Nagaland
Sr.Govt.Employees Welf. Asn. & Ors Vs. State of Nagaland & Ors. [2010]
INSC 448 (6 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4955 OF
2010 (Arising out of SLP(C) No. 29786 of 2009) Nagaland Senior Govt. Employees
Welfare Association & Ors. ...Appellants Versus The State of Nagaland &
Ors. ...Respondents JUDGEMENT R.M. Lodha, J.
Leave
granted.
1.
Introduction
2.
A new State - State of Nagaland - was formed by the State of
Nagaland Act, 1962 (for short, `the 1962 Act') which came into force on
December 1, 1963 comprising the territories which immediately before the
appointed day were comprised in the Naga Hills - Tuensang Area of the State of
Assam. Prior to the 1962 Act, Naga Hills-Tuensang Areas Act, 1957 was enacted
by the Parliament by which certain changes were brought about with regard to
the administration of the area viz., Naga Hills - Tuensang Area within the
State of Assam. The pay structure applicable to civil servants of Assam was
made applicable to the civil servants of the Naga Hills-Tuensang Area and as
regards the service conditions including the age of superannuation, the Central
Government Fundamental Rules and Subsidiary Rules were made applicable to them.
After creation of the State of Nagaland, the conditions of service of the State
Government employees continued to be governed by the same Rules. In 1990, the
superannuation age of all the State Government employees other than grade-IV
employees was raised from 55 years to 58 years.
The 1991
Act
3.
In 1991, Nagaland Retirement from Public Employment Act, 1991 (for
short, `the 1991 Act') was enacted by the State Legislature which came into
force on June 18, 2 1991. Section 3 thereof provided for retirement from public
employment. It states :
"S.-3.
Retirement from public employment: (1) Notwithstanding anything contained in
any rule or orders for the time being in force, a person in public employment
shall hold office for a term of thirty-three years from the date of his joining
public employment or until he attains the age of fifty-seven years whichever is
earlier :
Provided
that in special circumstances, a person under public employment may be granted
extension by the State Government upto a maximum of one year;
Provided
further that the Government may have the cases of all persons under public
employment screened from time to time to determine their suitability for
continuation in public employment after the attainment of the age of fifty
years.
(2) All
persons under public employment shall retire on the afternoon of the last day
of the month in which he attains the age of fifty-seven years or on completion
of thirty-three years of public employment whichever is earlier.
(3) xxx
xxx xxx xxx (4) xxx xxx xxx xxx (5) xxx xxx xxx xxx"
3 As a
matter of fact, the 1991 Act replaced the Nagaland Retirement from Public
Employment Ordinance, 1991.
Challenge
to Section 3 (1991 Act)
4.
The Confederation of All Nagaland State Service Employees
Association (`the Confederation', for short) challenged the constitutional
validity of Section 3 which provided for retirement from public employment on
completion of 33 years from the date of joining employment or until the age of
57 years, whichever is earlier by filing a writ petition before the Gauhati
High Court. The main grounds of challenge were :
(i) that
retirement of the government employees at the age of 57 is arbitrary and (ii)
that classification of the government employees in two groups viz., one group
of the government employees who are to retire on completion of 33 years service
before attaining the age of 57 and the other group retiring at the age of 57
and having not completed 33 years of service is not permissible since
retirement of government employees must be attributable to the age and not the
length of tenure of service.
5.
The Single Judge of the Gauhati High Court vide judgment dated
January 18, 1993 upheld the reduction of retirement age from 58 to 57 years but
struck down part of Section 3 of 1991 Act which prescribed the retirement from
service on completion of 33 years of service. But no consequential relief was
granted to the employees.
6.
The Confederation challenged the order of the Single Judge dated
January 18, 1993 by way of an intra court appeal insofar as consequential
reliefs were denied to the employees. The Division Bench allowed the appeal on
September 6, 1995 and held that affected employees shall be entitled to get
their salary and other allowances and all other consequential benefits which
they would have been entitled to upto the age of 57 years, except those
employees who were gainfully employed elsewhere.
7.
The State of Nagaland (for short, `the State') challenged the
judgment and order dated September 6, 1995 to the extent the Division Bench
granted consequential reliefs to the employees in Special Leave Petition (SLP)
before this Court. Leave was granted and SLP was converted into Civil 5 Appeal.
However, on April 7, 1997 appeal was withdrawn by the State.
1st
Amendment Act, 2007
8.
By Nagaland Retirement from Public Employment (Amendment) Act,
2007 (for short, `Ist Amendment Act, 2007), the superannuation age of the
government employees in the State was enhanced from 57 years to 60 years with
effect from November 15, 2007. Later on, the maximum age for entering the
government service in the State was enhanced to 30 years for general category
candidates and 35 years for SC/ST category candidates.
9.
On October 17, 2008, the Naga-Students Federation (NSF) being not
satisfied with the 1st Amendment Act, 2007 made a representation to the State
Government voicing its concern that enhancement of retirement age had reduced
the employment opportunities for the educated youth in the State. NSF demanded
that the State Government should also fix maximum length of service that an
employee may be 6 entitled to put in before retirement. In pursuance of the
representation made by NSF, the Department of Personnel and Administrative
Reforms (for short, `DOP & AR') submitted a Memorandum dated October 22,
2008 to the Cabinet for a decision as to whether the State Government should
also prescribe maximum length of service for retirement of the State Government
employees in addition to the upper age limit of 60 years and if so, what should
be maximum length of the service for retirement.
10.
The Cabinet in its meeting held on October 23, 2008 asked the DOP
& AR to examine the matter in greater detail and prepare a profile of
average length of service put in by the government employees at the time of
superannuation and submit its findings and recommendations for further
consideration of the Cabinet. DOP & AR then appears to have prepared its
report and submitted the same to the Cabinet for consideration.
11.
The Cabinet considered the subject again and appointed a High
Power Committee (HPC), inter alia, to scrutinize the retirement profile of the
government employees 7 prepared by DOP & AR and make necessary
recommendations regarding fixation of maximum length of service of the
government employees and other service conditions.
12.
On February 18, 2009, HPC held its meeting to examine the
superannuation age of the State Government employees. HPC found gaps in the
data base and, accordingly, recommended that DOP & AR should be nodal
agency to streamline date base of government employees, and put in place a
Common Data Base System by coordinating with the concerned departments. It
transpires that based on the data available with the Government, the following
compilations were made:
Table -1
: Grade wise employees of the State Grade No. of employees Percentage Class-I
3495 4% Class-II 2203 3% Class-III 59,598 74% Class-IV 15,704 19% Total 81,000
100% Table -2 : State Agency Wise Employees State No. of employees Percentage
Agency Secretariat 2322 3% Directorate 8540 11% 8 District 70,138 86% Total
81,000 100% Table -3 : Number of years of completed service Completed No.
employees years of As on 1st January, As on 1st July, As on 1st service 2009
2009 January 2010 More than 222 294 362 40 years 36 years 1629 1997 2313 35
years 2343 2923 3250 34 years 3280 3954 4327 33 years 4357 4960 5156 Table -4 :
Completed Age of employees as on 1st January, 2009 & 1st July, 2009 Age of
No. employees employees st 1 January, 2009 1st July, 2009 59 years 101 268 58
years 409 1029 57 years 1088 2077 56 years 2096 3306 55 years 3346 4675 Table -
5 Entry into service No. of employees 40 and above 21,889 35 to 39 years 28,721
30 to 34 years 13,404 25 to 29 years 2,259 Less than 25 years 1149 9
13.
HPC on the basis of the aforesaid figures observed that most of
the non-gazetted (Class-III and IV) employees have joined the service at a very
early age, i.e. before 20 years and hence fixation of length of service as a
criterion for superannuation may affect many of the Class-III and IV employees
who joined the service at the age of 18-20 years.
HPC also
observed that employment opportunity in the government sector is limited but
the qualified job seekers have increased manifold, thus, causing mismatch in
the demand and supply for public jobs in the State.
2nd Amendment
Act, 2009
14.
On July 8, 2009 a Bill titled `The Nagaland Retirement from Public
Employment (Second Amendment) Bill, 2009' (for short, `Amendment Bill') was
introduced on the floor of the House. By the said Bill the length of service of
the State Government employees was proposed to be restricted to 35 years from
the date of joining of service or till he/she attains the age of 60 years,
whichever is earlier.
15.
The State Legislature of Nagaland, on July 10, 2009 unanimously
passed the Amendment Bill. Thus by Nagaland 1 Retirement from Public Employment
(Second Amendment) Act, 2009' (for short, `2nd Amendment Act, 2009'), Section 3
of 1991 Act as amended by 1st Amendment Act, 2007, was substituted by the
following provision :
"S.3(1).-
Notwithstanding anything contained in any rule or orders for the time being in
force, a person in public employment shall hold office for a term of 35 years
from the date of joining public employment or until he attains the age of 60
years, whichever is earlier.
S.3(2).-
A person under public employment shall retire on the afternoon of the last day
of the month in which he attains the age of 60 years, or in which he completes
35 years of public employment, whichever is earlier."
16.
On July 20, 2009, the State Government issued Office Memorandum
(OM) requesting all departments to submit the list of employees, who had
completed 35 years of service by October 31, 2009.
Challenge
to the 2nd Amendment Act, 2009
17.
The appellant-Association challenged the constitutional validity
of the 2nd Amendment Act, 2009 being arbitrary, irrational, ultra vires and
violative of Articles 14, 16 and 21 of the Constitution and legality of the OM
dated July 20, 2009 by filing a writ petition before Gauhati High Court. The 1
Association prayed that 2nd Amendment Act, 2009 be quashed to the extent it has
introduced 35 years' service as one of the conditions for retirement of
government employees and direction be issued to the State to superannuate its
employees only on attaining the prescribed age of 60. The Association also
prayed for quashing OM dated July 20, 2009.
18.
The State justified 2nd Amendment Act, 2009 and OM dated July 20,
2009 by filing a detailed affidavit in opposition to the writ petition. They
set up the plea that youth in the State were not getting an opportunity in the
matters of public employment because of long period of service of the existing
employees who would serve up to 42 years resulting in a sense of frustration
and stagnation amongst educated youth;
that educated
youth who remain unemployed out of sheer desperation pursue avocation which is
not in tune with the law;
and that
the amended law would result in removal of stagnation in the matters of
employment to the unemployed and thereby making employment opportunities less
arbitrary, reasonable and in consonance with the constitutional provisions. It
was submitted that by 2nd Amendment Act, 2009, the employment 1 prospects of
the youth are protected whereby the number of years of service would be
restricted to 35 years while maintaining the age of superannuation at 60 years.
The State also submitted that the literacy rate in Nagaland is amongst one of
the highest in India and the high literacy rate coupled with the fact that
there are no other avenues for employment except through the Government sector
has increased the unemployment problem to an alarming extent. After a thorough
and systematic appreciation and study of the unemployment problem and also the
social aspects, the State decided to prescribe the maximum length of service
for retirement of its employees in addition to the upper age limit of 60 years.
The State explained the peculiar circumstances that necessitated the insertion
of 35 years of length of service in the government employment for superannuation.
19.
The Division Bench after hearing the parties dismissed the writ
petition on October 30, 2009. It is from this judgment and order that the
present appeal arises.
20.
Before we deal with the main submissions of the parties, an
intervening factual aspect may be noticed here. In 1 the month of February,
2009, the State made an application before the Gauhati High Court seeking
review of the order dated January 18, 1993 passed by the Single Judge in the
writ petition wherein constitutional validity of Section 3 of 1991 Act was
challenged. However, the said review application was withdrawn on March 2,
2009.
Main
submissions of the parties
21.
Mr. Ram Jethmalani, learned senior counsel for the appellants
submitted that retirement by way of superannuation in respect of government
employees is permissible only on the basis of age and not on the basis of
length of service. The contention is that retirement by way of superannuation
in respect of government employees relates to discharge of an employee on
account of attaining a particular age fixed for such retirement, which is
uniformly applicable to all employees without discrimination. He submitted that
where there is minimum and maximum age of entry into any service, the
alternative method of retirement by way of length of service would inevitably
result in different age of superannuation of employees holding the same post
depending upon their age of 1 entry to the service and that would result in
manifest violation of Article 14 and Article 16 of the Constitution; it would
also be inconsistent with the valuable right of a permanent government employee
to continue service till the age of superannuation subject to rules of
compulsory retirement in public interest and abolition of posts. Learned senior
counsel submitted that insofar as decision of this Court in Yeshwant Singh
Kothari v.
State
Bank of Indore & Ors1 is concerned, it has no application, firstly, to the
government employees and in the second place, he was not raising the arguments
that were raised in that case but his contention is that prescribing retirement
of government employees on completion of 35 years of service is arbitrary and
irrational. According to learned senior counsel, in Yeshwant Singh Kothari1,
the arguments were considered in the backdrop of discriminatory classification
and not on the grounds of such action being arbitrary, irrational or
unreasonable.
22.
Mr. Ram Jethmalani, learned senior counsel vehemently contended
that even if it be assumed that the alternative method of retirement by way of
length of service is permissible in law, still the 2nd Amendment Act, 2009 1
1993 Suppl. (2) SCC 592 1 prescribing retirement of government employees in the
State on completion of 35 years of service is violative of Article 14 of the Constitution
being arbitrary, unreasonable and unconstitutional. In this regard, he placed
heavy reliance upon judgment of this Court in the case of K. Nagaraj and Ors.
v. State of Andhra Pradesh and Anr.2 It was submitted that the
needs/responsibilities of a person between the age of 50 to 60 are the most as
he has to educate his children, marry his children in addition to maintaining
his family. He submitted that Class III and IV employees constitute 93 per cent
of total employee strength in the State and that as a result of prescription of
maximum length of service of 35 years, most of the government employees (who
joined service before 20 years, i.e. at 18 and 19 years) would retire at the
age of 53 or 54 years which is an unreasonably low age of retirement. In this
regard, learned senior counsel referred to the report of the HPC wherein it is
mentioned that most of the non-gazetted (Class-III and IV) employees have
joined service at an early age, i.e. before attaining 20 years. Mr. Ram
Jethmalani also invited our attention to the observations made in the report
prepared by 2 (1985) 1 SCC 523 1 HPC wherein it was observed, `the committee
examined the data base available on the State employees and found that there
are many deficits and gaps in the data base'. It was, thus, submitted that the
fixation of 35 years as the maximum length of service has been determined by
the Government without any basis and in a most arbitrary fashion without any
objectivity and certainly not on the basis of empirical data furnished by the
scientific investigation. According to him, in the absence of full
investigation into the multitudinous pros and cons and deep consideration of
every aspect of the question, the prescription of alternative method of
superannuation by way of length of service smacks of total arbitrariness. It
was also contended that the impugned provision is arbitrary not only from the
point of view of the employees as a whole but also from the point of view of
public interest inasmuch as it is against public interest to deprive the public
at large of the benefit of the mature experience of the senior government
employees; pre-mature retirement at an unreasonable low age of 53 or 54 years
when the employees are at their prime would be against public interest. The
learned senior counsel would also contend that 1 the impugned provision of
prescribing retirement of government employees on completion of 35 years of
service is actuated solely on the pressure exerted upon the State Government by
NSF which itself is arbitrary.
23.
Mr. P.K. Goswami, learned senior counsel for respondent no.4,
supporting the appellants adopted the arguments of Mr. Ram Jethmalani.
24.
On behalf of the contesting respondent nos. 1 to 3 - the State and
its functionaries - Mr. K.K. Venugopal, learned senior counsel stoutly defended
the 2nd Amendment Act, 2009 and impugned judgment of Gauhati High Court. He
submitted that the State of Nagaland has a unique problem not faced by many
other States in the country. He would submit that Nagaland has no industries
either in the public sector or in the private sector where gainful
opportunities are made available to the youth in the State although percentage
of literacy is as high as 70%; that for lack of avenues of employment there is
a grave danger arising out of insurgency and potential danger of educated youth
joining underground movement; that increase of retirement age from 57 years to
60 years in the year 2007 1 resulted in grave resentment from the Naga youth
who protested through NSF which finally led to the enactment of the 2nd
Amendment Act, 2009 and that alternative mode of retirement on completion of 35
years of service is consistent with the judgment of this Court in Yeshwant
Singh Kothari1 and based on the policy of the Government and in public
interest.
25.
Mr. K.K. Venugopal, learned senior counsel argued that there is
always presumption of constitutionality arising in favour of a statute and onus
to prove its invalidity lies on a party which assails the same. He submitted
that the Legislature is the best judge of the needs of the particular classes
and to estimate the degree of evil so as to adjust its legislation accordingly.
In this regard, he sought support from the decisions of this Court in Mahant
Moti Das v. S.P. Sahi3, A.C. Aggarwal v. Mst. Ram Kali etc.4 and The
Amalgamated Tea Estates Co. Ltd. v. State of Kerala5. Mr. K.K. Venugopal
submitted that prescription of two rules of retirement, one by reference to age
and the other by reference to years of completed service is permissible and the
retirement policy 3 AIR 1959 SC 942 4 AIR 1968 SC 1 5 1974 (4) SCC 415 1
manifested in 2nd Amendment Act, 2009 is neither arbitrary nor discriminatory.
The issue
26.
On the contentions outlined above, the question that arises for
consideration is : whether the impugned provision that prescribes retiring the
persons from public employment in the State of Nagaland on completion of 35
years' service from the date of joining or until attaining the age of 60 years,
whichever is earlier, is arbitrary, irrational and violative of Articles 14 and
16 of the Constitution.
Appraisal
(A) Should retirement from public employment be effected on account of age
alone?
27.
It is true that `superannuation' means discharge from service on
account of age. The dictionary meaning of `superannuation' is to retire or
retire and pension on account of age. Although the impugned provision does not
use the expression `superannuation' but broadly retirement is referred to as
superannuation. There is no absolute proposition in law nor any invariable rule
in the service jurisprudence that an employee can be made to retire from public
employment on 2 account of age alone. What the Constitution guarantees for the
citizens is equality of opportunity under the employment of the Government and
the prohibition of discrimination between its employees but there is no
provision in the Constitution that restricts retirement from public employment
with reference to age. Rather Article 309 empowers the appropriate Legislature
to regulate the conditions of service of persons serving the Union or a State,
as the case may be, by an enactment subject to the provisions of the
Constitution. The competence of the Legislature to formulate uniform policy for
retirement from public employment by enacting a law can hardly be doubted.
The
question that has to be asked is, whether such law meets constitutional tests?
28.
The legality and validity of a provision permitting retirement on
the basis of length of service directly came up for consideration before this
Court in the case of Yeshwant Singh Kothari1. In that case, the appellants -
employees of the State Bank of Indore (a subsidiary bank of the State Bank of
India) - were aggrieved by their retirement on completion of 30 years of
service whereas according to them they were entitled to service 2 upto 58 years
of age. They were initially in the employment of the Bank of Indore Limited
which ceased to exist with effect from January 1, 1960 and became a subsidiary
bank known as the State Bank of Indore. The issue was raised in the context of
the State
Bank of India (Subsidiary Banks) Act, 1959 and the Regulations
framed thereunder. This Court referred to Section 11(1) of 1959 Act and
Regulation 19(1) which are as follows :
"S.11.-
Transfer of services of employees of existing banks.-- (1) Save as otherwise
provided in this Act, every employee of an existing Bank in the employment of
that bank immediately before the appointed day, shall, on and from that day,
become an employee of the corresponding new bank and shall hold his office or
service therein by the same tenure at the same remuneration and upon the same
terms and conditions and with the same rights and privileges as to pension,
gratuity and other matters as he would have held the same on the appointed day,
if the undertaking of the existing bank had not been transferred to and vested
in the corresponding new bank and shall continue to do so unless and until his
employment in that bank is terminated or until his remuneration or other terms
and conditions of service are revised or altered by the corresponding new bank
under, or in pursuance of any law, or in accordance with any provision which,
for the time being governs, his service."
xxx xxx
xxx xxx 2 "Regulation 19.- Age of retirement.-- (1) An officer shall
retire from the service of the Bank on attaining the age of fifty-eight years
or upon the completion of thirty years service, whichever occurs first:
Provided
further that the competent authority may, at its discretion, extend the period
of service of an officer who has attained the age of fifty-eight years or has
completed thirty years' service as the case may be, should such extension be
deemed desirable in the interest of the Bank."
In the
context of the aforesaid provisions, this Court ruled:
".....The
provision in the Regulation in hand for maintaining the age of retirement at 58
years as before but in the same breath permitting retirement on the completion
of 30 years of service, whichever occurs earlier, is in keeping with the policy
of reckoning a stated number of years of office attaining the crest, whereafter
inevitably is the descent, justifying retirement. In this context 30 years'
period of active service is not a small period for gainful employment, or an
arbitrary exercise to withhold the right to hold an office beyond thirty years,
having not attained 58 years of age."
29.
The impugned provision that prescribes retirement from the public
employment at the age of 60 years or completion of 35 years of service,
whichever is earlier, is apparently consistent with the decision in the case of
Yeshwant 2 Singh Kothari1 and the ratio in that case is squarely applicable to
the case in hand. If 30 years' period of active service was not held a small
period for gainful employment, or an arbitrary exercise to withhold the right
to hold an office beyond 30 years, having not attained 58 years of age, a
fortiori, retiring a person from public service on completion of 35 years of
service without attaining age of 60 years may not be held to be unjustified or
impermissible.
(B) K.
Nagaraj Case
30.
In the case of K. Nagaraj2, the employees of the Government of
Andhra Pradesh were aggrieved by an amendment in the Fundamental Rules and
Hyderabad Civil Services Rules reducing the retirement age from 58 to 55 years.
As a result of these amendments, over 18,000 government employees and 10,000
public sector employees were superannuated. The government employees challenged
the said amendments on diverse grounds, inter-alia that the said amendment
violated Articles 14, 16 and 21 of the Constitution. This Court held that it
was in public interest to prescribe age of retirement and while holding so
observed that 2 fixation of age 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 sub-serve any public interest.
While
ruling that in reducing the age of retirement from 58 to 55, the State
Government cannot be said to have acted arbitrarily or irrationally, it was
held :
"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 retirement 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 predominantly 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 2 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."
xxx xxx
xxx xxx ".....the fact that the decision to reduce the age of retirement
from 58 to 55 was taken by the State Government within one month of the
assumption of office by it, cannot justify the conclusion that 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 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 are taken promptly cannot be assumed to be bad because they are taken
promptly. Every decision has to be 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 2
question which the State Legislature had to consider. There is a wealth of
material on that subject and many a Pay Commission has dealt with it
comprehensively. The State 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."
Again in
paragraph 34 of the report this Court repelled the argument of the appellants
regarding arbitrary character of the action taken by the State Government,
thus:
"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 provisions of
the Ordinance are, in any manner, arbitrary or unreasonable and thereby violate
Articles 14 and 16 of the Constitution."
31.
As a matter of fact, in K. Nagaraj2 this Court stated clearly that
fixation of retirement age is a matter of employment policy of the Government
and no inflexible rule can be laid down.
However,
if such policy is shown to violate recognized norms of 2 employment planning,
then such policy may not meet the test of rationality and reasonableness. The
fact that employment policy was formulated hurriedly was not held sufficient to
conclude that the policy suffered from non-application of mind or arbitrary. We
are afraid, K. Nagaraj case2 instead of helping the appellants, rather supports
the stand of the State. Fixation of maximum length of service as an alternative
criterion for retirement from public service, by no stretch of imagination, can
be held to be violative of any recognized norms of employment planning. There
may be a large number of compelling reasons that may necessitate the Government
(or for that matter the Legislature) to prescribe the rule of retirement from
the government service on completion of specified years. If the reasons are
germane to the object sought to be achieved, such provision can hardly be
faulted.
(C)
Presumption of constitutionality
32.
That there is always a presumption in favour of the
constitutionality of an enactment and that the burden is upon the person, who
attacks it is a fairly well settled proposition. In 2 Mohd. Hanif Quareshi
& Ors. v. State of Bihar6, this Court stated :
".........The
classification, it has been held, may be founded on different bases, namely,
geographical, or according to objects or occupations or the like and what is
necessary is that there must be a nexus between the basis of classification and
the object of the Act under consideration. The pronouncements of this Court
further establish, amongst other things, that there is always a presumption in
favour of the constitutionality of an enactment and that the burden is upon
him, who attacks it, to show that there has been a clear violation of the
constitutional principles. The courts, it is accepted, must presume that the
legislature understands and correctly appreciates the needs of its own people,
that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds."
33.
The aforesaid legal position was reiterated in Mahant Moti Das v.
S.P. Sahi, the Special Officer In Charge of Hindu Religious Trust & Ors.i7
in the following words :
"The
decisions of this Court further establish that there is a presumption in favour
of the constitutionality of an enactment and the burden is upon him who attacks
it to show that there has been a clear transgression of the constitutional
guarantee; that it must be presumed that the legislature understands and
correctly appreciates the needs of its own people and that its laws are 6 AIR
1958 SC 731 7 AIR 1959 SC 942 2 directed to problems made manifest by
experience and that its discriminations are based on adequate grounds; and
further that the legislature is free to recognise degrees of harm and may
confine its restrictions to those cases where the need is deemed to be the
clearest......"
34.
In the case of State of Uttar Pradesh v. Kartar Singh8, the
Constitution Bench of this Court held that where a party seeks to impeach the
validity of a rule on the ground of such rule offending Article 14, the burden
is on him to plead and prove infirmity. This Court said :
".........,
if the rule has to be struck down as imposing unreasonable or discriminatory
standards, it could not be done merely on any apriori reasoning but only as a
result of materials placed before the Court by way of scientific analysis. It
is obvious that this can be done only when the party invoking the protection of
Art. 14 makes averments with details to sustain such a plea and leads evidence
to establish his allegations. That where a party seeks to impeach the validity
of a rule made by a competent authority on the ground that the rules offend
Art.
14 the
burden is on him to plead and prove the infirmity is too well established to
need elaboration. If, therefore, the respondent desired to challenge the
validity of the rule on the ground either of its unreasonableness or its
discriminatory nature, he had to lay a foundation for it by setting out the
facts necessary to sustain such a plea and adduce cogent and convincing
evidence to make out his case, for there is a presumption that every factor
which is relevant or material has been taken into account in formulating the
classification of the zones and the 8 (1964) 6 SCR 679 3 prescription of the
minimum standards to each zone, and where we have a rule framed with the
assistance of a committee containing experts such as the one constituted under
s. 3 of the Act, that presumption is strong, if not overwhelming...
......"
35.
In A.C. Aggarwal, Sub-Divisional Magistrate, Delhi & Anr. v.
Mst. Ram Kali etc.9, the Constitution Bench of this Court reiterated the legal
position thus :
"........The
presumption is always in favour of the constitutionality of an enactment, since
it must be assumed that the legislature understands and correctly appreciates
the needs of its own people, and its laws are directed to problems made
manifest by experience and its discriminations are based on adequate
grounds."
36.
In Pathumma & Ors. v. State of Kerala & Ors.10 , a
seven-Judge Bench of this Court highlighted that the Legislature is in the best
position to understand and appreciate the needs of the people as enjoined by the
Constitution. It was stated :
"It
is obvious that the Legislature is in the best position to understand and
appreciate the needs of the people as enjoined by the Constitution to bring
about social reforms for the upliftment of the backward and the weaker sections
of the society and for the improvement of the lot of poor people.
The Court
will, therefore, interfere in this process only when the statute is clearly
violative of the right conferred on the citizen under Part III of the 9 AIR
(1968) SC 1 10 (1978) 2 SCC 1 3 Constitution or when the Act is beyond the
legislative competence of the legislature or such other grounds. It is for this
reason that the Courts have recognised that there is always a presumption in
favour of the constitutionality of a statute and the onus to prove its
invalidity lies on the party which assails the same......"
37.
A two-Judge Bench of this Court in Fertilisers and Chemicals
Travancore Ltd. v. Kerala State Electricity Board and Anr.11 emphasized that
the allegations of discrimination must be specific and that action of
governmental authorities must be presumed to be reasonable and in public
interest. It is for the person assailing it to plead and prove to the contrary.
(D)
Impugned provision : whether arbitrary, unreasonable and irrational
38.
The Statement of Objects and Reasons appended to Amendment Bill
expressly states as follows :
"Whereas
there are a large number of educated unemployed youths in Nagaland registered
in the Employment Exchanges of Nagaland, who are in search of white collared
employment, particularly under the Government sector;
And
whereas, such white collared employment opportunities outside the Government
sectors is very negligible due to less presence of organized private sector,
and the employment avenues in the Government sector is also already saturated;
and new
job opportunities, in the Government sector arising out of normal retirement
vacancies, 11 (1988) 3 SCC 382 3 or creation of new jobs are inadequate to
cater to the rising expectations of the educated youth for white collared
employment;
And
whereas, the State Government, being a welfare State, considers it necessary
that job opportunities under the Government sector should be shared by the
citizens in a more equitable manner, and that this objective can be better
achieved by fixing the upper age limit for retirement from Government service,
as well as by setting a limit on the maximum number of years a Government
servant may be allowed to be in Government service;
Therefore,
the State Government considers it expedient to introduce a bill in the State
Assembly that would set a limit on the number of years a person may be allowed
to be in the service of the State Government, by fixing the upper age limit, as
well as the maximum length of service for any person to be in Government
employment."
39.
Section 3 as substituted by 2nd Amendment Act, 2009 is designed to
lay down a general framework of retirement policy. It seeks to put a cap on the
number of years an employee may be allowed to be in the service of the State
Government in order to make available job opportunities in a more equitable
manner to its educated youth. In the counter affidavit filed by the State
before this Court in opposition to the SLP, the impugned clause has been principally
sought to be justified on the following grounds :
3 7
Nagaland is a small State, and industrially and economically, the State is in
disadvantageous position.
7 The
avenues of employment in the State is strictly limited. There are about 3 lac
educated unemployed youths waiting for their employment under the State.
7 With
the raising of retirement age from 57 to 60 years, it became necessary for the
State to ensure and provide reasonable avenues of employment to a large body of
educated youth.
7 On
delicate end fine balancing of the competing interest of different groups,
namely, people waiting for employment and those already in employment, the
State Government evolved an additional mode of retirement, i.e. completion of
35 years of service.
7 Long
period of service of the existing employees has resulted in sense of
frustration and stagnation amongst large number of educated unemployed youth.
These
were the grounds set up by the State in the counter affidavit before High Court
as well.
40.
It is appropriate at this stage to notice the view of the High
Court in the impugned order. The High Court said :
"The
ratio of the decision in Yeshwant Singh Kothari (supra) is contained in para 11
of the judgment. Retirement on attaining a particular age or alternatively on
completion of a specified number of years of service, so long the number of
years prescribed is not unreasonably small, can form a legally valid basis for
framing of a retirement policy. This, to our mind, is the true ratio of the
judgment in Yeshwant Singh Kothari (supra). The discussions in para 12 of the
judgment, particularly, those pertaining to uniform retirement age of 58 was in
the context of the 3 facts of the case before the Supreme Court and the view
taken with regard to the difference between a nationalized bank and a
subsidiary bank has to be confined to the facts of the particular case. If we
are correct in identifying the true ratio of the judgment in Yeshwant Singh
Kothari (supra), we do not see any reason why the same cannot be per se made
applicable to the employees under the State, if the State so decides. In this
connection, we must also keep in mind that the observations of the Apex Court
in para 7 of the judgment in Nagaraj (supra) with regard to the low age of
retirement was rendered in a situation where the Apex Court was considering the
question of reduction of the retirement age from 58 to 55. In Nagaraj (supra),
the Apex Court had no occasion to deal with the alternative rule of retirement,
namely, upon completion of a specified number of years of service. In fact, we
may very well take the view that what has been introduced by the second
amendment by prescription of the alternative Rule of retirement is not a age of
retirement but retirement on completion of 35 years of service which is an
entirely independent yardstick.
Retirement
of an individual at the age of 53/54 years by adoption of the said yardstick is
a consequence not of attaining a particular age but of completing the
prescribed period of service.
21......The
argument advanced on behalf of the petitioners that the Second Amendment Act
infringes Article 14 and 16 of the Constitution by prescribing a low retirement
age has already been dealt with in the discussions that have preceded. We have
also held that prescription of length of service of 35 years cannot be said to
be unreasonably short or small to bring about a situation of arbitrariness or
unreasonableness, as has been contended on behalf of the petitioners.
We have
also held that retirement at the age of 53/54 years on completion of 35 years
of service 3 is a consequential effect of completion of the prescribed period
of service......
22.....The
rule of retirement on completion of 35 years of service has relevance to
employees who have joined service at an age below 25 years and the prescription
with regard to retirement at the age of 60 years is in respect of the persons
joining service at the age of 25 and thereafter.
The above
two categories of employees, though performing similar duties and may be
identically placed otherwise, can still be reasonably understood to form two
different classes to whom application of two rules of retirement will not
violate Article 14. The doctrine of equality enshrined by Article 14 of the
Constitution is not necessary to be nor it is capable of being applied with
mathematical exactitude and some amount of advantage or dis-advantage to
persons who may seemingly appear to be equally placed can occur in a given
situation. In the present case, persons joining Government service after 25
years of age, say at 30 or 35 years, though may retire at 60, will have a
lesser period of service than the persons who may retire at an earlier age by
virtue of the rule of retirement on completion of 35 years of service. Each and
every instance of such advantage and corresponding dis- advantage will not
attract Article 14. In fact, uniformity to the extent possible, thereby,
enhancing the concept of equality has been sought to be brought in by the
Second Amendment Act by prescribing retirement on completion of 35 years of
service.
23.......That
apart, the materials placed before the Court along with the counter affidavit
of the respondent State indicates that the policy decision with regard to
retirement on completion of 35 years of service brought about by the Second
Amendment Act was preceded by an elaborate and indepth study of the possible
consequences of introduction of the said policy 3 and the same is the result of
a conscious attempt to balance different shades of opinion and interests."
41.
We find ourselves in agreement with the aforesaid view of the High
Court. It cannot be overlooked that the whole idea behind the impugned
provision is to create opportunities for employment and check unemployment. The
impugned provision is aimed to combat unrest amongst educated unemployed youth
and to ensure that they do not join underground movement. As observed by this
Court in State of Maharashtra v. Chandrabhan12, public employment opportunity
is national wealth in which all citizens are equally entitled to share. In our
opinion the legislation of the kind we are concerned with must be regarded as
establishing the government policy for retirement from public employment based
on age or length of service to achieve a legitimate aim in public interest to
permit better access to employment to large number of educated youth in the
State and for the purpose of curbing the unemployment. The legitimacy of such
an aim of public interest cannot be reasonably called into question. In any
case, the impugned provision founded on peculiar considerations of 12 AIR 1983
SC 803 3 the State does not appear to be unreasonable nor it smacks of any
arbitrariness. Moreover, the impugned provision is in consonance with the legal
position highlighted by this Court in Yeshwant Singh Kothari1 and K. Nagaraj2
and as stated in K.
Nagaraj2,
that while testing 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. Such an exercise
is within the domain of the Legislature. By the impugned provision, the
Legislature, after balancing the competing interest of different groups, has
sought to open avenues of employment for a large number of educated youth in
the State. From the material placed on record it cannot be said that impugned
provision has been enacted without any data and consideration of broad aspects
of the question.
42.
We are not impressed by the argument of the appellants that
impugned provision is arbitrary not only from the point of view of the
employees as a whole but also from the point of view of public interest since
the public at large shall be deprived of the benefit of the mature experience
of the senior 3 government employees. If the State Government felt that it was
not fair to deny the large number of educated youth in the State an opportunity
of public employment because of existing provisions of retirement from public
employment and accordingly decided to have the impugned provision enacted
through the legislative process, we are afraid, in the guise of mature
experience, such provision may not be held to against public interest and
arbitrary.
43.
During the course of arguments, on behalf of the State a statement
was submitted that indicated that 3098 employees retired from October 31, 2009
to December 31, 2009 on completion of 35 years of service although they had not
completed the age of 60 years; of 3098 employees, 181 retired at the age of 53
years and 512 retired at the age of 54 years. The statement thus indicated that
percentage of employees retiring at the age of 53 is 5.84 per cent and those
retiring at the age of 54 years is 16.52 per cent during the aforesaid period.
It further transpired therefrom that 145 employees joined service at the age of
9 to 17 years.
44.
The aforesaid position, however, has been disputed by the
appellants. According to them 4680 employees at different age retired upto
March 31, 2010. The statement annexed with the written arguments on behalf of
the appellants in this regard is as follows :
"
Age
Number Percentage Below 53 256 5.5 53 429 9.5 54 757 16 55 1167 24 Above 55
2071 45 Total 4690 (4680- sic) "
The
appellants' contention is that 31 per cent employees retired at the age of 54
and below which constitutes a substantial section of the total retirees and
that also shows that the impugned enactment is arbitrary.
45.
Insofar as factual aspect is concerned, we have no justifiable
reason to disbelieve the statement submitted by the State Government indicating
that 3098 employees retired on completion of 35 years of service with effect
from October 31, 2009 to December 31, 2009. There is variation because 4
appellants have given the figures of the employees who retired upto March 31,
2010. Be that as it may, it appears that most of the employees retired at the
age of 54 and above and the persons retiring at the age of 53 are only 5.84 per
cent. The persons retiring at the age of 52 and below are those who joined the
Government service at the age of 9 to 17 years.
Merely
because some employees had to retire from public employment on completion of 35
years of service although they have not completed 55 years of age does not lead
to any conclusion that the impugned enactment is arbitrary, irrational, unfair
and unconstitutional. The fact that provision such as the impugned provision
that allows the retirement from public employment on completion of 35 years'
service is not to be found in other States is of no relevance. As a matter of
fact, retirement policy concerning public employment differs from State to
State. Kerala retires employees from public employment at the age of 55 years.
In any case there is nothing wrong if the legislation provides for retirement
of the government employees based on maximum length of service or on attaining
particular age, whichever is earlier, if the 4 prescribed length of service or
age is not irrational.
46.
The appellants' contention that alternative method of retirement
by way of length of service would result in different age of superannuation of
employees holding the same post depending upon their age of entry into service
and would be manifestly violative of Articles 14 and 16 of the Constitution is
noted to be rejected. Suffice it to say that alternative mode of retirement
provided in the impugned provision is applicable to all State Government
employees. There is no discrimination.
The
impugned provision prescribes two rules of retirement, one by reference to age
and the other by reference to maximum length of service. The classification is
founded on valid reason.
Pertinently,
no uniformity in length of service can be maintained if the retirement from
public employment is on account of age since age of the government employees at
the time of entry into service would not be same. Conversely, no uniformity in
age could be possible if retirement rule prescribes maximum length of service.
The age at the time of entry into service would always make such difference. In
our view, challenge to the impugned provision based on the aforesaid ground
must fail.
47.
As regards judgment of the Gauhati High Court dated January 18,
1993, suffice it to say that the said judgment does not lay down the correct
legal position. That judgment is in direct conflict with the judgment of this
Court in Yeshwant Singh Kothari1 where this Court upheld the provision for
retirement which was to the effect, `an officer shall retire from the service
of the Bank on attaining the age of 58 years or upon the completion of 30
years' service, whichever occurs first'.
Unfortunately,
the decision of this Court in Yeshwant Singh Kothari1 although earlier in point
of time was not brought to the notice of Gauhati High Court. This might have
happened because of short time gap between the two judgments; the judgment in
Yeshwant Singh Kothari1 was delivered by this Court on January 14, 1993 while
Single Judge of the Gauhati High Court pronounced judgment on January 18, 1993.
Had the judgment of this Court in Yeshwant Singh Kothari1 been shown, ought we
know what would have been the view of the High Court. Be that as it may, the
judgment of this Court in Yeshwant Singh Kothari1 holds the field.
Conclusion
4
48.
In the light of the foregoing considerations, we hold that a
provision such as that at issue which prescribes retiring the persons from
public employment in the State of Nagaland on completion of 35 years' service
from the date of joining or until attaining the age of 60 years, whichever is
earlier, does not suffer from the vice of arbitrariness or irrationality and is
not violative of Articles 14 and 16 of the Constitution. The appeal has no
merit and is dismissed with no order as to costs.
..............................J (J. M. Panchal)
.............................J (R. M. Lodha)
New Delhi.
July 6, 2010.
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