WP(C) 2980/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.K.SHARMA Ranjan Gogoi, J The constitutional validity of the provisions of the Nagaland R etirement from Public Employment (Second Amendment) Act, 2009 (hereinafter refe rred to as ’the Second Amendment Act’) has been questioned in the present writ a pplication. By the aforesaid Second Amendment Act State Government employees who have completed 35 years of service have been made liable to retire with effect from 31.10.2009 from which date the Act has been made operative. The consequenti al Notification dated 20.7.2009 issued pursuant to the Amendment Act has also be en assailed in the writ petition. 2. The essential facts that will be required to be noticed may be s et out hereinbelow: The Nagaland (Retirement from Public Employment) Act, 1991 (Act 3 of 1991) was enacted to come into force w.e.f. 18.6.91 by which the retirement age of the State Government employees was fixed at 57 years instead of the prev ailing age of 58 years. Alternatively, employees who had completed 33 years of s ervice were also made liable for retirement which retirement was to be effective from the afternoon of the last date of the month in which the employee attains the age of 57 years or completes 33 years of service, whichever is earlier. The provisions of the aforesaid Act contained in Section (3) thereof were put to cha llenge before this Court in a proceeding registered and numbered as Civil Rule N o. 364/92. A learned Single Judge of this Court by the judgment and order dated 18.1.93 upheld the provisions of the Act in so far as retirement at the age of 5 7 years is concerned. However, in so far as the alternative provision for retire ment is concerned i.e., on completion of 33 years of service, the learned Single Judge found the same to be arbitrary and unreasonable as the said provision wou ld entail Government servants retiring at the age of 51 or 52 years. Considering the said age of retirement to be unreasonably low the learned Single Judge inte rfered with the aforesaid alternative Rule of retirement holding the same to be violative of Article 14 of the Constitution. It will be further required to be n oticed that the learned Single Judge did not consider it appropriate to grant an y consequential relief flowing from the determination made. Aggrieved by the ord er of the learned Single Judge in so far as retirement at the age of 57 years i s concerned as well as refusal to grant consequential relief, the writ petitione rs carried the matter further in appeal i.e. Writ Appeal No. 37/93. A Division B ench of this Court by order dated 6.9.95 upheld the order of the learned Single Judge with regard to the validity of the provisions of the Act of 1991 in so fa r as fixing the retirement age at 57 years is concerned. However, the Division B ench took the view that on the conclusion recorded by the learned Single Judge w ith regard to the validity of the alternative Rule of retirement i.e. after comp letion of 33 years of service, consequential reliefs ought to have been granted. The Bench, therefore, directed grant of such consequential reliefs. 3. No appeal against the order of the learned Single Judge or that of the Division Bench granting consequential reliefs was preferred by the State. Thereafter, the Act of 1991 was amended by the Nagaland (Retirement from Public Employment)(Amendment) Act, 2007 with effect from 15.11.2007. By the aforesaid Amendment Act published on 15.4.2009, the age of retirement stipulated by Sectio n (3) of the 1991 Act was enhanced from 57 to 60 years. Thereafter, the Retireme nt from Public Employment (Second Amendment) Act, 2009 was passed by the State L egislature by which Section 3(1) of the Principal Act amended by the First Amend ment Act of 2007 was further amended to provide that a State Government employe e shall hold office for a term of 35 years from the date of joining public emplo yment or until he attains the age of 60 years, whichever is earlier . The Second Amendment Act, it may be noticed, was published in the Official Gazette on 13.8 .2009. Pursuant to the enactment of the aforesaid Second Amendment Act, an Offic e Memorandum dated 20.7.2009 had been issued requiring submission of a list of e mployees who have completed 35 years of service on 30.9.2009 and a second list o f employees as on 31.12.2009, respectively. By another Notification dated 7.8.20 09, the provisions of the Second Amendment Act, 2009 have been made effective fr om 31.10.2009. Aggrieved, this writ petition has been filed seeking the reliefs earlier noticed. 4. We have heard Sri PK Goswami, learned senior counsel for the wr it petitioners and Sri KN Balagopal, learned Advocate General, Nagaland for the respondents. 5. At the outset, Sri Goswami has submitted that the implementation of the provisions of the Second Amendment Act will result in retirement of appr oximately 4000 employees of the State Government majority of whom are Grade -IV employees. It is submitted that most of the affected employees would be retiring at the age of 53/54 years. Referring to the earlier round of litigation Sri Gos wami has submitted that the State not being aggrieved by the judgment and order dated 18.1.93 passed by the learned Single Judge in the proceeding registered an d numbered as CR No. 364/92, the conclusions recorded in the said order of the l earned Single Judge have attained finality in law and the legal effect of the s aid judgment has been sought to be nullified by the provisions of the Second Ame ndment Act which is constitutionally impermissible. A judicial verdict cannot be overreached by a legislative act, as has been sought to be done and, therefore, according to Sri Goswami, there is lack of legislative competence in the State Legislature to enact the provisions of the Second Amendment Act. In this regard, Sri Goswami has drawn the specific attention of the Court to the views recorded by the learned Single Judge in para 12 of the order dated 18.1.93. Sri Goswami has contended that it is beyond the power of the legislature to re-introduce a s imilar provision as sought to be done by the Second Amendment Act without curing the defects noticed by the learned Single Judge in C.R. No. 364/92 with regard to the earlier provisions of retirement on completion of 33 years of service. In this regard, reliance has been placed by Sri Goswami on a judgment of the Apex Court in Madan Mohan Pathak & Anr. -vs- Union of India & Ors., reported in (197 8) 2 SCC 50. 6. Continuing, Sri Goswami has argued that before embarking upon th e legislative exercise impugned in the present writ petition the State of Nagala nd had filed a Review Petition before this Court i.e. Review Petition No. 10(K)0 8 seeking recall of the order dated 18.1.93 passed in C.R. No. 364/92 in so far as the findings of the Court recorded in respect of the alternative Rule of reti rement on completion of 33 years of service provided by the 1991 Act is concern ed. Sri Goswami has pointed out that the said Review Petition was filed on the s trength of a judgment of the Apex Court in the case of Yeshwant Singh Kothari -v s- State Bank of Indore & Ors., reported in 1993 Supp (2) SCC 592. However, the Review Petition was withdrawn. Apart from the fact that the withdrawal of the R eview Petition amounts to abandonment of the attempts of the State Government to come out of the purview of the order of the learned Single Judge dated 18.1.93 passed in C.R. No. 364/92, according to Sri Goswami, the reliance place on the j udgment of the Apex Court in Yeshwant Singh Kothari (supra) is wholly misplace d. According to Sri Goswami, the issue dealt with by the learned Single Judge in the order dated 18.1.93 passed in C.R. No. 364/92 was not before the Apex Court in the case of Yeshwant Singh Kothari (supra). Hence, the ratio of the judgmen t in Yeshwant Singh Kothari (supra) will not apply. That apart, Sri Goswami ha s submitted that the judgment of the Apex Court in Yeshwant Singh Kothari (supr a) was in the context of two retirement ages emanating from the retirement polic y in force in the nationalized and subsidiary Banks respectively. The views of the Apex Court in the Yeshwant Singh Kothari (supra), therefore, has to be unde rstood in the aforesaid limited context and cannot be made applicable to the ret irement of civil servants. In this regard, it has also been pointed out that now here in the country there exists any similar provision with regard to retirement of Government servants on completion of specified years of service. Sri Goswami has additionally argued that even assuming, though not admitting, that the deci sion in Yeshwant Singh Kothari (supra) can be made applicable to civil servants there would still be the need for a validating Act to validate the infirmities noticed by the learned Single Judge in the order dated 18.1.93 passed in C.R. No . 364/92 with regard to the Rule of retirement on the basis of years of service rendered. The said findings contained in Para 12 have not been sought to be cure d in the present case as no validating Act has been passed. 7. Lastly, Sri Goswami has submitted that assuming that the decision of the Apex Court in Yeshwant Singh Kothari (supra) can be understood to mean that re tirement by adoption of the criteria of length of service is permissible in cas e of civil servants and no validating Act is required for enactment of the said Amendment Act, the provisions of the Second Amendment Act will still have to sat isfy the requirement of Article 13(2) of the Constitution and conform to the pro visions contained in Part-III of the Constitution. According to Sri Goswami, the application of the said Rule of retirement must give rise to acceptable results consistent with the provisions of Article 14, 16 and 21 of the Constitution. Th e learned counsel has argued that from the standpoint of the employees the opera tion of the rule of retirement on completion of 35 years of service has affected about 4000 employees who are facing retirement at a relatively young age of 53/ 54 years. Retirement at such a relatively young age negates the right of livelih ood of the concerned incumbents guaranteed by Article 21 of the Constitution. Su ch a retirement age has also to be construed to be artificially or unreasonably low age keeping in mind the parallel enhancement of the retirement age to 60 yea rs by the first amendment to the 1991 Act. Relying on the observations of the Ap ex Court in para 7 of the judgment in K. Nagaraj & Ors. -vs- State of Andhra Pra desh & Anr. reported in (1985) 1 SCC 523, Sri Goswami has submitted that retire ment at a low age would indicate a palpable fallacy in the retirement policy, in which event, though the Court itself will not fix a retirement age, the matter will be required to be sent for re-determination by the State Legislature. Sri Goswami has also pointed out by reference to the enclosures submitted along with the counter affidavit of the respondents that the implementation of the retirem ent policy introduced by the Second Amendment Act i.e. on completion of 35 years of service will bring in utter chaos in the administration and certain departme nts would be denuded of the service of experienced hands as indicated in the Off ice Memorandum dated 20.7.2009. The provisions of the Second Amendment Act, ther efore, according to Sri Goswami, are not rational and in public interest. 8. Specifically, Sri Goswami has relied on a decision of the Apex C ourt in General Manager, Southern Railway & Anr. -vs- Rangachari, reported in AIR 1962 SC 36 (Para 15 and 16) to contend that equality of opportunity in matt ers relating to employment guaranteed by Article 16(1) prohibits the State from prescribing different ages of superannuation for same or similar posts as has b een done by the Second Amendment Act. Sri Goswami has relied on the observation of the Apex Court in the case of Moti Ram Deka & Ors. -vs- General Manager, Nort h East Frontier Railway & Ors. reported in AIR 1964 SC 600(Para 29) to the effe ct that a Government servant has a right to continue until he reaches the age of superannuation or he is compulsorily retired in accordance with the Rules in fo rce. Another decision of the Apex Court in the case of R.N. Rajanna (Dr.) -vs- S tate of Karnataka & Anr., reported in (2004) 1 SCC 249 has been placed before the Court to contend that the Apex Court has laid down the law that retirement on superannuation relates to discharge from a post on attaining the age fixed fo r retirement which must be uniform for all or particular class or category of se rvice holders. According to Sri Goswami, by virtue of the Second Amendment Act, State Government employees are sought to be treated differently by application o f two rules of retirement i.e. retirement on attaining a particular age and, alt ernatively, on completion of the specified years of service. Additionally, accor ding to Sri Goswami, application of the rule of retirement by reference to years of completed service has the effect of giving rise to consequences which are, o n the face of it, arbitrary and unreasonable i.e., retirement at a low age. 9. The arguments advanced by Sri Goswami have been sought to be cou ntered by Sri KN Balagopal, the learned Advocate General of the State who at the outset has mentioned certain peculiar features of the State of Nagaland which, according to the learned Advocate General, satisfactorily explain the reasons as to why the provision for retirement of Government servants after completion of a specified number of years of service had to be introduced. The learned Advocat e General has contended that industrially and economically Nagaland is at a disa dvantageous position and apart from employment under the State other avenues of employment is strictly limited. There are a large number of educated unemployed youths in Nagaland who are anxiously waiting for their employment under the Stat e. With the raising of the retirement age from 57 to 60 years, it became necessa ry for the State to ensure and provide reasonable avenues of employment to a lar ge body of educated youth. The State Legislature, therefore, had to balance conf licting interests i.e. of those people waiting for employment and those already in employment. Such delicate and fine balancing of the competing interests of di fferent groups has resulted in evolution of or an addition to the retirement pol icy of the State which found manifestation in the Second Amendment Act which pro vides for retirement on completion of 35 years of service. The learned Advocate General has urged that in taking the final decision in the matter all the requir ements stipulated by the Apex Court in K. Nagaraj (supra) have been scrupulously followed. Only those who had joined service between the age of 18 and 24 years, the number of whom is not very sizeable compared to the total employee strength of over 80,000, have been affected by the provisions of the second amendment. I n this regard, Sri Balagopal, learned Advocate General has pointed out that the provisions of the Second Amendment Act will not effect all those who have joined service on attaining the age of 25 as all such employees, in any event, will co mplete 35 years of service on reaching the age of 60. It is only about 4000 empl oyees who had joined before reaching the age of 25 who will be affected. Accordi ng to the learned Advocate General, the policy decision to effect retirement on completion of 35 years of service has been dictated by larger public interest. 10. The learned Advocate General has also argued that in Yeshwant Si ngh Kothari (supra), the Apex Court has clearly held that prescription of two r ules of retirement, one by reference to age and the other by reference to years of completed service is permissible and that prescription of a length of 30 yea rs of service for retirement is not unreasonable. There is no reason, according to the learned Advocate General, why the ratio of the aforesaid decision cannot extend to the civil servants under the State. If that be so, according to the le arned Advocate General, the decision of the learned Single Judge dated 18.1.93 p assed in C.R. No. 364/92 can be legitimately understood to be per incuriam, as t he judgment of the Apex Court in Yeshwant Singh Kothari (supra) was delivered ea rlier i.e. on 14.1.93. The actions of the State in not immediately embarking upo n a policy consistent with the judgment of the Apex Court in Yeshwant Singh Koth ari (supra), according to the learned Advocate General, is again dictated by Sta te policy and does not tantamount to the acceptance of the judgment of the learn ed Single Judge dated 18.1.93. Once the necessary situation had been occasioned it was open to the State Government to fine-tune its policy in the light of the permissible parameters of law laid down by the Apex Court in Yeshwant Singh Ko thari (supra), as has been done by the Second Amendment Act. 11. Sri Balagopal has elaborately contended that in the above facts no question of violation of the provisions of Article 14 and 16 can legitimately arise. In so far as the right to livelihood of the employees due to retire is c oncerned, according to the learned Advocate General, on the ratio of the law lai d down in K. Nagaraj (supra), no employee has the right to continue for ever and such right only extends to the date on which he is due to retire by application of the correct principles for determination of the time/ stage for retirement. It is also contended by the learned Advocate General that the consequences point ed out by the learned counsel for the petitioners following the withdrawal of th e Review Petition filed by the State are not legally warranted, inasmuch as, in the Review Petition filed the State had mistakenly prayed for liberty to enact a n appropriate law in the light of the decision of the Apex Court in Yeshwant Sin gh Kothari (supra). As the State legislature is the supreme authority for framin g of laws within its allotted sphere, according to the learned Advocate General, so long the law enacted is within its competence, the State legislature is free to act according to its wisdom. The legal competence and authority for framing of the provisions of the Second Amendment Act, according to the learned Advocate General, reasonably flows from the decision of the Apex Court in Yeshwant Singh Kothari (supra) and the judgment of the learned Single Judge rendered earlier c ould not have come in the way of the legislative exercise. 12. In so far as retirement at what has been contended to be at a lo w age is concerned, according to the learned Advocate General, the observations in para 7 of the K. Nagaraja’s case (supra) was rendered in a situation where th e Apex Court was considering the issue of lowering of the retirement age from 58 to 55. In the subsequent decision in Yeshwant Singh Kothari (supra), the Apex C ourt while approving the view taken in K. Nagaraj (supra) regarding lowering of retirement age, additionally held that retirement on the basis of completed year s of service,e so long as the number of years of service prescribed is not unrea sonable, does not offend Article 14 of 16 of the Constitution. According to the learned Advocate General, in K. Nagaraj (supra) on which reliance has been place d by the learned counsel for the petitioners, the Apex Court had no occasion to deal with the issue of retirement on completion of a fixed tenure of service. In this regard, Sri Balagopal has further argued that in the present case, the ave rage age of retirement on the basis of 35 years of completed service would be ar ound 55 years, though in some cases people may retire on completion of 53/54 yea rs of service. Relying on a decision of the Apex Court in Dilip Kumar Garg & Anr . -vs- State of Uttar Pradesh & Ors. reported in (2009) 4 SCC 753, the learned Advocate General has drawn the attention of the Court to the note of caution exp ressed by the Apex Court in para 15 of the judgment to the effect that Article 14 should not be stretched too far, otherwise it will make functioning of the ad ministration impossible. . 13. The arguments advanced on behalf of the rival parties having bee n elaborately noticed, the Court must now proceed to examine the same. In the or der dated 18.1.93 passed in C.R. No. 364/92, undoubtedly, the learned Single Jud ge of this Court had held the provisions of the 1991 Act prescribing retirement on completion of 33 years of service as violative of Article 14 of the Constitut ion. The aforesaid view of the learned Single Judge was primarily based on the o bservations of the Apex Court contained in para 7 of the judgment in K. Nagaraj (supra) that though fixation of retirement age engrafts a policy decision which may not be open for scrutiny by the Court, prescription of a low age of retireme nt may indicate an inherent fallacy in the policy which may require reconsiderat ion either at the hands of the executive or the legislature. As much argument ha s been advanced on the basis of the aforesaid findings of the learned Single Jud ge contained in para 12 of the judgment, it may be appropriate to set out herein below para 12 of the judgment of the learned Single Judge dated 18.1.93: 12. In K Nagaraj vs State of AP, AIR 1985 SC 551, the Supreme Court has, at para-7, observed that the proposition that there ought to be an age of retiremen t in public service is widely accepted as reasonable and rational; that fixing o f age of retirement is common feature of all the public services; and that publi c interest demands that there should be an age of retirement from service. The o bservation of the Supreme Court indicates prima facie that consideration for ret irement of a civil servant from service is to be made on the basis of age. Furth er, if every civil servant is to retire on completion of 33 years’ service befor e his attainment of the age of 57, the age of retirement in some cases would be at an unreasonably low level. For example, a person who enters into service at t he age of 18 or 19 is to retire on his attaining age of 51 or 52. In such a case , the age of retirement would be at a low level in comparison with the age fixed at 50 and 57 for voluntary retirement and superannuation respectively. The Supr eme Court in Nagaraj (supra) has also observed that if the age of retirement is unreasonably at a low level, it would be arbitrary or irrational, and that the point of peak level of efficiency is bound to differ from individual to individ ual but the age of retirement cannot obviously differ from individual to individ ual for that reason