D. Lathika v. State of Kerala & Others

W.P(C).No.9508/2015 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY ,THE 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940** **WP(C).No. 9508 of 2015** ## **PETITIONER/S:** **D.LATHIKA AGED 57 YEARS W/O. SATHYADEVAN.V., "SUNETHRA", CHERUKUNNU, VARKKALA POST, THIRUVANANTHAPURAM - 695 141.** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY, INDUSTRIES (E)**| ||**DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695**| ||**001.**| |**2**|**THE DIRECTOR**| ||**DIRECTORATE OF COIR DEVELOPMENT, MANI BHAVAN,**| ||**SASTHAMANGALAM, THIRUVANANTHAPURAM - 695 010.**| |**3**|**KERALA COIR WORKERS WELFARE FUND BOARD**| ||**HEAD OFFICE, ALAPPUZHA - 688 007, REPRESENTED BY ITS**| ||**CHIEF EXECUTIVE OFFICER.**| |**4**|**REGIONAL OFFICER**| ||**KERALA COIR WORKERS WELFARE FUND BOARD, NEAR RAILWAY**| ||**STATION, CHIRAYINKEEZHU, THIRUVANANTHAPURAM - 695**| ||**304.**| ||**BY ADVS.**| ||**SMT.RASHMI. K.V., SC, CO.OP. SERVICE EXAMINATION**| ||**BOARD**| ||**SMT.RASHMI. K.V., SC, KERALA COIR WORKERS WELFARE**| ||**FUND BOARD**| ||**SRI .SUNIL KURIAKOSE (GP)**| ||**SRI.P.M.M.NAJEEB KHAN SC KCWWFB**| ## **OTHER PRESENT:** **WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).No.9508/2015 2 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No. 9508 of 2015-K ------------------------------------------- _Dated this the 14[th] day of September, 2018_ ## _**JUDGMENT**_ The petitioner, who was working as a Lower Division Clerk in the Kerala Coir Workers Welfare Fund Board (`Board' for short) has filed this writ petition seeking enhancement of retirement age. The petitioner attained the age of 56 years on 31.5.2013. The Board had in its meeting held on 01.10.2012 resolved to enhance the retirement age of the staff from 56 to 58 years with effect from 31.05.2012. The said proposal was forwarded to the Government requesting for approval. The petitioner had filed W.P(c).No.13056 of 2013 seeking direction to allow her to continue till she attained the age of 58 years. This Court as per Ext.P2 judgment directed the 1[st] respondent Government to take a decision on the proposal forwarded by the Board on enhancement of retirement age. Simultaneously this Court permitted the petitioner to continue in service till the decision of the 1[st] respondent on the retirement age or until she attained the age of 58 years whichever is earlier with a rider that in case the decision is adverse to her, she would not be eligible for any remuneration for the period during which she continued in service beyond 56 years. 2. The Government rejected the proposal as per Ext.P3 order stating that the retirement age of other welfare fund boards under the Government of Kerala where the EPF Pension Scheme had been implemented continued to be 56 years and W.P(C).No.9508/2015 3 therefore the request cannot be considered. One of the reasons stated for seeking enhancement was that the welfare fund board was covered under the EPF Pension Scheme and the employees have to remit the pension contribution upto the age of 58 years. The petitioner has filed this writ petition challenging Ext.P3 order. Relying on the judgments in _**Kavirajan v. KSBC Ltd**_ : 2007(2) KLT 917, _**Chandran T.V and Ors. v. State of Kerala**_ : 2010 (3) KHC 377, the petitioner claimed that the retirement age is liable to be enhanced and that Ext.P3 order passed by the Government is liable to be set aside. According to the petitioner, the retirement age in 90% of the Public Sector Undertakings is 58 years. It is also their case that the enhancement would not cause any financial loss to the Government. 3. On the other hand, the learned Government Pleader relying on the judgment in _**Managing Director KSBC & another v. P.B.Gopi & another**_ :2015 (3) KHC 804 and _**State of Kerala & another v. Kerala Land Development Board**_ : ILR 2016 (2) Ker 18 argued that when the Government has rejected the proposal for enhancement of retirement age and it is the policy decision of the Government, not to enhance retirement age, the petitioner does not have any right to insist enhancement and therefore the order passed by the Government is not liable to be interfered with. 4. The Board is constituted under Section 6 of the Kerala Coir Workers Welfare Fund Act. As per Section 3 the Act, the Government is to frame and publish the Welfare Fund Scheme and the Government is to appoint the Directors of the Board. Section 6 provides for the constitution of the Board. Board shall be a body W.P(C).No.9508/2015 4 corporate which shall consist of such number of Directors not exceeding 15 in number. The Chairman is appointed from among the members of the Board. Section 9 provides that the Government may appoint a Chief Executive Officer and such number of officers and staff to assist the Board in the discharge of its functions and duties under the Act. As per Sub section 2 of Section 9 the method of appointment, salary, allowance, discipline and other conditions of service of Chief Executive Officer and other officers and staff appointed under such section (1) shall be as may be prescribed. From Section 9 it is seen that even the appointment of the staff of the Board is to be made by the Government. Section 21 provides that the Government may after consultation with the Board, give to the Board, general directions to be followed by the Board. Sub section 2 further provides that in exercise of powers and performance of duties under the Act, the Board shall not depart from any directions issued by the Government except with previous permission of the Government. Section 23 empowers the Government to supersede the Board when conditions prescribed in that Section warrant. The Kerala Coir Workers Welfare Fund Rules, 1989 are framed in exercise of powers conferred under Section 29(1) of the Act. Rule 18 provides that the Government may appoint such number of officers and staff as it considers necessary to assist the Board. Sub rule 3 of Rule 18 provides that the method of appointment, salary, allowances festival and other service, conditions of service of officers and staff other than those who are appointed on deputation shall be as fixed by the Board with the prior approval of the Government. 5. Admittedly the retirement age fixed is 56 years. Even if the Board takes W.P(C).No.9508/2015 5 a decision to enhance the same, such a decision cannot be implemented without the prior approval of the Government. When the power to appoint the staff itself is vested with the Government and the conditions of service of the officers and staff are to be fixed with the prior approval of the Government and the Government is conferred with the power to issue directions to the Board, the order passed by the Government, in accordance with its policy in respect of the retirement age which form one of the the service conditions of the staff, cannot be said to be without authority or illegal. I have already considered a similar issue in my judgment dated 04.04.2017 in W.P.(C) No.7107 of 2016 and connected cases filed by the employees of Travancore Cochin Chemicals Ltd (TCC), another Government Company, in which the request for enhancement of retirement age, was not allowed. There the original decision of the TCC to enhance the retirement age was cancelled, after Government passed orders rejecting approval. Those writ petitions were dismissed, following the judgment of the Division Bench of this Court in _**State of Kerala v. Kerala Land Development Corporation Employees Union**_ [I.L.R. 2016 (2) Kerala 81] in which the decision of the Government in rejecting the recommendation of Board of Directors of Kerala Land Development Corporation for enhancement of the retirement age, was upheld. In the case of employees of Kerala State Financial Enterprises, also the order passed by Government was upheld, by judgment dated 12.07.2017 in W. P.(C) No. 3267 of 2017 and connected cases. 6. In **K.Nagaraj v. State of A.P** [1985 (1) SCC 523] the Apex Court held that the policy issues like the age of retirement are not liable to be interfered with by W.P(C).No.9508/2015 6 the courts in exercise of judicial review and it is an exercise which the Administrator and the legislature have to undertake. There the employees challenged the lowering of retirement age from 58 years to 55 years. The following observations in that judgment are relevant, which read as follows: _“28. xxxx xxxIt is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the Legislature is shown to violate recognised norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominantly by that consideration, it cannot be struck down as arbitrary or irrational. We would only like to add that the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation of age of retirement has minute and multifarious dimensions which shape the lives of citizens. Therefore, it is vital from the point of view of their well-being that the question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital for the welfare of the citizens is, of necessity, vital for the survival of the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose.”_ In this case also the same principle applies and the policy decision of the Government not to enhance the retirement age is not liable to be interfered with 7. In the above circumstances, the order Ext.P3 does not suffer from any illegality. 8. The petitioner has prayed for salary on account of her continuance in service on the basis of the interim order. But the interim order itself was on condition W.P(C).No.9508/2015 7 that the petitioner shall not be allowed to draw salary. Even in the earlier writ petition, the petitioner was allowed to continue only without salary. When the petitioner took the risk of continuing beyond her retirement age on the basis of such an interim order, I do not find any reason to direct the respondents to pay salary to the petitioner. Accordingly, the writ petition is dismissed. **Sd/** _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(C).No.9508/2015 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**EXT.P1: TRUE COPY OF THE BOARD RESOLUTION**| |---|---| ||**DATED 1.10.2012 REGARDING THE ENHANCEMENT OF**| ||**THE RETIREMENT AGE OF THE STAFF FROM 56**| ||**YEARS TO 58 YEARS.**| |**EXHIBIT P2**|**EXT.P2: TRUE COPY OF THE JUDGMENT DATED**| ||**29.05.2013 IN WRIT PETITION (C)**| ||**NO.13056/2013.**| |**EXHIBIT P3**|**EXT.P3: TRUE COPY OF THE GOVERNMENT ORDER**| ||**DATED 27.02.2015.**|