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PETITIONER: N.   LAKSHMANA RAO & ORS.  ETC.

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.  ETC.

DATE OF JUDGMENT29/04/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1975 AIR 1646            1975 SCR  328  1976 SCC  (2) 502

ACT: Karnataka State Civil Service (Age of Compulsory Retirement) Rules, 1974 and Constitution of India, 1950, Article 309 and 311-Reduction   of the age of compulsory retirement from  58 to 55 years- prescribing age of superannuation if amounts to removal or termination. Mysore  Compulsory  primary  Education  Act,  1969,  Section 14(b)-Teachers  of  primary schools  becoming  employees  of State  Government Conditions of service to  continue  "until other  provision  is made"-Section 14(b), if  temporary  and transitional-Conditions, if can be altered by the Governor.

HEADNOTE: The  new State of Mysore came into existence on 1  November, 1956,  consequent upon the reorganization of States  brought about   by  the  states  Reorganization  Act,   1956.    The reorganized  new  State  consisted of the  former  Suite  of Mysore,  part  of the former State of Bombay,  part  of  the former Stat of Hyderabad, part of the former State of Madras and  the centrally administered territory of  Coorg.   There are  three categories of teachers "who are parties to  these appeals.  One group consists of primary and secondary school teachers  in  Government  schools of  the  former  State  of Mysore.   The  second  group consists  of  teachers  in  the schools  belonging to various local authorities situated  in the area of the former State of Mysore.  These teachers were absorbed  in Government service of the new State  of  Mysore when  the  said schools were taken over by  the  Government. ’The third group consists of teachers in the schools of  the School Boards in the Bombay area and Madras area of the  new State.   They were absorbed in Government service under  the mysore Compulsory Primary  Education Act, 1969. On 24 February, 1974, the Karnataka State Civil Service (Age of  Compulsorily Retirement Rules, 1974 came into  existence in exercise of powers under Article 309 of the Constitution. These  rules  provided that nowithstanding anything  to  the contrary contained in any law, rule, notification, order  or ,agreement every Government servant referred to in  sub-rule (4)  who,@ t,,e of compulsory retirement is 58  years  shall retire  on  attaining  the age of 55  years.   It  was  also

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provided by those Rules that those who continued in  service after  attaining the age of 55 years on the date of the  pi- promulgation of the Rules would retire on the date on  which they  attained  the  age of or 1 April,  1974  whichever  is earlier.   It  is also stated that those  who  continued  in services  after    attain  the age of  55  years  after  the commencement of these Rules. but on or before 1 April,  1974 would  retire  on 1 April, 1974.  Those who will  attain  55 years after 1 April, 1974 shall retire on ,attaining the age of  55 years,.  The Government servant was defined  in  1974 Age  of Compulsory Retirement Rules to mean six  classes  of Government  servants.  The three categories of teachers  who are parties to these appeals are all covered by The rules. It  was  contended on behalf of the  Ex-Mysore  Primary  and Secondary  School  teachers  that  they  had  their  age  of retirement  at  58 years and they were protected  under  the proviso  to  sub-section (7) of section 115  of  the  States Reorganisation  Act.   It  was contended on  behalf  of  the teachers  of  Ex-Municipal High Schools that  their  age  of retirement  which  was applicable to  the  Municipal  Blight School  Teachers  before  the (late of take  over  N@@is  58 years,  and  therefore,  they  were  protected  Linder   the agreements dated 30th April, 1971.  The contention on behalf of the teachers of elementary ,schools which were under  the management of local bodies and which were 329 taken  over  by  the  State Government  that  their  age  of retirement  was 58 years before the schools were taken  over by  the State Government under the provisions  of  Karnataka Compulsory  Primary Education (Amendment  and  Miscellaneous Provisions)  Act, 1969 and their conditions  would  continue until other condition was made.  The principal contention of the  teachers of the Municipal and Taluk  Development  Board High  Schools which were taken over by the State  Government under written agreements made by the relevant local body was that  the condition which was offered by the Government  and accepted  by these teachers "shall not be altered  to  their disadvantage"  by’  virtue of section 14(b)  of  the  Mysore Compulsory  Primary  Education  Act,  1969.   One  of  their conditions of service before the schools were taken over  by the  State Government was the age of retirement of  teachers at 58 years. Rejecting the contentions and dismissing the appeals HELD  : (i) This Court has held that prescribing an  age  of superannuation  does not amount to an action  under  Article 311  of the Constitution.  Article 309  confers  legislative power to provide conditions of service.  The legislature can regulate  conditions  of  service by law  which  can  impair conditions or terms of service.  It, therefore, follows that teachers  who exercised the form of option were  subject  to change in the conditions of service under Rules framed under Article  309.   There  is no  constitutional  limitation  to reduce  the age of retirement.  A Government servant  enjoys the  status of a Government servant.  He cannot  be  removed and  his services cannot be terminated except in  accordance with the provisions of the Constitution.  Fixing ,in age  of retirement does not amount to removal of termination. [333H, 334 & 335A] Roshan  Lal Tandon v. Union of India [1968]1 S.C.R. 185;  B. S.  Vadera v. Union of India & Ors. [1968] 3 S.C.R. 575  and Bishun  Narain  Mishra v. State of Uttar  Pradesh  &  Others [1965] 1 S.C.R. 693, relied on Gurdev  Sinqh  Sidhu v. State of Punjab &  Others  [1964]  7 S.C.R. 587 and State of Mysore v. Padmanabhacharya [1966]  1 S.C.R. 994, referred to,

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(ii) The 1969 Act provided in section 14 transfer of primary schools managed     by the municipal councils and panchayats in the Madras area and Bellary     District    before    the appointed  day.  Teachers of those schools became  employees of the State Government.  The provision contained in section 14(b)  of  the  1969 Act is  a  temporary  and  transitional provision  which  continues until other provision  is  made. The  Legislature does not say until other provision is  made because  the legislature is always free to  legislate.   The words  "until other provision is made" mean provision  which can  be  made by the legislature or by the Governor  or  the executive.  The words "until other provision is made" do not exclusively  limit  to legislate.  If  the  legislature  has occupied  the  field the Governor has co-equal  power.   The power  of the Governor is co-extensive with the  legislative power. [335 BCDH] B.   S. Vadera v. Union of India & Ors. [1968] 3 S.C.R. 575, referred to. Section  14(b)  of  the 1969 Act is  not  a  law  regulating recruitment  and  conditions of service under  Article  309. Assuming   it  is,  Article  309  does  not   preclude   the legislature from making provision prescribing conditions  or recruitment  and  conditions  of service by  Rules.   It  is equally  open to the legislature to provide that in  certain conditions  the Governor acting under the proviso  may  make appropriate  rules.   The  power under the  proviso  is  co- extensive with the power under the main part. [335F-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1919,  1931, 1932-34,  1959-84, 1985, 1986, 1987-89, 1991-2007 & 2043  of 1974. From  the  judgment dated 18-10-1974 of the  High  Court  of Bangalore  in  Writ Petitions Nos. 1019,  865,  1118,  1157, 1197, 2522,                             330 2584, 2904, 3576, 4029, 5662, 1170 & 3204 of 1974. A. K. Sen (In C. A. No. 1919 of 1974) Rama Jois, (In C. As. 1919-31) & (W.P. No. 249/74), P. R. Ramasesh (In C.As. Nos. 1919-31) and R. B. Datat, for the appellants (In C.As. Nos 1919-31, 1987, 1988, 1991-2007, 2043) & petitioner (In W.P’ No. 249 of 1974). S.  Lakshminarasu, for the petitioners (In C.As. Nos.  1932- 34).’ Rama  Joie and S. S. Khanduja, for the appellants (In  C.As. Nos. 1959-84/74). Narayan Nettar, for the appellants (In C. As.  Nos. 1985-86/ 1974). V.   J.  Francis,  for respondents Nos. 4-8 &  10  (In  C.A. 1983). F.   S. Nariman, Additional Solicitor General, (In C.A.  No. 1919) K.   S.  Puttaswamy, (In  C.A. No. 1919/74)  &  (W.P.  No. 249/74) and  M. Veerappa, for State of Karnataka in all the matters. A. R. Sommnath Iyer, N. D. Kurlarni (In W.P. No. 21/75) and Rama  Jois  and R. B. Datar,  for  applicant/Intervener/Writ Petitioner. The Judgment of the Court was delivered by RAY, C.J.-These appeals by certificate turn on the  question as  to  whether the Karnataka State Civil Services  (Age  of Compulsory Retirement) Rules, 1974 are valid. These cases may be broadly classified into three categories.

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One group consists of primary and secondary school  teachers in  Government schools of the former State of  Mysore.   The second  group consists of teachers in the schools  belonging to  various  local authorities situate in the  area  of  the former  State  of Mysore.  These teachers were  absorbed  in Government service of the new State of Mysore when the  said schools were taken over by the Government.  The third  group consists of teachers in the schools of the School Boards  in the Bombay area and the Madras- area of the new State.  They were  absorbed  in  Government  service  under  the   Mysore Compulsory Primary Education Act, 1969. The  new State of Mysore came into existence on 1  November, 1956  consequent upon the reor-anisation of  States  brought about   by  the  States  Reorganisation  Act,   1956.    The reorganised  new  State  consisted of the  former  State  of Mysore  part  of  the former State of Bombay,  part  of  the former  State  of  Hyderabad, part of the  former  State  of Madras and the centrally administered territory of Coorg. Sections  114 and 115 of the States Reorganisation Act  deal with allotment and transfer of State Services of the merged parts of the new State. 331 The  School  teachers  of the former State  of  Mysore  were allotted  to  the  new State of Mysore with  effect  from  1 January,  1956.   Their age of retirement under  the  Mysore Services  Regulations was, 58 years.  Some time in the  year 1957 the State Government reduced their age of retirement to 55  years.   The  teachers challenged  the  reduced  age  of retirement.    This   Court   in   State   of   Mysore    v. Padmnabhacharya (1966) 1 S.C.R. 994 upheld the contention of the  teachers  that the age of retirement as  fixed  by  the State was illegal.  It may be stated here that the State did not  obtain  the prior approval of  the  Central  Government under  section  115(7) of the States Reorganisation  Act  in regard to the reduction of the age of compulsory retirement. By notification dated 14 April,’ 1966 the age of  retirement of  primary and secondary school teachers in the  new  State was  fixed at 58 years with effect from 5 April, 1966.   The age  of retirement of teachers who were allotted from  other integrated  areas  was 55 years.  By notification  dated  15 April, 1966 a uniform treatment was given to all the Primary and Secondary School Teachers of the new State of Mysore  by fixing their age of retirement at 58 years. By notification dated 10 July, 1970 the age of retirement of teachers   in   the  Collegiate  and   Technical   Education Department was raised to 5 8 years. By  notification  dated 6 May, 1971 the  retirement  age  of teaching staff of the Medical and Dental Colleges and  other colleges under’ the Department of Health and Family Planning Services was, raised to 58 years. By  another  notification  dated 24 June, 1971  the  age  of retirement  of the members of the teaching stain of the  Law Colleges was raised to 58 years. By  another  notification dated 5 August, 1972  the  age  of retirement of the members of the Judicial Service was raised to 58 years. The  Karnataka  Civil  Services  (Twenty-Second   Amendment) Rules,  1973 provided the age of retirement of all  teachers in   all  the  Departments  except  Ex-Mysore  Primary   and Secondary School Teachers at 55 years. The  teachers  of the erstwhile local authorities  were  not covered  by  the  Karnataka  Civil  Services  (Twenty-Second Amendment)  Rules,  1973  as they were  governed  either  by contract or by special laws.  Their age of retirement was 58

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years.   They  were asked to retire on attaining  55  years. They filed writ petition challenging the reduction in age of retirement. The  Mysore Service. (Amendment) Regulations 1974 were  pro- mulgated on 21 January, 1974 reducing the age of  retirement of Ex-Mysore teachers from 58 to 55 years.                             332 The  Mysore  Civil  Service Regulations 1974  were  made  in exercise of the powers conferred by the, proviso to  Article 309  of the Constitution and with the previous  approval  of the  Central Government under the proviso to subjection  (7) of  section  115 of the States  Reorganisation  Act.   These Mysore  Civil Service Regulations 1974 provided  that  every Government  servant  governed by the provisions, of  note  4 below clause (c). of Article 294 of the Mysore Civil Service Regulations  would retire on attaining the age of  55  years and those who were continued in service after attaining  the age of 55 years on the date of the Regulations would  retire on attaining the age of 58 years or 1 March, 1974  whichever is earlier. The  Mysore  Civil Service- (Amendment),  Regulations,  1974 thus  reduced  the age of retirement of  Ex-Mysore  teachers also to 55 years. On 24 February, 1974 the Karnataka State Civil Services.(Age of Compulsory Retirement) Rules, 1974 came into existence in exercise  of powers under Article 309 of  the  Constitution. The  Karnataka  State  Civil  Services  (Age  of  Compulsory Retirement)   Rules,  1974  provided  that   notwithstanding anything  to  the  contrary  contained  in  any  law,  rule, notification,  order or agreement, every Government  servant referred to in sub-rule (4) whose age of compulsory  retire- ment  is  58 years shall retire on attaining the age  of  55 years.   It was also provided by those Rules that those  who continued in service after attaining the age of 55 years  oh the  date of the promulgation of the Rules would  retire  on the  date  on which they attained the age of 58 years  or  1 April,  1974 whichever is earlier.  It is also  stated  that those  who  will  attain  the age  of  55  years  after  the commencement of these Rules, but on or before 1 April,  1974 would  retire  on 1 April, 1974.  Those who will  attain  55 years after 1 April, 1974 shall retire on attaining the  age of 55 years.  The Government servant was defined in 1974 Age of  Compulsory  Retirement  Rules to  mean  six  classes  of Government  servants.  The three categories of teachers  who are  parties  to  these,  appeals are  all  covered  by  the Karnataka State Civil Service (Age of.Compulsory Retirement) Rules., 1974 which are referred to as the impugned Rules. The Ex-Mysore primary and secondary school teachers  contend that  they had their age of retirement at 58 years and  they were  protected  under  the proviso to  sub-section  (7)  of section 115 of the States Reorganisation Act.  The  teachers of  Ex-Municipal High School taken over under orders of  the Government  and agreements made by the Government  dated  30 April, 1971 contended that their age of retirement which was applicable to the Municipal High School teachers before  the date  of take over was 58 years, and, therefore,  they  were protected under the agreements.  The teachers of  elementary schools which were under the management of local bodies  and which were taken over by the State Government contended that their age of retirement was 58 years before the schools were taken  over by the State Government under the provisions  of Karnataka   Compulsory  Primary  Education  (Amendment   and Miscellaneous  Provisions)  Art, 1969 and  their  conditions would continue until other condition was made. 333

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The  teachers of the Municipal and Taluk  Development  Board High  Schools which were taken over by the State  Government under  written  agreements made by the relevant  local  body contended  that  they  &came  Government  servants  by   the exercise  of option form accepting the terms and  conditions offered  by the Government in their order. dated  30  April, 1971.   These  teachers also contended that the  option  was incorporated  in the agreement between the State  Government and the relevant local body under whom they were,  employed. The  principal  contention of these teachers  was  that  the condition  which was offered by the Government and  accepted by  these teachers of the relevant local body was  that  the conditions  of  service  of these teachers "  shall  not  be altered to their disadvantage".  One of their conditions  of service  before  the schools were taken over  by  the  State Government  was  the  age of retirement of  teachers  at  58 years.   Under  the  impugned  Rules  these  teachers   were requited to retire at, the age of 55 years,  notwithstanding the  fact that their age of retirement under  the  agreement was 58 years. The  Government Order dated 30 April, 1971’stated  that  all employees  of the Local Authorities would become  Government servants  with  effect from the date of transfer  and  their conditions   of  service  would  not  be  varied  to   their disadvantage.  consequent  on their transfer  to  Government control.  The Government order dated 30 April, 1971  further provided  that the employees of local bodies  and  Secondary schools would be absorbed in Government service only if they agreed  in writing to the forms.  By the form is meant  the, form  of option.  The, form of option contained  two  forms. One  was  whereby  the teachers agreed  to  be  absorbed  in Government service and the other where the teachers did  not agree  to  be  absorbed in Government  service.   Those  who agreed to be absorbed in Government service stated that  the terms  and  conditions  laid down  by  Government  regarding absorption  of  the members of the staff of  local  body  in Government service consequent on the take over of the  local body to the control of Government were gone through and they agreed to be absorbed in Government service.  The  agreement between the Government and the relevant school of the  local body  provided that the service condition,, of teaching  and non-teaching  employees  of the local bodies  shall  not  be varied to their disadvantage consequent on their transfer to Government control. As a result of the exercise of option by the teachers of the local bodies they became Government servants.  The term that the  service  conditions  would  not  be  varied  to   their disadvantage  would mean that they would be like  all  other Government  servants  subject  to  Article  310(1)  of   the Constitution.   This  could mean that under  the  law  these teachers would be entitled to continue in service up to  the age of superannuation.  The exercise of option does not mean that  there was a contract whereby a limitation was  put  on prescribing  an age of superannuation.  It has been held  by this  Court that prescribing an age of  superannuation  does not   amount  to  an  action  under  Article  311   of   the Constitution.   Article  309 ’confers legislative  power  to provide conditions of service.  The Legislature can regulate conditions of service by law which can impair conditions  or terms of service. 334 This  Court in Roshan Lal Tandon v. Union of India (1968)  1 S.C.R. 185 said that there is no vested contractual right in regard  to  the terms of service.  The legal position  of  a Government  servant is one of status than of contract.   The

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duties of status are fixed by law.  The terms of service are governed  by  statute  or  statutory  rules  which  may   be unilaterally  altered by the Government without the  consent of the employee.  The  form  of  option is the contract.   This  exercise  of option is itself the contract.  The option is to be absorbed or  not  to be absorbed.  The contractual term is  that  the teacher will be absorbed as a Government servant.  The  term in the, agreement between the Government and the Local  Body that  the  conditions of service will not be varied  to  the disadvantage  of the teachers has been read by all  teachers who exercised the option to be absorbed.  The conditions  of service referred to therein are the conditions of service of the State of Mysore. In B. S. Vadera v. Union of India & Ors. (1968) 3 S.C.R. 575 this  Court  held  that if an  appropriate  legislature  has passed  an Act under Article 309 the Rules framed under  the proviso  to  Article 309 would have effect subject  to  that Act.   In  the  absence  of  any  Act  of  the   appropriate legislature the Rules made. by the President or such  person as he may direct, are to have full effect. There  is  legislative  power under Entry  41,  List  11  to legislate for State public services.  There is no fetter  on the legislative power to legislate with regard to service or with regard to any other matter mentioned in the Legislative List.   In  Gurdev  Singh Sidhu v. State of  Punjab  &  Anr. (1964)  7 S.C.R. 587 this Court stated that there  were  two exceptions  to the protection afforded by Article 311.   One is  where a permanent public servant is asked to  retire  on the  ground  that be has reached the age  of  superannuation which  is  reasonably fixed.  The other is  where  a  public servant  is  compulsorily  retired  under  the  Rules  which prescribe  the  normal  age of  superannuation  and  provide reasonably  long  period of qualified  service  after  which compulsory  retirement  could be valid.  It is only  when  a rule  is framed prescribing a proper age  of  superannuation and  another  rule is framed giving power to  the  State  to retire a permanent public servant compulsorily at the end of 10 years of his service that this Court has apprehended such cases to be not within the protection of Article 311. The question of retirement- age was considered by this Court in  Bishun  Narain Mishra v. State of Uttar Pradesh  &  Ors. (1965)  1  S.C.R. 693.  The State Government  in  that  case raised  the  age of superannuation from 55 to 58  years  and again  reduced the age to 55 years.  It was held that  there is no provision which takes away power of the Government  to increase or reduce the age of superannuation.  When the rule only deals  with  the  age  of  superannuation  and   the Government servant had to retire because of the reduction in the  age  of  superannuation  it cannot  be  said  that  the termination  of  the service amounts to removal  within  the meaning of Article 311. It, therefore, follows that teachers who exercised the  form of  option  were  subject to change  in  the  conditions  of service under Rules framed 335 under Article 309.  There is no constitutional limitation to reduce  the age of retirement.  A Government servant  enjoys the  status of a Government servant.  He cannot  be  removed and  his services cannot be terminated except in  accordance with  the provisions of the Constitution.  Fixing an age  of retirement does not amount to removal or termination. The  teachers of primary schools contended that their  terms of  service  were  continued by  Mysore  Compulsory  Primary Education Act, 1969, and, therefore, their age of retirement

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could  not  be altered by rules made by the  Governor  under Article  309.  The 1969 Act provided in section 14  transfer of  primary  schools managed by the municipal  councils  and panchayats  in the Madras area and Bellary  District  before the  appointed  day.   Teachers  of  those  schools   became employees  of the State ’Government.  The crucial  words  in section  14(b) of the 1969 Act on which the teachers  relied are  these : "AR primary  school  teachers.................. shall, until other provision is made, receive the salary and allowances  and  be subject to the condition of  service  to which  they were entitled immediately before  the  appointed day".  The words "other provision is made" were construed by the teachers to mean an act of legislature. The provision contained in section 14(b) of the 1969 Act  is a temporary and transitional provision which continues until other  pro-vision  is made.  The Legislature  does  not  say until  other  provision is made because the  Legislature  is always free to legislate.  The words " until other provision is made" mean provision which can be made by the legislature or by the Governor or the executive.  The words "until other provision  is made" do not exclusively limit  to  legislate. If  the legislature has occupied the field the Governor  has co-equal  power.  The power of the Governor is  co-extensive with the legislative power (See B. S. Vadera’s case  (supra) at page 583). Section  14(b)  of  the 1969 Act is  not  a  law  regulating recruitment  and  conditions of service under  Article  309. Assuming   it  is,  Article  309  does  not   preclude   the legislature from making provision for prescribing conditions of  recruitment  and conditions of service  by  Rules.   The proviso  to Article 309 contemplates that  Rules  regulating conditions of service may be made under aft enactment.  Just as it is open to the appropriate legislature to provide  for rules to be framed for regulating recruitment and conditions of  service  under Article 309, it is equally  open  to  the legislature  to  provide  that  in  certain  conditions  the Governor  acting  under  the proviso  may  make  appropriate rules.  The power under the proviso is co-extensive with the power under the main part. (See B. S. Vadera’s case  (supra) at pp. 585586). For  these  reasons, the contentions of the  teachers  fail. The  impugned  legislation is constitutionally  valid.   The appeals are dismissed.  Parties will pay and bear their  own costs.                                   Appeals dismissed. V.M.K. 336