Kerala High Court: In a Writ Petition seeking permission for members of High Court staff to continue service beyond 56 years, the division bench of A. Muhamed Mustaque and Sophy Thomas, JJ. dismissed the petition and remitted the matter back to the government for consideration.
Based on a meeting between the Chief Justice of Kerala High Court and the Chief Minister of the State for enhancement of age of superannuation of the members of the staff of the High court from 56 to 58 years, discussions proceeded further After due consideration, the government conveyed its inability to accept the said proposal since the same is on a par with the retirement age of government servants. According to Kerala High Court, the age of retirement under Service (Age of Retirement) Act, 2008 is 56 years. The instant writ petition was filed by employees who started their service before 1-4-2013, since for those who joined after the said date, the age of retirement is 60 years.
The Court said that as per Article 229 of the Constitution, the Chief Justice of the High Court has the power to determine the terms of service on the High Court concerned including the age of retirement. However, this does not dilute the authority of the state government to decide the age of retirement.
The Court observed that “The retirement age has been fixed by the law laid down by the State legislature. The request of the Chief Justice can only be treated as a proposal for favourable consideration for initiating suitable amendment to the law laid down with respect to the retirement age. This court cannot issue writ of mandamus to the Government to bring suitable amendments to the legislation.”
The Court referred to State of Rajasthan v. Ramesh Chandra Mundra, (2020) 20 SCC 163, wherein, the Court reiterated the principles of mutual respect and comity between different institutes working under the Constitution.
In Valsa kumari v. State of Kerala, 2007 SCC OnLine Ker 81, the Court had ruled that the Chief Justice of a High Court has the right to decide the conditions of service at the High Court, subject to the relevant legislations. However, in all matters involving financial commitments the assent of the State Governor was necessary.
The Court rejected the argument that the assent of the Governor is required here because this is a financial matter. However, it said that the legislature was still in a dominant position to determine the terms of service in the Courts.
The Court also emphasised on the fact that the sub-committee wanted the extension for meritorious employees and not all employees.
However, at the same time the Court felt that the government could not outrightly reject the proposal based merely on the fact that the government servants also retire at the age of 56.
The Court said that many meritorious employees reach high positions but are not able to use their experience to contribute to the working of the judiciary. That is because their age of retirement is very close.
Therefore, the Court opined that the government did not have a proper reason to reject the report of the sub-committee, because the enhancement of meritorious employees was side-tracked during consideration of the proposal by the government.
The Court declined the permission for continuation of service beyond 56 years, while remitting the matter back to the government for consideration of proposal for enhancement of the retirement age of meritorious employees beyond the age of 56 years, hoping the same to be considered at the earliest.
[Ajith Kumar V.S. v. State of Kerala, 2023 SCC OnLine Ker 3586, Judgment dated 31-05-2023]
Judgment by: Justice A. Muhamed Mustaque
Advocates who appeared in this case :
For the Petitioner- Senior Advocate K. Jaju Babu, Advocate M.U. Vijayalakshmi, Advocate Brijesh Mohan, Advocate D. Sreekumar (Kalamassery), Advocate Sachin Ramesh, Advocate K.M. Fathima;
For the Respondents- Advocate Sunil Jacob Jose, Advocate S.P. Aravindakshan Pillay;
Senior Advocate K.P. Satheesan, Advocate N. Santha, Advocate V. Varghese, Advocate Peter Jose Christo, Advocate S.A. Anand, Advocate K.N. Remya, Advocate L. Annapoorna, Advocate Vishnu V.K., Advocate Abhirami K. Uday, Advocate P. Mohandas (Ernakulam), Advocate K. Sudhin kumar, Advocate Sabu Pullan, Advocate Gokul D. Sudhakaran, Advocate R. Bhaskara Krishnan, Special Government Pleader to Attorney General, T.B. Hood.