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2000 DIGILAW 629 (KER)

Mathew v. State of Kerala

2000-11-28

G.SASIDHARAN, K.S.RADHAKRISHNAN

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Judgment :- K.S. Radhakrishnan, J. Appellants were the petitioners in O.P. 20113/95. Original Petition was filed praying for a declaration that those who have opted under Chapter XIV C of the Kerala Education Rules are entitled to continue in service with all existing service and retirement benefits till the age of 60 years notwithstanding the provisions of R.4 of Chapter XXVIIB of the KER. A direction was also sought for against the Government not to retire the petitioners on superannuation till they attain the age of 60 years and to continue to extend them the existing benefits of the Rules applicable to Government employees governed by Part III of the Kerala Service Rules. Learned Single Judge did not grant the reliefs prayed for by the petitioners and dismissed the Writ Petition, against winch this appeal has been preferred. 2. Shot fads which are necessary for disposal of this appeal are as follows: petitioners are teaching and non-teaching staff of St. Micheal's Anglo-Indian High School and St. Teresa's Anglo-Indian High School. Both the schools are governed by the Rules of Anglo-Indian Schools in Kerala. They are aided minority institutions under the Corporate Educational Agencies. Previously Anglo-Indian Schools were governed by the Code of Regulation for Anglo-Indian Schools, Madras State and now -they acre governed by the provisions of Rules of Anglo-Indian Schools in Kerala which was issued by the Government vide notification dated 26.7.1974 and published in the Kerala Gazette dated 10th September, 1974. 3. Being minority institutions, the Anglo-Indian Schools are governed by the above mentioned Rules. The Rules for Anglo-Indian Schools, Kerala State came into force with effect from 1.11.1974. As per the above mentioned Rules, the age of retirement on superannuation shall be 55 years. However, R.193 gives option to teaching and non-teaching staff at the commencement of the Rules to continue in service upto 60 years of age provided, they exercise such option within three months from the date of commencement of the rules. Option once exercised shall be final. Retirement benefits have been dealt with in Chapter IX of the Rules. R.240 provides that the pension, gratuity, provident fund and other retirement benefits of the teaching and non-teaching staff for aided schools shall be the same as those of corresponding categories governed by the Kerala Education Act and Rules. Option once exercised shall be final. Retirement benefits have been dealt with in Chapter IX of the Rules. R.240 provides that the pension, gratuity, provident fund and other retirement benefits of the teaching and non-teaching staff for aided schools shall be the same as those of corresponding categories governed by the Kerala Education Act and Rules. The relevant provisions under the Kerala Education Rules as regards conditions of service of teachers are contained in chapter XIVB and Chapter XIVC. The relevant Rules applicable in the case of pension, provident funds and insurance for aided school teachers etc. are contained in Chapter XXVIIA of the Kerala Education Rules. R.1 of Chapter XXVII A lays down that the Rules in the said Chapter shall apply only to those teachers to whom the Rules in Chapter XIVB applied. Rules relating to retirement on superannuation was R.8 of Chapter XXVII A which stipulated that the age of superannuation was 55. The proviso to mat rule stated that those who were already in service in any aided school prior to 4th September 1957 shall retire only on attainment of 60 years. We have already referred to R.193 of the Anglo-Indian Rules which deals with the age of retirement. We may extract the said provision for easy reference as hereunder. The age of retirement on superannuation shall be 55. Those already in service at the commencement of the rules, i.e Rules shall however, be given option to continue in service upto sixty years of age, provided they exercise such option within three months from the date of commencement of these rules. Option once exercised shall be final." Therefore, those who are already in service at the commencement of the rules, i.e., 1.11.1974 were given option to continue in service upto 60 years of age or to retire at the age of 55. The Government in pursuance to the aforesaid rule issued G.O. MS. 222/75/G.Edn. dated 11.9.1975, by which three months time was allowed for exercising option from 1.11 .,1974 to the staff of Anglo-Indian Schools who desire to continue in service upto 60 years of age as per R.193 or otherwise. It is profitable to refer to a portion of the Government Order for our reference: "The Rules for Anglo-Indian Schools, Kerala came into effect on 1st November, 1974. It is profitable to refer to a portion of the Government Order for our reference: "The Rules for Anglo-Indian Schools, Kerala came into effect on 1st November, 1974. The three months time allowed from 1st November, 1974 for exercising option by the staff of the Anglo-Indian Schools who desire to continue in service upto 60 (sixty) years of age as per R.193 was over on 31.1.1975. Some of the staff of the Aided Anglo-Indian Schools have already exercised their option within the prescribed time. The Kerala Anglo-Indian School Teachers' Association has requested Government to extend time for exercising the option as the benefit of option would be known only when the pay according to the new rules is fixed. Government have examined the matter and are pleased to permit the members of the staff of the Aided Anglo-Indian Schools to exercise option afresh within one month from the date of orders by the Director of Public Instruction fixing their initial salary as on 1.11.1974 according to R.169 of the Rules for the Anglo-Indian Schools, Kerala. The option thus exercised shall be final. Petitioners who are teaching and non-teaching staff of the two Anglo-Indian Schools opted to remain under Chapter XIVC of the K.E.R. Thus they became entitled to pension and provident fund under Chapter XXVII B of the K.E.R. whereby, under R.2, the Rules in that Chapter were made applicable to teachers in aided schools to whom the Rules in Chapter XIV C of the K.E.R. applied. R.4 of Chapter XXVIIB further laid down that the age of compulsory retirement on superannuation applicable to teachers of Government Schools shall apply to teachers of aided schools. Having opted to remain under Chapter XIV Call the petitioners should retire on attaining the age of 55 years. We may notice that several other teachers who opted under Chapter XIVB by which they have to retire at the age of 60 years with meagre pension filed O.P. 5277/88 before this Court clamouring for the benefit of liberalised pension schemes initiated by State Government. Some of the XIV B optees filed O.P. 6226 of 1984 before this Court. This Court following the decision of the Supreme Court in D.S. Nakara v. Union of India, AIR 1983 SO 130 and also relying upon the decision of this Court in O.P. Nos. Some of the XIV B optees filed O.P. 6226 of 1984 before this Court. This Court following the decision of the Supreme Court in D.S. Nakara v. Union of India, AIR 1983 SO 130 and also relying upon the decision of this Court in O.P. Nos. 1455/83 and 204/84 declared that the benefits of the liberalised pension scheme must go to aided school teachers who opted for Chapter XIV B and retired prior to the date of Ext. P1, i.e., 27.11.1982. Claiming similar benefits certain other XIV B optees approached this Court filing O.P. 5277 of 1988 and O.P. 114 of 1986. The question which was posed for consideration before this Court was as follows: "Whether the teachers who had opted for Chapter XIV(B) of the K.E.R. and those who have not opted but at the same time continuing to be governed by the Madras Teachers Contributory Provident Fund Insurance Pension Rules, 1955 are entitled to the benefit of the liberalised Pension scheme introduced by the State adopting the principles enunciated in the Government of India O.M. No.F.I 9(3) EV/79dl. 25.5.1979, extended to the pensioners in the State of Kerala." After referring to the decision of the Supreme Court in Nakara's case (supra) and also the judgment of this Court in O.P. 6226/84, in O.P. 5277/88 this Court ordered as follows: "There will therefore be a declaration to the effect that the teachers who have opted for Chapter XIV(B) or remained to be governed by the Madras Teachers Contributory Provident Fund Insurance Pension Rules, 1955 are entitled to the liberalised pension scheme. The Government therefore shall pass consequential orders enabling them to enjoy the said benefit. Such consequential orders shall be passed as expeditiously as possible, in any event, within three months from the date of receipt of a copy of the judgment." State aggrieved by the above mentioned declaration filed W.A.124 of 1991. Appeal dismissed by the Division Bench. Bench upheld the decision of the learned Single Judge. Government implemented the above mentioned judgment by issuing Ext. P9 order dated 18.8.1995. Government ordered as follows: "Government have examined the matter in detail and are pleased to order as follows: 1. Appeal dismissed by the Division Bench. Bench upheld the decision of the learned Single Judge. Government implemented the above mentioned judgment by issuing Ext. P9 order dated 18.8.1995. Government ordered as follows: "Government have examined the matter in detail and are pleased to order as follows: 1. The benefit of Lieralised Pension Scheme applicable to K.E.R. Chapter XIV C opted teachers who are governed by Part III, Kerala Service Rules will be extended to the K.E.R. Chapter XIV B opted Teachers irrespective of the date of their retirement (i.e., the benefit of slab system vide G.O.(P) 572/80/Fin. Dated 6.9.80 and subsequent modifications with monetary benefits as applicable to XIV C opted teachers). 2. Monetary benefits consequent on the extension of the benefit will be granted only with effect from 28.1.90 i.e., the date of judgment in O.P. Nos. 114/86and5277/88 High Court. 3. Service upto 60 years will be reckoned as qualifying service and average emoluments calculated with reference to last ten months of qualifying service. 4. Those XIV B opted Teachers who opted for Gratuity or Provident Fund only and not eligible for any Pension will not be eligible for the benefits in this order. 5. In respect of those XIV B opted Teachers who have expired by this time, life arrears will be paid to the legal heirs following the same procedure as for the normal life time arrears of pension. (By order of the Governor) P.PARTHAN Additional Secretary in charge". 4. Counsel for petitioners Sri. Goyindh K. Bharathan submitted that effect of Ext. P9 is that XIV B opted teacher have been conferred with the benefits of extended service upto 60 years for the purpose of superannuation and also deemed eligible for all the provisions under the liberalised pension schemes applicable to teachers who opted XIV C as well. Counsel submitted that all the staff, teaching and non-teaching teachers of Anglo-Indian Schools formed a homogeneous group and this group was directed to exercise option under Ext. P1 and some of them opted Chapter XIV C so as to retire at the age of 55 with better retirement benefits and others who have opted Chapter XIV B to retire at the age of 60 years with lesser retirement benefits. P1 and some of them opted Chapter XIV C so as to retire at the age of 55 with better retirement benefits and others who have opted Chapter XIV B to retire at the age of 60 years with lesser retirement benefits. There was an intelligible differentia between Chapter XIV B optees and Chapter XIVC optees, that is, loss of five years service for Chapter XFV C optees were compensated by better retirement benefits, at the same time the gain of 5 years for Chapter XIV B optees were adjusted by giving them lesser pensionary benefits. The equilibrium between two optees therefore was maintained since both of them formed a homogeneous group. But this has been unsettled by Ext. P9 order, by giving XIV B optees the same retirement benefit which was made available to Chapter XIV C optees, leaving the XIV C optees at a disadvantage position by loss of five years. 5. Learned Government Pleader submitted that petitioners having opted benefit of XIV C of the K.E.R. were estopped from contending that they are entitled to continue upto 60 years of age which is applicable only to XIV B optees. It is also his case that petitioners with open eyes exercised option and the option is final. It is his further contention having exercised option under XIV C petitioners had benefits like pension, D.C.R.G., family pension, commutation value of pension etc. and thereafter cannot be permitted to continue in service upto 60 years of age. Further it is the contention of the learned Government Pleader that benefits was extended to Chapter XIV B optees only by implementation of the judgment of this Court. Learned Government Pleader also -submitted that the earlier judgments of this Court were rendered on the basis of Nakara s case which was explained in the subsequent decisions of the Supreme Court in Krishena Kumar v. Union India, AIR 1990 SC 1782, A.I. Reserve Bank Retired Officers Assn. v. Union of India. AIR 1992 SC 767 and Union of India v. P.N. Menon, AIR 1994 2221 etc. 6. We are of the view petitioners who are Chapter XTVC optees, got the benefits which are available under the statute by virtue of their option. v. Union of India. AIR 1992 SC 767 and Union of India v. P.N. Menon, AIR 1994 2221 etc. 6. We are of the view petitioners who are Chapter XTVC optees, got the benefits which are available under the statute by virtue of their option. Petitioners since opted to remain under Chapter XIV C became entitled to pension and provident fund under Chapter XXVII B of the K.E.R. R.2 of Chapter XXVIIB of the Rules were made applicable to teachers in aided schools to whom the rules in Chapter XIV C of the K.E.R. applied. R.4 of Chapter XXVIIB says that the age of compulsory retirement on superannuation applicable to teachers of Government Schools shall apply to teachers of aided schools. Therefore having opted to remain under Chapter XIV C ail the petitioners have necessarily to retire on attaining the age of 55 years. Question that is now posed for consideration is whether granting of the benefit of liberalised pension on the basis of Ext. P9 to Chapter XIV B optees would unsettle the terms and conditions by which a homogeneous group exercised its option. The terms and conditions were integral part of the option itself. These were inter-dependant. One cannot exist without the other. Any extra benefit given to one group would unsettle the very foundation of option rendering it inequitable. It is really heart burning to Chapter XIV C optees. We may notice that Chapter XIV Coptees and Chapter XIV 8 optees formed a homogeneous group. They were asked to exercise option on the basis of certain terms and conditions. Terms and conditions at that time were definite, i.e., those who opted Chapter XIV C could get benefit of only upto 55 years whereas at the same rime they have better retirement benefits as was provided in Chapter XXVIIB of the KER. Chapter XIV B optees could continue upto 60 years of age with lesser service benefits since they are governed by Chapter XXVII A. On the basis of the above terms and conditions petitioners exercised their option. Question that is to be considered is whether subsequent change of terms and conditions would fundamentally alter the option itself making it void. 7. We are of the view that both the optees are to be treated alike in the matter of the privileges conferred as well as liabilities imposed. Question that is to be considered is whether subsequent change of terms and conditions would fundamentally alter the option itself making it void. 7. We are of the view that both the optees are to be treated alike in the matter of the privileges conferred as well as liabilities imposed. Chapter XIV B optees have now the privilege to continue upto 60 years of age with all retirement benefits, which are almost ekin to that of XIV C optees, at the same time. XIV C optees have to retire at the age of 55 years resulting shortage of 5 years of service, but with the same retirement benefits of XIV B optees also. We find when one set of teachers and non-teaching staff could continue upto 60 years with same retirement benefits, the other set of teachers have to retire at the age of 55 but with the same terms and conditions. This differential treatment is not due to the fault of the petitioners who opted on the basis of certain terms and conditions. Government had to change those terms and conditions on the basis of Ext P9 order. We are of the view, these are matters which require serious consideration at the hands of the Government. 8. We are however of the view this Court at this stage may not be able to grant any relief to the petitioners, by permitting them also to continue in service upto 60 years. That will be against the statutory provision, hi this connection, we may refer to a decision of the Supreme Court in Sakaranarayanaii v. State of Kerala (AIR 1971 SC 1997) wherein Supreme court examined the scope of Chapter XIV C read with Rules under Chapter XXVIIB and also Rules under Chapter XIV B read with Chapter XXVII A. The Apex Court dealing with the above mentioned provisions held as follows: "Chapter XX VIIB 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 R.4 of Chapter XXVUB 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. 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 R.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 R.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." Apex Court therefore held that Chapter XXVIIA and XXVIIB when read together leave no doubt that the two Chapters are mutually exclusive. It was also held that Chapter XXVIIB makes independent and separate provisions which are inconsistent with those contained in Chapter XXVII A. We are of the view when both the XIV B optees and XIV C optees are governed by mutually exclusive rules this Court is not justified in directing the Government to extend the benefit of Chapter XXVIIA which was meant for Chapter XIV B optees to Chapter XIV C optees. We may notice even though Chapter XIV B and XIV C optees have formed themselves a homogeneous group, due to the option exercised they are governed by separate statutory provisions which as held by the Supreme Court mutually exclusive and independent. 9. This Court is not justified in unsetting a settled position which will have serious consequence with regard to the other aided school teachers in the State as a whole. 9. This Court is not justified in unsetting a settled position which will have serious consequence with regard to the other aided school teachers in the State as a whole. All the same we find since petitioners are a vanishing category and therefore it is just and fair that their grievance be considered by the Government under R.3 of Chapter I of the KER which says that where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner. Nature and scope of the said rule was considered by this Court in Gangadharan Nair v. State of Kerala. 1984 KLT 65,. We are therefore inclined to dispose of this appeal directing the State Government to examine the grievance raised by petitioners. We notice that by virtue of interim order granted by the learned single judge petitioners are continuing in service, the said position need not be unsettled till their grievances are considered by the Government. In the above mentioned circumstances we set aside the judgment of the learned Single Judge and dispose of the appeal leaving it to the Government to consider the grievance of the petitioners in accordance with the above mentioned Rule within a period of three months from the date of receipt of copy of this judgment and pass appropriate orders in accordance with law. Till that time status quo will continue.