High Court Kerala High Court

K.Sivadas vs State Of Kerala on 17 August, 2007

Kerala High Court
K.Sivadas vs State Of Kerala on 17 August, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 22758 of 2006(H)


1. K.SIVADAS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. AGENCY FOR NON-CONVENTIONAL ENERGY AND

3. THE DIRECTOR,

                For Petitioner  :SRI.V.RAJENDRAN

                For Respondent  :SRI.T.R.RAMACHANDRAN NAIR

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :17/08/2007

 O R D E R
                    ANTONY DOMINIC, J.
                  ===============
                W.P.(C) NO. 22758 OF 2006
               ====================

          Dated this the 17th day of August, 2007

                       J U D G M E N T

The writ petitioner entered service of the second

respondent as Senior Technical Officer. According to him, as

per Ext.P4, the age of superannuation of the Scientific or

Technical Staff shall be 60 years and that of Administrative

Staff 58 years. On 16/1/03, the 2nd respondent was

amalgamated with Kerala State Council for Science

Technology and Environment, (hereinafter referred to as

Council for short). After amalgamation, on 19/6/03, the

Council framed its own rules and Ext.R3(b) is a copy of the

same. In terms of Ext.R3(b), an employee in

Administrative/Technical category shall retire from service

of the Council on the afternoon of the last day of the month

in which he/she attains 58 years of age and for scientific

staff, the retirement age is 60 years. On 12/8/03, the

WPC 22758/06
: 2 :

second respondent was detached from the Council.

Thereafter on 14/7/2004, it was re-registered as a Society

and started functioning as such. On such re-registration,

based on Ext.R3(c) resolution dated 8/9/05, the 2nd

respondent issued an order clarifying that those rules and

orders, which were in force at the time of re-registration on

14/7/04 shall continue in force until specifically ordered

otherwise.

2. While the position continued as above, the

petitioner applied for leave without allowance for four

months and the request of the petitioner was recommended

by the Director to Government for issuing necessary no

objection certificate as per Ext.P2. In Ext.P2, it is stated

that the age of superannuation of technical staff in the

second respondent is 60 years as per its Service Rules and

that the date of retirement of the petitioner in 31/8/08.

Ext.R3(d) produced in the counter is the reply to Ext.P2,

WPC 22758/06
: 3 :

wherein the Government has informed the second

respondent that as per the rules applicable to the second

respondent, the age of superannuation of scientific staff

shall be 60 years and that for the technical and

administrative staff, it shall be 58 years. Ext.R3(d) also says

that since the petitioner was working as a Senior Technical

Officer, his age of superannuation is 58 years and he will be

superannuated from service on 31/8/06 instead of 31/8/08

indicated in Ext.P2. Following Ext.R3(d), the 2nd respondent

issued Ext.P3 informing the petitioner that the age of

superannuation of the Technical and Administrative Staff is

58 years and that since he was working as Senior Technical

Officer, his age of superannuation is 58 years and

superannuation date is 31/8/06. Thus on receipt of Ext.P3,

the petitioner filed this writ petition seeking to quash Ext.P3

and to direct the respondents to permit the petitioner to

remain in service as Senior Technical Officer until he attains

WPC 22758/06
: 4 :

60 years of age.

3. At the stage of admission, this Court passed an

interim order, on the basis of which petitioner was allowed

to continue, but however, without receiving any monetary

benefits.

4. The thrust of the averments in the counter

affidavit filed by the 2nd respondent is that, with the

amalgamation of the 2nd respondent in the Council on

16/1/2003, the rules that are applicable to the Council

became applicable to all the employees of the amalgamated

Council. According to the 2nd respondent, even after

detachment of the 2nd respondent from the Council w.e.f.

12/8/03, the rules of the Council continued to govern the

employees of the 2nd respondent even as on 14/7/2004,

when it was re-registered as a Society. It is stated that it

was on that basis that Ext.R3(c) resolution was passed

clarifying that the rules and orders which were in force at

WPC 22758/06
: 5 :

the time of re-registration of the 2nd respondent shall

continue in force until specifically ordered otherwise. On

this basis, it is contended that, the rule that is applicable is

Ext.R3(d), and that in terms of Clause 4 thereof, the age of

superannuation of Technical Officers is 58. It is on that

basis that the 2nd respondent seeks to justify Ext.P3.

5. From the nature of controversy that is raised by

the parties, the only issue that arises for consideration is, as

to which of the Rules, namely Ext.P4 or Ext.R3(b), is

applicable to the petitioner. As already noticed, Ext.P4

continued to apply to the 2nd respondent till it was

amalgamated with the Council on 16/1/03. Although the 2nd

respondent was detached from the Council on 12/8/03 and

was re-registered as a Society on 14/7/04, it is the case of

the 2nd respondent that Ext.R3(b) rules of the Council

continued to govern the employees of the 2nd respondent. It

is on that presumption that they passed Ext.R3(c) resolution

WPC 22758/06
: 6 :

on 8/9/05 clarifying that the rules as applicable on 14/7/04

will continue to govern the employees of the 2nd respondent.

From the above, it is quite clear that the rule that prevailed

on 14/7/04 is Ext.R3(b) and that was followed by the

Council. Ext.R3(b) provides that Technical Officers is to

retire at 58 years. If that be so, the petitioner being a

Senior Technical Officer is bound to retire at 58 years. Once

it is held that 58 years is the age of superannuation of

Technical Officers, the stand taken by the 2nd respondent in

Ext.P3 cannot be vitiated for, on any ground. If that be so,

Ext.P3 is valid and cannot be set aside.

6. The result of the discussion is that the petitioner is

bound to retire at the age of 58 and the stand taken by the

2nd respondent in Ext.P3 is correct. Thus there is no merit in

the contentions raised in the writ petition and it is only to be

dismissed and I do so.

However, the fact remains that the petitioner has

WPC 22758/06
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worked for the period subsequent to 31/8/06 under orders

of this Court. The fruits of his labour having been extracted

by the 2nd respondent, it is only fair that he is paid salary as

applicable to him. This the 2nd respondent shall do, within a

period of one month from the date of receipt of a copy of

this judgment.

ANTONY DOMINIC, JUDGE.

Rp