STATE OF MYSORE Vs. BORAMMA

JUDGEMENT

(1.) The above second appeal has been referred to a Division Bench by Narayana Pai, J. because he found that the questions relating to limitation raised in this case were of importance and not free from difficulty and that he considered that it was desirable that the appeal should be heard by a Division Bench.

(2.) The legal representatives of the deceased respondent have not chosen to engage a lawyer. Narayana Pai, J. by an order appointed Mr. G. D. Shirgurkar, an Advocate of this Court as amicus curiae, to assist the Court in the disposal of this case. We thank Mr. G. D. Shirgurkar for the assistance rendered by him.

(3.) This second appeal arises out of a suit instituted by the plaintiff in O.S.130 of 1962 on the file of the Second Munsiff, Mysore, against the State of Mysore for recovery of a sum of Rs.648 by way of salary and dearness allowance for a period of seven months due to him from 30-1-1959 to 30-8-1959 and a sum of Rs.30 towards notice charges. He also prayed for a declaration that the plaintiff was entitled to get from the defendants gratuity and pension calculated on the basis of the plaintiff's service upto 30-8-1959 The said suit was decreed by the Munsiff and the appeal filed by the State of Mysore against the said decree in RA. 61 of 1964 on the file of the Civil Judge. Mysore, was unsuccessful. Against the decree in appeal, the State of Mysore has preferred this second appeal. Briefly stated the facts of the case which have given rise to this appeal are thus: The plaintiff was employed in the Education Department of the Government of Mysore and was working as the Head Master of the Government Primary School, Hemmige, when he was served with an order dated 11-12-1956 by the District Educational Officer, Mysore, that his services were continued for a period of one year from 30-8-1956 on the basis that the plaintiff would attain the age of superannuation on that date. It is not disputed that the plaintiff was born on 30-8-1901 and that he completed 55 years on 30-8-1956 According to the plaintiff, he being a trained teacher in the Education Department, he should have been retired on the completion of 58 years of age in view of Note 4 to Rule 294(a) of the Mysore Service Regulations which were in force in 1956. The plaintiff claimed that on the basis of the said provision in the Mys. Ser. Reg. he should have been retired from service only on 30-8-1959 on which date he would have attained 58 years of age Instead of doing so, the plaintiff was ordered to be retired from service on 30-8-1957 two years earlier than the date on which he should have been retired from service. The claim of the plaintiff, therefore in the plaint was that the order prematurely terminating his services on 30-8-1957 was invalid, unconstitutional and of no effect and that he should be deemed to have been in service till 30-8-1959 and that he was entitled to the salary and allowances till 30-8-1959 and for computation of gratuity and pension on the basis that his services continued till 30-8-1959. The plaintiff issued a notice under S.80 of the CPC. setting out his claim and demanding compliance with his request to the Government of Mysore. The Government of Mysore not having complied with the demand, he instituted the suit as stated above on 21-3-1962.