IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31029 of 2007(R)
1. JOLLY VARGHESE U., AGED 37 YEARS,
... Petitioner
Vs
1. PRINCIPAL SECRETARY,
... Respondent
2. DIRECTOR OF COLLEGIATE EDUCATION,
3. UNIVERSITY OF KERALA,
4. UNIVERSITY OF CALICUT,
For Petitioner :SRI.MATHAI M PAIKADAY(SR.)
For Respondent :SRI.M.RAJAGOPALAN NAIR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :22/06/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 31029 of 2007-R
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Dated this the 22nd day of June, 2009.
JUDGMENT
This writ petition is filed mainly seeking for a direction to the
Government to extend the benefit of enhanced upper age limit as applicable
to the teaching staff of aided colleges to the candidates aspiring for
appointment as non-teaching staff also. The petitioner herein is fully
qualified to be appointed as Librarian in Arts and Science Colleges in the
State. Pursuant to the decision taken by the Government to delink Pre-
degree courses from all colleges in Kerala, the Government introduced a
ban as regards appointments of teaching and non-teaching staff, as per
Ext.P1 dated 24.4.1997. The Additional Director of Collegiate Education
consequently directed the Principals and Managers of all private colleges
not to send any proposals for approval of appointment, until further orders.
After seven years, the Government passed Ext.P3 order by which for
recruitment to the post of Lecturer in Arts and Science Colleges, the upper
age limit was enhanced to 40 years from the existing limit of 35 years.
Presently, the said benefit stands extended as per Ext.P5 dated 8.1.2009,
upto and inclusive of 31.12.2009. Thus, the upper age limit of 35 years
wpc 31029/2007 2
fixed for the appointment of Lecturers in Arts and Science Colleges,
Sanskrit Colleges and Training Colleges stands enhanced to 40 years.
2. The said orders were passed by the Government considering the
ban on appointment existed from 1996 to 2003. The Government was of
the view that many eligible candidates could not get appointment because of
the ban order issued by the Government and many eligible candidates could
not apply also. But as far as non-teaching staff are concerned, the
Government has not passed any orders raising the upper age limit to them.
As regards the non-teaching staff also, 35 is the upper age limit fixed as per
the relevant rules.
3. The petitioner has also produced a notification issued by one of
the educational institutions for appointment of non-teaching staff, as per
Ext.P6. It is specified that age, qualification and scale of pay are as per the
Government rules and Calicut University Statutes. Even though the
petitioner submitted Ext.P7 application dated 11.7.2008, that was not
considered, since she has crossed the upper age limit of 35 years already as
her date of birth is 24.5.1970. The petitioner was appointed on part-time
basis in C.K.C. T.T.I., Pavaratty and is now working there on full time
basis from 2004.
4. The petitioner has got a further complaint that in Calicut
wpc 31029/2007 3
University, they have issued orders to the effect that in the case of
appointment of teachers in private colleges, provision be given for
weightage for every year of service put in by a person in a school. The
complaint is to the effect that as regards non-teaching staff, so far no such
provision has been introduced. Ext.P4 is the order issued by the Calicut
University, referred to by the petitioner.
5. In the counter affidavit filed on behalf of the first respondent, it is
pointed out in para 3 that as far as the appointment of non-teaching staff are
concerned, the Government did not receive any representation from
candidates seeking for enhancement of upper age limit. It is pointed out
that the question of enhancing upper age limit for recruitment of non-
teaching staff were not before the Government so far. The legality of the
same can be considered only after receipt of any representation. It is also
stated that there was no ban against appointment of non-teaching staff in
Colleges from 17.9.2004 onwards. Therefore, substantially the contention
raised by the respondents is that in the absence of a demand by any
candidates, the Government has not considered the question of enhancement
of upper age limit in the case of non-teaching staff.
6. Heard learned Senior Counsel Shri Mathai M. Paikeday for the
petitioner, learned Govt. Pleader for respondents 1 and 2, Shri M.
wpc 31029/2007 4
Rajagopalan Nair, learned Standing Counsel for the third respondent and
Shri P.C. Sasidharan, learned Standing Counsel for the 4th respondent.
7. Shri Paikeday, learned Senior Counsel submitted that as far as
teaching staff and non-teaching staff in aided colleges are concerned, both
form a homogeneous class in the matter of upper age limit fixed for
appointment. The upper age limit was fixed as 35 years uniformly for them.
Learned Senior Counsel submitted that a reading of Ext.P3 order passed by
the University shows that there is a Standing Committee on Teaching and
Non-teaching Staff of Private Colleges who had considered the issue in
respect of teaching staff in the light of the Govt. Order dated 8.7.2004 and
therefore there are no distinguishing features as far as teaching and non-
teaching staff are concerned in the matter of the requirement of minimum
age for appointment. It is submitted that when both these categories form a
homogeneous class, there cannot be any discrimination between these two
and therefore the Government ought to have passed appropriate orders from
time to time as was done in the case of teachers. The ban on appointment
pursuant to delinking of Pre-degree courses was applicable from 1996 to
2003 in the case of Lecturers as well as non-teaching staff.
8. The learned Senior Counsel appearing for the petitioner also relied
upon a decision of the Apex Court in Smt. Kamala Gaind v. State of
wpc 31029/2007 5
Punjab and others {1990 (Supp) SCC 800} in support of the plea that any
discrimination in such cases will amount to violation of Articles 14 and 16
of the Constitution of India. Referring to the averments in the counter
affidavit filed by the first respondent, it is contended that merely because
there was no representation before the Government the benefit could not
have been denied to persons like the petitioners. The petitioner has already
crossed the age limit of 35. Even though she responded to the notification
Ext.P6 by submitting Ext.P7, that was not considered because the age limit
exceeded the maximum of 35.
9. It is evident that as far as the appointment of teaching and non
teaching staff of aided colleges are concerned, there was an order banning
appointments issued by the Government pursuant to the delinking of Pre-
degree courses from all colleges. Exts.P1 and P2 clearly points out these
aspects. The Government which was conscious of this ban order in regard to
the appointment, brought out an order dated 28.10.2004 raising the upper
age limit of 35 years fixed for appointment as lecturers in Arts and Science
Colleges to 40 years. It is evident from the last of the orders, viz. Ext.P5
issued by the Government that the Government raised the upper age limit up
to 40 years for the period from 1.1.2004 to 31.12.2007 as per Government
Orders dated 8.7.2004 and 28.12.2007. The same was issued after
wpc 31029/2007 6
considering the ban on appointment existed from 1996 to 2003 which fact is
reiterated in Ext.P5 itself. By Ext.P5 order, the upper age limit is enhanced
up to 40 years for a further period from 1.1.2008 to 31.12.2009.
10. Going by the Special Rules, there cannot be any dispute that 35
was the upper age limit as far as teaching and non-teaching staff are
concerned. It is clear from the averments in the counter affidavit that as far
as teaching posts are concerned, the Government took the view that the
restrictions imposed by the ban lasted for more than seven years from 1996
and obviously it curtailed the chances of aspiring candidates seeking
appointments in teaching posts. The same is the situation as far as non-
teaching staff are also concerned. Therefore, the considerations which have
prevailed upon the Government to enhance the age limit in respect of
teaching staff should be the same as far as the non-teaching staff are also
concerned. The averment made in the counter affidavit that since the ban
was lifted from 17.9.2004, the candidates like the petitioner had got
sufficient opportunity to compete with others in the matter of appointment,
cannot be accepted in the light of the fact that in respect of teaching staff,
even though the ban was lifted on 17.9.2004, the Government was passing
orders from time to time and finally by Ext.P5 granted relaxation in respect
of the upper age limit in subsequent periods also. Therefore, the same
wpc 31029/2007 7
cannot be a consideration.
11. The main reason stated in the counter affidavit for not passing
any orders is that no representations were received by the Government in
the matter. Plainly, that cannot be a justification not to consider the case of
non-teaching staff. The Government which was alive to the issue,
especially in the light of the ban order regarding appointment, was already
ceased of the matter, when in respect of teaching staff successive orders
were issued revising the upper age limit. No other valid reason for not
enhancing the age limit in respect of non-teaching staff is pointed out in the
counter affidavit. Therefore, the insistence that there should have been
some representations from persons like the petitioner, is of no avail. The
principle governing Article 14 of the Constitution of India are well settled.
It is well settled that equal protection of the laws means the right to equal
protection in similar circumstances. In fact, the said principle is discernible
from the decision relied upon by the learned Senior Counsel in Kamala
Gaind’s case (1990 (Supp) SCC 800). Even though that was a case of
granting compassionate appointment, the question was whether in respect of
different appointees discrimination can be shown in the matter of providing
suitable jobs. It was held that “even if it is compassionate, unless there be
wpc 31029/2007 8
some basis there is no justification for discriminatingly extending the
treatment.” In Nityananda Kar and another v. State of Orissa and
others (AIR 1991 SC 1134), while considering the case of direct recruits of
the year 1970 and 1971 on the one hand and the direct recruits of the year
1972 on the other, it was held that “since the two groups of recruits were
similarly placed and the situation did not yield to any reasonable
classification it was not open to the State Legislature to maintain an
artificial classification and provide by the impugned Act unequal treatment
to the 1972 recruits” and the Act was declared as violative of Article 14 of
the Constitution of India.
12. The crucial aspect while examining the question of
discrimination is whether there is some difference as far as the two
situations are concerned or whether there is any distinguishing features as
far as the case of the two categories are concerned. Herein, practically both
these categories namely, teaching and non teaching categories seek
appointment to the very same institutions, viz. Arts and Science Colleges
etc. under the very same special rules. The upper age limit was fixed as 35
for both categories. In respect of both categories a general order regarding
ban on appointment was in force. Both of them formed a well defined
wpc 31029/2007 9
homogeneous class. Therefore, these two categories require equal treatment
and equal protection. One cannot distinguish the teaching staff from the
rest since plainly the ban order was the sole reason for restricting the right
of appointment in respect of both these categories. Lot of candidates were
waiting for a chance to submit application for appointment, obviously. The
relevant considerations which prevailed upon the Government while issuing
orders like Ext.P5 will apply in the case of persons like the petitioners who
aspire to get appointment as non-teaching staff. The petitioner is qualified to
be appointed as a Librarian in any of the Arts and Science Colleges in
Kerala. In fact, she had submitted an application also by responding to
Ext.P6 notification.
13. In that view of the matter, it is for the Government to issue
appropriate orders in the matter of non-teaching staff by enhancing the
upper age limit. Merely because there was no representation, that is not a
reason not to invoke the power to issue appropriate notification.
14. The remaining issue that is raised by the petitioner is regarding
the claim for weightage for school service while considering for
appointment as Librarian in colleges. That is a matter for the respective
Universities to consider.
14. Therefore, the writ petition is allowed. There will be a direction
wpc 31029/2007 10
to the first respondent to issue appropriate orders regarding raising of upper
age limit in respect of recruitment to the post of non-teaching staff in
various colleges as in the case of recruitment to the post of Lecturers. The
same shall be done within a period of three months from the date of receipt
of a copy of this judgment. Regarding the claim for weightage of school
service, it is up to the petitioner to raise the matter before the concerned
Universities and if representations are filed in the matter before respondents
3 and 4, the same will be considered and appropriate orders will be passed
by the respective Universities expeditiously, at any rate, within a period of
three months from the date of receipt of a copy of this judgment.
(T.R. Ramachandran Nair, Judge.)
kav/