No Writ Of Mandamus Can Be Issued To Govt Directing To Amend Legislation Related To Retirement Age Of High Court Staff: Kerala HC
In a recent judgment, the Kerala High Court while acknowledging the contentions made by the Petitioner that Article 229 gives primacy to the Chief Justice in the matters of appointment, held that age of retirement was fixed by a legislature and at the most the request of the Chief Justice to enhance the age of retirement can be treated as a proposal.
Thus, the High Court rejected to issue writ of mandamus to the Government to bring in the amendment.
Referring to the decision in State of Rajasthan & Ors. v. Ramesh Chandra Mundra & Ors [(2020) 20 SCC 163] in which the Apex Court had reiterated the principles of comity and mutual respect of different institutions working under the Constitution, the Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that “When the Chief Justice sends a proposal, institutional comity expects a high level of deliberations and consideration of the aspects related to the subject. The different institutions of the State are to be coordinated in their efforts to achieve what is best in the larger interest of the Institution”.
“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 favorable 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. It is beyond our power to direct the Government to initiate steps for amendment of legislation related to the retirement age”, added the Bench.
Senior Advocate K. Jaju Babu appeared for the Petitioner, whereas Advocate Sunil Jacob Jose appeared for the Respondents.
In a nutshell, in the year 2022, the Registrar General of High Court of Kerala had forwarded the proposal of Chief Justice of Kerala High Court to the Government, for enhancement of the superannuation age of the members of staff of the High Court from 56 to 58, on the recommendation made by a sub-committee of three judges. Since as per Kerala High Court Services (Determination of Retirement Age) Act, 2008, a state legislation, determines the retirement age in High Court service, the proposal was rejected by the Government informing the High Court that age of retirement of the High Court staff at 56 is at par with the government servants. Since the petitions concerned with the employees who have entered into the service of the High Court prior to Apr 01, 2013, a reference is made by the Single Judge to resolve doubts created by previously decided writs and interpretation of Article 229.
The main contention in the present petitions is that, under Article 229, the Chief Justice is the sole authority to decide the service conditions of the employees of the High Court and therefore, the Government was bound to accept the proposal.
Upon perusal of the facts and related provisions, the Division Bench observed that even though Article 229 gives primacy to the Chief Justice in the matter of appointment of officers and servants of the High, however these powers are subject to any law made by the legislature.
The Bench further noted that proposal forwarded by the Chief Justice to enhance the retirement age of employees did not refer automatic enhancement, rather was based on institutional interest to obtain meritorious service from the experience gained.
Hence, “such a proposal cannot therefore be returned merely citing that it deflects parity in following the retirement age of government servants. Each organ of the State is expected to have deference to the views expressed by one organ, concomitant with the policies and rules that govern the institutions. It is apparent that the Government had not adverted to the proposal of extension of retirement age of meritorious candidates beyond the age of 56”, added the Bench.
Therefore, while stating that the logic and objectivity reflected in the proposal having been deflected during consideration, in the larger interest of the State, the Bench remitted the matter back for the Government to consider the proposal for enhancement of the retirement age of meritorious employees beyond the age of 56 years.
Cause Title: Ajith Kumar V.S. v. State of Kerala
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