Kerala High Court
Joe Joseph vs The State Of Kerala on 29 May, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P.(C) No.1695/2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 29TH DAY OF MAY 2020 / 8TH JYAISHTA, 1942
WP(C).No.1695 OF 2020(J)
PETITIONER/S:
JOE JOSEPH
AGED 56 YEARS
S/O JOSEPH, DIRECTOR, DEPARTMENT OF PUBLICATIONS
(EMPID 5239) UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM-695 034, RESIDING AT CRA 195A,
KOLLAMPARAMBIL, CHOOZHAMPALA, MUKKALAKKAL
P.O.THIRUVANANTHAPURAM-695 015.
BY ADVS.
SRI.T.P.DEYANANTHAN
SRI.A.V.RAMAKRISHNA PANICKER
SRI.S.KRISHNALAL
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 UNIVERSITY OF KERALA,
REPRESENTED BY THE REGISTRAR, UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM-695 034.
3 SYNDICATE OF THE UNIVERSITY OF KERALA,
REPRESENTED BY VICE CHANCELLOR, UNIVERSITY OF
KERALA, THIRUVANANTHAPURAM-695 034.
BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
OTHER PRESENT:
SRGP.SRI.P.M.MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.1695/2020
.
.
JUDGMENT
Dated this the 29th day of May 2020 Petitioner, who is working as Director of the Department of Publications in the Kerala University, seeks a declaration that he is entitled to continue in service till he attains the age of 60 years. Petitioner also challenges Ext.P7 Circular issued by the University on 26.11.2019, which includes his name also among the employees of the University, retiring from service on superannuation in the year 2020, showing the date of his retirement as 31.05.2020.
2. While the petitioner was working as Programme Officer in the Kerala State Audio-Visual and Reprographic Centre, the 2nd respondent University issued Ext.P4 notification inviting applications for appointment to the post of Director, Department of Publications. Pursuant to that he submitted application and on being successful in the selection he was appointed as Director of Publications as per Ext.P4 order dated 05.11.2012, in the scale of pay of Rs.25400-33100 (pre-revised). In this order it was stated that his appointment would be governed by Section 73 W.P.(C) No.1695/2020 :3: of the Kerala University Act, 1974 and Statutes and Ordinances framed thereunder. Petitioner claims that all his predecessors in the post could continue in service till they attained 60 years on the basis of Ext.P1 order issued by the University on 19.09.1975 by which sanction was accorded for the Director, Assistant Director and qualified Publication Assistants of the Department of Publications to enjoy the benefit of retirement age of 60 without conferring academic status to the department. Petitioner points out that when one Dr.Razaludeen, the previous incumbent in the post was sought to be relieved on attaining the age of 55 years, he had approached this Court and he was allowed to continue till the age of 60 years. Therefore petitioner asserts that in the light of Ext.P9 judgment dated 11.08.2006 in W.A.No.865 of 2006, he is also entitled to continue till he attained the age of 60 years. He therefore argues that Ext.P7 Circular including his name among the persons who retire from service in 2020 is issued without any authority.
3. In the statement filed on behalf of the University, it is stated that the scale of pay, qualification, age etc., of the Director, the Department of Publication is covered by Clause 3 of Schedule 100 in Chapter XVII of the W.P.(C) No.1695/2020 :4: Kerala University First Ordinance 1978 and the appointment to the said post is made in accordance with Statute 8 of Chapter IV in Part II of the Kerala University First Statutes, 1977. According to the University only those who are holding teaching posts are eligible to continue in service till the age of 60 years. As per Clause 2 of Chapter IV of the Kerala University First Statutes 1977 r/w Rule 60 (a) Part I KSR all the non teaching staff has to retire on the last date of the month in which he attains the age of 56 years and petitioner who is not holding a teaching post can therefore continue only till 31.05.2020 on which day he would attain the age of 56 years. The respondents have stated that the Director of Publication does not come within the term of a teacher as defined under Section 2(27) and he is not a teacher of the University as defined under Section 2(28). The retirement age of the teachers of the University is governed by Statute 10 of Chapter 3 of the Kerala University First Statutes, according to which they can continue till the age of 60 years. It is pointed out that Statute 2(1) of Chapter IV of the 1977 Statutes makes the provisions contained in Kerala Service Rules (KSR),1959 applicable to the University Employees and thus the retirement age applicable W.P.(C) No.1695/2020 :5: to petitioner is 56 years as provided in KSR. Regarding the judgment Ext.P9 in W.A.No.865 of 2006, the contention of the University is that in 2001, the syndicate had taken a decision that the retirement age of the Director, Department of Publications would be 60 years. However despite that decision, the University issued a notice to Dr.Razaludeen, directing that he had retired at the age of 55 years. Paragraphs 7 and 8 of the statement reads as follows:
7. Yet another crucial aspect is that the question considered in W.A.No.865/2006 sought to be relied on by the petitioner has no relevance in the instant case. Earlier, there was a Syndicate decision of the year 2001 wherein the retirement age of the Director, Department of Publications was fixed as 60. While the said U.O., was in existence, Dr.Razaludeen was asked to retire at the age of 55. Since, his contemporaries had retired at the age of 60, in order to avoid discrimination, the Syndicate resolved to permit Dr.Razaludeen to continue in service till the age of 60.
8. However, the Syndicate at its meeting held on 22.03.2005, while considering the retirement age of the Director, Department of Publications and OP filed by Dr.Razaludeen, noted that the Department of Publicatiions is a non-teaching Department and resolved that the age of retirement of the staff of the Department is 55 years. It was further resolved to cancel the decision of the meeeting of the Syndicate held on 25.10.2001 and give one month notice to Dr.Razaludeen for termination from service. It is in the aforesaid background that this Hon'ble Court observed that the University was in two minds on the issue and rendered Ext.P9 judgment in favour of Dr.Razaludeen permitting him to continue in service as Director, Kerala University Department of Publications till the ag eof 60 years. As can be seen from paragraph 7 of Ext.P9 judgment, the same is limited to the appellant and not a general declaration regarding the age of retirement of Director, Department of Publications. In the instant case, the petitioner joined service after 2005 when the Syndicate had reduced the age of retirement of staff of the Department to 55 (now 56 years). As such, Ext.P9 judgment has no relevance in the case of the petitioner.W.P.(C) No.1695/2020 :6:
Therefore it is their contention that there was nothing wrong in including the name of the petitioner in Ext.P7.
4. The petitioner has filed a reply affidavit producing the minutes of the meeting held by the Syndicate on 11.07.2003 pointing out that Sri.Razaludeen was allowed to continue till he attained the age of 60 years and that the said minutes also considered the fact that former Director Mr.C.J.Chacko and former Assistant Director Mr.S.Krishnayyar had retired from service on completion of 60 years. Ext.P10 minutes had also referred to the judgment in OP No.38193/2001 filed by Sri.Razaludeen directing to permit him to continue till 60 years.
5. The learned counsel for the petitioner, relying on the judgments of the apex court in Madan Moham Pathak and another vs. Union of India (1978) 2 SCC 50 and Sreedharan Kallat vs. Union of India (1995) 2 KLT 770 argued that when the issue is covered by the judgment of the Division Bench of this Court, the said judgment, which is so far not reversed, is applicable to the petitioner.
6. Heard the learned counsel for the petitioner, learned Standing Counsel for the University and the learned Government Pleader.
7. The question to be considered is whether the W.P.(C) No.1695/2020 :7: petitioner who is the Director of Department of Publications, University of Kerala is entitled to continue till he attains the age of 60 years. Ext.P1 order relied on by the petitioner was issued on 19.09.1975. The Kerala University First Statute,1977 (hereinafter referred to as '1st Statute) came into force on 09.02.1977. As per Statute 2(s) of Chapter I of that Statute "University employee"
means every person (other than teacher) in the whole time employment of the University (other than person so employed in the contingent work establishment) and paid for from the Kerala University Fund. University Service is defined in Statute 2(t) as service under the Kerala University otherwise than as a teacher. "Teacher" is defined under section 2(27) of the Kerala University Act, 1974 (hereinafter referred to as 'the Act') which reads as follows:
"teacher" means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recongnised institutions and whose appointment has been approved by the University".
As per section 2(13) of the Act "non-teaching staff" of the University or a college means the employees of the University or that college, other than teachers. Chapter III of the 1st Statute deals with teachers of the W.P.(C) No.1695/2020 :8: University. Under the proviso to Statute 10 of the first Statute provides that the age of retirement of teachers of the University shall be 60 years and that the teachers would be entitled to continue till the last day of the month in which the academic year ends. Chapter IV of the 1st Statute deals with the service conditions of the non- teaching staff of the University other than University Teachers. Statute 2(1) thereof provides that provisions contained in KSR would be applicable to the non teaching staff. Statute 2 reads as follows:
2. Applicability of the Kerala Service Rules etc. to the non-teaching staff:-
(1) Subject to the provisions of the Act and the Statutes issued thereunder the Kerala State and Subordinate Services Rules, 1958, Kerala Service Rules, 1959 and the Government Servants Conduct Rules, 1960 as amended from time to time in so far as may be applicable and except to the extent expressely provided for in these Statutes shall apply in the matter of all the service conditions of the University employees in the University Service.
Provided that the said Rules shall, in their application to the members of the University Service, be construed as if the employer were the Kerala University instead of Kerala State Government.
8. The petitioner does not have a case that he is holding a teaching post or even that that the Department of Publication is a teaching Department. That being so, he being a member of the non-teaching staff in the University service, his retirement age would be governed by Rule 60(a) of Part I KSR, going by Statute 2 of Chapter IV of First W.P.(C) No.1695/2020 :9: Statute according to which he has to retire on the last day of the month in which he attains the age of 56 years. The proviso to Statute 10 of Chapter III of the 1 st Statutes which provide for the retirement age as 60 years is applicable only to the teachers of the University. When the First Statutes came into force in 1977, the executive orders like Ext.P1 order issued prior to that in 1975 cannot have any force in the absence of an express provision regarding the same in the Statutes.
9. However it is seen that the University had been permitting the Directors/Assistant Directors of the Department of the Publications, to continue in service till the age of 60 years. But those retention are seen to have been permitted on the basis of separate decisions taken by the Syndicate. The University has stated that the Syndicate had on 22.03.2005 cancelled such decision. A perusal of Ext.P9 judgment in W.A.No.865/2006 which is heavily relied on by the petitioner, would show that Dr.Razaludeen, who was the appellant therein had approached the Syndicate of the University to permit him to continue in service till 60 years and that the University had passed resolution permitting the same. When the University, despite that resolution, took steps to relieve him at the age of 55 W.P.(C) No.1695/2020 :10: years, he filed OP No.38193/2001. This Court found that he was not liable to be relieved, when the Syndicate of the University had resolved to retain him till he attain the age of 60 years and allowed him to continue till he attains the age of 60 years. This court also made it clear that the University would not be precluded from taking a decision to reduce the age of retirement in accordance with law. While Dr.Razaludeen was continuing in service based on the judgment dated 25.06.2002 beyond the age of 55 years. After about 3 years of the judgment the University, on 26.03.2005, decided to terminate his service after issuing one month's notice. He, thereupon filed WP(C) No.11804/2005 and the learned single Judge dismissed the Writ Petition. In the Writ Appeal, the Division Bench found that the action taken as per order dated 26.03.2005 to relieve him, after the expiry of about 3 years was illmotivated. Referring to an affidavit filed by the Registrar before this Court on 05.02.2006 and the order passed by them on 26.03.2010, the Division Bench found that the Registrar was adopting conflicting and contradictory stand in the matter when they remained silent for about years after the judgment in the O.P. filed in 2001. Relevant portion of Paragraphs 2 and 3 of Ext.P9 judgment read as follows: W.P.(C) No.1695/2020 :11:
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2. It was at that time the petitioner approached the Syndicate of the University to give him also the same benefits. The Syndicate, by a resolution, allowed that request and resolved that his age of retirement shall be 60 years. But in spite of that, when he was to attain the age of 55 years, he was issued with a memo stating that he was liable to retire at the age of 55 years. Accordingly, he approached this court with O.P.No.38193/01 which resulted in Ext.P7 judgment. In Ext.P7, it was found that the retirement age of the members of non-teaching staff was 55 going by rule 2 Chapter IV of the Kerala University First State read with Rule 60(a) Part I K.S.R. But, at the same time, the resolution of the Syndicate of the University, extending the age of the appellant upto 60 years, was permissible in terms of Rule 7 of Part I K.S.R., which also had been adopted as per the Statute. Therefore, the order directing retirement of the appellant at the age of 55 years was quashed and it was specifically declared that, as things now stand, he will be entitled to continue in service till the age of 60 years. In spite of that categoric finding in Ext.P7, the learned single Judge observed that:
"But this will not preclude the University to take action in accordance with law to reduce the age of retirement of the Director of Publications to 55 years."
This observation was made after finding that the appellant was entitled to continue in service till the age of 60 years quashing the impugned order which directed his retirement at the age of 55 years. This judgment was pronounced by this court on 25.06.2002. All these years, the appellant was continuing in service beyond the age of 55 years. As if the University had obtained a revelation now, the Syndicate suddenly took a decision that the services of the appellant shall be terminated, as the appellant had to retire at the age of 55 and as he had crossed the age of 55, notwithstanding Ext.P7 judgment, it was decided to give him one month's notice and to terminate his services. Ext.P9 is the order in that regard. That was issued on 26.03.2005.
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5. Which is the real will of the University whether Ext.P9 to terminate the services of the appellant or the categoric averment in the said affidavit not to terminate his services. Even the counsel is in a dilemma when we pointed out to him while hearing this appeal. The counsel had to fairly concede before us that Ext.P9 and the sworn statement did not tally each other. Now, the University is in two minds, when Ext.P9 had been under challenge before this court. The University's later mind is revealed in the affidavit sworn to by the Registrar, the top ministerial functionary of the University. Necessarily, his latter opinion furnished in the said affidavit shall govern the age of the retirement of the appellant.
W.P.(C) No.1695/2020:12:
10. In the present case the petitioner does not have a case that the syndicate of the University has passed any resolution subsequent to 22.03.2005 regarding retirement age or any resolution in his favour permitting him to continue upto the age of 60 years. The petitioner has also not produced any decision of the syndicate or orders issued by the University, subsequent to the coming into force of the First Statute declaring that the age of retirement of the Director or the staff of the Department of Publication would be 60 years. The only order produced and relied on is Ext.P1 which was issued before coming into force of the Statute 77. Even though, as pointed out by the petitioner, it is seen that the predecessors of the petitioner - the former directors of Department of Publications were allowed to continue till they attained the age of 60 years, there is no provision in the University Act which permits the staff of the Department of Publications to continue till they attained the age of 60 years. The fact that Predecessors of the petitioner were retained till they attained the age of 60 years by itself will not be of any help to the petitioner.
11. The learned Counsel for the petitioner argued that W.P.(C) No.1695/2020 :13: Ext.P1 is an order passed in tune with 2 nd part of Rule 60(a) of Part I KSR. Rule 60(a) of Part I KSR reads as follows:
"60(a)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 56 years. He may be retained after this date only with the sanction of government on public grounds which must be recorded in writing"
12. In the absence of a separate decision taken by the University to retain the petitioner, recording the public grounds for the same, the reliance placed by the petitioner on Ext.P1 order read with the 2nd part of Rule 60(a) is misplaced.
13. The petitioner is admittedly a member of non- teaching staff. He does not have a case that he is a teacher of the University or teacher appointed by the University, who are the only staff in the University who can continue till the age of 60 years. He does not have a case that he is even a staff in a Teaching Department. It is relevant to note that even in cases where officers of the University claimed continuance till they attained the age of 60 years claiming that they were holding teaching posts this Court has not allowed their claim seeing that they did not hold teaching post as defined in section 2(28) and (29) of the Kerala University Act. (See Gopinathan W.P.(C) No.1695/2020 :14: Pillai vs. University of Kerala : 2016 (3) KLT 904 where this Court found that the Assistant Director of Centre of Adult Continuing Education and Extension (CACEE) is not a teacher of the University eligible to continue in service till he attains 60 years.)
13. The contention of the learned Counsel for the petitioner that the issue raised in this Writ Petition is covered by Ext.P9 judgment of the Division Bench and that so long as it is not reversed the benefit of the judgment should be extended to the petitioner cannot also be accepted. It is seen that Ext.P9 judgment has rendered in the peculiar circumstances of that case where the Syndicate of the University had passed a resolution permitting the petitioner therein to continue in service till he attained the age of 60 years. Based on that decision, a judgment was also rendered in his case directing to retain him in accordance with that decision. The judgment rendered in the circumstances can only be applicable to Dr.Razaludeen who was the petitioner/appellant therein. In the absence of any order either allowing the petitioner or the Directors of the Department of Publications to continue in service beyond 56 years and in the absence of any provision in the Statute which fixed the retirement age of persons like W.P.(C) No.1695/2020 :15: petitioner/Director of Publication as 60, it cannot be said that Ext.P9 judgment governs the case of the petitioner. There is no declaration in Ext.P9 judgment that the retirement age of the Director of Department of Publication is 60 years. Therefore the dictum laid down in Madan Moham Pathak and another vs. Union of India (1978) 2 SCC 50 and Sreedharan Kallat vs. Union of India (1995) 2 KLT 770 would not be applicable in the present case.
The petitioner has a grievance that service rendered by him prior to his appointment in the University is also liable to be considered for the purpose of terminal benefits along with his service in the University. The petitioner would be free to raise the same before the University and in case such a claim is raised before the Registrar, the Registrar shall take appropriate action without any delay.
The Writ Petition is dismissed.
Sd/-
P.V.ASHA
AS/rkc JUDGE
W.P.(C) No.1695/2020
16
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ORDER NO AD-D5-681/71
DATED 19.9.1975
EXHIBIT P2 THE TRUE COPY OF THE ORDER KSAVRC/849(1)97
DATED 22.5.1997
EXHIBIT P3 THE TRUE COPY OF THE GO(RT) NO 2383/2000/H
& FWD DATED 29.5.2000
EXHIBIT P4 THE TRUE COPY OF THE NOTIFICATION NO
P.R.1.2122/2007 DATED 10.5.2007
EXHIBIT P5 THE TRUE COPY OF THE ORDER AD.D.III.1
5931/2012 DATED 5.11.2012
EXHIBIT P6 THE TRUE COPY OF THE LETTER NO FIN III
1.1727/16 DATED 24.11.2017
EXHIBIT P7 THE TRUE COPY OF THE CIRCULAR
AD.AIII/1/RC/2020 DATED 26.11.2019
EXHIBIT P8 THE TRUE COPY OF THE LETTER
CAPT/2355/97/EST DATED 30.12.2019
EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT IN WA. NO
865/06 DATED 11.8.06
EXHIBIT P10 THE TRUE COPY OF THE MINUTES DATED
11/07/2003, RECEIVED FROM PREIOUS DIRECTOR.