IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 15719 of 2008 with 239, 345, 347, 368,579, 1113 and 1153 of 2008. Decided on:__12.11.2009. ______________________________________________________________ 1. CWP (T) No. 15719 of 2008 (O.A.-2524 of 2007) Reserved on 7.11. 2009. Shri Krishan Chand …….Petitioner. -Versus- State of H.P. and Another. ……Respondents. 2. CWP (T) No. 239 of 2008 (O.A.-111 of 2008 Reserved on 22.10.2009. Shri Yog Raj ……..Petitioner. -Versus- State of H.P. and Others ……..Respondents. 3. CWP (T) No. 345 of 2008 (O.A.-284 of 2008) Reserved on 22.10.2009. Shri Thari Lal ……..Petitioner. -Versus- State of H.P. and Others …......Respondents. ______________________________________________________________ Coram: The Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. Yes. 4. CWP (T) No. 347 of 2008 (O.A.-286 of 2008) Reserved on 22.10.2009. Shri Budh Ram ……..Petitioner. -Versus- State of H.P. and Others ……...Respondents. 5. CWP (T) No. 368 of 2008 (O.A. 326 of 2008) Reserved on 22.10.2009. Shri Bhagat Ram ……..Petitioner. -Versus- State of H.P. and Others ……..Respondents. 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes 2 6. CWP (T) No. 579 of 2008 (O.A. 668 of 2008) Reserved on 27.10.2009. Shri Laxman Ram ………Petitioner. -Versus- State of H.P. and others ………Respondents. 7. CWP (T) No. 1113 of 2008( O.A.-1481 of 2008) Reserved on 04.11. 2009. Shri Amar Singh ………Petitioner. -Versus- State of H.P. and Another ……….Respondents. 8. CWP (T) No. 1153 of 2008(O.A.-1551 of 2008) Reserved on 4.11.2009. Shri Khayali Ram ………Petitioner. -Versus- State of H.P. and Others ………Respondents. ______________________________________________________________ For the petitioner(s) : Mr. R.S. Gautam, Advocate in CWP(T) Nos. 15719, 345 and 347 of 2008, Mr. Ajay Sharma, Advocate in CWP(T) No. 239 of 2008, Mr. A.K. Gupta, Advocate in CWP(T) Nos. 368 and 1153 of 2008, Mr. R.D. Kaundal, Advocate vice counsel in CWP(T) No. 579 of 2008 and Mr. L.N. Sharma, Advocate in CWP(T) No. 1113 of 2008. For respondents-State: Mr. R.K. Bawa, Advocate General with Mr. P.K. Sharma, Additional Advocate General, Mr. Ankush Dass Sood, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General in all the petitions except CWP(T) No. 15719 of 2008. Mr. R.K. Sharma, Senior Additional Advocate General with Mr. J.K. Verma, Deputy Advocate General in CWP(T) No. 15719 of 2008. _________________________________________________________ Since common questions of law and facts are involved in these petitions, these were heard and are being disposed of by a common judgment. However, in order to maintain clarity in the facts, the facts of each petition are being dealt with in the following manner: CWP (T) No. 15719 /2008 (O.A.-2524 of 2007) The petitioner was appointed as a Beldar on daily wage basis in the year, 1988. He was regularized on 19.5.2003 w.e.f. 16.1.2003. His date of birth is 26.1.1949. He was retired on 28.2.2007. According to him, he had to retire on 31st 3 January, 2009 and his case is not covered by the amendment carried out in Fundamental Rule 56 vide Notification dated 10th May, 2001. CWP (T) No. 239 / 2008 (O.A.-111 of 2008) The petitioner was appointed as a Part Time Worker on 1.9.1980. He was regularized on 24.10.2005. His date of birth is 15.1.1950. He had to retire on 2nd January, 2008 after attaining the age of 58 years and 60 years in case the date of retirement was 31st January 2010. He has assailed the decision of the State Government to retire him w.e.f. 2nd January, 2008. CWP (T) No. 345 / 2008 (O.A.-284 of 2008) The petitioner was regularized on 26.10.2005. He was retired on 28.2.2007. According to him, he should have been retired after attaining the age of 60 years. CWP (T) No. 347 / 2008 (O.A.-286 of 2008) The petitioner was regularized on 26.10.2005. He was retired on 6.3.2007. According to him, he should have been permitted to work for another two years. CWP (T) No. 368 / 2008 (O.A. 326 of 2008) The petitioner was appointed as a Beldar on daily wage basis in the year, 1989. He was regularized in the month of January, 2001. He was retired on 29.2.2008. His case is that he should have been permitted to work till the age of 60 years and not 58 years. CWP (T) No. 579 of 2008 (O.A. 668 of 2008) The date of appointment of the petitioner as daily wage worker is 1st January, 1993. He was regularized on 10.1.2007. He was retired on 31.3.2008. The contention of the petitioner is that he should have been permitted to work till the age of 60 years. 4 CWP (T) No. 1113 / 2008( O.A.-1481 of 2008). The petitioner was regularized on 10.10.2007. He had to retire on 31.5.2008. The precise case of the petitioner is that he should have been permitted to work till the age of 60 years. CWP (T) No. 1153/ 2008(O.A.-1551 of 2008) The petitioner was engaged as a daily waged worker in 1990. He was regularized in the month of October, 2002. He was retired on 31.12.2006. Mr. R. S. Gautam, Mr. Ajay Sharma, Mr. A.K. Gupta and Mr. L.N. Sharma, learned counsel for the petitioners have vehemently argued that the action of the respondents of retiring their clients at the age of 58 years instead of 60 years is illegal and arbitrary. According to them, their clients were appointed before the issuance of Notification dated 10th May, 2001 and this notification can not destroy the vested rights of their clients to continue up to the age of 60 years on the basis of un-amended Rule 56 (b) of Fundamental Rules. Learned Advocate General has vehemently argued that though the petitioners were engaged on daily wage basis before the date of amendment, i.e., 10th May, 2001, however, they have been regularized/appointed after this date and the action of the respondent-State to retire them at the age of 58 years is legal and justified. We have heard the learned counsel for the parties and gone through the pleadings carefully. It will be apt at this stage to refer to un-amended Rule 56 (b) of Fundamental Rules as well as the amendment carried out by way of Notification dated 10th May, 2001. Un-amended Rule 56 (b) of Fundamental Rules reads thus:- “or on the expiry of any further extension in service granted by the Central Government in public 5 interest, provided that no such extension in service shall be granted beyond the age of 60 years. (b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Note- In this Clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment. The amendment has been carried out by the State of Himachal Pradesh vide Notification dated 10th May, 2001, whereby after Clause (b) in Rule 56 of Fundamental Rules, the following proviso has been inserted:- “Provided that a workman appointed on or after the date of publication of this notification in the Rajpatra Himachal Pradesh shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years.” Similarly, after Clause ( c), the following proviso has been inserted: “Provided further that a Class-IV Government servant appointed on or after the date of publication of this notification in Rajpatra Himachal Pradesh shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years.” The petitioners have been engaged on daily wage/part time basis before the amendment carried out on 10th May, 2001. However, the fact of the 6 matter is that the petitioners have been regularized/ appointed on various dates as mentioned in opening part of the judgment. Prescribing the retirement/superannuation age is a policy decision. The scope of judicial review in these matters is indeed very limited. Their Lordships of the Hon’ble Supreme Court in AIR 1985 Supreme Court 551, K. Nagaraj and others versus State of Andhra Pradesh and Another have held that the 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. Their Lordships have further held that by and large in matters of legislative policy, the Government of the day must be allowed a free, though fair, play. In this case, the State of Andhra Pradesh has reduced the age of retirement from 58 to 55. Their Lordships of the Hon’ble Supreme Court have up-held this decision of the State Government. Their Lordships have also repelled the contention that reduction in age will amount to “removal” from service. Their Lordships have held as under:- 7. 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 term 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 7 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 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 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 case to mustard-oil. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the Court's interference would be called for, though not for fixing the age of retirement but for mandating a closer consideration of the matter. "Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14; E. P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348 : (AIR 1974 SC 555)." 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 8 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' Edited by Philips B. Kurland, Oxford & IBH Publishing Co., Page 13. "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". 14. The contentions of Shri Venugopal which are 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 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. Both can fall within the constrains 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 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 : 9 State Retirement Age Haryana 58 years Jammu & Kashmir 55 years Karnataka 1979 - 58 years 1981 - 55 years Kerala 1967 - 55 years 1968 - 58 years 1969 - 55 years 1984 - 58 years Madhya Pradesh 58 years; Reduced to 55 years in 1967; enhanced to 58 years in 1970. Maharashtra 58 years Orissa 58 years Previously 55 years; enhanced to 58 years. Rajasthan 55 years (Reduced to 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) 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. 28. 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 retirement 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 recognized norms of employment 10 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 predominantly 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. 29. Shri V. M. Tarkunde, who appears for some of the petitioners, 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 11 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 v. Union of India 1953 SCR 655 : (AIR 1953 SC 250), Shyam Lal v. State of U.P. (1955) 1 SCR 26 : (AIR 1954 SC 369), State of Bombay v. Saubhagchand M. Doshi 1958 SCR 571: (AIR 1957 SC 892), Purshotam Lal Dhingra v. Union of India 1958 SCR 828: (AIR 1958 SC 36) and P. Balakotaiah v. Union of India 1958 SCR 1052 : (AIR 1958 SC 232). Besides, the point made by Shri Tarkunde is concluded by a Constitution Bench decision of this Court in Bishun Narain Misra V. State of U.P. (1965) 1 SCR 693 : (AIR 1965 SC 1567). In that case, the Government of Uttar Pradesh 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 has raised to 58 years, was one of these who had to retire on December 31, 1961 as a result of reduction of the age of retirement to 55. It was held by this Court that. the termination of service of an employee on account of his reaching the age of superannuation does not amount to his removal from service within the meaning of Article 311(2), Learned counsel contends that this decision is of doubtful authority since the Court based its opinion on the majority judgment in Moti Ram Deka v. General Manager, North Frontier Railway (1964) 5 SCR 683 : (AIR 1964 SC 600), in which the Court was not called upon to consider and did not consider the validity of a rule of superannuation. It is true that in Moti Ram Deka, the Court was concerned to determine the validity of Rules 148(3) and 149 (3) of the Railway Establishment Code which provided for the termination of the service of a 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 12 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 SCR) : (at p. 606 of AIR) of the Report). It was after noticing 9 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 superannuation 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". 37. 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 Service (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 into force with effect from January 1, 1922 were amended earlier by G.O.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 replaced to the disadvantage of any person already in service." By G.O.Ms. No. 48 dated February 17, 1983. this Proviso was deleted with retrospective effect from Feb. 23, 1979. The contention of the petitioners is that the proviso which 13 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 carried 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, Therefore, the