IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 WP(C).NO. 28734 OF 2008(U) ---------------------------------------- PETITIONER(S): ----------------------- 1. M. MURUGAN ASARI, KUNCHUVEETUVILA, SREENIVASAPURAM, VARKALA, THIRUVANANTHAPURAM DIST. 2. DILEEP KUMAR R, THUNDATHIL MADOM, KONGAL, SOUTH PARAVUR P.O., KOLLAM DIST - 691 301. BY SRI.PIRAPPANCODE V.SREEDHARAN NAIR, ADV. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.SAJU JOHN, SRI.V.VARGHESE. RESPONDENT(S): -------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, NEW DELHI. 2. THE CHAIRMAN, CENTRAL BOARD OF SECONDARY EDUCATION, SIKSHAKENDRA, 2, COMMUNITY CENTRE, PREET VIHAR, VIKAS MARG, DELHI- 110 301. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE MANAGER, SIVAGIRI SREENARAYANA SENIOR SECONDARY SCHOOL, SREENIVASAPURAM P.O., VARKALA, THIRUVANATHAPURAM DIST. 5. THE PRINCIPAL, SIVAGIRI SREENARAYANA SENIOR SECONDARY SCHOOL, SREENIVASAPURAM P.O., VARKALA, THIRUVANANTHAPURAM DIST. R1 BY ADV. SRI.P.PARAMESWARAN NAIR, ASST. S.G. OF INDIA. SMT.M.MEENA JOHN, CGC. R2 BY ADV. MR.DEVAN RAMACHANDRAN, SC. R3 BY GOVT. PLEADER MR.T.T. MUHAMOOD. R4 & R5 BY ADV. SRI.SAJAN VARGHEESE K., SRI.LIJU. M.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RS WP(C).NO. 28734 OF 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AGREEMENT DATED 01/07/1993 EXECUTED BETWEEN THE CORRESPONDENT (MANAGER) OF THE SCHOOL AND THE 1ST PETITIONER. EXT.P2: COPY OF THE RELEVANT EXTRACT OF THE AFFILIATION BYE LAWS. EXT.P3: COPY OF THE PETITION DATED 20/06/2008 FILED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DATED 15/06/2008 SUBMITTED BY THE 1ST PETITIONER BEFORE THE PRESIDENT OF INDIA, THE PRIME MINISTER OF INDIA, THE UNION MINSTER FOR HUMAN RESOURCES DEVELOPMENT AND THE CHAIRMAN OF THE CBSE. EXT.P5: COPY OF THE SERVICE CERTIFICATE ISSUED TO THE 2ND PETITIONER. EXT.P6: COPY OF THE SERVICE CERTIFICATE ISSUED TO THE 2ND PETITIONER. EXT.P7: COPY OF THE SERVICE CERTIFICATE ISSUED TO THE 2ND PETITIONER. EXT.P8: COPY OF THE COMPLAINT DATED 03/04/2007 FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P9: COPY OF THE COMPLAINT FILED BY THE 2ND PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA. EXT.P10: COPY OF THE REPRESENTATION DATED 09/11/2007 FILED BY THE 2ND PETITIONER BEFORE THE HONOURABLE UNION MINISTER FOR HUMAN RESOURCES DEVELOPMENT. EXT.P11: COPY OF THE REPRESENTATION DATED 09/11/2007 FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P12: COPY OF THE LETTER NO.CBSE/AFF/930019/2007/84645 DATED 11/09/2007 ISSUED BY THE CBSE TO THE 4TH RESPONDENT. EXT.P13: COPY OF THE LETTER NO.CBSE/AFF/930019/2007/106960 DATED 26/12/2007 ISSUED BY THE CBSE. EXT.P14: COPY OF THE LETTER NO.CBSE/AFF/930019/2008/30473 DATED 21/05/2008 ADDRESSED TO THE 4TH RESPONDENT. EXT.P15: COPY OF THE RELEVANT EXTRACT OF THE AFFILIATION BYELAW THE PETITIONERS HAD DOWNLOADED FROM THE WEBSITE OF CBSE. EXT.P16: COPY OF THE RELEVANT EXTRACT OF THE AFFILIATION BYELAW, WHICH THE PETITIONER HAD OBTAINED IN THE END OF 2005. EXT.P17: COPY OF THE FULL TEXT OF EXT.P2. RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE LETTER DATED 04/06/2008 ISSUED BY THE RESPONDENT NO.4 TO THE CENTRAL BOARD OF SECONDARY EDUCATION, DELHI. WP(C).NO. 28734 OF 2008(U) EXT.R4(B): COPY OF THE CLAUSE 30 OF ''AFFILIATION BYE-LAWS OF CENTRAL BOARD OF SECONDARY EDUCATION'' EXISTING TILL 2007. EXT.R4(C): COPY OF THE RELEVANT CLAUSE REGARDING RETIREMENT IN THE UNAMENDED SERVICE RULES OF SIVAGIRI SREE NARAYANA SENIOR SECONDARY SCHOOL-SREENIVASAPURAM, VARKALA. EXT.R4(D): COPY OF THE RELEVANT CLAUSE NO.38 REGARDING RETIREMENT IN THE AMENDED SERVICE RULES OF SIVAGIRI SREE NARAYANA SENIOR SECONDARY SCHOOL-SREENIVASAPURAM, VARKALA. EXT.R4(E): COPY OF THE CIRCULAR NO.2/2008 DATED 12/06/2008 ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION. //TRUE COPY// P.A. TO JUDGE rs T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.28734 OF 2008 --------------------------------------- Dated this the 13th day of June, 2011. J U D G M E N T Both the petitioners were Teachers working in the school managed by the 4th respondent which is affiliated to the Central Board of Secondary Education (2nd respondent herein). The dispute herein is with regard to the retirement age. The petitioners contend that even before the crucial date on which they were asked to retire, clause 30 of the Affiliation Bye Laws of the CBSE provided that the retirement age shall be 60. The petitioners retired from service on 31.03.2008 and 31.03.2007 respectively on attaining the age of 55 years. It is pointed out that no formal orders were communicated to them with regard to the age of retirement. Both the petitioners had filed representations before various authorities and failing to get any action in the matter, this writ petition has been filed. 2. The petitioners have produced along with the writ W.P.(C) No.28734/2008 2 petition, the representations submitted before the 2nd respondent namely, as Exts.P8 and P11. The dispute between the parties is with regard to the unamended and amended bye laws of the CBSE. 3. The petitioners have produced in the writ petition Ext.P2 which is said to be a copy of the Affiliation Bye Laws of the 2nd respondent. Clause 30 therein relates to retirement age. It is stated therein thus: “Every employee including Head of institution shall retire from service on attaining the age of 60. However if the age of superannuation falls during the academic session, the concerned employee will retire at the end of the academic session”. 4. In the counter affidavit filed by the respondents 4 and 5 dated 20.09.2009, in paragraph 3, they have quoted clause 30 of the Affiliation Bye Laws of CBSE which reads as follows: “30. Retirement:- (1) Every employee shall retire from service on attaining the age of superannuation as per corresponding categories of employees of aided/un-aided schools of the State/UT concerned”. W.P.(C) No.28734/2008 3 Thus it is contended that as far as this State is concerned, Rule 62 of Chapter XIV A KER will apply and accordingly, the petitioners had to retire on attaining the age of 55 years. 5. The respondents 4 and 5 have filed two additional counter affidavits. In the additional counter affidavit dated 30.03.2011, Ext.R4(b) has been produced as copy of Clause 30 of Affiliation Bye laws of Central Board of Secondary Education existing till 2007. Therein with regard to the retirement, what is stated is the following: “30. Retirement.-(1) Every employee shall retire from service on attaining the age of superannuation as per corresponding categories of employees of aided/unaided schools of the State/UT concerned”. 6. The petitioners have filed a reply affidavit disputing the very existence of Ext.R4(b) and it is contended that it is a concocted one. The petitioners have further produced Ext.P15, a copy of the Affiliation Bye Laws of CBSE wherein the retirement age in Clause 30 is shown as 60 years. Ext.P17 is the full text of the Affiliation Bye Laws. W.P.(C) No.28734/2008 4 7. In the counter affidavit dated 30.05.2011, the respondents 4 and 5 have produced copies of various unamended and amended bye laws as Exts.R4(c) and R4(d). Going by the averments of the respondents 4 and 5, the stand taken is that the bye laws of the school have been amended only with effect from 01.06.2008 whereby the retirement age is adopted as 60. 8. In view of the said dispute which has arisen between the parties herein including the dispute as to the veracity of certain documents produced by the respondents 4 and 5, it is only appropriate that the 2nd respondent hears the parties and take an appropriate decision. Already the petitioners have filed detailed representations as per Exts.P8 and P11 before the 2nd respondent. Therefore, this writ petition is disposed of directing the 2nd respondent to take a decision with regard to the claim of petitioners to continue upto the age of 60 either through the Central Office or through the Regional Office, Chennai after issuing notice to both parties and an opportunity of hearing will be given to them. Both the parties can produce copies of the Bye W.P.(C) No.28734/2008 5 Laws which they are relying upon. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp