IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 15875 of 2010(H) PETITIONER: DR.K.M.PARAMESWARAN, AGED 56 YEARS, S/O. A.M.PARAMESWARA CHAKIYAR, CHAKIYAR MADHOM, OORAKAM P.O., THRISSUR. BY ADV. SRI.KURIAN ANTONY EDASSERY SMT.ANN EMIL JOSEPH SRI.M.RETHEESH RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION, OFFICE OF THE DIRECTOR, DIRECTORATE OF AYURVEDA MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH, DEPARTMENT OF AYUSH, GOVERNMENT OF INDIA, NEW DELHI. 4. UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, BAHADURSHAH ZAFAR MARG, NEW DELHI-110 002. 5. CENTRAL COUNCIL OF INDIAN MEDICINE, REPRESENTED BY ITS SECRETARY, 61-65 INSTITUTIONAL AREA, JANAKPURI, NEW DELHI-110 058. 6. KERALA GOVERNMENT MEDICAL COLLEGE TEACHER'S ASSOCIATION, REPRESENTED BY ITS SECRETARY, DR.SADARUDHEEN AHAMMED, ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T., GOVT.MEDICAL COLLEGE, GANDHI NAGAR, KOTTAYAM. ADV. SRI.S.KRISHNAMOORTHY, CGC FOR R4 ADV.SHRI.RAJEEV KOYIKKAL, CGC FOR R3-5 ADV.SRI.V.A.MUHAMMED FOR R6 SRI.M.SAJJAD GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 15875 OF 2010 H ------------------------------------------------------ Dated this the 2nd day of November, 2010 JUDGMENT The petitioner retired from service on attaining the age of superannuation, namely 55 years, on 30.4.2009, while working as Lecturer in “Shalakya Thantra” in Vaidyaratnam Ayurveda College, Ollur. He challenges in this Writ Petition G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 (Ext.P5), by which, the retirement age of Doctors in Medical Category under the Medical Education Service was increased to 60 from 55 years. The grievance of the petitioner is that by the Government Order under challenge, the increase in the age of retirement was afforded only to Doctors in the Medical Category; and the faculties in Dental, Nursing, Pharmacy and Non Medical categories under Medical Education Service were specifically excluded. 2. A batch of Writ Petitions were filed by the teaching staff in Government/Aided Ayurveda Colleges praying for extending the benefit of G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 to the W.P.(C) NO.15875 OF 2010 H :: 2 :: faculties under the other systems of medicine, namely, Ayurveda and Homoeopathy. Those Writ Petitions were dismissed by a learned single Judge by the judgment dated 19.7.2010, reported in 2010 (3) KHC 491 (Dr.V.N.Parameswaran Potty v. State of Kerala). Against the common judgment rendered by the learned single Judge, members of the teaching faculty in Homoeopathy Medical Colleges filed W.A.Nos.1338 of 2010 and 1339 of 2010. Those Writ Appeals were dismissed by the Division Bench as per the judgment dated 6.8.2010, reported in 2010 (4) KHC 292 (DB) (Prakasan M.P.(Dr.) and others v. State of Kerala and another). 3. The learned counsel for the petitioner submitted that in the Writ Petitions which were decided by the learned single Judge as well as by the Division Bench, the validity of G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 was not under challenge as is clear from paragraph 5 of the judgment of the learned single Judge. In the present Writ Petition, the petitioner challenges the validity of G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 on the ground that the retirement age of the medical faculties in the Department of Medicine could not be extended except by amendment of Rule 60(c) of the Kerala Service Rules. The contention of the petitioner is that W.P.(C) NO.15875 OF 2010 H :: 3 :: though he retired from service on 30.4.2009, G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 was given retrospective effect from 1.5.2009. Had the same benefit been given to Tutors in Ayurveda Colleges, the petitioner would have got that benefit. Therefore, it is contended that the Government Order is invalid on the ground of discrimination as well. 4. The petitioner retired from service on 30.4.2009. At the time when G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 was issued, the petitioner was not in service. The benefit of the Government Order dated 14.1.2010 is confined to the doctors in the Medical Category under the Medical Education Service. In the Government Order, there is a specific exclusion of the Dental, Nursing, Pharmacy and Non Medical Categories under the Medical Education Service. The teaching faculty in Ayurveda and Homoeopathy wanted the same benefit of G.O.(MS) No.14/2010/H&FWD dated 14.1.2010 and they approached this Court in Writ Petitions. It was held that the matter is in the realm of the policy decision, that the extension of the retirement age cannot be faulted and that the writ petitioners therein were not entitled to claim the same benefit as was extended to the doctors in the Medical W.P.(C) NO.15875 OF 2010 H :: 4 :: Category. Now the petitioner has taken a different stand and he has challenged the Government Order dated 14.1.2010 on the ground of discrimination. I am of the view that the petitioner has no locus standi to challenge the Government Order dated 14.1.2010. Similarly situated persons having approached this Court and having not obtained the required relief of extension of the same benefit to them, another member in the same category would not be entitled to challenge the validity of the Government Order. Had the petitioners in those Writ Petitions, which were disposed of as per the judgment reported in 2010 (3) KHC 491, challenged the validity of the Government Order dated 14.1.2010, the Writ Petitions would have been bad for making contradictory contentions and irreconcilable reliefs. The petitioner belonged to that category of persons who filed the Writ Petitions earlier and who claimed the benefit of similar extension of the retirement age as extended to the Doctors as per G.O.(MS) No.14/2010/H&FWD dated 14.1.2010. The petitioners in those Writ Petitions could not approbate and reprobate. Had they done so, the Writ Petitions would have been dismissed on that ground. I am of the view that the teaching faculty of Homoeopathy and Ayurveda having filed a batch of Writ Petitions and claimed the benefit of G.O.(MS) No.14/2010/H&FWD dated 14.1.2010, the W.P.(C) NO.15875 OF 2010 H :: 5 :: petitioner, though not an eo nominee party in those Writ Petitions, is also bound by the result of those Writ Petitions. If so, the petitioner could not be allowed to challenge the validity of G.O.(MS) No.14/2010/H&FWD dated 14.1.2010, the benefit of which was claimed by the fellowmen of the petitioner in another batch of Writ Petitions. Even if the petitioner succeeds in the Writ Petition on the merits, what benefit would he get out of that finding? Nothing. He cannot claim enhancement of retirement age, in view of the finding in 2010 (3) KHC 491 and 2010 (4) KHC 292. The maximum which the petitioner would gain would be denial of enhancement of the retirement age to doctors in the Medical Category. If so, the nature of the Writ Petition would be that of a Public Interest Litigation, which is not permissible in service matters. For the aforesaid reasons, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/