K. Balakrishnan Nair, J.@mdashThe Petitioners are/were employees of the Kerala State Electricity Board (hereinafter referred to as ''the Board'').
The Government amended Rule 60(a) of Part I, Kerala Service Rules, modifying the date of retirement of the Government servants from the last
day of the month in which they attain the age of 55 years to the last day of the financial year concerned in which they attain the said age. The
benefit of the said amendment has not been extended to the Petitioners, by the Managing Committee of the Board and the Government. Feeling
aggrieved by the said stand of the Managing Committee and the Government, these Writ Petitions are filed. Since the very same point arises for
decision in all these Writ Petitions, they are heard together and disposed of by this common judgment.
W.P. (C) No. 26987 of 2009:
2. This Writ Petition is treated as the main case for the purpose of referring to the parties and the exhibits. The Petitioners, who are employees of
the Board, are due to retire from service during this financial year. The Kerala State Electricity Board is a statutory Board, constituted under the
provisions of the Electricity (Supply) Act, 1948. The service conditions of its employees were governed by the regulations framed by the Board u/s
79(c) of the aforementioned Act. By virtue of the regulation making power, the Board has adopted the Kerala Service Rules, the Kerala State and
Subordinate Services Rules, etc., for regulating the service conditions of its employees. When the Government introduced amendments to these
rules from time to time, the Electricity Board usually took decisions to adopt those amendments also. Finally, the Board by Ext. P-2 Board Order,
which was issued based on a decision of the Board held on 27-11-2002, provided that all the amendments brought to the Kerala Service Rules
and the Kerala Service and Subordinate Services Rules will automatically apply mutatis mutandis to the Board employees also, unless otherwise
decided by the Full Board.
3. The retirement age of the employees of the Board was governed by Rule 60(a) of Part I, Kerala Service Rules, (for short, ""K.S.R.""), which
provided that the employees shall retire from service on the last day of the month in which they attain the age of 55 years. The Government, by Ext.
P-3 order dated 24-4-2009, decided to amend the said rule, by making the date of retirement of all the employees as the last day of the financial
year, that is, 31st March of the concerned year. The Government issued Ext. P-4 order on 30-4-2009, to extend the benefit of Ext. P-3 to all
Public Sector Undertakings, Autonomous bodies, Universities, Corporations and Boards under the State Government. It was also ordered that in
the case of autonomous bodies, Ext. P-3 will apply, subject to the decision of their governing bodies. On the basis of Ext. P-4, the Electricity
Board as per Ext. P-5 Board Order, which was issued based on the decision of the Board Meeting held on 21-5-2009, ordered not to make
applicable Ext. P-3 to the K.S.E.B. employees. The result of Ext. P-5 decision was that the Board employees will continue to be governed by the
unamended provisions contained in Rule 60(a) of Part I, K.S.R. Soon thereafter, the Government issued GO.(P) No. 261/2009/Fin., dated 4-7-
2009 (a copy of which is produced as Ext. P-6), formally amending Rule 60(a) of Part I, K.S.R. with effect from 24-4-2009, that is, the date of
Ext. P-3. The original Sub-rule (a) of Rule 60 of Part I, K.S.R. was substituted by the following sub-rule, which reads as follows:
(a) Except as otherwise provided in these rules the date of compulsory retirement of employees and teachers shall take effect from the afternoon of
the last day of the financial year in which they attain the age of 55 years. They may be retained after this date only with the sanction of Government
on public grounds which must be recorded in writing, but they must not be retained after the age of 60 years except in very special circumstances;
Note.--The extended period of service under Sub-rule (a) shall be reckoned for all service benefits such as increment, pension, higher grade,
accrual of leave, promotion and pay revision.
In view of Ext. P-6 formal amendment introduced to Rule 60(a) of Part I, K.S.R., the Board employees claimed the benefit of the same, on the
strength of Ext. P-2 decision of the Board, which states that unless otherwise decided, all amendments to the Kerala Service Rules and the Kerala
State and Subordinate Services Rules will automatically apply to the Board employees.
4. But, while the above developments were taking place, as a result of the enforcement of Electricity Act, 2003 (Act 36 of 2003) (hereinafter
referred to as ""the Act""), certain drastic changes took place in the administration of the K.S.E. Board. Part XIII of the aforementioned Act
provided for re-organisation of State Electricity Board. Section 131 contained in the said Part, provided that all the properties of the Board shall
vest in the Government with effect from the date on which a transfer scheme prepared by the State Government to give effect to the objects and
the purposes of the Act is published or with effect from such further date, as may be stipulated by the State Government. Sub-section (2) of
Section 131 of the Act provided for the formation of a Government company or companies, and re-vesting of the properties, which vested in the
Government, with all rights and liabilities, in that company/companies, as per the transfer scheme. The State Government, invoking its power under
Sub-sections (1), (2), (5), (6) and (7) of Section 131 read with Section 133 of the Act, framed Ext. P-1 transfer scheme dated 25-9-2008. When
Section 131 deals with the properties of the Board, Section 133 deals with its officers and employees. As per Ext. P-1 scheme, during the
interregnum between the date of issuance of the scheme and the date of establishment of the Government company/companies, the officers and
employees of the Board will work under the Managing Committee constituted for running the affairs of the Board. During the transitional period,
the Managing Committee will be running the affairs of the Board on behalf of the Government. The erstwhile Board was to function as the
Managing Committee. The scheme provided that the service conditions of the employees, which existed on the date of introduction of the transfer
scheme, will continue to be in force. It further provides that during the transitional period, the officers and employees of the Board will be deemed
to be under the services of the State Government.
5. In view of the aforementioned conditions contained in Ext. P-1, the Petitioners and others claimed that they are Government servants and
therefore, they are entitled to continue in service till the end of the financial year in which they attain the age of superannuation. When their claims
were resisted by the Board and its management, they approached this Court, seeking appropriate reliefs for retention in service till the end of the
financial year. This Court, after hearing both sides, passed Ext. P-7, common interim order, in that case and connected cases on 30-7-2009.
Later, those Writ Petitions were disposed of by Ext. P-8 judgment dated 10-8-2009, making Ext. P-7 interim order absolute. Since the Managing
Committee was running the affairs of the Board on behalf of the Government, this Court directed the Government to take a decision whether Ext.
P-6 amendment could be made applicable to the Board employees, taking into account the views of the Managing Committee, that may be
communicated to them. The Government passed Ext. P-9 order dated 18-9-2009, deciding not to make applicable Ext. P-6 to the Board
employees. Pursuant to the said decision, the Board passed Ext. P-10 consequential order on 22-9-2009, superannuating all those who have
crossed the date of superannuation as per the unamended provisions of Rule 60(a) of Part I, K.S.R. Challenging Exts. P-9 and P-10, and seeking
consequential reliefs, the Writ Petition was filed. The Electricity Board and the Government have filed separate counter-affidavits, resisting the
prayers in the Writ Petition. The Petitioners have filed a reply affidavit.
6. We heard the learned Counsel on both sides. The learned Counsel, Dr. K.P. Satheesan, appearing for the Petitioners, submitted that by virtue
of Clause 5(6) of Ext. P-1, the Petitioners are deemed to be Government servants. All Government servants are retiring only on the last day of the
financial year in which they attain the age of superannuation. The benefit of Ext. P-6 amendment to Rule 60(a) of Part I, K.S.R. is extended to the
employees of all public sector undertakings, autonomous bodies, Corporations, Statutory Boards etc. Thus, by not extending the said benefit, the
employees of the Board are subjected to hostile discrimination. Since the Petitioners are deemed to be under the services of the Government, they
need retire from service only on the date when other Government servants, who are similarly placed, retire. The learned Counsel made special
reference to the last limb of Clause 5(6) of Ext. P-1 scheme, in support of his submissions. The learned Counsel further submitted that once the
Petitioners are deemed to be Government servants, they are entitled to get the benefits applicable to other Government servants. To explain the
purport of the deeming provision, the learned Counsel relied on the decision of the Apex Court in Ali v. State of Kerala 2003 (1) KLT 922 (S.C.).
After referring to Ext. P-9, the impugned order passed by the Government, the learned Counsel submitted that the said order does not contain any
reason for not extending the benefit of Ext. P-6 to the Petitioners. Further, it is pointed out that, by Ext. P-9, the Government have decided to
exempt the Board employees from the operation of Ext. P-6. Going by Rule 7 of Part I, K.S.R., the order exempting them from the operation of
amended Rule 60(a) is unsustainable. So, the learned Counsel prayed for quashing Exts. P-9 and P-10.
7. Sri N. Sugathan, learned Counsel who appeared for the Petitioners in a connected Writ Petition, submitted that going by the counter-affidavit
filed by the Board, it is seen that as directed by this Court in Ext. P-8 judgment, the Board has not chosen to place its views before the
Government. The Board took the decision, not to follow Ext. P-3, as per Ext. P-5 order dated 26-5-2009. After Ext. P-8 judgment, only the
Secretary of the Board communicated its views and though the said action of the Secretary is ratified by the Board, the same will not satisfy the
requirements of law. The Board itself should have taken the decision, it is submitted.
8. Sri N.N. Sugunapalan, learned Senior Counsel, who appeared for the Electricity Board, supported the impugned orders. Referring to Clause
5(11) of Ext. P-1 scheme, it is submitted that all existing circulars and orders of the Board will continue to remain in force even after the issuance of
Ext. P-1. Clause 5(6), though, says that the Petitioners will be deemed to be under the services of the State Government, the same is qualified by
the provision that they will continue to be under the same terms and conditions as were applicable to them while they were working under the
Board. According to the learned Senior Counsel, the deeming provision will not enable the Petitioners to get all the benefits applicable to the
Government servants, unless there is a specific decision to that effect. The learned Senior Counsel, after referring to Sections 131 and 133 of the
Electricity Act, 2003, submitted that in the light of the provisions of the said Sections read with Ext. P-1 scheme, the claim of the writ Petitioners is
unsustainable.
9. The learned Government Pleader, Sri Manoj Kumar, also supported the impugned orders and pointed out that the Government have taken the
decision in Ext. P-9, in the light of Ext. P-8 judgment. Both sides are bound by the said judgment and therefore, the contention that Ext. P-6
amendment will automatically apply to the Petitioners is not available to them, in view of Ext. P-8 judgment, which has become final. They can get
the benefit of Ext. P-6 amendment, if only there is a decision by the Government extending it to the Board employees. The Government have
decided against them. Therefore, the Writ Petition is liable to be dismissed, it is submitted.
10. Before referring to the rival contentions, we will refer to the relevant provisions in the Statute. Section 131 of the Electricity Act, 2003 deals
with vesting of properties, assets and liabilities of the Board in the State Government, subject to the transfer scheme notified and its re-vesting in
the Government company/companies formed under the provisions of the Companies Act. Section 133 of the aforementioned Act deals with
transfer of officers and employees. The relevant provisions of Sections 131 and 133 of the Act are quoted below, for convenient reference.
131. Vesting of property of Board in State Government.--(1) With effect from the date on which a transfer scheme, prepared by the State
Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government
(hereafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective
date belonged to the State Electricity Board (hereafter referred to as the Board) shall vest in the State Government on such terms as may be
agreed between the State Government and the Board.
(2) Any property, interest in property, rights and liabilities, vested in the State Government under Sub-section (1) shall be re-vested by the State
Government in a Government company or in a company or companies, in accordance with the transfer scheme to be published along with such
other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and
conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating
company or transmission licensee or distribution licensee, as the case may be.
* * * * *
* * * * *
(5) A transfer scheme under this section may--
(a) provide for the formation of subsidiaries, joint venture companies or other schemes of amalgamation, merger, reconstruction or arrangements
which shall promote the profitability and viability of the resulting entity, ensure economic efficiency, encourage competition and protect consumer
interests;
(b) define the property, interest in property, rights and liabilities to be allocated--
(i) by specifying or describing the property, rights and liabilities in question; or
(ii) by referring to all the property, interest in property, rights and liabilities comprised in a described part of the transferor''s undertaking, or
(iii) partly in one way and partly in the other;
(c) provide that any rights or liabilities stipulated or described in the scheme shall be enforceable by or against the transferor or the transferee;
(d) impose on the transferor an obligation to enter into such written agreements with or execute such other instruments in favour of any other
subsequent transferee as may be stipulated in the scheme;
(e) mention the functions and duties of the transferee;
(f) make such supplemental, incidental and consequential provisions as the transferor considers appropriate including provision stipulating the order
as taking effect; and
(g) provide that the transfer shall be provisional for a stipulated period.
(6) All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by the Board, with the Board or for
the Board, or the State Transmission Utility or generating company or transmission licensee or distribution licensee, before a transfer scheme
becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by the
Board, with the Board or for the State Government or the transferee and all suits or other legal proceedings instituted by or against the Board or
transferor, as the case may be, may be continued or instituted by or against the State Government or concerned transferee, as the case may be.
(7) The Board shall cease to be charged with and shall not perform the functions and duties with regard to transfers made on and after the effective
date.
Explanation.--For the purposes of this Part,
(a) ''Government company'' means a Government company formed and registered under the Companies Act, 1956 (1 of 1956);
(b) ''company'' means a company to be formed and registered under the Companies Act, 1956 (1 of 1956) to undertake generation or
transmission or distribution in accordance with the scheme under this Part.
133. Provisions relating to officers and employees.--(1) The State Government may, by a transfer scheme, provide for the transfer of the officers
and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided u/s 131.
(2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as
may be determined in accordance with the transfer scheme:
Provided that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to
them if there had been no such transfer under the transfer scheme.
Provided further that the transfer can be provisional for a stipulated period.
Explanation.--For the purpose of this section and the transfer scheme, the expression ''officers and employees'' shall mean all officers and
employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case maybe.
In the light of the above statutory provisions, we have to interpret the relevant provisions of Ext. P-1 scheme. Clause 4(1) of Ext. P-1 reads as
follows:
(1) The functions, properties and all interests, rights in properties, all rights and liabilities of the Board as specified in the Schedule shall stand
vested in the State Government as provided in Sub-section (1) of Section 131 of the Act with effect from the date on which this transfer Scheme is
published in the official gazette.
As per the above quoted provision, the functions, properties and all interests, rights in properties etc. of the Board stand vested in the State
Government. Sub-clauses (1) and (2) of Clause 5 of Ext. P-1, which deal with management of the Board till the formation of the Government
company, read as follows:
5(1) All interests, rights in properties, all rights and liabilities of the Board vested in the State Government under Clause 4 shall be administered by
the Government in the name as ''Kerala State Electricity Board'' by appointing a special officer for this purpose and a managing committee till the
date of re-vesting to be notified by the State Government to re-vest the same in a company as provided in Sub-section (2) of Section 131 of the
Act.
(2) The managing committee shall consist of the Chairman and Members of the Board and the person who is holding the post of Chairman shall
officiate as special officer to act for and on behalf of the State Government to administer all properties, undertakings, assets, liabilities and
personnel vested in the State Government as per Sub-clause (1) and (2) of Clause 4 in the name of transferor.
The fate of the existing employees of the Electricity Board on the notification of Ext. P-1 transfer scheme is detailed in Clauses 5(6), 5(11) and 6
(7). Those provisions are quoted below, for convenient reference.
5(6). The existing officers and employees of the Board, subject to their conditions of service, will continue to discharge their duties, responsibilities,
obligations and functions as was done before as per the existing delegation of powers on behalf of the Government in the place of the Board and in
the name as ''Kerala State Electricity Board'' till it is re-vested in a company by the State Government in accordance with Sub-section (2) of
Section 131 of the Act and the officers and employees who are discharging their duties under the Scheme during this period shall be deemed to be
under the services of the State Government.
5(11). All orders and circulars issued by competent authorities of the Board till the date of vesting would continue to be applicable during the
period till re-vesting and to the transferee on re-vesting and the managing committee shall have power to modify these circulars according to the
rules and procedures as was done by the Board.
6(7). The transfer of personnel shall be subject to the terms and conditions contained in Section 133 of the Act.
A reading of Clause 5(6) would show that during the transitional period, the officers and employees of the Board shall be deemed to be under the
services of the State Government. But, the opening portion of Clause 5(6) would show that, they will be under the services of the State
Government with the existing conditions of service. The service conditions of the employees of the Board and the employees of the State
Government are entirely different. Their pay scales are different, their channels of promotion are different etc. The date of superannuation is one of
those service conditions. A reading of Clause 5(6) of Ext. P-1 would not indicate that Government intended that all the conditions of service of
Government servants would automatically apply to the officers and employees of the Board, who are, for the time being, deemed to be under the
services of the Government. Any ambiguity concerning this point is cleared by Sub-clause (11) of Clause 5 of Ext. P-1, which would show that all
orders and circulars issued by the competent authorities of the Board till the issuance of Ext. P-1 will continue to be applicable till the re-vesting of
the properties of the Board in the newly formed company. By virtue of that clause, Ext. P-2 continues to operate, as far as the employees of the
Board are concerned. As contemplated under Ext. P-2, the Board has already taken Ext. P-5 decision against the Petitioners. As directed by this
Court, the Government have also taken a decision. Therefore, the contention that by virtue of the deeming provision, they are entitled to continue
up to 31-3-2010 is no longer available to them. Ext. P-8 judgment bars such a contention.
11. The contention of the Petitioners that they are subjected to hostile discrimination also cannot be accepted. The decision of the Government
uniformly applies to all Board employees. Article 14 of the Constitution of India permits classification. The contention regarding discrimination can
be raised, if only equals are treated unequally. The service conditions of employees of the Government and that of various Government companies,
statutory Boards etc., are different. There cannot be any comparison of service benefits granted to the employees working under various
employers for considering the violation of Article 14 of the Constitution.
12. The Petitioners pointed out that Ext. P-9 does not contain any reasons for not extending the benefit of Ext. P-6 to them. It is true that the
Government have not given detailed reasons in Ext. P-9. But, from the affidavits filed by the Board, it would appear that the Board did not want to
modify the date of retirement when the re-structuring process is going on. Further, the retirement of technical employees in a group on 31-3-2010
will affect the functioning of the Board. It appears, those reasons also weighed with the Government, for taking the above stand. What should be
the age of retirement of the employees is a matter for the employer to decide at the first instance. In the absence of any statutory prescription, any
convenient date can be fixed as the date of superannuation. There is no guiding principle in fixing the age of 55 years as the age of superannuation
of Government servants. It is an area of policy and within the realm of policy, the Government have several choices. But, it is for the administrator
to decide which choice he should make. As long as the decision of the Administrator is within jurisdiction, the courts have no business to interfere
with the same. As stated earlier, it is for the employer to decide what should be the age of retirement of its employees. So, in the broad sense, it is
a decision within jurisdiction. An authority acting within jurisdiction may stray out of jurisdiction while taking the decision. If the decision taken is so
perverse or is a decision which no man in his senses would take, in such a case, the court would say, the empowering provision does not authorise
taking of such a perverse or arbitrary decision, and so, the resultant decision is without jurisdiction and therefore, ultra vires. For example, if the
Manager of a school dismisses a teacher for being red haired, though the Manager has jurisdiction to take disciplinary action, but the decision
being one which no man in his senses would take, the Court would say the Manager has thus strayed out of jurisdiction. The resultant decision is,
therefore, ultra vires. In this case, if the Government have chosen not to allow the employees of the Board to continue till the end of the financial
year in which they attain the age of superannuation, the same cannot be described as an arbitrary decision or a decision which no man in his senses
would take. The age of retirement of employees of the Board was always the last day of the month in which they attain the age of 55 years. That
service condition is even now continuing. They claim a further benefit for continuing up to the last day of the financial year concerned. The
Government have declined to accept that claim. The same cannot described as an action without jurisdiction. Once the decision is found to be
within jurisdiction, we feel, this Court has no role to play in the matter. Within jurisdiction, they may take a decision which may not appear to be
proper in the eyes of the courts. The courts may feel some other choice would have been better. But, they are not recognised as grounds for
judicial review of administrative action. The contention of the Petitioners that Ext. P-9 is a decision taken under Rule 7 of Part I, K.S.R. is also
untenable. The said Rule enables the Government to relax any of the provisions of the K.S.R. Though the word ''relax'' is used in Ext. P-9, it is
essentially a decision taken in view of Ext. P-2. In view of the above position, we find no reason to interfere with the impugned orders.
Accordingly, the Writ Petition fails.
The learned Counsel for the Petitioners pointed out that as regards the employees, who were superannuated pursuant to Ext. P-10 order, so far,
the terminal benefits have not been released to them. It is also contended that salary for the period during which they have actually worked and
which they are entitled, in view of the direction in Ext. P-8, has also not been released. The salary, if any, payable for the period during which the
incumbents have worked pursuant to the interim orders of this Court, shall be released to them within one month from the date of production of a
copy of this judgment. The pensionary claims of the Petitioners shall be settled as early as possible, preferably within three months from the date of
production of a copy of this judgment. If there is further delay, the Petitioners will be free to work out their remedies. Subject to these directions,
the Writ Petition is dismissed.
W.P. (C) Nos. 16448, 17510, 17765, 20436, 20469, 26988, 26992, 27299, 27252, 27263, 27297, 27323, 27330, 27331, 27394, 27522,
27523, 27553, 27623, 27717, 29018, 29466, 29918, 30559, 30655, 30937, 30842, 33672, 33937, 34399 and 34421 of 2009:
In view of the judgment in W.P. (C) No. 26987 of 2009, these Writ Petitions are also liable to be dismissed. We do so, subject to the directions
concerning arrears of salary and pensionary benefits.