Point of Law: Article 229 gives primacy to Chief Justice in matter of appointment of officers and servants of High Courts.

JUDGMENT :

A.Muhamed Mustaque, J.

On 25.10.2022, the Registrar General of the High Court of Kerala forwarded the proposal of the Hon'ble the Chief Justice of High Court of Kerala for enhancement of age of superannuation of the members of the staff of the High court from 56 to 58 years. This proposal was mooted pursuant to the High level meeting between the Hon'ble Chief Justice and Hon'ble the Chief Minister held on 24.9.2022 wherein while considering many other matters, the Hon'ble Chief Minister expressed willingness to consider the proposal for enhancement of age with an open mind. The High Court forwarded the proposal along with the sub committee report. The sub-committee consisted of three judges of this Court. After adverting to many inputs and factors, the committee suggested enhancement of retirement age, limiting to members with meritorious service and impeccable integrity. That means an evaluation of performance will have to be done at the age of 56, which is the present age fixed for retirement, for an extension of service beyond 56 years.

2. The Government considered the matter. The Additional Chief Secretary by communication dated 28.2.2023 informed the High Court of their inability to accept the proposal as the Government fixed the retirement age at 56 of the High Court staff at par with the government servants and in view of the fact that no decision was taken to enhance retirement age of the government servants, the Government was not in a position to consider the proposal favorably.

3. The Kerala High Court Services (Determination of Retirement Age) Act, 2008, a state legislation, determines the retirement age in High Court service. It came into force with effect from 1.8.2008, the retirement age was fixed at 55. Thereafter, it was amended and now the retirement age is 56 years. We are not referring to the various events that occurred between the original enactment and the amendment as it may not be relevant for consideration of the points involved in this case.

4. These writ petitions have been filed by employees who have entered into the service of the High Court prior to 1.4.2013. The age of retirement of government employees after 1.4.2013 is 60 years based on the Government order then prevailing and thereafter, based on the amendment of service rules including the Kerala High Court Services (Determination of Retirement Age) Act, 2008. These matters have been placed before the division bench on a reference from the learned single judge apparently pointing out conflicts of views expressed by learned single judges in W.P. (C).No.19628/2007 and W.P.(C).No.31662/2007 and connected cases on interpretation accorded to Article 229 of the Constitution referring to the power of the Chief Justice. We, at the outset, must say that there is no conflict of views as the facts in both cases are dissimilar. In W.P. (C).No.16097/2023, there was a challenge against the statutory provision fixing age of retirement. This relief sought in the writ petition has been given up.

5. The writ petitions proceed on the ground 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.

6. We shall now refer to Article 229 of the constitution, which reads thus:

229. (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:

Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justi