Case: C. Sankaranarayanan Etc Vs. State Of Kerala

2. 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, 19683. 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 at teachers including Head Masters of aided schools will be raised to 58 with effect from. 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 suppression 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.

Reasoning:
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 superannuationAlternatively 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 Article 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 it 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 Article 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 CourtThese 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 estoppel10. 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 affect 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.