K.K. Shajahan and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938 WP(C).No. 23611 of 2011 (B) --------------------------------------- PETITIONERS : - -------------------------- 1. K.K.SHAJAHAN, S/o KUMARAN, AGED 54 YEARS, REGIONAL MANAGER (IN CHARGE), KERALA STATE WOMEN'S DEVELOPMENT CORPORATION, REGIONAL OFFICER,, THIRUVANANTHAPURAM, RESIDING AT NALUKETTIL, MERA-99, KAPPIL LANE, CHALAKUZHI, MC P.O., THIRUVANANTHAPURAM . 2. RANJAN M.R, ASSISTANT, KERALA STATE WOMEN'S DEVELOPMENT CORPORATION, REGIONAL OFFICE, ERNAKULAM, RESIDING AT MOOLAYEL HOUSE, AZAD ROAD, KALOOR, KOCHI-17. 3. SMT.JAYA PRASANNAN, COMPUTER ASSISTANCE, KERALA STATE WOMEN'S DEVELOPMENT CORPORATION, HEAD OFFICE, KAWDIAR, THIRUVANANTHAPURAM, RESIDING AT VADAKKEMADOM, NEAR ENGINEERING COLLEGE, SREEKARYAM P.O., THIRUVANANTHAPURAM-17. 4. V.SUJITH, RECORD KEEPER, KERALA STATE WOMENS DEVELOPMENT CORPORATION, REGIONAL OFFICE, THIRUVANANTHAPURAM, RESIDING AT VISWAK BHAVAN, MANALOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. 5. SMT.PRASANNAKUMARI, CONFIDENTIAL ASSISTANT, KERALA STATE WOMENS DEVELOPMENT CORPORATION, HEAD OFFICE, KAWDIAR, THIRUVANANTHAPURAM, RESIDING AT NALUKETTIL, MERA-99, KAPPIL LANE, CHALAKUZHI, MC P.O., THIRUVANANTHAPURAM. 6. T.K.SHYLA, PEON, KERALA STATE WOMENS DEVELOPMENT CORPORATION, REGIONAL OFFICE, ERNAKULAM, RESIDING AT THITTETHARA HOUSE, PANAMBUKADU, VALLARPADOM, ERNAKULAM. WP(C).No. 23611 of 2011 (B) BY ADVS.SRI.M.R.RAJENDRAN NAIR (SR.) SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENTS : - -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVT. OF KERALA, SECRETARIAT, TRIVANDRUM - 695 001. 2. THE PRINCIPAL SECRETARY, SOCIAL WELFARE DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, TRIVANDRUM - 695 001. 3. THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD; REPRESENTED BY ITS MANAGING DIRECTOR, T.C.20/2170, OPP. MANMOHAN BUNGLOW, KOWDIAR P.O.,TRIVANDRUM - 695 001. 4. THE MANAGING DIRECTOR, KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD; T.C20/2170, OPP. MANMOHAN BUNGLOW, KOWDIAR P.O.,TRIVANDRUM - 695 001. R1-2 BY GOVERNMENT PLEADER SRI. P.P. PADMALAYAN R3-4 BY ADV. SRI.N.MANOJ KUMAR R3-4 BY ADV. SMT.JAYASREE MANOJ R3,R4 BY ADV. SRI.HARISH GOPINATH, SC, KSWDC R3,R4 BY ADV. SRI.MOHAMMED SHAH, SC, WOMENS DEVELOPMENT CORPN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23611 of 2011 (B) ## **APPENDIX** ## PETITIONERS' EXHIBITS : EXHIBIT P1 : TRUE COPY OF THE DRAFT SERVICE RULES OF KSWDC. EXHIBIT P2 : TRUE COPY OF THE LETTER No. 446/B3/2009/SOCIAL WELFARE DEPT. DATED 21.06.2010. EXHIBIT P3 : TRUE COPY OF THE G.O. (MS) No. 56/10/ID DATED 15.03.2010. EXHIBIT P4 : TRUE COPY OF THE G.O. (MS) No. 84/2010/TSM DATED 16.03.2010. EXHIBIT P5 : TRUE COPY OF THE ANSWERS GIVEN TO QUESTION No. 1310 ON 1.12.2008 IN THE FLOOR OF KERALA LEGISLATIVE ASSEMBLY. EXHIBIT P6 : TRUE COPY OF THE JUDGMENT DATED 19.07.2010 IN W.P. © No. 9796 OF 2010. ## RESPONDENTS' EXHIBITS : NIL. // TRUE COPY // ## P.A. TO JUDGE DMR/- ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 23611 of 2011** ---------------------------------------- Dated this the 24[th] day of June, 2016 ## JUDGMENT The question in this writ petition is as regards the age of superannuation: whether it is 55 or 58. 2. The petitioners, six in number, are the employees of the third respondent Corporation, which is a Public Sector Undertaking fully owned by the Government. Initially, the third respondent prepared Exhibit P1 draft Service Rules and submitted them for the Government's approval. Clause 18 of the Draft Rules fixes the age of superannuation at 55. Nevertheless, based on the representations made by various employees, the Managing Director of the third respondent sent a recommendation to the Government along with the draft Service Rules that the age of superannuation be fixed at 58. As seen from the record, the Government, through Exhibit P2, replied that the proposal could not be considered in the present. Aggrieved, the petitioners have filed this writ petition. 3. Sri. C. Unnikrishnan, the learned counsel for the petitioners, has submitted that all along many Public Sector Undertakings have raised their employees' age of W.P.(c) No. 23611 of 2011 2 superannuation to 58; in some instances, the Government accepted the upward revision and in some other instances this Court directed so. To support his submissions, the learned counsel has placed reliance on Exhibit P6 judgment of this Court. According to him, Exhibit P6 judgment squarely covers the issue raised in this writ petition. 4. In further elaboration of his submissions, the learned counsel has submitted that singling out the third respondent Corporation and denying to its employees the benefit of the enhanced age of superannuation are patently discriminatory and offend the principles of Article 14 of the Constitution of India. To buttress his submissions, he has also placed reliance on **Kavirajan v. K.S.B.C. Ltd.[1]** a judgment rendered by a learned Division Bench of this Court. 5. The learned counsel has finally contended that unless the employees’ retirement age is raised to 58, they cannot take full advantage of the pension under EPF Scheme, which is in force in the Corporation. 6. Sri Mohammed Shah, the learned Standing Counsel for the third respondent Corporation, has submitted that the 1 2007 (2) KLT 917 3 W.P.(c) No. 23611 of 2011 Corporation did receive many representations from its workforce and that it accordingly recommended to the Government to enhance the age of retirement in the Corporation. He has further submitted that it is the Government that has to take the final decision on the issue of the age of retirement, and the Corporation can only implement the decision thus taken. In sum and substance, the learned Standing Counsel has submitted that the third respondent has no specific say on the age of superannuation. 7. The learned Government Pleader, on his part, has submitted that the Government has adopted no policy or taken a general decision fixing the age of superannuation as 58 years in all Public Sector Undertakings across the board, even where the pension under EPF Scheme is in force. According to him, there are several institutions governed by EPF Scheme but having the retirement age of its employees at 55, instead of 58. Making a specific reference to the statement made by the Honourable Chief Minister on the floor of the Assembly, as is evident from Exhibit P5, the learned Government Pleader would further contend that the policy, if any, is that if any Public Sector Undertaking has manufacturing process as its W.P.(c) No. 23611 of 2011 4 activity, only in those PSU's has the age of superannuation been revised to 58. It is thus a categoric contention on the Government’s part that it should have the final say in the matter of fixing the age of superannuation in any establishment under its control. 8. In reply, the learned counsel for the petitioners has tried to refute the Government's contention that the age of superannuation has been revised only in PSUs having manufacturing process. He has, in that regard, drawn my attention to Exhibit P4, which relates to Kerala Food Craft Institution—a PSU having no manufacturing process. 9. Heard the learned counsel for the petitioners and the learned Standing Counsel for the respondent Corporation, as well as the learned Government Pleader, apart from perusing the record. 10. At the outset, I make it clear that the issue raised in the writ petition does not have the problem of being _res integra_ . It has been agitated on more than one occasion, and this Court on every such occasion, whenever the aggrieved persons approached it, rendered judgments holding that denial of enhanced retirement age to a few Public Sector W.P.(c) No. 23611 of 2011 5 Undertakings is discriminatory. It has, in that context, taken cognizance of the fact that the Government may not have an immutable policy on the issue. But the fact remains that almost all of the PSUs have in the course of time, for one reason or another, had the age of superannuation raised to 58. And the Government has approved it. 11. To avoid further cogitation on the issue, I may straight away refer to Exhibit P6 judgment rendered by this Court in a batch of writ petitions involving an identical issue taken to the Court by the employees of similarly placed Public Sector Undertakings. A learned Single Judge of this Court has elaborately considered the issue and has emphatically held, more particularly following the earlier precedents, that denial of the benefit of the enhanced age of superannuation to a particular section of employees or a particular undertaking having no discernible distinction is _per se_ discriminatory. In fact, the learned Single Judge has placed reliance, among other things, on **Kavirajan** _(supra),_ where a learned Division Bench of this Court has held that denying the advantage of enhanced age of superannuation to a particular Public Sector Undertaking offends the principle of equality, as has been W.P.(c) No. 23611 of 2011 6 espoused in Article 14 of the Constitution of India. 12. Indeed, the Government has taken a plea that the PSU to be entitled to the benefit of the enhanced age of superannuation ought to have manufacturing as its main activity. I am afraid Exhibit P4 belies that contention. Indisputable is the fact that the Kerala Food Craft Institution has no manufacturing process as its principle activity, yet the Government has consented to the enhancement. In the facts and circumstances, I am of the opinion that the issue raised in this writ petition is squarely covered by **Kavirajan** _(supra)_ as well as Exhibit P6 judgment. Hence, as a matter of binding precedent, I hold that the third respondent Corporation shall have, on a par with other similarly placed Corporations, the age of superannuation of its employees enhanced to 58. Therefore, the writ petition is allowed as prayed for. No order on costs. ## **DAMA SESHADRI NAIDU JUDGE** DMR/-