PETITIONER:
K. NAGARAJ & ORS. ETC. ETC.,
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH & ANR. ETC.
DATE OF JUDGMENT18/01/1985
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
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 reirospectively, 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
JUDGMENT:
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 superannua
591
tion. 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
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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.
611