State of Kerala and others v. A.K. Rajappan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 3RD DAY OF SEPTEMBER 2013/12TH BHADRA, 1935 ## **W.A.No.2854 of 2009** ------------------------------------- AGAINST THE JUDGMENT IN W.P.(C).No.16941/2004 DATED 25.08.2009 OF HIGH COURT OF KERALA. --------------- ## **APPELLANTS/** RESPONDENTS IN W.P.(C):- ------------------------------------------------------------- 1. THE STATE OF KERALA, TO BE REP. BY SECRETARY, IRRIGATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. ## 2. CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL WING (IRRIGATION) SUB DIVISION, ALUVA. BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. ## **RESPONDENTS/** PETITIONERS IN THE W.P.(C):- -------------------------------------------------------------------- 1. A.K.RAJAPPAN, S/O.KARAPPAN, AGED 57, AMMOOPPILLY HOUSE, PIRAROOR, KALADY; (ASSISTANT PUMP OPERATOR, ELECTRICAL WING IRRIGATION SECTION, KALADY) 2. M.K.SULAIMAN, S/O.KOCHUNNY, AGED 56 MATTAPPILLY, CHOVVARA P.O., ALUVA; (ASSISTANT PUMP OPERATOR, ELECTRICAL LIFT IRRIGATION SECTION, ALUVA). 3. C.P.JOSE, S/O.PAILY AGED 55, CHITTINAPPILLY, CHINGAL, KALADY P.O., (ASST.PUMP, OPERATOR, ELECTRICAL WING (IRRINGATION SECTION, KALADY). 4. M.V.JOSE, AGED 55, S/O.VAREED, MARATTU HOUSE, THOTTEKKATUKARA PO, ALUVA (ASST PUMP OPERATOR, ELECTRICAL LIFT IRRIGATION SECTION, ALUVA) R1 TO R4 BY ADV. SRI.K.S.MADHUSOODANAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Manjula Chellur, C.J. & K.Vinod Chandran, J. ---------------------------------------W.A.No.2854 of 2009 ----------------------------------------Dated this, the 03[rd] day of September, 2013 ## JUDGMENT ## K.Vinod Chandran,J. Whether the respondents/writ petitioners, being N.M.R. workers appointed prior to 07.04.1970 and later absorbed into regular establishment by Exhibit R1(a), are entitled to continue upto the age of 58 years is the question raised in the above appeal by the State. The learned Single Judge agreed with the contention of the writ petitioners and found them to be entitled to the terminal benefits on the basis of the last pay drawn, treating the age of superannuation as 58 and not 55. In fact the respondents/writ petitioners had continued beyond the age of 55 and their salaries were also paid, but, however, on retirement their terminal benefits were reckoned taking into account 55 years as the age of superannuation by virtue of interim orders passed in the above proceedings. We are also informed that in this Writ Appeal there was an interim stay of the judgment of the learned Single Judge, but, however, with a condition that salaries already paid shall not be recovered. **- 2 -** W.A.No.2854 of 2009 2. According to the State, who is the appellant herein, the issue is no longer _res integra,_ since it is covered by a Division Bench decision of this Court reported in _**Haridasan v. State of Kerala**_ **[2008 (1) KLT 407].** The issue which was considered in the above case as also that arising for determination in the instant case is the interpretation of Exhibit R1(a) Government Order of 17.09.1985; by which the N.M.R. workers were regularised and absorbed in the State service and the efficacy of the clarification issued by virtue of Exhibit P4 dated 01.03.2000. 3. Admittedly all the respondents commenced service prior to 07.04.1970 as N.M.R. workers and on the basis of Exhibit R1(a), they were absorbed into regular service as workers (Pump Cleaners). Later they were promoted as Assistant Pump Operators with effect from 21.08.1987, which post admittedly carried a higher scale of pay. The benefit of higher age of superannuation is applicable only to those persons who were absorbed and continued in the post in which they were absorbed, is the essential contention of the State. It is also the contention of the State that the retirement age of Government employees are determined by Rule 60 of Part I of the Kerala Service Rules (for short “KSR”) and as per sub-rule (b) of Rule 60, only officers in the Last Grade Service are entitled to be retired at the higher age of **- 3 -** W.A.No.2854 of 2009 60 and the definition of “Last Grade Service” in Rule 12(16-A) does not take in the service of the respondents. 4. The learned counsel for the respondents, however, would contend that the decision in _**Haridasan**_ ( _supra_ ) was taken note of by the learned Single Judge and the power of the Government to relax any of the provisions in the KSR was taken note of and it was also observed that the relaxation given to N.M.R. workers to continue upto the age of 58 years was perfectly in order. The learned counsel also has a contention that _**Haridasan**_ ( _supra_ ) can be distinguished in so far as the employees therein, though were N.M.R. workers absorbed into the regular service; were all continuing in the Class III posts when they were so terminated. The respondents herein were all Class IV employees and their upgradation as Assistant Pump Operator is not a promotion and they still remain as Class IV employees. 5. We have to first look at the judgment of the Division Bench placed before us. Exhibit R1(a) and Exhibit P4 [produced as Exhibit P1 in the said writ petition - O.P. No.156 of 2003] came up for consideration in _**Haridasan**_ ( _supra_ ) also. In fact, earlier another Division Bench of this Court, relying on Exhibit P4 clarification issued by the Secretary to Government to the Managing Director of the Kerala Water Authority, had upheld the same and sustained the action of their **- 4 -** W.A.No.2854 of 2009 termination from service on attaining the age of 55. When Haridasan's case came up before a learned Single Judge of this Court, it was argued by the petitioners that the clarification of 01.03.2000 (Exhibit P4) is one that could not be treated as decision of the Government in terms of Article 166 of the Constitution of India. Since that argument was not noticed or considered by the earlier Division Bench, the learned Single Judge found that the same is _**per incuriam**_ for not having noticed the plea that the clarification is not one issued under Article 166 of the Constitution. It was thus that the matter was placed before a Division Bench and the same was considered afresh in _**Haridasan**_ ( _supra_ ). 6. _**Haridasan**_ ( _supra_ ) found that though the concession granted to N.M.R. Workers, on their absorption into regular service, to continue in service till attaining the age of 58 years can be treated as an exemption coming within the powers of the Government; but all the same such exemption had to be read strictly. So reading the Government Orders Exhibit P1 and P2 therein, it was held that the petitioners, who were Class III employees in the Kerala Water Authority, are to retire at the age of 55 years. The Division Bench in fact found that even in the absence of clarification dated 01.03.2000, such employees were liable to be terminated at the age of 55 years. **- 5 -** W.A.No.2854 of 2009 Going further, relying on seven-Judge Bench decision of the Supreme Court, reported in _**Samsher Singh v. State of Punjab**_ **[(1974) 2 SCC 831],** the clarification (Exhibit P4) was treated as one issued by the Government exercising its power and authority to clarify its own orders. 7. We are of the opinion that in the instant case also the respondents, who were absorbed in the post of Pump Cleaner, were later promoted to the post of Assistant Pump Operator; admittedly in a higher scale of pay. The distinction projected by the learned counsel for the respondents that the respondents herein continued as Class IV employees, in our opinion, is not at all decisive. In fact, we notice that the distinction of Class III and Class IV is not anywhere enumerated in any of the Government Orders or the provisions through which we were taken. We also specifically see that in paragraph 13 of _**Haridasan**_ ( _supra_ ), on facts it was stated so: “It is common case of the petitioners as well as the respondents that they were Class III employees on their absorption into the Government service”. Hence, the petitioners in _**Haridasan**_ ( _supra_ ) were absorbed in Class III and later promoted to another post in Class III and, hence, were held to be disentitled to be continued beyond the age of 55. In the instant case also, adopting the very same reasoning the mere fact that the **- 6 -** W.A.No.2854 of 2009 respondents herein had continued in Class IV does not at all advance their case. What assumes significance is the fact that they were admittedly promoted to a post which carried a higher scale of pay and on absorption and later promotion, necessarily the incidence of service in the State would follow. The binding precedent in _**Haridasan**_ ( _supra_ ) that the exemption granted through Exhibit P4, which was held to be a properly issued clarification, has to be followed strictly and that even without the said clarification the incidence of retirement as contemplated in KSR would be a necessary consequence, cannot be ignored by us, nor do we find any reason to differ from the said view. 8. In the circumstances, we are of the opinion that the respondents were not entitled to be continued beyond the age of 55 and their retirement as on 55 years is perfectly in order. However, we notice that by virtue of interim orders issued by this Court, all the respondents had continued beyond the age of 55 till the age of 58 and salaries were paid during the said interregnum. Considering the fact that all the respondents belong to the marginalized section of the society, we are of the opinion that no recovery shall be effected from the respondents/writ petitioners, of the salaries paid if and when they were continued beyond the age of 55. However, their terminal benefits ought to be determined only on the basis of the last drawn salary as on **- 7 -** W.A.No.2854 of 2009 their attaining the age of 55 and we are also informed that the terminal benefits were only so fixed and paid. If that be so, there is no requirement for any adjustment on the basis of the reversal of the judgment of the learned Single Judge, effected in this appeal. If for any reason any of the respondents were given terminal benefits on determination of the last pay drawn as on the date on which he attained 58 years of age, then that shall be revised prospectively, meaning that no recovery need be made of sums already paid. The Writ Appeal is allowed, but, however, with the above observation. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge. vku/- ( true copy )