K. Nagaraj & Ors, V. State Of Andhra Pradesh & Anr

K. Nagaraj & Ors, V. State Of Andhra Pradesh & Anr in India

K. Nagaraj & Ors, V. State Of Andhra Pradesh & Anr [1985] Insc 8; Air 1985 Sc 551; 1985 (2) Scr 579; 1985 (1) Scc 523; 1985 (1) Scale 31 (18 January 1985)

Court Judgment Information

  • Year: 1985
  • Date: 1 Scc 523; 1985
  • Court: Supreme Court of India
  • INSC: [1985] INSC 8

Text of the Court Opinion

CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S.

MUKHARJI, SABYASACHI (J)

Citation

1985 AIR 551 1985 SCR (2) 579 1985 SCC (1) 523 1985 SCALE (1)31

Citator Info

R 1985 SC 724 (15) D 1986 SC 210 (16,17,26, 29) F 1987 SC 415 (16) RF 1987 SC1676 (16) R 1990 SC 334 (98, 99) RF 1992 SC1277 (47,48,97)

Act

Civil Service-Age of superannuation-Age reduced to 55 years for all Government employees, other than those in last grade service, in accordance with the election manifesto. to provide greater employment opportunities to the youthsWhether the order and Notifications are unreasonable, arbitrary and violative articles 14,16, 21 and 300-A of the Canstitution-G.O.M.S- 35 (GAD, dated 8.2 83 and Notification read with the Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance, 1983 omitting Proviso to Rule 2, 56 of the AP Fundamental Rules and Rule 231 of the Hyderabad Civil Service Rule-“Retirement benefits” measuring of-Limits of judicial Review of Policy decisions of the State-Mala fides, burden of proof-Transferred Malice in unknown in the field of legislation.

Headnote

A new political party called Telugu Desam swept to power in the 1983 Andhra Pradesh Assembly elections, within a month of assuming office, the new Government of Andhra Pradesh, passed an order No. G.O.M.S. 36 GAD Services dated 8.2.83 (appending two Notifications) stating that in order to provide greater employment opportunities to the youths it had decided to reduce the age of superannuation of all Government employees, other than those in the last grade service, from 58 to 55 years with elect from February 28, 1983. Over 18,000 employees and 10,000 public sector employees were superannuated, as a result of the order.

The aggreived employees, therefore filed writ petitions and challenged the constitutional validity of the said order and Notifications under Articles 14, 16, 21 and 300A of the Constitution. According to the petitioners: (i) there was no basis at all for reducing the age of retirement from 58 to 55, as nothing had happened since October 29,1979 on which date the age limit was raised from 55 to 58 years; (ii) providing employment opportunities to the youths has no relevance on the question of fixing the age of retirement;

(iii) the government had exercised its power arbitrarily without having regard to factors which are relevant on the fixation of the age of retirement; (iv) the government had acted unreasonably in not giving any previous notice to the employees which would have enabled them to arrange their affairs on the eve of retirement; (v) the government was estopped from reducing the age of retirement to 55 since the employees had acted on the representations made to them in 1979 by increasing the age of retirement from 55 to 58; (vi) as a result of the increase in the age of retirement from 55 to 58 years in 1979, a vested right had accrued to the 580 employees. which could be taken away if at all, only from future entrants to the government service; (vii) retirement of experienced and mature persons from government service will result in grave detriment to public services of the State (viii) the decision of the government is bad for a total non-application of the mind to the relevant facts and circumstances bearing on the question of age of retirement like increased longevity; and (ix) the government had not even considered the enormous delay which would be caused in the payment of pensionary benefits to employees who were retired from service without any pre thought.

The respondent State filed two affidavits traverssing each and every ground of challenge and asserted that the age of retirement was reduced because “it is the duty of the State, within the- limits of its economic capacity and development to make effective provisions to solve the unemployment problem which has gone upto 17,84,699 by December 31, 1 982. The contentions of the State were:

(i) the question of the age of superannuation was not referred to the One-man Pay Commission and therefore, its recommendations to increase the age from 55 to 58 was only casual not based on relevant criteria and has no relevance to the present decision of the State to reduce the age of retirement; (ii) as a result of the unwarranted increase in the age of superannuation from 55 to 58 not only was there a one-third increase in the number of unemployed youths but also the chances of promotion of the service personnel had deteriorated resulting in wide spread frustration and unemployment: (iii) the age of retirement was reduced because it is the duty of the State, within its limits of economic capacity and development, to make effective provision to solve the unemployment problem; (iv) the fact that the average expectation of life is about 70 years is not a ground for increasing the age of retirement of Government employees; (v) the general trend was for reducing the age of retirement; (vi) the Government of Kerala and Karnataka had reduced the age of retirement of their employees to 55 and in some other States in India also the age of retirement is 55, (vii) the present decision was taken by the Government in order to fulfill its commitment that it will make welfare measures in order to improve the lot of the common man, and particularly, in order to afford opportunity to qualified and talented unemployed youths whose number was increasing enormously due to expansion of educational facilities; (viii) the present measure was intended to have a salutory effect on the creation of incentives to the deserving employees; and (ix) the question as regards the age of retirement is a pure question of governmental policy affording no cause of action to the petitioners to file the writ petitions.

Rule Nisi was issued on the writ petitions by the court on February 25,1983. The Legislative Assembly of Andhra Pradesh was prorogued on April 9, 1983. On the very next day, i.e. April 10, 1983 the Governor promulgated Ordinance No. 5 of 1983 called the Andhra Pradesh Public Employment (Regulation of conditions of Service) Ordinance, 1983 by which proviso to Rule 2 and Rule 56 of the Andhra Pradesh Fundamental Rules and Rule 231 of the Hyderabad Civil Service Rules-the rule governing the age of retirement- were omitted.

Dismissing the petitions, the Court

Held

1.1 Public interest demands that there ought to be an age of retirement in public services. The poin of the peak level of efficiency is bound to differ 581 from individual to individual for that reason. A common scheme of general application governing superannuation has, therefore, to be evolved in the light of experience regarding performance levels of employees, the need to provide employment opportunities to the younger sections of society and the need to open up promotional opportunities to employees at the lower levels early in their career.

Inevitably, the public administrator has to counterbalance conflicting claims while determining the age of superannuation. On the one hand, public services cannot be deprived of the benefit of the mature experience of senior employees; on the other hand, a sense of frustration and stagnation cannot be allowed to generate in the minds of the junior members of the services and the younger sections of the society. The balancing of these conflicting claims of the different segments of society involves minute questions of policy and considerations of varying vigour and applicability which must, as far as possible, be left to the judgment of the executive and the legislature. [ 90F-H; 591A-B] E.P. Royappa v. State of Tamil Nadu, [1974] 2 SCR 348 referred to.

1.2 While resolving the validity of policy issues like the age of retirement, it is not proper for the Court to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts.

That s an exercise which the administrator and the legislature have to undertake. This is so because often, the Court has no satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of a given case. [591E; C]

1.3 It is not that every question of policy is out side the scope of judicial review or that necessarily, there are no manageable standards for reviewing any and every question of policy. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the Court’s interference would be called for though not for fixing the age of retirement but for mandating a closer consideration, of the matter. [591C-D]

2. Fixing the age of superannuation by reducing it from 58 to 55 would be unreasonable or arbitrary if it does not accord with the principles which are relevant for fixing the age of retirement or if it does not subserve any public interest. On the other hand, the Ordinance shall have to be held valid, if the fundamental premise upon which it proceeds has been accepted as fair and reasonable in comparable situations, if its provisions bear nexus with public interest and if it does not offend against the Constitutional limitations either on legislative competence or on the legislative power to pass laws which bear on fundamental rights. [591G-H: 592A]

3.1 The report of the One-man Pay Commission has to be kept out of consideration in so far as the question of the age of retirement is concerned. The contention that the reversal of the well considered decision of the Commission to raise the age to 58 within a short span of less than three years and a half, as nothing had happened in between warranting a departure from it, is fallacious because the question, as to whether the age of retirement should be raised which was then 55, was not referred to the Commission at all in the terms of reference. Further the decision which the Government took later to increase the age of retirement from 55 to 58 years was not based on the recommendation of the Commission. [595D; C] 582

3.2 The Power of a Commission to inquire into a question must depend upon the terms of the reference and not upon the statements made on the floor of the House. [595A]

3.3 A review of retirement benefits would undoubtedly cover the examination of the rules or schemes relating to pension, provident fund, gratuity, encasement of leave etc., but it cannot include the power to examine the question as regards the fixation of the age of retirement. Therefore, paragraph 9 47 of the report of One-man Pay Commission which begins by saying that “since the terms of reference of the Commission cover the review of the existing retirement benefits, the reference would naturally include the age of retirement” was an erroneous and unwarranted reading of the terms of the reference. [594F; E]

4.1 No law can be said to be bad because it is passed immediately on the assumption of office by a new Government.

Were this so, every decision taken by a new Government soon after assumption of office shall have to be regarded as arbitrary. I 595E]

4.2 The reasonableness of a decision in any jurisdiction, does not depend upon the time which it takes.

A delayed decision of the Executive can also be bad as offending against the provisions of the Constitution and it can be no defence to the charge of unconstitutionality that the decision was taken after the lapse of a long time.

Conversely, decisions which arc taken promptly cannot be assumed to be bad because they arc taken promptly. [595F-G]

4.3 Every decision has to be examined on its own merits, in order to determine whether it is arbitrary or unreasonable. Here, the State Government had the relevant facts as also the reports of the various Central and State Pay Commissions before it, 011 the basis of which it had taken a reasonable decision to reduce the age of retirement from 58 to 55. The aid and assistance of a well trained bureaucracy which notoriously, plays an important part not only in the implementation of policies but in their making was also available to the Government. Therefore, the speed with which the decision was taken cannot, without more, invalidate it on the ground of arbitrariness. [59-G; 596.AB]

5.1 By and large, in the formulation of matters of legislative policy, the government of the day must be allowed a free, though fair play and there need not necessarily be a uniform age of retirement all over India.

Though immutable considerations which are generally or universally true like increased life expectation are as much valid for Jammu and Kashmir as for Tamil Nadu, that cannot justify the conclusion that fixation of the retirement age at 55 in Jammu and Kashmir is invalid since the State of Tamil Nadu has fixed it at 58 or that the age limit should be fixed at 62 or 65. There is no one fixed or focal point of reasonableness. There can be a large and wide area within which the administrator or the legislator can act, without violating the constitutional mandate of reasonableness. That is the area which permits free play in the joints. [596C-D;

F]

5.2 The area between the ages of 55 and 58 is regarded in our country as a permissible field of operation for fixing the are of retirement. Neither the American nor the English notions or norms for fixing the retirement age can render invalid the basis which is widely accepted in our country as reasonable for that purpose. [597D-E]

5.3 On the basis of the data furnished in the White Paper presented to the State Legislative Assembly in March 1983 on the question of “reduction in 583 the age of superannuation from 58 years to 55 years” by the new Telugu Desam Party controlled State Government, the reduction of the age of retirement from 58 to 55, in the instant case is not hit by Article 14 or 16 of the Constitution and the State Government or the Legislature has not acted arbitrarily or irrationally. The precedents within our country itself for fixing the retirement age at 55 or for reducing it from 58 to 55 and their acceptance depending upon the employment policy of the Government of the day make it impossible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the Legislature is shown to violate recognized norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve.

The reports of the various Commissions show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Here, the impugned policy is actuated and influenced predominantly by that consideration. [604C-F] However, the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation. Of age of retirement has minute and multifarious dimensions which shape the lives of citizens.

Therefore, it is vital from the point of view of their wellbeing that the question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital f`or the welfare of the citizens is, of necessity, vital for the survival or the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose. [604F-H ]

6. It is well settled that Article 311(2) of the Constitution is attracted only when a civil servant is reduced in rank, dismissed or removed from service by way of penalty, that is to say, when the effect of the order passed against him in his behalf is to visit him with evil consequences. The termination of service of an employer on account of his reaching the age of superannuation does not amount to his removal from service within the meaning of Article 311(2). Here there being no arbitrariness in the fixation of reduced retirement age, there is no violation of Article 311(2) of the Constitution, either. [605C; F] Satish Chandra V Union of India[1953] SCR 655; Shyam Lal v. State of U.P., [1955] 1 SCR 26; State of Bombay v. ,Saubhagchand M. Doshi[1958] SCR 571 ; Purshotam Lal Dhingra v. Union of India, [1958] SCR 828; P. Balakotiah V.

Union of India[1958] SCR 1052; Bishun Narain Misra v. State Union of Uttar Pradesh[1965] 1 SCR 693, relied on.

Moti Ram Deka v. General Manager. North Frontier Railway, [1964] 5 SCR 683 explained.

7. Though an ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the State legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law call be. An executive act is liable to be struck 584 down on the ground of non-application of mind. Not the act of a Legislature. The power to issue an ordinance is no an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an ordinance is contained in Article 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is “Legislative Power of the Governor”. This power is plenary within. its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject. [607C; A-B] A.K. ROY v. Union of India. [1982] 2 SCR 272 at pp.

282, 291; R K Garg v. Union of India, [1982] 1 SCR 947 at pp. 964, 967; High Court of Andhra Pradesh v. V V. S.

Krishnamurthy, [1979] 1 SCR 26; Motiram Dake v. General Manager, North Frontier Railway, [1964] 5 SCR 683 distinguished.

8. If a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement at all. That will be contrary to public interest because the Slate cannot afford the luxury of allowing Its employees o continue in service after they have passed the point of peak performance. Rules of retirement do not take away the right of a person to his livelihood: they limit his right to hold office to a stated number of years. [608D-E]

9.1 The burden to establish mala fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions. Besides the ordinance making power being a legislative power, the argument of mala fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. If no reasons are so stated as appear from the provisions enacted by it. Its reasons for passing a law or those that are stated in the Objects and Reasons. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of ‘transferred malice’ is unknown in the field of legislation. [608G-H; 609A-B]

9.2 The amendment made to the Fundamental Rules in the exercise of power conferred by Articles 309 by which the proviso to Rule 2 was deleted reirospectively, with effect from February 23, 1983 by G.O.M.S. dated P 17-2-83 was a valid exercise of legislative power. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done the exercise of the power cannot be challenged as lacking in authority. [610B-C]

9.3 It is well-settled that the service rules can be as much amended, as they can be mader, under the proviso to Article 309 and that, the power to amend these rules carries with it the power to amend them retrospectively. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. [609H; 610A-B] B.s. Vadera v. Union of India, [1968] 3 S.C.R. 575 582-55, Raj Kumar v. Union of India [ 1975] 3 S.C.R. 963, 965, followed 585

ORIGINAL JURISDICTION: Writ Petition Nos. 1073-1100, 1117-19 1229-95, 142 -1554, 1746-2140, 2155-2271, 2396-2459. 1198-1217, 1302-12, 1314-15, 1566-1641, 1140-70, 2360-95, 1643-1725,2272-2329,2152,2332,2339,2491,3486-89, 2498-2521, 2522.;533-74,2611-2638 and 2531 of 1983. (Under Article 32 of the Constitution of India) AND Writ Petition Nos. 4218,4571 and 5266-5280 of 1983 Under article 32 of the Constitution of India) AND Transfer Case Nos. 44-339 of 1983 K.K. Venugopal S.S Ray, P.P. Rao, V.M. Tarkuade and R K. Garg, V. Jogayya Sharma, M.P. Rao, Sudarsh Menon, T. V.S N. Churi, G. Narasimhulu, A. Subba Rao, M.K.D. Namboodiry, H.S. Guru Raj Rao, S. Markandeya, A.T.M. Sampath, D.K. Garg, Nikhil Chandra and A K Panda for the Petitioners.

L.N. Sinha, Attorney General, Anil B. Divan,B.

Parthasarthi and K.R. Chaudhary for the Respondents.

G.N. Rao for the State.

Miss A. Subhashini for the Union.

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