High Court of KeralaSingle Judge2010-11-15Writ petitions dismissed

K. Viswanathan v. State of Kerala & Regional Cancer Centre

Case / Petition Number:WP(C).Nos.24053/2009-B & 30894/2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R. Ramachandran Nair
Judgment Date: 2010-11-15
Court Decision / Holding: Writ petitions dismissed. The retirement age for non-academic RCC staff remains 58 unless the Government issues a policy extending retirement age. The Government is to communicate its decision on Ext.P10 within two months; if policy changes, RCC may act accordingly. There shall be no recovery of pay already paid under interim orders; no costs.
Final Disposition: Writ petitions dismissed

Parties to the Case

Appellants / Petitioners

K. Viswanathan
G. Somasekharan Nair
A.R. Vijayakumaran Nair
V. Unnikrishnan Pillai
Krishnankutty A
Vikramanchettiar B
A. Ajithkumar
R. Sukumaran Nair
S. Vijayan Nair
Ajithkumar S.K.
R. Jayachandran Nair
T.S. Jayachandran Nair

Respondents

State of Kerala represented by Secretary to Government, Health and Family Welfare Department, Govt. Secretariat, Thiruvananthapuram
Regional Cancer Centre, Medical College Campus, Thiruvananthapuram 695 011, represented by its Director

Legal Representation & Advocates

Counsels for Petitioners

• K. Jaju Babu
• M. U. Vijayalakshmi
• Brijesh Mohan
• T. S. Shyam Prasanth
• T. R. Sadeesan

Counsels for Respondents

• K. Sanalkumar
• K. R. Radhakrishnan Nair

Case Synopsis & Summary

These writ petitions challenge the retirement age policy for employees of the Regional Cancer Centre (RCC). The petitioners, security guards and other RCC staff, contend that Ext.P5, an order of the Government, extends the retirement age to 65 for Professors and 62 for academic staff in RCC, and that this parity/benefit should extend to non-academic staff as well, mirroring the policy adopted for SCTIMST (Sree Chitra Tirunal Institute of Medical Sciences & Technology). They seek a direction to allow them to continue in service up to the age of 60, and pray for regularisation. The respondents argue that Ext.P5 pertains to academic staff only; there is no Government policy extending retirement age for non-academic RCC employees, whose retirement age remains 58. The RCC’s stance is that parity with SCTIMST’s pay revision does not automatically translate into retirement-age extension for non-academic staff, and that any such extension is a policy decision for the Government, not a judicial directive. The court notes prior decisions, including a Division Bench decision (Prakasan M.P. and Others) indicating retirement-age extension is a policy matter, not a judicial entitlement. The court dismisses the petitions, while directing the Government to communicate any policy decision on Ext.P10 within two months, and states that there will be no recovery of interim-pay already disbursed. No costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend Ext.P5 extends the retirement age to align with SCTIMST for Professors (65) and academic staff (62), and that non-academic RCC staff should be covered likewise. They rely on parity and on extensions implied by Ext.P5, seek continuation in service up to 60, and urge regularisation. They point to representations and interim orders as support for staying in service and want a unified policy covering service conditions and pensions; they argue lack of extension is discriminatory. They request the Court to ensure equitable treatment and to direct regularisation, pending Government clarification (Ext.P10).

Contentions of Respondents

The respondents submit there is no policy extending retirement age for RCC non-academic staff; Ext.P5 is limited to professors/academic staff; non-academic retirement remains 58. Any extension is a Government policy decision, not a Judicial prerogative. They cite the need for Government clarification via Ext.P10 and emphasize that parity with SCTIMST requires policy changes, not judicial orders. The Court is urged to refrain from extending benefits beyond the established policy and to allow time for Government action.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
W.P.(C).No.28204/2008 and connected cases	W.P.(C).No.28204/2008	Positive	The decision is relied upon to show there was no policy to extend retirement age for non-academic RCC staff, supporting the Court’s stance.
Prakasan M.P. (Dr.) & Others v. State of Kerala and another	2010 (4) KHC 292 (DB)	Positive	Division Bench held that extension of age limit is a policy decision and not open to court to confer benefits; cited to justify the Court’s approach.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932** **WP(C).No. 24053 of 2009(B)** **------------------------------------** ## **PETITIONER(S):** - **------------------------** **1. K.VISWANATHAN, SECURITY GUARD, REGIONAL CANCER CENTRE,MEDICAL COLLEGE CAMPUS, THIRUVNANTHAPURAM 695 011.** **2. G. SOMASEKHARAN NAIR** - **SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011.** **3. A.R. VIJAYAKUMARAN NAIR, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **4. V.UNNIKRISHNA PILLAI, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **5. KRISHNANKUTTY A, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **6. VIKRAMANCHETTIAR B, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **7. A.AJITHKUMAR, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **8. R.SUKUMARAN NAIR, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **9. S.VIJAYAN NAIR, SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** ## **W.P.(C) NO.24053/2009** ## **10. AJITHKUMAR S.K.,** **SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** ## **11. R.JAYACHANDRAN NAIR,** **SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** ## **12. T.S. JAYACHANDRAN NAIR,** **SECURITY GUARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **BY ADVS. SRI.K.JAJU BABU** **SMT.M.U.VIJAYALAKSHMI** **SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SRI.T.R.SADEESAN** ## **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **2. REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011, REPRESENTED BY ITS DIRECTOR.** **R1 BY GOVT. PLEADER SRI.K.SANALKUMAR R2 BY ADV. SRI.K.R.RADHAKRISHNAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010 , ALONG WITH WPC NO. 30894 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.24053/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE INTERVIEW MEMO ISSUED TO THE 3RD PETITIONER ON 15.11.96 BY THE 2ND RESPONDENT.** ## **P2:- COPY OF THE ORDER NO.SG/97/ADM-II/RCC DTD. 12.9.1997 ISSUED TO THE IST PETITIONER BY THE 2ND RESPONDENT.** **P3:- COPY OF THE ORDER NO.SG/98/ADMN.11/RCC DTD. 12.6.98 ISSUED BY THE 2ND RESPONDENT.** **P4:- COPY OF THE ORDER NO.1733/SG/99/ADMN.II/RCC DTD. 2.8.99 ISSUED BY THE 2ND RESPONDENT.** **P5:- COPY OF THE ORDER NO.1733/SG/99/ADMN.II/RCC DTD. 6.11.99 ISSUED BY THE 2ND RESPONDENT.** ## **P6:- COPY OF THE ORDER NO.1243/ADMN.1/2001/RCC DTD. 13.3.2001 ISSUED BY THE 2ND RESPONDENT.** **P7:- COPY OF THE ORDER NO.1243/REGL/2005/ADMN.II/RCC DTD. 23.3.07 ISSUED BY THE 2ND RESPONDENT.** ## **P8:- COPY OF THE REPRESENTATION FILED BY PETITIONERS AND OTHERS BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA DTD. 22.10.07.** ## **P9:- COPY OF THE LETTER NO.46043/II/07/H&FWD DTD. 13.11.2007 ISSUED BY THE IST RESPONDENT TO THE 2ND RESPONDENT.** **P10:- COPY OF THE COMMUNICATION NO.52/SG/2008/ADMNII/RCC DTD. 3.9.08 ISSUED BY THE 2ND RESPONDENT.** **P11:- COPY OF THE RECOMMENDATION OF THE IST RESPONDENT VIDE LETTER NO.46043/11/2007/H&FWD DTD. 17.10.08 ISSUED TO THE 2ND RESPONDENT.** ## **P12:- COPY OF THE LETTER NO.52/SG/2008/ADMN.II/RCC DTD. 24.1.09 ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT.** **P13:- COPY OF THE COMMUNICATION NO.52/SG/2009/ADMN.II/RCC DTD. 2.3.09 ISSUED BY THE 2ND RESPONDENT.** **P14:- COPY OF THE COMMUNICATION NO.46043/11/2007/H&FWD DTD. 20.5.09 ISSUED BY THE IST RESPONDENT.** **P15:- COPY OF THE MINUTES OF THE GOVERNING BODY MEETING HELD ON 6TH JANUARY, 2009 IN THE CHIEF MINISTER'S CONFERENCE ROOM AT 4 P .M.** **P16:- COPY OF THE G.O.(MS) NO.144/2010/H&FWD DTD. 5.4.2010 ISSUED BY THE IST RESPONDENT.** **P17:- COPY OF THE LETTER NO.3970/ADMN. 1/2010/RCC DTD. 5.5.2010 SENT BY THE 2ND RESPONDENT TO THE GOVERNMENT.** ## **W.P.(C) NO.24053/2009.** ## **RESPONDENT'S EXHIBITS** **R2(a):- COPIES OF EXRACTS OF MINUTES OF THE EXECUTIVE COMMITTEES.** **R2(b):- COPY OF THE CLARIFICATION FURNISHED BY THE 2ND RESPONDENT IN REPSONSE TO GOVERNMENT LETTER DTD. 24.1.2009.** **R2(c):- COPY OF THE RELEVANT EXTRACT OF THE MINUTES AND ITS AGENDA NOTES.** **2(d):- COPY OF THE AGENDA NOTE DT. 14.12.2005 .** **R2(e):- COPY OF THE EXTRACTS OF THE MINUTES NO.12 OF THE GOVERNING BODY DTD. 14.12.2005.** **R2(f):- COPY OF THE G.O. DTD. 24.1.09 .** **R2(g):- COPY OF THE JUDGMENT DTD. 5.3.09 IN WPC. NO.28204/2008 AND RELATED CASES OF THIS HONOURABLE COURT.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.24053/2009-B & 30894/2010-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 15[th] day of November, 2010** ## **J U D G M E N T** The petitioners in W.P.(C).No.24053/2009 have been working as Security Guards and the petitioners in W.P.(C). No.30894/2010 have been working as Driver (Selection Grade), Hospital Attender and Nursing Supervisor respectively, in the Regional Cancer Centre, namely, the second respondent herein. These writ petitions are concerned with the retirement age of the petitioners. Their case appears to be that Ext.P5 order produced in W.P. (C).No.30894/2010 passed by the Government enhancing the retirement age of Professors to 65 years and that of other academic staff to 62 years in Regional Cancer Centre as in Sree Chitra Tirunal Institute of Medical Sciences & Technology, evidently, applies to non-academic staff also, in the light of various orders. Accordingly, they have prayed for a direction to the second respondent to allow them to continue in service upto the age of 60 years. The facts relevant for the disposal of the writ petitions as relevant in W.P.(C).No.30894/2010 are the following:- 2. In Sree Chitra Tirunal Institute of Medical Sciences & Technology (SCTIMST for short), which is an institute similar to Regional Cancer Centre, the age of W.P.(C). Nos.24053/2009 & 30894/2010 -:2:- retirement of academic staff is 62 years and that of non academic staff is 60 years. The governing body of the second respondent on 06/01/2009 decided to implement the Central Pay Revision in Regional Cancer Centre as that of SCTIMST as evident from Ext.P2 minutes, produced in W.P. (C).No.30894/2010. 3. There were steps to have parity with regard to the pay scales and conditions of Regional Cancer Centre, with SCTIMST. The Parity Committee had made a recommendation with regard to the increase in retirement age also. By Ext.P3, produced in W.P.(C).No.30894/2010, the Government while considering the claim of one Shri A.Rajan, Chief Maintenance Engineer took the view that there is no decision to extend the retirement age or parity with SCTIMST. Accordingly, it was observed that the retirement age of non-academic staff/academic staff of Regional Cancer Centre cannot be extended. Ext.P4, produced in W.P.(C). No.30894/2010, is the order by which the Government decided to extend the pay structure based on 6[th] Central Pay Revision to the academic and non-academic staff of Regional Cancer Centre. The benefits were extended to academic and non-academic staff alike. 4. Ext.P5, produced in W.P.(C).No.30894/2010, the opening paragraph records that the Government was of the W.P.(C). Nos.24053/2009 & 30894/2010 -:3:- view to implement pay and service conditions being enjoyed by the staff of SCTIMST to the staff of Regional Cancer Centre also. It is therefore contended by the petitioners that extension of those service conditions will apply as far as retirement age of non-academic staff even though in the operative portion of Ext.P5, specifically, the enhancement of the retirement age is with regard to the category of Professors and that of other academic staff to 65 years and 62 years respectively. Exts.P6 and P7 are interim orders passed in various writ petitions. 5. It appears that after the order Ext.P5 was issued by the Government, the second respondent sought for various clarifications by Ext.P10 communication, produced in W.P. (C).No.30894/2010, including a clarification as to the extension of retirement age to non-academic staff and with a further request that an order may be passed unifying the retirement age as well as other conditions of service including service pension. 6. The petitioners have also sought for a prayer to regularise them in service. 7. The petitioners are continuing in service in terms of the interim orders passed by this Court. The second respondent has filed a counter affidavit in W.P.(C). No.24053/2009 opposing the prayers of the petitioners. W.P.(C). Nos.24053/2009 & 30894/2010 -:4:- Reliance is placed on various aspects including the Judgment of this Court in W.P.(C).No.28204/2008 and connected cases [Ext.R2(g)] wherein recording the policy decision of the Government then in force, this Court refused to grant relief to the petitioners therein, with regard to the prayers sought for, for extension of the retirement age of non-academic staff of the Regional Cancer Centre. Evidently, the stand taken by the Regional Cancer Centre is that there is no policy decision by the Government to enhance the retirement age of non-academic staff by Ext.P5 order produced in W.P.(C).No.30894/2010. The petitioners cannot as a matter of right seek for a direction to permit them to continue beyond the retirement age, namely, 58 years. 8. The learned counsel for the second respondent further relied upon the decision of the Division Bench of this Court in **Prakasan M.P. (Dr.) & Others v. State of** **Kerala and another [2010 (4) KHC 292 (DB)]** wherein this Court observed that the extension of the age limit is a policy decision of the Government and it is not open to this Court to confer the benefits extended to other groups. Since there was a dispute whether Ext.P5 applies to nonacademic staff also, this Court directed the learned Government Pleader to get the views of the Government. No W.P.(C). Nos.24053/2009 & 30894/2010 ## -:5:- counter affidavits have been filed by the Government in these writ petitions. The learned Government Pleader on getting instructions submitted that Ext.P5 produced in W.P. (C).No.30894/2010 grants extension of retirement age to Professors and academic staff and it will not apply to nonacademic staff of the second respondent. Evidently, in Ext.P5 the age of retirement of non-academic staff has not been extended. Retirement age as on today if not specifically extended they cannot rely upon Ext.P5, to seek continuance. Therefore, as far as non-academic staff is concerned, the age of retirement is 58 years and all the employees have crossed the age of 58 years. Hence, the petitioners cannot seek continuance beyond 58 years. 9. The learned counsel for the petitioners pointed out that the same will be an anomaly as far as service conditions of non-academic staff are concerned and the action of the Government in not extending the retirement age of non-academic staff will result in discrimination. It is further pointed out that the second respondent itself has requested the Government for clarification as per Ext.P10 and, till the Government takes a decision, they may be allowed to continue in service. 10. As already noticed, the retirement age having not been extended, the petitioners cannot have a legal right to W.P.(C). Nos.24053/2009 & 30894/2010 -:6:- continue beyond 58 years. Of course, the second respondent has sought for clarification of the Government by Ext.P10. It is upto to the Government to communicate their decision on Ext.P10 to the second respondent. If there is a change of policy as far as non-academic staff are concerned and if the petitioners are benefited by any such decision taken by the Government, it is for the second respondent to take a decision after such a communication is received from the Government. Appropriate decision will be taken by the Government within two months from the date of receipt of the copy of this Judgment. The writ petitions are dismissed subject to the above observations. Since the petitioners were continuing based on the interim orders passed by this Court and they have received the pay and other benefits, there will not be any recovery as far as the amounts already paid to the petitioners. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ms