RAMAKRISHNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) PLAINTIFF is the appellant. He was a part-time menial in an aided school from 1-6-1966 to 31-8-1974. Thereafter he was promoted as full-time menial and again promoted as full-time peon from 1-9-1974. As a peon, he had to on superannuation on 6-6-1982 when he was due to complete the age of 55. He was informed from the Department that he had to retire on 6-6-1982 because the benefit of G. O. (P) 202/70/fin. dated 7-4-1970 fixing the age of retirement at 60 to the Last Grade Servants was not applicable to him on the ground that he was not a full-time employee on or before the date of the G. O. He took the stand that since he exercised the option under R. 24-B of the Kerala Education Rules and became a full time employee, he was entitled to continue in service upto the age of 60. To that effect, he filed a petition to the Education Department on 24-8-1981 and a reminder on 22-9-1982. He also applied for stay of termination of his service. Interim stay was granted under ext. Al. On the basis of the stay, he worked as full-time peon till 11-11-1983. On 1-11-1983 his petition was rejected on the ground that he is entitled to continue only upto the age of 55. That is Ext. A2. The order was communicated on 11-11-1983 on which date he was removed from the service. The suit was filed for realisation of the unpaid salary and emoluments from 6-6-1982 upto 11-11-1983. Contention of the defendant-State was that the stay order did not make him eligible for salary and hence his claim cannot stand. The suit was decreed by the Munsiff. But the decision was reversed by the Subordinate Judge on two grounds namely, (1) The salary and service conditions are governed by the provisions of a special Statute namely, the Kerala Education Act and the Rules made thereunder and that the general provisions contained in a general statute like the contract Act cannot therefore be applied, and (2) The effect of the stay order is only till the disposal of the main petition and subject to the result of it. When the main petition itself is dismissed and the stay vacated, no benefit can flow out of the interim order. That is how the plaintiff happened to come up in second appeal.

(2.) THERE is no dispute regarding the fact that the appellant continued in service and discharged his duties during the relevant period on account of the stay granted by the Government. It is also admitted that Government is the authority responsible for disbursement of the salary and emoluments. That is as per S. 9 of the Keral a Education Act. The school and thereby the Government had the benefit of his services. No substitute was appointed during that period. THEREfore, there was no necessity or occasion to make any payment to anybody else. Government had the unrestricted option to refuse stay and sent away the appellant from service as soon as he attained the age of 55. In these circumstances, the question is whether the claim of the appellant will come within the ambit of S. 70 of the contract Act or not. That is the substantial question of law involved in this second appeal.

(3.) THE three conditions essential for the applicability of S. 70 of the Contract Act which involves the principle of quasi-contract or quantum merit are (1) A person should lawfully do something for another or deliver something to him, (2) In doing the said thing or delivering the article he must not intend to act gratuitously, and (3) THE other person for whom something was done or to whom something was delivered must have enjoyed the benefit thereof. When these three essential pre-requisites are satisfied, S. 70 imposes upon the latter person the liability to make compensation to the former in respect of or to restore the thing done or delivered. In order to the applicability of the Section, it is necessary that the person against whom the claim is made must have been at liberty to refuse to accept the thing or to return it. In otherwords , he must have always had the option to accept or reject. THE section applies only when the person having such an option voluntarily accepts the thing or enjoys the work done. If the option is not there, S. 70 is excluded. S. 70 occurs in Chapter V which deals with certain relations resembling those created by the contract. THE chapter does not deal with rights and liabilities accruing from the contract. It particularly deals with obligations of persons voluntarily enjoying the benefit of gratuitous acts (AIR 1962 SC 779 ). Since the liability is not on the basis of any valid contract, there is no scope for a suit for specific performance or for damages for breach of contract.