Prakasan M.P.. vs State Of Kerala .

REPORTABLE 2023INSC772

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7580 of 2012

DR. PRAKASAN M.P. AND OTHERS .… APPELLANTS

Versus

STATE OF KERALA AND ANOTHER …. RESPONDENTS

JUDGEMENT

HIMA KOHLI, J.

1. The appellants, who are members of the teaching faculty in Homeopathic Medical

Colleges situated in the respondent No.1 - State of Kerala1, are aggrieved by the judgement

dated 6th August, 2010, passed by the High Court of Kerala, Ernakulam2, concurring with

the judgement dated 19th July, 2010, passed by the learned Single Judge3. The relief

prayed for by the appellants was for enhancing their age of retirement from 55 years to 60

years by extending the benefit of the Government Order4 dated 14th January, 20105, which

increased the retirement age of Doctors in the Medical category under the Medical

Education Service from 55 years to 60 years with retrospective effect from 1st May, 2009.

The prayer made was not granted.

1 For Short ‘the State’ Signature Not Verified 2 In Writ Appeal No. 1338 of 2010 Digitally signed by POOJA SHARMA Date: 2023.08.25 3 17:27:17 IST Reason: In Writ Petition (Civil) 13537 of 2010 4 For short ‘G.O’ 5 G.O.(MS) No.14/2010/H&FWD Page 1 of 13 CIVIL APPEAL NO. 7580 of 2012

THE FACTS :

2. To put the issue raised in the instant case in the correct perspective, we may first

refer to the relevant facts. The State issued a Government Order6 dated 14th January,

2010, recording inter-alia that there was a shortage of qualified and experienced medical

faculties in several subjects in Government Medical Colleges in the State and that on

account of the age of retirement of the faculty including medical doctors at 55 years, several

departments were facing dearth of medical doctors which, was adversely affecting post

graduate medical courses. Noting that at the National level, the retirement age of doctors

in Medical Colleges was 65 years and retention of senior professors in service would help

the State increase the number of post graduate seats as per the revised norms laid down

by the Medical Council of India, the State ordered that :

“Government have examined the various aspects and pleased to order that the retirement age of the doctors in the Medical category under the Medical Education Service be increased to 60 years from existing 55 years. This order has retrospective effect from 1.5.2009. This order is not applicable for faculties in Dental, Nursing, Pharmacy and Non-Medical categories under Medical Education Service.”

3. Aggrieved by the exclusion of doctors/professors of Government Homeopathic

Colleges from the purview of the captioned G.O. dated 14th January, 2010, the appellants

filed a writ petition7 in the High Court of Kerala praying inter alia for extension of the benefit

of the said G.O. to Homeopathic Doctors working in Government Homeopathic Colleges.

The said writ petition was disposed of by the High Court on 29th March, 2010 with a

6 G.O. (MS) No. 14/2010/H&FWD 7 Writ Petition (C) No.10709 of 2010

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direction issued to the State to consider the pending representations of the appellants and

pass an order within three months. Since the State did not take any decision on their

representations, the appellants approached the High Court once again and filed another

writ petition3, which was dismissed by the learned Single Judge vide order dated 19th July,

2010. Noting that the State Government did not amend Rule 60 (a) or 60 (c) Part (I) of the

Kerala Service Rules8, the learned Single Judge held that the existing rule position as

obtained from Rule 60(c) of the K.S. Rules, could not be ignored. It was also observed

that the appellants had not challenged the G.O. dated 14th January, 2010. Instead, they

approached the Court seeking parity with those covered under the said G.O., by claiming

that it ought to be extended to them as well so as to enable them to continue in service

beyond the normal date of retirement, which was impermissible.

4. Dissatisfied by the above judgement, the appellants filed an appeal2 which came to

be dismissed by the Division Bench of the High Court. Concurring with the view expressed

by the learned Single Judge, the Division Bench observed that since extension of age for

the teaching staff of Medical Colleges is a policy decision, it is not open for the High Court

to issue any directions to the respondent No.1 – State to increase the retirement age of the

teaching staff of Homeopathic Medical Colleges. Hence the present appeal.

THE RELEVANT RULES :

5. The conditions of service of persons employed by the State are regulated by the

K.S. Rules, unless they are exempted entirely or in part as prescribed in Rule 3. Rule 60

8 For short ‘K.S. Rules’

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falls under Chapter VIII of Part I of the K.S. Rules that deals with compulsorily retirement.

Rule 60 (c) as it stood at the relevant point in time prescribed that :

“60 (c) The teaching staff of all Educational Institutions (including Principals of Colleges) who complete the age of 55 years during the course of an academic year shall continue in service till the last day of the month in which the academic year due, before the last day of the month in which they attain the age of 55 years. But they shall not be eligible for increment or promotion during the period of their service beyond such date. If they are on leave on the day they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation they shall be retired with effect from the last day of the month in which they attain the age of 55 years. But in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter the date of superannuation or on the date of suspension whichever is later.

If, however, the day on which the teaching staff (including Principals of Colleges) attain the age of 55 years falls within the period of one month beginning with the day of re-opening of the institutions they shall cease to be on duty with effect from the date of such re-opening and they shall be granted additional leave from the date of re-opening to the last day of the month in which they attain the age of 55 years. They shall be entitled to the benefit of increment if it falls due before the actual date on which they attain the age of 55 years.”

6. Rule 60 (a) which is more relevant for our discussion, reads 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.”

7. As can be gathered from the above, Rule 60 (a) of the K.S. Rules is a general

provision and is not applicable to the teaching staff for whom a separate provision has

been specifically incorporated, i.e., Rule 60(c) that prescribes their age of retirement and

classifies them as a separate class in the matter of retirement. Rule 60 (c) prescribes that

even if the teaching staff completes the age of 55 years during the course of an academic

year, subject to the conditions stipulated in the said Rule, they would continue in service

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till the end of the academic year. Quite apparently, the object behind carving out this

exception for the teaching staff is to safeguard the interest of the students whose studies

may not get adversely affected due to the superannuation of a teacher midway through an

academic session.

8. After notice was issued in the present appeal on 16th December, 2010, some

subsequent developments took place as brought out in an application moved by the

appellants. In the year 2012, the respondent No.1 – State Government issued three G.O.s

in a space of ten days, namely, G.O. dated 30th March, 2012, G.O. dated 7th April, 2012

and G.O. dated 9th April, 2012. In G.O. dated 30th March, 20129, taking note of the earlier

G.O. dated 14th January, 2010 whereby, the retirement age of Doctors in the Medical

category under Medical Education Service had been enhanced from 55 years to 60 years,

the State ordered that the retirement age of doctors working in Government Dental

Colleges and the Dental Wings in the Medical Colleges be also enhanced from the age of

55 years to 60 years, so as to avoid problems that may be faced by the research students

due to retirement of experienced faculty working as Guides.

9. This was followed by issuance of G.O. dated 7th April, 201210 whereunder, based

on similar considerations, the respondent No.1 – State Government enhanced the

retirement age in respect of the staff teaching in Ayurveda Colleges from 56 years to 60

years. Next, came G.O. dated 9th April, 201211 whereby, the retirement age of the teaching

9 G.O.(MS) No.105/2012/H&FWD 10 G.O.(MS) No.107/2012/H&FWD 11 G.O.(MS) No.108/2012/H&FWD

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staff in Homeopathic Medical Colleges was also enhanced from 56 years to 60 years,

bringing them at par with the teaching staff of Ayurvedic Medical Education. It is

noteworthy that all the three G.Os. issued by the State subsequent to issuance of the G.O.

dated 14th January, 2010, were prospective in nature.

10. In view of the above successive decisions taken by the respondent No.1 – State

Government, during the pendency of the present appeal, the grounds originally taken by

the appellants to assail the impugned judgement and their argument that G.O. dated 14th

January, 2010 was discriminatory as it treated Doctors in Medical Colleges on a better

footing vis-à-vis Homeopathic and Ayurvedic Doctors though they formed a homogenous

group, were no longer available. As a result, without filing an application for amending the

appeal, the appellants filed an additional affidavit on 1st October, 2012, where a grievance

was raised that though several representations had been made by them to the State when

they were still in service, the G.O. dated 9th April, 2012 issued later on, was not given

retrospective effect thereby depriving them of the benefits of enhancement of age to which

they would have been legitimately entitled and in the meantime, they had retired. Inherent

in this argument is the plea of legitimate expectation taken by the appellants.

THE ANALYSIS :

11. It is well-settled that the age of retirement is purely a policy matter that lies within

the domain of the State Government. It is not for the courts to prescribe a different age of

retirement from the one applicable to Government employees under the relevant service

Rules and Regulations. Nor can the Court insist that once the State had taken a decision

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to issue a similar Government Order that would extend the age of retirement of the staff

teaching in the Homeopathic Colleges as was issued in respect of different categories of

teaching staff belonging to the Dental stream and the Ayurvedic stream, the said G.O.

ought to have been made retrospective, as was done when G.O. dated 14th January, 2010

was issued by the State and given retrospective effect from 1st May, 2009. These are all

matters of policy that engage the State Government. It may even elect to give the benefit

of extension of age to a particular class of Government employees while denying the said

benefit to others for valid considerations that may include financial implications,

administrative considerations, exigencies of service, etc.

12. In a somewhat comparable case on facts that arose in New Okhla Industrial

Development Authority and Another vs. B.D. Singhal and Others12, the appellant -

Authority (NOIDA) had resolved to recommend enhancement of the age of superannuation

of its employees from 58 to 60 years. The said proposal, when sent to the State

Government for prior approval, was turned down. This led to the aggrieved employees

filing a writ petition before the High Court of Judicature at Allahabad which was allowed

and NOIDA was directed to consider the matter afresh and forward its proposal to the State

Government for its approval. It was left open to the State Government to consider giving

effect to the increase in the age of retirement from the date when NOIDA had resolved to

bear the financial burden for the increase of age or from such date as it may consider

expedient. This time, the State Government acceded to the proposal received from

12 2021 SCC Online SC 466

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NOIDA for enhancing the age of retirement to 60 years, but made the said decision

prospective. Aggrieved by the refusal of the State Government to make the decision

retrospective, the respondents amended the pending writ petition which was allowed by

the High Court that struck down the provision of making the decision prospective and

directed that such of the respondents who had retired from service by then, would be

deemed to have worked till the extended age of retirement, with all consequential benefits.

Challenging the said decision, the State of Uttar Pradesh filed a Petition for Special Leave

to Appeal under Article 136 of the Constitution of India, which was allowed by this Court

with the following observations :

“22. Whether the age of superannuation should be enhanced is a matter of policy. If a decision has been taken to enhance the age of superannuation, the date with effect from which the enhancement should be made falls within the realm of policy. The High Court in ordering that the decision of the State government to accept the proposal to enhance the age of superannuation must date back to 29 June 2002 has evidently lost sight of the above factual background, more specifically (i) the rejection of the original proposal on 22 September 2009; and (ii) the judgment of the Division Bench dated 17 January 2012 refusing to set aside the order rejecting the proposal on 22 September 2009 which has attained finality. But there is a more fundamental objection to the basis of the decision of the High Court. The infirmity in the judgment lies in the fact that the High Court has trenched upon the realm of policy making and has assumed to itself, jurisdiction over a matter which lies in the domain of the executive. Whether the age of superannuation should be increased and if so, the date from which this should be effected is a matter of policy into which the High Court ought not to have entered.

xxx xxx xxx

24. Whether the decision to increase the age of superannuation should date back to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut-off, some employees would stand on one side of the line while the others would be positioned otherwise. This element of hardship cannot be a ground for the High Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty-eight to sixty years on 28 November 2001, it had left the public sector corporations to take

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a decision based on the financial impact which would result if they were to increase the age of superannuation for their own employees.

25. From time to time the authorities of the State took a decision bearing upon the exigencies of service prevailing in each organisation. ………. The State government had evidently determined that it was for each organisation to consider and determine the impact of the financial burden, and based on that the organisation was to submit a proposal for the approval of the government.

26. The High Court's observation that the Government order on 30 September 2012 increasing the age of superannuation prospectively is arbitrary seems to be based on the premise that the respondent-employees have a vested right to the increase in the age of retirement on the passage of the resolution by NOIDA. However, Section 19 of the Act stipulates that regulations - which would include amendments as in this case - will require the previous approval of the State Government. The employees will have a vested right to the increased age of superannuation only after the service regulations are modified upon approval of the State Government, and from such date as maybe prescribed by the Government.

Para 1(ii) of the government order issued on 30 September 2012 clearly and in unambiguous terms states that the order shall come into force prospectively. The government order can be given retrospective application only if expressly stated or inferred through necessary implication. Therefore, the respondent- employees could not have claimed a vested right that the enhancement in the age of retirement should be made effective from the date on which NOIDA had resolved to submit a proposal for the approval of the government.” (Emphasis added)

13. In the instant case, at the time of issuing G.O. dated 14th January, 2010, the reasons

that had weighed with the State for enhancing the age of retirement from 55 years to 60

years have been spelt out. The recitals refer to the dearth of eligible hands in the middle

level cadre for promotion, the fact that many Post Graduate Medical Courses were likely

to be adversely affected due to the said reason and also the fact that retention of senior

professors in service at Government Medical Colleges would help the State Government

to increase the number of Post Graduate seats, in terms of the revised norms circulated

by the Medical Council of India.

14. Similarly, while considering extension of the age of retirement of Doctors in the

Dental faculties under the Medical Education Service, taking note of a letter addressed by

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the Director of Medical Education who stated that some highly qualified members of the

Senior Dental faculty were due to retire and their retirement would adversely affect the

research students working under them, as also hinder the conduct of some of the ongoing

Post Graduate Courses in Government Dental Colleges, the State permitted enhancement

of their age from 55 years to 60 years.

15. When it came to the third G.O. dated 7th April, 2012, the recitals therein refer to the

report of the Director of Ayurveda Medical College who pointed out dearth of qualified

teaching staff in higher categories and the adverse remarks made by the Central Council

of India Medicine, which had proceeded to reduce the number of BAMS seats from the

sanctioned strength of 70 to 50 in the Government Ayurveda College,

Thiruvananthapuram, and had refused to grant permission for Postgraduate courses in

different specialities. Keeping this scenario in mind, the State decided to enhance the

retirement age of the teaching faculty in Ayurveda Colleges from 56 years to 60 years.

Lastly, came G.O. dated 9th April, 2012 wherein, taking note of the representation received

from the Principal of the Government Homeopathic College, Thiruvannathapuram, similar

benefit was extended to the teaching staff in Homeopathic Colleges. The singular

difference was that unlike G.O. dated 14th January, 2010, the subsequent three G.Os

issued by the State were made prospective, thus denying any relief to the teaching faculties

in the Dental, Ayurvedic and Homeopathic streams who had superannuated in the

meantime. In this background, the appellants filed the additional affidavit questioning the

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decision of the State of not incorporating a clause in the three G.O’s. issued later on,

making their operation retrospective, which would have otherwise enured to their benefit.

16. Had the matter stood as it was on the date when the impugned judgement came to

be passed, perhaps the appellants could have advanced an argument that the action of

the State must be expected to be fair and reasonable and in line with the guarantees

extended under Article 14 of the Constitution of India and that there was no rationale in

treating them differently when Doctors/Professors from all streams teaching in Medical

Colleges in the State formed a homogenous class and are governed by the same set of

Service Rules and Regulations. But after the respondent No.1 – State Government issued

three successive G.Os extending the age of retirement of the members of the Dental

Faculties, Ayurvedic Faculties and Homeopathic Faculties from 55 years to 60 years, the

insistence on the part of the appellants that these G.Os ought to be given retrospective

effect, even though there was no clause to that effect inserted therein, cannot be

countenanced.

17. Such a decision lies exclusively within the domain of the Executive. It is for the

State to take a call as to whether the circumstances demand that a decision be taken to

extend the age of superannuation in respect of a set of employees or not. It must be

assumed that the State would have weighed all the pros and cons before arriving at any

decision to grant extension of age. As for the aspect of retrospectivity of such a decision,

let us not forget, whatever may be the cut-off date fixed by the State Government, some

employees would always be left out in the cold. But that alone would not make the decision

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bad; nor would it be a ground for the Court to tread into matters of policy that are best left

for the State Government to decide. The appellants herein cannot claim a vested right to

apply the extended age of retirement to them retrospectively and assume that by virtue of

the enhancement in age ordered by the State at a later date, they would be entitled to all

the benefits including the monetary benefits flowing from G.O. dated 9th April, 2012, on the

ground of legitimate expectation.

18. Pertinently, similar pleas as taken by the respondents-employees herein were

raised in the case of NOIDA (supra) where the employees had sought to invoke the

principles of promissory estoppel and legitimate expectation for increasing the age of

superannuation retrospectively and were shot down as inapplicable. For taking this view,

reliance was placed on Monnet Ispat and Energy Limited. Vs. Union of India13 wherein

this Court had opined that if a communication issued was a proposal or a mere

recommendation, the principle of promissory estoppel will not apply for the simple reason

that for invoking the said principle, there must be a promise and based on the said promise,

the party concerned ought to have acted to its prejudice. In the NOIDA case (supra), this

Court had outrightly turned down the argument advanced by the respondent–employees

therein that the Doctrine of Legitimate Expectation would come into play. It was held that

the said doctrine cannot have a place when enhancement of the age of superannuation is

“a public function” that is governed by the provisions of the Statute and the relevant service

regulations. The position is the same in the present case.

13

(2012) 11 SCC 1

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19. No doubt, the appellants were the first to raise the battle cry when they filed not

one, but two writ petitions in the High Court for extending them the benefit of G.O. dated

14th January, 2010. But it is a matter of record that there was no positive order granted in

their favour throughout. Even in the present proceedings, no interim order was passed in

favour of the appellants who have superannuated in the meantime. The clock cannot be

put back for them by reading retrospectivity in the G.O. dated 09th April, 2012, when the

State elected not to insert any such clause and evidently intended to apply it with

prospective effect. The idea behind extension of retirement age of doctors was to take care

of the emergency situation caused by shortage of doctors, which was resulting in affecting

the studies or patient care. It was not merely to grant benefits to a particular class. The

Doctrine of Legitimate Expectation does not have any role to play in matters that are strictly

governed by the service regulations. This is an exercise that is undertaken by the State in

discharge of its public duties and should not brook undue interference by the Court.

20. In view of the aforesaid discussion, the impugned judgment is upheld. It is deemed

appropriate to dismiss the present appeal as meritless while leaving the parties to bear

their own expenses. Ordered accordingly.

…………………….J. [HIMA KOHLI]

…………………….J. [RAJESH BINDAL] New Delhi;

August 25, 2023

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