DR. PRAKASAN M.P. AND OTHERSversusSTATE OF KERALA AND ANOTHER

                 [2023] 14 S.C.R. 293 : 2023 INSC 772



                            CASE DETAILS

                DR. PRAKASAN M.P. AND OTHERS
                                     v.
                STATE OF KERALA AND ANOTHER
                     (Civil Appeal No. 7580 of 2012)
                           AUGUST 25, 2023
           [HIMA KOHLI AND RAJESH BINDAL, JJ.]

                             HEADNOTES

      Issue for consideration: Three Government orders (G.Os) issued
enhancing the retirement age of doctors in medical category, however,
were made prospective in nature. Appellants questioned the decision of
the State of not incorporating a clause in the three G.O’s. issued, making
their operation retrospective, which would have otherwise enured to their
benefit.
      Kerala Service Rules – r. 60(a) or 60(c) Part-I – The Government
Order dated 14.01.2010 enhanced the retirement age of Doctors in the
Medical category under the Medical Education Service from 55 years
to 60 years with retrospective effect from 01.05.2009 – Thereafter,
three G.Os were issued including G.O. dated 09.04.2012 whereby, the
retirement age of the teaching staff in Homeopathic Medical Colleges
was also enhanced from 56 years to 60 years – However, all three G.Os
were prospective in nature – Propriety of:
      Held: The singular difference was that unlike G.O. dated 14.01.2010,
the subsequent three G.Os issued by the State were made prospective, thus
denying any relief to the teaching faculties in the Dental, Ayurvedic and
Homeopathic streams who had superannuated in the meantime – Such a
decision lies exclusively within the domain of the Executive – It is for
the State to take a call as to whether the circumstances demand that a
decision be taken to extend the age of superannuation in respect of a set of
employees or not – It must be assumed that the State would have weighed

                                    293
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all the pros and cons before arriving at any decision to grant extension of
age – Appellants herein cannot claim a vested right to apply the extended
age of retirement to them retrospectively and assume that by virtue of the
enhancement in age ordered by the State at a later date, they would be
entitled to all the benefits including the monetary benefits flowing from
G.O. dated 09.04.2012, on the ground of legitimate expectation – The
idea behind extension of retirement age of doctors was to take care of the
emergency situation caused by shortage of doctors, which was resulting
in affecting the studies or patient care – It was not merely to grant benefits
to a particular class. [Paras 15, 17 and 19]
    Doctrine – Doctrine of Legitimate Expectation – Service
Regulations:
      Held: The Doctrine of Legitimate Expectation does not have any role
to play in matters that are strictly governed by the service regulations – This
is an exercise that is undertaken by the State in discharge of its public duties
and should not brook undue interference by the Court. [Para 19]

       LIST OF CITATIONS AND OTHER REFERENCES
     New Okhla Industrial Development Authority and Another vs. B.D.
Singhal and Others 2021 SCC Online SC 466; Monnet Ispat and Energy
Limited. Vs. Union of India (2012) 11 SCC 1:[2012] 7 SCR 644 – relied on.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CIVIL APPELLATE JURISDICTION: Civil Appeal No.7580 of 2012
     From the Judgment and Order dated 06.08.2010 of the High Court of
Kerala at Ernakulam in WA No.1338 of 2010.
      Appearances:
    Sanand Ramakrishnan, Rajeev Mishra, Madan M. Bora, A. Raghunath,
Advs. for the Appellants.
      Jaideep Gupta, Sr. Adv., C. K. Sasi, Adv. for the Respondents.
DR. PRAKASAN M.P. AND OTHERS v. STATE OF KERALA 295
                 AND ANOTHER


       JUDGMENT / ORDER OF THE SUPREME COURT

                                   JUDGMENT
     HIMA KOHLI, J.
      1. The appellants, who are members of the teaching faculty in
Homeopathic Medical Colleges situated in the respondent No.1 - State of
Kerala1, are aggrieved by the judgement dated 6th August, 2010, passed
by the High Court of Kerala, Ernakulam 2, concurring with the judgement
dated 19th July, 2010, passed by the learned Single Judge3. The relief prayed
for by the appellants was for enhancing their age of retirement from 55
years to 60 years by extending the benefit of the Government Order4 dated
14th January, 20105, which increased the retirement age of Doctors in the
Medical category under the Medical Education Service from 55 years to
60 years with retrospective effect from 1st May, 2009. The prayer made
was not granted.
     THE FACTS :
      2. To put the issue raised in the instant case in the correct perspective,
we may first refer to the relevant facts. The State issued a Government
Order6 dated 14th January, 2010, recording inter-alia that there was a
shortage of qualified and experienced medical faculties in several subjects
in Government Medical Colleges in the State and that on account of the age
of retirement of the faculty including medical doctors at 55 years, several
departments were facing dearth of medical doctors which, was adversely
affecting post graduate medical courses. Noting that at the National level,
the retirement age of doctors in Medical Colleges was 65 years and retention
of senior professors in service would help the State increase the number
of post graduate seats as per the revised norms laid down by the Medical
Council of India, the State ordered that :



1   For Short ‘the State’
2   In Writ Appeal No. 1338 of 2010
3   In Writ Petition (Civil) 13537 of 2010
4   For short ‘G.O’
5   G.O.(MS) No.14/2010/H&FWD
6   G.O. (MS) No.14/2010/H&FWD
296             SUPREME COURT REPORTS                       [2023] 14 S.C.R.


       “Government have examined the various aspects and pleased to order
       that the retirement age of the doctors in the Medical category under
       the Medical Education Service be increased to 60 years from existing
       55 years. This order has retrospective effect from 1.5.2009. This order
       is not applicable for faculties in Dental, Nursing, Pharmacy and Non-
       Medical categories under Medical Education Service.”
      3. Aggrieved by the exclusion of doctors/professors of Government
Homeopathic Colleges from the purview of the captioned G.O. dated 14 th
January, 2010, the appellants filed a writ petition7 in the High Court of
Kerala praying inter alia for extension of the benefit of the said G.O. to
Homeopathic Doctors working in Government Homeopathic Colleges. The
said writ petition was disposed of by the High Court on 29th March, 2010
with a direction issued to the State to consider the pending representations
of the appellants and pass an order within three months. Since the State did
not take any decision on their representations, the appellants approached the
High Court once again and filed another writ petition3, which was dismissed
by the learned Single Judge vide order dated 19th July, 2010. Noting that the
State Government did not amend Rule 60 (a) or 60 (c) Part (I) of the Kerala
Service Rules8, the learned Single Judge held that the existing rule position
as obtained from Rule 60(c) of the K.S. Rules, could not be ignored. It was
also observed that the appellants had not challenged the G.O. dated 14 th
January, 2010. Instead, they approached the Court seeking parity with those
covered under the said G.O., by claiming that it ought to be extended to
them as well so as to enable them to continue in service beyond the normal
date of retirement, which was impermissible.
      4. Dissatisfied by the above judgement, the appellants filed an appeal2
which came to be dismissed by the Division Bench of the High Court.
Concurring with the view expressed by the learned Single Judge, the Division
Bench observed that since extension of age for the teaching staff of Medical
Colleges is a policy decision, it is not open for the High Court to issue any
directions to the respondent No.1 – State to increase the retirement age of the
teaching staff of Homeopathic Medical Colleges. Hence the present appeal.



7     Writ Petition (C) No.10709 of 2010
8     For short ‘K.S. Rules’
DR. PRAKASAN M.P. AND OTHERS v. STATE OF KERALA 297
         AND ANOTHER [HIMA KOHLI, J.]

     THE RELEVANT RULES :
     5. The conditions of service of persons employed by the State are
regulated by the K.S. Rules, unless they are exempted entirely or in part as
prescribed in Rule 3. Rule 60 falls under Chapter VIII of Part I of the K.S.
Rules that deals with compulsorily retirement. Rule 60 (c) as it stood at the
relevant point in time prescribed that :
     “60 (c) The teaching staff of all Educational Institutions (including
     Principals of Colleges) who complete the age of 55 years during
     the course of an academic year shall continue in service till the
     last day of the month in which the academic year due, before the
     last day of the month in which they attain the age of 55 years.
     But they shall not be eligible for increment or promotion during
     the period of their service beyond such date. If they are on leave
     on the day they attain the age of 55 years and if there is no prospect
     of their returning to duty before the closing day of the academic year
     for vacation they shall be retired with effect from the last day of the
     month in which they attain the age of 55 years. But in cases where
     officers coming under this rule are under suspension on the date of
     superannuation or thereafter the date of superannuation or on the date
     of suspension whichever is later.
     If, however, the day on which the teaching staff (including Principals
     of Colleges) attain the age of 55 years falls within the period of one
     month beginning with the day of re-opening of the institutions they
     shall cease to be on duty with effect from the date of such re-opening
     and they shall be granted additional leave from the date of re-opening
     to the last day of the month in which they attain the age of 55 years.
     They shall be entitled to the benefit of increment if it falls due before
     the actual date on which they attain the age of 55 years.”
     6. Rule 60 (a) which is more relevant for our discussion, reads as
follows:
     “60. (a) : Except as otherwise provided in these rules the date
     of compulsory retirement of an officer shall take effect from the
     afternoon of the last day of the month in which he attains the age of
298          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      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.”
      7. As can be gathered from the above, Rule 60 (a) of the K.S. Rules
is a general provision and is not applicable to the teaching staff for whom a
separate provision has been specifically incorporated, i.e., Rule 60(c) that
prescribes their age of retirement and classifies them as a separate class in
the matter of retirement. Rule 60 (c) prescribes that even if the teaching
staff completes the age of 55 years during the course of an academic year,
subject to the conditions stipulated in the said Rule, they would continue
in service till the end of the academic year. Quite apparently, the object
behind carving out this exception for the teaching staff is to safeguard the
interest of the students whose studies may not get adversely affected due
to the superannuation of a teacher midway through an academic session.
      8. After notice was issued in the present appeal on 16 th December,
2010, some subsequent developments took place as brought out in an
application moved by the appellants. In the year 2012, the respondent No.1
– State Government issued three G.O.s in a space of ten days, namely, G.O.
dated 30th March, 2012, G.O. dated 7th April, 2012 and G.O. dated 9th April,
2012. In G.O. dated 30th March, 20129, taking note of the earlier G.O. dated
14th January, 2010 whereby, the retirement age of Doctors in the Medical
category under Medical Education Service had been enhanced from 55 years
to 60 years, the State ordered that the retirement age of doctors working in
Government Dental Colleges and the Dental Wings in the Medical Colleges
be also enhanced from the age of 55 years to 60 years, so as to avoid problems
that may be faced by the research students due to retirement of experienced
faculty working as Guides.
     9. This was followed by issuance of G.O. dated 7th April, 201210
whereunder, based on similar considerations, the respondent No.1 –
State Government enhanced the retirement age in respect of the staff
teaching in Ayurveda Colleges from 56 years to 60 years. Next, came


9 G.O.(MS) No.105/2012/H&FWD
10 G.O.(MS) No.107/2012/H&FWD
DR. PRAKASAN M.P. AND OTHERS v. STATE OF KERALA 299
         AND ANOTHER [HIMA KOHLI, J.]

G.O. dated 9th April, 201211 whereby, the retirement age of the teaching
staff in Homeopathic Medical Colleges was also enhanced from 56 years
to 60 years, bringing them at par with the teaching staff of Ayurvedic
Medical Education. It is noteworthy that all the three G.Os. issued by the
State subsequent to issuance of the G.O. dated 14th January, 2010, were
prospective in nature.
      10. In view of the above successive decisions taken by the respondent
No.1 – State Government, during the pendency of the present appeal, the
grounds originally taken by the appellants to assail the impugned judgement
and their argument that G.O. dated 14th January, 2010 was discriminatory as it
treated Doctors in Medical Colleges on a better footing vis-à-vis Homeopathic
and Ayurvedic Doctors though they formed a homogenous group, were no
longer available. As a result, without filing an application for amending the
appeal, the appellants filed an additional affidavit on 1st October, 2012, where
a grievance was raised that though several representations had been made
by them to the State when they were still in service, the G.O. dated 9th April,
2012 issued later on, was not given retrospective effect thereby depriving
them of the benefits of enhancement of age to which they would have been
legitimately entitled and in the meantime, they had retired. Inherent in this
argument is the plea of legitimate expectation taken by the appellants.
     THE ANALYSIS :
      11. It is well-settled that the age of retirement is purely a policy
matter that lies within the domain of the State Government. It is not for the
courts to prescribe a different age of retirement from the one applicable to
Government employees under the relevant service Rules and Regulations.
Nor can the Court insist that once the State had taken a decision to issue
a similar Government Order that would extend the age of retirement of
the staff teaching in the Homeopathic Colleges as was issued in respect of
different categories of teaching staff belonging to the Dental stream and the
Ayurvedic stream, the said G.O. ought to have been made retrospective,
as was done when G.O. dated 14th January, 2010 was issued by the State



11 G.O.(MS) No.108/2012/H&FWD
300          SUPREME COURT REPORTS                       [2023] 14 S.C.R.


and given retrospective effect from 1st May, 2009. These are all matters
of policy that engage the State Government. It may even elect to give the
benefit of extension of age to a particular class of Government employees
while denying the said benefit to others for valid considerations that may
include financial implications, administrative considerations, exigencies
of service, etc.
      12. In a somewhat comparable case on facts that arose in New Okhla
Industrial Development Authority and Another vs. B.D. Singhal and
Others12, the appellant - Authority (NOIDA) had resolved to recommend
enhancement of the age of superannuation of its employees from 58 to
60 years. The said proposal, when sent to the State Government for prior
approval, was turned down. This led to the aggrieved employees filing
a writ petition before the High Court of Judicature at Allahabad which
was allowed and NOIDA was directed to consider the matter afresh and
forward its proposal to the State Government for its approval. It was left
open to the State Government to consider giving effect to the increase in
the age of retirement from the date when NOIDA had resolved to bear
the financial burden for the increase of age or from such date as it may
consider expedient. This time, the State Government acceded to the
proposal received from NOIDA for enhancing the age of retirement to 60
years, but made the said decision prospective. Aggrieved by the refusal of
the State Government to make the decision retrospective, the respondents
amended the pending writ petition which was allowed by the High Court
that struck down the provision of making the decision prospective and
directed that such of the respondents who had retired from service by
then, would be deemed to have worked till the extended age of retirement,
with all consequential benefits. Challenging the said decision, the State of
Uttar Pradesh filed a Petition for Special Leave to Appeal under Article
136 of the Constitution of India, which was allowed by this Court with
the following observations :
      “22. Whether the age of superannuation should be enhanced is a
      matter of policy. If a decision has been taken to enhance the age of
      superannuation, the date with effect from which the enhancement


12 2021 SCC Online SC 466
DR. PRAKASAN M.P. AND OTHERS v. STATE OF KERALA 301
         AND ANOTHER [HIMA KOHLI, J.]

   should be made falls within the realm of policy. The High Court
   in ordering that the decision of the State government to accept the
   proposal to enhance the age of superannuation must date back to 29
   June 2002 has evidently lost sight of the above factual background,
   more specifically (i) the rejection of the original proposal on 22
   September 2009; and (ii) the judgment of the Division Bench dated
   17 January 2012 refusing to set aside the order rejecting the proposal
   on 22 September 2009 which has attained finality. But there is a more
   fundamental objection to the basis of the decision of the High Court.
   The infirmity in the judgment lies in the fact that the High Court
   has trenched upon the realm of policy making and has assumed
   to itself, jurisdiction over a matter which lies in the domain of the
   executive. Whether the age of superannuation should be increased
   and if so, the date from which this should be effected is a matter
   of policy into which the High Court ought not to have entered.
                           ×××      ×××      ×××
   24. Whether the decision to increase the age of superannuation
   should date back to the resolution passed by NOIDA or should
   be made effective from the date of the approval by the State
   government was a matter for the State government to decide.
   Ultimately, in drawing every cut-off, some employees would
   stand on one side of the line while the others would be positioned
   otherwise. This element of hardship cannot be a ground for the
   High Court to hold that the decision was arbitrary. When the State
   government originally decided to increase the age of superannuation
   of its own employees from fifty-eight to sixty years on 28 November
   2001, it had left the public sector corporations to take a decision based
   on the financial impact which would result if they were to increase the
   age of superannuation for their own employees.
   25. From time to time the authorities of the State took a decision bearing
   upon the exigencies of service prevailing in each organisation. ……….
   The State government had evidently determined that it was for each
   organisation to consider and determine the impact of the financial
   burden, and based on that the organisation was to submit a proposal
   for the approval of the government.
302          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      26. The High Court’s observation that the Government order
      on 30 September 2012 increasing the age of superannuation
      prospectively is arbitrary seems to be based on the premise that the
      respondent-employees have a vested right to the increase in the age
      of retirement on the passage of the resolution by NOIDA. However,
      Section 19 of the Act stipulates that regulations - which would include
      amendments as in this case - will require the previous approval of
      the State Government. The employees will have a vested right to the
      increased age of superannuation only after the service regulations are
      modified upon approval of the State Government, and from such date
      as maybe prescribed by the Government. Para 1(ii) of the government
      order issued on 30 September 2012 clearly and in unambiguous
      terms states that the order shall come into force prospectively. The
      government order can be given retrospective application only
      if expressly stated or inferred through necessary implication.
      Therefore, the respondent-employees could not have claimed a
      vested right that the enhancement in the age of retirement should
      be made effective from the date on which NOIDA had resolved to
      submit a proposal for the approval of the government.”
                                                         (Emphasis added)
      13. In the instant case, at the time of issuing G.O. dated 14th January,
2010, the reasons that had weighed with the State for enhancing the age of
retirement from 55 years to 60 years have been spelt out. The recitals refer
to the dearth of eligible hands in the middle level cadre for promotion, the
fact that many Post Graduate Medical Courses were likely to be adversely
affected due to the said reason and also the fact that retention of senior
professors in service at Government Medical Colleges would help the State
Government to increase the number of Post Graduate seats, in terms of the
revised norms circulated by the Medical Council of India.
      14. Similarly, while considering extension of the age of retirement of
Doctors in the Dental faculties under the Medical Education Service, taking
note of a letter addressed by the Director of Medical Education who stated
that some highly qualified members of the Senior Dental faculty were due
to retire and their retirement would adversely affect the research students
DR. PRAKASAN M.P. AND OTHERS v. STATE OF KERALA 303
         AND ANOTHER [HIMA KOHLI, J.]

working under them, as also hinder the conduct of some of the ongoing
Post Graduate Courses in Government Dental Colleges, the State permitted
enhancement of their age from 55 years to 60 years.
      15. When it came to the third G.O. dated 7th April, 2012, the recitals
therein refer to the report of the Director of Ayurveda Medical College who
pointed out dearth of qualified teaching staff in higher categories and the
adverse remarks made by the Central Council of India Medicine, which had
proceeded to reduce the number of BAMS seats from the sanctioned strength
of 70 to 50 in the Government Ayurveda College, Thiruvananthapuram,
and had refused to grant permission for Postgraduate courses in different
specialities. Keeping this scenario in mind, the State decided to enhance the
retirement age of the teaching faculty in Ayurveda Colleges from 56 years to
60 years. Lastly, came G.O. dated 9th April, 2012 wherein, taking note of the
representation received from the Principal of the Government Homeopathic
College, Thiruvannathapuram, similar benefit was extended to the teaching
staff in Homeopathic Colleges. The singular difference was that unlike G.O.
dated 14th January, 2010, the subsequent three G.Os issued by the State were
made prospective, thus denying any relief to the teaching faculties in the
Dental, Ayurvedic and Homeopathic streams who had superannuated in the
meantime. In this background, the appellants filed the additional affidavit
questioning the decision of the State of not incorporating a clause in the
three G.O’s. issued later on, making their operation retrospective, which
would have otherwise enured to their benefit.
      16. Had the matter stood as it was on the date when the impugned
judgement came to be passed, perhaps the appellants could have advanced
an argument that the action of the State must be expected to be fair and
reasonable and in line with the guarantees extended under Article 14 of
the Constitution of India and that there was no rationale in treating them
differently when Doctors/Professors from all streams teaching in Medical
Colleges in the State formed a homogenous class and are governed by
the same set of Service Rules and Regulations. But after the respondent
No.1 – State Government issued three successive G.Os extending the age
of retirement of the members of the Dental Faculties, Ayurvedic Faculties
and Homeopathic Faculties from 55 years to 60 years, the insistence on the
304           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


part of the appellants that these G.Os ought to be given retrospective effect,
even though there was no clause to that effect inserted therein, cannot be
countenanced.
       17. Such a decision lies exclusively within the domain of the Executive.
It is for the State to take a call as to whether the circumstances demand that
a decision be taken to extend the age of superannuation in respect of a set of
employees or not. It must be assumed that the State would have weighed all
the pros and cons before arriving at any decision to grant extension of age. As
for the aspect of retrospectivity of such a decision, let us not forget, whatever
may be the cut-off date fixed by the State Government, some employees
would always be left out in the cold. But that alone would not make the
decision bad; nor would it be a ground for the Court to tread into matters of
policy that are best left for the State Government to decide. The appellants
herein cannot claim a vested right to apply the extended age of retirement
to them retrospectively and assume that by virtue of the enhancement in age
ordered by the State at a later date, they would be entitled to all the benefits
including the monetary benefits flowing from G.O. dated 9th April, 2012, on
the ground of legitimate expectation.
      18. Pertinently, similar pleas as taken by the respondents-employees
herein were raised in the case of NOIDA (supra) where the employees
had sought to invoke the principles of promissory estoppel and legitimate
expectation for increasing the age of superannuation retrospectively and
were shot down as inapplicable. For taking this view, reliance was placed
on Monnet Ispat and Energy Limited. Vs. Union of India 13 wherein this
Court had opined that if a communication issued was a proposal or a mere
recommendation, the principle of promissory estoppel will not apply for the
simple reason that for invoking the said principle, there must be a promise
and based on the said promise, the party concerned ought to have acted to
its prejudice. In the NOIDA case (supra), this Court had outrightly turned
down the argument advanced by the respondent–employees therein that
the Doctrine of Legitimate Expectation would come into play. It was held
that the said doctrine cannot have a place when enhancement of the age of
superannuation is “a public function” that is governed by the provisions of


13 (2012) 11 SCC 1
DR. PRAKASAN M.P. AND OTHERS v. STATE OF KERALA 305
         AND ANOTHER [HIMA KOHLI, J.]

the Statute and the relevant service regulations. The position is the same
in the present case.
      19. No doubt, the appellants were the first to raise the battle cry when
they filed not one, but two writ petitions in the High Court for extending
them the benefit of G.O. dated 14th January, 2010. But it is a matter of record
that there was no positive order granted in their favour throughout. Even
in the present proceedings, no interim order was passed in favour of the
appellants who have superannuated in the meantime. The clock cannot be
put back for them by reading retrospectivity in the G.O. dated 09th April,
2012, when the State elected not to insert any such clause and evidently
intended to apply it with prospective effect. The idea behind extension
of retirement age of doctors was to take care of the emergency situation
caused by shortage of doctors, which was resulting in affecting the studies
or patient care. It was not merely to grant benefits to a particular class. The
Doctrine of Legitimate Expectation does not have any role to play in matters
that are strictly governed by the service regulations. This is an exercise that
is undertaken by the State in discharge of its public duties and should not
brook undue interference by the Court.
     20. In view of the aforesaid discussion, the impugned judgment is
upheld. It is deemed appropriate to dismiss the present appeal as meritless
while leaving the parties to bear their own expenses. Ordered accordingly.


Headnotes prepared by:                                          Appeal dismissed.
Ankit Gyan