Project Officer,Irdp, & Ors vs P.D.Chacko

2. The question that falls for our consideration in this case is

whether the respondent who was in service as on 07.04.1970 as a

full time menial in an aided school is entitled to get the benefit of

Rule 60(b) Part-I Kerala Service Rules, (KSR for short) so as to

continue in government service upto 60 years of age.

3. The respondents entered service in an aided school on

25.06.1968 and worked as a full time menial upto 09.04.1976. He

resigned from the post and joined as a Peon in the Tribal Welfare

Department of the Government of Kerala on 10.04.1976. 2

Respondent had raised a claim that he was entitled to continue in

service up to 60 years of age as per Rule 60(b) Part-I KSR since he

was working as a full time menial in an aided school as on

07.04.1970 and continued to be in the last grade till he attained the

age of 55 years. His claim was rejected by the Department vide

order No.E-49227/ 2001.

4. Feeling aggrieved by that order he preferred a writ

petition O.P.No.29317/2001 before the Kerala High Court. Learned

Single Judge of the Kerala High Court on 25.05.2006 allowed the writ

petition holding that had he remained in the aided school service he

would have continued upto 60 years of age, hence he was entitled to

the benefit of Rule 60(b) Part-I KSR. Learned single judge gave a

direction to allow the respondent to continue in service till he attained

60 years of age and to settle his pension and other benefits

accordingly. State of Kerala and Others preferred writ appeal no.35

of 2007 before the Division Bench of the Kerala High Court and the

appeal was dismissed on 15th January, 2007 at the admission stage.

Feeling aggrieved by that judgment this appeal has been preferred by

the State of Kerala and their officers.

3

5. Mr. G. Prakash, learned counsel appearing for the State

of Kerala submitted that the High Court has committed a grave error

in holding that the respondent who was working as a full time menial

in an aided school as on 07.04.1970 was entitled to get the benefit of

Rule 60(b) of Part-I KSR. Counsel submitted that the service in an

aided school has not been included in the last grade service as

defined in GO(P)82/66/PD dated 08.03.1966 and as per the

government decision no.1 under Rule 14 in Part-III KSR the said

period can be counted only for pensionary benefits but does not

confer any right to the incumbent to continue in service upto 60 years

of age. Consequently, provisional pension has already been

sanctioned to the respondent considering his regular service till he

attained the age of 55 years under Rule 3A Part-III KSR.

6. Ms. Beena Madhavan, learned counsel appearing for

respondent submitted that the service put in by the respondent in the

aided school from 25.06.1968 to 09.04.1976 should be taken into

consideration for the purpose of granting benefit under Rule 60(b) of

Part-I KSR. Learned counsel submitted as per Rule 29(b) of Part-III

KSR past service would be counted if a person resigns from a service

to join another service. Learned counsel also referred to Rule 14E of 4

KSR Part-III and submitted that the aided school service put in by the

government employee prior to his entry in service would qualify not

only for the purpose of pension, but also for continuity in service upto

60 years of age. Learned counsel, therefore, submitted that

respondent had satisfied all the criteria for claiming the benefit of

Rule 60(b) Part-I KSR and the High Court has rightly granted the

benefit.

7. The primary question that arises for consideration is

whether the respondent who was in service of an aided school as on

07.04.1970 was entitled to continue in service till he attained 60 years

of age as per clause `b' of Rule 60 of Part-I KSR.

8. KSR was introduced by the Government of Kerala under

the proviso to Article 309 of the Constitution of India with effect from

01.11.1959 and these rules are deemed to have been made under

the Kerala Public Service Act (Act 19 of 1968). KSR contains 3 parts.

Part-I contains rules relating to general conditions of service, pay

fixation, leave, joining time, foreign service etc. Part-II contains rules

relating to traveling allowance and Part-III contains rules of pension.

These rules are applicable to all officers who entered service on or

after 01.11.1956 and those who entered in service prior to 5

01.11.1956 and who opted to be governed by these rules. Since

introduction of these rules government has issued various

amendments and several executive orders by way of directions,

instructions, clarification etc. Government has also reserved to itself

the power to modify these rules from time to time.

9. Rule 60 dealing with the retirement of officers appears in

Chapter VIII of Part I KSR under the heading `compulsory retirement'.

Rule 60(a) is the substantive part of the Rule, which deals with the

age of retirement and Rule 60(b) deals with a specified category of

officers in the last grade which is an exception to the main provision.

Rule 60(a) and (b) read 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.

(b) Officers in the Last Grade Service on the 7th April, 1970 will retire on the afternoon of the last day of the month in which they attain the age of 60 years provided that this benefit will be available to them only as long as they continue to be in the Last Grade Service as defined in Rule 12(16A)"

Rule 60(a) prescribes 55 years as the age of retirement in respect of

government servants. However, Government servant shall be 6

permitted to continue beyond 55 years, with the sanction of the

Government on public grounds which must be recorded in writing. In

very special circumstances a Government servant may be retained in

service beyond 60 years of age. An exception has however been

made in respect of a specified category of government servants

under clause ` b' of Rule 60. Clause `b' of the Rule 60 provides that

officers who were in the last grade service as on 07.04.1970 would

retire on attaining the age of 60 years, provided they continued to be

in last grade service as defined in Rule 12(16A) of the Rules. Rule

12(16A) of Part-I KSR defines `Last Grade Service', which reads as

follows :-

[16(A) Last Grade Service - "Last Grade Service" means service in any post included in the Kerala Last Grade Service constituted by the Special Rules for the Kerala Last Grade Service, published under G.O. (P) No.82 Public (Rules) Department, dated the 8th March, 1966, in Part-I of the Kerala Gazette No.14 dated the 5th April, 1966, as amended from time to time, and includes service in any post declared by the Government to be a post in the Last Grade Service]

Therefore, in order to get benefit of Rule 60(b) two conditions have to

be satisfied. The first condition is that the government servant

concerned must have been in last grade service as on 07.04.1970

and the second condition is that the benefit of Clause 'b' would be 7

available only as long as such person continues to be in the last

grade service as defined in Rule 12 (16A) of the rules.

10. Let us examine why this benefit has been extended to a

specified category of government servants, i.e., "Officers in the Last

Grade Service" as on 7th April, 1970. Certain categories of posts

have been included in the Kerala Last Grade Service by the State of

Kerala in exercise of the powers conferred by the proviso to article

309 of the Constitution of India vide Notification GO(P)No.82/66/PD

dated 8th March, 1966 called `special rules' for the Kerala Last Grade

Service. Rule 1 of the special rules contain various categories of

posts which inter alia include any other post in the Last Grade

Service as defined in Clause 16A of Rule 12 in Part-I KSR and who

has not been included in any other service.

11. Prior to 07.04.1970 government servants who were in last

grade service were entitled to higher age of superannuation of 60

years, however with effect from 07.04.1970 they were brought on par

with other government servants with the result that they had to retire

on attaining the age of superannuation of 55 years. Government felt

it was necessary to protect them and hence Clause `b' was

introduced in Rule 60 giving them, the benefit of continuance in 8

service, till they attained the age of 60 years. Normal age of

superannuation in a government service is 55 years. Evidently, the

said clause was introduced by way of exception to Clause `a' of Rule

60 to protect their right to continue up to 60 years of age. The benefit

of exception clause is, therefore, available only to a specified

category of employees who were in last grade service as defined in

Rule 12(16A) of the Rules. Rule 60(a) stipulates the age of retirement

of government servants as 55 years but an exception has been

carved out to a specified category of government servants but for that

they also would have fallen in Rule 60(a). By judicial interpretation

we cannot enlarge the scope of an exception clause, which is meant

for a specified category of government employees.

12. Exception clause, is normally, part of the enacting

section, unlike a proviso which follows an enacting part. Crawford's

interpretation of Laws (1989) page 128, speaks of exception as

follows:-

The exception, however, operates to affirm the operation, of the Statute to all cases not excepted and excludes all other exceptions; that is, it exempts something which would otherwise fall within the general words of the Statute".

13. It is trite law that an exception clause has to be strictly

interpreted and cannot be assumed but be proved. Exception clause 9

is always subject to the rule of construction and in case of doubt, it

must befriend the general provision and disfavour the exception. If

any category of person claims exception from the operation of the

statute it must establish that it comes within the exception.

14. The respondent has not produced any materials before us

to show that the post he was holding i.e., full time menial in an aided

school was included in the categories of posts in the special rules for

last grade service. Further, the respondent has to show that he

continued to be in the last grade service as defined in Rule 12(16A)

of the Rules as on 07.04.1970. Respondent has not produced any

materials either before the High Court or before this Court to establish

that the service of full time menial in an aided school as on

07.04.1970, has been saved by Clause (b) of Rule 60 Part-I KSR.

15. Rule 2 of Chapter 1 KSR says subject to the provisions of

Rule 3, rules in Parts I and II apply to every person in the whole time

employment of the government subject to certain exceptions. No

materials have been produced before us to show that the aided

school service would fall under the above mentioned provisions, or in

the Last Grade Service as defined under Rule 12(16A) of the Rules. 10

16. Part-III KSR deals with pension. Chapter 2 of that Part

deals with "qualifying service". Rule 14 E of the above mentioned

Rules says that service in an aided school put in by government

employees prior to any other government service qualify for pension.

If the intention of the rule making authority was to give the benefit of

continuous service of 60 years of age for those who were in aided

school service then the same would have been specifically provided

in the rules. Aided school service prior to government service is

reckoned as qualifying years of service only for calculating pension

not for continuity of service up to 60 years of age. Rule 29(b) Part III

is also, not applicable to the facts of the case, since in this case we

are concerned with the question whether the respondent falls within

the exception clause (b) of Rule 60. Respondent's prior service in an

aided school, we are informed has already been reckoned for the

purpose of calculating pension but the period he has served from 55

years of age to 60 years of age on the basis of court's order cannot

be reckoned for the purpose of pension and other service benefits

since he was not legally entitled to get the benefit of Rule 60(b) Part-I

KSR. However, salary if any paid to the respondent for the above

period shall not be recovered.

11

17. For the above mentioned reasons, we are inclined to

allow this appeal and set aside the judgment of the Kerala High Court

and uphold the order passed by the Department E-49227 of 2001.

....................................J. (DALVEER BHANDARI)

.....................................J. (K.S. RADHAKRISHNAN)

New Delhi;

May 11, 2010