IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2010 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.Nos.5 of 2009 & 1435 of 2010 W.A.NO.5 OF 2009 1. S. Sadasivam 2. R. Kalyanaraman 3. H.V.Mukundaraman 4. S.Ramakrishnan ..Appellants/petitioner Vs. 1. The Government of India Rep.by Secretary to Government Ministry of Surface Transport New Delhi. 2. Chennai Port Trust Rep.by its Chairman Chennai. 3. P. Gopi 4. C.N.Malupillai 5. V. Raghavan 6. T.R.Raghu 7. N. Thirunavukkarasu 8. N.Balasubramanian 9. S. Krishnan 10. S. Ramamurthy 11. S. Sarada 12. S. Sankaralingam 13. V.N. Srinivasaraghavan 14. Md. Sulaiman ..Respondents/Respondents W.A.No.1435 of 2010 G.S.Elango .. Appellant/Petitioner -Vs.- https://hcservices.ecourts.gov.in/hcservices/ 1. Chennai Port Trust Rep.by its Chairman Chennai. 2. The Government of India Rep.by Secretary to Government Ministry of Surface Transport New Delhi. 3. The Secretary Chennai Port Trust Chennai. 4. The Financial Advisor and The Chief Accounts Officer Chennai Port Trust Chennai. ..Respondents/Respondents Prayer in W.A.No.5 of 2009: Writ appeal against the order dated 16.11.2007 passed by this court in W.P.No.380 of 2001 filed under Article 226 of the Constitution of India Seeking for issuance of writ of Certiorarified Mandamus calling for the records of the first respondent in D.O.NO.PR.12016/12/2000-PEI dated 17.4.2000 and quash the same and consequently call for the records of the second respondent relating to resolution No.72 dated 31.8.2000 and resolution No.133 dated 24.11.2000 with reference to the rolling back the age of retirement of the employees of the second respondent and quash the same and direct the second respondent not to amend the Rule - 3 of the Madras port Trust Employees' Retirement Regulations 1976 until FR 56 is amended. Prayer in W.A.No.1535 of 2010: Writ appeal against the order dated 16.11.2007 passed by this Court in W.P.No.640 of 2001 filed under Article 226 of the Constitute of India seeking for issuance of writ of Certiorarified calling for the records of the records respondent connected with the notification dated 05.01.2001 approving the amendment of Port Trust Employees (Retirement Amendment) Regulation 2000 wherein the retirement age of the employees of the port Trust was reduced from 60 years to 58 years and quash the approval of the amendment (prayer amended as per the order of the court dated 13.6.2001 in W.M.P.11280/01) https://hcservices.ecourts.gov.in/hcservices/ Mrs.Chitra Sampath : For Appellants Mr.K.Ravichandra Baabu : For R1 in W.A.No.5 of 2009 and R2 in W.A.No.1435 of 2010 Mr.R.Arumugam for M/s.Aiyar & Dolia : For R2 in W.A.No.5 of 2009 For RR1 and 3 in W.A.No.1435 of 2010. J U D G M E N T K.K.SASIDHARAN, J These two writ appeals are directed against the common order dated 16 November, 2007 in W.P.Nos.380 and 640 of 2001, whereby and whereunder, the challenge made to the resolution passed by the Board of Management of the Chennai Port Trust reducing the age of superannuation from 60 to 58 years, was rejected. BACKGROUND FACTS: 2. The appellants were the employees of the Chennai Port Trust. Originally, the age of retirement in the Port Trust was 58 years. In the year 1998, the Central Government, pursuant to the report of the V Pay Commission, recommended raising the retirement age to 60 years, even in autonomous bodies and organisations controlled by the Central Government. The said direction was implemented by the second respondent, whereby, the retirement age was increased from 58 to 60 years. The revised regulation was published in the Official Gazette on 25 August, 1998. Since the amendment was given retrospective effect, those employees, who had already attained the age of 58 years and who were continuing in office under extension of service, were allowed to retire on completion of the period of extension. But the employees, who had attained the age of 58 years after May, 1998 were given two years extension and they were allowed to retire after attaining the age of 60 years. 3. While the matters stood thus, the Government of India appears to have taken a decision to roll back the age of retirement from 60 to 58 years, in all the major ports in India with an intention to reduce the man power at the ports. A letter to that effect was issued by the Government of India on 17 April, 2000 to all the Ports to implement the change in the matter of retirement age. This direction was implemented by the second respondent Board, as per resolution No.72 dated 31 August, 2000 and as per the said resolution it was decided to roll back the age of retirement to 58 years. Subsequently, the Board of trustees of the Port Trust, as per resolution No.89 https://hcservices.ecourts.gov.in/hcservices/ dated 22.9.2000, decided to implement the reduction in the retirement age with effect from 31 March, 2001, in view of the difficulties expressed in filling up of the vacancies in optional posts. The said resolution was rejected by the Government of India. Subsequently, the second respondent Board took a decision to give effect to its decision to roll back the age of retirement from 30 January, 2001. 4. According to the appellants, the decision taken by the Port Trust to roll back the age of retirement was not based on any reason as required under Section 125(1) of the Major Port Trusts Act, 1963. No reasons had been assigned as to why there was a sudden change to roll back the age of superannuation, which had been implemented only two years back. Since the appellants have already attained the age of 58 years, they were the first slot to receive the brunt of the decision taken by the Board to reduce the age of retirement. In such circumstances, they have filed writ petitions to quash the decision to reduce the retirement age for the purpose of continuing in office, till they attain the age of 60. 5. The writ petitions were resisted by the second respondent by filing counter. According to the second respondent, decision to reduce the retirement age was taken in the interest of the Port, as the age of retirement fixed at 60 years, proved to be uneconomical. The Madras Port Trust Employees' (Retirement) Regulations was amended and such amended regulations were published on 5 January, 2001 and it came into effect from 31 January, 2001. Therefore, all those employees, who have reached the age of 58 years had to retire in accordance with the amended regulations. THE VIEWS OF THE SINGLE JUDGE: 6. The learned Single Judge, having found that certified standing orders were amended in tune with the service regulations, rejected the prayer on the ground that all the other ports have implemented the decision taken by the Government of India. The learned Judge has also placed reliance on the decisions of the Calcutta High Court as well as Bombay High Court in similar matters. Accordingly, the writ petitions were dismissed. SUBMISSIONS ON APPEALS: 7. The learned counsel for the appellants contended that no material was produced by the second respondent to substantiate their contention that the retirement age was reduced in the best interest of the Port. According to the learned counsel, before reducing the retirement age, Port-Trust was duly bound to conduct an in-depth study of the matter and it was not open to them to follow the directions of the Government of India in a very mechanical manner, to https://hcservices.ecourts.gov.in/hcservices/ the prejudice of the employees. Learned counsel also contended that the decision to reduce the age from 60 to 58 years, caused substantial prejudice to the employees and in the absence of any valid explanation given by the Port Trust to sustain the decision, the resolution was nothing but arbitrary and as such, the same is liable to be quashed. 8. The learned standing counsel appearing on behalf of the Port- Trust justified the action taken by the second respondent to reduce the retirement age. According to the learned Standing Counsel, the second respondent was bound to follow the directions of the Government of India, in view of the mandatory provisions of the Major Port Trusts Act. Therefore, the appellants were not justified their contention that the second respondent should not have followed the decision taken by the Government of India. DISCUSSION AND RESOLUTION OF ISSUES: 9. There is no dispute that at the time of joining service by the appellants, retirement age was only 58 years. Therefore, knowing fully well that they have to retire at the age of 58 years, the appellants have entered into the service of the Port-Trust. It was only long thereafter, the Government of India in the light of the report submitted by the V Pay Commission, took a decision to increase the age of retirement from 58 to 60 years. Accordingly, the Government amended Fundamental Rule 56 with prospective effect. There was a further recommendation made by the V Pay Commission and that was for implementation of the age of retirement in respect of the employees of autonomous bodies, organisations and other bodies controlled by the Central Government. It was only in such circumstances, the Government of India directed the Port-trust to amend its service regulations increasing the age of retirement from 58 to 60 years. The appellants were very happy when the retirement age was increased from 58 to 60 years. The Port Trust has not conducted any study, much less, financial study before enhancing the age from 58 to 60 years. The appellants, being the employees of the Port-trust were also not in favour of such study as they were the ultimate beneficiaries. Subsequently, the Government on the basis of relevant materials decided to roll back the age of retirement from 60 to 58 years and issued directions to all the ports to implement the said decision. 10. The second respondent, having revised the age of retirement from 58 to 60 years at the instance of the Central Government, was bound to comply with the further direction of the Central Government to reduce the retirement age to 58 years, after a period of three years. The second respondent, in their counter, has also stated that before taking a decision to reduce the retirement age from 60 to 58 years, Port-Trust has considered the financial condition of the trust. The second respondent, originally passed a resolution on 22 https://hcservices.ecourts.gov.in/hcservices/ September, 2000 and as per the said resolution, it was decided to implement reduction in the age with effect from 31 March, 2001. Section 124(1) of the Major Port Trusts Act, 1963 requires prior approval of the Central Government for implementation of resolutions. The Resolution dated 22 September, 2000, implementing the reduction of age with effect from 31 March, 2001 was not acceptable to the Government of India. Accordingly, a fresh decision was taken by the second respondent to give effect to its decision to rollback the age of retirement from 30 January, 2001. 11. The core question is whether the Port Trust, being the employer, should demonstrate with facts and figures to justify their action for reducing the age of retirement. 12. When the appellants have joined the Port Trust Service, the age of retirement was 58 years. It is true that for a short span of time, the employees enjoyed the benefits of higher retirement age, it was only when the Port-trust took a decision to roll back to 58 years consequent to the decision taken by the Government of India, the employees like the appellants have raised objections against such decision. 13. The Major Port Trusts Act, 1963 was enacted for the constitution of port authorities for major ports in India and to vest the administration, control and management of such ports in such authorities. The Port Trust is a "State" within the meaning of Article 12 of the Constitution of India. The Central Government reserved its right to issue appropriate directions to the Port Trust. Section 125 of the Major Port Trusts Act, 1963 gives power to the Central Government to issue regulations or to amend the regulations. The major ports like the second respondent constituted as per the provisions of the Major Port Trusts Act are bound to comply with the directions of the Central Government. The decision taken by the Central Government to reduce the age from 60 to 58 years was on the basis of relevant materials. The decision taken by the Government was not challenged by the appellants. The second respondent was only implementing the direction issued by the Government of India under Section 125 of the Major Port Trusts Act. However, there are materials in the counter to indicate that a study was also made by the second respondent before reducing the age from 60 to 58 years. 14. Since the age of retirement was only 58 years originally and it was only by way of a revision, it was increased to 60 years and ultimately rolled back to 58 years, the appellants cannot make any grievance. The employees would be justified in taking up the issues only in cases where their accrued interest were taken away by amending the service regulations. The original age of retirement was only 58 years and it was only increased to 60 and once again the earlier age was restored. The authority, who got power to increase the age of retirement is equally vested with the authority to reduce https://hcservices.ecourts.gov.in/hcservices/ the retirement age. Therefore, the appellant cannot be heard to say that the employer was not having the authority to reduce the age of retirement and they should be permitted to alter the age of retirement only if sufficient materials are shown. 15. In B. PRABHAKAR RAO & OTHERS v. STATE OF ANDHRA PRADESH & OTHERS (1985 (Supp.) SCC 432), the Supreme Court observed that the Government has full power to effect a change in the age of superannuation of its employees on relevant considerations. 16. In K. NAGARAJ v. STATE OF ANDHRA PRADESH (1985(1) SCC 523), the Supreme Court indicated that a common scheme of general application governing superannuation has 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 the career. The Supreme Court further observed thus. "7. ......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...." 17. In P.U.JOSHI & ACCOUNTANT GENERAL (2003(2) SCC 632), the Supreme Court held that the State was well within its powers to amend, alter or to bring into force new rules relating to even an existing service. The observation reads thus: "10. ...... Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by https://hcservices.ecourts.gov.in/hcservices/ substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service." 18. The decision taken by the Central Government to revise the retirement age from 58 to 60 years was a policy decision. Similarly, the subsequent decision reducing the age from 60 to 58 years was also a policy decision taken in the larger public interest. The Chennai Port Trust on their own account also made an impact study before taking a decision to implement the revision suggested by the Central Government. Since the original age of retirement was only 58 years, no prejudice was caused to the employees like the appellants on account of the decision to roll back to the age of 58 years. Therefore, we are of the view that the learned Single Judge was fully justified in rejecting the contentions raised on behalf of the appellants. We do not see any reason to disagree with the findings rendered by the learned Single Judge. https://hcservices.ecourts.gov.in/hcservices/ 19. In the result, the writ appeals are dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Tr/ To 1. The Government of India Rep.by Secretary to Government Ministry of Surface Transport New Delhi. 2. Chennai Port Trust Rep.by its Chairman Chennai. 3. The Secretary Chennai Port Trust Chennai. 4. The Financial Advisor and The Chief Accounts Officer Chennai Port Trust, Chennai. + 1 cc to Mr. R.Arumugam, Advocate SR.63239 + 1 cc to Mr.K. Ravichandra Baabu, Advocate SR.62836 + 2 ccs to Mrs. Chitra Sampath, Advocate SR.63096 , 63097. W.A.Nos.5 of 2009 & 1435 of 2010 JSV(CO) EU 2.09.2010. https://hcservices.ecourts.gov.in/hcservices/