# [1985] Supp. 2 S.C.R. 573

- **Citation:** [1985] Supp. 2 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1985-08-19
- **Bench:** O. Chinnappa Reddy, V. BALAKRlSHNA ERADI, v. KHALID
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-supp-2-s-c-r-573-9245
- **Pages:** 50

## Headnote

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.
E
F
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.
H
A
l!
c
D
E
F
G
H
574
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
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 of·Andhra 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.
·'\

## Text

_Characters 0–39,868 of 122,544. This is a partial read: ask again with offset=39868 for what follows._

\
573
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.
E
F
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.
H
A
l!
c
D
E
F
G
H
574
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
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 of·Andhra 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
ll
c
D
E
F
G
H
576
SUPREME COURT REPORTS
[1985] SUPP;2 s.c.R.
A
On 23.4.1985, a Division Bench of this Court, directed that
l!
c
D
E
G
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)
A
B
c
D
E.
F
G
H
A
ll
c
lJ
E
F
G
H
578
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
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]
i
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 classificaB
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
E
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
A
B
c
])
E
F
G
H
580
SUPREME COURT REPORTS
[1985] SUPP:2 s.c.R.
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
c
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
A
l!
c
D
E
F
G
H
582
SUPREME COURT REPORTS
[1985] SUPP;2 s.c.R.
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
A
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
E
F
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
A
B
c
D
E
F
G
H
584
SUPREME COURT REPORTS
[1985j SUPP.2 s.c.R.
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 H622 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
A
ll
c
D
E
F
G
H
586
SUPREME COURT REPORTS
[1985] SUPP;2 S.C.R.
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.
r.
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.
E
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
588
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
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 resto~ed
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.
B
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.