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TMI Blog1985 (1) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 they violate Articles 14, 16, 21 and 300A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the age of retirement of Government employees; that the general trend was for reducing the age of retirement; that the Government of Kerala and Karnataka had reduce the age of retirement of their employees to 55, though it was earlier increased from 55 to 58; that in some States in India the age of retirement is 55 and not 58; the present decision was taken by the Government in order to fulfill its commitment that it will take welfare measures in order to improve the lot of the common man, and. particularly, in order to afford opportunities to qualified and talented unemployed youths whose number was increasing enormously due to expansion of educational facilities; that the Government employees was stagnated in the lower positions due to the increase in the age of retirement from 55 to 58: and that, the present measure was intended to have a salutary effect on the creation of incentives to the deserving employees The affidavit says further that the question as regards the age of retirement is a pure question of Governmental policy affording no cause of action to the petitioners to file the writ petitions. The affidavit asserts that the Government had reviewed the situation arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 clause 15, All Rules and Regulations made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules 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 suggested by the petitioners, though somewha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich alternative, out of the many competing ones, is the best in the circumstances of a given case. We do not suggest that every question of policy is outside the scope Of judicial review or that, necessarily, there are no manageable standards for reviewing any and every question of policy. Were it so, this Court would have declined to entertain pricing disputes covering as wide a range as cars to mustard-oil. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the Court's interference would be called for, though not for fixing the age of retirement but for mandating a closer consideration of the matter. "Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14."(l) But, while resolving the validity of policy issues like the age of retirement, it is not proper to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts. That is an exercise which the administrator and the legislature have to undertake. As stated in 'The Supreme Court And The J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 retirement; (f) Two of the most relevant circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance which mostly regulate conditions of service. Clause 10(1) of the Ordinance prescribes that every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the are of 55 years. Clause 10(2) provides that every Government employee, not being a workman but belonging to the Last Grade Service, shall retire from service on the afternoon of the last day of the of the Commission cover the review of the existing 'retirement benefits', the reference "would naturally include the age of retirement." This was an erroneous and unwarranted reading of the terms of reference. A review of retirement benefits would undoubtedly cover the examination of the rules or schemes relating to pension, provident fund, gratuity, encasement of leave, etc, but it cannot include the power to examine the question as regards the fixation of the age of retirement. The Commission says in the same paragraph, as a possible justification of its consideration of the question of the age of retirement, that "it was mentioned on the floor of the House that this issue is referred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 policies but in their making, was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , lowered from 58 to 55 years) West Bengal 58 years (since 1961) It is clear from this table that the area between the ages of 55 and 58 is regarded in our country as a permissible field of operation for fixing the age of retirement. Neither the American nor the English notions or norms for fixing retirement age can render invalid the basis which is widely accepted in our country as reasonable for that purpose. On the question of policy regarding the fixation of retirement age, it will be useful to draw attention to the views expressed upon that question from time to time by the various Pay Commissions. Chapter XXXVII of the Report of the Second Central Pay Commission (1959) deals with the question as to the 'Age of Superannuation'. The history and background of the fixation of age of superannuation traced in that Chapter make useful reading. Prior to 1917, the superannuation rule applicable to both ministerial and non ministerial staff was that a Government servant who had attained the age of 55 might be required to retire; but that, in order to avod depriving the State of the valuable experience of efficient officers and adding unnecessarily to the non-effective ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an age when they would still be fit to render service to the country in other spheres of their choice, even though not wholly capable of keeping up with the fast tempo of Government work, or of meeting its other exacting requirements. It was observed that Government service ages employees quicker and that, the question was one of balancing limited use to Government of such men against, perhaps, their better usefulness to the nation at large. Paragraph 6 of the Commission's Report shows that the question was reconsidered in 1963 when, the only additional argument advanced against an upward change its adverse effect on educated unemployment. It was recognized that its actual effect would A be small but, importance was attached to its probable impact on public opinion. The earlier decision to maintain the age of retirement at 55 was re-affirmed but, in view of the widespread shortage of trained personnel, it was decided that extension of service beyond that age might be given liberally on the ground of public interest, more specially in the case of scientific and technical personnel. The continuing shortage of trained man-power led to a further review of the problem in 1958; but, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. On this data, the Commission concluded in paragraph 11 of its Report: "Thus, however valid may have been the view taken in 1971, and re-affirmed in 1937-38, that the age of 55 was normally the dividing line between health and efficiency on the one side, and marked physical deterioration and decline in efficiency On the other, there is sufficient reason to think that is no longer so, and that the deviding line can be safely moved a few years upwards." The Commission then adverted to the prevailing ages of retirement in foreign countries and reiterated that whether we go by our own "vital statistics" or by the age of retirement prevalent in other countries, there was a clear case for raising the age of superannuation "substantially" above 55 years. In paragraph 15 of the Report, the Commission considered the effect of increasing the age of retirement on the employment situation and concluded that the likely repercussion of increasing the age of retirement on educated unemployment would not be substantial. After talking into account all the relevant considerations, including the fact that most Government servants themselves do not wish to continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) Though reduction in the age of superannuation to 55 years would result in making about 96,000 additional jobs available, that factor was counter-balanced by the circumstance that a large number of retired Government employees are obliged to take up some employment or the other after retirement, due to the increased cost of living and the growing family responsibilities. A reduction in the age of superannuation would not therefore, ipso facto, improve the overall employment position for the educated unemployed; (5) Any increase in the age of superannuation beyond the age of 58 would reduce, during the period of the increase, employment opportunities for a very large number of technical, engineering and professional students passing out from the universities, technical institutions and industrial training institutes ; and, (6) The age of retirement should not be changed frequently since it has a vital bearing on the career prospects of and the retirement benefits available to Government employees and since it is an important factor in the attractiveness of Government service. For these reasons, the Commission recommended that the age of superannuation should continue to be 58 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort-term training and vocational programmes and unless special employment programmes are directed towards their absorption. Soon after the assumption of office, the Government of Andhra Pradesh presented a White Paper to the State Legislative Assembly in March 1983 on the question of reduction in the age of superannuation from 58 years to 55 years in respect of Government employees, employees of Panchayat Raj Institutions, Local Bodies and aided Educational Institutions for whom the pensionary liability is borne by Government". After stating that the Krishnaswamy Commission was appointed on November 3, 1977 for the sole purpose of examining the question of ' retirement benefits" and that the question of retirement age was not included in its terms of reference, the White Paper says that although the Government had accepted the recommendations of the Commission almost in their entirety, it did not accept its recommendation that the age of retirement should be increased from 55 to 58 years. By a notification dated September 17, 19,9 the recommendations of the Commission B in regard to the revision of pay scales were accepted by the Government but, not so the recommend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory pension" at 3110th of the last pay drawn in all cases wherein the sanction of pension was delayed. on the basis of this data, it is difficult to hold that in reducing the age of retirement from 58 to 55, the State Government or the Legislature acted arbitrarily or irrationally. There are precedents within our country itself for fixing the retirements age at 55 or for reducing it from 58 to 55. Either the one or the other of these two stages is regarded generally as acceptable, depending upon the employment policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the Legislature is shown to violate recognised norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Uttar Pradesh and raised the age of superannuation from 55 to 58 years by a Notification dated November 27, 1957 but reduced it again to 55 years by a Notification dated May 25, 1961. The appellant therein, who had attained the age of 55 years on December 11, 1960 and was continued in service when the age of retirement was raised to 58 years, was one of those who had to retire on December 31, 1961 as a result of reduction of the age of retirement to 55. It was held by this Court that the termination of service of an employee on account of his reaching the age of superannuation does not amount to his removal from service within the meaning of Article 311 (2). Learned counsel contends that this decision is of doubtful authority since the Court based its opinion on the majority judgment in Moti Ram Deka v. y,General Manager, North Frontier Railway([1964] 5 S.C.R 683.), in which the Court was not called upon to consider and did not consider the validity of a rule of superannuation. It is true that in Moti Ram Deka, the Court was concerned to determine the validity of Rules 148 (3) and 149 (3) of the Railway Establishment Code which provided for the termination of the service of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n place of 55 years. It is impossible to accept the submission that the Ordinance can be invalidated on the ground of non- application of mind. The power to issue an ordinance is not an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an ordinance is contained in Article 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is ' Legislative Power of the Governor". This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject Therefore, though an ordinance call be invalidated for contravention of the constitutional limitations which exist upon the power of the State Legislature to pass laws it cannot be declared invalid for the reason of non- application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of a Legislature. On the question as to the legislative character of the ordinancemaking power, we may refer to the decisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government employees were deprived of their right to livelihood. There is no substance in this latter argument because, if a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement at all. That will be contrary to public interest because the State cannot afford the luxury of allowing its employees to continue in service after they have passed the point of peak performance. Rules of retirement do not take away the right of a person to his livelihood: they limit his right to hold office to a stated number of years. This argument of the learned counsel can be rejected for other reasons also, we do not propose to deal with these Transferred Cases since, there is nothing on record to show that there are any industrial adjunctions or settlements between employers and employees providing for an age of retirement for any section of industrial workers. These Transferred Cases will be delinked from the other Writ Petitions and will be listed for hearing later, so that they can be dealt with upon their own facts. If the question raised by Shri Garg is academic, it will be needless to consider it. The argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amendment of February 17, 1983 to the Fundamental Rules was made by the Government of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution. It is well-settled that the service rules can be as much amended, as they can be made, under the proviso to Article 309 and that, the power to amend these rules carries with it the power to amend them retrospectively. The power conferred by H the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. Therefore, the amendment made to the Fundamental Rules in the exercise of power conferred by Article 309, by which the proviso to rule 2 was deleted retrospectively, was a valid exercise of legislative power. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power cannot be challenged as lacking in authority. (See B.S. Vaderu v. Union of India;( [1968] 3 S C.R. 575, 58 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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