1. Retirement of trained teachers at age 55 — Dispute over superannuation age under amended service regulations — Challenge to retirement order. (Para 2 )
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1965 Supreme(SC) 228
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
State of Mysore (In all the Appeals), Appellant
Versus
I. Padmanabhacharya (In C. A. No. 236 of 1964), 2. J. K. Nangjappa (In C. A. No. 237 of 1964), 3. H. K. Keshava Murthy (In C. A. No. 238 of 1964), 4. M. S. Ramchandra Rao (In C. A. No. 239 of 1964), 5. N. Ramachandra Rao (In C. A. No. 240 of 1964), Respondents.
Civil Appeals Nos. 236 to 240 of 1964.
Advocates appeared
M/s. B. R. L. Iyengar and B. R. G. K. Achar, Advocates, for Appellant (in all the Appeals); Mr. R. Gopalakrishnan, Advocate, for Respondents (In all the Appeals).
Advocates:
B.R.G.K.Achar, B.R.L.Iyengar, R.GOPAL KRISHNAN
B.R.G.K.Achar, B.R.L.Iyengar, R.GOPAL KRISHNAN
A rule issued under the proviso to Article 309 of the Constitution must regulate recruitment or conditions of service and cannot be used to retrospectively validate an invalid retirement order, as such power does not flow from the constitutional provision.
Headnote:(A) Constitution of India - Article 309 and 311 - Service Regulations - Retirement age of trained teachers - Interpretation of rules - Validation of invalid retirement orders - The normal age of retirement for trained teachers, as per the amended regulations, was 58 years, unless it was found that the teacher had not a good record of service and was not up to the mark (Paras 6, 7). A notification issued under the proviso to Article 309 cannot be used to validate an order of retirement that was invalid when made, as such a notification does not constitute a rule regulating recruitment or conditions of service (Para 9).
(B) Article 309 - Proviso - Scope of power to make rules - The power to make rules regulating recruitment and conditions of service does not include the power to validate an order which was invalid at the time of its issuance. Such a declaration is not a rule governing conditions of service and would contravene Article 311 of the Constitution (Para 9).
Facts of the case:
Trained teachers were retired from service upon attaining the age of 55 years. The respondents contended that an amendment to the service regulations had increased the normal retirement age for trained teachers to 58 years, unless they were found to be inefficient or had a poor service record. The state argued that the retirement age remained 55, but teachers could be retained until 58 if fit. Additionally, the state sought to validate the retirements through a subsequent notification issued under the proviso to Article 309 of the Constitution.
Findings of Court:
The court found that the amendment to the service regulations shifted the normal retirement age for trained teachers to 58 years. Retirement at 55 was only permissible if a specific finding of poor performance was recorded, which was not the case here. Furthermore, the notification issued under Article 309 was held to be invalid as it did not regulate conditions of service but merely attempted to validate an illegal act.
Issues: Whether the normal age of retirement for trained teachers was 58 years under the amended regulations and whether a notification issued under the proviso to Article 309 of the Constitution could validate an invalid retirement order.
Ratio Decidendi: The court held that where a specific exception is carved out for a class of employees increasing their retirement age to 58, they cannot be retired at 55 without a recorded finding of inefficiency. Moreover, the power to make rules under the proviso to Article 309 is for general regulations of recruitment and conditions of service and does not extend to the retrospective validation of specific invalid administrative orders.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether normal retirement age for trained teachers was 58 years — Validity of a retrospective notification under Article 309 of the Constitution. (Para 3 )
3. Note 4 to Rule 294(a) shifted normal retirement age to 58 for trained teachers unless poor performance was recorded — Notification validating illegal retirements is not a rule. (Para 6 , 7 , 9 )
4. Rules under Article 309 must regulate recruitment or conditions of service and cannot be used to retrospectively validate an otherwise illegal retirement order. (Para 9 )
5. Appeals dismissed — Respondents entitled to continue in service until the age of 58. (Para 8 , 10 )
6. What is the effect of a service regulation stating the retirement age is generally 58 years, while allowing retirement at 55 for those with poor records?
The normal retirement age is 58 years. The word generally is used to accommodate the specific exception allowing the retirement of teachers at 55 if they have a poor record of service and are not up to the mark. (Para 6 , 7 )
7. Can a notification issued under the proviso to Article 309 of the Constitution be used to validate an order of retirement that was illegal when made?
No. The power under the proviso to Article 309 is to make rules regulating recruitment and conditions of service. A notification that merely deems an invalid retirement to be valid does not regulate conditions of service and is therefore invalid. (Para 9 )
Judgement
WANCHOO, 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 dispute and it will be unnecessary to refer to the facts in other cases for they are admittedly similar
2. Nanjappa, respondent in C. A. No. 237of 1964, was a trained teacher and was headmaster of a 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 supreannuation. Thereupon he filed a 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 retirement 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 58 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.
3. This contention was traversed on behalf of the 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 superannuation in the case of trained teachers remained 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 efficient. Besides reliance was also placed on behalf of the State on a notification of the Governor issued on March 25, 1959 and it was urged that that notification issued under Art. 309 of the Constitution validated the action taken in retiring Nanjappa, and other like him, on completion of the age of 55 years. It was not disputed on behalf of the State that the sole reason for retiring Nanjappa and others like him was that they had attained the age of 55 years and that there was nothing against their fitness or efficiency to justify the order of retirement.
4. 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 Governor 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 notification of March 25, 1959 could not be a 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 teachers in contravention of the rule as to retirement. The appellant-State then applied for leave to appeal to this Court which was refused. It then came to this Court and was granted special leave; and that is how the matter has come up before us.
5. 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), A Government servant in superior or inferior service, who was required to retire, unless Government considers him efficient, and permits him to remain in the service. But as the premature retirement of an efficient Government servant imposes a needless charge on the State, this rule should be worked with discretion. And in cases in which the rule is enforced, a statement of the reasons
