Antony A.J. and others v. State of Kerala and High Court of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 29TH DAY OF JANUARY 2018 / 9TH MAGHA, 1939** **WP(C).No. 19295 of 2015** ## **PETITIONERS:** **1 ANTONY A.J., JOINT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM. 2 S. ABDUL SAMAD, JOINT RESIGRAR, HIGH COURT OF KERALA, ERNAKULAM. 3 C.S. DIVAKARAN, JOINT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** |**4**|**KUMARI SHEEBA,**| |---|---| ||**DEPUTY REGISTRAR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM.**| **5 T. VENUGOPAL, CHIEF LIBRARIAN, HIGH COURT OF KERALA, ERNAKULAM. 6 BABY C.K., ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** **7 C. DIVAKARAN, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** **8 K.P. BABU, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** **WP(C).No. 19295 of 2015** **9 A.KRISHNAN NAIR, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** **10 LALY JOSEPH JOHN, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** **11 INDIRAKUTTY, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM. 12 T.J.MARTIN, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM. 13 C.C.ANILKUMAR, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM.** **14 P.A. RADHAKRISHNAN, ASSISTANT REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM. 15 PRASANNA V.P., OFFICE ATTENDANT, HIGH COURT OF KERALA, ERNAKULAM.** **16 CLARA M.G., OFFICE ATTENDANT, HIGH COURT OF KERALA, ERNAKULAM.** **17 AGNES P.M., OFFICE ATTENDANT, HIGH COURT OF KERALA, ERNAKULAM.** **18 K.J. JOSEPH CIVIL SERGEANT, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS.SRI.BENOY THOMAS SRI.PAULSON THOMAS** **WP(C).No. 19295 of 2015** ## **RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **2. HIGH COURT OF KERALA REPRESENTED BY THE REGISTRAR GENERAL, HIGH COURT OF KERALA, KOCHI-31.** ## ***ADDL. RESPONDENTS 3 & 4 ARE IMPLEADED:** **3. THE KERALA HIGH COURT STAFF ASSOCIATION, REG. NO.14/57, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **4. ACHILLESS A.B., SECRETARY, THE KERALA HIGH COURT STAFF ASSOCIATION, REG. NO.14/57, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **ADDL. RESPONDENTS 3 & 4 ARE IMPLEADED AS PER ORDER DATED 24.11.2017 IN IA.18167/2017.** ## ***ADDL. 5TH RESPONDENT IMPLEADED:** **KERALA HIGH COURT GAZETTED OFFICERS ASSOCIATION, (RE. NO.168/1973), HIGH COURT BUILDINGS, KOCHI-682 031, REP. BY ITS PRESIDENT, REJI M. MATHEW.** - **ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 12.12.2017 IN IA.20178/2017.** ## **R1 BY SPL. GOVERNMENT PLEADER SRI.N.MANOJ KUMAR** **R2 BY ADVS.SMT.V.P.SEEMANDINI (SR.)** **SRI.M.R.ANISON ADDL.R3 & R4 BY ADVS.SRI.SANTHOSH MATHEW** **SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.MARIA ROY** **ADDL. R5 BY ADVS. DR.K.P.PRADEEP SMT.T.THASMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.12.2017, THE COURT ON 29.01.2018 DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 19295 of 2015 (R)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **P1 – TRUE COPY OF THE KERALA HIGH COURT SERVICES (DETERMINATION OF RETIREMENT AGE) ACT 2008.** - **P2 - TRUE COPY OF GO(P) NO. 183/2012/FIN. DATED 26.3.12.** - **P3 - TRUE COPY OF G.O(P) NO.469/2014/FIN. DATED 31.10.14.** - **P4 - TRUE COPY OF REPORT OF THE KERALA PUBLIC EXPENDITURE REVIEW COMMITTEE FOR THE YEAR 2011-12.** - **P5 - TRUE COPY OF INFORMATION OBTAINED FROM THE HONOURABLE CALCUTTA HIGH COURT UNDER R.T.I. ACT.** - **P6 - TRUE COPY OF REPRESENTATION GIVEN BY THE STAFF AND OFFICERS OF THE HIGH COURT OF KERALA BEFORE THE HON'BLE CHIEF JUSTICE DATED 09.4.2015.** - **P6(A) - TRUE COPY OF JUDGMENT IN WA 864/2008 DATED 08.8.2008.** - **P7 - TRUE COPY OF G.O.(P) NO.20/2013/FIN DATED 07.1.2013.** - **P8 - TRUE COPY OF G.O.(P) NO.136/2013/FIN DATED 16.3.2013.** - **P9 - TRUE COPY OF G.O(P) NO.208/2013/FIN. DATED 07.5.2013.** - **P10 - TRUE COPY OF CENTRAL GOVERNMENT NOTIFICATION DATED 22.12.2003.** - **P11 - TRUE COPY OF G.O(MS) NO.8/2014/H&FWD DATED 04.1.2014.** - **P12 - TRUE COPY OF ORDER DATED 20.8.2015 IN IA.12221/2015 IN WPC.19295/2015** - **P13 - TRUE COPY OF THE ORDER DATED 22.9.2015 IN WPC.19295/2015** - **P14 - TRUE COPY OF THE JUDGMENT IN WPC.11372/2014 DATED 13.10.2015 AS REPORTED IN 2015(4) KLT 741** - **P15 - TRUE COPY OF JUDGMENT OF THE DIVISION BENCH IN WRIT APPEAL NO.333/2016 IN WPC.11372/2014 DATED 12.7.2016** - **P16 - TRUE COPY OF THE REPRESENTATION DATED 16.11.2015** **WP(C).No. 19295 of 2015 ®** - **P17 - TRUE COPY OF THE COVERING LETTER SENT BY THE GOVERNMENT TO ONE OF THE PETITIONERS IN WPC.11372/2014 ALONG WITH G.O(RT) NO.966/2016/FIN. DATED 30.1.2016** - **P18 - TRUE COPY OF G.O.(R.T) NO.966/2016/FIN. DATED 30.1.2016** - **P19 - TRUE COPY OF THE RELEVANT PORTIONS OF THE REPORT OF THE TENTH PAY REVISION COMMISSION, KERALA 2014 DATED 10.7.2015 IN RESPECT OF THE STATE GOVERNMENT EMPLOYEES AND TECHERS** - **P20 - TRUE COPY OF THE G.O.(MS) NO.32/2015/FIN DATED 16.01.2015** - **P21 - TRUE COPY OF THE RELEVANT PORTION OF THE SEPARATE REPORT ON PAY AND ALLOWANCES OF THE HIGH COURT STAFF MADE BY THE TENTH PAY REVISION COMMISSION MADE PURSUANT TO THE REQUEST MADE BY THE CHIEF JUSTICE TO THE GOVERNMENT UNDER ARTICLE 229** - **P22 - TRUE COPY OF THE REPRESENTATION MADE BY THE KERALA HIGH COURT GAZETTED OFFICERS' ASSOCIATION TO THE HON'BLE CHIEF JUSTICE OF KERALA DATED 10.07.2017** ## **RESPONDENT(S)' EXHIBITS:** - **R2(A) - TRUE COPY OF LETTER ADDRESSED TO THE CHIEF SECRETARY TO GOVT. DATED 3.11.2017** - **R3(1) - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ASSOCIATION BEFORE THE HONOURABLE CHIEF JUSTICE OF THIS HONOURABLE COURT ON 13.10.2017** - **R3(2) - TRUE COPY OF THE GOVERNMENT ORDER DATED 27.11.2017 OF THE HEALTH AND FAMILY WELFARE (A) DEPARTMENT** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.19295 of 2015** **= = = = = = = = = = = = = = = Dated this the 29[th] day of January, 2018** ## **JUDGMENT** ## 1. This writ petition is filed with the following prayers:- i. declare that the prescription of retirement age on superannuation of officers and servants of the High Court of Kerala in Ext.P1 as on the last day of the month which he attains the age of 55/56 years is discriminatory, arbitrary irrational and violative of Article 14 and therefore void, inoperative and unenforceable and further issue a writ of mandamus to the respondents not to enforce the same. ii. Issue a consequential injunction restraining the respondents from compulsorily retiring the petitioners before they attain the age of 60 or at any rate 58 as the case may be to be decided in this case. iii. Declare that the officers and servants of the High Court of Kerala including the petitioners cannot be classified on the basis of the contributory benefit pension scheme implemented by Ext.P8 KSR amendment r/w.rule 37(2) of the Kerala High Court Service Rules 2007 to the employees appointed after 1.4.2013, in the matter of determination of retirement age as 60, the same being discriminatory and violative of Article 14 and that all officers and servants belonging to the service of the High Court of Kerala are entitled for determination of their age of superannuation as 60 irrespective of their date of appointment, age of exit from contributory pension scheme as well as nature of pension scheme. iv. Declare that sub rule (af) of rule 60 of part I KSR incorporated by Ext.P3 amendment classifying the employees to whom rule 60 of part 1 KSR is otherwise applicable in the matter of determination of their age of superannuation as those appointed before 1.4.2013 and after 1.4.2013 based on the nature of pension for the purpose of determination of retirement age on superannuation as 60 is discriminatory and violative of W.P.(C).No.19295/15 2 article 14, and that rule 60 of part I KSR may be read down dehors clause (a) and (c) of the existing rule 60 as well as dehors the words 'appointed on or after 1[st] day of April 2013 and who is a member of National Pension System' in the clause (af) newly incorporated by Ext.P3 amendment and that the petitioners are entitled to have their retirement fixed as 60 accordingly without the classification on the basis of pension. v. Or in the alternative declare that section 2 of Ext.P1 Act prescribing the age of superannuation of High Court Staff as 55/56 is very law, arbitrary, irrational, discriminatory and violative of Article 14, void and nonest and further that the other sections of the Act being inseparable and not severable from the rest and having no independent existence, Ext.P1 Act itself is nonest and consequently rule 31(1) of the Kerala High Court Service Rules 2007 prescribing the age of retirement on superannuation of High Court Staff as 58 made by the Hon'ble Chief Justice under Article 229(2) of the Constitution of India will revive and that the petitioners can continue upto the age of 58 and this Hon'ble Court may be pleased to issue consequential directions to the respondents accordingly. vi. Or in the alternative declare that the ordinary legislative power of the state legislature under Article 245 of the Constitution of India is subject to the basic feature of the constitution viz. Independence of judiciary and separation of powers between the 3 organs of 'state' envisaged in Article 50 r/w Article 229(2) and that Ext.P1 Act is void, nonest and inoperative being violative of this Constitutional scheme. vii. Declare that the words 'subject to any other law made by the state legislature' used in Article 229(2) of the Constitution of India only means the laws which the state legislature is otherwise competent to make without affecting the independence of judiciary and separation of powers which are basic features of the Constitution envisaged in Article 50 r/w.Article 229(2) and that such competing legislative fields are unknown W.P.(C).No.19295/15 3 to the Constitutional scheme and therefore the subordinate legislative field coming within the domain of he Chief Justice under Article 229(2) directly authorised by the Constitution as its delegate is excluded from the field of any other laws used therein by necessary implication. viii. Declare that Ext.P1 Act is against the basic feature of the Constitution viz. Independence of judiciary and separation of powers between the 3 organs of the 'state' envisaged in Article 50 r/w. Article 229(2) of the Constitution of India and therefore ultra vires the legislative powers of the state legislature under Article 245 of the Constitution and hence void, nonest and inoperative and that consequently rule 31(1) of the Kerala High Court Service Rules 2007 prescribing the age of retirement on superannuation of High Court staff as 58 made by the Hon'ble Chief Justice under Article 229(2) of the Constitution of India will revive and that the petitioners can continue upto the age of 58.” 2. The contention of the petitioners, who are officers of the Staff of the High Court of Kerala, is that the age of retirement now fixed as per Section 2 of the Kerala High Court Services (Determination of Retirement Age) Act, 2008 is too low and is therefore discriminatory, arbitrary, irrational and is liable to be struck down. It is contended that the Chief Justice had recommended the raising of the age of superannuation to 58 and the rejection of the proposal by the Government is unsustainable in view of the W.P.(C).No.19295/15 4 clear provisions of Article 229(2) of the Constitution of India. 3. The learned counsel for the petitioner has placed reliance on the large volume of the case laws pertaining to the issue of age of retirement and the factors which have to be taken into account for deciding the viability of such age. Pleadings have been placed on record by the 1[st] respondent as well as impleaded additional respondents 4 to 6. I notice that this Court in its decision reported in **Valsakumari v. State of Kerala** [2008(1) KLT 672] had considered the issue of the power to issue ordinance retaining the age of retirement of staff of High Court at par with the retirement age of Government servants. This Court had held that the legislature had the competence to pass a law fixing the age of retirement of the staff of the High Court and that such law, even if it is later in date to a recommendation made by the Chief Justice under Article 229(2) would prevail over such recommendation and would be binding on the members of the staff of the High Court as well. It was W.P.(C).No.19295/15 5 further held that the Kerala High Court Services (Determination of Retirement Age) Ordinance 2007 (Kerala) is consolidated and valid. ## 4. The findings of the learned single Judge are as under:- “Consequent upon the elaborate discussion as undertaken above, I consider it appropriate to formulate my conclusions as hereunder: (a) Ordinance No. 61/07 dated 22.10.2007 viz., The Kerala High Court Services (Determination of Retirement Age) Ordinance, 2007 is constitutional and valid. (b) The retrospective effect given to the provisions of the Ordinance with effect from 1.1.2007 cannot be considered as invalid, unconstitutional or otherwise arbitrary. The Ordinance is a 'valid piece of law' within the meaning of Art.13 of the Constitution of India. (c) The subjective satisfaction of the Governor and promulgation of the Ordinance under Art.213 of the Constitution is beyond the pale of judicial scrutiny. (d) The doctrine of 'transferred malice' is not available to be invoked in the case of an Ordinance promulgated under Art.213 of the Constitution of India, which has all the attributes and features of a primary legislation passed by the competent legislature. (e) Any legislative exercise undertaken by the State legislature will be confined to Art.229(2) of the Constitution and will not, in any manner, impinge upon the conferment of the exclusive constitutional power on the Chief Justice under Art.229(1) of the Constitution of India. (f) The provisions of the Ordinance, which only prescribe the age of retirement of the staff of the High Court, do not impinge upon the exclusive constitutional power of the Chief Justice under Art.229(1) of the Constitution. It does not suffer from any unconstitutionality or infirmity. W.P.(C).No.19295/15 6 For all these reasons, I do not find any merit in these Writ Petitions. They are, therefore, liable to be dismissed and I do so.” 5. By Exhibit P6(a) judgment the findings of the learned single Judge were affirmed. However, it was directed as ## follows:- “We see no ground to differ from the finding of the learned single Judge. Since we are agreeing with the findings of the learned single Judge on each and every aspects, we not reiterating the same. Hence, considering the increase in life expectancy, increase in the retirement age of the Central Government Employees(60) and considering the retirement age of the employees in many of the High Courts, it is a case to be considered by the Government while re-notifying the ordinance again. But in the face of valid law, this Court cannot take a different view than that taken by the learned single Judge. Appeals fail and is dismissed accordingly.” 6. It was thereafter that Exhibit P1 Kerala High Court Services (Determination of Retirement Age) Act, 2008 was enacted. The said enactment is presently under challenge. 7. The contention of the learned counsel for the petitioner is that the aspects directed to be considered in Exhibit P6(a) W.P.(C).No.19295/15 7 judgment have been completely ignored while enacting Exhibit P1. Though several judgments have been cited before me and voluminous pleadings have been placed on record, I am concerned at this stage only with the direction contained in Exhibit P6(a) judgment and the validity of Exhibit P1. The question whether the legislature has the power to enact the law with regard to the age of retirement of the High Court staff as also the validity of the said ordinance having been answered conclusively by a learned single Judge in **Valsakumari's case** (supra) and confirmed in Exhibit P6 (a), the only issue which remains is regarding the directions of the Division Bench's judgment. The direction was clearly to the Government to consider the three aspects of the matter at the time of repromulgation of the ordinance. I think that it is beyond any pale of doubt that this Court cannot issue directions to the legislature to consider specific factors while enacting a law. The legislature being the law making body which has the confidence of the majority is competent to address all that it considers relevant while enacting the law. The direction W.P.(C).No.19295/15 8 of a Division Bench of this Court in Exhibit P6(a) was only to the Government on its executive side to consider while re-promulgating the ordinance. This cannot, by any stretch of imagination be construed as a direction to the legislature to consider the aspects which this Court though relevant while enacting a law. 8. The further contention of discrimination between persons appointed after 1.4.2013 in the matter of age of retirement is also not sustainable in view of the fact that there is a clear intelligible differentia between persons appointed before and after the date of implementation of the contributory pension scheme and the said classification cannot be held to be unreasonable or irrational. 9. It is beyond dispute that fixing the age of retirement is within the legislative competence of the State. The contention that Ext.P3amendment is so inherently arbitrary and unreasonable and cannot stand the test of Article 13 of the Constitution of India is not substantiated by any material in W.P.(C).No.19295/15 9 the instant case. In the above view of the matter, the arguments raised in this writ petition are devoid of merits. The writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj