IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 13018 of 2009(V) ------------------------------------- PETITIONER(S): ------------------------ DR.N.RAMANI BAI, PRINCIPAL, GOVT. AYURVEDA COLLEGE, TRIPUNITHURA-682 301. BY ADV. MR.S.ABDUL RAZZAK RESPONDENT(S): ------------------------ 1. GOVERNMENT OF KERALA, REP. BY SECRETARY TO GOVERNMENT, HEALTH & F W (D) DEPARTMENT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, DIRECTORATE OF AYURVEDA MEDICAL EDUCATION, THIRUVANANTHAPURAM. 4. DR.M.R.VASUDEVAN NAMBOODIRI, PRINCIPAL, GOVT. AYURVEDA COLLEGE, THIRUVANANTHAPURAM-01. R1- R3 BY SPL. GOVT. PLEADER MR.N.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON16/10/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.13018/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SPECIAL RULES DTD. 4.8.07. P2:- COPY OF THE SENIORITY LIST DT. 14.11.08. P3:- COPY OF THE G.O.(MS) 91/07 /H &FWD DTD. 24.4.07. P4:- COPY OF THE G.O.(P) NO.154/09/FIN. DTD. 24.4.09. P5:- COPY OF THE LETTER DTD. 18.5.09 TO PETITIONER FROM THE DAG (GE) P6:- COPY OF THE G.O.(P) NO.261/2006/FIN. DTD. 4.7.09 PUBLISHED ON 7.7.09. P7:- COPY OF THE G.O.(RT) NO.2115/09/H&FWD DTD. 25.7.09. TRUE COPY P.S.T O JUDGE tss “C/R” T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.13018/2009-V ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of October, 2009 J U D G M E N T In this writ petition the petitioner is aggrieved by orders by which the fourth respondent is allowed to continue beyond 30/04/2009 and stands promoted as Director of Ayurveda Medical Education in a vacancy which arose on 01/05/2009, as per Exts.P6 and P7. 2. Even though notice was served on the fourth respondent, he has not chosen to appear. 3. The petitioner is working as Principal of the Government Ayurveda College, Thripunithura. The petitioner will complete 55 years of age on 30/11/2009 and will be retiring from service on 30/04/2010. The date of birth of the fourth respondent is 30/04/1954. He superannuated from service on 29/04/2009 and his date of retirement ought to have been 30/04/2009 being the last day of the academic year, contends the petitioner. 4. Ext.P3 is the order by which the Government ordered that the date 30th of April will be fixed as the end of every academic year for Ayurveda Medical Education Department. It is ordered in Ext.P3 that the teaching staff under Directorate of Ayurveda Medical Education who are W.P.(C). No.13018/2009 -:2:- eligible to get extension of service beyond the date of superannuation under Rule 60(c) Part I K.S.R will be allowed to continue in service till the last day of April of the succeeding year. 5. The Government brought into force G.O.(P).No.154/2009/Fin dated 24/04/2009 unifying the date of retirement of Government employees and Teachers. Ext.P4 is the copy of the said Government Order. As per clause 4(a), 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. It is specified that the date of retirement of Government employees and Teachers will be 31st March every year. It is also specified therein that 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. 6. When the writ petition was filed, Ext.P4 order was in force. It was the contention of the petitioner that going by Ext.P4, the fourth respondent has to retire from service on 30/04/2009. Later, the Government brought an amendment to the relevant Rules of Part I K.S.R as per Ext.P6 and, thereafter, the writ petition was amended. Presently, everything turns W.P.(C). No.13018/2009 -:3:- upon the interpretation of the amended rules contained in Ext.P6. Ext.P6 is published in the Extra Ordinary Gazette dated 07/07/2009 with retrospective effect from 24/04/2009. Ext.P7 order granting promotion to the fourth respondent is dated 25/07/2009. 7. Heard the learned counsel for the petitioner Shri S.A.Razzak and Shri N.Manojkumar, Special Government Pleader for respondents. 8. The contentions of the petitioner are three fold. It is pointed out that the fourth respondent superannuated from service on 29/04/2009 on completing 55 years of age. The vacancy in the post of Director arose on 01/05/2009 after the expiry of the extended date of retirement, i.e., till the end of academic year, on 30/04/2009. Therefore, his continuance beyond 30/04/2009 and the promotion granted thereafter are illegal. 9. The relevant rule governing the retirement of the fourth respondent is sub-rule (c) of Rule 60 of Part I K.S.R as amended and, consequent on the operation of the same he will have to retire on the last day of the month in which the academic year ends. Rule 60 (a) of Part I K.S.R will not apply to him. Going by Rule 28A of the Kerala State and Subordinate Service Rules also the promotion granted as per Ext.P7 is illegal. W.P.(C). No.13018/2009 -:4:- 10. For a proper consideration of the issues raised in this writ petition it may be appropriate to consider the unamended Rules 60(a) and 60 (c) of Part I K.S.R as well as the amended provisions. Rules 60(a) and 60(c) as unamended stood 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 55 years. He may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. 60(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. They shall be entitled to the benefits of increments and promotion W.P.(C). No.13018/2009 -:5:- 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. 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 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. (Other provisions are omitted) The amended provisions in Rule 60 of Part I K.S.R are also extracted below:- “(i) for sub-rule (a), the following shall be substituted, namely:- W.P.(C). No.13018/2009 -:6:- (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. Note:- The extended period of service under sub-rule (a) shall be reckoned for all service benefits such as increment, pension, higher grade, accrual of leave, promotion and pay revision.” (ii) for sub-rule (c), except Explanation and note thereunder, the following shall be substituted, namely:- “(c) The teaching staff of all Educational Institutions (including Principals of Colleges) where the academic year ends on a date subsequent to 31st March, shall W.P.(C). No.13018/2009 -:7:- continue in service till the last day of the month in which the academic year ends. (iii) The existing Note under sub-rule (c) shall be renumbered as Note 2 and before the Note as so renumbered, the following Note shall be inserted, namely:- “Note 1:- The extended period of service under sub-rule (c) shall be reckoned for all service benefits such as increment, pension, higher grade, accrual of leave, promotion and pay revision.” (iv) for Note 7, the following Note shall be substituted, namely:- “Note 7:- Completion of 55 years of age in service is in the afternoon and not in the forenoon. A person whose date of birth is 1st April completes his 55th year on 31st March and that date is the last day of the month in which he completes the 55th year. On 1st of April he is on his 56th year and that day is not a working day for him. He shall cease to be in service on and from 1st April.” (v) Note 8 and 11 shall be omitted. W.P.(C). No.13018/2009 -:8:- 11. Going by the unamended provision the Government employees were covered by sub-rule (a) of Rule 60 and Teachers were governed by sub-rule (c). The extended period of service available to teachers, cannot be reckoned for any service benefits like increment, pension, higher grade promotion etc. as per the said provisions. Now, after the unification of the retirement age, going by the notes added to sub-rule (a) and sub-rule (c), the extended period of service shall be reckoned for all service benefits such as increment, pension, higher grade, accrual of leave, promotion and pay revision. Going by the unamended rule 60(a), the officer has to compulsorily retire from the afternoon of the last day of the month in which he attains the age of 55 years. Presently, the employees and teachers will compulsorily retire from the afternoon of the last day of the financial year in which they attain the age of 55 years. 12. Herein, the learned counsel for the petitioner Shri Razzak laid emphasis on the words “except as otherwise provided in these rules”, in sub-rule (a) to contend for the position that as far as teachers in whose case the academic year ends subsequent to 31st March are concerned sub-rule (a) will not apply and in their case sub-rule (c) alone will apply. It is pointed out that as otherwise the said words would not have found a place in sub- W.P.(C). No.13018/2009 -:9:- rule (a). It is therefore contended that going by sub-rule (c), where the academic year ends on a date subsequent to 31st March, a member of the teaching staff can continue in service only till the last day of the month in which the academic year ends. It is a special provision for such class of members of teaching staff. He will not get the benefit of continuance till the last day of the financial year in which he attains the age of 55 years, which is the provision available under sub-rule (a). It is therefore submitted that, herein, as far as teaching staff in Ayurveda Medical Education Department are concerned, already going by Ext.P3 they can continue in service only till the last day of the month in which the academic year ends, namely, 30th of April of the year. If that be so, the fourth respondent will be deemed to have retired from service on that day. It is therefore submitted that the continuance of the fourth respondent beyond 30/04/2009 cannot be supported at all. 13. The learned counsel further laid emphasis on Note 7 contained in Ext.P6. Going by Note 7, the fourth respondent will be deemed to have completed 55 years of age on 29/04/2009. The vacancy in the post of Director arose on 01/05/2009. Therefore, as on the date of occurrence of the vacancy, he has no claim for promotion. It is further submitted that W.P.(C). No.13018/2009 -:10:- going by Rule 28A of Part II K.S. & S.S.R also he is not entitled for promotion, since in terms of the proviso members of service who do not have atleast one year of service beyond superannuation after appointment to the post are not entitled for consideration at all. As per Rule 28A, appointment by promotion or by transfer shall be made on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. The learned counsel for the petitioner placed heavy reliance upon the proviso to Rule 28A of K.S. & S.S.R which is extracted below:- “Provided that the lists for consideration for appointment by promotion or by transfer to the posts shall not ordinarily consist of members of service who do not have at least one year of service before the date of their superannuation after appointment to such a post.” The contention, that is developed, is that the fourth respondent ought not have been promoted in the light of the specific bar provided in the proviso. 14. The learned Government Pleader, Shri Manojkumar, submitted that even going by the averments in the writ petition, the petitioner would attain the age of superannuation on 30/11/2009. Therefore, if the said W.P.(C). No.13018/2009 -:11:- contention is accepted, the petitioner also will not be eligible for promotion. It is clear from the averments in paragraph (3) of the writ petition, the petitioner will complete 55 years of age on 30/11/2009 and will have to retire on 30/11/2009. 15. Going by the proviso itself there is no absolute bar for considering persons who have less than one year of service before the date of their superannuation after appointment. The word “ordinarily” used in the proviso is an indication in this regard. It is not an invariable rule. In that view of the matter, the contention that the proviso creates an absolute bar for the fourth respondent for being promoted is not correct. The important question therefore, is whether the extension granted to the tenure of the fourth respondent can be justified. 16. The arguments raised by the learned counsel for the petitioner Shri S.A. Razzak are forceful and attractive, and they require a deeper scrutiny. 17. The first thing to be examined is the question whether it is sub- rule (a) or (c) of Rule 60 of Part I K.S.R that will apply. Sub-rule (a) applies in the case of employees and teachers alike. Under the unamended provision, only employees other than teachers were covered by the provisions of Rule 60(a). In respect of teachers, it was sub-rule (c) that was W.P.(C). No.13018/2009 -:12:- applicable. Now, there is a change in the scheme in the sense that sub-rule (a) will take the care of teachers and other employees alike. A uniform provision is brought into force in that, the retirement of these categories will take effect from the afternoon of the last day of the “financial year” in which they attain the age of 55 years. Therefore, as far as employees and teachers are concerned, uniformly, they will retire only on 31st of March of the year in which they attain the age of 55 years. It is clear from the note to the said provision that the extended period of service shall be reckoned for all service benefits such as increment, pension, higher grade, accrual of leave, promotion and pay revision. Therefore, even if a vacancy in the higher post arises after the date on which they attain the age of 55 years, they are entitled to be promoted. There is no legal embargo for the same. 18. Therefore, the further question is whether sub-rule (c) of Rule 60 of Part I K.S.R alone will apply as far as teachers in whose case the academic year ends on a different date are concerned. Sub-rule (c) practically applies in a case where, in an educational institution, the academic year ends on a date subsequent to 31st March, and it is in those circumstances sub-rule (c) allows them to continue in service till the last day of the month in which the academic year ends. This provision is introduced W.P.(C). No.13018/2009 -:13:- obviously to avoid any difficulty to the students whose course structure will extend beyond 31st March. Therefore, in such circumstances where the academic year ends only on 30th April as in this case the teacher can continue upto that date also. He will get the benefit of extension of service as per sub-rule (a) and will further get the benefit of sub-rule (c). As explained in the counter affidavit, this is to avoid inconvenience and difficulty to the student community in such institutions. Such cases may be very few like the one here wherein the academic year specifically ends only on 30th April. In those cases also Note 1 under sub-rule (c) provides that the extended period of service shall be reckoned for all service benefits such as increment, pension, higher grade, accrual of leave, promotion and pay revision. When the general provision in sub-rule (a) applies in the case of the fourth respondent, he can continue in service till 31st March 2010. In the light of the sub-rule (c), he can continue in service till 30th April 2010, when the academic year ends. Going by Note 1 to sub-rule (c), he will be entitled to get promotion also in any vacancy which may arise during his tenure; herein admittedly, a vacancy arose on 01/05/2009. Since he is entitled to continue in service till 30/04/2010, the claim for promotion cannot be denied. Sub-rule (c) supplements sub-rule (a) and it is not an exclusive W.P.(C). No.13018/2009 -:14:- provision or a special provision which overrides sub-rule (a) of Rule 60. The provisions will have to be construed harmoniously. 19. The learned counsel for the petitioner relied upon a decision of the learned Single Judge of this Court in Abraham v.Accountant General [1988 (1) KLT 441], especially paragraph (4) therein. The said decision is relied upon to support the plea that since the fourth respondent has attained 55 years of age as on 29/04/2009, he is eligible to get the rights which he had prior to the attainment of 55 years alone. Therefore, even if he is entitled to continue upto 30/04/2010 he cannot be promoted to the higher post, the learned counsel vehemently contends. The facts of the said case show that the petitioner therein attained the aged of 55 years on 20/07/1983 and he retired as Headmaster on 30/04/1984 after availing the benefit of Rule 60(c) of Part I K.S.R. He was promoted as Headmaster as per Ext.P1 order dated 18/07/1983, and he joined as such on 06/08/1983. While considering the eligibility to reckon the service of Headmaster for the purpose of pensionery benefits, this Court examined the question whether he was eligible for promotion prior to the attainment of 55 years of age. In that context, it was held thus in paragraph (4):- W.P.(C). No.13018/2009 -:15:- “4. Under Rule 60(c), teaching staff of all educational institutions who are allowed to continue in service till the last day of the month in which the academic year ends, are 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. Therefore the question is whether promotion of the petitioner fell due before the last day of July, 1983, during which month he attained 55 years. Ext.P-1 order was dated 18/07/1983. By that order the petitioner along with others was promoted as Headmaster and that order was directed to take place immediately. The word 'due' means payable immediately or on demand-see Webster's II New Riverside University Dictionary, page 408. It can only mean that the officer must have been eligible for promotion and not whether he actually took charge in the promoted post. The petitioner's eligibility for promotion as Headmaster had crystalised into a concrete right before he attained the age of 55 and also before the W.P.(C). No.13018/2009 -:16:- last day of the month in which he attained the age of 55 years. Only because of certain administrative delay he could join duty in the higher post during the next month. That is not material or relevant in considering whether he should be given the benefit of the promotion.” It was observed that merely because of certain administrative delay he could join duty in the higher post only later, and since he was eligible to be promoted before he attained the age of 55 years, he cannot be denied the benefit. Herein, the situation is different. It is true that as on 30/04/2009, the vacancy did not arise in the post of Director and he attained 55 years of age on 29/04/2009 also. But his eligibility for promotion arises only in the light of the amended provision of Rule 60(a) by which he is eligible to continue in service till the end of the financial year. Since, he is entitled to get the benefit of sub-rule (c), he can continue in service till 30th April 2010 and therefore, he is eligible to be considered for promotion on the date of occurrence of vacancy i.e. 01/05/2009. Therefore, the above decision, which considered the unamended Rule 60(c), cannot help the case of the petitioner. W.P.(C). No.13018/2009 -:17:- 20. The learned counsel for the petitioner then relied upon the Apex Court judgment in Chairman, Railway Board and others v. C.R.Rangadhamaiah and others [(1997) 6 SCC 623] to contend that the petitioner had a vested right for promotion as on 01/05/2009 and the same cannot be interfered with by the retrospective amendment of the rules. Specific reliance is placed on paragraph (20) of the said judgment, which is extracted below:- “20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, eg., promotion or pay scale can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.” 21. Thereafter, in paragraph (24) it was held thus:- “24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while W.P.(C). No.13018/2009 -:18:- striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav Lal Soni.” 22. Herein, it is true that if the unamended rules were in force, the fourth respondent would have retired from service on 30/04/2009. He gets a W.P.(C). No.13018/2009 -:19:- right for continuance in service based on the amended Rule 60(a) as well as Rule 60(c) of Part I K.S.R. It is given retrospective effect from the date of Ext.P4. In Ext.P4 under the relevant clause 4(a), 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. Therefore, the amendment which is brought into effect, is said to be in consonance with Ext.P4. As on the date of Ext.P4, the fourth respondent was in service. He attained 55 years