THE STATE OF MYSORE versus PADMANABHACHARYA ETC.

THE !!'TATE OF MYSORE

PADMANABHACHAR\'A ETC.

[P. B. GA.JENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATuLLAH, J. C. SHAii, AND S. 1\1. SIKRI, JJ.]

Mysore Service Regulations, rule :294(a) note 4--Scopc-Consritution of Jndia-Prol'i'io to Art. 209--Sc:vpe of.

The respondent, who was trained te"chcr, completed the age or 55 years on February 3, 1958, and was ordered to be retired from service from that date on the ground of superannuation. He thereupon challenged the validity of the order by filing writ petition in the High Court •nd contended that rule 294(a) of the Mysore Scn·icc Regulations-which prescribed •he age of retirement-having been amended m April 1955, 1he normal age of supe.rannl?:ltion v.·as fixed at 58 instead of 55 years. On behalf of th~ appellant State it was contended (i) that even after the amendment of rule 294(a) in 1955, the age of superannuation in the case of trained teachers continued to be 55 ye.1rs though it "'as open to the State 10 retain thcni up10 the ~gc of 58 y..:ars if they were fit and efficient; an<l (ii) that in any event notification of the Govcrno:- under Article 309 of the Con')titution issued on ~larch 25, l 959, valH.L1tcd the action taken in retiring the respondent and others upon their attaining the age of 55 years. The High Court r'jected both these contentions anJ aUov:ed the petition.

On appeal this Courl.

1-lELD: (i) The respondent \\·as entitled to continue in servi;.;c upto the. age of 58 years and not bl! retircJ at the age of 55 years in view of the exception c::i.n•cd out by note 4 in 1hc general provision roniained in rule 294(a). [998 HJ

Under r. 294( I) as it was before April 29, 1955, the normal age of retiren1ent \vas 55 years for all including trained teachers and it \\·as for the Government to give an f!Xtension on the. ground of fitness. But after note 4 was added to n1le 294(a). the position \\.'ith respect to trained teachers was changed and they 1,1:cre norn1.:dly entitled to .-:ontinuc in scr\·icc till the age of 58 years unless the Go\·cmmcnt came to rhe con~ clusion that they did not have good record of service or \i.·c:-e not uptei the mark. [998 BJ

(ii) The notification of ;o.iarch 29, 1959 cannot be said to be rule \\·ithin the meaning of the proviso 10 1\rt. 309 for regulating the recruit-ment and conditions of ser\'ice of persons appointed to the services anJ posts in connection \\"ith the affairs of the State .. All 1hat .the !'lotificat_ion or rule docs is to sav that the respondents having been invalidly rc11red should be deemed lo have been validly retired from service on superannua-tion. It y.,·oulJ, if given effect to, contravene Art. 311 of the Constitution. such rule cannot he rule contemplated under the proviso to An. 309. [999HJ

Appeal by special leave from the judgment arid order dated Aprll, 19, 1960 of the Punjab High Court in Letters Patent Appeal No. 128 of 1960.

Gopal Singh, for the appellant.

K. R. Chaudhuri, for respondent No. 1.

0. P. Malhotra and R. N. Sachthey, for respondent No. 7 and 7.

The Judgment of the Court was delivered by

Wimchoo J. These appeals by special leave raise common questions and will be dealt with together. We shall take the facts of one appeal (No. C.A. 237) in order to understand the questions in dlspute and it will be unnecessary to refer to the facts in other cases for they are admittedly similar.

Nanjappa, respondent in C.A. 237 of 1964, was trained teacher and was headmaster of Government Boys' Middle School. He completed the age of 55 years on February 3, 1958 and was ordered to be retired from service from that date on the ground of superannuation. Thereupon he filed writ petition in the High Court of Mysore, and the main contention raised on his behalf was that r. 294 (a) of the Mysore Service Regulations (hereinafter referred to as the Regulations), which prescribed the age of retire-ment of Government servants, had been amended with respect to trained teachers from April 29, 1955, and in the case of such teachers the normal age of superannuation was fixed at 5 8 years instead of 55 years. Consequently, the respondent could not be retired on completion of the age of 55 years and the order by which he was retired at that age as if he was superannuated was illegal on the ground that it was against the rule applicable to trained teachers.

This contention was traversed on behalf of tl1e State, which is the appellant before us. It was admitted that there was some change in the rule relating to superannuation. Even so it was contended that the age of superammation in the case of trained teachers re-mained the same, namely 55 years and it was open to the State to retire trained teachers at the age of 55 years, though they could be retained upto the age of 58 years if they were found fit and effi-cient. Besides reliance was also placed on behalf of the State on notification of the Governor issued on March 25, 1959 and it was urged that that notification issued under Art. 309 of the Con-stitution validated the a~tion taken in retiring Nanjappa, and other~

like him, on completion of the age of 55 years. It was not dis·

puled on behalf of the State that the sole reason for retiring Naa-jappa and others like him was that they had attained the age of 55 years and that there was nothing against their fitness or effi-ciency to justify the order of retirement.

Two principal points were thus raised before the High Court. The first was with respect to the interpretation of r. 294 (a) with particular reference to the amendment which was made on April 29, 1955. The second was with respect to the effect of the Gov-ernor's notification dated March 25, 1959. On the first point, the High Court held that the change made in r. 294 on April 29, 1955 clearly provided that in the case of trained teachers the normal age of retirement would be 58 years, though the Government would have the right to retire them earlier if they were neither fit nor efficient. On the second point, the High Court held that the noti· fication of March 25, 1959 could not be rule within the meaning of Art. 309 of the Constitution and could not have the effect of validating what had been done earlier with respect to trained tea· chers in contravention of the rule as to retirement. The appellant· State then applied for leave to appeal to this Court which was re· fused. It then came to this Court and was granted special leave; and that is how the matter has come up before us.

We are of opinion that the High Court is right on both the points urged before it. Rule 294 (a) of the Regulations which was in force before the change was made on April 29, 1955, was in these terms :-

"294 (a). Government servant in superior or in·

ferior service, who has attained the age of fifty-five years, may be required to retire, unless Government considers him efficient, and permits him to remain in the service. But as the premature retirement of an efficient Govern· men! servant imposes needless charge on the State, this rule should be worked with discretion. And in cases in which Jhe rule is enforced, statement of the reasons for enforcing it shall be placed on record."

There is no doubt that this rule as it was before April 29, 1955 provided that normal age of retirement was 55 years but it gave discretion to Government to extend the service of efficient Govern· ment servants beyond the age of 55 years.

In August 1954, however, the Government issued notification

which applied to trained teachers in the Education Department. In this notification it was directed that in the Education Department

the age of retirement of trained teachers would generally be 58 years. With regard to teachers who were not trained and who were otherwise efficient, the age of retirement would also be 58 years. Teachers trained and untrained who had not got good record of service and who were not upto the mark would be retired at 55 years. The relaxation regarding the age of retirement would be in force only till such time as sufficient number of trained teachers became available for employment. The order also contained direction that suitable note would be added to r. 294 (a) of the Regulations. In consequence of this order, necessary additions were made to the Regulations by the then Rajpramukh of Mysore and note 4 was added tor. 294 (a) in these terms:-

"The age of retirement of trained teachers in the Education Department may generally be fifty-eight years, and in the case of teachers who are not trained but who are otherwise efficient the age of retirement may also be fifty-eight years ........ .

"The Director of Public Instruction in Mysore is empowered to order the retirement of teachers, trained and untrained in the non-gazetted cadre who have not got good· record of service and who are not upto the mark, at the age of fifty-five years, and in the case of gazetted servants, with the concurrence of Government in each case.

"The above provision shall be deemed to have come into force with effect from the 20th August, 1954." It is the effect of this addition tor. 294 (a) which falls to be con-iidered bef9re us. We shall in the present appeals confine ourselves to the case of trained teachers for the respondents before us are admittedly all trained teachers. What we say here will not neces-sarily apply to teachers who are not trained. So far as trained teachers are concerned there is no doubt that note 4 carved out an exception to r. 294 (a) which provides that the normal age of retirement is 55 years and it is for the Government to decide whe-ther to grant extensions to persons after they completed 55 years and this grant of extension was on the basis of such persons remain-ing efficient in the opinion of Government after the age of 55 years. But note 4 made change in that position so far as trained teachers were concerned. That change was that in the case of trained teachers the normal age of retirement was to be 58 years. The latter part of the note however gave power to the Director of Public Instruction to retire even trained teachers in the non-gazetted cadre

provided they had not good record of service and were not upto the mark. In such case the Director had the power to retire them at the age of 55 years if he was of the view that they had not good record of service and were no: upto the mark. Thus under r. 294 (a) as it was before April 29, 1955 the normal age of retirement was 55 years for all including trained teachers and it was for the Government to give ext.:nsion on the ground of fitness. But after note 4 was added to r. 294 (a), the position with respect to train-ed teachers was changed and trained teachers were normally entitled to continue in service till the age of 58 years unless the Director or the Government as the case may he, was of the opinion that they had not good record of service and were not upto the mark. Therefore after the change made on April 29, 1955, trained teachers could only be retired at the age of 55 y~ars if the Director of Public Instruction or the Government, as the ca.se may be, came to the conclusion that they had not good record of service and were not upto the mark. Therefore. before the respondents in the present appeals could be retired at the age of 55 years, the Direc-tor of Public Instruction or the Government, as the case may be. had to come to the conclu 1ion that they had not good record of service and were not upto the mark. If such conclusion was not arrived at, they would be entitled under note 4 to continue in service upto the age of 58 years. It is not disputed on behalf of the appellant that no such decision, namely, that the respondents had not good record of service and were not upto the mark, was taken.

Stress is laid on the word "generally" appearing in the first part or note 4. The presence of that word does not mean that the nor-mal age of reti;ement is still 55 years. The reason why the word "generally" is used in the earlier part of note 4 is to be found in the latter part or the same note where power has been given to the Director of Puh!ic Instruction to retire trained teachers at the ag~ of 55 years if they have not good record of service and are not upto the mark. Because of that power it was necessary to use the word "generally" in the earlier part of the note, as otherwise there would be an indefeasible right in trained teachers to continue in service upto the age of 58 years, even if they did not have good record of service and were not upto the mark.

In the circumstances, the respondent~ would be entitled to con-tinue in service upto the age of 58 years and could not be retired :it the age of 55 years in view of the exception carved out by note 4 in the general provision contained in r. 294(a). The contention of the appellant in this connection must therefore be rejected.

We now come to the notification dated March 25, 1959. That notification reads thus :-

"In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and with the ap· proval of the Central Govermnent under the proviso to sub-section (7) of section 115 of the States Reorganisa-tion Act, 1956, (Central Act 37 of 1956), the Governor of Mysore is pleased to make the following rule, namely:-

"Notwithstanding anything contained in note 4 to Article 294 of the Mysore Service Regulations (Eighth Edition), Government Servants who have been retired from service on the attainment of the age of fifty-five, during the period between 7th day of June 1957 and the 28th day of October 1958 shall be deemed to have been validly retired from service on superannuation."

W are of opinion that such rule cannot be made under the proviso to Art. 309 of the Constitution. We are expressing no opinion as to the power of the legislature to make retrospective provision under Art. 309 of the Constitution wherein the appro-priate legislature has been given the power to regulate the recruit-ment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with item 70 of List I of the Seventh Schedule or item 41 of List II of the Seventh Schedule. The present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down that it shall be competent for the Governor or such person as he may direct in the case of services and posts in connection with lhe affairs of the State to make rules regulating the recruit-ment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act by the appropriate legislature. Under the proviso the Governor has the power to make rules regulating the recruit-G ment and conditions of service of persons appointed to such services and posts in connection with the affairs of the State. The question is whether the notification of March 25, 1959 can be said to be such rule. We are of opinion that this notification cannot be said to be rule regulating the recruitment and condi-tions of service of persons appointed to the services and posts in connection ',Vith the affairs of the State. All that the rule does is to say in so many words that certain persons who had been, in view of our decision on the first point, invalidly retired should be

iOOO

[1966] I S.C.R.

SUPREME COUllT REPORTS

deemed to have been validly retired from service on superannua-

tion. It would if given effect contravene Art. 311 of the Cons-titution. Such rule in our opinion is not rule contemplated under th.e proviso to Art. 309. Under the proviso the Governor can make rules regulating the recruitment and conditions of ser-vice of persons appointed to services and posts in connection with the affairs of the State. But all that this notification or rule does is to say that certain persons who had been v.TOngly retired must be treated to have been rightly retired. This power of validating an order which was invalid when it was made does not in our opinion flow from the power conferred on the Governor to make rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. It i.s cet\ainly not rule regulating recruitment of such persons; nor can it be said to be rule regulating conditions of services of such persons. The rules relating to recruitment and conditions of service contemplated by the proviso to Art. 309 are general in operation, though they may be applied to particular class of Government servants. But what this notification or rnle does is to select certain Government servants who had been . il-legally required to retire and to say that even if the retirement had been illegal, that retirement should be deemed to have been pro-perly and lawfully made. We are of opinion that such declara-tion made by the Governor-and that is all that the notification or the rule does-cannot in any sense be regarded as rule made under the proviso to Art. 309 governing the conditions of service of persons appointed to services and posts in connection with the affairs of the State. In this view of the matter it is not necessary to decide whether rule of this kind which is purely retrospective could be made as rule governing conditions of service of persons appointed in connection with the affairs of the State.

The appeals therefore fail and are hereby dismissed. respondents will get their costs from the appellant. be one hearing fee.

The Tliere will

Appeals dismissed.