C. Sankaranarayanan Vs. State of
Kerala  INSC 140 (4 May 1971)
CITATION: 1971 AIR 1997 1971 SCR 654 1971 SCC
Kerala Education Rules, 1959-Provisions of
Ch. XX, Ch.
XXVIIA and XXVIIB are mutually exclusive-Teacher
in aided school who has exercised option under r. 2 of Ch. XIV(c) is governed
by Chapter XXVIIBCannot claim superannuation on basis of r. 8 of Ch. XXVIIA.
Constitution of India, 1950-Rule-making power
of Government under Art. 309 is not controlled by any agreement between
Government and employees-Change of age of retirement from 58 to 55 does not
attract Art. 311(2).
The appellant in C.A. No. 1789/69 was a
teacher in a private aided school in Kerala while the other appellants were at
the relevant time teachers in government schools. The teachers associations of
Government as well as aided schools submitted a memorandum to the Government
making various demands, one of them being that the age of retirement of school
teachers should be raised to 60 years. On July 1966 the Government issued an
order by which the age of retirement was raised from 55 to 58 years. However on
May 4, 1967 another order was made by Government in supersession of the earlier
orders and the age of retirement of all government employees and aided school
teachers was again fixed at 55 years. On both occasions necessary amendments
were effected in the Kerala Service Rules made by the Governor in exercise of
the powers conferred by the proviso to Art. 309 of the Constitution, as well as
in the Kerala Education Rules, 1959 framed by the Government under s. 36 of the
Kerala Education Act 6 of 1949. The 1959 Rules originally contained Ch. XXVII.
In February 1965 this Chapter was renumbered as Ch. XXVII-A. Another Ch. XXVII-B
was added. Rule in Ch. XXVII-A appearing under the head .pension' provided that
in the case of those in service of any aided school prior to 4-9-1957 the age
of retirement shall be 60 years. In Ch. XXVII-B however it was laid down that
the rules therein shall apply to teachers in aided schools to whom the rules in
Ch. XIV(C) Kerala Education Rules applied. Rule 4 of the said Chapter further
laid down that the date of compulsory retirement on superannuation applicable
to teachers of Government schools shall apply to teachers of aided schools.
Rule 2 of Ch. XIV (c) provided that teachers who were in service on 1-10-1964
would have an option either to continue under the Rules in Ch. XIV(B) or to
come under the Rules in that Chapter i.e. XIV(C). Such option when exercised
was to be deemed to be final. The appellant in C.A. No. 1789/69 exercised his
option within the period limited therefore and thus came to be governed by the
Rules in Chapter XIV(C). When the Government sought to retire the appellants at
the age of 55 years they filed writ petitions in the High Court. The petitions
In appeal by special leave to this Court,
HELD: (i) The division bench of the High
Court was right in holding that the provisions of Ch. XXVIIA and Ch. XXVIIB
were mutually exclusive. Chapter XXVIIB makes independent and separate
provisions which are inconsistent with those contained in Ch. XXVIIA. As the
appellant in C. A. No.
1789169 was a teacher in an aided school the
age of compulsory 655 retirement by virtue of r. 4 of the Ch. XVIIB would be
the same as that of teachers of government schools. The age of compulsory
retirement for the latter class of teachers was 55 years and it followed that
that would be the age of superannuation for the aforesaid appellant. Rule 2(a)
of the Ch. XIV(C) expressly states that teachers who come under the provisions
of Ch. XIV(C) shall retire at the age of 55. Rule 8 of Ch. XXVIIA could not be
applied to the said appellant as that was a general rule and when he opted to
be governed by the rules in Ch. XXVIIB and Ch. XIV(C) he was relegated to the
same position as that of a teacher of Government school even in the matter of
[658D-G] (ii) The power of the Government
under Art. 309 of the Constitution to make rules regulating the conditions of
service of government employees or of teachers in the aided schools under s. 12
of Act 6 of 1959 could in no way be fettered by an alleged agreement between
the government and teachers even if such an agreement was proved. [659B-C] (iii)
The rule of estoppel also could not be invoked in the circumstances of the
case. There was no question of any representation having been made by the
Government which was acted upon to their detriment by the appellants. [659F]
Union of India & Ors. v. M/s Indo-Afghan Agencies Ltd.
 2 S.C.R. 366, distinguished.
(iv) Change in the rule relating to
retirement can be validly made and it does not attract either Art. 311(2) or
Art. 14 of the Constitution. [660C] Bishun Narain Mishra v. State of Uttar Pradesh
& Ors.,  1 S.C.R. 693, relied on.
(v) The contention that once the age of
retirement was raised to 58 it could not be reduced to 55 owing to the
provisions of rr. 5 and 6 of the Kerala Service Rules was not raised before the
division Bench of the High Court. The normal practice of this Court is not to
allow a new point to be raised except in a case of very special nature. [660F]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1789 to 1791 of 1969.
Appeals by special leave from the judgments and
orders dated June 11, 1969, and July 10, 1969 of the Kerala High Court in Writ
Appeals Nos. 126 of 1968 and 762 of 1969.
K. T. Harindranath, Vishnu Bahadur Saharya
and Yougindra Khushalani, for the appellants (in all the appeals).
A. R. Somnath Iyer and M. A. Krishna Pillai,
for the respondent (State of Kerala) (in all the appeals).
P. C. Chandi, for the interveners (in all the
The Judgment of the Court was delivered by
Grover, J.-These appeals by special leave are from a judgment of a division
bench of the Kerala High Court.-affirming the decision of a learned single
judge who had dismissed the writ ,petitions of the appellants.
656 The appellant in C.A. 1789/69 entered
service as a teacher in a private aided school on March 14, 1946. Both the
appellants in C.A. 1790/69 had joined service originally as teachers in aided
schools but they entered government school service on August 17, 1958 and
December 13, 1948 respectively. Similarly in C.A. 1791/69 the appellant joined
government service as a teacher and attained the age of 55 on July 2, 1968.
It appears that on November 22, 1965 all
associations of government and private aided school teachers of which the
appellants were members submitted a memorandum to the government making various
demands. One of these (No. 11) was that the age of retirement of school
teachers should be raised to 60 years. On July 14, 1966 the government issued
an order by which the age of retirement was raised from 55 to 58 years.
Paragraph 8 of this order was in the following terms:"The age of
retirement of all teachers including Head Masters of aided schools will be
raised to 58 with effect from 1-7-1966.
This will be subject to the condition that
the appointing authority may with previous approval of the Director of Public
Instruction in the case of High and Training Schools require the teacher to
retire after he attains the age of 55 years, on three months’ notice without
assigning any reason. The teachers may also after attaining 55 years,
voluntarily retire after giving three months notice to the appointing
authority." The order mentioned above was followed by an amendment in the
relevant rules in the Kerala Education Rules framed under the Kerala Education
Act, 1958 (Act 6 of 1959). On May 4, 1967 another order was issued by the
government in supersession of the previous orders. By this order the age of
compulsory retirement of all government employees and aided school teachers
whose age of retirement on superannuation under the existing order was 58 years
was lowered to 55 years. It was, however, stated that all those who had already
crossed the age of 55 years or who might attain the age of 55 within a period
of three months from the date of the order would retire only on the date of
expiry of three months. The necessary amendments were formally made both in the
Kerala Education Rules framed under the Act 6 of 1959 and the Kerala Service
Rules made by the Governor in exercise of the powers conferred by the proviso
to Article 309 of the Constitution.
We may at this stage refer to the relevant
statutory provisions and the Rules. Act 6 of 1959 was enacted to provide for
the better Organisation and development of educational institutions in the
State. Section 12(1) of the Act provides that the 657 conditions of service of
teachers in aided schools including the conditions relating to pay, pension,
provident fund, insurance and age of retirement shall be such as may be
prescribed by the government. Section 36 confers power on the government to
make rules. The rules which have been.
framed under s. 36, namely, the Kerala
Education Rules 1959, hereinafter called the "Education Rules"
originally contained Chapter XXVII. In February 1965 this Chapter was
renumbered as XXVII-A. Another Chapter XXVII-B was added.
Rule 8 in Chapter XXVII-A appearing under the
head "pension" is in the following terms:"8. The age of
retirement on superannuation shall be 55 years.
Note.-In the case of those who were in
service of any aided school prior to 4-9-1957 the age of retirement on
superannuation shall be 60 years subject to the condition that the service
beyond 55 years shall not qualify for pension and gratuity under these
rules." In Chapter XXVII-B the following rules may be noticed:
"1. The Rules in this Chapter shall come
into force on 1-10-1964.
2. These Rules shall apply to teachers in
aided schools to whom the rules in Chapter XIV(C) Kerala Education Rules apply.
4. The date of compulsory retirement on
superannuation applicable to teachers of government schools shall apply to
teachers of aided schools." Chapter XIV(C) relating to conduct rules
contains two provisions which are material and which may be reproduced:
"1. The Rules in this Chapter shall
apply to(i) Teachers of aided schools who are in service on 1-10-1964 and who
opt under Rule 2 to be governed by these Rules; and (ii) Teachers appointed
(Provided that nothing contained in this
Chapter shall apply to teachers who continue in service after attaining the age
of 55 on or before 4-5-1967.)
2. Subject to the provisions of Rule 1
teachers who in service on 1-10-1964 shall be given the option either to
continue under the Rules in Chapter XIV(B) or to 42-1 S.C. India/71 658 come
under these Rules. Such option shall be exercised within a period of three
months from the commencement of. these Rules, or within such further time as
Government may specify in this behalf. The option once exercised shall be
final. Teachers who have not exercised any option within the prescribed period
shall be deemed to have opted these Rules." It is common ground that the
appellant in C.A. 1789/69 exercised the option in terms of the above rules.
Thus by virtue of Rule 2 in Chapter XXVII(B) read with Rule 4 the date of his
compulsory retirement on superannuation would be the same as was applicable to
teachers of government schools.
We may first deal with the contentions raised
on behalf of the appellant in the above appeal. It was claimed on his behalf
that the provisions of Chapters XXVII-A and B were not mutually exclusive and
be was entitled to the benefit of Rule 8 in Chapter XXVII-A. As he was in
service of an aided school prior to September 4, 1957 his age of retirement of
superannuation was to be 60 years. The approach of the division bench was that
the provisions of Chanter XXVIIA and XXVIIB when read together leave no doubt
that the two chapters are mutually exclusive. Chapter XXVIIB makes independent
and separate provisions which are inconsistent with those contained in Chapter
XXVIIA. As the appellant in C.A. 1789/69 is a teacher in an aided school the
age of compulsory retirement by virtue of Rule 4 of Chapter XXVIIB would be the
same as that of teachers of government schools.
The age of compulsory retirement for the
latter class of teachers was 55 and it followed that that would be the age of
superannuation for the aforesaid appellant. Reliance was placed also on Rule
2(a) of Chapter XIV(C) which expressly states that teachers who come under the
provisions of Chapter XIV(C) shall retire at the age of 55. We fully concur
with the view of the learned judges of the High Court and are unable to accede
to the contention that in spite of the clear wording of the various rules to
which reference has been made the appellant, who is a teacher in an aided
school can get the benefit of Rule 8 of Chapter XXVIIA.
That cannot possibly be applied to him as
that was a general rule and when he opted to be governed by the rules contained
in Chapter XXVIIB and Chapter XIV(C) he was relegated to the same position as
that of a teacher of government school even in the matter of superannuation.
Another point which has been strenuous urged
is that the government orders which followed the memorandum submitted by the
teachers were the result of an understanding which could well. be regarded, as
a binding agreement or contract between the government and the teachers from
which it was not open to the 659 government to resile unilaterally.
Alternatively a rule similar to that of estoppel could be invoked. The first
limb of this argument was disposed of by the learned single judge by rightly
pointing out that the power of the government under Art. 309 of the
Constitution to make rules regulating the conditions of service of government
employees or of teachers in aided schools under s. 12 of Act 6 of 1959 could in
no way be fettered by any agreement even if such an agreement was proved. We
have not been shown any principle or authority on which any agreement or
contract could be spelt out from the document relied upon. Nor is it possible
to understand how the power conferred by Art. 309 of the Constitution or by the
statutory provisions could be curtailed or fettered in any manner by any
alleged agreement or contract. The rule of estoppel can hardly be invoked in
the circumstances of the case although support was sought from certain
decisions of this Court.
In Union of India & Ors. v.
M/s.Indo-Afghan Agencies Ltd., (1) this Court held that where a person had
acted upon the representation made in the export promotion scheme that import
licence upto the value of the goods exported would be issued and had actually
exported goods his claim for an import licence for the maximum value
permissible by the scheme could not be arbitrarily rejected. It was observed
that the claim in that case was founded upon the equity which arose as a result
of representation made on behalf of the government in the export promotion
scheme and the action taken by the respondents there acting upon the
representation. Even though s. 115 of the Evidence Act was not in terms
applicable it was still open to the respondent who had acted on that
representation to claim that the government should be bound to carry out the
promise made by it though not recorded in the form of a formal contract as
required by the Constitution. These principles can hardly be applied here
because there is no question of any representation having been made by the
government which was acted upon to their detriment by the appellants. Moreover
the conditions of service could be indisputably changed in exercise of the
powers contained in Article 309 of the Constitution and Act 6 of 1959. In such
a situation it was not open to the appellants to invoke the principle of 'the
rule of estoppel.
Our attention has also been invited,
particularly on behalf of the appellants in C.As. 1790 and 1791, to exhibits
P-6 and P-7. Exhibit P-6 is a copy of proceedings of the District Education
Officer, Kottayam. It contains a mention of order dated March 10, 1967 in which
it is stated that the age of compulsory retirement of all officers in the State
had been raised to 58 as per the (1)  2 S. C. R. 366.
660 government orders mentioned therein. The
continuance beyond the age of 55 of these teachers was subject to suitability.
A list of certain teachers was given who were
allowed to continue in service till 58 years of age. Similarly exhibit P.7 is a
copy of the proceedings of the District Educational Officer, Palghat, in which
the names of teachers who were to continue beyond the age of 55 was given. This
was apparently done after the age of superannuation had been raised to 58 with
effect from July 1, 1966 vide exhibit P-4 (G.O.) dated July 14, 1966. But then,
as has been noticed before, the age of retirement was again lowered to 55
Change in the rule relating to retirement can
be validly made and it does not attract either Art. 311(2) or Art. 14 of the
Constitution: see Bishun Narain Mishra v. State of Uttar Pradesh &
Reliance has also been placed on behalf of
the appellants on Rules 5 and 6 of the Kerala Service Rules. According to Rule
5 nothing in the Rules or in any Rule made thereunder shall operate to deprive
any person of any right or privilege to which he is entitled by or under any
law or by the terms of any contract or agreement Subsisting between such person
and government on the date the Rules came into force. Section 6 says that
subject to the provisions of Rule 5 nothing in the Rules or any rule made under
the Rules shall operate to effect to the disadvantage of any person holding a
substantive post under government to whom the Rules apply, "the conditions
of service in respect of pay, leave, allowances, pension or any other matter
which are applicable to him (a) on the date these rules came into force, or (b)
by virtue of any order or rule made by the government unless such person gives
his consent". The point sought to be made is that once the age of
retirement was raised to 58 it could not be reduced to 55 owing to the
provisions of these Rules. This matter was not raised before the division bench
of the High Court and the normal practice of this Court is not to allow a new
point to be raised except in a case of a very special nature. We find no reason
or justification for entertaining this contention for the first time in this Court
in the present appeals.
The appeals fail and are dismissed but we
leave the parties to bear their own costs.
G.C. Appeals dismissed.
(1)  1 S. C.R. 693.