PADMANABHAN NAIR Vs. THE STATE OF KERALA

JUDGEMENT

(1.) The question that falls for decision is whether in the case of the petitioner, who has continuous service as Attender in the Indigenous branch of the Health Department from 1950, is to be reckoned in accordance with clause (a) of R.60, Part I of the Kerala Service Rules (the Rules), or clause (b) thereof. If it is clause (a) that governs, he was to retire on 31st December 1978, his date of birth being 26th Vrischikam 1099 (M.E.); if not, he could continue in service till 31st December 1983.

(2.) The petitioner having had reason to apprehend that steps were afoot to compulsorily retire him on his attaining the age of 55, had submitted to the 1st respondent. [The Secretary to Government, Health Department (Ayurveda), Secretariat, Trivandrum] a representation dated 14th November 1978, a copy of which is Ext. P-2. Therein he had stated inter alia that the scale of pay for the post of attender held by him was before 1966, Rs. 35-45 which was revised to Rs. 65-85 with effect from 1st April 1966 as per G.O. (P) No. 370/66/Fin., dated 12th August 1966; that, therefore, the post came under Last Grade Service as defined in R.12(16A) of the Rules, as amended by (Ext. P-1) G.O. (P) No. 416/78/Fin., dated 12th April 1978; that he had relinquished his right to claim promotion to the post of Attender, Grade I; that he had not been promoted to Grade I; that as on 7th April 1970 he was holding the post of Attender in the Last Grade Service; hence under R.60(b) of the Rules he was entitled to continue in service till the age of 60 years. Not having received "immediate orders" as requested for in Ext. P-2, the petitioner filed O.P. No. 4197 of 1978-N for the issue of a writ of mandamus directing the 1st respondent to dispose of Ext. P-2 representation; and Ext. P-3 is the copy of the judgment of this Court dated 7th December 1978 in that Writ Petition, directing the 1st respondent to dispose of Ext. P-2 as expeditiously as possible. Thereafter the 1st respondent disposed of Ext. P-2 by the order dated 14th December 1978, a copy of which is Ext. P-4, which in its material portion reads as follows:-

(3.) The 3rd respondent, the Director of Indigenous Medicine, Trivandrum, also had communicated to the petitioner a copy of Ext. P-4 Government Order in his letter dated 18th December 1978, a copy of which is Ext. P-3. In essence the challenge in this writ petition is directed against Ext. P-4 Government Order. Before entering the discussion on the merits of the contentions raised by the petitioner and the respondents, it would be advantageous to notice the provisions of R.12(16A) of the Rules as it stood [when amended by G.O. (P) 416/78], before being amended by the Kerala Service (Amendment) Rules, 1979; it read as follows:-