{"id":17554,"date":"1985-01-18T00:00:00","date_gmt":"1985-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-nagaraj-ors-etc-etc-vs-state-of-andhra-pradesh-anr-etc-on-18-january-1985"},"modified":"2018-09-21T02:30:00","modified_gmt":"2018-09-20T21:00:00","slug":"k-nagaraj-ors-etc-etc-vs-state-of-andhra-pradesh-anr-etc-on-18-january-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-nagaraj-ors-etc-etc-vs-state-of-andhra-pradesh-anr-etc-on-18-january-1985","title":{"rendered":"K. Nagaraj & Ors. Etc. Etc vs State Of Andhra Pradesh & Anr. Etc on 18 January, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K. Nagaraj & Ors. Etc. Etc vs State Of Andhra Pradesh & Anr. Etc on 18 January, 1985<\/div>\n
Equivalent citations: 1985 AIR 551, \t\t 1985 SCR (2) 579<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V. ((Cj)<\/div>\n
           PETITIONER:\nK. NAGARAJ & ORS. ETC.\tETC.,\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ANDHRA PRADESH & ANR. ETC.\n\nDATE OF JUDGMENT18\/01\/1985\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nPATHAK, R.S.\nMUKHARJI, SABYASACHI (J)\n\nCITATION:\n 1985 AIR  551\t\t  1985 SCR  (2) 579\n 1985 SCC  (1) 523\t  1985 SCALE  (1)31\n CITATOR INFO :\n R\t    1985 SC 724\t (15)\n D\t    1986 SC 210\t (16,17,26,29)\n F\t    1987 SC 415\t (16)\n RF\t    1987 SC1676\t (16)\n R\t    1990 SC 334\t (98,99)\n RF\t    1992 SC1277\t (47,48,97)\n\n\nACT:\n       Civil Service-Age of superannuation-Age reduced to 55\nyears for all Government employees, other than those in last\ngrade service, in accordance with the election manifesto. to\nprovide greater\t employment  opportunities  to\tthe  youths-\nWhether\t the   order  and  Notifications  are  unreasonable,\narbitrary and  violative articles 14,16, 21 and 300-A of the\nCanstitution-G.O.M.S- 35 (GAD, dated 8.2 83 and Notification\nread with  the Andhra  Pradesh Public Employment (Regulation\nof Conditions  of Service)  Ordinance, 1983 omitting Proviso\nto Rule\t 2, 56\tof the\tAP Fundamental Rules and Rule 231 of\nthe  Hyderabad\t Civil\tService\t Rule-\"Retirement  benefits\"\nmeasuring of-Limits  of judicial  Review of Policy decisions\nof the\tState-Mala fides, burden of proof-Transferred Malice\nin unknown in the field of legislation.\n\n\n\nHEADNOTE:\n     A new  political party  called Telugu  Desam  swept  to\npower in  the 1983 Andhra Pradesh Assembly elections, within\na month\t of assuming  office, the  new Government  of Andhra\nPradesh, passed\t an order No. G.O.M.S. 36 GAD Services dated\n8.2.83 (appending  two Notifications)  stating that in order\nto provide greater employment opportunities to the youths it\nhad decided  to reduce\tthe age\t of  superannuation  of\t all\nGovernment employees,  other than  those in  the last  grade\nservice, from  58 to  55 years\twith elect from February 28,\n1983.  Over   18,000  employees\t and  10,000  public  sector\nemployees were superannuated, as a result of the order.\n     The aggreived employees, therefore filed writ petitions\nand challenged the constitutional validity of the said order\nand Notifications  under Articles 14, 16, 21 and 300A of the\nConstitution. According to the petitioners: (i) there was no\nbasis at  all for  reducing the age of retirement from 58 to\n55, as\tnothing had  happened since October 29,1979 on which\ndate the  age limit  was raised\t from 55  to 58\t years; (ii)\nproviding employment  opportunities to\tthe  youths  has  no\nrelevance on  the question  of fixing the age of retirement;\n(iii) the  government had  exercised its  power\t arbitrarily\nwithout having\tregard to  factors which are relevant on the\nfixation of  the age  of retirement; (iv) the government had\nacted unreasonably  in not giving any previous notice to the\nemployees which\t would have  enabled them  to arrange  their\naffairs on  the eve  of retirement;  (v) the  government was\nestopped from reducing the age of retirement to 55 since the\nemployees had  acted on\t the representations made to them in\n1979 by increasing the age of retirement from 55 to 58; (vi)\nas a result of the increase in the age of retirement from 55\nto 58 years in 1979, a vested right had accrued to the\n580\nemployees. which  could be  taken away\tif at all, only from\nfuture entrants\t to the government service; (vii) retirement\nof experienced\tand mature  persons from  government service\nwill result  in grave  detriment to  public services  of the\nState (viii)  the decision  of the  government is  bad for a\ntotal non-application  of the mind to the relevant facts and\ncircumstances bearing  on the  question of age of retirement\nlike increased\tlongevity; and\t(ix) the  government had not\neven  considered the enormous delay which would be caused in\nthe payment  of pensionary  benefits to\t employees who\twere\nretired from service without any pre thought.\n\t      The  respondent  State  filed  two  affidavits\ntraverssing each  and every ground of challenge and asserted\nthat the  age of  retirement was  reduced because \"it is the\nduty of\t the State,  within  the-  limits  of  its  economic\ncapacity and  development to  make effective  provisions  to\nsolve the unemployment problem which has gone upto 17,84,699\nby December  31, 1  982. The contentions of the State  were:\n(i) the\t question of  the  age\tof  superannuation  was\t not\nreferred to  the One-man  Pay Commission  and therefore, its\nrecommendations to  increase the  age from 55 to 58 was only\ncasual not  based on  relevant criteria and has no relevance\nto the\tpresent decision  of the  State to reduce the age of\nretirement; (ii)  as a result of the unwarranted increase in\nthe age of superannuation from 55 to 58 not only was there a\none-third increase  in the  number of  unemployed youths but\nalso the  chances of  promotion of the service personnel had\ndeteriorated  resulting\t  in  wide  spread  frustration\t and\nunemployment: (iii)  the age  of  retirement  was    reduced\nbecause it  is the  duty of  the State, within its limits of\neconomic  capacity   and  development,\t to  make  effective\nprovision to  solve the\t unemployment problem; (iv) the fact\nthat the  average expectation  of life\tis about 70 years is\nnot a  ground  for  increasing\tthe  age  of  retirement  of\nGovernment employees; (v) the general trend was for reducing\nthe age\t of retirement;\t (vi) the  Government of  Kerala and\nKarnataka  had\treduced\t the  age  of  retirement  of  their\nemployees to  55 and  in some other States in India also the\nage of\tretirement is  55, (vii)   the\tpresent decision was\ntaken by  the Government  in order to fulfill its commitment\nthat it\t will make  welfare measures in order to improve the\nlot of\tthe common man, and particularly, in order to afford\nopportunity to\tqualified  and\ttalented  unemployed  youths\nwhose number  was increasing  enormously due to expansion of\neducational  facilities;  (viii)  the  present\tmeasure\t was\nintended to  have a  salutory  effect  on  the\tcreation  of\nincentives to the deserving employees; and (ix) the question\nas regards  the age  of retirement  is a  pure\t question of\ngovernmental policy  affording no  cause of  action  to\t the\npetitioners to file the writ petitions.\n\t   Rule Nisi was issued on the writ petitions by the\ncourt on  February  25,1983.  The  Legislative\tAssembly  of\nAndhra Pradesh\twas prorogued  on April 9, 1983. On the very\nnext day,  i.e. April  10,  1983  the  Governor\t promulgated\nOrdinance No.  5 of  1983 called  the Andhra  Pradesh Public\nEmployment (Regulation\tof conditions of Service) Ordinance,\n1983 by\t which proviso\tto Rule\t 2 and Rule 56 of the Andhra\nPradesh Fundamental  Rules and\tRule 231  of  the  Hyderabad\nCivil  Service\t Rules-the  rule   governing  the   age\t  of\nretirement- were omitted.\n\t Dismissing the petitions, the Court\n^\n\t  HELD: 1.1 Public interest demands that there ought\nto be  an age  of retirement in public services. The poin of\nthe peak level of efficiency is bound to differ\n581\nfrom individual\t to individual\tfor that  reason.  A  common\nscheme of general  application governing superannuation has,\ntherefore,  to\t be  evolved  in  the  light  of  experience\nregarding performance  levels  of  employees,  the  need  to\nprovide employment  opportunities to the younger sections of\nsociety and the need to open up promotional opportunities to\nemployees  at  the  lower  levels  early  in  their  career.\nInevitably, the\t public administrator  has to counterbalance\nconflicting   claims\twhile\tdetermining   the   age\t  of\nsuperannuation. On  the one  hand, public services cannot be\ndeprived of  the benefit  of the mature experience of senior\nemployees; on  the other  hand, a  sense of  frustration and\nstagnation cannot be allowed to generate in the minds of the\njunior members\tof the\tservices and the younger sections of\nthe society.  The balancing  of these  conflicting claims of\nthe different  segments of society involves minute questions\nof  policy   and  considerations   of  varying\t vigour\t and\napplicability which must, as far as possible, be left to the\njudgment of the executive and the legislature. [\n\t\t\t\t\t      90F-H; 591A-B]\n      E.P.  Royappa v. State of Tamil Nadu,<\/a> [1974] 2 SCR 348\nreferred to.\n      1.2 While resolving the validity of policy issues like\nthe age of retirement, it is not proper for the Court to put\nthe conflicting\t claims in  a sensitive\t judicial scale\t and\ndecide the issue by finding out which way the balance tilts.\nThat  s\t  an  exercise\t which\tthe  administrator  and\t the\nlegislature have to undertake. This is so because often, the\nCourt has  no satisfactory  and effective  means  to  decide\nwhich alternative,  out of  the many  competing ones, is the\nbest in the circumstances of a given case. [591E; C]\n      1.3  It is  not that  every question  of policy is out\nside the scope of judicial review or that necessarily, there\nare no\tmanageable standards  for reviewing  any  and  every\nquestion of  policy. If the age of retirement is fixed at an\nunreasonably low  level so  as\tto  make  it  arbitrary\t and\nirrational, the\t Court's interference  would be\t called\t for\nthough\tnot  for  fixing  the  age  of\tretirement  but\t for\nmandating a closer consideration, of the matter. [591C-D]\n      2.  Fixing the  age of  superannuation by\t reducing it\nfrom 58\t to 55 would be unreasonable or arbitrary if it does\nnot accord with the principles which are relevant for fixing\nthe age\t of retirement or if it does not subserve any public\ninterest. On  the other hand, the Ordinance shall have to be\nheld  valid,  if  the  fundamental  premise  upon  which  it\nproceeds  has  been  accepted  as  fair\t and  reasonable  in\ncomparable situations,\tif its\tprovisions bear\t nexus\twith\npublic interest\t and if\t it  does  not\toffend\tagainst\t the\nConstitutional limitations  either on legislative competence\nor on  the legislative\tpower to  pass laws  which  bear  on\nfundamental rights. [591G-H: 592A]\n      3.1 The report of the One-man Pay Commission has to be\nkept out  of consideration  in so far as the question of the\nage of\tretirement is  concerned. The  contention  that\t the\nreversal of  the well  considered decision of the Commission\nto raise  the age  to 58  within a  short span\tof less than\nthree years  and a  half, as nothing had happened in between\nwarranting a  departure from  it, is  fallacious because the\nquestion, as  to whether  the age  of retirement  should  be\nraised which was then 55, was not referred to the Commission\nat all in the terms of reference. Further the decision which\nthe Government\ttook later to increase the age of retirement\nfrom 55\t to 58\tyears was not based on the recommendation of\nthe Commission. [595D; C]\n582\n     3.2 The  Power  of\t a  Commission\tto  inquire  into  a\nquestion must depend upon the terms of the reference and not\nupon the statements made on the floor of the House. [595A]\n      3.3  A review of retirement benefits would undoubtedly\ncover the  examination of  the rules  or schemes relating to\npension, provident fund, gratuity, encasement of leave etc.,\nbut it\tcannot include\tthe power to examine the question as\nregards the  fixation of  the age  of retirement. Therefore,\nparagraph 9 47 of the report of One-man Pay Commission which\nbegins by  saying that\t\"since the terms of reference of the\nCommission cover  the  review  of  the\texisting  retirement\nbenefits, the  reference would\tnaturally include the age of\nretirement\" was\t an erroneous and unwarranted reading of the\nterms of the reference. [594F; E]\n      4.1  No law can be said to be bad because it is passed\nimmediately on the assumption of office by a new Government.\nWere this  so, every decision taken by a new Government soon\nafter assumption  of office  shall have\t to be\tregarded  as\narbitrary. I 595E]\n       4.2   The  reasonableness   of  a   decision  in\t any\njurisdiction, does  not depend upon the time which it takes.\nA delayed  decision of\tthe Executive  can also\t be  bad  as\noffending against  the provisions of the Constitution and it\ncan be\tno defence to the charge of unconstitutionality that\nthe decision  was taken\t after the  lapse of  a\t long  time.\nConversely, decisions  which arc  taken promptly  cannot  be\nassumed to be bad because they arc taken promptly. [595F-G]\n      4.3  Every decision  has to  be examined\ton  its\t own\nmerits, in  order to  determine whether\t it is\tarbitrary or\nunreasonable. Here,  the State\tGovernment had\tthe relevant\nfacts as  also the  reports of the various Central and State\nPay Commissions\t before it,  011 the  basis of\twhich it had\ntaken a\t reasonable decision to reduce the age of retirement\nfrom 58\t to 55.\t The aid  and assistance  of a\twell trained\nbureaucracy which  notoriously, plays  an important part not\nonly in\t the implementation  of policies but in their making\nwas also  available to\tthe Government. Therefore, the speed\nwith which  the decision  was taken  cannot,  without  more,\ninvalidate it  on the ground of arbitrariness. [59-G; 596.A-\nB]\n      5.1  By and  large, in  the formulation  of matters of\nlegislative policy,  the  government  of  the  day  must  be\nallowed\t a  free,  though  fair\t play  and  there  need\t not\nnecessarily be\ta uniform  age of retirement all over India.\nThough\timmutable  considerations  which  are  generally  or\nuniversally true like increased life expectation are as much\nvalid for  Jammu and  Kashmir as for Tamil Nadu, that cannot\njustify the  conclusion that  fixation of the retirement age\nat 55  in Jammu\t and Kashmir  is invalid  since the State of\nTamil Nadu  has fixed  it at 58 or that the age limit should\nbe fixed  at 62\t or 65. There is no one fixed or focal point\nof reasonableness. There can be a large and wide area within\nwhich the  administrator or  the legislator can act, without\nviolating the constitutional mandate of reasonableness. That\nis the\tarea which permits free play in the joints. [596C-D;\nF]\n      5.2 The area between the ages of 55 and 58 is regarded\nin our\tcountry as  a permissible  field  of  operation\t for\nfixing the  are of  retirement. Neither the American nor the\nEnglish notions\t or norms  for fixing the retirement age can\nrender invalid\tthe basis  which is  widely accepted  in our\ncountry as reasonable for that purpose. [597D-E]\n      5.3  On the  basis of  the data furnished in the White\nPaper presented\t to the\t State Legislative Assembly in March\n1983 on the question of \"reduction in\n583\nthe age\t of superannuation from 58 years to 55 years\" by the\nnew Telugu  Desam Party\t controlled  State  Government,\t the\nreduction of  the age  of retirement  from 58  to 55, in the\ninstant case  is  not  hit  by\tArticle\t 14  or\t 16  of\t the\nConstitution and the State Government or the Legislature has\nnot acted arbitrarily or irrationally. The precedents within\nour country  itself for\t fixing the  retirement age at 55 or\nfor reducing it from 58 to 55 and their acceptance depending\nupon the employment policy of the Government of the day make\nit impossible  to lay  down an inflexible rule that 58 years\nis a  reasonable age  for retirement  and 55  is not. If the\npolicy adopted\tfor the\t time being by the Government or the\nLegislature  is\t  shown\t to   violate  recognized  norms  of\nemployment planning,  it would\tbe possible  to say that the\npolicy is irrational since, in that event, it would not bear\nreasonable nexus  with the object which it seeks to achieve.\nThe  reports  of  the  various\tCommissions  show  that\t the\ncreation of  new avenues  of employment\t for the youth is an\nintegral part  of  any\tpolicy\tgoverning  the\tfixation  of\nretirement age.\t Here, the  impugned policy  is actuated and\ninfluenced predominantly by that consideration. [604C-F]\n      However,\tthe question  of age  of  retirement  should\nalways be examined by the Government with more than ordinary\ncare, more than the State Government has bestowed upon it in\nthis case. The fixation. Of age of retirement has minute and\nmultifarious dimensions\t which shape  the lives of citizens.\nTherefore, it is vital from the point of view of their well-\nbeing that  the\t question  should  be  considered  with\t the\ngreatest objectivity and decided upon the basis of empirical\ndata furnished\tby scientific  investigation. What  is vital\nf`or the welfare of the citizens is, of necessity, vital for\nthe survival or the State. Care must also be taken to ensure\nthat the  statistics are not perverted to serve a malevolent\npurpose. [604F-H ]\n      6.  It is\t well settled  that Article  311(2)  of\t the\nConstitution is\t attracted only\t when  a  civil\t servant  is\nreduced in rank, dismissed or removed from service by way of\npenalty, that is to say, when the effect of the order passed\nagainst him  in\t his  behalf  is  to  visit  him  with\tevil\nconsequences. The  termination of  service of an employer on\naccount of  his reaching  the age of superannuation does not\namount to  his removal\tfrom service  within the  meaning of\nArticle 311(2).\t Here there  being no  arbitrariness in\t the\nfixation of reduced retirement age, there is no violation of\nArticle 311(2) of the Constitution, either. [605C; F]\n      Satish  Chandra V\t Union of India[1953] SCR 655; Shyam\nLal v.\tState of  U.P., [1955]\t1 SCR 26; State of Bombay v.\n,Saubhagchand M.  Doshi, [1958]\t SCR  571  ;  Purshotam\t Lal\nDhingra v.  Union of India,<\/a> [1958] SCR 828; P. Balakotiah V.\nUnion of  India, [1958]\t SCR 1052;  Bishun Narain  Misra  v.\nState Union of Uttar Pradesh,<\/a> [1965] 1 SCR 693, relied on.\n      Moti  Ram Deka  v.  General  Manager.  North  Frontier\nRailway, [1964] 5 SCR 683 explained.\n       7.   Though  an\tordinance  can\tbe  invalidated\t for\ncontravention of  the constitutional limitations which exist\nupon the  power of  the State  legislature to  pass laws  it\ncannot be declared invalid for the reason of non-application\nof mind,  any more  than any other law call be. An executive\nact is liable to be struck\n584\ndown on\t the ground  of non-application of mind. Not the act\nof a  Legislature. The\tpower to issue an ordinance is no an\nexecutive power\t but  is  the  power  of  the  executive  to\nlegislate. The\tpower  of  the\tGovernor  to  promulgate  an\nordinance is  contained\t in  Article  213  which  occurs  in\nChapter IV  of Part  VI of  the Constitution. The heading of\nthat Chapter  is \"Legislative  Power of\t the Governor\". This\npower is  plenary within.  its field  like the\tpower of the\nState Legislature  to pass laws and there are no limitations\nupon that  power except those to which the legislative power\nof the State Legislature is subject. [607C; A-B]\n      A.K.  ROY v.  Union of  India. [1982] 2 SCR 272 at pp.\n282, 291;  R K\tGarg v.\t Union of India, [1982] 1 SCR 947 at\npp. 964,  967; High  Court of  Andhra Pradesh  v.  V  V.  S.\nKrishnamurthy,<\/a> [1979]  1 SCR  26; Motiram  Dake\t v.  General\nManager,  North\t  Frontier  Railway,   [1964]  5   SCR\t 683\ndistinguished.\n      8.  If a rule of retirement can be deemed to deprive a\nperson of  his right to livelihood, it will be impermissible\nto provide  for an  age of  retirement at  all. That will be\ncontrary to  public interest because the Slate cannot afford\nthe luxury  of allowing\t Its employees o continue in service\nafter they  have passed the point of peak performance. Rules\nof retirement  do not take away the right of a person to his\nlivelihood: they  limit his right to hold office to a stated\nnumber of years. [608D-E]\n      9.1  The burden  to establish  mala fides\t is a  heavy\nburden to discharge. Vague and casual allegations suggesting\nthat a\tcertain act  was done with an ulterior motive cannot\nbe accepted  without proper  pleadings and  adequate  proof,\nboth  of  which\t are  conspicuously  absent  in\t these\twrit\npetitions.  Besides  the  ordinance  making  power  being  a\nlegislative  power,   the  argument   of   mala\t  fides\t  is\nmisconceived. The  legislature, as a body, cannot be accused\nof having  passed a  law for  an extraneous  purpose. If  no\nreasons are  so stated as appear from the provisions enacted\nby it.\tIts reasons  for passing  a law\t or those  that\t are\nstated in  the Objects\tand Reasons.  Even assuming that the\nexecutive, in a given case, has an ulterior motive in moving\na legislation,\tthat motive cannot render the passing of the\nlaw mala  fide. This kind of 'transferred malice' is unknown\nin the field of legislation. [608G-H; 609A-B]\n\t  9.2 The amendment made to the Fundamental Rules in\nthe exercise of power conferred by Articles 309 by which the\nproviso to  Rule 2  was deleted reirospectively, with effect\nfrom February  23, 1983\t by G.O.M.S.  dated P  17-2-83 was a\nvalid  exercise\t  of  legislative   power.  The\t  rules\t and\namendments made\t under the  proviso to\tArticle 309  can  be\naltered or  repealed by\t the Legislature  but until  that is\ndone the  exercise of  the power  cannot  be  challenged  as\nlacking in authority. [610B-C]\n\t   9.3 It is well-settled that the service rules can\nbe as  much amended, as they can be mader, under the proviso\nto Article  309 and  that, the\tpower to  amend these  rules\ncarries with it the power to amend them retrospectively. The\npower conferred\t by the\t proviso to  Article  309  is  of  a\nlegislative character  and is  to be  distinguished from  an\nordinary rule  making power.  The power to legislate is of a\nplenary\t nature\t  within  the\tfield  demarcated   by\t the\nConstitution  and   it\tincludes   the\tpower  to  legislate\nretrospectively. [609H; 610A-B]\n\t  B.s. Vadera v. Union of India,<\/a> [1968] 3 S.C.R. 575\n582-55, Raj  Kumar   v. Union of India [ 1975] 3 S.C.R. 963,\n965, followed\n585\n\n\n\nJUDGMENT:\n<\/pre>\n
      ORIGINAL\tJURISDICTION: Writ  Petition Nos. 1073-1100,
\n1117-19 1229-95, 142 -1554, 1746-2140, 2155-2271, 2396-2459.
\n1198-1217, 1302-12,  1314-15, 1566-1641,  1140-70,  2360-95,
\n1643-1725,2272-2329,2152,2332,2339,2491,3486-89,  2498-2521,
\n2522, .533-74,2611-2638 and 2531 of 1983.\n<\/p>\n
      (Under Article 32 of the Constitution of India)
\n\t\t\t    AND
\n     Writ Petition Nos. 4218,4571 and 5266-5280 of 1983
\n       Under article 32 of the Constitution of India)
\n\t\t\t    AND
\n\t     Transfer Case Nos. 44-339 of 1983
\n      K.K.  Venugopal S.S Ray, P.P. Rao, V.M. Tarkuade and R
\nK. Garg,  V. Jogayya Sharma, M.P. Rao, Sudarsh Menon, T. V.S
\nN. Churi,  G. Narasimhulu,  A. Subba Rao, M.K.D. Namboodiry,
\nH.S. Guru Raj Rao, S. Markandeya, A.T.M. Sampath, D.K. Garg,
\nNikhil Chandra and A K Panda for the Petitioners.
\n\tL.N.  Sinha,  Attorney\tGeneral,  Anil\tB.  Divan,B.
\nParthasarthi and K.R. Chaudhary for the Respondents.\n<\/p>\n
      G.N. Rao for the State.\n<\/p>\n
      Miss A. Subhashini for the Union.\n<\/p>\n
      The Judgment of the Court was delivered by
\n      CHANDRACHUD,  C. J.  In  the  elections  held  to\t the
\nLegislative Assembly  of Andhra\t Pradesh in  January 1983, a
\nnew political  party called Telugu Desam was swept to power.
\nIt assumed office on January 9, 1983. On February 8, 1983 an
\nOrder (G.O.  Ms. No.  36) was  issued by  the Government  of
\nAndhra Pradesh stating that it had decided to reduce the age
\nof superannuation of all Government employees, other than in
\nthe  last   Grade  Service,   from  58\t to  58\t years.\t Two
\nnotifications issued in exercise of the power conferred
\n586<\/span>
\nby the\tProviso to  Article 309 read with Article 313 of the
\nConstitution  was  appended  to\t that  order.  The  relevant
\nFundamental Rules  were amended\t by the\t first notification,
\nwhile the  corresponding  rules\t of  the    Hyderabad  Civil
\nServices Rules\twere amended  by the second notification. By
\nthese  notifications,\tevery  Government  servant,  whether
\nministerial or non-ministerial but not belonging to the last
\nGrade Service,\twho had already attained the age of 55 years
\nwas to\tretire from  service with  effect from\tFebruary 28,
\n1983.  Speaking\t  to  the   Government\temployees   in\t the
\nSecretariat  premises  the  next  day,\tthe  Chief  Minister
\njustified the  reduction of the retirement age from 58 to 55
\nyears on  the ground that it had become necessary to provide
\ngreater employment  opportunities to the youths. Over 18,000
\nGovernment employees and 10,000 public sector employees were
\nsuperannuated as a result of the order.\n<\/p>\n
     These writ\t petitions were\t filed by the Andhra Pradesh
\nGovernment employees  to challenge  the aforesaid  order and
\nthe notifications  on the  ground that they violate Articles
\n14, 16,\t 21 and\t 300A of  the Constitution.  The case of the
\npetitioners as\tlaid in the writ petitions is that there was
\nno basis  at all  for reducing the age of retirement from 58
\nto 55;\tthat the  age of retirement was increased from 55 to
\n58 by  the Government  of Andhra  Pradesh by  a notification
\ndated – October 29, 1979 and nothing had happened since then
\nto justify  reduction of the age of retirement again to 5 i;
\nthat providing\temployment opportunities  to the youths h Is
\nno  relevance\ton  the\t  question  of\tfixing\tthe  age  of
\nretirement; that  the Government  had  exercised  its  power
\narbitrarily without  having  regard  to\t factors  which\t are
\nrelevant on  the fixation of the age of retirement; that the
\nGovernment had acted unreasonably in not giving any previous
\nnotice to  the employees  which would  have enabled  them to
\narrange their  affairs on  the eve  of retirement;  that the
\nGovernment was\testopped from reducing the age of retirement
\nto 55,\tsince the  employees had acted on the representation
\nmade to\t them in  1979 by  increasing the  age of retirement
\nfrom 55\t to 58;\t that as a result of the increase in the age
\nof retirement  from 55\tto 58  years in 1976, a vested right
\nhad accrued  to the employees, which could be taken away, if
\nat all, only from future entrants to the Government service;
\nthat retirement\t of  experienced  and  mature  persons\tfrom
\nGovernment service  will result in grave detriment to public
\nservices of  the  State;  and  that,  the  decision  of\t the
\nGovernment is bad for a total non-application of mind to the
\nrelevant facts\tand circumstances bearing on the question of
\nthe  age   of  retirement,  like  increased  longevity.\t The
\npetitioners aver that the Government had not even considered
\nthe enormous delay which
\n587<\/span>
\nwould be  caused in  the payment  of pensionary\t benefits to
\nemployees A  who were  retired from service without any pre-
\nthought.\n<\/p>\n
      A\t counter-affidavit was\tfiled on behalf of the State
\nof Andhra  Pradesh by Shri R. Parthasarathy, Joint Secretary
\nin the\tFinance Department  of the  State, at  the stage  of
\nadmission of  the writ\tpetitions.  It\tis  stated  in\tthat
\naffidavit  that\t the  recommendation  of  the  one  Man\t Pay
\nCommission appointed  by the  Government of  Andhra Pradesh.
\nafter which  the age  of retirement  was increased  to 58 in
\n1979, has  no relevance to the present decision of the State
\nto reduce  the age  of retirement;  that the  fact that\t the
\naverage expectation  of life  is about\t70 years  is  not  a
\nground for  increasing the  age of  retirement of Government
\nemployees; that\t the general  trend was for reducing the age
\nof retirement;\tthat the  Government of Kerala and Karnataka
\nhad reduce  the age  of retirement of their employees to 55,
\nthough it  was earlier increased from 55 to 58; that in some
\nStates in  India the age of retirement is 55 and not 58; the
\npresent decision  was taken  by the  Government in  order to
\nfulfill its commitment that it will take welfare measures in
\norder  to   improve  the   lot\tof   the  common  man,\tand.
\nparticularly, in  order to afford opportunities to qualified
\nand talented  unemployed youths\t whose number was increasing
\nenormously due\tto expansion of educational facilities; that
\nthe  Government\t  employees  was   stagnated  in  the  lower
\npositions due  to the increase in the age of retirement from
\n55 to 58: and that, the present measure was intended to have
\na salutary  effect on  the creation  of\t incentives  to\t the
\ndeserving employees  The affidavit  says  further  that\t the
\nquestion as regards the age of retirement is a pure question
\nof Governmental\t policy affording  no cause of action to the
\npetitioners  to\t file  the  writ  petitions.  The  affidavit
\nasserts that  the  Government  had  reviewed  the  situation
\narising out of the enhancement of the age of retirement from
\n55 to 58 in 1979 and that it was revealed that on account of
\nthe enhancement\t of the\t age of\t retirement, the  chances of
\npromotion  of\tthe  service   personnel  had\tdeteriorated
\nresulting in  widespread frustration  and unemployment.\t The
\ninconvenience alleged  by the  petitioners in  the matter of
\npayment of  their pension  and other retirement benefits was
\nimaginary,  since   the\t Government   was  making  extensive
\narrangements to disburse such benefits expeditiously. By the
\ncounter-affidavit, the\tGovernment of  Andhra Pradesh denied
\nthat any of the provisions of the Constitution were violated
\nby the impugned decision to reduce the age of retirement.\n<\/p>\n
       Another\t affidavit  was\t  filed\t on  behalf  of\t the
\nGovernment of Andhra Pradesh, after the rule nisi was issued
\nin the writ petitions.\n<\/p>\n
588<\/span><\/p>\n
The affidavit is sworn by Shri A.K. Sharma, Deputy Secretary
\nto Government of Andhra Pradesh. Finance and Planning. It is
\nstated in  that affidavit  that the  question of  the age of
\nsuperannuation\twas   not  referred   to  the  one  Man\t Pay
\nCommission of  Shri A.\tKrishnaswamy, which was appointed by
\nthe Andhra Pradesh Government on
\n November  3, 1 977; that the recommendation made by the Pay
\nCommission  was\t  casual  and  was  not\t based\ton  relevant
\ncriteria; that\tas many\t as 12,04,008  educated youths\twere
\nleft without employment on September 30, 1979 as a result of
\nthe unwarranted\t increase in  the age of superannuation from
\n55 to  58; that the number of unemployed youths had grown to
\n17,84,699 by  December 31,  1982; and\t that,\tthe  age  of
\nretirement was\treduced because it is the duty of the State,
\nwithin the  limits of  its economic capacity and development
\nto  make  effective  provision\tto  solve  the\tunemployment
\nproblem. The rest of the averments i`1 this affidavit are on
\nthe same lines as in the affidavit of Shri R. Partbasarathy.\n<\/p>\n
      Rule  Nisi was  issued on\t the writ  petitions by this
\nCourt on  February 25,\t1983. The  Legislative\tAssembly  of
\nAndhra Pradesh\twas prorogued  on April 9, 1983. On the very
\nnext day,  that is, on April l0th Governor of Andhra Pradesh
\npromulgated Ordinance  No. 5  of  1983\tcalled\t‘the  Andhra
\nPradesh Public Employment
\n (Regulation  of  Conditions  of  Service)  Ordinance.’\t The
\nOrdinance  was\tpassed\t“to  regulate  the  recruitment\t and
\nconditions  of\t service  of  persons  appointed  to  Public
\nServices and  posts in\tconnection with\t the affairs  of the
\nState of Andhra Pradesh and the officers and servants of the
\nHigh Court of Andhra Pradesh”. We are not concerned in these
\nwrit petitions\twith clauses  3 to  9 of the Ordinance which
\nmostly regulate\t conditions of\tservice. Clause 10(1) of the
\nOrdinance prescribes  that every  Government  employee,\t not
\nbeing a\t workman and  not belonging  to Last  Grade  Service
\nshall retire  from service  on the afternoon of the last day
\nof the month in which he attains the are of 55 years. Clause
\n10(2) provides\tthat every  Government employee, not being a
\nworkman but  belonging to  the\tLast  Grade  Service,  shall
\nretire from service on the afternoon of the  last day of the
\nmonth in  which he attains the age of 60 years. Clause 10(3)
\nprovides that  every workman  belonging to  the\t Last  Grade
\nService or  employed on a monthly rate of pay in any service
\nnotified as  Inferior, shall  retire  from  service  on\t the
\nafternoon of  the last\tday of the month in which he attains
\nthe age\t of  60\t years.\t Workmen  belonging  to\t Ministerial
\nService or  any service\t other than  the Last  Grade Service
\nnotified as Inferior have to retire on the afternoon  of the
\nlast day of the month in which they attain the age of 55
\n589<\/span>
\nyears. By  clause 15,  All Rules  and Regulations made under
\nthe  proviso to Article 309 or continued under Article 3 l 3
\nof the Constitution or made under any other law for the time
\nbeing in  force, governing the recruitment and conditions of
\nservice of the Government employees, continue to be in force
\nin so  far as  they are not inconsistent with the provisions
\nof the\tOrdinance. Clause  16 of the Ordinance provides that
\nno amendment  to the Fundamental Rules shall be deemed to be
\ninvalid merely\tby reason  of the  fact that  the proviso to
\nrule 2\tof the\tFundamental Rules  laid down  that the\tsaid
\nrules shall  not be modified or replaced to the disadvantage
\nof any\tperson already\tin service. It provides further that
\nall  amendments\t  made\tto   the   Fundamental\t Rules\t and
\nparticularly the  amendments made  by the notification dated
\nFebruary 8,  1983, shall  be and  shall be  deemed always to
\nhave been made validly and shall have effect notwithstanding
\nanything to  the contrary contained in the proviso to rule 2
\nof the Fundamental Rules as if the Ordinance was in force on
\nFebruary 8,  1983. Clause  16 of the Ordinance declares that
\nevery amendment made before or after the commencement of the
\nOrdinance to  the Fundamental  Rules and the Hyderabad Civil
\nServices Rules,\t shall be and shall be always deemed to have
\napplied to all Government employees whether appointed before
\nor after  the amendment. Clause 18 of the Ordinance provides
\nby sub-clause  (i)  that  the  proviso\tto  rule  2  of\t the
\nFundamental Rules  shall be  and shall\tbe deemed  always to
\nhave been  omitted. Rule  56 of\t the  Fundamental  Rules  is
\nomitted by  Clause l  8(ii) while  Rule 231 of the Hyderabad
\nCivil  Services\t Rules\tis  omitted  by\t clause\t 19  of\t the
\nOrdinance. The\tage of retirement was previously governed by
\nthese two Rules.\n<\/p>\n
      The  arguments advanced  before us fall under distinct
\nheads, learned counsel having shared their burden equitably.
\nShri Venugopal\tchallenged the\tOrdinance on the ground that
\nit is  unreasonable. Shri  Tarkunde  challenged\t it  on\t the
\nground that the superannuation of the employees by reduction
\nof the\tage of\tretirement amounts, in the circumstances, to
\n‘removal’ of  the employees  within the\t meaning of  Article\n<\/p>\n
311. The  challenge of\tShri Siddhartha Shankar Ray is based
\non the\tground of a total non application of mind. Shri R.K.
\nGarg, who  appears in  a group\tof three  Transferred Cases,
\ncontends that the Ordinance is bad because it supersedes all
\nindustrial  adjudications  and\toverrules  even\t settlements
\narrived at  between the\t management and\t the employees. Shri
\nP.P. Rao contends that the Ordinance is bad because. whereas
\nin the\tcase of\t compulsory retirement\ta  notice  of  three
\nmonths is
\n590<\/span>
\nrequired to  be given  by the  Government under the relevant
\nrules, in  the case  of superannuation\tof employees who had
\nalready attained the age of 55 on February 8, 1983; when the
\nfirst Order  was issued,  the  impugned\t law  gives  to\t the
\nemployees a  notice of 20 days only since all such employees
\nhad to\tretire on  February 28,\t 1983. Shri  P P.  Rao\talso
\nchallenges the\tretrospective deletion\tof the\t proviso  to
\nRule 2\tof the\tFundamental Rules  as being  arbitrary. Shri
\nGururaj Rao  challenges the  Ordinance on the ground that it
\nruns into  the teeth  of the recommendation which the Andhra
\nPradesh One  Man Pay Revision Commission had made in 1979 in
\npursuance of  which the age of retirement was raised from 55
\nto 58.\tShri   A.T.M. Sampath  laid stress  on the  lack  of
\nacceptable reasons  to justify the issuance of the Ordinance
\nLike some of the other learned counsel, he suspects the bona
\nfides of  the state  Government in issuing the Order and the
\nOrdinance. It  was  suggested  by  the\tpetitioners,  though
\nsomewhat in passing, that the object of the State Government
\nin reducing  the age  of retirement  was to  get rid  of   n
\nsenior members\tof  Government\tservice\t whose\tloyalty\t was
\nthought to be not above suspicion.\n<\/p>\n
      This is the broad outline of the petitioners’ case. We
\nwill presently\tset out\t the specific  contentions  advanced
\nbefore us  but, before\tdoing so.  it would  be necessary to
\nindicate the  approach\twhich  in  our\topinion,  should  be
\nadopted while  examining a  question  of the present nature,
\nnamely, the fixation of the age of retirement. Barring a few
\nservices in  a few  parts of  the world as, for example, the
\nAmerican Supreme  Court, the  terms and\t conditions of every
\npublic service provide for an age of retirement. Indeed, the
\nproposition that  there ought  to be an age of retirement in
\npublic\tservices   is  widely  accepted\t as  reasonable\t and
\nrational. The  fact that  the\tstipulation as to the age of
\nretirement is a common feature of all of our public services
\nestablishes its\t necessity, no\tless than its reasonableness
\nPublic interest\t demands that  there ought  to be  an age of
\nretirement in public services The point of the peak level of
\nefficiency is  bound to differ from individual to individual
\nbut the\t age of\t retirement  cannot  obviously\tdiffer\tfrom
\nindividual to individual for that reason. A common scheme of
\ngeneral application  governing superannuation  has therefore
\nto  be\t evolved  in   the  light  of  experience  regarding
\nperformance  levels   of  employees,  the  need\t to  provide
\nemployment opportunities  to the younger sections of society
\nand  the  need\tto  open  up  promotional  opportunities  to
\nemployees  at  the  lower  levels  early  in  their  career.
\nInevitably, the public administrator has to counter  balance
\nconflicting claims while determining the age of superannua
\n591<\/span>
\ntion. On the one hand, public services cannot be deprived of
\nthe benefit of the mature experience of senior employees; on
\nthe other hand, a sense of frustration and stagnation cannot
\nbe allowed to generate in the minds of the junior members of
\nthe services  and the  younger sections\t of the society. The
\nbalancing of  these  conflicting  claims  of  the  different
\nsegments of  society involves  minute  questions  of  policy
\nwhich must  as far  as possible,  be left to the judgment of
\nthe executive  and the\tlegislature.  These  claims  involve
\nconsiderations of  varying vigour  and applicability. Often,
\nthe Court  has no satisfactory and effective means to decide
\nwhich alternative,  out of  the many  competing ones, is the
\nbest in the circumstances of a given case. We do not suggest
\nthat every  question of\t policy\t is  outside  the  scope  Of
\njudicial  review   or  that,   necessarily,  there   are  no
\nmanageable standards for reviewing any and every question of
\npolicy. Were  it so,  this  Court  would  have\tdeclined  to
\nentertain pricing  disputes covering as wide a range as cars
\nto mustard-oil.\t If the\t age of\t retirement is\tfixed at  an
\nunreasonably low  level so  as\tto  make  it  arbitrary\t and
\nirrational, the\t Court’s interference  would be\t called for,
\nthough\tnot  for  fixing  the  age  of\tretirement  but\t for
\nmandating a  closer consideration  of the  matter. “Where an
\nact is\tarbitrary, it  is implicit  in it that it is unequal
\nboth according to political logic and constitutional law and
\nis  therefore\tviolative  of  Article\t14.”(l)\t But,  while
\nresolving the  validity of  policy issues  like the  age  of
\nretirement, it\tis not\tproper to put the conflicting claims
\nin a  sensitive judicial  scale\t and  decide  the  issue  by
\nfinding out which way the balance tilts. That is an exercise
\nwhich  the   administrator  and\t  the  legislature  have  to
\nundertake. As  stated in ‘The Supreme Court And The Judicial
\nFunction'(2): “Judicial\t self-restraint is itself one of the
\nfactors to  be added to the balancing process, carrying more
\nor less weight as the circumstances seem to require”.\n<\/p>\n
      We  must therefore approach the problem before us with
\na view to determining whether the age of retirement has been
\nreduced from  58 to  55 unreasonably  or arbitrarily. Such a
\nfixation of  age would\tbe unreasonable\t or arbitrary  if it
\ndoes not  accord with  the principles which are relevant for
\nliving the  age of retirement or if it does not subserve any
\npublic interest. On the other hand, the Ordinance shall have
\nto be  held valid,  if the fundamental premise upon which it
\nproceeds  has  been  accepted  as  fair\t and  reasonable  in
\ncomparable situations,\tif its\tprovisions bear\t nexus\twith
\npublic interest\t and if\t it  does  not\toffend\tagainst\t the
\nconstitutional limitations either on legis-\n<\/p>\n
      (l)  E.P Rovappa.\t State of  Tamil Nadu, [1974] 2. SCR\n<\/p>\n
348.
\n(2) Edited  by Philips B. Kurland, Oxford and IBH Publisning
\nCo., Page 13.\n<\/p>\n
592<\/span><\/p>\n
lative competence  or on  the legislative power to pass laws
\nwhich bear on fundamental rights.\n<\/p>\n
      Shri  Venugopal, who led the argument on behalf of the
\npetitioners, contends  that the\t provisions of the Ordinance
\nwhereby the  age of  retirement is reduced from 58 to 55 are
\narbitrary and  irrational and hence violative of Articles 14
\nand 16 of the Constitution for the following reasons:\n<\/p>\n
     (a)  The age of superannuation was increased from 55 to
\n\t  58 years  with effect\t from October 29, 1979 after
\n\t  an elaborate\tand scientific\tinquiry by a One-Man
\n\t  Pay Commission;\n<\/p><\/blockquote>\n
     (b)  The State Government issued the order reducing the
\n\t  age  of   retirement\twithin\t one  month  of\t the
\n\t  assumption of\t office by it. In the very nature of
\n\t  things, no  scientific  investigation\t could\thave
\n\t  been made,  no material gathered and no statistics
\n\t  compiled as  regards the  number of  employees who
\n\t  will retire,\tthe number  of persons who would get
\n\t  fresh employment  and the  hardship caused  to the
\n\t  superannuated\t employees   by\t the  delay  in\t the
\n\t  payment of  retirement benefits  to them.  Neither
\n\t  the social  nor the  economic consequences  of  so
\n\t  grave a  decision could  have been or were in fact
\n\t  considered by the Government;\n<\/p><\/blockquote>\n
     (c)  The  reason\tgiven\tby   the   Government\tthat
\n\t  promotional opportunities  had deteriorated  as  a
\n\t  result of  the increase in the retirement age from
\n\t  55 to 58 is fanciful and non-existent. That result
\n\t  is indeed  produced by  the impugned action of the
\n\t  State\t Government   In  1979,\t  when\tthe  age  of
\n\t  retirement was  increased from  55  to  58  years,
\n\t  promotional  opportunities   were  denied  to\t the
\n\t  employees because, those who would have retired at
\n\t  the age  of 55  got a\t fresh\tlease  of  life\t for
\n\t  another years.  Now, when their turn for promotion
\n\t  has come  at about  the age  of 55, they have been
\n\t  superannuated;\n<\/p><\/blockquote>\n
     (d)  The theory that reduction in the age of retirement
\n\t  provides  employment\t opportunities\tto  educated
\n\t  youths is  fallacious. The various Pay Commissions
\n\t  have expressed  the  view  that  persons  who\t are
\n\t  required to retire at
\n593<\/span>
\n     an early  age are\tcompelled by necessity to seek other
\n     employments. Even otherwise, not more than one per cent
\n     of the  unemployed educated  youths are  likely to\t get
\n     employment as  a result  of the reduction in the age of
\n     retirement from  58 to  55. That  is because,  not more
\n     than 18,000 vacancies arose on account of the reduction
\n     in the age of retirement.\n<\/p><\/blockquote>\n
     (e)  The careful  planning by  the employees  of  their
\n\t  important affairs of life like the construction of
\n\t  a house,  the\t marriage-  of\ta  daughter  or\t the
\n\t  repayment of\tloans,\thas  been  suddenly  set  at
\n\t  naught by the reduction in the age of retirement;<\/p><\/blockquote>\n
     (f)  Two of  the most  relevant  circumstances  bearing
\n\t  upon the  fixation of\t the age  of retirement have
\n\t  been ignored\tby the State Government: increase in
\n\t  longevity and\t the prevailing age of retirement in
\n\t  public sector undertakings; and\n<\/p>\n
     (g)  No consideration was given to the plain and direct
\n\t  con sequence\tof  the\t reduction  in\tthe  age  of
\n\t  retirement, namely, that the State exchequer would
\n\t  have to  find and  pay Rs. 70 crores on one single
\n\t  day by  way of  retirement benefits,\tfor which no
\n\t  budgetary provision was made
\n      It  would appear\tfrom these  contentions as also from
\nthe contions  advanced by the other learned counsel that the
\nmain plank  of the petitioners’ case is that the decision to
\nreduce\tthe   age  of\tretirement  from   58\tto   55\t  is
\nunconstitutional because  it is\t arbitrary,  irrational\t and
\nunconnected with the object which it seeks to achieve.\n<\/p>\n
      In  this connection,  the first ground of challenge to
\nthe reduction  of the  age of retirement is that the One-man
\nPay Revision  Commission  appointed  by\t the  Government  of
\nAndhra Pradesh\thad recommended\t that the  age of retirement
\nshould\tbe   increased\tfrom   55  to\t58,  that  the\tsaid
\nrecommendation was  accepted by\t the  State  Government\t and
\nconsequently, the  age of  retirement was  raised to 58 with
\neffect from  October 29,  l 979.  It is\t contended that\t the
\nreversal of  that well-considered  decision within  a  short
\nspan of\t less than  three  and\ta  half\t years\tis  patently
\nunscientific and arbitrary,
\n594<\/span>
\nespecially since  no fresh  investigation was  undertaken to
\nexamine the  validity of the recommendation made by the One-
\nman Pay Commission.\n<\/p>\n
      The  very foundation of this argument is fallacious By
\nG.O. NO.  745 dated November 3,1977 the Government of Andhra
\nPradesh had appointed Shri A. Krishnaswamy, a retired member
\nof the\tl.A.S. as  One-man Pay Revision Commission to review
\nthe structure  of the  different  scales  of  pay,  dearness
\nallowance  and\t other\tcompensatory   allowances   of\t all
\ncategories of  employees of  State Government, local bodies,
\naided institutions, work-charge
\nestablishments etc. The terms of reference of the Commission
\nwere enlarged  by the  Government by  an order dated January
\n28, 1978  SO as\t to require  the Commission  to\t review\t the
\nexisting retirement  benefits available to all categories of
\nemployees referred  to above  and to examine the question of
\nextension  of\tretirement  benefits   to  the\twork-charged
\nestablishments. The  question  as  to  whether\tthe  age  of
\nretirement\tshould\t     be\t     raised.\n<\/p>\n
p73
\nOrdinance  which  mostly  regulate  conditions\tof  service.
\nClause\t10(1)  of  the\t  Ordinance  prescribes\t that  every
\nGovernment employee,  not being\t a workman and not belonging
\nto Last\t Grade Service\tshall retire  from  service  on\t the
\nafternoon of  the last\tday of the month in which he attains
\nthe are\t of 55\tyears.\tClause\t10(2)  provides\t that  every
\nGovernment employee,  not being\t a workman  but belonging to
\nthe Last  Grade Service,  shall retire\tfrom service  on the
\nafternoon of  the   last day  of the of the Commission cover
\nthe  review  of\t the  existing\t‘retirement  benefits’,\t the
\nreference “would  naturally include  the age of retirement.”
\nThis was  an erroneous\tand unwarranted reading of the terms
\nof  reference.\t A  review   of\t retirement  benefits  would
\nundoubtedly cover  the examination  of the  rules or schemes
\nrelating to  pension, provident\t fund,\tgratuity, encasement
\nof leave,  etc, but  it cannot\tinclude the power to examine
\nthe  question\tas  regards  the  fixation  of\tthe  age  of
\nretirement. The\t Commission says in the same paragraph, as a
\npossible justification\tof its consideration of the question
\nof the\tage of\tretirement, that  “it was  mentioned on\t the
\nfloor of  the House  that this\tissue  is  referred  to\t the
\nCommission” Our\t attention has been drawn  in this behalf to
\na statement  made in  the Andhra Pradesh Legislative Council
\non September  20, 1976 by the then Finance Minister, Shri G.
\nRajaram, to the effect that one of the terms of reference to
\nthe Commission\twas to review the existing retirement age of
\nGovernment employees.  We regret  to say  that\tthe  Finance
\nMinister  was\tnot  properly  briefed\twhen  he  made\tthat
\nstatement. In  any case,  the\tpower  of  a  Commission  to
\nenquire into a question must depend
\n595<\/span>
\nupon the  terms of the Reference and not upon the statements
\nmade on the floor of the House. The fact that the Commission
\ndiscussed the  question of  the age of retirement in passing
\nshows that  it was not properly seized of that question. The
\ndiscussion of an important matter like the age of retirement
\nis done\t in four brief paragraphs which occupy less than two
\npages of  the Commission’s  report.  We\t do  not  blame\t the
\nCommission for\tthis hurried  and inadequate treatment of an
\nimportant  question.   That  question  was  not\t within\t its
\npurview. The  State Government is therefore justified in its
\ncontention that\t the question  of the  age of retirement was
\nnot referred  to the  Commission and that the decision which
\nthe Government\ttook later to increase the age of retirement
\nfrom 55\t to 58\twas not\t based on  the recommendation of the
\nCommission. The report of the Commission has therefore to be
\nkept out  of consideration  in so far as the question of the
\nage of\tretirement is  concerned  and  no  argument  can  be
\nfounded on  the fact  that the\tview of\t the Commission\t was
\nignored or  that nothing  had happened since the date of the
\nreport to justify a departure from it.\n<\/p>\n
      As regards Shri Venugopal’s argument at (b) above, the
\nfact that  the decision to reduce the age of retirement from
\n58 to  55 was taken by she State Government within one month
\nof the\tassumption  of\toffice\tby  it\tcannot\tjustify\t the
\nconclusion that-lt  the decision  is arbitrary because it is
\nunscientific in\t the sense  that it  is not  backed  by\t due
\ninvestigation or  by compilation  of relevant  data  on\t the
\nsubject. Were  this  so,  every\t decision  taken  by  a\t new
\nGovernment soon\t after assumption of office shall have to be
\nregarded as  arbitrary. The reasonableness of a decision, in
\nany jurisdiction,  does not  depend upon  the time  which it
\ntakes. A  delayed decision  of the executive can also be had
\nas offending  against the provisions of the Constitution and
\nit can\tbe no  defense to  the charge of unconstitutionality
\nthat the  decision was taken after the lapse of a long time.
\nConversely, decisions  which are  taken promptly  cannot  be
\nassumed to  be bad  because they  are taken  promptly. Every
\ndecision has  to examined  on its  own merits  in  order  to
\ndetermine whether  it is arbitrary or unreasonable. Besides,
\nwe have to consider the validity of a law regulating the age
\nof retirement.\tIt is untenable to contend that a law is bad
\nbecause it is passed immediately on the assumption of office
\nby a  new Government. It must also be borne in mind that the
\nquestion as  to what  should be the proper age of retirement
\nis not\ta novel\t or unprecedented  question which  the State
\nLegislative had\t to consider.  There is a wealth of material
\non that\t subject and many a Pay Commission has dealt with it
\ncomprehensively. The State
\n596<\/span>
\nGovernment had the relevant facts as also the reports of the
\nvarious Central\t and State Pay Commissions before it, on the
\nbasis of which it had to take a reasonable decision. The aid
\nand  assistance\t  of  a\t  well-trained\tbureaucracy   which,
\nnotoriously,  plays  an\t important  part  not  only  in\t the
\nimplementation of  policies but\t in their  making, was\talso
\navailable to the Government. Therefore, the speed with which
\nthe decision  was taken\t cannot, without more, invalidate it
\non the ground of arbitrariness.\n<\/p>\n
      The contentions of Shri Venugopal which arc set out in
\nparagraphs (c)\tto (g)\tabove and,  partly in  paragraph (b)
\nitself, are  by and  large matters  of legislative policy in
\nthe formulation\t of which  the Government of the day must be
\nallowed a  free, though fair play. Indeed, the acceptance of
\nargument advanced by the various counsel for the petitioners
\nmust lead  to the conclusion that there, has to be a uniform
\nage of\tretirement all\tover  India.  If  reduction  of\t the
\nretirement age\tfrom 58 to 55 is to be regarded as arbitrary
\non  the\t ground\t that  it  overlooks  the  advance  made  in
\nlongevity, fixation  of retirement  age at  58 is  also\t not
\nlikely to sustain the charge of\t arbitrariness. The argument
\ncould still  be made  that improvement in the expectation of
\nlife requires  that the age of retirement should be fixed at
\n60 or  62 or  even  at\t65.  Then  again,  though  immutable
\nconsiderations which  are generally or universally true like
\nincreased life-expectation  are as much Jammu and Kashmir as
\nfor Tamil  Nadu, that  cannot justify  the  conclusion\tthat
\nfixation of  the retirement  age  at 55 in Jammu and Kashmir
\nis invalid since the State of Tamil Nadu has fixed it at 58.
\nBoth can fall within the constraints of the Constitution and
\nneither the  one nor  the other\t can  be  considered  to  be
\narbitrary or  unreasonable. There  is no  one fixed or focal
\npoint of  reasonableness. There can be a large and wide area
\nwithin which   the  administrator or the legislator can act,
\nwithout\t  violating    the   constitutional    mandate\t  of
\nreasonableness. That  is the area which permits free play in
\nthe joints.  The following  table will show the variation in
\nthe retirement\tage which  exists at  present in the various
\nStates in India:\n<\/p>\n
.TB 3.0″\n<\/p>\n
State\t\t\t      Retirement Age\nHaryana\t\t\t       58 years\nJammu & Kashmir\t\t      55 years\nKarnataka\t\t      1979-58 years\n\t\t\t      1981-55 years\n Kerala\t\t\t      1967-55 years\n\t\t\t      1968-58 years\n597<\/span>\n\t\t\t      1969- 55 years\n\t\t\t       1984-58 years\nMadhya Pradesh\t\t      58 years;\n\t\t\t      Reduced to 55 years 1967;\n\t\t\t      enhanced to S years in 1970.\nMaharashtra\t\t      58 years\nOrissa\t\t\t      Previously 55 years;\n\t\t\t       enhanced to 58 years.\nRajasthan\t\t\t   55 years (Reduced from 58\nyears to\n\t\t\t      55 years about 12 years back)\nUttar Pradesh\t\t       58 years (Reduced to 55 years\nin\t\t\t\t 1962; enhanced to 58 years)\nTamil Nadu\t\t      58 years (For District Judges,\n\t\t\t      lowered from 58 to 55 years)\n\t\t\t\t West Bengal 58 years (since\n1961)\n.tb .9\"\n<\/pre>\n
It is  clear from  this table that the area between the ages
\nof 55  and 58  is regarded  in our  country as a permissible
\nfield of operation for fixing the age of retirement. Neither
\nthe American  nor the  English notions\tor norms  for fixing
\nretirement age\tcan render invalid the basis which is widely
\naccepted in our country as reasonable for that purpose.\n<\/p>\n
      On  the question\tof policy  regarding the fixation of
\nretirement age,\t it will  be useful to draw attention to the
\nviews expressed\t upon that question from time to time by the
\nvarious Pay Commissions.\n<\/p>\n
      Chapter XXXVII of the Report of the Second Central Pay
\nCommission (1959)  deals with the question as to the ‘Age of
\nSuperannuation’. The  history and background of the fixation
\nof age\tof superannuation traced in that Chapter make useful
\nreading. Prior\tto 1917,  the superannuation rule applicable
\nto both\t ministerial and  non ministerial  staff was  that a
\nGovernment servant  who had  attained the age of 55 might be
\nrequired to retire; but that, in order to avod depriving the
\nState of  the valuable\texperience of efficient officers and
\nadding unnecessarily  to the non-effective charges, the rule
\nshould be  applied with\t discretion  and,  whenever  it\t was
\napplied, reasons  should be recorded. In its general effect,
\nhere, the  rule favoured the retention in Government service
\nof officers  who had  attained the  age of  55, and required
\ninefficiency  to   be  established   as\t the   condition  of
\ncompulsory H
\n598<\/span>
\nretirement. This  was considered injurious to the efficiency
\nof the public service, on the ground that most officers lost
\ntheir keenness\tand initiative\tat the\tage of\t55. The rule
\nwas, accordingly, changed so as to make retirement at 55 the
\nnormal practice,  and retention\t in service  beyond that age
\nthe exception.\tA distinction  was,  however,  made  between
\nministerial and non-ministerial officers, presumbly because,
\nit was\tthought that the duties of the former did not suffer
\nfrom the  effects of  advancing age  as\t did  those  of\t the
\nothers; and  it was  decided, in  effect, that,\t subject  to
\ncontinued  efficiency,\t ministerial  officers\t should\t  be
\nretained in  service till  they attained the age of 60. This
\ndistinction was,  however, abolished in 1937-38, partly as a
\nmeasure of  relieving unemployment-which  was acute  at that
\ntime-but largely  in recognition  of the  invalidity of\t the
\ndistinction and\t on the\t consideration that  the uncertainty
\nwhich attended\tthe service  of senior\tmen beyond  55 had a
\ndisturbing effect  on those  who  were\tlooking\t forward  to
\nsucceeding them.\n<\/p>\n
      Paragraph\t 5 of  the Commission’s Report mentions that
\nthe Varadachariar  Commission had  recommended earlier\tthat
\nthe age for
\n compulsory  retirement should be 58 years for all services-
\npensionable  and   non-pensionable-with\t an  option  to\t the
\nGovernment to  retire an  employee on  the ground of loss of
\nefficiency, at\tthe age\t of 55. That recommendation involved
\nreduction of  the age of superannuation in the case of Class
\nIV servants  and in  the case  of industrial and workcharged
\nstaff outside  the Railways,  as well as raising the age for
\nothers. But,  for some\treason or the other, only the latter
\nquestion was  considered and  it was  ultimately decided  in
\n1949, that  there should  be no\t change in the position. The
\nmain grounds  for the  decision were  that the\tmajority  of
\npersons retiring  at the  age of  55  were  not\t capable  of
\nrendering efficient  service any  further; their replacement
\nat the age of 55 by younger men would serve the interests of
\nefficiency better; and that, the retirement age should be so
\nfixed as  would release\t men at an age when they would still
\nbe fit\tto render service to the country in other spheres of
\ntheir choice,  even though  not wholly capable of keeping up
\nwith the  fast tempo  of Government  work, or of meeting its
\nother  exacting\t  requirements.\t It   was  observed\tthat
\nGovernment service  ages employees  quicker  and  that,\t the
\nquestion was  one of  balancing limited use to Government of
\nsuch men  against, perhaps,  their better  usefulness to the
\nnation at large.\n<\/p>\n
      Paragraph\t 6 of the Commission’s Report shows that the
\nquestion was  reconsidered in 1963 when, the only additional
\nargument   advanced against  an upward\tchange\tits  adverse
\neffect on educated
\n599<\/span>
\nunemployment. It was recognized that its actual effect would
\nA be  small but,  importance was  attached to  its  probable
\nimpact on  public opinion.  The earlier decision to maintain
\nthe age\t of retirement at 55 was re-affirmed but, in view of
\nthe widespread shortage of trained personnel, it was decided
\nthat extension\tof service  beyond that\t age might  be given
\nliberally on  the ground  of public interest, more specially
\nin the\tcase of\t scientific  and  technical  personnel.\t The
\ncontinuing shortage  of trained\t man-power led\tto a further
\nreview of  the problem\tin 1958; but, apart from laying down
\nthe criteria  for grant\t of extension and re-employment, and
\nre-emphasizing the  need to  retain technical and scientific
\npersonnel  beyond   the\t age  of  superannuation,  the\tonly
\nsignificant advance  on the  earlier decisions\twas that re-
\nemployment or extension might be granted upto two years at a
\ntime.  thus   notwithstanding  the   recommendation  of\t the
\nVaradachariar Commission,  the age  of\tsuperannuation\tlaid
\ndown for  the  non-ministerial\tstaff  more  than  40  years
\nearlier\t and  for  ministerial\tstaff  more  than  20  years
\nearlier, continued  to be  in force  when the Second Central
\nPay Commission took up that question for examination.\n<\/p>\n
      There  was an  “extraordinary  unanimity\tof  opinion”
\namongst Heads  of Departments,\tdistinguished retired public
\nservants, public men and economists who gave evidence before
\nthe Commission\tthat the  age of  superannuation  should  be
\nraised, the only difference being as to whether it should be
\nraised to  58  or  60  years.  The  great  majority  of\t the
\nemployees’ organizations  were also  in favour of increasing
\nthe age\t of retirement,\t the only  exception being  the\t All
\nIndia  Railwaymen’s  Federation.  That\tFederation  did\t not
\nconsider the  age of  55 as  the age  of the onset of senile
\ninefficiency, but  it was  of the  opinion that\t the age  of
\nsuperannuation should  not be  raised in  view of  the\tthen
\nprevailing large-scale\tunemployment. Some of the reasons on
\nwhich  there   was  unanimity  for  increasing\tthe  age  of
\nretirement  were;   the\t continuing   mental  and   physical
\nefficiency of  most of the Government servants at the age of
\n55;  the   increased  expectation  of  life  resulting\tfrom
\nimproved public\t health conditions;  and, the national waste
\ninvolved in  sending men  and women  into enforced  idleness
\nwhile\tthey  were  still  capable  of\trendering  efficient
\nservice. The  Commission found\tthat there  was\t an  overall
\nimprovement in\tpublic health  as shown\t by the\t decline  in
\ndeath rate  and the increase in expectancy of life at birth.
\nWhat was  even of  greater relevance,  the Commission  found
\nthat there  was improvement in the expectancy of life in the
\nfifties, that  is to say, amongst people in the age group of
\n50 to  60. The\tdata  supplied\tto  the\t Commission  by\t the
\nComptroller and Audi-\n<\/p>\n
600<\/span><\/p>\n
tor-General showed  that, at  least in\tthe case of Gazetted
\nand Class 111 employees, there was a significant increase in
\nthe percentage\tof persons  who lived  for two years or more
\nafter superannuation. On this data, the Commission concluded
\nin paragraph 11 of its Report: “Thus, however valid may have
\nbeen the  view taken  in 1971,\tand re-affirmed\t in 1937-38,
\nthat the  age of  55 was normally the dividing\tline between
\nhealth and  efficiency on  the one side, and marked physical
\ndeterioration and  decline in efficiency On the other, there
\nis sufficient reason to think that is no longer so, and that
\nthe deviding  line can be safely moved a few years upwards.”
\nThe Commission\tthen adverted  to  the\tprevailing  ages  of
\nretirement in  foreign countries and reiterated that whether
\nwe go  by our  own “vital  statistics”\tor  by\tthe  age  of
\nretirement prevalent  in other\tcountries, there was a clear
\ncase   for raising the age of superannuation “substantially”
\nabove 55 years.\n<\/p>\n
       In   paragraph  15  of  the  Report,  the  Commission
\nconsidered the effect of increasing the age of retirement on
\nthe employment\tsituation  and\tconcluded  that\t the  likely
\nrepercussion of increasing the age of retirement on educated
\nunemployment would  not be  substantial.  After talking into
\naccount all  the relevant considerations, including the fact
\nthat most  Government servants\tthemselves do  not  wish  to
\ncontinue in  service until  they are  worn out and have “one
\nfoot in the grave”, the Commission summed up its findings by
\nsaying that  there was\t“much in  favour of  and very little
\nagainst raising\t the age  of superannuation”. The Commission
\nrecommended that the age of  superannuation should be 58 for
\nall classes  of public servants including those for whom the
\nretirement age then was 60.\n<\/p>\n
       The   recommendation  of\t  the  Second\tCentral\t Pay
\nCommission that\t the age of retirement should be raised from
\n55 to  58 years was not accepted by the Government initially
\nbecause, it  felt that\traising\t the age of retirement would
\nreduce employment  opportunities in  the  immediate  future.
\nHowever. the  Government reviewed  the position subsequently
\nand raised  the age  of retirement  to 58  years with effect
\nfrom December 1, 1962. The main considerations which weighed
\nwith the  Government in\t reaching this\tdecision  were:\t The
\nshortage of   experienced  and trained man-power which could
\nbe  met\t partly\t by  raising  the  age\tof  retirement;\t the
\ninsignificant effect  which raising  the age  of  retirement
\nwould have  on employment  opportunities; and,\tthe improved
\nlife expectation.\n<\/p>\n
      The Third Central Pay Commission (1973) dealt with the
\nquestion of  age of  superannuation in\tChapter\t 60  of\t its
\nReport. Paragraph
\n601<\/span>
\n3  of\tthat  Chapter\tshows  that   whereas  some  Service
\nAssociations Demanded  that the age of superannuation should
\nbe increased  to 60  years on account of increased longevity
\nand on account of the fact that a large number of Government
\nemployees were\tnot free  from family responsibilities until
\nmuch later  in life  because of\t late marriages, some of the
\nAssociations suggested\tthat the age of retirement should be
\nreduced again  to 55  years mainly  with a view to improving
\nthe promotional prospects and providing increased employment
\nopportunities to the educated unemployed in the country.\n<\/p>\n
      The  conclusions of  the Third  Central Pay Commission
\ncan be\tsummed up  thus:-(1) There was a further improvement
\nin the\texpectancy of  life at\tbirth  as  revealed  by\t the
\nprovisional 1971  Census figures;  (2) There was improvement
\nin the\texpectancy of  life between  the ages  of 50  and 55
\nyears, which  was of  great relevance  on  the\tquestion  of
\nfixation of  the age  of superannuation;  (3) There  was  an
\nappreciable  increase\tsince  1950  in\t the  percentage  of
\nsurvivors among\t the  Central  Government  employees  during
\nabout ten  years after\tretirement; (4)\t Though reduction in
\nthe age of superannuation to 55 years would result in making
\nabout 96,000  additional jobs  available,  that\t factor\t was
\ncounter-balanced by  the circumstance that a large number of
\nretired Government  employees are  obliged to  take up\tsome
\nemployment  or\tthe  other  after  retirement,\tdue  to\t the
\nincreased  cost\t  of   living\tand   the   growing   family
\nresponsibilities. A  reduction in  the age of superannuation
\nwould  not   therefore,\t ipso  facto,  improve\tthe  overall
\nemployment position  for the  educated unemployed;  (5)\t Any
\nincrease in  the age  of superannuation beyond the age of 58
\nwould reduce,  during the period of the increase, employment
\nopportunities  for   a\tvery   large  number  of  technical,
\nengineering and\t professional students\tpassing out from the
\nuniversities, technical institutions and industrial training
\ninstitutes ;  and, (6)\tThe age\t of retirement should not be
\nchanged frequently  since it  has a  vital  bearing  on\t the
\ncareer prospects of and the retirement benefits available to
\nGovernment employees  and since it is an important factor in
\nthe attractiveness of Government service. For these reasons,
\nthe Commission\trecommended that  the age  of superannuation
\nshould continue\t to be\t58 years  for the Central Government
\nemployees with\tthe modification  that the retirement should
\ntake effect  from the afternoon of the last day of the month
\nin which the employee attains the age of superannuation.\n<\/p>\n
      The  Third Tamil\tNadu Pay  Commission (1978) has also
\ndealt with  the question  of  the  age\tof  retirement.\t The
\nCommission noticed  that the age of retirement was more than
\n60 in some of the develop-\n<\/p>\n
602<\/span><\/p>\n
ing  countries,\t  the  economic\t development  of  which\t was
\ncomparable to  that of\tIndia. The  age of  retirement is 70
\nyears in  Brazil and  Peru, 65\tyears in  Chile, 63 years in
\nPhilippines and 64 years in Lebanon. The Commission examined
\nthe  co-relationship   between\tincrease   in  the   age  of
\nretirement and\tunemployment amongst the educated youth with
\n“a deep\t sense of  concern” and\t observed that the number of
\njobs   released by  retirement would  be  very\tmarginal  as
\ncompared with  the total  number of  job seekers  and  that,
\ntherefore, it was not fair to shift the focus of the problem
\nof  unemployment   to  the  age\t of  superannuation  of\t the
\nGovernment employees. In support of this view, it quoted the
\nInternational  Labour  Organisation  (The  World  Employment
\nProgramme): “The  three pillars\t of a  strategy\t for  fuller
\nemployment are\trural development,  labour intensive  public
\nworks programmes  and the  reduction of capital intensity of
\nindustrialisation.”  Observing\t that  the   dimensions\t  of
\nunemployment problem  should not  deter the  Government from
\nimproving the  service\tconditions  of\tits  employees.\t the
\nCommission concluded  that there  was a\t case for increasing
\nthe retirement\tage of\tthe State Government employees to 58
\nyears.\n<\/p>\n
      Our attention was also drawn to the views expressed on
\n“Employment Policy”  in the  Sixth Five Year Plan (1980-85).
\nIt  is\t observed  therein   that   lasting   solutions\t  to
\nunemployment problems  had to  be found within the framework
\nof a  rapid and\t employment-oriented economic  growth;\tthat
\nsuitable measures  had to  be evolved in the short term in a
\nco-ordinated way, particularly for the benefit of the weaker
\nsections; and  that, since  the\t dimension  and\t gravity  of
\neducated  unemployment\t vary  from   State  to\t  State,   a
\ndecentralised approach\tshould be  adopted on  the  district
\nemployment plan.  According to\tthe Sixth  Five\t Year  Plan,
\nunemployment would  not be  eliminated within the Sixth Plan
\nunless efforts\twere immediately  made to   make the current
\nunemployed more\t employable through  short-term training and
\nvocational  programmes\t and   unless\tspecial\t  employment
\nprogrammes are directed towards their absorption.\n<\/p>\n
      Soon after the assumption of office, the Government of
\nAndhra\tPradesh\t  presented  a\tWhite  Paper  to  the  State
\nLegislative Assembly   in  March 1983  on  the\tquestion  of
\nreduction in  the age  of superannuation from 58 years to 55
\nyears in  respect  of  Government  employees,  employees  of
\nPanchayat  Raj\t Institutions,\tLocal\tBodies\t and   aided
\nEducational Institutions  for whom  the pensionary liability
\nis borne by Government”. After stating that the Krishnaswamy
\nCommission   was appointed  on November 3, 1977 for the sole
\npurpose of
\n603<\/span>
\nexamining the  question of  ‘ retirement  benefits” and that
\nthe question of retirement age was not included in its terms
\nof  reference,\tthe  White  Paper  says\t that  although\t the
\nGovernment  had\t  accepted  the\t  recommendations   of\t the
\nCommission almost  in their  entirety, it did not accept its
\nrecommendation\tthat   the  age\t  of  retirement  should  be
\nincreased from\t55 to  58 years.  By  a\t notification  dated
\nSeptember 17,  19,9 the\t recommendations of the Commission B
\nin regard to the revision of pay scales were accepted by the
\nGovernment  but,   not\tso   the  recommendation   regarding
\nincreasing the age of retirement from 55 to 58 years. it was
\nlater, in  October 1979,  that the Government decided on its
\nown to\tincrease the  age of retirement from 55 to 58 years.
\nThe specific case of the State Government on the question of
\nreduction of  the age  of retirement  from 58 to 55 years is
\nstated thus:\n<\/p>\n
      “As  a result of revision of the age of superannuation
\nupwards from  55 years\tto 58  years, the normal channels of
\npromotions that\t would have  opened up\thad the\t retirements
\ntaken place  in the normal course, were choked. Consequently
\nthe resultant  vacancies at  the  direct  recruitment  level
\nwhich would  have arisen  in the  chain of appointments that
\nwould follow  each retirement, were also blocked for 3 years
\ncontinuously, thereby denying the promotion opportunities to
\ninservice personnel  and employment  opportunities  for\t the
\nunemployed causing a great deal of frustration all round. It
\nis estimated that on an average there would be approximately
\n6,500 retirements  each year  from  Government\tdepartments,
\nPanchayat Raj  Institutions  and  also\tAided  Institutions,
\nwhere  pensionary   liability  is   borne   by\t Government.
\nGovernment,  therefore,\t  decided  to\trevise\tthe  age  of
\nsuperannuation from  58\t years\tto  55\tyears  so  that\t the
\nunemployed talented  youth who were eagerly awaiting chances
\nof  appointment\t  could\t get  opportunities  of\t employment.
\nBesides, experienced  deserving\t inservice  personnel  whose
\nlegitimate aspirations\tfor promotion  were  thwarted  could
\nalso now  look for  this much  awaited promotion. Government
\nwere thus  able to  create promotional\tavenues\t to  serving
\nemployees at  various levels  and create  opportunities\t for
\nappointment  against   about  18,000  posts  in\t Government,
\nPanchayat Raj  and aided educational institutions alone, not
\nto speak  of the  opportunities that  were  created  in\t the
\nvarious\t  Corporations\t etc,\towned\tor   controlled\t  by
\nGovernment.”\n<\/p>\n
604<\/span><\/p>\n
      The  White Paper explains that in order to ensure that
\nthe employees  who had\tretired by  the end of February 1983
\nshould get  their pensionary  benefits\twithout\t delay,\t the
\nGovernment had\tconstituted a  special Pension\tcell in\t the
\nFinance Department,  by a  notification dated  February\t 16,
\n1983. The function of that cell is to  “monitor the progress
\nof settlement of pension eases” In addition, it is said, the
\nGovernment had\tissued instructions  by a notification dated
\nFebruary 14,  1983 for\tpayment of “anticipatory pension” at
\n3110th of  the last  pay drawn\tin  all\t cases\twherein\t the
\nsanction of pension was delayed.\n<\/p>\n
      on  the basis  of this  data, it\tis difficult to hold
\nthat in\t reducing the  age of  retirement from 58 to 55, the
\nState Government  or the  Legislature acted  arbitrarily  or
\nirrationally. There are precedents within our country itself
\nfor fixing the retirements age at 55 or for reducing it from
\n58 to 55. Either the one or the other of these two stages is
\nregarded  generally   as  acceptable,\tdepending  upon\t the
\nemployment policy  of the  Government of  the day. It is not
\npossible to  lay down  an inflexible rule that 58 years is a
\nreasonable age\tfor retirement\tand 55 is not. If the policy
\nadopted\t for  the  time\t being\tby  the\t Government  or\t the
\nLegislature  is\t  shown\t to   violate  recognised  norms  of
\nemployment planning,  it would\tbe possible  to say that the
\npolicy is irrational since, in that event, it would not bear
\nreasonable nexus  with the object which it seeks to achieve.
\nBut such  is not  the case  here. The reports of the various
\nCommissions, from which we have extracted relevant portions,
\nshow that  the creation of new avenues of employment for the
\nyouth is  an integral  part  of\t any  policy  governing\t the
\nfixation of  retirement age.  Since the\t impugned policy  is
\nactuated and  influenced predominatly by that consideration,
\nit cannot  be struck  down as  arbitrary or  irrational.  We
\nwould  only  like  to  add  that  the  question\t of  age  of
\nretirement should  always be examined by the Government with
\nmore than  ordinary care, more than the State Government has
\nbestowed upon  it in  this case.  The  fixation\t of  age  of
\nretirement has\tminute\tand  multifarious  dimensions  which
\nshape the lives of citizens. Therefore, it is vital from the
\npoint of  view of  their well-being that the question should
\nbe considered with the greatest objectivity and decided upon
\nthe  basis   of\t empirical   data  furnished  by  scientific
\ninvestigation. What is vital for the welfare of the citizens
\nis, of\tnecessity vital\t for the survival of the State. Care
\nmust also  be taken  to ensure\tthat the  statistics are not
\nperverted to serve a malevolent purpose
\n605<\/span>
\n\t     Shri V.M. Tarkunde, who appears for some of the
\npetitioners, A\tlimited his  argument to the contention that
\narbitrary fixation  of retirement  age amounts\tto “removal”
\nfrom service  and is  therefore violative of Article 311 (2)
\nof the Constitution This argument has to be rejected because
\nof  our\t  conclusion  that  the\t reduction  of\tthe  age  of
\nretirement from\t 58 to\t55 in the instant case is not hit by
\nArticle 14  or Article\t16, since  it is  not  arbitrary  or
\nunreasonable in\t the circumstances  of the  case. But, apart
\nfrom this  position, we\t find it difficult to appreciate how
\nthe retirement\tof an  employee in  accordance with a law or
\nrules regulating his conditions of service can amount to his
\n“removal” from\tservice. It is well-settled that Article 311
\n(2) is\tattracted only\twhen a\tcivil servant  is reduced in
\nrank, dismissed\t or removed  from service by way of penalty,
\nthat is\t to say, when the effect of the order passed against
\nhim in\tthis behalf  is to visit him with evil consequences.
\nSee Satish  Chandra v. Union of India,<\/a>(1) Shyam Lal v. State
\nof U  P.,(1) State  of Bombay  v. Saubhagchand\tM. Doshi,<\/a>(3)
\nPurshottam  Lal\t  Dhingra  v.\tUnion  of  India<\/a>(4)  and  P.
\nBalakotiah v.  Union of India(5). Besides, the point made by
\nShri Tarkunde  is concluded by a Constitution Bench decision
\nof this\t Court in  Bishun Narain  Misra v.  State  of  Uttar
\nPradesh<\/a> (6)  In that  case, the\t Government of Uttar Pradesh
\nand raised  the age of superannuation from 55 to 58 years by
\na Notification\tdated November 27, 1957 but reduced it again
\nto 55  years by\t a Notification\t dated\tMay  25,  1961.\t The
\nappellant therein,  who had  attained the age of 55 years on
\nDecember 11,  1960 and was continued in service when the age
\nof retirement  was raised  to 58 years, was one of those who
\nhad to\tretire on December 31, 1961 as a result of reduction
\nof the\tage of\tretirement to  55. It was held by this Court
\nthat the termination of service of an employee on account of
\nhis reaching  the age  of superannuation  does not amount to
\nhis removal  from service  within the meaning of Article 311
\n(2). Learned  counsel contends\tthat  this  decision  is  of
\ndoubtful authority  since the Court based its opinion on the
\nmajority judgment  in Moti  Ram Deka  v. y,General  Manager,
\nNorth Frontier Railway(7), in which the Court was not called
\nupon to consider and did not consider the validity of a rule
\nof superannuation.  It is  true that  in Moti  Ram Deka, the
\nCourt was concerned to G
\n     (1) [1953] S.C.R. 655.\n<\/p>\n
     (2) [1955] 1 S.C.R.26.\n<\/p>\n
     (3) [1958] S.C.R. 571.\n<\/p>\n
     (4) [1958] S.C.R. 828.\n<\/p>\n
     (5) [1958] S.C.R.1052.\n<\/p>\n
     (6) [1965] I S.C.R. 693.\n<\/p>\n
     (7) [1964] 5 S.C.R 683.\n<\/p>\n
606<\/span><\/p>\n
determine the  validity of  Rules 148 (3) and 149 (3) of the
\nRailway\t Establishment\t Code\twhich\tprovided   for\t the
\ntermination of\tthe service of a permanent servant by a mere
\nnotice But,  interestingly, the\t judgment in  Bishun  Narain
\nMishra shows that it was the appellant therein who relied on
\nthe decision  in Moti  Ram Deka in support of his contention
\nthat the  rule by which the age of retirement was reduced to
\n55 years  amounted to  removal within the meaning of Article
\n311 (2)\t The Court  held that  the decision in Moti Ram Deka
\nhad no\tapplication to the case before them since “that case
\ndid not\t deal with  any rule relating to age of retirement”.
\n(See page  696 of  the Report).\t It was\t after noticing this
\ndistinction that  the Court  observed that  the\t very  case,
\nnamely, Moti  Ram Deka’s case on which the appellant relied,
\ncontained   the\t   observation\t that\tthe   rule   as\t  to
\nsupperannuation or  compulsory retirement  resulting in\t the
\ntermination of service of a public servant did not amount to
\nremoval from service The Court, in Bishun Narain Misra, came
\nindependently  to  the\tconclusion  that  “as  the  rule  in
\nquestion only  dealt with  the age of superannuation and the
\nappellant had  to retire because of the reduction in the age
\nof superannuation  it cannot be said that the termination of
\nhis service  which thus\t came about  was removal  within the
\nmeaning of Article 311”.\n<\/p>\n
      The theme of Shri Siddhartha Sbankar Ray’s argument is
\n“non application  of  mind”.  He  made\tit  clear  that\t his
\nargument should not be construed as a challenge to the power
\nor jurisdiction\t of  the  Governor  to\tissue  the  impugned
\nOrdinance and  that his\t sole attempt  was to  show that the
\nOrdinance was  passed in  a hurry,  as a  result  of  which,
\nconsiderations\twhich\tare  relevant  to  the\tfixation  of
\nretirement  age\t  were\tignored.   The\tinstances   of\tnon-
\napplication of\tmind cited by the learned counsel are these:
\nThe inclusion o f the employees of the High Court within the
\nsweep of  the Ordinance\t in violation  of the  provisions of
\nChapters V  and VI of the Constitution; the inclusion of the
\nemployees  of\tthe  Legislature   Secretariat\twithin\t the
\nOrdinance; the\textension of the Ordinance even to the daily
\nrate workers; and, finally, the fact that nothing worthwhile
\nis likely  to be  achieved by  the passing  of the Ordinance
\nsince, at  the highest,\t it would  create employment at this
\npoint of  time only,  for about\t 19,500 employees After that
\npoint of  time\tpasses,\t the  same  state  of  affairs\twill
\ncontinue  since\t  the  age  of\tretirement  will  be  merely
\nsubstituted by 58 in place of 55 years.\n<\/p>\n
      It  is impossible\t to accept  the submission  that the
\nOrdinance  can\t be  invalidated   on  the  ground  of\tnon-
\napplication of mind. The
\n607<\/span>
\npower to issue an ordinance is not an executive power but is
\nthe power  of the  executive to\t legislate. The power of the
\nGovernor to  promulgate an ordinance is contained in Article
\n213  which   occurs  in\t  Chapter  IV  of  Part\t VI  of\t the
\nConstitution. The  heading of  that Chapter is ‘ Legislative
\nPower of  the Governor”.  This power  is plenary  within its
\nfield like  the power  of the State Legislature to pass laws
\nand there are no limitations upon that power except those to
\nwhich the  legislative power  of the  State  Legislature  is
\nsubject Therefore,  though an  ordinance call be invalidated
\nfor contravention  of the  constitutional limitations  which
\nexist upon  the power  of the State Legislature to pass laws
\nit cannot  be  declared\t invalid  for  the  reason  of\tnon-
\napplication of\tmind, any more than any other law can be. An
\nexecutive act  is liable  to be struck down on the ground of
\nnon-application of mind. Not the act of a Legislature.\n<\/p>\n
      On the question as to the legislative character of the
\nordinancemaking power, we may refer to the decisions of this
\nCourt in  A.K. Roy  v. Union  of India(1)  and R.K.  Garg v.
\nUnion of India(2).\n<\/p>\n
      Shri  Ray raised upon a decision of this Court in High
\nCourt of  Andhra Pradesh  v. V.V.S.  Krishnamurthy,<\/a>(3) which
\nhas taken  the view  that in  regard  to  the  servants\t and
\nofficers of  the High Court, Article 229 of the Constitution
\nmakes the  power of`  their appointment, dismissal, removal,
\ncompulsory  retirement,\t  etc.,\t including   the  power\t  to
\nprescribe their\t conditions of service, the sole preserve of
\nthe Chief  Justice and no extraneous executive authority can
\ninterfere with\tthe exercise  of that  power. This  decision
\ncannot assist  the petitioners\tsince,\tit  deals  with\t the
\nlimitations on\tthe executive  power Of\t the  Government  to
\ninterfere with\tthe power of the Chief Justice under Article\n<\/p>\n
229. The  executive cannot  encroach upon  that\t power.\t The
\ndecision of this Court in Moti Ram Deka which was also cited
\nby the\tlearned counsel,  does not touch the point raised by
\nhim.\n<\/p>\n
      Though Shri Ray presented his argument in the shape of
\na  challenge   to  the\tOrdinance  on  the  ground  of\tnon-
\napplication Of\tmind, the  real thrust\tof his\targument was
\nthat the hurry with which the Ordinance was passed shows the
\narbitrary  character  of  the  action  taken  by  the  State
\nGovernment. We have already rejected the contention of haste
\nand hurry as also the argument that the provi-\n<\/p>\n
      (1) [1982] 2 S.C.R. 272 at 282, 291.\n<\/p>\n
\t (2) 11982]1 S.C.R. 947 at 964, 967.\n<\/p>\n
\t (3) [1979]1 S.C.R. 26.\n<\/p>\n
608<\/span><\/p>\n
sions of  the Ordinance\t are, in  any manner,  arbitrary  or
\nunreasonable and  thereby violate  Articles 14 and 16 of the
\nConstitution.\n<\/p>\n
      Shri R.K. Garg, who appears in Transfer Cases Nos. 70,
\n71 and\t72 of 1983, challenges the validity of the Ordinance
\non the\tground that, casting all established norms aside, it
\nfixes the  age of  retirement at  55 years,  notwithstanding
\nindustrial adjudications  and even  settlements\t arrived  at
\nbetween\t employers   and  employees.  Relying  upon  certain
\ndecisions of this Court like Maneka Gandhi v. Union India<\/a>(1)
\nand State  of Madras  v.  V.G.\tRow<\/a>(2)\tin  support  of\t his
\nsubmission  that  arbitrariness\t invalidates  laws,  counsel
\ncontends  that\t   a   law  which  overrules  an  industrial
\nadjudication or\t settlement is fundamentally unreasonable or
\narbitrary and  must, therefore,\t be held  to be violative of
\nArticle 14 of the Constitution. It was also urged by counsel
\nthat by\t reducing the  age of  retirement to  55 years,\t the
\nGovernment  employees\twere  deprived\tof  their  right  to
\nlivelihood. There  is no  substance in\tthis latter argument
\nbecause, if a  rule of retirement can be deemed to deprive a
\nperson of  his right to livelihood, it will be impermissible
\nto provide  for an  age of  retirement at  all. That will be
\ncontrary to  public interest because the State cannot afford
\nthe luxury  of allowing its employees to continue in service
\nafter they have passed the point of peak performance.  Rules
\nof retirement  do not take away the right of a person to his
\nlivelihood: they  limit his right to hold office to a stated
\nnumber of years. This argument of the learned counsel can be
\nrejected for  other reasons  also, we do not propose to deal
\nwith these  Transferred Cases  since, there  is\t nothing  on
\nrecord to  show that there are any industrial adjunctions or
\nsettlements between employers and employees providing for an
\nage of\tretirement for\tany section  of industrial  workers.
\nThese Transferred Cases will be delinked from the other Writ
\nPetitions and will be listed for hearing later, so that they
\ncan be\tdealt with  upon their\town facts.  If the  question
\nraised by  Shri Garg  is academic,  it will  be needless  to
\nconsider it.\n<\/p>\n
      The  argument of\tmala fides  advanced  by  Shri\tA.T.
\nSampat, and adopted in passing by some of the other counsel,
\nis without  any basis. The burden to establish ma\/a fides is
\na heavy\t burden to  discharge. Vague  and casual allegations
\nsuggesting that\t a certain  act was  done with\tan  ulterior
\nmotive cannot  be  accepted  without  proper  pleadings\t and
\nadequate proof, both of which are conspi-\n<\/p>\n
\t (1) [1978] 2 S.C.R. 621 at 659, 685, 689 and 702.
\n\t (2) 11952] S.C.R. 597 at 607.\n<\/p>\n
609<\/span><\/p>\n
cously\tabsent\t in  these   writ  petitions.  Besides,\t the
\nordinance-making A  power being\t a  legislative\t power,\t the
\nargument of  mala Fides is misconceived. The legislature, as
\na body,\t cannot be  accused of\thaving passed  a law  for an
\nextraneous purpose.  Its reasons for passing a law are those
\nthat are stated in the Objects and Reasons and if no reasons
\nare so\tstated, as appear from the provisions enacted by it.
\nEven assuming  that the\t executive, in\ta given case, has an
\nulterior motive\t in moving a legislation, that motive cannot
\nrender the  passing of\tthe law\t mala  fide.  This  kind  of
\n‘transferred malice’ is unknown in the field of legislation.\n<\/p>\n
      Finally,\tthere is no substance in the contention that
\nthe amendment  to the Fundamental Rules, whereby the proviso
\nto rule\t 2 was\tdeleted, is  beyond the\t powers of the rule-
\nmaking authority  or the  Legislature. The Fundamental Rules
\nand  the   amendments  thereto\t are  issued  by  the  State
\nGovernment under  the powers  delegated to  it by  the Civil
\nServices (Governors’  Provinces) Delegation  Rules 1926, the
\nCivil Services\t(Classification, Control  and Appeal)  Rules
\n1930,  and   under  the\t  Proviso  to  Article\t309  of\t the
\nConstitution. The  Fundamental Rules  which came in to force
\nwith effect  from January  1, 1972  were amended  earlier by
\nG.O. Ms.  No. 128 dated April 29, 1969. By that amendment, a
\nproviso was added to rule 2 which reads thus:\n<\/p>\n
\t   “Provided that the rules shall not be modified or
\n     E; replaced  to the  disadvantage of any person already
\n     in service.”\n<\/p><\/blockquote>\n
By G.O.\t Ms. No. 48 dated February 17, 1983 this proviso was
\ndeleted with  retrospective effect  from February  23, 1979.
\nThe contention\tof the petitioners is that the proviso which
\nconferred a  benefit upon  Government servants by protecting
\ntheir conditions  of service,  cannot be  amended so  as  to
\nempower the  Government to  alter those\t conditions to their
\nprejudice  and,\t  in  any  event,  they\t cannot\t be  amended
\nretrospectively so  as to take away rights which had already
\naccrued to  them The  simple answer to this argument is that
\nthe amendment  of February 17, 1983 to the Fundamental Rules
\nwas made  by the Government of Andhra Pradesh in exercise of
\nthe powers conferred by the proviso to Article 309 read with
\nArticle 313 of the Constitution. It is well-settled that the
\nservice rules  can be  as much amended, as they can be made,
\nunder the  proviso to  Article 309  and that,  the power  to
\namend these  rules carries  with it  the power to amend them
\nretrospectively. The power conferred by H
\n610<\/span>
\nthe proviso to Article 309 is of a legislative character and
\nis to  be distinguished\t from an ordinary rule making power.
\nThe power  to legislate\t is of\ta plenary  nature within the
\nfield demarcated  by the  Constitution and  it includes\t the
\npower to legislate retrospectively. Therefore, the amendment
\nmade to\t the Fundamental  Rules in  the\t  exercise of  power
\nconferred by Article 309, by which the proviso to rule 2 was
\ndeleted retrospectively, was a valid exercise of legislative
\npower. The  rules and  amendments made\tunder the proviso to
\nArticle 309  can be  altered or\t repealed by the Legislature
\nbut until  that is done, the exercise of the power cannot be
\nchallenged as lacking
\n in  authority. (See  B.S. Vaderu  v. Union of India;(1) Raj
\nKumar v. Union of India(2).\n<\/p>\n
      These then are the main points in controversy on which
\ncounsel made  their contentions.  For reasons  aforesaid, we
\nreject those  contentions and  dismiss these Writ Petitions.
\nThere will be no order as to costs.\n<\/p>\n
S.R.\t\t\t\t\tPetitions dismissed.\n\t (1) [1968] 3 S C.R. 575, 582 585.\n\t (2) [1975] 3 S.C.R. 963, 965.\n611<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India K. Nagaraj & Ors. Etc. Etc vs State Of Andhra Pradesh & Anr. Etc on 18 January, 1985 Equivalent citations: 1985 AIR 551, 1985 SCR (2) 579 Author: Y Chandrachud Bench: Chandrachud, Y.V. ((Cj) PETITIONER: K. NAGARAJ & ORS. ETC. ETC., Vs. RESPONDENT: STATE OF ANDHRA PRADESH & ANR. ETC. DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-17554","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK. Nagaraj & Ors. Etc. Etc vs State Of Andhra Pradesh & Anr. 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