High Court Kerala High Court

K.M.Jayasenan vs State Of Kerala on 25 September, 2007

Kerala High Court
K.M.Jayasenan vs State Of Kerala on 25 September, 2007
       

  

  

 
 
  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.
          -------------------------
               W.P.(C).No.28463 of 2007 L
          -------------------------
         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.”

W.P.(C).No.28463 of 2007

:: 2 ::

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

W.P.(C).No.28463 of 2007

:: 3 ::

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

W.P.(C).No.28463 of 2007

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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

W.P.(C).No.28463 of 2007

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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