M. RAMAKRISHNA MENON Vs. THE STATE OF KERALA

JUDGEMENT

(1.) While in a normal, natural state of affairs retirement for a man, from service long past the middle age, should be a welcome change, people cling on even to humble posts, after the conventional age of superannuation, when economic insecurity confronts them even at that stage. This is the human side of the story of the petitioner who is but one among many seeking, through Court and otherwise, to postpone the date of compulsory retirement from service.

(2.) The petitioner, a teacher retired from Government service on 31-3-1965, and thanks, presumably, to domestic economic compulsions, - sought service under the 3rd respondent whose school had just been started. Taking advantage of the ripe experience of the petitioner the 3rd respondent appointed him as Headmaster by order dated 30-5-1966 (Ext. P1). Although in the ordinary scheme of things the age of retirement in Government service and private school service - which latter is governed by the Kerala Education Act and Rules framed thereunder, - is the same, Ext. P.2 , an order issued by the Government on 6-5-1966, permitted trained teachers who had retired from government or private schools but had not passed the age of 59 on Ist June 1966, to be employed as teachers in aided schools for the school year 1966-67 with provision to continue them under certain limited circumstances. This enabling order of government, issued under Chap.21 R.2 sub-r.(2) of the Kerala Education R.1959, empowered the manager, 3rd respondent, to employ the petitioner by his order, Ext. P.1. Subsequently, a departmental decision was taken to put an end to the employment of overaged teachers and when the educational officers sought to implement this decision by issuing directions to aided schools, writ petitions were filed challenging the validity of such directions. They ended successfully, in a sense, as is apparent from the ruling reported in Ramakrishna Menon v. State of Kerala ( 1969 KLJ 319 ). In the meanwhile, Chap.21 R.2(2), already referred to, was deleted by an amendment of the Kerala Education Rules, published in the Kerala Gazette dated 10-12-1968. Oblivious of this deletion, Ext. P.3 order was issued by the government on 19-3-1969 "In exercise of the powers conferred by sub-r.(2) of R.2 of Chap.21 Kerala Education Rules" withdrawing, with effect from 31st March 1969, the earlier notification Ext. P.2. Acting on Ext. P.3. duly communicated to the 3rd respondent by the 2nd respondent, the Assistant Educational Officer, Parur, the petitioner was jettisoned from service by the manager whereupon the present writ petition was filed challenging the validity of Ext. P.3 and the consequential or, at any rate, subsequent section taken by the 3rd respondent of terminating the service of the petitioner. After having heard arguments on both sides, I find it difficult to avert in this writ proceeding, the misfortune that must inevitably overtake the petitioner on an application of the present Rules under the K.E.R. In this jurisdiction I cannot act or misericordian. Ext. P.1, in terms, does not fix the duration of employment. On the other hand, the appointment has been made "subject to the provisions of Kerala Education Act and the Rules thereunder and such other rules or orders issued from time to time by Government or other competent authority". It is not therefore possible for the petitioner to contend that he has a right to continue in service till he attains the age of 60 solely on the strength of Ext. P. 1. It is true that he has put forward such a case in his affidavit in an earlier writ petition to which the present 3rd respondent was a party, and it is also true that the latter has not chosen to refute this statement in that O.P. Nevertheless, it is not proper to find a conclusion merely on the averment and non denial in the earlier O.P. Ext. P.2, which is really the source of power for Ext. P.1, is rather careful about the period during which the embargo on employment of retired teachers should be kept in abeyance. The preamble to Ext. P.2 sets out the scarcity of trained teachers who are required "for appointment in aided schools for the year 1966-67". Thus, the relaxation in regard to age is primarily motivated by the insufficient availability of teachers for the year 1966-67. However, the body of the G.O. proceeds to state that superannuated teachers so appointed for the school year 1966-67 "may, if necessary, be allowed to continue till they complete the age of 60 years without reappointment". "If necessary" are the key words, according to counsel for the 3rd respondent and he argues that it is the option of the manager to extend the period of employment taking note of the availability of trained teachers and in this case he does not deem it necessary to continue the petitioner for the current year. This is a plausible argument which I will consider later, but if, as a fact, the appointment has been made on the basis that the petitioner could continue up to 60, then the construction of Ext. P.2 cannot avail the 3rd respondent. On the present materials of assertion and denial I am not prepared to venture a conclusion as to the terms of the contract. All that I need say is that if the petitioner has been appointed to serve till he attains 60 it does not run counter to Ext. P.2 and cannot be said to be illegal when it was entered into, and if a right has thus been created in his favour it is not open to the respondent to repudiate it unilaterally. A close reading of Ext. P.2 persuades me to the view that government wanted to restrict the induction of retired teachers to the minimum period and therefore allowed their appointment for one year to be continued only if the manager felt it necessary in which case the managers are given the power initially to appoint for the year 1966-67 and thereafter to continue such appointees at their choice; may be for one year or more. Thus the situation resolves itself into a question of fact as to whether the employment was for service till 60 or only 59. As stated earlier, I think it neither necessary nor proper to decide this issue of fact in the present writ petition.

(3.) If the manager has really appointed the petitioner to serve till he attains the age of 60, and that contract is being violated now, what is the remedy of the teacher In the earlier batch of writ petitions between teachers and managers on a similar question - and the petitioner was one such writ petitioner - Gopalan Nambiyar J. dealt with a similar argument. Before referring to how his Lordship dealt with the matter, let me advert to another aspect of the argument of the petitioner. He contended that no order of termination as such had been issued to him by the manager and that all that has happened is a communication of the A. E. O.'s intimation of Ext. P.3 The manager has the power to appoint and terminate the appointment. That power has to be exercised independently and not under dictation from Government. At any rate, some order of termination has to be passed by the manager. The petitioner's contention is that the termination is illegal since the manager has acted on account of Ext. P.3 and not independently. Therefore, even assuming that one can spell out a termination of service by the manager, it is not an act of his own volition and therefore is invalid. Lastly, there is no actual termination of service by the manager and a mere communication of the G.O., Ext. P.3, is not equal to a termination of employment. The manager, on the other hand, takes the stand that Ext. P.3. is legal, that he has decided to terminate the service of the petitioner and that what has been done is not merely to communicate the Government order formally but also to relieve the Headmaster of his post. This having been done, the Court has no power under Art.226 of the Constitution to compel the manager to reinstate the teacher, thus granting specific performance of the contract of employment even assuming a wrongful breach of contract.