B. Prabhakar Rao & Ors Vs. State of
Andhra Pradesh & Orsetc [1985] INSC 182 (19 August 1985)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) ERADI, V. BALAKRISHNA (J) KHALID, V. (J)
CITATION: 1986 AIR 210 1985 SCR Supl. (2) 573
1985 SCC Supl. 432 1985 SCALE (2)256
CITATOR INFO:
R 1989 SC 903 (24) R 1992 SC 320 (85) RF 1992
SC 767 (8) RF 1992 SC1277 (42)
ACT:
Andhra Pradesh Public Employment (Regulation
of Age of Superannuation) Act 1984 section 3(1) and Explanation II (a`).
Fundamental Rules Rule 56 (a) and Hyderabad
Civil Service Rules Rule 231.
HEADNOTE:
Employees - Age of superannuation - Change of
- Amendments effected by Ordinance No. 24 of 1984 and section 4 (1) of Act 3 of
1985 - Whether constitutionally valid - Fixation of date and division of
employees into two class on basis thereof - Whether permissible - Whether
amenable to judicial scrutiny - Age Of Superannuation - Change of policy or
reversal of policy.
Constitution of India 1950, Article 14
Classification - Reasonableness of - Burden of proof on State .
Interpretation of Statutes Government
department administering Act - Official statement of - Whether relevant for
interpretation legislation to remedy wrongs - Wronged persons - Whether can be
excluded.
Practice & Procedure Writ petition -
Dismissal in limini - Whether bar to entertainment of another similar writ
petition.
In the State of Andhra Pradesh the age of
superannuation was 55 years to begin with, but in the year 1979, the Government
raised the age to 58 years. In February 1983, the Government decided to reduce
the age of superannuation of its employees from 58 to 55 years, and also issued
directives to local authorities and public corporations under its control to do
likewise.
574 In order to give effect to the aforesaid
policy of reversal, the Government amended Rule 56(a) of the Fundamental Rules
and Rule 231 of the Hyderabad Civil Services Rules by substituting the figure
'55' for the figure '58' and by making a special provision that those who had
already attained the age of 55 years and were continuing in service beyond that
age on 28.2.1983 shall retire from service on the afternoon of 28.2.1983.
This was followed by another notification
dated 17.2.1983 deleting the proviso to Rule 2 of the Fundamental Rules which
protected a civil servant against a change in conditions of service to his
detriment after he entered service. The Andhra Pradesh Ordinance No. 5 of 1983
was promulgated regulating the recruitment and conditions of service of persons
appointed to public service and posts in connection with the affairs of the
State of Andhra Pradesh and the Officers and servants of the High Court of
Andhra Pradesh Clause 10 of the Ordinance provided that every Government
employee, not being a workman and not belonging to Last Grade Service shall
retire from service on the afternoon of the last day of the month in which he
attains the age of fifty-five years. In the case of Government employees
belonging to the Last Grade Service, it was provided that they shall retire
from service on the afternoon of the last day of the month in which they attain
the age of sixty years. Clause 18(1) provided that the proviso to Rule 2 of the
Fundamental Rules shall be deemed always to have been omitted.
Immediately after the notification reducing
the age of superannuation from 58 to 55 were issued, a large number of
Government employees, employees of public sector corporations, and teachers
working under various authorities filed writ petitions in this Court as well as
in the High Court of Andhra Pradesh challenging the vires of the provisions
reducing the age of superannuation.
There was also a State wide agitation by
affected employees and on August 3, 1983 an Agreement was arrived at between
the Government and the Action Committee of Employees and Workers. Clause (1) of
the agreement provided that proviso to F.R. 2 will be restored in respect of
all matters, except the age of superannuation retrospectively and that the
provisions of the Ordinance relating to the age of superannuation will also be
removed after the judgment of the Supreme Court. The Agreement, also, contained
a stipulation that it was not to be placed before the Supreme Court either by
the Government or by the employees.
575 The Andhra Pradesh Legislature enacted
the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act
No 23 of 1984 making it applicable to persons appointed to public service and
posts and other employees in any Local Authority, Houses of the State
Legislature etc. On August 23, 1984 the Act was amended by- the promulgation of
the Andhra Pradesh Ordinance No. 24 of 1984 providing that in s. 3(1) of the
Act and in Explanation II (a) the words 'fifty-eight years' shall be
substituted for the words 'fifty-five years'. The Andhra Pradesh Ordinance No,
24 of 1984 was replaced by Act No. 3 of 1985.
By sec. 2 of the Amending Act, the words
'Fifty-five years' were substituted by the words 'fifty-eight years' in Sec. 3(1)
and Explanation II(a) of the Principal Act.
Section 4 of the Amending Act, which replaced
Clause 3(1) of Ordinance No. 24 of 1984 provided : that: "4(1) The
provisions of section 2 of the Act shall not apply to persons who attained the
age of superannuation pursuance of the notifications issued....... or in
pursuance of the provisions of the Andhra Pradesh Public Employment (Regulation
of Age of Superannuation) Act 1984.... ...." During the pendency of the
Writ Petitions in this Court, several employees of local authorities etc.
Obtained orders of stay from the High Court and were continuing in service on
the E date when the judgment of the Supreme Court was pronounced. After the
pronouncement of the judgment of the Supreme Court, the authorities sought to
give effect to the provisions of the Act and the Ordinance by seeking to throw out
the employees on the ground that they had completed 55 years of age during the
interregnum between February 28, 1983 and August 23, 1984.
Some others who had completed 55 years
between February 28, 1983 and August 23, 1984 but who had not completed 58 years
sought re-entry, notwithstanding the raising of the age of superannuation from
55 years to 58 years. Their re- entry was sought to be resisted on the basis of
cl. 3(1) of the Ordinance and s. 4(1) of the Amending Act. Those employees who
were sought to be removed from service or who were denied re-entry into service
On the ground that they had attained the age of 55 years between February 28,
1983 and August 23, 1984 once again invoked the jurisdiction of this Court
under Article 32 and sought appropriate writs to continue or to reinstate and
continue them in service until they attain the age of 58 Years.
576 On 23.4.1985, a Division Bench of this
Court, directed that those Government servants who were in service prior to
April 1, 1985 and who were removed from service on account of reduction in age,
shall be reinducted in service, if the posts from which each one was removed
was still vacant or someone was holding a temporary change.
On May 6/7, 1985 another Bench of this Court
directed that the aforesaid Order dated 23rd April, 1985 should be implemented
to the extent that the posts from which the employees were removed are still
vacant or where such post was held temporarily by others on promotion under
Rule 37 of the A.P. States Subordinate Service Rules.
Many persons claiming to have been appointed
under Rule 10 or claiming to have been promoted regularly notwithstanding the
mention of Rule 37, filed writ petitions questioning the orders of reversion
with which they were faced consequent on the aforesaid interim directions of
the Court.
On behalf of the employees who had attained
the age of 55 years between 28.2.1983 and 23.8.1984 lt was contended that the
classification of these persons as a separate group for the purpose of
excluding them from the benefit of the redressal of the wrong tone to the and
the relief given to them by the amending Ordinance and the Act, was an
unreasonable classification having no nexus whatever with the object of the
legislation. It was urged that every person who was in Government employment on
28.2.1983 was hit by the reduction of the age of superannuation from 58 to 55
years and when it was realised that a grievous wrong hat been tone which it was
necessary to set right by reversing the policy and such a policy decision
having been taken, there was no reason to postpone effect being given to the
reversal of policy to an uncertain date, namely the pronouncement of the
Judgment by the Supreme Court and thereby excluding from the benefits of the
change of policy, that group of persons who hat the misfortune of attaining the
age of 55 years. It was further contended that several persons who were
continuing in service by virtue of stay orders obtained from the High Court,
were also sought to be sent away by the Government on the ground that hat they
not obtained the orders of stay they would have retired from service on having
attained the age of 55 years ant this was patently unreasonable.
On behalf of the State Government and
Officers who were promoted in the vacancies created by the retirement of those
who 577 had attained the age of 55 years, it was submitted that there was no
discrimination whatsoever and that what the Government had done w merely to
classify those employees who had ceased to be in service or who should have
ceased to be in service And refused to apply the increased age of
superannuation to them. Having gone out of service, there was no question of
their being eligible to the increased age of superannuation and therefore, the
classification was perfectly reasonable. It was also urged that appointments
and promotions were made subsequent to the reduction of the age of
superannuation on regular basis ant those appointments aud promotions could not
therefore be disturbed.
^
HELD: [By the Court Per Chinnappa Reddy,
Balakrishna Eradi & Khalid, JJ.]
1. Clause 3 (1) of Ordinance No. 24 of 84 and
Section 4(1) of Act NO.. 3 of 1985 be brought to conform to the requirements of
Article 14 of the Constitution by striking down or omitting the word 'not' from
those provisions. [615 G]
2. In exercise of powers under Art. 32 ant
142 of the Constitution the following directions given :
a. All employees of the Government, public
Corporations ant local authorities, who were retired from service on the ground
that they hat attained the age of 55 years by 28.2.83 or between 28.2.83 ant
23.8.84 shall be reinstated in service provided they would not be completing
the age of 58 years on or before 31.10.1984. [616 B-C] - b. All employees who
were compelled to retire on February 28, 1983 and between February 28, 1983 and
August 23, 1984 and who are not eligible for reinstatement under the first
clause, shall be entitled to be paid compensation equal to the total emoluments
which they would have received, hat they been in service until they attained
the age of 58 years, less any amount they might have received. They will be
entitled to consequential retiral benefits. [616 D] c. Such of the employees as
have not been compelled to retire by virtue of orders of stay obtained from the
High Court or the Administrative Tribunal or who have actually been reinstated
in service pursuant to interim orders cf this Court, shall be allowed to
continue in service until they attain the higher age of superannuation. [616 F]
578 d. The reinduction of those employees that have been A compelled to retire
previously, will put them back as regards their seniority in precisely the same
position which they occupied before they were retired from service and be
entitled to all further consequential benefits. [616 G] e. The employees who
were retired and who are reinducted will be entitled to be compensated for the
period during which they were out of service. [616 H] f. In the matter of
reinduction of employees who do not attain the age of 58 years on or before
31st October, 1985 the Government may exercise an option not to reinduct then
provided the employees are paid the compensation. [617 A] g. The government is
free to revert persons promoted or appointed to the posts held by persons who
were retired on having attained the age of 55 years by 28.2.1983 or between
28.2.83 and 23.8.84 to the posts which they held on February 28, 1983 or on the
dates previous to their promotion or appointment provided that they need not be
so reverted, if they would otherwise be entitled to be promoted or appointed
even if the other employees had not been retired consequent on the lowering of
the age of superannuation. [617 C] h. The Government shall be free to create
supernumerary posts whenever they consider it necessary 80 to do. [617 E] i.
All payment of compensation to be made and completed before December 31, 1985.
If for any reason the Government finds itself unable to a pay the entire amount
at one time or within the time fixed, the Government will be at liberty to pay
the amount in not more than four instalments within the time stipulated. Where
the employees are awarded compensation, they may apply to the concerned Income
Tax Officer for relief under Section 89 of the Income Tax Act read with Rule
21-A of the Income Tax Rules. [617 F] 3a. The dismissal in limine of the
earlier Writ Petition cannot possibly bar the present Writ Petitions.
Such a dismissal may inhibit the courts'
discretion but not its jurisdiction. [615 D] 3b. Even if some affected parties
have not been impleaded their interests are identical with and have been
sufficiently and well represented. The relief claimed is of a general nature
and against the State and no particular relief is claimed against any
individual party. [615 F] 579 3c. It is one thing to say that the Executive
Government has no power to pass an order extending the service of a Government
servant after he has retired from service; it is altogether a different thing
to say that the State while making a law raising the age of superannuation cannot
make an unreasonable classification to exclude some Government Servants from
the benefit of the increased age of superannuation. The classification must
pass the dual test of beating reasonable and related to the object of the
legislation, besides not being arbitrary. It is not t open to the State to make
an arbitrary classification first by making the date dependent on an uncertain
event namely, the date of pronouncement of the Judgment by the Supreme Court
and next by making a legislation excluding persons who had attained the age of
55 years before the legislation took effect though the legislation itself was
designed to undo the wrong already done to the very Government employees.
[604 F-605 A] 3d. Whenever a law is made or
whenever an action is taken, lt has to be with effect from a certain date but
it does not necessarily follow that the choice of the date is not open to
scrutiny at all. If the choice of the date is made burdensome to some of those,
the wrong done to whom is sought to be rectified by the law, it would certainly
be open to the court to examine the choice of the date of find out whether it
has resulted in any discrimination. [605 C] D.S. Nakara v. Union of India,
[1983] 2 S.C.R. 165 referred to.
Bishnu Narain Mishra v. State of Uttar
Pradesh & Ors.
[1965] 1 S.C.R. 693, K. Nagaraj & Ors. v.
State of Andhra Pradesh A.I.R. 1985 S.C. 551 and State of Assam v. Padma Ram
Borah A.I.R. 1965 S.C. 473 distinguished.
4. (a) As the judgment was not pronounced for
long, it became imperative for the Government to implement their decision of
their own accord and so they passed Ordinance No. 24 of 1984 and Act No. 3 of
1985 amending Act No. 23 of 1984 by substituting 58 years for 55 years. While
doing 80, unfortunately again, those that had suffered most by being compelled
to retire between 28.2.83 and 23.8.84 were denied the benefit of the
legislation by cl. 3(1) of the Ordinance and Sec. 4 (1) of Act No.3 of 1985.
Now if all affected employees hit by the reduction of the age of superannuation
formed a class and no sooner than the age of superannuation was reduced, it was
realist that injustice had 580 been done and it was decided that steps should
be taken to undo what had been done, there was no reason to pick out a class of
persons who deserved the same treatment and exclude them from the benefits of
the beneficient treatment by classifying them as a separate group merely
because of the delay in taking the remedial action already decided upon. [611
D-F]
4. (b) The action of the Government and the
provisions of the legislation were plainly arbitrary and discriminatory. The
division of Government employees into two classes those who had already
attained the age of 55 on 28.2.83 on the one hand, and those who attained the
age of 55 between 28.2.83 and 23.8.84 on the other and denying the benefit of
the higher age of supernnuation to the former class is as arbitrary, as the
division of Government employees entitled to pension in the past and in the
future into two classes, that is, those that had retired prior to a specified
date and those that retired or would retire after the specified date, and
confining the benefits of the new pension rules to the latter class only. [611
G-612 A]
5. Legislations to remedy wrongs ought not to
exclude from their purview a few of the wronged persons unless the situation
and the circumstances make the redressal of the wrong, in their case, either
impossible or 80 detrimental to the public interest that the mischief of the
remedy outweighs the mischief sought too be remedied. In the instant case,
there is no such impossibility or detriment to the public interest involved in
reinducting into service those who had retired as a consequence of the
legislation which was since though to be inequitable and sought to be remedied
[612 B-C]
6. The burden of establishing the
reasonableness of a r classification and its nexus with the object of the
legislation is on the State. [612 D]
7. We are governed by the Constitution and
Constitution must take precedence over convenience and a judge may not turn a
bureaucrat. It may be possible that in a given set of circumstances, portentous
administrative complexity may itself justify a classification. But there must
be sufficient evidence of that how the circumstances will lead to chaos. Ups
and downs of career bureaucrats do not by themselves justify such a
classification It may however be of some consequence in the matter of granting
relief. For instance there would be really no point in reinducting an employee
if he has but a month or two to go to attain the 581 age of 58 years to retire.
Reinduction of such a person is not likely to be of any use to the
administration and may indeed be detrimental to the public interest. It is
found to be wasteful. In such cases as well as in cases where they can't be
reinducted because they have already completed 58 years by now, they cannot
obviously be reinducted. The obvious course is to compensate them monetarily.
[613 H-614 C]
8. In Industrial Law back and future wages
are awarded on quite a large scale ant there is no reason why the same
principle cannot be adopted. If as a rule private employers in such situations
are asked to pay back wages, there is no impediment in doing so in the case of
those that are expected to be a model employer i.e. the Government, public
corporations and local authorities. [614 D]
9. Where internal aids are not forthcoming,
recourse to external aids are not ruled out. This is now a well settled
principle of modern statutory construction. The 'Enacting History' of an Act is
relevant. It is the surrounding corpus of public knowledge relative to its
introduction into Parliament as a Bill, and subsequent progress through and
ultimate passing by, Parliament. In particular it is the extrinsic material
assumed to be within the contemplation of Parliament when it passed the Act.
The history of how an enactment is understood forms part of the contemporanea
exposition and may be held to throw light on the legislature's intention. The
later history may, under the doctrine that an act is always speaking, indicate
how the enactment is regarded in the light of development from time to time.
Official statements by the Government department administering an Act, or by
any other authority concerned with the Act, may be taken into account as
persuasive authority on the meaning of its provision. [591 A-D]
10. Committee reports, Parliamentary debates,
policy statements and public utterances of official spokesman are of relevance
in statutory interpretation. But the comity, the courtesy and respect that
ought to prevail between the two prime organs of the State, the Legislature and
the judiciary, require the courts to make skilled evaluation of the extra
textual material placed before it and exclude the essentially unreliable.
Nevertheless the court, as master of its own procedure, retains a residuary
right to admit them where, in rare cases, the need to carry out the
legislator's intention appears to the court so to require. No rule prevents the
court from inspecting in private 582 whatever materials it thinks fit to ensure
that it is well informed. Where these materials constitute publicly available
documents, the court takes judicial notice of them. The court has an inherent
power to inspect any material brought before it. This is to enable the court to
determine whether the materials is relevant to the point of construction in
question and if so whether it should be admitted. This has to be done with a
degree of inhibition and an amount of circumspection. 1591 E-G]
11. The history and the succession of events,
the initial lowering of the age of superannuation, the agitation consequent
upon it and the agreement that followed the agitation clearly indicate that the
object or Ordinance No.
23 of 1984 ant Act No 3 of 1985 was to undo
the mischief or the harm that had been done by the lowering of the age of
superannuation from 58 years to 55 years and to restore the previous position.
It was not a case of change of policy consequent on change of social
circumstances. It was not a case of a change of policy to set right immediately
the recent wrong perpetrated by a well intentioned but perhaps ill thought
measure. It was not at all a case of reversal of policy because of changed
circumstances. [591 H-592 B]
12. While it is a general rule of law that
statutes are not to operate retrospectively, they may so operate by express
enactment, by necessary implication from the language implied, or where the
statute is explanatory or declaratory or where the statute is passed for the
purpose of protecting the public against some evil or abuse or where the
statute engrafts itself upon existing situations etc.
But it would be incorrect to call a statute
'retrospective', "because a part of the requisites for its action is drawn
from a time antecedent to its passing". [614 G-615 A] R.V. St. Mary,
Whitechapel [Inhabitants][1842] 12 O.B.
120, referred to.
13. Unlike in the United Kingdom here in
India we have written Constitution which confers justiciable fundamental rights
and 80 the very refusal to make an Act retrospective or the nonapplication 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 retroactivity or not application clause, as offending
the fundamental right to equality fore the law and the equal protection of the
laws.
1615 B] 583 [Per V. Balakrishna Eradi, J.
concurring.] In is now well established by decisions of this Court that the
Government has full power to effect a change in the age of superaunuation cf
its employees on relevant considerations. If in the exercise of such power the
age of superannuation is enhanced purely by way of implementation of a policy
decision taken by the Government, such alteration can legally be brought about
with prospective effect from the date of the commencement of the operation of
the Ordinance, Act or Rule and no question of violation of Article 14 or 16 of
the Constitution will arise merely because the benefit of the change is not extended
to employees who have already retired from service. [618 D-E] [Per V. Khalid,
J. Concurring] In matters relating to policy decisions the charge of
arbitrariness cannot be laid at the doors of the Government.
the Government have full powers to decide
about the age of retirement considering the various data available before it.
[619 F] Removing a word or adding words to a
legislative enactment is an exercise, Courts have been repeatedly warned
against from embarking upon. This guideline is one that has to be respected by
the Courts of Law. [620 F] Normally this Court will be disinclined to entertain
or to hear petitions raising identical points again where on an earlier
occasion, the matters were heard and dismissed. Not that this Court has no
jurisdiction to entertain such Matters, but that it would normally exercise its
discretion against it. [621 C] In the instant case, the petitions involve a
serious human problem. Employees of the State with limited resources, who have
been planning their future with a secure feeling that they could work till the
age of 58 years, have overnight, been robbed of their tenure, their aspirations
and future. They have become the helpless victims of certain Swift moves on the
political chess board. These swift moves taken in a hurry without serious
application of mind have resulted in arbitrariness which has been forcefully
projected by the petitioners, This plea cannot be light heartedly thrown
overboard. Justice demands that the petitioners should be saved of their predicament.
This Court has to share for the sorry state that has come to pass in the
matter. The damage had been done and it can be repaired only be extending 584
this Court's powers to a section of employee who deserves sympathy and fair
deal. The case is more or less evenly balanced between the parties. The
benevolent jurisdiction of Article 142 (1) of the Constitution has therefore to
be invoked. [621-H- 622 B. 621 F] K. Nagera p v. State of A.P. A.I.R. 1985 S.C.
551, Bishnu Narain Mishra v. State of U.P. and others, [1965] 1 S.C.R. 693 and
D.S. Nakara v. Union [1983] 2 S.C.R 165, referred to.
ORIGINAL JURISDICTION : Writ Petition Nos.
5447-5546 of 1985 etc. etc.
(Under Article 32 of the Constitution of
India.) K.K. Yenugopal, Shanti Bhushan, Govindan Nair, F.S.
Nariman, V.M. Tarkunde, Y.S. Chitale, P.P.
Rao, S. Markandeya, Mrs. S. Markandeya, D. Sudhakar Rao, K. Ramkumar, Ms.
Lalita Kohli, B. Kanta Rao, Gururaja Rao, G. Vedantha Rao, K.K. Lahiri, R.
Karanjawala, Hardeep Singh Anand, Mks. M.Karanjawala, A.T.M. Sampath, P.N.
Ramalingam, B. Parthasarthi, H.S. Gururaja Rao, Mrs. Sheil Sethi, Sudhendra
Kulkarni, R. Venkataramani, A. Subba Rao, and S. V. Deshpande for appearing
Petitioners.
K. Subramanya Reddy, Advocate General of
A.P., K.K. Venugopal, T.V.S.N. Chari, Naresh Mathur, K. Rajendra Choudhary, K.
Shivra; Choudhary, A.S. Namblar, G.N. Rao, Attar Singh, Mrs. Gupta, B.
Parthasarthi, S.Markandeya and Mrs. Markandeya for Respondents.
The following Judgments were delivered :
CHINNAPPA REDDY, J. Tossed about by the
Executive, the Legislature and, we are sorry to say, by us the Judiciary) too,
and therefore, totally bewildered, several civil servants employees of public
sector corporations and teachers working under various local authorities are
now before us wanting to know where they stand and to what Justice and relief
they are entitled. In February, 1983, the Government of Andhra Pradesh decided
to reduce the age of superannuation of its employees from 58 to 55 years. The
Government also issued directives to local authorities and public corporations
under its control to do like wise. The age of superannuation was in fact 55
years to begin with.
But, earlier, in the year 1979, the
Government of Andhra Pradesh had raised the age of superannuation to 58 years,
presumably, because of the increased average human longevity in India, 585 the
better health and medical facilities available, the improved standard of
living, the usefulness in service of experienced employees, the employment
situation and potential and such other relevant considerations. But in February
1983, the Government decided to reduce the age of superannuation. In order to
give effect to their policy of reversal, i.e.. the policy of reducing the are
of superannuation from 58 to 55, the Government amended Rule 56 (8) of the
Fundamental Rules and Rule 231 of the Hyderabad Civil Services Rules by
substituting the figure '55' for the figure '58' and by making a special
provision that those who had already attained the age of 55 years and were continuing
in service beyond that age on 8.2.1983 shall retire from service on the
afternoon of 28. 1983. The notifications by which these amendments were carried
out were followed by another notification dated 17.2.1983 deleting the proviso
to Rule 2 of the Fundamental Rules which protected a civil servant against a
charge of his conditions of service to his detriment after he entered service.
m is was followed by the promulgation of the Andhra Pradesh Ordinance No. 5 of
1983 regulating the recruitment and conditions of service of persons appointed
to public service and posts in connection with the affairs of the State of
Andhra Pradesh and the officers and servants of the High Court of Andhra
Pradesh.
Clause 10 of the Ordinance provided that
'every Government employee, not being a workman and not belonging to Last Grade
Service shall retire from service in the afternoon of the last day of the month
in Which he attains the age of fifty five years.' In the case of Government
employees belonging to the Last Grade Service, it was provided that they shall
retire from Service on the afternoon of the last day of the month in which they
attain the age of sixty years. Clause 18 (1) provided that the proviso to rule
2 of the Fundamental Rules shall be and shall be deemed always to have been
omitted. Now immediately after the notifications reducing the age of
superannuation from 58 to 55 were issued, a large number of Government
employees, employees of public sector corporations and teachers working under
various local authorities filed writ petitions in this Court as well as in the
High Court of Andhra Pradesh challenging the vires of the provisions reducing
the age of superannuation. After promulgation of the ordinance, they were
permitted to amend the petitions to question the appropriate provisions of the
ordinance too. The petitions in this Court were heard at great length for
several days by Chandrachud, CJ, Pathak, J. and S. Mukharji, J. and Judgment
was reserved on 27.7.83. The judgment was however pronounced only on January
18, 1985. The impugned provisions were upheld and all the writ petitions were
dismissed. In the meanwhile much 586 water had flown under the bridge. There
were agitations and agreements. There were twists and turns of political power.
There were amendments to the legislation,
once more raising the age of superannuation. Learned counsel informs us that
the subsequent events were brought to the notice of the court and that a
petition was also filed to amend the writ petitions and to raise additional
grounds. The Court however refused to take notice of the subsequent events and
proceeded to pronounce their judgment with reference to a situation which
obtained several months ago and which situation stood considerably altered and
had even become unreal by the subsequent march of events. It was a great pity.
Much confusion and heart-burning might have been avoided, as we shall presently
see.
It is now necessary to mention in greater
detail the events that followed the reduction of the age of superannuation from
58 to 55 years. We referred to agitations and agreements. It appears that soon
after the reduction of the age of superannuation, there was a state- wide
agitation by affected employees and on August 3, 1983, an agreement was arrived
at between the Government of Andhra Pradesh and the Action Committee of
Employees and Workers in Andhra Pradesh.
Clause (1) of the Agreement is important and
may be usefully extracted. It is as follows:
All provisions relating to Ordinance 5 of
1983, except those. relating to the age of superannuation, will be deleted at
an early date.
Proviso to F.R.2 will be restored in respect
of all matters, except the age of superannuation retrospectively. The
provisions of the Ordinance relating to the age of superannuation will also be
removed after the judgment of the Supreme Court, provided that such removal
will not adversely effect the right of Government as determined by the Supreme
Court judgment to fix the age of superannuation.
If the Supreme Court upholds the power of the
Government to reduce the age of superannuation without referring to the
provisions in the ordinance and F.R.2, the entire ordinance will be scrapped
and F.R.2 will be restored.
This clause of the Agreement shows that while
the Government was anxious to obtain a judgment of the Supreme Court securing
their 587 right of 'fix the age of superannuation', they had also realised that
grave wrong and injustice had been done to its employees by their earlier
action in reducing the age of superannuation. They were anxious to undo the
wrong and do justice to their employees, while preserving their own power to
act in the future, if and when necessary. That apparently was the reason why
the Government agreed to scrap the whole of the ordinance if the Supreme Court
upheld the power of the Government to reduce the age of superannuation and
further agreed to delete provision relating to the age of superannuation in the
ordinance, after the judgment of the Supreme Court was pronounced. Clause (1)
of the Agreement expressly provides that proviso to F.R. 2 will be restored in
respect of all matters, except the age of superannuation retrospectively. It is
then followed by the sentence : The provisions of the ordinance relating to the
age of superannuation will also be removed after the judgment of the Supreme
Court.' The clear implication appears to be that the provisions of the
ordinance relating to the age of superannuation will also be removed in the
same manner as the proviso to Fundamental Rule 2 i.e. restrospectively.
Otherwise the agreement would make no sense.
Those attain ng the age of 55 years before judgment was pronounced would just
have to walk out while those who did not would stay on.
Surely their fate was not to hang on a date.
The Agreement, however, contained a further
curious stipulation that it was not to be placed before the Supreme Court
either by the Government or by the employees. Perhaps the stipulation was
intended to prevent the Supreme Court from abstaining from pronouncing upon the
power of the Government to reduce the age of superannuation. Quite obviously
the Agreement contemplated that the judgment of the Supreme Court would be
forthcoming very soon. But that was not to be.
There was considerable discussion at the Bar
whether the agreement contemplated and stipulated restoration of 58 years as
the age of Superannuation if the power of the Government to reduce the age of
superannuation was upheld by the Supreme Court. The agreement appears to us to
be clear and categoric and a reference to the pleadings demonstrates that the
Government also never doubted the employees' interpretation of agreement. In
Para 2 (h) of the petition in Writ Petition No. 3420-26 of 1985, the
petitioners asserted, "It is pertinent to point out that in the interregnum
between the Writ Petition being admitted in this 588 Hon'ble Court and the
judgment being delivered a State wide agitation took place in Andhra Pradesh by
the Non Gazetted employees in the Andhra Pradesh State Government in June and
July 1983.
That agitation was for the purpose of
demanding inter alia that the retirement age of the State Government employees
be restored to 58 years.
Ultimately, on 3.8.1983, an agreement was
arrived at between the State Government and the Action Committee of the
Employees and workers in Andhra Pradesh by which it was agreed the State
Government would restore the age of retirement to 58 years if the Supreme Court
upheld the State Government's Power to reduce the age of retirement. The said
agreement which was a detailed agreement entered into between the State A. P.
On behalf of the whom the negotiations were conducted by the then Chief
Secretary Shri G.V.
Ramakrishna, I.A.S. and the Action Committee
of the employees and workers, which Action Committee represented 39 service
organisation." To this the answer of the Government in their counter was:
"I state with respect to paragraph 2
that this paragraph deals with narration of facts regarding the circumstance
under which the age of retirement was enhanced and the recommendations of the
Pay Revision Commission etc. Hence they require no comments. It is respectfully
submitted that all these relevant facts have been taken into consideration by
the Supreme Court while rendering the judgment upholding G.O.Ms. NG. 36 dt. 8.2.1983.
In its judgment since reported in [1985] 1 S.C.C. page : 524. Hence there is no
necessity to traverse those facts once again herein." and "I further
state that it is not proper for the petitioner to have filed the agreement
reached between the employees Union and the state of Andhra Pradesh as Annexure
to the Writ Petition.
Under the last clause of the Agreement
reached between the Employees Union and the State of Andhra Pradesh that the
agreement shall not be placed before the Supreme Court by the Government or the
members of the employees associations.
Contrary to the provisions of the 589
agreement the petitioners have chosen to file this agreement in support of
their case and pleaded for enhancement of the age of retirement.
The Government's objection was not to the
interpretation placed upon the agreement by the parties but to its being
brought to the notice of-the Court.
The Andhra Pradesh Legislature enacted the
Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act No.
23 of 1984 making lt applicable to all persons appointed to public services and
posts in connection with the affairs of the state, all officers and other
employees working in any local authority, whose salaries and allowances were
paid out of the Consolidated Fund of the State, all persons appointed to the
Secretariat staff of the House of the State Legislature: and all officers or
employees whole conditions of service were regulated by rules framed under the
poviso to Art. 309 of the Constitution immediately before the commencement of
this Act. Sub-section (3) of s. 1 stated 'Clause (i) of s. 7 shall be deemed to
have come into force on the April 29, 1983. Sections 3 (1) and (2) were as
follows:
"3 (1) Every Government employee, not
being a workman and not belonging to Last Grade Service shall retire E from
service on the afternoon of the last day of the month in which he attains the
age of fifty five years.
(2) Every Government employee not being a
workman but belonging to the Last Grade Service shall retire from service on
the afternoon of the last day of the month in which he attains the age of sixty
years.
Explanation II(b) to s. 3 was to the
following affect:
"(b) a Government employee who attained
the age cf superannuation but who was allowed to continue to hold the post
beyond that date, but virtue of a stay order of a Court, shall be deemed to
have ceased to hold the post and relieved of his charge from the date of the
judgment dismissing his petition, irrespective of whether the charge of the
post was handed over or not as prescribed in any rule or order of the
Government for the time being in force.
590 On August 23, 1984, the Andhra Pradesh
Public Employment [Regulation of Age of Superannuation Act No. 23 of 1984 was
amended by the promulgation of Andhra Pradesh Ordinance No.
24 of 1984 providing that in s. 3(1) of the
Act and in Explanation II (a), the words fifty eight years' shall be
substituted for the words fifty five years. This was obviously done to give
effect to the agreement of August 3, 1983 and to fulfill the promise held out
therein that the age of Superannuation would be restored to 58 years. Clause
3(1) of the Ordinance is the much disputed provision and it has therefore, to
be extracted in full. It is as follows:
"3(1) The provisions of this Ordinance
shall not apply to persons who attained the age of superannuation in pursuance
of the notifications issued in G.O.Ms. No. 36, Finance and Planning (Finance
Wing-F.R.I.) Department, dated the 8th February, 1983, or in pursuance of the
provisions of the Andhra Pradesh Public Employment (Regulation of Age of
Superannuation) Act, 1984, as in force prior to the commencement of this
Ordinance.
Andhra Pradesh Ordinance No. 24 of 1984 was
replaced by Act No.3 of 1985. By Sec. 2 of the Amending Act, the words 'fifty
five years' were substituted by the words 'fifty eight years' in Sec. 3(1) and
Explanation II (a) of the Principal Act. Section 4 of the Amending Act which is
more or less on the same lines as h Clause 3(1) of the Ordinance says:
"4(1) The provisions of section 2 of
this Act shall not apply to persons who attained the age of superannuation in
pursuance of the notifications issued in G.O.Ms. No. 36 Finance and Planning
(Finance Wing F.R.I.) Department, dated the 8th February, 1983, or in pursuance
of the provisions of the Andhra Pradesh Public Employment (Regulation of Age of
Superannuation) Act, 1984, as in force prior to the commencement of this Act.
No explanatory statement accompanying
Ordinance to. 23 of 1984 was brought to our notice. The statement of Objects
and Reasons of Act No. 3 of 1985 was however placed before US but it is not
helpful to ascertain the reasons which led the legislature to restore the age
of superannuation to 58 years. If merely states that the Government considered
it necessary to raise the age of superannuation from 55 to 58 years . But we
are not 591 altogether helpless. Where internal aids are not forthcoming, we
can always have recourse to external aids to discover the object of the
legislation. External aids are not ruled out. This is now a well settled
principle of modern statutory construction. Thus 'Enacting History' is
relevant: The enacting history of an Act is the surrounding corpus of public
knowledge relative to its introduction into Parliament as a Bill, and
subsequent progress through, and ultimate passing by, Parliament. In particular
it is the extrinsic material assumed to be within the contemplation of
Parliament when it passed the Act. Again In the period immediately following
its enactment, the history of how an enactment is understood forms part of the
contemporanea exposition, and may be held to throw light on the legislative
intention. The later history may, under the doctrine that an Act is always
speaking, indicate how the enactment is regarded in the light of development
from time to time.
Official statements by the government
department administering an Act, or by any other authority concerned with the
Act, may be taken into account as persuasive authority on the meaning of its
provisions. Justice may be blind but it is not to be deaf. Judges are not to
sit in sound proof rooms.
Committee reports, Parliamentary debates,
Policy statements and public utterances of official spokesmen are of relevance
in statutory interpretation. But 'the comity the courtesy and respect that
ought to prevail between the two prime organs of the State, the legislature and
the judiciary', require the courts to make skilled evaluation of the extra
textual material placed before it and exclude the essentially unreliable.
Nevertheless the court, as master of its own procedure, retains a residuary
right to admit them where, in rare cases, the need to carry out the
legislator's intention appears to the court so to require. No rule prevents the
court from inspecting in private whatever materials it thinks fit to ensure
that it is well informed, whether in relation to the case before it or
generally.
Where these materials constitute publicly
available enacting history, the court takes judicial notice of them. The court
has an inherent power to inspect any material brought before it. Erancis
Bennien : Statutory Interpretation. This is to enable the court to determine
whether the material is relevant to the point of construction in question, and
if so whether it should be admitted. This has to be done with a degree of
inhibition and an amount of circumspection.
Here, the facts speak for themselves. Res
Ipsa Loquitur. The history and the succession of events, the initial lowering
of the 592 age of the superannuation, the agitation consequent upon it and the
agreement that followed the agitation clearly indicate that the object of
Ordinance No. 23 of 1984 and Act No. 3 of 1985 was to undo the mischief or the
harm that had been done by the lowering of the age or superannuation from 58
years to 55 years and to restore the previous position.
Quite obviously, lt was not a case of change
of social circumstances. It was a case of a change of policy to set right
immediately a recent wrong perpetrated by a well intentioned but perhaps ill-thought
measure. It was not at all a case of reversal of policy because of changed
circumstances. A reference to the note file which was made available to us by
the learned Advocate General of Andhra Pradesh at our instance shows that it
was after a careful consideration of the representations made by the various
services associations in regard to the restroation of the age of superannuation
to 58 years that the Government resolved to restore the age of superannuation
to 58 years, In the counter, the Government appeared to take the stand that the
Governments of the States of Karnataka and Rajasthan had raised the age of
superannuation to 58 years and the Government of Andhra Pradesh wanted to fall
in line.
It was a wholly inaccurate statement. There
is no reference in the note file or elsewhere, except for the first time in the
counter, to the circumstance that two other State Governments had raised the
age of superannuation and the Andhra Pradesh Government had a accepted their
wisdom. The statement in the counter must be ignored. A reference to the
pleadings is revealing, if not, startling. In Writ Petition Nos. 3420-3426/85
in paragraph 5, the petitioner averred:
"In fact Shri N.T. Rama Rao, Chief
Minister himself admitted that he was misguided and misled by the then Finance
Minister and the Chief Secretary when his Government took the decision to
reduce the age of retirement. His press conference dated 25.9.1984 was reported
in the Deccan Chronicle as follows:
"Chief Minister N.T. Rama Rao today
announced that his government would retain the age of superannuation of the
Government employees at 58 years as decided by the short-lived Bhaskara Rao
Ministry.
Briefing newsmen after the Cabinet meeting
this afternoon, Mr. Rama Rao said the Cabinet had reviewed the decision of the
previous Government to raise the age of superannuation from 55 years to 58 with
effect from August 23, 1984.
593 The Chief Minister charged that Mr. N.
Bhaskara Rao, the then Finance Minister and the then Chief Secretary Mr. B.N. Raman
had misled him when his Government decided to reduce the age of superannuation
from 58 to 55. Both have not raised any objection to the proposal. Despute
knowing well that the 'unpopular' have would be detrimental to the Government,
they had allowed it go with the evil intention of discrediting him, he
allegeded.
Mr. Rama Rao said it was not his intention to
hurt the interests of any section of the people and the Government employees
constituting a sizeable number who had voted his party to power. However it is
not possible for the Government to concede the request of those who had already
retired , he observed.
The said report has never been denied or
resiled by the Chief Minister.
In answer, the averment was not denied. The
deponent of the counter affidavit stated:
"I state with respect to paragraph:5
that it is not open to the petitioner to rely on paper cuttings in support of
their contention unless otherwise they are proved apart from the fact that the
statement in paper cuttings are in no way advance the case of the petitioner.
This can hardly be considered to be a denial
of what was said in paragraph 5 of the petition. We must therefore, proceed on
the basis that the Chief Minister (Shri N.T. Rama Rao) did allege that when the
Government took the decision to reduce the age of superannuation, he was,
'Misguided and misled' by his Finance Minister and the Chief Secretary. It may
be a sorry confession to make on the part of a Chief Minister, especially when
it was a momentous decision involving the lives and future of thousands of
employees.
One wonders how a decision concerning the
lives and the future of civil servants, who all their lives in the past, had
loyally served the Government, could have been taken in such a hasty and
haphazard fashion. One would expect such a decision to be taken after a full
investigation into the multitudinous pros and cons, after deep collection of
all pertinent data and after deep consideration of every aspect of the
question. But 594 there we have a statement attributed to the Chief Minister
that he was 'misled and misguided' by the Finance Minister and his Chief
Secretary. Sorry confession, it may be, but a frank and courageous admission it
was, exposing him to criticism. It does require a sturdy spirit to own a mistake.
During the pendency of the Writ Petitions in
this Court, several employees of local authorities etc. Obtained orders of stay
from the High Court and were continuing in service on the dates when the
judgment of the Supreme Court was pronounced. After the pronouncement of the
judgment of the Supreme Court, the authorities that be have sought to give
effect to the provisions of the Act and the Ordinance by seeking to throw them
out on the ground that they had completed 55 years of age during the interregnum
between February 28, 1983 and August 23, 1984 some others who had completed 55
years between February 28, 1983 and August 23, 1984 but who had not completed
58 years sought re-entry was notwithstanding the raising of the age of
superannuation from 55 years Co 58 years. Their re-entry was sought to be
resisted on the basis of Cl.3(1) of the Ordinance and S.4(1) of the Amending
Act. Those employees who were sought to be removed from service or who were
denied re-entry into service on the ground that they had attained the age of 55
years between February 28, 1983 and August 23, 1984, have once again invoked
the jurisdiction of this Court and sought appropriate writs from this Court to
continue or to reinstate and continue them in service until they attain the age
of 58 years. They are the petitioners in Writ Petitions Nos. 3203, 3413-3419,
3420-3426 etc. etc. Of 1985. They sought interim orders from this Court.
On 23.4.85 interim directions to the
following effect were issued by Desai and Khalid, JJ:
(1) From amongst those Government servants
and servants of Local and other authorities governed by the decision of the
Government of A.P. On reduction of age of retirement from service from 58 years
to 55 years, who continued in service or continued to hold the post on April 1,
1985 for any reason including the grant of interim relief by Courts and who are
removed from that post after that data shall be reinducted and put back in the
post from where he/she was removed.
(2) Those Government Servants and others
enumerated a in No.(1) here and who are today in service and are likely to- be
removed on account of the reduction in 595 age of superannuation
notwithstanding restoration of higher age, whatever be the case, shall continue
in service till further orders.
(3) Those Government servants and others
enumerated in No.(1) here who were in service prior to April 1, 1985 and who
are removed from service on account of reduction in age, shall be reinducted in
service, if the posts from each one was removed is still vacant or someone is
holding a temporary charge.
(4) Those directions shall be carried out and
given effect to within one week from today.
(5) These directions will also cover those
Government servants who are similarly situated but have not filed the SLPs and
WPs.
(6) Government servants referred to in No.(1)
will also comprehend members of State Judicial Service.
The matter was mentioned again on two
occasions for clarification and the following orders were then made by
Tulzapurkar, Desai and Sen, JJ. The order made on May 6, 1985 said:
We do not see any ambiguity in Cl.3 of the
order dated 23rd April, 1985. It is directed that Cl.3 or the order dated 23rd
April, 1985 should be implemented to the extent that promotions made to the
posts which are held by the officers will be made under Rule 37 by temporary
appointments and the Chief Secretary and other two senior Secretaries will
examine the question as to how many such vacancies could be filed and it is
further directed that from out of the petitioners one who has the longest
service will be selected.
The order will be carried out within two
weeks from today. This is without prejudice to the vacancy clause. All these
appointments will be subject to the result of these petitions.
The order made on May 7, 1985 said:
"We do not see any ambiguity in clause 3
or the Order dated 23rd April, 1985. It is directed that clause 3 of the order
dated 23rd April, 1985 should be imple- 596 employees were moved are still
vacant or where such post is held temporarily by others on promotion under Rule
37 of the A.P. States Subordinate service Rules. The Chief Secretary and two
other Senior Secretaries will examine the question as to how many such posts
could be filed and it is further directed that in cases where more than one
person has retired from a post, the person having the longest service should be
selected. The Order will be carried out within two weeks from today. All these
appointments will be subject to the result of the Petitions.
These interim orders were made under the
misapprehension that all so-called promotions would only be made under Rule 37
whereas whenever a promotion was made from a lower service to a higher service,
it was not called a promotion but was styled as an appointment and was made under
Rule 10.
Since Rule 10 was not mentioned in the
orders, persons who had been 'promoted' and appointed under Rule 10 claimed
that they could not be displaced.
Some others though promoted under Rule 37
claimed that they had in fact been promoted regularly after a proper selection
by the Departmental Promotion committee but that according to the practice
prevailing in Andhra Pradesh, their orders of promotion mentioned that they
were prompted temporarily, though in fact they had been promoted regularly. Many
such persons, claiming to have been appointed under Rule 10 or claiming to have
been promoted regularly notwithstanding the mention of Rule 37, filed Writ
Petition Nos. 5447-5546 of 1985 etc. etc. questioning the orders of reversion
with which they were faced consequent on the interim directions given by Desai
and Khalid,JJ. During the vacation, R.B.
Misra,J. stayed the orders or reversion
passed by the Government in order to reinduct the retired employees. The
interim orders granted by R.B. Misra,J. appeared to conflict with the earlier
interim orders granted by this Court. When all the interim applications came
before us a few days back, we directed that all the Writ petitions may be
placed before us for final disposal and that is how the matters are now before
us.
Before referring to the submissions of the
parties on the principal question of discrimination and arbitrariness, it is
necessary to ascertain the exact factual situation in regard to certain other
matters, besides those to which we have already referred. First in regard to
the question whether the vacancies arising consequent on the application of the
reduced age of superannuation have been filled and if filled, whether they have
597 been filled on a regular or temporary basis? In Writ Petition No. A
3170/85, a Deputy Secretary to the Government of Andhra Pradesh, speaking for
the government of Andhra Pradesh swore to a counter-affidavit in May 1985 in
which he stated that:
"I state with respect to paragraph 8,
that it is not correct to state that only few vacancies have been filled on
temporary basis on the specific condition of review and revision on the basis
of outcome of the judgment in the Writ Petitions filed by the employees due to
the retirement at the age of 55 years pending in this Hon'ble Court.
It is submitted that it is wholly untrue to
say that few vacancies have been filled up. Consequent on the reduction in the
age of superannuation the Government took every step to see that most of the
vacancies have been filled up in accordance with rules on regular basis. It is
only in few cases, temporary promotions have been effected pending writ
petitions. It is submitted that Ann.-I to this counter affidavit gives
particulars regarding the vacancies that arose due to the reduction in the age
of retirement on 28.2.1983 and the vacancies filled up and the vacancies
existing. m ere are very few vacancies in the lower echelons.
I also submit that the existing few vacancies
are due to administrative dealy, or vacancies that arose latter after
originally filling the vacancies.
In Writ Petition Nos. 5447-5546/85, there was
a complete volte face ant the very same Deputy Secretary speaking again for the
Government of Andhra Pradesh said:
In so far as the first point is concerned in
none of the cases there were regular promotions. All the promotions were
officiating/Temporary/adhoc which would be clear from orders of promotion, some
of which have been produced by the petitioners themselves. The promotions were
either subject to the result of the writ petitions then pending in this
Honourable court challenging reduction of retirement age from 58 to 55 years,
Or some other proceedings relating to inter- seniority pending either in this
Honourable Court or in the High Court or in the Administrative Tribunal, Or
because of the pendency of finalisation of seniority lists and consequent
review of promotions under the State Reorganisation Act. Further the Writ 598
Petitions questioning the reduction of age of retirement from 58 to 55 in
G.O.Ms.No. 36, dated 8.2.83 were heard and judgment was reserved on 27th July,
1983. Since the judgment was reserved, the judgment was expected at any
movement. Hence the Government were making only officiating/temporary
promotions under rule 37.
Under the circumstances it was not possible
to make regular appointments/promotions. Therefore, the petitioners were
rightly reverted in accordance with the directions of the Honourable Court
dated 6.5.1985 and 7.5.85. There was / question of either giving them any
notice or hearing before the orders of the reversion are passed, as in terms of
Rule 37 (dd), they could be reverted without any notice or hearing.
"Persons holding the posts under Rule 10
have no right to the posts and their appointments/promotions were purely
temporary/adhoc.
"Hence, I state that the` petitioners
continue to be adhoc promotees under Rule 37 and not regular employees as
claimed by them.
and:
Admittedly, the petitioners were promoted
under Rule 37 consequent to the vacancies which arose due to the retirement of
several persons at the age of 55 years. The Government never intended to
appoint them on regular basis pending writs and judgment before the Supreme
Court. In case the promotions were effected regularly legal complications will
set in the event of the judgment of the Supreme Court going against the State
Government deliberately made Rule 37 promotions so that in the event of the
judgment going adversely against the State Government, there may not be any
difficulty in reverting Rule 37 promotees and reinducting the employees
affecting by G.O.Ms.No. 36 dated 8.2.83.
Fortunately, the judgment of the Supreme
Court comes in favour of the State Government.
It is amazing that the same Deputy Secretary
to the Government, representing the same Government, should have sworn to two
such contradictory affidavits. It reveals a total sense of irresponsibility and
an utter disregard for veracity. It shows 599 that the deponent had signed the
affidavits without even reading them or that he signed them to suit the defence
to the particular writ petition without any regard for truth.
In either case, it is reprehensible and
totally unworthy of the spokesman of a Government and must unflattering to the
Government on whose behalf he spoke. We would have contemplated severe action
against the dependent, had we not the feeling that the responsibility for his
statements lies with undisclosed higher echelons and we need not make a
scapegoat of him. In fact, in a case like this involving the entire body of
Government servants in Andhra Pradesh, we would have expected the Chief
Secretary or a Principal Secretary to file the counter. But they have chosen to
keep themselves back.
However we have a duty to discover the truth.
We think that the truth is what is stated in the counter-affidavit in Writ
Petition Nos. 5447-5546/85. The counter-affidavit itself gives good reasons why
the promotions appointments were made on a temporary basis and the reasons are
acceptable. The statements in the counter-affidavit in writ Petition Nos. 5447-5546/85
are supported by the findings of the Committee which was appointed by the
government under the interim orders of this Court. The Committee consisted of
the Chief Secretary and two senior Secretaries and it was asked to examine the
question of the availability of posts for reinduction of retired employees. The
findings of the Committee were mentioned in the counter-affidavit in Writ
Petition Nos. 5447-5546/85 and this is what was said:
"The Committee constituted under G.O.Ms.
No. 205, dt.9.5.1985 has completed its task of determing the number of
vacancies for which retired employees can be reinducted as per the directions
of this Honourable Court. Here below is given an abstract of the position as
emerged. Total number of persons retired from 28.2.83 to 23.8.1984 due to
reduction of age of retirement from 58 to 55 is 15,529 of these people 8.928
are eligible for reinduction as they are below 58 years. m e Committee found
that 2,770 posts are vacant and that 1751 persons have to be reverted as they
were holding the posts on temporary promotions under Rule 37. Thus, the total
number of vacancies to which retired persons could be reinducted as
4,521." It was said that it was a practice in the State of Andhra Pradesh
to make even regular appointments and regular promotions 600 under Rule 10 and
Rule 37 only and therefore, the mere fact that Rule 10 or Rule 37 was mentioned
in an order of appointment or promotion would not necessarily make the
appointment or promotion temporary. Such appointments or promotions, if made
after going through the regular process or selection were to be considered as
regular and not temporary notwithstanding the mention of Rule 10 or Rule 37.
But here as pointed out in the counter, there
was a special situation immediately after the age of superannuation was
reduced, writ petitions were filed is the Supreme Court and in the High Court
and there was considerable agitation by the employees. The entire situation was
fluid as it were and there was good reason for the Government to make the
appointments and promotions on a purely temporary basis, and that was what they
did. That the Departmental Committees recommended the temporary appointments
and promotions made on the recommendation of the Departmental Promotion
Committee. This is clear from the counter affidavit in Writ Petition on Nos.
5447-5546/85 where it is stated as follows in paragraph IV-B:
"In certain cases, the promotions were
given on the basis of the recommendations of the Departmental Promotion
Committee but that does not mean that their promotions were regular. The
Departmental Promotion Committee also makes recommendations for temporary
appointments/promotions otherwise it will offend Art. 14 and 16 in case all
eligible candidates are not considered for promotion even though the promotions
is either officiating/temporary.
Therefore, the mere section by-the
Departmental Promotion Committee does not make their promotions regular.
Promotion or posting after completion of training does not make the promotions
regular. The promotion orders of the petitioners promoted under Rule 37 clearly
show that their promotions were purely temporary.
It is in this setting and background of facts
that we are required to consider the submissions made to us. The submission
made by Sarvasri K.K. Venugopal, V. M. Tarkunde and F.S. Nariman who appeared
for the employees who attained the age of 55 years between 28.2.83 and 23.8.84,
was that the classification of these persons as a separate group for the
purpose of excluding them from the benefit of the redressal of the wrong done
to the employees and the relief given to them by the amending Ordinance and the
Act, was an unreasonable classification having no nexus whatever with the
object of the legislation. They urged that every person who was in Government
employment on 28.2.83 was hit 601 by the reduction of the age of superannuation
from 58 to 55 years and when it was realised that a grievous wrong had been
done which it was necessary to set right by reversing the policy and such a
policy decision was in fact soon taken there was no reason to postpone effect
being given to the reversal of policy to an uncertain date, namely the
pronouncement of the judgment by the Supreme Court and thereby to exclude from
the benefits of the change of policy that group of persons who had the
misfortune of attaining the age of 55 years between the two dates. The learned
counsel pointed out that the decision to reverse the policy having been taken,
the uncertain date of pronouncement of judgment was an irrelevancy in fixing
the date from which to give effect to the policy. In the event, the government
also did not await the pronouncement of the judgment but came forward first
with the Ordinance and then with the Act.
Therefore the learned counsel urged, by merely
giving them the appellation 'retirees' as the Government had done in this case,
the group of persons who had attained the age of 55 years before the delayed
date of giving effect to the reversal of policy could not be discriminated
against. The question according to the learned counsel, was not one of
retrospectivity at all, but one whether when making a legislation to right a
wrong or remedy a mischief a group of persons who had also been wronged and
suffered the mischief could be excluded by the mere mechanics of delayed
legislation. Shri Venugopal further submitted that several persons who were
continuing in service by virtue of orders of stay obtained from the High Court,
were also sought to be sent away by the government on the ground that had they
not obtained the orders of stay, they would have retired from service on having
attained the age of 55 years. This he urged was patently unreasonable. On the
other hand it was urged by the learned Advocate General of Andhra Pradesh, who
appeared for the government of Andhra Pradesh, Shri Shanti Bhushan, Shri
Govindan Nair, Shri Parmeshwar Rao, Shri H.S. Guru Raja Rao and Shri Kanta Rao,
learned counsel who appeared for the officers who were promoted in the
vacancies created by the retirement of those who had attained the age of 55
years, that there was no discrimination whatever and that what the Government
had done was merely to classify those employees who had ceased to be in service
or who should have ceased to be in service and refuse to apply the increased
age of superannuation to them. It was said that having gone out of service,
there was no question of their being eligible to the increased age of
superannuation and therefore, the classification was perfectly reasonable. It
was also urged that appointments and promotions were made subsequent to the
reduction of the age of 602 superannuation on regular basis and those
appointments and promotions could not be disturbed. We were told that
interference by us at this stage would lead to administrative disorder,
disaster and chaos. We would like to mention here that the learned Advocate
General of Andhra Pradesh as well as the other learned counsel who appeared on
either side presented their respective points of view very fairly and with
moderation. The task of the learned Advocate General was particularly difficult
as he stood between the devil and the deep sea as it were.
A situation such as the one before us had
never presented itself to the court previously. Make this case a precedent for
justice say one side; let this not be the first say the other. We have had
cases where the age of superannuation had been raised from 55 to 58 years; we
have had cases where having earlier raised the age of superannuation from 55 to
58 years, there was later a change of policy and the age of superannuation was
once again reduced to 55 years. But this is the first occasion-neither our
researches nor those of the learned counsel have been able to trace another
case of this kind - where the age of superannuation was first raised from 55 to
58 years, there was then a change of policy a few years later reducing the age
of superannuation from 58 to 55 years and finally there was again, within a few
months, a reversion to the higher age of superannuation of 58 Years.
The cases of Bishnu Narain Mishra v. State of
Uttar Pradesh Ors. [1965] 1 S.C.R. 693 and K. Nagaraj & Ors. v. State of
Andhra Pradesh AIR 1985 S.C. 551, belong to the second category of cases. In
Bishnu Narain Mishra's case, by a notification dated November 27, 1957 the
Government of Uttar Pradesh raised the age of superannuation from 55 to 58
years. On may 25, 1961 the Government reduced the age once against to 55 years,
and further laid down that those who had continued beyond the age of 55 years
owing to the earlier notification would be deemed to have been retained in
service beyond the age of superannuation and would be compulsorily retired on
December 31, 1961. The appellant who attained the age of 55 years on December
11, 1960 and was continued in service was one of those who was retired on
December 31, 1961. He questioned the change in the rule of retirement on the
ground that it was hit by Art. 14 in as much as it resulted in inequality
between public servants in the matter of retirement. The argument was that when
all those who had passed 55 years were asked to retire on December 31, 1960
some had just completed 55, some were 56, some were 57 and so on and,
therefore, there was discrimination. Dealing with this question, Wanchoo, J. speaking
for the Court observed:
603 "The last argument that has been
urged is that the new rule is discriminatory as different public servants have
in effect been retired at different ages. We see no force in this contention
either, retirement namely December 31, 1961 in the case of all public servants
and fixes the age of retirement at 55 years. There is no discrimination in the
rule itself. It is however urged that the second notification by which all
public servants above the age of 55 years were required to retire on December 31,
1961 except those few who completed the age of 55 years between May 25, 1961
and December 31, 1961 shows that various public servants were retired at
various ages ranging from 55 years and one day to up to 58 years. That
certainly is the effect of the second order. But it is remarkable that the
order also fixed the same date of retirement namely December 31, 1961 in the
case of all public servants who had completed the age of 55 years but not the
age of 58 years before December 31, 1961. In this respect also, therefore,
there was no discrimination and all public servants who had completed the age
of 55 years which was being introduced as the age of superannuation by the new
rule by way of reduction were ordered to retire on the same date, namely
December 31, 1961. The result of this seems to be that the affected public
servants retired at different ages. Out this was not because they retired at
different ages but because their services were retained for different periods
after the fifty-five. Now it cannot be urged that if Government decides to
retain the services of some public servants after the E` age of retirement it
must retain every public servant for the same length of time. The retention of
public servants after the period of retirement depends upon their efficiency
and the exigencies of public service, and in the present case the difference in
the period of retention has arisen on account of exigencies of public service.
We are, therefore, of opinion that the second notification of May 25, 1961 on which
reliance is placed to prove discrimination is really not discriminatory, for it
has treated all public servants alike and fixed December 31, 1961 as the date
of retirement for those who had completed 55 years but not 58 years up to
December 31, 1961. The challenge therefore, to the two notifications on the
basis of Art. 14 must fail." 604 The situation which was considered in
Bishnu Narain's case was exactly the identical situation which obtained on
February 28, 1983 in the present case and precisely the situation which was
considered by the judgment pronounced on January 18, 1985 and which is reported
in A.I.R. 1985 S.C.
551 as K. Nagaraj v. State of Andhra Pradesh,
the very judgment the delay in pronouncing which is said to have led to this
confusion. Neither in Bishnu Narain Mishra's case nor in Nagaraa's case had the
court occasion to consider the further step that had been taken in the present
case, namely, once again raising the age of super annuation to 58 years and the
exclusion of a class of persons from its benefit. Both the case are therefore
plainly distinguishable and are of no assistance to us in solving the problem
before us.
Another case on which reliance was palced by
the learned counsel appearing for the respondents in Writ Petition Nos. 3203,
3413-3419, 3420-3426 etc.etc. Of 1985 was State of Assam v. Padma Ram Borah AIR
1965 S.C. 473. In that case a Government servant who was due to retire from
service on and from January 1, 1961, was suspended from service on December 22,
1960, pending a departmental inquiry. His services were extended till March 31,
1961. The departmental inquiry was, however, not concluded even by then. So on
May 9, 1961, the Government passed an order extending his services for a period
of 3 months with effect from April 1, 1961. This Court held that the government
had no jurisdiction to extend the service of a Government servant, after he had
retired from service; merely for the purpose of continuing the departmental
inquiry. Rule 56 of the Departmental rules did not authorise such a course. It
is difficult to see how this case can possibly assist the respondents in Writ
Petitions Nos. 3203, 3413-3419, 3420- 3426 etc. etc. Of 1985. It is one thing
to say that the Executive Government has no power to pass an order extending
the service of a Government servant after he has retired from service; it is
altogether a different thing to say that the state while making a law raising
the age of superannuation cannot make an unreasonable classification to exclude
some Government Servants from the benefit of the increased age of
superannuation. The classification must pass the dual test of being reasonable
and related to the object of the legislation, besides not being arbitrary. It
is not open to the State to make an arbitrary classification first by making
the date dependent on an uncertain event namely, the date of pronouncement of
judgment by the Supreme Court and next by making a legislation excluding
persons who had attained the age of 55 years before the legis 605 lation took
effect though the legislation itself was designed to undo the wrong already
done to the very Government employees. Some other cases were also cited before
us to illustrate the point that it was open to the Legislature and the
Executive to choose a 'cut-off' date for bringing into force laws such as Land
Reform Laws etc. It is true that whenever a law is made or whenever an action
is taken, it has to be with effect from a certain date but it does not
necessarily follow that the choice of the date of not open to scrutiny at all.
If the choice of the date is made burdensome to some of those, the wrong done
to whom is sought to be rectified by the law it would certainly be open to the
Court to examine the choice of the date to find out wether it has resulted in
any discrimination.
We think that the one case which is really of
assistance to us in this matter is the recent decision of the Constitution
Bench in D.S. Nakara v. Union of India [1983] 2 SCR 165. We propose not merely
to quote extensively from NaKara's case, not merely to adopt the principles
therein laid down but also to employ the very techniques applied there to solve
the problem. The question arose there whether, for the purpose of application
of the liberalised pension rules, the Government of India could stipulate March
31, 1979 as the date for dividing Government employees into two classes: one
class who had retired before March 31, 1979 who would not be entitled to the
benefits of the liberalised pension rules and the other class who retired after
March 31, 1979 who would be entitled to such benefits. The submission was that
the differential treatment accorded to those who had retired prior to the
specified date was voilative of Art. 14 as the choice of the date was arbitrary
and the classification based on the fortuitous circumstance of retirement-
before or subsequent to the specified date was invalid. This submission was
accepted by the Constitution Bench. Justice D.A. Desai speaking for a unanimous
Court, considered the question at great length in all its implications. First
considering the scope of Art.
14, it was observed:
"The decisions clearly lay down that
though Art.14 forbids class legislation, it does not forbid reasonable
classification for the purpose of legislation. In order, however to pass the
test of permissible classification two conditions must be fulfilled, viz. (i)
that the classification must he founded on an intelligible differentia which
distinguishes persons or things that are grouped 606 together from those that
are left out of the group; and (ii) that differentia must have a rational
relation to the objects sought to be achieved by the statute in question The
other fact of Art.14 which must be remembered is that it eschews arbitrariness
in any form. Article 14 has, therefore, not to be held identical with the
doctrine of classification.
Thereafter the Court posed the question:
" As a corollary to this well
established proposition, the next question is, on whom the burden lies to
affirmatively establish the rational principle on which the classification is
founded correlated to the object sought to be achieved?" The question was
answered and it was said:
"The State, therefore, would have to
affirmatively satisfy the Court that the twin tests have been satisfied. It can
only be satisfied if the State establishes not only the rational principle on
which classification is founded but correlate it to objects the sought to be
achieved." The submission made by the learned Attorney-General on behalf
of the Union of India was summarised:
"Thus according to the respondents,
pensioners who retire from Central Government service and are governed by the
relevant pension rules all do not form a class but pensioners who retire prior
to a certain date and those who retire subsequent to a certain date form
distinct and separate classes.
It may be made clear that the date of
retirement of each individual pensioner is not suggested as a criterion for
classification as that would lead to an absurd result, because in that event
every pensioner relevant to his date of retirement will form a class unto
himself. What is suggested is that when a pension scheme undergoes a revision
and is enforced effective from a certain date, the date so specified becomes a
sort of rubicon and those who retire prior to that date from one class and
those who retire on a subse- 607 quent date form a distinct and separate class
and no one can cross the Rubicon.
The Court then proceeded to consider the
question: what is a pension? and why a liberalised pension schemes? After
answering these questions the court referred to some of the very arguments now
advanced before us that the date is an integral part of the scheme and so not
severable from the scheme at all and that the Court should not usurp
legislative functions. The learned Attorney General's argument on these
questions was:
"The Learned Attorney-General contended
that the scheme is one whole and that the date is an integral part of the
scheme and the Government would have never enforced the scheme devoid of the
date and the date is not severable from the scheme as a whole. Contended the
learned Attorney-General that the Court does not take upon itself the function
of legislation for persons, things or situations omitted by the legislature. It
was said that when the legislature has expressly defined the class with clarify
and precision to which the legislation applies, it would be outside the
judicial function to enlarge the class and to do so is not to interpret but to
legislate which is the forbidden field. Alternatively it was also contended
that where a larger class comprising two smaller classes is covered by a
legislation of which one part is constitutional, the Court examines whether the
legislation must be incalidated as a whole or only in respect of the unconstitutional
part. It was also said that severance always cuts down the scope of legisation
but can never enlarge it and in the present case the scheme as it stands would
not cover pensioners such as the petitioners and if by severance an attempt is made
to include them in the scheme it is not cutting down the class or the scope but
enlarge the ambit of the scheme which is impermissible even under the doctrine
of severability. In this context it was lastly submitted that there is not a
single case in India or elsewhere where the Court has included some category
within the scope of provisions of a law to maintain its
constitutionality." Proceeding them to meet the submission of the learned
Attorney General, Desai J. said, 608 "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. The
classification has to be based, as is well settled, on some rational principle
and the rational principle must have nexus to the objects sought to be
achieved. We have set out the objects underlying the payment of pension. If the
State considered it necessary to liberalise the pension scheme, we find no
rational principle behind it for granting these benefits only to those who
retired subsequent to that date simultaneously denying the same to those who retired
prior to that date. If the liberalisation was considered necessary for
augmenting social security in old age to government servants then those who
retired earlier cannot be worst off than those who retire later. Therefore,
this division which classified pensioners into two classes is not based on any
rational principle and if the rational principle is the one of dividing
pensioners with a view to giving something more to persons other wise equally
placed it would be discriminatory. To illustrate take two persons, one retired
just a day prior and another a day just succeeding the specified date. Both
were in the same pay bracket the average emolument was the same and both had
put in equal number of years of service. How does a fortuitous circumstance of
retiring a day earlier or a day later will permit totally unequal treatment in
the matter of pension. One retiring a day earlier will have to be subject to
ceiling of Rs. 8,100 p.a. and average emolument to be worked out on 36 months'
salary while the other will have a ceiling of Rs. 12,000 p.a. and average
emolument will be computed on the basis of last ten months average. The
Artificial division stares into face and is unrelated to any principle and
whatever principle, if there be any, has absolutely no nexus to the objects
sought to be achieved by liberalising the pension scheme. In fact this
arbitrary division has not only no nexus to the liberalised pension scheme but
it is counter productive and runs counter to the whole gamut of pension 609
scheme. The equal treatment guaranteed in Art. 14 is wholly violated inasmuch
as the pension rules being statutory in character, since the specified date,
the rules accord differential and discriminatory treatment to equals in the
matter of commutation of pension. A 48 hours difference in matter of retirement
would have a traumatic effect. Division is thus both arbitrary and
unprincipled. Therefore the classification does not stand the test of Art.
14." The Court then asked itself the question: By our approach, are we
making the scheme retroactive. The answer was an emphatic 'No'. They said,
"In other words, benefit of revised scale is not limited to those who
enter service subsequent to the date fixed for introducing revised scales but
the benefit is extended to all those in service prior to that date. This is
just and fair. Now if pension as we view it, is some kind of retirement wages
for past service, can it be denied to those who retired earlier, revised
retirement benefits being available to future retires only. Therefore, there is
no substance in the contention that the court by its approach would be making
the scheme retroactive, because it is implicit in theory of wages.
The Court finally considered the favourite
argument advanced against what some of the Counsel who appeared before us
described as judical 'tinkering' with legislative policy.
The Court took the view that the State cannot
say 'Take it or leave it'. If there are words in a statute which bring about
discrimination, those words can be severed. They said, "There is nothing
inmutable about the choosing of an event as an eligibility criteria subsequent
to a specified date. If the event is certain but its occurrence at a point of
time is considered wholly irrelevant and arbitrarily selected having no
rationale for selecting it and having an undesirable effect of dividing
homogeneous class and of introducing the discrimination, the same can be easily
severed and set aside. While examining the case under Art. 14, the approach is
not : 'either take it or leave it', the approach is removal of arbitrariness
610 and if that can be brought about by severing the mischievous portion the
ourt ought to remove the discriminatory part retaining the beneficial portion.
The pensioners do not challenge the liberalised pension scheme. They seek the
benefit of it. Their grievance is of the denial to them of the same by
arbitrary introduction of words of limitation and we find no difficulty in
severing and quashing the same. This approach can be legitimised on the ground
that every Government servant retires. State grants upward revision of pension
undoubtedly from a date. Event has occured revision has been earned. Date is
merely to avoid payment of arrears which may impose a heavy burden. If the date
is wholly removed, revised pensions will have to be paid from the actual date
of - retirement of each pensioner. That is impermissible. The State cannot be
burdened with arrears commencing from the date of retirement of each pensioner.
But effective from the specified date future pension of earlier retired
Government servants can be computed and paid on the analogy of fitments in
revised pay-scales becoming prospectively operative. That removes the nefarious
unconstitutional part and retains the beneficial portion. It does not adversely
affect future pensioners and their presence in the petitions becomes
irrelevant. out before we do so, we must look into the reasons assigned for
eligibility criteria, namely, 'in service on the specified date and retiring
after that date'." The learned judges then expressed their disinclination
to share the fear expressed by the learned Attorney, General that the
Parliament would not have enacted the measure if the unconstitutional part was
struck down and added "Our approach may have a parliamentary flavour to
sensitive noses. Dealing with the question of frame of relief, the Court struck
down as unconstitutional the words, that in respect of the Government servants
who were in service on the 31st March, 1979 and retiring from service on or after
that date and the words the new rates of pension are effective from 1st April,
1979 and will be applicable to all service officers who became/become
non-effective on or after that date in the impugned memoranda, but specified
that the date mentioned therein will be relevant as being one from which the
liberalised pension scheme becomes operative to all pensioners governed by 1972
Rules irrespective of the date of retirement." 611 It was declared all
pensioners governed by the 1972 Rules and Army Pension Regulations shall be
entitled to pension as computed under the liberalised pension scheme from the
specified date, irrespective or the date of retirement." In the course of
our narration, we have already stated our conclusions on several of the questions
at issue, both factual and legal. The final situation that emerges is that
almost immediately after the age of superannuation was reduced from 58 to 55
years, it was realised by the Government of Andhra Pradesh that they had taken
a step in the wrong direction and that serious wrong and grave injustice had
been done to their employees. A decision was very soon taken to redress the
wrong by reversing the decision but an unfortunate rider was added that they
should wait till the pronouncement of the judgment of the Supreme Court, which
was perhaps expected to be pronounced shortly.
As the judgment was not pronounced for long,
it became imperative for the Government to implement their decision of their
own accord and so they passed Ordinance No. 24 of 1984 and Act No. 3 of 1985,
amending Act No. 23 of 1984 by substituting 58 years for 55 years. While doing
80, unfortunately again, those that had suffered must by being compelled to
retire between 28.2.83 and 23.8.84 were denied the benefit of the legislation
by cl.3(1) of the Ordinance and Sec. 4(1) of Act No.3 of 1985. Now if all
effected employees hit by the reduction of the age of superannuation formed a
class and no sooner than the age of superannuation was reduced, it was realised
that injustice had been done and it was decided that steps should be taken to
undo what had been done, there was no reason to pick up out a class of persons
who deserved the same treatment and exclude from the benefits of the beneficent
treatment by classifying them as a separate group merely because of the delay
in taking the remedial action already decided upon. We do not doubt that the
Judge's friend and counsellor, 'the common man', if asked, will unhesitatingly
respond that it would be plainly unfair to make any such classification. The
common sense response that may be expected from the common man, untramelled by
legal lore and learning, should always help the judge in deciding questions of
fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the
action of the Government and the provisions of the legislation were plainly
arbitrary and discriminatory. The principle of Nakara clearly applies. The
diversion of Government employees into two classes, those who had already
attained the age of 55 on 28.2.83 and those who attained the age of 55 on
28.2.83 and 23.8.84 on the one hand, and the rest on the other 612 and denying
the benefit of the higher age of superannuation to the former class is as
arbitrary as the division of Government employees entitled to pension in the
past and in the future into two classes, that is, those that had retired prior
to a specified date and those that retired or would retire after the specified
date and confining the benefits of the new pension rules to the latter class
only.
Legislations to remedy wrongs ought not to
exclude from their purview persons a few of the wronged persons unless the
situation and the circumstances make the redressal of the wrong, in their case,
either impossible or so detrimental to the public interest that the mischief of
the remedy outweighs the mischief sought to be remedied. We do not find that
there is any such impossibility or detriment to the public interest involved in
reinducting into service those who had retired as a consequence of the
legislation which was since thought to be inequitable and sought to be
remedied. As observed in Nakara, the burden of establishing the reasonableness
of a classification and its nexus with the object of the legislation is on the
State. Though no calamitous consequences were mentioned in any of the counter
affidavits, one of the submissions strenuously urged before us by the learned
Advocate-General of Andhra Pradesh and the several other counsel who followed
him was the oft-repeated and now familiar argument of 'administrative chaos'.
It was said that there would be considerable chaos in the administration if
those who had already retired are now directed to be reinducted into service.
We are afraid we are unable to agree with
this submission. Those that have stirred-up a hornet's nest cannot complain of
being stung. The argument about administrative chaos has been well met by Lord
Denning M.R.
in Bredburry & Ors. v. London Borough of
Enfield [1957] 3 All E.R. 434, where the Master of Rolls in his characteristic
and forceful way observed:
"It has been suggested by the Chief
education officer that, if an injunction is granted, chaos will supervene. All
the arrangements have been made for the next term, the teachers appointed to
the new comprehensive schools, the pupils allotted their places, and 80 forth.
It would be next to impossible, he says, to reverse all these arrangements
without complete chaos and demage to teachers, pupils and public. I must say
this: if a local authority does not fulfil the requirements of the law, this
court will see that it does fulfil them. It will not listen 613 readily to
suggestions Of chaos . The department of education and the council are subject
to the rule of law and must comply with it, just like everyone else. Even if
chaos should result, still the law must be obeyed; but I do not think that
chaos will result. The evidence convinces me that the chaos" is much
over-stated.................. I see no reason why the position should not be
restored, so that the eight schools retain their previous character until the
statutory requirements are fulfilled. I can well see that there may be a
considerable upset for a number of people, but I think it far more important to
unphold the rule of law. Parliament has laid down these requirements so as to
ensure that the electors can make their objections and have them properly
considered. We must see that their rights are upheld." In the present case
too, we think that the case of chaos is much overstated. The affidavits do not
disclose what disastrous consequences, insoluble problems and unsurmountable
difficulties will follow and how chaos will inevitably result. True quite a
large number of employees who have been promoted will have to be reverted, but
their promotions and promotional - appointments are all temporary (and, we take
care to add here it would make no difference even if a few were regularly
promoted) and it is not e as if they lose for ever their promotional
opportunities. The promotional opportunities are merely postponed to the dates
on which they would be entitled to be promoted had not the fundamental rules
and the Hyderabad Civil Services, Rules been amended and Act No. 23 of 1984
passed. What has now happened 18 that these persons have secured a double
advantage. First, by the initial reduction of the age of superannuation, they
obtain- ed early and unanticipated promotion, that is to say, promotion ahead
of the normal date on which they would have otherwise been promoted; and second
their tenure in the promoted post was increased by a further three years as a
result of the subsequent increase of the age of superannuation. Having secured
this double advantage they naturally desire to stick to them and talk glibly of
hardship and inconvenience. On the other hand, it would be a great injustice to
deny justice to those who have suffered injustice must merely because it may
cause inconvenience to the administration. We are governed by the Constitution
and constitutional rights have to be upheld.
Surely the Constitution must take precedence
over convenience and a judge may not turn a bureaucrat. We do not mean to
suggest that 614 creation of a chaotic State of administration is not a
circumstance to be taken into account. It may be possible that in a given set
of circumstances, portentous administrative complexity may itself justify a
classification. But, there must be sufficient evidence of that - how the
circumstances will lead to chaos. Ups and downs of career bureaucrats do not by
themselves justify such a classification. It may however be of some consequence
in the matter of granting relief. For instance there would be really no point
in reinducting an employee if he has but a nth or two to go to attain the age
of 58 years and to retire. Reinduction of such a person is not likely to be of
any use to the administration and may indeed be detrimental to the public
interest. It is bound to be wasteful. In such cases as well as in cases where
they can't be reinducted because they have already completed 58 years by now,
they cannot obviously be reinducted. So other ways of compensating them must be
found. The obvious course is to compensate them monetarily. In Industrial Law
we do award back and future wages on quite a large scale and there is no reason
why we cannot adopt the same principle here. If as a rule private employers in
such situations are asked to pay backwages, we see no impediment in doing 80 in
the case of those that are expected to be model employers i.e. the Government,
public corporations and local authorities.
An argument which requires to be dealt with
is that it is not open to the Court to give retrospectively to a legislation to
which the legislature plainly and expressly refused to give retrospectivity. As
pointed out in NaKara's case. the question is not one of retrospectivity at all.
The circumstances that the relief given by Ordinance No.24 of 84 and Act No.3
of 1985 is not extended to those who had attained the age of 55 years by
February 28, 1983 or between 28.2.83 and 23.8.84, has the effect of limiting
the field of operation of the Ordinance and the Act and introducing a
classification which in order to be sustained must be shown to be reasonable
and to have a nexus to the object to be achieved besides not being arbitrary.
While it is a general rule of law that statutes are not to operate
retrospectively, they may 80 operate by express enactment, by necessary
implication from the language implied or where the statute is explanatory or
declaratory or where the statute is passed for the purpose of protecting the
public against some evil or abuse or where the statute engrafts itself upon
existing situations etc. etc. But it would be incorrect to call a statute
'retrospective', "because a part of the requisites for its 615 action is
drawn from a time antecedent to its passing .
(Vide R.V. St. Mary, Whitechape1
(Inhabitants) [1842] 12 Q.B. 120). 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 justificiable 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-retroactivity 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.
We may now refer to two arguments which were
mentioned in passing but were not pursued. The first was that a writ petition
similar to Writ Petition Nos. 3420-3426/83 etc. had been filed earlier and had
been dismissed in limine by a Bench of this Court. We do not see how the
dismissal in limine of such a writ petition can possibly bar the present writ
petitions. Such a dismissal in limine may inhibit our discretion but not our
jurisdiction. So the objection such as it was, was not pursued further. So also
the second objection which related to the nonjoinder of all affected parties to
the litigation. We are quite satisfied that even if some individual affected
parties have not been impleaded before us, their interests are identical with
those and, have been sufficiently and well represented. Further, the relief
claimed in Writ petition Nos. 3420-3426 of 1983 etc.
is of a general nature and claimed against
the State and no particular relief is claimed against any individual party.
We do not think that the more failure to
impead all affected parties is a bar to the maintainability of the present
petitions in the special circumstances of these cases where the actions are
really between two 'warning groups'.
Finally we come to the question of the relief
to be granted. We find that C1.3(1) of Ordinance No.24 of 84 and Sec.4 (1) of
Act No. 3 of 1985 may easily be brought to conform to the requirements of Art.
14 of the Constitution by striking down or omitting the naughty word 'not' from
those provisions. We may possibly achieve the same object by striking down the
whole of c1.3(1) of the Ordinance and Sec.4(1) of the Act but then the question
may arise whether the rest of the Act would be sufficient to bring in these who
have been excluded. We think that the safer course would be to strike down the
offending word 616 'not' from these provisions. That we have such power is
clearly laid down in Nakara's case where the court directed the deletion of
some words from the offending clause and directed it to be read without those
words. To make matters clear and to put them beyond dispute, we give the
following directions in exercise of our powers under Art. 32 and 142 of the
Constitution:
"1. All employees of the Government,
public corporations and local authorities, who were retired from service on the
ground that they had attained the age of 55 years by 28.2.85 or between 28.2.83
and 23.8.84, shall be reinstated in service provided they would not be
completing the age of 58 years on or before 31.10.1985.
2. All employees who were compelled to retire
on February 28, 1983 and between February 28, 1983 and August 23, 1984 and who
are not eligible for reinstatement under the first clause, shall be entitled to
be paid compensation equal to the total emoluments which they would have
received, had they been in ser vice, until they attained the age of 58 years,
less any amount they might have received ex-gratia or by way of pension etc. Or
under the Interim orders of this Court. They will be entitled to consequential
retiral benefits.
3. Such of the employees as have not been
compelled to retire by virtue of orders of stay obtained from the High Court or
the Administrative Tribunal, or who have actually been reinstated in service
pursuant to interim orders of this Court, shall be allowed to continue in
service until they attain the higher age of superannuation.
4. The reinduction of those employees that
have been compelled to retire previously will put them back as regards their
seniority in precisely the same position which they occupied before they were
retired from service. They will be entitled to all further consequential
benefits.
5. The employees who were retired and who are
reinducted will be entitled to be compensated for the period during which they
were out of service in the same manner as mentioned in clause (2).
617
6. In the matter of reinduction of employees
who do not attain the age of 58 years on or before 31st October, 1985 the
Government may exercise an option not to reinduct them in the case of all or
some or any of the employees, as the case may be, provided the employees are
paid the compensation as in the case of those covered by (2) and (5).
7. All interim orders are vacated and subject
to these directions, the Government is free to revert persons promoted or
appointed to the posts held by persons who were retired on having attained the
age of 55 years by 28.2.1983 or between 28.2.83 and 23.8.84 to the posts which
they held on February 29, 1983 or on the dates previous to their promotion or
appointment provided that they need not be so reverted, if they would otherwise
be entitled to be promoted or appointed even if the other employees had not
been retired consequent on the lowering of the age of superannuation.
8. The Government shall be free to create
supernumerary posts wherever they consider it necessary so to do.
9. All payment of compensation to be made and
completed before December 31, 1985. If for any reason the Government finds
itself unable to pay the entire amount at one time within the time fixed by us,
the Government will be at liberty to pay the amount in not more than four
instalments within the time stipulated by us. The Government will also have the
liberty to supply to us for extension of time, if so advised. Where the
employees are awarded compensation by the Government, such employees may apply
to the concerned Income-tax Officer for relief under Section 89 of the
Income-tax Act read with Rule 21-A of the Income-tax Rules and Income-tax
Officer concerned will grant the appropriate relief." With these
directions, Writ Petitions Nos. 3420-26 of 1985 etc. are allowed with costs and
Writ Petitions Nos.
5447-5546 of 1985 etc. are dismissed but in
the special circumstances without any order as to costs.
618 BALAKRISHNA ERADI, J. While respectfully
agreeing with the judgment prepared by my learned Brother Reddy, J. I have
thought it fit to add a few words of my own since I consider it necessary to
make it absolutely clear that the conclusions reached by us in these cases are
based entirely on the special facts and circumstances constituting the legislative
history of the impugned Andhra Pradesh Ordinance No.24 of 1984 and Act 3 of
1985 which have been set out in extenso in the judgment of Reddy,J.
We are not to be understood as laying down
that whenever the age of superannuation of Government employees or of employees
of local authorities etc. is enhanced, the benefit of such enhancement should
be extended not merely to persons in service on the date on which the change is
effected but also to persons who have already retired from service prior to
that date. It is now well established by decisions of this Court that the
Government has full power to effect a change in the age of superannuation of
its employees on relevant considerations. If in the exercise of such power the
age of superannuation is enhanced purely by way of implementation of a policy
decision taken by the Government, such alteration can legally be brought about
with prospective effect from the date of the commencement of the operation of
the Ordinance, Act or Rule and no question of violation of Article 14 or 16 of
the Constitution will arise merely because the benefit of change is not
extended to employees who have already retired from service. In these cases now
before us our conclusion is rested entirely on the finding arrived at by us after
a consideration of the factual background and legislative history of the
impugned Ordinance and Act that the underlying purpose and object behind the
relevant provisions of the Ordinance and the Act was to set right and nullify a
wrong or injustice that had been done to the employees by the abrupt reduction
of the age of superannuation from 58 years to 55 years by Ordinance No. 8 of
1983 and the Government's Notification issued as per G.O. Ms.No.36, dated 8th
February, 1983 which preceded it. All that we are holding is that in the
context of these telling facts and circumstances which conclusively show that
the object and purpose of the Legislation was to set right the injustice that
had been done, there is no rational or reasonable nexus or basis for separately
classifying the employees who had retired from service prior to the date of
commencement of Ordinance No.23 of 1984, who are the persons most affected by
the wrong - by denying to them the benefit of the rectification of the
injustice. It is solely on this ground that we are allowing these Writ
Petitions and granting the reliefs specified in the judgment of Reddy J.
619 KHALID, J. After considering the rival
contentions put forward by the learned counsel on both sides, the factual
matrix and the law involved, the following points gave me some difficulty in
accepting the petitioners' case. I felt that these points posed hurdles in the
way of the petitioners succeeding in their attempt to secure the relief sought.
I am formulating the points as I understood them.
1. This Court in K. Nagaraja v. State of A.P.
[1985] A.I.R. S.C. 551, upheld the action of the Government in reducing the age
of retirement from 58 to 55. The contention that such reduction was arbitrary
and irrational was not accepted. Further, the contention that the age of
superannuation was increased from 55 to 58 years with effect from October 29,
1979, after an elaborate and scientific enquiry by an one-man pay commission
did not find favour with this Court because it felt that the question of The
age of retirement was not referred to the Commission.
Accordingly the Court held that the decision
regarding the age of retirement was a matter of policy in the formulation of
which the Government must be allowed a free and fair role to play. It is not
always necessary that such a decision is taken on the basis of empirical data
collected on scientific investigation. The further submission that the decision
to reduce the age of retirement from 58 to 55 years was arbitrary in view of
the fact that it was taken by the State Government within one month of the
assumption of office by it also did not find favour with this Court. This Court
observed that the reasonableness of a decision in any jurisdiction, did not
depend upon the time which it took.
This decision has became final and the
petitioners before us cannot in any manner question it. This decision is,
therefore, an authority for the proposition that the charge of arbitrariness
cannot be laid at F the doors of the Government in matters relating to policy
decisions and that the Government have full powers to decide about the age of
retirement considering the various data available before it.
(2) Bishnu Narain Mishra v. State of U.P.
& others, [1965] 1 S.C.R. 693, is a decision rendered by a Constitution
Bench of this Court. In that case, a notification on November 27, 1957, raised
the age of superannuation from 55 to 58 years. On May 25, 1961, the age of
retirement was reduced once-again to 55 years. It was provided in the second
notification that those who were retained in service beyond the age of
superannuation on the basis of the earlier notification would be compulsorily
retired on December 31, 1961. The second notification was questioned as 620
being arbitrary and hit by Article 14 since it resulted in inequality between
the public servants in the matter of retirement. In this Judgment the
classification of Government employees who were in service into two groups
based on their age was upheld by the Constitution Bench as a reasonable classification.
I felt that this case had a great bearing on the petitions before us and the
principle laid down there could be extended to the cases before us. It was
strongly contended that if classification of two groups of in-service employees
on the basis of age and a cut off date could be justified as reasonable
classification, it can be more so in cases like the one before us where the
classification is between the retired employees and those in service.
(3) By the operation of a valid law, some
employees have retired by superannuation and have thus ceased to be members of
their respective service. What is now attempted is to retrospectively re-induct
them into service, a procedure that Courts should frown upon and not encourage.
(4) For the purpose of the cases before us,
Bishun Narain Mishra's case is more appropriate and useful than that of D.S.
Nakara v. Union, [1983] 2 S.C.R. 165, which dealt with two classes of retired
employees and a cut off date. The attempt to distinguish Bishun Narain's case
on the factual difference avail able in these cases is a matter for further
probe, in order to see how for the distinction is destructive of the principle
laid down there in its application to these cases.
(5) The original attempt by the petitioners
was to get Section 3 of the amending Act struck down in its entirety.
Now they realise that such a relief would not
serve their purpose. What they now want is that this Court should remove the
word 'not' from the Section, so that the petitioners will be rescued from the
mischief of that word. Removing a word or adding words to a legislative
enactment is an exercise, Courts have been repeatedly warned against from
embanking upon. I personally feel that this guideline is one that has to be
respected by Courts of law.
(6) A petition, similar to one before us, was
filed in this Court as W.P. No. 16080/1984 raising identical points.
This writ petition came up for hearing on
12.2.1985 before a Bench consisting of the Chief Justice, Justice D.A. Desai
and Justice A.N. Sen. After hearing the counsel for the petitioner as well as
the 621 State of Andhra Pradesh, the Bench suggested that the counsel for the
State should take instructions from the State of Andhra Pradesh about
reinstating in service of those persons who had not attained 58 years of age,
but without back-wages. The case was adjourned to 19.2.1985 for that purpose. I
understand that counter-affidavits were also filled in that case. The case
appeared before a Bench consisting of Justice R.S. Pathak and Justice A. Varadarajan
on the next occasion. On that occasion, the petition was dismissed, after
hearing. Normally this Court will be disinclined to entertain or to hear
petitions raising identical points again where on an earlier occasion, the
matter was heard and dismissed. Not that this Court has no jurisdiction to
entertain such matters, but would normally exercise its discretion against it.
One of the counsel appearing for the respondents strongly pleaded the bar of
Res Judicata against these petitions on the basis of the earlier decision.
(7) The learned Advocate General of the
Andhra Pradesh with great concern and justifiably appealed to US that if the
petitions were allowed, lt would cause serious dislocation in the
administration. He strongly pleaded that the action taken did not have any
tinge of mala fides that there was no attempt at picking and choosing of any
Government servant and that therefore the Court should not exercise its
jurisdiction to annul a policy decision.
2. I have given my anxious considerations to
the above questions and the rival submissions in reply. I find that the case is
more or less evenly balanced between the parties. The important factors have,
however, persuaded me, to agree with the main Judgment and to err on the side
of Justice more than that of law, invoking the benevolent jurisdiction under
Article 142(1) of the Constitution of India which reads:
"142(1) The Supreme Court in the
exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before it,
and any decree 80 passed or order 80 made shall be enforceable through out the
territory of India in such manner as may be prescribed by or under any law made
by Parliament and, until provision In that behalf is so made, in such manner as
the President may by order prescribe.
These petitions involve a serious human
problem.
Employees of the State with limited
resources, who have been planning their future with a secure feeling that they
could work till the 622 age of 58 years, have as though overnight, been robbed
of their tenure, their aspirations and future. They have become the helpless
victims of certain swift moves on the political chess board. These swift moves,
perhaps taken in a hurry, without serious application of mind have resulted in
arbitrariness that has been forcefully projected by the petitioners. This plea
cannot be light heartedly thrown overboard. Justice demands that the
petitioners should be saved of their predicament.
The second factor that has prevailed upon me
to give succour to the petitioners is the blame that this Court has to share
for the sorry state that has come to pass in the matter. Without meaning
disrespect to anyone, I firmly believe, that prompt action by the Court, would
have eased the situation, considerably and relieved the petitioners of their
sad plight and us of this avoidable exercise. It is not as though that the
subsequent developments were not brought to the notice of this Court in
Nagara's case, (supra). We were told that the Bench was alerted in time about
the developments that had taken place but unfortunately they were not taken
into account. When the Judgment ultimately came on 18.1.1985, as many as 6000
employees had lost their service, a tragic result, not based on any relevant
consideration having a nexus to the age of superannuation. The damage had been
done and it can be repaired only by extending this Court's powers to a section
of employees who deserves sympathy and fair deal.
This short Judgment is only to vindicate my
stand. I respectfully agree with the Judgment prepared by my learned brother
Reddy, J. I am also in entire agreement with my learned brother Eradi, J. about
the limited scope of the principles laid down in these cases on their peculiar
facts.
N.V.K. Petitions dismissed.
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