IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.10.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.5052 of 2001 Thulasi Ramasamy .. Petitioner vs. 1. The Chairman (International Institute of Tamil Studies) Department of Tamil Development Culture Fort St. George Chennai-600 009 2. The Secretary to Government Department of Tamil Development Culture Government of Tamil Nadu Fort St. George Chennai-600 009 3. The Director International Institute of Tamil Studies Chennai-600 113 .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the respondents to fix the age of superannuation of the Academic Staff under the International Institute of Tamil Studies, Velacherry, Chennai-600 113 as 60 years. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.E.J.Ayyappan For Respondents : Mr.T.Seenivasan Additional Government Pleader for R1 and R2 Mr.K.S.Karthikraja for R3 O R D E R Heard the learned counsels appearing for the parties concerned. 2. It has been stated that the petitioner has been a Senior Research Fellow in the Faculty of Sociology, Arts and Culture, employed under the International Institute of Tamil Studies, Chennai, from the year, 1984. The International Institute of Tamil Studies is a society registered under the Societies Registration Act, 1860. The Institute has been funded by the Government of Tamil Nadu. The activities of the Institute are governed by certain specific rules and regulations and a Memorandum of Association. 3. It has been further stated that at the time of the filing of the writ petition, the petitioner was aged about 57 years and he was due to retire, on 31.3.2001, at the age of 58 years. The petitioner has stated that the retirement of the academic staff should be at the age of 60 years, as per Rule 11 of the Institute's Rules and Regulations. The Bye-Laws of the Institute framed in the year, 1978, with regard to the tenure of appointment of the persons in the said Institute were approved, on 25.1.1978 and they continued to be in force, even though the new Bye-Laws had been framed in the year 1990. Since the new Bye-Laws were not approved, under Rule 12 of the Institute's Rules, clause 21 of the Bye-Laws of 1978 deals with the tenure of appointments. The appointment can be on a contract basis for a period of three years, in the first instance, which had included a period of probation of one year and it could also be a continuing appointment till the close of the Academic year in which the appointee attains the age of sixty years, with an initial period of probation for one year. Since clause 21 of the Bye-Laws of 1978 refers to the academic year, it automatically implies that it is with regard to the appointees who are the academic staff. Bye-Law No.28 deals with the retirement wherein it has been specifically stated that the age of retirement of the non-academic staff shall https://hcservices.ecourts.gov.in/hcservices/ be 58 years. However, there is no specific age limit prescribed with regard to the academic staff and therefore, the age limit prescribed under Bye-Law 21(1)(b) has to be applied for the retirement of academic staff. Inspite of having 60 years as the retirement age for the academic staff, the Institute has been applying 58 years as the age of retirement for both the academic and the non-academic staff of the Institute. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 4. In the counter affidavit filed on behalf of the third respondent, the averments made by the petitioner had been denied. It has been stated that the petitioner was appointed as a Senior Research Fellow only on 1.11.1986. The International Institute of Tamil Studies had been established with a view to carry out the coordinated and comprehensive research in all aspects of Tamil Studies and its allied fields. When the International Institute of Tamil Studies were constituted in the year 1970, there was no separate department, exclusively, for the development of Tamil language. Hence, it was treated as a part of the education department of the Government of Tamil Nadu. Subsequently, the Department of Tamil Development Culture was formed, which has also been part of the Education Department. 5. It has been further stated that the Board of Governors had framed the Bye-Laws in the year, 1978 and the International Institute of Tamil Studies Service Regulations in the year, 1990, in exercise of the powers conferred by Rule 11 of the Rules and Regulations of the Institute. Inspite of the fact that the petitioner has been serving in the Institute for more than 15 years as an academic staff, he has filed the present writ petition only 15 days prior to his retirement. He has not made any representation with regard to the age of the retirement at an earlier point of time. The petitioner had joined in service knowing full well that the retirement age is 58 years. Both the Bye-Laws and the Regulations of the Institute were framed in exercise of the powers conferred, under Rule 11 of the Rules and Regulations. The Bye-Laws and the Rules and Regulations were framed in the year, 1990. The applicability of the service Regulations of the year, 1990 has been accepted by this Court in its order in W.P.No.16091 of 2000. Further, the service of the petitioner has been regularised only in accordance with the 1990 Regulations. In such circumstances, it is not open to the petitioner to claim that only the 1978 Bye-Laws would be applicable to him. Since the petitioner had not been appointed for a tenure upto the period of his attaining superannuation at the age of 60 years, Clause 28 of the Bye-Laws prescribes the age of retirement as 58 years and there is no discrepancy in the rules of https://hcservices.ecourts.gov.in/hcservices/ the Institute, as alleged by the petitioner. Therefore, there is no merit in the contentions raised by the petitioner, relying on Clause 21 of Bye-Laws framed in the year, 1978. The competent authority for interpreting the regulations is the Governing Council, applying Clause 23 of 1990 regulations, as provided under Clause 2(2) of the Service Regulations of the Institute, of the year 1990. Further, the University Grants Commission has included the International Institute of Tamil Studies in the list of colleges maintained by the Commission, under Section 2(f) of the University Grants Commission Act. Therefore, the Institute cannot be on par with the Tamil University. Taking into consideration the Government order, in G.O.Ms.No.111, Higher Education (H1) Department, dated 24.3.1999, the petitioner ought to have retired on attaining the age of 58 years. The petitioner cannot claim parity with the teachers of University, as the service conditions of the University Teachers are entirely different. In fact, the petitioner has not chosen to challenge the relevant rule which prescribes the age of retirement as 58 years. Therefore, the present writ petition is liable to be dismissed. 6. The learned counsel appearing for the petitioner had submitted that Bye-Law 21(1)(b) of the Institute has clearly stated that the age of retirement of the academic staff is 60 years. While so, the respondents cannot be permitted to say that the petitioner would retire at the age of 58 years. Since the Tamil University is engaged in similar research activities as that of the International Institute of Tamil Studies, the staff working in both the University as well as in the Institute are treated as University Teachers and therefore, the retirement age should be 60 years and not 58 years, as claimed by the respondents. According to G.O.Ms.No.111, Higher Education (H1) Department, dated 24.3.1999, the State Government had decided to prescribe 60 years as the age of retirement of the University Teachers. Since the age limit prescribed for the candidates, who were eligible to the post of Director, is 60 years, it necessarily implies that the academic staff like the petitioner shall continue in service upto the age of 60 years. 7. The learned counsel appearing for the petitioner had further submitted that since the appointment of the petitioner was on 1.11.1986, under the 1978 Bye-Laws of the Institute, the amended Bye-Laws of year 1990 would not be applicable to the petitioner. Further, the 1990 Bye-Laws do not have any legal sanction as it has not been made following the procedures laid down in Section 12 of the Societies Registration Act, 1860. Further, the 1990 service Regulations have not come into force, since they have not been approved by the Governing council. The 1990 Bye-Laws had not been challenged by the petitioner for the reason that it is non-est in law. https://hcservices.ecourts.gov.in/hcservices/ 8. Per contra, the learned counsel appearing for the respondents has submitted that the petitioner has come before this Court praying for a writ of mandamus, without even making a representation with regard to his age of retirement. As per Rule 11 of the Rules and Regulations of the International Institute of Tamil Studies, it has been specified that the Board of Governors may frame Bye-Laws for the detailed functioning of the Institute, within the frame work of the Memorandum of Association and the Rules of the Institute and the Bye-Laws will have the same validity as the Rules of the Institute. It has also been stated that Bye-Laws may be added to, amended or deleted from time to time, as may be considered necessary by the Board of Governors. Even according to Regulation 23 of the International Institute of Tamil Studies Service Regulations 1990, it has been stated that the date of retirement of the employees of the Institute is the date on which he or she attains the age of 58 years, in respect of the employees in the Academic and Administrative service. The said service Regulations would prevail over the Bye-Laws of the Institute. It is also clear that the confirmation of the petitioner in service is only in accordance with the 1990 Regulations of the Institute. According to the proposal of the University Grants Commission, dated 11.11.1993, the International Institute of Tamil Studies, Chennai, has been approved for inclusion in the list of colleges maintained under Section 2(f) of the University Grants Commission Act. Therefore, the petitioner cannot claim parity with the University teachers, whose age of superannuation fixed is at 60 years, as specified in G.O.Ms.No.111, Higher Education (H1) Department, dated 24.3.1999. 9. It has been further stated that the service regulations of the Institute framed in the year 1990, has been recognised by this Court in its order, dated 29.1.2001, made in W.P.No.16091 of 2000. 10. The learned counsel appearing for the respondents has further submitted that the petitioner has come before this Court with unclean hands as he has omitted to mention about the service regulations of the Institute framed in the year 1990, wherein the age of retirement of the employees of the Institute in the academic and administrative service has been fixed at 58 years. Rule 21 of the Institute Rules and Regulations of 21.10.1970, relied on by the petitioner, is only of a general nature and it only says that a continuing appointment could be till the close of the academic year in which the appointee attains the age of 60 years. In fact, the petitioner has been made permanent in the service of the Institute only in accordance with the 1990 service regulations. Similarly placed persons, as that of the petitioner, have retired at the age of 58 years without disputing the age of superannuation. In fact, Bye-Law 28 of 1978 says that every member https://hcservices.ecourts.gov.in/hcservices/ of the staff shall retire when he attains the age of 58 years. In such circumstances, the petitioner cannot claim that he should be permitted to continue in service till he attains the age of 60 years. Since the prayer in the writ petition filed by the petitioner is devoid of merits, the writ petition is liable to be dismissed. 11. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to issue a writ of mandamus, as prayed for by the petitioner. The petitioner has not been in a position to show that his retirement would be 60 years and not 58 years, as prescribed by the Bye-Laws and the service Regulations applicable to him. Even if the age of retirement for the University Teachers has been fixed at 60 years, in accordance with G.O.Ms.No.111, Higher Education (H1) Department, dated 24.3.1999, it cannot be made applicable to the petitioner, since he cannot be considered on par with the University Teachers. In fact, the University Grants Commission has included the International Institute of Tamil Studies in the list of colleges maintained by the Commission, under Section 2(f) of the University Grants Commission Act. The petitioner is not in a position to show that the International Institute of Tamil Studies Service Regulations 1990, have not come into force, even though it has been contended that the Governing Council, which is to approve the regulations, had not met for the past 16 years. Further, this Court in its order, dated 29.1.2001, in W.P.No.16091 of 2000, has dealt with the service regulations of the Institute of the year the 1990. It is also found that the petitioner has been regularised in service, on 12.2.1991, only in accordance with the service Regulations of the Institute of the year 1990. It is also found that the petitioner has not challenged the 1990 Service Regulations of the Institute, till date. Having been employed in the Institute for about 15 years and having been confirmed in service, in accordance with the service regulations of the year 1990, it is not open to the petitioner to state, at a later stage, that his age of retirement would be 60 years. Having been regularised in the service of the International Institute of Tamil Studies, Chennai, the petitioner cannot claim that the said service regulations would not apply to him since it has not been framed in accordance with the provisions of the Societies Registration Act, 1860 and that it has not been approved by the Governing Council. https://hcservices.ecourts.gov.in/hcservices/ 12. For the reasons stated above, the writ petition filed by the petitioner is liable to be dismissed. Hence, it is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Chairman (International Institute of Tamil Studies) Department of Tamil Development Culture Fort St. George Chennai-600 009 2. The Secretary to Government Department of Tamil Development Culture Government of Tamil Nadu Fort St. George Chennai-600 009 3. The Director International Institute of Tamil Studies Chennai-600 113 +1cc to Mr.E.J.Ayyappan,Advocate Sr 60767 +1cc to Govt. Pleader Sr 60494 SJ (CO) km/11.11. W.P.No.5052 of 2001 https://hcservices.ecourts.gov.in/hcservices/