IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 13493 of 2010(J) --------------------------------------- PETITIONER(S): ------------------------ DR.N. RAMANI BAI, MD (AY), W/O.P.N. MONEY, AGED 55 YEARS, PRINCIPAL, GOVT. AYURVEDA COLLEGE, TRIPPUNITHURA, RESIDING AT XANADU, TRIPPUNITHURA POST, PUTHIYAKAVU, ERNAKULAM DIST., PIN- 682 301. BY ADV. DR.SEBASTIAN CHAMPAPPILLY SMT.ANNIE GEORGE RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER MR.T.B. HOOD, GOVT. PLEADER MR.SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2010, ALONG WITH WPC NO. 13502 OF 2010 AND CONNECTED CASES,THE COURT ON 19/07/2010 DELIVERED THE FOLLOWING: WP(C) NO. 13493/2010-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(P)NO.915/98/(156) FIN. DATED 11/03/1998. EXT.P2: COPY OF THE G.O.(MS)NO.14/2010/H&FWD, DATED 14/01/2010. EXT.P3: COPY OF THE EXTRACT FROM THE LETTER NO.3337/E1/2009/DAME DATED 20/01/2010. EXT.P4: COPY OF THE INFORMATION ISSUED BY THE DIRECTOR OF AYURVEDIC MEDICAL EDUCATION. EXT.P5: COPY OF THE RELEVANT PART OF THE MINUTES OF THE MEETING OF MEDICAL COUNCIL DATED 28/04/2007. EXT.P6: COPY OF THE LETTER DATED 23/03/2007 ISSUED FROM THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT, DEPARTMENT OF HIGHER EDUCATION, BEARING F.NO.1-19/2006-U II. EXT.P7: COPY OF THE LETTER BEARING NO.F.3-1/94/PS/(VOL.9) DATED 4TH APRIL 2007. EXT.P8: COPY OF THE EXTRACT OF THE RELEVANT PORTION OF THE UGC NOTIFICATION OF 1998. EXT.P9: COPY OF THE LETTER (F.NO.28-14/2009-AY. (TEACHER QUALIFICATION) DATED 22/02/2010 ISSUED BY THE SECRETARY OF THE CENTRAL COUNCIL OF INDIAN MEDICINE TO THE RESPONDENT AND OTHERS. EXT.P10: COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE RESPONDENT DATED 30/03/2010. EXT.P11: COPY OF THE STATEMENT OF OBJECTS AND REASONS FOR THE ENACTMENT OF THE INDIAN MEDICAL COUNCIL ACT, 1956 AND INDIAN MEDICINE CENTRAL COUNCIL ACT. 1970. EXT.P12: COPY OF THE NEWS ITEM THAT APPEARED ON PAGE 12 OF THE COCHIN EDITION OF THE MALAYALA MANORAMA DAILY DATD 15/04/2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. C.R C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NOS. 13493, 13502, 13507, 13508,13512, 13522, 13526, 13527, 13537, 13565, 13644, 13824, 13841, 13902 & 13952 OF 2010 -------------------------------------------- Dated this the 19th day of July, 2010 JUDGMENT Common issue based on common facts calls for consideration in all these Writ Petitions and therefore, they were heard jointly and are being considered together in this common judgment. 2. The petitioners belong to the teaching staff either in the Government/Aided Ayurveda colleges or under the Government Homeopathic Medical Colleges and they hold different designations in different disciplines. The petitioner in W.P.(C).No.13841/2010 is the Director of Ayurveda Medical Education. The prayer in these Writ Petitions, in essence, is for extending the benefit of G.O.(MS) No.14/2010/H & FWD dated 14.1.2010 to the colleges under the aforesaid two systems of medicines viz., Ayurveda and Homeopathy and to issue a writ of mandamus commanding the respondents to retain them in service. In some of these Writ Petitions, such retention is sought in exercise of the powers under Rule 60(a) Chapter VIII of Part I of the Kerala Service Rules (hereinafter referred for brevity 'KSR' only). In some other Writ Petitions W.P.(C) NO.13493/2010 & connections 2 it is sought citing the pendency of a proposal to enhance the retirement age in these services. The prayers in these Writ Petitions would thus reveal that the petitioners seek for retention in service beyond the age prescribed for superannuation in their respective departments under Rule 60 (c) of Part I of the KSR. It is to achieve the said purpose that the petitioners rely on the said G.O dated 14.1.2010 and claim for extension of the benefits granted thereunder to the Government/Aided Ayurveda colleges and Government Homeopathic Medical Colleges. 3. As per G.O.(MS) No.14/2010/H & FWD dated 14.1.2010 the Government have ordered that the retirement age of the doctors in the medical category under the Medical Education Service be increased to 60 years from the existing 55 years with retrospective effect from 1.5.2009. It is specifically ordered thereunder that the said order would not be applicable to the faculties in the Dental, Nursing, Pharmacy and Non- medical categories under the Medical Education Service. Evidently, the relevant provisions under the KSR were not correspondingly amended. Thus, solely by virtue of the said G.O dated 14.1.2010, the doctors in the medical category under the Medical Education Service are continuing in service beyond the age of 55 years. The age of compulsory retirement of W.P.(C) NO.13493/2010 & connections 3 doctors in the medical category under the Medical Education Service is also governed by the provisions under the KSR. It is in the said background that the petitioners seek extension of the applicability of G.O. Dated 14.1.2010 to Ayurvedic and Homeopathic Colleges so as to get retention in service up to 60 years of age as in the case of doctors in the medical category under the Medical Education Service. 4. I have heard the learned counsel for the petitioners and also the learned Government Pleader. 5. The petitioners in these Writ Petitions did not challenge the validity of G.O.(MS)No.14/2010/H & FWD dated 14.1.2010. As already noticed, their grievance and objections are against the action in confining its applicability only to the doctors in the medical category under the Medical Education Service. In other words, their grievance pertains to the exclusion of teaching staff in the Ayurveda and Homeopathy Colleges from the purview of the said G.O. To contend that the said action is arbitrary, irrational and discriminatory and to claim for extension of its applicability, the petitioners have raised various grounds. 6. Firstly, it is contended that limiting the enhancement of retirement age to 60 years from the existing 55 years only to the doctors in W.P.(C) NO.13493/2010 & connections 4 the medical category under the Medical Education Service is violative of Articles 14 and 16 of the Constitution of India. According to them, hitherto the teaching staff under the Medical Education Service and also in Ayurveda Colleges and in Homeopathic Medical colleges both under the Government and Aided Sector, are being governed by exactly identical set of service rules. Their duties and responsibilities as also the service conditions were similar. Most importantly, the age of compulsory retirement of doctors in the medical category under the Medical Education Service and the teaching staff in the colleges under the other systems in the Government or in the aided sector are being governed by Rules 60 (c) of Part I KSR. To bring home the aforesaid contentions, the petitioners firstly, brought to my attention the fact that with a view to bring the entire systems of medicines under the same University, the Kerala University of Health and Allied Sciences Ordinance, 2009 was brought in. In the light of the preample to the said ordinance and other provisions thereunder it is contended that the declared policy of the Government is to give equal treatment to all the systems of medicine. G.O.(P).No.915/98/(156)/Fin. Dated 11.3.1998 was relied on to drive home the point that acceeding to the requests to equate the duties and functions of teaching W.P.(C) NO.13493/2010 & connections 5 staff of Ayurveda Colleges and Government Homeo Medical Colleges with that of teaching staff of Medical Colleges coming under the Directorate of Medical Education for the purpose of extending the benefit of AICTE scales Government have effected pay parity among them. That apart, it is their contention that a perusal of the said G.O dated 14.1.2010 would reveal that it is the dearth of qualified and experienced medical faculties in many subjects in Government Medical Colleges in the State that led to the decision of the Government in G.O dated 14.1.2010. In the said G.O dated 14.1.2010, it is stated thus: “There is shortage of qualified and experienced medical faculties in many subjects in the Government Medical Colleges in State. The retirement age of the faculty including medical doctors is 55. Due to the retirement of experienced doctors in many departments over the past few years and dearth of eligible hands in the middle level cadres for promotion, the recognition of many post graduate medical courses have been adversely affected. Similarly, the retention of senior professors in service will help the state to increase the number of Postgraduate Seats as per the revised norms W.P.(C) NO.13493/2010 & connections 6 of the Medical Council of India. At the National level, the retirement age of doctors in Medical Colleges is 65 years and there is a proposal to enhance the same to 70 years. As such the retention in service of the highly qualified and well experienced doctors will be a boon to the State.” 7. Based on data and details revealing shortage of qualified faculties in Government/Aided Ayurveda Colleges and Government Homeopathic Medical Colleges, it is contended that the circumstances that compelled the Government to take the decision to increase the retirement age as per Ext.P4 G.O dated 14.1.2010, in respect of doctors in the medical category under the Medical Education Service exist in the case of teaching staff under the Ayurveda and Homeopathic Medical Colleges. Considering the fact that all throughout they were being governed by similar service conditions and also the aforesaid fact Government should not have treated them differentially and discriminately, it is contended. According to the petitioners, teaching staff of colleges under the three systems of medicine have been, hitherto, regarded as one group and therefore, the present action in excluding them from the purview of the said G.O dated 14.1.2010 amounts to hostile discrimination and thus W.P.(C) NO.13493/2010 & connections 7 violates the equality clauses under Articles 14 and 16 of the Constitution of India. It is in the said circumstances that the petitioners claim for extension of the benefit of G.O.(MS) No.14/2010/H & FWD dated 14.1.2010. However, conspicuously, the petitioners in all these Writ Petitions did not directly seek enhancement of their retirement age from 55 years to 60 years. Presumably, it is because they are fully astute to the fact that the age of their compulsory retirement is being governed by the provisions under Rule 60 (c) of Part I KSR. 8. A statement has been filed on behalf of the first respondent in W.P. (C).No.13507/2010 and the same was adopted in the other Writ Petitions also. The crux of the contentions made thereunder is that the compulsory retirement age of the teaching staff under the Ayurveda Education Service as also the Government Homeopathic Medical Education Service are governed by Rule 60 (c) of Part I KSR. According to the respondents, in such circumstances, the petitioners did not have any legal and rightful claim to continue in service beyond the age of superannuation applicable to them by virtue of the aforesaid provision under the KSR. Further it is stated therein that the decision to enhance the retirement age of doctors in the medical category under the Medical Education Service was taken based W.P.(C) NO.13493/2010 & connections 8 on various factors such as dearth of qualified and experienced medical faculties in modern medicine and the difficulties which would arise on account of retirement of such doctors in modern medicine in the matter of functioning of medical colleges. In short, according to them, it was considering the said peculiar circumstances and in the interest of medical students and the State as a whole that the Government took the decision to enhance the age of superannuation of the teaching staff in the medical category of Medical Education Service as per G.O. dated 14.1.2010. That apart, it is specifically stated thereunder that even under the medical education service, the application of the said G.O dated 14.1.2010 is confined only to the medical category and thus the other faculties in Dental, Nursing, Pharmacy and Non-medical categories have not been brought within the purview of the said G.O dated 14.1.2010. It is further contended therein that the fixation of retirement age and the enhancement thereof is a policy matter and therefore, in respect of such matters, there is no scope for judicial review as has been held in a catena of cases by the Hon'ble Apex Court. Relying on the decision of this Court in W.A.No.591/2010 and connected cases wherein the claim for enhancement of retirement age based on the revised UGC scheme and the recommendations of College Teachers W.P.(C) NO.13493/2010 & connections 9 was rejected, it is therefore contended that documents produced by the petitioners are of no relevance and these Writ Petitions are liable to be dismissed. 9. As noticed hereinbefore, the action on the part of the Government in limiting the applicability of the said G.O dated 14.1.2010 to the doctors in the medical category under the Medical Education Service and its non-extension to the services to which they belong are assailed by the petitioners mainly on the ground violation of equality clause enshrined under Articles 14 and 16 of the Constitution of India. There cannot be any doubt that justiciable legal right would emnate from an hostile discrimination and violation of equality clauses under Articles 14 and 16 of the Constitution of India. Before delving further into the facts and merits of their contentions, it is relevant to look into certain other aspects of the issue. 10. It is a common case that the compulsory retirement of teaching staff under the Medical Education Service (Modern Medicine), the Ayurveda Medical Education Service and the Homeopathic Medical Education Service are governed under Rule 60 (c) of Part I KSR. Admittedly, no amendment was brought to the aforesaid statutory provision W.P.(C) NO.13493/2010 & connections 10 enhancing the age of retirement from 55 years to 60 years. No such amendment was brought into Rule 60(a) as well. True that in the case of medical category under the Medical Education Service as per G.O. Dated 14.1.2010, the Government have taken a decision to enhance their retirement age from 55 years to 60 years. The contention of the petitioners is that while considering the question whether the said G.O dated 14.1.2010 violates Articles 14 and 16 of the Constitution of India based on the aforesaid specific contentions, it is absolutely unnecessary to look into the legality and validity of the said G.O. In that context the petitioners contend that there is no challenge at all in any of these Writ Petitions against the G.O dated 14.1.2010. I am afraid, I cannot countenance with the said contention. Whenever an executive order is challenged as being violative of the equality clauses enshrined under Articles 14 and 16 of the Constitution of India and contended that its application is liable to be extended to certain other categories over and above the beneficial categories under the original order, Court cannot blindly examine that aspect alone without considering and looking into the legality and validity of the concerned G.O. I am of the considered view that in such cases, it will be the bounden duty of the court to undertake such an examination lest W.P.(C) NO.13493/2010 & connections 11 it may result, at least in some cases, in perpetuating an illegality. Therefore, as part of its survey regarding the sustainability of the contentions of the legal right of the concerned parties and to arrive at a conclusion whether it is liable to be made applicable to other categories accepting the contentions raised for that behalf such an endeavour is not merely essential but it is in fact, a dutiful obligation of the Court. I am fortified in my view by the decisions of the Hon'ble Apex Court reported in Kameshwar Prasad Singh & Anr. v. State of Bihar (JT 2000 (5) SCC 389) and Ekta Shakti Foundation v. Government of NCT of Delhi (2006 (3) KLT 601). In the decision reported in JT 2000 (5) SCC 389 (supra), the Hon'ble apex court held that two wrongs can never make a right. The concept of equality of Article 14 of the Constitution of India is a positive concept which cannot be enforced in a negative manner when any authority or Court is shown to have committed an illegality or irregularity in favour of an individual or group of individuals, they cannot claim similar benefits. Paragraph 16 in the decision of the Hon'ble apex court in 2006(3) KLT 601 (supra) is also relevant in this context. It reads thus: The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of W.P.(C) NO.13493/2010 & connections 12 individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. v. NDMC & Ors. ((1996) 2 SCC 459) held that citizens have assumed wrong notions regarding the scope of Art.14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Art.14 of the Constitution by way of Writ Petition filed in the High Court. The Court observed: “Neither Art.14 of the Constitution conceives within the equality clause this concept nor Art.226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” According to me, even in the absence of any challenge against such an order like G.O dated 14.1.2010, for the limited purpose of considering whether the claim for extension of the benefits granted thereunder is sustainable, the court is bound to look into the legality of the concerned G.O to ensure that a favourable order would not be one that perpetuates an illegality. In W.P.(C).NO.13507/2010, the additional respondents 2 and 3 are working as Associate Professor and Assistant Professor respectively in the Department of Prasoothi Thantra in Ayurveda College Service. They contend that in accordance with the statutory provisions in Rule 60 Part I W.P.(C) NO.13493/2010 & connections 13 KSR binding on the petitioner in the Writ Petition and all the teaching staff in the Ayurveda College Service, the petitioner in the Writ Petition was due to retire from service on 30.4.2010 and in the resultant vacancy, the 2nd respondent is entitled to be promoted as Professor and in the consequential vacancy, the third respondent is entitled to be promoted as Associate Professor. They also contend that a proposal for amendment to the statutory provisions under Rules 60(a) and (c) of Part I of KSR cannot confer right of continuance beyond the age of compulsory retirement in terms of the statutory provisions. In short, according to the respondents, the petitioners are not entitled to claim extension of the benefits conferred under G.O dated 14.1.2010 and in that matter to claim for continuance up to 60 years. The learned counsel appearing for additional respondents 1 and 2 contended that the G.O dated 14.1.2010 itself is unsustainable. 11. I may, now, examine the provisions governing the compulsory retirement in respect of the petitioners who belong to the teaching staff either in Government/Aided Ayurveda Colleges or the Government Homeopathic Medical Colleges. Indisputably, the compulsory retirement of all the categories to which the petitioners belong are governed by Rule 60 (c) of Part I KSR. No statutory amendment was brought into the said W.P.(C) NO.13493/2010 & connections 14 relevant statutory provision in the matter of age of retirement mentioned thereunder. Rule 60 (c) of Part I KSR reads thus: 60.(c): The teaching staff all educational institutions (including Principals of Colleges) who complete the age of 55 years during the course of an academic year shall continue in service till the last day of the month in which the academic year due, before the last day of the month in which they attain the age of 55 years. But they shall not be eligible for increment or promotion during the period of their service beyond such date. If they are on leave on the day they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation they shall be retired with effect from the last day of the month in which they attain the age of 55 years. But in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter the date of superannuation or on the date of suspension whichever is later. If, however, the day on which the teaching staff (including Principals of Colleges) attain the age of 55 years falls within the period of one month beginning with the day of re-opening of the institutions they shall cease to be on duty with effect from the date of such re- opening and they shall be granted additional leave from the date of re-opening to the last day of the month in which they attain the age of 55 years. They shall be entitled to the benefit of increment if it falls due before the actual date on which they attain the age of 55 years.” 12. In the light of the above extracted provision, the persons who are governed by the aforesaid provision including the petitioners are liable to retire from service on their respective dates of retirement in the light of W.P.(C) NO.13493/2010 & connections 15 the aforesaid provision. In G.O.(MS) No.14/2010/H & FWD the extension of which is sought by the petitioners, it is stated hereunder: “ necessary amendments in this regard in the KSR, other service rules and relevant G.Os related to the doctors in the medical catefory under the Medical Education Service be issued separately” (emphasis supplied) The above extracted portion from the above G.O, produced as Ext.P2 in W.P.(C).NO.13507/2010, itself would suggest that necessary amendments in this regard in the KSR is essential. The G.O dated 14.1.2010 is only an executive order. By such an executive order, the relevant provisions under the statute cannot be amended. The question is whether the prayer for extension of the applicability of the G.O on the ground that restriction of its applicability to doctors in the medical category under the Medical Education Service is arbitrary and discriminatory and violative of equality clauses under Articles 14 and 16 of the Constitution of India. As observed earlier, this Court cannot blindly issue a writ of mandamus merely because as per the said G.O dated 14.1.2010, the age of retirement of the particular category mentioned has been enhanced. In this context, it is to be noted that the requirement of corresponding amendment to the KSR and other service rules and relevant G.Os related to the doctors in the W.P.(C) NO.13493/2010 & connections 16 medical category under the Medical Education Service is virtually admitted by the first respondent in the G.O itself as is obvious from the above extracted portion of the said G.O. There is no contention for the petitioners that in tune with the G.O dated 14.1.2010 the relevant statutory provisions viz., Rules 60(a) and (c) were amended. The said G.O dated 14.1.2010 also did not reveal the source of power. According to the petitioners, it can only be Rule 60(a) of Part I KSR Rule 60(a) is worthwhile to be extracted in this context. It reads thus: “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 55 years.] He may be retained after this date only with the sanction of Government on public grounds which must be