A.M. Janaki v. Board of Directors of Kerala State Women’s Development Corporation, Kerala State Women’s Development Corporation, and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935 WP(C).No. 28431 of 2013 (D) ---------------------------- PETITIONER(S): ------------------ A.M.JANAKI NARAYANA NILAYAM, THANDAPURAM, MOOLAD.P.O. VIA NADUVANNOOR, KOZHIKODE. (WARDEN KERALA STATE WOMEN'S DEVELOPMENT CORPORATION WORKING WOMEN'S HOSTEL MANANTHAVADY, WAYANAD). BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------- 1. THE BOARD OF DIRECTORS OF THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION CHENNAMKULAM, REPRESENTED BY ITS CHAIRPERSON SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. 2. KERALA STATE WOMEN'S DEVELOPMENT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, CHENNAMKULAM SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. 3. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT SOCIAL WELFARE DEPARTMENT THIRUVANANTHAPURAM-695 001. R3 BY GOVERNMENT PLEADER SMT.LOWSY A. R1,2 BY SRI.SUNIL V.MOHAMMED, SC, K.S.W.D.C THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28431 of 2013 (D) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ EXHIBIT-P1:COPY OF APPOINTMENT ORDER NO.KSWDC 2588/92 DATED 04.05.1995 OF THE 2ND RESPONDENT. - EXHIBIT-P2:COPY OF THE JUDGMENT DATED 04.07.2006 IN WP(C) NO.6441/2004. - EXHIBIT-P3:COPY OF THE ORDER NO.1914/A4/KSWDC/03 DATED 05.12.2006 OF THE 2ND RESPONDENT. - EXHIBIT-P4:COPY OF THE ORDER NO.KSWDC/A4/HOSTEL/WARDEN/06 DATED 15.12.2006 OF THE 2ND RESPONDENT. - EXHIBIT-P5:COPY OF ORDER NO.KSWDC/A4/GEN/HOSTEL/10-11 DATED 25.04.2011 OF THE 2ND RESPONDENT. - EXHIBIT-P6:COPY OF THE NOTICE NO.KSWDC/A4/GEN HOSTEL/10-11 2065 DATED 30.09.2013 OF THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ==========================** ## **W.P.(C). No.28431 OF 2013** ## **==========================** Dated this the 27[th] day of November, 2013 ## **JUDGMENT** The petitioner is presently working as Hostel Warden in the Working Women's Hostel at Mananthavadi under the Kerala State Women's Development Corporation. This writ petition has been filed mainly with the following prayers:- - I. to issue a writ of certiorari calling for the records leading to the issuance of Exhibit-P6 and quash the same; - II.to declare that the petitioner is entitled to continue as Warden in the Working Women's Hostel of the second respondent Corporation, till she attains the age of 70 years. - III.to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 and 2 to regularize the service of the petitioner during the period from 17.2.2004 to 16.12.2006 and to disburse all consequential benefits due to her. 2. It is evident from prayer Nos.1 and 2 that the grievance of the petitioner is the direct result of reduction of the age of retirement **W.P.(C).28431/13** 2 of employees under the second respondent-Corporation from 70 to 65 years. Various contentions have been raised to challenge the said action in reducing the age of retirement. It is the contention of the petitioner that the age of superannuation cannot be unilaterally reduced and therefore, the action on the part of the respondents in reducing the age of superannuation from 70 to 65 violates the principles of natural justice and it is also violative of Article 311 (2) of the Constitution of India. It is further contented that respondents 1 and 2 are not maintaining uniformity in the matter of fixation of retirement age of the employees. Thus, it is evident from the pleadings and reliefs sought for that the challenge of the petitioner is regarding the competence of the respondent-Corporation in reducing the age of superannuation of its employees. The third prayer pertains to regularisation of service of the petitioner from 17.2.2004 to 16.12.2006 and to disburse all consequential benefits. The petitioner was constrained to make such a prayer as on an earlier occasion she was compulsorily retired from service on attainment of the age of **W.P.(C).28431/13** 3 superannuation then fixed viz., at the age of 60 years. Taking into account the fact that the age of superannuation of the employees was enhanced to 70 years, the petitioner approached this Court by filing W.P.(C).No.6441 of 2004 challenging her termination from service as per Ext.P3, referred as such in the said writ petition. As per Ext.P2 judgment, Ext.P3 order viz., the impugned order in W.P.(C).No.6441 of 2004, was set aside and the management of the first respondent was directed to reinstate the petitioner in service forthwith. A further direction was given thereunder to take appropriate decision in the matter of regularisation of the period between the date of Ext.P3 and date of reinstatement of the petitioner as early as possible. Essentially, the contention of the petitioner is that, though in compliance with the directions, the petitioner was reinstated in service, no decision was taken to regularize the service of the petitioner during the period from 17.2.2004 to 16.12.2006 and to disburse all consequential benefits due to her. It is in that context prayer No.3 was sought for. **W.P.(C).28431/13** 4 3. Now, I will firstly deal with the entitlement of the petitioner to relief Nos. 1 and 2 as they got link with the challenge against the action on the part of respondents in reducing the age of superannuation from 70 to 65. The said question is no more res integra in the light of the Full Bench Decision of this Court in **Srinivasan v. State of Kerala (1967 KLT 853)** and in **Kerala Gazetted Officers Front & others v. State of Kerala [1987 (1) KLT 336]** . In the decision in **Srinivasan'** s case (supra), the Full Bench held that the principle regarding the legislative motive applies to law making authorities whether a plenary legislature, or an executive or other authority invested by statute with legislative powers. Further it was held in such circumstances that the question is only one of competence and not of motive, much less of expediency or even of propriety. It was held therein that the reduction of the retirement age fall within the competence of the Government. As regards application of Article 311 of the Constitution of India it was held that it would apply only to a case of imposition of one or the other of the major **W.P.(C).28431/13** 5 penalties mentioned in the said Article and it would not be applicable to a case of termination of services on the ground of superannuation of compulsory retirement. The termination of service occurring as a result of an amendment of service rules reducing the age of superannuation is not available to be attacked on the ground of being violative of Art.311(2) of the Constitution. Relying on the decision in **Srinivasan** 's case (supra), it was held that prescription of the age of superannuation is essentially the choice of the Executive. I am of the view that in the light of the aforesaid decisions, the challenge of the petitioner against the action on the part of the respondents in reducing the age of superannuation from 70 to 65 is liable to fail as it was well within the competency of the respondent Corporation. As regards the third prayer, in the light of Ext.P2, respondents are bound to take appropriate decision regarding the regularisation of the period from 17.2.2004 to 16.12.2006. The respondents should have taken such a decision by now in the light of Ext.P2 despite the fact that no specific time was actually stipulated therefor. In such circumstances, while **W.P.(C).28431/13** 6 rejecting prayer Nos.1 and 2, this writ petition is disposed of with a direction to the respondents to take appropriate decision regarding regularisation of the service of the petitioner for the period from 17.2.2004 to 16.12.2006 and to disburse all consequential benefits taking note of the fact that pursuant to Ext.P2, the petitioner was reinstated and allowed to continue till the attainment of the age of 65. This shall be done expeditiously, at any rate, within two months from the date of receipt of a copy of this judgment. Such a decision shall be taken before determining the retiral benefits payable to the petitioner. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).28431/13** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).28431/13** 8