# THE !!'TATE OF MYSORE v. PADMANABHACHAR\'A ETC

- **Citation:** [1966] 1 S.C.R. 994
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Case number:** CIVIL ArrEL!.ATF JURISDICTION: Civil Appeal No. 447 of 1963
- **Bench:** P. B. Ga.Jendragadkar, K. N. Wanchoo, M. HIDAYATuLLAH, J. C. SHAii, S. 1\1. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-tate-of-mysore-v-padmanabhachar-a-etc-3675
- **Pages:** 7

## Headnote

Mysore Service Regulations, rule :294(a) note 4--Scopc-Consritution
of Jndia-Prol'i'io to Art. 209--Sc:vpe of.
The respondent, who was a trained te"chcr, completed the age or 55
years on February 3, 1958, and was ordered to be retired from service
from that date on the ground of superannuation.
He thereupon challenged
the validity of the order by filing a writ petition in the High Court •nd
contended that rule 294(a) of the Mysore Scn·icc Regulations-which
prescribed •he age of retirement-having been amended m April 1955,
1he normal age of supe.rannl?:ltion v.·as fixed at 58 instead of 55 years.
A
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On behalf of th~ appellant State it was contended (i) that even after
the amendment of rule 294(a) in 1955, the age of superannuation in the
case of trained teachers continued to be 55 ye.1rs though it "'as open
D
to the State 10 retain thcni up10 the ~gc of 58 y..:ars if they were fit and
efficient; an<l (ii) that in any event a notification of the Govcrno:- under
Article 309 of the Con')titution issued on
~larch 25,
l 959,
valH.L1tcd
the action taken in retiring the respondent and others upon their attaining
the age of 55 years.
The High Court r'jected both these contentions
anJ aUov:ed the petition.
On appeal this Courl.
E
1-lELD: (i) The respondent \\·as entitled to continue in servi;.;c upto
the. age of 58 years and not bl! retircJ at the age of 55 years in view of
the exception c::i.n•cd out by note 4 in 1hc general provision roniained
in rule 294(a). [998 HJ
Under r. 294( I) as it was before April 29, 1955, the normal age of
retiren1ent \vas 55 years for all including trained teachers and it \\·as for
F
the Government to give an f!Xtension on the. ground of fitness.
But
after note 4 was added to n1le 294(a). the position \\.'ith respect to trained
teachers was changed and they 1,1:cre norn1.:dly entitled to .-:ontinuc in
scr\·icc till the age of 58 years unless the Go\·cmmcnt came to rhe con~
clusion that they did not have a good record of service or \i.·c:-e not uptei
the mark. [998 BJ
(ii) The notification of ;o.iarch 29, 1959 cannot be said to be a rule
G
\\·ithin the meaning of the proviso 10 1\rt. 309 for regulating the recruitment and conditions of ser\'ice of persons appointed to the services anJ
posts in connection \\"ith the affairs of the State .. All 1hat .the !'lotificat_ion
or rule docs is to sav that the respondents having been invalidly rc11red
should be deemed lo have been validly retired from service on superannuation. It y.,·oulJ, if given effect to, contravene Art. 311 of the Constitution.
such a rule cannot he a rule contemplated under the proviso to An. 309.
[999HJ
H
CIVIL ArrEL!.ATF JURISDICTION: Civil Appeal No. 447 of
1963.
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STATE v. PADMANABHACHARYA (Wanchoo, !.)
995
A
Appeal by special leave from the judgment arid order dated
Aprll, 19, 1960 of the Punjab High Court in Letters
Patent
Appeal No. 128 of 1960.
B
c
Gopal Singh, for the appellant.
K. R. Chaudhuri, for respondent No. 1.
0. P. Malhotra and R. N. Sachthey, for respondent No. 7
and 7.

## Text

THE !!'TATE OF MYSORE
v.
PADMANABHACHAR\'A ETC.
[P. B. GA.JENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATuLLAH, J. C. SHAii, AND S. 1\1. SIKRI, JJ.]
Mysore Service Regulations, rule :294(a) note 4--Scopc-Consritution
of Jndia-Prol'i'io to Art. 209--Sc:vpe of.
The respondent, who was a trained te"chcr, completed the age or 55
years on February 3, 1958, and was ordered to be retired from service
from that date on the ground of superannuation.
He thereupon challenged
the validity of the order by filing a writ petition in the High Court •nd
contended that rule 294(a) of the Mysore Scn·icc Regulations-which
prescribed •he age of retirement-having been amended m April 1955,
1he normal age of supe.rannl?:ltion v.·as fixed at 58 instead of 55 years.
A
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On behalf of th~ appellant State it was contended (i) that even after
the amendment of rule 294(a) in 1955, the age of superannuation in the
case of trained teachers continued to be 55 ye.1rs though it "'as open
D
to the State 10 retain thcni up10 the ~gc of 58 y..:ars if they were fit and
efficient; an<l (ii) that in any event a notification of the Govcrno:- under
Article 309 of the Con')titution issued on
~larch 25,
l 959,
valH.L1tcd
the action taken in retiring the respondent and others upon their attaining
the age of 55 years.
The High Court r'jected both these contentions
anJ aUov:ed the petition.
On appeal this Courl.
E
1-lELD: (i) The respondent \\·as entitled to continue in servi;.;c upto
the. age of 58 years and not bl! retircJ at the age of 55 years in view of
the exception c::i.n•cd out by note 4 in 1hc general provision roniained
in rule 294(a). [998 HJ
Under r. 294( I) as it was before April 29, 1955, the normal age of
retiren1ent \vas 55 years for all including trained teachers and it \\·as for
F
the Government to give an f!Xtension on the. ground of fitness.
But
after note 4 was added to n1le 294(a). the position \\.'ith respect to trained
teachers was changed and they 1,1:cre norn1.:dly entitled to .-:ontinuc in
scr\·icc till the age of 58 years unless the Go\·cmmcnt came to rhe con~
clusion that they did not have a good record of service or \i.·c:-e not uptei
the mark. [998 BJ
(ii) The notification of ;o.iarch 29, 1959 cannot be said to be a rule
G
\\·ithin the meaning of the proviso 10 1\rt. 309 for regulating the recruitment and conditions of ser\'ice of persons appointed to the services anJ
posts in connection \\"ith the affairs of the State .. All 1hat .the !'lotificat_ion
or rule docs is to sav that the respondents having been invalidly rc11red
should be deemed lo have been validly retired from service on superannuation. It y.,·oulJ, if given effect to, contravene Art. 311 of the Constitution.
such a rule cannot he a rule contemplated under the proviso to An. 309.
[999HJ
H
CIVIL ArrEL!.ATF JURISDICTION: Civil Appeal No. 447 of
1963.
•
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•
STATE v. PADMANABHACHARYA (Wanchoo, !.)
995
A
Appeal by special leave from the judgment arid order dated
Aprll, 19, 1960 of the Punjab High Court in Letters
Patent
Appeal No. 128 of 1960.
B
c
Gopal Singh, for the appellant.
K. R. Chaudhuri, for respondent No. 1.
0. P. Malhotra and R. N. Sachthey, for respondent No. 7
and 7.
The Judgment of the Court was delivered by
Wimchoo J.
These appeals by special leave raise common
questions and will be dealt with together. We shall take the facts
of one appeal (No. C.A. 237) in order to understand the questions
in dlspute and it will be unnecessary to refer to the facts in other
cases for they are admittedly similar.
Nanjappa, respondent in C.A. 237 of 1964, was a trained
D
teacher and was headmaster of a Government Boys' Middle School.
He completed the age of 55 years on February 3, 1958 and was
ordered to be retired from service from that date on the ground of
superannuation.
Thereupon he filed a writ petition in the High
Court of Mysore, and the main contention raised on his behalf was
that r. 294 (a) of the Mysore Service Regulations (hereinafter
E
referred to as the Regulations), which prescribed the age of retirement of Government servants, had been amended with respect to
trained teachers from April 29, 1955, and in the case of such
teachers the normal age of superannuation was fixed at 5 8 years
instead of 55 years.
Consequently, the respondent could not be
F
retired on completion of the age of 55 years and the order by
which he was retired at that age as if he was superannuated was
illegal on the ground that it was against the rule applicable to
trained teachers.
This contention was traversed on behalf of tl1e State, which is
the appellant before us. It was admitted that there was some change
G in the rule relating to superannuation. Even so it was contended
that the age of superammation in the case of trained teachers remained the same, namely 55 years and it was open to the State to
retire trained teachers at the age of 55 years, though they could be
retained upto the age of 58 years if they were found fit and efficient. Besides reliance was also placed on behalf of the State on
H
a notification of the Governor issued on March 25, 1959 and it
was urged that that notification issued under Art. 309 of the Constitution validated the a~tion taken in retiring Nanjappa, and other~
996
SUPREME
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[ 1966] l S.C.R.
like him, on completion of the age of 55 years. It was not dis·
A
puled on behalf of the State that the sole reason for retiring Naajappa and others like him was that they had attained the age of
55 years and that there was nothing against their fitness or efficiency to justify the order of retirement.
Two principal points were thus raised before the High Court.
B
The first was with respect to the interpretation of r. 294 (a) with
particular reference to the amendment which was made on April
29, 1955. The second was with respect to the effect of the Governor's notification dated March 25, 1959. On the first point, the
High Court held that the change made in r. 294 on April 29, 1955
clearly provided that in the case of trained teachers the normal age c
of retirement would be 58 years, though the Government would
have the right to retire them earlier if they were neither fit nor
efficient. On the second point, the High Court held that the noti·
fication of March 25, 1959 could not be a rule within the meaning
of Art. 309 of the Constitution and could not have the effect of
validating what had been done earlier with respect to trained tea·
D
chers in contravention of the rule as to retirement. The appellant·
State then applied for leave to appeal to this Court which was re·
fused. It then came to this Court and was granted special leave;
and that is how the matter has come up before us.
We are of opinion that the High Court is right on both the
E
points urged before it. Rule 294 (a) of the Regulations which was
in force before the change was made on April 29, 1955, was in
these terms :-
"294 (a). A Government servant in superior or in·
ferior service, who has attained the age of fifty-five years,
may be required to retire, unless Government considers
him efficient, and permits him to remain in the service.
But as the premature retirement of an efficient Govern·
men! servant imposes a needless charge on the State, this
rule should be worked with discretion. And in cases in
which Jhe rule is enforced, a statement of the reasons for
enforcing it shall be placed on record."
There is no doubt that this rule as it was before April 29, 1955
provided that normal age of retirement was 55 years but it gave
discretion to Government to extend the service of efficient Govern·
ment servants beyond the age of 55 years.
In August 1954, however, the Government issued a notification
which applied to trained teachers in the Education Department. In
this notification it was directed that in the Education Department
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STATE v. PADMANABHACHARYA (Wanchoo, !.)
997
the age of retirement of trained teachers would generally be 58
years. With regard to teachers who were not trained and who were
otherwise efficient, the age of retirement would also be 58 years.
Teachers trained and untrained who had not got a good record of
service and who were not upto the mark would be retired at 55
years.
The relaxation regarding the age of retirement would be
in force only till such time as sufficient number of trained teachers
became available for employment.
The order also contained a
direction that a suitable note would be added to r. 294 (a) of the
Regulations.
In consequence of this order, necessary additions
were made to the Regulations by the then Rajpramukh of Mysore
and note 4 was added tor. 294 (a) in these terms:-
"The age of retirement of trained teachers in the
Education Department may generally be fifty-eight years,
and in the case of teachers who are not trained but who
are otherwise efficient the age of retirement may also be
fifty-eight years ........ .
"The Director of Public Instruction in Mysore is
empowered to order the retirement of teachers, trained
and untrained in the non-gazetted cadre who have not got
a good· record of service and who are not upto the mark,
at the age of fifty-five years, and in the case of gazetted
servants, with the concurrence of Government in each
case.
"The above provision shall be deemed to have come
into force with effect from the 20th August, 1954."
It is the effect of this addition tor. 294 (a) which falls to be coniidered bef9re us. We shall in the present appeals confine ourselves
to the case of trained teachers for the respondents before us are
admittedly all trained teachers. What we say here will not necessarily apply to teachers who are not trained.
So far as trained
teachers are concerned there is no doubt that note 4 carved out an
exception to r. 294 (a) which provides that the normal age of
retirement is 55 years and it is for the Government to decide whether to grant extensions to persons after they completed 55 years
and this grant of extension was on the basis of such persons remaining efficient in the opinion of Government after the age of 55 years.
But note 4 made a change in that position so far as trained teachers
were concerned.
That change was that in the case of trained
teachers the normal age of retirement was to be 58 years.
The
latter part of the note however gave power to the Director of Public
Instruction to retire even trained teachers in the non-gazetted cadre
998
SUPREME
COURT
REPORTS
[1966] l S.C.R.
provided they had not a good record of service and were not upto
the mark. In such a case the Director had the power to retire them
at the age of 55 years if he was of the view that they had not a good
record of service and were no: upto the mark. Thus under r. 294
(a) as it was before April 29, 1955 the normal age of retirement
was 55 years for all including trained teachers and it was for the
Government to give ext.:nsion on the ground of fitness.
But after
note 4 was added to r. 294 (a), the position with respect to trained teachers was changed and trained teachers were normally entitled
to continue in service till the age of 58 years unless the Director or
the Government as the case may he, was of the opinion that they
had not a good record of service and were not upto the mark.
Therefore after the change made on April 29, 1955, trained teachers
could only be retired at the age of 55 y~ars if the Director of
Public Instruction or the Government, as the ca.se may be, came
to the conclusion that they had not a good record of service and
were not upto the mark. Therefore. before the respondents in the
present appeals could be retired at the age of 55 years, the Director of Public Instruction or the Government, as the case may be.
had to come to the conclu 1ion that they had not a good record of
service and were not upto the mark. If such a conclusion was not
arrived at, they would be entitled under note 4 to continue in
service upto the age of 58 years. It is not disputed on behalf of the
appellant that no such decision, namely, that the respondents had
not a good record of service and were not upto the mark, was
taken.
Stress is laid on the word "generally" appearing in the first part
or note 4. The presence of that word does not mean that the normal age of reti;ement is still 55 years. The reason why the word
"generally" is used in the earlier part of note 4 is to be found in the
latter part or the same note where power has been given to the
Director of Puh!ic Instruction to retire trained teachers at the ag~
of 55 years if they have not a good record of service and are not
upto the mark.
Because of that power it was necessary to use the
word "generally" in the earlier part of the note, as otherwise there
would be an indefeasible right in trained teachers to continue in
service upto the age of 58 years, even if they did not have a good
record of service and were not upto the mark.
In the circumstances, the respondent~ would be entitled to continue in service upto the age of 58 years and could not be retired
:it the age of 55 years in view of the exception carved out by note
4 in the general provision contained in r. 294(a). The contention
of the appellant in this connection must therefore be rejected.
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STATE v. PADMANABHACliARYA (Wanchoo, J.)
999
We now come to the notification dated March 25, 1959.
That
notification reads thus :-
"In exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India and with the ap·
proval of the Central Govermnent under the proviso to
sub-section (7) of section 115 of the States Reorganisation Act, 1956, (Central Act 37 of 1956), the Governor
of Mysore
is pleased
to make the following
rule,
namely:-
"Notwithstanding anything contained in note 4 to
Article 294 of the Mysore Service Regulations (Eighth
Edition), Government Servants who have been retired
from service on the attainment of the age of fifty-five,
during the period between 7th day of June 1957 and the
28th day of October 1958 shall be deemed to have been
validly retired from service on superannuation."
W c are of opinion that such a rule cannot be made under the
proviso to Art. 309 of the Constitution.
We are expressing no
opinion as to the power of the legislature to make a retrospective
provision under Art. 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public
service and posts in connection with the affairs of the Union or of
any State by passing Acts under Art. 309 of the Constitution read
with item 70 of List I of the Seventh Schedule or item 41 of List
II of the Seventh Schedule.
The present rule has been made by
the Governor under the proviso to Art. 309.
That proviso lays
down that it shall be competent for the Governor or such person
as he may direct in the case of services and posts in connection
with lhe affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such
services and posts until provision in that behalf is made by or
under an Act by the appropriate legislature.
Under the proviso
the Governor has the power to make rules regulating the recruitment and conditions of service of persons appointed to such
services and posts in connection with the affairs of the State.
The
question is whether the notification of March 25, 1959 can be
said to be such a rule.
We are of opinion that this notification
cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in
connection ',Vith the affairs of the State.
All that the rule does is
to say in so many words that certain persons who had been, in view
of our decision on the first point, invalidly retired should be
•
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SUPREME COUllT REPORTS
[1966] I S.C.R.
deemed to have been validly retired from service on superannuation.
It would if given effect contravene Art. 311 of the Constitution.
Such a rule in our opinion is not a rule contemplated
under th.e proviso to Art. 309. Under the proviso the Governor
can make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with
the affairs of the State.
But all that this notification or rule does
is to say that certain persons who had been v.TOngly retired must
be treated to have been rightly retired.
This power of validating
A
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an order which was invalid when it was made does not in our
opinion flow from the power conferred on the Governor to make
rules regulating recruitment and conditions of service of persons
appointed to services and posts in connection with the affairs of the
State. It i.s cet\ainly not a rule regulating recruitment of such
persons; nor can it be said to be a rule regulating conditions of
services of such persons.
The rules relating to recruitment and
conditions of service contemplated by the proviso to Art. 309 are
general in operation, though they may be applied to a particular
class of Government servants. But what this notification or rnle D
does is to select certain Government servants who had been . illegally required to retire and to say that even if the retirement had
been illegal, that retirement should be deemed to have been properly and lawfully made.
We are of opinion that such a declaration made by the Governor-and that is all that the notification
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or the rule does-cannot in any sense be regarded as a rule made
under the proviso to Art. 309 governing the conditions of service
of persons appointed to services and posts in connection with the
affairs of the State.
In this view of the matter it is not necessary
to decide whether a rule of this kind which is purely retrospective
could be made as a rule governing conditions of service of persons
appointed in connection with the affairs of the State.
F
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The appeals therefore fail and are hereby dismissed.
The
/
respondents will get their costs from the appellant.
Tliere will
be one hearing fee.
Appeals dismissed.
G