Somnath Iyer, J.
(1) The petitioner in this case was a Senior Professor of Tharka in the Government Sanskrit College at Bangalore. On April 15, 1957, the Principal of that College issued a memo intimating him that he had been relieved of his duties as Professor with effect from April 14, 1957. On April 14, 1957 the petitioner had attained the age of 55 years.
(2) The petitioner contended that in accordance with the service condition which had been incorporated by the then Rajpramukh of Mysore in the Mysore Services Regulations by a Rule made under the proviso to Article 309 of the Constitution on April 29, 1955, he could be retired only after he attained the age of 58 years and not earlier.
(3) When the petitioner applied to the Principal of his College for a copy of the Order of the Director of Public Instruction who had directed his retirement, hew not granted that copy, but was informed by his Principal that his post had been ordered to be kept vacant.
(4) The petitioner thereupon made representations to the State Government against what he considered to be his premature retirement, and on April 28, 1958 and again on November 18, 1958 he was informed by the State Government that his case was under consideration. Having failed to obtain any redress from the State Government, the petitioner has made this application to us by which he requests that we should quash the order of retirement which was communicated to him by his Principal on April 16, 1957.
(5) Until August 20, 1954, under Article 294(a) of the Mysore Services Regulations which incorporated one of the conditions of service of Government servants in superior and inferior services, made by the Rajpramukh under Article 309 of the Constitution a Government servant who had attained the age of 55 years could have been required to retire unless Government considered him efficient and permitted him to remain in service.
(5-A) That Clause of Article 294 read:
294(a) ' A Government servant in Superior or Inferior 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 Government servant imposes a needless charge on the state, this Rule should be worked with discretion. And in cases in which the rule is enforced, a statement of the reasons for enforcing it shall be placed on record'.
* * * * *
(6) By notification issued by the State Government on August 20, 1954, the age of retirement of 'trained teachers' was specified to be fifty-eight years.
(6a) That notification reads:
'Order No. E. 6244-54/Edn. 80-54-2 dated, Bangalore, the 20th August 1954.
After consideration of all aspects of the question, it is directed that in the education Department, the age of retirement of trained teachers may generally be fifty-eight years. With regard to teachers who are not trained, but who are otherwise efficient the age of retirement may also be fifty-eight years. Teachers trained and untrained, who have not got a good record of service and who are not upto the mark will retire at fifty-five years. The relaxation regarding the age of retirement will be in force only till such time as sufficient number of trained teachers become available for employment.
(b) Necessary action will be taken in the Finance Department to issue suitable note to Article 294(c) of M.S.R. Sd/- B.S. Hanuman, for Education Secretary to Government of Mysore.
(7) Thereafter the direction contained in the aforesaid notification became the subject- matter of a Rule enacted by the Governor under the proviso to Article 309.
(7a) That Rule reads:
'In exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution of India, the Rajpramukh of Mysore is pleased to make the following further amendment to the Mysore Services Regulations namely :
In the said regulations in Clause (c) of Article 294 for the existing Note 4, the following note shall be substituted namely :
Note 4: 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 above concession may also be extended to categories of appointment such as technical teachers handling agricultural and practical instruction classes, pandits, moulvis, music teachers, sewing mistresses, drill instructors etc., for whom there is no teacher training course, and to the Range Inspectors of Schools and Office Assistants and Wardens of Government Hostels who are also teachers in every sense and have been only posted as Inspectors or Office Assistants due to their experience and ability, and to music teachers, drill instructors and teachers of other special subjects, Assistant Professors, etc., in the Sanskrit College at Bangalore and Mysore and Head Masters of High Schools.
The Director of Public Instruction in Mysore, is empowered to order the retirement of teachers, trained and untrained in the non-gazette 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 provisions shall be deemed to have come into force with effect from the 20th August 1954.'
(8) Since the petitioner was a Professor in the Sanskrit College at Bangalore to which express reference was made in this rule enacted by the then Rajapramukh, according to this rule, his age of retirement has to be regarded as having been fixed as fifty-eight years.
(9) This rule makes it clear that all those trained teachers enumerated in this rule made by the Rajpramukh would have been generally entitled to continue in service until they attained the age of fifty-eight years, unless the Director of Public Instruction in Mysore, ordered their retirement on the ground they had no good record of service or on the ground that they were not up to the mark, in which event it was open to the Director to order their retirement at the age of fifty-five years.
(10) It is asserted by the petitioner that there was no order made by the Director in this case that he had no good record of service or that he was not up to the mark. Nor did Mr. Assistant Advocate General make any attempt to defect the impugned order in this case on the ground that the petitioner did not have a good record of service or that he was not up to the mark. It is not contended on behalf of the respondent that the petitioner did not have a good record of service or that he was not up to the mark.
(11) In those circumstances, what was applicable to the petitioner was the earlier part of the rule enacted by the then Rajapramukh appearing as note 4 under Article 294 of the Mysore Service Regulations.
(12) The construction which the petitioner asks us to place upon that rule is that the petitioner had a right to continue in service untill he attained the age of fifty-eight years since that rule was admittedly applicable to him and since the retirement of the petitioner was not ordered by the Director of Public Instruction in the exercise of the power conferred on him by the third paragraph of that rule.
(13) Mr. Assistant Advocate General, however, strenuously urged that the rule enacted by the then Rajpramukh did not confer any right on the petitioner to continue in service, but only bestowed discretion on the appointing authority or the Director of Public Instruction to retain the petitioner in service even after he attained the age of fifty-five years if it or he considered it necessary of proper to do so.
(14) The further argument addressed before us was that what was applicable to the petitioner's case is Clause (a) of Article 294 of the Mysore Services Regulations under which the Government had unfettered power to direct the retirement of a Government servant when he attained the age of fifty-five years and that note 4 appearing under that Article did not to any extent deprive the State Government of that power which continued to be available to the State even after the Rajpramukh the Rule referred to above.
(15) Now it is plain, and that position is not seriously contested by Mr. Assistant Advocate General, that the determination of the age at which a Government servant should retire is a condition of service.
(16) But what is urged before us by Mr. Assistant Advocate General is that the condition of service is so far as it relates to the retirement of the petitioner in this case is not note 4 appearing under Article 294, but Clause (a) of that Article in the Mysore Services Regulations.
(17) If this contention can be accepted it would follow that the retirement of the petitioner was not made in transgression of any condition of service applicable to the petitioner.
(18) The question which therefore arises is what was the condition of service applicable to the petitioner in regard to his retirement, and whether Clause (a) of Article 294 of the Mysore Services Regulations incorporates that condition of service or whether that condition of service is embodied in the Rule made by the Rajpramukh of April 29, 1955.
(19) I am of opinion that the condition of service applicable to the petitioner in regard to his retirement is what is found in the Rule enacted by the then Rajpramukh on April 29, 1955. It should be remembered that although Clause (a) of Article 294 of the Mysore Services Regulations generally directed that all Government servants who have attained the age of fifty-five years may be required to retire, an exception was made by then Rajpramukh by the enactment of a rule in the case of trained teachers and in the case of all those others who were enumerated in the rule enacted by the then Rajpramukh of whom the petitioner was one.
(20) The position, therefore, after the then Rajpramukh enacted the rule on April 29, 1955, was that Clause (a) of Article 294 in respect of all those persons specified in that rule ceased to be applicable to those persons, and what was applicable to them was the rule enacted by the then Rajpramukh. The consequence of the substitution of this rule for Clause (a) of Article 294 in the case of those persons who were specified in the Rajpramukh's rule was that the age of retirement in the case of all those persons was varied from fifty-five years to fifty-eight years.
(21) But when the petitioner was ordered to retire, he had only attained fifty-five years of age. The question is whether what order was one which was within the competence of the Director of Public Instruction who made that order.
(22) On behalf of the petitioner the argument advanced is that on a true construction of the Rule enacted by the Rajpramukh, the petitioner was entitled as of right to remain in service until he attained fifty-eight years of age.
(23) To this contention, Mr. Assistant Advocate General has two answers. The first of them is that the petitioner was not as of right entitled to continue in service till he attained the age of fifty-eight years, after he attained the age of fifty-five years.
(24) To the extent this argument depended upon Article 294(a) of the Mysore Services Regulations, it must fail for the reason I have already mentioned.
(25) But Mr. Assistant Advocate General asks us to hold that even the rule enacted by the then Rajpramukh did nothing more than merely to confer discretion on the Director of Public Instruction to continue a person to whom that rule was applicable in service after he attained the age of fifty-five years, and also conferred power on the Director of Public Instruction to retire him even if he was efficient and had a good record of service.
(26) Mr. Assistant Advocate General depends upon the words 'the age of retirement of trained teachers in the Education Department may generally be fifty-eight years' with which the rule enacted by the then Rajpramukh begins.
(27) The argument which Mr. Assistant Advocate General constructed rested upon the words 'may' and 'generally' occurring in this part of the rule, and sustenance for this contention was attempted to be drawn by a pronouncement of their Lordships of the Supreme Court in Kailash Chandra v. Union of India, : (1961)IILLJ639SC .
(28) Before referring to this pronouncement which, in my opinion, has no application to the present case, it should be pointed out that the word 'may' on which Mr. Assistant Advocate General relies also occurs in Clause (a) of Article 294, and in the context in which that word occurs both in Article 294(a) as well as in the Rule enacted by the then Rajpramukh, that word, in my opinion, does not afford assistance to the argument that the Government servant has no right to continue in service until he attained the age of fifty-five years or fifty-eight years as the case may be. If Article 294(a) and the rule made by the Rajpramukh provide that a Government servant may be retired at the age of fifty-five years, it is obvious that he should not be retired until he attains that age, unless he is ordered to retire earlier under the provisions of the appearing under Article 285 of the Mysore Civil Services Rules, 1958.
The conferment of that power in express terms under the note appearing Article 285 is itself indicative of the fact that otherwise the Government service would have the right to continue in service until he attained the age of fifty-five years. In my opinion, we should understand the rule of the Rajpramukh in the same way. Any other interpretation would lead to the extremely strange consequence that the Government in cases to which Article 294(a) applies would have the power even in cases not falling within the note appearing under Article 285 of the Mysore Civil Services Rules, 1958 to direct a Government servant to retire without the assignment of any reason, even before he attained the age of fifty-five years.
(29) It seems to me that just as in the case of Government servants governed by Clause (a) of Article 294 who have a right to continue in service until they attain the age of fifty-five years, those Government servants who are enumerated in the rule enacted by the then Rajpramukh on April 29, 1955 are equally entitled to remain in service until they attain the age of fifty-eight years, unless of course their retirement is ordered by the Director of Public Instruction on the ground of inefficiency or on the ground that they have an adverse official record.
(30) It is impossible to place a construction upon the Rule enacted by the Rajpramukh different from that which has to be necessarily placed upon Clause (a) of Article 294 of the Mysore Services Regulations.
(31) The words 'generally' occurring in the rule enacted by the then Rajpramukh to my mind, far from supporting the contention urged by Mr. Assistant Advocate General, entirely negatives it. The ordinary dictionary meaning of the word 'generally' is 'as a rule'. If by a rule made by the then Rajpramukh, he directed that generally the trained teachers shall be retired when they attain the age of fifty-eight years, it is manifest that the requirement of the rule was that they shall be continued in service untill they attain the age of fifty-eight years.
(32) Now paragraph 3 of the rule reinforces to a great extent this interpretation. That paragraph, as already mentioned, empowers the Director of Public Instruction to retire those teachers referred to in the earlier part of the rule even before they attain the age of fifty-eight years if they had an adverse official record of they were not efficient.
(33) If as contended by Mr. Assistant Advocate General, it was not obligatory on the part of the Director of Public Instruction to continue those teachers in service until they attain the age of fifty-eight years, and he had the power in spite of the provision contained in the rule to order the retirement of those teachers even before they attain that age, why should power be expressly conferred on the Director by paragraph 3 of the rule to order the retirement only in cases where a teacher was inefficient or had an adverse official record. The provision in paragraph 3 of the rule would then become a superfluous provision expressly conferring power on the Director which he already had. A construction which would render any part of the rule superlative should in my opinion, be discarded.
(34) The view that I have taken that the word 'generally' occurring in the opening part of the rule should be interpreted as meaning as a general rule is supported by authority in Re Phillips, Ex parte Barton, (1900) 2 QB 329.
(35) Sub-section (1) of section 4 of the Bankruptcy Act, 1883 which required to be interpreted in that case provided that a debtor commits an act of bankruptcy if (a) 'he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally'. It was found that assignment by the debtor in that case was for the benefit of his trade creditors and not the benefit of all his creditors. The question was whether the word 'generally' occurring in that sub-section referred to the entire body of the creditors or whether it had reference to only a few of them.
(36) Darling, J. at page 332 of the report expressed the view that the words 'creditors generally' meant all the creditors and not 'some creditors'. This is what he said:
'There is no direct authority on the matter, but our decision is, I think, consistent with the reasoning in Ex parte Glen, (1867) 2 Ch A 670 and Tomlin v. Dutton, (1868) 3 QB 466. In (1868) 3 QB 466 at page 468 Blackburn, J. said that in (1867) 2 Ch A 670 the ground of the decision was that section 192 of the Bankruptcy Act 1861, by 'creditors' meant 'all the creditors whether joint or separate'. If the word 'creditors' standing alone means 'all the creditors whether joint or seperate', the word 'generally' in section 4 of the Act of 1883 certainly does not limit the meaning of the word 'creditors'. The exression 'creditors generally' must either mean 'some creditors' or 'all the creditors'. In my view, whatever it means it does not mean 'some'. I therefore, prefer to say that it means 'all''.
(37) If, therefore, the Rajpramukh's rule directed that the age of retirement of trained teachers may generally be fifty-eight years, it is clear that what that rule directed was that all the trained teacher should be retired only when they attain the age of fifty-eight years, and that it was not oen to the Director of Public Instruction to select only some teachers for retirement at a later stage or direct the retirement of others at varying ages between fifty-five and fifty-eight.
(38) If this is the interpretation to be placed uon the rule made by the then Rajpramukh, it follows that every one of those teachers and Government servants specified in that rule had the right to continue in service until he attained the age of fifty-eight years, unless he had an adverse official record or was inefficient in which event it would have been open to the Director of the Public Instruction to order his retirement as soon as he attained the age of fifty-five years.
(39) But Mr. Assistant Advocate General asks me to take a different view by reason of the pronouncement of their Lordships of the Supreme Court in : (1961)IILLJ639SC .
(40) The rule which was interpreted by their Lordships of the Supreme Court was Rule 2046(2) (a) of the Railway Establishment Code which read :
'A ministerial servant who is not governed by sub-clause (b) may be required to retire at the age of fifty-five years but should ordinarily be retained in service in the if the continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority'.
On page 1348 of the report Das Gupta, J. who spoke for the Court observed :
'Reading these words without the word 'ordinarily' we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of fifty-five years or to create in the servant any right to continue beyond the age of fifty-five years if he continues to be efficient, they are much more appropriate to express the intention that as soon as the age of fifty-five years is reached the appropriate authority has the right to require the servant to retire but that between the age of fifty-five years and 60 years the appropriate authority is given the option to retain the servant but is not bound to do so. This intention is made even more clear and beyond doubt by the use of the word 'ordinarily'. 'Ordinarily' means 'in the large majority of cases but not invariably'. This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of fifty-five years even if he continues to be efficient. The intention of the second Clause therefore clearly is that while under the first Clause the appropriate authority has the right to retire the servant who falls within Clause (a) as soon as he attains the age of fifty-five years, it will, at that stage, consider where or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding where or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he 'should' retain the servant; but what are special circumstances is left entirely to the authority's decision. Thus after the age of fifty-five years is reached by the servant the authority has to exercise its discretion where or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient'.
(41) It should be pointed out that this pronouncement of their Lordships of the Supreme Court can have no application to the case before us since the language of the rule enacted by the Rajpramukh in this case is not similar to the language of the rule which their Lordships of the Supreme Court interpreted. Whereas in the rule interpreted by their Lordships the word 'ordinarily' on which their Lordships decision rested occurred, the corresponding word occurring in the rule enacted by the Rajpramukh is the word 'generally'. It is plain that the word 'generally' has a connotation entirely distinct from the word 'ordinarily'. The word generally means as a general rule, whereas the word 'ordinarily', as pointed out by their Lordships of the Supreme Court, means 'in the large majority of cases but not invariably'.
(42) Secondly, there was not in the rule which their Lordships of the Supreme Court interpreted a provision similar to the one contained in paragraph 3 of the Rajpramukh's rule.
(43) If Rule 2046 (2) (a) of the Railway Establishment Code had contained a provision similar to what is contained in paragraph 3 of the Rajpramukh's Rule, it would not be easy to predicate what view their Lordships of the Supreme Court would have taken in regard to the interpretation to be placed upon that rule.
(44) If the third paragraph of the Rajpramukh's rule specifies the only cases in which persons referred to in that rule could be required to retire even before they attain the age of fifty-eight years, it is abundantly clear that in no other case could that order be made.
(45) The rule of the Railway Establishment Code which was the subject matter of interpretation in the decision of the Supreme Court being entirely different from the rule which arises for interpretation in this case, especially inasmuch as it did not contain a provision similar to that contained in paragraph 3 of the Rajpramukh's rule, Mr. Assistant Advocate General can hardly derive any sustenance for his argument from the pronouncement of the Supreme Court.
(46) There is yet another difficulty in the way of Mr. Assistant Advocate General placing any reliance on that pronouncement. On page 1349 of the report, their Lordships of the Supreme Court made it very clear that even under the rule of the Railway Establishment Code, even though the railway servant had no right to continue to remain in service after he attained the age of fifty-five years, he was entitled, nevertheless, to remain in service until he attained the age of sixty years if there were no special circumstances the existence or otherwise of which had to be decided by the appropriate authority. The meaning of this observation of their Lordships of the Supreme Court is that even in cases governed by rule 2046(2) (a) of the Railway Establishment Code, if the appropriate authority did not come to a decision that there were special circumstances justifying the discontinuance in service of the railway servant, he 'should' be continued in service.
(47) Now in this case it is not claimed on behalf of the State Government or the Director of Public Instruction that any one at any stage came to the decision that apart inefficiency or adverse official record in the case of the petitioner neither of which existed there was any other special circumstances justifying the retirement of the petitioner when he attained the age of fifty-five years. If that was admittedly the position, even according to the pronouncement of their Lordships of the Supreme Court, the petitioner 'should' have been retained in service until he attained the age of fifty-eight years, and therefore had a right to insist upon his being continued in service until he attained that age.
(48) Mr. Gulur Srinivasa Rao appearing on behalf of the petitioner, however, pointed out to us that in Jai Ram v. Union of India, : AIR1954SC584 B. K. Mukherjea, J. (as he then was) speaking for the Court observed :
'We think that it is a possible view to take upon the language of this rule that a ministerial servant coming within its purview has normally the right to be retained in service till he reaches the age of sixty. This is conditional undoubtedly upon his continuing to be efficient. We may assume, therefore, for purposes of this case that the plaintiff had the right to continue in service till sixty and could not be retired before that except on the ground of inefficiency. But that by itself affords no solution of the question that requires consideration in the present case.'
(49) The rule to which Mukherjea, J. referred was Rule 56(b)(1) of the Fundamental Rules which was similar to Rule 2046(2) (a) of the Railway Establishment Code. The observations of Mukherjea, J. are undoubtedly in favour of the contention advanced by Mr. Gulur Srinivasa Rao.
(50) But it should be pointed out that in the later pronouncement of their Lordships of the Supreme Court in : (1961)IILLJ639SC , after referring to the observations of Mukherjea, J. it was observed :
'It would be wholly unreasonable however to consider this as a decision on the question of what this rule means.'
(51) However, that may be, it seems to mentioned that it would not be necessary for us to rest our interpretation of the rule enacted by the then Rajpramukh on April 29, 1955 on the view expressed by Mukherjea, J. in : AIR1954SC584 .
(52) The Rajpramukh's rule, as already pointed out, is not similar to either Rule 2046 (2) (a) of the Railway Establishment Code or Rule 56(b) (1) of the Fundamental rules. Its interpretation must rest upon its own language. The construction which we must place upon that rule having regard to its language and the purpose to be served by it is, that those persons specified in that rule had a right to continue in service until they attained the age of fifty-eight years, unless of course their retirement is ordered on the grounds specified in paragraph 3 of that rule.
(53) What I have said so far would lead to the result that the retirement of the petitioner which was ordered on April 16, 1957 cannot be defended.
(54) But Mr. Assistant Advocate General made two more attempts to defend it. The first of those attempts rested on a notification promulgated by the State Government on August 22, 1957 by which, according to Mr. Assistant Advocate General, the age of retirement was again determined as fifty-five years in supersession of what had been determined by the Rajpramukh on April 29, 1955.
(55) Now there are two ready and complete answers to this argument.
(56) The rule by which the age of retirement was increased to fifty-eight years was a rule enacted by the Rajpramukh in the exercise of his power under the proviso to Article 309. That being so, that rule could have been modified or amended only by the Rajpramukh by the enactment of another rule made under that Constitutional provision. It was not within the competence of the State Government by means of a notification promulgated by it which it did no August 22, 1957, to modify or amend a rule made by the Rajpramukh under the Constitution. The notification on which Mr. Assistant Advocate General depends, therefore, cannot be of any assistance to his argument.
(57) The second impediment in the way of the acceptance of his argument is that created by the proviso appearing under section 155(7) of the States Reorganisation Act.
(58) Under sub-section (1) of section 115 of the Act, the petitioner who was a Civil Servant in the service in the former State of Mysore became statutorily allotted to the new state of Mysore.
(59) That sub-section reads :
Section 115. Provisions relating to other Services. -- (1) 'Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of the Lieutenant -Governor or Chief Commissioner in any of the existing States of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State'.
Sub-section (7) reads :
(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State.
Provided that the condition of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.'
(60) The provision contained in the rule enacted by the Rajpramukh that the petitioner's age of retirement should be fifty-eight years is undoubtedly a condition of service applicable to his post, and that condition of service was created by a rule made under the Constitution by the then Rajpramukh before the petitioner was statutorily allotted to the new State of Mysore. After the petitioner became a civil servant of the State of Mysore on and from November, 1, 1956, it is clear that condition of service which was applicable to his post could not have been altered to his prejudice or disadvantage even by the enactment of a rule made by the Governor of the New State of Mysore without the previous approval of the Central Government.
(61) Mr. Assistant Advocate General very frankly stated that he was not in a position to assert that when on August 22, 1957 the State Government reduced the age of retirement to fifty-five years, that alteration in the condition of service applicable to the petitioner's post was made with the previous approval of the Central Government. No evidence has been produced before us that any such approval of the Central Government had been obtained.
(62) It was therefore entirely beyond the competence of the State Government to alter the age of retirement which had been properly fixed by the then Rajpramukh of Mysore under the Constitution.
(63) If the notification of the State Government made on August 22, 1957 cannot therefore deprive the petitioner of this right to continue in service until he reached the age of fifty-eight years, it would follow that the impugned order against which this application is directed has to be quashed.
(64) But Mr. Assistant Advocate General submitted to us that even if we should come to the conclusion that the impugned order was invalid, it would not be possible for us to quash it since that invalid order of retirement has since been validated by a rule made by the Governor of Mysore under proviso to Article 309 of the Constitution.
(65) That rule on which Mr. Assistant Advocate General depends was made by the Governor on March 25, 1959, and it reads:
'In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and with the approval of the Central Government under the proviso to sub-section (7) of section 115 of the States Reorganisation Act, 1956, (Central Act 37 of 1957) 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 years, during the period between the 7th day of June 1957 and the 28th day of October, 1958 shall be deemed to have been validly retired from service on superannuation.
Jaya Chamaraja Wadiyar,
Governor of Mysore.
By order and in the name of the Governor
of Mysore,
SD/-G. Mathias,
Secretary to Government,
Finance Department.
(66) In the first place this rule if it can be called a rule, cannot stand in the petitioner's way since he was retired not between the 7th day of June 1957 and the 28th day of October, 1958 but had been made to retire with effect from April 14, 1957 by an order made on April 16, 1957.
(67) Secondly, I am of the view that it was not within the competence of the Governor of the new State of Mysore to make in the form of a rule what is really an order validating a wrongful retirement which had been made in violation of the conditions of service applicable to the petitioner's post. This rule as it is styled, is, in my opinion, not really a rule, the enactment of which is authorised by proviso to Article 309 of the Constitution.
(68) Article 309 of the Constitution empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State.
(69) Then the proviso empowers the President or the Governor as the case may be, to make transitional rules regulating the recruitment to such services and posts and the conditions of services of persons appointed to such services and posts.
(70) Can it be said that the Governor in this case made a rule on March 25, 1959 regulating the recruitment to such services and posts or regulating the conditions of service of persons appointed to such services and posts? The Governor did neither, and what he did was to validate what had been invalidly done during the period referred to in his rule. What he did further was to make his rule have retroactive operation.
(71) Now it is clear from the language of Article 309 and from the purpose for which that Constitutional provision was enacted that the power conferred by the proviso to that Article on the Governor was to make rules so that until the appropriate Legislature made Legislation in what regard, recruitment to services and posts and the conditions of service of persons appointed to such services and posts may be regulated.
(72) The rule which the Governor made on March 25, 1959 has nothing to do with the recruitment to any service or post. The question is, is it one regulating the conditions of service of persons appointed to such services and posts.
(73) I am of opinion that the only rules which a Governor may make under the proviso to Article 309 are those generally regulating recruitment to a class of services or posts, and, rules generally regulating the construction of service of all persons appointed to each such class. In other words, the conditions of service which may be made by rules by the Governor are conditions of service generally applicable to every Civil servant in that class and not only to a named few.
(74) It is plain that it would not be open to the Governor to make a rule under that proviso regulating the conditions of service of only some of those persons appointed to such services and posts, unless those persons belong to a group classified on the basis of some intelligible principle having a rational relationship to the object underlying the proviso.
(75) It is incontestable that ordinarily rules made by the Governor under that proviso should be rules regulating the conditions of service of persons appointed to a particular class of posts or services. That was not what the Governor did in this case. He made no rule regulating the conditions of service of all Civil servants in a specified category. What he did was to select those Government servants who had been wrongfully required to retire and make a rule declaring that even if the retirement had been wrongfully made, those orders of retirement should be regarded as having been properly and lawfully made. It could not, in my opinion, be said that the declaration to that effect made by the Governor as was done in this case can in any sense be regarded as a rule made under the proviso to Article 309 ; nor can it be said that that declaration was within the competence of the Governor.
(76) The Constitution, to my mind, bestows, no such power on the Governor whose duty under the proviso to Article 309 is merely to make rules in so far as they relate to conditions of service, regulating the conditions of service of all persons appointed to a particular service or a particular post. What was done in this case besides being what is not authorised be the proviso, amounts manifestly to a hostile discrimination to which those persons against whom that rule was directed were subjected in violation of the provisions of Article 14 of the Constitution and amounted to an infraction of the fundamental right guaranteed by the Constitution.
(77) The further question whether the Governor had the competence to make a rule under the proviso to Article 309 retrospectively altering the conditions of service of a civil servant is again not free from difficulty. It would be reasonable to think that having regard to the language of that poviso and of the Article generally and the purpose to be subserved by the provisions of that Article, what the Governor could do without transgressing the recognised bounds of his power is to prospectively regulate the conditions of service and not to retrospectively regulate them.
(78) Mr. Assistant Advocate General, however, pressed us to hold that since the Governor functioning under the proviso to Article 309 has the same status as the Legislature which has been bestowed power to make laws under that Article and since the Legislature has undoubted power to make retrospective and retro-active legislation, the Governor also must be recognised as possessing similar powers.
(79) In support of that contention , Mr. Assistant Advocate General relied upon a decision of the High Court of Calcutta in Anil Nath De v. Collector of Central Excise, Calcutta, : AIR1958Cal407 in which Mukherji, J. pointed out that a temporary Government servant accepts as part of his conditions of service the Revised Leave Rules as from time to time made and modified and that he takes the risk of the amendments made in those Rules from time to time so long as those Rules or those amendments did not violate and provisions of the Constitution or any relevant statue. That was a case in which the question as to the power of the Governor to make retrospective rules did not arise for determination. The rule which was impugned in that case was really a rule which had been prospectively applied; nor do I understand the observation of Mukherji, J. as recognising the power of the Governor under the proviso to Article 309 to make retrospective rules impairing vested conditions of service.
(80) It is, however, unnecessary to pursue this discussion further since, in my opinion, the rule on which Mr. Assistant Advocate General depends is not a rule and not one which the Governor could have competently enacted under the proviso to Article 309. I therefore abstain from expressing any opinion on the further question which has been discussed before us about the power of the Governor under that proviso to make retrospective rules impairing vested rights under an existing condition of service.
(81) In the view that I take this application has to be allowed. The impugned order communicated to the petitioner by the Principal of the Sanskrit College, Bangalore, by means of his letter addressed to him of April 16, 1957 ordering him to retire with effect from April 14, 1957 has to be and is quashed.
(82) What remains to be decided is the form of the order which we should make in this case. When the petitioner was directed to retire from service in violation of the condition of service applicable to his post when he attained the age of fifty-five years, he had a right to continue in his post till he attained the age of fifty-eight years. But unfortunately for him he attained the age of fifty-eight years during the pendency of this application on April 14, 1960. It is therefore no longer possible for us to direct that the petitioner shall be reinstated in his post or continued in service. The only order that we may make, in my opinion, is to direct the payment to the petitioner of his salary and other emoluments for the period between April 14, 1957 and April 14, 1960 as if he was still occupying the post of the Professor of Tharka in the Sanskrit College, Bangalore, and to direct that the computation of his pension shall also be made on the basis that he retired only on April 14, 1960 and not on April 14, 1957. It is so ordered.
(83) The petitioner will be entitled to the costs of this application, the Advocate's fee being fixed at Rs.100/-.
Iqbal Husain, J.
(84) I agree.
(85) Application allowed.