Dr. M. Lalitha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935** ## **WP(C).No. 7628 of 2011 (C)** **---------------------------** ## **PETITIONER(S):** **--------------------------** **DR.M.LALITHA, (LIBRARIAN-GRADE I STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (SCERT), MARUTHI, ERA-32 TC 36/864, OPP.GUPS, PALKULANGARA THIRUVANANTHAPURAM-, 695 008.** **BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REP. BY ITS SECRETARY,** **DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT THIRUVANANTHAPURAM.** **2. STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (SCERT) REP. BY ITS DIRECTOR VIDYA BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM-695 012.** **3. GOVERNING BODY OF SCERT,** - **REP. BY ITS MEMBER SECRETARY, VIDYA BHAVAN, POOJAPPURA THIRUVANANTHAPURAM-695 012.** **R1 BY GOVERNMENT PLEADER SMT. BINDU GOPINATH R2 & R3 BY ADVS. SRI.M.K.CHANDRAMOHAN DAS,SC,SCER & TRAI SRI.A.ABDUL KHARIM,SC,SCERT SRI.AHZAR.A, SC, SCERT (B/O) BY ADV. SRI. V.A MUHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7628 of 2011 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT-P1 TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF THE 2ND RESPONDENT** **EXT-P2 TRUE COPY OF THE CLAUSE 64 OF THE SERVICE REGULATION OF THE SCERT, KERALA APPROVED BY THE GOVERNING BODY ON 19.12.1995** **EXT-P3 TRUE COPY OF THE DECISION TAKEN IN FIRST GENERAL BODY MEETING OF 2ND RESPONDENT HELD ON 9.4.2002** ## **EXT-P4 SPECIAL RULES OF SCERT-2006** **EXT.P5 TRUE COPY OF THE CHART SHOWING THE LIST OF DEPARTMENTS AND THE RETIREMENT AGE OF THE EMPLOYEES** ## **EXT.P6 TRUE COPY OF THE G.O. NO.29/2000/CAD DATED 8.9.2000** ## **EXT.P7 TRUE COPY OF THE REPRESENTATION DATED 17.12.2010 SENT BY THE PETITIONER TO THE 1ST RESPONDENT** **EXT.P8 TRUE COPY OF THE REPRESENTATION DATED 29.12.2010 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER** **EXT.P9 TRUE COPY OF THE DECISION ON ITEM NO.21 OF THE 52ND GOVERNING BODY MEETING HELD ON 25.1.2011** **EXT.P10 TRUE COPY OF THE GO(Rt) NO.1321/98/G.EDN. DATED 27.3.1998** **EXT.P11 TRUE COPY OF THE GO (RT) NO 1865/03/GED DATED 20.5.2003** **EXT.P12 TRUE COPY OF THE LETTER NO.29329/P2/96/GED DATED 18.5.2004** **EXT.P13 TRUE COPY OF GO (MS) NO 4/2010 GED DATED 5.1.2010** **EXT.P14 TRUE COPY OF THE RELEVANT PAGES OF GUIDELINES FOR IMPLEMENTATION (JUNE 2012) ISSUED BY MINISTRY OF HUMAN RESOURCE DEVELOPMENT GOVERNMENT OF INDIA** **EXT.P15 TRUE COPY OF THE RELEVANT PAGES OF THE PRESCRIPTIVE PLAN OF SCERT SUBMITTED BY THE RESPONDENT 1 AND 2** ## **RESPONDENTS' EXHIBITS :** **EXT.R1 (a): TRUE COPY OF THE GOVERNMENT ORDER (P) NO.154/09/FIN DATED 24.4.2009** **EXT.R1 (b) TRUE COPY OF THE MINUTES OF MEETING HELD ON 13.1.2010** **WP(C).No. 7628 of 2011 (C) --------------------------EXT.R1 (c) GO (MS) 29/2000 CAD DATED 8.9.2000 EXT.R3 (a) TRUE COPY OF THE MINUTES OF THE GOVERNING BODY MEETING HELD ON 13.1.2010 EXT.R3 (b) TRUE COPY OF THE LETTER SENT TO THE 1ST RESPONDENT ON 5.2.2011** //True copy// P.A. TO JUDGE Shg/ ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.7628 of 2011 ---------------------------------------Dated this the 11[th] day of April 2013 ## **J U D G M E N T** The petitioner is a direct recruitee to the organisation of the 2[nd] respondent. As per the present Rules governing State Council of Educational Research & Training (SCERT), as a general policy the retirement is at the age of 55. According to the petitioner, as per the Employees Provident Fund Scheme, the eligibility to get pension arise only if the person retires at the age of 58. Though several representations and discussions had taken place in the matter relating to enhancement of retirement age, so far no decision has been taken by the Government in this regard. It is also the contention of the petitioner that if she retires at the age of 55, she will not be entitled to get pension under the EPF scheme. This matter received the attention of this Court in respect of various public sector organisations and this Court had, by a series of judgments, directed the W.P.C.No.7628 of 2011 2 Government to increase the retirement age of the employees so that they will be able to get the benefits under the EPF scheme. The judgment in **T.V.Chandran v. State of Kerala** [ _W.P.C.No.22320 of 2008 dated 19/07/2010]_ is relied upon in which learned Single Judge of this Court while considering a batch of writ petitions with respect to employees of The Kerala Artisans Development Corporation Ltd., a State Government Company relying upon judgments in **Kavirajan v. K.S.B.C.Ltd.** _[2007(2) KLT 917],_ **Manoharan.C. and Others v. Kerala State Warehousing Corporation and another** _[ILR 2007(3) Kerala 43]_ directed as under: “ _The petitioners in W.P(C) Nos.6640, 22185,22320 & 28335 of 2008 are also employees of the Kerala State Artisans Development Corporation Ltd. They filed these writ petitions on the eve of their attaining 55 years. Although interim orders enabling them to continue beyond 55 years were not granted, this Court had made it_ W.P.C.No.7628 of 2011 3 _clear that the disbursement of their retirement benefits will be subject to the result of these writ petitions and accordingly, they retired from the service. Now that the writ petitions are allowed and as the petitioners are entitled to continue in service till 58 years, it is directed that the petitioners shall be reinstated in service. It is made clear that if terminal benefits have been received by the petitioners, such benefits will be refunded to the Corporation. It is made clear that although the period during which they are kept out will be treated as continuous service, they will not be entitled to be paid salary or other allowances for the said period.”_ 2. In the case on hand, the petitioner was to retire on 31/03/2011 and she is continuing in service without getting any salary by virtue of interim orders passed by this Court. 3. During the pendency of the writ petition, by virtue of certain subsequent developments, the Government of India, while issuing guidelines of Reconstructing and W.P.C.No.7628 of 2011 4 Reorganisation of Centrally Sponsored Scheme of Teacher Education had proposed for reviewing the present structure of SCERT in tune with the suggestions of NCERT as per Annexure VIII of the reconstructing and reorganisation of centrally sponsored scheme of teacher education and as per the model structure of SCERT in Kerala the pay scale is to be fixed as that of UGC. Ext.P15 is the said guidelines. 4. Going by the said guidelines when UGC scale is applicable, according to the petitioner, the proposal is to increase the age of retirement to 60. But, it is not in dispute that these guidelines had not come into force nor has it been applied to SCERT which may take some time as well. Taking into consideration the aforesaid factors, it is the contention of the petitioner that her retirement age should be increased to 58 atleast so that she will be able to draw the pension from the EPF scheme. 5. Counter affidavit is filed by the 1[st] respondent inter alia contending that after rectifying various anomalies, a W.P.C.No.7628 of 2011 5 draft special rules is under preparation and until the Special Rules are framed, the retirement age has to be taken as 55 only. It is stated that the governing body of SCERT took a decision on 13/01/2010 with regard to the retirement age. But final decision regarding retirement age is to be taken by the Government based on the submission made by SCERT and proposal in that regard sent by the Director of SCERT was received by the Government. Proposal was sent to the Finance Department and the file is under process. It is stated that if the petitioner had moved the respondent for retirement age before one year, appropriate decision would have been given in time. 6. The 3[rd] respondent has also filed a counter affidavit reiterating the contentions taken by the Government in that regard. 7. Heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the 3[rd] respondent. W.P.C.No.7628 of 2011 6 8. Having regard to the factual situation in the above case, it is clear that the proposal is to increase the age of retirement but a decision has not been taken so far. In the meantime if the petitioner retires from service she will not get the benefit of the increased service. The petitioner had approached this Court in 2011 and an interim order had already been passed by this Court based on the judgments of this Court in earlier writ petitions with reference to public sector organisations wherein this Court had directed to increase the retirement age to 58. Though SCERT is not a public sector company, still the very same principle will apply to such organisations also. 9. Having regard to the fact that the Central Government has also framed Ext.P14 guidelines which was accepted by SCERT as per Ext.P15, it is clear that the intention to increase the age of retirement is already in existence. That being the situation, having regard to the fact that the petitioner had already worked in the institution W.P.C.No.7628 of 2011 7 until now and she is about to complete her age of 58 as on 30/04/2013, I am of the view that a direction similar to what has been issued in W.P.C.No.22320 of 2008 is to be issued in favour of the petitioner. In the result, the writ petition is allowed with the following direction: The petitioner's retirement age shall be fixed at 58 years and she shall be paid salary with all other emoluments for the period the interim order was in force. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr