A.J. Joseph v. State of Kerala and Kerala Agro Machinery Corporation Ltd. (KAMCO) and Managing Director, KAMCO

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932** **WP(C).No. 6858 of 2010(F)** **-------------------------------------** **PETITIONER:** - **-------------------** ## **A.J.JOSEPH, S/O. LATE A.T.JOSEPH, ASSISTANT MANAGER, KERALA AGRO MACHINERY CORPORATION LTD., KALAMASSERY UNIT, KALAMASSERY.** **BY ADVS. SMT.SUSEELA R.BHATT, SRI.P.K.RAVISANKAR.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF AGRICULTURE, THIRUVANANTHAPURAM.** **2. KERALA AGRO MACHINERY CORPORATION LTD., (KAMCO), ATHANI, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR.** **3. MANAGING DIRECTOR, KERALA AGRO MACHINERY CORPORATION LTD., (KAMCO), ATHANI, ERNAKULAM.** **R1 BY GOVT. PLEADER SMT. N. SUDHA DEVI, R2 & R3 BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.V.J.ANAND.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, ALONG WITH W.P.(C). NO. 12428 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.6858/2010-F:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE NOTICE DTD. 30/09/1994 ISSUED BY THE R.3.** **EXT.P.2: COPY OF THE NOTICE DTD. 13/12/1994 PUBLISHED BY THE R.3.** **EXT.P.3: COPY OF THE LETTER DTD. 13/04/1995 ISSUED BY THE R.3.** **EXT.P.4: COPY OF THE OFFICE ORDER NO. 04/2009 DTD. 08/10/2009 ISSUED BY R.3.** **EXT.P.5: COPY OF THE RELEVANT PORTION OF THE STAFF BYE-LAW OF THE R.2. COMPANY.** **EXT.P.6: COPY OF THE SALARY CERTIFICATE OF THE PETITIONER.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2.A: COPY OF THE JUDGMENT DTD. 26/06/2005 IN O.P. NO. 23000/2000.** **EXT.R2.B: COPY OF THE GOVERNMENT ORDER DTD. 31/03/2009.** **EXT.R2.C: COPY OF THE JUDGMENT DTD. 13/10/2008 IN W.P.(C).NO.26562/2008.** **EXT.R2.D: COPY OF THE AWARD DTD. 20/04/2006 IN I.D. 56/2002 OF THE INDUSTRIAL TRIBUNAL, ALAPPUZHA.** **EXT.R2.E: COPY OF THE BOARD RESOLUTION NO. 1690 DTD. 04/11/1994.** **EXT.R2.F: COPY OF THE BOARD RESOLUTION NO. 2204 DTD. 16/01/2002.** **EXT.R2.G: COPY OF THE NOTICE DTD. 13/10/2003.** **EXT.R2.H: COPY OF THE PETITIONER'S UNDERTAKING DTD. 14/10/1994.** **EXT.R2.I: COPY OF THE NOTICE DTD. 13/12/1994 ISSUED BY R.2.** **EXT.R2.J: COPY OF THE COMMON JUDGMENT DTD. 13/10/2008 IN W.P.(C).26562/08 , W.A. NOS.1957 & 1959/2008.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.6858/2010-F & 12428/2010-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5[th] day of October, 2010** ## **J U D G M E N T** These writ petitions concern a common question, i.e. with regard to the retirement age of officers of different Units of the Kerala Agro Machinery Corporation Ltd. (KAMCO). The petitioner in W.P.(C).No.6858/2010 is working as Assistant Manager in the Kalamassery Unit of the Corporation who is due to retire from the service on 30/10/2010. 2. The petitioners in W.P.(C).No.12428/2010 are respectively the Association of KAMCO Officers and the President of the Association. 3. The KAMCO is a Government owned Corporation. Mainly it is contended by the petitioners that as per the bye-law of the Corporation, the retirement age of every employee is 60 years of age. This bye-law was adopted when the Corporation started the Athani Unit and initially this was the only Unit. The Units at Kalamassery, Palakkad and Mala were established during 1990-2000 and no separate byelaws were adopted in respect of the service conditions of the employees therein. It appears that the matter was being agitated at various stages before this Court and before the Government. Earlier, with regard to the request ## W.P.(C). Nos.6858/2010 & 12428/2010 ## -:2:- for grant of promotion and as well as transfer to various Units, some of the Officers etc. approached this Court by filing O.P.No.23000/2000 which was disposed of by Ext.R2(a) produced along with counter affidavit of the second respondent. One of the issues raised therein was about the retirement age. This Court was of the view that with regard to the age of retirement, the matter is governed by the various orders of the Government. 4. A Division Bench of this Court in W.P.(C). No.28899/2008 and connected cases directed the Government to take a decision with regard to the enhancement of retirement age. The same resulted in the Government passing Ext.P2 order produced in W.P.(C).No.12428/2010. The Government was of the view that the benefit of retirement at the age of 60 years as enjoyed by the employees of Athani Unit appointed prior to 16/01/2002 cannot be extended to the employees of other Units in view of the different appointment and service conditions applicable to the relevant Unit in which they are working. Accordingly, it was decided that there was no necessity at that time to unify/enhance the retirement age of employees appointed prior to 16/01/2002 of Kalamassery, Palakkad and Mala Units to 60 years as is applicable to Athani Unit of KAMCO and that the _status quo_ shall continue. ## W.P.(C). Nos.6858/2010 & 12428/2010 ## -:3:- Subsequently, there were new developments whereby the unification of conditions of service was taken up by the Corporation. Ext.P4 produced in W.P.(C).No.12428/2010 is the proposal made by the Corporation before the Government after several rounds of discussions with Trade Unions and after signing of Memorandum of Settlement between Trade Unions and the Management and also after considering the report of the sub committee of the Board of Directors. The Government went into various aspects and accorded sanction for the unification of service conditions of the employees of all the four Units as per Ext.P5. Ext.P6 in W.P.(C).No.12428/2010 is the Office Order issued for implementing the same. 5. The petitioner in W.P.(C).No.6858/2010 was initially appointed in Athani Unit. Thereafter, he resigned and later got an appointment in Palakkad Unit as Assistant Engineer. Ext.P3 is the order of appointment. The petitioner has also raised similar prayers in the writ petition. It is pointed out that in the light of unification of the conditions of service, age of retirement being part of conditions of service, the same is applicable to persons who were appointed prior to 16/01/2002. 6. Respondent Nos.2 and 3 have filed detailed counter affidavits opposing the prayers of the petitioners. It is ## W.P.(C). Nos.6858/2010 & 12428/2010 ## -:4:- pointed out that the bye-laws framed, as far as Athani Unit is concerned, are applicable to the then Officers and Workmen. The service conditions of the Officers and Workmen of other Units were different altogether. Ext.R2 (a) is the Judgment in O.P.No.23000/2000. Ext.R2(b) in W.P.(C).No.6858/2010 is the copy of the Government Order dated 31/03/2009. It is also pointed out that Ext.R2(e) resolution was taken by the Board on 04/11/1994 wherein once again it was reiterated that the age of retirement of all the employees will be 58 years. Subsequently, on 16/01/2002, the Board of Directors resolved to bring down the retirement age of employees to 58 years in respect of future appointments in Athani Unit and Corporate Office of the company as per Ext.R2(f). The Certified Standing Orders were also amended and Ext.R2(g) is the notice evidencing the same. 7. It is submitted by the learned counsel appearing for the petitioners that as far as Officers appointed prior to 16/01/2002 are concerned, the benefit of enhancement of retirement age will have to be applied to them also. Otherwise, it will be discriminatory. It is pointed out that it is not a case where the petitioners are seeking unification of retirement age as applicable to employees of other Public Sector units. Herein, the unification is ## W.P.(C). Nos.6858/2010 & 12428/2010 ## -:5:- sought with respect to different Units of the very same Corporation and, therefore, the discrimination cannot be justified. 8. The learned Standing Counsel for the Corporation submitted that the conditions of service under which the appointments were made and the fact that concerned officers accepted the appointment on such conditions are relevant to decide the retirement age. The recent decision of the Apex ## Court in **Nagaland Senior Government Employees Welfare** ## **Association and others v. State of Nagaland and others** **[(2010) 7 SCC 643]** is also relied upon on this context. The petitioners, especially, the Association who are the petitioners in W.P.(C).No.12428/2010 have already moved the Government by filing Ext.P7 representation pointing out that the Government order dated 05/10/2009 Ext.P5 will not stand in the way for considering enhancement of retirement age in the light of unification of the conditions of service. 9. As it is a policy decision to be taken by the Government, it is only proper that the Government considers Ext.P7 representation and passes appropriate orders after hearing the office bearers of the Association expeditiously, at any rate, within two months from the date W.P.(C). Nos.6858/2010 & 12428/2010 -:6:- of receipt of a copy of this Judgment. Since the petitioner in W.P.(C).No.6858/2010 is due to retire on 31/10/2010, it is upto him to file a separate representation along with a copy of this Judgment before the Government for considering his request. While disposing of the representation, he will also be heard. It is made clear that the retirement of the petitioner will be subject to the decision to be taken by the Government as directed above. The writ petitions are disposed of as above. No costs. **(T.R. Ramachandran Nair, Judge.)** ms