IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No. 13604 of 2009(U) -------------------------- PETITIONER(S): --------------------- DR.M.P.KANNAN, S/O.M.P.KANNAN PANICKER, PROFESSOR, DEPARTMENT OF CHEMISTRY, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., CALICUT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.R.RAMADAS RESPONDENT(S): ----------------------- 1. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR. 2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, POST CALICUT UNIVERSITY. 3. THE REGISTRAR, UNIVERSITY OF CALICUT. SRI.P.C.SASIDHARAN, SC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/3/2010,THE COURT ON 25/03/2010 DELIVERED THE FOLLOWING: WPC NO.13604/2009 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER U.O.NO.GAII/F2/948/97 DT.27.9.1997. EXT.P2: TRUE COPY OF THE ORDER GO(P) NO.154/2009/FIN DT.24.04.2009. EXT.P3: TRUE COPY OF THE REPRESENTATION BEFORE THE 3RD RESPONDENT ON 4.5.2009. EXT.P4: TRUE COPY OF THE REPRESENTATION BEFORE THE 3RD RESPONDENT ON 30.04.2009 BY THE ASSOCIATION OF CALICUT UNIVERSITY TEACHERS. EXTS. OF R1 EXT.R1(a): TRUE COPY OF GO NO.(P) NO.158/09/FIN. DT.30.04.2009 //TRUE COPY// P.S. TO JUDGE Rp ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.13604 OF 2009 (U) -------------------------------------------------- Dated this the 25th day of March, 2010 J U D G M E N T Petitioner was working as a Professor in the Department of Chemistry under the first respondent University. His date of birth is 13.5.1949 and on 12.5.2009 he attained the age of superannuation of 60 years. The teachers of the University are governed by Rule 9 of Chapter III of The Calicut University First Statutes 1977, which reads as under. “9. Applicability of certain Rules to University Teachers. Subject to the provisions of the Act, and the Statutes issued thereunder the Kerala service Rules, the Kerala State and Subordinate Service Rules and the Kerala Government Servants Conduct Rules for the time being in force and as amended from time to time shall mutatis mutandis apply to the teachers of the University, with such modifications as the context may require and the expression 'government' in those Rules shall be construed as a reference to the 'University'. Provided that the age of retirement of teachers of the University shall be 60.” 2. Rules 60(c) of Chapter VIII of Part I KSR provided that teaching staff of all educational institutions (including Principals of Colleges) who complete the age of 55 years during the course WPC.No. 13604/09 :2 : of the academic year shall continue in service till the last day of the month in which the academic year ends. By virtue of Rule 9 of Chapter III of First Statutes, the teachers of the University were eligible for the benefit of Rule 60(c) of Part I KSR. In addition to this the University also issued Ext.P1 order dated 27.9.1997, conveying that the Vice Chancellor had accorded sanction for applying Rule 60(c) of Part I KSR to the teachers of the University who retired on superannuation at the age of 60 years. The relevant portion of Ext.P1 reads as under; “The syndicate at its Meeting held on 4.9.97 considered the request of Dr. K.K. Karunakaran and resolved a per time No.97-442 that Rule 60(c) in Chapter VIII, Part I of Kerala Service Rules be made applicable to the Teachers of the University also. Sanction is therefore accorded by the Vice- Chancellor for applying the provisions of Rule 60(c) in Chapter VIII of Part-I Kerala Service Rules to the Teachers of the University also who retire on superannuation at the age of 60 years.” 3. Accordingly, all the teachers of the University were extended the benefit of Rule 60(c), Part-I KSR. 4. While matter stood thus, in the budget speech for 2009- 2010, it was announced by the Government that the question of unification of date of superannuation of the Government WPC.No. 13604/09 :3 : employees has been considered with a view to ensure efficiency in service and that it was felt that the same should apply to teachers also, so as to ensure uniformity and to avoid unnecessary complexities. Paragraph 4(a) of the said order reads as follows; “All Government employees and teachers who attain the age of 55 years during the course of the financial year will continue in service till the end of that financial year. The date of retirement of Government employees and teachers will be 31st March every year. However, in the case of teachers in those institutions where the academic year closes on a date subsequent to 31st March, they will be allowed to continue till the last day of the month in which the academic year closes.” 5. Since Ext.P2 order provided that the teachers who attain the age of superannuation during the course of the financial year will continue in service till the end of the financial year, the petitioner claimed the benefit of Ext.P2 Government Order and submitted Ext.P3 representation to the University requesting that he be permitted to continue in service until 31.3.2010 when the financial year is to end. There was no response from the University and the Association of the Calicut University Teachers also submitted Ext.P4 representation. There was no response to WPC.No. 13604/09 :4 : this representation either. It was thereupon that this writ petition was filed praying that the petitioner should be allowed to continue in service till the end of the financial year in view of Ext.P2 Government order. 6. Although, petitioner sought an interim order directing to continue him in service, this court by order dated 29th May, 2009, declined such an order but it was made clear that retirement of the petitioner will be subject to further orders to be passed in this writ petition . 7. The University's stand in the counter affidavit is that teachers of the University are governed by the University First Statutes and KSR. According to the University, teachers should retire on attaining the age of 60 years and that there is no rule enabling them to continue till the end of the financial year. Along with their additional counter affidavit, the University also produced G(OP) No.158/20/FIN dated 30th April 2009, where the Government have clarified that the benefit of Ext.P2 will apply only to the employees, whose retirement age is 55 years. University therefore contends that the petitioner is not eligible for the benefit of Ext.P2. WPC.No. 13604/09 :5 : 8. Having considered the rival contentions, I am inclined to think that the petitioner is entitled to succeed. 9. As already seen, Rule 60(c) Part I KSR, as it originally stood, provided that teaching staff of educational institutions, including Principals, who complete the age of 55 years during the course of academic year shall continue in service till the last day of the month in which the academic year ends. Though, there is a controversy as to whether the petitioner was eligible for the benefit of Rule 60(c) since, his date of birth falls in the month of May, which is before the academic year commences, I do not think that this controversy has any bearing on the issue arising for consideration in this writ petition. 10. Rule 9 of Chapter III of the First Statutes provides that, subject to the provisions of the Univrsity Act and the Statutes issued thereunder, the KSR for the time being in force and as amended from time to time, shall mutatis mutandis apply to teachers of the University with such modification as the statute may require. The only modification that is shown to me by the counsel for the University is 55 years provided in the KSR as the age of superannuation of teachers shall be 60 years, in so far as WPC.No. 13604/09 :6 : the teachers of the University are concerned. Therefore, by virtue of the statute referred to above, the University teachers were eligible for the benefit of Rule 60(c) of KSR, subject to the modification that their age of superannuation shall be read as 60 years. The University has accepted this position in Ext.P1 order and teachers were extended this benefits. 11. It was while the rule was as above and the teachers were retiring at the end of the academic year, that by Ext.P2, the Government unified the date of superannuation and ordered that all Government employees and teachers who attain the age of 55 during the course of the financial year will continue in service till the end of that financial year and that the date of retirement of Government employee and teachers will be 31st March of every year. The provisions of Ext.P2 Government order were introduced as an amendment to the KSR by Kerala Service (Amendment) Rules 2000 published in notification dated 4.7.2009. By this amendment, the substantial part of Rule 60(c) has been inserted in Rule 60(a) which has been substituted. The substituted Rule 60 (a) provides as follows; WPC.No. 13604/09 :7 : “(a) Except as otherwise provided in these rules the date of compulsory retirement of employees and teachers shall take effect from the afternoon of the last day of the financial year in which they attain the age of 55 years. They may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but they must not be retained after the age of 60 years except in very special circumstances.” 12. This amendment is with retrospective effect from 24th April, 2009, the date of Ext.P2 Government Order. Therefore, from the 24th of April, 2009 the date of compulsory retirement of Government employees and teachers shall take effect from the afternoon of the last day of the financial year in which they attain the age of 55 years. This Rule when it is applied to the teachers of the respondent University, by virtue of the provisions contained in Rule 9 of Chapter III of the First Statutes referred to above, has to be read as providing that the compulsory retirement of the University teachers shall take effect from the afternoon of the last day of the financial year in which they attain the age of 60 years. So long as Rule 9 of Chapter III of the First Statutes make KSR, as amended from time to time applicable to the teachers of the WPC.No. 13604/09 :8 : University, with the modification that their age of retirement shall be 60 years, the teachers of the University are entitled to the benefit of KSR as amended by notification dated 4th July, 2009 referred to above. If that be the case, the petitioner was entitled to be continued in service till 31.3.2010, the last date of the financial year in which he attained the age of 60 years. In my view, having regard to the terms of the Rules, this is the only conclusion that is possible and this position cannot be diluted by Ext.P2 Government order, for the reason that Ext.P2 order was issued subsequent to the amendment to the Rules and that by an executive order, the benefit of a statutory rule cannot be taken away. 13. Therefore, the petitioner ought to have been retained in service till 31st March, 2010 and he has been illegally retired from service on attaining 60 years. Since, by order dated 29th May, 2009 this court has clarified that the retirement of the petitioner will be subject to further orders in this writ petition, it is declared that the petitioner will be deemed to have continued in service till 31.3.2010 and will be entitled to be paid monetary benefits treating himself as having continued in service till 31st March, 2010. It is clarified that WPC.No. 13604/09 :9 : benefit of this judgment will be available only to the petitioner and not to those who have already retired from service and accepted the benefits due on that basis. Writ petition is allowed as above. (ANTONY DOMINIC) JUDGE vi/