Sr. Rosaritta v. State of Kerala — 1990 DIGILAW 279 (KER)

Judgment :- Same questions arise for consideration in these Petitions. So, I consider it advantageous to dispose of them by a common judgment. 2. Petitioners are "Teachers" who are awarded National/State Awards for their distinguished services. In 1982 the Government amended the Kerala Service Rules and Chapter XXVII-A of Kerala Education Rules for extending certain benefits to teachers who have rendered meritorious services and obtained National/State awards. That privilege has been taken away in March 1990 by bringing out suitable amendments to Kerala Service Rules and Kerala Education Rules. These amendments by which the privileges have been withdrawn are under challenge. 3. The arguments advanced by the learned counsel representing the petitioners are that the petitioners Have already acquired a vested right as per the amendment brought out in 1982 and those rights are not to be interfered with by the Government. The Government, it is contended, are stopped from denying the benefits by the amendment brought out in March 1990. It is also argued that the right obtained by these petitioners is a property right and that the same cannot be taken away without paying adequate compensation. Yet another argument that was urged by the learned counsel representing the petitioners is that the amendment was brought out on account of the pressure exerted by the unions of teachers and that it has to be taken as a mala fide exercise of power. Lastly, it was contended that the Government had not applied its mind to the entire facts of the case before issuing the impugned amendment. 4. For a proper understanding of the privileges extended to teachers who obtained National/State Awards it is necessary to refer to the provisions, which came into force in 1982. Rule 60 of Part-I, K.S.R. provides that a Government servant other than an officer in the last grade service should retire on the last day of the month in which he attains the age of 55 years. In the case of teaching staff in educational institutions, who complete the age of 55 years during the academic year they are to retire on the last day of the month in which the academic year ends. An exception was added to this Rule. In the case of teaching staff in educational institutions, who complete the age of 55 years during the academic year they are to retire on the last day of the month in which the academic year ends. An exception was added to this Rule. It is in the following terms: "Extension of service for one year will be given to winners of National and State Awards for teachers, conferred by Central and State Governments subject to the conditions that, (i) They are found physically and mentally fit, (ii) The extension will be in continuation of their date of superannuating, followed, in eligible cases, by extension under this sub-rule, and (iii) The period of extension will count for pension, gratuity, leave and increment." As per this the teachers who win National/State Awards "will be given" extension of service for one year. In other words an automatic extension of service is not contemplated. Extension has to be granted by specific order depending on the satisfaction of the conditions mentioned therein. The conditions are that the teachers should be physically and mentally found fit and the extension is to be in continuation of their date of superannuating. Thus, it is seen that the extension is to be in continuation of their service from the date of superannuating, if they are found physically and mentally fit. Putting it differently till the date of superannuating no teacher who secured National/ State Award has a right to claim continuance in service. The right to continue in service arises only from the date of superannuating depending on his physical and mental fitness. That too, subject to sanction of Government extending the service. This provision, according to me, did not confer any absolute right on any teacher who secured National/ State Award to continue in service prior to the date of his superannuating. On the date of superannuating if he gets sanction depending on his physical and mental fitness, he can continue for one more year. 5. Provisions similar to the exception to R.60 of Part-I, K.S.R. were incorporated in Sub rules (2) to (4) of Rule 8 of Chapter XXVII-A, K.E.R. Sub rule (1) of R.8 states that the age of retirement on superannuating shall be 55 years. In the case of teachers who were already in service in any aided school prior to 4-9-1957, the age of retirement on superannuating is 60years. In the case of teachers who were already in service in any aided school prior to 4-9-1957, the age of retirement on superannuating is 60years. Notwithstanding these provisions, as per clause (2) of that Rule a teacher who has received National/State Award for meritorious service was allowed to continue in service for one year if he is found physically and mentally fit. Sub-Rule (3) provided that the extension of service will be allowed only if the teacher has not received any promotion after the receipt of the Award. Sub-Rule (4) stated that the teacher who obtained the Award should relinquish his claim for promotion if he wants to avail the benefit of extension for one year. These provisions in the Kerala Education Rules can come into operation only on the completion of the age of superannuating and that too only if he is found physically and mentally fit. A reading of the above provisions makes it clear that no teacher who won National/State Award acquired any right to claim continuance in service on any day prior to the date of his superannuating. 6. The exception to Rule 60 incorporated by the amendment of 1982 and Sub Rules (2) to (4) of R.8, Chapter XX VII-A, and K.E.R. were deleted by amendments carried out in March 1990. Consequently, the privilege of extension of service for one year that was available to teachers who rendered meritorious service has been withdrawn. Petitioners in these Original Petitions except those in O.P.Nos. 3325/90 and 1963/90 were to retire on completing the age of superannuating on 31-3-1990 or later. Petitioners in O.P.Nos. 3325/90 and 1963/90 completed the age of superannuating on 30-6-1989 and 30-4-1989 respectively. They were granted the benefit of extension of service for one year on account of their having won the National/State awards. Consequently they were allowed to continue in service till 30-6-90 and 30-4-90 respectively. As a result of the amendments brought out in March 1990, they were directed to retire with effect from 31-3-1990. Consequently, the extended periods of their service were curtailed. Petitioner in O.P.No. 3325/90 was directed to vacate the office three months earlier to the date of expiry of the extended period. In the case of the petitioner in O.P.No.1963/90 he was asked to quit the office one month earlier. In the ease of petitioners in the other Original Petitions they were not granted the extension. Petitioner in O.P.No. 3325/90 was directed to vacate the office three months earlier to the date of expiry of the extended period. In the case of the petitioner in O.P.No.1963/90 he was asked to quit the office one month earlier. In the ease of petitioners in the other Original Petitions they were not granted the extension. Those who had to retire on the last date of the academic year 1989-90 on superannuating had to vacate the office on 31-3-1990. 7. The age of retirement of a Government servant is a condition of his service. The terms and conditions of every public service should provide for the age of retirement. The proposition that there should be an age of retirement in public service is widely accepted as reasonable and rational. The stipulation as to the age of retirement is a common feature of all our public services. Public interest demands that there should be an age of retirement in public service. Thus it should be held that the provisions in R.60 of Part-I, K.S.R. and those in Chapter-XXVU-A of K.E.R. deal with the condition of service of teachers in Government Schools and of aided schools respectively. It is well settled principle of law that so far as Government servants are concerned, their conditions of service can be unilaterally altered by the rule making authority. It is also well settled that the power to frame rules to regulate the conditions of service carries with it the power to amend or alter the same with retrospective effect. The authority competent to lay down the rules is also competent to change the same. The rules defining the qualifications and suitability for extension of service after the date of superannuating are conditions of service and they can be changed unilaterally. The competency of the Government to delete the 'exception' in R.60 of Part-I K.S.R. and clauses 2 to 4 of R.8 of Chapter XXVII-A, K.E.R.,is not under challenge. No argument was advanced by the petitioners disputing the competency of the Government to bring out the above amendments. Nor have they brought out any procedural irregularity affecting the validity of the amendment. 8. As stated earlier, the main argument advanced by the learned counsel representing the petitioners is one based on promissory estoppel. No argument was advanced by the petitioners disputing the competency of the Government to bring out the above amendments. Nor have they brought out any procedural irregularity affecting the validity of the amendment. 8. As stated earlier, the main argument advanced by the learned counsel representing the petitioners is one based on promissory estoppel. According to them, Government is stopped from amending the rule taking away the rights of the petitioners to continue for one year beyond the age of superannuating. A provision in the service rules can by no stretch of imagination be termed as a promise or representation made by the Government to its employees. Nor can an employee put forward a contention that on the basis of representation in the rules relating to the conditions of service, he has acted to his detriment so as to bar the Government from altering the rules relating to conditions of service. In this view the contention that the Government are stopped from changing the service conditions, cannot be accepted. 9. The Government in the communication dated 14-8-1989 addressed to the Director of Public Instruction stated: "ITius, the number of persons who would get the extension of service in the State is only 42 as against the total number of 1.88 lakhs of teachers in the State. So, the contentions of certain Teachers 'Associations that the scheme of extension of service to Award Winning teachers affects a large number of junior teachers cannot be accepted. It is the policy of the Government to recognize meritorious service of persons in every field. Hence Government do not consider it necessary in public interest to make any change in the existing orders relating to the extention of service to Award Winning Teachers." Within the two months there from the Government by G.O.(MS) 187/89 dated 11-10-1989 decided to discontinue the privilege extended to the award winning teachers with effect from 31-3-1990. This decision, according to counsel, was one arrived at without applying its mind to the relevant matters. It is contended that the Government have departed from the policy of recognizing meritorious service of teachers on account of the unholy pressure exerted by un-skilled mass of teachers. I find it difficult to accept this contention for the simple reason that it is not reasonable to think that the Government did not consider all the relevant aspects while issuing the later order. I find it difficult to accept this contention for the simple reason that it is not reasonable to think that the Government did not consider all the relevant aspects while issuing the later order. The Government has the aid and assistance of a well-trained bureaucracy which plays an important part not only in the implementation of policies but also in their making. Officers of the Government and the policy makers should be deemed to have considered all the relevant aspects before issuing the amendment to the Rules. It is impossible to accept the argument that the amendments are invalid on the ground of non-application of mind. It is true that the Government have decided not to extend any privilege to teachers who have rendered meritorious service. It appears that the Government felt that the meritorious service notwithstanding, there should be uniformity in the retirement age. This decision cannot be treated as a perverse age. This decision cannot be treated as a perverse decision. Maybe, it may not be the ideal one. But the policy decisions are not to be interfered with by this court if those decisions have been arrived at by competent authority in a legal manner. As stated earlier, the competency of the Government to bring out the amendment is not under challenge. The question that is to be examined primarily by the court is of the competency of the rule making authority, if the competency is not in challenge the motive or the expediency in bringing the rule is outside judicial scrutiny. The court is not to examine the propriety in bringing out the amendment either. 10. Petitioners in these Original Petitions other than O.P.Nos. 3325/90 and 1963/90 have to retire on superannuating on 31-3-1990 or later. On 31-3-1990 there was no provision in the statute book extending the benefit of extension of service for one year. Consequently, they cannot claim any right to continue in the post. Petitioners in O.P.Nos. 3325 and 1963 of 1990 were given extension of service by one year from 30-6-1989 and 30-4-1989 respectively. By the amendment brought out in March 1990, the extension granted have ceased to have any legal backing. Consequently, their services were ordered to be terminated with effect from 31-3-1990. By directing their termination with effect from 31-3-1990, the amendment has not been implemented with retrospective effect. They are implemented prospectively. By the amendment brought out in March 1990, the extension granted have ceased to have any legal backing. Consequently, their services were ordered to be terminated with effect from 31-3-1990. By directing their termination with effect from 31-3-1990, the amendment has not been implemented with retrospective effect. They are implemented prospectively. The prospective implementation of the amendment changing the conditions of service is not open to challenge. So, I do not find any merit in the contention that the petitioners in O.P.Nos. 3325/90 and 1963/90 are to continue till 30-6-1990 and 30-4-1990 respectively. 11. Sri. Mathai M. Paikaday learned counsel representing the petitioners in O.P.No. 879/90 raised a contention that the petitioners obtained a vested right to continue in service for a period of one year after their date of superannuating on 31-3-1990 and that right is a property right. According to counsel, the petitioners obtained the right to have extension of service for one year the moment they won National/State Awards. In the case of those who obtained awards earlier to 1982 they obtained the right in 1982 when the Rules were amended. That right is one to get salary for one year. This right to get the salary for one year is property and that cannot be deprived without paying proper compensation. On these grounds, it is submitted that the amendments are bad. These arguments, I am afraid, are based on a mis-understanding of the provisions of the Constitution. Article 31 of the Constitution was omitted by the Constitution Forty fourth Amendment with effect from 20-6-1979. The right to property is now governed by Article 300-A, which states that no person shall be deprived of his property save by authority of law. So even conceding for argument sake that the petitioners obtained a vested right to get salary for one year and that right is property, which as stated earlier is not correct; the same can be deprived by authority of law. The amendment which is validly brought out is law and under its authority that right can be denied. The amendment which deprived the petitioners the right to continue in service is one brought out by a competent authority, the competency of which is not in challenge. So the contention that property right of the petitioners have been interfered with without paying adequate compensation is only to be stated to be rejected. 12. The amendment which deprived the petitioners the right to continue in service is one brought out by a competent authority, the competency of which is not in challenge. So the contention that property right of the petitioners have been interfered with without paying adequate compensation is only to be stated to be rejected. 12. By virtue of the orders of interim stay passed in these cases some of the petitioners continued in service till those orders were vacated on 20-4-90. While the orders were in force petitioners discharged the duties attached to the posts held by them. For the period during which they rendered services, they should be paid remuneration. This right to' Claim salary for the period for which they worked is to be protected. I do so. They are not entitled to any other relief. In view of what has been stated above, I do not find any merit in these Original Petitions. They are accordingly dismissed. No costs.