IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4392 OF 2010 (Arising out of SLP©No.14998 of 2007)

PROJECT OFFICER, IRDP AND ORS.        …..  APPELLANT(S)    

VERSUS

P.D. CHACKO     ….. RESPONDENT(S)

J U D G M E N T

K.S. Radhakrishnan, J.

1. Leave granted.

2. The question that falls for our consideration in this case is  

whether the respondent who was in service as on 07.04.1970 as a  

full time menial  in an aided school is entitled to get the benefit of  

Rule 60(b)  Part-I   Kerala Service Rules,  (KSR for  short)  so as to  

continue in government service upto 60 years of age.

3. The respondents entered service in an aided school on  

25.06.1968 and worked as a full time menial upto 09.04.1976.  He  

resigned from the post and joined as a Peon in the Tribal Welfare  

Department  of  the  Government  of  Kerala  on  10.04.1976.  

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Respondent had raised a claim  that he was entitled to continue  in  

service  up to 60 years of age as per Rule 60(b) Part-I KSR  since he  

was  working  as  a  full  time  menial  in  an  aided  school  as  on  

07.04.1970 and continued to be in the last grade till he attained the  

age of  55 years.   His claim was rejected by the Department  vide  

order No.E-49227/ 2001.   

4. Feeling  aggrieved  by  that  order  he  preferred  a  writ  

petition O.P.No.29317/2001 before the Kerala High Court.  Learned  

Single Judge of the Kerala High Court on 25.05.2006 allowed the writ  

petition holding that had he remained in the aided school service he  

would have continued upto 60 years of age, hence he was entitled to  

the benefit of Rule 60(b) Part-I KSR.   Learned single judge gave a  

direction to allow the respondent to continue in service till he attained  

60  years  of  age  and  to  settle  his  pension  and  other  benefits  

accordingly.  State of Kerala and Others  preferred writ appeal no.35  

of 2007 before the Division Bench of the Kerala High Court and the  

appeal was dismissed on 15th January, 2007 at  the admission stage.  

Feeling aggrieved by that judgment this appeal has been preferred by  

the State of Kerala and their officers.  

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5. Mr. G. Prakash, learned counsel appearing for the State  

of Kerala submitted that the High Court has committed a grave error  

in holding that the respondent who was working as a full time menial  

in an aided school as on 07.04.1970 was entitled to get the benefit of  

Rule 60(b) of Part-I KSR.  Counsel submitted that the service in an  

aided  school  has  not  been  included  in  the  last  grade  service  as  

defined  in  GO(P)82/66/PD  dated  08.03.1966  and  as  per  the  

government  decision  no.1  under  Rule  14 in  Part-III  KSR the  said  

period can be  counted only for pensionary benefits  but does not  

confer any right to the incumbent to continue in service upto 60 years  

of  age.  Consequently,  provisional  pension  has  already  been  

sanctioned to the respondent considering his regular service till  he  

attained the age of 55 years under Rule 3A Part-III KSR.

6. Ms.  Beena  Madhavan,  learned  counsel  appearing  for  

respondent submitted that the service put in by the respondent in the  

aided school  from 25.06.1968 to  09.04.1976 should  be taken into  

consideration for the purpose of granting benefit under Rule 60(b) of  

Part-I KSR.  Learned counsel submitted as per Rule 29(b) of Part-III  

KSR past service would be counted if a person resigns from a service  

to join another service. Learned counsel also referred to Rule 14E of  

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KSR Part-III and submitted that the aided school service put in by the  

government employee prior to his entry in service would qualify not  

only for the purpose of pension, but also for continuity in service upto  

60  years  of  age.   Learned  counsel,  therefore,  submitted  that  

respondent had satisfied all  the criteria for claiming  the benefit  of  

Rule 60(b)  Part-I  KSR and the High Court  has rightly granted the  

benefit.  

7. The  primary  question  that  arises  for  consideration  is  

whether the respondent who was in service of an aided school as on  

07.04.1970 was entitled to continue in service till he attained 60 years  

of age as per clause ‘b’ of Rule 60 of Part-I KSR.   

8. KSR was introduced by the Government of Kerala under  

the proviso to Article 309 of the Constitution of India with effect from  

01.11.1959 and these rules are deemed to have been made under  

the Kerala Public Service Act (Act 19 of 1968).  KSR contains 3 parts.  

Part-I  contains  rules  relating  to  general  conditions  of  service,  pay  

fixation, leave, joining time, foreign service etc.  Part-II  contains rules  

relating to traveling allowance and Part-III contains rules of pension.  

These rules are applicable to all officers who entered service on or  

after  01.11.1956  and  those  who  entered  in  service  prior  to  

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01.11.1956 and who opted to be governed by these rules.   Since  

introduction  of  these  rules  government  has  issued  various  

amendments  and  several  executive  orders  by  way  of  directions,  

instructions, clarification etc.  Government has also reserved to itself  

the power to modify these rules from time to time.   

9. Rule 60 dealing with the retirement of officers appears in  

Chapter VIII of Part I KSR under the heading ‘compulsory retirement’.  

Rule 60(a) is the substantive part of the Rule, which deals with the  

age of retirement and Rule 60(b) deals with a specified category of  

officers in the last grade which is an exception to the main provision.  

Rule 60(a) and (b) read as  follows:-

“60(a) Except as otherwise provided in these rules the  date of  compulsory retirement of  an officer  shall  take effect  from the afternoon of the last day of the month in which he  attains the age of 55 years.  He may be retained after this date  only with the sanction of Government on public grounds which  must be  recorded in writing, but he must not be retained after  the age of 60 years except in very special circumstances.

(b) Officers in the Last Grade Service on the 7th April,  1970 will retire on the afternoon of the last day of the month in  which they attain the age of 60 years provided that this benefit  will be available to them only as long as they continue to be in  the Last Grade Service as  defined in Rule 12(16A)”

Rule 60(a) prescribes 55 years as the age of retirement in respect of  

government  servants.  However,  Government  servant  shall  be  

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permitted  to  continue  beyond  55  years,  with  the  sanction  of  the  

Government on public grounds which must be recorded in writing. In  

very special circumstances a Government servant may be retained in  

service  beyond 60 years  of  age.  An exception has however been  

made  in  respect  of  a  specified  category  of  government  servants  

under clause ‘ b’  of Rule 60.  Clause ‘b’ of the Rule 60 provides that  

officers who were in the last grade service as  on 07.04.1970 would  

retire on attaining the age of 60 years, provided they continued to be  

in last grade service as defined in Rule 12(16A) of the Rules.  Rule  

12(16A) of Part-I KSR defines ‘Last Grade Service’, which reads as  

follows :-

[16(A)    Last Grade Service – “Last Grade Service” means service  in any post included in the Kerala Last Grade Service constituted  by the Special Rules for the Kerala Last Grade Service, published  under  G.O.  (P)  No.82  Public  (Rules)  Department,  dated  the  8th  March, 1966, in Part-I  of the Kerala Gazette No.14 dated the 5th  April, 1966, as amended from time to time, and includes service in  any  post  declared  by the  Government  to  be  a  post  in  the  Last  Grade Service]

Therefore, in order to get benefit of Rule 60(b) two conditions have to  

be  satisfied.   The  first  condition  is  that  the  government  servant  

concerned must have been in last grade service as on 07.04.1970  

and the second condition is that the benefit of Clause ’b’ would be  

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available only  as long as such person continues to  be in  the last  

grade service as defined in Rule 12 (16A) of the rules.

10. Let us examine why this benefit has been extended to a  

specified category of government servants, i.e., “Officers in the Last  

Grade Service”  as on 7th April,  1970.   Certain categories of  posts  

have been included in the Kerala Last Grade Service by the State of  

Kerala in exercise of the powers conferred by the proviso to article  

309 of the Constitution of India vide Notification GO(P)No.82/66/PD  

dated 8th March, 1966 called ‘special rules’ for the Kerala Last Grade  

Service.  Rule 1 of  the special  rules contain various categories of  

posts  which  inter  alia include  any  other  post  in  the  Last  Grade  

Service as defined in Clause 16A of Rule 12 in Part-I KSR and who  

has not been included in any other service.   

11. Prior to 07.04.1970 government servants who were in last  

grade service were entitled to higher age of  superannuation of  60  

years, however with effect from 07.04.1970 they were brought on par  

with other government servants with the result that they had to retire  

on attaining the age of superannuation of 55 years.  Government felt  

it  was  necessary  to  protect  them  and  hence  Clause  ‘b’  was  

introduced  in   Rule  60  giving  them,  the  benefit  of  continuance  in  

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service,  till  they  attained  the  age  of  60  years.  Normal  age  of  

superannuation in a government service is 55 years.  Evidently, the  

said clause was introduced by way of exception to Clause ‘a’ of Rule  

60 to protect their right to continue up to 60 years of age.  The benefit  

of  exception  clause  is,  therefore,  available  only  to  a  specified  

category of employees who were in last grade service as defined in  

Rule 12(16A) of the Rules. Rule 60(a) stipulates the age of retirement  

of  government  servants  as  55  years  but  an  exception  has  been  

carved out to a specified category of government servants but for that  

they also would have fallen in Rule 60(a).  By judicial interpretation  

we cannot enlarge the scope of an exception clause, which is meant  

for a specified category of government employees.

12. Exception  clause,  is  normally,  part  of  the  enacting  

section, unlike a proviso which follows an enacting part.  Crawford’s  

interpretation  of  Laws  (1989)  page  128,  speaks  of  exception  as  

follows:-

The exception,  however, operates to affirm the operation,  of the Statute to all cases not excepted  and excludes all  other  exceptions;   that  is,  it  exempts  something   which  would  otherwise  fall  within  the  general  words  of  the  Statute”.

13. It  is trite law that an exception clause has to be strictly  

interpreted and cannot be assumed but be proved.  Exception clause  

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is always subject to the rule of construction and in case of doubt, it  

must befriend the general provision and disfavour the exception.  If  

any category of person claims exception from the operation of the  

statute it must establish that it comes within the exception.

14.   The respondent has not produced any materials before us  

to show that the post he was holding i.e., full time menial in an aided  

school was included in the categories of posts in the special rules for  

last  grade service.   Further,   the respondent  has to show that  he  

continued to be in the last grade service as defined in Rule 12(16A)  

of the Rules as on 07.04.1970.  Respondent has not produced any  

materials either before the High Court or before this Court to establish  

that  the  service  of  full  time  menial  in  an  aided  school  as  on  

07.04.1970, has been saved by Clause (b) of Rule 60 Part-I KSR.

15. Rule 2 of Chapter 1 KSR says subject to the provisions of  

Rule 3, rules in Parts I and II apply to every person in the whole time  

employment  of  the  government  subject  to  certain  exceptions.   No  

materials  have  been  produced  before  us  to  show  that  the  aided  

school service would fall under the above mentioned provisions, or in  

the Last Grade Service as defined under Rule 12(16A) of the Rules.  

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16.       Part-III KSR deals with pension.  Chapter 2 of that Part  

deals with “qualifying service”.  Rule 14 E of the above mentioned  

Rules  says  that  service  in  an aided  school  put  in  by government  

employees prior to any other government service qualify for pension.  

If the intention of the rule making authority was to give the benefit of  

continuous service of 60 years of age for those who were in aided  

school service then the same would have been specifically provided  

in  the  rules.   Aided school  service  prior  to  government  service  is  

reckoned as qualifying years of service only for calculating pension  

not for continuity of service up to 60 years of age. Rule 29(b) Part III  

is also, not applicable to the facts of the case, since in this case  we  

are concerned with the question whether the respondent falls within  

the exception clause (b) of Rule 60.  Respondent’s prior service in an  

aided school,  we are informed has already been reckoned for  the  

purpose of calculating pension but the period he has served from 55  

years of age to 60 years of age on the basis of court’s order cannot  

be reckoned for the purpose of pension and other service benefits  

since he was not legally entitled to get the benefit of Rule 60(b) Part-I  

KSR. However, salary if  any paid to the respondent for the above  

period shall not be recovered.

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17. For  the  above  mentioned  reasons,  we  are  inclined  to  

allow this appeal and set aside the judgment of the Kerala High Court  

and uphold the order passed by the Department E-49227 of 2001.

………………………………J. (DALVEER BHANDARI)

……………………………….J. (K.S. RADHAKRISHNAN)

New Delhi; May   11, 2010

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