VALSAKUMARI Vs. STATE OF KERALA

JUDGEMENT

(1.) Seminal questions, inter alia, involving interpretation of Art.229(2) of the Constitution of India, arise for consideration in these writ petitions. Since the issues are common, they have been heard together and are being disposed of by this common judgment. For the sake of convenience, reference is made to WP (C) No. 31662/07.

(2.) The petitioners were / are officers and members of the staff of the High Court of Kerala and are governed by the Kerala High Court Service Rules, 2007 (for short "the Rules, 2007"). The said Rules have been brought into force by the Hon'ble Chief Justice exercising powers under Art.229(2) of the Constitution of India. The Rules which were earlier in force in Kerala from 1970 were revised and published in the Gazette dated 13/02/2007 and were brought into force with effect from 01/01/2007. The Rules, in operation prior to the 2007 Rules, were the High Court Service Rules, 1970, which were enforced with the approval of the Governor. R.35 of the 1970 Rules provided that the various service rules in the State of Kerala, applicable to the Officers and servants and subject to the Rule making control of the Governor or the Government of Kerala, as the case may be, shall, subject to the High Court Service Rules, govern the members of the service in the matter of their pay, allowances, leave, leave salary, pension and other conditions of service. Thus, the provisions of the Kerala Service Rules were also made applicable to the members of the High Court staff. Consequently, by virtue of R.60(a) of Part I of the Kerala Service Rules, the age of retirement of the High Court staff was also 55 years. When the Rules were framed in 2007, an express provision was made as regards the age of retirement, vide Rules 37(1) of the Rules which reads as follows:

(3.) Consequently, insofar as the High Court staff are concerned, the age of retirement stood enhanced from 55 to 58. The petitioners, therefore, contended that they are eligible to continue till the age of 58 years. Apparently, the State Government took up the stand that the enhancement of the retirement age 55 to 58 for the High Court staff as per R.37(1) of the Rules cannot be accepted. The Government declined to disburse the salaries due to the persons who continued in service after the age of 55 by virtue of R.37(1) of the Rules, 2007. This was challenged in a batch of writ petitions before this Court, and ultimately led to the judgment dated 13/08/2007. This Court found that R.37(1) of the Rules, which provided for enhancement of the retirement age of the High Court staff from 55 to 58 is a prescription made by the Hon'ble Chief Justice in exercise of his powers under Art.229(2) of the Constitution of India. The stand taken by the Government, that the said Rules, insofar as it relates to the prescription of the retirement age, will be comprehended by the proviso to Art.229(2) of the Constitution and therefore, it requires the approval of the Governor of the State, was considered by this Court and negatived. Regarding the prescription of the age of retirement, this Court found that it does not relate to the salary, leave, leave salary or pension and therefore, the Rule prescribing the retirement age does not require the approval of the Governor of the State. It was so declared and a writ of mandamus was issued commanding the Government to draw and disburse the salary due to the petitioners in the said cases.