairman, Railway Board and others v.

C.R.Rangadhamaiah and others [(1997) 6 SCC 623] to contend that the

petitioner had a vested right for promotion as on 01/05/2009 and the same

cannot be interfered with by the retrospective amendment of the rules.

Specific reliance is placed on paragraph (20) of the said judgment, which is

extracted below:-

“20. It can, therefore, be said that a rule which operates

in futuro so as to govern future rights of those already in

service cannot be assailed on the ground of retroactivity

as being violative of Articles 14 and 16 of the

Constitution, but a rule which seeks to reverse from an

anterior date a benefit which has been granted or availed

of, eg., promotion or pay scale can be assailed as being

violative of Articles 14 and 16 of the Constitution to the

extent it operates retrospectively.”

21. Thereafter, in paragraph (24) it was held thus:-

“24. In many of these decisions the expressions

“vested rights” or “accrued rights” have been used while

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striking down the impugned provisions which had been

given retrospective operation so as to have an adverse

effect in the matter of promotion, seniority, substantive

appointment, etc., of the employees. The said

expressions have been used in the context of a right

flowing under the relevant rule which was sought to be

altered with effect from an anterior date and thereby

taking away the benefits available under the rule in force

at that time. It has been held that such an amendment

having retrospective operation which has the effect of

taking away a benefit already available to the employee

under the existing rule is arbitrary, discriminatory and

violative of the rights guaranteed under Articles 14 and

16 of the Constitution. We are unable to hold that these

decisions are not in consonance with the decisions in

Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav

Lal Soni.”

22. Herein, it is true that if the unamended rules were in force, the

fourth respondent would have retired from service on 30/04/2009. He gets a

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right for continuance in service based on the amended Rule 60(a) as well as

Rule 60(c) of Part I K.S.R. It is given retrospective effect from the date of

Ext.P4. In Ext.P4 under the relevant clause 4(a), all Government employees

and teachers who attain the age of 55 years during the course of the

financial year will continue in service till the end of that financial year.

Therefore, the amendment which is brought into effect, is said to be in

consonance with Ext.P4. As on the date of Ext.P4, the fourth respondent

was in service. He attained 55 years only on 29/04/2009, and therefore was

entitled to get the benefit of Ext.P4. Therefore, the circumstances pointed

out in the decision of the Apex Court in Rangadhamaiah’s case [(1997) 6

SCC 623] and the dictum laid down therein will not strictly apply to the

facts of this case. When admittedly, the fourth respondent is senior to the

petitioner and was considered for due promotion, the question of taking

away any vested right of the petitioner by retrospective amendment of the

Rule does not arise in the facts of this case. Therefore, the said contention

also is not sustainable.

23. It is the further contention of the learned counsel for the

petitioner that the amendment cannot affect the right accrued to the

petitioner as on the date of occurrence to the vacancy. Reliance is placed on

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a Full Bench decision of this Court in Padmanabhan Nair v. Dy.Director

[1991 (1) KLT 337]. It is contended that as on the date of the occurrence of

the vacancy, the amendment Ext.P6 was not in force. Therefore, the fourth

respondent cannot be benefited by it. But since as on the date of occurrence

of vacancy, Ext.P4 was in force, the said contention cannot hold good.

24. The learned counsel for the petitioner also relied upon the

decision reported in Gracy v. State of Kerala [1985 KLT 269] to contend

that since the petitioner was denied promotion illegally, she is entitled for

all the benefits including salary. Herein, as I am of the view that there is no

illegality in Ext.P7, the question doesn’t arise for decision.

25. On an analysis of the various contentions raised by the parties it

is clear that the fourth respondent is entitled to claim the benefit of the

amendments introduced as per Ext.P6. The said amendment of the statutory

rules is not under challenge in this writ petition. It is clear that the amended

provisions of Rule 60(c) applies to teachers in whose cases the academic

year ends on a particular day. other than 31st March every year. Therefore,

the provisions of Rule 60(a) and 60(c) go together. A contrary intention is

not discernible from the rules. Apart from that Note to Rule 60(a) and Note

(1) to Rule 60(c) of Part I K.S.R clearly provides that the extended period of

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service shall be reckoned for all service benefits including promotion.

Therefore, there is no illegality in Ext.P7.

26. For all these reasons, the writ petition fails and the same is

dismissed. No costs.

(T.R. Ramachandran Nair, Judge.)

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