THE !!'TATE OF MYSORE v. PADMANABHACHAR\'A ETC

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 c 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 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 tea· D chers in contravention of the rule as to retirement. The appellant· State then applied for leave to appeal to this Court which was re· It then came to this Court and was granted special leave; fused. and that is how the matter has come up before us. We are of opinion that the High Court is right on both the E 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 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 a needless charge on the State, this rule should be worked with discretion. And in cases in which Jhe rule is enforced, a 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 a notification which applied to trained teachers in the Education Department. In this notification it was directed that in the Education Department F G H .. • - - • A B c D E G H STATE v. PADMANABHACHARYA (Wanchoo, !.) 997 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 a 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 a direction that a suitable note would be added to r. 294 (a) of the In consequence of this order, necessary additions Regulations. 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 a 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 a 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 , .... .. • • 998 SUPREME COURT REPORTS [1966] l S.C.R. provided they had not a good record of service and were not upto In such a case the Director had the power to retire them the mark. at the age of 55 years if he was of the view that they had not a 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 a 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 a 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 a good record of service and were not upto the mark. If such a 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 a 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 a 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 a good record of service and were not upto the mark. B c D E l G 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. II STATE v. PADMANABHACliARYA (Wanchoo, J.) 999 A We now come to the notification dated March 25, 1959. That notification reads thus : - • - • c D E F G \ H "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 rule, of Mysore namely:- the following is pleased to make "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 c are of opinion that such a 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 a 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 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 a rule. We are of opinion that this notification cannot be said to be a 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 SUPREME COUllT REPORTS • [1966] I S.C.R. ' . B A deemed to have been validly retired from service on superannua tion. It would if given effect contravene Art. 311 of the Cons titution. Such a rule in our opinion is not a 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 It i.s cet\ainly not a rule regulating recruitment of such State. persons; nor can it be said to be a 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 a particular class of Government servants. But what this notification or rnle D 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 a declara tion made by the Governor-and that is all that the notification or the rule does-cannot in any sense be regarded as a 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 a rule of this kind which is purely retrospective could be made as a rule governing conditions of service of persons appointed in connection with the affairs of the State. c F E The appeals therefore fail and are hereby dismissed. The respondents will get their costs from the appellant. Tliere will be one hearing fee. / Appeals dismissed. G