PROJECT OFFICER, IRDP AND ORS.versusP. D. CHACKO

                        [2010] 6 S.C.R. 846


A             PROJECT OFFICER, IRDP AND ORS.
                                 v.
                          P. D. CHACKO
                 (Civil Appeal No. 4392 of 2010)

                           MAY 11, 2010
8
      [DALVEER BHANDARI AND K.S. RADHAKRISHNAN,
                         JJ.]

        Service Law - Retirement - Kera/a Service Rules, 1959
c - Part I, r.60(b)- Exception clause conferring benefit of higher
  age of superannuation for specified category of government
  employees - Entitlement under - Respondent worked as a
  full time menial in an aided school from 1968 to 1976 -
  Subsequently, he resigned from the post and joined a
  government department - Claim by respondent that since he
0
  was in service of an aided school as on 7-4-1970, he was
  entitled to benefit ulr. 60(b) and thus continue in service upto
  60 years of age as against the normal superannuation age
  of 55 years - Tenability of - Held: Not tenable - In order to
E get benefit of r.60(b), concerned government servant must
  have been in last grade service as on 7-4-1970 and
  continued to be in that last grade service - Respondent failed
  to produce any documents to show that the post he was
  holding 1. e., full time menial in an aided school was included
  in the categories of posts in the special rules for last grade
F service nor did he show that he had continued to be in the
  last grade service as defined in r.12(16A) as on 7-4-1970 -
  A/so no material was produced by respondent to establish that
  the service of full time menial in an aided school as on 7-4-
   1970, was saved by r.60(b).
G       Interpretation of Statutes - Exception clause -
  Interpretation of - Held: An exception clause has to be strictly
  interpreted and cannot be assumed but be proved -
  Exception clause is always subject to the rule of construction
  and in case of doubt, it must befriend the general provision
H                               846
    PROJECT OFFICER, IRDP AND ORS. v. P. D.               847
                  CHACKO

and disfavour the exception - If any category of person claims   A
exception from the operation of the statute, it must establish
that it comes within the exception.
    Respondent worked as a full time menial in an aided
school from 1968 to 1976. Subsequently, he resigned
from the post and joined as a Peon in a. government              B
department.
    Respondent had raised a claim that he was entitled
to continue in service up to 60 years of age as per rule
60(b) Part-I of the Kerala Service Rules, 1959 stating that
he was in the "last grade service" as on 7-4-1970 and            C
continued to be in the "last grade service". The claim was
rejected by the department. Respondent challenged the
rejection before High Court. The High Court gave
direction to confer the benefit of rule 60(b) Part-I on the
respondent, which was challenged in the present appeal.          D
    Before this Court, the question which arose for- .
consideration was whether the respondent, who was in
service of an aided school as on 7-4-1970, was entitled
to get the benefit of rule 60(b) Part-I so as to continue in
government service upto 60 years of age.                     E
     Allowing the appeal, the Court
     HELD:1.1. Rule 60 of the Kerala Service Rules (KSR)
dealing with the retirement of officers. appears in Chapter
VIII of Part I KSR under the heading 'compulsory
                                                                 F
retirement'. Rule 60(a) is the substantive part of the Rule,
which deals with the age of retirement and Rule 60(b)
deals with a specified category of officers in the "last
grade" which is an exception to the main provision. [Para
9] [852-H; 853-A]
                                                                 G
     1.2. Rule 60(a) prescribes 55 years as the age of
retirement in respect of government servants. However,
Government servant shall be permitted to continue
beyond 55 years, with the sanction of the Government on
public grounds which must be recorded in writing. In
                                                                 H
    848     SUPREME COURT REPORTS                [2010] 6 S.C.R.


A very special circumstances, a Government servant may
  be retained in service beyond 60 years of age. An
  exception has however been made in respect of a
  specified category of government servants under clause
  ' b' of Rule 60. Clause 'b' of the Rule 60 provides that
8 officers who were in the "last grade service" as on
  07 .04.1970 would retire on attaining the age of 60 years,
  provided they continued to be in "last grade service" as
  defined in Rule 12(16A). Therefore, in order to get benefit
  of Rule 60(b) two conditions have to be satisfied. The first
C condition is that the government servant concerned
  must have been in "last grade service" as on 07.04.1970
  and the second condition is that the benefit of Clause 'b'
  would be available only as long as such person continues
  to be in the "last grade service" as defined in Rule
D 12(16A). [Para 9) (853-E-G; 854-C]
         1.3. Prior to 07 .04.1970, government servants who
    were in "last grade service" were entitled to higher age
    of superannuation of 60 years, however with effect from
    07.04.1970 they were brought on par with other
E   government servants with the result that they had to retire
    on attaining the age of superannuation of 55 years.
    Government felt it was necessary to protect them and
    hence Clause 'b' was introduced in Rule 60 giving them,
    the benefit of continuance in service, till they attained the
    age of 60 years. Normal age of superannuation in a
F   government service is 55 years. Evidently, the said
    clause was introduced by way of exception to Clause 'a'
    of Rule 60 to protect their right to continue up to 60 years
    of age. The benefit of exception clause is, therefore,
    available only to a specified category of employees who
G   were in "last grade service" as defined in Rule 12(16A)
    of the Rules. Rule 60(a) stipulates the age of retirement
    of government servants as 55 years but an exception has
    been carved out to a specified category of government
    servants but for that they also would have fallen in Rule
H   60(a). By judicial interpretation one cannot enlarge the
      PROJECT OFFICER, IRDP AND ORS. v. P. D.              849
                    CHACKO

 scope of an exception clause, which is meant for a               A
 specified category of government employees. [Para 11]
 [854-G-H; 855-A-B]
       2. Exception clause is normally part of the enacting
 section, unlike a proviso which follows an enacting part.
 It is trite law that an exception clause has to be strictly      B
 interpreted and cannot be assumed but be proved.
 Exception clause is always subject to the rule of
 construction and in case of doubt, it must befriend the
 general provision and disfavour the exception. If any
 category of person claims exception from the operation           C
 of the statute it must establish that it comes within the
 exception. [Paras 12 and 13] [855-C, F]
      Crawford's interpretation of Laws (1989) page 128,
 referred to.
                                                                  D
         3. In the case at hand, the respondent has not
   produced any materials to show that the post he was
   holding i.e., full time menial in an aided school was
   included in the categories of posts in the special rules for
   "last grade service". Further, the respondent has to
   show. that he continued to be in the "last grade service"      E
   as defined in Rule 12(16A) as on 07.04.1970. Respondent
   has not produced any materials either before the High
   Court or before this Court to establish that the service of
   full time menial in an aided school as on 07.04.1970, has
   been saved by Clause (b) of Rule 60 Part-I KSR. No             F
   materials have been produced to show that the aided
,, school service would fall under the above mentioned
   provisions, or in the "last grade service" as defined under
   Rule 12(1'6A). [Paras 14 and 15) [855-G-H; 856-8)
     4.1. Part-Ill KSR deals with pension. Chapter 2 of that      G
 Part deals with "qualifying service" .. Rule 14 E says that
 service in an aided school put in by government
 employees prior to any other government service qualify
 for pension. If the intention of the rule making authority
 was to give the benefit of continuous service of 60 years        H
    850       SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A of age for those who were in aided school service then
  the same would have been specifically provided in the
  rules. Aided school service prior to government service
  is reckoned as qualifying years of service only for
  calculating pension not for continuity of service up to 60
B years of age. [Para 16] [856-C, D]
        4.2. Respondent's prior service in an aided school,
  it is informed ~as already been reckoned for the purpose
  of calculating pension but the period he has served from
  55 years of age to 60 years of age on the basis of court's
C order cannot be reckoned for the purpose of pension and
  other service benefits since he was not legally entitled to
  get the benefit of Rule 60(b) Part-I KSR. However, salary
  if any paid to the respondent for the above period shall
  not be recovered. [Para 16] [856-F]
D        CIVIL APPELLATE JRISDICTION: Civil Appeal No. 4392
    of 2010.
        From the Judgment & Order dated 15.01.2007 of the High
    Court of Kerala at Ernakulam in W.A. No. 35 of 2007.
          G. Prakash for the Appellant.
E
        Bina Madhavan (for Lawyer's Knit & Co.) for the
    Respondent.
          The Judgment of the Court was delivered by
          K.S. RADHAKRISHNAN, J. 1. Leave granted.
F
       2. The question that falls for o•Jr consideration in this case
  is whether the respondent who was in service as on 07.04.1970
  as a full time menial in an aided school is entitled to get the
  benefit of Rule 60(b) Part-I Kerala Service Rules, (KSR for
  short) so as to continue in government service upto 60 years
G of age.
      3. The respondents entered service in an aided school on
  25.06.1968 and worked as a full time menial upto 09.04.1976.
  He resigned from the post and joined as a Peon in the Tribal
H Welfare Department of the Gover~~ent of Kerala on
    PROJECT OFFICER, IRDP AND ORS. v. P. D.                  851
       CHACKO [K.S. RADHAKRISHNAN, J.]
10.04.1976. Respondent had raised a claim that he was                A
entitled to continue in service up to 60 years of age as per
Rule 60(b) Part-I KSR since he was working as a full time
menial in an aided school as on 07.04.1970 and continued to
be in the last grade till he attained the age of 55 years. His
claim was rejected by the Department vide order No.E-49227/          B
2001.
     4. Feeling aggrieved by that order he preferred a writ
petition O.P.No.29317/2001 before the Kerala High Court.
Learned Single Judge of the Kerala High Court on 25.05.2006
allowed the writ petition holding that had he remained in the        c
aided school service he woulc:f have continued upto 60 years
of age, hence he was entitled to the benefit of Rule 60(b) Part-
1 KS8.    Learned single judge gave a direction to allow the
respondent to continue in service till he attained 60 years of
age and to settle his pension and other benefits accordingly.        D
State of Kerala and Others preferred writ appeal no.35 of 2007
before the Division Bench of the Kerala High Court and the
appeal was dismissed on 15th January, 2007 at the admission
stage. Feeling aggrieved by that judgment this appeal has
been preferred by the State of Kerala and their officers.
                                                                     E
     5. Mr. G. Prakash, learned counsel appearing for the State
of Kerala submitted that the High Court has committed a grave
error in holding that the respondent who was working as a full
time menial in an aided school as on 07.04.1970 was entitled
to get the benefit of Rule 60(b) of Part-I KSR. Counsel              F
submitted that the service in an aided school has not been
included in the last grade service as defined in GO(P)82/66/
PD dated 08.03.1966 and as per the government decision no.1
under Rule 14 in Part-Ill KSR the said period can be counted
only for pensionary benefit~ but does not confer any right to        G
the incumbent to continue in service upto 60 years of age.
Consequently, provisional pension has already been sanctioned
to the respondent considering his regular service till he attained
the age of 55 years under Rule 3A Part-Ill KSR.
     6. Ms. Beena Madhavan, learned counsel appearing for            H
     852      SUPREME COURT REPORTS                 [2010] 6 S.C.R.


·A respondent submitted that the service put in by the respondent
   in the aided school from 25.06.1968 to 09.04.1976 should be
   taken into consideration for the purpose of granting benefit
   under Rule 60(b) of Part-I KSR. Learned counsel submitted
   as per Rule 29(b) of Part-Ill KSR past service would be counted
 8 if a person resigns from a service to join another service.
   Lean •=>r! counsel also referred to Rule 14E of KSR Part-Ill and
   submitted that the a:ded school service put in by the government
   employee prior to his entry in service would qualify not only for
   the purpose of pension, but also for continuity ;., service upto
 C 60 years of age. Learned counsel, therefore, submitted that
   respondent had satisfied all the criteria for claiming the benefit
   of Rule 60(b) Part-I KSR and the High Court has rightly granted
   the benefit.
          7. The primary question that arises for consideration is
 0   whether the respondent who was in service of an aided school
     as on 07 .04.1970 was entitled to continue in service till he
     attained 60 years of age as per clause 'b' of Rule 60 of Part-
     1 KSR.
       8. KSR was introduced by the Government of Kerala under
E the proviso to Article 309 of the Constitution of India with effect
  from 01.11.1959 and these rules are deemed to have been
  made under the Kerala Public Service Act (Act 19 of 1968).
  KSR contains 3 parts. Part-I contains rules relating to general
  conditions of service, pay fixation, leave, joining time, foreign
F service etc. Part-II contains rules relating to traveling allowance
  and Part-Ill contains rules of pension. These rules are
  applicable to all officers who entered service on or after
  01.11.1956 and those who entered in service prior to
  01.11.1956 and who opted to be governed by these rules.
G Since introduction of these rules government has issued various
  amendments and several executive orders by way of
  directions, instructions, clarification etc. Government has also
  reserved to itself the power to modify these rules from time to
  time.
 H         9. Rule 60 dealing with the retirement of officers appears
        PROJECT OFFICER, IRDP AND ORS. v. P. D.                   853
         \ CHACKO [K.S. RADHAKRISHNAN, J.]

    in Chapter VIII of Part I KSR under the heading 'compulsory A
    retirement'. Rule 60(a) is the substantive part of the Rule, which
    deals with the age of retirement and Rule 60(b) deals with a ·
    specified category of officers in the last grade which is an
    exception to the main provision. Rule 60(a) and (b) read as.
    follows:-                                                          B•
        "60(a) Except as otherwise provided ih 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 55 years. He may be retained after this
        date only with the sanction of Government on public               C
        grounds which must be recorded in writing, but he must
        not be retained after the age of 60 years except in very
        special circumstances .
       • (b) Officers in the Last Grade Service on the 7th April,
         1970 will retire on the afternoon of the last day of the month   D
         in which they attain the age of 60 years provided that this
         benefit will be available to them only as long as they
         continue to be in the Last G~ade Service as defined in
         Rule 12(16A)"
                                                                          E
    Rule 60(a) prescribes 55 years as the age of retirement in
    respect of government servants. However, Government servant
    shall be permitted to continue beyond 55 years, with the
    sanction of the Government on public grounds which must be
    recorded in writing. In very special circumstances a Government
    servant may be retained in service beyond 60 years of age.            F
    An exception has however been made in respect of a specified
    category of government servants under clause ' b' of Rule 60.
    Clause 'b' of the Rule 60 provides that officers who were in the
    last grade service as on 07.04.1970 would retire on attaining
    the age of 60 years, provided they continued to be in last grade      G
    service as defined in Rule 12(16A) of the Rules. Rule 12(16A)
    of Part-I KSR defines 'Last Grade Service', which reads as
    follows:-
         [16(A) Last Grade Service - "Last .Grade Service" means          H
,        service in any post included in the Kerala Last Grade
    854       SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A         Service constituted by the Special Rules for the Kerala
          Last Grade Service, published under G.O. (P) No.82
          Public (Rules) Department, dated the 8th March, 1966, in
          Part-I of the Kerala Gazette No.14 dated the 5th April,
          1966, as amended from time to time, and includes service
s         in any post declared by the Government to be a post in
          the Last Grade Service]
          Therefore, in order to get benefit of Rule 60(b) two
          conditions have to be satisfied. The first condition is that
          the government servant concerned must have been in last
C         grade service as on 07.04.1970 and the second condition
          is that the benefit of Clause 'b' would be available only as
          long as such person continues to be in the last grade
          service as defined in Rule 12 (16A) of the rules.
       10. Let us examine why this benefit has been extended to
D a specified category of government servants, i.e., "Officer's in
  the Last Grade Service" as on 7th April, 1970. Certain
  categories of posts have been included in the Kerala Last
  Grade Service by the State of Kerala in exercise of the powers
  conforred by the proviso to article 309 of the Constitution of
E India vide Notification GO(P)No.82/66/PD dated 8th March,
  1966 called 'special rules' for the Kerala Last Grade Service.
  Rule 1 of the special rules contain various categories of posts
  which inter alia include any other post in the Last Grade Service
  as defined in Clause 16A of Rule 12 in Part-I KSR and who
F has not been included in any other service.
        11. Prior to 07.04.1970 government servants who were in
  last grade service were entitled to higher age of superannuation
  of 60 years, however with effect from 07 .04.1970 they were
  brought on par with other government servants with the result
G that they had to retire on attaining the age of superannuation
  of 55 years. Government felt it was necessary to protect them
  and hence Clause 'b' was introduced in Rule 60 giving them,
  the benefit of continuance in service, till they attained the age
  of 60 years. Normal age of superannuation in a government
H service is 55 years. Evidently, the said clause was introduced
    PROJECT OFFICER, IRDP AND ORS. v. P. D.                    855
       CHACKO [K.S. RADHAKRISHNAN, J.]

by way of exception to Clause 'a' of Rule 60 to protect their          A
right to continue up to 60 years of age. The benefit of exception
clause is, therefore, available only to a specified category of
employees who were in last grade service as defined in Rule
12(16A) of the Rules. Rule 60(a) stipulates the age of
retirement of government servants as 55 years but an exception         B
has been carved out to a specified category of government
servants but for that they also would have fallen in Rule 60(a).
By judicial interpretation we cannot enlarge the scope of an
exception clause, which is meant for a specified category of
government employees.                                                  c
     12. Exception clause, is normally, part of the enacting
section, unlike a proviso which follows an enacting part:'
Crawfor~'s interpretation of Laws (1989) page 128, speaks of
exception as follows:-
     The exception, however, operates to affirm the operation,         D
     of the Statute to all cases not excepted and excludes all
     other exceptions; that is, it exempts something which
     would otherwise fall within the general words of the
     Statute".
     13. It is trite law that an exception clause nas to be strictly   E
interpreted and cannot be assumed but be proved. Exception
clause is always subject to the rule of construction and in case
of doubt, it must befriend the general provision and disfavour
the exception. If any category of person claims exception from
the operation of the statute it must establish that it comes within    F
the exception.
       14. The respondent has not produced any materials before
 us to shbw that the post he was holding i.e., full time menial in
an aided school was included in the categories of posts in the         G
special rules for last grade service. Further, the respondent
has to show that he continued to be in the last grade service
as defined in Rule 12(16A) of the Rules as on 07.04.1970:
Respondent has not produced any materials either before the
High Court or before this Court to establish that the service of
full time menial in an aided school as on 07.04.1970, has been         H
    856      SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A   saved by Clause (b) of Rule 60 Part-I KSR.
      15. Rule 2 of Chapter 1 KSR says subject to the provisions
  of Rule 3, rules in Parts I and II apply to every person in the
  whole time employment of the government subject to certain
  exceptions. No materials have been produced before us to
B show that the aided school service would fall under the above
  mentioned provisions, or in the Last Grade Service as defined
  under Rule 12(16A) of the Rules.
           16. Part-Ill KSR deals with pension. Chapter 2 of that Part
    deals with "qualifying service". Rule 14 E of the above
C   mentioned Rules says that service in an aided school put in by
    government employees prior to any other government service
    qualify for pension. If the intention of the rule making authority
    was to give the benefit of continuous service of 60 years of age
    for those who were in aided school service then the same would
D   h?ve been specifically provided in the rules. Aided school
    sel'.(ice prior to government service is reckoned as qualifying
    years of service only for calculating pension not for continuity
    of service up to 60 years of age. Rule 29(b) Part Ill is also, not
    applicable to the facts of the case, since in this case we are
E   concerned with the question whether the respondent falls within
    the exception clause (b) of Rule 60. Respondent's prior service
    in an aided school, we are informed has already been
    reckoned for the purpose of calculating pension but the period
    he has served from 55 years of age to 60 years of age on the
F   basis of court's order cannot be reckoned for the purpose of
    pen!?ion and other service benefits since he was not legally
    entitled to get the benefit of Rule 60(b) Part-I KSR. However,
    salary if any paid to the respondent for the above period shall
    not be recovered.
G        17. For the above mentioned reasons, we are inclined to
    allow this appeal and set aside the judgment of the Kerala High
    Court and uphold the order passed by the Department E-49227
    of 2001.

H B.B.B.                                            Appeal allowed.