IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(C).No. 27626 of 2004(L) -------------------------- PETITIONER(S): --------------- P.K.VELAYUDHAN, S/O.KRISHNAN.P., AGED 55 YEARS, WORKING AS TECHNICAL ASSISTANT GRADE III OF DEPARTMENT SHIP TECHNOLOGY, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI, PERMANENTLY RESIDING AT GOKULAM HOUSE, KANGARAPADY, COCHIN-21. BY ADV. SRI.MAURICE VINCENT RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, TRIVANDRUM. 2. REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 3. HEAD OF THE DEPARTMENT OF SHIP TECHNOLOGY, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI. GOVT. PLEDER SHRI.NANDAKUMAR SRI.S.P.ARAVINDAKSHAN PILLAI,SC,FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2.9.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 27626/04 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.16.2.93 BY R2. P2. COPY OF THE REQUEST DTD.21.8.04. P3. COPY OF THE LETTER DTD.1.9.04 OF R3. P4. COPY OF THE MEMO DTD.16.9.04. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 27626 of 2004 ================== Dated this the 2nd day of September, 2010 J U D G M E N T The petitioner was working as a Technical Assistant in the Cochin University of Science and Technology at the time of filing this writ petition. According to the petitioner, he is a teaching staff as contemplated in Rule 60(c) of the Kerala Service Rules and, therefore, the petitioner could have retired from service only at the end of the academic year when the petitioner attains the age of 55. Going by the date of birth, the petitioner was due to retire on 30.9.2004. But by virtue of Rule 60(c) of Part I of the KSR, the petitioner is entitled to continue in service till the end of the academic year, is the contention raised by the petitioner. It is under the above circumstances, the petitioner had filed this writ petition seeking the following reliefs; “i) issue a writ of mandamus or any other appropriate writ or order or direction, commanding and compelling the respondents to continue the petitioner in service as Technical Assistant Grade-III in the Department of Ship Technology till the end of the last day of the month of academic year 2004-2005; ii) issue a writ of mandamus or any other appropriate writ or order or direction, commanding and compelling the respondents to consider the petitioner's retirement as per provisions of Rule 60(c) and Rule 60(3)(c) of the Kerala Service Rules; 2. At the time of admission, this Court was not inclined to grant interim order to allow the petitioner to continue in service till the end of the academic year. But on 28.9.2004, the following interim w.p.c.27626/04 2 order was passed. “Petitioner claims that he is entitled to continue in service till the end of the academic year, being a member of the teaching staff. It is made clear that in case the petitioner is superannuated before that, it will be subject to the result of the writ petition. In case it is found that the petitioner is entitled to continue till the end of the academic year, he will be paid salary as if he continued in service.” Therefore, the question to be decided in this case is as to whether the petitioner is entitled to salary for the period from 1.10.2004 till 31.3.2005. The contention of the petitioner is that going by Ext.P1 order of the University detailing the duties and functions of the Technical Assistants, as well as Ext.P3 recommendation to the Head of Department, where the petitioner is working, the petitioner is a teaching staff within the purview of Rule 60(c) and, therefore, the petitioner is entitled to continue in service till the end of the academic year. 3. A counter affidavit has been filed by the University taking the contention that the petitioner is not a teaching staff entitled to continue in service till the end of the academic year. The University refers to the definition of “teacher” in Section 3(22) of the Cochin University of Science and Technology Act, 1986, and argues that going by the same, the petitioner is not a teacher. Therefore, he cannot be considered to be a teaching staff. It is also contended that as is clear from Ext.P1 duties and responsibilities of the Technical Assistants, the petitioner cannot be regarded as a teaching staff. Therefore, according w.p.c.27626/04 3 to them, the petitioner is not entitled to continue in service till the end of the academic year as claimed by the petitioner. 4. I have considered the rival contentions in detail. 5. Section 3(22) of the Cochin University of Science and Technology Act, 1986, defines “teacher” thus: “teacher” means a professor, Reader, Lecturer or such other person imparting instruction or supervising research in the departments/schools of the University, or in recognised institutions whose appointment has been approve by the University.” Rule 60(c) of Part 1 of KSR reads thus: “60. (a)...... xxx xxx xxx xxx “(c) The teaching staff of 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 ends. But the extended period of service will not count as qualifying service for pension and the pay received during the period will not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. They shall be entitled to the benefits of increments and promotion which fall 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. They shall also not be eligible for the benefits of pay revision effective from a date after the date of superannuation, under sub-rule (a) of Rule 60. If they are on leave on the day they attain the age of 55 years and fail to rejoin duty on the first working day immediately after the date of superannuation they shall be retired with effect from the date of superannuation under sub- rule (a) of Rule 60 But in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter but before the closing day of the academic year, they shall be retired from service on 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 w.p.c.27626/04 4 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. Explanation.- For the purpose of this sub-rule, 'teaching staff' includes- (1) Assistant Educational Officers, including Deputy Inspectors of Malabar area, (2) District Educational Officers and Officers belonging to the cadre, but working in other assignment. (3) The following officers of the State Institute of Education, namely:- (a) Junior Evaluation Officer (b) Special Assistant in English. (c) Technical Assistant (d) Text Books Research Officer (e) Education Techniques Officer (f) Junior Science Consultant (g) Instructors in Science, and (h) Staff drafted from the teaching staff of Education Department, provided the continuance of this staff in service till the closing day of schools is absolutely essential in the interest of work and that they are entitled to this benefit in their parent Department. Items (1) and (2) above shall be deemed to have come into force with effect from 9th August 1968 and item No.(3) shall be deemed to have come into force with effect from 8th May 1969. xxx xxx xxx xxx” Therefore, Rule 60(c) is not confined to teachers alone, but is applicable to a person who can be regarded as a teaching staff. As is evident from Rule 60(c), Assistant Educational Officers, District w.p.c.27626/04 5 Educational Officers etc., although not teachers going by the definition of teacher, would also be included within the purview of Rule 60(c) as a teaching staff. The petitioner's case also has to be considered in the light of that explanation. From explanation (3) it is clear that the officers of the State Institute of Education including 'Technical Assistants' are regarded as teaching staff for the purpose of Rule 60 (c). 6. In Ext.P1 the duties and responsibilities of technical cadre including Technical Assistant Grade II are as follows: “VI. The staff under the Technical Cadre (Scientific) shall have the following duties, responsibilities and workload: 1. They shall be available during the working hours of the Department/Centre/School and suitable procedure for recording their attendance shall be maintained. Their workload shall not be less than 40 hours a week and the distribution and nature of work will be decided by the Head of the Department/Centre/School. 2. They shall be responsible for training the students in the laboratories and helping them in performing/learning the experiments/works assigned. They must take guidance and advice from the faculty in charge of the laboratory. 3. They are responsible for the proper maintenance/service and repairs of the laboratory equipments/instruments. 4. They are responsible for procuring sufficient stock of equipment, components, consumables etc. for the smooth conduct of the practical laboratories and for ascertaining the optimum use. 5. It is their responsibility to help the Head of the Department to organise/reorganise/set up laboratories for the curriculum offered by the Department. 6. The Technical Officers of the cadre are responsible for the design of new experiments so as to improve the training w.p.c.27626/04 6 programme constantly. They must take the advice and guide of the teachers in the charge of the laboratory. 7. The Technical Officers of the cadre may also engage in the research activities of the Department apart from performing their normal duties as mentioned above. They may be permitted to guide students to do research loading to the Ph.D. degree, if they have sufficient potential and time. However, this should not be at the cost of their normal duties.” (underlining supplied) Going by clauses 2 and 6 thereof, the Technical Assistants and Technical Officers are also responsible for training students in the laboratories and helping them in performing/learning the experiments/works assigned. They are also responsible for the design of new experiments so as to improve the training programm constantly. I am of opinion that those duties and responsibilities would amount to that of a teaching staff. In fact it has been recorded so in Ext.P3 by the Head of the Department stating that the petitioner is in charge of the Fluid Mechanics Lab of the Department instructing students in their practicals. 7. Further the object of Rule 60(c) is to see that students are not affected in their studies because of a teaching staff being retired in the middle of the year. If the Technical Assistants are required to train students in the laboratory helping them in performing/learning the experiments/woks assigned, then if in the middle of the year, the Technical Assistants are asked to retire from service, the students w.p.c.27626/04 7 would certainly be affected in their practicals, because it would take some time for their replacement following the prescribed recruitment procedure. 8. Taking all these facts together, I am of opinion that for the purpose of Rule 60(c), the Technical Assistants should also be considered as a teaching staff. Consequently, the petitioner was entitled to continue in service till 31.3.2005. By virtue of the interim order dated 28.9.2004, in view of my above findings, the petitioner is entitled to salary for the period from 1.10.2004 to 31.3.2005. The same shall be paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.27626/04 8 “i) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding and compelling the respondents to continue the pr in service as Technical Assistant Grade III in the Department of Ship Technology till the end of the last day of the month of academic year 2004-2005; ii) issue a writ of mandamus or any other appropriate writ or order or direction, commanding and compelling the respondents to consider the petitioner's retirement as per provisions of Rule 60(c) and Rule 60(3)(c) of the Kerala Service Rules; “Petitioner claim that he is entitled to continue in service till the end of the academic year, being a member of the teaching staff. It is made clear that in case the petitioner is superannuated before that, it will be subject to the result of the writ petition. In case it is found that the petitioner is entitled to continue till the end of the academic year, he will be paid salary as if he continued in service.” “VI. The staff under the Technical Cadre (Scientific) shall have the following duties/responsibilities and workload: 1. They shall be available during the working hours of the Department/Centre/School and suitable procedure for recording their attendance shall be maintained. Their workload shall not be w.p.c.27626/04 9 less than 40 hours a week and the distribution and nature of work will be decided by the Head of the Department/Centre/School. 2. They shall be responsible for training the students in the laboratories and helping them in performing/learning the experiments/works assigned. They must take guidance and advice from the faculty in charge of the laboratory. 3. They are responsible for the proper maintenance/service and repairs of the laboratory equipments/instruments. 4. They are responsible for procuring sufficient stock of equipment, components, consumables etc. for the smooth conduct of the practical laboratories and for ascertaining the optimum use. 5. It is their responsibility to help he Head of the Department to organise/reorganise/set up laboratories for the curriculum offered by the Department. 6. The Technical Officers of the cadre are responsible for the design of new experiments so as to improve the training programme constantly. They must take the advice and guide of the teachers in the charge of the laboratory. 7. The Technical Officers of the cadre may also engage in the research activities of the Department apart from performing their normal duties as mentioned above. They may be permitted to guide students to do research loading to the Ph.D. degree , if they have sufficient potential and time. However, this should not be at the cost of their normal duties.” Section 3(22) of the Cochin University of Science and Technology Act, 1986, defines “teacher” thus: “teacher” means a professor, Reader, Lecturer or such other person imparting instruction or supervising research in the departments/ schools of the University, or in recognised institutions whose appointment has been approve by the University.” “60. (a)...... xxx xxx xxx xxx “(c) The teaching staff of all Educational Institutions (including Principals of Colleges) who complete the age of 55 years during the w.p.c.27626/04 10 course of an academic year shall continue in service till the last day of the month in which the academic year ends. But the extended period of service will not count as qualifying service for pension and the pay received during the period will not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. They shall be entitled to the benefits of increments and promotion which fall due, before the last date 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. They shall also not be eligible for the benefits of pay revision effective from a date after the date of superannuation, under sub-rule (a) of Rule 60. If they are on leave on the day they attain the age of 55 years and fail to rejoin duty on the first working day immediately after the date of superannuation they shall be retired with effect from the date of superannuation under sub- rule(a) of Rule 60 But in cases where officers coming under this rule are under suspension on the date of superannuation of thereafter but before the closing day of the academic year, they shall be retired from service on 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. Explanation.- For the purpose of this sub-rule, 'teaching staff' includes- (1) Assistant Educational Officers, including Deputy Inspectors of Malabar area, (2) District Educational Officers and Officers belonging to the cadre, but working in other assignment. (3) The following officers of the State Institute of Educational, namely- (a) Junior Evaluation Officers (b) Special Assistant in English. (c) Technical Assistant (d) Text Books Research Officer (e) Education Techniques Officers (f) Junior Science Consultant w.p.c.27626/04 11 (g) Instructors in Science, and (h) Staff drafted from the teaching staff of Education Department, provided the continuance of this staff in service till the closing day of schools is absolutely essential in the interest of work and that they are entitled to this benefit in their parent Department. Items (1) and (2) above shall be deemed to have come into force with effect from 9th August 1968 and item No.(3) shall be deemed to have come into force with effect from 8th May 1969.” w.p.c.27626/04 12 “i) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding and compelling the respondents to continue the pr in service as Technical Assistant Grade III in the Department of Ship Technology till the end of the last day of the month of academic year 2004-2005; ii) issue a writ of mandamus or any other appropriate writ or order or direction, commanding and compelling the respondents to consider the petitioner's retirement as per provisions of Rule 60(c) and Rule 60(3)(c) of the Kerala Service Rules; “Petitioner claim that he is entitled to continue in service till the end of the academic year, being a member of the teaching staff. It is made clear that in case the petitioner is superannuated before that, it will be subject to the result of the writ petition. In case it is found that the petitioner is entitled to continue till the end of the academic year, he will be paid salary as if he continued in service.” “VI. The staff under the Technical Cadre (Scientific) shall hae the ftg duties/responsibilities and workload: 1. They shall be available during the working hours of the Department/Centre/School and suitable procedure for recording their attendance shall be maintained. Their workload shall not be less than 40 hours a week and the distribution and nature of work will be decided by the Head of the Department/Centre/School. 2. They shall be responsible for training the students in the laboratories and helping them in performing/learning the experiments/works assigned. They must take guidance and advice from the faculty in charge of the laboratory. 3. They are responsible for the proper maintenance/service and repairs of the laboratory equipments/instruments. 4. They are responsible for procuring sufficient stock of equipment, components, consumables etc. for the smooth conduct of the practical laboratories and for ascertaining the optimum use. w.p.c.27626/04 13 5. It is their responsibility to help he Head of the Department to organise/reorganise/set up laboratories for the curriculum offered by the Department. 6. The Technical Officers of the cadre are responsible for the design of new experiments so as to improve the training programme constantly. They must take the advice and guide of the teachers in the charge of the laboratory. 7. The Technical Officers of the cadre may also engage in the research activities of the Department apart from performing their normal duties as mentioned above. They may be permitted to guide students to do research loading to the Ph.D. degree , if they have sufficient potential and time. However, this should not be at the cost of their normal duties.” Section 3(22) of the Cochin University of Science and Technology Act, 1986, defines “teacher” thus: “teacher” means a professor, Reader, Lecturer or such other person imparting instruction or supervising research in the departments/ schools of the University, or in recognised institutions whose appointment has been approve by the University.” “60. (a)...... xxx xxx xxx xxx “(c) The teaching staff of 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 ends. But the extended period of service will not count as qualifying service for pension and the pay received during the period will not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. They shall be entitled to the benefits of increments and promotion which fall due, before the last date 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. They shall also not be eligible for the benefits of pay revision effective from a date after the date of superannuation, under sub-rule (a) of Rule 60. If they are on leave on the day they attain the age of 55 years and fail to rejoin duty on the first working day immediately after the date of superannuation they shall be retired with effect from the date of superannuation under sub- rule(a) of Rule 60 But in cases where officers coming under this rule are under suspension on the date of superannuation of thereafter but before w.p.c.27626/04 14 the closing day of the academic year, they shall be retired from service on 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. Explanation.- For the purpose of this sub-rule, 'teaching staff' includes- (1) Assistant Educational Officers, including Deputy Inspectors of Malabar area, (2) District Educational Officers and Officers belonging to the cadre, but working in other assignment. (3) The following officers of the State Institute of Educational, namely- (a) Junior Evaluation Officers (b) Special Assistant in English. (c) Technical Assistant (d) Text Books Research Officer (e) Education Techniques Officers (f) Junior Science Consultant (g) Instructors in Science, and (h) Staff drafted from the teaching staff of Education Department, provided the continuance of this staff in service till the closing day of schools is absolutely