Raman Nayar, J.
1. By a series of orders beginning with G.O. (MS) No. 91/66/ Home dated 5-3-1966 and ending with G.O. (P) 376/ 66/ Fin. dated 12-8-1966, the State Government raised the age of superannuation of the members of the several State Public Services (excepting those of the Last Grade Service for whom the age was already 60) from 53 to 58. And. accordingly, rule 60 (a) of Part I the Kerala Service Rules (the K. S. R. for short-those are rules made under the proviso to article 309 of the Constitution) which specifies the age of superannuation and provides for compulsory retirement at that age, was amended on 18-1-1667 to read as follows:-
'60(a). 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 58 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
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 Judge. 5-3-1966Teachers including Headmasters. 1-7-1966Other Officers 15-7-1966 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 serviceafter they attain the age of 33 years on three months' notice in writing without assigning any reason.'
Hardly four months later, following upon a change of Government, the Government changed its mind, and, by G. O. (P) 176/67/ Fin dated 4-5-1967, expressly superseding the G. Os. raisins the age to 58, decided to lower the age once more to 55, And, again, on 11-5-1967, Rule 60(a) was amended to read thus:
'60 (a). Except as otherwise provided in these rules the date of compulsory retirement of an officer other than in last crade 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.
Note:-- All Officers other than those in the last grade service, who are past the age of 55 years on the 4th day of May, 1967 or who attain the age of 55 years within a period of three months from that date will retire only on the date of expiry of three months from the said date.'
Quite understandably, most of the officers who by reason of this re-amended rule were required to retire prematurely (prematurely in that their not unreasonable expectation that they would be governed by the amended rule for the rest of their service and required to retire only at the age of 58 was belied) did not relish the prospect, and many of them have petitioned to this court for relief under Article 226 of the Constitution. We are, by this Judgment, disposing of two of these petitions. O P No. 2113 of 1967, by a District Judge, and O. p. No 2181 of 1967, by an Assistant Secretary to Government.
2. The petitioner in O. P. No. 2119 of 1967 was born on 6-4-1912. He is a permanent Subordinate Judge and an acting District Judge and is at present Additional District and Sessions Judge, Quilon. Under the original rule 60 he would have had to retire on 6-4-1967. Under the amended rule, he need have retired only on 6-4-1970 But, under the re-amended rule, he is to retire on 4-8-1967, he assails the re-amended rule on the ground that it was actuated by mala fides, that it is beyond the competence of the Governor under Article 309 of the Constitution in that it is retrospective in operation, and that it is bad for offending Rule 6: Part I.K.S.R. and Articles 14, 233 - 335 and 311 of the Constitution.
3. The term, 'male fides' seems to be used in a very special sense for there is no allegation of dishonesty malice or ulterior intent. It is explained that the mala fides lay in that while the previous Government had raised the age of superannuation for the very sound reasons set out in its press release of the 15th July 1966, the present Government has lowered the age arbitrarily,capriciously and without reason, the only reason stated in its counter affidavit, namely, that a lower age would provide greater opportunities of employment to the public and thus to some extent relieve the acute educated unemployment Drevailing in this State, being inadequate, indeed irrelevant. It is pointed out that, having regard to the number of educated persons in that State and the number of posts in the public services, the relief consequent on the lowering of the age would be negligible, the average annual retirements for the three vears, 1963 to 1965 even under the 55 year rule, being but a tenth of the average annual recruitment
4. The adequacy of the reason which prompted the re-amended rule is something which we cannot go into; nor indeed, as we shall presently show, its relevance. We would however observe that the public weal cannot be an irrelevant consideration in making rules under Article 309 and that thr provision of opportunities for employment is a duty enjoined on the State by the directive principles in Part IV of the Constitution--see in particular Articles 39(a) and 41.
5. Nor do we think that a charge of mala fides, even in the true sense of the term much less in the special sense in which the petitioner uses it, would lie in the courts against the exercise of legislative power. With regard to such exercise, the duty of the courts begins and ends with ensuring that the authority concerned does not transgress the bounds set for it by the instrument conferrine the power and that it does not trespass upon the hallowed ground enclosed by Part III and by other provisions of the Constitution. For legislative misconduct within the bounds of the authority conferred, the courts should hold no sanction, and the term 'colourable' is used with reference to legislation to indicate a lurking or a concealed trespass The following observations of Mukheriea J. in K. C Gajapati Narayan Deo v State of Orissa, AIR 1953 SC 375 at p 379 quoted and relied upon in G Nageswara Rao v. A P S. R. T. Corportation AIR 1959 SC 308 at p. 316 make the position clear:
''It maye be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power ... If the Constitution of a State distributes the legislativepower amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, question do arise as to whether the legislature in a particular case has or has not, in respect of the subject matter of the statute or in the method of enacting it transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality. It transgressed these powers, the transgression being veiled by what appears on proper examination, to be a mere pretence or disguise. As was said by Duff J., in Attorney-General for Ontario v. Reciprocal Insurers, 1924 A C. 328 at p. 337,
'Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing.
In other words, it is the substance of the Act that is material and not merely the form or outward appearance and tf the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The Legislature cannot violate the constitutional prohibitions by employing an indirect method.'
And Cooley on Constitutional Limitations, Second Edition Page 257 under the heading, 'Inquiry into Legislative Motives' may be quoted with profit:
'From what examination has been given to this subject. It appears that whether a statue is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the Act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the particular act it would seem that the passage of the act itself might be held equivalent to such finding. And although it has some times been urged at the bar that the courtsought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the motives of the governor in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the courts, but to the people.'
6. That the power conferred on the Governor by the proviso to Article 309 of the Constitution is a legislative power, and his functions legislative Functions, seems to us apparent--see in this connection Ram Autar v. State of U. P. AIR 1962 All 328 (PB) and Madhavan Nair v. Registrar, High Court, 1967 Ker LT 252: (AIR 1968 Ker 17) (FB). He does precisely what the State Legislature may do under the body of the article read with Entry 41 of List II of the Seventh Schedule although, of course, the powers of the State Legislature are wider having regard to the wider ambit of Entry 41. Nor do we think that the description of the law made by him under the proviso as rules, or the circumstance that his legislative power determines when the Legislature itself enters the field and makes an Act, to the provisions of which the law made by the Governor must subject itself, makes the Governor a delegate or a subordinate of the Legislature.
He derives his legislative power directly from the Constitution, just as he does when making law under Article 213, and not from any mandate of the Legislature, and, whether or not he can be properly described as the executive (because, under article 154, the executive power of the State is vested in him and because under Article 163 he is aided and advised by his Council of Ministers in the exercise of his functions--that that does not preclude him from functioning otherwise than as the executive is clear from Article 168 which makes him part of the Legislature) when making such law, it seems to us that he is as much a legislative body as the Legislature itself. And, were It necessary for our purpose, we might have been prepared to bold that, what was said by Mukherjea J. and by Cooley regarding legislative motives in the passages we have just quoted, applies to all law making authorities whether a plenary legislature, (as we think Governor Is, acting within his appointed sphere whether under Article 213 or article 309) or an executive or other authority invested by statute with legislative powers. The question is only one of competence (which, of course, includes conformance with the provisions of the constitution) and not of motive, much less of expediency or even of propriety.
7. To the argument based on article 311 of the Constitution the decision inBishun Narain v. State of U.P., AIR 1965 SC 1567 if a complete answer and shows how misconceived is the reliance placed by the petitioner on the decision in Moti Ram Deka v. General Manager, North East Frontier Rly., AIR 1964 SC 600. So also with regard to the argument based on article 14 and on the alleged retrospectivity of the re-amended rule. For, in that (former) decision, a similar rule made under the proviso to Article 309, reducing the age of superannuation from 58 to 55, was upheld against like onslaughts. It was there pointed out that a rule that fixes the age of superannuation at 55 with effect from the date it was made and not with effect from any earlier date is not retrospective in operation, and that the circumstance that it applies to persons who entered service before that date would not make It retrospective in operation, any more, we might add, than the circumstance that it would apply to persons born before that date.
We might also mention that the Full Bench decisions of this court and the Allahabad High Court already referred to, 1967 Ker LT 252: (AIR 1968 Ker 17) (FB) and AIR 1962 All 328 have held that the power under the proviso to article 309 can be retrospectively exercised. And that all that was held in State of Mysore v Padmanabhacharya, AIR 1966 SC 602 was that the validation of an unlawful termination of service would not come within the power, 'to make rules regulating the recruitment and the conditions of service of persons appointed' to public service, conferred on the Governor by the proviso to Article 309 though such validation might be within the competence of the State Legislature having regard to the wider ambit of Entry 41 of List II of the Seventh Schedule. There is nothing in that decision to suggest that rules made under the proviso cannot have retrospective effect.
8. As we have already indicated. AIR 1965 SC 1567 also held that no discrimination was involved. There, as here the discremination alleged was that the effect of the new rule was that different persons would have to retire at different ages--here it is pointed out that the ages of the persons who will have to retire on the 4th August 1967 under the Note to the re-amended rule will vary between 55 years and 56 years and 5 months A like argument was there repelled but it is said that what happened there was that the services of the persons concerned were retained for different periods after the age of 55 in the exigencies of the public service. But, that is exactly what has happened here, and the fact that there it was said that the persons would be retained up to a particular date whereas what is said here is that they will retire only on a particular date, makes absolutely no difference to the substance of the matter regarding which alone we should think andnot with regard to mere verbal differences, ' charge of discrimination can be made.
As a result of the reduction of the age of superannuation from 58 to 55, all persons above the age of 55 on a particular date are required to retire on that date. In effect the reduction is being brought into force as and from that date The age of superannuation for all is the same it is wrong to say it is different for different persons and all above that age on a particular day are required to retire on that day .All of them are treated alike. Are they then differently circumstanced having regard to the purpose the new rule is intended to serve since discrimination lies as much in treating alike, persons differently circumstanced as in treating differently persons circumstanced alike? No. They are all similarly circumstanced in that they are all above the age of 55 which is the new age of superannuation, and. having regard to the object of the new rule, namely, that persons above that age should retire, it cannot be said that they are differently circumstanced because they are of different ages (above the new age of superannuation and below the old) any more than because they might have put in different periods of service or are of different heights.
9. It would appear that, so far as the judicial service is concerned, the age of superannuation was raised from 55 to 58 in consultation with, indeed at the instance of, the High Court. But there was no such consultation when, by the impugned rule, it was once again reduced to 55. This failure to consult the High Court, at whose instance the age was raised is no doubt regrettable, especially so having regard to the special position occupied by the High Court in relation to members of the judicial service of, the State under the provisions of Chapter VI of Part VI of the Constitution. But, this seems to us to be a matter of administrative rather than of legal propriety and we are unable to accede to the argument that the failure involves a breach of Articles 233 - 235 of the Constitution. The object of these articles is no doubt to safeguard the Independence of the judiciary but we cannot pursue that object beyond where the articles (spurring their language to its widest possible meaning in furtherance of their object) will take us. Nor can we conceive of a Government functioning within the Constitution so abusing his power to reduce the age of superannuation at to make it a weapon for securing the subjection of the judiciary. And should there be such abuse the sanction would lie elsewhere--mere consultation with the High Court with no obligation to follow its advice would hardly be an effective curb.
10. Under Article 235, appointments of district Judges are to be made by the Governor in consultation with the High Court, and under Article 234 appointments of par-sons other than district Judges to the Judicial service of the State--and the appointment substantively held by the petitionet is such an appointment--are to be made by the Governor in accordance with rules made by him in that behalf in consultation with the Public Service Commission and with the High Court. The argument is that, by reason of the rule of construction embodied in Section 16 of the General Clauses Act (which is made applicable to the interpretation of the Constitution by Article 367 thereof) compulsory retirement of members of the judicial service can be ordered only after such consultation in the case of District Judges, or, in accordance with such rules, in the case of others This argument, it seems to us, stems from a complete misreading of the section which runs thus.
'16. Where by any Central Act or Regulation, a power to make any appointment is conferred, then unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.'
The section does not say, in the manner of Section 13 for example, that the word, 'appointment' includes also dismissal. It does not even say that a power to appoint includes the power to dismiss or that the latter is an incident or an adjunct of the former although some decisions have so paraphrased it, accurately enough for most purposes. (And even if the section did say so it would by no means follow that the power to dismiss must be exercised in the same way or is subject to the same limitations as the power to appoint). All that it does say is that the authority having the power to make an appointment shall also have the power to dismiss any persons appointed in exercise of that power, so that there is not even a whisper of a suggestion (of which some might be able to summon answering echoes in the paraphrase just referred to) as to how the entirely different power to dismiss shall be exercised.
Hence, even assuming that compulsory retirement on superannuation would amount to a dismissal within the meaning of the section, the section does not require that the power to order compolsory retirement shall he exercised in the same manner and subject to the same conditions or restrictions as the power to appoint under Article 233 or 234. Supposing, for example Article 233 had said that district Judges were to be appointed by the Governor after holding a competitive examination in order to determine who were the fittest for appointment there being as now, nothing in the language or context of the article, otherwise requiring or behaving a different intention so as to exclude the application of Section 16 of the General Clauses Act. Then, by reason of the rule ofconstruction embodied in that section, the Governor would undoubtedly have the power to dismiss district Judges. But would it also mean that, in order to dismiss a district judge, he would have to hold a competitive examination in order to determine who is the fittest for dismissal.
11. It will be noticed that Articles 233 and 234 confine themselves to appointment to the judicial service; neither article has anything to say about conditions of service after appointment -- and the age of superannuation is a condition of service -- so that there is nothing in either to attract the opening words, 'Subject to the provisions of this Constitution' of article 309 so far as conditions of service are concerned: and the power to regulate such conditions conferred by Article 309 is altogether untrammelled by anything in Article 233 or 234. But it is claimed that the control vested in the High Court by Article 235 comprehends also control over the tenure of service of persons appointed to the judicial service so that consultation with the High Court before reducing the age of superannuation of such persons would be the very least that is required for compliance with this Article. We find it difficult to accept this argument. It is true that, 'control over district courts and courts subordinate thereto' implies some measure of control over the persons manning these courts and that matters like disciplinary control and the power to transfer are included in the word 'control' as used in the Article See State of W B. v Nripendra Nath AIR 1966 SC 447 and State of Assam v Range Muhammed, AIR 1967 SC 903. But the tenure of a civil servant is undoubtedly a condition of his service: See State of U.P. v Babu Ram. AIR 1961 SC 751 paragraph 13 and it is not easy to understand how fixing the age of superannuation of a person can be regarded as a measure of control over him.
If the word, 'control' in Article 235 is not limited to what necessarily comes within the meaning of that word and what is implied by the words 'including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge' it would rover every condition of service, not merely the age of superannuation but also things like travelling allowance, leave salary pension, and the like, so that the regulation of every condition of service of a member of the judicial service of a State would be vested in the High Court and there would be nothing left to he regulated under Article 309 But, even if such a very wide meaning were to be given to the word 'control' in Article 235 there is still the saving clause, 'but nothing in this article shall be construed as taking away from any such person any right if appeal which he may have under the law regulating the conditions of his service or asauthorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.' This saving clause seems to make it abundantly clear that the control vested in the High Court is in so far as conditions of service are concerned, subject to any law which term will include rules made under Article 309.
12. Rule 6, Part I, K.S.R. on which so much reliance is placed by the petitioner runs thus:
'6. Subject to the provisions of Rule 5, nothing in these rules or any rule made under these rules shall operate to affect to the disadvantage of any person holding a substantive post under Govt. to whom these rules apply, the conditions of service in respect of pay, leave, allowances, pension or any other matter which arp applicable to him-
(a) on the date these rules camp into force: or
(b) by virtue of any order or rule made by the Government.
unless such person gives his consent.'
It is said that the effect of this rule, particularly of Clause (b) thereof, is to preclude the Governor from making any rule under Article 309 to the disadvantage of any person already in service without that person's consent. The re-amended rule which reduces the petitioner's age of superannuation from 58 to 55 undoubtedly works to his disadvantage. It was admittedly made without his consent and must therefore be struck down as offending Rule 6.
13. So runs the argument, but, this is the first time we hear of an amendment to a statute made by an authority competent to make the statute being ultra vires some provision of the statute itself. Under the proviso to Article 309, the Governor has full powers, subject of course to the provisions of the Constitution, to make rules regulating the conditions of service of the members of the State services, the only limitation placed on the operation of the rules so made being that they must yield to any law which the legislature itself might make in the matter. No such limitation as that what we might call a disadvantageous rule can be made in respect of a person already in service only with his consent it is to be found in the article Not even the petitioner himself has attempted to find in it such a limitation. And, if the effect of Rule 6 be, as the petitioner claim it is, that the Governor has passed a self-denying ordinance precluding himself from making disadvantageous rules in respect of persons already in service without their consent that ordinance would be ultra vires Article 309. Nor could it possibly found an estoppel, since the estoppel would be against the article The utmost that can be said is that, as a matter of construction, Rule 6 and the re-amended rule should. If possible, be so read as not to conflict with each other But, if conflict is unavoidable, then it would appear that, to the extent of the conflict, the re-amended rule must prevail on the doctrine of impliedrepeal.
14. The Note to the re-amended rule makes it abundantly clear that the re-amended rule is intended to apply to persons in service at the time it was made indeed if that were not so the re-amended rule would begin to operate only more than 30 years hence, when persons entering the service after it was made attain the age of 55 The re-amended rule is clearly irreconcilable with Rule 6 as the latter rule is construed by the petitioner and we see no merit in the farfetched suggestion (based on the opening words of Rule 60 (a), 'Except as otherwise provided in these rules' as Rule 6 were a provision regarding the date of compulsory retirement which it certainly is not, even as read by the petitioner) that, what the Note to the re-amended rule contemplate is the retirement of the persons referred to therein on the 4th August 1967 with their consent, a construction which would render the Note virtually since hardly anybody would consent.
15. We, however, think that on a proper reading of Rule 6, there is no conflict between that rule and the re-amended rule. It is agreed on all hands that the reference to 'these rules' in the phrase, 'nothing in these rules' occurring in Rule 6 is to the rules as they stand at the time of their application not as they stood when they were originally framed. Also that the date referred to in Clause (a) of the rules is the date on which they originally came into force, namely, in so far as Rule 6 is concerned, the 1st November 1959 see Rule 1 (ii) of Part 1 -- Not the several dates on which the rules as amended from time to time came into force It is clear that what Clause (a) of Rule 6 safeguards ia pursuance of the policy underlying the proviso to Sub-section (7) of Section 115 of the States Re-organisation Act is that the conditions of service of members of the Madras and Travancore Cochin services which were integrated on the formation of the Kerala State on the 1st November 1956 shall not be varied to their disadvantage without their consent
That has not happened since, according to the rules as they stood on 1-11-1958, as also on 1-11-1959 the age of superannuation was 55 And what Clause (b) of Rule 8 ensures is that the Kerals Service Rules will not operate to deprive a person of any benefit he might be entitled to under some other order or rule made by the Government. What it says is that nothing in the K S R., as they stand at any given time, is intended to apply to the disadvantage of any person in respect of my matter where by some other order or rule made by the Government he if entitled to more favourable terms, except with such person's consent. Obviously, the more favourable order orrule must be something other than the K. S.R. or any order made thereunder, and it must be an order or rule which is in force, not an order or rule that has been validly repealed.
16. It is sometimes said that the service rules embody the contract of service between a Government servant and the Government. That is only a convenient figure of speech employed when applying by analogy principles of the law of contract. It does not mean that the rules derive their force from contract or that the mutual rights and obligations of the parties are founded on contract so that there cannot be a variation to the disadvantage of either party without his consent And, if the petitioner's claim were based on contract, his remedy would not lie in Article 226 of the Constitution.
17. The learned Advocate General has pressed into a service Article 310 of the Constitution in support of his somewhat extreme contention that, even if the petitioner were entitled to the benefit of the amended rule, once Article 311 is out of the way, nothing in a law made under Article 309 can stand between the Governor and his pleasure as manifested, so far as this case is concerned, by the re-amended rule. In the view we have taken we do not consider it necessary to consider this contention.
18. The petitioner in O. P. No. 2181 of 1967 is an Assistant Secretary to Government and of coarse, he makes no claim to protection under Articles 233 - 235 of the Constitution For the rest, apart from the grounds urged by the Petitioner in O.P. No. 2119 of 1967 he has specifically pleaded estoppel, legal or equitable. He was born on 31-10-1911 and attained the age of 55 on 31-10-1966. For a time he enjoyed the benefit of the higher age of superannuation, first conferred by a mere executive order and then granted retrospectively by the amended rule. This it is said, gives rise to an equitable if not to a legal estoppel against lowering the age But. as we have already observed, this amounts to a plea of estoppel against Article 309 which undoubtedly confers on the Governor the power to change the age of superannuation from time to time We might also observe that the detriment pleaded by the petitioner seems to be hypothetical rather than actual, and that there was at no time any promise or representation that the age of superannuation which was raised from 55 to 58 would not be lowered again, even if such representation regarding future conduct could found an estoppel.
19. We dismiss these petitions but make no order as to costs.
20. I have had the privilege of perusing the judgment of my learned brothers. I regret my inability to agree with the view, they have taken regarding the scope and application of Articles 231and 234 of the Constitution to the members of the judicial service. On other matters, I respectfully agree with their conclusion: but I desire to state my own reasons.
21. The question that arises for decision in these cases is whether the amendment of Rule 60 of the Kerala Service Rules made as per Government Notification G. O. (P) 187/67/Fin. dated 11th May 1967, reducing the age of compulsory retirement of officers other than those in the last grade service from 58 years to 55 years, is legal and valid The Kerala Service Rules were made by the Governor of Kerala in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India; and they contain the rules regarding the conditions of service of persons in the employment of the State of Kerala. These Rules were issued as per Government Notification dated 10th November 1959. They consist of three parts; and Rule 1 provides that Parts I and II shall be deemed to have come into force with effect from the 1st November 1959, and that Part III shall be deemed to have come into force on 1st November, 1956.
Rule 80 which is in Part I, provided that the date of compulsory retirement of officers other than in the last grade service was the date on which he attained the age of 55 years Subsequently the Government of Kerala enhanced the age of compulsory retirement of all these officers to 58 years. The enhancement was made in the case of District and Sessions Judges from 5-3-1966, in the case of teachers including Headmasters from 1-7-1966, and in the case of all other officers from 15-7-1966 All this was done originally by issuing executive orders. Afterward? Rule 60 of the Kerala Service Rules was amended by a notification G. C. (P) 20/67/Fin dated I8th January. 1967; and by that amendment, the age of compulsory retirement of all those officers was fixed as 58 years. This is hereinafter referred to as 'the notification of the 58 years rule'. Rule 60 as amended by this notification reads as follows. -
'60 (a) Except as otherwise provided in these rules the date of compulsory retirement of an officer other than in last grade service it the date on which he attains the age of 58 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.
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 Judge 5-3-1966Teachers including Headmaster? 1-7-1966Other officer 16-7-1960 Note 2: The officers may after attaining the age of 55 years, voluntarily retirefrom 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'.
By an executive order dated 4-6-1967, the Government reversed their earlier decision, and reduced the age of compulsory retirement of all these Government Servants to 55 years. In doing so, this order provided that all those who had already passed the age of 55 years or who may attain the age of 55 years within a period of three months, would retire only on the date of expiry of three months from the date of the said order. In accordance with this order. Rule 60 of the Kerala Service Rules was again amended by the Governor of Kerala by notification G. O. (P) 187/67/Fin dated 11th May, 1967. It is this notification that is sought to be quashed in these cases. This is hereinafter referred to as 'the notification of the 55 years rule'. Rule 60 as amended by this notification reads as follows: --
'80 (a) 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
Note: -- All officers other than those in the last grade service, who are past the age of 55 years on the 4th day of May, 1967 or who attain the age of 55 years within a period of three months from that date will retire only on the date of expiry of three months from the said date'.
22. As a result of the reduction of the age of compulsory retirement, a large number of persons employed in different services have been compelled to retire from Government service with effect from 4th August, 1967. This caused a shock and a great disappointment to the service personel, who had been assured service by the Govt. till the age of 58 years, and who must have naturally in the basis of this assurance, planned and arranged their future affairs. A large number of writ petitions have been filed in this Court by some of these disappointed officers, questioning the validity of the notification of the 55 years rule In view of the importance of the question raised in these petitions, the Honourable the Chief Justice directed that a few of these petitions which were ready for hearing, may be heard by a Full Bench. When these cases came before us. It was agreed at the bar that, for the sake of convenience O. P. Nos. 2119 and 2181 of 1967, which would cover practically all the points raised in this batch of cases, may be heardand decided first, and that the remaining cases can be disposed of in the light of our decision in these two cases. Counsel appearing in the other cases were permitted to address their arguments on all the points; and we have also the advantage of hearing some of them.
23. The persons affected by the reduction of the age of retirement fall into two categories of service, which may be called the judicial service and the non-judicial service. Persons belonging to the judicial service have a special contention based on Articles 233, 234 and 235 of the Constitution. The petitioner in O. P. No. 2119 of 1967 is an Additional District and Sessions Judge, belonging to the judicial service. He has passed the age of 55 years; and he is continuing in service as a result of raising the age of retirement to 58 years. The main arguments were addressed in this case; and it is, therefore, convenient to take it up first. The points raised in this case against the validity of the notification of the 55 years rule are the following:--
(i) The reduction of the age of compulsory retirement from 58 years to 55 years is violative of Rule 6 of the Kerala Service Rules.
(ii) It is a mala fide exercise of the powers conferred by the proviso to Article 309 of the Constitution.
(iii) It offends Article 311(2) of the Constitution.
(iv) is violative of Article 14 of the Constitution: and
(v) It offends Articles 233, 234 and 235 of the Constitution, in the case of members of the Judicial service.
These points may now be considered seriatim.
24. Point No. (1) -- Rule 6 of the Kerala Service Rules reads as follows:--
'6 Subject to the provisions of rules, nothing in these rules or any rule made, under these rules shall operate to affect to the disadvantage of any person holding a substantive post under Government to whom these rules apply, the conditions of service in respect of pay, leave, allowances, pension or any other matter, which are applicable to him-
(a) on the date these rules came into force or
(b) by virtue of any order or rule made by the Government.
unless such person gives his consent'.
The age of compulsory retirement of Government servants other than those in the last grade service was first raised to 58 years by executive orders, and subsequently by the notification of the 58 years rule. The petitioner's learned counsel submitted that the right thus derived by the Government servants to continue In service till the age of 58 years is a condition of service applicable to Government servants by virtue of an order as well as a rule made by the Government within the meaning of Clause (b)of Rule 6, and that this rule provides that nothing in the Kerala Service Rules shall operate to affect such a condition of service to the disadvantage of a person holding a substantive post unless such person gives his consent He, therefore contended that it was not open to the Governor of Kerala to amend Rule 60 of the Kerala Service Rules and reduce the age of compulsory retirement to 55 years, without the consent of the persons affected thereby. It was also submitted that Rule 60 is subject to other provisions contained in the KeraJa Service Rules and that the said rule or any amendment thereof has, therefore to be read subject to the provisions of Rule 6 There are too many difficulties for this contention to succeed
The executive orders, by which the age of compulsory retirement was raised were superseded by the Government in express language by G.O. (P) 176/67/Fin dated 4th May, 1967, and the age of compulsory retirement was also reduced to 55 years by this Order It was not disputed that an executive order can be superseded by another executive order of the Government The result is that, at the time when Rule 60 of the Kerala Service Rules was amended by the notification of the 55 years rule, the petitioner did not have the advantage of continuing in the service of the Government till the age of 58 years by virtue of 'any order' made by the Government Hence the contention that the Kerala Service Rules as a consequence of the impugned amendment of Rule 60, have detrimentally affected the benefit which the Government servants had by virtue of an order made by the Government, cannot be sustained There is also no substance in the contention that the fixation of the age of compulsory retirement as 58 is a condition of 'service applicable to a Government servant by virtue of a rule made by the Government within the meaning of Rule 6 (b) of the Kerala Service Rules.
In the first place, what Rule 6 (b) speaks of is a rule made by the Government The age of compulsory retirement was raised to 58 years by the Governor of Kerala by amendment of Rule 60 of the Kerala Service Rules in exercise of the powers under the proviso to Article 309 of the Constitution, and not by virtue of any rule made by the Government. A rule made by the Government in exercise of their statutory or executive powers, and a rule made by the Government in exercise of the powers vested in him under the Constitution are entirely different things Secondly the word 'rule' used in Rule 6 (b) does not refer to any rule under the Kerala Service Rules. If it were so. Rule 6 would read that nothing in the Kerala Service Rules shall operate to affect to the disadvantage of a person holding a substantive post the conditions of service applicable to him by virtue of any rule in the Kerala Service Rules. Such a reading of Rule 8 makes the Rule meaning less So the word 'rule' used in Rule 6 (b) means a rule other than any rule contained in the Kerala Service Rules. Thirdly, Rule 6 contains a very peculiar provision, in the sense that it provides that nothing in the Kerala Service Rules shall affect the service condition of a person to this detriment without his consent.
It is the Constitution the proviso to Article 309 -- that confers the power on the Governor to make rules regarding the conditions of service of persons in the employment of the State. It is not possible for him to abdicate this power, or to subject himself to any conditions or restrictions in the exercise of the said power. If a rule made by the Governor in exercise of this constitutional power contains a provision that he will not cancel or amend the said rule, such a provision has no legal efficacy. It is always open to him, in exercise of the said power, to cancel or amend the said provision itself. Hence, the provision contained in Rule 6 of the Kerala Service Rules cannot affect the constitutional power of the Governor to cancel or amend thest Rules in any manner he considers expedient. Amendment of Rule 60 of the Kerala Service Rules which reduced the age of compulsory retirement to 55 years was an exercise of the constitutional power. Hence, the attack made against its validity on the basis of Rule 6 of the Kerala Service Rules cannot be sustained
25. Point No. (ii) -- The petitioner's contention that the notification of the 55 years rule is a mala fide exercise of power, and is therefore, invalid and inoperative, is based on the following averments. The age of superannuation was enhanced to 58 yean pursuant to a decision, which the Government then took after mature consideration of all the relevant facts and circumstances and the principles generally accepted in fixing the age of superannuation The Government issued a Press Release dated 15th July 1966, copy of which is marked as Ext P-3 in this case, stating the reasons which compelled them to take the above decision: and they are the following The Pay Commission constituted by the Government of India recommended that the age of superannuation of Government servants should be raised from 55 years to 58: and this was given effect to by the Central Government in 1962. The recommendation of the pay Commission was on the basis of their finding that:
(a) there has been distinct improvement in the health of the people and considerable rise in the expectation of life in recent years
(b) there is shortage of experienced and trained personnel, both technical and administrative all over the country; and with the expansion of administrative and technical service, their scarcity has been accentuated, and
(c) Loss of employment opportunities as a result of raising the age of superannuation would be small.
The Government of India suggested that the State Governments might also raise the age of superannuation for the services under them. Many State Governments followed the advice in full and some others had taken peace-meal action There was considerable demand from the service personnel in the State for enhancement of the age of superannuation, and the demand was having greater support from large sections of the press and the public. The High Court had been pressing for the enhancement of the age of superannuation of the judicial service. The Press Release also shows that all possible objections against raising the age of retirement were duly considered by the Government and they came to the conclusion that the objections had very little force in the face of the compelling reasons for enhancing the retirement age The petitioner also relies on an assurance given by the then Government to the services, which is contained in G.O.M.S. No 33 dated 27th January, 1967, copy of which is marked as Ext P-1 The relevant passage reads as follow: --
'Once it is decided to retain an officer beyond the age of 515 years, he should be allowed to continue up to the age of 58 without any fresh review. In order that an officer, who is cleared for continuance at the stage of attaining the age of 55 years, can settle down to another 3 years of work with a sense of security and those working under him accept his control and discipline without any reservation, a periodical review between the years of 55 and 58 would not be desirable This is subject to the power of the Government to retire an officer onany date after the age of 55 after giving him 3 months, notice as contemplated in Para 6 of the G O (P) 319/SS/66/Fin dated 16-7-1966. This power will normally be exercised by the Government only for exceptional reasons such as unsatisfactory work or conduct, indifferent state of physical health etc '
The decision to enhance the age of compulsory retirement was taken and the above assurance was given to the service at a time when the State was under the President's rule by virtue of a Proclamation issued by the President under Article 356 of the Constitution Consequent on the general election which took place in February 1967, the President's rule was terminated and the executive power of the State vested in the Governor who appointed a Council of Ministers to aid and advise him in the exercise of his functions The decision to reduce the ape of compulsory retirement was taken by the Council of Ministers. The petitioner submits that the conditions and circumstances on the basis of which the decision to raise the age of retirement was takencontinued the same, and that there was absolutely no reason for the Government to reverse their decision within such a short period of scarcely four months, and act in violation of a solemn assurance given to their employees.
The petitioner contends that the existence of an efficient and contented service is essential and so vital to carry on the Governmental functions of the State, and that the power of the Governor under the proviso to Article 309 to make rules regulating the conditions of service can be exercised only to achieve this object According to the petitioner amendment of Rule 60 of the Kerala Service Rules, reducing the age of retirement to 55 years was made by the Governor to serve purposes and objects other than those for achieving which the power to make rules has been vested in him. It is contended that exercise of power, for purposes for which it is not intended, constitutes a mala fide exercise of power, and that the impugned amendment of Rule 60 is invalid and inoperative
26. The respondent's reply to the averments made by the petitioner, in support of the above contention is contained in Paragraph 10 of its counter affidavit, which reads as follows -
'10. The averments made by the petitioner in support of the contention under Ground B, are hereby denied. The averments that the '58 year rule' was first adopted by the respondent having regard to proper and relevant considerations such as the health of the people, the rise in the expectation of life the shortage of experienced and trained personnel etc., and on accepting the recommendations of the Central Pay Commission and the suggestion of the Government of India are not completely correct. In view of the acute problem of unemployment, prevailing in the State, it is the considered policy of the Government, to provide more employment opportunities to the Public. The opportunities for employment are greater when vacancies consequent upon retirement are more. The said policy was decided upon by the Government on grounds of genuine public good and it was implemented within the power conferred by Article 309 of the Constitution. No oblique or ulterior motive has actuated any step taken by the respondent in reducing the age of superannuation. The allegation that Ext P-4 is an order promulgated by the Government. In mala fide exercise of its rule-making power, is without foundation legal or factual. In the light of the facts stated already, it is submitted that the '55 year rule' is valid and operative.'
There is no document as Ext. P-4 in this case; and the reference is obviously to the notification of the 55 year rule It is seen from the above reply that the Government concede that there has been practically no change in the conditions and circumstances on the basis of which the decision toenhance the age of retirement was taken. But it is stated that the age of retirement was reduced pursuant to a considered policy of the Govt. to provide more employment opportunities to the public and that the opportunities for employment are greater, when vacancies consequent on retirement are more the petitioner's learned counsel submitted that the question of employment opportunities is a matter which was taken into consideration, when the Government decided to raise the age of superannuation, and that the reduction of the age of retirement does not solve the employment problem, because number of persons employed in the vacancies created by retirement would be the same as the number of persons becoming unemployed, consequent on compulsory retirement. The reasons stated in the counter-affidavit may be hardly sufficient to justify the action taken by the Government
27. But the real question that arises for consideration, is whether the decision taken by the Government to reduce the age of superannuation, or the rule made by the Governor in exercise of the powers under the proviso to Article 309 of the Constitution to give effect to the aforesaid decision is justifiable, and if so, to what extent. It is well settled that, with regard to a Legislative Act, the only question that can be raised before a court of law is whether the Act is within the legislative competence of the legislature. The motive behind the legislation or the sufficiency of the reasons for passing the Act are all irrelevant. What is called colourable legislation is making a law which the legislature has actually no power to make by giving it a different colour, or under a pretext that it is doing something within its power. In AIR 1959 SC 308 the Supreme Court said :--
'The legal position may be briefly stated thus; The Legislature can only make laws within its legislative competence. Its legislative competence may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. The Legislature cannot overstep the field of its competency directly or indirectly. The court will scrutinise the law to ascertain whether the Legislature by device purports to make a law which, though in form appears to be within its sphere, in effect and substance reaches beyond it. If, in fact, it has the power to make the law, its motives in making the law are irrelevant'.
Reference may also be made to the following statement of the law at Page 29 of the Constitutional Law of the United States by Willoughby (Second Students' Edition)-
'With the motives of the legislatures, the courts do not concern themselves. The judiciary can only enquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that enquiry without in trenching upon the domain of anotherdepartment of Government. That it may not do with safety to our institutions.'
28. It was contended by the petitioner's learned counsel that the above principles would apply only to an Act of a legislature, which can make any law within the field of its competence, and that they have no application to the exercise of power by a rule-making authority or executive authority The learned counsel submitted that the power conferred on the Governor under the proviso to Article 309 of the Constitution is only a rule-making power, and it is different from the power of a legislature. This question was raised before the Supreme Court in E.R. Nagarajan v. State of Mysore, AIR 1966 SC 1942 but the point was not decided In AIR 1962 All 328 Shrivastava J. said :--
'A comparison of the language used in the main part of Article 309 with that used in the proviso will show that the power given to the Legislature for regulating the recruitment and conditions of service of persons is identical with the power given to the Governor of such person as he may direct in regulating the recruitment or conditions of service employed in services and posts in connection with the affairs of the State. The only difference is that the Legislature can make the regulation for all times, and the Governor can do so only till the Act of the Legislature under the main part of the Article is passed.'
The above passage was quoted with approval, as laying down the correct legal position by a Full Bench of this Court in 1967 Ker LT 252: (AIR 1968 Ker 17) (FB). In my view, the same principles apply whether the attack of mala fides is made against an exercise of legislative power, rule-making power or executive power. The court can examine only whether what has been done is within its competence. The scope of examination is very limited in the case of exercise of a legislative power, as the extent of this power is very wide, and it is subject only to very few limitations. But in the case of a rule-making power or executive power, its exercise can be questioned not only as a colourable exercise of power, but also on the ground that the power has not been exercised in accordance with law or it has been exercised with ulterior motives, for a purpose other than for which the power is vested in the authority concerned.
29. In support of his contention that the impugned amendment of Rule 60 of the Kerala Service Rules is open to the attack of mala fide exercise of power, the petitioner's learned counsel relied on the decision of the Supreme Court in Puranlal Lakhanpal v. Union of India AIR 1958 SC 163. In this case, an order of detention made by the Government of India under the Preventive Detention Act, 1950 was attacked on the ground, among others, that the order was mala fide. Dealing with this contention, the court said:--
'On the question of mala fides, it is not a relevant consideration whether the activities of the appellant were liked or disliked by the authorities concerned. The only relevant consideration is if the order of detention was made for ulterior purpose or purposes other than those mentioned in the detention order. On the materials placed before us, we unhesitatingly hold that no mala fides have been established.'
The learned counsel then referred to the decision of the Supreme Court in Partap Singh v. State of Punjab AIR 1964 SC 72. In this case an executive order of the Government, placing a civil surgeon under suspension pending the result of an enquiry into certain charges of misconduct, and ordering a departmental enquiry against him was attacked as a mala fide exercise of power. Ayyengar, J. in delivering the majority judgment of the court, has dealt with this point, if I may say so with great respect, very exhaustively The whole discussion is very instructive and useful for the purpose of this case; but for the sake of brevity I shall only quote the following passage from his Lordship's judgment --
'As we said earlier the two grounds of ultra vires and mala fide are thus most often inextricably mixed Treating it as a question of ultra vires, the question is what is the nature of the power which has been granted to achieve a definite object in which case, it would be conditioned by the purpose for which it is vested. Taking the present case of the power vested in Government to pass the impugned orders it could not be doubted that it is vested in Government for accomplishing a defined public purpose, viz. to ensure probity and purity in the public services by enabling disciplinary penal action against the members of the service suspected to be guilty of misconduct. The nature of the power thus discloses its purpose. In that context the use of that Dower for achieving an alien purpose -- wreaking the ministers vengeance on the officer -- would be mala fide and a colourable exercise of that power, and would therefore, be struck down by the Courts. In this connection we might cite a dictum of Lord Lindley in General Assembly of Fret Church of Scotland v. Overtoun, 1904 AC 515, where the learned Lord said at p 695 -
I take to be clear that there is a condition implied in this as well at in other instruments which create powers namely that the powers shall be used bona fide for the purpose for which they are conferred.'
The petitioner's learned counsel also relied on the decision of the Supreme Court in Ram Manohar v. State of Bihar, AIR 1966 SC 740 In this case, an order of detention passed by the District Magistrate of Patna against Dr Ram Manohar Lohia, a member of the Lok Sabha under Rule 30 (1) of theDefence of India Rules, 1962 was attacked on the ground, among others, that it was passed mala fide. Dealing with this contention, the Supreme Court said :--
'If a person, under colour of exercising the statutory power, acts from some improper or ulterior motive, he acts in bad faith The action of the authority is capable of being viewed in two ways Where power is misused but there is good faith, the act is only ultra vires; but where the misuse of power is in bad faith, there is added to the ultra vires character of the act, another vitiating circumstance Courts have always acted to restrain a misuse of statutory power, and the more readily when improper motives underlie it. The misuse may arise from a breach of the law conferring the power or from an abuse of the power in bad faith In either case the Courts can be moved, for we do not think that Article 359 or the President's Order were intended to condone an illegitimate enforcement of the Defence of India Act'.
30. The decisions cited above do not lay down a proposition different from the one which I have stated above. In my opinion, a rule made in exercise of the powers conferred under the proviso to Article 309 of the Constitution is liable to the attack that it has been exercised mala fide. In the sense that it is a colourable exercise of power, or it has been exercised for a purpose for which it is not intended. Part XIV of the Constitution deals with 'Services under the Union and the States'; and Chapter I in this Part deals with 'Services' in particular. So, it is clear that the Constitution has attached great importance to the Services. This should naturally be so; because the successful working of democratic system of Government, which the Constitution has envisaged depends very much on an efficient stable and contented public service the power conferred by Article 309 of the Constitution on the Legislature to make laws, and on the President or the Governor, as the case may be to make rules to regulate the recruitment and conditions of service of persons appointed to public services has to be exercised for the purpose for which it is conferred on the said authorities. So also is the power conferred on the President and the Governor under Article 310 of the Constitution.
That this is the correct legal position is clear from the decision of the Supreme Court in AIR 1964 SC 72, where the Court struct down an action taken by the Governor in exercise of the power under Article 310 of the Constitution. Under our Constitution elections to the Legislative Assemblies of the State and to the Lokh Sabha are to he held after every five years of their first meeting, unless sooner dissolved, in which case there will be normally another election immediately after the dissolution. We have in our country different political parties having differing and to some extentconflicting ideologies. It is to be expected in our democratic system of Govt., that different political parties or combinations of some of them would come into Dower at different time and the executive powers of the Central and State Govts have to be exercised with the aid and advice of the Council of Ministers appointed from the majority party in the Lok Subha or the State Legislative Assembly, as the case may be. It is quite possible that a Council of Ministers may honestly think that the exis-tine service is not good enough to implement their programmes, and that it would be to the better advantage of the general public, if the whole service is replaced by new recruits owing allegiance to their party. They may consider that a total replacement of the services at once may be inexpedient, and that this object can be achieved by a slower process, by reducing the age of superannuation The reduction may be done in one instalment, or from time to time. If the powers under Articles 309 and 310 are so absolute, it is open for the Council of Ministers, if they so please, to act through the Governor, and reduce the age of superannuation, say to the age of 30 years, or even go to the full extent of terminating the employment of the whole existing service personnel for the purpose of replacing the Services by supposedly more efficient and suitable persons. I do not think that it is permissible to do any such thing either under Article 309 or 310 of the Constitution The power conferred under these articles can be exercised, only for the purpose for which it is intended, and any colourable exercise of it or the exercise of the power for achieving extraneous objects is liable to be struck down by the High Court under Article 226 of the constitution.
31. I shall now examine the facts of the instant case in the light of the principles stated above. The question of raisins the age of compulsory retirement of the service personnel of this State has been admittedly pending before the Government from 1962 onwards. All the facts and circumstances which influenced the Government under the President's rule in the latter half of 1966 to enhance the age of retirement of the officers other than those in the last grade service, were hsa before the Government at least from 1962 onwards. Then we had in the State a Council of Ministers. They were soon replaced by another Council of Ministers, which continued in power, until the functions of the Government were assumed by the President, and the Legislative Assembly of the State was dissolved by a Proclamation issued by the President of India under Article 359 of the Constitution on 10th September 1964.
The decision to enhance the age of retirement was taken a few months before the impending general election which took place in February 1967. If the Council ofMinisters, which came into power consequent on the General Election considered that the facts and circumstances, which influenced the Government under the President's rule to enhance the age of superannuation did not fully justify the action taken by the Government, and that the age of superannuation shall be fixed as 55 years, as it was before, I find it impossible to hold that the decision taken by the Council of Ministers, or the action taken by the Governor to give effect to that decision is a mala fide exercise of power. After all, what the Government have done is only to restore a position which two successive Ministries in the State thought unnecessary to be changed
32. Point No. (iii) -- The petitioner's contention that the reduction of the age of compulsory retirement amounts to a removal from service within the meaning of Article 311 of the Constitution was based mainly on the decision of the Supreme Court in AIR 1964 SC 600. The question which arose in that case was whether the termination of service of a permanent railway servant under Rule 148 (3) or Rule 149 (3) of the Indian Railway Establishment Code, amounts to his removal under Article 311(2) of the Constitution These Rules provide for the termination of service on notice on either side for the periods mentioned therein There is a very instructive and learned discussion in the judgment of Gajendragadkar, J. which is the majority judgment in the case, regarding the scope and amplitude of Articles 309, 310 and 311 of the Constitution. In striking down these rules as yiolative of Article 311(2) of the Constitution his Lordshin said: --
'There is no doubt that on a fair construction the impugned Rules authorise the Railway Administration, to terminate the services of all the permanent servants to who is the Rules apply merely on giving notice for the specified period, or on payment of salary in lieu thereof, and that clearly amounts to the removal of the servant in question Therefore we are satisfied that the impugned Rules are invalid, inasmuch as they are inconsistent with the provisions contained in Article 311(2) The termination of the permanent servants' tenure which is authorised by the said Rules, is no more and no less than their removal from service, and so, Article 311(2) must some into play in respect of such cases. That being so, the Rule which does not require compliance with the procedure prescribed by Article 311(2) must be struck down as invalid.'
A closet scrutiny of the judgment does not in my opinion support the petitioner's learned counsel The following passage appears at one part of his Lordship's judgment-
'Similarly, we do not think it would be possible to accept the argument that theword 'removal' in Article 311(2) should receive the widest interpretation, Apart from the fact that the said provision is in the nature of a proviso to Article 311(2), and must, therefore, be strictly construed, the point raised by the contention is concluded by the decisions of this Court: and we propose to deal with the present appeals on the basis that the word 'removal' like the two other words 'dismissal' and 'reduction in rank' used in Article 311(2) refer to cases of major penalties which were specified by the relevant service rules.'
Another relevant passage in this judgment is as follows: -
'We will no doubt have to decide what cases of termination of services of permanent civil servants amount to removal, but once that question is determined wherever it is shown that a permanent civil servant is removed from his service, Article 311(2) will apply, and Article 310(1) cannot be invoked independently with the object of justifying the contravention of the provisions of Article 311(2)'
It is again stated in this judgment-
'A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded, and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service, and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must, per se amount to his removal, and so, if by Rule 148(3) or 149 (3), such a termination is brought about, the Rule clearly contravenes Article 311(2), and must be held to be invalid.'
It follows from the above that Article 311 applies only to a case of imposition of one of the other of the major penalties mentioned in the said article, and that it does not apply to a case of termination of service 'on the ground of superannuation or compulsory retirement.' The passages which I have extracted above are authority for the position that the termination of service occurring as a result of an amendment of service rules reducing the age of superannuation is not liable to the attack that it is violative of Article 311(2) of the Constitution. The above decision was followed and the same view was reiterated by the Supreme Court in Gurdev Singh v. State of Punjab AIR 1964 SC 1585
33. A question, which is very similar to the one raised by the petitioner in this case, arose for determination in AIR 1965 SC 1567 The appellant in that case was retired from Government service consequent on the reduction of the age of compulsory retirement from 58 years to 55, which was effected by the Governor of Uttar Pradesh by an amendment of the relevant service rules in exercise of his powers under the proviso to Article 309 of the Constitution It was contended that this amendment was hit by An 311 of the Constitution as it amounted to removal of public servants from service without complying with the requirements of Article 311(2). In repelling the above contention the Supreme Court said:--
'The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Article 311, and therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies We, therefore hold that Article 311 has no application to the termination of service of the appellant in the present case.'
Referenct may also be made to the decision of the Supreme Court in Ram Parshad v. State of Punjab AIR 1966 SC 1607. The appellant in this case who was an employee in the State Bank of Patiala, was compulsorily retired from service under Rule 27 under the Bank of Patiala (Staff) Rules 1954. This rule fixed the age of compulsory retirement as 55 years; but it contained a proviso to the effect that the Bank may at its discretion and without giving any reasons, retire any employee after he has completed the age of 50 years of the service of 25 years. which happens first This proviso was attacked before the Supreme Court as violative of Article 311(2) of the Constitution The. Court rejected this contention and re-affirmed its decision in AIR 1964 SC 600, which held that Article 311(2) has no Application to a termination of service arising as a result of a service rule relating to retirement on superannuation. The petitioner's contention that the impugned amendment of Rulp 60 of the Kerala Service Rules is violative of Article 311(2) of the Constitution has therefore to be rejected.
34. Point No (iv)--The next point for consideration is whether the impugned amendment of Rule 60 of the Kerala Service Rules which reduced the age of compulsory retirement is violative of Article 14 of the Constitution. According to the notification of the 58 years rule all were entitled to continue in service till they completed the age of 58 years As a result of the notification of the 55 years rule, all those who attain the age of 55 years on the 4th August 1967 and all those who have been continued in service after 55 years retire on the same date namely 4th August 1967 The age of compulsory retirement of District and Sessions Judge, was raised to 58 years from 5-3-1966. Hence a District and Sessions Judge who was just 55 years on this date continues in service upto 4-8-1967 that is until he completes the age of 56 years 5 months. The age of retirement of these officers therefore, varies from 55 years to 56 years, 5 months. A similar difference arises in the case of the other services also. It was contended that this amounted to a discrimination ofpersons similarly situated. Precisely the same contention was advanced before the Supreme Court in AIR 1965 SC 1567 to which reference has already been made. Dealing with this contention, the Supreme Court said:--
'So far as the rule is concerned it upplies equally to all public servants, and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961, except those few who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to up to 58 years. That certainly is the effect of the second order But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961, in the case of all public servants, who had completed the age of 55 years, but not the age of 58 years before 31-12-1961 In this respect also therefore, there was no discrimination; and all public servants, who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction, were ordered to retire on the same date, namely December 31, 1981 The result of this seems to be that the affected public servants retired at different ages But this was not because they retired at different ages, but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that, if Govt. decides to retain the service of some public servants after the age of retirement, it must retain every public servant for the same length of time The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory for it has treated all public servants alike and fixed December 31 1961, as the date of retirement for those who had completed 55 years but not 58 years upto December 31 1961. The challenge therefore to the two notifications on the basis of Article 14 must fail.'
I see no difference in substance between the notification which was the subject of attack in the above decision of the Supreme Court, and the notification impugned in this case. The petitioner's attack against the notification of the 55 years rule as being violative of Article 14 of the Constitution has also in be rejected.
35. Point No. (v)--This relates to a very important question regarding the scope and applicability of Articles 233, 234, and 235 of the Constitution in the case of themembers of the judicial service. It is convenient to read these articles here:-
'233. Appointment of District Judges (1) Appointments of persons to be, and the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment,
234. Recruitment of persons other than District Judges to the judicial service:- Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with High Court exercising jurisdiction in relation to such State
235. Control over subordinate courts:-The control over district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.'
The petitioner's learned counsel raised two contentions on the basis of these articles.
'(1) The fixation of the age of compulsory retirement of the members of the judicial service is matter relating to the control over the District Courts and Courts subordinate thereto' and under Article 235 of the Constitution it is vested wholly in the High Court Hence the High Court also has the power in fix the age of superannuation in the case of the judicial service:
(1) Article 233 provider that appointments of persons to be District Judges shall be done by the Governor of the State on consultation with the High Court exercising jurisdiction in relation to such State Article 234 provides that appointment of persons other that District Judge to the judicial service of a State shall be made by the Governor in accordance with the rules made by him in this behalf after consultation with the State Public Service Commission and with the High Court The word 'appointments' in these articles includes termination of service Reducing the age of compulsory retirement amounts to termination of service and it cannot, therefore be done in the case of District Judges except in consultation with the High Court, and in the case of subordinate judicial service except in accordance with the rules made as provided by Article 234, aS the reduction of the age of retirement was made without consulting the High Court, it is invalid in so far as the members of the judicial service are concerned.'
36. In support of his first contention, the petitioner's learned counsel cited the decision of the Supreme Court in AIR 1966 SC 447. In this case, an Additional District and Sessions Judge in the service of the State of West Bengal was retained in service beyond the age of superannuation and a disciplinary enquiry was instituted against him by the Govt. keeping him under suspension pending the result of the enquiry. Finally, he was found guilty of some of the charges made against him and dismissed from service by an order of the Government, after consulting the Public Service Commission, but not the High Court Thereafter he moved the High Court under Articles 226 and 227 of the Constitution to quash the order of his dismissal from service. One of the contentions raised was that the control over District Courts and courts subordinate thereto is vested in the High Court under Article 235 of the Constitution, and the authority competent to take disciplinary proceedings and action against the petitioner was only the High Court. In upholding this contention, the Supreme Court said:-
'In our judgment, the control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal, or removal, subject however to the conditions of service, and a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction.'
Reference was then made by the learned counsel to the decision of the Supreme Court In AIR 1967 SC 903. One of the questions which arose in this case was whether the power to transfer a District Judge from one station to another is a matter relating to 'the control' vested in the High Court under Article 235 of the Constitution, or it amounted to 'posting' under Article 233 of the Constitution. The Supreme Court held that the power of transfer of members of the judicial service from one station to another is a matter relating to 'control' and that under Article 235 of the Constitution, the said power vests wholly in the High Court, subject only to the limitations contained in the said Article. But these decisions do not render any assistance for the contention raised by the petitioner's learned counsel. The power of termination of service falls, according to me, in the realm of the power of appointment. The 'control' vested in the High Court under Article 235 relates only to the period during which the member of the judicial service holds office. I am therefore unable, to accept the contention that the 'control' over the members of the judicial service vested in the High Court under Article 235 of the Constitution includes also the power to terminate their service.
37. The second contention involves a correct interpretation of Articles 233 find 234 of the Constitution, and the question for determination is whether the word 'appointments' used in these articles includes also termination of or removal from service. A cardinal rule for the construction of statutes is that they should be construed according to the intention of the legislature which passed it. The same rule also applies to the construction of any provision of the Constitution. It is therefore, necessary in construing the above article to bear in mind the intention of the makers of the Constitution in enacting these provisions. The Subordinate Courts have been specially dealt with by the Constitution in Chapter VI of Part VI. This Chapter contains Articles 233 - 237 The object of the Constitution makers in enacting these special provisions in respect of subordinate courts has been pointed out by Hidayatullah, J in AIR 1966 SC 447. After tracing the history relating to the control of the executive over the subordinate courts in India and the action taken from time to time to free the Subordinate courts from the executive and to place them under the control of the High Court, the learned Judge points out that the special provisions contained in these Articles have been made in the Constitution for the purpose of placing the subordinate courts under the control of the High Court, and to recognise a larger measure of independence for these courts from the executive. Subba Rao, C. J. has dealt with the same matter in Chandra Mohan v. State of U.P., AIR 1966 SC 1987. The following passage appearing in this decision clearly brings out the object of making these special provisions in the Constitution in respect of Subordinate Courts.
'The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States: it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that 'it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question in the case of superior judges.' Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of articles in Ch VI of Part VI under the heading 'Subordinate Courts'. But at the time the Constitution was made, in most of the States the magistracy was under the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So Article 60 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States Simply stated it means that there shall be a separate judicial service free from the executive control.'
The word 'appointments' used in Articles 233 and 234 of the Constitution has to be Construed in such a way as to achieve the constitutional intention in enacting these provisions and what this intention is has been stated by their Lordships of the Supreme Court in the two cases referred to above.
38. The question whether the power of appointment vested in the Governor under Articles 233 and 234 involves also the power of dismissal and removal from service, including termination of service has to be decided in the above background It is not in dispute that the power of dismissing or removing from service or terminating the service of a member of the judicial service is vested in the Governor What has to be examined is whether this power is vested in him by virtue of Articles 233 & 234 of the Constitution, or whether it is vested in him independent of these articles and by virtue of Article 310 of the Constitution or any other provision If this power is vested in him under Articles 233 and 234, it can be exercised only in the manner stated therein. In the light of the constitutional object in making special provisions in respect of the Subordinate Courts in Chapter VI of Part VI of the Constitution, it is difficult for me to accept the position that the power of the Governor to dismiss or remove a person from service is vested in him absolutely, without any of the restrictions placed on him in the matter of appointments under Articles 233 and 234, unless the language of the relevant article in the Constitution compels me to such a construction. If consultation with the High Court is necessary in the matter of appointments for achieving the constitutional intention in making these special provisionsin respect of Subordinate Courts, such consultation is equally necessary in the matter of dismissal or removal from service of a member of the Judicial service for achieving the said object. Dealing with the power of appointment, the Supreme Court said in AIR 1966 SC 1987.
'Having defined 'judicial service' in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge.'
Reference may also be made to one passage appearing in the judgment of the Supreme Court in AIR 1966 SC 447 wherein the Court said:--
'In our judgment the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.'
The above observation was made, when dealing with the amplitude of the 'control' vested in the High Court over subordinate Courts under Article 235 of the Constitution. But it is obvious that the word 'appointment' occurring in this passage refers to the said word as used in Article 233 of the Constitution, and that the Supreme Court has taken it as including dismissal and removal. I do not think the language employed in these articles presents any difficulty for construing the word 'appointments' as including dismissal or removal from service as well as termination of service.
39. Article 367(1) of the Constitution makes the General Clauses Act, 1897 applicable to interpretation of the Constitution, unless the context otherwise requires. Section 16 of this Act reads as follows:--
'16 Power to appoint to include power to suspend or dismiss -- Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.'
This Section only states that the authority having the power to make the appointment shall also have the power to suspend or dismiss any persons appointed in exercise of that power It does not deal with the power to remove from service or to terminate the service Nor does it say that the power to make the appointment includes the power to dismiss or suspend the employee. On a literal construction of this Section, it is quite plausible to contend that the power to appoint and the power to dismiss or remove from service are different powers, and that all that this section means is that the authority in whom the power to appoint is conferred shall also have the power to dismiss and suspend the persona appointed If the meaning of this section is so restricted, it provide; very little purpose in a general interpretation statute. This section has been construed in a totally different manner by courts of law, I shall first refer to the decision of the Federal Court of India in Rayarappan v Madhavi Amma. AIR 1950 FC 140 In this case, the question arose whether an order removing a receiver from office is appealable under Order XLIII Rule 1 Clause (a) of the Civil Procedure Code, which reads as follows -
'1 Appeals from orders. -- An appeal shall lie from the following orders underthe provisions of Section 104, namely:--
* * * *
(a) an order under Rule 1 or Rule 4 of Order XL.
* * *'
Rule 4 or Order XL deals with enforcement of receiver's duties, and has no relevancy here What is relevant is only Clause (a) Sub-rule (1) of Rule 1 of Order XL and it reads,--
'1. Appointment of Receivers -- (1) Where it appears to the Court to be just and convenient, the court may by order-
(a) appoint a receiver of any property. whether before or after decree'
* * *'
It is obvious that an appeal is provided in express terms only from an order, appointing a receiver; and if the word 'appoint' used in Clause (a) of Rule 1 (1) of Order XL cannot be read as 'appoint or remove', an appeal will not lie from an order removing a receiver from office. Dealing with this question the Federal Court said :--
'The statute has codified the well-understood rule of general law as stated byWoodroffe on Receiver Fdn. 4, that the power to terminate flows naturally and as a necessary sequence from the power to create In other words, it is a necessary adjunct of the power of appointment. and is exercised as an incident to, or consequence of, that power; the authority to call such officer into being necessarily implies the authority to terminate his functions, when their exercise is no longer necessary, or to remove the incumbent for an abuse of these functions or for other causes shown. It seems that if was because of this statutory rule based on the principles above mentioned in Order 40 Rule 1 Civil P C no express mention was made of the power of the Court in respect of the removal or suspension of a receiver The General Clauses Act has been enacted so as to avoid superfluity of language in statutes wherever it is possible to do so The legislature instead of saying in Order 40 Rule 1, that the Court will have power to appoint, suspend or remove a receiver simple enacted that wherever convenient the Court may appoint a receiver and it was implied within the language that it may also remove or suspend him. If Order 40, Rule1 Civil P. C. is read along with the provisions above mentioned, then it follows by necessary implication that the order of removal falls within the ambit of that rule and once that decision is reached, it becomes expressly appealable under the provisions of Order 43 Rule 1 (a)'
The Federal Court has referred to a number of decisions of the Indian High Courts, which have taken differing views on this question; and it accepted the view taken by the Calcutta High Court in Sripathi Dutta v, Bibhuti Bhusan Datta AIR 1926 Cal 593, which the Federal Court said, has stated the law on the point correctly Commenting on the opposite view taken by some of the High Courts the Federal Court said -
'It does not appeal to have been appreciated that Section 16, General Clauses Act, does not confer a new right on the Court to remove a receiver It only furnishes a rule of interpretation and enacts that a power of appointment includes and implies within itself the power of removal and wherever a court is empowered to make a certain appointment automatically it gets authority to exercise the Dower of removal in respect of the person appointed.'
As the above decision of the Calcutta High Court was fully approved by the Federal Court, it is useful to notice the reasoning stated in that decision That was also a case of an appeal from an order removing a receiver from office. Dealing with the contention that there is no provision in the Code of Civil Procedure for an appeal from such an order the Court said :--
'In my opinion, however, an appeal will lie under Sub-section (a) of Rule 1 (1) of Order 40 The words used therein are, it is true, 'appoint a Receiver of any property', but under Section 16 of the General Clauses Act, (X of 1897), the power to appoint includes the power to remove or dismiss the power to terminate being a necessary sequence from and adjunct to the power to create; and it may therefore be argued that if a right of appeal is given against appointment, it is given equally against the removal of a receiver since appointment includes the right to remove.'
In Lekhraj v. Deputy Custodian, Bombay AIR 1966 SC 334, the question arose whether the power of appointment conferred upon the custodian under Section 10 (1) of the Administration of Evacuee Property Act, 1950 confers by implication upon the Custodian the power to dismiss of suspend any person appointed The answer is clearly furnished by Section 16 of the General Clause Act, and what is relevant for the purpose of the case in hand is only what the Supreme Court said regarding the application of this section in the interpretation of statutory provisions. The court said:--
'The principle underlying the section is that the power to terminate is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power'.
It follows on the authority of the above judicial pronouncements that the word 'dismissal' used in Section 16 of the General Clauses Act includes removal as well as termination and that the purpose of enacting this provision is to construe a power vested on any authority under any statute to make an appointment as including the power to dismiss or remove the persons appointed from office as well as to terminate his service, unless a different intention appears. I, therefore, come to the conclusion that the word 'appointments' used in Articles 233 and 234 of the Constitution includes dismissal or removal from service as well as termination of service.
40. The learned Advocate General contended that what these articles provide is only a mode of recruitment, and that, if a statute provided that a person may be appointed by an authority in a particular manner it cannot be construed that the person appointed can be dismissed only in the same manner He high-lighted this contention thus Suppose Article 233 provided that a District Judge shall be appointed by the Governor only as a result of a competitive examination. Can it be construed as meaning also that the person appointed can be dismissed from service only as result of a competitive examination I agree that such a construction would make a ridiculous reading of the provision. But this argument looses sight of the express provisions contained in Article 367(1) of the Constitution and also Section 18 of the General Clauses Act. Article 367(1) makes the General Clauses Act applicable to the interpretation of the Constitution only 'unless the context otherwise requires'.
Similarly Section 16 of the General Clauses Act provides that it comes to play only 'unless a different intention appears'. This means that Section 16 of the General Clauses Act should be applied to the interpretation of the provisions of the Constitution unless its application is excluded by the context or a different intention. I cannot also agree with the contention that the consultation with the High Court required to be made by the Governor under Articles 233 and 234 of the Constitution is only a mode of making the appointment That the appointments can be made only in consultation with the High Court is a limitation of the Governor's power; and the compliance with the requirements of these Articles is a necessary condition for the validity of the appointments. In this context, reference may again be made to the decision of the Supreme Court in AIR 1966 SC 1987 wherein the Court, after referring to similar provisions contained In the Constitution said:--
'These provisions indicate that the duty to consult is so integrated with the exercise of the power can be exercised only in consultation with the person or persons designated therein'.
I have already held that the word 'appointments' in Articles 233 and 234 includes dismissal or removal from service as well as termination of service. Consultation with the High Court as required by these articles is, therefore, a necessary condition for termination of service of a member of the judicial service. It is not disputed that the impuged amendment of Rule 60 of the Kerala Service Rules was made by the Governor without consulting the High Court as required by these articles. The result is that this amendment is invalid and inoperative in respect of the members to the judicial service.
41. I shall now deal with O. P. 2181 of 1967. The petitioner in this case is an Assistant Secretary to the Government of Kerala. The contentions based on Articles 233, 234 and 235 of the Constitution are not available to him His learned counsel, while adopting all the other contentions of the petitioner in O. P. 2119 of 1967, advanced as additional contention. He submitted that, by virtue of the amendment of Rule 60 of the Kerala Service Rules by notification dated 18th January 1967, the petitioner acquired a vested right to continue in Government service till he attains the age of 58 years, and that the Government are estopped from reducing the age of compulsory retirement, since he had arranged his future affairs on the faith of the Government's action raising the age of retirement to 58 years, and the termination of his service before the said age would subject him to serious detriment in several ways. It is unnecessarv to consider whether by the raising of the age of retirement, the petitioner had only benefits of enjoying extended service, as it should ordinarily be, or he suffered any detriment. In law and in fact, the petitioner's complaint is only against a legislative exercise of power conferred on the Governor under the proviso to Article 309 of the Constitution. It requires no authority to say that such a contention cannot be countenanced.
42. In the result. I hold that the impugned notification G. O. (P) 187/67/Fin dated 11th May 1967 is invalid and inoperative as regards the members of the judicial service are concerned, and that the said notification is valid and operative in respect of all the remaining services. Accordingly, I allow O. P. No. 2119 of 1967 and dismiss O. P. No. 2181 of 1967. The respondent will pay the costs of the petitioner In O. P. 2119. Counsel's fee is fixed at Rs. 250. In the circumstances of this case, I make no order as to costs in O. P. 2181 of 1967.
43. Petitions dismissed.