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PETITIONER: C. SANKARANARAYANAN ETC.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT04/05/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S.

CITATION:  1971 AIR 1997            1971 SCR  654  1971 SCC  (2) 361

ACT: 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 XXVIIB- Cannot 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).

HEADNOTE: 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 supercession 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

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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 were  dismissed. 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  superannuation. [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. [1968] 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., [1965] 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]

JUDGMENT: 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).

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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 appeals). The Judgment of the Court was delivered by Grover,  J.-These appeals by special leave are from a  judg- ment 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  provi- sions  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

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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.               3......................................               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 after 1-10-1964;               (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

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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

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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)  [1968] 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 years. 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 & Others(1). 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) [1965] 1 S. C.R. 693. 661