Allowed

E.B. Devadas v. State of Kerala

Kerala HC8 Nov 2016WP(C)/8833/2013

Case brief

AI extract

What is this about?

A junior lecturer in Sanskrit at a private Ayurveda college approached the court seeking permission to continue in service until age 60. The court allowed the petition, holding that post-clarifications restricting language teachers to age 56 were superseded by a government order extending 60 years to non-medical teachers in medical colleges.

What did the court decide?

Direction to respondents to permit the petitioner to continue in service till he attains the age of superannuation as provided in Government Order No. 107/2012/H&FWD.

E.B. Devadas Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 8TH DAY OF NOVEMBER 2016/17TH KARTHIKA, 1938

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WP(C).No. 8833 of 2013 (D)

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PETITIONER(S) :

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E.B. DEVADAS

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ASSOCIATE PROFESSOR, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THAIKATTUSSERY, THRISSUR

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BY ADV. SRI.P.C.SASIDHARAN

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RESPONDENT(S) :

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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE(D)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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2. THE DIRECTOR AYURVEDA MEDICAL EDUCATION, AROGYA BHAVAN, THIRUVANANTHAPURAM- 695 001.

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3. THE MANAGER, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THAIKATTUSSERY , THRISSUR- 680 306.

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4. THE PRINCIPAL, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THAIKATTUSSERY, THRISSUR- 680 306.

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R1 & R2 BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN R3 & R4 BY ADVS. SRI.P.SANJAY

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SRI.SUSEEL M.MENON

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 8833 of 2013 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT.P1:	TRUE COPY OF THE GO(MS)NO 82/89/H&FWD DATED 10/4/1989.
EXT.P2:	TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 17/01/1990.
EXT.P3:	TRUE COPY OF THE ORDER NO GA-II/B3/714/90 DATED 19/06/1990 ISSUED BY THE UNIVERSITY DATED 19/6/1990.
EXT.P4:	TRUE COPY OF THE GO(MS)NO. 107/2012/H&FWD DATED 7/4/2012 ISSUED BY THE GOVERNMENT.
EXT.P5:	TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 7/3/2013.
EXT.P6:	TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER DATED 16/03/2013.
EXT.P7:	TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED 8/3/2013.
EXT.P8:	TRUE COPY OF THE COMMUNICATION ISSUED BY THE MANAGER DATED 20.06.2013.
EXT.P9:	TRUE COPY OF THE ORDER G.O(MS)NO. 131/2014/H&FWD DATED 30.04.2014 ISSUED BY THE GOVERNMENT.

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R1(A):	A TRUE COPY OF THE GOVERNMENT ORDER G.O(MS)NO. 471/13/H&FWD DATED 05.12.2013.
EXHIBIT R2(A):	A TRUE COPY OF THE LETTER NO. 14108/D3/13/H&FWD DATED 02.04.2013 ISSUED BY THE HEALTH AND FAMILY WELFARE DEPARTMENT TO THE 2ND RESPONDENT.
EXHIBIT R3(A):	TRUE COPY OF THE LETTER DATED 03.01.2013 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT.
EXHIBIT R3(B):	TRUE COPY OF THE LETTER DATED 06.03.2013 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT.
EXHIBIT R3(C):	TRUE COPY OF THE GOVERNMENT LETTER NO. 14108/D3/ 2013/H&FWD DATED 02.04.2013 ADDRESSED TO THE 2ND RESPONDENT.
EXHIBIT R3(D):	TRUE COPY OF THE LETTER NO. E4/1938/2013/DAME DATED 08.04.2013 TO THE 4TH RESPONDENT.

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WP(C).No. 8833 of 2013 (D)

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EXHIBIT R3(E): TRUE COPY OF THE GOVERNMENT BY LETTER NO. 15917/D3/2013/H&FWD DATED 02.05.2013 TO RESPONDENTS 2 AND 4.

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EXHIBIT R3(F): TRUE COPY OF THE G.O(MS)NO. 471/2013/H&FWD DATED 05.12.2013.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

W.P.(C) No.8833 of 2013

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----------------------------------------Dated this the 8th day of November, 2016

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JUDGMENT

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The writ petition is filed seeking directions to the respondents to permit the petitioner to continue in service till he attains the age of 60 years. The petitioner was appointed as junior lecturer in Sanskrit in the Vaidyarathnam Ayurveda College by Ext.P2 order dated 17.01.1990. The post of junior lecturer in Sanskrit was a permanent post sanctioned by Ext.P1 order dated 10.04.1989. By Ext.P4 order dated 07.04.2012, the Government ordered that the retirement age of teaching staff of Ayurveda Colleges in the State shall be enhanced to 60 years from the existing 56 years. By Ext.P5, the Principal of the College gave the petitioner notice of retirement. The petitioner had preferred Ext.P6 reply, stating that in the light of Ext.P4 order dated 07.04.2012, he was entitled to continue until the age of 60 years. By Ext.P7 order dated 08.03.2013, the Principal addressed the Director of Ayurveda Medical

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W.P.(C) No.8833 of 2013 -2-

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Education, seeking a clarification whether the petitioner is entitled to continue till the age of 60 years. The petitioner filed this writ petition on 27.03.2013 and an interim order directing his continuance in service was passed by this Court on 01.04.2013.

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Counter affidavits have been filed by the first and

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second respondents as well as respondents 3 and 4. It is contended by the first respondent that a clarification has been issued by the Government on 05.12.2013, holding that teachers under non medical categories in Government and aided Ayurveda Colleges under the Ayurveda Medical Education Service will retire on attaining the age of 56. The second respondent states that pursuant to Ext.P7 letter of the Principal of the College, the Director had addressed the Government and by Ext.R2(a) communication dated 02.04.2013, the Government had informed that the language teachers in the Ayurveda Medical Education department were not entitled to the protection contained in Ext.P4 order. It is

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W.P.(C) No.8833 of 2013 -3-

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therefore contended that the continuance of the petitioner after 30.04.2013 is unwarranted and the petitioner cannot claim the benefits since Ext.P4 order has been clarified by the Government. The counter affidavit filed by the respondents 3 and 4 relies on Exts.R1(a) and R2(a) letters to contend that the petitioner who is a language teacher in the third respondent college is not entitled to the benefit of continuance of service till 60 years of age, since language teachers in Government Ayurveda Colleges have to retire at 56.

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Heard the learned counsel for the petitioner, learned Government Pleader appearing for the respondents 1 and 2 and the learned counsel appearing for respondents 3 and 4.

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It is contended by the learned counsel for the petitioner that Ext.P4 order did not make any distinction between medical and non-medical teaching staff in Government or aided Ayurveda Colleges. It is contended that Ext.P4 clearly provided for enhancement of retirement age of

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W.P.(C) No.8833 of 2013 -4-

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teaching staff of Ayurveda colleges. It is contended that there

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is no distinction between medical and non medical teaching staff in Ayurveda Medical Colleges as provided by any rules or orders in force. In the above view of the matter, it is contended that the enhancement of retirement age as contained in Ext.P4 was applicable equally to all teaching staff of Ayurveda colleges and there can be no classification as between medical and non medical staff. It is further contended that the teachers in the Ayurveda Medical Education department in Government colleges comprises only of teachers in medical subjects and non medical teachers are appointed by deputation from the Higher Education Service. In the above view of the matter, it is stated that the retirement of such teachers at the age of 56 cannot be relied on as a ground for denying the benefit to the petitioner.

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Learned Government Pleader would on the other

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hand submit that Ext.P4 was issued in the facts and circumstances available at the relevant time. It is stated that

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W.P.(C) No.8833 of 2013 -5-

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the Central council of Indian Medicine had remarked on the dearth of qualified teaching staff in Ayurveda colleges and had reduced the number of BAMS seats in Government Ayurveda college, Thiruvananthapuram in view of the said dearth of staff. Post Graduation courses in different specialties was denied in the colleges since higher posts would not be filled up due to lack of qualified hands. It was in the above circumstances that the retirement of existing teaching staff in Ayurveda Colleges was enhanced to 60. It is contended that such enhancement was not intended to apply to language teachers working in such colleges. It is contended that Ex.R2

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(a) letter was therefore issued clarifying Ext.P4 order and stating that the petitioner had to retire at the age of 56. The Government Pleader also relies on Ext.R1(a) clarification issued by the Government and states that at least with effect from date of such clarification the petitioner's service was liable to be terminated.

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Learned counsel for the petitioner had produced

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W.P.(C) No.8833 of 2013 -6Ext.P9 order issued by the Government on 30.04.2014. In Ext.P9, the Government had ordered the enhancement of retirement age of non medical teachers in Government medical colleges under the Medical Education service to 60 years from the existing age of 56. It is therefore contended that the policy of the Government was to exempt all teachers and therefore there is no error in the petitioner being allowed to continue in service till the age of 60. The learned Government Pleader would contend that Ext.P9 would apply only to teaching staff of Government colleges till the date of Ext.P9 order, the petitioner had no claim for continuance in service.

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The petitioner is admittedly appointed as a junior lecturer in Sanskrit in the third respondent's college. Ext.P1 would show that the petitioner was appointed against a sanctioned post of junior lecturer. He is a teaching staff of a private Ayurveda college. Ext.P4 clearly provides for the enhancement of retirement age in respect of teaching staff of Ayurveda colleges to 60 from the existing 56 years. The

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W.P.(C) No.8833 of 2013 -7-

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petitioner claimed this benefit. Though Exts.R1(a) and R2(a) orders were issued purporting to be orders in clarification, the petitioner had in the meanwhile approached this Court and obtained an order facilitating his continuance in service. He had actually worked as junior lecturer in Sanskrit, in the third respondent's college, after 30.04.2013 also. He is due to attain the age of 60 years on 01.12.2016.

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The language teachers in Government Ayurveda colleges have now been permitted to continue till the age of 60 years, by Ext.P9 order. The reasons stated in Exts.R2(a) and R1(a) clarification for denying the benefit of Ext.P4 to the petitioner no longer exist in view of Ext.P9 order issued by the Government. Exts.R2(a) and R1(a) orders cannot govern the situation as of now. In the above view of the matter, I am of the opinion that the petitioner who is appointed as a language teacher in sanctioned post in the third respondent's college is also entitled to continue in service till the age of 60 years, on the strength of Ext.P4 order.

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W.P.(C) No.8833 of 2013

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-8-

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In the result, this writ petition is allowed. There will

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be a direction to the respondents to permit the petitioner to

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continue in service till he attains the age of superannuation as

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provided in Ext.P4 order.

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Sd/ANU SIVARAMAN, JUDGE

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E.B. Devadas v. State of Kerala

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E.B. Devadas v. State of Kerala

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