- (1.) The petitioner was appointed as a part-time Menial in the Sacred Heart High School, Thiruvambady on 1st June 1960. She was appointed as a full-time Menial with effect from 19th June 1970. Petitioner's date of birth is 13th June 1927. The 3rd respondent - Headmaster - by Ext. P-1 dated 23rd June 1982 informed the petitioner that her service will be terminated on the afternoon of 30th June 1982, since she completes the age of retirement, of 55 years on 12th June 1982. It Is also stated that the petitioner is not entitled to continue in service till the age of 60 years, as she became full-time Menial only from 19th June 1970 onwards. This Original Petition is filed to quash Ext. P-1 dated 23rd June 1982 and to restrain the respondents from terminating the petitioner's services with effect from 30th June 1982 and for other reliefs.
(2.) On behalf of the 1st respondent - District Educational Officer, Kozhikode - a detailed counter affidavit dated 9th September 1983 has been filed. It is stated that the petitioner will be governed by R.5 of Chap.24B of the Kerala Education Rules and her age of retirement on superannuation shall be as that of the corresponding non teaching staff in Government schools. That is provided under R.60 of the Kerala Service Rules. The petitioner belongs to the last grade and as she was not a full-time employee on 7th April 1970 (she was promoted as full-time Menial only on 19th June 1970), the rules laid down in R.60(a) of the Kerala Service Rules will be applicable. R.60(b) of the Kerala Service Rules cannot be made applicable to the petitioner to continue in service till the age of 60 years, in view of R.2(ii) of the Kerala Service Rules. Ext. P-1 is sought to be sustained on that basis.
(3.) I heard counsel for the petitioner, Mr. M. Vijayakumar, and the Senior Government Pleader, Mr N. N, Divakaran Pillai, who appeared on behalf of the respondents. It is common ground that the petitioner became the full-time Menial only with effect from 19th June 1970. It is also common ground that Chap.24B R.5 applies to the instant case. Chap.24B, R.5 of the Kerala Education Rules is to the following effect: "5. The conditions regarding age limit and the relaxation thereof for appointment of non teaching staff in Government schools shall apply to the non teaching staff of aided schools. The age of retirement of superannuation shall be the same as that of the corresponding non teaching staff in Government schools." The sole question that falls for consideration is:- What is the age of retirement of superannuation of the non teaching staff in Government schools Counsel for the petitioner relies on R.60(b) of the Kerala Service Rules. The respondents relied on R.60(a) of the Kerala Service Rules. R.60(a) and 60(b) of the Kerala Service Rules are extracted herein below: "60(a). Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the after-noon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of 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. 60(b). Officers in the Last Grade Service on 7th April 1970 will retire on the afternoon of the last day of the month in which they attain the age of 60 years provided that this benefit will be available to them only as long as they continue to be in the Last Grade Service as defined in R.12(16A)." R.2(ii) of the Kerala Service Rules is to the following effect: "2. Subject to the provisions of R.3, * * * (ii) the remaining rules shall apply to every person in the whole time employment of the Government (other than a person so employed in the contingent or work establishment)." A combined reading of Chap.24B, R.5 of the Kerala Education Rules, read with R.60(b) and R.2(ii) of the Kerala Service Rules make it clear that the said provisions will apply only in the case of whole time Menials as on 7th April 1960. The petitioner, who became a full-time Menial with effect from 19th June 1970 only, cannot take advantage of R.60(b) of the Kerala Service Rules. If so, she is not entitled to claim the benefit. She cannot contend that she will attain the age of superannuation only on completion of 60 years. Counsel for the petitioner placed reliance only on R.60(b) of the Kerala Service Rules. That provision is inapplicable. In an identical case, delivering the judgment of the Division Bench in O.P. No. 2272 of 1977-D, Balakrishna Eradi, C. J. (as he then was) held as follows: "It is contended by the learned Advocate appearing for the petitioner that the petitioner is a last grade servant entitled to continue in service till the attainment of the age of 60 years under R.60(b) of Chap.8 Part I of the Kerala Service Rules. It is on this basis that the petitioner has challenged Ext. P-3 as illegal and without jurisdiction. We do not find it possible to uphold the aforesaid contention put forward by the petitioner. R.2(ii) of Chapter I of the Kerala Service Rules specifically makes it clear that the rules contained in Part I will apply only to persons in whole-time employment. The petitioner was only a part-time employee of the school till 15th July 1971. R.60(b) of Chap.8 of Part I of the Kerala Service Rules confers the benefit of retention in service till the attainment of the age of 60 years only on officers who were borne on the Last Grade Service as on 7th April 1970. Thus, in order to claim the benefit of the said provision, the petitioner must have been an employee in the Last Grade Service Governed by the Kerala Service Rules as on 7th April 1970. Unfortunately, she was only a part-time employee not coming within the scope of the provisions of the Kerala Service Rules till 15th July 1971. Hence it is the provision contained in R.60(a) that governs her case and she is liable to retire from service on superannuation on attaining the age of 55 years." The above reasoning is fully applicable to the instant case also.;