(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 55 to 58. And, accordingly, R.60 (a) of Part I the Kerala Service Rules (the K. S. R. for short these are rules made under the proviso to Art.309 of the Constitution) which specifies the age of superannuation and provides for compulsory retirement at that age, was amended on 18 1 1967 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 1966 Teachers including Headmasters 1 7 1966 Other 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 service after they attain the age of 55 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) I76/67/Fin. dated 4 5 1967, expressly superseding the G. Os. raising the age to 58, decided to lower the age once more to 55. And, again, on 11 5 1967, R.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 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."
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 Art.226 of the Constitution. We are, by this judgment, disposing of two of these petitions, O. P. No. 2119of 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 R.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 Art.309 of the Constitution in that it is retrospective in operation, and that it is bad for offending R.6, Part 1, K.S.R. and Art.14, 233 to 235 and 311 of the Constitution.
(3.) The term, "mala 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 prevailing in this State, being inadequate, indeed irrelevant, It is pointed out that, having regard to the number of educated persons in this 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 retirement for the three years, 1963 to 1965, even under the 55 year rule, being but a tenth of the average annual recruitment.;