Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST DAY OF JANUARY 2013 1ST MAGHA 193 WP(C).No. 29055 of 2008 (H) --------------------------- PETITIONER(S): -------------------------- THARABAI.P.A., W/O. KRISHNANKUTTY, AYECHETTY HOUSE, PALLIKKUNNU.P.O., KANNUR DISTRICT. BY ADVS.SRI.DEEPU THANKAN SMT.O.H.NAZEEBA RESPONDENT(S): ---------------------------- 1. KERALA FISHERMEN'S WELFARE FUND BOARD, AYYAPPA NAGAR, PONKUNNAM, THRISSUR - 2, REPRESENTED BY ITS FISHERIES WELFARE COMMISSIONER.
2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FISHERIES AND PORTS (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.ASOK M.CHARIYAN, SC, KFWFB R2 BY GOVERNMENT PLEADER SMT. A. LOWSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29055/2008 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE STAFF REGULATION OF THE 1ST RESPONDENT BOARD. P2: COPY OF THE MINUTES OF THE BOARD MEETING HELD ON 26/10/2007. P2(A): COPY OF THE MINUTES OF THE BOARD MEETING HELD ON 23/11/2007. P3: COPY OF THE LETTER DTD. 12/11/2007 OF THE 1ST RESPONDENT. P4: COPY OF THE LETTER OF THE 2ND RESPONDENT DTD. 11/12/2007. P5: COPY OF THE GOVT. ORDER DTD. 28/03/2003. P6: COPY OF THE ORDER DTD. 10/06/2008. P7: COPY OF THE JUDGMENT DTD. 27/05/2008 IN W.A.NO.1054/2008. P8: COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN W.P.NO.18013/2007 DTD. 12/06/2007. P9: COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN I.A.NO.6334/2008 DTD. 2/06/2008 IN W.P.NO.12262/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J.
--------------------------- W.P.(C) No.29055 OF 200.-------------------------- Dated this the 21stday of January, 2013 JUDGMENT
The petitioner is a former employee of the Kerala Fishermen's Welfare Fund Board (hereinafter referred to as 'the Board' for short). The age of superannuation of employees of the Board was 55 years. The petitioner attained the age of superannuation (55 years) on 5.2.2007 and she retired from service at the end of the month i.e., on 28.2.2007 in accordance with the stipulations in the regulations. Thereafter, the governing body of the Board that met on 23.11.2007 resolved to increase the age of retirement of employees of the Board from 55 years to 58 years subject to the approval of the Government. The Government declined approval by Ext.P4 letter dated 11.12.2007. The petitioner thereafter submitted a representation before the Commissioner for the Board and later filed W.P.(C).No.8541 of 2008 in this Court inter alia seeking a direction to the Commissioner of the Board to consider the said representation and pass orders thereon. The said writ petition was disposed of by judgment delivered on 13.3.2008 with a direction to the Commissioner of the Board to dispose of the representation after affording the petitioner an opportunity of being heard. The Commissioner thereupon issued WPC No.29055/2008 2 Ext.P6 order dated 10.6.2008 holding that the petitioner cannot as per the regulations in force aspire to continue in service beyond the age of 55 years. The instant writ petition was thereupon filed on 29.9.2008 challenging Exts.P4 and P6 orders and seeking the following reliefs: "(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibits-P4 & P6 quash the same; (ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing to reinstate the petitioner in service and allow her to continue to service as decided by the governing board of the 1st respondent." 2. When the writ petition came up for admission hearing on 30.9.2008 this Court permitted the petitioner to continue in service beyond the age of 55 years subject to the condition that salary and allowances need not be paid to her. The petitioner thereafter filed I.A.No.14340 of 2008 to modify the order passed by this Court at the stage of admission on 30.9.2008 and prayed for an order directing the respondents to reinstate her in serve and to allow her to continue in service. The said application was dismissed by order passed on 12.11.2008 which reads as follows: "In this writ petition the petitioner challenges the decision taken by the Government to decline approval for enhancement of the age of retirement in the Kerala Fishermen's Welfare Fund Board. The writ petition was presented on 29.9.2008. Ext.P4 which is impugned in the WPC No.29055/2008 3 writ petition is dated 11.12.2007. Ext.P6 which is also impugned in the writ petition is dated 10.6.2008. The petitioner admittedly retired from service on attaining the age of 55 years on 28.2.2007. While admitting the writ petition I had directed the respondents to allow the petitioner to continue in service beyond the age of 55 years subject to the condition that salary and allowances need not be paid to her until disposal of the writ petition. In this application the petitioner submits that notwithstanding the said order, the respondents have not reinstated her in service and prays that the interim order passed on 30.9.2008 may be modified and the respondents may be directed to reinstate her in service. The petitioner admittedly retired on 28.2.2007 long before the impugned orders were passed. She cannot therefore seek reinstatement in service so long as the impugned orders are not set aside and the age of retirement is enhanced. The interim relief prayed for by the petitioner in this application cannot therefore now be granted. The application is accordingly dismissed." 3. The consequence of the aforesaid interim orders is that the petitioner did not continue in service beyond 28.2.2007, the date on which she retired from service on attaining the age of superannuation. Long after the petitioner retired from service on attaining the age of superannuation on 28.2.2007, the Government issued G.O.(Ms) No.62/11/F&P dated 18.6.2011 increasing the age of retirement of employees of the Board from 55 to 58 years. Still later by G.O.(Ms) No.97/2012/F&P dated 18.12.2012, the Government directed that the decision to enhance the age of retirement of employees from 55 years to 58 years shall have retrospective effect from 31.10.2009. The petitioner had in the meanwhile filed W.A.No.2381 of 2008 challenging the order passed by this Court on 12.11.2008 in I.A.No.14340 of WPC No.29055/200”
2008. The said writ appeal was disposed of with the clarification that if the writ petition is ultimately allowed, the petitioner will be entitled to all monetary benefits.
4. When the writ petition came up for hearing today, the learned counsel appearing for the petitioner contended that in view of G.O.(Ms)No.62/11/F&P dated 18.6.2011 that was modified by G.O. (Ms)No.97/2012/F&P dated 18.12.2012, the petitioner who would have attained the age of 58 years on 5.2.2010 is entitled to continue in service till 28.2.2010 and therefore, the writ petition may be disposed of with a direction to the respondents to disburse to her monetary benefits by treating her as in service beyond 55 years and up to 58 years. In my opinion, the claim made by the petitioner cannot be sustained. As per regulations that stood in force at the relevant time, the petitioner could not have continued in service beyond the age of 55 years. The petitioner completed 55 years of age on 5.2.2007 and in terms of the regulations, retired from service at the end of the month, namely 28.2.2007. She was not in service on 29.9.2008 when the instant writ petition was filed or on 30.9.2008 when it was admitted and an interim order directing the respondents to continue the petitioner in service beyond the age of 55 years was passed. Her request for reinstatement in service was also rejected by WPC No.29055/2008 5 order passed on 12.11.2008. In such circumstances, as the petitioner was not in service she having retired from service on 31.10.2009, on attaining the age of superannuation on 28.2.2007, the petitioner cannot contend that she is entitled to the benefit of the Government orders dated 18.6.2011 or 18.12.2012. The petitioner who did not continue in service after 28.2.2007 and was not in service as on 31.10.2009, the date on which the retirement age was enhanced from 55 to 58, cannot in my opinion contend that she should be paid salary and allowances during the said period from 28.2.2007 to 28.7.2010 or that the said period should be reckoned for any service benefit. In view of the fact that the petitioner retired from service on 28.2.2007 on attaining the age of 55 years and was not in service thereafter and had also not worked thereafter, she cannot justifiably claim the benefit of the enhancement of the age of retirement which was granted by the Government orders dated 18.6.2011 and 18.12.2012 with effect from 31.10.2009. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, (JUDGE) vps WPC No.29055/2008 6 WPC No.29055/2008 7