Kerala High Court
A.Sathyan vs State Of Kerala on 21 May, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
WA NO. 991 OF 2025
AGAINST THE JUDGMENT DATED 04.04.2025 IN WP(C)
NO.18190 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
A.SATHYAN
AGED 56 YEARS
S/O C. AYYAPPAN, ANANTHABHAVAN, CHIRAYILKONAM,
VETTINAD, VATTAPARA PO,
THIRUVANANTHAPURAM, PIN - 695028
BY ADV T.C.KRISHNA
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, AYUSH
DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF HOMEOPATHY [CORRECTED],
DIRECTORATE OF HOMEOPATHY, EAST FORT,
THIRUVANANTHAPURAM, PIN - 695023 [DIRECTOR OF
AYURVEDA MEDICAL EDUCATION, DIRECTORATE OF
AYURVEDA MEDICAL EDUCATION, SANTHI NAGAR,
PULUMOODU, THIRUVANANTHAPURAM, KERALA 696 001.
(2ND RESPONDENT IS CORRECTED AND REPLACED AS PER
ORDER DATED 24.07.2024 IN I.A.1/2024 IN
WP(C)18190/2024].
3 THE CHAIRMAN/DISTRICT COLLECTOR
HOSPITAL DEVELOPMENT COMMITTEE,
GOVERNMENT AYURVEDA COLLEGE HOSPITAL,
THIRUVANANTHAPURAM, PIN - 695001
W.A.No.991 of 2025 2
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4 THE SUPERINTENDENT
GOVERNMENT AYURVEDA COLLEGE HOSPITAL,
AYURVEDA COLLEGE HOSPITAL JUNCTION
THIRUVANANTHAPURAM, PIN - 695002
SMT. MABLE C. KURIAN, SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
13.05.2025, THE COURT ON 21.05.2025 DELIVERED THE
FOLLOWING:
W.A.No.991 of 2025 3
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JUDGMENT
M.B. Snehalatha, J.
This Writ Appeal under Section 5(i) of the Kerala High Court
Act, 1958 is directed challenging the judgment of the learned
Single Judge dated 4.4.2005 in W.P(C) No.18190 of 2024.
2. The appellant-petitioner herein filed the Writ Petition
(c)No.18190 of 2024 invoking the writ jurisdiction of this Court
under Article 226 of the Constitution of India to issue a writ of
certiorari and to quash Ext.P7 Government order dated 8.5.2024
on the ground that the said order was issued by the 1 st
respondent State without considering Ext.P2 to P4, as directed in
Ext.P6 judgment dated 15.03.2024 in W.P.(c)No.6337 of 2024 and
to declare that daily wage employees under the Hospital
Development Society (HDS) in the hospitals under the 2nd
respondent Director of Homeopathy, including the appellant-
petitioner are eligible and entitled for enhancement of age of
superannuation from 56 years to the age of 65 years, as granted
to their counterparts in the Health and Family Welfare
Department, vide Ext.P2 Government order dated 02.08.2018
and to declare that appellant-petitioner is eligible to continue till
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the completion of age of 65 years or in the alternative upto the
age of 60 years in accordance with Rule 60(b) of Part III of the
Kerala Service Rules (KSR). The appellant-petitioner has also
sought for a writ of mandamus commanding the 1st respondent
State to consider and dispose of Ext.P5 representation dated
6.2.2024 made by him within a time frame.
3. Appellant's-petitioner's case in the writ petition was
that he is an ex-service man who was working as a Security Guard
on daily wages under the HDS at the Government Ayurveda
College Hospital, Thiruvananthapuram and he is continuing as
such from 20.4.2012 onwards. He is due to retire on attaining the
age of 56 years, on 31.3.2024. By the order dated 30.1.2015,
the age limit of the daily wage employees under the HDS in the
Government Ayurveda College Hospital was enhanced to 60 years,
based on the decision in the General Body held on 14.01.2015.
But subsequently, the said order was cancelled by the 1 st
respondent State, vide Government order dated 08.09.2016. On
the formulation of AYUSH department, Ayurveda came under the
said department. Government issued Ext.P2 order dated
02.08.2018 enhancing the age of daily wage employees working
under HDS in the Health Department by 65 years. Since the
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AYUSH Department was already segregated from the Health
Department, the benefit of the said order was not made available
to those working under the HDS in Government Ayurveda College
Hospital, though they were identically placed as their counterparts
in the Health Department. The 2nd respondent had requested the
1st respondent to enhance the retirement age of daily wage
employees working under the HDS in the Ayurveda College
Hospital also. According to the appellant, as the contract staff of
the HDS in the Health Department is eligible to continue till he
attains the age of 65 years, the same criteria is applicable to the
appellant and he is eligible to continue till 65 years. In W.P.(c)
No.6337 of 2024, filed by the appellant, this Court had directed
the 1st respondent State to consider the representation made by
the appellant in the light of Exts.P2 to P4 and to pass a decision
and not to implement the same for a week if it is decided to
terminate him from the service of the HDS. According to the
appellant, 1st respondent passed Ext.P7 order dated 08.05.2024
rejecting the representation without considering any of the
contentions raised by him.
4. Though Ext.P7 order was challenged in W.P.(C)
No.18190 of 2024, the learned Single Judge disposed of the said
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writ petition holding that Ext.P2 does not confer any indefeasible
right on the person employed on a contract basis under the
National Health Mission to continue till he attains the age of 65
years and it is left to the discretion of the hospital authority to
keep the person engaged on a contract basis till he attains the age
of 65 years.
5. Heard the learned counsel for the appellant-petitioner
and the learned Senior Government Pleader for the respondents.
6. The issue that requires consideration is as to whether
the impugned judgment of the learned Single Judge warrants any
interference.
7. It was contended by the learned counsel for the
appellant-petitioner that the retirement age with regard to
persons employed on a contract basis under the Hospital
Development Society (HDS), the Hospital Development
Committee/the Hospital Management Committee, etc. under the
project funded by 'Rashtriya Swasthya Bima Yogana' has not been
fixed by virtue of Ext.P2 Government order dated 2.8.2018 and
therefore, the maximum age upto which the person could be
employed on contract basis under the National Heath Mission,
which is a programme funded by the Central Government under
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Rashtriya Swasthya Bima Yojana will be 65 years. Since the staff
of the HDS in the Government Medical College are eligible to
continue upto 65 years, the same criteria is applicable in the case
at hand. Both the HDS staff under the Health and Family Welfare
Department as well as the staff of Government Ayurveda College
Hospitals can only be considered as single class and hence any
discrimination in the age of retirement would amount to
unreasonable classification in violation of Article 14 and 16 of the
Constitution of India.
8. Per contra, the learned Government Pleader for the
respondents submitted that appellant-petitioner was appointed on
a daily wage basis under the HDS in the Government Ayurveda
College Hospital, Thiruvananthapuram; that he attained the age of
56 years on 31.3.2024; that there is no legal right to the
appellant to claim for enhancement of retirement age since the
Health Department and Ayush Department are two different
departments and the nature of the work is different. The
appointment of the appellant was purely temporary on daily wage
basis and there is no guarantee for his tenure as a security guard
and he is liable to be terminated at any time. The HDS was
permitted to appoint casual labourers and the HDS is not
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conferred with the right to alter the service conditions including
hike in the wages or the enhancement of retirement age; and that
the appellant's claim for engagement till the age of 65 years, the
retirement age of employees under the projects funded by
Rashtriya Swasthya Bima Yogana (RSBY) cannot be sustained.
9. In the impugned judgment, the learned Single Judge
found that even if one considers the language employed in the
said Government order, it gives discretion to the hospital
authorities concerned to keep the person engaged on a contract
basis under the National Health Mission up to 65 years of age.
Ext.P2 Government order does not confer any indefeasible right
on the person employed on a contract basis under the National
Health Mission to continue till he/she attains the age of 65 years.
It is left to the discretion of hospital authority to keep the person
engaged on a contract basis till he attains the age of 65 years.
Therefore, the petitioner does not have any indefeasible right
under the contract or as per Ext.P2 Government order dated
02.08.2018 to remain in employment on a contract basis till he
attains the age of 65 years.
10. It was ordered that the appellant may be given
employment after he has attained the age of 56 years for a
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further period on a contract basis, depending on the availability of
the work and his conduct and performance. Such a decision shall
be taken only by the hospital authority, and this Court cannot
issue a mandamus for engaging him on a contract basis in the
National Health Mission after he attained the age of 56 years and
allow him to continue till he attains the age of 65 years.
11. In Bihar Eastern Gangetic Fishermen Cooperative
Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145], a Three
Judge Bench of the Apex Court held that a writ of mandamus can
be granted only in a case where there is a statutory duty imposed
upon the officer concerned and there is a failure on the part of
that officer to discharge the statutory obligation. The chief
function of a writ is to compel performance of public duties
prescribed by statute and to keep subordinate tribunals and
officers exercising public functions within the limit of their
jurisdiction.
12. In Oriental Bank of Commerce v. Sunder Lal Jain
[(2008) 2 SCC 280] the Apex Court held that in order that a writ
of mandamus may be issued, there must be a legal right with the
party asking for the writ to compel the performance of some
statutory duty cast upon the authorities. In the said decision, the
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Apex Court noticed that the principles on which a writ of
mandamus can be issued have been stated in 'The Law of
Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, that,
mandamus is, subject to the exercise of a sound judicial
discretion, the appropriate remedy to enforce a plain, positive,
specific and ministerial duty presently existing and imposed by law
upon officers and others who refuse or neglect to perform such
duty, when there is no other adequate and specific legal remedy
and without which there would be a failure of justice.
13. Appellant would admit that he was working as a
Security Guard on daily wage basis under the HDS in the
Government Ayurveda College Hospital, Thiruvananthapuram. It
is also not in dispute that he attained the age of 56 years on
31.3.2024. Though Ext.P2 Government order states that the
maximum age upto which a person could be employed on contract
basis under the HDS/HMC/HDC and the projects funded by the
Rashtriya Swasthya Bima Yojana (RSBY) will be 65 years,
appellant who was working as a Security Guard on daily wage
basis under the HDS in Government Ayurveda College Hospital,
Thiruvananthapuram cannot bank upon Ext.P2 Government order
to claim that he is entitled to continue upto the age of 65 years,
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as he has no indefeasible right to remain in employment till he
attains the age of 65 years, as rightly noticed by the learned
Single Judge.
14. Hence, we find no reason to interfere with the finding
of the learned Single Judge that appellant does not have any
indefeasible right under the contract or as per the Ext.P2
Government order dated 2.8.2018 to remain in employment on a
contract basis till he attains the age of 65 years.
In the result, this writ appeal fails and the same is
accordingly dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
M.B.SNEHALATHA, JUDGE
ab
