IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 5225 of 2007(V) ------------------------- PETITIONER: ------------ CHANDRAN CHETTIAR, AGED 57 YEARS, S/O. SUBRAMANYAN CHETTIAR, CVS NILAYAM, NAGARIKKUNNU, PAZHAKUTTY P.O., NEDUMANGADU, THIRUVANANTHAPURAM. BY ADV. SRI.V.JAYAPRADEEP RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF SCIENCE, TECHNOLOGY & ENVIRONMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY & ENVIRONMENT, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MEMBER SECRETARY. 3. THE TROPICAL BOTANICAL GARDEN & RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR. 4. THE DIRECTOR, TROPICAL BOTANICAL GARDEN & RESEARCH INSTITUTE. BY ADV. SRI.C.K.KARUNAKARAN SC FOR (TBGARI) SRI.P.A.AHAMED, SC, K.S.C.T.E GOVERNMENT PLEADER SRI. BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2008, ALONG WITH WPC NO. 795 OF 2006 WPC NO. 18603 OF 2006 WPC NO. 16007 OF 2007, WPC NO. 10360 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5225 of 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1- COPY OF THE ORDER NO.134 DATED 27.2.06 EXT.P2- COPY OF THE G.O.(P) 82/99/STED DATED 2.8.99 EXT.P3- THE COPY OF THE REPRESENTATIONS MADE BY THE PETITIONER ON 22.2.06 EXT.P4- THE COPY OF THE REPRESENTATIONS MADE BY THE PETITIONER ON 8.11.00 EXT.P5- THE COPY OF THE REPRESENTATIONS MADE BY THE PETITIONER ON 19.7.02 EXT.P5(a)- THE COPY OF THE REPRESENTATIONS MADE BY THE PETITIONER ON 12.4.05 EXT.P6- THE COPY OF ANOTHER REPRESENTATIONS MADE BY THE PETITIONER ON 11.6.01 EXT.P7- THE COPY OF ANOTHER REPRESENTATIONS MADE BY THE PETITIONER ON 6.8.01 EXT.P8- COPY OF the REPRESENTATIONS BY THE PETITIONER ON 22.12.04 EXT.P9- COPY OF THE REPRESENTATION DATED 11.4.05 EXT.P10- COPY OF THE REPRESENTATION DATED 4.10.05 EXT.P11- COPY OF the REPRESENTATION DATED 8.7.03 EXT.P12- THE COPY OF the CLARIFICATION ORDER NO.TBGRI/R/26/01 DATED 3.2.01 EXT.P13- COPY OF the REPRESENTATION DATED 14.5.04 EXT.P14- COPY OF THE REPRESENTATION DATED 22.7.04 OF THE PETITIONER EXT.P15- COPY OF the REPRESENTATION DATED 4.11.04 OF THE PETITIONER EXT.P16- THE COPY OF the REPRESENTATIONS MADE BY THE PETITIONER ON 12.11.05 EXT.P17- COPY OF the REPRESENTATION ON 19.1.08 EXT.P18- THE COPY OF the PROCEEDOINGS NO.A1/5477/05 DATED 15.7.05 ISSUED TO SMT.R.PRASANNAKUMARI WP(C).No. 5225 of 2007 -2- EXT.P19- COPY OF THE REPRESENTAION ON 9.12.06 EXT.P20- THE COPY OF the LEGAL NOTICE 9.1.07 EXT.P21- THE COPY OF THE CIRCULAR COMMUNICATED TO ALL THE EXECUTIVE DIRECTORS OF RESEARCH & DEVELOPMENT CENTERS ISSUED BY THE 2ND RESPONDENT DATED 26.12.05 EXT.P22- CIRCULAR DATED 27.12.05 ISSUED BY THE 3RD RESPONDENT EXT.P23- THE ORDER DATED 2.1.06 ISSUED BY THE 3RD RESPONDENT EXT.P24- THE COPY OF THE LETTER FROM 2ND RESPONDENT ON 5.1.06 EXT.P25- THE COPY OF IDENTITY CARD ISSUED BY THE 3RD RESPONDENT EXT.P26- THE COPY OF INTERIM ORDER OF W.P.(C).19120/04 EXT.P27- THE COPY OF INTERIM ORDER OF W.P.(C).34503/04. EXT.P28- THE COPY OF THE NEWS ITEMS SEEN IN A MALAYALAM DAILY. (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C)s. 5225/2007, 795/2006, 16007/2007, 10360/2007 & 18603/2006 -------------------- Dated this the 6th day of February, 2008 JUDGMENT The major issue raised for consideration in all these writ petitions are common. Therefore, they have been heard together and are disposed of by a common judgment. 2. I will refer to the facts in Writ Petition No.5225/2007 in the first instance. Petitioner joined the service of the Centre for Water Research Development & Management in the year 1978 and was subsequently transferred to the third respondent on 12.11.1980. Both the aforementioned establishments are units of the Kerala State Council for Science, Technology & Environment, a society registered under the Travancore-Cochin Literacy, Scientific and Charitable Societies Act. Petitioner was appointed in the post of a Helper. According to him, he was asked by the Director of the Institute to do the work of taking Photostat copies as well. Petitioner submits that since he was doing W.P.(C).5225/2007 and Connected Cases. 2 additional work, he was entitled to get special allowance. Second respondent is the apex body of the Research and Development Centre in the State including the third respondent. There are two types of employees working in the institute, namely scientific and administrative/technical. Scientific staff are governed by CSIR pattern (Center of Science and Industrial Research). After the formation of the second respondent, Council, service rules and other rules and regulations were framed, and applied to the employees of the six institutions which come under the apex body of the second respondent. Petitioner refers to Ext.P2 and contends that CSIR pattern has been adopted in the case of majority of the posts in the six institutions which come under the second respondent. But for some reason, CSIR pattern has not been made applicable to the post of Helper and certain other posts. Ext.P2, Government Order, shows that the Government had, as per order dated 11.4.1990, revised the scale of pay of non-scientific posts in all centres which come under the W.P.(C).5225/2007 and Connected Cases. 3 second respondent with effect from 1.7.1988. Apparently several anomalies arose from the same and. Therefore, Government had constituted a committee to examine all such issues. It seems that on the basis of the report of the Anomalies rectification committee, orders were passed by the Government to the effect that non-scientific categories of staff, who are not getting CSIR scale of pay, will be given corresponding revised scales of pay as noted in the fifth pay commission report of the State with effect from 1.7.1988. Another committee, constituted for the purpose of examining the issues relating to the anomalies in the pay scales of non- scientific staff, submitted its report in 1993-94. Counsel makes reference to the statement contained in Ext.P2 to the effect that the recommendation of the committee was accepted by the Government subject to the conditions mentioned in an earlier Government Order dated 6.12.1987 with certain modifications. He makes further reference to the different categories of staff specifically mentioned in Ext.P2 and points out that it W.P.(C).5225/2007 and Connected Cases. 4 was unjustified that the CSIR pattern should not be adopted in the case of all the categories of staff working in the third respondent, institute. Specific reference is made to item 31/42 contained in Ext.P2 which provides for the post of Photostat-Cum-Ammonia Printing Machine Operator re-designated as Technical Assistant (Reprography). It is noted therein that CSIR scale of pay may be given provided the incumbent possesses the qualification of SSLC and national trade certificate. Counsel makes reference to the following aspects contained in Ext.P2:- Photostat and Duplicator Operator have become redundant now as there is no full time work from them. Hence, it is advisable to utilize the service of helper, Peon or Attenders for this work if any, in addition to their normal work. Compensatory allowances at the rate applicable to Government employees be given to them. W.P.(C).5225/2007 and Connected Cases. 5 3. Thus, if the service of Helper, Peon or attender was availed, as in the case of the petitioner, for the purpose of operating the Photostat or Duplicator, then compensatory allowance at the rate applicable to the Government employees should be given. Petitioner submits that since he was discharging duties of Photostat operator, he must either be given the scale of pay applicable to a Photostat operator as provided in Ext.P2 or given compensatory allowance at the rate applicable to the Government employee. 4. Another aspect which is mentioned in the Writ Petition relates to the grant of third assessment grade to the petitioner. I note that there is no specific stand taken by the respondents as to whether the Petitioner is eligible for the third assessment grade or not. 5. Yet another aspect highlighted in the writ petition relates to the PF contribution. Learned counsel for the W.P.(C).5225/2007 and Connected Cases. 6 third respondent submits that such contribution has actually been remitted. 6. Another aspect highlighted in the writ petition is the prescription of retirement of age of 58 for the non- scientific staff in the establishment as against the prescription of retirement age of 60 for the scientific staff working in the institutions coming under the second respondent, the apex body. 7. Since the common issue raised in these writ petitions relates to the prescription of the age of retirement, I deal with the said aspect in first instance. 8. Retirement age of the staff and the employees of the different organizations come under the Rules of Kerala State Council for Scientific, Technology and Environment. Rule 4(1) of Section 2 of Part-I of the said rules provides as follows: W.P.(C).5225/2007 and Connected Cases. 7 An employee in administrative/technical category shall retire from service with effect from the afternoon of the last day of the month in which she attains 58 years of age. For scientific staff, the retirement age is 60 years. 9. It is contended that age of retirement for scientific staff is provided as 60 and without any reason, the age of retirement of employee in administrative/technical category is limited to 58. Contention is that there is no rationale for the prescription of a different retirement age as such. Validity of the aforementioned rule has been specifically challenged in Writ Petition No.10360/2007. 10. Though, I had heard the learned counsel for both sides as to the contention regarding the proscription of retirement age, ultimately it was submitted by the counsel for the petitioners that such contention may be left open. This is in view of the fact that the second respondent, Council, has apparently made a W.P.(C).5225/2007 and Connected Cases. 8 recommendation to the Government for implementation of the CSIR pattern of service conditions in the case of all the employees of the second respondent and Research and Development Centres. Reference is made to paragraph 10 of the counter affidavit of the second respondent in this regard. Counsel for the petitioners also refers to Ext.P24 communication from the Member Secretary of the second respondent to the third respondent. Relevant portion of the same reads as follows: The staff have mentioned that the central government pattern of timings will be acceptable to them, if the CSIR pattern of service conditions are implemented. In this connection, it is pointed out that the Council is taking up the matter earnestly to implement CSIR pattern uniformly for all the employees of the Council. In this respect, it stands clarified that the working hours/leave pattern under five day week will be reviewed favourably in case the attempt to bring CSIR pattern of service conditions does not succeed. W.P.(C).5225/2007 and Connected Cases. 9 11. It is urged by the counsel for the petitioners that if Government accepts the recommendations of the second respondent for implementing the CSIR pattern for all the employees of the Council, the prescription of the retirement age of 58 instead of 60 may not really survive as an issue. In other words, they submit that the issue regarding the prescription of the retirement age as regards the administrative/technical staff of the second respondent may be left open to be agitated in future. If Government does not accept the recommendation of the second respondent as regards the implementation of the CSIR pattern in the matter of service conditions of the employees of the second respondent and of the Research and Development Centres, the said issue may then be agitated in appropriate proceedings. 12. Another issue which has been urged for consideration is one which is squarely raised in Writ Petition No.16007/2007. This relates to the eligibility of W.P.(C).5225/2007 and Connected Cases. 10 the Petitioner therein for gratuity. According to him, gratuity payable to him should be computed as per Rule 14 of the Rules of the Kerala State Council for Scientific, Technology and Environment. There is no serious dispute on the part of the respondent as regards the claim made by the Petitioner and accordingly, it is declared that the petitioner in Writ Petition No.16007/2007 shall be paid gratuity under Rule 14 of the Rules. 13. An aspect which is referred in Writ petition No.795/2006 relates to the change of working hours and leave amongst the non-scientific staff of the second respondent. There is a challenge in particular to the reduction of number of casual leave from 20 days to 8 days and in the change of working hours from 8.30 am - 4.30 pm to 8.15 am - 4.45 pm. Respondents have in their counter affidavit, submitted that five day week is being followed in the institutions under the second respondent and therefore, for the purpose of attaining W.P.(C).5225/2007 and Connected Cases. 11 40 hours in a week, a change in the working hours also becomes necessary. Learned counsel for the respondents submits that the change in the working hours actually came to be implemented only at the instance of certain Unions representing employees in the second respondent. 14. Be that as it may, I am of the view that it is obviously within the competence of the employer to determine the hours of work in a day. I also take note of the fact that since only a five day week is implemented in the second respondent and the organizations which functions under it, there is justification for reduction of the number of casual leave from 20 to 8. The restriction in the number of holidays to 17 as is evidenced from Ext.P6, does not seem to be unjustified going by the aforementioned fact. For all these reasons, I do not find any grounds to grant any other relief in Writ Petition No.795/2006. But I make it clear that if the State Government declines to accept the recommendations of W.P.(C).5225/2007 and Connected Cases. 12 the second respondent as regards the implementation of the CSIR pattern for the non-scientific employees of the second respondent, the Petitioner may seek a revision of Ext.P6 and if it is so done, second respondent will be bound to consider the same in accordance with law and the rights of the petitioners in that regard will be unaffected by this judgment. 15. Now the point left to be considered is certain individual aspects which arises only in Writ Petition No.5225/2007. As stated above, according to the Petitioner, he is a Helper and has also been asked to discharge the duties of Photostat Operator. In my view, Petitioner is justified in contending that he should be treated as Photostat Operator in which case the salary and other service conditions will be regulated by item No.31/42 in Ext.P2. In the alternative, if the petitioner discharges the duties of Photostat Operator but is not qualified in that regard, then he is entitled to special allowance on a par with the State Government W.P.(C).5225/2007 and Connected Cases. 13 employee. A decision on this aspect may be taken by the third respondent within a period of three months from the date of receipt of a copy of this judgment and it is accordingly directed. Petitioner may file a representation before the third respondent pointing out these aspects specifically making it clear that if the petitioner has been discharging duties as Photostat Operator, he is entitled to either one of the above. The directions to the second respondent is only to take a decision as to which should be made applicable to the petitioner, ie, whether scale of pay in the CSIR pattern as is provided in Ext.P2 or a special allowance on a par with the State Government employee as provided in Ext.P2. 16. As regards the claim of the petitioner for the third assessment grade, since a decision in this regard has not been finally taken by the third respondent, I direct that such issue also may be considered by the third respondent along with the decision to be taken as regards the special allowance payable to the petitioner. W.P.(C).5225/2007 and Connected Cases. 14 Petitioner may seek a decision on this aspect along with the decision on the aspects mentioned in the previous paragraph. 17. No other issues are raised for consideration in these writ petitions. Writ petitions are disposed of as above. V.GIRI, Judge mrcs