Decided on April 03,1968

MATHAI Appellant


- (1.) The writ petition, as amended, seeks to quash Exs. P 1, P 2 and Exs. R 3 and R 4. The details and nature of these exhibits will be referred to presently. The petitioner was an assistant teacher of the M.T.L.P. School, Naranammoozhy. His date of birth is 6-12-1910. By reason of the benefits conferred in the first instance on Government Servants by G. O. No. 324/66 and extended later to others, the petitioner was entitled to continue in service till completion of the age of 58 years. After the age of superannuation was thus raised the petitioner had opted for the benefit of Chap.14(C) of the Kerala Education Rules. Thereafter, by G. O. 176/67, dated 4-5-1967, the age of superannuation in regard to the Government servants was reduced from 58 to 55, This was followed in other departments including private aided institutions like the one where the petitioner was employed. G. O. No. 176/67, contained a provision by which persons continued in service beyond 55 years of age were to retire on 4-8-1967. The next relevant G. O. to be noticed is G. O. 231/67, dated 29-5-1967. The same allowed teachers a period of three months to opt for being governed by the Rules in Chap.14(B) of the Kerala Education Rules. The said period was also available for a reexercise of option by those who had already opted to be governed by the rules in Chap.14(C). Those who within the period of three months thus exercised their option to be governed by the rules in Chap.14(B) were allowed to continue in service till the attainment of 60 years of age. The petitioner did not reexercise any such option.
(2.) On 20-6-1967, the petitioner applied for leave on half pay for a period of two months from 26-6-1967 to 25-8-1967. In anticipation of leave being granted, a substitute seems to have been appointed for this period ,and she functioned till 25-8-1967. After the expiry of the petitioner's leave the petitioner rejoined on 28-8-67. (26th and 27th August 1967 being holidays) and continued till 26-10-1967. It would appear that on the petitioner's leave application dated 20-6-1967, the A.E.O. passed orders only on 18-9-1967, granting leave to the petitioner only for 39 days ana directing that he is to retire on3-8-1967. The A.E.O.'s order itself was communicated to the 3rd respondent the Manager of the school on 23-10-1967 and he served Ex. P 1 communication on the petitioner on 24-10-1967, informing him that his leave has been sanctioned from 25-6-1967 to 8-8-1967, and further that as per R.62 of Chap.14(A) of the Kerala Education Rules, the petitioner had to retire from 'service with effect from 3-8-1967. Ex.P 2 dated 23-10-1967, is a copy of the communication by the 2nd respondent Headmaster to the petitioner informing him of the A.E.O's proceedings on his leave application and that the petitioner's services were to terminate on 3-8-1967. Ex. R 3 is a copy of the relieving order, by the Headmaster, relieving the petitioner from service on 25-10-1967, and Ex. R 4 is a copy of the ' communication by the Headmaster to the A.E.O. informing him that the petitioner has been relieved from service.
(3.) On the above facts, the petitioner's counsel contended that the order retiring him from service on the basis of R.62 of Chap.14(A) of the Kerala) Education Rules cannot be sustained. The said rule runs as follows: ''62. Retirement: A teacher who completes the age of retirement during the course of an academic year but not within one month from the date of reopening shall continue in service till the close of the school for the midsummer vacation. But if he is on leave on such date with no prospect of returning to duty or on leave from the commencement of the academic year to the date of superannuation he may be retired on the due date, If the teacher applies for any leave other than casual leave during the period of his continuance under this Rule beyond the age of retirement, he shall be retired forthwith." The argument of the petitioner's counsel was that the teacher who is referred in the concluding sentence of the rule is, and could only be one who falls within the opening part thereof and the petitioner being one who would not fall within the opening part of the rule cannot be relieved from service on the strength of the concluding sentence. appears to me that there is no substance in the argument. The petitioner who had completed the age of 55 years was allowed to continue till the attainment of 58 years by reason of the increase in the age of superannuation. While he was thus continuing in service, as a result of the lowering of the age of superannuation, the petitioner had to retire on 3-8-1967. This seems sufficient to attract the opening part of R.62 of Chap.14(A) and to hold that the petitioner is one who completed the age of retirement during the course of the academic year. Whether he did so within one month from the dale of reopening or not and the consequence thereof, will be dealt with separately.;

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