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2009 DIGILAW 830 (KER)

Radhakrishna Kurup v. Travancore Devaswom Board

2009-08-28

P.N.RAVINDRAN

body2009
JUDGMENT : Common questions arise in these writ petitions. They were therefore heard together and are being disposed of by this common judgment, 2. The petitioners are employees of the Travancore Devaswom Board. The petitioner in W.P.(C) No.l6128 of 2009 retired from service on 31.5.2009 and the petitioner in W.P.(C)No.19648 of 2009 is due to retire from service on 31.8,2009. Though the petitioner in W.P.(C) No.20462 of 2009 attained the age of superannuation on 31.7.2009, he is continuing in service by reason of the interim order passed by this Court in the said writ petition, 3. The age of retirement of employees of the Travancore Devaswom Board, is presently 55 years, as in the case of Government employees. Recently, by G.O (P)No.l54/2009/Fin. dated 24.4.2009 (Ext.P1) the Government ordered that Government employees and teachers including teachers of aided schools who are governed by Rule 60(a) of Part I of the Kerala Service Rules and attain the age of superannuation after 31st March of every year will retire from service only on 31st March of the succeeding English Calender year. Later, the Government issued G.O.(P)No,158/2009/Fin. dated 30.4.2009 extending the benefit of the Government order dated 24.4.2009 to employees of Public Sector Undertakings/Autonomous Bodies, Universities, Corporations & Boards under the State Government. The Government also clarified that in the case of Autonomous Bodies, the Government order will apply subject to the decision taken by the governing body. Still later, Rule 60(a) of Part I of the Kerala Service Rules was amended by issuing G.O.(P) No.261/2009/Fin. dated 4.7.2009, with effect from 24.4.2009. 4. Rule 60(a) of Part I of the Kerala Service Rules before it was amended read as follows: "60(a) Except as otherwise provided in these rules the date of compulsory retirement of employees and teachers shall take effect from the afternoon of the last day of the financial year in which they attain the age of 55 years. They may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but they must not be retained after the age of 60 years except in very special circumstances; Note:- The extended period of service under sub-rule (a) shall be reckoned for all service benefits such as increment, pension, higher grade, accrual of leave, promotion and pay revision." 5. After the Government orders dated 24.4.2009 and 30.4.2009 were issued, the Travancore Devaswom Board decided not to adopt the postponement of the date of retirement introduced by the said Government orders to employees of the Board. Ext.R1(c) proceedings dated 30.4.2009 was thereupon issued. Thereafter, the petitioner in W.P.(C)No.l6128 of 2009 retired from service on 31.5.2009 on attaining the age of 55 years. W.P.(C)No.16128 of 2009 was thereupon filed seeking a declaration that the petitioner is entitled to continue in service till 31.3.2010 in terms of the Government orders dated 24.4.2009 and 30.4.2009. The other writ petitions were thereafter filed. The short question that arises for consideration in these writ petitions is whether Rule 60(a) of Part I of the Kerala Service Rules as amended, postponing the date of retirement of Government employees and teachers including teachers of aided schools till the end of the financial year, applies to employees of the Travancore Devaswom Board. 6. The Government order dated 24.4.2009, a copy of which is produced and marked as Ext.P1 does not in terms apply to employees of the Travancore Devaswom Board. However, it was stated in Ext.P1 that necessary amendments to the relevant rules in the Kerala Service Rules will be issued separately, Four days later, the Government issued Ext.R1(b) order dated 30.4.2009 produced in W.P.(C) No.20462 of 2009 extending the benefit of Ext.P1 Government order to employees of Autonomous Bodies with the stipulation that the Government orders will apply subject to the decision by the governing bodies. The Travancore Devaswom Board considered these Government orders and decided not to adopt the Government orders dated 24.4.2009 and 30.4.2009. However, shortly thereafter, Rule 60(a) of Part I of the Kerala Service Rules was amended in the manner proposed in Ext.P1. The petitioners contend that in view of the amendment of the Kerala Service Rules which had earlier been adopted by the Travancore Devaswom Board, they are entitled to continue in service till the end of the financial year i.e., till 31.3.2010. The Board resists the said contention on the groud that in view of the stipulations in the rules framed by the Travancore Devaswom Board under Section 35(2)(e) of the Hindu Religious Institutions Act, 1950, the stipulations in Rule 60(a) of Part I of the Kerala Service Rules as amended cannot apply. 7. The Board resists the said contention on the groud that in view of the stipulations in the rules framed by the Travancore Devaswom Board under Section 35(2)(e) of the Hindu Religious Institutions Act, 1950, the stipulations in Rule 60(a) of Part I of the Kerala Service Rules as amended cannot apply. 7. The Board had in the year 1952 issued a set of rules in exercise of the power conferred on it under section 35(2)(e) of the Travancore-Cochin Hindu Religious Institutions Act, 1950. Rule 20 of the said rules reads as follows: "20. No officer shall be retained in service after the completion of his 55th year of age. The rules re: Superannuation etc. under the Service Regulations of the Travancore-Cochin Government for the time being in force will be applicable to all Devaswom servants other than those falling under class (d)." Rule 20 extracted above did not apply to Karanma holders for whom the age of retirement was fixed as 60. Karanma holders were governed by Rule 23 of the said rules which is extracted below: "23. Except Karanma holders no Devaswom servant will be retained in service after the completion of his 60"' year of age or entertained in service unless he has completed 18 years of age," Though going by Rule 20 and 23, Board employees like the petitioners had to retire from service on the day they attain 55 years of age, for the reason that the rules governing superannuation in the service regulations issued by the Travancore-Cochin Government enabled them to continue in service till the end of the month in which they attain the age of superannuation, they could continue in service till the end of the month in which they attain the age of 55 years. As regards Karanma holders, it was however stipulated that they will cease to be in service on the date on which they complete 60 years of age. Rule 23 of the above quoted rules was later amended by a notification dated 5.10.1977. Rule 23 as amended reads as follows: "The minimum age required for appointment in service either as Karanma or as contingent employee shall be 18 years. No temple employees, either Karanma or contingent who has entered service before 01.01.1972 will be retained in service after the completion of his 60th years of age. Rule 23 as amended reads as follows: "The minimum age required for appointment in service either as Karanma or as contingent employee shall be 18 years. No temple employees, either Karanma or contingent who has entered service before 01.01.1972 will be retained in service after the completion of his 60th years of age. Temple employees appointed after 01.01.1972 either in Karanma or contingent service will not be retained after completion of his 55th years of age." As per the amended Rule 23, no temple employee either Karanma or contingent, who entered service before 1.1.1972 is entitled to be retained in service after completing 60 years of age. It was also stipulated that temple employees appointed after 1.1.1972 either Karanma or contingent, will not be retained in service after completion of 55 years of age. 8. The Board had periodically adopted various Government orders issued from time to time and various provisions of the Kerala Service Rules in matters relating to service conditions of employees of the Board., excluding temple employees. Later, in super session of the rules issued by the Board in the year 1952 under Section 35(2)(e) of the Hindu Religious Institutions Act, 1950, the Board issued Ext.R1 (a) rules which were published in the Kerala Gazette dated 26th December, 1979. The preamble to Ext.R1 (a) provides that Rules 20 to 25 of the earlier set of rules will continue to operate. Rules 2 and 3 of Ext.R1(a) read as follows: "Rule 2 - The conditions of service of all devaswom employees envisaged in these rules shall be deemed to have been governed with effect from the 1st April, 1963, by the rules contained in the Kerala Service Rules promulgated by the Kerala Government and the G.Os. issued from time to time by the Kerala Government from 1st November, 1956, in so far as they have been adopted by resolutions taken by the Board and in so far as they are not repugnant to the context of the services under the Devaswom Board. Rule 3 - The conditions of service of Devaswom employees envisaged under these rules, shall continue to be governed by the rules contained in the Kerala Service Rules, promulgated by the Kerala Government and the rulings and G.Os. Rule 3 - The conditions of service of Devaswom employees envisaged under these rules, shall continue to be governed by the rules contained in the Kerala Service Rules, promulgated by the Kerala Government and the rulings and G.Os. issued by the Kerala Government from time to time in so far as they are not repugnant to the context of services under the Board, and until the Board frames independent and comprehensive rules to govern the services of their employees." 9. Rule 2 extracted above states that the conditions of service of devaswom employees shall be deemed to have been governed with effect from 1.4.1963 by the rules contained in the Kerala Service Rules promulgated by the Kerala Government and the Government orders issued from time to time from 1.11.1956, in so far as they have been adopted by resolutions taken by the Board and in so far as they are not repugnant to the context of services under the Board. Rule 2 declares that the service conditions of devaswom employees will be deemed to have been governed with effect from 1.4.1963 by the Kerala Service Rules in so far as they have been adopted by the Board and in so far as they are not repugnant to the context of services under the Board. Rule 3 states that the conditions of service of devaswom employees shall continue to be governed by the rules contained in the Kerala Service Rules promulgated by the Kerala Government and the rulings and Government orders of the Kerala Government in so far they are not repugnant to the context of services under the Devaswom Board, until the Board frames independent and comprehensive rules to govern the services of their employees. Thus, by virtue of Rule 3, devaswom employees continue to be governed by the provisions of the Kerala Service Rules. Though unlike in Rule 2 it is not necessary for the Board to adopt the Kerala Service Rules by a resolution, Rule 3 stipulates that the provisions of the Kerala Service Rules will govern only if they are not repugnant to the context of services under the Board. 10. Though unlike in Rule 2 it is not necessary for the Board to adopt the Kerala Service Rules by a resolution, Rule 3 stipulates that the provisions of the Kerala Service Rules will govern only if they are not repugnant to the context of services under the Board. 10. The question that then arises for consideration is whether the provisions in Rules 20 and 23 which continue to be in force and govern the service conditions of employees of the Board are repugnant to the provisions of Rule 60(a) of Part I of the Kerala Service Rules as amended and the stipulations in Ext.P1 Government order. This Court is not in these cases dealing with the service conditions of temple employees for whom Ext.R1 (a) rules and the provisions of the Kerala Service Rules do not apply. In these cases, this Court is concerned only with employees other than temple employees for whom the Kerala Service Rules do not apply. It is evident from Rule 3 quoted above issued in the year 1979 that the provisions of the Kerala Service Rules will automatically apply except in cases where it is not repugnant to the context of services under the Board, until the Board frames independent and comprehensive rules to govern the services of their employees. Section 35 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 empowers the Travancore Devaswom Board to make rules regarding the method of recruitment and qualifications, the grant of salaries and allowances, the discipline and conduct of officers and servants of the Board and the Devaswom Department and generally the conditions of their service. It is in exercise of this power that the Board has issued Rules 20 and 23 extracted above which stipulate that no officer shall be retained in service after he completes 55 years of age. Even in the case of Karanma holders, with effect from 1.1.1972 he/she will have to retire from service on completion of 60 years of age. It is in exercise of this power that the Board has issued Rules 20 and 23 extracted above which stipulate that no officer shall be retained in service after he completes 55 years of age. Even in the case of Karanma holders, with effect from 1.1.1972 he/she will have to retire from service on completion of 60 years of age. While the learned counsel for the petitioners contend that the stipulation in Rule 60(a) of Part I of the Kerala Service Rules is not repugnant to the rules framed by the Board under section 35 (2)(e) of the Travancore Cochin Hindu Religious Institutions Act, 1950, the learned standing counsel appearing for the Travancore Devaswom Board contends that there is repugnancy and therefore any amendment to the Kerala Service Rules postponing the date of retirement from the end of the month in which the employee attains the age of superannuation to the end of the financial year concerned, cannot apply to or govern devaswom employees. 11. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The petitioners have no case that without the aid of Ext.R1(a) rules the provisions of the Kerala Service Rules will apply to Devaswom employees. They have no case that even de horse Ext.R1(a) rules or the rules initially framed by the Board under Section 35(2)(e) of the Travancore Cochin Hindu Religious Institutions Act, 1950, devaswom employees will be governed by the provisions of the Kerala Service Rules. It is not in dispute that till 1979, the provisions of the Kerala Service Rules applied to devaswom employees only if they had been adopted by the Board. The fact that the Board has been adopting various provisions of the Kerala Service Rules with effect from 1.4.1963 is evident from the recitals in the preamble to Ext.R1(a) rules and also from Rule 2 thereof. By Rule 2 the Board has declared that with effect from 1.4.1963 the conditions of services of all devaswom employees shall be deemed to have been governed by the rules contained in the Kerala Service Rules in so far as they have been adopted by resolutions taken by the Board, Therefore, till 26.12.1979, the date on which Ext.R1(a) rules came into force, the applicability of the Kerala Service Rules was dependant on the Board adopting the provisions therein. However, Rule 3 says that they shall continue to be governed by the rules in the Kerala Service Rules in so far as they are not repugnant to the context of services under the Board. Rule 3 is in my opinion a stipulation to the effect that the rules in the Kerala Service Rules that have already been adopted by the Board by resolutions taken from time to time will continue to operate if they are not repugnant to the context of services under the Board, till the Board frames independent and comprehensive rules of its own. Therefore, in my opinion, Rule 3 contemplates continuance of the rules in the Kerala Service Rules already adopted by the Board. In other words, any amendment to the rules in the Kerala Service Rules introduced by the Government will not ipso facto apply to devaswom employees by reason of Rule 3. Rule 3 only contemplates that the rules already adopted by the resolutions taken by the Board from time to time shall continue to apply. There is also a rider that the rules thus adopted will apply only if they are not repugnant to the context of services under the Board. 12. It is not in dispute that rules 20 to 25 of the rules framed by the Board in the year 1952 under section 35(2)(e) the Travancore Cochin Hindu Religious Institutions Act, 1950 continue to operate. Even now the said rules have not been superseded. On a plain reading of Rules 20 and 23 as amended it is evident that no devaswom employee is entitled to be retained in service after he/she completes 55 years of age. By applying the rules in the Travancore Service Regulations, they were however permitted to continue in service till the end of the month they attain the age of superannuation. After the Kerala Service Rules were brought into force, the stipulation therein as regards the date of retirement, namely retirement at the end of the month in which the employee completes 55 years of age was adopted. The Board has evidently not adopted Rule 60(a) of Part I of the Kerala Service Rules as amended either in the manner proposed in Ext.P1 or after the amendments were carried out. Therefore, in my opinion, merely by reason of Rule 3, the amendment to Rule 60(a) of Part I of the Kerala Service Rules introduced by G.O(P)No.261/2009/Fin. The Board has evidently not adopted Rule 60(a) of Part I of the Kerala Service Rules as amended either in the manner proposed in Ext.P1 or after the amendments were carried out. Therefore, in my opinion, merely by reason of Rule 3, the amendment to Rule 60(a) of Part I of the Kerala Service Rules introduced by G.O(P)No.261/2009/Fin. dated 4.7.2009 with effect from 24.4.2009 would not apply to employees of the Board. It can apply only if the Board adopts it and that too if it is not repugnant to the context of services of the Board. 13. Section 35(2)(e) of the Travancore Cochin Hindu Religious Institutions Act, 1950 empowers the Board to frame rules dealing with service conditions of employees of the Board. The term context of services under the Board in my opinion refers only to the service conditions of employees of the Board as otherwise it would convey no meaning. In the teeth of the specific recitals and Rules 20 and 23 as amended, it cannot be said that there is no repugnancy between Rule 60 (a) of Part I of the Kerala Service Rules as amended and Rules 20 and 23 of the Rules framed by the Board under Section 35 (2)(e) of the Travancore Cochin Hindu Religious Institutions Act 1950. Therefore, by reason of repugnancy also Rule 60(a) as amended cannot govern employees of the Travancore Devaswom Board. I am therefore persuaded to agree with the learned standing counsel appearing for the Travancore Devaswom Board that the amendments proposed in Ext.P1 Government order and the amendment to Rule 60(a) of Part I of the Kerala Service Rules introduced by G.O.(P) No.261/2009/Fin. dated 4.7.2009 do not govern employees of the Travancore Devaswom Board. The Board has also decided in the meeting held on 30.4.2009 not to apply the said for the time being. Even if decision of the Board had been otherwise, without amending rules Rules 20 and 23, the Board could not have validly adopted the amendment to Rule 60 (a) in view of the stipulations in Rules 20 and 23 framed under Section 35(2)(e) Travancore Cochin Hindu Religious Institutions Act, 1950. I accordingly hold that the petitioners are not entitled to continue in service till the end of the financial year in which they attain the age of superannuation, 14. I accordingly hold that the petitioners are not entitled to continue in service till the end of the financial year in which they attain the age of superannuation, 14. The petitioner in W.P.(C)No. 20462 of 2009 ought to have retired from service on 31.7.2009. By virtue of the interim orders passed by this Court, he was permitted to continue in service subject to the condition that the salary and allowances paid to him for the period from 1.8.2009 will be recovered from him or adjusted against his retirement benefits if the writ petition is ultimately dismissed. In view of the fact that the petitioner has not been paid any salary and allowances for the service rendered by him for the period after 1.8.2009, the said contingency does not arise. However, it is clarified that nothing contained in the interim order passed by this Court staying the retirement of the petitioner in W..P (C) No.20462 of 2009 or this judgment will stand in the way of the Travancore Deveswom Board from voluntarily paying the petitioner in W.P.(C) No.20462 of 2009 the salary and allowances which he is entitled to. I hope and trust that the Board which had utilised his services will not deny him the said benefit. For the reasons stated above, I hold that there is no merit in these writ petitions. The writ petitions fail and are dismissed subject to the observation in paragraph 14 above.