TaxTMI 
TaxTMI 
1985 (1) TMI 337
X X X X Extracts X X X X
X X X X Extracts X X X X
....of all Government employees, other than in the last Grade Service, from 58 to 58 years. Two notifications issued in exercise of the power conferred by the Proviso to Article 309 read with Article 313 of the Constitution was appended to that order. The relevant Fundamental Rules were amended by the first notification, while the corresponding rules of the Hyderabad Civil Services Rules were amended by the second notification. By these notifications, every Government servant, whether ministerial or non-ministerial but not belonging to the last Grade Service, who had already attained the age of 55 years was to retire from service with effect from February 28, 1983. Speaking to the Government employees in the Secretariat premises the next day, the Chief Minister justified the reduction of the retirement age from 58 to 55 years on the ground that it had become necessary to provide greater employment opportunities to the youths. Over 18,000 Government employees and 10,000 public sector employees were superannuated as a result of the order. These writ petitions were filed by the Andhra Pradesh Government employees to challenge the aforesaid order and the notifications on the ground that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bout 70 years is not a ground for increasing the age of retirement of Government employees; that the general trend was for reducing the age of retirement; that the Government of Kerala and Karnataka had reduce the age of retirement of their employees to 55, though it was earlier increased from 55 to 58; that in some States in India the age of retirement is 55 and not 58; the present decision was taken by the Government in order to fulfill its commitment that it will take welfare measures in order to improve the lot of the common man, and. particularly, in order to afford opportunities to qualified and talented unemployed youths whose number was increasing enormously due to expansion of educational facilities; that the Government employees was stagnated in the lower positions due to the increase in the age of retirement from 55 to 58: and that, the present measure was intended to have a salutary effect on the creation of incentives to the deserving employees The affidavit says further that the question as regards the age of retirement is a pure question of Governmental policy affording no cause of action to the petitioners to file the writ petitions. The affidavit asserts that the G....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with the affairs of the State of Andhra Pradesh and the officers and servants of the High Court of Andhra Pradesh". We are not concerned in these writ petitions with clauses 3 to 9 of the Ordinance which mostly regulate conditions of service. Clause 10(1) of the Ordinance prescribes that every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the are of 55 years. Clause 10(2) provides that every Government employee, not being a workman but belonging to the Last Grade Service, shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Clause 10(3) provides that every workman belonging to the Last Grade Service or employed on a monthly rate of pay in any service notified as Inferior, shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Workmen belonging to Ministerial Service or any service other than the Last Grade Service notified as Inferior have to retire on the afternoon of the last day of the month in which they attain the age of 55 years. By cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ersedes all industrial adjudications and overrules even settlements arrived at between the management and the employees. Shri P.P. Rao contends that the Ordinance is bad because. whereas in the case of compulsory retirement a notice of three months is required to be given by the Government under the relevant rules, in the case of superannuation of employees who had already attained the age of 55 on February 8, 1983; when the first Order was issued, the impugned law gives to the employees a notice of 20 days only since all such employees had to retire on February 28, 1983. Shri P P. Rao also challenges the retrospective deletion of the proviso to Rule 2 of the Fundamental Rules as being arbitrary. Shri Gururaj Rao challenges the Ordinance on the ground that it runs into the teeth of the recommendation which the Andhra Pradesh One Man Pay Revision Commission had made in 1979 in pursuance of which the age of retirement was raised from 55 to 58. Shri A.T.M. Sampath laid stress on the lack of acceptable reasons to justify the issuance of the Ordinance Like some of the other learned counsel, he suspects the bona fides of the state Government in issuing the Order and the Ordinance. It was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of a given case. We do not suggest that every question of policy is outside the scope Of judicial review or that, necessarily, there are no manageable standards for reviewing any and every question of policy. Were it so, this Court would have declined to entertain pricing disputes covering as wide a range as cars to mustard-oil. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the Court's interference would be called for, though not for fixing the age of retirement but for mandating a closer consideration of the matter. "Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14."(l) But, while resolving the validity of policy issues like the age of retirement, it is not proper to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts. That is an exercise which the administrator and the legislature have to undertake. As state....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lt is indeed produced by the impugned action of the State Government In 1979, when the age of retirement was increased from 55 to 58 years, promotional opportunities were denied to the employees because, those who would have retired at the age of 55 got a fresh lease of life for another years. Now, when their turn for promotion has come at about the age of 55, they have been superannuated; (d) The theory that reduction in the age of retirement provides employment opportunities to educated youths is fallacious. The various Pay Commissions have expressed the view that persons who are required to retire at an early age are compelled by necessity to seek other employments. Even otherwise, not more than one per cent of the unemployed educated youths are likely to get employment as a result of the reduction in the age of retirement from 58 to 55. That is because, not more than 18,000 vacancies arose on account of the reduction in the age of retirement. (e) The careful planning by the employees of their important affairs of life like the construction of a house, the marriage- of a daughter or the repayment of loans, has been suddenly set at naught by the reduction in the age of reti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the age of retirement should be raised. p73 Ordinance which mostly regulate conditions of service. Clause 10(1) of the Ordinance prescribes that every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the are of 55 years. Clause 10(2) provides that every Government employee, not being a workman but belonging to the Last Grade Service, shall retire from service on the afternoon of the last day of the of the Commission cover the review of the existing 'retirement benefits', the reference "would naturally include the age of retirement." This was an erroneous and unwarranted reading of the terms of reference. A review of retirement benefits would undoubtedly cover the examination of the rules or schemes relating to pension, provident fund, gratuity, encasement of leave, etc, but it cannot include the power to examine the question as regards the fixation of the age of retirement. The Commission says in the same paragraph, as a possible justification of its consideration of the question of the age of retirement, that "it was mentioned on the floor of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inst the provisions of the Constitution and it can be no defense to the charge of unconstitutionality that the decision was taken after the lapse of a long time. Conversely, decisions which are taken promptly cannot be assumed to be bad because they are taken promptly. Every decision has to examined on its own merits in order to determine whether it is arbitrary or unreasonable. Besides, we have to consider the validity of a law regulating the age of retirement. It is untenable to contend that a law is bad because it is passed immediately on the assumption of office by a new Government. It must also be borne in mind that the question as to what should be the proper age of retirement is not a novel or unprecedented question which the State Legislative had to consider. There is a wealth of material on that subject and many a Pay Commission has dealt with it comprehensively. The State Government had the relevant facts as also the reports of the various Central and State Pay Commissions before it, on the basis of which it had to take a reasonable decision. The aid and assistance of a well-trained bureaucracy which, notoriously, plays an important part not only in the implementation of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1981-55 years Kerala 1967-55 years 1968-58 years 1969- 55 years 1984-58 years Madhya Pradesh 58 years; Reduced to 55 years 1967; enhanced to S years in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al staff was that a Government servant who had attained the age of 55 might be required to retire; but that, in order to avod depriving the State of the valuable experience of efficient officers and adding unnecessarily to the non-effective charges, the rule should be applied with discretion and, whenever it was applied, reasons should be recorded. In its general effect, here, the rule favoured the retention in Government service of officers who had attained the age of 55, and required inefficiency to be established as the condition of compulsory H retirement. This was considered injurious to the efficiency of the public service, on the ground that most officers lost their keenness and initiative at the age of 55. The rule was, accordingly, changed so as to make retirement at 55 the normal practice, and retention in service beyond that age the exception. A distinction was, however, made between ministerial and non-ministerial officers, presumbly because, it was thought that the duties of the former did not suffer from the effects of advancing age as did those of the others; and it was decided, in effect, that, subject to continued efficiency, ministerial officers should be retained....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... service beyond that age might be given liberally on the ground of public interest, more specially in the case of scientific and technical personnel. The continuing shortage of trained man-power led to a further review of the problem in 1958; but, apart from laying down the criteria for grant of extension and re-employment, and re-emphasizing the need to retain technical and scientific personnel beyond the age of superannuation, the only significant advance on the earlier decisions was that re- employment or extension might be granted upto two years at a time. thus notwithstanding the recommendation of the Varadachariar Commission, the age of superannuation laid down for the non-ministerial staff more than 40 years earlier and for ministerial staff more than 20 years earlier, continued to be in force when the Second Central Pay Commission took up that question for examination. There was an "extraordinary unanimity of opinion" amongst Heads of Departments, distinguished retired public servants, public men and economists who gave evidence before the Commission that the age of superannuation should be raised, the only difference being as to whether it should be raised to 58 or 60 y....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ge of retirement on educated unemployment would not be substantial. After talking into account all the relevant considerations, including the fact that most Government servants themselves do not wish to continue in service until they are worn out and have "one foot in the grave", the Commission summed up its findings by saying that there was "much in favour of and very little against raising the age of superannuation". The Commission recommended that the age of superannuation should be 58 for all classes of public servants including those for whom the retirement age then was 60. The recommendation of the Second Central Pay Commission that the age of retirement should be raised from 55 to 58 years was not accepted by the Government initially because, it felt that raising the age of retirement would reduce employment opportunities in the immediate future. However. the Government reviewed the position subsequently and raised the age of retirement to 58 years with effect from December 1, 1962. The main considerations which weighed with the Government in reaching this decision were: The shortage of experienced and trained man-power which could be met partly by raising the age of reti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....employees and since it is an important factor in the attractiveness of Government service. For these reasons, the Commission recommended that the age of superannuation should continue to be 58 years for the Central Government employees with the modification that the retirement should take effect from the afternoon of the last day of the month in which the employee attains the age of superannuation. The Third Tamil Nadu Pay Commission (1978) has also dealt with the question of the age of retirement. The Commission noticed that the age of retirement was more than 60 in some of the develop- ing countries, the economic development of which was comparable to that of India. The age of retirement is 70 years in Brazil and Peru, 65 years in Chile, 63 years in Philippines and 64 years in Lebanon. The Commission examined the co-relationship between increase in the age of retirement and unemployment amongst the educated youth with "a deep sense of concern" and observed that the number of jobs released by retirement would be very marginal as compared with the total number of job seekers and that, therefore, it was not fair to shift the focus of the problem of unemployment to the age of s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on dated September 17, 19,9 the recommendations of the Commission B in regard to the revision of pay scales were accepted by the Government but, not so the recommendation regarding increasing the age of retirement from 55 to 58 years. it was later, in October 1979, that the Government decided on its own to increase the age of retirement from 55 to 58 years. The specific case of the State Government on the question of reduction of the age of retirement from 58 to 55 years is stated thus: "As a result of revision of the age of superannuation upwards from 55 years to 58 years, the normal channels of promotions that would have opened up had the retirements taken place in the normal course, were choked. Consequently the resultant vacancies at the direct recruitment level which would have arisen in the chain of appointments that would follow each retirement, were also blocked for 3 years continuously, thereby denying the promotion opportunities to inservice personnel and employment opportunities for the unemployed causing a great deal of frustration all round. It is estimated that on an average there would be approximately 6,500 retirements each year from Government departments, Panch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominatly by that consideration, it cannot be struck down as arbitrary or irrational. We would only like to add that the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation of age of retirement has minute and multifarious dimensions which shape the lives of citizens. Therefore, it is vital from the point of view of their well-being that the question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital for the welfare of the citizens is, of necessity vital for the survival of the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose Shri V.M. Tarkunde, who appears for some of the petitioners, A limited his argument to the contention that arbitrary fixation of retirement age amounts....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of Rules 148 (3) and 149 (3) of the Railway Establishment Code which provided for the termination of the service of a permanent servant by a mere notice But, interestingly, the judgment in Bishun Narain Mishra shows that it was the appellant therein who relied on the decision in Moti Ram Deka in support of his contention that the rule by which the age of retirement was reduced to 55 years amounted to removal within the meaning of Article 311 (2) The Court held that the decision in Moti Ram Deka had no application to the case before them since "that case did not deal with any rule relating to age of retirement". (See page 696 of the Report). It was after noticing this distinction that the Court observed that the very case, namely, Moti Ram Deka's case on which the appellant relied, contained the observation that the rule as to supper annuation or compulsory retirement resulting in the termination of service of a public servant did not amount to removal from service The Court, in Bishun Narain Misra, came independently to the conclusion that "as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....legislative character of the ordinancemaking power, we may refer to the decisions of this Court in A.K. Roy v. Union of India([1982] 2 S.C.R. 272 at 282, 291.) and R.K. Garg v. Union of India(11982]1 S.C.R. 947 at 964, 967.). Shri Ray raised upon a decision of this Court in High Court of Andhra Pradesh v. V.V.S. Krishnamurthy,( [1979]1 S.C.R. 26.) which has taken the view that in regard to the servants and officers of the High Court, Article 229 of the Constitution makes the power of` their appointment, dismissal, removal, compulsory retirement, etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power. This decision cannot assist the petitioners since, it deals with the limitations on the executive power Of the Government to interfere with the power of the Chief Justice under Article 229. The executive cannot encroach upon that power. The decision of this Court in Moti Ram Deka which was also cited by the learned counsel, does not touch the point raised by him. Though Shri Ray presented his argument in the shape of a challenge to the Ordinan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cts. If the question raised by Shri Garg is academic, it will be needless to consider it. The argument of mala fides advanced by Shri A.T. Sampat, and adopted in passing by some of the other counsel, is without any basis. The burden to establish ma/a fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspicously absent in these writ petitions. Besides, the ordinance-making A power being a legislative power, the argument of mala Fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of 'transferred malice' is unknown in the field of legislation. Finally, there is no substance in the contention that the amendment to the Fund....