K.K. Mathew, J.
1. The petitioners were Government servants and they held the posts mentioned in paragraph 1 of the affidavit in sup-port of the writ petition. They retired from service on the various dates mentioned in the same paragraph. By a series of orders passed by Government the age of compulsory retirement on superannuation of all categories of Government employees was raised to 58 years.
2. The contention of the petitioners originally was that the said orders fixed different dates for their commencement and that on account of it the petitioners were denied the right to continue in service until they completed the age of 58 years. The first order passed by Government is dated 31-1-1966 and it is marked Ext. P-1. In that order Government said that in view of the scarcity of medical personnel, doctors will be given extension of service upto the age of 58 years as a matter of course until the scarcity of doctors abates, reserving the right to terminate the service with one month's notice on either side. The second of the Government orders was passed on 5-3-1966. Ext. P-2 is a copy of that order. There it was ordered that the age of superannuation of District and Sessions Judges is raised from 55 to 58. The third order is dated 5-7-1966 and Ext. P-3 is a copy of it. By that order the age of superannuation of all teachers including Headmasters was raised to 58 with retrospective effect from 1-7-1966. Ext. P-4 is a copy of the next order passed by Government on 16-7-1966 with retrospective effect from 15-7-1966 raising the age of superannuation to 58 of the technical personnel shown in the schedule to the said order. Ext. P-5 is a copy of the order passed by Government dated 12-8-1966 with retrospective effect from 15-7-1966 raising the age of superannuation to 58 of all other Government employees not covered by the earlier orders.
3. The main argument of the petitioners was that raising the superannuation age by the orders in question passed from time to time and fixing different dales for their commencement is discriminatory, for the reason that for purposes of fixing the age of retirement, all government servants form a class and to treat one group in the class as different from the others would offend Articles 14 and Article 16(1) of the Constitution. They contended that the age of retirement on superannuation of all government servants should have been raised with effect from 31-1-1966, the date of Ext. P-1, and that raising the age of retirement by orders passed in instalments and fixing different dates For their commencement would be discriminatory. The prayers of the petitioners were for declaration that the benefit of the extended age of supperannuation should have been extended to them with effect from the date of Ext. P-1, for the issue of such orders or directions to the State Government as are necessary to give effect to the above declaration, to direct the Government to reinstate the petitioners, and for such other appropriate reliefs as are necessary.
4. Rule 60 (a), Part I, K. S. H. framed under Article 309 of the Constitution runs as follows:--
'Except as otherwise provided in these rules the date of compulsory retirement of an officer other than in last grade service is the date on 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.'
This was amended by a notification published in the Supplement to the Kerala Gazette dated 31-1-1967. The notification (Ext. P-13) reads:
'In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Kerala hereby makes the following amendments to the Kerala Service Rules, namely:-
C. S. No. 122 of 1967
In Part I of the said Rules, in Rule 60-
(1) for the figure '55' wherever it occurs, the figure '68' shall be substituted,
(ii) Sub-rule (d) shall be deleted;
(iii) The following notes shall be inserted below sub-rule (a) namely:
--Note. 1:-- The age of compulsory retirement of the categories of officers mentioned below has been fixed as 58 years from the dates noted against each. District and Sessions Judges. 5-3-1966 Teachers including
Headmasters 1-7-1966Other officers 16-7-1966 Note 2:- The officers may, after attaining the age of 55 years, voluntarily retire from service after giving three months' notice in writing to the appointing authorities. The appointing authorities may also require the officers to retire from service after they attain the age of 55 years on three months' notice in writing without assigning any reason.
The notification came into force after the writ petition was partly heard. On the basis of the notification suitable amendments have been made in the petition, The argument of the petitioners now, is that the Kerala Service Rules were avowedly passed to regulate the service conditions of the employees of the Government, that the age of superannuation is a condition of service, that it was the same for all classes of employees under the State except the Last grade servants, and that any alteration or variation of the rule raising the retirement age of the doctors alone with effect from 31-1-1966 to the exclusion of the other government servants was discriminatory, and a denial of equal opportunity to them in matters relating to employment under Article 16(1) of the Constitution. They also contended that fixing different dates in the cases of District and Sessions Judges and teachers was discriminatory.
5. One question for consideration in this case is whether the doctors were given an extension of service or whether their age of retirement was raised by Ext. P-1. Ext, P-1 order appears to be rather clear that doctors were only given an extension of the service under it, and the reason for that was the scarcity of doctors. It would appear that in the circumstances existing at that time the Government wanted to prevent the immediate retirement of the doctors in service who attained the age of 55 as it was thought difficult to get fresh experienced hands. Even assuming that it was by Ext. P-1 order that the age of retirement of doctors was raised, there is no case that the circumstances mentioned in Ext. P-1 were present in the case of the other government employees. It was, however, argued on behalf of the petitioners that the grounds for raising the age of compulsory retirement are common to all the employees of the State and so the age of superannuation of doctors alone should not have been raised by Ext. P-1, but that all other government employees being similarly situate, the age of retirement of them should also have been raised by that order. That a classification must be based upon an intelligible differentia and that the differentia must have reasonable relation to the object of the classification has been held in a number of cases. In Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 (544) the following passage from Budhan Chowdhry v. State of Bihar, AIR 1955 SC 191 was quoted:
'It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification, for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.'
In Vairavelu v. Sp. Dy. Collector, AIR 1965 SC 1017 at p. 1027 it was observed:
'Under Article 14 the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. It has been held in a series of decisions of this Court that the said classification shall pass two tests, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons and things left out of the group; and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question.'
The contention, that all classes of government servants should have been given the benefit of extended superannuation age from the date of Ext. P-1, and that there was no reason for excluding the petitioners from that order does not appear to me to be correct. That Government felt that there was scarcity of doctors and therefore, it was necessary to prevent immediate retirement of the doctors in service who had attained the age of 55 was a circumstance peculiar to the doctors, and therefore, assuming that Ext. P-1 should be considered as the operative order raising the age_ of superannuation of the doctors, it cannot be said that the petitioners were similarly situate with doctors, so as to entitle them to get the benefit of that order.
6. The learned Government Pleader submitted that Government thought only of extending the services of the doctors under Rule 60 of the K. S. R. in Ext. P-1 and so they did not by that order raise the retirement age of the doctors, and that it was only by Ext. P-4 order that the age of superannuation of the doctors was raised. If there was only an extension of the service of the doctors on grounds as mentioned in Rule 60 (a), Part I, K. S. R. by Ext. P-1, there is no substance in the petitioners' contention that they should also have been given the benefit of the order. The question of granting extension is a matter within the discretion of Government. I think, by Ext. P-1 Government granted only an extension of service to the doctors on the ground stated in it and I consider the ground slated in Ext. P-1 a public ground as envisaged in Rule 60 (a), and that instead of passing several orders stating the same ground, the Government passed a consolidated order applicable to all doctors.
7. The petitioners were retired because they attained the superannuation age under the then existing rule, and at the time they could possibly have no ground for any complaint. : was only by orders subsequently passed by Government that the age of superannuation of the classes of officers to which the petitioners belonged was attempted to be raised. Whether the petitioners who are not in service have any right to question the validity of Ext. P-13 amendment on the ground that they are discrimitiated in that it was not given retrospective affect from 31-1-1966 so far as they are concerned, is highly doubtful.
8. Quite apart from this, the petitioners can have no legal grievance because Ext. P-1 order, if construed as an order raising the age of retirement of the doctors, was inoperative. Rule 60 of Part I, K. S. R. as it stood before the amendment by Ext. P-13 notification was passed under the proviso to Article 309 of the Constitution. When a rule relating to the conditions of service of Government employees has been passed under the proviso to the Article, that rule will remain in force until altered or amended by another rule or statute passed under the Article. Ext. P-1 order passed by Government was an executive order. It was not a rule passed under the proviso to Article 309. In Nagarajan v. State of Mysore, AIR 1966 SC 1942 at p. 1948 the Supreme Court said that when a rule has been passed under the proviso to Article 309 it was not open to Government to modify or alter the rule by an executive order. It is one thing to say that if no rule has been passed under the proviso, the conditions of service of Government employees can be regulated by executive orders, but a totally different thing to say that even if a rule has been passed covering the subject, executive orders can be passed to modify or alter it. It was submitted that even if it be assumed that Government could not by an executive order have altered Rule 60 of the K. S. R. the order can be construed as a rule framed under the proviso to Article 309 by the Governor. The submission involves the assumption that an executive order passed by Government is same as a rule framed by the Governor under Article 309. There is distinction between a rule framed by the Governor under the proviso to Article 309 and an executive order passed by Government. Every order passed by Government is required to be expressed in the name of the Governor, but it does not follow that because the order is required to be experssed in the name of the Governor it can be considered to be a rule under the proviso to Article 309. The ruling of the Supreme Court in AIR 1966 SC 1942 at p. 1948 is clear that conditions of service of government employees can be prescribed either by rules famed under the proviso to Article 309 or in their absence by executive ordes. If there are no rules covering the subject, there is no objection in Government passing executive orders regulating it. Marshall, C. J., has observed in Gibbons v. Ogden, (1824-27) 6 L Ed. 23 at p. 72 that,
'All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical.'
From the fact that, absent statute it is the Governor who is to frame rules under the proviso to Article 309 laying down the conditions of service, it does not follow that an executive order passed by Government in the name of the Governor can be equated to a rule proceeding from the Governor under the proviso to Article 309. Mr. Suryanarayana Iyer said quoting the following observation in L. Hazari Mal v. I. T. Officer, AIR 1961 SC 200:
'This argument, however, loses point because the exercise of a power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. This principle is well settled.' that it is immaterial whether it was by an order passed in his executive capacity as head of the Government that the Governor has chosen to amend or alter Rule 60, that the form or the manner in which a measure is passed does not furnish the criterion to decide its validity, but the power, and that if the Governor has power under the proviso to Article 309 to alter the rule, it is immaterial that it was by an executive order of Government that the rule was purported to be amended. The form and the manner of passing a measure may be important in several contexts. I agree that if a person has got power to do a thing, he can justify the exercise of the power even if he said that he is exercising it under a provision which gives him no power to do it. But if the form and the manner in which a measure is to be passed is important -- and that is important here --then, the observance of the form and the manner is essential. The ruling of the Supreme Court in AIR 1966 SC 1942 maintains the distinction between an order passed by the Governor as the head of Government and a rule framed by him under the proviso to Article 309, for otherwise, the whole discussion by the court becomes pointless. Mr. Suryanarayana Iyer said that since the order prescribes a condition of service of government servants it can only be referred to the power of the Governor under the proviso to Article 309, and therefore, the order must be deemed to be a rule passed under the proviso to Article 309. As I have already said, it is open to Government to prescribe the conditions of service of government servants by executive orders in the absence of rules framed in that behalf under the proviso to Article 309, but once the rules are framed under the proviso covering the subject, the rules cannot be varied or modified by executive orders, as the field is already covered by the rules. Therefore, if it is assumed that Ext. P-1 purported to raise the age of superannuation of the doctors as contended by the petitioners, it had no legal validity. The petitioners cannot claim a legal right that they should also have been included within the ambit of an invalid order. As stated already on a plain reading of Ext. P-1 order, it granted only an extension of service in the case of doctors. If it is construed as arising the retirement age of doctors to 58 from a particular date, it was invalid. It is clear from Ext. P-13 that the retirement age of doctors was raised by the residuary clause in that rule. I do not think the classes of service to which the petitioners belong were similarly situate with District and Sessions Judges and teachers for whom different dates were fixed in Ext. P-13.
9. I do not know what reliefs the petitioners can legitimately ask in this case. If the orders referred to or Ext. P-3 are discriminatory, they have to be struck down. The petitioners do not pray for that. In fact they do not want the orders or Ext. P-13 to be struck down. What they pray is that the classes of service to which they belong should also be directed to be included in Ext. P-1 order or that in their case also the rule raising the retirement age should come into operation from 5-3-1966 or 1-7-1966. I doubt whether this is a relief which this Court can grant. The decision of the Supreme Court in State of Mysore v. Chandrasekhara, AIR 1965 SC 532 would show that a relief of this nature cannot be granted. I dismiss the petition. No costs.
O. P. 3110/66
10. This petition was heard along with O. P. No. 3792/66 and it was argued for the petitioner that if the period of extension granted to the petitioner by the learned Chief Justice is aken into consideration, he would have been entitled to the benefit of the extended period of superannuation age, and could have continued in service till he attained the age of 58. The argument was that he should be deemed to have reached the retirement age only when the period of extension granted by the learned Chief Justice expired, and if that be so, he is entitled to the benefit of the extended retirement age. Paragraph 5 of the counter answers this contention:
'The petitioner had put in a qualifying service of more than 29 years but less than 30 years while in service. Deficiency in his service to make up 30 years qualifying service was condoned as per the High Court Proceedings Order No. A-4-19497/65 dated 29-11-1988. Condonation of deficiency in service under rule 38, Part III, Kerala Service Rules is a concession granted for the purpose of pension alone. By virtue of this concession granted to him he cannot be deemed to be on extension of service for a period beyond the date of compulsory retirement corresponding to the period of pension. The averments of the petitioner that by virtue of Ext. P-6 order he is entitled to the benefit of the 58 years' rule and comes within the purview of Ext. P. 5 order dated 12-8-1966 are not correct. The Asst. Registrar, High Court, is included in the categories of technical personnel mentioned in the Schedule to G. O. (P) 319/SS/66/Fin. dated 16-7-1966 of Finance Department. According to this Government Order, a Government servant in service or on leave preparatory to retirement on 15-7-1966 or on extension of service on 16-7-1966 can be allowed to continue in service up-to the age of 58. Since the petitioner did not satisfy any of these conditions he is not entitled to the benefit of the orders dated 16-7-1966 The petitioner does not come within the put view of the orders dated 12-8-1966 also.' I hold that the petitioner is not entitled to the benefit of the rule extending the age of superannuation. The petition is dismissed. No costs
O. P. No. 3706/6R
11. This petition also was heard along with O. P. No. 3792/66. The petitioner was the Principal of Gramsevak Training Centre, Ollurkkara. He attained the age of 55 years on 4-7-1966 when he was due to be superannuated under the rules then in force. The argument on behalf of the petitioner was that lie should have been included within the category of teachers in Ext. P-13 in O. P. 3792/1966, and given the benefit of the rule with effect from 1-7-1966. It was argued that he has been given a teaching allowance of Rs. 50/-, and therefore he came within the category of teachers. In the counter-affidavit the claim of the petitioner that he should be included in the category of teachers was denied. It was stated that the petitioner is only a gramsevak and the mere fact that he was given Rs. 50/- by way of teaching allowance would not make him a teacher, and therefore, he was not entitled to the benefit of the rule with effect from 1-7-1966. The claim of the petitioner that he should be included in the category of teachers cannot be sustained, The mere fact that an allowance for teaching was given to him would not make him a teacher coming within the category of teachers mentioned in Ext. P-13. Learned counsel for the petitioner did not contend that Ext. P-13 in O. P. 3792/1966 or the orders preceding it are in any way invalid. As the only contention advanced by counsel was that his client also should be included in the category of teachers mentioned in Ext. P-13 in O. P. 3792/66, and since that contention has been found against this petition must fail. I dismiss it. No costs.
12. O. P. Nos. 3635, 3671, 3721, 3825, 3858, 4025, 4026, 4030, 4049, 4050, 4064, 4067, 4079, 4111, 4123, 4140, 4320, 4441 and 4487 of 1966. The facts and circumstances of all these petitions are substantially the same as those in O. P. No. 3792 of 1966, and the arguments addressed were also the same as in that O. P. For the reasons given in the judgment in that case I dismiss all these petitions. No costs.