P. Radhakrishna Naidu & Ors Vs.
Government of Andhra Pradesh & Ors  INSC 318 (9 December 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
CITATION: 1977 AIR 854 1977 SCR (2) 365 1977
SCC (1) 561
Constitution of India, Articles 16, 32 and
311, Government servant's compulsory retirement, whether violates Art.
16--Ban on re-employment by semi Government
Institutions, whether within the scope of Art. 32--Availability of alternative
On the completion of their 25 years of
qualifying service, the appellants were compulsorily retired in public
interest, and were to receive 3 months’ salary in lieu of notice. Thereafter,
the respondent Government passed a general order forbidding re-employment of
compulsorily retired persons in semi-Government institutions. The appellants
filed, writ petitions under Art. 32 of the Constitution challenging the
compulsory retirement orders as violative of Art. 16 and the ban on such
re-employment as a stigma under Art. 311.
Dismissing the petitions, the Court,
HELD: (1) Article 16 does not prohibit the
prescription of reasonable rules for compulsory retirement. The provision for
compulsory retirement in public interest after the completion of a certain
period of qualifying service or attainment of a certain age, applies to all
Government servants and as such it is not open to challenge either under Art.
14 or under Art. 16, and the individual application of the order in a given
case cannot offend Art. 16.
[367-D-H] T. C. Shivacharana Singh V. State
of Mysore A.I.R. 1965 S.C. 280, applied. Union of India v. Col. J.N. Sinha,
& Anr.  1 S.C.R. 791; Tara Singh etc. v. State of Rajasthan &
[19753 3 S.C.R. 1002, and B. Narayana Murthy
& Ors. v. State of Andhra Pradesh etc.  Supp. S.C.R. 741, referred
(2) The Government order forbidding
re-appointment of compulsorily retired persons as a stigma within the meaning
of Article 311 is not an infringement of fundamental rights, and the
enforcement of violation of Article 311 does not come within the scope of
Article 32. The ban is not against anyone individually and has a reasonable
basis and some relation to the suitability for employment or appointment to an
office. [367A-B,369 A-B] Krishna Chander Nayar v. Chairman, Central Tractor
Organisation & Ors.  3 S.C.R. 187; Shyam Lal v. State of U.P. 
1 S.C.R. 26; Tata Engineering and Locomotive Company Ltd. v. Assistant
Commissioner of Commercial Taxes & Anr.  2 S.C.R. 751 and Hukumchand
v. The State of Madhya Bharat & Anr.
 6 S.C.R. 857, referred to.
(3) The Government of Andhra Pradesh has by
an administrative order constituted a review committee for each department to
review orders of retirement it public interest and to revoke and modify the
same, if necessary. petitioners made representations to the review committee,
and are not justified in applying to this Court. [370A-B]
ORIGINAL JURISDICTION: Petition No. 97 of
(Under Article 32 of the Constitution of
S. Ramchandra Rao and B. Kanta Rao for the
appellants in W.P. No. 97/76.
S. Ramachandra Rao and ,A. Subba Rao, for the
appellants in W.P. No. 114/76.
366 Niren De, Attorney General, P.p. Rao, Sr.
Advocate and T.V.S. Narasimhachari, for the respondents in W.P. No. 97/76.
P. Parmeshwara Rao, and G. Narayana Rao, for
respondents in W.P. No. 114/76.
The Judgment of the Court was delivered by
RAY, C.J. These writ petitions challenge the compulsory retirement of the
petitioners. The petitioners were retired compulsorily under order dated 23
The order dated 23 September 1975 in the case
of the first petitioner in writ petition No. 97 of 1976 may be referred to as
typical of orders in the case of other petitioners. This order stated first
that the said first petitioner completed 25 years of qualifying service on 24th
July, 1975. The order next stated that the Commissioner of Police being the
authority to make a substantive appointment to the post of Inspector of Police
is of opinion that it is in public interest to retire the persons mentioned in
The order thereafter states that in exercise
of the powers conferred by Clause (a) of sub-rule (2)/sub-rule 2(A) read with
Clause (a) of sub-rule (2) of rule 3 of the Andhra Pradesh Liberalised Pension
Rules, 1961/sub-rule (1) of rule 2/rule 3 read with sub-rule (1) of rule 2 of
the Andhra Pradesh Government Servants Premature Retirement Rules, 1975, the
Commissioner of Police directs that the person mentioned in the order shall
retire in public interest from service with effect from the date of service of
the order and that he shall be paid a sum equivalent to the amount pay and
allowances for 3 months in lieu of notice calculated at the same rate at which
he was drawing immediately before the date on which the order is served on him.
The Government of Andhra Pradesh passed a
general order dated 28 November, 1975. In that Government order it is stated
that in several Government orders recited therein, orders for the premature
retirement of the Government servants in public interest had been issued in
those cases after giving 3 months previous notice in writing or after giving 3 months’
salary in lieu of such notice. The 28 November, 1975 order next states that an
instance came to the notice of the Government that a Government servant after
compulsory retirement as per orders mentioned above was re-appointed in a
cooperative institution as executive officer. Though the reappointment of the
incumbent was in the Semi-Government Institution, his re-appointment was stated
to be irregular and contrary to the intention of the Government in retiring
corrupt and inefficient persons. The Government order directed that all the
Departments of the Secretariat, all Heads of Department, and all Collectors
etc., should ensure that on no account persons who are retired prematurely in
pursuance of orders issued by the Government should be re-instated or
re-appointed in any Semi-Government or Quasi-Government Institutions.
367 The petitioners challenged the compulsory
retirement orders as violation of Article 16. The petitioners also challenged
the Government order forbidding re-appointment of compulsorily retired persons
in Semi-Government or Quasi Government Institutions as a stigma within the
meaning of Article 311.
At the outset it should be stated that
enforcement of violation of Article 311 does not come within the scope of
Article 32. The challenge to the Government order forbidding re-appointment of
compulsorily retired persons as a stigma within the meaning of Article 311 is,
therefore, not an infringement of fundamental rights.
The petitioners challenged the orders of
compulsory retirement as an infraction 0f Article 16. It is not known how the
petitioners have been discriminated against other persons because no such
person is impleaded as a respondent and there are no allegations to that
During the subsistence of the Presidential
Order issued under Article 359(1 ) it is not competent to invoke Article 14 for
enforcement of any fundamental rights. Articles 14 and 16 are to a certain
extent overlapping in regard to rights of equality.
Equality of opportunity for all citizens in
matters relating to employment is not violated by provisions for compulsory
retirement of Government servants in public interest after the completion of a
certain period of qualifying service or attainment of a certain age. This Court
has consistently taken the view that compulsory retirement does not involve any
civil consequences. See Union of India v.
Col. J. N. Sinha and Another(1) and Tara
Singh etc. v. State of Rajasthan and Ors.(3) A writ petition under Article 32
can lie only for infringement of fundamental rights. See B. Narayana Murthy and
Ors. etc. v. State of Andhra Pradesh etc.(3) The general order for compulsory
retirement is applicable to all employees. The individual application of the
order in a given case cannot offend Article 16. It cannot be suggested that an
order for compulsory retirement in the case of one person is denial of equality
of opportunity relating to employment because another person in employment has
not been compulsorily retired.
Article 16 does not prohibit the prescription
of reasonable rules for compulsory retirement. A question arose in T.C.
Shivacharana Singh v. State of Mysore (4) whether a rule providing for
compulsory premature retirement from Government service violates Article 16.
This Court said that the law in relation to the validity of rules permitting
compulsory premature retirement from Government ser(1)  1 S.C.R. 791. (2)
 3 S.C.R. 1002.
(3)  Supp S.C.R. 741. (4) A.I.R. 1965
368 vice is well-settled by prior decision of
this Court which does not require to be reconsidered. The ratio is that the
provision for compulsory retirement in public interest applies to all
Government servants and as such it is not open to challenge either under
Article 14 or under Article 16.
In Shyam Lal v. Stale of U.P.(1) the
appellant had been compulsorily retired. The order was challenged as violating
Article 311. This Court held that there is no stigma involved in compulsory
retirement. Compulsory retirement does not amount to a dismissal or removal
and, therefore, it is not within the vice of Article 311.
One of the petitioners, namely, the first in
writ petition No. 97 of 1976, challenged the order of compulsory retirement on
the ground that he did not complete 25 years of service. He alleged that he was
appointed on 10 September, 1952 and, therefore, the order of compulsory retirement
dated 23 September, 1975 is bad. The State on the other hand contends that the
correct date of appointment of the first petitioner is 25 July, 1950. In writ
petitions the Court does not go into disputed questions of fact, like date of
appointment as in the present case. In Tata Engineering and Locomotive Company
Ltd. v. Assistant Commissioner of Commercial Taxes & Anr. (a) this Court
said that the exercise of jurisdiction in writ matters is not desirable if
facts have to be found on evidence. This Court has also said that there may be
exceptions. One such exception is when action is taken under an invalid law or
arbitrarily without the sanction of law. In the present case there is no aspect
of either kind.
Further it has to be observed that in the
present writ petitions several petitioners have combined as petitioners.
Their causes of action are separate and
independent. Each is alleged to be an instance of individual assertion of
constitutional right in regard to facts and circumstances of each case. Where several
petitioners combine for alleged violation of their rights, it is difficult for
court to go into each and every individual case. In the present case the
affidavit evidence on behalf of the State is preferred and, therefore, the
first petitioner cannot agitate the question of disputed date of appointment.
In Krishna Chandra Nayar v. Chairman, Central
Tractor Organization and Others(3) this Court considered the imposition of a
ban against one man, namely, the petitioner in that case from being ever taken
into Government service. He was a temporary servant and his services were
terminated by giving him pay and allowances in lieu of notice for one month.
This Court found that case to be one of arbitrary imposition of ban against the
employment or appointment one individual to an office.
(1)  1 S.C.R. 26. (2)  2 S.C.R.
(3)  3 S.C.R. 187.
369 Krishna Chander's case (supra) is of no
aid to the petitioners in the present case. The ban is not challenged here. In
Krishna Chander's case (supra) the ban was challenged as an arbitrary act
against one individual. In the present case the ban is not against anyone
individually but it is not to employ in Quasi-Government service or Semi Government
service, persons who are compulsorily retired from Government service. The ban
has a reasonable basis and has some relation to the suitability for employment
or appointment to an office. When compulsory retirement is made in public
interest it will be an exercise in futility if Government servants who are
compulsorily retired are again employed in Government service or
Semi-Government service or Quasi-Government service.
The petitioners challenged the orders for
compulsory retirement also on the ground that reference to so many rules was
made and, therefore, it was not possible for the petitioners to know under what
provision the orders for compulsory retirement had been made. It is not open to
the petitioners to challenge the orders on that ground. The orders specifically
mention that compulsory retirement is made in public interest. The State
affidavit evidence is that petitioners No. 4 and 5 in writ petition No. 97 of
1976 are governed by Hyderabad Civil Service Regulations and the rest of the
petitioners are governed by Andhra Pradesh Liberalised Pension Rules, 1961.
Rule 292 of the Hyderabad Civil Service Regulations and sub-rule (2) (a) of
rule B of the Andhra Pradesh Liberalised Pension Rules, 1961 are similar. Both
the rules confer power on the authority to require Government servant to retire
in the public interest from service on the date on which he completes 25 years
of qualifying service or attains 50 years of age. Rule 2(1) of the Andhra
Pradesh Government Servants' Premature Retirement Rules, 1975 is also worded in
similar language. The wording of the rules relating to retirement in public
interest is identical in all the three sets of rules mentioned above.
The mere fact that three different rules.
were mentioned in the impugned orders without scoring out the rules which are
not applicable to a petitioner in one case cannot be any grievance for the
reason that in each case the relevant rule is identically worded. The omission
on the part of the officers competent to retire the petitioners in not scoring
out the rules which are inapplicable to a particular individual does not render
the order bad. The reason is that one of the rules is applicable to him and the
omission to strike out the rules which are not applicable will not in any
manner affect the applicability of the rule mentioned.
Further this Court has taken the view that a
wrong reference to power will not vitiate any action if it can be justified
under some other power under which the Government can lawfully do the act. See
Hukumchand Mills Ltd. v. The State of Madhya Bharat and Another(1). In the
present case the valid rule is mentioned in each case.
(1)  6 S.C.R. 857.
370 The Government of Andhra Pradesh has by
an administrative order constituted a review committee for each department to
review orders of retirement in public interest and to revoke and modify the
same, if necessary. The petitioners made representations to the review
committee. The petitioners yet choose to come to this court. The petitioners
are not justified in applying to this court.
The petitioners obtained rules in these two
cases during the vacation. A similar matter came before this Court on 29 April,
1976 and this Court did not issue any rule. If the attention of this Court had
been drawn to that order, perhaps no rule would have been issued in these
The Andhra Pradesh Administrative Tribunal
Order, 1975 confers power on the Tribunal to exercise jurisdiction with respect
to appointment, allotment or promotion and other conditions of service of such
persons. It is open to a person who complains about an order of compulsory
retirement to approach the Tribunal in a given case.
For the foregoing reasons, the writ petitions
are dismissed. There will be no order as to costs.
M.R. Petitions dismissed.