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.
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W.P.(C). No.13018/2009-V
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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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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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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.
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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.
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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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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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