LexC. SANKARANARAYANAN ETC. versus STATE OF KERALA
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654 A B c D E F G H C. SANKARANARAYANAN ETC. v. STATE OF· KERALA May 4. 197L [K, S. HEGDB AND A N. GROVER, JJ.] Kera/a Education Rules, 1959-Provisions of Ch. XX, Ch. XXVllA. aJtd XXVIIB are mutually exclusive-Teacher in aided school who ha.r exercis- ed option under r. 2 of Ch. XIV(c) is governed by Chapter XXV118-Can,. not claim superannuQlion on basis of r. 8 of Ch. XXVllA.. Constitution of India, 195(}-Rule-making power of Government llJU!er Art. 309 is not controlled by any agreement between Government and em- ployees-Change of age of retirement from 58 to SS does not attract Art. 311(2). The appellant in C.A. No. 1789/69 was a teacher in a private aided school in Kerala while the other appellants were at the relevant time teachers in government schools. The teachers associations of Government aa well as aided schools submitted a memorandum to the Government making various demands, one of them being that the age of retirement of school teachers should be raised to 60 years. On July 1966 the Government issued an order by which the age of retirement was raised from 55 to 58 years. However on May 4, 1967 another order was made by Government in supercession of the earlier orders and the age of retirement of all govern- ment employees and aided school teachers was again fixed at SS yean. Ou both occasions necessary amendments were effected in the Kerala Service Rules made by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, as well as in the Kerala Education Rules, 1959 framed by the Government under s. 36 of the Kerala Educa- tion Act 6 of 1949. Tho 1959 Rules originally contained Ch. XXVIL In February 1965 this Chapter was renumbered as Ch. XXVll-A. Anothtr Ch. XXVll-B was added. Rule in Ch. X:XVll-A appearing under the head 'pension' provided that in tho case of those in service of any aided school prior to 4-9-1957 the age of retirement shall be 60 years. In Ch. XXVII-B however it was laid down that the rules therein shall apply to teachers in aided schools to whom the rules in Ch. XIV(c) Kerala Education Rules applied. Rule 4 of the said Chapter further laid down that the date of compulsory retirement on superannuation applicable to teachers of Govern- ment schools shall apply to teachers of aided schools. Rule 2 of Cb. XIV (c) provided that teachers who were in service on 1-10-1964 would have an option either to continue under the Rules in Ch. XIV(B) or to come under the Rules in that Chapter i.e. XIV(C). Such option when exercised was to be deemed to be final. The appellant in C.A. No. 1789/69 exercised bis option within the period limited therefore and thus came to be governed by the Rules in Chapter XIV(C). When the Government sought to retire the appellants at the age of 55 years they filed writ petitions in the High Court. The petitions were dismissed. Ir appeal by special leave to this Court, HELD : (i) The division benct. ~f the High Court was right in holding that the provisions of Ch. XXVIIA and Ch XXVllB were mutually exclu· sive. Chapter XXVIIB makes independent and separate provisions which are inconsistent with those contained in Cb. XXVIIA. As the appellant in C. A, No. 1789/69 was a teacher.in an aided school the age of compulsory c. SANKARANARAYANAN v. KERALA (Grover, J.) r.etirement by virtue of r. 4 of the Ch. XVIIB would be the same as that of teachers of government schools. The age of compulsory retirement for the latter class of teachers was 55 years and it followed that that would be the age of superannuation for the aforesaid appellant. Rule 2(a) of the Ch. XIV(c) expressly states that teachers who come under the provisions of Ch. XIV(c) shall retire at the age of 55. Rule 8 of Ch. XXVIIA could not be applied to the said appellant as that was a general rule and when he opted to be governed by the rules in Ch. XXVIIB and Ch. XIV(c) he was relegated to the same position as that of a teacher of Government school even in the matter of superannuation. [6580-0] (ii) The power of the Government under Art. 309 of the Constitutiou to make rules regulating the conditions of service of government employees or of teachers in the aided schools under s. 12 of Act 6 of 1959 could in no way be fettered by an alleged agreement between the governo:ient and teachers even if such an agreement was proved. [659B-C] (iii) Tho r~le of estoppel also could not be invoked in the circumstances of
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