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Srinivasan v. State Of Kerala

Kerala High Court

Sep 22, 1988

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Judgment Summary — Original Petition by Retired Private College Teachers (Kerala)

Factual and Procedural Background

Fourteen retired private college teachers (former Principals or Professors affiliated to Kerala, Calicut and Gandhiji/Mahatma Gandhi Universities) filed an Original Petition challenging statutory provisions affecting pension, provident fund, gratuity, insurance and age of retirement applicable to private college teachers.

Historically, before the formation of Kerala State, private college teachers in the regions that became Kerala were governed by differing regimes (Travancore, Cochin and Malabar), with different pay scales, retirement ages and provident/pension arrangements. After integration and the formation of Kerala, the Kerala University First Statutes and Calicut University First Statutes (1976–1977) were issued; they included provisions affecting retirement age and pension eligibility (including a rule—Statute/Rule 16—providing that service beyond 55 years would not qualify for pension and gratuity for certain teachers).

The petitioners sought declarations that Statutes 16, 19 and 25 of Chapter III of the Calicut University First Statutes and corresponding provisions in the Kerala University First Statutes were ultra vires the Constitution (specifically Article 14), to strike them down, and to direct respondents to calculate and re-fix petitioners' pensions based on emoluments at age 60. They challenged several government orders (Exts. R1, P.5, P.6) limiting retrospective pension benefits and alleged discriminatory treatment vis-à-vis university employees and other categories.

The State filed counter-affidavits asserting (inter alia) that the petitioners had exercised an option to retire at age 60 under earlier statutes and were therefore estopped from challenging Rule/Statute 16; the State also produced various government orders and later affidavits indicating partial concurrence to amend certain statutes (19 and 25) but declining to agree to Statute 16.

The High Court directed production of records (minutes, notifications and orders), made interim directions for payment of admitted pension amounts, considered the material produced (including minutes, amendments, government orders and further affidavits) and heard submissions before reaching its decision.

Legal Issues Presented

Whether Statute 16 of Chapter III of the Calicut University First Statutes (and the corresponding provision in the Kerala University First Statutes) — which provides that service beyond 55 years does not qualify for pension and gratuity — is ultra vires Article 14 of the Constitution of India.
Whether Statutes 19 and 25 (relating to eligibility for pension and commutation) and government orders (including Exts. R1, P.5, P.6) are invalid or discriminatory in their retrospective application or limitation of benefit periods.
Whether the petitioners, having allegedly exercised an option to retire at 60, are estopped from challenging Rule/Statute 16 or otherwise precluded from claiming pension based on service up to 60 years.
If Statute 16 is invalid, whether respondents should be directed to refix and pay petitioners' pensions taking service up to age 60 into account (including retrospective adjustments and the basis of emoluments for pension calculation).

Arguments of the Parties

Petitioners' Arguments

The petitioners sought a declaration that Statutes 16, 19 and 25 and corresponding provisions in the Kerala University First Statutes are ultra vires Article 14 and should be struck down.
They alleged hostile discrimination where government orders (Ext. R1 / Ext. P.5) limited benefit operation from specific dates (e.g., 27-11-1982) thereby excluding teachers who retired earlier (1-4-1976 to 26-11-1982) from benefits; this was said to infringe Article 14.
They contended that university teaching and non-teaching staff permitted to retire at 60 are given full pension (i.e., service beyond 55 is counted) and that denying equivalent treatment to private college teachers is discriminatory.
They asserted that the fact of having worked up to age 60 should count for pension calculation (including last pay at 60), and that the alleged "option" to retire at 60 did not waive constitutional pension rights nor justify discarding service beyond 55 when computing pension.
They relied on certain university amendments (Exts. P.1 and P.2) and government orders (Exts. P.7, P.8) that they said supported counting service up to 60 for pension, and sought quashing of government orders that limited retrospective effect.

Respondent (State of Kerala) — Principal Contentions

The State contended that the First Statutes (1976) provided that teachers who entered service before 1-4-1958 could exercise an option to retire at 55 or 60, and the petitioners had exercised the option to retire at 60; therefore their pensionary benefits were governed by provisions applicable to those who opted for 60.
The State argued that, having knowingly opted to continue to 60 and enjoyed salary and ancillary benefits for those additional years, the petitioners cannot now claim a different basis for pension—invoking estoppel and the petitioners' awareness when making the option.
The Government produced orders (e.g., Ext. R1) and later affidavits asserting partial concurrence to amend statutes 19 and 25, but stated that amendment to Statute 16 could not be agreed to because it was not contemplated in a particular Government Order (G.O.MS 83/85 H. Edn. dated 22-4-1985).
The State disputed the petitioners' allegation of a prior agreement between Government and teacher associations permitting retirement at 60 for those before a cut-off date, denying that such an agreement or discussion was on record.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D.S. Nakara v. Union of India ((1983) 1 SCC 305 : AIR 1983 SC 130) (also cited later as 1987 Supp SCC 543 : AIR 1988 SC 130)	Principles for granting pension; equality before law and equal protection; doctrine of classification — twin tests of reasonable classification and a rational principle correlated to the object sought to be achieved.	The court relied on D.S. Nakara to analyze whether pensioners form a class and whether dividing that class by eligibility criteria (as in Statute 16) satisfies Article 14. The court applied the twin-test approach and concluded that Statute 16 did not pass Article 14 scrutiny.
L.I.C. of India v. S.S. Sriwastava ((1987) 4 SCC 112 : AIR 1987 SC 1526)	Concept of "vanishing groups" — favourable treatment of a group that will cease to exist over time may be considered when assessing classification and its effects.	The government pleader relied on this authority to argue that petitioners constituted a vanishing group and that favourable treatment in limited circumstances does not establish an unconstitutional classification. The court recorded this reliance but did not accept the estoppel/waiver arguments based on it.
B. S. Yadav v. C.M. Central Bank of India ((1987) 3 SCC 120 : AIR 1987 SC 1706)	Used in support of the proposition that groups treated favourably sometimes form special classes (similar reasoning cited by State).	The Government relied on this case; the court noted the reliance but, on the totality of material, did not find that the petitioners' case fell within an acceptable classification to sustain Statute 16 under Article 14.
B. Prabhakar Rao v. State of A.P. (1985 Supp SCC 432 : AIR 1986 SC 210)	Observations on retrospectivity and classification — refusal to make an act retrospective or non-application clauses may create impermissible classifications under Article 14.	The court cited this case for the proposition that non-retrospectivity or differential application may itself create impermissible classification under Article 14, and used it to assess the legality of limiting benefits to particular periods.
Poonammal v. Union of India ((1985) 3 SCC 345 : AIR 1985 SC 1196)	Holds that pension is not a mere bounty but a constitutional promise/right; pension is a right and not a gratuitous payment.	The court invoked Poonammal to reinforce that pension is a right (not a bounty) and that such a constitutional right cannot be treated as waived merely by an option claimed to have been exercised.
Basheshar Math v. I.T. Commr. (AIR 1959 SC 149)	Authority cited to support that a constitutional right (like pension) cannot be waived casually.	The court referred to this authority to support the proposition that pensionary rights cannot be treated as waived by the beneficiaries merely for argument's sake; used to reject the State's contention that petitioners had waived rights by opting for 60.
Kochukunju Padmanabhan v. State of Kerala (1986 KLT 1281)	Principle that employees are entitled to salary for periods actually worked; illustrative local precedent on entitlement to remuneration.	The court relied on this local precedent to support the proposition that pensioners (and workers) are entitled to consequences of service actually rendered; used it to answer State contentions about rights relinquished by working to age 60.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps based on the material before it:

Statutory procedure and competence: The court reviewed the relevant university Acts (Calicut and Kerala) and observed that the Government's power was confined to making the first statutes and ordinances (e.g., S.82 of the Calicut University Act and analogous provisions in the Kerala University Act). Thereafter, it was the Senate (and ultimately the Chancellor's assent) that controlled subsequent statute-making. The court emphasized that once the Government's initial power was exhausted, it was not for the Government to decide the amendments — it was for the Chancellor to take decision on amendments passed by the Universities.
Narrowing of the controversy: Given the Government's additional counter-affidavit (14-7-1988) recording concurrence to amend Statutes 19 and 25 but not Statute 16, the court identified the principal legal issue for consideration as the validity of Statute 16 (which disqualified service beyond 55 years from qualifying for pension and gratuity).
Evidentiary inquiry into "option": The court required production of records relating to the decision to call for the option (whether to retire at 55 or continue to 60) because the wording and conditions of the option were critical. The court received only partial material: records relating to a re-option provision (i.e., a subsequent opportunity to re-opt to 60) but no reliable record showing the conditions of the original option or that petitioners knowingly waived rights in the light of a then-existing rule like Statute 16.
Assessment of voluntariness/waiver: Because neither party could produce records clearly showing the conditions or consequences of the original option, and because the First Statutes and Rule 16 were framed later (in 1976–1977) after the earlier option period, the court concluded it would be unjust and improper to hold petitioners had voluntarily relinquished rights by opting for 60. The court rejected the State's contention in its counter-affidavit that petitioners "after having studied the pros and cons" voluntarily opted to retire at 60.
Application of precedent on pensions and equality: The court extensively relied on Supreme Court authorities (notably D.S. Nakara) laying down that pensioners form a class and that differentiation among pensioners must satisfy Article 14’s twin tests of reasonable classification and a rational nexus with the object sought. The court also invoked Poonammal (pension as a constitutional right) and Basheshar Math (limits on waiver of constitutional rights) to conclude that pensionary rights cannot be treated as a bounty and cannot be waived in the manner contended for by the State.
Retrospectivity and discrimination: The court considered the contention that limiting benefits (by dates in government orders) produced hostile discrimination. It noted doctrinal support (B. Prabhakar Rao) for the proposition that non-retrospectivity or selective application itself can amount to impermissible classification under Article 14.
Conclusion on legality of Statute 16: On the combined consideration of the absence of credible evidence of an informed waiver/option, the statutory procedure issues, and the application of Article 14 jurisprudence on pensioners and classification, the court held Statute 16 (Calicut University First Statutes, Chapter III) and the corresponding provision in the Kerala University First Statutes were ultra vires Article 14.
Remedy and directions: Having struck down Statute 16, the court recorded the Government’s concurrence on Statutes 19 and 25 and directed respondents 1 and 2 to fix and pay the petitioners’ pensions taking into account service up to 60 years within three months from receipt of a copy of the judgment.

Holding and Implications

Holding:

Statute 16 of Chapter III of the Calicut University First Statutes and the corresponding provision in the Kerala University First Statutes (to the extent they provide that service beyond 55 years does not qualify for pension and gratuity) are struck down as being ultra vires Article 14 of the Constitution of India.

Direct consequences and orders:

Respondents 1 and 2 (the relevant authorities) are directed to fix and pay the petitioners' pensions taking into account their service up to 60 years, within three months from the date of receipt of a copy of this judgment.
The court recorded that the Government had conveyed concurrence to the Universities to amend Statutes 19 and 25 (and to introduce a new statute as recommended) and therefore made no orders regarding Statutes 19 and 25.

Broader implications: The court applied established Supreme Court authorities on pensionary rights and Article 14 classification (D.S. Nakara and others) to reach its conclusion. The decision directs retrospective adjustment of the petitioners' pensions to account for service up to age 60 but does not purport to create a novel doctrine beyond the application of existing precedent cited in the judgment.

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JUDGMENT

1. This Original Petition is filed by 14 retired teachers, who were Principals or Professors in private colleges affiliated to Kerala, Calicut and Gandhiji (Mahathma Gandhi) Universities.

2. Before the formation of the State of Kerala there were 3 categories of Private College teachers in the geographical area included in the Kerala State. In Travancore State the Colleges were affiliated to the Travancore University. There were no uniform scales of pay and there were no statutory regulations regarding their service conditions. The scales of pay were fixed by the respective managements. In the Cochin State the colleges were affiliated to the Madras University. The Madras University had introduced certain service conditions, which provided for minimum scales of pay for the teachers in the colleges. Their age of retirement was fixed at 60, which could be extended up to 65 by the management with the permission of the University. The private colleges in the erstwhile Malabar were affiliated to the Madias University. The rules introduced by the Madras University were made applicable to the teachers working in that area also. Those colleges were given grant-in-aid by the then Madras Government and the Government had permitted the teachers to join the teachers' Provident Fund. Accordingly teachers were to contribute 6¼% of salary, while managements were to contribute 3⅛% of salary and Government would pay contribution of ⅓rd of the accumulated Provident Fund at the time of closure of the Provident Fund. The State of Travancore and Cochin were integrated in 1950 and Travancore-Cochin State was formed. Subsequently on 1-11-1956 the Kerala State was formed consisting of Travancore Cochin State and Malabar area. By an Act of Kerala Legislature, the University of Travancore was converted into University of Kerala, in 1957. The variation in the scale of pay and service conditions continued till the Kerala University Syndicate issued ordinances relating to service conditions of teachers-Chapter 57 of the Kerala University Ordinances. Among other things these ordinances provided for the retirement of teachers at the age of 60. In 1958 the Kerala University introduced a common pay structure for the colleges affilated to the University of Kerala and it was implemented with the aid of University Grants Commission.

3. Teachers in the private colleges have been agitating for the benefit of pension. Although the Government had made provision for the pension of private school teachers, decision regarding pension to the private college teachers was delayed due to various reasons. The question as to the age of retirement for the purpose of granting pension was one of such reasons. There were discussions between the Government and associations of private college teachers regarding those connected matters. Ultimately it was agreed that the Government would allow the teachers who joined service before a cut off date to retire at the age of 60. This gave a feeling of security to the more senior of the teachers as they had to retire only at the age of 60.

4. Under S. 83 of the Kerala University Act and S. 82 of the Calicut University Act, the 1st Statutes and ordinances had to be made by the Government. In exercise of such powers the Government issued the first statute in respect of the Kerala and Calicut Universities on several subjects. By the Kerala University First Statutes and Calicut University First Statutes the Government introduced several provisions in respect of pension, provident Fund, Gratuity, Insurance and age of retirement which adversely affected the teachers who were to retire at 60 years. The Senates of the Universities of Kerala and Calicut realised the difficulties of the teachers retiring at the age of 60. They came forward to redress their grievances by introducing amendments to the statutes relating to Pension, Provident Fund and Gratuity. The extracts of the minutes of the Calicut University and Kerala University contaning those amendments are produced as Exts. P.1 and P.2 respectively. Ext. P.1 contains the extracts of minutes of the ordinary meeting of the Senate of the Calicut University on 29th and 30th July, 1983. It is as follows:

“IV. Amendment to Statute 16 in Chapter III of the first Statutes 1976 relating to Pension, P.F, Gratuity, Insurance and age of retirement of Teachersof Private Colleges.

The existing Statutes 16 of Chapter III of the Calicut University First Statutes 1976 be substituted by the following.

Statute 16.

Service upto the age of 60 to qualify for pension and gratuity: The service of teachers in Private College upto the age of 60 shall qualify for pension and gratuity under these statutes.”

5. Amendments to Statute 20 and Statute 19 were also passed by the Senate.

6. Ext. P.2 is the resolution of the Syndicate of the Kerala University proposing to amend statute 16, statute 19 and statute 20 of Chapter III of the Kerala University First Statutes, 1976 and resolving to place it before the meeting of the Senate to be held on 11th and 12th December, 1980. It is submitted that the Senate of the Kerala University approved the amendment. These amendments were sent to the Chancellor of the University but so far the Chancellor did not give assent to these amendments.

7. This Original Petition is filed to declare that Statutes 16, 19 and 25 of Chapter III of the Calicut University First Statutes in respect of the pension, provident fund, gratuity, insurance and age of retirement as well as the corresponding provisions of the Kerala University First Statutes in respect of these matters are ultra vires the Constitution and to strike them down and also to direct respondents 1 and 2 to calculate the pension of the petitioners on the basis of their emoluments at the age of 60 and to refix their pension. Consequential prayers are also made in the Original Petition.

8. On behalf of the 1st respondent, State of Kerala, the Under Secretary to Government, Higher Education Department filed a counter affidavit” dated 1-6-1985. Among other things the contention raised in the counter affidavit was as follows:

“In the First Statutes 1976 specific provisions were made for the retirement of teachers at the age of 55 or 60 by giving the opportunity for those teachers who entered service before 1-4-1958 to exercise option to retire either at the age of 55 or 60. The petitioners under reference had exercised their option to retire at the age of 60 and so they are given pensionary benefits as per the provisions contained in the 1st Statutes, 1976 applicable to 60 opted teachers. There is no point in arguing that the pay drawn at the age of 60 has to be reckoned for fixing the pension as the teachers were fully aware of the details of pensionary benefits for which they were entitled at the time of their option to retire at the age of 60. In fact, after having studied the pros, and cons, of the Statute, they bad expressed their willingness voluntarily to opt for retirement at the age of 60. They have been continuously enjoying the benefits of full salary and other ancillary benefits like D. A, H.R.A and even revised scales of pay etc. for five years more from the date of attaining the age of 55. After having done so, it is-now idle for the petitioners who are highly literate persons to contend that they opted for service upto 60 years without knowing the legal implications behind it. They are estopped from making such contentions”.

9. Along with the counter the copy of the Government order dated 27-11-1982 granting of commutation benefits to opted private college employees and also granting some pensionary benefits to them, is produced as Ext. Rl.

10. The 1st petitioner, on behalf of other petitioners as well, filed a reply affidavit dated 5-8-1955. It was submitted that Ext. Rl limits operation arbitrarily and without any rational basis with effect from 27-11-1982 only and that amounts to hostile discrimination against teachers who retired between 1-4-1976 and 26-11-1982. Therefore by reply affidavit the petitioners wanted a declaration that Ext. R.1 in so far as it restricts its operation to the period subsequent to 27-11-1982 infringes the fundamental rights enshrined in Article 14 of the constitution of India. Petitioners also pointed out that University teaching staff also non-teaching staff who are permitted to retire at the age of 60 are given full pension and denying that to the petitioners will amount to hostile discrimination. It was also pointed out that although Government revised the rate of pension from 30/80 of last pay to 33/80, when pension was raised from 33/80 to a further higher rate from 1-4-1979 Government did not revise the quantum of pension for this category of pensioners and their pension is still calculated at the rate of 33/80 of last pay in spite of the passing of amendments to statutes by the Universities. According to the petitioners the fact that the teachers opted to retire at 60 enjoyed 5 years' of service will not have any relevance in computing the pension except the fact that by reason of the long period of service they are entitled to higher pension. A rejoinder affidavit dated 25-7-1986 on behalf of the 1st respondent was also filed. The 10th petitioner has filed an additional reply affidavit on behalf of himself and the other petitioners along with that affidavit he produced copy of the order dated 20-8-1985 marked as Ext. P.7 and copy of the order dated 3-7-1986 marked as Ext. P.8 By Ext. P.7 order some concessions regarding payment of pension were allowed. By Ext. P.8 order the consessions were given retrospective effect from 1-7-1978. Therefore under Exts. P.7 and P.8 service up to 60 years will be counted for calculation of pension and pension will be calculated on the basis of the last pay at 60. However, service up to 60 years is not still counted.

11. On C.M.P No. 18907 of 1984 by order dated 19-9-1984 this court directed the respondents to work out and disburse the pension due to the petiti oners without prejudice to the contentions of either side within three months from the date of receipt of that order. By order on C.M.P No. 15710 of 1985 this court granted 4 months' more time to comply with the directions. It would appear that subsequently the admitted amount of pension was paid to the petitioners.

12. The Original Petition was amended as per order on C.M P. 23901 of 1985. The amendment was necessitated by the ‘Government order dated 22-4-1985 which is marked’ as Ext. P.5 to the effect that pension will be provided to opted private college employees on the basis of the average emoluments drawn for the 10 months immediately preceding the date of retirement at the age of 60. Ext. P.5 also provided that the said order will have retrospective effect from 27-7-1982. According to the petitioners the provision limiting the benefits with effect from 27-11-1982 is bad in law for the reasons stated in the Original Petition. Therefore by the amendment those averments were also incorporated in the Original Petition and a-prayer for quashing Ext. P.5 order in so far as it restricts the application of benefits conferred under Ext. P.5 with effect from 27-11-1982 only and directing the respondents to disburse the pension with effect from the date of retirement of the petitioners were also added. Another amendment added was to quash Ext. P.6 which order was passed by the Government on 30-1-1984 regarding family pension of opted teachers.

13. One of the grievances of the petitioners was that the amendments passed by the Universities of Calicut and Kerala (evidenced by Exts. P.1 and P.2) were not forwarded by the Government to the Chancellor for approval. Although this Court tried to find out the reasons for the delay in forwarding them, the learned Government Pleader was not able to find out atleast whether those amendments were received by the Government. Under those circumstances this Court by order dated 9-3-1988 directed respondents 5 and 4 respectively to forward copies of Exts. P1 and P.2 amendments respectively to the 1st respondent, State, within two weeks and the 1st respondent was directed to forward it to the Chancellor for approval within two weeks thereafter. Since that order was not complied with, this court passed an order on 5-7-1988 directing as follows:

“A responsible officer representing the 1st respondent will file an affidavit within ten days stating Whether the order dated 9-3-88 was complied with.”

14. Thereupon an additional counter affidavit dated 14-7-88 was filed by the Under Secretary, Higher Education Department to the following effect:

“2. It is submitted that the Government has received Ext. P1 and P.2 on 9-9-1985 from University of Kerala, regarding the amendments in Statutes 16, 19 and 25 of Kerala University First Statute 1976. After consulting various departments Government conveyed their concurrence to the Universities to amend the Statutes 19 and 25 and introduce a new Statute as recommended by the University. The amendment to the Statute 16 cannot be agreed to because it was not contemplated in G.O.MS 83/85.H. Edn. dated 22-4-1985. The same has been communicated to the Registrars of University i.e University of Kerala, University of Calicut and University of Mahatma Gandhi as per letter dated 21-6-1988”.

15. It is not clear whether the, amendments passed by the University were forwarded to the Chancellor for approval. In any case there is no such statement in the affidavit in spite of specific directions from this Court.

16. S. 35 of the Calicut University Act, 1975 specifies the procedure for making statutes. Sub-s. 6 of that Section is to the effect that no statute passed by the Syndicate shall be valid or come into force until assented to by the Chancellor. No provision was brought to my notice conferring any power, on the Government regarding the making or amending of statutes other than those provided in sub-s. 8 of S. 35 in respect of the conditions for or procedure relating to the affiliation of private colleges. The provisions in the Kerala University Act are also substantially similar to those of the Calicut University Act. S. 82 of the Calicut University Act only empowers the Government to make the first statutes and ordinances. Once that power is exhausted it is only the Senate which has got the power to make statutes according to the respective act. Therefore it was for the Chancellor and not for the Government to take a decision on the amendments passed by the Universities.

17. In view of the statements contained in the additional counter affidavit dated 14-7-1988 that the Government haveconveyed their concurrence to the Universities to amend Statutes 19 and 25 relating to eligibility for pension as well as for commutation of pension, the only question that requires consideration is the validity of Statute 16 under which, service beyond 55 years do not qualify for pension and gratuity.

18. Since the decision to call for option and the wording thereof is of considerable importance in taking a decision of this question, by order dated 3-8-1988 I directed respondents 1 and 2 to produce the minutes of the meeting in which it was decided to call for the option of private college teachers whether to retire at 55 years or to continue up to 60 years and any order calling upon them to exercise such option. Thereupon the Government produced the proceedings of the Senate meeting of the University of Kerala held on 26th and 27th of March 1984 as well as the amendment to Kerala University Pension Statute 76 dated 6-6-1984. They also filed additional affidavit dated 9-9-1988. In that affidavit it is stated that the averment in paragraph 20 of the Original Petition that there was a discussion between the Government and association of private college teachers and it was agreed that the Government would allow the teachers who joined service before a cut off date to retire at the age of 60, was not correct and this was specifically denied in the first counter affidavit itself. The respondents' records do not disclose that such a discussion has taken place. The order calling upon the petitioners to exercise option were issued by the University of Calicut and University of Kerala. Copy of the notifications issued by the Calicut University was produced as Ext. R1(a).

19. In Ground A (c) of the Original Petition it is stated that in the University service the teaching staff are allowed as per statutes 9 Chapter III of the statutes dated 7-7-1977 to retire at the age of 60 years. These statutes were also issued by Government. The statute provides that the staff shall be governed by the Government service rules but expressly provides that the teachers in the University service can continue till the age of 60 years. On that score their service beyond 55 years is not ignored for the purpose of fixation of pension and gratuity. Therefore the contention of the petitioners is that the denial of such benefit to the teachers of private colleges retiring at the age of 60 will amount to hostile discrimination. It was also stated that Government issued orders giving benefit of retirement at the age of 60 years to the teachers of Agricultural University. But on that score their service after 55th year has not been discarded for the purpose of fixing pension and gratuity. Their entire service is considered for the purpose of fixation of pension and gratuity.

20. In D.S Nakara v. Union of India ((1983) 1 SCC 305 : AIR. 1983 SC 130) the Supreme Court exhaustively considered the principles for granting pension. The court reiterated that the citizen is entitled to equality before law and equal protection of laws. The court added:

“In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of the state affirmative action. In the absence of the doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the state action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in reed of succour. Legislative and executive action may accordingly be unsustained if it satisfies the twin tests of reasonable classification and the rational principle corelated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the court that the twin tests have been satisfied.”

21. In paragraph 42 of that judgment the Supreme Court held as follows:

“42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision and would such classification be founded on some rational principle?…………Therefore the classification does not stand the test of Art. 14”.

22. In paragraph 63 the Court held as follows:

“63. The financial implication in such matters have some relevance. However in this connection, we want to steer clear of misconception. There is no pension fund as it is found either in contributory pension schemes administered in foreign countries or as in Insurance-linked pensions. Non-contributory pensions under 1972 Rules is a State obligation. It is an item of expenditure voted year to year depending upon the number of pensioners and the estimated expenditure. Now when the liberalised pension scheme was introduced, we would justifiably assume that the Government servants would retire from the next day of the coming into operation of the scheme and the burden will have to be computed as imposed by the liberalised scheme. Further Government has been granting since nearly a decade temporary increases from time to time to pensioners. Therefore, the difference will be marginal. Further, let it not be forgotten that the old pensioners are on the way out and their number is fast decreasing.”

23. In L.I.C of India v. S.S Sriwastava ((1987) 4 SCC 112 : AIR 1987 SC 1526) paragraph 32 also the Supreme Court has used the words “vanishing groups” in the following passage:

“The transferred employees who are treated favourably belong to a vanishing group and, perhaps, within a period of few years none of them would be in the service of the Corporation. Thereafter only one class of employees would be in the service of the Corporation namely those appointed subsequent to 1st September, 1956 by the Corporation in respect of whom the corporation has fixed the age of retirement as 58 years which corresponds to the age of retirement in almost all the public sector establishments, the Central Government services and the State Government services”.

24. That judgment as well as the judgment in B. S, Yadav v. C.M Central Bank of India ((1987) 3 SCC 120 : AIR 1987 SC 1706) were relied on by the learned Government Pleader in support of his contention that the petitioners after having accepted to continue up to 60 years cannot now contend that Rule 16 is unconstitutional.

25. What were the rights of the petitioners who opted to retire at 60, and what were the rights which they relinquished by opting to retire at 60, are not clear from any of the records produced in this Original Petition. Both sides speak of the petitioners having exercised option to continue till the age of 60. However, as per the direction of this court the petitioners or the respondents were unable to produce any record to show the conditions of the option. In the counter affidavit on behalf of the 1st respondent dated 1-6-1985 it was stated that the provisions for option were contained in the 1st statutes 1976 and the teachers who entered service before 1-4-1958 had to exercise option to retire either at the age of 55 or 60. The Calicut University First Statutes 1977 was published as per notification dated 7-6-1977. The 1st Statute of the University of Kerala was published as per notification dated 30-3-1976 to come into effect from that date. Rule 16 providing that the service beyond 55 years will not quality for pension and gratuity was one of the rules in the first statutes, In the addition al affidavit filed on behalf of the 1st respondent dated 9-9-1988 the 1st respondent has produced Ext. i (a) along with which a copy of the minutes of the Senate held on 18-10-1986 was forwarded by the Calicut University to the Government. The minutes of the Senate meeting of the Kerala University held on 30-3-1983 was also referred to the learned Government Pleader which is as follows:

“The Senate at its meeting held on 30-3-1983, unanimously adopted the following amendments to the Pension Statutes 1976.

AMENDMENT

1. “That the following be added as Clause (6)’ under Statute 4 of Chapter I—Genera of the Kerala University First Statutes, 1976, in respect of Pension, Provident Fund. Gratutity, Insurance and Age of Retirement of Teachers of Private Colleges:

… Notwithstadning anything contained in these statutes, a teacher who opts for retirement at the age of fifty five may, before his completing the age of fifty five, re opt to retire at the age of sixty and there-after he/she shall be governed by the provisions of Chapter III of these statutes.

Provided that the re-option under this statute shall be exercised by the teachers within a period of six months from the date of coming into force of this amendment or before they attain the age of fifty five whichever is earlier….”

26. Thus the 1st respondent was also unable to produce any record relating to the first option. The records now produced relate only to the re-option. Under those circumstances it is not just or proper to hold that the petitioners voluntarily relinquished any of their rights by opting to retire at 60 years More over, first statutes and Rule 16 thereof were framed with effect from 30th March, 1976 or 7th June, 1977 as the case may be and the first option was very much earlier. In any view of the case it is not reasonable to hold that the petitioners exercised their option to retire at 60 years knowing that a provision like rule 16 will be framed later on. The following content ion raised in the counter affidavit on behalf of the 1st respondent dated 1-6-1985 cannot therefore be accepted.

“In fact after having studied the pros. and cons, of the statute, they had expressed their willingness voluntarily to opt for retirement at the age of 60”.

27. Petitioners were being paid the salary and other benefits for the period they actually worked. It is their right to get salary for that period (See paragraph 5 of Kochukunju Padmanabhan, Plaintiff Revision… v. State Of Kerala…Defendant, Counter Petitioner. (1986 KLT 1281). The contentions raised on behalf of the 1st respondent are fully answered by the Supreme Court judgment in D.S Nakara v. Union of India (1987 Supp SCC 543 : AIR 1988 SC 130) referred to above.

28. The contention that the petitioners cannot question rule 16 and that they form a separate class also cannot be accepted. See the following observation in B. Prabhakar Rao v. State of A.P (1985 Supp SCC 432 : AIR 1986 SC 210):

“22…. We must further remember quite apart from any question of retrospectivity that, unlike in the United Kingdom here in India we have a written Constitution which confers justifiable fundamental rights and so the very refusal to make an act retrospective or the non-application of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non-retrospectivity or non-application clause, as offending the fundamental right to equality before the law and the equal protection of the laws. That is the situation that we have here.”

29. In D.S Nakara v. Union of India ((1983) 1 SCC 305 : AIR 1983 SC 130) the Supreme Court treated the pensioners as a class and observed that among pensioners there should not be any discrimination. In Poonammal v. Union of India ((1985) 3 SCC 345 : AIR 1985 SC 1196 : 1985 (3) SCR 1042) the Supreme Court held that pension is not merely a statutory right but it is the fulfilment of a constitutional promise. It is a right and not a bounty or gratutuous payment. Such a constitutional, right cannot be waived even if it is taken for arguments sake that the petitioners opted to waive it (See Basheshar Math v. I.T Commr., AIR 1959 SC 149).

30. On a consideration of the contentions raised on either side I hold that Statute 16 of Chapter III of the Calicut University First Statutes and the corresponding provision in the Kerala University First Statutes in respect of pension are ultra vires of Article 14 of the constitution of India. Accordingly those provisions are struck down as unconstitutional. The statement contained in the additional counter affidavit on behalf of the 1st respondent dated 14-7-1988 that the Government has conveyed their concurrence to the Universities to amend Statutes 19 and 25 and to introduce new statutes as recommended by the Universities, is recorded. Therefore no orders regarding Statutes 19 and 25 are called for. Respondents 1 and 2 are directed to fix and pay the pension of the petitioners taking into account their service up to 60 years, within a period of three months from the date of receipt of a copy of this judgment. Communicate a copy o, f this judgment to the 1st respondent.