B. PRABHAKAR RAD & ORS. ETC.

A V•

STATE OJ! ANDHRA PRADESH & ORS. ETC .ETC•

AUGUST 19, 1985

[O. CHINNAPPA REDDY, V. BALAKRlSHNA ERADI AND v. KHALID, JJ.J B

Andhra Pradesh PUblic Employment (RP-gulation of Age of St.1perannuation) Act 1984 section 3(1) and Explanation II (a).

Fundamental Rules Rule 56 (a) and Hyderabad Civil Service Rules Rule 231. c

Employees - Age of superannuation - Change of - Amendments effected by Ordinance No. 24 of 1984 and section 4 (1) of Act 3 of 1985 - Whether constitutionally valid - Fixation of date and di vision of employees into two class on basis thereof - Whether permissible - Whether amenable to judicial scrutiny - Age of D Superartnuation - Change of policy or reversal of policy.

Constitution f India 1950, Article 14

Classification - Reasonableness of - Burden of proof on State.

Interpretation of Statutes

Government department administering Act - Official statement of - Whether relevant for interpretation legislation to remedy wrongs - Wronged persons - Whether can be excluded.

Practice & Procedure

Writ petition - Dismissal in limini - Whether bar to entertainment of another similar writ petition.

In the State of Andhra Ptadesh the age of superannuation G was 55 years to begin with, but in the year 1979, the Government raised the age to 58 years.

In February 1983, the Government decided to reduce the age of superannuation of its employees from 58 to 55 years, and also issued directives to local authorities and public corporations under its control to"do likewise.

In order to give effect to the aforesaid policy of reversal, the Government amended Rule 56(a) of the Fundamental Rules and Rule 231 of the lfyderabad Civil Services Rules by substituting the figure '55' for the figure '58 1 and by making a special provision that those who had already attained the age of 55 years and were continuing in service beyond that age on 28.2.1983. shall retire frbm service on the afternoon of 28.2.1983.

This was followed by another notification dated 17.2.1983 deleting the proviso to Rule 2 of the Fundamental Rules which protected a civik servant against a change in conditions of service to his detriment after he entered service.

The Andhra Ptadesh Ordinance No. 5 of 1983 was promulgated regulating the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the State ofAndhra Ptadesh and the Officers and servants of the High Court of Andhra Ptadesh Clause 10 of the Ordinance provided 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 age of fifty-five years. In the case of Government employees belonging to the Last Grade Service, it was provided that they shall retire from service on the afternoon of the last day of the month in which they attain the age of sixty years.

Clause 18(1) provided that the proviso to Rule 2 of the Fundamental Rules shall be deemed always to have been omitted.

Tumtediately after the notification reducing the age of superannuation from 58 to 55 were issued, a large number of Government employees, employees of public sector corporations, and teachers working under various authorities filed writ petitions in this Court as well as in the High Court of Andhra Ptadesh challenging the vires of the provisions reducing the age of superannuation. ·

There was also a State wide agitation by affected employees and on' August 3, 1983 an Agreement was arrived at between the Government and the Action Committee of Employees and Workers.

Clause (1) of the agreement provided that proviso to F.R. 2 will be restored in respect of all matters, except the age of

superannuation retrospectively and that the provisions of the Ordinance relating to the age of superanntiaticin will also be removed after the judgment of the Supreme Court.

The Agreement, also, contained a stipulation that it was not to be placed before the Supreme Court either by the Government or by the employees.

'\, '

B.PRABl!AKAR RAO v. STATE 575

The Andhra Pradesh Legislature enacted the Andhra Ptadesh PUblic Employment (Regulation of age of Superannuation) Act No. 23 of 1984 making it applicable to persons . appointed to public service and posts and other employees in any Local Authority, Houses of the State Legislature etc.

On August 23, 1984 the Act was amended by the promulgation of the Andhra Ptadesh Ordinanee No. 24 of 1984 providing that in s. 3(1) of the Act and in Explanation II (a) the wrds 'fifty-e.ight years' shall be substituted ,

for the words 'fifty-five years'.

The Andhra Ptadesh Ordinanee No. 24 of 1984 was replaced by Act No. 3 of 1985.

By sec. 2 of the Amending Act, the.words 'Fifty-five year•' were substituted by the words 'fifty-eight years' in Sec. 3(1) and Explanation II(a) of the Ptineipal Act.

Section 4 of the Amending Act, which replaced Clause 3(1) of Ordinance No. 24 of 1984 provided : that: "4(1) The provisions of section 2 of the Act shall not apply to persons who attained the age of superannuation pursuance of the noti-. fications issued ....... or in pursuance of the provisions of the Andhra Ptadesh Pilblic Employment (Regulation of Age of Superannuation) Act 1984 •••••••• "

During the pendency of the Writ Petitions in this ('.ourt, several employees of locS.l authorities etc. obtained orders of stay from the High Court ahd were continuing in service on the date when the judgment of the Supreme Court was pronounced.

After the pronouneement of the judgment of the Supreme Court, the authorities sought to give effect to the provisions of the Act and the Ordinance by seeking to throw out the employees on the ground that they had completed 55 years of age during the interregnum between February 28, 1983 and August 23, 1984.

Some others who had completed 5j years between February 28, 1983 and August 23, 1984 but who had not completed 58 years

sought re-entry, notwithstanding the raising of the.age of superannuation from 55 years to 58 years. Their re-entry was sought to be resisted on the basis of cl. 3(1) of the Ordinance and s. 4(1) of the Amending Act. Those employees who were sought to be remcved from service or -who were denied re-ntry into service on the ground that they had attained the age of 55 years between February 28, 1983 and Aug.1st 23, 1984 once asain invoked the jurisdiction of this Court under Article 32 and sought appropriate writs to continue or t~ reinstate and cotinue them in service until they attain the age of 58 years.

A On 23.4.1985, a Division Bench of this Court, directed that

those Government servants who were in service prior to April 1, 1985 and who were removed from service on account of reduction in age, shall be reinducted in service, if the posts from which each one was removed was still vacant or someone was holding a temporary change.

On May 6/7, 1985 another Bench of this Court directed that the aforesaid Order dated 23rd April, 1985 should be implemented to the extent that the posts from which the employees ware removed are still vacant or where such post was held temporarily by others on promotion under Rule 37 of the A.P; States Subordinate Service Rules.

Many persons claiming to have been appointed under Rule 10 or claiming to have been promoted regularly notwithstanding the mention of Rule 37, filed writ petitions questioning the orders of reversion with which they were faced consequent on the aforesaid interim directions of the Court.

On behalf of the employees who had attained the age of 55 years between 28.2.1983 and 23.8.1984 it was contended that the classification of these persons as a separate group for the purpose of excluding them from the benefit of the redressal of the wrong done to them and the relief given to them by the amending Ordinance .and the Act, was an unreasonable classificatio" having no nexus whatever with the object of the legislation. It was urged that every person who was in Government employment on 28.2.1983 was hit by the reduction of the age of superannuation from 58 to 55 years and when it was realised that a grievous wrong had been done which it was necessary to set right by reversing the policy and such a policy decision having been taken, there was no reason to postpone effect being given to the reversal of policy to an uncertain date, namely the pronouncement of the judgment by the Supreme Court and thereby excluding from the benefits of the change of policy, that group of persons who had the lD!.sfortune of attaining the age of 55 years, It was further contended that several. persons who were continuing in service by virtue of stay orders obtained from the High Court, were also sought to be sent away by the Government on the ground that had. they not obtained the orders of stay they would have retired from service on having attained the age of 55 years and this was patently unreasonable.

H On behalf of the State Government and Officers who were promoted in the vacancies created by the retirement of those who

B .P\WlHAKAR RAO v. STATE 577

had attained the age of 55 years, it was submitted that there was no discrimination whatsoever and that what the Government had done""" merely to classify those employees who had'ceased'to be in service or who should have ceased to be in service and refused to apply the increased age of superannuation to them. Having gone out of service, there was no question of their being eligible to the increased age of superannuation and therefore, the classification was perfectly reasonable. It was also urged that appointments and prOlllOtions were made subsequent to the reduction of the age of superannuation on regular basis and those appointments and promotions could not therefore be disturbed.

llKIJl: [By the Court Per Chinnappa Reddy, Balakrishns Eradi & Khalid, JJ • l

1. Clause 3 (1) of Ordinance No. 24 of 84 and Section 4(1) of Act No. 3 of 1985 be brought to conform to the requirements of Article 14 of the Constitution by striking down or omitting the word 'not' from those provisions. [615 G)

2. In exercise of powers under Art. 32 and 142 of the Constitution the following directions given :

a• All employees of the Government, public Corporations and local authorities, who were retir£d from service on the ground that they had attained the age of 55 years by 28.2.83 or between 28.2.83 and 23.8.84 shall be reinstated in service provided they vould not be completing the age of 58 years on or before

' 31,10.1984. [616 S-C)

b. All employees who were compelled to retire on February 28, 1983 and between February 28, 1983 and August 23, 1984 and who are not eligible for reinstatement under the first clause, shall be entitled to be paid compensation equal to the total ' emoluments which they would have received, had they been in service uotil they attained the age of 58 years, less any amouot they might have received. They will be entitled to consequential retiral benefits. [616 D)

c. Such of the employees as have not been compelled to retire by virtue of orders of stay obtained from the High Court or the Administrative Tribunal or who have actus1ly been reinstated in service pursuant to interim orders of thia Court, shall be allowed to continue in service uotil they attain the higher age of superannuation. [616 F)

d The reinduction of those employees that have been compelled to retire previously, will put them back as regards their seniority in precisely the same position which they occupied before they were retired from service and be entitled to all further consequential benefits. [616 G]

e. The employees who were retired and who are reinducted will be entitled to be compensated for the period during which they were.out of service. [616 H]

f. In the matter of reinduction of employees who do not attain the. age of 58 years on or before 31st October, 1985 the Government may exercise an .option not to reinduct then provided the employees are paid the compensation. [617 A]

g. The government is free to revert persons promoted or appointed , to the posts held by persons who were retired on having attained the age of 55 years by 28.2.1983 or between 28.2.83 and 23.8.84 to the posts which they held on February 28, 1983 or on the dates previous to their promotion or appointment provided that they need not be so reverted, if they would other.dee be entitled to be promoted or appointed even if the other employees had 'not been retired consequent on the lowering of the age of superannuation. [617 CJ

h. The Government shall be free to create supernumerary posts whenever they consider it necessary so to do. [617 E]

i All payment of compensation to be made and completed before December 31, 1985. If for any reason the Government finds itself unable to a pay the entire amount at one time or within the time' fixed, the Government will be at liberty to pay the amount in not more than four instalments within the time stipulated. Where the employees are awarded compensation, they may apply to the concerned Income Tax Officer for relief under Section 89 of the Income Tax Act read with Rule 21-A of the Income Tax Rules. [617 F]

3a. The dismissal in limine of the earlier Writ Petition cannot possibly bar the present Writ Petitions. Such a dismissal may inhibit the courts' discretion but not its jurisdiction.

[615 D] '

3b. 'Even if some affected parties have not been impleaded their interests are identical with and have been sufficiently and well represented. The relief claimed is of a general nature and against the State and no particular relief is claimed against any individual party. [615 F]

B.PRABHAKAR RAO v. STATE 579

3c. It is one thing to say that the Executive Government A has no power to pass an -0rder extending the service of a Government servant after he has retired from service;· it is altogether a different thing to say that the State while making a law raising the age of superannuation cannot make an unreasonable classification to exclude .some Government Servants from the benefit of the increased age of superannuation. The classifica- B tion 111118t pass the dual test of beating reasonable and related to the object of the legislation, besides not being arbitrary. It is not open to the .state to make an arbitrary classification first by making the date dependent on an uncertain event namely, the date of pronouncement of the Judgment by the Supreme Court and next by making a legislation excluding persona who had attained c the age of 55 years before the legislation took effect though the legislation itself was designed to undo the wrong already done to the very Government employees •. (604 F-605 A]

3d. Whenever a law is made or whenever an action is taken, it has to be with effect from a certain date but it does not D necessarily follow that the choice of the date is not open to scrutiny at all. If the choice of the date is made burdensome to some of those, the wrong done to whom is sought to be rectified by the law, it would certainly be.open to the court to examine the choice of the date of find out whether it has resulted in any discrimination. [605 CJ

D.S. llakara v. Union of Iildia, (1983] 2 s.c.R. 165 referred to.

Bialmo Narain Mishra v. State of Ur.tar Ptadesh & Ors, (1965] 1 s.c.a. 693, r;, Ragaraj & Ors. v. State of Andhra

Ptadesh A.I.R. 1985 S.C. 551 and State of Aaaam v. Pidma Baa F Borah A.I; R. 1965 s.c. 473 distinguished.

4. (a) As the judgment was not pronounced for long, it became imperative for the Government to implement their decision of their own accord and so they passed ordinance No. 24 of 1984 and Act No. 3 of 1985 amending Act No. 23 of 1984 by substituting G 58 years for 55 years. While doing so, unfortunately again, those that had suffered most by being compelled to retire between 28.2.83 and 23.8.84 were denied the benefit of the legislation by

cl. 3(1) of the ordinance and Sec. 4 (1) of Act No.3 of 1985. Now if all affected employees hit by the reduction of the age of superannuation formed a class and no sooner than the age of H superannuation was reduced, it was realised that injustice had

been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick out a class of persons who deserved the same treatment and exclude them from the benefits of the beneflcient treatment by classifying them aa a separate group merely because of the delay in taking the remedial action already decided upon. [611 D-F]

4. (b) The action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory. The division of Government employees into two cla8ses those who had already attained the age of 55 on 28.2.83 on the one hand, and those who attained the age of 55 between 28.2.83 and 23.8.84 on the other and denying the benefit of the higher age of snpernnuation to the former claas is as arbitrary, as the division of Government employees entitled to pension in the past and in the future into 1:1<0 classes, that is, those that had retired prior to a specified date and those that retired or would retire after the specified date, and confining the benefits of the new pension rules to the latter claas only. [611 G-612 A]

5, Legislations to remedy wrongs ought not to exclude from their purview a few of the wronged persons unless the situation and the circumstances make the redressal of the wrong, in their case, either impossible or so detrimental to the public interest that the mischief of the remedy outweighs the mischief sought too be remedied. In the instant case, there is no such impossibility or detriment to the public interest involved in reinducting into service those who had retired as a consequence of the legislation which was since though to be inequitable and sought to be

remedied. [612 B-C]

6. The burden of establishing the reasonableness of a classification and its nexus with the object of the legislation is on the State. [612 DJ

7, We are governed by the Constitution and Constitution must take precedence over convenience and a judge may not turn a bureaucrat. It may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But there must be sufficient evidence of that how the circumstances will lead to chaos. Ups and a awns of career bureaucrats do not by themselves justify such a classification.

It may however be of some consequence in the matter of granting relief. For instance there would be really no point in reinducting an employee if he baa but a month or two to go to attain the

B.~RABHAKAR RAO v. STATE 581

age of 58 years to retire. Reinduction of such a person is not A likely to be of ally use to the administration and may indeed be detrimental to the public interest. It is found to be wasteful.

In such cases as well as in cases where they can't be reinducted because they have already completed 58 years by now, they cannot obviously be reinducted. The obvious course is to compensate them monetarily. [613 H-614 C) B

8. In Industrial Law back and future wages are awarded on . quite a large scale and there is no reason why the same principle cannot be adopted. If as a rule private employers in such situations are asked to pay back wages, there is .no impediment in doing so in the case of those that are expected to be a oodel employer i.e. the Government, public corporations and lOcal authorities. [614 DJ ·

9. Where interns! aids are not forthcoming, recourse to external aids are not ruled out. This is now a well settled

principle of modem statutory .construction.

The 'Enacting D History' of an Act is relevant. It is the surrounding corpus of public knowledge relative to its introduction into Parliament as a Bill, and subsequent progress through and ultimate passing by, Parliament. In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act.

The history of how an enactment is understood forms part of the contemporanea exposition and may be held to throw light on the E legislature's intention.

The later history may, under the doctrine that an act is always speaking, indicate how the enactment is regarded in the light of development from time to time.

Official statements by the Government department administering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its F provision, [591 A~D)

10. Committee reports, Parliamentary debates, policy statements and public utterances of official spokesman are of relevance in statutory interpretation. But the comity, the courtesy and respect that ought to prevail between the two prime G organs of the State, the Legislature and the judiciary, require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable.

Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out_ the legislator's intention appears to the court so to H require. No rule prevents the court from inspecting in private

whatever materials it thinks fit to ensure that it is well

informed. Where these materials constitute publicly available documents, the court takes judicial notice of them. The court has an inherent power to inspect any material brought before it. This is to ensble the court to determine whether the materials is relevant to the point of construction in question and if so whether it should be admitted. This has to be done with a degree. of inhibition and. an amount of circumspection. [591 E:-G]

11. The hl.atorf and the succession of events, the initial lowering ·of the age of superannustion, the agitation consequent upon it and the agreement that followed the agitation clearly ,

indicate that the object or Ordinance No. 23 of 1984 and Act No. 3 of 1985 was to undo the mischief or the harm that had been done by the lowering of the age of superannuation from 58 years to 55 years and.to restore the previous position. It was not a case of change of policy consequent on change of social circumstances. It was a case of a change of policy to set right iamediately the recent wrong perpetrated by a well intentioned but perhaps ill thought measure. It was not at all a case of reversal of policy because of changed circumstances. [591 H-592 B]

12. While it is a general rule of law that statutes are not 1 to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied, or where the . statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or absue or where the statute engrafts itself upon existing situations etc. But it would be incorrect to call a statute retrospective', "because a part of the requisites for its . action is drawn from a time antecedent to its passing", [614 <Hi15 A]

11..v. st. Mary, Whitechapel [Inhabitants][l842J 12 o.B. 120, referred to.

13; unlike in the United Kingdom here in India we have a written Constitution which confers justiciable fundamental rights and so the very refusal to make an Act retrospective or the nonapplication of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non retroa:ctivity or non application clause, as offending the fundamental rigl\t to equality before the law and the equal protection of the laws. [615 B]

/ '

B.PRABHAKAR RAO v. STATE 583

[Per V. Bal.akrisboa Eradi, J. com:urring.J

It is now well established by decisions of this Court that the Government has full power to effect a change in the age of superannuation of its employees on relevant considerations. If in the exercise of such power the age of superannuation is enhanced

purely by way of implementation of a policy decision taken by the B Government, such alteration can legally be brought about with prospective effect from the date of the c011111eI1Cement of the operation of the OrdiDa11ce, Act or Rule and no question of violation of Article 14 or 16 of the Constitution will arise merely because the benefit of the change is not extended to employees who have already retired from service. [618 D-E) c

[Per v. lhalid, J. Concurrillg)

In matters relating to policy decisions the charge of arbitrariness cannot be laid at the doors of the Government. The Government have full powers to decide about the age of retirement o considering the various data available before it •. (619 F)

Removing a word or adding words to a legislative enactment is an exercise, Courts have been repeatedly warned against from embarking upon. This guideline is one that has to be respected by the Courts of Law. [620 F)

Normally this Court will be disinclined to entertain or to hear petitions raising identical points again where on an earlier occasion, the matters were heard and dismissed. Not that this Court has no jurisdiction to entertain such matters, but that it would normally exercise its discretion against it. [621 C]

In the instant case, the petitions involve a serious human problE!lll. Employees of the State with limited resources, who have been planning their future with a secure feeling that they could work till the age of 58 years, have overnight, been robbed of their tenure, their aspirations and future. They have become the

helpless victims of certain swift moves on the political chess G board. These swift moves taken in a hurry without serious application of mind have resulted in arbitrariness which has been forcefully projected by the petitioners, This plea cannot be light heartedly thrown overboard. Justice demands that the petitioners should be saved of their predicament. This Court has to share for the sorry state that has come to pass in the matter.

H l'he damage had been done and it can be repaired only be extending

this Court's powers to a sectl-oi:: of employees who de.serves sympathy and fair deal. The case is more or less evenly be.lanced

between the parties. The benevolent jurisdiction of Article 142

(1) of. the Constitution has therefore to be invoked. [621 H-

622 B, 621 F]

K. Nagaraja v. State of A.P. A.LR. 1985 S.C. 551, Bil!bm Narain Hisbra v. State of u.p. mid others, [1965] l s.c.R. 693 aud D.S. Nak.sra v. Union (1983] 2 s.c.R. 165, referrP.d to.

ORIGINAL JURISDWTION : Writ Petition Nos. 5447-5546 of 1985 etc. etc.

(Under Article 32 of the Constitution of India.)

K.K.

Venugopal, Shanti Bhushan, Govindan Nair, F .s.

Nari.man, V.M. Tarkunde, Y.S. Chitale, P.P. Rao, S. Markandeya, Mrs. s. Markandeya, D. Sudhakar Rao, K. Ramkumar, Ms. Lall ta Kohli, B. Kanta Rao, Gururaja Rao, G. Vedantha Rao, K.K. Lahiri, R. Kc.ranjawala, llardeep Singh Anand, Mrs. M. Karanjawala, A.T.M.

Sampath, P.N. Ramalingam, B. Parthasarthi, H.S. Gururaja Rao, Mrs. Sheil Sethi, Sudhendra Kulkarni, R. Venkataramani, A. Subba Rao, and s. v. Deshpande for appearing Petitioners.

K Subramanya Reddy, Advocate General of A.P., K.K. Venu'- gopal, T.v.s.N. Chari, Naresh Mathur, K. Rajendra Choudhary, K.

Shivraj Choudhary, A.s. Nambiar, G.N. Rao, Attar Singh, Mrs.

Gupta, B. Parthasarthi, S.Markandeya and Mrs. C. Markandeya for Respondents.

The following Judgments were delivered

CHINNAPPA REDDY, J.

Tossed about by the Executive, the Legislature and, we are sorry to say, by us (the Judiciary) too, and therefore, totally bewildered, several civil servants employees of public sector corporations and teachers working under various local authorities are now before us wanting to know where they stand and to what justice and relief they are entitled. In February, 1983, the Government of Andhra Pradesh decided to reduce the age of superannuation of its employees from 58 to 55 years. The Government also issued directives to local authorities and public corporations under its control to do lik.ewise. The age of superannuation was in fact 55 years to begin with. But, earlier, in the year 1979, the Government of Andhra Pradesh had raised the age of superannuation to 58 years, presumably, because of the increased average human longevity in India,

B.PRABHAKAR RAO v. STAIE [CHINNAPPA REDDY, J. J 585

the bet'ter health and medical facilities available, the improved A standard of living, the usefulness in service of experienced employees, the employment situation and potential and such other relevant considerations. But in February 1983, the Government decided to reduce the age of superannustion. ln order to give effect to their policy of reversal, i.e. the policy of reducing the age of superannustion from 58 to 55, the Government amended B Rule 56 (a) of the Fundamental Rules and Rule 231 of the Hyderabad Civil Ser'vl.ces Rules by subsituting the figure '55' for the figure .• 58' and by making a special provision that those who had already attained the age of 55 years and were continuing in service beyond that age on 8.2.1983 shall retire from service on the afternoon of 28.2.1983. The notification8 by which these C amendments were carried out were followed by another notification dated 17.2.1983 deleting the proviso to Rule 2 of the Fundamental Rules which protected a civil servant against a change of his conditions of service to his detriment after he entered ser\'ice.

This was followed by the promulgation of the Andhra Pradesh Ordinance No. 5 of 1983 regulating the recruitment and conditions D of servlce of persons appointed to public service 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.

Clause 10 of the Ordinance provided that 'every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service in the afternoon of the lsst day of the month in which he attains the age of fifty five E years.' In the case of Government employees belonging to the Last Grade Service, it was provi-ded that they shall retire from service on the afternoon of the last day of the month in which they attain the age of sixty years. Clause 18 (1) provided that the proviso to rule 2 of the Fundamental Rules shall be and shall be deemed always to have been omitted. Now immediately after the F notifications reducing the age of superannuation from 58 to 55 were issued, a large number of Government employees, employees of public sector corporations and teachers 'working under various local authorities .filed writ petitions in this Court as well as in the High Court of Andhra Pradesh challenging the vires of the provisions reducing the age of superannuation. After promulgation G of the ordinanc.e, they were permitted to amend the petitions to question the appropriate provisions of the ordinance too. The petitions 'in this Court were heard at great length for several days by Chandrachud; CJ, Pathak, J. and $. Mukharji, J. and judgment was reserved on 27.7.83. The judgment was however pronounced only on January 18, 1985. The impugned provisions were upheld and H all the writ petitions were dismissed.

In the meanwhile much

water had flown under the bridge. There were agitations and agreements. There were twists and turns of political power. There were amendments to the legislation, once more raising the age of superannuation. Learned counsel informs us that the subsequent events were brought to the notice of the court and that a petition was also filed to amend the writ petitions and to raise additional grounds. The Court however refused to take notice of the subsequent events and proceeded to pronounce their judgment with reference to a situation Which obtained several months ago and Which situation stood considerably altered and had even become unreal by the subsequent march of events. It was a great pity. Much confusion and heart-burning might have been avoided, as we shall presently see.

It is now necessary to mention in greater detail the events that followed the reduction of the age of superannuation from 58 to 55 yea.rs. We referred' to agitations and agreements. It appears that soon after the reduction of the age of superannuation, there was a state-wide agitation by affected employees and on August 3, 1983, an agreement was arrived at between the Government of Andhra Pradesh and the Action Committee of Employees and Workers in Andhra Pradesh.

Clause (1) of the Agreement is important and may be usefully extracted. It is as follows:

"All provisions relating to Ordinance 5 of 1983, except those relating to the age of superannuation, will be deleted at an early date. Ptoviso to F.R.2 will be restored in respect of all matters, except the age of superannuation retrospectively. The provisions of the Ordinance relating to the age of superannuation , will also be removed af.ter the judgment of the Supreme

Court, provided that such removal will not adversely effect the right of Government as determined by the' Supreme Court judgment to fix the age of superannua-

~ tion.

If the Supreme Court upholds the power of the Government to reduce the age of superannuation without ref erring to the provisions in the ordinance and , F.R.2, the entire ordinance will be scrapped and F.R.2 ' will be restored."

This clause of the Agreement shows that While the Government was

anxious to obtain a judgment of the Supreme Court securing their

B.PRABHAKAR RAD v. STATE [CHINNAPPA REDDY, J.] 587

right of 'fix the age of superannuation', they had also realised A that grave wrong and injustice had been done to its employees by their earlier action in reducing the age of superannuation. They were anxious to undo the wrong and do justice to their employees, while preserving . their own power to act in the future, if and when necessary. That apparently was the reason why the Government agreed to scrap the whole of . the ordinance if .the Supreme Court B upehld the power of the Government to reduce the age of superannuation and further agreed to delete provision relating to the age of superannuation in the ordinance, after the judgment of the Supreme Court was prononnced. Clause (1) of the Agreement expressly provides that proviso to F .R. 2 will be restored in respect of all matters, except the age of superannuation C retroapecti\'l!ly. It is then followed by the sentence The provisions of the ordinance relating to the age of superannuation will also be removed after the judgment of the Supreme Court.' The clear implication appears to be that the provisions of the ordinance relating to the age of superannuation will also be removed in. the same manner as the proviso to Fundamental Rule 2 D i.e. restrospectively. Otherwise the agreement would make no sense. Those attaining the age of 55 years before judgment. was pronounced would just have to walk out while those who did not wonld stay on. Surely their fate was not to bang on a date.

The Agreement, however, contained a further curious stipulation that it was not to be placed before the Supreme Conrt either by the Government or by the employees.

Perhaps the stipulation was intended to prevent the Supreme Court from abstaining from pronouncing upon the power of the Government to reduce the age of superannuation.

Quite obviously the Agreement contamplated that the judgment of the Supreme Court wonld be forthcoming very soon. But that was not to be.

There was considerable discussion at the Bar whether the agreement contemplated and stipulated rest.oration of 58 years as the age of Superannuation if the power of the Government to reduce the age of superannuation was upheld by the Supreme Court.

The agreement appears to us to be clear and categoric and a G reference to the pleadings demonstrates that th~ Government also never doubted the emplooyees' interpretation of agreement. In Para 2 (h) of the petition in Writ Petition No. 3420-26 of 1985, the petitioners sserted,

"It is pertinent to point out that in the interregnum H between the Writ Petition being admitted in this

Hon'ble Court and the judgment being delivered a State wide agitation took place in P.ndhra Pradesh by the Non Gazetted employees in the Andhra Pradesh State Government in June and July 1983.

That agitation was for the purpose of demanding inter alia that the retirement age of the State Government employees be restoed

to 58 years. Ultimately, on 3.8.1983, an agreement was arrived at between the State Government and the Action Committee of the Employees aud workers in Andhra Pradesh by which it was agreed the State Govermnent would restore the age of retirement to 58 years if the

Supreme Court upheld the State Govermnent 's Power to reduce the age of retirement. The said agreement which was a detailed agreement entei'ed into between the

State A. P. on behalf of the whom the negotiations were conducted by the then Chief Secretary Shri G. V.

Ramakrishna, I.A.s. and the Action Committee of the employees and workers, which Action Connnittee represented 39 service organisation."

To this the answer of the Govennnent in their counter was:

and

"I state with respect to paragraph 2 that this paragraph deals with narration of facts regarding the circumstance under which the age of retirement was

en.anced and the recommendations of the Pay Revision Commission etco Hence they require no comnents. It is respectfully submitted that all these relevant facts have been taken into consideration by the Supreme Court while rendering the judgment upholding G.O.Ms.

No. 36 dt. 8.2.1983. In its judgment since reported in [1985] 1 s.c.c. page : 524.

Hence there is no necessity to traverse those facts once again herein."

"I further state that it is ,.not proper for the petitioner to have filed the agreement reached between the employees Union and the .State of Andhra Pradesh as Annexure to the Writ Petition. Under the last clause of the Agreement reached between the Employees Union and the State of Andhra Pradesh that the agreement shall not be placed before the Supreme Court by the Government or the members of the employees associations. ContrQry to the provisions of the

B.PRABHAKAR FAD v. STATE [CHINNAPPA REDDY, J.] 589

agreement the petitioners have chosen to file this A agreement in support of their case and pleaded for enhancement of the age of retirement."

The Government 1 s objection was not to the interpretation placed upon the agreement by the parties but to its being brought to the notice of the Court.

The .<.ndhra Pradesh Legislature enacted the Andhra Pradesh Publlk Employment (Regulation of Age of Superannuation) Act No. 23 of 1984 making it applicable to all persons appointed to public services and posts in connection with the affairs of the si:ate, all officers and other employees working in any local c authority, whose salaries and allowances were paid out of the Consolidated Fund of the State, all persons appointed to the Secretariat staff of the House of the State Legislature: and all officers or employees whose conditions of service were regulated by rules framed under the poviso to Art. 309 of the Constitution immediately before the commencement of this Act. Sub-section (3) D of s. l stated 'Clause (i) of s. 7 shall be deemed to have come into force on the April 29, 1983. Sections 3 (1) and (2) were as follows:

"3 (1) Every Government employee, not being a workman and not belonging to Last Grade Service shall retire E from service on the afternoon of the last day of the month in which he attains the age of fifty five years.

(2) 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 attaina the age of sixty years." F

Explanation II(b) to s. 3 was to the following affect:

"(b) a Government employee who attained the age of superannuation but who was allowed to continue to hold the post beyond that date, but virtue of a stay order of a Court, shall be deed to have ceased to hold the post and relieved of his charge from the date of the judgment dismissing his petition, irrespective of whether the charge of the post was handed over or not as prescribed in any rule or orde~ of the Government for the time being in force."

A On August 23, 1984, the Andhra Pradesh Public Fmployment (Regulation of Age of Superannuation] Act No.. 23 of 1984 was amended by the prOIDlllgation of Andhra Pradesh Ordinance No. 7.4 of 1984 providing that in s. 3(1) of the Act and in Explanation II (a), the words fifty eight years' shall be substituted for the words fifty five years. This was obviously done to give effect B to the agreement of August 3, 1983 and to fulfil the promise held out therein that the age of Superannuation would be restored to 58 years. Clause 3(1) of the Ordinance is the much disputed provision and it has therefore, to be extracted in full. It .is as follows:

 "3(1) 'The provisions of this Ordinance shall not apply C to persons who attained the age of superannuation in pursuance of the notifications issued in G.Q.Ms. No. 36, Finance and Planning (Finance Wing-F.R.I.) Department, dated the 8th February, 1983, or.in Pursuance of the provisions of the Andhra Pradesh Public Employment . (Regulation of Age of Superannuation) Act, 1984, as in D force prior to the connnencement of this Ordinance." ' Andhra Pradesh Ordinance Na. 24 of 1984 was replaced by Act No.3 of 1985. By Sec. 2 of the Amending Act, the words 'fifty five years' were substituted by the words 'fifty eight years' in Sec.

3(1) and Explanation 11 (a) of the Principal Act. Section 4 of the Amending Act which is more or less on the same lines as E Clause 3(1) of the Ordinance says:

"4(1) The provisions of section. 2 of this Act shall not apply to persons who attained the age of superannuation in pursuance of the notifications issued in G.O.~.s. No. 36 Finance and Planning (Finance F Wing F.R.I.) Department, dated the 8th February, 1983, or in pursuance of the provisions of the Anclhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as in force prior to the connnencement of this Act."

No eXplanatory statement accompanying Ordinance No. 23 of

1984. was brought to our notice. The Statement of Objects and Reasons of Act No' 3 of 1985 was however placed before us but it is not helpful to ascertain the reasons which led the legislature to restore the age of superannustion to 58 years. If merely states that "the Government considered it necessary to raise the age of superannuation from 55 to 58 years". But we are not

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 591

altogether helpless. Where internal aids are not forthcoming, we A can always have recourse to external aids to discover theobject of the legislation. External aids are not ruled out. This is now a well settled principle of. modern statutory construction. Thus 'Enacting History' is relevant: "The enacting history of an Act is the surrounding corpus of public knowledge relative to its introduction into Parliament as a Bill, and subsequent progress B through, and ultimate passing by, Parliament. In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act." Again "In the period immediately. following its enactme, nt,· the history of how an enactment is understood forms part of the contelnporanea expositio, and may be held to throw light on the legislative C intention. The later history may, under the doctrine that an Act is always speaking, indicate how the enactment is regarded in the light of development from time to time." "Official statements by the government department administering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions." Justice D may be blind but it is not to be deaf. Judges are not to sit in

aound proof.roans.

Conmittee reports, ParliamentarY debates, Policy statements and public utterances of official spokesmen are of relevance in staturory interpretation. But 'the comity, the courtesy arid E respect that ought to prevail .between the two prime organs of the State, the legislature and the judiciary', require the courts to make skilled eval\iation of the extra textiial matertal placed before it and exclude the essentially unreliable. "Nevertheless the court, as master of its own procedure, retains a residry right to admit them where, in rare cases, the need o carry out the legislator's intention appears to the court so to require." F "No rule prevents. the court frOm inspecting in private whatever materials it thinks fit to ensure that it is well informed, whether in relation to the case before it or generally. Where these materials constitute publicly available enacting history, the court takes judicial notice of them." "The . cou.rt has an inherent power to inspect any material broUght before it." G E'rancis Bermien : Statutory Interpretation. This is to enable the court to determine whether the material is relevant to the point of construction in question, and if so whether it should be admitted. 1his has to be done with a degree of inhibition and an amount of circumspection.

Here, the facts speak for themselves. Res lpsa Loquitur .. The

~ H history and the succession of events, the_ initial lowering of the

age of the superannuation, the agitation consequent upon it and the agreement that followed the agitation clearly indicate that the object of Ordinance No. 23 of 1984 and Act No. 3 of 1985 was to undo the mischief or the harm . that had been done by the lowering of the age of superannuation from 58 years to 55 years and to restore the previous position. Quite obviously, it was not a case of change of social circumstances. It was a case of a change of policy to set right immediately a recent wrong perpetrated by a well intentioned but perhaps ill-thought measure. It was not at all a case of reversal of policy because of changed circumstances. A reference to the note file which was made available to us by the learned Advocate General of Andhra Ptadesh at, our instance shows that it was after a careful C consideration of the representations made by the various services associations in regard to the restroation of the age of superannuation to 58 years that the Government resolved to restore the age of superannuation to 58' years, In the counter, the Government appeared to take the stand that the Governments of the States of Karnataka and Rajasthan had raised the age of superannuation to 58 years and the Government of Andhra ptadesh D wanted to fall in line. It waa a wholly inaccurate statement.

There is no reference in the note file or elsewhere, except for the first time in the counter, to the circumstance that two other State Governments had raised the age of superannuation and the Andhra. Ptadesh Government had a accepted their wisdom. The statement in the counter tm1St be ignored. A reference to the E pleadings is revealing, l.£ not, startling. In Writ Petition Nos. 3420-3426/85 in paragraph 5, the petitioner averred:

"In fact Shri N.T. Rama Rao, Chief Minister himself admitted that he was misguided and misled by the then Finance Minister and the Chief. Secretary when his Government took the decision to reduce the age of retirement. His press conference dated 25.9.1984 was reported in the :Deccan Chronicle as follows:

"Chief Minister N.T. Rama Rao today announced that his government would retain the age of superannuation of the Government employees at 58 years as decided by the short-lived Bhaakara Rao Ministry.

Briefing newsmen after the Cabinet .., eting this aftenoon, Mr. Rama Rao said the Cabinet had reviewed the decision of.the previoua Government to raise the age of superannuation from 55 years to 58 with effect ·

from August 23, 1984.

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 593

The Chief Minister charged that Mr. N. Bhas'kara Rao, the then Finance Minister and the then Chief Secretary Mr. B.il. Raman had misled him when his Government decided to reduce the age of superannuation f rO!ll 58 to ss.

Both have not raised any objection to the proposal. Despute knowing well that the 'unp6pular' move would be detrimental to the Government, they had allowed it go with the evil intention of discrediting him, he alleged.

Mr~ Rama Rao said it waa not his intention to hurt the interests of any section of the people atid the Govermreqt eillployees constituting a sizeable mnnber who had voted his party to power. "Hmtever it is not possible for the Govermrent t~ concede the request of those who had already retired", he observed."

The said report has never been denied ot resiled by the Chief Minister.

In answer, the averment waa not d.enied. The deponent of the counter affidavit stated:

"I state with respect to paragraph: 5 that it is not open to the petitioner to rely on paper cuttings in support of their contention unless otherwise they are E proved apart from the fact that the statement in paper cuttings are in no way advance the case of the petitioner."

This can hardly be considered to be a denial of what waa said in paragraph 5 of the petition. We must therefore, proceed on the basis that the Chief Minister (Shri N.T. Rama Rao) did allege that when the Goverriment took the decision to reduce the age of superannuation, he was, 'Misguided and misled' by his Finance Minister and the Chief Secretary. It may be a sorry confession to make on the part of a Chief Minister, especially when it was a momentous decision involving the lives and future of thousands ot

employees. One wonders how a decision concerning the lives and the future of civil servants, who all their lives in the past,· had loyally served the Government, could have been taken in· such a hasty and haphazard fashion. One would expect such a decision to be taken after a full investigation into the nultitudinous pros and cons, after deep collection of all pertinent data and after deep consideration of every aspect of the question. But

there we have a statement attributed to the Chief Minister that he was 'misled and misguided' by the Finance Minister and his Chief Secretary. Sorry confession, it may be, but a frank and courageous admission it was, exposing him to criticism. It does require a sturdy spirit to own a mistake.

During the pendency of the Writ Petitions in this Court, , several. employees of local authorities etc. obtained orders of stay from the High Court and were continuing in service on the dates when the judgment of the Supreme Court was pronounced.

After the pronouncement of the judgment of the Supreme Court, the authorities that be have sought to give effect to the provisions of the Act and_ the Ordinance by seeking to throw them out on the ground that they had completed 55 years of age during the

interregnum between February 28, 1983 and August 23, 1984 some others who had completed 55 years between February 28, 1983 and August 23, 1984 but who had not completed 58 years sought re-entry notwithstanding the raising of the age of superanillllltion from 55 years ro 58 years. Their re-entry was sought to be reaisted on the basis of Cl.3(1) of the Ordinance and S.4(1) of the Amending Act. Those employees who were sought to be removed tI-Om seI-Vice or who were denied re-entry into service on the ground that they had attained the age of 55 years between February 28, 1983 and August 23, 1984, have once again invoked the jurisdiction of this Court and sought appropriate writs from this Court to continue or to reinstate and continue them in

servic~ until they attain the age of 58 years. They are the petitioners in Writ Petitions Nos. 3203, 3413-3419, 3420-3426 etc. etc. of 1985. They sought interim orders from this _Court.

On 23.4.85 interim directions to the following effect were issued by Desai and Khalid, JJ:

. , ..

" (1) From amongst those Government servants and servants of Local and other authorities governed by the decision of the Government of A.P. on reduction of age of retirement from service from 58 years to 55 years, who continued in service or continued to hold the post on April 1, 1985 for any reason including the grant of interim relief by Courts and who are removed from that post after that data shall be reinducted and 'put back in the post from where he/she was removed •

(2) Those Government Servants and others enlimerated in No. (1) here Aud :who are today in service and are likely to~ be removed on aceount of the reduc.tion in

B.PRABHAKAR RAO. v. STATE [CHINNAPPA REDDY, J.] 595

age of superannuation notwithstanding restoration of A higher age, whatever be the case, shall continue in service till further orders.

(3) Those Government servants and others enumerated in No.(l) here who were in service prior to April 1, 1985 and who are removed from service on account of B reduction in age, shall be reinducted in service, if the posts from each one was removed is still vacant or someone is holding a temporary charge.

(4) Those directions shall be carried out and given efffect to within one week from today.

(5) These directions will also cover those Government servants who are similarly situated but have not filed the SLPs and WPs.

(6) Government servants referred to in No,(l) will D also comprehend members of State Judicial .ser-irice."

The matter was mentioned again on two occasions for clarification and the following orders were then made by Tulzapurkar, Desai and Sen, JJ. The order made on May 6, 1985 $aid: .

''We do not see any ambiguity in Cl.3 of the order dated 23rd April, 1985. It is directed that Cl.3 or the order dated 23rd April, 1985 should be implemented to the extent that promotions made to the posts which are held by the officers will be made under Rule 37 by temporary appointments and the Chief Secretary and

-0ther two senior Secretaries will xamine the question F as to how many such vacancies could be filed and it_ is further.directed that from out of the petitioners one who has the longest service will be selected. The order will be carried out within two weeks from today.

This is without prejudice to the vacancy clause. All these appointments will be subject to the result of G these petitions."

The order made on May 7, 1985 said:

"We do not see any ambiguity in clause 3 or the Order dated 23rd April, 1985. It is directed that clause 3 of the order dated 23rd April, 1985 should be imple- K

A employees were moved are still vacant or where such post is held temporarily by others on promotion under Rule 37 of the A.P. States Subordinate service Rules.

The Chief Secretary and two other Senior Secretaries will examine the question as to how many such posts could be filed and it is further directed that in ll cases where more than one person has retired from a post, the person having the longest service should be selected. The Order will be carried out within two weeks from today. All these appointments will besubject to the result of the Petitions."

These interim orders were made under the misapprehension that all c so-called promotions would only be made under Rule 37 whereas whenever a promotion was made from a lower service to a higher service, it was not called' a promotion but was styled as an appointment and was made under Rule 10. Since Rule 10 was not mentioned . in the orders, persons who had been 'promoted' and appointed under Rule 10 claimed that they could not be displaced.

D Some others though promoted undet Rule 37 claimed that they had in fact .been promoted regularly after a proper selection by the Departmental Promotion committee but that according to the practice prevailing in Andhra Pradesh, their orders of promotion mentioried that they were promoted temporarily, though in fact they had been promoted regularly. Many such persons, claiming to have been appointed under Rule 10 or claiming to have been E promoted regularly notwithstanding the mention of Rule 37, filed Writ Petition Nos. 5447-5546 of 1985 etc. etc. questioning the orders of reversion with which they were faced consequent on the interim :directions given by Desai and Khalid, JJ.

During the vacation, R.ll. Misra, J. stayed the .orders or reversion passed by the Government in order to reinduct the retired employees. The F interim orders granted by R.B. Misra, J. appeared to conflict with the earlier interim orders granted by this Court. When all the interim applications came before us a few days back, we directed that all the Writ petitions may be placed before us for final disposal and that is how the matters are now before, us.

G Before referring to the submissions of the parties on the principal question of discrimination and arbitrariness, it is necessary to ascertain the exact factual situation in regard to certain other matters, besides those to which we have already referred. First in regard to the question whether the vacancies arising const;?quent on the application of the reduced age of H superannuation have been filled and if filled, whether they have

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.J 597

been filled on a regular or temporary basis? ln Writ Petition No..

A 3170/85, a Deputy Secretary to the Government of Andhra Pradesh, speaking for the government of Andhra Pradesh swore to a counter-affidavit in May 1985 in which he stated that:

"I state with respect to paragraph 8, that it .is not correct to state that only few vacancies have been B filled on temporary basis on the specific condition of review and revision on the basis of outcome of the judgment in the Writ Petitions filed by the employees due to the retirement at the age of 55 years pending in this Hon 'ble Court. It is submitted that it is wholly untrue to say that few vacancies have been c filled up. Consequent on the reduction in the age of superannuation the Government took every step to see that most of the vacancies have been filled up in accordance with rules on regular basis. It is only in few cases, temporary promotions have been . effected pending writ petitions. It is submitted that Ann.-I to D this counter affidavit gives particulars regarding the vacancies that arose due to the reduction in the age of retirement on 28.2.1983 and the vacancies fillec) up and the vacancies existing. There are very few vacandes in the lower echelons. I also submit that the existing few vacancies are due to administrative E dealy, or vacancies that arose latter after originally filling the vacancies."

In Writ Petition Nos. 5447-5546/85, there was a complete volte face and the very same Deputy Secretary speaking again for the Government of Andhra Pradest said:

"In so far as the first point is concerned in none F

of the cases there were regular promotions. All the promotions were officiating/Temporary/adhoc which would be clear from orders of promotion, some of which have been produced by the petitioners themselves. The promotions were either subject to the result of the G writ petitions then pending in this Honourable court challenging reducti.on of retirement age from 58 to 55 years, Or some other proceedings relating to inter-se seniority pending either in this Honourable Court or. in the High Court or in the Administrative Tribunsl, Or because of the pendency of finslisation of seniority.lists and consequent review of promotions H under the State Reorganisation Act. Further the Writ

SUPRF.ME COURT REPORTS [1985] SUPP.2 s.c.R.

Petitions questioning the reduction of age of retirement from 58 to 55 in G.o.Ms.No. 36, dated 8.2.83 were heard and judgment was reserved on 27th July, 1983.

Since the judgment was reserved, the judgment was expected at any movement. Hence the Government were making only officiating/temporary promotions under rule 37. Under the circumstances it was not possible to make regular appointments/promotions. Therefore, the petitioners were rightly reverted in accordance with the directions of the Honourable Court dated 6.5.1985 and 7.5.85. There was no question of either giving them any notice or hearing before the orders of the reversion are passed, as in terms of Rule 37 {dd), they could be reverted without any notice or hearing."

"Persons holding the posts under Rule 10 nave no right to the posts and their appointments/promotions were purely temporary/adhoc."

"Hence, I state that the petitioners continue to be adhoc promotees under Rule 37 and not regular employees as claimed by them. "

and:

"Admittedly, the petitioners were promoted under Rule 37 consequent to the vacancies which arose due to the retirement of several persons at the age of 55 years.

The Government never intended to appoint them on regular basis pending writs and judgment before the Supreme Court. In case the promotions were effected regularly legal complications will set in the event of the judgment of the Supreme Court going against the State Government deliberately made Rule 37 promotions so that in the event of the judgment going adversely against the State Government, there may not be any difficulty in reverting Rule 37 promotees and reinducting the employees affecting by G.O.Ms.No. 36 dated 8.2.83.

Fortunately, the judgment of the Supreme Court comes in favuur of the State Government. "

It is amazing that the same Deputy Secretary to the Government, representing the same Government, should have sworn to two such contradictory affidavits.

It reveals a total sense of irresponsibility and an utter disregard for veracity. It shows

...

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 599

that the deponent had signed the affidavits without even reading them or that he signed them to suit the defence to the particular writ petition without any regard for truth. In either case, it is reprehensible and toally unworthy of the spokesman of a Government and most unflattering to the Government on whose behalf he spoke. We would have contemplated severe action against the depondent, had we not the feeling that the responsibility for his statements lies with undisclosed higher echelons and we.need

not make a scapegoat of him. In fact, in a case like this involving the entire body of Government servants in Andhra Pradesh, we would havP. expected the Chief Secretary or a Principal Secretary to file the counter. But they have chosen to keep themselves back.

However we have a duty to discover the truth. We think that the truth is what is stated in the counter-affidavit in Writ Petition Nos. 5447-5546/85. The counter-affidavit itself gives good reasons why the promotions appointments were made on a temporary basis and the reasons are acceptable. The statements in the counter-affidavit in writ Petition Nos. 5447-5546/85. are supported by the findings of the Committee which was appointed by the government under the interim orders of this Court. The Conmittee consisted of the Chief Secretary and two senior Secretaries and it was asked to examine the question of the availability of posts for reinduction of retired employees.

The findings of the Committee were mentioned in the counter--aff idavit in Writ Petiition Nos. 5447-5546/85 and this is what was said:

"The Committee constituted under G.O.Ms.

No. 205, dt.9.5.1985 has completed its task of determing 'the number of vacancies for which retired employees can be reinducted as per the directions of this Honourable Court. Here below is given an abstract of the position as emerged.

Total number of persons retired from 28.2.83 to 23.8.1984 due .to reduction of age of retirement from 58 to 55 is 15, 529 of these people 8:928 are eligible for reinduction as they are below 58 years. The Committee found that 2, 770 posts are vacant and that 1751 persons have to be reverted as they were holding the posts on temporary promotions under Rule 37. Thus, the total number of vacancies to which retired persons could be reinducted as 4,521."

It was said that it was a practice in the State of Andhra Pradesh to make even regular appointments and regular promotions

A under Rule 10 and Rule 37 only and therefore, the mere fact that Rtile 10 or Rule 37 was mentioned in an order of appointment or promotion would not necessarily make the appointment or promotion temporary. Such appointments or promotions, if made after going through the regular process or selection were to be considered as regular and not temporary notwithstanding the mention of Rtile 10

JI or Rtile 37. But' here as pointed out in the counter, there was a special situation immediately after the age of superannuation was reduced, writ petitions were filed in the Supreme Court and in the High Court and there was considerable agitation by the employees. The entire situation was fluid as it were and there was good reason for the Government to make the appointments and promotions on a purely temporary basis, and that was what they C did. That the Departmental Committees recommended the temporary appointments and promotions made on the recommendation of the Departmental Ptomotion Committee. This is clear from the counteraffidavit in Writ Petition on Nos. 5447-5546/85 where it is stated as follows in paragraph IV-B:

"In certain cases, the promotions were given on the D basis of the recommendations of the Departmental Ptomotion Committee but that does not mean that their promotions were regular. The Departmental Ptomotion Committee also makes recommendations for temporary appointments/promotions otherwise it will offend Art. 14 and 16 in case all eligible candidates are not E considered for promotion even though the promotions is either officiating/temporary.

Therefore, the mere seli!ction by the Departmental Ptomotion Committe.e does not make their promotions regular. Promotion or posting after completion of training daes not make the promotions regular.

The promotion orders of the F petitioners promoted under Rule 37 clearly show that their promotions were purely temporary."

it is in this setting and background of facts that we are required to consider the submissions made to us. The submission

mae by Sarvasri K.K. Venugopal, v. M. Tarkunde and F.s. Nariman G who appeared for the employees who attained the age of 55 years between 28.2.83 and 23.8.84, was that the classification of these persons as a separate group for the purpose of excluding them .from , the benefit of the redressal of the wrong done to the employees and the relief given to them by the amending Ordinance and the Act, was an unreasonable classification having no nexus H whatever with the object of the legislation. They urged that every person who was in Government employment on 28.2.83 was hit

B.JRABHAKAR RAO v. STATE (CHINNAPPA REDDY, J. J 601

by the reduction of the age of superannuation from 58 to 55 years A and when it was realised that a grievous wrong had been done which it was necessary to set right by reversing the policy and such a policy decision was in fact soon taken there was no reason to postpone effect being given to the reversal of policy to an uncertain date, namely the pronouncement of the judgment by the Supreme Court and thereby to exclude from the benefits of the B change of policy that group of peraons who had the misfortune of attaining the age of 55 years between the two dates. The learned counsel pointed out that, the decision to reverse the policy having been taken, the uncertain date of pronouncement of judgment was an irrelevancy in fixing the date from which to give effect to the policy. In the event, the goveritment also did not C await the pronouncement of the judgment but came forward first with the Ordinance and then with the Act. Therefore the learned counsel urged, by merely giving them the appellation 'retirees' as the Government had done in this case, the group .of persons who had attained the age of 55 years before the delayed date of giving effect to the reversal of policy could not be discrimi- D nated against. The question according to the learned counsel, was not one of retrospectivity at all, but one whether when making a legislation to right a wrong or remedy a mischief a group of persons who had also been wronged and suffered the mischief could be excluded by the mere mechanics of delayed legislation. Shri Venugopal further submitted that several persons who were E continuing in service by virtue of orders of stay obtained from the High Court, were also sought to be sent awayby the government on the ground that had they not obtained the orders of stay, they would have retired from service on having attained the age of 55 years. This he urged was patently unreasonable. On the other hand it was urged by the learned Advocate General of Andhra Ptadesh, who appeared for the Government of Andhra Pradesh, Shri Shanti Bhushan, Shri Govindan Nair, Shri Pilrmeshw,.r Rao, Shri H.S. Guru Raja Rao and Shri Kanta Rao, learned counsel who

appeared for the officers o were promoted in the vacancies created by the retirement of those who had attained the age of 55 years, that there was no discrimination whatever and that what the Government had done was merely to classify those employees who had ceased to be in service or who should have ceased to be in service and. refuse to apply the increased age of superannuation to them. It was said that having gone out of service, there was no question of their being eligible to the increased age of superjlnnuation and therefore, the classification was perfectly reasonable .• It was also urged that appointments and prODK>tions were made subsequent to the reduction of the age of

SUPKEME COURT REPORTS [1985] SUPP.2 s.c.R.

superannuation on regular basis and those appointments and promotions could not be disturbed. We were told that interferenceby us at this stage would lead to administrat.ive disorder, disaster and chaos.

We would like to mention here that the learned Advocate General of Andhra Pradesh as well as the other learned counsel who appeared on either side presented their respective points of view very fairly and with moderation. The task of the learned Advocate General was particularly difficult as he stood between the devil and the deep sea as it were.

A situation such as the one before us had. never presented itself to the court previously. Make this case a precedent for justice say one side; let this not be the first say the other. We have had cases where the age of superannuation had been raised from 55 to 58 years; we have had cases where having earlier raised the age of superannuation from 55 to 58 years, there was later a change of policy and the age of superannuation was once again reduced to 55 years. But this is the first occasion-neither our researches nor those of the learned counsel have been able to trace another case of this kind - where the age of superannuation was first raised from 55 to 58 years, there was then a change of policy a few years later reducing the age of superannuation from 58 to 55 years and finally there was again, within a few months, a reversion to the higher age of superannuation of 58 years.

The cases of Bislmu Narain Mishra v. State of Uttar Pradesh & Ors. [1965] 1 s.c.R. 693 and K.

Nagaraj & Ors. v. State of Audbra Pradesh AIR 1985 s.c. 551, belong to the second category of cases. In Bislmu Narain Hisbra's case, by a notification dated November 27, 1957 the Government of Uttar Pradesh raised the age of superannuation from 55 to 58 years. On may 25, 1961 the Government 'reduced the age once against to 55 years, and further laid down that those who had continued beyond the age of 55 years owing to the earlier notification would be deemed to have been retained in service beyond the age of superannuation and would be compulsorily retired on December 31, 1961. The appellant who attained the age of 55 years on December 11, 1960 and was continued in service was one of those who was retired on December 31, 1961. He questioned the change in the rule of retirement on the ground that it was hit by Art.14 inasmuch as it resulted in inequality between public servants in the matter of retirement.

The argument was that when all those who had passed 55 years were asked to retire on December 31, 1960 some had just.completed 55, some were 56, some were 57 and so on and, theefore, there was discrimination. Dealing with this; question, Wanchoo, J, speaking for the Court observed:

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.j 603

"The last argument that has been urged is that the new rule is discriminatory as different public servants have in effect been retired at different ages. We see no force in this contention either, retirement namely December 31, 1961 in the case of all public servants and fixes.the age of retirement at 55 years. There is no discrimination in the rwl.e itself. It is however urged that the second notification by which all public servants above the age of 55 years were required to retire. on December 31, ~961 except those few who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that varioU.s public servants were retired at various ages ranging from 55 years and one day to up to 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the , case of all public se.rvants who had completed the age of 55 years but not the age of 58 years .before December 31, 1961. In this respeC.t also, therefore, there was no .discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction Were ordered to retire on the same date, namely December 31, 1961. The result of this seems to be that the affected public servants retired at different ages.

Hut this was not because they retired at different ages but because their services were retained for different periods after the fifty-five~ Now it cannot be urged that if Government decides to retain the srvices of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of publiC service, and in the present case the difference in the period of retention has cirisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has ti-eated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge therefore, to the two notifications on the basis of Art.14 must fail."

A The situation which was considered in Bisbou Narain's case was exactly the identical situation which obtained on February 28, 1983 in the presentcase and precisely the situation which was considered by the judgment pronounced on January 18, 1985 and which is reported in A.I.R. 1985 s.c. 551 as K. Nagaraj v.

State of Aodhra Pradesh, the very judgment the delay in B pronouncing which is said to have led to this confusion. Neither in Bisbou Narain Mishra 's case nor in Nagaraja 's case bad the court occasion to consider the further step that had been taken in the present case, namely, once again raising the age of superannuation to 58 years and the exclusion of a class of persons from its benefit.

Both the case are therefore plainly distinguishable and are of no assistance to us in solving the C problem bef?re us.

Another case on which reliance was palced by the learned counsel appearing for the respondents in Writ Petition Nos. 3203, 3413-3419, 3420-3426 etc.etc. of 1985 was State of As8811l V• Padma Ram Borah AIR 1965 s.c. 473. In that case a Government D servant who was due to retire from service on and from January 1, 1961, was suspended from service on December 22, 1960, pending a departmental inquiry. His services were extended till March 31,

1961. The departmental inquiry was, however, not concluded even by then. So on May 9, 1961, the Government passed an order extending his services for a period of 3 months with effect from April 1, 1961. This Gourt held that the government bad no juris-.

E diction to exteljd the services of a Government servant, after he bad retired from service, merely for the purpose of continuing the departmental inquiry. Rule 56 of the Departmental rules did not authorise such a course. It is difficult to see how this case can possibly assist the respondents in Writ Petitions Nos. 3203, 3413-3419, 3420-3426 etc. etc. of 1985. It is one thing to say F that the Executive Government bas no power to pass an order extending the service of a Government servant after he bas retired from service; it is altogether a different thing to say that the State while making a law raising the age of superannuation cannot make an unreasonable classification to exclude

some Government Servants from the benefit of the increased age of superannuation. The classification must pass the dual test of being reasonable and related to the object of the legislation, besides not being arbitrary. It is not open to the State to make an arbitrary classification first by making the date dependent on an uncertain event namely, the date of pronouncement of judgment by the Supreme Court and next by making a legislation excluding persons who had attained the age of 55 years before the legis- '

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.) 605

lation took effect though 'the legislation itself was desinged to A undo the wrong already done to the very Government employees• Some other cases were also cited before us to illustrate the point that it was open to the Legislature and the Executive to choose a 'cut-off' date for bringing into force laws such as Land Reform Laws etc. It is true that whenever a law is made or whenever an action is taken, it has to be with effect from a certain B date but it does not necssarily follow that the choice Of the date of not open to scrutiny at all. If the choice of the date is made burdensome to some of those, the wrong done to whom is sought to be rectified by the law it would certainly be open to the Court to examine the choice of the date to find out wether it has resulted in any discrimination.

We think that the one case which is really of assistance to us in this matter is the recent , decision of the Constitution.

Bench in D.S. Nakara v. Union of India [1983] 2

SCR

165. We propose not merely to quote extensively from Nakara's case, not merely to adopt the principles therein . laid down but also to D employ the very techniques applied there to solve the problem.

The question arose there whether, for the purpose of application of the liberalised pension niles, the Government of India could stipulate March 31, 1979 as the date for dividing Government employees into two classes: one class who had retired before March 31, 1979 who would not be entitled to the benefits of the. liberalised pension rules and the other class who retired after E March 31, 1979 who would be entitled to such benefits. The submission was that the differential treatment accorded to those who had retired prior to the specified date was voilative of Art.14 as the choice of the date was arbitrary and the classification based on the fortuitous circumstance of retirementbefore ot subsequent to the specified date was invalid. This submission was F accepted by the Constitution Bench. Justice D.A. Desai speaking for a unanimous Court, considered the question at great length in all its implications. First considering the scope of Art.14, it was observed:

"The decisions clearly lay down that though Art.14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however to pass the test of permissible classification two conditions must be fulfilled, viz. (i) that the clas.sification must be founded on an intelligible dif f erentia which distinguishes persons or things that are grouped

together from those that are left out of the group; and (ii) that differentia must have a rational relation to the objects sought to be achieved by the statute in question ••••••••••••••••••••••••••••••••• The other fact of Art.14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification."

Thereafter the Court posed the question:

"As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved?"

The question was answered and it was said:

"The State, theretore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to objects the sought to be achieved."

The submission made by the learned Attorney-General on behalf of the Union of India was summarised:

"Thus accoi"ding to the respondents, pensioners who retire from Central Government service and are governed by the relevant pension rules all do not form a class but pensioners who retire prior to a certain date and those who retire subsequent to a certain date form distinct aµd separate classes. It may be made clear that the date of retirement of each individual pensioner is not suggested as a criterion for classification as that would lead to an absurd result, because in that event every pensioner relevant to his date of retirement will form a class unto himself.

What is suggested is that when a pension scheme undergoes a revision and is enforced effective from a certain date, the date so specified becomes a sort of rubicon and those who retire prior to that date from one class and those who retire on a subse-'

B.PRAl!HAKAR RAO v. STATE (CHINNAPPA REDDY, J.] 607

quent date form a distinct and separate class and no one can cross the Rubicon."

The Court then proceeded tO consider the question: what is a pension? and why a liberalised pension schemes? After answering these questions the court referred to some of the very arguments now advanced before us that th~ date is an integral part of the scheme and so not severable from the scheme at all and that the Court should not usurp legislative functions.

The learned

Atton1y General's argument on these questions was:

"The Learned Attorney-General contended that the sctieme is one whole and that the date is_ an integral part of the scheme and the Government would have never enforced the scheme devoid of the date and the date is not severable from the scheme as a whole. Contended the learned Attorney-General that the Court does not take upon itself the function of legislation for persons, things or situations omitted by the legislature.

It was said that when the legislature has expressly defined the class with clarify and precis.ion to which the legislation applies, it would be outside the judicial function to enlarge the class and to do so is not to. interpret but to legislate which is the forbidden field. Alternatively it was also contended that where a larger class comprising two smaller classes is covred by a legislation of which one part is constitutional-, the Court examines whether the legislation llllSt be incalidated as a whole or only in respect of the unconstitutional part.

It was also said that severance always cuts down the scope of legisation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an attempt is made to include them in the scheme it is not cutting down the class or the scope but enlarge the ambit of the scheme which is impermissible even under the doctrine of severability. In this context it was lastly submitted that there is not a single case in India or elsewhere where the Court has included some category within the scope of provisions of a law to maintain its constitutionality."

Proceeding them to meet the submission of the learned R Attorney General, Desai J. said,

 "If it appears to be undisputable as it does to us that the pensioners for the purpose of pension benefits form a class would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision and would such classification be founded on some rational principle. The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved.

We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date sillJ.lltaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be wotst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed it would be discriminatory. To illustrate take two persons, one retired just a day prior and antoher a day just succeeding the specified date. Both were in the same pay bracket the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension. One retiring a day earlier will have to be subject to ceiling of Rs. 8,100 p.a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the basis of last ten months average.

The Artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexes to the objects sought to be achieved by liberalising the pension scheme.

In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 609

scheme. The equal treatment guaranteed in Art. 14 is wholly violated inas!llllch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of comnrutation of pension. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the Classification does not stand the test of Art. 14."

The Court then asked itself the question: "By our approach, are we making the scheme retroactive." The answer was an emphatic 'No'. They said,

"In other words, benefit of revised scale is not limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date.

This is just and.fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to .futurE'. reti.res orily.

Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages."

The Court finally considered the favourite argument advanced against what some of the Counsel who appeared before us described as judicial 'tinkering' with legislative policy. The Court took the view that the State cannot say 'Take it or leave it'.

If there are words in a statute which bring about discrimination, those words can be seve~ They said,

"There is nothing in!lllltable about the choosing of an event as an eligibility criteria subsequent to a specified date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable effect of . dividing homogeneous class and of introducing the' discrimination, the same can be easily severed and set aside.

While examining the case under Art. 14, the approach is not : 'either take it or .leave it', the approach is removal of arbitrariness

.. -----.......

and if that can be brought about by severing the mischievous portion the ourt ought to remove the discriminatory part retaining the beneficial portion. The pensioners do not challenge the liberalised pension scheme.

They seek the benefit of it. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation and we find no difficulty in severing and quashing the same. This approach can be legitimised •on the ground that every Govennnent servant retires.

State grants upward revision of pension undoubtedly from a date. Event has occured revision has been earned.

Date is. merely to avoid payment of arrears which may impose a heavy burden.

If the date is wholly removed, revised pensions will have to be paid from the actual date of retirement of each pensioner. That is impermissible.

The State cannot be burdened with arrears connnencing from the date of retirement of each pensioner.

But effective from the specified date future pension of earlier retired Govermnent servants can be computed and paid on the analogy of fitments in revised pay-scales becoming prospectively operative.

That removes the nefarious unconstitutional part and

 retains the beneficial portion. It does not adversely affect future pensioners and their presence in the petitions becomes irrelevant .• But before we do so, we must look into the reasons assigned for eligibility criteria, namely, 'in service on the specified date and retiring after that date'."

The learned judges then expressed their disinclination to share the. fear 'expressed by the learned Attorney , General that the F Parliament. would not have enacted the measure if the unconstitutional part was struck down and added "Our approach may have a parliamentary flavour to sensitive noses." Dealing with the _question o.f frame of relief, the .Court struck down as unconstitutional, the words, "that in respect of the Government servants who were in service. on the 31st March, 1979 and re'tiring from service G on or after that date" and the words "the new rates of pension are effective from 1st April, 1979 and will be applicable to all

servce officers who became/become non-effective on or after that date" in the impugned memoranda, but specified that "the date . mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners H gover:ned:bY 1972 Rules i-Crespective of the date of retirement."

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.j 611

It was declared "all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pen8ion scheme from the specified date, irrespective or the date of retirement." ·

In he course of our narration, we have already stated. our conclusions on several of the questions at issue, both factual and legal.

The final situation that emerges is that almost immediately after the age of. superannuation was reduced from 58 to 55 years, it was realised by the Government of Andhra Pradesh that they had taken a step in the wrong direction and that serious wrong and grave injustice had been doneto their employees. A decision was very soon taken to redress the wrong by reversing the decision but an unfortunate rider was added that they should wait till the pronouncement of the jucjgment of the Supreme Court, which was perhaps expected to be pronounced shortly. As the judgment was not pronounced for long, it became imperative for the Government to implement their decision of their own accord and so they passed Ordinance No. 24 of 1984.and Act No. 3 of 1985, amending Act No. 23 of 1984 by substituting 58 years for 55 years. While doing so, unfortunately again, thQse that had suffered most by being compelled to retire between 28.2.83 and 23.8.84 were denied the benefit of the legislation by cl.3(1) of the Ordinance and Sec. 4(1) of Act No.3 of 1985. Now if all effected employees hit by the reduction of the age of superannuation forn:ied a class and no sooner than the age of superannuation was reduced, .it was realised that injustice had been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick up out a class of persons who deserved the same treatment and exclude from the benefits of the beneficent treatment by classifying them as a separate group merely because of the dealy in taking the.remedial action already decided upon. We do not .doubt that the Judge's.

frind and counsellor, 'the counnon man' , if asked, will unhestitatingly respond that it would be plainly unfair to make any such classification. The coonnon sense response that may be expected from the conmon man, ntramelled by legal lore and learning, should always help the judge in deciding .questions of fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory.

The principle of Nakara clearly applies. The diversion of Government employees into two classes, those who had already attained the age of 55 on 28.2.83 and those who attained the age of 55 on 28.2.83 and 23.8.84 on the one hand, and. the rest on the other

A and denying the benefit of the higher age of superannuation to the former class is as arbitrary as the division of Government employees entitled to pension in the past and in the future into two classes, that is, those that had retired prior to a specified date and those that retired or would retire after the specified date and confining the benefits of the new pension rules to the B latter class only. Legislations to remedy wrongs ought not to. exclude from their purview persons a few of the wronged persons unless the situation and the circ\DDStances make the redressal of the wrong, in their case, either impossible or so detrimental to the public interest that the mischief of the remedy outweighs the mischief sought to be remedied. We do not find that there is any such impossibility or detriment to the public interest involved C in reinducting into service those who had retired as a consequence of the legislation which was since thought to be inequitable and sought to be remedied. As observed in Nakara, the burden of establishing the reasonableness of a classification arid its nexus with the object of the legislation is on the State. Though no calamitous consequences were mentioned in any of the counteraffidavits, one of the submissions strenuously urged before us D by the learned Advocate-General of Andhra Pradesh and the several other counsel who followed him was the oft-repeated and -now familiar argument of 'administrative chaos'. It was said that there would be considerable chaos in the administration if those who had already retired are nciw directed to be reinducted into service.

We are afraid we are unable to agree with this submission.

Those that have stirred up a hornet's nest cannot complain of being stung. The argument about administrative chaos has been well met by Lord Denning M.R. in Bredburry & Ors. v. lmldon Borough of Enfield [1967] 3 All E.R. 434, where the Master of F Rolls in his characteristic and forceful way observed:

' "It has been suggested by the Chief education officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed o the new compre- G hensive schools, the pupils allotted their places, and so forth It would be next to impossible, he

say~, to reverse all these arrangements without complete chaos and demage to teachers, pupils and .

public I 011st say this: if a local authority does not fulfil the requirements of the law, this court H will see that it does fulfil them. It will.not listen

B.PRABHAKAR RAD v. STATE [CHINNAPPA REDDY, J.] 613

readily to suggestions of "chaos" • The department of education and the council are subject to the rule of law and must comply with it, just like everyone elae.

Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result.

The evidence convinces me that the "chaos" is much over-stated •.•.••............•... I see no reason why the position should not be restored; so that the eight schools retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a nwnber of people, but I think it far more important to unphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld."

In the present case too, we think that the case of chaos is much overstated. The affidavits do not disclose what disastrous consequences, insoluble problems and unsunnountable difficulties will follow and how chaos will inevitably result. True quite a large nwnber of employees who have been promoted will have to be reverted, but their promotions and promotionsl-appointments are all temporary (and, we take care to add here it would make no difference evn if a few were regularly promoted) and it is not as if they lose for ever their promotional opportunities. The promotions! opportunities are merely postponed to the dates on which they would be entitled to be promoted had not the fundamental rules and the Hyderabad Civil Services, Rules been amended and Act No. 23 of 1984 passed. What has n0w happened is that these persons have secured a double advantage. First, by the initial reduction of the age of superannuation, they obtained early and unanticipated promotion, that is to say, promotion ahead of the normal date on which they would have otherwise been promoted; and second their tenure in the promoted post was increased by a further three years as a result of the subsequent increase of the age of superannuation. Having secured this double advantage they nsturally desire to stick to them and talk glibly of hardship and inconvenience. On the other hand, it would be a great injustice to deny justice to those who have

suffered injustice must merely because it may cause inconvenience to the adminis_tration. We are governed by the Constitution and constitutionsl rights have to be upheld. 8urely the Constitution must take precedence over convenience and a judge may not turn a bureaucrat. We do not mean to suggest that

creation of a chaotic State of administration is not a circumstance to be taken into account. It may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But, there 1111st be sufficient evidence of that - how the circumstances will lead to chaos. Ups and downs of career bureaucrats do not by themselves justify such a classification. It may however be of some consequence in the .matter of granting relief. For instance there would be really no point in reinducting an employee if he has but a month or two to go to attain the age of 58 years and to retire. Reinduction of such a person is not likely to be of any use to the administration and may indeed be detrimental to the public interest. It is bound to be wasteful. In such cases as well as in cases where they can't be reinducted because they have already completed 58 years by now, they cannot obviously be reinducted. So other ways of compensating them 11U.1St be found.

The obvious course is to compensate them monetarily.

In Industrial Law we do award back and future wages on quite a large scale and there is no reason why we cannot adopt the same principle here. If as a rule private employers in such situations are asked to pay backwages, we see no impediment in doing so in the case of those that are expected to be model employers i.e. the Government, public corporations and local authorities.

An argument which requires to be dealt with is that it is not open to the Court to give restrospecti vely to a legislation to which the legislature plainly and expressly refused to give retrospectivity. As pointed out in Nakara'a case, the question is not one of retrospectivity at all. The circumstances that the relif given by Ordinance No.24 of 84 and Act No.3 of 1985 is not extended to those who had attained the age of 55 years by February 28, 1983 or between 28.2.83 and 23.8.84, has the effect of limiting the field of operation of the Ordinance and the Act and introducing a classification which in order to be sustained must be shown to be reasonable and to have a nexus to the object to be achieved besides not being arbitrary. While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc. etc. But it would be incorrect to call a statute 'retrospective', "because a part of the requisites for its

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 615

action is drawn from a time antecedent to its passing". (Viele R.V. St. Mary, Whitecbapel (Inhabitants) [i842] 12 Q.B. 120). We must further remember, quite apart from any question of.retrospectivity, that, unlike in the United Kingdom here in India we have a written Constitution which confers justificiable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with rP.ference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non-retroactivity or non-application clause, as offending the fundamental right to equality before the law and the equal protection of the laws. That is the situation that we have here.

We may now refer to two arguments which were mentioned in passing but were not pursued. The first was that a writ petition similar to Writ Petition Nos. 3420-3426/83 etc. had been filed earlier and had been dismissed in limine by a Bench of this Court. We do not see how the dismissal in limine of such a writ petition can possibly bar the present writ petitions. Such a dismissal in limine may inhibit our discretion but not our

jurisdictioli:- So the objection such as it was, was not pursued further. So also the second objection which related to the nonjoinder of all affected parties to the litigation. We are quite satisfied that even if some individual affected parties have not been impleaded before us, their interests are identical with those and, have been sufficiently and well represented. Further, the relief claimed in Writ Petition Nos. 3420-3426 of 1983 etc. is of a general nature and claimed against the State and no particular relief is claimed against any individual party. We do not think that the more failure to impead all affected parties is a bar to the maintai.nability of the present petitions in the special circumstances of these cases where the actions are really between two 'warning groups'.

Finally we come to the question of the relief to be granted. We find that Cl.3(1) of Ordinance No;24 of 84 and Sec.4

(1) of Act No. 3 of 1985 may easily be brought to conform to the requirements of Art. 14 of the Constitution by striking down or omitting the naughty word .. 'not' from those provisions. We may possibly achieve the same object by striking down the whole of cl.3(1) of the Ordinance and Sec.4(1) of the Act but then the question may arise whether the rest of the Act would be sufficient to bring in these who have been excluded. We think that the safer course would be to strike down the off ending word

'not' from these provisions. That we have such power is clearly laid down in Nakara's case where the court directed the deletion of some words from the offending clause and directed it to be read without those words. To make matters clear and to pul them beyond dispute, we give the following directions in exercise of our powers under Art. 32 and 142 of the Constitution:

"l. All employees of the Government, public corporations and local authorities, who -were retired from service on the ground that they had attained the age of 55 years by 28.2.85 or betwiaen 28.2.83 and 23.8.84, shall be reinstated in service provided they would not be completing the age of 58 years on or before 31.10.1985.

2. All employees who were compelled to retire on February 28, 1983 and between February 28, 1983 and August 23, 1984 and who are not eligible for reinstatement under the first clause, shall be entitled • to be paid compensation equal to the total emoluments which they would have received, had they been in service, until they attained the age of 58 years, less any amount they might have received ex gratia or by way of pension etc. or under the interim orders of this Court. They will be entitled to consequential retiral benefits.

3. Such of the employees as have not been compelled to retire by virtue of orders of stay obtained from the High Court or the Administrative Tribunal, or who have actually been reinstaed in service pursuant to interim orders of this Court, shall be allowed to continue in service until they attain the higher age of superannuation.

4. The reinduction of those employees that have been compelled to retire previously will put them back as regards their seniority in precisely the same position which they occupied before they were retired from service• They will be entitled to all further consequential benefits.

The employees who were retired and who are reinducted will be entitled to be compensated for the period during which they were out of service in the same manner as mentioned in clause ( 2) •

B.PRABHAKAR RAO v. STATE (CHINNAPPA REDDY, J.] 617

6. In the matter of reinduction of employees who do A not attain the age of 58 years on or before 31st October, 1985 the Government may exercise an option not to reinduct them in the case of all or some or any of the employees, as the case may be, provided the employees are paid the compensation as in the case of those covered by (2) and (5).

7. All interim orders -are vacated and subject to these directions, the Government is free to revert persons promoted or appointed to the posts held by persons who were retired on having attained the age of 55 years by 28.2.1983 or between 28.2.83 and C 23.8.84 to the posts which they held on February 29, 1983 or on the dates previous to their promotion or appointment provided that they need not be so reverted, if they would otherwise be entitled to be promoted or appointed even if the other employees had not been retired consequent on 'the lowering of the D age of superannuation.

8. The Government shall be free to create supernumerary posts wherever they considet it necessary so to do.

9. All payment of compensation to be made and completed before December 31, 1985. If for any reason the Government finds itself unable to pay the entire amount at one time within the time fixed by us, the Government will be at liberty to pay the amount in not more than four instalments within the tiine stipulated by us. The Govermnent will a, lso have the F liberty to supply to us for extension of time, if so advised. Where the employees are awarded compensation by the Government. such employees may apply to the concerned Income-tax Officer for relief under Section 89 of the Income-tax , Act read with Rule 21-A of the Income-true Rules and Income-tax Officer concerned G will grant the appropriate relief."

With these directions, Writ Petitions Nos. 3420-26 of 1985 etc. are allowed with costs and Writ Petitions Nos. 5447-5546 of 1985 etc. are dismissed but in the special circumstances without any order as to costs.

llALAKRISllNA ERADI, J, While respectfully agreeing with the judgment prepared by my learned Brother Reddy, J. I have thought it fit to add a few words of my own since I consider it necessary to make it absolutely clear that the conclusions reached by us in these cases are based entirely on the special facts and circumstances constituting the legislative history of the impugned Andhra Pradesh Ordinance No.24 of 1984 and Act 3 of 1985 which have been set out in extenso in the judgment of Reddy, J.

We are not to be understood as laying down that whenever the age of superannuation of Government employees or of employees of local authorities etc. is enhanced, the benefit of C such enhancement should be extended not merely to persons in service on the date on which the change is effected but also to persons who have already retired from service prior to that date. It is now well established by decisions of this Court that the Government has full power to effect a change in the age of superannuation of its employees on :i:-elevant considerations. If D in the exercise of such power the age of superannuation is enhanced purely by way of implementation of a policy decision taken by the Government, such alteration can legally be brought about with prospective effect from the date of the commencement of the operation of the Ordinance, Act or Rule and no question of violation of Article 14 or 16 of the Constitution will arise merely because the benefit of change is not extended to E employees who have already retired from service. In these cases now before us our conclusion is rested entirely on the finding arrived at by us after a consideration of the factual background and legislative history of the impugned Ordinance and Act that the underlying purpose and object behind the relevant provisions of the Ordinance and the Act was to set right and nullify a F wrong or injustice that had been done to the employees by ti)e abrupt reduction of the age of superannuation from 58 years to 55 years by Ordinance No. 8 of 1983 and the Government's Notification issued as per G.Q. Ms.No.36, dated 8th February, 1983 which preceded it. All that we are holding is that in the context of these telling facts and circumstances which G conclusively show that the object and purpose of the Legislation was to set right the injustice that had been done, there is no rational or reasonable nexus or basis for separately classifying the employees who had retired from service prior to the date of commencement of Ordinance No.23 of 1984, who are the persons most affected by the wrong_ - by denying to them the benefit of H the rectification of the injustice. It is so1ely on this ground that we are allowing these Writ Petitions and granting the reliefs specified in the judgment of Reddy J,

B.PRABHAKAR RAO v• STATE (KHALID, J.] 619

KHALID, J. After considering the rival contentions put A forward by the learned counsel on both sides, the factual matrix and the law involved, the following points gave me some difficulty in accepting the petitioners' case. I felt that these points posed hurdles in the way of the petitioners succeeding in their.attempt to secure the relief sought. I am fornrulating the points as I understood them.

1. This Court in K. Nagaraja V• State of A.P; [1985] A.I.R. s.c. 551, upheld the action of the Government in reducing the age of retirement from 58 to 55. The contention that such reduction was arbitrary and irrational was not accepted. Further, the content.ion that the age of superannuation was increased from 55 C to 58 years with effect from October 29, 1979, after an elaborate and scientific enquiry by an one-man pay connnission did not find favour with this Court because it felt that the question of the age of retirement was not referred to the Commission.

Accordingly the Court held that the decision regarding the age of retirement was a matter of policy in the D fornrulation of which theGovernment must be allowed a free and fair role to play. It. is not always necessary that such a decision is taken on the basis of empirical data collected on scientific investigation. The further submission that the decision to reduce the age of retirement from 58 to 55 years was arbitrary in view of the fact that it was .taken by the State Government within one month of the assumption of office by it E also did not find favour with this Court. This Court observed that the reasonableness of a decision in any jurisdiction, did not depend upon the time which it took. This decision has became final and the petitioners before us cannot in any manner question it. This decision is, therefore, an authority for the proposition that the charge of arbitrariness cannot be laid at F the doors of the Government in matters relating to policy decisions and that the Government have full powers to decide about the age of retirement considering the various data available before it.

(2) Bislmu Narain Mishra v. State of U.P; & others, ll965] G 1 S.C.R. 693, is a decision rendered by a Constitution Bench of this Court.

In that case, a , notificatJ.on on November 27, 1957, raised the age of superannuation from 55 to 58 years.

On May 25, 1961, the age of retirement was reduced once-again to 55 years. It was proVided in the second notification that those who were retained in service beyond the age of superannuation on the H basis of the earlier notification would be compulsorily retired on December 31, 1961. The second notification was questioned as

A being arbitrary and hit by Article 14 since it resulted in inequality between the public servants .in the matter of retire-:. ment. In this Judgment the classification of Government employees who were in service into two groups base~ on their age was upheld

by the Constitution Bench as a reasonable classification. I felt that this case had a great bearing on the petitions before us and B the principle laid down there could be extended to the cases before us• It was strongly contended that if classificati<>n of two groups. of in-service employees on the basis of age and a cut off date could be justified. as reasonable classification, it can be more so in cases like the one before us where the classification is between the retired employees and those in service.

(3) By the operation of a valid law, some employees have retired by superannuation and have thus ceased to be members of their respective service. What. is noW attempted is to retrospectively re7induct them into service, a procedure that Courts should froWn upon and not encourage.

D ( 4) For the purpose of the cases before us , Bistrun Narain IU811ra 's case is more "l'P. ropriate and useful tha.n that of o.s; 11aksrs -.;, Uliion, [1983'] 2 S.C.R. 165, which dealt with two classes of retired employees and a cut off date. The attempt to distinguish Bislrun Narain's case on the factual difference available in these cases is ~'. matter for further probe, in order to see how for the distinction is destructive of the principle laid E down there in its application to these cases.

(5) ''i'he original attempt by the petitioners was to get Section 3 of the amending Act struck down in its entirety.

Now they realise that such a relief would not serve their purpose.

What they now want is that this Court should' remove the word F 'not' froill 'the Section, so 'that the petitioners will be r'escued from the mischief of that word.

Removing a word or adding words to a legslative enactment is an exercise, Courts have been repeatedly warned against from embanking upon. I personally feel that this guideline is one that has to be respected by Courts of law.

(6) A petition, similar to one before us, was filed in this Court as W.P. No. 16080/1984 raising identical points. This writ petition came up for hearing on 12.2.1985 before a Bench consisting of the Chief' Justice, Justice D.A. Desai and Justice .A.N.

Sen. After hearing the counsel for the petitioner as well as the

B.PllABllAKAR RAO v. S'tATI! [KHALID, J •I 621

State of Andhra Ptadesh, the BenCh suggested that the counsel for the State should take instructions from the State of Andhra Ptadesh about reinstating in service of those persons who had not attained 58 years of age, but without back-wages. The caae was adjourned to 19.2.1985 for thst purpose. I understand that counter-affidavits were also filed in that caae. The caae appeared before a Benell consisting of Justice R.S. Pathak and Justice A. Varadarajan on the next occasion. On that occasion, the petition was dismissed, after hearing. Normally this Court will be disinclined to entertain or to hear petitions raising identical points again whereon an earlier occaaion, the matter was heard and dismissed. Not that this Court has no jurisdiction to entertain such matters, but would normally exercise its discretion against it.

One of the counsel appearing for the respondents strongly pleaded the bar of Res Judicata against these petitions on the basis of the earlier decision.

(7) The learned Advocate General of the Andhra Pradesh with great concern and justifiably appealed to us that if the petitions were allowed, it would cause serious dislocation in the administration. He strongly pleaded that the action taken did not have any tinge of mala f ides that there was no attempt at picking and choosing of any Government servant and that therefore the Court should not exercise its jurisdiction to annul a policy decision.

2. I have given my anxious considerations to the above questions and the rivai submissions in reply. I find that the case is 100re o'r less evenly balanced between the parties. The important factors ruive, however, persuaded me, to agree with the main Judgment and 'to err on the side of Justice 100re than that of law, invoking the benevolent jurisdiction under Article 142(1) of the Constitution of India which reads:

"142(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the Ptesident may by order prescribe."

These petitions involve a serious human problem. Employees of the State with limited resources, who have been planning . their future with a secure feeling that they could work till the

age of 58 years, have as though overnight, been robbed of their

tenure, their aspirations and future. They have become the helpless victims of certain swift moves on the political chess board. These swift moves, perhaps taken in a hurry, w1.thout serious application of mind have resulted in arbl.trariness that has been forcefully projected by the petitioners. This plea cannot be light hearte.dly thrown overboard. Justice demands that the petitioners should be saved of their predicament.

The second factor that has prevailed upon me to give succour to the petitioners is the blame that this Court has to share for the sorry state that has come to pass in the matter. Without meaning disrespect to anyone, I firmly believe, that prompt .action by the Court, would have eased the situation, considerably and relieved the petitioners of their sad plight and us of this avoidable exercise. It is not as though that the subsequent developments were not brought to the notice of this C.ourt in Nagaraja's case, (supra). We were told that the Hench was alerted in time about the developments that had taken place but unfortunately they were not taken into account. When the Judgment ultimately came on 18.1.1985, as many as 6000 employees had lost their service, a tragic result, not based on any relevant consideration having a nexus to the age of superannuation. The damage had been done and it can be repaired only by extending this eoUrt 's powers to a section of employees who deserves !;.-lympathy and fair deal.

This short Judgment is only to vindicate my stand. I respectfully agree with the Judgment prepared by my learned brother Reddy, J. I am also in entire agreement with my learned brother Eradi, J, about the limited scope of the principles laid down in these cases on their peculiar facts.

N.v.K.

Petitions dismissed.