IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34472 of 2010(H)
1. S.SUSEELAMMA
... Petitioner
Vs
1. STATE OF KERALA, REP.BY THE SECRETARY
... Respondent
2. THE REGIONAL CANCER CENTRE,
For Petitioner :SRI.K.JAJU BABU
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :30/11/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 34472 of 2010
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Dated this, the 30th day of November, 2010.
J U D G M E N T
The issue involved in this writ petition is as to whether the
retirement age of non-academic staff of the 2nd respondent Regional
Cancer Center is liable to be enhanced to 60 years from 58 years in
tune with the retirement age of academic staff. The very same matter
was the subject matter for consideration by this Court in W.P(C).Nos.
24053/2009 and 30894/2010, in which a learned Judge of this Court
passed the following judgment:
“The petitioners in W.P.(C).No.24053/2009 have been
working as Security Guards and the petitioners in W.P.(C).
No.30894/2010 have been working as Driver (Selection Grade),
Hospital Attender and Nursing Supervisor respectively, in the
Regional Cancer Centre, namely, the second respondent herein.
These writ petitions are concerned with the retirement age of the
petitioners. Their case appears to be that Ext.P5 order produced
in W.P.(C).No.30894/2010 passed by the Government enhancing
the retirement age of Professors to 65 years and that of other
academic staff to 62 years in Regional Cancer Centre as in Sree
Chitra Tirunal Institute of Medical Sciences & Technology,
evidently, applies to non-academic staff also, in the light of
various orders. Accordingly, they have prayed for a direction to
the second respondent to allow them to continue in service upto
the age of 60 years. The facts relevant for the disposal of the writ
petitions as relevant in W.P.(C).No.30894/2010 are the following:-
2. In Sree Chitra Tirunal Institute of Medical Sciences
& Technology (SCTIMST for short), which is an institute similar to
Regional Cancer Centre, the age of retirement of academic staff is
62 years and that of non academic staff is 60 years. The
governing body of the second respondent on 06/01/2009 decided
to implement the Central Pay Revision in Regional Cancer Centre
as that of SCTIMST as evident from Ext.P2 minutes, produced in
W.P.(C).No.30894/2010.
3. There were steps to have parity with regard to the
pay scales and conditions of Regional Cancer Centre, with
SCTIMST. The Parity Committee had made a recommendation
with regard to the increase in retirement age also. By Ext.P3,
produced in W.P.(C).No.30894/2010, the Government whileW.P.C. No. 34472/2010 -: 2 :-
considering the claim of one Shri A.Rajan, Chief Maintenance
Engineer took the view that there is no decision to extend the
retirement age or parity with SCTIMST. Accordingly, it was
observed that the retirement age of non-academic staff/academic
staff of Regional Cancer Centre cannot be extended. Ext.P4,
produced in W.P.(C).No.30894/2010, is the order by which the
Government decided to extend the pay structure based on 6th
Central Pay Revision to the academic and non-academic staff of
Regional Cancer Centre. The benefits were extended to academic
and non-academic staff alike.
4. Ext.P5, produced in W.P.(C).No.30894/2010, the
opening paragraph records that the Government was of the view
to implement pay and service conditions being enjoyed by the
staff of SCTIMST to the staff of Regional Cancer Centre also. It is
therefore contended by the petitioners that extension of those
service conditions will apply as far as retirement age of non-
academic staff even though in the operative portion of Ext.P5,
specifically, the enhancement of the retirement age is with regard
to the category of Professors and that of other academic staff to
65 years and 62 years respectively. Exts.P6 and P7 are interim
orders passed in various writ petitions.
5. It appears that after the order Ext.P5 was issued by
the Government, the second respondent sought for various
clarifications by Ext.P10 communication, produced in W.P.(C).
No.30894/2010, including a clarification as to the extension of
retirement age to non-academic staff and with a further request
that an order may be passed unifying the retirement age as well
as other conditions of service including service pension.
6. The petitioners have also sought for a prayer to
regularise them in service.
7. The petitioners are continuing in service in terms of
the interim orders passed by this Court. The second respondent
has filed a counter affidavit in W.P.(C).No.24053/2009 opposing
the prayers of the petitioners. Reliance is placed on various
aspects including the Judgment of this Court in W.P.(C).
No.28204/2008 and connected cases [Ext.R2(g)] wherein
recording the policy decision of the Government then in force, this
Court refused to grant relief to the petitioners therein, with
regard to the prayers sought for, for extension of the retirement
age of non-academic staff of the Regional Cancer Centre.
Evidently, the stand taken by the Regional Cancer Centre is that
there is no policy decision by the Government to enhance the
retirement age of non-academic staff by Ext.P5 order produced in
W.P.(C).No.30894/2010. The petitioners cannot as a matter of
right seek for a direction to permit them to continue beyond the
retirement age, namely, 58 years.
W.P.C. No. 34472/2010 -: 3 :-
8. The learned counsel for the second respondent
further relied upon the decision of the Division Bench of this
Court in Prakasan M.P. (Dr.) & Others v. State of Kerala and
another [2010 (4) KHC 292 (DB)] wherein this Court observed
that the extension of the age limit is a policy decision of the
Government and it is not open to this Court to confer the benefits
extended to other groups. Since there was a dispute whether
Ext.P5 applies to non-academic staff also, this Court directed the
learned Government Pleader to get the views of the Government.
No counter affidavits have been filed by the Government in these
writ petitions. The learned Government Pleader on getting
instructions submitted that Ext.P5 produced in W.P.(C).
No.30894/2010 grants extension of retirement age to Professors
and academic staff and it will not apply to non-academic staff of
the second respondent. Evidently, in Ext.P5 the age of retirement
of non-academic staff has not been extended. Retirement age as
on today if not specifically extended they cannot rely upon Ext.P5,
to seek continuance. Therefore, as far as non-academic staff is
concerned, the age of retirement is 58 years and all the employees
have crossed the age of 58 years. Hence, the petitioners cannot
seek continuance beyond 58 years.
9. The learned counsel for the petitioners pointed out
that the same will be an anomaly as far as service conditions of
non-academic staff are concerned and the action of the
Government in not extending the retirement age of non-academic
staff will result in discrimination. It is further pointed out that the
second respondent itself has requested the Government for
clarification as per Ext.P10 and, till the Government takes a
decision, they may be allowed to continue in service.
10. As already noticed, the retirement age having not
been extended, the petitioners cannot have a legal right to
continue beyond 58 years. Of course, the second respondent has
sought for clarification of the Government by Ext.P10. It is upto
to the Government to communicate their decision on Ext.P10 to
the second respondent. If there is a change of policy as far as
non-academic staff are concerned and if the petitioners are
benefited by any such decision taken by the Government, it is for
the second respondent to take a decision after such a
communication is received from the Government. Appropriate
decision will be taken by the Government within two months from
the date of receipt of the copy of this Judgment. The writ
petitions are dismissed subject to the above observations. Since
the petitioners were continuing based on the interim orders
passed by this Court and they have received the pay and other
benefits, there will not be any recovery as far as the amounts
already paid to the petitioners. No costs.”
W.P.C. No. 34472/2010 -: 4 :-
Following the said judgment, this writ petition is also disposed of
in terms of that judgment dated 15-11-2010.
Sd/- S. Siri Jagan, Judge.
Tds/
[TRUE COPY]
P.S TO JUDGE.