Officer, IRDP, & Ors. Vs. P.D.Chacko  INSC 403 (11 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4392 OF
2010 (Arising out of SLP)No.14998 of 2007) PROJECT OFFICER, IRDP AND ORS. .....
question that falls for our consideration in this case is whether the
respondent who was in service as on 07.04.1970 as a full time menial in an
aided school is entitled to get the benefit of Rule 60(b) Part-I Kerala Service
Rules, (KSR for short) so as to continue in government service upto 60 years of
respondents entered service in an aided school on 25.06.1968 and worked as a
full time menial upto 09.04.1976. He resigned from the post and joined as a
Peon in the Tribal Welfare Department of the Government of Kerala on
Respondent had raised a claim that he was entitled to continue in service up to
60 years of age as per Rule 60(b) Part-I KSR since he was working as a full
time menial in an aided school as on 07.04.1970 and continued to be in the last
grade till he attained the age of 55 years. His claim was rejected by the
Department vide order No.E-49227/ 2001.
Feeling aggrieved by that order he preferred a writ petition O.P.No.29317/2001
before the Kerala High Court. Learned Single Judge of the Kerala High Court on
25.05.2006 allowed the writ petition holding that had he remained in the aided
school service he would have continued upto 60 years of age, hence he was
entitled to the benefit of Rule 60(b) Part-I KSR. Learned single judge gave a direction
to allow the respondent to continue in service till he attained 60 years of age
and to settle his pension and other benefits accordingly. State of Kerala and
Others preferred writ appeal no.35 of 2007 before the Division Bench of the
Kerala High Court and the appeal was dismissed on 15th January, 2007 at the
aggrieved by that judgment this appeal has been preferred by the State of
Kerala and their officers.
5. Mr. G.
Prakash, learned counsel appearing for the State of Kerala submitted that the
High Court has committed a grave error in holding that the respondent who was
working as a full time menial in an aided school as on 07.04.1970 was entitled
to get the benefit of Rule 60(b) of Part-I KSR. Counsel submitted that the
service in an aided school has not been included in the last grade service as
defined in GO(P)82/66/PD dated 08.03.1966 and as per the government decision
no.1 under Rule 14 in Part-III KSR the said period can be counted only for
pensionary benefits but does not confer any right to the incumbent to continue
in service upto 60 years of age. Consequently, provisional pension has already
been sanctioned to the respondent considering his regular service till he
attained the age of 55 years under Rule 3A Part-III KSR.
Beena Madhavan, learned counsel appearing for respondent submitted that the
service put in by the respondent in the aided school from 25.06.1968 to
09.04.1976 should be taken into consideration for the purpose of granting
benefit under Rule 60(b) of Part-I KSR. Learned counsel submitted as per Rule
29(b) of Part-III KSR past service would be counted if a person resigns from a
service to join another service. Learned counsel also referred to Rule 14E of 4
KSR Part-III and submitted that the aided school service put in by the
government employee prior to his entry in service would qualify not only for
the purpose of pension, but also for continuity in service upto 60 years of
age. Learned counsel, therefore, submitted that respondent had satisfied all
the criteria for claiming the benefit of Rule 60(b) Part-I KSR and the High
Court has rightly granted the benefit.
primary question that arises for consideration is whether the respondent who
was in service of an aided school as on 07.04.1970 was entitled to continue in
service till he attained 60 years of age as per clause `b' of Rule 60 of Part-I
was introduced by the Government of Kerala under the proviso to Article 309 of
the Constitution of India with effect from 01.11.1959 and these rules are
deemed to have been made under the Kerala Public Service Act (Act 19 of 1968).
KSR contains 3 parts.
contains rules relating to general conditions of service, pay fixation, leave,
joining time, foreign service etc. Part-II contains rules relating to traveling
allowance and Part-III contains rules of pension.
rules are applicable to all officers who entered service on or after 01.11.1956
and those who entered in service prior to 5 01.11.1956 and who opted to be
governed by these rules. Since introduction of these rules government has
issued various amendments and several executive orders by way of directions,
instructions, clarification etc. Government has also reserved to itself the
power to modify these rules from time to time.
60 dealing with the retirement of officers appears in Chapter VIII of Part I
KSR under the heading `compulsory retirement'.
60(a) is the substantive part of the Rule, which deals with the age of
retirement and Rule 60(b) deals with a specified category of officers in the
last grade which is an exception to the main provision.
60(a) and (b) read as follows:- "60(a) Except as otherwise provided in
these rules the date of compulsory retirement of an officer shall take effect
from the afternoon of the last day of the month in which he attains the age of
55 years. He may be retained after this date only with the sanction of
Government on public grounds which must be recorded in writing, but he must not
be retained after the age of 60 years except in very special circumstances.
Officers in the Last Grade Service on the 7th April, 1970 will retire on the
afternoon of the last day of the month in which they attain the age of 60 years
provided that this benefit will be available to them only as long as they
continue to be in the Last Grade Service as defined in Rule 12(16A)"
60(a) prescribes 55 years as the age of retirement in respect of government
servants. However, Government servant shall be 6 permitted to continue beyond
55 years, with the sanction of the Government on public grounds which must be
recorded in writing. In very special circumstances a Government servant may be
retained in service beyond 60 years of age. An exception has however been made
in respect of a specified category of government servants under clause ` b' of
Rule 60. Clause `b' of the Rule 60 provides that officers who were in the last
grade service as on 07.04.1970 would retire on attaining the age of 60 years,
provided they continued to be in last grade service as defined in Rule 12(16A)
of the Rules. Rule 12(16A) of Part-I KSR defines `Last Grade Service', which
reads as follows :- [16(A) Last Grade Service - "Last Grade Service"
means service in any post included in the Kerala Last Grade Service constituted
by the Special Rules for the Kerala Last Grade Service, published under G.O.
(P) No.82 Public (Rules) Department, dated the 8th March, 1966, in Part-I of
the Kerala Gazette No.14 dated the 5th April, 1966, as amended from time to
time, and includes service in any post declared by the Government to be a post
in the Last Grade Service] Therefore, in order to get benefit of Rule 60(b) two
conditions have to be satisfied. The first condition is that the government
servant concerned must have been in last grade service as on 07.04.1970 and the
second condition is that the benefit of Clause 'b' would be 7 available only as
long as such person continues to be in the last grade service as defined in
Rule 12 (16A) of the rules.
us examine why this benefit has been extended to a specified category of
government servants, i.e., "Officers in the Last Grade Service" as on
7th April, 1970. Certain categories of posts have been included in the Kerala
Last Grade Service by the State of Kerala in exercise of the powers conferred
by the proviso to article 309 of the Constitution of India vide Notification
GO(P)No.82/66/PD dated 8th March, 1966 called `special rules' for the Kerala
Last Grade Service. Rule 1 of the special rules contain various categories of
posts which inter alia include any other post in the Last Grade Service as
defined in Clause 16A of Rule 12 in Part-I KSR and who has not been included in
any other service.
to 07.04.1970 government servants who were in last grade service were entitled
to higher age of superannuation of 60 years, however with effect from
07.04.1970 they were brought on par with other government servants with the
result that they had to retire on attaining the age of superannuation of 55
years. Government felt it was necessary to protect them and hence Clause `b'
was introduced in Rule 60 giving them, the benefit of continuance in 8 service,
till they attained the age of 60 years. Normal age of superannuation in a
government service is 55 years. Evidently, the said clause was introduced by
way of exception to Clause `a' of Rule 60 to protect their right to continue up
to 60 years of age. The benefit of exception clause is, therefore, available
only to a specified category of employees who were in last grade service as defined
in Rule 12(16A) of the Rules. Rule 60(a) stipulates the age of retirement of
government servants as 55 years but an exception has been carved out to a
specified category of government servants but for that they also would have
fallen in Rule 60(a). By judicial interpretation we cannot enlarge the scope of
an exception clause, which is meant for a specified category of government
Exception clause, is normally, part of the enacting section, unlike a proviso
which follows an enacting part. Crawford's interpretation of Laws (1989) page
128, speaks of exception as follows:- The exception, however, operates to
affirm the operation, of the Statute to all cases not excepted and excludes all
other exceptions; that is, it exempts something which would otherwise fall
within the general words of the Statute".
13. It is
trite law that an exception clause has to be strictly interpreted and cannot be
assumed but be proved. Exception clause 9 is always subject to the rule of
construction and in case of doubt, it must befriend the general provision and
disfavour the exception. If any category of person claims exception from the
operation of the statute it must establish that it comes within the exception.
respondent has not produced any materials before us to show that the post he
was holding i.e., full time menial in an aided school was included in the
categories of posts in the special rules for last grade service. Further, the
respondent has to show that he continued to be in the last grade service as
defined in Rule 12(16A) of the Rules as on 07.04.1970. Respondent has not
produced any materials either before the High Court or before this Court to
establish that the service of full time menial in an aided school as on
07.04.1970, has been saved by Clause (b) of Rule 60 Part-I KSR.
2 of Chapter 1 KSR says subject to the provisions of Rule 3, rules in Parts I
and II apply to every person in the whole time employment of the government
subject to certain exceptions. No materials have been produced before us to
show that the aided school service would fall under the above mentioned
provisions, or in the Last Grade Service as defined under Rule 12(16A) of the
Part-III KSR deals with pension. Chapter 2 of that Part deals with
"qualifying service". Rule 14 E of the above mentioned Rules says
that service in an aided school put in by government employees prior to any
other government service qualify for pension.
intention of the rule making authority was to give the benefit of continuous
service of 60 years of age for those who were in aided school service then the
same would have been specifically provided in the rules. Aided school service
prior to government service is reckoned as qualifying years of service only for
calculating pension not for continuity of service up to 60 years of age. Rule
29(b) Part III is also, not applicable to the facts of the case, since in this
case we are concerned with the question whether the respondent falls within the
exception clause (b) of Rule 60. Respondent's prior service in an aided school,
we are informed has already been reckoned for the purpose of calculating
pension but the period he has served from 55 years of age to 60 years of age on
the basis of court's order cannot be reckoned for the purpose of pension and
other service benefits since he was not legally entitled to get the benefit of
Rule 60(b) Part-I KSR. However, salary if any paid to the respondent for the
above period shall not be recovered.
the above mentioned reasons, we are inclined to allow this appeal and set aside
the judgment of the Kerala High Court and uphold the order passed by the
Department E-49227 of 2001.
....................................J. (DALVEER BHANDARI)
.....................................J. (K.S. RADHAKRISHNAN)