IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 31029 of 2007(R) --------------------------------------- PETITIONER(S): ------------------------ JOLLY VARGHESE U., AGED 37 YEARS, D/O. U.K.VARGHESE, UMBAVU HOUSE, CHIYYARAM P.O., TRICHUR DISTRICT. BY MR.MATHAI M PAIKADAY, SENIOR ADVOCATE RESPONDENT(S): ------------------------ 1. PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM. 4. UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM DISTRICT. ADV. MR.M.RAJAGOPALAN NAIR FOR R3 BY GOVT. PLEADER MR.P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 22/06/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.31029/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT CIRCULAR DT. APRIL 24, 1997 ISSUED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. P2:- COPY OF THE CIRCULAR DT. MAY 2, 1997 ISSUED BY ADDITIONAL DIRECTOR OF COLLEGIATE EDUCATION. P3:- COPY OF THE ORDER DT. OCTOBER 28, 2004 ISSUED BY THE UNIVERSITY OF KERALA. P4:- COPY OF THE DIRECTION DT. NOVEMBER 12, 1975 ISSUED BY THE UNIVERSITY OF CALICUT. P5:- COPY OF THE G.O.(MS) NO.8/09/H. EDN. DT.8.1.09. P6:- COPY OF THE ADVERTISEMENT THAT APPEARED IN THE NEW INDIAN EXPRESS DT. 21.6.08 INVITING APPLICATIONS TO VARIOUS POSTS OF NON- TEACHING STAFF IN THE COLLEGE. P7:- COPY OF THE APPLICATION DT. 11.7.08 SUBMITTED BY THE PETITIONER. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31029 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2009. JUDGMENT This writ petition is filed mainly seeking for a direction to the Government to extend the benefit of enhanced upper age limit as applicable to the teaching staff of aided colleges to the candidates aspiring for appointment as non-teaching staff also. The petitioner herein is fully qualified to be appointed as Librarian in Arts and Science Colleges in the State. Pursuant to the decision taken by the Government to delink Pre- degree courses from all colleges in Kerala, the Government introduced a ban as regards appointments of teaching and non-teaching staff, as per Ext.P1 dated 24.4.1997. The Additional Director of Collegiate Education consequently directed the Principals and Managers of all private colleges not to send any proposals for approval of appointment, until further orders. After seven years, the Government passed Ext.P3 order by which for recruitment to the post of Lecturer in Arts and Science Colleges, the upper age limit was enhanced to 40 years from the existing limit of 35 years. Presently, the said benefit stands extended as per Ext.P5 dated 8.1.2009, upto and inclusive of 31.12.2009. Thus, the upper age limit of 35 years wpc 31029/2007 2 fixed for the appointment of Lecturers in Arts and Science Colleges, Sanskrit Colleges and Training Colleges stands enhanced to 40 years. 2. The said orders were passed by the Government considering the ban on appointment existed from 1996 to 2003. The Government was of the view that many eligible candidates could not get appointment because of the ban order issued by the Government and many eligible candidates could not apply also. But as far as non-teaching staff are concerned, the Government has not passed any orders raising the upper age limit to them. As regards the non-teaching staff also, 35 is the upper age limit fixed as per the relevant rules. 3. The petitioner has also produced a notification issued by one of the educational institutions for appointment of non-teaching staff, as per Ext.P6. It is specified that age, qualification and scale of pay are as per the Government rules and Calicut University Statutes. Even though the petitioner submitted Ext.P7 application dated 11.7.2008, that was not considered, since she has crossed the upper age limit of 35 years already as her date of birth is 24.5.1970. The petitioner was appointed on part-time basis in C.K.C. T.T.I., Pavaratty and is now working there on full time basis from 2004. 4. The petitioner has got a further complaint that in Calicut wpc 31029/2007 3 University, they have issued orders to the effect that in the case of appointment of teachers in private colleges, provision be given for weightage for every year of service put in by a person in a school. The complaint is to the effect that as regards non-teaching staff, so far no such provision has been introduced. Ext.P4 is the order issued by the Calicut University, referred to by the petitioner. 5. In the counter affidavit filed on behalf of the first respondent, it is pointed out in para 3 that as far as the appointment of non-teaching staff are concerned, the Government did not receive any representation from candidates seeking for enhancement of upper age limit. It is pointed out that the question of enhancing upper age limit for recruitment of non- teaching staff were not before the Government so far. The legality of the same can be considered only after receipt of any representation. It is also stated that there was no ban against appointment of non-teaching staff in Colleges from 17.9.2004 onwards. Therefore, substantially the contention raised by the respondents is that in the absence of a demand by any candidates, the Government has not considered the question of enhancement of upper age limit in the case of non-teaching staff. 6. Heard learned Senior Counsel Shri Mathai M. Paikeday for the petitioner, learned Govt. Pleader for respondents 1 and 2, Shri M. wpc 31029/2007 4 Rajagopalan Nair, learned Standing Counsel for the third respondent and Shri P.C. Sasidharan, learned Standing Counsel for the 4th respondent. 7. Shri Paikeday, learned Senior Counsel submitted that as far as teaching staff and non-teaching staff in aided colleges are concerned, both form a homogeneous class in the matter of upper age limit fixed for appointment. The upper age limit was fixed as 35 years uniformly for them. Learned Senior Counsel submitted that a reading of Ext.P3 order passed by the University shows that there is a Standing Committee on Teaching and Non-teaching Staff of Private Colleges who had considered the issue in respect of teaching staff in the light of the Govt. Order dated 8.7.2004 and therefore there are no distinguishing features as far as teaching and non- teaching staff are concerned in the matter of the requirement of minimum age for appointment. It is submitted that when both these categories form a homogeneous class, there cannot be any discrimination between these two and therefore the Government ought to have passed appropriate orders from time to time as was done in the case of teachers. The ban on appointment pursuant to delinking of Pre-degree courses was applicable from 1996 to 2003 in the case of Lecturers as well as non-teaching staff. 8. The learned Senior Counsel appearing for the petitioner also relied upon a decision of the Apex Court in Smt. Kamala Gaind v. State of wpc 31029/2007 5 Punjab and others {1990 (Supp) SCC 800} in support of the plea that any discrimination in such cases will amount to violation of Articles 14 and 16 of the Constitution of India. Referring to the averments in the counter affidavit filed by the first respondent, it is contended that merely because there was no representation before the Government the benefit could not have been denied to persons like the petitioners. The petitioner has already crossed the age limit of 35. Even though she responded to the notification Ext.P6 by submitting Ext.P7, that was not considered because the age limit exceeded the maximum of 35. 9. It is evident that as far as the appointment of teaching and non teaching staff of aided colleges are concerned, there was an order banning appointments issued by the Government pursuant to the delinking of Pre- degree courses from all colleges. Exts.P1 and P2 clearly points out these aspects. The Government which was conscious of this ban order in regard to the appointment, brought out an order dated 28.10.2004 raising the upper age limit of 35 years fixed for appointment as lecturers in Arts and Science Colleges to 40 years. It is evident from the last of the orders, viz. Ext.P5 issued by the Government that the Government raised the upper age limit up to 40 years for the period from 1.1.2004 to 31.12.2007 as per Government Orders dated 8.7.2004 and 28.12.2007. The same was issued after wpc 31029/2007 6 considering the ban on appointment existed from 1996 to 2003 which fact is reiterated in Ext.P5 itself. By Ext.P5 order, the upper age limit is enhanced up to 40 years for a further period from 1.1.2008 to 31.12.2009. 10. Going by the Special Rules, there cannot be any dispute that 35 was the upper age limit as far as teaching and non-teaching staff are concerned. It is clear from the averments in the counter affidavit that as far as teaching posts are concerned, the Government took the view that the restrictions imposed by the ban lasted for more than seven years from 1996 and obviously it curtailed the chances of aspiring candidates seeking appointments in teaching posts. The same is the situation as far as non- teaching staff are also concerned. Therefore, the considerations which have prevailed upon the Government to enhance the age limit in respect of teaching staff should be the same as far as the non-teaching staff are also concerned. The averment made in the counter affidavit that since the ban was lifted from 17.9.2004, the candidates like the petitioner had got sufficient opportunity to compete with others in the matter of appointment, cannot be accepted in the light of the fact that in respect of teaching staff, even though the ban was lifted on 17.9.2004, the Government was passing orders from time to time and finally by Ext.P5 granted relaxation in respect of the upper age limit in subsequent periods also. Therefore, the same wpc 31029/2007 7 cannot be a consideration. 11. The main reason stated in the counter affidavit for not passing any orders is that no representations were received by the Government in the matter. Plainly, that cannot be a justification not to consider the case of non-teaching staff. The Government which was alive to the issue, especially in the light of the ban order regarding appointment, was already ceased of the matter, when in respect of teaching staff successive orders were issued revising the upper age limit. No other valid reason for not enhancing the age limit in respect of non-teaching staff is pointed out in the counter affidavit. Therefore, the insistence that there should have been some representations from persons like the petitioner, is of no avail. The principle governing Article 14 of the Constitution of India are well settled. It is well settled that equal protection of the laws means the right to equal protection in similar circumstances. In fact, the said principle is discernible from the decision relied upon by the learned Senior Counsel in Kamala Gaind's case (1990 (Supp) SCC 800). Even though that was a case of granting compassionate appointment, the question was whether in respect of different appointees discrimination can be shown in the matter of providing suitable jobs. It was held that “even if it is compassionate, unless there be wpc 31029/2007 8 some basis there is no justification for discriminatingly extending the treatment.” In Nityananda Kar and another v. State of Orissa and others (AIR 1991 SC 1134), while considering the case of direct recruits of the year 1970 and 1971 on the one hand and the direct recruits of the year 1972 on the other, it was held that “since the two groups of recruits were similarly placed and the situation did not yield to any reasonable classification it was not open to the State Legislature to maintain an artificial classification and provide by the impugned Act unequal treatment to the 1972 recruits” and the Act was declared as violative of Article 14 of the Constitution of India. 12. The crucial aspect while examining the question of discrimination is whether there is some difference as far as the two situations are concerned or whether there is any distinguishing features as far as the case of the two categories are concerned. Herein, practically both these categories namely, teaching and non teaching categories seek appointment to the very same institutions, viz. Arts and Science Colleges etc. under the very same special rules. The upper age limit was fixed as 35 for both categories. In respect of both categories a general order regarding ban on appointment was in force. Both of them formed a well defined wpc 31029/2007 9 homogeneous class. Therefore, these two categories require equal treatment and equal protection. One cannot distinguish the teaching staff from the rest since plainly the ban order was the sole reason for restricting the right of appointment in respect of both these categories. Lot of candidates were waiting for a chance to submit application for appointment, obviously. The relevant considerations which prevailed upon the Government while issuing orders like Ext.P5 will apply in the case of persons like the petitioners who aspire to get appointment as non-teaching staff. The petitioner is qualified to be appointed as a Librarian in any of the Arts and Science Colleges in Kerala. In fact, she had submitted an application also by responding to Ext.P6 notification. 13. In that view of the matter, it is for the Government to issue appropriate orders in the matter of non-teaching staff by enhancing the upper age limit. Merely because there was no representation, that is not a reason not to invoke the power to issue appropriate notification. 14. The remaining issue that is raised by the petitioner is regarding the claim for weightage for school service while considering for appointment as Librarian in colleges. That is a matter for the respective Universities to consider. 14. Therefore, the writ petition is allowed. There will be a direction wpc 31029/2007 10 to the first respondent to issue appropriate orders regarding raising of upper age limit in respect of recruitment to the post of non-teaching staff in various colleges as in the case of recruitment to the post of Lecturers. The same shall be done within a period of three months from the date of receipt of a copy of this judgment. Regarding the claim for weightage of school service, it is up to the petitioner to raise the matter before the concerned Universities and if representations are filed in the matter before respondents 3 and 4, the same will be considered and appropriate orders will be passed by the respective Universities expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. (T.R. Ramachandran Nair, Judge.) kav/