PETITIONER: P. RADHAKRISHNA NAIDU & OTHERS Vs. RESPONDENT: GOVERNMENT OF ANDHRA PRADESH AND OTHERS DATE OF JUDGMENT09/12/1976 BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) BEG, M. HAMEEDULLAH CITATION: 1977 AIR 854 1977 SCR (2) 365 1977 SCC (1) 561 ACT: Constitution of India, Articles 16, 32 and 311, Govern- ment servant's compulsory retirement, whether violates Art. 16--Ban on re-employment by semiGovernment Institutions, whether within the scope of Art. 32--Availability of alter- native remedy. HEADNOTE: On the completion of their 25 years of qualifying serv- ice, the appellants were compulsorily retired in public interest, and were to receive 3 months salary in lieu of notice. Thereafter, the respondent Government passed a general order forbidding re-employment of compulsorily retired persons in semi-Government institutions. The appellants filed, writ petitions under Art. 32 of the Con- stitution challenging the compulsory retirement orders as violative of Art. 16 and the ban on such re-employment as a stigma under Art. 311. Dismissing the petitions, the Court, HELD: (1) Article 16 does not prohibit the prescription of reasonable rules for compulsory retirement. The provi- sion for compulsory retirement in public interest after the completion of a certain period of qualifying service or attainment of a certain age, applies to all Government servants and as such it is not open to challenge either under Art. 14 or under Art. 16, and the individual applica- tion of the order in a given case cannot offend Art. 16. [367-D-H] T. C. Shivacharana Singh V. State of Mysore A.I.R. 1965 S.C. 280, applied. Union of India v. Col. J.N. Sinha, & Anr. [1971] 1 S.C.R. 791; Tara Singh etc. v. State of Rajasthan & Ors. [19753 3 S.C.R. 1002, and B. Narayana Murthy & Ors. v. State of Andhra Pradesh etc. [1971] Supp. S.C.R. 741, referred to. (2) The Government order forbidding re-appointment of compulsorily retired persons as a stigma within the meaning of Article 311 is not an infringement of fundamental rights, and the enforcement of violation of Article 311 does not come within the scope of Article 32. The ban is not against anyone individually and has a reasonable basis and some relation to the suitability for employment or appointment to an office. [367A-B,369 A-B] Krishna Chander Nayar v. Chairman, Central Tractor Organisation & Ors. [1962] 3 S.C.R. 187; Shyam Lal v. State of U.P. [1955] 1 S.C.R. 26; Tata Engineering and Locomo- tive Company Ltd. v. Assistant Commissioner of Commercial Taxes & Anr. [1967] 2 S.C.R. 751 and Hukumchand Mills Ltd. v. The State of Madhya Bharat & Anr. [1964] 6 S.C.R. 857, referred to. (3) The Government of Andhra Pradesh has by an adminis- trative order constituted a review committee for each department to review orders of retirement it public interest and to revoke and modify the same, if necessary. petitioners made representations to the review committee, and are not justified in applying to this Court. [370A-B] JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 97 of 1976.
(Under Article 32 of the Constitution of India).
S. Ramchandra Rao and B. Kanta Rao for the appellants
in W.P. No. 97/76.
S. Ramachandra Rao and ,A. Subba Rao, for the appel-
lants in W.P. No. 114/76.
366
Niren De, Attorney General, P.p. Rao, Sr. Advocate and
T.V.S. Narasimhachari, for the respondents in W.P. No.
97/76.
P. Parmeshwara Rao, and G. Narayana Rao, for respond-
ents in W.P. No. 114/76.
The Judgment of the Court was delivered by
RAY, C.J. These writ petitions challenge the compulsory
retirement of the petitioners. The petitioners were retired
compulsorily under order dated 23 September, 1975.
The order dated 23 September 1975 in the case of the
first petitioner in writ petition No. 97 of 1976 may be
referred to as typical of orders in the case of other peti-
tioners. This order stated first that the said first peti-
tioner completed 25 years of qualifying service on 24th
July, 1975. The order next stated that the Commissioner of
Police being the authority to make a substantive appointment
to the post of Inspector of Police is of opinion that it is
in public interest to retire the persons mentioned in the
order.
The order thereafter states that in exercise of the
powers conferred by Clause (a) of sub-rule (2)/sub-rule 2(A)
read with Clause (a) of sub-rule (2) of rule 3 of the
Andhra Pradesh Liberalised Pension Rules, 1961/sub-rule (1)
of rule 2/rule 3 read with sub-rule (1) of rule 2 of the
Andhra Pradesh Government Servants Premature Retirement
Rules, 1975, the Commissioner of Police directs that the
person mentioned in the order shall retire in public inter-
est from service with effect from the date of service of the
order and that he shall be paid a sum equivalent to the
amount pay and allowances for 3 months in lieu of notice
calculated at the same rate at which he was drawing immedi-
ately before the date on which the order is served on him.
The Government of Andhra Pradesh passed a general order
dated 28 November, 1975. In that Government order it is
stated that in several Government orders recited therein,
orders for the premature retirement of the Government serv-
ants in public interest had been issued in those cases after
giving 3 months previous notice in writing or after giving 3
months salary in lieu of such notice. The 28 November, 1975
order next states that an instance came to the notice of the
Government that a Government servant after compulsory re-
tirement as per orders mentioned above was re-appointed in
a cooperative institution as executive officer. Though
the reappointment of the incumbent was in the Semi-Govern-
ment Institution, his re-appointment was stated to be irreg-
ular and contrary to the intention of the Government in
retiring corrupt and inefficient persons. The Government
order directed that all the Departments of the Secretariat,
all Heads of Department, and all Collectors etc., should
ensure that on no account persons who are retired premature-
ly in pursuance of orders issued by the Government should be
re-instated or re-appointed in any Semi-Government or
Quasi-Government Institutions.
367
The petitioners challenged the compulsory retirement
orders as violation of Article 16. The petitioners also
challenged the Government order forbidding re-appointment of
compulsorily retired persons in Semi-Government or Quasi-
Government Institutions as a stigma within the meaning of
Article 311.
At the outset it should be stated that enforcement of
violation of Article 311 does not come within the scope of
Article 32. The challenge to the Government order forbid-
ding re-appointment of compulsorily retired persons as a
stigma within the meaning of Article 311 is, therefore, not
an infringement of fundamental rights.
The petitioners challenged the orders of compulsory
retirement as an infraction 0f Article 16. It is not known
how the petitioners have been discriminated against other
persons because no such person is impleaded as a respondent
and there are no allegations to that effect.
During the subsistence of the Presidential Order issued
under Article 359(1 ) it is not competent to invoke Article
14 for enforcement of any fundamental rights. Articles 14
and 16 are to a certain extent overlapping in regard to
rights of equality.
Equality of opportunity for all citizens in matters
relating to employment is not violated by provisions for
compulsory retirement of Government servants in public
interest after the completion of a certain period of quali-
fying service or attainment of a certain age. This Court has
consistently taken the view that compulsory retirement does
not involve any civil consequences. See Union of India v.
Col. J. N. Sinha and Another(1) and Tara Singh etc. v. State
of Rajasthan and Ors.(3)
A writ petition under Article 32 can lie only for in-
fringement of fundamental rights. See B. Narayana Murthy
and Ors. etc. v. State of Andhra Pradesh etc.(3) The
general order for compulsory retirement is applicable to all
employees. The individual application of the order in a
given case cannot offend Article 16. It cannot be suggested
that an order for compulsory retirement in the case of one
person is denial of equality of opportunity relating to
employment because another person in employment has not been
compulsorily retired.
Article 16 does not prohibit the prescription of reason-
able rules for compulsory retirement. A question arose in
T.C. Shivacharana Singh v. State of Mysore (4) whether a
rule providing for compulsory premature retirement from
Government service violates Article 16. This Court said that
the law in relation to the validity of rules permitting
compulsory premature retirement from Government ser-
(1) [1971] 1 S.C.R. 791. (2) [1975] 3 S.C.R. 1002.
(3) [1971] Supp S.C.R. 741. (4) A.I.R. 1965 S.C. 280.
368
vice is well-settled by prior decision of this Court which
does not require to be reconsidered. The ratio is that the
provision for compulsory retirement in public interest
applies to all Government servants and as such it is not
open to challenge either under Article 14 or under Article
16.
In Shyam Lal v. Stale of U.P.(1) the appellant had been
compulsorily retired. The order was challenged as violating
Article 311. This Court held that there is no stigma in-
volved in compulsory retirement. Compulsory retirement
does not amount to a dismissal or removal and, therefore, it
is not within the vice of Article 311.
One of the petitioners, namely, the first in writ peti-
tion No. 97 of 1976, challenged the order of compulsory
retirement on the ground that he did not complete 25 years
of service. He alleged that he was appointed on 10 Sep-
tember, 1952 and, therefore, the order of compulsory retire-
ment dated 23 September, 1975 is bad. The State on the
other hand contends that the correct date of appointment of
the first petitioner is 25 July, 1950. In writ petitions
the Court does not go into disputed questions of fact, like
date of appointment as in the present case. In Tata Engi-
neering and Locomotive Company Ltd. v. Assistant Commission-
er of Commercial Taxes & Anr. (a) this Court said that the
exercise of jurisdiction in writ matters is not desirable if
facts have to be found on evidence. This Court has also
said that there may be exceptions. One such exception is
when action is taken under an invalid law or arbitrarily
without the sanction of law. In the present case there is
no aspect of either kind.
Further it has to be observed that in the present writ
petitions several petitioners have combined as petitioners.
Their causes of action are separate and independent. Each
is alleged to be an instance of individual assertion of
constitutional right in regard to facts and circumstances of
each case. Where several petitioners combine for alleged
violation of their rights, it is difficult for court to go
into each and every individual case. In the present case
the affidavit evidence on behalf of the State is preferred
and, therefore, the first petitioner cannot agitate the
question of disputed date of appointment.
In Krishna Chandra Nayar v. Chairman, Central Tractor
Organization and Others(3) this Court considered the imposi-
tion of a ban against one man, namely, the petitioner in
that case from being ever taken into Government service. He
was a temporary servant and his services were terminated by
giving him pay and allowances in lieu of notice for one
month. This Court found that case to be one of arbitrary
imposition of ban against the employment or appointment one
individual to an office.
(1) [1955] 1 S.C.R. 26. (2) [1967] 2 S.C.R. 751.
(3) [1962] 3 S.C.R. 187.
369
Krishna Chander’s case (supra) is of no aid to the
petitioners in the present case. The ban is not challenged
here. In Krishna Chander’s case (supra) the ban was chal-
lenged as an arbitrary act against one individual. In the
present case the ban is not against anyone individually but
it is not to employ in Quasi-Government service or Semi-
Government service, persons who are compulsorily retired
from Government service. The ban has a reasonable basis and
has some relation to the suitability for employment or
appointment to an office. When compulsory retirement is
made in public interest it will be an exercise in futility
if Government servants who are compulsorily retired are
again employed in Government service or Semi-Government
service or Quasi-Government service.
The petitioners challenged the orders for compulsory
retirement also on the ground that reference to so many
rules was made and, therefore, it was not possible for the
petitioners to know under what provision the orders for
compulsory retirement had been made. It is not open to the
petitioners to challenge the orders on that ground. The
orders specifically mention that compulsory retirement is
made in public interest. The State affidavit evidence is
that petitioners No. 4 and 5 in writ petition No. 97 of
1976 are governed by Hyderabad Civil Service Regulations and
the rest of the petitioners are governed by Andhra Pradesh
Liberalised Pension Rules, 1961. Rule 292 of the Hyderabad
Civil Service Regulations and sub-rule (2) (a) of rule B of
the Andhra Pradesh Liberalised Pension Rules, 1961 are
similar. Both the rules confer power on the authority to
require Government servant to retire in the public interest
from service on the date on which he completes 25 years of
qualifying service or attains 50 years of age. Rule 2(1) of
the Andhra Pradesh Government Servants’ Premature Retirement
Rules, 1975 is also worded in similar language. The word-
ing of the rules relating to retirement in public interest
is identical in all the three sets of rules mentioned above.
The mere fact that three different rules. were mentioned
in the impugned orders without scoring out the rules which
are not applicable to a petitioner in one case cannot be any
grievance for the reason that in each case the relevant rule
is identically worded. The omission on the part of the
officers competent to retire the petitioners in not scoring
out the rules which are inapplicable to a particular
individual does not render the order bad. The reason is
that one of the rules is applicable to him and the omission
to strike out the rules which are not applicable will not in
any manner affect the applicability of the rule mentioned.
Further this Court has taken the view that a wrong reference
to power will not vitiate any action if it can be justified
under some other power under which the Government can law-
fully do the act. See Hukumchand Mills Ltd. v. The State of
Madhya Bharat and Another(1). In the present case the valid
rule is mentioned in each case.
(1) [1964] 6 S.C.R. 857.
370
The Government of Andhra Pradesh has by an administra-
tive order constituted a review committee for each depart-
ment to review orders of retirement in public interest and
to revoke and modify the same, if necessary. The petition-
ers made representations to the review committee. The
petitioners yet choose to come to this court. The petition-
ers are not justified in applying to this court.
The petitioners obtained rules in these two cases
during the vacation. A similar matter came before this
Court on 29 April, 1976 and this Court did not issue any
rule. If the attention of this Court had been drawn to that
order, perhaps no rule would have been issued in these
matters.
The Andhra Pradesh Administrative Tribunal Order, 1975
confers power on the Tribunal to exercise jurisdiction with
respect to appointment, allotment or promotion and other
conditions of service of such persons. It is open to a
person who complains about an order of compulsory retirement
to approach the Tribunal in a given case.
For the foregoing reasons, the writ petitions are dis-
missed. There will be no order as to costs.
M.R. Petitions
dismissed.
371
