Haridasan K. vs Deputy Director of Education

C.T. Ravikumar, J.—The petitioner is a High School Assistant in P.M.S.A. Memorial Aided High School, Chemmankadavu, which is an aided school. Earlier, in connection with a forest case registered as O.R. No. 9/2011, the petitioner was arrested and detained from 13-11-2013 to 20-11-2013. Subsequently, he was granted bail as per Ext. P-1 order by the Court of Sessions, Kozhikkode. Since, the period of detention exceeded 48 hours by virtue of operation of the provisions under Rule 67(3) of Chapter XIV A of the Kerala Education Rules (for short ''the KER''), the petitioner was under deemed suspension. The fact that the petitioner was under deemed suspension on account of he is being detained for a period in excess of 48 hours was brought to the notice of the competent educational authority by the Manager, the 2nd respondent. As per Ext. P-3 dated 25-11-2013, the Manager placed the petitioner under suspension with effect from 13-11-2013 owing to his detention for a period in excess of 48 hours. In terms of the provisions under Rule 67(3) of Chapter XIV A of the KER the said order was forwarded to the competent educational authority. As per Ext. P-4, the third respondent granted sanction to the second respondent to continue with the suspension of the petitioner beyond 15 days. Thereupon, the petitioner submitted Ext. P-5 styling it as an appeal under Rule 78 of Chapter XIV A of the KER. Ext. P-5 carries the request of the petitioner to revoke the suspension and to modify it as an order of suspension from 13-11-2013 to 20-11-2013. The captioned writ petition has been filed as no action was taken pursuant to Ext. P-5 appeal, mainly with a prayer to quash Exts. P-3 and P-4 and issue a writ of mandamus commanding the respondents to consider and pass appropriate orders on Ext. P-5.

I have heard the learned senior counsel appearing for the petitioner and also the learned Government Pleader. Evidently, Rule 78 of Chapter XIV A of the KER has been misquoted in Ext. P-5 appeal. In fact, an appeal is provided against an order of suspension under Rule 79 of Chapter XIV A, KER and therefore, a mis-quoting of the provision will not disempower the competent authority from entertaining the same. Normally, in such circumstances, taking into account the fact that the concerned aggrieved person has already availed the appellate remedy this Court would relegate the petitioner to pursue with the same. However, in this case a legal question of importance is involved and a decision on the said question might make consideration of an appeal against Ext. P-3 order absolutely unnecessary and unwarranted. The question is what is the impact of an aided school teacher eligible to continue in service by virtue of application of Rule 62 of Chapter XIV A, KER, remaining under suspension on the date of superannuation or thereafter getting suspended before the closing day of the academic year concerned during which he/she attained the age of superannuation. I will deal with said question a little later. The contention of the petitioner is that since he could be under deemed suspension by operation of the provisions under Rule 67(3) of Chapter XIV A of the KER only from 13-11-2013 to 20-11-2013 the Manager could not have and should not have passed Ext. P-3 order on 25-11-2013 placing him under suspension with retrospective effect from 13-11-2013 and then sought for extension of the period of suspension. Relying on the decision of this Court in Koran v. Assistant Educational Officer reported in 1975 K.H.C. 113, it is contended that the suspension by virtue of operation of the deemed provision under Rule 67(3) of Chapter XIV A of the KER could continue only till the expiry of the period of detention viz., in this case from 13-11-2013 to 20-11-2013. In other words, it is contended that the suspension ceases the very moment he is released from the custody. Therefore, it is contended that Exts. P-3 and P-4 are unsustainable. There cannot be any doubt with respect to the position that the provisions under Rule 67(3) would come into operation from the moment a teacher detained in custody in a civil or criminal or any other proceedings remains in such custody for a period exceeding 48 hours. It is only profitable to advert to the said provision for a proper consideration of the issues involved in this case. Rule 67(3) is reads thus:

A teacher who is detained in custody on a Civil or Criminal or other proceedings for a period exceeding 48 hours, shall be deemed to have been under suspension during that period and he cannot draw his pay and allowance, other than subsistence allowance, allowable under the Rule till the final termination of such proceedings.

The learned Government Pleader advanced bi-fold contentions. Firstly, contentions are raised relying on Rule 60(c) of Part I of the Kerala Service Rules (for short ''KSR''). It is contended that going by the admitted date of superannuation and the indisputable position that he was under suspension on that day the petitioner should have been treated to have retired from service on the actual date of superannuation in terms of Rule 60(c) of Part I, KSR. This, essentially, related to the legal question mentioned hereinbefore and therefore, I proceed to consider the same and the necessity to consider other contentions would arise only if it is negatived.

In this case, admittedly, the petitioner was under detention from 13-11-2013 to 20-11-2013. There is no dispute regarding the fact that the petitioner attained the age of superannuation on 20-11-2013. Therefore, on the date on which the petitioner attained the age of superannuation he was under detention. In view of the provisions under Rule 60(c) of Part I, KSR it is relevant to refer to the specific contention taken up by the petitioner in this writ petition. A scanning of the averments in the writ petition would reveal that the specific case of the petitioner is that he was under deemed suspension only for a period from 13-11-2013 till 20-11-2013 and hence, in the light of the decision of this Court in Koran v. Assistant Education Officer reported in (1975) K.H.C. 113 and the provisions under Rule 67(3) XIV A, KER it could not be said that he was under suspension after 20-11-2013. In the said decision this Court held that Rule 67(3) of Chapter XIV A, KER did not permit the deemed suspension to continue when once the teacher is released on bail. Ext. P-1 is the order passed by the Court of Sessions, Kozhikode in Crl.M.C. No. 1663/2013 on 20-11-2013 and it was passed only after 11 a.m. on that day and the petitioner was released on bail only after executing the bonds in terms of the conditions in Ext. P-1. Therefore, on that day also, during the school hours or at any rate, at the time of commencement of school hours he was under detention. Therefore, all practical purposes and for the purpose of application of the provisions under Rule 67(3) of Chapter XIV A, KER and also Rule 60(c) of the KER it could only be said that the petitioner was under deemed suspension on 20-11-2013 as well. In paragraph 3 of the writ petition as also in Ext P-5 appeal, the petitioner has specifically stated that he was to retire from service on 20-11-2013. It is also to be noted that the petitioner himself took up only the contention that he was not under suspension after 20-11-2013 and that he could not be said to be in service after 30-11-2013.

I may now advert to the relevant Rules. Rule 62 of Chapter XIV A of the KER reads thus:

Retirement.--A teacher who completes the age of retirement during the course of an academic year but not within one month from the date of reopening shall continue in service till the close of the school for the midsummer vacation. But if he is on leave on such date with no prospect of returning to duty or on leave from the commencement of the academic year to the date of superannuation he may be retired on the due date. If the teacher applies for any leave other than casual leave during the period of his continuance under this rule beyond the age of retirement he shall be retired forthwith.

[Provided that in cases where the academic year is extended beyond the 31st day of March in any year a teacher to whom this rule is applicable shall retire on the last day of March itself.]

[Provided further that the extended period of service beyond the actual date of superannuation of the teacher shall not be reckoned as qualifying service for promotion, increment and pension, and the provisions of sub-rule (c) of Rule 60 of Part I of the Kerala Service Rules shall apply to the teacher.]

A perusal of Rule 62 of Chapter XIV A, KER would thus reveal the applicability of the provisions under Rule 60(c) Part I KSR in the case of a teacher who could continue in service beyond the age of superannuation till the closing of the academic year concerned by virtue of Rule 62 of Chapter XIV A, KER. Rule 60(c) of Part I KSR is as follows:

Rule 60(c).--The teaching staff of all Educational Institutions (including Principals of Colleges) who complete the age of 56 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; but the extended period of service shall not be reckoned for any service benefits such as increment, higher grade, accrual of leave, promotion and pay revision effective from a date after the date of superannuation under sub-rule (a) of Rule 60. The period shall not be counted as qualifying service for pension and the pay received during the period shall not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. If they are on leave on the day they attain the age of 56 years and fail to rejoin duty on the first working day immediately after the date of superannuation, they shall be retired with effect from the date of superannuation under sub-rule (a) of Rule 60. But, in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter, but before the closing day of the academic year, they shall be retired from service on the date of superannuation or on the date of suspension whichever is later.

(Emphasis added)

In the context of the contentions the question whether 20-11-2013, the date on which the petitioner attained the age of superannuation could be taken as the date of superannuation, as contended by the learned Government Pleader, is to be looked into. If it cannot, then the question is which other date could be reckoned as the date of superannuation in the case of the petitioner. A scanning of the provision under Rule 60(c) would reveal that wherever the date of superannuation is to be taken in terms of sub�rule (a) of Rule 60 of Part I KSR it is very specifically mentioned in the said rule. A perusal of Rule 60(c) would reveal that it deals with various situations in regard to teaching staff who completed the age of superannuation during the course of an academic year and entitled to continue till the last day of the month in which the academic year ends. In the case of such officers, going by Rule 60(c), the extended period of service shall not be reckoned for any service benefits such as increment, higher grade, accrual of leave, promotion and pay revision effective from a date after the date of superannuation under sub-rule (a) of Rule 60. If such persons who are entitled to the benefits under Rule 60(c) are on leave on the date they attained the age of superannuation and failed to rejoin duty on the first working day immediately after the date of superannuation, going by Rule 60(c) they should retire with effect from the date of superannuation under sub-rule (a) of Rule 60. Sub-rule (a) of Rule 60 of Part I KSR runs as follows:

60 (a).--Except as otherwise provided in these Rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 56 years. He may be retained after this date only with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.

Going by sub-rule (a) of Rule 60 Part I KSR the date of compulsory retirement of an officer shall take effect from the after noon of the last date of the month in which he attains the age of superannuation. It is thus obvious that wherever the date of superannuation is to be reckoned in terms of sub-rule (a) of Rule 60 it has been specifically mentioned in Rule 60(c) of Part I, KSR itself. It is after providing the manner in which the date of superannuation is to be reckoned under the aforesaid two situations that in the last limb of Rule 60(c) of Part I, KSR the cases of such officers coming under Rule 60(c) if remaining under suspension on the date of superannuation or thereafter getting suspended before the closing date of the academic year were dealt with. In the last limb of Rule 60(c) it is provided that in case of officers coming under the Rules are under suspension on the date of superannuation or thereafter, but before the closing date of the academic year they shall be retired from service on the date of superannuation or on the date of suspension whichever is later. Obviously, the said last limb of Rule 60(c) starts with the conjunction ''But''. It is also to be noted that the expression ''date of superannuation'' employed in the last limb of Rule 60(c) is not qualified by any word such as ''actual'', as has been employed in second proviso to Rule 62 of Chapter XIV A of the KER. To sum up it is to be noted that going by second proviso to Rule 62 of Chapter XIV A KER, Rule 60(c) of Part I KSR is applicable to the beneficiaries under Rule 62 of Chapter XIV A, KER. The last limb of Rule 60(c) provides that in cases of officers coming under Rule 60(c), if they are under suspension on the date of superannuation or if they are getting placed under suspension after that date but before the closing date of the academic year they should retire from the date of superannuation or on the date of suspension whichever is later. A scanning of the aforesaid provisions under the KER and under KSR would reveal that different expressions have been used for fixing the date of superannuation. As noticed hereinbefore, wherever the date of superannuation is to be fixed in terms of the provisions under sub-rule (a) of Rule 60 it was specifically mentioned therein. After incorporating the situations that require reckoning of the date of superannuation in terms of sub-rule (a) of Rule 60 the term ''date of superannuation'', without any further qualification that it should be in terms of sub-rule (a) of Rule 60, has been incorporated in the last limb of Rule 60(c) that too, after using the conjunction ''But''. In such circumstances, the usage of the conjunction ''But'' immediately after the aforementioned situations would indicate that the date of superannuation in relation to teachers whose cases fall under the last limb of Rule 60(c) should not be the date of superannuation in accordance with the provisions under sub-rule (a) of Rule 60 but, it should be the date of superannuation or date of suspension whichever is later. Apart from the date on which person attained the age of superannuation no other date can be said to be the date of retirement under the last limb of Rule 60(c). I am of the view that any contra construction would go against the intention of the legislature as it cannot, by any stretch of imagination, be taken that a better treatment and benefit is intended to be conferred on officers under suspension on the date of superannuation or getting suspended after that date but before the closing date of the academic year especially after fixing the date of retirement of persons covered by other two situations as one in terms of sub-rule (a) of Rule 60. If persons covered by the last limb of Rule 60(c) are also to be conferred with the same benefit viz., in their cases also, the date of superannuation is to be reckoned in terms of Rule 60(a) of Part I, KSR it would have been and could have been stated specifically under Rule 60(c) as has been done in the case of the other two situations. But for the application of sub-rule (c) of Rule 60 of Part I, KSR and Rule 62 of Chapter XIV A, KER an officer has to retire on the date on which he attains the age of superannuation. Since the three situations contemplated under Rule 60(c) are cited as instances which curtail right otherwise available to continue till the closing of day of the academic year concerned it cannot be said that a better benefit to continue till the closing day of the academic year concerned is to be the date of retirement in the case of persons who fall under the last limb of Rule 60(c) which deals with teachers facing suspension. Since the only other date which can be taken as the date of superannuation is the date on which such officers attained the age of superannuation and in view of the absence of the stipulation in the last limb of Rule 60(c), Part I, KSR that the date of superannuation shall be reckoned in terms of sub-rule (a) of Rule 60, I am of the view that for the purpose of fixing the date of retirement in respect of any person falling under the last limb of Rule 60(c) the retirement date has to be taken as the date on which the concerned officer attained the age of superannuation or the date on which he was placed under suspension whichever is later. In that view of the matter, in the case on hand, taking into account the fact that the petitioner admittedly was under deemed suspension on 20-11-2013, the date on which he attained the age of superannuation, he should have been treated to have been retired from service on that day. In this context, it is relevant to note that though the petitioner has sought for larger claim in Ext. P-5 appeal, he has virtually admitted the fact that he was under suspension till 20-11-2013 and was to be retired from service in the circumstances explained, on 30-11-2013. I have already found that the petitioner is not entitled to claim 30-11-2013 as the date of his retirement. At the same time, going by the provisions, he is liable to be declared to have retired from service on the date of superannuation viz., 20-11-2013. The long and short of the discussions is that by virtue of combined application of second proviso to Rule 62 and Rule 67(3) of Chapter XIV A of the KER and Rule 60(c) of Part I KSR the petitioner has to be treated as retired from service on the date on which he attained the age of superannuation viz., on 20-11-2013. When that be the position, based on the cumulative application of the provisions under Rule 62 and Rule 67(3) of Chapter XIV A, KER and Rule 60(c) there is no point in directing the respondents to consider Ext. P-5 on merits and any such direction will lead only to a wasteful exercise of power by the concerned authority. Therefore, the respondents shall treat the petitioner to have retired from service on 20-11-2013 and shall compute and disburse the pensionary benefits payable to him expeditiously.

The writ petition is, accordingly, disposed of.