{"id":154092,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-n-ramani-bai-vs-government-of-kerala-on-16-october-2009"},"modified":"2018-10-07T21:36:51","modified_gmt":"2018-10-07T16:06:51","slug":"dr-n-ramani-bai-vs-government-of-kerala-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-n-ramani-bai-vs-government-of-kerala-on-16-october-2009","title":{"rendered":"Dr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Dr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 13018 of 2009(V)\n\n\n1. DR.N.RAMANI BAI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. GOVERNMENT OF KERALA,\n                       ...       Respondent\n\n2. PRINCIPAL SECRETARY TO GOVERNMENT,\n\n3. THE DIRECTOR,\n\n4. DR.M.R.VASUDEVAN NAMBOODIRI,\n\n                For Petitioner  :SRI.S.ABDUL RAZZAK\n\n                For Respondent  :ADVOCATE GENERAL\n\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :16\/10\/2009\n\n O R D E R\n                                                                  \"C\/R\"\n                   T.R. RAMACHANDRAN NAIR, J.\n                    ~~~~~~~~~~~~~~~~~~~~~~~~~~~\n                         W.P.(C). No.13018\/2009-V\n                     ~~~~~~~~~~~~~~~~~~~~~~~~~~~\n                 Dated this the 16th day of October, 2009\n\n                              J U D G M E N T\n<\/pre>\n
      In this writ petition the petitioner is aggrieved by orders by which the<\/p>\n
fourth respondent is allowed to continue beyond 30\/04\/2009 and stands<\/p>\n
promoted as Director of Ayurveda Medical Education in a vacancy which<\/p>\n
arose on 01\/05\/2009, as per Exts.P6 and P7.\n<\/p>\n
      2.    Even though notice was served on the fourth respondent, he has<\/p>\n
not chosen to appear.\n<\/p>\n
      3.    The petitioner is working as Principal of the Government<\/p>\n
Ayurveda College, Thripunithura. The petitioner will complete 55 years of<\/p>\n
age on 30\/11\/2009 and will be retiring from service on 30\/04\/2010. The<\/p>\n
date of birth of the fourth respondent is 30\/04\/1954. He superannuated<\/p>\n
from service on 29\/04\/2009 and his date of retirement ought to have been<\/p>\n
30\/04\/2009 being the last day of the academic year, contends the petitioner.<\/p>\n
      4.    Ext.P3 is the order by which the Government ordered that the<\/p>\n
date 30th of April will be fixed as the end of every academic year for<\/p>\n
Ayurveda Medical Education Department. It is ordered in Ext.P3 that the<\/p>\n
teaching staff under Directorate of Ayurveda Medical Education who are<\/p>\n
W.P.(C). No.13018\/2009
\n                                      -:2:-<\/span><\/p>\n
eligible to get extension of service beyond the date of superannuation under<\/p>\n
Rule 60(c) Part I K.S.R will be allowed to continue in service till the last<\/p>\n
day of April of the succeeding year.\n<\/p>\n
      5.     The Government brought into force G.O.(P).No.154\/2009\/Fin<\/p>\n
dated 24\/04\/2009 unifying the date of retirement of Government employees<\/p>\n
and Teachers. Ext.P4 is the copy of the said Government Order. As per<\/p>\n
clause 4(a), all Government employees and teachers who attain the age of<\/p>\n
55 years during the course of the financial year will continue in service till<\/p>\n
the end of that financial year. It is specified that the date of retirement of<\/p>\n
Government employees and Teachers will be 31st March every year. It is<\/p>\n
also specified therein that in the case of teachers in those institutions where<\/p>\n
the academic year closes on a date subsequent to 31st March they will be<\/p>\n
allowed to continue till the last day of the month in which the academic year<\/p>\n
closes.\n<\/p>\n
      6.     When the writ petition was filed, Ext.P4 order was in force. It<\/p>\n
was the contention of the petitioner that going by Ext.P4, the fourth<\/p>\n
respondent has to retire from service on 30\/04\/2009. Later, the Government<\/p>\n
brought an amendment to the relevant Rules of Part I K.S.R as per Ext.P6<\/p>\n
and, thereafter, the writ petition was amended. Presently, everything turns<\/p>\n
W.P.(C). No.13018\/2009
\n                                    -:3:-<\/span><\/p>\n
upon the interpretation of the amended rules contained in Ext.P6. Ext.P6 is<\/p>\n
published in the Extra Ordinary Gazette dated 07\/07\/2009 with<\/p>\n
retrospective effect from 24\/04\/2009. Ext.P7 order granting promotion to<\/p>\n
the fourth respondent is dated 25\/07\/2009.\n<\/p>\n
       7.    Heard the learned counsel for the petitioner Shri S.A.Razzak<\/p>\n
and Shri N.Manojkumar, Special Government Pleader for respondents.<\/p>\n
       8.    The contentions of the petitioner are three fold. It is pointed<\/p>\n
out that the fourth respondent superannuated from service on 29\/04\/2009 on<\/p>\n
completing 55 years of age. The vacancy in the post of Director arose on<\/p>\n
01\/05\/2009 after the expiry of the extended date of retirement, i.e., till the<\/p>\n
end of academic year, on 30\/04\/2009. Therefore, his continuance beyond<\/p>\n
30\/04\/2009 and the promotion granted thereafter are illegal.<\/p>\n
       9.    The relevant rule governing the retirement of the fourth<\/p>\n
respondent is sub-rule (c) of Rule 60 of Part I K.S.R as amended and,<\/p>\n
consequent on the operation of the same he will have to retire on the last<\/p>\n
day of the month in which the academic year ends.      Rule 60 (a) of Part I<\/p>\n
K.S.R will not apply to him. Going by Rule 28A of the Kerala State and<\/p>\n
Subordinate Service Rules also the promotion granted as per Ext.P7 is<\/p>\n
illegal.\n<\/p>\n
W.P.(C). No.13018\/2009
\n                                      -:4:-<\/span><\/p>\n
       10.    For a proper consideration of the issues raised in this writ<\/p>\n
petition it may be appropriate to consider the unamended Rules 60(a) and 60<\/p>\n
(c) of Part I K.S.R as well as the amended provisions. Rules 60(a) and 60(c)<\/p>\n
as unamended stood as follows:-\n<\/p>\n
              “60(a):-     Except as otherwise provided in these rules<\/p>\n
              the date of compulsory retirement of an officer shall take<\/p>\n
              effect from the afternoon of the last day of the month in<\/p>\n
              which he attains the age of 55 years. He may be retained<\/p>\n
              after this date only with the sanction of Government on<\/p>\n
              public grounds which must be recorded in writing, but he<\/p>\n
              must not be retained after the age of 60 years except in<\/p>\n
              very special circumstances.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
              60(c):-      The teaching staff of all educational<\/p>\n
              institutions (including Principals of Colleges) who<\/p>\n
              complete the age of 55 years during the course of an<\/p>\n
              academic year shall continue in service till the last day of<\/p>\n
              the month in which the academic year ends. They shall<\/p>\n
              be entitled to the benefits of increments and promotion<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:5:-<\/span><\/p>\n
             which fall due, before the last day of the month in which<\/p>\n
             they attain the age of 55 years. But they shall not be<\/p>\n
             eligible for increment or promotion during the period of<\/p>\n
             their service beyond such date. If they are on leave on<\/p>\n
             the day they attain the age of 55 years and if there is no<\/p>\n
             prospect of their returning to duty before the closing day<\/p>\n
             of the academic year for vacation they shall be retired<\/p>\n
             with effect from the last day of the month in which they<\/p>\n
             attain the age of 55 years. But in cases where officers<\/p>\n
             coming under this rule are under suspension on the date<\/p>\n
             of superannuation or thereafter but before the closing<\/p>\n
             day of the academic year, they shall be retired from<\/p>\n
             service on the date of superannuation or on the date of<\/p>\n
             suspension whichever is later.<\/p><\/blockquote>\n
             (Other provisions are omitted)<\/p>\n
The amended provisions in Rule 60 of Part I K.S.R are also extracted<\/p>\n
below:-\n<\/p>\n
     “(i) for sub-rule (a), the following shall be substituted, namely:-<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:6:-<\/span><\/p>\n
                    (a) Except as otherwise provided in these rules the<\/p>\n
             date of compulsory retirement of employees and teachers<\/p>\n
             shall take effect from the afternoon of the last day of the<\/p>\n
             financial year in which they attain the age of 55 years.<\/p>\n
             They may be retained after this date only with the<\/p>\n
             sanction of Government on public grounds which must<\/p>\n
             be recorded in writing, but they must not be retained<\/p>\n
             after the age of 60 years except in very special<\/p>\n
             circumstances.\n<\/p>\n
             Note:- The extended period of service under sub-rule (a)<\/p>\n
             shall be reckoned for all service benefits such as<\/p>\n
             increment, pension, higher grade, accrual of leave,<\/p>\n
             promotion and pay revision.”\n<\/p>\n
(ii) for sub-rule (c), except Explanation and note thereunder, the following<\/p>\n
shall be substituted, namely:-\n<\/p>\n
             “(c) The teaching staff of all Educational Institutions<\/p>\n
             (including Principals of Colleges) where the academic<\/p>\n
             year ends on a date subsequent to 31st March, shall<\/p>\n
W.P.(C). No.13018\/2009
\n                                      -:7:-<\/span><\/p>\n
             continue in service till the last day of the month in which<\/p>\n
             the academic year ends.\n<\/p><\/blockquote>\n
(iii) The existing Note under sub-rule (c) shall be renumbered as Note 2 and<\/p>\n
before the Note as so renumbered, the following Note shall be inserted,<\/p>\n
namely:-\n<\/p>\n
             “Note 1:- The extended period of service under sub-rule<\/p>\n<\/blockquote>\n
             (c) shall be reckoned for all service benefits such as<\/p>\n
             increment, pension, higher grade, accrual of leave,<\/p>\n
             promotion and pay revision.”\n<\/p><\/blockquote>\n
(iv) for Note 7, the following Note shall be substituted, namely:-<\/p>\n
             “Note 7:- Completion of 55 years of age in service is in<\/p>\n
             the afternoon and not in the forenoon. A person whose<\/p>\n
             date of birth is 1st April completes his 55th year on 31st<\/p>\n
             March and that date is the last day of the month in which<\/p>\n
             he completes the 55th year. On 1st of April he is on his<\/p>\n
             56th year and that day is not a working day for him. He<\/p>\n
             shall cease to be in service on and from 1st April.”<\/p>\n<\/blockquote>\n
(v)    Note 8 and 11 shall be omitted.\n\nW.P.(C). No.13018\/2009\n                                     -:8:-<\/span>\n\n<\/pre>\n
      11.    Going by the unamended provision the Government employees<\/p>\n
were covered by sub-rule (a) of Rule 60 and Teachers were governed by<\/p>\n
sub-rule (c). The extended period of service available to teachers, cannot be<\/p>\n
reckoned for any service benefits like increment, pension, higher grade<\/p>\n
promotion etc. as per the said provisions. Now, after the unification of the<\/p>\n
retirement age, going by the notes added to sub-rule (a) and sub-rule (c), the<\/p>\n
extended period of service shall be reckoned for all service benefits such as<\/p>\n
increment, pension, higher grade, accrual of leave, promotion and pay<\/p>\n
revision.    Going by the unamended rule 60(a), the officer has to<\/p>\n
compulsorily retire from the afternoon of the last day of the month in which<\/p>\n
he attains the age of 55 years. Presently, the employees and teachers will<\/p>\n
compulsorily retire from the afternoon of the last day of the financial<\/p>\n
year in which they attain the age of 55 years.<\/p><\/blockquote>\n
      12.    Herein, the learned counsel for the petitioner Shri Razzak laid<\/p>\n
emphasis on the words “except as otherwise provided in these rules”, in<\/p>\n
sub-rule (a) to contend for the position that as far as teachers in whose case<\/p>\n
the academic year ends subsequent to 31st March are concerned sub-rule (a)<\/p>\n
will not apply and in their case sub-rule (c) alone will apply. It is pointed<\/p>\n
out that as otherwise the said words would not have found a place in sub-<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:9:-<\/span><\/p>\n
rule (a). It is therefore contended that going by sub-rule (c), where the<\/p>\n
academic year ends on a date subsequent to 31st March, a member of the<\/p>\n
teaching staff can continue in service only till the last day of the month in<\/p>\n
which the academic year ends. It is a special provision for such class of<\/p>\n
members of teaching staff. He will not get the benefit of continuance till the<\/p>\n
last day of the financial year in which he attains the age of 55 years, which<\/p>\n
is the provision available under sub-rule (a). It is therefore submitted that,<\/p>\n
herein, as far as teaching staff in Ayurveda Medical Education Department<\/p>\n
are concerned, already going by Ext.P3 they can continue in service only till<\/p>\n
the last day of the month in which the academic year ends, namely, 30th of<\/p>\n
April of the year. If that be so, the fourth respondent will be deemed to<\/p>\n
have retired from service on that day. It is therefore submitted that the<\/p>\n
continuance of the fourth respondent beyond 30\/04\/2009 cannot be<\/p>\n
supported at all.\n<\/p>\n
      13.    The learned counsel further laid emphasis on Note 7 contained<\/p>\n
in Ext.P6. Going by Note 7, the fourth respondent will be deemed to have<\/p>\n
completed 55 years of age on 29\/04\/2009. The vacancy in the post of<\/p>\n
Director arose on 01\/05\/2009. Therefore, as on the date of occurrence of<\/p>\n
the vacancy, he has no claim for promotion. It is further submitted that<\/p>\n
W.P.(C). No.13018\/2009
\n                                    -:10:-<\/span><\/p>\n
going by Rule 28A of Part II K.S. & S.S.R also he is not entitled for<\/p>\n
promotion, since in terms of the proviso members of service who do not<\/p>\n
have atleast one year of service beyond superannuation after appointment to<\/p>\n
the post are not entitled for consideration at all.      As per Rule 28A,<\/p>\n
appointment by promotion or by transfer shall be made on the basis of merit<\/p>\n
and ability, seniority being considered only when merit and ability are<\/p>\n
approximately equal. The learned counsel for the petitioner placed heavy<\/p>\n
reliance upon the proviso to Rule 28A of K.S. & S.S.R which is extracted<\/p>\n
below:-\n<\/p>\n
                    “Provided that the lists for consideration for<\/p>\n
             appointment by promotion or by transfer to the posts<\/p>\n
             shall not ordinarily consist of members of service who<\/p>\n
             do not have at least one year of service before the date of<\/p>\n
             their superannuation after appointment to such a post.”<\/p>\n<\/blockquote>\n
The contention, that is developed, is that the fourth respondent ought not<\/p>\n
have been promoted in the light of the specific bar provided in the proviso.<\/p>\n
      14.    The learned Government Pleader, Shri Manojkumar, submitted<\/p>\n
that even going by the averments in the writ petition, the petitioner would<\/p>\n
attain the age of superannuation on 30\/11\/2009. Therefore, if the said<\/p>\n
W.P.(C). No.13018\/2009
\n                                      -:11:-<\/span><\/p>\n
contention is accepted, the petitioner also will not be eligible for promotion.<\/p>\n
It is clear from the averments in paragraph (3) of the writ petition, the<\/p>\n
petitioner will complete 55 years of age on 30\/11\/2009 and will have to<\/p>\n
retire on 30\/11\/2009.\n<\/p>\n
       15.    Going by the proviso itself there is no absolute bar for<\/p>\n
considering persons who have less than one year of service before the date<\/p>\n
of their superannuation after appointment. The word “ordinarily” used in<\/p>\n
the proviso is an indication in this regard. It is not an invariable rule. In<\/p>\n
that view of the matter, the contention that the proviso creates an absolute<\/p>\n
bar for the fourth respondent for being promoted is not correct.           The<\/p>\n
important question therefore, is whether the extension granted to the tenure<\/p>\n
of the fourth respondent can be justified.\n<\/p>\n
      16. The arguments raised by the learned counsel for the petitioner Shri<\/p>\n
S.A. Razzak are forceful and attractive, and they require a deeper scrutiny.<\/p>\n
       17.    The first thing to be examined is the question whether it is sub-<\/p>\n
rule (a) or (c) of Rule 60 of Part I K.S.R that will apply. Sub-rule (a) applies<\/p>\n
in the case of employees and teachers alike.           Under the unamended<\/p>\n
provision, only employees other than teachers were covered by the<\/p>\n
provisions of Rule 60(a). In respect of teachers, it was sub-rule (c) that was<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:12:-<\/span><\/p>\n
applicable. Now, there is a change in the scheme in the sense that sub-rule<\/p>\n
(a) will take the care of teachers and other employees alike. A uniform<\/p>\n
provision is brought into force in that, the retirement of these categories will<\/p>\n
take effect from the afternoon of the last day of the “financial year” in which<\/p>\n
they attain the age of 55 years. Therefore, as far as employees and teachers<\/p>\n
are concerned, uniformly, they will retire only on 31st of March of the year<\/p>\n
in which they attain the age of 55 years. It is clear from the note to the said<\/p>\n
provision that the extended period of service shall be reckoned for all<\/p>\n
service benefits such as increment, pension, higher grade, accrual of leave,<\/p>\n
promotion and pay revision. Therefore, even if a vacancy in the higher post<\/p>\n
arises after the date on which they attain the age of 55 years, they are<\/p>\n
entitled to be promoted. There is no legal embargo for the same.<\/p>\n
       18.   Therefore, the further question is whether sub-rule (c) of Rule<\/p>\n
60 of Part I K.S.R alone will apply as far as teachers in whose case the<\/p>\n
academic year ends on a different date are concerned.             Sub-rule (c)<\/p>\n
practically applies in a case where, in an educational institution, the<\/p>\n
academic year ends on a date subsequent to 31st March, and it is in those<\/p>\n
circumstances sub-rule (c) allows them to continue in service till the last day<\/p>\n
of the month in which the academic year ends. This provision is introduced<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:13:-<\/span><\/p>\n
obviously to avoid any difficulty to the students whose course structure will<\/p>\n
extend beyond 31st March. Therefore, in such circumstances where the<\/p>\n
academic year ends only on 30th April as in this case the teacher can<\/p>\n
continue upto that date also. He will get the benefit of extension of service<\/p>\n
as per sub-rule (a) and will further get the benefit of sub-rule (c). As<\/p>\n
explained in the counter affidavit, this is to avoid inconvenience and<\/p>\n
difficulty to the student community in such institutions. Such cases may be<\/p>\n
very few like the one here wherein the academic year specifically ends only<\/p>\n
on 30th April. In those cases also Note 1 under sub-rule (c) provides that the<\/p>\n
extended period of service shall be reckoned for all service benefits such as<\/p>\n
increment, pension, higher grade, accrual of leave, promotion and pay<\/p>\n
revision. When the general provision in sub-rule (a) applies in the case of<\/p>\n
the fourth respondent, he can continue in service till 31st March 2010. In the<\/p>\n
light of the sub-rule (c), he can continue in service till 30th April 2010, when<\/p>\n
the academic year ends. Going by Note 1 to sub-rule (c), he will be entitled<\/p>\n
to get promotion also in any vacancy which may arise during his tenure;<\/p>\n
herein admittedly, a vacancy arose on 01\/05\/2009. Since he is entitled to<\/p>\n
continue in service till 30\/04\/2010, the claim for promotion cannot be<\/p>\n
denied. Sub-rule (c) supplements sub-rule (a) and it is not an exclusive<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:14:-<\/span><\/p>\n
provision or a special provision which overrides sub-rule (a) of Rule 60.<\/p>\n
The provisions will have to be construed harmoniously.<\/p>\n
       19.   The learned counsel for the petitioner relied upon a decision of<\/p>\n
the learned Single Judge of this Court in Abraham v.Accountant General<\/p>\n
[1988 (1) KLT 441], especially paragraph (4) therein. The said decision is<\/p>\n
relied upon to support the plea that since the fourth respondent has attained<\/p>\n
55 years of age as on 29\/04\/2009, he is eligible to get the rights which he<\/p>\n
had prior to the attainment of 55 years alone. Therefore, even if he is<\/p>\n
entitled to continue upto 30\/04\/2010 he cannot be promoted to the higher<\/p>\n
post, the learned counsel vehemently contends. The facts of the said case<\/p>\n
show that the petitioner therein attained the aged of 55 years on 20\/07\/1983<\/p>\n
and he retired as Headmaster on 30\/04\/1984 after availing the benefit of<\/p>\n
Rule 60(c) of Part I K.S.R. He was promoted as Headmaster as per Ext.P1<\/p>\n
order dated 18\/07\/1983, and he joined as such on 06\/08\/1983.           While<\/p>\n
considering the eligibility to reckon the service of Headmaster for the<\/p>\n
purpose of pensionery benefits, this Court examined the question whether he<\/p>\n
was eligible for promotion prior to the attainment of 55 years of age. In that<\/p>\n
context, it was held thus in paragraph (4):-\n<\/p>\n
W.P.(C). No.13018\/2009
\n                                    -:15:-<\/span><\/p>\n
             “4.    Under Rule 60(c), teaching staff of all educational<\/p>\n
             institutions who are allowed to continue in service till<\/p>\n
             the last day of the month in which the academic year<\/p>\n
             ends, are entitled to the benefits of increments and<\/p>\n
             promotion, which fall due before the last day of the<\/p>\n
             month in which they attain the age of 55 years. Therefore<\/p>\n
             the question is whether promotion of the petitioner fell<\/p>\n
             due before the last day of July, 1983, during which<\/p>\n
             month he attained 55 years. Ext.P-1 order was dated<\/p>\n
             18\/07\/1983.   By that order the petitioner along with<\/p>\n
             others was promoted as Headmaster and that order was<\/p>\n
             directed to take place immediately.      The word ‘due’<\/p>\n
             means payable immediately or on demand-see Webster’s<\/p>\n
             II New Riverside University Dictionary, page 408. It<\/p>\n
             can only mean that the officer must have been eligible<\/p>\n
             for promotion and not whether he actually took charge in<\/p>\n
             the promoted post.       The petitioner’s eligibility for<\/p>\n
             promotion as Headmaster had crystalised into a concrete<\/p>\n
             right before he attained the age of 55 and also before the<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:16:-<\/span><\/p>\n
             last day of the month in which he attained the age of 55<\/p>\n
             years. Only because of certain administrative delay he<\/p>\n
             could join duty in the higher post during the next month.<\/p>\n
             That is not material or relevant in considering whether<\/p>\n
             he should be given the benefit of the promotion.”\n<\/p>\n
It was observed that merely because of certain administrative delay he could<\/p>\n
join duty in the higher post only later, and since he was eligible to be<\/p>\n
promoted before he attained the age of 55 years, he cannot be denied the<\/p>\n
benefit. Herein, the situation is different. It is true that as on 30\/04\/2009,<\/p>\n
the vacancy did not arise in the post of Director and he attained 55 years of<\/p>\n
age on 29\/04\/2009 also. But his eligibility for promotion arises only in the<\/p>\n
light of the amended provision of Rule 60(a) by which he is eligible to<\/p>\n
continue in service till the end of the financial year. Since, he is entitled to<\/p>\n
get the benefit of sub-rule (c), he can continue in service till 30th April 2010<\/p>\n
and therefore, he is eligible to be considered for promotion on the date of<\/p>\n
occurrence of vacancy i.e. 01\/05\/2009.       Therefore, the above decision,<\/p>\n
which considered the unamended Rule 60(c), cannot help the case of the<\/p>\n
petitioner.\n<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:17:-<\/span><\/p>\n
      20.    The learned counsel for the petitioner then relied upon the<\/p>\n
Apex Court judgment in Chairman, Railway Board and others v.<\/p>\n
C.R.Rangadhamaiah and others<\/a> [(1997) 6 SCC 623] to contend that the<\/p>\n
petitioner had a vested right for promotion as on 01\/05\/2009 and the same<\/p>\n
cannot be interfered with by the retrospective amendment of the rules.<\/p>\n
Specific reliance is placed on paragraph (20) of the said judgment, which is<\/p>\n
extracted below:-\n<\/p>\n
             “20. It can, therefore, be said that a rule which operates<\/p>\n
             in futuro so as to govern future rights of those already in<\/p>\n
             service cannot be assailed on the ground of retroactivity<\/p>\n
             as being violative of Articles 14 and 16 of the<\/p>\n
             Constitution, but a rule which seeks to reverse from an<\/p>\n
             anterior date a benefit which has been granted or availed<\/p>\n
             of, eg., promotion or pay scale can be assailed as being<\/p>\n
             violative of Articles 14 and 16 of the Constitution to the<\/p>\n
             extent it operates retrospectively.”\n<\/p><\/blockquote>\n
      21.    Thereafter, in paragraph (24) it was held thus:-<\/p>\n<\/blockquote>\n
                   “24. In many of these decisions the expressions<\/p>\n
             “vested rights” or “accrued rights” have been used while<\/p>\n
W.P.(C). No.13018\/2009
\n                                      -:18:-<\/span><\/p>\n
             striking down the impugned provisions which had been<\/p>\n
             given retrospective operation so as to have an adverse<\/p>\n
             effect in the matter of promotion, seniority, substantive<\/p>\n
             appointment, etc., of the employees.           The said<\/p>\n
             expressions have been used in the context of a right<\/p>\n
             flowing under the relevant rule which was sought to be<\/p>\n
             altered with effect from an anterior date and thereby<\/p>\n
             taking away the benefits available under the rule in force<\/p>\n
             at that time. It has been held that such an amendment<\/p>\n
             having retrospective operation which has the effect of<\/p>\n
             taking away a benefit already available to the employee<\/p>\n
             under the existing rule is arbitrary, discriminatory and<\/p>\n
             violative of the rights guaranteed under Articles 14 and<\/p>\n
             16 of the Constitution. We are unable to hold that these<\/p>\n
             decisions are not in consonance with the decisions in<\/p>\n
             Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav<\/p>\n
             Lal Soni.”<\/p><\/blockquote>\n
      22.    Herein, it is true that if the unamended rules were in force, the<\/p>\n
fourth respondent would have retired from service on 30\/04\/2009. He gets a<\/p>\n
W.P.(C). No.13018\/2009
\n                                    -:19:-<\/span><\/p>\n
right for continuance in service based on the amended Rule 60(a) as well as<\/p>\n
Rule 60(c) of Part I K.S.R. It is given retrospective effect from the date of<\/p>\n
Ext.P4. In Ext.P4 under the relevant clause 4(a), all Government employees<\/p>\n
and teachers who attain the age of 55 years during the course of the<\/p>\n
financial year will continue in service till the end of that financial year.<\/p>\n
Therefore, the amendment which is brought into effect, is said to be in<\/p>\n
consonance with Ext.P4. As on the date of Ext.P4, the fourth respondent<\/p>\n
was in service. He attained 55 years only on 29\/04\/2009, and therefore was<\/p>\n
entitled to get the benefit of Ext.P4. Therefore, the circumstances pointed<\/p>\n
out in the decision of the Apex Court in Rangadhamaiah’s case [(1997) 6<\/p>\n
SCC 623] and the dictum laid down therein will not strictly apply to the<\/p>\n
facts of this case. When admittedly, the fourth respondent is senior to the<\/p>\n
petitioner and was considered for due promotion, the question of taking<\/p>\n
away any vested right of the petitioner by retrospective amendment of the<\/p>\n
Rule does not arise in the facts of this case. Therefore, the said contention<\/p>\n
also is not sustainable.\n<\/p>\n
       23.   It is the further contention of the learned counsel for the<\/p>\n
petitioner that the amendment cannot affect the right accrued to the<\/p>\n
petitioner as on the date of occurrence to the vacancy. Reliance is placed on<\/p>\n
W.P.(C). No.13018\/2009
\n                                     -:20:-<\/span><\/p>\n
a Full Bench decision of this Court in Padmanabhan Nair v. Dy.Director<\/a><\/p>\n
[1991 (1) KLT 337]. It is contended that as on the date of the occurrence of<\/p>\n
the vacancy, the amendment Ext.P6 was not in force. Therefore, the fourth<\/p>\n
respondent cannot be benefited by it. But since as on the date of occurrence<\/p>\n
of vacancy, Ext.P4 was in force, the said contention cannot hold good.<\/p>\n
       24.    The learned counsel for the petitioner also relied upon the<\/p>\n
decision reported in Gracy v. State of Kerala<\/a> [1985 KLT 269] to contend<\/p>\n
that since the petitioner was denied promotion illegally, she is entitled for<\/p>\n
all the benefits including salary. Herein, as I am of the view that there is no<\/p>\n
illegality in Ext.P7, the question doesn’t arise for decision.<\/p>\n
       25.    On an analysis of the various contentions raised by the parties it<\/p>\n
is clear that the fourth respondent is entitled to claim the benefit of the<\/p>\n
amendments introduced as per Ext.P6. The said amendment of the statutory<\/p>\n
rules is not under challenge in this writ petition. It is clear that the amended<\/p>\n
provisions of Rule 60(c) applies to teachers in whose cases the academic<\/p>\n
year ends on a particular day. other than 31st March every year. Therefore,<\/p>\n
the provisions of Rule 60(a) and 60(c) go together. A contrary intention is<\/p>\n
not discernible from the rules. Apart from that Note to Rule 60(a) and Note<\/p>\n
(1) to Rule 60(c) of Part I K.S.R clearly provides that the extended period of<\/p>\n
W.P.(C). No.13018\/2009
\n                                      -:21:-<\/span><\/p>\n
service shall be reckoned for all service benefits including promotion.<\/p>\n
Therefore, there is no illegality in Ext.P7.\n<\/p>\n
      26.    For all these reasons, the writ petition fails and the same is<\/p>\n
dismissed. No costs.\n<\/p>\n<\/p>\n
                                        (T.R. Ramachandran Nair, Judge.)<\/p>\n
ms<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Dr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-154092","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nDr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-n-ramani-bai-vs-government-of-kerala-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.N.Ramani Bai vs Government Of Kerala on 16 October, 2009 - 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