Kerala High Court
S. Vijayan, Dy. Superintendent Of ... vs State Of Kerala, The Director General Of ... on 26 February, 2007
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT K.K. Denesan, J.
1. The petitioners are Deputy Superintendents of Police and are thus eligible to be considered for appointment by transfer to the post of Superintendent of Police. The third respondent was due to retire from service on superannuation with effect from 31.1.2007 since he attained the age of 55 years in the month of January 2007. Retirement on superannuation at the age of 55 years is a statutory mandate as seen from Rule 60(a) of Part I K.S.R. The said rule reads as follows:
Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.
2. By the force of Rule 60(a), the third respondent who was holding the post of Superintendent of Police actually retired from service in the afternoon of 31.1.2007. Thereafter the first respondent passed Ext.P2 order on 2.2.2007 stating as follows:
In the representation read above the Director General of Prosecution has requested the Government to extend the service of Sri.P.C.Muhajir, Superintendent of Police (Non IPS) who belongs to the Special Investigation Team constituted in pursuance of the Hon'ble High Court of Kerala to investigate Crl.M.C.405/2006 relating to the Divine Retreat Centre, Muringoor. The date of retirement of Sri.Muhajir is 31.1.2007. It is also brought to the notice of Government that the Hon'ble High Court in its order has clearly stated that the Officers included in the Special Investigation Team shall not be disturbed unless and until the investigation of the case is over. In the above circumstances Government are pleased to retain the service of Shri.P.C. Muhajir for six months from 31.1.2007 (from the date of his retirement) under Rule 60(a) of Kerala Service Rules, Part I, in public interest, as a special case.
3. The petitioners feel aggrieved by Ext.P2 order in so far as it says that the third respondent is retained in the service for six months from 31.1.2007 (from the date of his retirement). The adverse effect on the service prospects of the petitioners is that an open retirement vacancy which was due to arise, and in fact arose, with effect from the afternoon of 31.1.2007 has been treated otherwise, by giving retrospective effect to Ext.P2.
4. The petitioners do not contend for the position that the extension of service ordered in favour of the third respondent is liable to be interfered with by this Court. On the other hand, the contention against Ext.P2 is that it is unsustainable in as much as it orders retention of the third respondent in service from a past date and that too after the retirement has, in fact, taken effect. According to the petitioners, it is a case of re-employment for the purpose of retention of the third respondent in service and not an extension of his service before retirement.
5. I have heard the learned Advocate General appearing on behalf of respondents 1 and 2.
6. It was submitted that the Government did not intend, while passing Ext.P2, that the vacancy which arose on 31.1.2007 should be deemed to have been filled up by allowing the third respondent to continue in service. Learned Advocate General submitted that if this Court so feels, respondents 1 and 2 have no objection in treating 31.1.2007, consequent to the retirement of the third respondent, as the date of occurrence of vacancy though the third respondent has been allowed to continue in service from the date of Ext.P2, i.e. 2.2.2007. Therefore, the submission on behalf of the Government is that despite the language used in Ext.P2, respondents 1 and 2 would treat the third respondent's retention as one of re-employment of a retired employee and retaining him in service for a period of six months so that he could discharge his duties as per the directions issued by this Court in Crl.M.C.405/2006 dated 10.3.2006.
7. Counsel for the third respondent submits that Rule 60(a) contemplates retention of a retired employee and that being the position it is not necessary that the order of retention should come into existence even before the actual retirement of the employee whose service is directed to be retained. It is also contended that the power to retain a government servant or an officer in service even beyond the date of superannuation can be exercised retrospectively as well.
8. I have considered the arguments of both parties. It is not in dispute that the order of retention was passed a day after the actual retirement of the third respondent. Before his actual retirement there was no decision by the Government to allow him to continue in service and there was no issuance of formal orders retaining him in service. Therefore, legally as well as factually the third respondent retired from service on 31.1.2007 as per the mandate of the first part of Rule 60(a) K.S.R. That being the position any decision to retain the very same officer in service for a further period can only be in the nature of re-employment and retention in service for a specified period. I think the learned Advocate General made his submissions on a correct understanding of the rule position as also the fact situation.
9. This Court is not expected in the nature of the contentions of the parties in this case, to examine whether the retention of the third respondent in service for a period of six months is in public interest or otherwise. That is a foregone conclusion in the light of the direction issued by this Court in Crl.M.C.405/2006. The Government which felt the need to execute or carry out the directions of this Court by utilising the services of the very same Superintendent of Police was well advised to retain that officer in service. But it so happened that such an order could actually be issued after the retirement of that officer viz., the third respondent. That reality cannot be ignored. There is no direction in Ext.P2 that the third respondent shall be deemed to be continuing in service notwithstanding his absence from service for one day viz., 1.2.2007 as a consequence of his actual retirement from service on 31.1.2007. That being the position, I am not able to accept the contention urged on behalf of the third respondent.
10. Though the petitioners have sought for a writ of certiorari to quash Ext.P2, I do not think that Ext.P2 need be set aside. It would suffice if the declaration sought for by the petitioners viz., that the retention of the third respondent as a member of the special investigation team constituted as per Ext.P3 does not amount to his continuance in service as Superintendent of Police (State Special Branch, Thrissur), a post borne on the cadre of Kerala Police Service from which he retired on superannuation in the afternoon of 31.1.2007, is granted. There shall be a declaration to the above effect. Respondent No:3 shall, however, be afforded the status and facilities of the Superintendent of Police provided to him prior to 31.1.2007. Respondent No:1 is free to consider the case of the petitioners for appointment to the post of Superintendent of Police against the vacancy occurred on 31.1.2007, in accordance with law. With the above observations, this writ petition is allowed.