State of Kerala v. M. Srinivasan — 1995 DIGILAW 351 (KER)

JUDGMENT P. Shanmugam, J. 1. The appeal is filed by the State of Kerala and the Director of College Education against the Judgment in O. P. No. 6205/1984 holding that Statute 16 of Chap.3 of the Calicut University First Statutes and the corresponding provision in the Kerala University First Statutes in respect of pension are ultra vires of Art.1.4 of the Constitution of India. Respondents 1 to 14 and petitioners in the other O.Ps. are retired Principals or Professors or Lecturers of various private colleges in the State. They entered service in the various private colleges during the period from 1946 to 1952 and retired from service during the period 1975 to 1982 at the age of 60. Only with effect from 1st September 1972 the private college teachers came under the direct payment system and their scales of pay were revised from time to time and were brought on par with the scale of pay applicable to Government College teachers. 2. The Calicut University Act, 1975 (hereinafter referred to as the Act) came into force with effect from 4th September 1974. According to S.60, notwithstanding anything contained in any law or in any contract or any other document, the conditions of service of teachers of any private colleges, whether appointed before or after the commencement of the Act, including conditions relating to pay, pension, provident fund, gratuity, insurance and age of retirement, shall be such as may be prescribed by the Statutes. S.73 of the Act provides the University to make provisions for the benefit of its teachers under its control in matters of insurance, pension and provident fund. But that would be subject to the previous approval of the Government. S.82 of the Act provides for making of the First Statutes of the University. In exercise of this power the Government made the First Statutes in respect of pension, provident fund, gratuity, insurance and age of retirement of teachers of private colleges with effect from 1st April 1976. Statute 3 of Chapter I of the First Statutes states that the age of compulsory retirement on superannuation shall be 55 years. Statute 4 deals with the age of superannuation, etc. of the, teachers who have entered service prior to 1st April 1958. Statute 3 of Chapter I of the First Statutes states that the age of compulsory retirement on superannuation shall be 55 years. Statute 4 deals with the age of superannuation, etc. of the, teachers who have entered service prior to 1st April 1958. The said statute provides that the teachers who have entered service prior to 1st April 1958 shall have the right to retire at the age of sixty and be governed by the provisions of Chap.3 or to opt for the provisions contained in Chap.2. Sub clause (2) of Statute 4 of Chapter I provides for making of an option in the prescribed form within the prescribed period. Sub clause (3) provides that the option once exercised shall be final. Sub clause (4) states that the teachers who have not exercised any option within the prescribed period shall be deemed to have opted to be governed by the provisions contained in Chap.2. Sub clause (5) also provides that a teacher who opts for retirement at the age of 60 may, at any time before his completing the age of 55, report to retire at the age of 55. 3. Chap.2 of the first Statutes which deals with the teachers who retire at the age of 55 years provides for pensionary benefits like family pension, death cum retirement gratuity and other conditions for the grant of benefits, similar to the categories of teachers in Government colleges. Sub clause (2) of Statute 5 provides that for the teachers who have entered service on or after 1st April 1958, their service only upto the age of 55 years shall be counted for pension and gratuity. 4. Chap.3 of the First Statutes deals with pension, provident fund and insurance for private college teachers who entered service prior to 1st April 1958 and who opt for the age of retirement at 60 years and agree to be governed by the provisions of this Chapter. This Chapter deals with provident fund, insurance and additional insurance, etc. Statute 16 of Chap.3 states that the service of teachers in private colleges beyond the age of 55 years shall not qualify for pension and gratuity under these Statutes. We are concerned with this Statute which was impugned among other provisions and which is the subject matter of the present appeal. 5. Statute 16 of Chap.3 states that the service of teachers in private colleges beyond the age of 55 years shall not qualify for pension and gratuity under these Statutes. We are concerned with this Statute which was impugned among other provisions and which is the subject matter of the present appeal. 5. The provisions contained in the Kerala University Act and the First Statutes in respect of pension, provident fund, gratuity, insurance and age of retirement of teachers of private colleges under the Kerala University Act are identical to those contained in the Calicut University Act and the provisions set out above. The respondents in the Writ Appeal and the petitioners in the O.Ps. have prayed for the relief to declare Statutes 16, 19 and 25 of Chap.3 of the Calicut University First Statutes in respect of pension, provident fund, gratuity, insurance and age of retirement and corresponding provisions in the Kerala University First Statutes as ultra vires of the Constitution. During the pendency of the O.P. the Government issued various orders granting concessions to private college teachers in the matter of retirement benefits and hence most of the reliefs prayed for initially have become infructuous. The only question that remains to be considered is the validity of Statute 16 of Chap.3 of the Calicut University First Statutes and the corresponding provision in the Kerala University First Statutes, 6. The main contention made on behalf of the respondents/petitioners is that the impugned provision is violative of Art.14 of the Constitution of India. It is contended that for the Kerala University teachers and the Kerala Agricultural University teachers the age of superannuation is 60 years. Therefore, the prescription of 55 years for the private college teachers is discriminatory and illegal. Learned counsel further argued that the classification between those who retired before 1st April 1958 and after this, is another illegal classification. Lastly it was prayed that since the Senate of the University has passed an amendment in reference to Statute 16, a direction be issued to the Chancellor to consider the question of according assent to the amendment. 7. The learned Single Judge held that the impugned Statute 16 of both the Universities are ultra vires of Art.14 of the Constitution and declared them as unconstitutional. Learned Judge also directed the appellants herein to fix and pay the pension of the respondents taking into account their service upto 60 years. 7. The learned Single Judge held that the impugned Statute 16 of both the Universities are ultra vires of Art.14 of the Constitution and declared them as unconstitutional. Learned Judge also directed the appellants herein to fix and pay the pension of the respondents taking into account their service upto 60 years. The appeal is against this judgment. 8. We have considered the rival contentions in depth and gone through the provisions. 9. In reference to wrong classification of members of a particular service for the purpose of superannuation, it has to be borne in mind that different services have their own age of superannuation. The age of retirement of members of Kerala Public Service Commission is 62 years, in Nationalised Banks 58 years, for Class IV employees of State Government appointed prior to 7th April 1970, 60 years and State Service Officers promoted to I.A.S. cadre 58 years. For Agricultural University teachers the retirement age is 60 years and for State Government Servants it is 55 years as provided in R.60(a), Part I of Kerala Service Rules. It is a fact that different services have different age of retirement and such prescription has been accepted as reasonable policy for the executive to decide on the age of superannuation. It is also a fact that the State Government employees and the teachers of Government colleges are superannuated at the age of 55 years. It is also a fact that the Agricultural University teachers and Calicut University teachers retire at the age of 60 years. But all these teachers form separate classes of their own. The teachers of Government colleges, Universities and private colleges do not form the same category. The method of appointment, service conditions, promotional avenues and other incidents of service and the policy of the Government in treating these services differently have to be taken note of before the argument of wrong classification is to be considered. Learned counsel for the respondents/ petitioners have not set out the factual details on the various incidents of service of these teachers apart from saying that all of them are doing the same job and drawing the same salary and submitting that the classification is violative of Art.14 of the Constitution. Learned counsel for the respondents/ petitioners have not set out the factual details on the various incidents of service of these teachers apart from saying that all of them are doing the same job and drawing the same salary and submitting that the classification is violative of Art.14 of the Constitution. The nature, mode and the manner of recruitment of the category from the beginning, the classifications of the particular category, the terms and conditions of service of the members of the category, the nature and character of the posts and promotional avenues, the special attributes that the particular category possess have to be taken into account to decide whether there is discrimination between the classes of service. 10. It is a matter of record that the private college teachers were appointed by private management and their service conditions were initially governed by contractual conditions and only with effect from 1st April 1962 the Government introduced a grant in-aid code scheme under which 60 per cent of the excess in the approved recurring expenditure over the income from tuition fee were paid to the management. This grant was increased to 80 per cent with effect from 1st April 1966. The private college teachers were paid by direct payment system only from 1st September 1972. They were brought under the University after the Calicut University Act, 1975. The Statutes came in to force with effect from 1st April 1976. Therefore, it is clear that the method of appointment, the service conditions, qualifications, avenues of promotion and other various incidents of service of the teachers in the private colleges are different from that of the University and the Government colleges. The respondents/petitioners cannot be classified neither with the University teachers nor the Government college teachers for this purpose. As a matter of fact, if the service conditions of the Government college teachers and their age of superannuation are taken into account, the respondents/petitioners cannot have any grievance since all the Government college teachers are superannuated at the age of 55 years. 11. As a matter of fact, if the service conditions of the Government college teachers and their age of superannuation are taken into account, the respondents/petitioners cannot have any grievance since all the Government college teachers are superannuated at the age of 55 years. 11. The fundamental principle in reference to classification is that Art.14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from these that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. 12. As far as the age of superannuation is concerned, it is admitted that in both the Government colleges and private colleges it is 55 years for one to qualify for pension and gratuity. Statute 4 of Chapter I of the First Statutes provides for the teachers of private colleges who have entered service prior to 1st April 1953 to have the right to retire at the age of 60. But however, for the purpose of pension, gratuity, etc., their service beyond 55 years shall not count. For the private college teachers who have come into the direct payment system after the coming into force of the Calicut University Act and the Statutes, for the purpose of uniformity with the Government college teachers as well as the private college teachers, the age of superannuation is declared to be 55 years. But an Option was given to the private college teachers who have entered service prior to 1st April 1958 to continue beyond 55 years. Such option has to be exercised in the prescribed form within the prescribed period and the option once exercised shall be final. Teachers who have not exercised their option within the period prescribed shall have to retire at the age of 55. Therefore, from 1st April 1976 the private college teachers viz. Such option has to be exercised in the prescribed form within the prescribed period and the option once exercised shall be final. Teachers who have not exercised their option within the period prescribed shall have to retire at the age of 55. Therefore, from 1st April 1976 the private college teachers viz. the respondents and the petitioners in the O.P. are well aware that they will have to retire at the age of 55 years and those teachers who have entered service before 1st April 1958, if they want to continue, must exercise their option and otherwise they will automatically retire at the age of 55 years, and once they exercise their option then Chap.3 will come into play and that Statute 16 says that their service beyond 55 years will not qualify for pension and gratuity. The private college teachers knowing fully the implications of these provisions have opted to continue In service beyond the age of 55 and continued in service with full pay knowing fully well that their service beyond 55 years will not count for pension and gratuity. The respondents and the petitioners in the O. P. have not challenged Statutes 3 and 4 of Chap.1; Statute 5 of Chap.2 and Statute 7 of Chap.3 of the First Statutes. All these provisions make it abundantly clear that the private college teachers have agreed to be governed by Chap.3 and that they have exercised their option to continue in service subject to the condition that they shall not be eligible to count the period beyond the age of 55 years for pension and gratuity. None of these provisions has been challenged by the respondents/petitioners. While so, they have challenged only Statute 16, the consequential provision which states that service beyond 55 shall not qualify for pension and gratuity. The respondents/petitioners are clearly bound by their commitments and are estopped from going back on their option. The respondents and the petitioners who are all men of learning and education cannot turn round and say that being aware of these provisions from the year 1976 and having opted to agree for these conditions, they may be permitted to raise the question after the retirement. They have enjoyed the benefit and service conditions which were not made available to other Government college teachers who have entered service after 1st April 1958. They have enjoyed the benefit and service conditions which were not made available to other Government college teachers who have entered service after 1st April 1958. Therefore, the respondents/petitioners cannot approbate and reprobate for the purpose of their case. 13. S.73 of the Calicut University Act and the corresponding provision of the Kerala University Act provides that the University shall make appropriate provision in reference to pension, provident fund etc. only with the previous approval of the Government. Therefore, it is not open to the Syndicate to make provisions for pension etc. without the previous approval of the Government. It is an admitted case that the Government has not granted approval for the proposal of the Syndicate for amending Statute 16 of Chap.3 of the First Statutes. The said amendment is clearly in contravention of S.73, which says that the same could be done only with the previous approval of the Government in view of the financial implications for the Government. 14. The learned Judge did not consider the implication of S.73 and other relevant provisions like Statutes 3, 4, 5 and 7 of the First Statutes. 15. We will now consider some of the relevant decisions dealing with the classification of employees for the purpose of superannuation. In K.G.O. Front v. State of Kerala 1987 (1) KLT 336 a learned Judge of this Court was dealing with the question of prescribing 55 years of age for superannuation for Government employees. In that case the Government employees sought for revision of their age of retirement from 55 to 58 or 60 on the basis of discrimination and wrong classification for the purpose of superannuation. This court held that the fact that for different services different ages of retirement have been prescribed is no reason why such fixation of the age of superannuation in the case of Government employees as 55 years shall be held to be unreasonable or arbitrary. 16. In K. Nagaraj v. State of A. P. AIR 1985 SC 551 in reference to reducing of age limit, the Supreme Court held that it depends upon the policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. 17. 16. In K. Nagaraj v. State of A. P. AIR 1985 SC 551 in reference to reducing of age limit, the Supreme Court held that it depends upon the policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. 17. In Air India v. Mergesh Meerza AIR 1981 SC 1829 the Supreme Court held that in considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave etc. are introduced in different or dissimilar posts. Art.14 certainly applies where equals are treated differently without any reasonable basis. Where equals and unequals are treated differently Art.14 would have no application. Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination of to denial of equality of opportunity. 18. In B.S. Yadav v. G.M., Central Bank of India AIR 1987 SC 1706 in reference to fixation of different age for retirement the Supreme Court held that there was good reason to make a distinction between the employees who had entered service prior to nationalisation and those who joined thereafter. The Supreme Court in this case affirmed the decision in Life Insurance Corporation of India v. S.S. Srivastava AIR 1987 SC 1527 justifying the existence of a rule fixing different ages of retirement to different classes of employees of the Life Insurance Corporation of India in the circumstances existing there. The decision of the Calcutta High Court in Dr. Nikhil Bhushan Chandra v. Union of India 1983 Lab. I.C. NOC 109 that there was no discrimination on the basis that fixing 60 years as age of retirement for those who were recruited prior to July 19, 1969 and 58 years of age who joined after that date and that there is intelligible differentia, was upheld by the Supreme Court as correct principle. In affirming the High Court decision the Supreme Court held that it involved justice and fairness too. In affirming the High Court decision the Supreme Court held that it involved justice and fairness too. Having regard to all aspects of the matter and in the circumstances of that case the Bank's attitude cannot be held to be unreasonable, particularly when the age of retirement of the new entrants is quite consistent with the conditions prevailing in almost all the sectors of public employment. 19. The decision in Chaudhary Kesava Rao v. State of A.P. AIR 1990 SC 2043 is similar to the one that we are concerned with. In that case the A. P. Government revised the scales of pay with effect from 1st April 1978 on the recommendation of the Pay Commission. But in so far as the recommendation in regard to the increase in the age of superannuation from 55 years to 58 years the same was implemented only with effect from October 29, 1979. The contention of the petitioners in that case was that the revised pension rules divided Government servants for pension into two parts, Part I applying to all Government servants who were in service on 29th October, 1979 and Part II applying to such of the Government servants who retired/died in between 1st April, 1978 and 28th October, 1979 (both dates inclusive) and therefore, the above Rules created two categories of pensioners with different rates of pension which is completely arbitrary and in violation of the law declared in D.S. Nakara v. Union of India AIR 1983 SC 130 . The State of A.P. contended that after careful consideration the Government implemented the recommendations relating to revision of scales of pay with effect from 1st April, 1978. As regards the age of superannuation the Government of A. P. increased the age of superannuation to 58 years with effect from October 29, 1979. This increase in the age of superannuation could not be implemented retrospectively as it would have led to a lot of difficulties, but to compensate those who retired after April 1, 1978 and before October 29, 1979 the Government gave them certain benefits. The contention of arbitrariness was denied by the State Government. The A.P. High Court held that there is a discernible basis for differential rates of pension and it cannot be said that such differential rates have no reasonable nexus to the objects sought to be achieved or that they offend Art.14 of the Constitution. The contention of arbitrariness was denied by the State Government. The A.P. High Court held that there is a discernible basis for differential rates of pension and it cannot be said that such differential rates have no reasonable nexus to the objects sought to be achieved or that they offend Art.14 of the Constitution. The Supreme Court while affirming the judgment of the A.P. High Court held that distinction was necessary in view of the tact that the age of superannuation for retirement was increased from 55 years to 58 years with effect from October 29, 1979. In that case the Supreme Court also found that as a matter of fact there was no discrimination in reference to the average emoluments also. 20. In Union of India v. P. N. Menon 1994 (4) SCC 68 the Supreme Court held that in framing a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post - retirement benefits, if implemented with a cut off date, which can be held to be reasonable and rational in the light of Art.14 of the Constitution need not be held to be invalid. It shall not amount to "picking out a date from the hat", as stated by the Supreme Court in D.R. Nim v. Union of India AIR 1967 SC 1301 in connection with fixation of seniority. Whenever a revision takes place, a cut off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government. 21. Learned counsel also referred to the decision in D.S. Nakara v. Union of India AIR 1983 SC 130 for the proposition that there cannot be division for the purpose of entitlement of payment of pension, into those who retired by certain date and those who retired after that date. Basically this point of the respondents/petitioners is not sustainable for the reason that there is no distinction made by the Government in reference to the entitlement of pension. What the Statutes provided was that superannuation shall be 55 years for the private college teachers. Basically this point of the respondents/petitioners is not sustainable for the reason that there is no distinction made by the Government in reference to the entitlement of pension. What the Statutes provided was that superannuation shall be 55 years for the private college teachers. But those who had been appointed before 1st April 1958 are entitled to continue up to the age of 60 years and their service up to 55 will only count for pension, that too subject to the option exercised by them. So it is open to the respondents/petitioners to continue only upto 55 and get their pension sanctioned. Therefore, there is no question of division for the purpose of entitlement of pension. The argument of the learned counsel for the respondents/petitioners that there is a wrong classification among the private college teachers and the University teachers for the purpose of pension, cannot be sustained on the principle of the same decision which stated that Art.14 forbids class legislation but permits reasonable classification. The respondents/petitioners who are private college teachers are treated equally with the Government college teachers and the Government servants in reference to age of retirement and pension. They cannot compare themselves with the University teachers. A classification for the purpose of age of superannuation among these two sets of classes is perfectly valid. So this decision will not apply to the facts of the present case. 22. The other decision strongly relied upon is the decision in In re, Special Courts Bill, 1978 AIR 1979 SC 478 wherein the Supreme Court has laid down for the proposition that would emerge from the judgments of the Supreme court in so far as they are based on Art.14. As per the test laid down by the Supreme Court in this decision, it has reiterated the earlier decision that the classification should not be arbitrary and must satisfy the two conditions of intelligible differentia and rational relationship with the object sought to be achieved. Applying these tests we are clear in our minds that the classification between private college teachers and the University teachers is a valid classification for the purpose of age of superannuation. 23. Applying these tests we are clear in our minds that the classification between private college teachers and the University teachers is a valid classification for the purpose of age of superannuation. 23. Learned Government Pleader brought to our notice that by a series of orders, last one being G.O. (Ms) No. 105/93/H. Edn., dated 10th August 1993, even the private college teachers who opted to retire at the age of 60 were given benefits at the specified rate as provided in the said G.O. Even though initially the benefit was given with effect from 1st April 1990, by another G.O. (Ms) No. 153/94/H. Edn., dated 22nd October 1994 the teachers who retired prior to 1st April 1990 also will come under the purview of the Government Order dated 10th August 1993. 24. Yet another contention of the learned counsel for the respondents/petitioners is that though the Calicut University and Kerala University Senates have passed amendments to Statute 16, the same have ,not been forwarded to the Chancellor for assent. Sub-sections 5 and 6 of S.35 says that where any Statute has been passed by the Senate, it shall be submitted to the Chancellor who may assent thereto or withhold his assent. Sub-section 6 states that no Statute shall be valid or come into force until assented by the Chancellor. In is much as the amendments proposed by the Senate have not been assented to, it would be just and necessary that the Chancellor is directed to consider the question as per sub-section 5 of S.35 of the Calicut University Act. 25. In the light of the various decisions and taking into account the facts and circumstances of the case, we are of the view that the findings of the learned Single Judge that Statute 16 of Chap.3 of Calicut University First Statutes and the corresponding provision in the Kerala University First Statutes are ultra vires of Art.14 of the Constitution and the direction to the respondents to fix and pay the pension are to be set aside. We hold that the impugned provision is valid and constitutionally sustainable under Art.14 and 16 of the Constitution. For all these reasons we set aside -the judgment and allow the appeal and dismiss the Original Petitions. We hold that the impugned provision is valid and constitutionally sustainable under Art.14 and 16 of the Constitution. For all these reasons we set aside -the judgment and allow the appeal and dismiss the Original Petitions. But we direct the Chancellor of both Universities to take a decision on the amendment passed by the Senate of both Universities regarding Statute 16 (Chap.3 of the First Statutes) within three months from the date of receipt of a copy of this judgment.