Koshy v. State of Kerala — 1989 DIGILAW 469 (KER)

Judgment :- 1. The short question that arises for consideration in this original petition is whether a Professor and Head of the Department of the Kerala Agricultural University who retires on attaining the age of 60 is entitled to continue till the last day of the month in which he completes the age of 60 years or till the last day of the month in which the academic year during which he completes the age of 60 years expires. 2. Petitioner is working as Professor and Head of the Department of Agronomy in the college of Agriculture, Vellayani. He attained the age of 60 on 20-10-1989. He has been asked to retire from service on 31-10-1989. According to the petitioner, the said order is illegal and he is entitled to continue till the last day of the month of the academic year 1989-90. 3. The argument advanced by the learned counsel is in the following terms:--S.63 of the Kerala Agricultural University Act authorises the Government to make the first Statutes and the Ordinance of the University. In exercise of that power Government issued the first Statutes in S.R.O.293/1972 dated 15-6-1972. S.4 of the Statutes provides that conditions of service applicable to the Government servants contained in the Kerala Service Rules and the Kerala State and Subordinate Service Rules should mutatis mutandis be applicable to the University employees. So the retirement of an employee of the University must be governed by R.60 of Part 1 KS.R. R.60(a) provides that an officer should retire on the last day of the month in which he attains the age of 55. This provision has been held by this court in Asst. Educational Officer v. Velayudhan Kurup (1980 K.L.T. 790) to be not applicable to teaching staff of educational institutions. This court has held that teaching staff of educational institutions are governed by the special provision contained in Clause (c) of R.60 of Part 1 K.S.R. As per that clause, teaching staff of all educational institutions are entitled to continue in service till the last day of the month in which the academic year ends. In this state of affairs petitioner is entitled to continue in service till the last day of the month in which the academic year 1989-90 ends. The order of the University directing the petitioner to retire on 31-10-1989 is illegal and beyond their powers. In this state of affairs petitioner is entitled to continue in service till the last day of the month in which the academic year 1989-90 ends. The order of the University directing the petitioner to retire on 31-10-1989 is illegal and beyond their powers. So petitioner should be allowed to continue in service till 31-3-1990, the last day of the month in which the academic year 1989-90 ends. 4. When this original petition came up for admission on 25-10-1989, a copy of the same was served on the standing counsel representing the Kerala Agricultural University. According to the learned counsel, petitioner is not entitled to continue till the last day of the academic year 1989-90 because R.60(c) of Part 1 K.S.R. has no application to persons like the petitioner. R.60(c) can apply only to those members of the teaching staff who are to retire on completing the age of 55. A member of the teaching staff who is to retire on completing the age of 60 years does not come within the purview of that Rule. In the case of such a member the provision that should apply is the one akin to that contained in R.60(a) of Part 1 K.S.R. As per that Rule, except in very exceptional circumstances, no officer can be retained in service after the age of 60 years. In this view it is contended that the petitioner is not entitled to any of the reliefs asked for. 5. All the members of the teaching staff of the Kerala Agricultural University were to retire on completing the age of 55. It was so provided in S.42 of the Kerala Agricultural University Act as it stood prior to the Amendment in 1986. By virtue of the Amending Act, Act 27 of 1986, the normal retirement age of Deans of Faculties, the Director of Extension, the Director of Veterinary Research and Education, the Director of Post Graduate Studies and the Professors of the University has been fixed at 60 years. 6. By virtue of the Amending Act, Act 27 of 1986, the normal retirement age of Deans of Faculties, the Director of Extension, the Director of Veterinary Research and Education, the Director of Post Graduate Studies and the Professors of the University has been fixed at 60 years. 6. R.60(c) of Part 1 K.S.R. provides:- "The teaching staff of all educational institutions (including Principals of Colleges) who complete the age of 55 years during the course of an academic year shall continue in service till the last day of the month in which the academic year ends" This provision can apply only to those members of the teaching staff who are to retire from service on completing the age of 55 years. According to me, this provision has nothing to do with those members of the teaching staff who are to retire on completing the age of 60 years. The legislature must be presumed to have been aware of this provision in the K.S.R. when they passed Act 27 of 1986. They did not think it fit to make any change to R.60(c). It means that the benefit of that Rule is not extended to persons who retire on completing the age of 60 years. Accordingly I am of the view that a member of the teaching staff who is to retire on completing the age of 60 years is not entitled to continue in service till the last day of the month in which the academic year ends. I am fortified in this conclusion because of the specific provision contained in the latter part of R.60(a) which provides that a Government servant must not be retained after the age of 60 years except in very special circumstances. There cannot be any "very special circumstances" for retaining a teacher in service even after he completes the age of 60 years. 7. Teachers of private colleges who entered service prior to 1-4-1958 were given option to retire at 60 years of age. In the case of such teachers the Statutes of the Kerala, Calicut and Mahatma Gandhi Universities allowed them to continue in service till the last day of the month in which the academic year ends if they complete the age of 60 years on 2nd July or later during the course of an academic year. Such a provision is conspicuously absent in the Statutes of the Kerala Agricultural University. Such a provision is conspicuously absent in the Statutes of the Kerala Agricultural University. The first Statutes of the University was not amended after Act 27 of 1986 to bring in a provision similar to the above. This court is not to read in to the existing Statute any provision akin to the one contained in the Statutes of other Universities. If any attempt in that direction is made, it will amount to legislation, which is not within the jurisdiction of this court. Hence even after Act 27 of 1986, the retirement of the officers of the Agricultural University is controlled by R.60 of Part 1K.S.R. That provision, as stated earlier, cannot support the petitioner's contentions. 8. According to the learned counsel appearing for the petitioner, the Division Bench decision referred to earlier (1980 K.L.T. 790) specifically held that the earlier part of R.60 (a) has no application to members of the teaching staff. So it is contended that the petitioner cannot be allowed to continue beyond 20-10-1989, the date on which he completes the age of 60 years. The University has now allowed him to continue till 31-10-1989. This, according to counsel, is against the decision referred to earlier and so Ext.P5 direction is illegal. I see much force in this argument. Since petitioner has been given a benefit to continue till 31-10-1989, the last day of the month in which he attains the age of 60 years, I do not think it proper to deny him that benefit in this O.P. filed by him. 9. Petitioner is not entitled to continue in service till the last day of the month in which the academic year ends. He is not entitled to any of the prayers made in this O.P. The original petition fails. It is dismissed.