K. Nagaraj & Ors, Vs. State of
Andhra Pradesh & ANR [1985] INSC 8 (18 January 1985)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) PATHAK, R.S.
MUKHARJI, SABYASACHI (J)
CITATION: 1985 AIR 551 1985 SCR (2) 579 1985
SCC (1) 523 1985 SCALE (1)31
CITATOR INFO:
R 1985 SC 724 (15) D 1986 SC 210
(16,17,26,29) F 1987 SC 415 (16) RF 1987 SC1676 (16) R 1990 SC 334 (98,99) RF
1992 SC1277 (47,48,97)
ACT:
Civil Service-Age of superannuation-Age
reduced to 55 years for all Government employees, other than those in last
grade service, in accordance with the election manifesto. to provide greater
employment opportunities to the youths- Whether the order and Notifications are
unreasonable, arbitrary and violative articles 14,16, 21 and 300-A of the
Canstitution-G.O.M.S- 35 (GAD, dated 8.2 83 and Notification read with the
Andhra Pradesh Public Employment (Regulation of Conditions of Service)
Ordinance, 1983 omitting Proviso to Rule 2, 56 of the AP Fundamental Rules and
Rule 231 of the Hyderabad Civil Service Rule-"Retirement benefits"
measuring of-Limits of judicial Review of Policy decisions of the State-Mala
fides, burden of proof-Transferred Malice in unknown in the field of
legislation.
HEADNOTE:
A new political party called Telugu Desam
swept to power in the 1983 Andhra Pradesh Assembly elections, within a month of
assuming office, the new Government of Andhra Pradesh, passed an order No.
G.O.M.S. 36 GAD Services dated 8.2.83 (appending two Notifications) stating
that in order to provide greater employment opportunities to the youths it had
decided to reduce the age of superannuation of all Government employees, other
than those in the last grade service, from 58 to 55 years with elect from
February 28, 1983. Over 18,000 employees and 10,000 public sector employees
were superannuated, as a result of the order.
The aggreived employees, therefore filed writ
petitions and challenged the constitutional validity of the said order and
Notifications under Articles 14, 16, 21 and 300A of the Constitution. According
to the petitioners: (i) there was no basis at all for reducing the age of
retirement from 58 to 55, as nothing had happened since October 29,1979 on
which date the age limit was raised from 55 to 58 years; (ii) providing
employment opportunities to the youths has no relevance on the question of
fixing the age of retirement;
(iii) the government had exercised its power
arbitrarily without having regard to factors which are relevant on the fixation
of the age of retirement; (iv) the government had acted unreasonably in not
giving any previous notice to the employees which would have enabled them to
arrange their affairs on the eve of retirement; (v) the government was estopped
from reducing the age of retirement to 55 since the employees had acted on the
representations made to them in 1979 by increasing the age of retirement from
55 to 58; (vi) as a result of the increase in the age of retirement from 55 to
58 years in 1979, a vested right had accrued to the 580 employees. which could
be taken away if at all, only from future entrants to the government service;
(vii) retirement of experienced and mature persons from government service will
result in grave detriment to public services of the State (viii) the decision
of the government is bad for a total non-application of the mind to the
relevant facts and circumstances bearing on the question of age of retirement
like increased longevity; and (ix) the government had not even considered the
enormous delay which would be caused in the payment of pensionary benefits to employees
who were retired from service without any pre thought.
The respondent State filed two affidavits
traverssing each and every ground of challenge and asserted that the age of
retirement was reduced because "it is the duty of the State, within the-
limits of its economic capacity and development to make effective provisions to
solve the unemployment problem which has gone upto 17,84,699 by December 31, 1
982. The contentions of the State were:
(i) the question of the age of superannuation
was not referred to the One-man Pay Commission and therefore, its
recommendations to increase the age from 55 to 58 was only casual not based on
relevant criteria and has no relevance to the present decision of the State to
reduce the age of retirement; (ii) as a result of the unwarranted increase in
the age of superannuation from 55 to 58 not only was there a one-third increase
in the number of unemployed youths but also the chances of promotion of the
service personnel had deteriorated resulting in wide spread frustration and
unemployment: (iii) the age of retirement was reduced because it is the duty of
the State, within its limits of economic capacity and development, to make
effective provision to solve the unemployment problem; (iv) the fact that the
average expectation of life is about 70 years is not a ground for increasing
the age of retirement of Government employees; (v) the general trend was for
reducing the age of retirement; (vi) the Government of Kerala and Karnataka had
reduced the age of retirement of their employees to 55 and in some other States
in India also the age of retirement is 55, (vii) the present decision was taken
by the Government in order to fulfill its commitment that it will make welfare
measures in order to improve the lot of the common man, and particularly, in
order to afford opportunity to qualified and talented unemployed youths whose
number was increasing enormously due to expansion of educational facilities;
(viii) the present measure was intended to have a salutory effect on the creation
of incentives to the deserving employees; and (ix) the question as regards the
age of retirement is a pure question of governmental policy affording no cause
of action to the petitioners to file the writ petitions.
Rule Nisi was issued on the writ petitions by
the court on February 25,1983. The Legislative Assembly of Andhra Pradesh was
prorogued on April 9, 1983. On the very next day, i.e. April 10, 1983 the
Governor promulgated Ordinance No. 5 of 1983 called the Andhra Pradesh Public
Employment (Regulation of conditions of Service) Ordinance, 1983 by which
proviso to Rule 2 and Rule 56 of the Andhra Pradesh Fundamental Rules and Rule
231 of the Hyderabad Civil Service Rules-the rule governing the age of
retirement- were omitted.
Dismissing the petitions, the Court ^
HELD: 1.1 Public interest demands that there
ought to be an age of retirement in public services. The poin of the peak level
of efficiency is bound to differ 581 from individual to individual for that
reason. A common scheme of general application governing superannuation has,
therefore, to be evolved in the light of experience regarding performance
levels of employees, the need to provide employment opportunities to the
younger sections of society and the need to open up promotional opportunities
to employees at the lower levels early in their career.
Inevitably, the public administrator has to
counterbalance conflicting claims while determining the age of superannuation.
On the one hand, public services cannot be deprived of the benefit of the
mature experience of senior employees; on the other hand, a sense of
frustration and stagnation cannot be allowed to generate in the minds of the
junior members of the services and the younger sections of the society. The
balancing of these conflicting claims of the different segments of society
involves minute questions of policy and considerations of varying vigour and
applicability which must, as far as possible, be left to the judgment of the
executive and the legislature. [ 90F-H; 591A-B] E.P. Royappa v. State of Tamil
Nadu, [1974] 2 SCR 348 referred to.
1.2 While resolving the validity of policy
issues like the age of retirement, it is not proper for the Court to put the
conflicting claims in a sensitive judicial scale and decide the issue by
finding out which way the balance tilts.
That s an exercise which the administrator
and the legislature have to undertake. This is so because often, the Court has
no satisfactory and effective means to decide which alternative, out of the
many competing ones, is the best in the circumstances of a given case. [591E;
C]
1.3 It is not that every question of policy
is out side the scope of judicial review or that necessarily, there are no
manageable standards for reviewing any and every question of policy. If the age
of retirement is fixed at an unreasonably low level so as to make it arbitrary
and irrational, the Court's interference would be called for though not for
fixing the age of retirement but for mandating a closer consideration, of the
matter. [591C-D]
2. Fixing the age of superannuation by
reducing it from 58 to 55 would be unreasonable or arbitrary if it does not
accord with the principles which are relevant for fixing the age of retirement
or if it does not subserve any public interest. On the other hand, the
Ordinance shall have to be held valid, if the fundamental premise upon which it
proceeds has been accepted as fair and reasonable in comparable situations, if
its provisions bear nexus with public interest and if it does not offend against
the Constitutional limitations either on legislative competence or on the
legislative power to pass laws which bear on fundamental rights. [591G-H: 592A]
3.1 The report of the One-man Pay Commission
has to be kept out of consideration in so far as the question of the age of
retirement is concerned. The contention that the reversal of the well
considered decision of the Commission to raise the age to 58 within a short
span of less than three years and a half, as nothing had happened in between
warranting a departure from it, is fallacious because the question, as to
whether the age of retirement should be raised which was then 55, was not
referred to the Commission at all in the terms of reference. Further the
decision which the Government took later to increase the age of retirement from
55 to 58 years was not based on the recommendation of the Commission. [595D; C]
582
3.2 The Power of a Commission to inquire into
a question must depend upon the terms of the reference and not upon the
statements made on the floor of the House. [595A]
3.3 A review of retirement benefits would
undoubtedly cover the examination of the rules or schemes relating to pension,
provident fund, gratuity, encasement of leave etc., but it cannot include the
power to examine the question as regards the fixation of the age of retirement.
Therefore, paragraph 9 47 of the report of One-man Pay Commission which begins
by saying that "since the terms of reference of the Commission cover the
review of the existing retirement benefits, the reference would naturally
include the age of retirement" was an erroneous and unwarranted reading of
the terms of the reference. [594F; E]
4.1 No law can be said to be bad because it
is passed immediately on the assumption of office by a new Government.
Were this so, every decision taken by a new
Government soon after assumption of office shall have to be regarded as
arbitrary. I 595E]
4.2 The reasonableness of a decision in any
jurisdiction, does not depend upon the time which it takes.
A delayed decision of the Executive can also
be bad as offending against the provisions of the Constitution and it can be no
defence to the charge of unconstitutionality that the decision was taken after
the lapse of a long time.
Conversely, decisions which arc taken promptly
cannot be assumed to be bad because they arc taken promptly. [595F-G]
4.3 Every decision has to be examined on its
own merits, in order to determine whether it is arbitrary or unreasonable.
Here, the State Government had the relevant facts as also the reports of the
various Central and State Pay Commissions before it, 011 the basis of which it
had taken a reasonable decision to reduce the age of retirement from 58 to 55.
The aid and assistance of a well trained bureaucracy which notoriously, plays an
important part not only in the implementation of policies but in their making
was also available to the Government. Therefore, the speed with which the
decision was taken cannot, without more, invalidate it on the ground of
arbitrariness. [59-G; 596.A- B]
5.1 By and large, in the formulation of
matters of legislative policy, the government of the day must be allowed a
free, though fair play and there need not necessarily be a uniform age of
retirement all over India.
Though immutable considerations which are
generally or universally true like increased life expectation are as much valid
for Jammu and Kashmir as for Tamil Nadu, that cannot justify the conclusion
that fixation of the retirement age at 55 in Jammu and Kashmir is invalid since
the State of Tamil Nadu has fixed it at 58 or that the age limit should be
fixed at 62 or 65. There is no one fixed or focal point of reasonableness.
There can be a large and wide area within which the administrator or the
legislator can act, without violating the constitutional mandate of
reasonableness. That is the area which permits free play in the joints.
[596C-D; F]
5.2 The area between the ages of 55 and 58 is
regarded in our country as a permissible field of operation for fixing the are
of retirement. Neither the American nor the English notions or norms for fixing
the retirement age can render invalid the basis which is widely accepted in our
country as reasonable for that purpose. [597D-E]
5.3 On the basis of the data furnished in the
White Paper presented to the State Legislative Assembly in March 1983 on the
question of "reduction in 583 the age of superannuation from 58 years to
55 years" by the new Telugu Desam Party controlled State Government, the
reduction of the age of retirement from 58 to 55, in the instant case is not
hit by Article 14 or 16 of the Constitution and the State Government or the
Legislature has not acted arbitrarily or irrationally. The precedents within
our country itself for fixing the retirement age at 55 or for reducing it from
58 to 55 and their acceptance depending upon the employment policy of the
Government of the day make it impossible to lay down an inflexible rule that 58
years is a reasonable age for retirement and 55 is not. If the policy adopted
for the time being by the Government or the Legislature is shown to violate
recognized norms of employment planning, it would be possible to say that the
policy is irrational since, in that event, it would not bear reasonable nexus
with the object which it seeks to achieve.
The reports of the various Commissions show
that the creation of new avenues of employment for the youth is an integral
part of any policy governing the fixation of retirement age. Here, the impugned
policy is actuated and influenced predominantly by that consideration. [604C-F]
However, the question of age of retirement should always be examined by the
Government with more than ordinary care, more than the State Government has
bestowed upon it in this case. The fixation. Of age of retirement has minute
and multifarious dimensions which shape the lives of citizens.
Therefore, it is vital from the point of view
of their well- being that the question should be considered with the greatest
objectivity and decided upon the basis of empirical data furnished by
scientific investigation. What is vital f` or the welfare of the citizens is,
of necessity, vital for the survival or the State. Care must also be taken to
ensure that the statistics are not perverted to serve a malevolent purpose.
[604F-H ]
6. It is well settled that Article 311(2) of
the Constitution is attracted only when a civil servant is reduced in rank,
dismissed or removed from service by way of penalty, that is to say, when the
effect of the order passed against him in his behalf is to visit him with evil
consequences. The termination of service of an employer on account of his
reaching the age of superannuation does not amount to his removal from service
within the meaning of Article 311(2). Here there being no arbitrariness in the
fixation of reduced retirement age, there is no violation of Article 311(2) of
the Constitution, either. [605C; F] Satish Chandra V Union of India[1953] SCR
655; Shyam Lal v. State of U.P., [1955] 1 SCR 26; State of Bombay v. ,Saubhagchand
M. Doshi, [1958] SCR 571 ; Purshotam Lal Dhingra v. Union of India, [1958] SCR
828; P. Balakotiah V. Union of India, [1958] SCR 1052; Bishun Narain Misra v. State
Union of Uttar Pradesh, [1965] 1 SCR 693, relied on.
Moti Ram Deka v. General Manager. North
Frontier Railway, [1964] 5 SCR 683 explained.
7. Though an ordinance can be invalidated for
contravention of the constitutional limitations which exist upon the power of
the State legislature to pass laws it cannot be declared invalid for the reason
of non-application of mind, any more than any other law call be. An executive
act is liable to be struck 584 down on the ground of non-application of mind.
Not the act of a Legislature. The power to issue an ordinance is no an
executive power but is the power of the executive to legislate. The power of
the Governor to promulgate an ordinance is contained in Article 213 which
occurs in Chapter IV of Part VI of the Constitution. The heading of that
Chapter is "Legislative Power of the Governor". This power is plenary
within. its field like the power of the State Legislature to pass laws and
there are no limitations upon that power except those to which the legislative
power of the State Legislature is subject. [607C; A-B] A.K. ROY v. Union of
India. [1982] 2 SCR 272 at pp.
282, 291; R K Garg v. Union of India, [1982]
1 SCR 947 at pp. 964, 967; High Court of Andhra Pradesh v. V V. S. Krishnamurthy,
[1979] 1 SCR 26; Motiram Dake v. General Manager, North Frontier Railway,
[1964] 5 SCR 683 distinguished.
8. If a rule of retirement can be deemed to
deprive a person of his right to livelihood, it will be impermissible to
provide for an age of retirement at all. That will be contrary to public
interest because the Slate cannot afford the luxury of allowing Its employees o
continue in service after they have passed the point of peak performance. Rules
of retirement do not take away the right of a person to his livelihood: they
limit his right to hold office to a stated number of years. [608D-E]
9.1 The burden to establish mala fides is a
heavy burden to discharge. Vague and casual allegations suggesting that a
certain act was done with an ulterior motive cannot be accepted without proper
pleadings and adequate proof, both of which are conspicuously absent in these
writ petitions. Besides the ordinance making power being a legislative power,
the argument of mala fides is misconceived. The legislature, as a body, cannot
be accused of having passed a law for an extraneous purpose. If no reasons are
so stated as appear from the provisions enacted by it. Its reasons for passing
a law or those that are stated in the Objects and Reasons. Even assuming that
the executive, in a given case, has an ulterior motive in moving a legislation,
that motive cannot render the passing of the law mala fide. This kind of
'transferred malice' is unknown in the field of legislation. [608G-H; 609A-B]
9.2 The amendment made to the Fundamental
Rules in the exercise of power conferred by Articles 309 by which the proviso
to Rule 2 was deleted retrospectively, with effect from February 23, 1983 by
G.O.M.S. dated P 17-2-83 was a valid exercise of legislative power. The rules
and amendments made under the proviso to Article 309 can be altered or repealed
by the Legislature but until that is done the exercise of the power cannot be
challenged as lacking in authority. [610B-C]
9.3 It is well-settled that the service rules
can be as much amended, as they can be mader, under the proviso to Article 309
and that, the power to amend these rules carries with it the power to amend
them retrospectively. The power conferred by the proviso to Article 309 is of a
legislative character and is to be distinguished from an ordinary rule making
power. The power to legislate is of a plenary nature within the field
demarcated by the Constitution and it includes the power to legislate
retrospectively. [609H; 610A-B] B.s. Vadera v. Union of India, [1968] 3 S.C.R.
575 582-55, Raj Kumar v. Union of India [ 1975] 3 S.C.R. 963, 965, followed 585
ORIGINAL JURISDICTION: Writ Petition Nos.
1073-1100, 1117-19 1229-95, 142 -1554, 1746-2140, 2155-2271, 2396-2459.
1198-1217, 1302-12, 1314-15, 1566-1641,
1140-70, 2360-95, 1643-1725,2272-2329,2152,2332,2339,2491,3486-89, 2498-2521,
2522, .533-74,2611-2638 and 2531 of 1983.
(Under Article 32 of the Constitution of
India) AND Writ Petition Nos. 4218,4571 and 5266-5280 of 1983 Under article 32
of the Constitution of India) AND Transfer Case Nos. 44-339 of 1983 K.K.
Venugopal S.S Ray, P.P. Rao, V.M. Tarkuade and R K. Garg, V. Jogayya Sharma,
M.P. Rao, Sudarsh Menon, T. V.S N. Churi, G. Narasimhulu, A. Subba Rao, M.K.D.
Namboodiry, H.S. Guru Raj Rao, S. Markandeya, A.T.M. Sampath, D.K. Garg, Nikhil
Chandra and A K Panda for the Petitioners.
L.N. Sinha, Attorney General, Anil B.
Divan,B. Parthasarthi and K.R. Chaudhary for the Respondents.
G.N. Rao for the State.
Miss A. Subhashini for the Union.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J. In the elections held to the Legislative Assembly of Andhra
Pradesh in January 1983, a new political party called Telugu Desam was swept to
power.
It assumed office on January 9, 1983. On
February 8, 1983 an Order (G.O. Ms. No. 36) was issued by the Government of
Andhra Pradesh stating that it had decided to reduce the age of superannuation
of all Government employees, other than in the last Grade Service, from 58 to
58 years. Two notifications issued in exercise of the power conferred 586 by
the Proviso to Article 309 read with Article 313 of the Constitution was
appended to that order. The relevant Fundamental Rules were amended by the
first notification, while the corresponding rules of the Hyderabad Civil
Services Rules were amended by the second notification. By these notifications,
every Government servant, whether ministerial or non-ministerial but not
belonging to the last Grade Service, who had already attained the age of 55
years was to retire from service with effect from February 28, 1983. Speaking
to the Government employees in the Secretariat premises the next day, the Chief
Minister justified the reduction of the retirement age from 58 to 55 years on
the ground that it had become necessary to provide greater employment
opportunities to the youths. Over 18,000 Government employees and 10,000 public
sector employees were superannuated as a result of the order.
These writ petitions were filed by the Andhra
Pradesh Government employees to challenge the aforesaid order and the
notifications on the ground that they violate Articles 14, 16, 21 and 300A of
the Constitution. The case of the petitioners as laid in the writ petitions is
that there was no basis at all for reducing the age of retirement from 58 to
55; that the age of retirement was increased from 55 to 58 by the Government of
Andhra Pradesh by a notification dated - October 29, 1979 and nothing had
happened since then to justify reduction of the age of retirement again to 5 i;
that providing employment opportunities to
the youths h Is no relevance on the question of fixing the age of retirement;
that the Government had exercised its power arbitrarily without having regard
to factors which are relevant on the fixation of the age of retirement; that
the Government had acted unreasonably in not giving any previous notice to the
employees which would have enabled them to arrange their affairs on the eve of
retirement; that the Government was estopped from reducing the age of
retirement to 55, since the employees had acted on the representation made to
them in 1979 by increasing the age of retirement from 55 to 58; that as a
result of the increase in the age of retirement from 55 to 58 years in 1976, a
vested right had accrued to the employees, which could be taken away, if at
all, only from future entrants to the Government service;
that retirement of experienced and mature
persons from Government service will result in grave detriment to public
services of the State; and that, the decision of the Government is bad for a
total non-application of mind to the relevant facts and circumstances bearing
on the question of the age of retirement, like increased longevity. The petitioners
aver that the Government had not even considered the enormous delay which 587
would be caused in the payment of pensionary benefits to employees A who were
retired from service without any pre- thought.
A counter-affidavit was filed on behalf of the
State of Andhra Pradesh by Shri R. Parthasarathy, Joint Secretary in the
Finance Department of the State, at the stage of admission of the writ
petitions. It is stated in that affidavit that the recommendation of the one
Man Pay Commission appointed by the Government of Andhra Pradesh.
after which the age of retirement was
increased to 58 in 1979, has no relevance to the present decision of the State
to reduce the age of retirement; that the fact that the average expectation of
life is about 70 years is not a ground for increasing the age of retirement of
Government employees; that the general trend was for reducing the age of
retirement; that the Government of Kerala and Karnataka had reduce the age of
retirement of their employees to 55, though it was earlier increased from 55 to
58; that in some States in India the age of retirement is 55 and not 58; the
present decision was taken by the Government in order to fulfill its commitment
that it will take welfare measures in order to improve the lot of the common
man, and.
particularly, in order to afford
opportunities to qualified and talented unemployed youths whose number was
increasing enormously due to expansion of educational facilities; that the
Government employees was stagnated in the lower positions due to the increase
in the age of retirement from 55 to 58: and that, the present measure was
intended to have a salutary effect on the creation of incentives to the
deserving employees The affidavit says further that the question as regards the
age of retirement is a pure question of Governmental policy affording no cause
of action to the petitioners to file the writ petitions. The affidavit asserts
that the Government had reviewed the situation arising out of the enhancement
of the age of retirement from 55 to 58 in 1979 and that it was revealed that on
account of the enhancement of the age of retirement, the chances of promotion
of the service personnel had deteriorated resulting in widespread frustration
and unemployment. The inconvenience alleged by the petitioners in the matter of
payment of their pension and other retirement benefits was imaginary, since the
Government was making extensive arrangements to disburse such benefits
expeditiously. By the counter-affidavit, the Government of Andhra Pradesh
denied that any of the provisions of the Constitution were violated by the
impugned decision to reduce the age of retirement.
Another affidavit was filed on behalf of the
Government of Andhra Pradesh, after the rule nisi was issued in the writ
petitions.
588 The affidavit is sworn by Shri A.K.
Sharma, Deputy Secretary to Government of Andhra Pradesh. Finance and Planning.
It is stated in that affidavit that the question of the age of superannuation
was not referred to the one Man Pay Commission of Shri A. Krishnaswamy, which
was appointed by the Andhra Pradesh Government on November 3, 1 977; that the
recommendation made by the Pay Commission was casual and was not based on
relevant criteria; that as many as 12,04,008 educated youths were left without
employment on September 30, 1979 as a result of the unwarranted increase in the
age of superannuation from 55 to 58; that the number of unemployed youths had
grown to 17,84,699 by December 31, 1982; and that, the age of retirement was
reduced because it is the duty of the State, within the limits of its economic
capacity and development to make effective provision to solve the unemployment
problem. The rest of the averments i`1 this affidavit are on the same lines as
in the affidavit of Shri R. Partbasarathy.
Rule Nisi was issued on the writ petitions by
this Court on February 25, 1983. The Legislative Assembly of Andhra Pradesh was
prorogued on April 9, 1983. On the very next day, that is, on April l0th
Governor of Andhra Pradesh promulgated Ordinance No. 5 of 1983 called 'the
Andhra Pradesh Public Employment (Regulation of Conditions of Service)
Ordinance.' The Ordinance was passed "to regulate the recruitment and
conditions of service of persons appointed to Public Services 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". We are not concerned in
these writ petitions with clauses 3 to 9 of the Ordinance which mostly regulate
conditions of service. Clause 10(1) of the Ordinance prescribes 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 are of 55 years. Clause 10(2) provides that 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 60 years. Clause 10(3) provides that every
workman belonging to the Last Grade Service or employed on a monthly rate of
pay in any service notified as Inferior, shall retire from service on the
afternoon of the last day of the month in which he attains the age of 60 years.
Workmen belonging to Ministerial Service or any service other than the Last
Grade Service notified as Inferior have to retire on the afternoon of the last
day of the month in which they attain the age of 55 589 years. By clause 15,
All Rules and Regulations made under the proviso to Article 309 or continued
under Article 3 l 3 of the Constitution or made under any other law for the
time being in force, governing the recruitment and conditions of service of the
Government employees, continue to be in force in so far as they are not
inconsistent with the provisions of the Ordinance. Clause 16 of the Ordinance
provides that no amendment to the Fundamental Rules shall be deemed to be
invalid merely by reason of the fact that the proviso to rule 2 of the
Fundamental Rules laid down that the said rules shall not be modified or
replaced to the disadvantage of any person already in service. It provides
further that all amendments made to the Fundamental Rules and particularly the
amendments made by the notification dated February 8, 1983, shall be and shall
be deemed always to have been made validly and shall have effect
notwithstanding anything to the contrary contained in the proviso to rule 2 of
the Fundamental Rules as if the Ordinance was in force on February 8, 1983.
Clause 16 of the Ordinance declares that every amendment made before or after
the commencement of the Ordinance to the Fundamental Rules and the Hyderabad
Civil Services Rules, shall be and shall be always deemed to have applied to
all Government employees whether appointed before or after the amendment.
Clause 18 of the Ordinance provides by sub-clause (i) that the proviso to rule
2 of the Fundamental Rules shall be and shall be deemed always to have been
omitted. Rule 56 of the Fundamental Rules is omitted by Clause l 8(ii) while
Rule 231 of the Hyderabad Civil Services Rules is omitted by clause 19 of the
Ordinance. The age of retirement was previously governed by these two Rules.
The arguments advanced before us fall under
distinct heads, learned counsel having shared their burden equitably.
Shri Venugopal challenged the Ordinance on
the ground that it is unreasonable. Shri Tarkunde challenged it on the ground
that the superannuation of the employees by reduction of the age of retirement
amounts, in the circumstances, to 'removal' of the employees within the meaning
of Article 311. The challenge of Shri Siddhartha Shankar Ray is based on the
ground of a total non application of mind. Shri R.K. Garg, who appears in a
group of three Transferred Cases, contends that the Ordinance is bad because it
supersedes all industrial adjudications and overrules even settlements arrived
at between the management and the employees. Shri P.P. Rao contends that the
Ordinance is bad because. whereas in the case of compulsory retirement a notice
of three months is 590 required to be given by the Government under the
relevant rules, in the case of superannuation of employees who had already
attained the age of 55 on February 8, 1983; when the first Order was issued,
the impugned law gives to the employees a notice of 20 days only since all such
employees had to retire on February 28, 1983. Shri P P. Rao also challenges the
retrospective deletion of the proviso to Rule 2 of the Fundamental Rules as
being arbitrary. Shri Gururaj Rao challenges the Ordinance on the ground that
it runs into the teeth of the recommendation which the Andhra Pradesh One Man
Pay Revision Commission had made in 1979 in pursuance of which the age of
retirement was raised from 55 to 58. Shri A.T.M. Sampath laid stress on the
lack of acceptable reasons to justify the issuance of the Ordinance Like some
of the other learned counsel, he suspects the bona fides of the state
Government in issuing the Order and the Ordinance. It was suggested by the
petitioners, though somewhat in passing, that the object of the State
Government in reducing the age of retirement was to get rid of n senior members
of Government service whose loyalty was thought to be not above suspicion.
This is the broad outline of the petitioners'
case. We will presently set out the specific contentions advanced before us
but, before doing so. it would be necessary to indicate the approach which in
our opinion, should be adopted while examining a question of the present
nature, namely, the fixation of the age of retirement. Barring a few services
in a few parts of the world as, for example, the American Supreme Court, the
terms and conditions of every public service provide for an age of retirement.
Indeed, the proposition that there ought to be an age of retirement in public
services is widely accepted as reasonable and rational. The fact that the
stipulation as to the age of retirement is a common feature of all of our
public services establishes its necessity, no less than its reasonableness
Public interest demands that there ought to be an age of retirement in public
services The point of the peak level of efficiency is bound to differ from
individual to individual but the age of retirement cannot obviously differ from
individual to individual for that reason. A common scheme of general application
governing superannuation has therefore to be evolved in the light of experience
regarding performance levels of employees, the need to provide employment
opportunities to the younger sections of society and the need to open up
promotional opportunities to employees at the lower levels early in their
career.
Inevitably, the public administrator has to
counter balance conflicting claims while determining the age of superannuation.
On the one hand, public services cannot be deprived of the benefit of the
mature experience of senior employees; on the other hand, a sense of
frustration and stagnation cannot be allowed to generate in the minds of the
junior members of the services and the younger sections of the society. The
balancing of these conflicting claims of the different segments of society
involves minute questions of policy which must as far as possible, be left to
the judgment of the executive and the legislature. These claims involve
considerations of varying vigour and applicability. Often, the Court has no
satisfactory and effective means to decide which alternative, out of the many
competing ones, is the best in the circumstances of a given case. We do not
suggest that every question of policy is outside the scope Of judicial review or
that, necessarily, there are no manageable standards for reviewing any and
every question of policy. Were it so, this Court would have declined to
entertain pricing disputes covering as wide a range as cars to mustard-oil. If
the age of retirement is fixed at an unreasonably low level so as to make it
arbitrary and irrational, the Court's interference would be called for, though
not for fixing the age of retirement but for mandating a closer consideration
of the matter. "Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is
therefore violative of Article 14."(l) But, while resolving the validity
of policy issues like the age of retirement, it is not proper to put the conflicting
claims in a sensitive judicial scale and decide the issue by finding out which
way the balance tilts. That is an exercise which the administrator and the
legislature have to undertake. As stated in 'The Supreme Court And The Judicial
Function'(2): "Judicial self-restraint is itself one of the factors to be
added to the balancing process, carrying more or less weight as the
circumstances seem to require".
We must therefore approach the problem before
us with a view to determining whether the age of retirement has been reduced
from 58 to 55 unreasonably or arbitrarily. Such a fixation of age would be
unreasonable or arbitrary if it does not accord with the principles which are
relevant for living the age of retirement or if it does not subserve any public
interest. On the other hand, the Ordinance shall have to be held valid, if the
fundamental premise upon which it proceeds has been accepted as fair and
reasonable in comparable situations, if its provisions bear nexus with public
interest and if it does not offend against the constitutional limitations
either on legis- (l) E.P Rovappa. State of Tamil Nadu, [1974] 2. SCR 348. (2)
Edited by Philips B. Kurland, Oxford and IBH Publisning Co., Page 13.
592 lative competence or on the legislative
power to pass laws which bear on fundamental rights.
Shri Venugopal, who led the argument on
behalf of the petitioners, contends that the provisions of the Ordinance
whereby the age of retirement is reduced from 58 to 55 are arbitrary and
irrational and hence violative of Articles 14 and 16 of the Constitution for
the following reasons:
(a) The age of superannuation was increased
from 55 to 58 years with effect from October 29, 1979 after an elaborate and
scientific inquiry by a One-Man Pay Commission;
(b) The State Government issued the order
reducing the age of retirement within one month of the assumption of office by
it. In the very nature of things, no scientific investigation could have been
made, no material gathered and no statistics compiled as regards the number of
employees who will retire, the number of persons who would get fresh employment
and the hardship caused to the superannuated employees by the delay in the
payment of retirement benefits to them. Neither the social nor the economic
consequences of so grave a decision could have been or were in fact considered
by the Government;
(c) The reason given by the Government that
promotional opportunities had deteriorated as a result of the increase in the
retirement age from 55 to 58 is fanciful and non-existent. That result is
indeed produced by the impugned action of the State Government In 1979, when
the age of retirement was increased from 55 to 58 years, promotional
opportunities were denied to the employees because, those who would have
retired at the age of 55 got a fresh lease of life for another years. Now, when
their turn for promotion has come at about the age of 55, they have been
superannuated;
(d) The theory that reduction in the age of
retirement provides employment opportunities to educated youths is fallacious.
The various Pay Commissions have expressed the view that persons who are
required to retire at 593 an early age are compelled by necessity to seek other
employments. Even otherwise, not more than one per cent of the unemployed
educated youths are likely to get employment as a result of the reduction in
the age of retirement from 58 to 55. That is because, not more than 18,000
vacancies arose on account of the reduction in the age of retirement.
(e) The careful planning by the employees of
their important affairs of life like the construction of a house, the marriage-
of a daughter or the repayment of loans, has been suddenly set at naught by the
reduction in the age of retirement;
(f) Two of the most relevant circumstances
bearing upon the fixation of the age of retirement have been ignored by the
State Government: increase in longevity and the prevailing age of retirement in
public sector undertakings; and (g) No consideration was given to the plain and
direct con sequence of the reduction in the age of retirement, namely, that the
State exchequer would have to find and pay Rs. 70 crores on one single day by
way of retirement benefits, for which no budgetary provision was made It would
appear from these contentions as also from the contions advanced by the other
learned counsel that the main plank of the petitioners' case is that the
decision to reduce the age of retirement from 58 to 55 is unconstitutional
because it is arbitrary, irrational and unconnected with the object which it
seeks to achieve.
In this connection, the first ground of
challenge to the reduction of the age of retirement is that the One-man Pay
Revision Commission appointed by the Government of Andhra Pradesh had
recommended that the age of retirement should be increased from 55 to 58, that
the said recommendation was accepted by the State Government and consequently,
the age of retirement was raised to 58 with effect from October 29, l 979. It
is contended that the reversal of that well-considered decision within a short
span of less than three and a half years is patently unscientific and
arbitrary, 594 especially since no fresh investigation was undertaken to
examine the validity of the recommendation made by the One- man Pay Commission.
The very foundation of this argument is
fallacious By G.O. NO. 745 dated November 3,1977 the Government of Andhra
Pradesh had appointed Shri A. Krishnaswamy, a retired member of the l.A.S. as
One-man Pay Revision Commission to review the structure of the different scales
of pay, dearness allowance and other compensatory allowances of all categories
of employees of State Government, local bodies, aided institutions, work-charge
establishments etc. The terms of reference of the Commission were enlarged by
the Government by an order dated January 28, 1978 SO as to require the
Commission to review the existing retirement benefits available to all
categories of employees referred to above and to examine the question of
extension of retirement benefits to the work-charged establishments. The question
as to whether the age of retirement should be raised.
p73 Ordinance which mostly regulate
conditions of service.
Clause 10(1) of the Ordinance prescribes 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 are of 55 years. Clause 10(2) provides that 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 of
the Commission cover the review of the existing 'retirement benefits', the
reference "would naturally include the age of retirement." This was
an erroneous and unwarranted reading of the terms of reference. A review of
retirement benefits would undoubtedly cover the examination of the rules or
schemes relating to pension, provident fund, gratuity, encasement of leave,
etc, but it cannot include the power to examine the question as regards the
fixation of the age of retirement. The Commission says in the same paragraph,
as a possible justification of its consideration of the question of the age of
retirement, that "it was mentioned on the floor of the House that this
issue is referred to the Commission" Our attention has been drawn in this
behalf to a statement made in the Andhra Pradesh Legislative Council on
September 20, 1976 by the then Finance Minister, Shri G. Rajaram, to the effect
that one of the terms of reference to the Commission was to review the existing
retirement age of Government employees. We regret to say that the Finance
Minister was not properly briefed when he made that statement. In any case, the
power of a Commission to enquire into a question must depend 595 upon the terms
of the Reference and not upon the statements made on the floor of the House.
The fact that the Commission discussed the question of the age of retirement in
passing shows that it was not properly seized of that question. The discussion
of an important matter like the age of retirement is done in four brief
paragraphs which occupy less than two pages of the Commission's report. We do
not blame the Commission for this hurried and inadequate treatment of an
important question. That question was not within its purview. The State Government
is therefore justified in its contention that the question of the age of
retirement was not referred to the Commission and that the decision which the
Government took later to increase the age of retirement from 55 to 58 was not
based on the recommendation of the Commission. The report of the Commission has
therefore to be kept out of consideration in so far as the question of the age
of retirement is concerned and no argument can be founded on the fact that the
view of the Commission was ignored or that nothing had happened since the date
of the report to justify a departure from it.
As regards Shri Venugopal's argument at (b)
above, the fact that the decision to reduce the age of retirement from 58 to 55
was taken by she State Government within one month of the assumption of office
by it cannot justify the conclusion that-lt the decision is arbitrary because
it is unscientific in the sense that it is not backed by due investigation or
by compilation of relevant data on the subject. Were this so, every decision
taken by a new Government soon after assumption of office shall have to be
regarded as arbitrary. The reasonableness of a decision, in any jurisdiction,
does not depend upon the time which it takes. A delayed decision of the
executive can also be had as offending against the provisions of the
Constitution and it can be no defense to the charge of unconstitutionality that
the decision was taken after the lapse of a long time.
Conversely, decisions which are taken
promptly cannot be assumed to be bad because they are taken promptly. Every
decision has to examined on its own merits in order to determine whether it is
arbitrary or unreasonable. Besides, we have to consider the validity of a law
regulating the age of retirement. It is untenable to contend that a law is bad
because it is passed immediately on the assumption of office by a new
Government. It must also be borne in mind that the question as to what should
be the proper age of retirement is not a novel or unprecedented question which
the State Legislative had to consider. There is a wealth of material on that
subject and many a Pay Commission has dealt with it comprehensively. The State
596 Government had the relevant facts as also the reports of the various
Central and State Pay Commissions before it, on the basis of which it had to
take a reasonable decision. The aid and assistance of a well-trained
bureaucracy which, notoriously, plays an important part not only in the
implementation of policies but in their making, was also available to the
Government. Therefore, the speed with which the decision was taken cannot,
without more, invalidate it on the ground of arbitrariness.
The contentions of Shri Venugopal which arc
set out in paragraphs (c) to (g) above and, partly in paragraph (b) itself, are
by and large matters of legislative policy in the formulation of which the
Government of the day must be allowed a free, though fair play. Indeed, the
acceptance of argument advanced by the various counsel for the petitioners must
lead to the conclusion that there, has to be a uniform age of retirement all
over India. If reduction of the retirement age from 58 to 55 is to be regarded
as arbitrary on the ground that it overlooks the advance made in longevity,
fixation of retirement age at 58 is also not likely to sustain the charge of
arbitrariness. The argument could still be made that improvement in the
expectation of life requires that the age of retirement should be fixed at 60
or 62 or even at 65. Then again, though immutable considerations which are
generally or universally true like increased life-expectation are as much Jammu
and Kashmir as for Tamil Nadu, that cannot justify the conclusion that fixation
of the retirement age at 55 in Jammu and Kashmir is invalid since the State of
Tamil Nadu has fixed it at 58.
Both can fall within the constraints of the
Constitution and neither the one nor the other can be considered to be
arbitrary or unreasonable. There is no one fixed or focal point of
reasonableness. There can be a large and wide area within which the
administrator or the legislator can act, without violating the constitutional
mandate of reasonableness. That is the area which permits free play in the
joints. The following table will show the variation in the retirement age which
exists at present in the various States in India:
.TB 3.0" State Retirement Age Haryana 58
years Jammu & Kashmir 55 years Karnataka 1979-58 years 1981-55 years Kerala
1967-55 years 1968-58 years 597 1969- 55 years 1984-58 years Madhya Pradesh 58
years;
Reduced to 55 years 1967;
enhanced to S years in 1970.
Maharashtra 58 years Orissa Previously 55
years;
enhanced to 58 years.
Rajasthan 55 years (Reduced from 58 years to
55 years about 12 years back) Uttar Pradesh 58 years (Reduced to 55 years in
1962; enhanced to 58 years) Tamil Nadu 58 years (For District Judges, lowered
from 58 to 55 years) West Bengal 58 years (since 1961) .tb .9" It is clear
from this table that the area between the ages of 55 and 58 is regarded in our
country as a permissible field of operation for fixing the age of retirement.
Neither the American nor the English notions or norms for fixing retirement age
can render invalid the basis which is widely accepted in our country as
reasonable for that purpose.
On the question of policy regarding the
fixation of retirement age, it will be useful to draw attention to the views
expressed upon that question from time to time by the various Pay Commissions.
Chapter XXXVII of the Report of the Second
Central Pay Commission (1959) deals with the question as to the 'Age of
Superannuation'. The history and background of the fixation of age of
superannuation traced in that Chapter make useful reading. Prior to 1917, the
superannuation rule applicable to both ministerial and non ministerial staff
was that a Government servant who had attained the age of 55 might be required
to retire; but that, in order to avod depriving the State of the valuable
experience of efficient officers and adding unnecessarily to the non-effective
charges, the rule should be applied with discretion and, whenever it was
applied, reasons should be recorded. In its general effect, here, the rule
favoured the retention in Government service of officers who had attained the
age of 55, and required inefficiency to be established as the condition of
compulsory H 598 retirement. This was considered injurious to the efficiency of
the public service, on the ground that most officers lost their keenness and
initiative at the age of 55. The rule was, accordingly, changed so as to make
retirement at 55 the normal practice, and retention in service beyond that age
the exception. A distinction was, however, made between ministerial and
non-ministerial officers, presumbly because, it was thought that the duties of
the former did not suffer from the effects of advancing age as did those of the
others; and it was decided, in effect, that, subject to continued efficiency,
ministerial officers should be retained in service till they attained the age
of 60. This distinction was, however, abolished in 1937-38, partly as a measure
of relieving unemployment-which was acute at that time-but largely in
recognition of the invalidity of the distinction and on the consideration that
the uncertainty which attended the service of senior men beyond 55 had a
disturbing effect on those who were looking forward to succeeding them.
Paragraph 5 of the Commission's Report
mentions that the Varadachariar Commission had recommended earlier that the age
for compulsory retirement should be 58 years for all services- pensionable and
non-pensionable-with an option to the Government to retire an employee on the
ground of loss of efficiency, at the age of 55. That recommendation involved
reduction of the age of superannuation in the case of Class IV servants and in
the case of industrial and workcharged staff outside the Railways, as well as
raising the age for others. But, for some reason or the other, only the latter
question was considered and it was ultimately decided in 1949, that there
should be no change in the position. The main grounds for the decision were
that the majority of persons retiring at the age of 55 were not capable of
rendering efficient service any further; their replacement at the age of 55 by
younger men would serve the interests of efficiency better; and that, the
retirement age should be so fixed as would release men at an age when they
would still be fit to render service to the country in other spheres of their
choice, even though not wholly capable of keeping up with the fast tempo of
Government work, or of meeting its other exacting requirements. It was observed
that Government service ages employees quicker and that, the question was one
of balancing limited use to Government of such men against, perhaps, their
better usefulness to the nation at large.
Paragraph 6 of the Commission's Report shows
that the question was reconsidered in 1963 when, the only additional argument
advanced against an upward change its adverse effect on educated 599
unemployment. It was recognized that its actual effect would A be small but,
importance was attached to its probable impact on public opinion. The earlier
decision to maintain the age of retirement at 55 was re-affirmed but, in view
of the widespread shortage of trained personnel, it was decided that extension
of service beyond that age might be given liberally on the ground of public
interest, more specially in the case of scientific and technical personnel. The
continuing shortage of trained man-power led to a further review of the problem
in 1958; but, apart from laying down the criteria for grant of extension and
re-employment, and re-emphasizing the need to retain technical and scientific
personnel beyond the age of superannuation, the only significant advance on the
earlier decisions was that re- employment or extension might be granted upto
two years at a time. thus notwithstanding the recommendation of the
Varadachariar Commission, the age of superannuation laid down for the
non-ministerial staff more than 40 years earlier and for ministerial staff more
than 20 years earlier, continued to be in force when the Second Central Pay
Commission took up that question for examination.
There was an "extraordinary unanimity of
opinion" amongst Heads of Departments, distinguished retired public
servants, public men and economists who gave evidence before the Commission
that the age of superannuation should be raised, the only difference being as
to whether it should be raised to 58 or 60 years. The great majority of the
employees' organizations were also in favour of increasing the age of
retirement, the only exception being the All India Railwaymen's Federation.
That Federation did not consider the age of 55 as the age of the onset of
senile inefficiency, but it was of the opinion that the age of superannuation
should not be raised in view of the then prevailing large-scale unemployment.
Some of the reasons on which there was unanimity for increasing the age of
retirement were; the continuing mental and physical efficiency of most of the
Government servants at the age of 55; the increased expectation of life
resulting from improved public health conditions; and, the national waste
involved in sending men and women into enforced idleness while they were still
capable of rendering efficient service. The Commission found that there was an
overall improvement in public health as shown by the decline in death rate and
the increase in expectancy of life at birth.
What was even of greater relevance, the
Commission found that there was improvement in the expectancy of life in the
fifties, that is to say, amongst people in the age group of 50 to 60. The data
supplied to the Commission by the Comptroller and Audi- 600 tor-General showed
that, at least in the case of Gazetted and Class 111 employees, there was a
significant increase in the percentage of persons who lived for two years or
more after superannuation. On this data, the Commission concluded in paragraph
11 of its Report: "Thus, however valid may have been the view taken in
1971, and re-affirmed in 1937-38, that the age of 55 was normally the dividing
line between health and efficiency on the one side, and marked physical
deterioration and decline in efficiency On the other, there is sufficient
reason to think that is no longer so, and that the deviding line can be safely
moved a few years upwards." The Commission then adverted to the prevailing
ages of retirement in foreign countries and reiterated that whether we go by
our own "vital statistics" or by the age of retirement prevalent in
other countries, there was a clear case for raising the age of superannuation
"substantially" above 55 years.
In paragraph 15 of the Report, the Commission
considered the effect of increasing the age of retirement on the employment
situation and concluded that the likely repercussion of increasing the age of
retirement on educated unemployment would not be substantial. After talking
into account all the relevant considerations, including the fact that most
Government servants themselves do not wish to continue in service until they
are worn out and have "one foot in the grave", the Commission summed
up its findings by saying that there was "much in favour of and very
little against raising the age of superannuation". The Commission
recommended that the age of superannuation should be 58 for all classes of
public servants including those for whom the retirement age then was 60.
The recommendation of the Second Central Pay
Commission that the age of retirement should be raised from 55 to 58 years was
not accepted by the Government initially because, it felt that raising the age
of retirement would reduce employment opportunities in the immediate future.
However. the Government reviewed the position
subsequently and raised the age of retirement to 58 years with effect from
December 1, 1962. The main considerations which weighed with the Government in
reaching this decision were: The shortage of experienced and trained man-power
which could be met partly by raising the age of retirement; the insignificant
effect which raising the age of retirement would have on employment
opportunities; and, the improved life expectation.
The Third Central Pay Commission (1973) dealt
with the question of age of superannuation in Chapter 60 of its Report.
Paragraph 601 3 of that Chapter shows that whereas some Service Associations
Demanded that the age of superannuation should be increased to 60 years on
account of increased longevity and on account of the fact that a large number
of Government employees were not free from family responsibilities until much
later in life because of late marriages, some of the Associations suggested
that the age of retirement should be reduced again to 55 years mainly with a
view to improving the promotional prospects and providing increased employment
opportunities to the educated unemployed in the country.
The conclusions of the Third Central Pay
Commission can be summed up thus:-(1) There was a further improvement in the
expectancy of life at birth as revealed by the provisional 1971 Census figures;
(2) There was improvement in the expectancy of life between the ages of 50 and
55 years, which was of great relevance on the question of fixation of the age
of superannuation; (3) There was an appreciable increase since 1950 in the
percentage of survivors among the Central Government employees during about ten
years after retirement; (4) Though reduction in the age of superannuation to 55
years would result in making about 96,000 additional jobs available, that
factor was counter-balanced by the circumstance that a large number of retired
Government employees are obliged to take up some employment or the other after
retirement, due to the increased cost of living and the growing family
responsibilities. A reduction in the age of superannuation would not therefore,
ipso facto, improve the overall employment position for the educated
unemployed; (5) Any increase in the age of superannuation beyond the age of 58
would reduce, during the period of the increase, employment opportunities for a
very large number of technical, engineering and professional students passing
out from the universities, technical institutions and industrial training
institutes ; and, (6) The age of retirement should not be changed frequently
since it has a vital bearing on the career prospects of and the retirement
benefits available to Government employees and since it is an important factor
in the attractiveness of Government service. For these reasons, the Commission
recommended that the age of superannuation should continue to be 58 years for
the Central Government employees with the modification that the retirement
should take effect from the afternoon of the last day of the month in which the
employee attains the age of superannuation.
The Third Tamil Nadu Pay Commission (1978)
has also dealt with the question of the age of retirement. The Commission
noticed that the age of retirement was more than 60 in some of the develop- 602
ing countries, the economic development of which was comparable to that of
India. The age of retirement is 70 years in Brazil and Peru, 65 years in Chile,
63 years in Philippines and 64 years in Lebanon. The Commission examined the
co-relationship between increase in the age of retirement and unemployment
amongst the educated youth with "a deep sense of concern" and
observed that the number of jobs released by retirement would be very marginal
as compared with the total number of job seekers and that, therefore, it was
not fair to shift the focus of the problem of unemployment to the age of
superannuation of the Government employees. In support of this view, it quoted
the International Labour Organisation (The World Employment Programme):
"The three pillars of a strategy for fuller employment are rural
development, labour intensive public works programmes and the reduction of
capital intensity of industrialisation." Observing that the dimensions of
unemployment problem should not deter the Government from improving the service
conditions of its employees. the Commission concluded that there was a case for
increasing the retirement age of the State Government employees to 58 years.
Our attention was also drawn to the views
expressed on "Employment Policy" in the Sixth Five Year Plan
(1980-85).
It is observed therein that lasting solutions
to unemployment problems had to be found within the framework of a rapid and
employment-oriented economic growth; that suitable measures had to be evolved
in the short term in a co-ordinated way, particularly for the benefit of the
weaker sections; and that, since the dimension and gravity of educated
unemployment vary from State to State, a decentralised approach should be
adopted on the district employment plan. According to the Sixth Five Year Plan,
unemployment would not be eliminated within the Sixth Plan unless efforts were
immediately made to make the current unemployed more employable through
short-term training and vocational programmes and unless special employment
programmes are directed towards their absorption.
Soon after the assumption of office, the
Government of Andhra Pradesh presented a White Paper to the State Legislative
Assembly in March 1983 on the question of reduction in the age of
superannuation from 58 years to 55 years in respect of Government employees,
employees of Panchayat Raj Institutions, Local Bodies and aided Educational
Institutions for whom the pensionary liability is borne by Government".
After stating that the Krishnaswamy Commission was appointed on November 3,
1977 for the sole purpose of 603 examining the question of ' retirement
benefits" and that the question of retirement age was not included in its
terms of reference, the White Paper says that although the Government had
accepted the recommendations of the Commission almost in their entirety, it did
not accept its recommendation that the age of retirement should be increased
from 55 to 58 years. By a notification dated September 17, 19,9 the
recommendations of the Commission B in regard to the revision of pay scales
were accepted by the Government but, not so the recommendation regarding
increasing the age of retirement from 55 to 58 years. it was later, in October
1979, that the Government decided on its own to increase the age of retirement
from 55 to 58 years.
The specific case of the State Government on
the question of reduction of the age of retirement from 58 to 55 years is stated
thus:
"As a result of revision of the age of
superannuation upwards from 55 years to 58 years, the normal channels of
promotions that would have opened up had the retirements taken place in the
normal course, were choked. Consequently the resultant vacancies at the direct
recruitment level which would have arisen in the chain of appointments that
would follow each retirement, were also blocked for 3 years continuously,
thereby denying the promotion opportunities to inservice personnel and
employment opportunities for the unemployed causing a great deal of frustration
all round. It is estimated that on an average there would be approximately
6,500 retirements each year from Government departments, Panchayat Raj
Institutions and also Aided Institutions, where pensionary liability is borne
by Government.
Government, therefore, decided to revise the
age of superannuation from 58 years to 55 years so that the unemployed talented
youth who were eagerly awaiting chances of appointment could get opportunities
of employment.
Besides, experienced deserving inservice
personnel whose legitimate aspirations for promotion were thwarted could also
now look for this much awaited promotion. Government were thus able to create
promotional avenues to serving employees at various levels and create
opportunities for appointment against about 18,000 posts in Government,
Panchayat Raj and aided educational institutions alone, not to speak of the
opportunities that were created in the various Corporations etc, owned or
controlled by Government." 604 The White Paper explains that in order to
ensure that the employees who had retired by the end of February 1983 should
get their pensionary benefits without delay, the Government had constituted a
special Pension cell in the Finance Department, by a notification dated
February 16, 1983. The function of that cell is to "monitor the progress
of settlement of pension eases" In addition, it is said, the Government
had issued instructions by a notification dated February 14, 1983 for payment
of "anticipatory pension" at 3110th of the last pay drawn in all
cases wherein the sanction of pension was delayed.
on the basis of this data, it is difficult to
hold that in reducing the age of retirement from 58 to 55, the State Government
or the Legislature acted arbitrarily or irrationally. There are precedents
within our country itself for fixing the retirements age at 55 or for reducing
it from 58 to 55. Either the one or the other of these two stages is regarded
generally as acceptable, depending upon the employment policy of the Government
of the day. It is not possible to lay down an inflexible rule that 58 years is
a reasonable age for retirement and 55 is not. If the policy adopted for the
time being by the Government or the Legislature is shown to violate recognised
norms of employment planning, it would be possible to say that the policy is
irrational since, in that event, it would not bear reasonable nexus with the
object which it seeks to achieve.
But such is not the case here. The reports of
the various Commissions, from which we have extracted relevant portions, show
that the creation of new avenues of employment for the youth is an integral
part of any policy governing the fixation of retirement age. Since the impugned
policy is actuated and influenced predominatly by that consideration, it cannot
be struck down as arbitrary or irrational. We would only like to add that the
question of age of retirement should always be examined by the Government with
more than ordinary care, more than the State Government has bestowed upon it in
this case. The fixation of age of retirement has minute and multifarious
dimensions which shape the lives of citizens. Therefore, it is vital from the
point of view of their well-being that the question should be considered with
the greatest objectivity and decided upon the basis of empirical data furnished
by scientific investigation. What is vital for the welfare of the citizens is,
of necessity vital for the survival of the State. Care must also be taken to ensure
that the statistics are not perverted to serve a malevolent purpose 605 Shri
V.M. Tarkunde, who appears for some of the petitioners, A limited his argument
to the contention that arbitrary fixation of retirement age amounts to
"removal" from service and is therefore violative of Article 311 (2)
of the Constitution This argument has to be rejected because of our conclusion
that the reduction of the age of retirement from 58 to 55 in the instant case
is not hit by Article 14 or Article 16, since it is not arbitrary or
unreasonable in the circumstances of the case. But, apart from this position,
we find it difficult to appreciate how the retirement of an employee in
accordance with a law or rules regulating his conditions of service can amount
to his "removal" from service. It is well-settled that Article 311
(2) is attracted only when a civil servant is reduced in rank, dismissed or
removed from service by way of penalty, that is to say, when the effect of the
order passed against him in this behalf is to visit him with evil consequences.
See Satish Chandra v. Union of India,(1)
Shyam Lal v. State of U P.,(1) State of Bombay v. Saubhagchand M. Doshi,(3)
Purshottam Lal Dhingra v. Union of India(4) and P. Balakotiah v. Union of
India(5). Besides, the point made by Shri Tarkunde is concluded by a
Constitution Bench decision of this Court in Bishun Narain Misra v. State of
Uttar Pradesh (6) In that case, the Government of Uttar Pradesh and raised the
age of superannuation from 55 to 58 years by a Notification dated November 27,
1957 but reduced it again to 55 years by a Notification dated May 25, 1961. The
appellant therein, who had attained the age of 55 years on December 11, 1960
and was continued in service when the age of retirement was raised to 58 years,
was one of those who had to retire on December 31, 1961 as a result of
reduction of the age of retirement to 55. It was held by this Court that the
termination of service of an employee on account of his reaching the age of
superannuation does not amount to his removal from service within the meaning
of Article 311 (2). Learned counsel contends that this decision is of doubtful
authority since the Court based its opinion on the majority judgment in Moti
Ram Deka v. y,General Manager, North Frontier Railway(7), in which the Court
was not called upon to consider and did not consider the validity of a rule of
superannuation. It is true that in Moti Ram Deka, the Court was concerned to G
(1) [1953] S.C.R. 655.
(2) [1955] 1 S.C.R.26.
(3) [1958] S.C.R. 571.
(4) [1958] S.C.R. 828.
(5) [1958] S.C.R.1052.
(6) [1965] I S.C.R. 693.
(7) [1964] 5 S.C.R 683.
606 determine the validity of Rules 148 (3)
and 149 (3) of the Railway Establishment Code which provided for the
termination of the service of a permanent servant by a mere notice But,
interestingly, the judgment in Bishun Narain Mishra shows that it was the
appellant therein who relied on the decision in Moti Ram Deka in support of his
contention that the rule by which the age of retirement was reduced to 55 years
amounted to removal within the meaning of Article 311 (2) The Court held that
the decision in Moti Ram Deka had no application to the case before them since
"that case did not deal with any rule relating to age of retirement".
(See page 696 of the Report). It was after
noticing this distinction that the Court observed that the very case, namely,
Moti Ram Deka's case on which the appellant relied, contained the observation
that the rule as to supperannuation or compulsory retirement resulting in the
termination of service of a public servant did not amount to removal from
service The Court, in Bishun Narain Misra, came independently to the conclusion
that "as the rule in question only dealt with the age of superannuation
and the appellant had to retire because of the reduction in the age of
superannuation it cannot be said that the termination of his service which thus
came about was removal within the meaning of Article 311".
The theme of Shri Siddhartha Sbankar Ray's
argument is "non application of mind". He made it clear that his
argument should not be construed as a challenge to the power or jurisdiction of
the Governor to issue the impugned Ordinance and that his sole attempt was to
show that the Ordinance was passed in a hurry, as a result of which, considerations
which are relevant to the fixation of retirement age were ignored. The
instances of non- application of mind cited by the learned counsel are these:
The inclusion o f the employees of the High
Court within the sweep of the Ordinance in violation of the provisions of
Chapters V and VI of the Constitution; the inclusion of the employees of the
Legislature Secretariat within the Ordinance; the extension of the Ordinance
even to the daily rate workers; and, finally, the fact that nothing worthwhile
is likely to be achieved by the passing of the Ordinance since, at the highest,
it would create employment at this point of time only, for about 19,500
employees After that point of time passes, the same state of affairs will
continue since the age of retirement will be merely substituted by 58 in place
of 55 years.
It is impossible to accept the submission
that the Ordinance can be invalidated on the ground of non- application of
mind. The 607 power to issue an ordinance is not an executive power but is the
power of the executive to legislate. The power of the Governor to promulgate an
ordinance is contained in Article 213 which occurs in Chapter IV of Part VI of
the Constitution. The heading of that Chapter is ' Legislative Power of the
Governor". This power is plenary within its field like the power of the
State Legislature to pass laws and there are no limitations upon that power
except those to which the legislative power of the State Legislature is subject
Therefore, though an ordinance call be invalidated for contravention of the
constitutional limitations which exist upon the power of the State Legislature
to pass laws it cannot be declared invalid for the reason of non- application
of mind, any more than any other law can be. An executive act is liable to be
struck down on the ground of non-application of mind. Not the act of a
Legislature.
On the question as to the legislative
character of the ordinancemaking power, we may refer to the decisions of this
Court in A.K. Roy v. Union of India(1) and R.K. Garg v. Union of India(2).
Shri Ray raised upon a decision of this Court
in High Court of Andhra Pradesh v. V.V.S. Krishnamurthy,(3) which has taken the
view that in regard to the servants and officers of the High Court, Article 229
of the Constitution makes the power of` their appointment, dismissal, removal,
compulsory retirement, etc., including the power to prescribe their conditions
of service, the sole preserve of the Chief Justice and no extraneous executive
authority can interfere with the exercise of that power. This decision cannot
assist the petitioners since, it deals with the limitations on the executive
power Of the Government to interfere with the power of the Chief Justice under
Article 229. The executive cannot encroach upon that power. The decision of
this Court in Moti Ram Deka which was also cited by the learned counsel, does
not touch the point raised by him.
Though Shri Ray presented his argument in the
shape of a challenge to the Ordinance on the ground of non- application Of mind,
the real thrust of his argument was that the hurry with which the Ordinance was
passed shows the arbitrary character of the action taken by the State
Government. We have already rejected the contention of haste and hurry as also
the argument that the provi- (1) [1982] 2 S.C.R. 272 at 282, 291.
(2) 11982]1 S.C.R. 947 at 964, 967.
(3) [1979]1 S.C.R. 26.
608 sions of the Ordinance are, in any
manner, arbitrary or unreasonable and thereby violate Articles 14 and 16 of the
Constitution.
Shri R.K. Garg, who appears in Transfer Cases
Nos. 70, 71 and 72 of 1983, challenges the validity of the Ordinance on the
ground that, casting all established norms aside, it fixes the age of
retirement at 55 years, notwithstanding industrial adjudications and even
settlements arrived at between employers and employees. Relying upon certain
decisions of this Court like Maneka Gandhi v. Union India(1) and State of
Madras v. V.G. Row(2) in support of his submission that arbitrariness
invalidates laws, counsel contends that a law which overrules an industrial
adjudication or settlement is fundamentally unreasonable or arbitrary and must,
therefore, be held to be violative of Article 14 of the Constitution. It was
also urged by counsel that by reducing the age of retirement to 55 years, the
Government employees were deprived of their right to livelihood. There is no
substance in this latter argument because, if a rule of retirement can be
deemed to deprive a person of his right to livelihood, it will be impermissible
to provide for an age of retirement at all. That will be contrary to public
interest because the State cannot afford the luxury of allowing its employees
to continue in service after they have passed the point of peak performance.
Rules of retirement do not take away the right of a person to his livelihood:
they limit his right to hold office to a stated number of years. This argument
of the learned counsel can be rejected for other reasons also, we do not
propose to deal with these Transferred Cases since, there is nothing on record
to show that there are any industrial adjunctions or settlements between
employers and employees providing for an age of retirement for any section of
industrial workers.
These Transferred Cases will be delinked from
the other Writ Petitions and will be listed for hearing later, so that they can
be dealt with upon their own facts. If the question raised by Shri Garg is
academic, it will be needless to consider it.
The argument of mala fides advanced by Shri
A.T. Sampat, and adopted in passing by some of the other counsel, is without
any basis. The burden to establish ma/a fides is a heavy burden to discharge.
Vague and casual allegations suggesting that a certain act was done with an
ulterior motive cannot be accepted without proper pleadings and adequate proof,
both of which are conspi- (1) [1978] 2 S.C.R. 621 at 659, 685, 689 and 702.
(2) 11952] S.C.R. 597 at 607.
609 cously absent in these writ petitions.
Besides, the ordinance-making A power being a legislative power, the argument
of mala Fides is misconceived. The legislature, as a body, cannot be accused of
having passed a law for an extraneous purpose. Its reasons for passing a law
are those that are stated in the Objects and Reasons and if no reasons are so
stated, as appear from the provisions enacted by it.
Even assuming that the executive, in a given
case, has an ulterior motive in moving a legislation, that motive cannot render
the passing of the law mala fide. This kind of 'transferred malice' is unknown
in the field of legislation.
Finally, there is no substance in the
contention that the amendment to the Fundamental Rules, whereby the proviso to
rule 2 was deleted, is beyond the powers of the rule- making authority or the
Legislature. The Fundamental Rules and the amendments thereto are issued by the
State Government under the powers delegated to it by the Civil Services
(Governors' Provinces) Delegation Rules 1926, the Civil Services
(Classification, Control and Appeal) Rules 1930, and under the Proviso to
Article 309 of the Constitution. The Fundamental Rules which came in to force
with effect from January 1, 1972 were amended earlier by G.O. Ms. No. 128 dated
April 29, 1969. By that amendment, a proviso was added to rule 2 which reads
thus:
"Provided that the rules shall not be
modified or E; replaced to the disadvantage of any person already in
service." By G.O. Ms. No. 48 dated February 17, 1983 this proviso was
deleted with retrospective effect from February 23, 1979.
The contention of the petitioners is that the
proviso which conferred a benefit upon Government servants by protecting their
conditions of service, cannot be amended so as to empower the Government to
alter those conditions to their prejudice and, in any event, they cannot be
amended retrospectively so as to take away rights which had already accrued to
them The simple answer to this argument is that the amendment of February 17,
1983 to the Fundamental Rules was made by the Government of Andhra Pradesh in
exercise of the powers conferred by the proviso to Article 309 read with
Article 313 of the Constitution. It is well-settled that the service rules can
be as much amended, as they can be made, under the proviso to Article 309 and
that, the power to amend these rules carries with it the power to amend them retrospectively.
The power conferred by H 610 the proviso to Article 309 is of a legislative
character and is to be distinguished from an ordinary rule making power.
The power to legislate is of a plenary nature
within the field demarcated by the Constitution and it includes the power to
legislate retrospectively. Therefore, the amendment made to the Fundamental
Rules in the exercise of power conferred by Article 309, by which the proviso
to rule 2 was deleted retrospectively, was a valid exercise of legislative
power. The rules and amendments made under the proviso to Article 309 can be
altered or repealed by the Legislature but until that is done, the exercise of
the power cannot be challenged as lacking in authority. (See B.S. Vaderu v. Union of India;(1) Raj Kumar v. Union of India(2).
These then are the main points in controversy
on which counsel made their contentions. For reasons aforesaid, we reject those
contentions and dismiss these Writ Petitions.
There will be no order as to costs.
S.R. Petitions dismissed.
(1) [1968] 3 S C.R. 575, 582 585.
(2) [1975] 3 S.C.R. 963, 965.
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