R. Manohar v. Executive Committee of Kerala Agricultural University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938** **WP(C).No. 13809 of 2011 (A)** **----------------------------** **PETITIONER(S): -------------** **R.MANOHAR,ASSISTANT LIBRARIAN (SENIOR SCALE), COLLEGE OF AGRICULTURE, VELLAYANI,THIRUVANANHTHAPURAM.** ## **BY ADV. SRI.P.V.JAYACHANDRAN** **RESPONDENT(S):** **--------------** **1. THE EXECUTIVE COMMITTEE OF KERALA, AGRICULTURAL UNIVERSITY, VELLANIKKARA,** **THRISSUR REP.BY ITS VICE CHANCELLOR 680 654.** **2. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA,THRISSUR 680 654.** **R1 & 2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRICULTURAL UNIVERSITY BY SRI.K.P.MUJEEB, SC, KERALA AGRI UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2016,ALONG WITH W.P.(C).NO.23203/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.13809 OF 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : TRUE COPY OF THE ORDER NO.GA/C1/14678/2007 DATED 26.06.2010 EXT.P2 : TRUE COPY OF THE CERTIFICATE DATED 26.02.2008. EXT.P3 : TRUE COPY OF THE CERTIFICATE DATED 21.01.2009.** **EXT.P4 : TRUE COPY OF THE CERTIFICATE DATED 09.07.2010. EXT.P5 : TRUE COPY OF THE REPRESENTATION DATED 29.07.2010. EXT.P6 : TRUE COPY OF THE REPRESENTATION DATED 06.09.2010. EXT.P7 : TRUE COPY OF THE ORDER NO.GA/J3/43096/2010 DATED 10.12.2010** ## **RESPONDENT'(S) EXHIBITS:** **EXT.R2(a): TRUE COPY OF THE ORDER NO.GA/J3/9070/2013 DATED 24.07.2013 ISSUED BY THE KERALA AGRICULTURAL UNIVERSITY.** **// TRUE COPY//** **P A TO JUDGE** **sm/** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 ............................................................. Dated this the 19[th] day of August, 2016** ## **J U D G M E N T** As all these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. The 2[nd] petitioner in W.P.(C).No.23203 of 2013 is the petitioner in W.P.(C).No.26185 of 2015 and the relief sought for in both the writ petitions are similar. 2. In all these cases, the petitioners are persons who are appointed as Assistant Librarians in the Kerala Agricultural University. The issue involved in the writ petitions is essentially whether the petitioners could continue in the services of the respondent University till the attainment of the age of 60 years, prescribed as the retirement age for teachers as defined under Section 2(26) of the Kerala Agricultural University Act, 1971. The writ petitions were filed in the wake of a stand taken by the -2- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 respondent University that library staff, including Assistant Librarians and Deputy Librarians, would not fall within the ambit of the definition of teacher under Section Section 2(26) of the Kerala Agricultural University Act, 1971, and therefore, they would have to retire on attaining the age of 56 years. In the writ petitions, the order dated 24.07.2013 of the respondent University, which clarifies that as per the University Statute the library staff including Assistant Librarians/Deputy Librarians cannot be considered as teacher of the University and are consequentially not entitled to claim the benefit of the enhanced retirement age of 60 years, is impugned, inter alia, on the ground that, the said order goes contrary to an earlier order passed by the respondent University in the case of Dr.K.S.Ambili, who like the petitioners, was a Deputy Librarian in the services of the respondent University, and who was allowed by an order of the respondent University to continue in service till the attainment of 60 years of age, on the ground that, she could be treated as a teacher of the University within the meaning of the definition of the term teacher under Section 2(26) of the Kerala Agricultural University Act, -3- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 1971. 3. In a counter affidavit filed on behalf of the respondents, the respondents would vehemently justify the issuance of the order dated 24.07.2013 and contend that, the earlier order passed in respect of Dr.K.S.Ambili was a mistake which was subsequently corrected by the respondent University by issuing the said order dated 24.07.2013. It is pointed out, by placing reliance on the decisions of the Supreme Court in **Ekta Shakti Foundation v. Government of NCT of Delhi [2006 (3) KLT 601 (SC)]** and **Union of India and Another v. International Trading Co. And Another [(2003) 5 Supreme Court Cases 437]** that merely because a wrong order was passed in favour of another employee of the University, the petitioners could not seek a parity in treatment when it was demonstrated that the earlier order was passed under a mistaken view of the law. 4. I have heard the learned counsel appearing for the petitioners as also the learned Standing counsel for the respondent -4- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 University. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I note that, by a judgment dated 25.06.2015 in W.P.(C).No.27402 of 2010 and W.P. (C).No.31180 of 2010, I had considered a similar issue, in writ petitions filed by persons similarly situated as the petitioners in these writ petitions and found as follows: “5. On a consideration of the facts and circumstances of the case and submissions made across the bar, I find that by Ext.P1 judgment, this Court had in the case of a person, similarly situated as the petitioners, directed the respondent University to take a decision on the issue of whether persons such as the petitioner would be entitled to be treated as teachers for the purposes of the Kerala Agricultural University Act, 1971. It is also seen that consequent to the directions of this Court in the aforementioned judgment, Ext.P2 order was passed in favour of -5- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 Dr.K.S.Ambili after referring to various materials that were produced by the said person. Thereafter, when the petitioners had represented the matter before the Agricultural University, by Ext.P10 order, that was passed on the representation preferred by the petitioner in W.P.(C). No.27402 of 2010, the stand taken by the respondent University is that the benefit granted in favour of Dr.K.S.Ambili could not be extended to the petitioners inasmuch as they had already retired at the age of 55 years whereas Dr.K.S.Ambili, who had also retired at the age of 55, had an order in her favour which made the retirement subject to the outcome of the writ petition. In my view, this distinction that is sought to be made by the respondent University between the case of Dr.K.S.Ambili and the case of the petitioners, is one that cannot be sustained. No doubt, the petitioners cannot now aspire for reinstatement since they have admittedly crossed the age of 60 years. The said fact, however, cannot prevent the respondent University from considering a parity of treatment of the petitioners with -6- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 Dr.K.S.Ambili for the purposes of grant of retirement benefits to the petitioners. In otherwords, if there is a revision in the salary and other emoluments that would have been payable to the petitioners consequent to a decision in their favour taken when they were in service, then the said benefit should enure to the petitioners when it comes to computation of their retirement benefits. I therefore feel that, it was incumbent upon the respondent University to consider the case of the petitioner for the extension of similar benefits as was extended to Dr.K.S.Ambili through Ext.P2 order. If the petitioners case falls within the same parameters as govern the decision in favour of Dr.K.S.Ambili in Ext.P2 order, then the petitioners shall also be extended the same benefits, save for the direction in regard to reinstatement, and their pensionary benefits worked out accordingly. To enable the respondent University to have a fresh look into the matter based on the observations above, I quash Ext.P10 in W.P.(C).No.27402 of 2010 and direct the respondent University to pass fresh orders in the light of the -7- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 observations made in this judgment in the case of the petitioners in the writ petitions referred to above. The respondent University shall take a decision within a period of two months from the date of receipt of a copy of the judgment.” 6. Although, the respondent University had preferred review petitions against the said judgment, the said review petitions were also dismissed by judgment dated 18.08.2016 in Review Petition Nos.901 and 902 of 2015. Under the said circumstances, and taking note of the judgment already rendered in the case of others similarly situated as the petitioners herein, these writ petitions are also disposed following the aforementioned judgment by quashing Exts.P6 and P7 in W.P.(C).No.23203 of 2013 and Ext.P7 in W.P.(C). No.13809 of 2011 and directing the respondent University to extend the same benefits, as were extended to others similarly placed as the petitioners herein, based on the directions in the judgment referred above. The respondent University shall pass fresh orders in the light of the observations made in this judgment -8- W.P.(C).No.13809 of 2011 W.P.(C).No.23203 of 2013 & W.P.(C).No.26185 of 2015 in the case of the petitioners in these writ petitions within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/19.08.16