etition 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 17252272 232921522332233924913486 89 2498 2521 2522 533 742611 2638 and 2531 of 1983
Under Article 32 of the Constitution of India AND Writ Petition Nos 42184571 and 5266 5280 of 1983 Under article 32 of the Constitution of India AND Transfer Case Nos 44 339 of 1983 KK Venugopal SS Ray PP Rao VM Tarkuade and R K Garg V Jogayya Sharma MP Rao Sudarsh Menon T VS N Churi G Narasimhulu A Subba Rao MKD Namboodiry HS Guru Raj Rao section Markandeya ATM Sampath DK Garg Nikhil Chandra and A K Panda for the Petitioners
LN Sinha Attorney General Anil B DivanB Parthasarthi and KR Chaudhary for the Respondents
GN Rao for the State
Miss A Subhashini for the Union
The Judgment of the Court was delivered by CHANDRACHUD C J
In the elections held to the Legislative Assembly of Andhra Pradesh in January 1983 a new political party called Telugu Desam was swept to power
It assumed office on January 9 1983
On February 8 1983 an Order GO Ms No 36 was issued by the Government of Andhra Pradesh stating that it had decided to reduce the age of superannuation 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 586 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 18000 Government employees and 10000 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 of the Constitution
The case of the petitioners as laid in the writ petitions is that there was no basis at all for reducing the age of retirement from 58 to 55 that the age of retirement was increased from 55 to 58 by the Government of Andhra Pradesh by a notification dated October 29 1979 and nothing had happened since then to justify reduction of the age of retirement again to 5 i that providing employment opportunities to the youths h Is no relevance on the question of fixing the age of retirement that the Government had exercised its power arbitrarily without having regard to factors which are relevant on the fixation of the age of retirement that 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 that the Government was estopped from reducing the age of retirement to 55 since the employees had acted on the representation made to them in 1979 by increasing the age of retirement from 55 to 58 that as a result of the increase in the age of retirement from 55 to 58 years in 1976 a vested right had accrued to the employees which could be taken away if at all only from future entrants to the Government service that retirement of experienced and mature persons from Government service will result in grave detriment to public services of the State and that the decision of the Government is bad for a total non application of mind to the relevant facts and circumstances bearing on the question of the age of retirement like increased longevity
The petitioners aver that the Government had not even considered the enormous delay which 587 would be caused in the payment of pensionary benefits to employees A who were retired from service without any pre thought
A counter affidavit was filed on behalf of the State of Andhra Pradesh by Shri R Parthasarathy Joint Secretary in the Finance Department of the State at the stage of admission of the writ petitions
It is stated in that affidavit that the recommendation of the one Man Pay Commission appointed by the Government of Andhra Pradesh
after which the age of retirement was increased to 58 in 1979 has no relevance to the present decision of the State to reduce the age of retirement that 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 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 out of the enhancement of the age of retirement from 55 to 58 in 1979 and that it was revealed that on account of the enhancement of the age of retirement the chances of promotion of the service personnel had deteriorated resulting in widespread frustration and unemployment
The inconvenience alleged by the petitioners in the matter of payment of their pension and other retirement benefits was imaginary since the Government was making extensive arrangements to disburse such benefits expeditiously
By the counter affidavit the Government of Andhra Pradesh denied that any of the provisions of the Constitution were violated by the impugned decision to reduce the age of retirement
Another affidavit was filed on behalf of the Government of Andhra Pradesh after the rule nisi was issued in the writ petitions
588 The affidavit is sworn by Shri AK Sharma Deputy Secretary to Government of Andhra Pradesh
Finance and Planning
It is stated in that affidavit that the question of the age of superannuation was not referred to the one Man Pay Commission of Shri A Krishnaswamy which was appointed by the Andhra Pradesh Government on November 3 1 977 that the recommendation made by the Pay Commission was casual and was not based on relevant criteria that as many as 1204008 educated youths were left without employment on September 30 1979 as a result of the unwarranted increase in the age of superannuation from 55 to 58 that the number of unemployed youths had grown to 1784699 by December 31 1982 and 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 provision to solve the unemployment problem
The rest of the averments i1 this affidavit are on the same lines as in the affidavit of Shri R Partbasarathy
Rule Nisi was issued on the writ petitions by this Court on February 25 1983
The Legislative Assembly of Andhra Pradesh was prorogued on April 9 1983
On the very next day that is on April l0th Governor of Andhra Pradesh promulgated Ordinance No 5 of 1983 called the Andhra Pradesh Public Employment Regulation of Conditions of Service Ordinance  The Ordinance was passed to regulate the recruitment and conditions of service of persons appointed to Public Services and posts in connection 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 101 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 102 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 103 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 55 589 years
By clause 15 All Rules and Regulations made under the proviso to Article 309 or continued under Article 3 l 3 of the Constitution or made under any other law for the time being in force governing the recruitment and conditions of service of the Government employees continue to be in force in so far as they are not inconsistent with the provisions of the Ordinance
Clause 16 of the Ordinance provides that no amendment to the Fundamental Rules shall be deemed to be invalid merely by reason of the fact that the proviso to rule 2 of the Fundamental Rules laid down that the said rules shall not be modified or replaced to the disadvantage of any person already in service
It provides further that all amendments made to the Fundamental Rules and particularly the amendments made by the notification dated February 8 1983 shall be and shall be deemed always to have been made validly and shall have effect notwithstanding anything to the contrary contained in the proviso to rule 2 of the Fundamental Rules as if the Ordinance was in force on February 8 1983
Clause 16 of the Ordinance declares that every amendment made before or after the commencement of the Ordinance to the Fundamental Rules and the Hyderabad Civil Services Rules shall be and shall be always deemed to have applied to all Government employees whether appointed before or after the amendment
Clause 18 of the Ordinance provides by sub clause i that the proviso to rule 2 of the Fundamental Rules shall be and shall be deemed always to have been omitted
Rule 56 of the Fundamental Rules is omitted by Clause l 8ii while Rule 231 of the Hyderabad Civil Services Rules is omitted by clause 19 of the Ordinance
The age of retirement was previously governed by these two Rules
The arguments advanced before us fall under distinct heads learned counsel having shared their burden equitably
Shri Venugopal challenged the Ordinance on the ground that it is unreasonable
Shri Tarkunde challenged it on the ground that the superannuation of the employees by reduction of the age of retirement amounts in the circumstances to removal  of the employees within the meaning of Article 311
The challenge of Shri Siddhartha Shankar Ray is based on the ground of a total non application of mind
Shri RK Garg who appears in a group of three Transferred Cases contends that the Ordinance is bad because it supersedes all industrial adjudications and overrules even settlements arrived at between the management and the employees
Shri PP Rao contends that the Ordinance is bad because
whereas in the case of compulsory retirement a notice of three months is 590 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 ATM 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 somewhat in passing that the object of the State Government in reducing the age of retirement was to get rid of n senior members of Government service whose loyalty was thought to be not above suspicion
This is the broad outline of the petitioners  case
We will presently set out the specific contentions advanced before us but before doing so
it would be necessary to indicate the approach which in our opinion should be adopted while examining a question of the present nature namely the fixation of the age of retirement
Barring a few services in a few parts of the world as for example the American Supreme Court the terms and conditions of every public service provide for an age of retirement
Indeed the proposition that there ought to be an age of retirement in public services is widely accepted as reasonable and rational
The fact that the stipulation as to the age of retirement is a common feature of all of our public services establishes its necessity no less than its reasonableness Public interest demands that there ought to be an age of retirement in public services The point of the peak level of efficiency is bound to differ from individual to individual but the age of retirement cannot obviously differ 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 counter balance conflicting claims while determining the age of superannua 591 tion
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 which must as far as possible be left to the judgment of the executive and the legislature
These claims involve considerations of varying vigour and applicability
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
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 14l 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 Judicial Function 2 Judicial self restraint is itself one of the factors to be added to the balancing process carrying more or less weight as the circumstances seem to require
We must therefore approach the problem before us with a view to determining whether the age of retirement has been reduced from 58 to 55 unreasonably or arbitrarily
Such a fixation of age would be unreasonable or arbitrary if it does not accord with the principles which are relevant for living 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 legis l EP Rovappa
State of Tamil Nadu  2 Edited by Philips B Kurland Oxford and IBH Publisning Co Page 13
592 lative competence or on the legislative power to pass laws which bear on fundamental rights
Shri Venugopal who led the argument on behalf of the petitioners contends that the provisions of the Ordinance whereby the age of retirement is reduced from 58 to 55 are arbitrary and irrational and hence violative of Articles 14 and 16 of the Constitution for the following reasons a The age of superannuation was increased from 55 to 58 years with effect from October 29 1979 after an elaborate and scientific inquiry by a One Man Pay Commission b The State Government issued the order reducing the age of retirement within one month of the assumption of office by it
In the very nature of things no scientific investigation could have been made no material gathered and no statistics compiled as regards the number of employees who will retire the number of persons who would get fresh employment and the hardship caused to the superannuated employees by the delay in the payment of retirement benefits to them
Neither the social nor the economic consequences of so grave a decision could have been or were in fact considered by the Government c The reason given by the Government that promotional opportunities had deteriorated as a result of the increase in the retirement age from 55 to 58 is fanciful and non existent
That result 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 593 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 18000 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 circumstances bearing upon the fixation of the age of retirement have been ignored by the State Government increase in longevity and the prevailing age of retirement in public sector undertakings and g No consideration was given to the plain and direct con sequence of the reduction in the age of retirement namely that the State exchequer would have to find and pay Rs 70 crores on one single day by way of retirement benefits for which no budgetary provision was made It would appear from these contentions as also from the contions advanced by the other learned counsel that the main plank of the petitioners  case is that the decision to reduce the age of retirement from 58 to 55 is unconstitutional because it is arbitrary irrational and unconnected with the object which it seeks to achieve
In this connection the first ground of challenge to the reduction of the age of retirement is that the One man Pay Revision Commission appointed by the Government of Andhra Pradesh had recommended that the age of retirement should be increased from 55 to 58 that the said recommendation was accepted by the State Government and consequently the age of retirement was raised to 58 with effect from October 29 l 979
It is contended that the reversal of that well considered decision within a short span of less than three and a half years is patently unscientific and arbitrary 594 especially since no fresh investigation was undertaken to examine the validity of the recommendation made by the One man Pay Commission
The very foundation of this argument is fallacious By GO NO
745 dated November 31977 the Government of Andhra Pradesh had appointed Shri A Krishnaswamy a retired member of the l
AS as One man Pay Revision Commission to review the structure of the different scales of pay dearness allowance and other compensatory allowances of all categories of employees of State Government local bodies aided institutions work charge establishments etc
The terms of reference of the Commission were enlarged by the Government by an order dated January 28 1978 SO as to require the Commission to review the existing retirement benefits available to all categories of employees referred to above and to examine the question of extension of retirement benefits to the work charged establishments
The question as to whether the age of retirement should be raised
p73 Ordinance which mostly regulate conditions of service
Clause 101 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 102 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 the Commission Our attention has been drawn in this behalf to a statement made in the Andhra Pradesh Legislative Council on September 20 1976 by the then Finance Minister Shri G Rajaram to the effect that one of the terms of reference to the Commission was to review the existing retirement age of Government employees
We regret to say that the Finance Minister was not properly briefed when he made that statement
In any case the power of a Commission to enquire into a question must depend 595 upon the terms of the Reference and not upon the statements made on the floor of the House
The fact that the Commission discussed the question of the age of retirement in passing shows that it was not properly seized of that question
The discussion of an important matter like the age of retirement is done in four brief paragraphs which occupy less than two pages of the Commission s report
We do not blame the Commission for this hurried and inadequate treatment of an important question
That question was not within its purview
The State Government is therefore justified in its contention that the question of the age of retirement was not referred to the Commission and that the decision which the Government took later to increase the age of retirement from 55 to 58 was not based on the recommendation of the Commission
The report of the Commission has therefore to be kept out of consideration in so far as the question of the age of retirement is concerned and no argument can be founded on the fact that the view of the Commission was ignored or that nothing had happened since the date of the report to justify a departure from it
As regards Shri Venugopal s argument at b above the fact that the decision to reduce the age of retirement from 58 to 55 was taken by she State Government within one month of the assumption of office by it cannot justify the conclusion that lt the decision is arbitrary because it is unscientific in the sense that it is not backed by due investigation or by compilation of relevant data on the subject
Were this so every decision taken by a new Government soon after assumption of office shall have to be regarded as arbitrary
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 had as offending against 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 596 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 also available to the Government
Therefore the speed with which the decision was taken cannot without more invalidate it on the ground of arbitrariness
The contentions of Shri Venugopal which arc set out in paragraphs c to g above and partly in paragraph b itself are by and large matters of legislative policy in the formulation of which the Government of the day must be allowed a free though fair play
Indeed the acceptance of argument advanced by the various counsel for the petitioners must lead to the conclusion that there has to be a uniform age of retirement all over India
If reduction of the retirement age from 58 to 55 is to be regarded as arbitrary on the ground that it overlooks the advance made in longevity fixation of retirement age at 58 is also not likely to sustain the charge of arbitrariness
The argument could still be made that improvement in the expectation of life requires that the age of retirement should be fixed at 60 or 62 or even at 65
Then again though immutable considerations which are generally or universally true like increased life expectation are as much 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
Both can fall within the constraints of the Constitution and neither the one nor the other can be considered to be arbitrary or unreasonable
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
The following table will show the variation in the retirement age which exists at present in the various States in India TB 30 State Retirement Age Haryana 58 years Jammu  Kashmir 55 years Karnataka 1979 58 years 1981 55 years Kerala 1967 55 years 1968 58 years 597 1969 55 years 1984 58 years Madhya Pradesh 58 years Reduced to 55 years 1967 enhanced to S years in 1970
Maharashtra 58 years Orissa Previously 55 years enhanced to 58 years
Rajasthan 55 years Reduced from 58 years to 55 years about 12 years back Uttar Pradesh 58 years Reduced to 55 years in 1962 enhanced to 58 years Tamil Nadu 58 years For District Judges lowered from 58 to 55 years West Bengal 58 years since 1961 tb 9 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 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 598 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 in service till they attained the age of 60
This distinction was however abolished in 1937 38 partly as a measure of relieving unemployment which was acute at that time but largely in recognition of the invalidity of the distinction and on the consideration that the uncertainty which attended the service of senior men beyond 55 had a disturbing effect on those who were looking forward to succeeding them
Paragraph 5 of the Commission s Report mentions that the Varadachariar Commission had recommended earlier that the age for compulsory retirement should be 58 years for all services pensionable and non pensionable with an option to the Government to retire an employee on the ground of loss of efficiency at the age of 55
That recommendation involved reduction of the age of superannuation in the case of Class IV servants and in the case of industrial and workcharged staff outside the Railways as well as raising the age for others
But for some reason or the other only the latter question was considered and it was ultimately decided in 1949 that there should be no change in the position
The main grounds for the decision were that the majority of persons retiring at the age of 55 were not capable of rendering efficient service any further their replacement at the age of 55 by younger men would serve the interests of efficiency better and that the retirement age should be so fixed as would release men at 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 599 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 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 years
The great majority of the employees  organizations were also in favour of increasing the age of retirement the only exception being the All India Railwaymen s Federation
That Federation did not consider the age of 55 as the age of the onset of senile inefficiency but it was of the opinion that the age of superannuation should not be raised in view of the then prevailing large scale unemployment
Some of the reasons on which there was unanimity for increasing the age of retirement were the continuing mental and physical efficiency of most of the Government servants at the age of 55 the increased expectation of life resulting from improved public health conditions and the national waste involved in sending men and women into enforced idleness while they were still capable of rendering efficient service
The Commission found that there was an overall improvement in public health as shown by the decline in death rate and the increase in expectancy of life at birth
What was even of greater relevance the Commission found that there was improvement in the expectancy of life in the fifties that is to say amongst people in the age group of 50 to 60
The data supplied to the Commission by the Comptroller and Audi 600 tor General showed that at least in the case of Gazetted and Class 111 employees there was a significant increase in the percentage of persons who lived for two years or more after superannuation
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 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 retirement the insignificant effect which raising the age of retirement would have on employment opportunities and the improved life expectation
The Third Central Pay Commission 1973 dealt with the question of age of superannuation in Chapter 60 of its Report
Paragraph 601 3 of that Chapter shows that whereas some Service Associations Demanded that the age of superannuation should be increased to 60 years on account of increased longevity and on account of the fact that a large number of Government employees were not free from family responsibilities until much later in life because of late marriages some of the Associations suggested that the age of retirement should be reduced again to 55 years mainly with a view to improving the promotional prospects and providing increased employment opportunities to the educated unemployed in the country
The conclusions of the Third Central Pay Commission can be summed up thus 1 There was a further improvement in the expectancy of life at birth as revealed by the provisional 1971 Census figures 2 There was improvement in the expectancy of life between the ages of 50 and 55 years which was of great relevance on the question of fixation of the age of superannuation 3 There was an appreciable increase since 1950 in the percentage of survivors among the Central Government employees during about ten years after retirement 4 Though reduction in the age of superannuation to 55 years would result in making about 96000 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 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 602 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 superannuation of the Government employees
In support of this view it quoted the International Labour Organisation The World Employment Programme The three pillars of a strategy for fuller employment are rural development labour intensive public works programmes and the reduction of capital intensity of industrialisation Observing that the dimensions of unemployment problem should not deter the Government from improving the service conditions of its employees
the Commission concluded that there was a case for increasing the retirement age of the State Government employees to 58 years
Our attention was also drawn to the views expressed on Employment Policy in the Sixth Five Year Plan 1980 85
It is observed therein that lasting solutions to unemployment problems had to be found within the framework of a rapid and employment oriented economic growth that suitable measures had to be evolved in the short term in a co ordinated way particularly for the benefit of the weaker sections and that since the dimension and gravity of educated unemployment vary from State to State a decentralised approach should be adopted on the district employment plan
According to the Sixth Five Year Plan unemployment would not be eliminated within the Sixth Plan unless efforts were immediately made to make the current unemployed more employable through short 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 603 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 17 199 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 6500 retirements each year from Government departments Panchayat Raj Institutions and also Aided Institutions where pensionary liability is borne by Government
Government therefore decided to revise the age of superannuation from 58 years to 55 years so that the unemployed talented youth who were eagerly awaiting chances of appointment could get opportunities of employment
Besides experienced deserving inservice personnel whose legitimate aspirations for promotion were thwarted could also now look for this much awaited promotion
Government were thus able to create promotional avenues to serving employees at various levels and create opportunities for appointment against about 18000 posts in Government Panchayat Raj and aided educational institutions alone not to speak of the opportunities that were created in the various Corporations etc owned or controlled by Government
 604 The White Paper explains that in order to ensure that the employees who had retired by the end of February 1983 should get their pensionary benefits without delay the Government had constituted a special Pension cell in the Finance Department by a notification dated February 16 1983
The function of that cell is to monitor the progress of settlement of pension eases In addition it is said the Government had issued instructions by a notification dated February 14 1983 for payment of anticipatory 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 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 605 Shri VM Tarkunde who appears for some of the petitioners A limited his argument to the contention that arbitrary fixation of retirement age amounts to removal from service and is therefore violative of Article 311 2 of the Constitution This argument has to be rejected because of our conclusion that the reduction of the age of retirement from 58 to 55 in the instant case is not hit by Article 14 or Article 16 since it is not arbitrary or unreasonable in the circumstances of the case
But apart from this position we find it difficult to appreciate how the retirement of an employee in accordance with a law or rules regulating his conditions of service can amount to his removal from service
It is well settled that Article 311 2 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 this behalf is to visit him with evil consequences
See Satish Chandra vs Union of India1 Shyam Lal vs State of U P1 State of Bombay vs Saubhagchand M Doshi3 Purshottam Lal Dhingra vs Union of India4 and P Balakotiah vs Union of India5
Besides the point made by Shri Tarkunde is concluded by a Constitution Bench decision of this Court in Bishun Narain Misra vs State of Uttar Pradesh 6 In that case the Government 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 vs yGeneral Manager North Frontier Railway7 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 G 1  2 1955 1 SCR26
3  4  5 1958 SCR1052
6 1965 I SCR 693
7  606 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 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 supperannuation 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 superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311
The theme of Shri Siddhartha Sbankar Ray s argument is non application of mind
He made it clear that his argument should not be construed as a challenge to the power or jurisdiction of the Governor to issue the impugned Ordinance and that his sole attempt was to show that the Ordinance was passed in a hurry as a result of which considerations which are relevant to the fixation of retirement age were ignored
The instances of non application of mind cited by the learned counsel are these The inclusion o f the employees of the High Court within the sweep of the Ordinance in violation of the provisions of Chapters V and VI of the Constitution the inclusion of the employees of the Legislature Secretariat within the Ordinance the extension of the Ordinance even to the daily rate workers and finally the fact that nothing worthwhile is likely to be achieved by the passing of the Ordinance since at the highest it would create employment at this point of time only for about 19500 employees After that point of time passes the same state of affairs will continue since the age of retirement will be merely substituted by 58 in 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 607 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 Court in AK Roy vs Union of India1 and RK Garg vs Union of India2
Shri Ray raised upon a decision of this Court in High Court of Andhra Pradesh vs VVS Krishnamurthy3 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 Ordinance on the ground of non application Of mind the real thrust of his argument was that the hurry with which the Ordinance was passed shows the arbitrary character of the action taken by the State Government
We have already rejected the contention of haste and hurry as also the argument that the provi 1  at 282 291
2 119821 SCR 947 at 964 967
3 19791 SCR 26 608 sions of the Ordinance are in any manner arbitrary or unreasonable and thereby violate Articles 14 and 16 of the Constitution
Shri RK Garg who appears in Transfer Cases Nos 70 71 and 72 of 1983 challenges the validity of the Ordinance on the ground that casting all established norms aside it fixes the age of retirement at 55 years notwithstanding industrial adjudications and even settlements arrived at between employers and employees
Relying upon certain decisions of this Court like Maneka Gandhi vs Union India1 and State of Madras vs VG Row2 in support of his submission that arbitrariness invalidates laws counsel contends that a law which overrules an industrial adjudication or settlement is fundamentally unreasonable or arbitrary and must therefore be held to be violative of Article 14 of the Constitution
It was also urged by counsel that by reducing the age of retirement to 55 years the 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 argument of mala fides advanced by Shri AT Sampat and adopted in passing by some of the other counsel is without any basis
The burden to establish maa 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 conspi 1 1978 2 SCR 621 at 659 685 689 and 702
2 11952 SCR 597 at 607
609 cously 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 Fundamental Rules whereby the proviso to rule 2 was deleted is beyond the powers of the rule making authority or the Legislature
The Fundamental Rules and the amendments thereto are issued by the State Government under the powers delegated to it by the Civil Services Governors  Provinces Delegation Rules 1926 the Civil Services Classification Control and Appeal Rules 1930 and under the Proviso to Article 309 of the Constitution
The Fundamental Rules which came in to force with effect from January 1 1972 were amended earlier by GO Ms No 128 dated April 29 1969
By that amendment a proviso was added to rule 2 which reads thus Provided that the rules shall not be modified or E replaced to the disadvantage of any person already in service By GO Ms No 48 dated February 17 1983 this proviso was deleted with retrospective effect from February 23 1979
The contention of the petitioners is that the proviso which conferred a benefit upon Government servants by protecting their conditions of service cannot be amended so as to empower the Government to alter those conditions to their prejudice and in any event they cannot be amended retrospectively so as to take away rights which had already accrued to them The simple answer to this argument is that the 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 610 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 BS Vaderu vs Union of India1 Raj Kumar vs Union of India2
These then are the main points in controversy on which counsel made their contentions
For reasons aforesaid we reject those contentions and dismiss these Writ Petitions
There will be no order as to costs
SR Petitions dismissed
1   582 585
2  965


Summary:
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 GOMS 36 GAD Services dated 8283 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 18000 employees and 10000 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 291979 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 1784699 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 251983
The Legislative Assembly of Andhra Pradesh was prorogued on April 9 1983
On the very next day ie 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 11 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 EP Royappa vs State of Tamil Nadu  referred to
12 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 13 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 31 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 32 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 33 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 41 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 42 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 43 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 596A B 51 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 52 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 53 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 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 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 3112 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 3112
Here there being no arbitrariness in the fixation of reduced retirement age there is no violation of Article 3112 of the Constitution either
605C F Satish Chandra V Union of India1953 SCR 655 Shyam Lal vs State of UP   State of Bombay vs Saubhagchand M Doshi   Purshotam Lal Dhingra vs Union of India   P Balakotiah V Union of India   Bishun Narain Misra vs State Union of Uttar Pradesh   relied on
Moti Ram Deka vs General Manager
North Frontier Railway  explained
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 AK ROY vs Union of India
 at pp 282 291 R K Garg vs Union of India  at pp 964 967 High Court of Andhra Pradesh vs V V section Krishnamurthy  Motiram Dake vs General Manager North Frontier Railway  distinguished
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 91 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 92 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 GOMS 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 93 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 Bs
Vadera vs Union of India  582 55 Raj Kumar vs Union of India   965 followed 585