IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 34472 of 2010(H) -------------------------- PETITIONER(S): --------------- S.SUSEELAMMA TECHNICAL OFFICER, REGIONAL CANCER CENTRE THIRUVANANTHAPURAM BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SMT.DHANYA CHANDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001 2. THE REGIONAL CANCER CENTRE, MEDICAL COLLGE CAMPUS, THIRUVANANTHAPURAM, PIN-695011,REP BY ITS DIRECTOR, GOVT. PLEADER SRI. ANTONY MUKKATH ADV. SRI. K.R. RADHAKRISHNAN NAIR, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 34472 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30th day of November, 2010. J U D G M E N T The issue involved in this writ petition is as to whether the retirement age of non-academic staff of the 2nd respondent Regional Cancer Center is liable to be enhanced to 60 years from 58 years in tune with the retirement age of academic staff. The very same matter was the subject matter for consideration by this Court in W.P(C).Nos. 24053/2009 and 30894/2010, in which a learned Judge of this Court passed the following judgment: “The petitioners in W.P.(C).No.24053/2009 have been working as Security Guards and the petitioners in W.P.(C). No.30894/2010 have been working as Driver (Selection Grade), Hospital Attender and Nursing Supervisor respectively, in the Regional Cancer Centre, namely, the second respondent herein. These writ petitions are concerned with the retirement age of the petitioners. Their case appears to be that Ext.P5 order produced in W.P.(C).No.30894/2010 passed by the Government enhancing the retirement age of Professors to 65 years and that of other academic staff to 62 years in Regional Cancer Centre as in Sree Chitra Tirunal Institute of Medical Sciences & Technology, evidently, applies to non-academic staff also, in the light of various orders. Accordingly, they have prayed for a direction to the second respondent to allow them to continue in service upto the age of 60 years. The facts relevant for the disposal of the writ petitions as relevant in W.P.(C).No.30894/2010 are the following:- 2. In Sree Chitra Tirunal Institute of Medical Sciences & Technology (SCTIMST for short), which is an institute similar to Regional Cancer Centre, the age of retirement of academic staff is 62 years and that of non academic staff is 60 years. The governing body of the second respondent on 06/01/2009 decided to implement the Central Pay Revision in Regional Cancer Centre as that of SCTIMST as evident from Ext.P2 minutes, produced in W.P.(C).No.30894/2010. 3. There were steps to have parity with regard to the pay scales and conditions of Regional Cancer Centre, with SCTIMST. The Parity Committee had made a recommendation with regard to the increase in retirement age also. By Ext.P3, produced in W.P.(C).No.30894/2010, the Government while W.P.C. No. 34472/2010 -: 2 :- considering the claim of one Shri A.Rajan, Chief Maintenance Engineer took the view that there is no decision to extend the retirement age or parity with SCTIMST. Accordingly, it was observed that the retirement age of non-academic staff/academic staff of Regional Cancer Centre cannot be extended. Ext.P4, produced in W.P.(C).No.30894/2010, is the order by which the Government decided to extend the pay structure based on 6th Central Pay Revision to the academic and non-academic staff of Regional Cancer Centre. The benefits were extended to academic and non-academic staff alike. 4. Ext.P5, produced in W.P.(C).No.30894/2010, the opening paragraph records that the Government was of the view to implement pay and service conditions being enjoyed by the staff of SCTIMST to the staff of Regional Cancer Centre also. It is therefore contended by the petitioners that extension of those service conditions will apply as far as retirement age of non- academic staff even though in the operative portion of Ext.P5, specifically, the enhancement of the retirement age is with regard to the category of Professors and that of other academic staff to 65 years and 62 years respectively. Exts.P6 and P7 are interim orders passed in various writ petitions. 5. It appears that after the order Ext.P5 was issued by the Government, the second respondent sought for various clarifications by Ext.P10 communication, produced in W.P.(C). No.30894/2010, including a clarification as to the extension of retirement age to non-academic staff and with a further request that an order may be passed unifying the retirement age as well as other conditions of service including service pension. 6. The petitioners have also sought for a prayer to regularise them in service. 7. The petitioners are continuing in service in terms of the interim orders passed by this Court. The second respondent has filed a counter affidavit in W.P.(C).No.24053/2009 opposing the prayers of the petitioners. Reliance is placed on various aspects including the Judgment of this Court in W.P.(C). No.28204/2008 and connected cases [Ext.R2(g)] wherein recording the policy decision of the Government then in force, this Court refused to grant relief to the petitioners therein, with regard to the prayers sought for, for extension of the retirement age of non-academic staff of the Regional Cancer Centre. Evidently, the stand taken by the Regional Cancer Centre is that there is no policy decision by the Government to enhance the retirement age of non-academic staff by Ext.P5 order produced in W.P.(C).No.30894/2010. The petitioners cannot as a matter of right seek for a direction to permit them to continue beyond the retirement age, namely, 58 years. W.P.C. No. 34472/2010 -: 3 :- 8. The learned counsel for the second respondent further relied upon the decision of the Division Bench of this Court in Prakasan M.P. (Dr.) & Others v. State of Kerala and another [2010 (4) KHC 292 (DB)] wherein this Court observed that the extension of the age limit is a policy decision of the Government and it is not open to this Court to confer the benefits extended to other groups. Since there was a dispute whether Ext.P5 applies to non-academic staff also, this Court directed the learned Government Pleader to get the views of the Government. No counter affidavits have been filed by the Government in these writ petitions. The learned Government Pleader on getting instructions submitted that Ext.P5 produced in W.P.(C). No.30894/2010 grants extension of retirement age to Professors and academic staff and it will not apply to non-academic staff of the second respondent. Evidently, in Ext.P5 the age of retirement of non-academic staff has not been extended. Retirement age as on today if not specifically extended they cannot rely upon Ext.P5, to seek continuance. Therefore, as far as non-academic staff is concerned, the age of retirement is 58 years and all the employees have crossed the age of 58 years. Hence, the petitioners cannot seek continuance beyond 58 years. 9. The learned counsel for the petitioners pointed out that the same will be an anomaly as far as service conditions of non-academic staff are concerned and the action of the Government in not extending the retirement age of non-academic staff will result in discrimination. It is further pointed out that the second respondent itself has requested the Government for clarification as per Ext.P10 and, till the Government takes a decision, they may be allowed to continue in service. 10. As already noticed, the retirement age having not been extended, the petitioners cannot have a legal right to continue beyond 58 years. Of course, the second respondent has sought for clarification of the Government by Ext.P10. It is upto to the Government to communicate their decision on Ext.P10 to the second respondent. If there is a change of policy as far as non-academic staff are concerned and if the petitioners are benefited by any such decision taken by the Government, it is for the second respondent to take a decision after such a communication is received from the Government. Appropriate decision will be taken by the Government within two months from the date of receipt of the copy of this Judgment. The writ petitions are dismissed subject to the above observations. Since the petitioners were continuing based on the interim orders passed by this Court and they have received the pay and other benefits, there will not be any recovery as far as the amounts already paid to the petitioners. No costs.” W.P.C. No. 34472/2010 -: 4 :- Following the said judgment, this writ petition is also disposed of in terms of that judgment dated 15-11-2010. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.