Suresh Kumar K vs State of Kerala and Kerala State Handicapped Persons Welfare Corporation Ltd and The Managing Director, HPWC Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 WP(C) NO. 10267 OF 2020** ## **PETITIONER/S:** SURESH KUMAR K AGED 55 YEARS SON OF D. KRISHNAN NADAR, DRIVER, MLA QUARTERS EXTENSION COUNTER, PALAYAM, KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION LTD, THIRUVANANTHAPURAM RESIDING AT S.S. BHAVAN, THANNIVILA, VEDIVEHCHANCOIL P.O. THIRUVANANTHAPURAM 695 501. BY ADVS. K.M.GEORGE CHITHRA P.GEORGE ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SPECIAL SECRETARY TO GOVERNMENT SOCIAL JUSTICE (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION LTD, POOJAPPURA, POOJAPPURA P.O. THIRUVANANTHAPURAM 695 012. 3 THE MANAGING DIRECTOR, KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION LTD, POOJAPPURA, POOJAPPURA P.O. THIRUVANANTHAPURAM 695 012. BY ADVS. GOVERNMENT PLEADER SRI.N.R.SURESH KUMAR ## **OTHER PRESENT:** GP VENUGOPAL V. **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **24.05.2022, THE COURT ON 02.06.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.10267 of 2020 -2- ## **JUDGMENT** Dated this the 02[nd] day of June, 2022 The petitioner, while working as Driver in the second respondent Corporation, was served with Ext.P2 communication dated 17.03.2020, informing him that the Director Board of the Corporation, as per its resolution dated 24.02.2020, had decided to fix the age of superannuation of its employees as 56 years and going by the petitioner's date of birth entered in the service book, he will have to retire on 31.05.2020. Aggrieved, this writ petition is filed seeking the following reliefs; _“i) Issue a writ of certiorari to quash Ext.P2 order directing the petitioner to retire from service w.e.f.31.05.2020, holding that he is due to retire at the age is 56 years._ _ii) Issue a writ of mandamus or other appropriate writ, order or direction, compelling the respondents to retain the petitioner in service till he attains the age of 58 years as per precedent and as prayed for in his Ext.P5_ W.P.(C) No.10267 of 2020 -3- _representation._ _iii) To direct the 1[st] respondent to consider and dispose Ext.P5 representation in accordance with law, after providing the petitioner an opportunity of being heard, within a time frame fixed by this Hon'ble Court.”_ 2. The main contentions urged in the writ petition is that, from the time of its constitution in 1979, the retirement age of the employees of the Corporation was taken to be 58 years. As early as on 11.03.2004, the Board of the Corporation had taken a unanimous decision to fix the retirement age of its employees as 58 years. Most of the employees in the Corporation are persons with disabilities and therefore the Government ought to have approved the decision. In may other Corporations, the age of superannuation is fixed as 58 years with the Government's approval. 3. While admitting the writ petition on 27.05.2020, this Court had passed an interim W.P.(C) No.10267 of 2020 -4- order directing to maintain status quo as on date _viz-a-viz_ petitioner's service condition. The petitioner continued in service on the strength of the interim order. While so, the Government issued Ext.P7 order dated 25.06.2021, fixing the age of superannuation of the employees of the Corporation as 58 years. 4. Learned Counsel for the petitioner submitted that the benefit of Ext.P7 order should be extended to the petitioner, considering that the petitioner was in service when the order was issued. 5. Learned Government Pleader contended that Ext.P7 order being prospective, the petitioner cannot seek the benefit of the order, merely for the reason that he continued in service on the strength of an interim order granted by this Court. 6. Learned Counsel for the petitioner then raised an alternative contention that the ## W.P.(C) No.10267 of 2020 -5- petitioner should be paid the salary for the period he had actually worked. 7. The legal position that executive orders are prospective, unless otherwise specified in the order itself, is too well settled to be reiterated. Being so Ext.P7 order can only be prospective and its benefit will be available only to the employees in the regular service of the Corporation as on 25.06.2021. It is true that the petitioner had continued in service on the strength of this Court's interim order. But, such continuance cannot be treated as regular service, so as to extend the benefit of Ext.P7 to the petitioner. As held in _**Indian Institute of Technology v. Raja Ram Verma [(2010) 14 SCC 86]**_ , prescription of age of retirement is a managerial function and courts can interfere only when it is found that the policy of fixation of age of retirement is not based on any intelligible ## W.P.(C) No.10267 of 2020 -6- differentia. For the aforementioned reasons, the prayer for declaration that the petitioner is entitled to continue in service up to 58 years is declined. 8. Now to the alternative contention that the petitioner is entitled for the salary and emoluments for the period he had worked after attaining 56 years. In support of the claim for salary and emoluments, learned Counsel placed reliance on the Apex Court decision in _**North**_ _**Delhi Municipal Corporation v. Ram Naresh Sharma and others [2021 SCC Online SC 540].**_ Therein, the Ayurvedic Doctors covered under AYUSH had approached the Central Administrative Tribunal claiming the benefit of enhancement of the age of superannuation to 65 years granted to the Allopathic Doctors. Through an interim order, the Tribunal allowed the applicants to continue in service beyond the date of their retirement, with W.P.(C) No.10267 of 2020 -7- a rider that no salary will be paid and the order will not confer them any right or equity in their favour. The original applications were later allowed by the Tribunal and that order was upheld by the High Court. In the meanwhile, the Government issued an order enhancing the age of superannuation of Ayurveda Doctors from 60 to 65 years. In appeal before the Supreme Court, the Government contented that the applicants who had attained 60 years before issuance of the order enhancing the age of superannuation to 65 years, but had continued on the strength of the Tribunal's order, will not be entitled for salary for the period beyond their original date of superannuation. The Apex Court repelled the contention and held as under; _“16. The learned Senior Counsel for Appellant by placing reliance upon the HC interim order submits that Respondent doctors are not entitled to remuneration and unpaid arrears as they were serving in the hospitals_ W.P.(C) No.10267 of 2020 -8- _on the strength of the Court's interim order. Such argument for Appellants cannot however be accepted in light of the principle 'Actus Curiae Neminem Gravabit'. Explaining the principle, Justice B.S.Chauhan speaking for this in Kalabharati Advertising v. Hemant Vimalnath Narichania MANU/SC/0674/2010 : (2010) 9 SCC 437, stated the following:_ _15. …. The maxim “Actus Curiae neminem gravabit”, which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court.”_ In the petitioner's case also, this Court had permitted him to continue in service and the petitioner worked till he attained 58 years. The petitioner is hence entitled for salary for the period he actually worked. W.P.(C) No.10267 of 2020 -9- In the result, the writ petition is disposed of as under; **==> picture [381 x 12] intentionally omitted <==** petitioner is entitled to continue up to 58 years is declined. (ii) The petitioner is declared to be entitled for salary for the period he had worked on the strength of the interim order granted in this case. **==> picture [381 x 12] intentionally omitted <==** period shall be disbursed to the petitioner within three months of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.10267 of 2020 -10- ## **APPENDIX OF WP(C) 10267/2020** PETITIONER EXHIBITS |EXHIBIT P1||TRUE COPY OF APPOINTMENT LETTER DATED| |---|---|---| |||06.04.1987 APPOINTING THE PETITIONER| |||AS ATTENDER.| |EXHIBIT P1|(A)|TRUE COPY OF PAY FIXATION ORDER NO.| |||743/96/(1) DATED 22.7.1996 OF THE| |||PETITIONER IN PROMOTED POST OF DRIVER| |||W.E.F. 01.07.1996.| |EXHIBIT P2||TRUE COPY OF THE NOTICE NO.| |||210/82/A4/HPWC DATED 17.03.2020 ISSUED| |||TO THE PETITIONER INTIMATING HIM THAT| |||HEHAS TO RETIRE FROM SERVICE ON| |||31.5.2020. ALONG WITH TRUE ENGLISH| |||TRANSLATION.| |EXHIBIT P3||TRUE COPY OF THE LETTER NO.| |||04/2010/A1/HPWC DATED 19/03/2010,| |||INFORMATION OBTAINED BY G. VIJAYAN| |||NAIR UNDER THE RTI ACT ALONG IWITH| |||TRUE ENGLISH TRANSLATION.| |EXHIBIT P3|(A)|TRUE COPY OF THE LETTER NO.| |||489/A1/81/HPWC DATED 10/05/2013,| |||ISSUED TO V. VIJAYAKUMAR REGIONAL| |||OFFICER, INTIMATING HIM OF HIS HIS DUE| |||DATE OF RETIREMENT, ALONG WITH THE| |||ENGLISH TRANSLATION.| |EXHIBIT P3|(B)|TRUE COPY OF LETTER NO.| |||4495/90/A4/2017 DATED 05/12/2017| |||ISSUED TO SUJATHA.G. UD CLERK, HEAD| |||OFFICE, HPWC AS TO HER RETIREMENT| |||ALONG WITH TRUE ENGLISH TRANSLATION.| |EXHIBIT P3|(C)|TRUE COPY OF LETTER NO.| |||14/2007/A4/HPWC DATED 19/12/2018| |||ISSUED TO REMA.K. SALESWOMAN| |||INTIMATING HER DUE DATE OF RETIREMENT| |||ALONG WITH TRUE ENGLISH TRANSLATION.| |EXHIBIT P4||TRUE COPY OF 3RD RESPONDENTS LETTER| |||NO. 5283/A4/2018/HPWC DATED 29/08/19| |||REQUSTING FOR GOVT. ORDERS SANCTIONING| |||RETIREMENT AGE AS 58 YEARS ALONG WITH| |||TRUE ENGLISH TRANSLATION.| ## W.P.(C) No.10267 of 2020 -11- EXHIBIT P4 (A) TRUE COPY OF LETTER NO. 5/2015 /HPWC DATED 03.07.2015 INFORMATION OBTAINED UNDER RTI ACT BY G. VIJAYAKUMAR ALONG WITH TRUE ENGLISH TRANSLATION. EXHIBIT P5 TRUE COPY OF PETITIONERS REPRESENTATION DATED 18.,05.2020 ADDRESSED TO THE 1ST RESPONDENT THROUGH PROPER CHANNEL. EXHIBIT P6 TRUE COPY OF NOTICE NO.5283/2018/A4/HPWC DATED 7/2/2020 OF THE 3RD RESPONDENT ADDRESSED TO THE TRADE UNION LEADERS OF THE CORPORATION EXHIBIT P7 TRUE COPY OF REPORT IN HANDICAPPED DEVELOPMENT CORPROATION RETIREMENT AGE SHOULD BE RETAINED PUBLISHED IN THE DESHABHIMANI NEWSPAPER DATED 5/3/2020