# [1985] 2 S.C.R. 579

- **Citation:** [1985] 2 S.C.R. 579
- **Court:** Supreme Court of India
- **Decided:** 1985-01-18
- **Case number:** Writ Petition Nos. 4218, 4571 and 5266-5280 of 1983
- **Bench:** Y.V. Chandrachud, R.S. Pathak, SABYASACHI MuKHARJI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-2-s-c-r-579-8948
- **Pages:** 32

## Headnote

579
Civil
Service-A~e of superannuation-Age reduced
to
55 years
for all Government employees, other than those in last grade service, in
accordance with the election marzifesto, to provide grea•er employ111ent opportunilies to th'! youths-Whether the order and iVotifications are unreasonable,
arbitrary and violative articles 14, 16, 21 and 300-A. of the Constitutio11-G O"Ms•.
35 (GAD1 dated 8.2 83 and Notification read with the Artdhra Pradesh Public
Employment (Regu!atian of Conditions of Service) Ordinance, 1983 omitting Pro·
~1 1so to Rule 2, 56 of the AP Fundamental Rules and Rufe 231 of the Hyderabad
Civil Service Rule-"Retirement be,ze[tts" n1eas11ring (If-Limits of judicial
Re~1iew of Paf;cy decisions of the State-Mala fidex, b11rden of proof-Trans~'1»
/erred A1alice is u11know.1 in the field of legis.1atio11.
A new political party called Tdugu Desam swept to power .in the 1983
Andhra Pradesh Assembly elections, within a month of assuming office, the new
Government of Andhra Pradesh, passed an order No. G.O.M.S. 36 GAD
Services dated 8.2.83 (appending two Notifications) stating that in order to
provide greater employment opportunities to the youths it had decided to reduce
the age of superannuation of all Government employees, other than those in the
last grade service, from 58 to 55 ye:irs with effect from February 28, 1983.
Over 18,000 employees and 10,000 publi,: sector e:11ployees were superannuated,
as a result of the order.
The aggreived employees, therefore filed writ petitions and challenged
the constitutiC'nal validity of the said order and Notifications under Articles 14,
16, 21 and 300A of the Constitution.
According to the petitioners: (i) there
was no basis at all for reducing the age of retirement from 58 to 55, as nothing
had happened since October 29, 1979 on which date the age lin1it was raised
from 55 to 58 years ; (ii) providing employment opportunities to the youths has
no relevance on the question of fixing the age of retirement; (iii) the government
had exercised its power arbitrarily without having regard to factors which are
relevant on the fixation of the age of retirement; (iv) the government had acted
unreasonably in not giving any previous notice to the employees which would
have enabled them to arrange their affairs on_ the eve of retirem~nt; (v) the
governm,nt was estopped from reducing the age of retirement to 55 since the
employees had acted on the representations made to them in 1979 by increasing
the age of retire1nent from 55 to 58; (vi) as a result of the increase in the age of
retirement from 55 to 58 years in 1979, a vested rtght had accrued to the
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580
SUPREME COURT R~PORTS
(1985] 2 S.C.R.
employees, which could be taken away if at a11,on1y from fnture entrants to the
government service ; (vii) retirement of experienced and mature persons from
government service will result in grave detriment to public services of the State ·
(viii) the decision of the government is bad for a total non-application of th;
mind to the relevant facts and circun1stances bearing on the question of age of
retirement like increased longevity ; and (ix) the government had not even
considered the enormous delay which would be caused in the payment of
pensionary benefits to employees who were retired from service without [any pre
thought.
The respondent State filed two
affidavits traverssing each
and
every
ground of challenge and asserted that the age of retirement was reduced because
"it is the duty of the State, within the limits of its economic capacity and development to make effective provisions to solve the unemployment problem which
has gone upto 17,84,699 by December 31, 1982. The contentions of the State
were: (i) the question of the age of superannuation was not referred to the
One-roan Pay Commission and therefore, its_ recommendations to increase the
age from 55 to 58 was only casual not based -on relevant criteria and has no
relevance to the present decision of t

## Text

_Characters 0–39,999 of 86,104. This is a partial read: ask again with offset=39999 for what follows._

I~
)
K. NAGARAJ & ORS. E\C. ETC.,
V,
STATE OF ANDHRA PRADESH & ANR. ETC.
January 18, 1985
[Y.V. CHANDRACHUD, C.J, R.S. PATHAK AND
SABYASACHI MuKHARJI, JJ.]
579
Civil
Service-A~e of superannuation-Age reduced
to
55 years
for all Government employees, other than those in last grade service, in
accordance with the election marzifesto, to provide grea•er employ111ent opportunilies to th'! youths-Whether the order and iVotifications are unreasonable,
arbitrary and violative articles 14, 16, 21 and 300-A. of the Constitutio11-G O"Ms•.
35 (GAD1 dated 8.2 83 and Notification read with the Artdhra Pradesh Public
Employment (Regu!atian of Conditions of Service) Ordinance, 1983 omitting Pro·
~1 1so to Rule 2, 56 of the AP Fundamental Rules and Rufe 231 of the Hyderabad
Civil Service Rule-"Retirement be,ze[tts" n1eas11ring (If-Limits of judicial
Re~1iew of Paf;cy decisions of the State-Mala fidex, b11rden of proof-Trans~'1»
/erred A1alice is u11know.1 in the field of legis.1atio11.
A new political party called Tdugu Desam swept to power .in the 1983
Andhra Pradesh Assembly elections, within a month of assuming office, the new
Government of Andhra Pradesh, passed an order No. G.O.M.S. 36 GAD
Services dated 8.2.83 (appending two Notifications) stating that in order to
provide greater employment opportunities to the youths it had decided to reduce
the age of superannuation of all Government employees, other than those in the
last grade service, from 58 to 55 ye:irs with effect from February 28, 1983.
Over 18,000 employees and 10,000 publi,: sector e:11ployees were superannuated,
as a result of the order.
The aggreived employees, therefore filed writ petitions and challenged
the constitutiC'nal validity of the said order and Notifications under Articles 14,
16, 21 and 300A of the Constitution.
According to the petitioners: (i) there
was no basis at all for reducing the age of retirement from 58 to 55, as nothing
had happened since October 29, 1979 on which date the age lin1it was raised
from 55 to 58 years ; (ii) providing employment opportunities to the youths has
no relevance on the question of fixing the age of retirement; (iii) the government
had exercised its power arbitrarily without having regard to factors which are
relevant on the fixation of the age of retirement; (iv) the government had acted
unreasonably in not giving any previous notice to the employees which would
have enabled them to arrange their affairs on_ the eve of retirem~nt; (v) the
governm,nt was estopped from reducing the age of retirement to 55 since the
employees had acted on the representations made to them in 1979 by increasing
the age of retire1nent from 55 to 58; (vi) as a result of the increase in the age of
retirement from 55 to 58 years in 1979, a vested rtght had accrued to the
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SUPREME COURT R~PORTS
(1985] 2 S.C.R.
employees, which could be taken away if at a11,on1y from fnture entrants to the
government service ; (vii) retirement of experienced and mature persons from
government service will result in grave detriment to public services of the State ·
(viii) the decision of the government is bad for a total non-application of th;
mind to the relevant facts and circun1stances bearing on the question of age of
retirement like increased longevity ; and (ix) the government had not even
considered the enormous delay which would be caused in the payment of
pensionary benefits to employees who were retired from service without [any pre
thought.
The respondent State filed two
affidavits traverssing each
and
every
ground of challenge and asserted that the age of retirement was reduced because
"it is the duty of the State, within the limits of its economic capacity and development to make effective provisions to solve the unemployment problem which
has gone upto 17,84,699 by December 31, 1982. The contentions of the State
were: (i) the question of the age of superannuation was not referred to the
One-roan Pay Commission and therefore, its_ recommendations to increase the
age from 55 to 58 was only casual not based -on relevant criteria and has no
relevance to the present decision of the State to reduce the age of retirement; (ii)
as a result of the unwarranted increase in the age of superannuation from 55 to 58
not only was there a one-third increase in the number of unemployed youths but
also the chances of promotion of the service personnel h:td deteriorated resulting
in wide spread frllstration and unemployment; (iii) the age of retirement was
reduced because it is the duty of the State, within its limits of economic capacity
and development, to make effective provision to solve the unemployment problem ; (iv) the fact that the average expectation of life is about 70 years is not
a ground for increasing the age bf retirement 9f Government employees; (v)
the general trend was for reducii:ig the age of rctir~n1ent ; (vi) the Government
of Kerala and Karnataka had reduced the age of retire1nent of ti)eir employees
to 55 and in some other States in India also the age of retir·~1nent is 55 ; (vii)
the present decision was taken by the Govcrnm~.1t i11 order to fulfil its commitment that it will make welfare measures in order to improve the lot of the
common man, and particularly, in order to afford opportunity to qualified and
talented unemployed youths whose number was increasing enormously due to
expansion of educational facilities ; (viii) the present measure was intended
to have a salutary effect on the creation of incentives to the deserving employees ; and (ix) the question as regards the age of retirement is a pure
question of government.11 Policy affording no cause of action to the petitioners
to file the writ petitions.
Rule Nisi was issued on the writ petitions by the court on February
25, 1983. The Legislative Assembly of Andhra Pradesh was prorogued on
April 9, 1983. On the very next dav, i.e. April 10, 1983 the Governor promulgated Ordinance No. 5 of 1983 called the Andhra Pradesh Public E1nployment
(Regulation of conditions of Service) Ordinance, 1983 by which proviso to Rule
2 and Rule 56 of the Andhra Pradesh Fundamental Rules and Rule 231 of
the l-lyderabad Civil Service Rules-the rule governing the age of retirementwere omitted.
Dismissing the petitions, the Court
HELD : t.1 Public interest den1ands that there ought to be an age of retire·
ment in public services. The poin of the peak level of efficiency is bound to differ
IC. NAGARAJ V. ANDHRA PRADESH
581
from individual to individual for that reason. A common scheme of general
application governing superannuation has, therefore, to be evolved in the light
of experience regarding performance levels of employees, the need to provide
employment opportunities to the younger ·sections of society and the need to
open up promotional opportunities to employees at the lower levels early in
their career. Inevitably, the public administrator has to counterbalance conflicting claims while determining the age of superannuation. On the one hand,
public services cannot be deprived of the benefit of the n1ature experience of
senior employees ; on the other hand, a sense of frustration and stagnation
cannot be allowed to generate in the minds of the junior members of tl':e services
and the younger sections of tbe society. The balancing of these conflicting
claims of the different segments of society involves minute questions of policy
and considerations of varying vigour and applicability which must, as far as
possible. be left to the judgment of the executive and the legislature.
[ 90F-H; 591A·B]
E.P. Royappa v. State of Tamil :Vadu, [1974] 2 SCR 3~8 referred to.
1.2 While resolving the validity of policy issues like the age of retfr~
ment, it is not proper for the Court to put the conflicting claims in a sensitive
judicial scale and decide the issue by finding out \vhich way the balance tilts.
That is an exercise whfrh the adminisrrator and the legislature have to undertake. This is so because often, the Court has no satisfactory and effective
means to decide which alternative, out of the many competing ones, is the
best in the circumstances of a given case. [591E; CJ
1.3 Tt i~ not that every question of policy h out:-.ide the scope of judicial
review or that, necessarily, there are no manageable standarc!s for reviewing any
and every question of po icy. If the age of retirement is fixed at an unreasonahly low level so as to make it arbitrary and irrational, the Court's interference would be called for though not for fixing the age of retirement bUt for
mandating a closer consideration of the 1natter. [59!C·D]
2. Fixing the age of superannuation by reducing it from 58 to 55 would be
unreasPnable or arbitrary if it does not accord with the principles which are
relevant for fixing the age of retirement or if it does not subserve any public
interest. On the other hand, the Ordinance shall have to be held valid, if the
fundamental premise upon which it proceeds has been accepted as fair and
reasonable in comparable situations, if its provisions bear nexus with public
interest and if it does not offend against the Constitutional limitations either on
legislative competence or on the legislative power to pass laws which bear on
fundamental rights. [59!G-H; 592A]
3.1 The report of the _One-man Pay Co1nmission has to be kept out
of consideration in so far as the question of the age of retirement is concerned.
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The contention that the reversal of the well considered decision of the
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Comn1ission to raise the age to 58 within a short span tof less than three
years and a half, as nothing had happened in between warranting a departure
from it, is fallicious because the question, as to whether the age of retirement
should be raised which was then 55, was not referred to the Commission at all in
the terms of reference. Further the decision which the Government took later
to increase the age of retirement from 55 to 58 years was not based on the
recommendation of the Commission. [595D; C]
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SUPREME COURT REPORTS
[1985] 2 S.C.R.
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3.2 The Power of a Commission to inquire into a question must depend
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upon the terms of the reference and not upon the statements ·made on 'the floor
of the House. [595A]
3.3
A review of retirement benefits would undoubtedly cover the exami~
nation of the rules or schemes relating to pension, provident fund, gratuity.
encashment of leave etc., but it cannot include the power to examine the question
as regards the fixation of the age of retirement. Therefore, paragLaph 9.42 of
the report of One-man Pay Commission which begins by saying that "since the
tern1s of reference of the Commission cover the revie\v of the existing retirement
benefits, the reference would naturally include the age of retiretnent" was an
erfoneous and unwarranted reading of the terms of the reference. [594F; E]
4.1
No law can be said to be bad because it is passed immediately on
the assumption of office by a new Governn1ent. Wete this so, every decision
taken by a new Government soon after assumption of office shall have to be
regarded as arbitrary. [;95E]
4.2 The reasonableness of a decision in any jurisdiction, does not depend
upon the time which it takes. A delayed decision of the Executive can also be
bad as offending ·against the provisions of the Constitution and it can be no
defence to the charge of unconstitutionality that the decision was aken !after
the lapse of a long time. Conversely, decisions which are taken promptly -cannot
be as-;umed to be b:id because they are taken promptly. [595F-GJ
4.3 Every decision has to be ex~unined on its own 1nerits, in order to
detennine whether it is arbitrary or unreason:ible. Here, the State Government
had the relevant facts as also the reports of the various Central and State Pay
Commissions before it, on the basis of which it had taken a reasonable decision
to reduce the age of r~tir0merit from 58 to 55. The aid and assistance of a welltrained bureaucracy which notoriously, plays an important part not only in the
implementation of policies but in their making was also available to the Government.
Th~refore, the speed with which the decision was taken cannot, without
more, invalidate it on the ground of arbitrariness. [ 59_ G; 596A ·BJ
5.1
By and large, in the forn1ulation of 1natters of legislative policy, the
government of the day must be allowed a free, though fair play and there need
not necessarily be a uniform age of retirement all over .lndia. Though immutable
considerations which are generally or universally true like increased life expectation are as much valid for Jam1nu and Kashmir as for Tamil Nadu, that cannot
justify the conc\u:;ion th1t fixation of th~ r~tirement age at 55 in Jammu and
Kashmir is invalid since the State of Tamil Nadu has fixed it at 58 or that the
age limit should be fixed at 62 or 65. There is no one fixed or focal point of
reasonableness. There can b~ a ttrge and wide area within which the administrator or the Jcgisl.ator can act, without violating the constitutional n1andate of
reasonableness. That is fhe area which permits free play in the joints. [596C-D; F]
5.2 The area between the ages of 55 and 58 is regarded in our country
G
as a permissible field of operation for fixing the age of retirement. Neither the
American nor the English notions or norn1s for fixing the retirement age can
render invalid the r.asis which is widely accepted in our country as reasonable
for that purpose. [597D-E]
5.3 On the basis of the data furnished in the White Paper presented to
the State Legis1ative Assembly in· March 1983 on the question of "reduction in
p
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...
K. NAGARAJ v. ANDHRA PRADESH
583
th~ age of .~superannuation from 58 years to 55 years" by the new Telugu Desam
Party controlled State Government, the reduction of the age of retirement from
58 to 55, in the instant case is not hit by Article 14 or 16 of the Constitution
and the State Government or the Legislature has not acted arbitrarily or
irrationally. The precedents within our country itself for fixing the retirement
age at '5 or for reducing it from 58 to 55 and their acceptance depending upon
the employment policy of the Government of the day make it in1possible to lay
down an inflexible rule that 58 years is a reasonable age for retiren1ent and 55 is
not. If the policy adopted for the time being by the Government or the Legis-
-lature is shown to violate recognised norms of employment planning, it would
be possible to Say that the policy is irrational since, in that event, it would not
bear reasonable nexus with the object which it seeks to achieve. The reports
of the various Commissions show that the creation of new avenues of employ.
ment for the youth is an integral part of any policy governing the fixation of
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retirement age. flere, the impugned policy is actuated and influenced predomiC
nantly by that consideration. [604C-F]
However; the question of age of retircm".':nt should always be examined
by the Government with more than ordinary care, more than the State Govern.;
ment has bestowed upon it in this case. The fixation of age of retirement has
minute and multifarious dimensions which shape the lives of citizens. Therefore,
it is vital from the point of view of their well-being that the question should be
considered with the greatest objectivity and decided upon the basis of empirical
data furnished by scientific investigation.
What is vital for the welfare of the
citizens is, of ne;:e-;sity, vital for the survival of the State. Care must also be
taken to ensure that the sta1istics are not perverted to serve
a malevolent ·
purpose. [60JF-H]
6. It is \veil settled that Article 311(2) of the Constitution is attracted
only when a civil servant is reduced in rank, dismissed or removed from service
by way of penalty, that is to say, when the effect of the order passed against him
in his behalf is to visit him with evil consequences. The termination of service
of an employer on account of his reaching the age of superannua1ion does not
amount 10 his removal from service within the meaning of Article 311(2). Here
there being no arbi1ra.riness in 1he fixation of reduced retirement age, there is no
violation of Article 311(2) of the Constitution, either. [605C; F]
S ,fi.1/1 Chandrn v. Union of India [1953J SCR 655; Shya1.•1 La( v. State
nf U.P., [1955] I SCR 26; Stare f Bombay v. Snubhagchand M. Do.,/Ji, [1953]
SCR 571 ; P11r:hoiam Lal Dhit;Rra v. Union of India, [1958] ·SCR 828-.
P. Balakotiah v. Union of India, (1958] SCR 1052 ; Bishun Narain Misra v:
State :fUtlar Prade~h, [1965] I SCR 693, relied on.
Mori Ra111 Deka v. General Manager, North Frontier Railway, [1964] 5
SCR 683 explained.
7. Though an ordinance can be invalidated for contravention of the
constitutional limitations which exist upon the power of the State Jegislatu
t
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re o
pass aws 11 cannot be declared invalid for the reason of non-application of mind
any more 1han any oiher law can be. An executive act is liable to be struck
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584
SUPREME COURT REPORTS
(1985) 2 S.C.R.
down on the ground of non-application of mind. Not the act of a Legislature.
The power to issue an ordinance is no_ an executive power but is the power of
the executive to legislate. The power of the Governor to promulgate an
ordinance is contained in Article 2i3 which occurs in Chapter IV of Part VI of
the Constitution. The heading of that ·chapter is ''Legislative Power of the
Governor". This power is plenary within its ~field like the power of the State
Legislature to pass laws and there are no limitations upon that power except
those to which the legisla,ive power of the State Legislature is subject. [607C; A-B]
A.K. Roy v. Union of India. [1982] 2 SCR 272 at pp. 282, 291 ; R.K.
Garg v. Union of India, [1982] 1 SCR 947 at pp. 964, 967; High Coun of
Andhra Pradesh v. V
V. S. Krishna1nurthy, [1979] 1 SCR 26; Moti1am
Dake v. Gt'neral Manager,
/'llorth Frontier Railway, [1964] 5 SCR 683
distinguished.
8. If a rule of .retirement can be deemed to deprive a person of his
C
right to livelihood, it will be impermissible to provide for an age of retirement
at all. That will be contrary to public interest because the State can~ot afford
the 1uxury of allowing its employees : o continue in service after they have
passed the point of peak performance. Rules of retirement do not take away the
right ofa person to/his livelihood: they limit his right to :hold office to a stated
number of years. [608D-El
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9.1 The burden to establish malafides is a heavy burden to discharge.
Vague and casual allegations suggesting that a certai11 act was done with an
ulterior motive cannot be accepted without proper pleadings and adequate
proof, both of which are conspicuously absent ill these writ petitions. Besides,
the ordinance making power being a legislative power, the argument of ma/a
jides is misconceived. The legislature, as a body, cannot be accused of having
passed a Jaw for an extrane0us purpose. If no reasons are so stated as appear
from the provisions enacted by it. Its reasons for passing a law or those that
are stated in the Objects and Reasons. Even assuming that the executive, in a
given case, has an ulterior motive in moving a legislation, that motive cannot
render the passing of the law ma la fide. This kind of 'transferred malice' is
unknown in the field of legislation. [608G-H; 609A-B]
9.2 The amendment made to the Fundamental Rules in the exercise of
power confeITed by Articles 309 by which the proviso to Rule 2 was deleted
reirospectively, with effect from. February 23, 1983 by G.O.M.S.
dated
17-2-83 was a valid exercise of legislative power. The rules and amendments
made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done the exercise of the power cannot be challenged as
lacking in authority. [6IOB-C]
9.3 It is well-settled that the service rules can be as much amended, as
they can be mader, under the proviso to Article 309 and that, the power to
amend these rules carries with it the power to amend them retrospectively. The
power conferred by the proviso to Article 309 is of a legislative character and is
to be distinguished from an ordinary rule making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it
includes the power to legislate retrospectively. [609H; 610A-BJ
B.S. Vaderav. Unian of India, [1968] 3 S.C.R. 575 582-55, Raj Kumar
v. Union of India [ 1975] 3 S.C.R. 963, 965, followed.
r
•
K. NAGARAJ v. ANDHRA PRADESH (Chandrachud, C.J.)
585
ORIGINAL
JURISDICTION:
Writ Petition Nos.
1073-1100,
1117-!9, 1229-95, 142°-1554,
1746-2140, 2155-2271, 2396-2459.
11~8-1217, 1302-12, 1314-15, 1566-1641, 1140-70, 2360-95, 1643172', 2272-2329, 2152, 2331, 2339, 2491, 34,•6-89, 2498-2521, 2522,
2533-74, 2611-2638 and 2531of1983.
(Under Article 32 of the Constitution of India)
AND
Writ Petition Nos. 4218, 4571 and 5266-5280 of 1983
(Under article 32 of the Constitution oflndia)
AND
Transfer Case Nos. 44-339 of 1983
K.K. Venugopal S.S Ray, P.P. Rao, V.M. Tarkuade and
R.K. Garg, V. Jogayya Sharma, M.P. Rao, Sudarsh Menon, T.V.S.N.
Chari, G. Narasimhulu, A. Subba Rao, M.K.D. Namboodiry, H.S. Gwru
Raj Ra,,, S. Markandeya, A.T.M. Sampath, D.K. Garg, Nikhil Ch9ndra
and A K Panda for the Petitioners.
L.N. Sinha, Attorney General, Ani/ B. Divan,B. Parthasarthl and
K.R. Chaudhary for the Respondents.
G.N. Rao for the State.
Miss A. Subhashinl for the Union.
The Judgment of the Court was delivered by
CnANDRACHUD, C. J. In the elections held to the Legislative Assembly of Andhra Pradesh in January 1983, a new political
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party called Telugu Desam was swept to power. It assumed office
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on January 9, 1983. On February 8, 1983 an Order (G.O. Ms.
No. 36) was issued by the Government of Andhra Pradesh stating
that it had decided to reduce the age of superannuation of all Government employees, other than in the last Grade Service, from 58 to 55
years.
Two notifications issued in exercise of the power conferred
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[1985] 2 S .. C.R.
by the Proviso to Article 309 read with Article 313 of the Constitution was appended to tha.t order.
The relevant Fundamental Rules
were amended by the first notification, while the corresponding rules
of the Hyderabad Civil Services Rules were amended by the second
notification.
By these notifications, every Government servant,
whether ministerial or non-ministerial but not belonging to the last
Grade Service. who had already attained the age of 55 years was to
retire from service with effect from February 28, 1983.
Speaking to
the Government employees in the Secretariat premises the next day,
the Chief Minister justified the reduction of the retirement age from
58 to 55 years on the ground that it had become necessary to provide
greater employment opportunities to the youths. Over 18,000 Government employees and 10,000 public sector employees were superannuated as a result of the order.
These writ petitions were filed by the Andhra Pradesh Government employees to challenge the aforesaid order and the notifications
on the ground that they violate Articles 14, 16, 21 and 300A of the
Constitution. The case of the petitioners as laid in the writ petitions
is that there was no basis at all for reducing the age of retirement
from 58 to 55 ; that the age of retirement was increased from 55 to
58 by the Govornment of Andhra Pradesh by a notification dated
October 29, 1979 and nothing had happened since then tu justify
reduction of the age of retirement again to 5 i ; that providing employment opportunities to the youths has no relevance on the question
of fixing the age of retirement ; that the Government had exercised
its power arbitrarily without having regard to factors which are
relevant on the fixation of the age of retirement ; that the Government had acted unreasonably in not giving any previous notice to the
employees which would have enabled them to arrange their affairs on
the eve of retirement ; that the Government was estopped from
reducing the age of retirement to 55, since the employees had acted
on the representation made to them in 1979 by iccreasing the age of
retirement from 55 to 58 ; that as a result of the increase in the age
of retirement from 55 to 58 years in I 976, a vested right had accrued
to the employees, which could be taken away, if at all, only from
future entrants to the Government service ; that retirement of experienced and mature persons from Government service will result in
grave detriment to public services of the State ; and that, the decision
of the Government is bad for a total non-application of mind to the
relevant facts and circumstances bearing on the question of the age of
retirement, like increased longevity.
The petitioners aver that the
Government had not even considered the enormous delay which
K. NAGARAJ v. ANDHRA PRADESH (Chandtachud, C.J.)
587
would be caused in the payment of pensionary benefits to employees
who were retired from service without any pre-thought.
A counter-affidavit was filed on behalf of the State of Andhra
Pradesh by Shri R. Parthasarathy, Joint Secretary in the Finance
Department of the State, at the stage of admission of the writ petitions. It is stated in that affidavit tbat the recommendation of the
one Man Pay Commi,sion appointed by the Government of Andhra
Pradesh, after which the age of retirement was increased to 58 in
1979, has no relevance to the present decision of the State to reduce
the age of retirement ; that the fact that the average expectation of
life is about 70 years is not a ground for increasing the age of retirement of Government employees ; that the general trend was for
reducing the age of retirement ; that the Government of Kerala and
Karnataka had reduced the age of retirement of their employees to
55, though it was earlier increased from 55 to : 8 ; that in some
States in India the age of retirement is 55 and not 58 ; the present
decision was taken by the Government in order to fulfil its commitment that it will take welfare measures in order to improve the lot of
the common man, and, particularly, in order to afford opportunities
to qualified and talented unomployed youths whose number was increasing enormously due to expansion of educational facilities ; that
the Government employees was stagnated in the lower positions due
to the increase in the age of retirement from 55 to 58 : and that, the
present measure was intended to have a salutary effect on the creation
of incentives to the deserving employees
The affidavit says further
that the question as regards the age of retirement is a pure question
of Governmental policy affording no cause of action to the petition_ers
to file the writ petitions. The affidavit asserts that the Government
had reviewed the situation arising out of the enhancement of the age
of retirement from 55 to 58 in l 979 and that it was revealed that on
account of the enhancement of the age of retirement, the chances of
promotion of the service personnel had deteriorated resulting in wide:
spread frustration and unemployment. The inconvenience alleged by
the petitioners in the matter of payment of their pension and other
retirement benefits was imaginary, since the Government was making
extensive arrangements to disburse such benefits expeditiously.
By
the counter-affidavit, the Government of Anclhra Pradesh denied that
any of the provisions of the Constitution were violated by the
impugned decision to reduce the age of retirement.
Another affidavit was filed on behalf of the Governme11t of
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Andhra Pradesh, after the· rule nisi was issued in the writ petitions.
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The affidavit is sworn by Shri A. K. Sharma, Deputy Secretary to
Government of Aodhra Pradesh, Finance and Planning. It is stated
in that affidavit that the question of the age of superannuation was
not referred to the one Man Pay Commission of Shri A. Krishnaswamy, which was appointed by the Andhra Pradesh Government on
November 3, 1977 ; that the recommendation made by the Pay
Commission was casual and was not based on relevant criteria ; that
as many as 12,04,008 educated youths were left without employment
on September 30, 1979 as a result of the unwarranted increase in the
age of superannuation from 55 to 58 ; that the number of unemployed youths had grown to 17,84,699 by December 31, 1982; and
that, the age of retirement was reduced becaa&e it is the duty of the
State, within the limits of its economic capacity and development to
make effective provision to solve the unemployment problem. The
rest of the averments in this affidavit are on the same lines as in the
affidavit of Shri R. Parthasarathy.
Rule Nisi was issued on the writ petitions by this Court on
February 25, 1983.
The Legislative Assembly of Andhra Pradesh
was·prorogued on April 9, 1983. On the very next day, that is, on
April 10 the Governor of Andhra Pradesh promulgated Ordinance
No. 5 of 1983 called 'The Andhra Pradesh Public Employment
(Regulation of Conditions of Service) Ordinance.' The Ordinance
was passed "to regulate the recruitment and conditions of service of
persons appointed to Public Services and posts in connection with
the affairs of the State of Andhra Pradesh and the officers and
servants of the High Court of Andhra Pradesh". We are not concerned in these writ petitions with clauses 3 to 9 of the Ordinance
which mostly regulate conditions of service.
Clause IO(l) of the
Ordinance prescribes that every Government employee, not being a
workman and not belonging to Last Grade Service shall retire from
service on the afternoon of the last day of the month in which he
attains the age of 55 years.
Clause 10(2) provides that e;ery
Government employee, not being a workman but belonging to the
Last Grade Service, shall retire from service on the afternoon of the
last day of the month in which he attains the age of 60 years.
Clause 10(3) provides that every workman belonging to the Last
Grade Service or employed on a monthly rate of pay in any service
notified as Inferior, shall retire from service on the afternoon of the
last day of the month in which he attains the age of 60 years.
Workmen belonging to Ministerial Service or any service other than the
Last Grade Service notified as Inferior have to retire on the afternoon
of the last . day of the month in which they attain the age of 55
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K. NAGARAJ v. ANDHRA PRADESH (Chandrachud, C.J.)
589
years.
By clause 15, All Rules and Regulations .made under the
proviso to Article 309 or continued under Article 313 of the Consti·
tution or made under any other law for the time being in force,
governing the recruitment and conditions of service of the Government employees, continue to be in force in so far as they are not
inconsistent with the provisions of the Ordinance. Clause 16 of the
Ordinance provides that no amendment to the Fundamental Rules
shall be deemed to be invalid merely by reason of the fact that the·
proviso to rule 2 of the Fundamental Rules laid down that the said
rules shall not be modified or replaced to the disadvantage of any
person already in service. It provides further that all amendments
made to the Fundamental Rules and particularly the amendments
made by the notification dated'February 8, 1983, shall be and shall
be deemed always to have been made validly and shall have effect
notwithstanding anything to the contrary contained in the proviso to
rule 2 of the Fundamental Rules as if the Ordinance was in force on
February 8, 1983.
Clause 16 of the Ordinance declares that every
amendment made before or after the commencement of the
Ordinance to the Fundamental Rules and the Hyderabad Civil
Services Rules, shall be and shall be alv.ays deemed to have applied
to all Government employees whether appointed before or after the
amendment.
Clause 18 of the Ordinance provides by sub-clause (i)
that the proviso to rule 2 of the Fundamental Rules shall be and
shall be deemed always to have been omitted.
Rule 56 of the
Fundamental Rules is omitted ·by Clause 18(ii) while Rule 231
of the Hyderabad Civil Services Rules is omitted by clause 19 of the
Ordinance. The age of retirement was previously governed by these
two Rules.
The arguments advanced before us fall under distinct heads
learned counsel having shared
their
burden
equitably.
Shrl
Venugopal challenged the Ordinance on the ground that it is unreasonable.
Shri Tarkunde challenged it on the ground that the
superannuation of the employees by reduction of the age of retirement amounts, in the circumstances, to 'removal' of the employees
within
the
meaning of Article 311. The challenge of Shri
Siddhartha Shankar Ray is based on the ground of a total nonapplication of mind.
Shri R.K. Garg, who appears in a group of
three. Transferred Cases, contends that the Ordinance is bad because
it supersedes all industrjal adjudications and overrules even settlements arrived at between the management and the employees.
Shri P.P. Rao contends that the Ordinance is bad because. whereas
in the case of compulsory retirement a notice of three months is
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required to be given by the Government under the rdevant rules, in
the case of superannuation of employees who had already attained
the age of 55 on February 8, 193 J when the first Order was issued,
the impugned law gives to .the employees a notice of 20 days
only since all such em~1loyees had to retire on February 28, 1983.
Shri PP. Rao also challenges the retrospective deletion of the
proviso to Rule 2 of the Fundamental Rules as being arbitrary.
Shri Gururaj Rao challenges the Ordinance on the ground that it
runs into the teeth of the recommendation which the Andhra Pradesh
One Man Pay Revision Commission had made in 1979 in pursuance
of which the age of retirement was raised from 55 to 58.
Shri
A.T.M. Sampath laid stress on the lack of acceptable reasons to
justify the issuance of the Ordinance
Like some of the other
learned counsel, he suspects the bonajides of the State Government
in issuing the Order and the Ordinance.
It was suggested by the
petitioners, though somewhat in passing. that the object of the
State Government in reducing the age of retirement was to get rid of
senior members of Government service whose loyalty was thought to
be not above suspicion.
This is the broad outline of the petitioners' case.
We will
presently set out the specific contentions advanced before us but,
before doing so. it would be necessary to indicate the approach
which. in our opinion, should be adopted while examining a question
of the present nature, namely, the fixation of the age o[ retirement.
Barring a few services in a few parts of the world as, for example,
the American Supreme Court, the terms and conditions of every
public service provide for an age of retirement. Indeed, the proposisition that there ought to be "" age of retirement in public serviees
is widely accepted as reasonable and rational.
The fact that the
stipulation as to the age of retirement is a common feature of all of
our public services establishes its necessity, no less than its reasonableness
Public interest demands _that there ought to be an age of
retirement in public services. The point of the peak level of efficiency
is bound to differ from individual to individual but the age of retirement cannot obviously differ from individual to individual for that
reason. A common scheme of general application governing superannuation has therefore to be evolved in the light of experience regarding performance levels of employees, the need to provide employment
opportunities to the younger sections of society and the need to open
up promotional opportunities to employees at the lowor levels early
in their career. Inevitably, the public administrator has to counterbalance conflicting claims while determining the age of superannua-
K, NAGARAJ v. ANDHRA PRADESH (Chandrachud, CJ.)
591
tion. On the one hand, public services cannot be deprived of the
benefit of the mature experience of senior employees; on the other
hand, a sense of frustration and stangation cannot be allowed to
to generate in the minds of the junior members of the services and the
younger sections of the society. The balancing of these conflicting
claims of the different segments of society involves minut' questions
of policy which .r.ust. as far as possible, be left to the judgment of
the executive and the legislature. These claims involve considerations
of varying vigour and applicability. Often, the Court has no satisfactory and effective means to decide which alternative, out of the many
competing ones, is the best in the circumstances of a given case. We
do not suggest that every question of policy is outside the scope of
judicial review or that, necessarily, there are no manageable standards
for reviewing any and every question of policy. Were it so, this Court
would have declined to entertain pricing disputes covering as wide a
· range as cars to mustard-oil. If the age of retirement is fixed at an
unrarasoably low level so as to make it arbitrary and irrational, the
Court's interference would be called for, though not for fixing the age
of retirement but for mandating a closer consideration of the matter.
"Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore
violative of Article 14. "(') But, while resolving the validity of policy
issues like the age of retirement, it is not proper to put the conflicting
claims in a sensitive judicial scale and decide the issue by finding out
which way the balance tilts. Tha.t is an exercise which the administrator and the legislature have to undertake. As stated in 'The Supreme Court And The Judicial Function'(2): "Judicial self-restraint is
itself one of the factors to be added to the balancing process, carrying
more or less weight as the circumstances seem to require".
We must therefore· approach the problem before us with a view
to determining whether the age of retirement has been reduced from
58 to 55 unreasonably or arbitrarily. Such a fixation of age would be
unreasonable or arbitrary if it does not accord with the principles
which are relevant for fixing the age of retirement or if it does not
subserve any public interest. On the other hand, the Ordinance shall
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have to bo held valid, if the fundamental premise upon which it proG
ceeds has been accepted as fair and reasonable
in comparable
situations, if its provisions bear nexus with public interest and if it
does not offend against the constitutional limitations either on legis-
(I) E.P Rovappn . Stale of Tan.ii Nadu, [1974] 2 SCR 348.
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Iative competence or o.n the ·legislative power to pass laws which bear
on fundamental rights.
Shri Venugopal, who led the argument on behalf of the petitioners, contends that the provisions of the Ordinance whereby the age
of retirement is reduced from 58 to 55 are arbitrary and irrational
and hence violative of Articles 14 and 16 of the Constitution for the
fO!lowing reasons :
(a) The age of superannuation was increased from 55 to ·
58 years with effect from October 29, 1979 after an
elaborate and scientific inquiry by a One-Man Pay
Commission ;
(b) The State Government issued the order reducing the
age of retirement within one month of the assumption
of office by it. In the very nature of things, no scientific
investigation could have been made, no material gathered and no statistics compiled as regards the number of
employees who will retire, the number of persons who
would get fresh employment and the hardship caused to
the superannuated employees by the delay in the payment of retirement benefits to them.