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PETITIONER: K. NAGARAJ & ORS. ETC.  ETC.,

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ANR. ETC.

DATE OF JUDGMENT18/01/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR  551            1985 SCR  (2) 579  1985 SCC  (1) 523        1985 SCALE  (1)31  CITATOR INFO :  R          1985 SC 724  (15)  D          1986 SC 210  (16,17,26,29)  F          1987 SC 415  (16)  RF         1987 SC1676  (16)  R          1990 SC 334  (98,99)  RF         1992 SC1277  (47,48,97)

ACT:        Civil Service-Age of superannuation-Age reduced to 55 years for all Government employees, other than those in last grade service, in accordance with the election manifesto. to provide greater  employment  opportunities  to  the  youths- Whether  the   order  and  Notifications  are  unreasonable, arbitrary and  violative articles 14,16, 21 and 300-A of the Canstitution-G.O.M.S- 35 (GAD, dated 8.2 83 and Notification read with  the Andhra  Pradesh Public Employment (Regulation of Conditions  of Service)  Ordinance, 1983 omitting Proviso to Rule  2, 56  of the  AP Fundamental Rules and Rule 231 of the  Hyderabad   Civil  Service  Rule-"Retirement  benefits" measuring of-Limits  of judicial  Review of Policy decisions of the  State-Mala fides, burden of proof-Transferred Malice in unknown in the field of legislation.

HEADNOTE:      A new  political party  called Telugu  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 years  with elect from February 28, 1983.  Over   18,000  employees  and  10,000  public  sector employees were superannuated, as a result of the order.      The aggreived employees, therefore filed writ petitions and challenged the constitutional 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

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date the  age limit  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 retirement;  (v) the  government 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 retirement 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 right had accrued to the 580 employees. which  could be  taken away  if at all, only from future 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 the mind to the relevant facts and circumstances 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, 1  982. The contentions of the State  were: (i) the  question of  the  age  of  superannuation  was  not referred to  the One-man  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 had deteriorated  resulting   in  wide  spread  frustration  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  of  retirement  of Government employees; (v) the general trend was for reducing the age  of retirement;  (vi) the  Government of  Kerala and Karnataka  had  reduced  the  age  of  retirement  of  their employees to  55 and  in some other States in India also the age of  retirement is  55, (vii)   the  present decision was taken by  the Government  in order to fulfill 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  salutory  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 governmental policy  affording no  cause of  action  to  the petitioners to file the writ petitions.

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          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 day,  i.e. April  10,  1983  the  Governor  promulgated Ordinance No.  5 of  1983 called  the Andhra  Pradesh Public Employment (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  Hyderabad Civil  Service   Rules-the  rule   governing  the   age   of retirement- were omitted.          Dismissing the petitions, the Court ^           HELD: 1.1 Public interest demands that there ought to be  an age  of retirement in public services. The poin of the peak level of efficiency is bound to differ 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 mature experience of senior employees; on  the other  hand, a  sense of  frustration and stagnation cannot be allowed to generate in the minds of the junior members  of the  services and the younger sections of the society.  The balancing  of these  conflicting claims of the different  segments of society involves minute questions of  policy   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 Nadu, [1974] 2 SCR 348 referred to.       1.2 While resolving the validity of policy issues like the age of retirement, it is not proper for the Court to put the conflicting  claims in  a sensitive  judicial scale  and decide the issue by finding out which way the balance tilts. That  s   an  exercise   which  the  administrator  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; C]       1.3  It is  not that  every question  of policy is out side the scope of judicial review or that necessarily, there are no  manageable standards  for reviewing  any  and  every question of  policy. If the age of retirement is fixed at an unreasonably low  level so  as  to  make  it  arbitrary  and irrational, the  Court’s interference  would be  called  for though  not  for  fixing  the  age  of  retirement  but  for mandating a closer consideration, of the matter. [591C-D]       2.  Fixing the  age of  superannuation by  reducing it from 58  to 55 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 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

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or on  the legislative  power to  pass laws  which  bear  on fundamental rights. [591G-H: 592A]       3.1 The report of the One-man Pay Commission has to be kept out  of consideration  in so far as the question of the age of  retirement is  concerned. The  contention  that  the reversal of  the well  considered decision of the Commission to raise  the age  to 58  within a  short span  of less than three years  and a  half, as nothing had happened in between warranting a  departure from  it, is  fallacious 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] 582      3.2 The  Power  of  a  Commission  to  inquire  into  a question must depend 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  examination of  the rules  or schemes relating to pension, provident fund, gratuity, encasement of leave etc., but it  cannot include  the power to examine the question as regards the  fixation of  the age  of retirement. Therefore, paragraph 9 47 of the report of One-man Pay Commission which begins by  saying that  "since the terms of reference of the Commission cover  the  review  of  the  existing  retirement benefits, the  reference would  naturally include the age of retirement" was  an erroneous 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 Government. Were this  so, every decision taken by a new Government soon after assumption  of office  shall have  to be  regarded  as arbitrary. I 595E]        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 taken  after the  lapse of  a  long  time. Conversely, decisions  which arc  taken promptly  cannot  be assumed to be bad because they arc taken promptly. [595F-G]       4.3  Every decision  has to  be examined  on  its  own merits, in  order to  determine whether  it is  arbitrary or unreasonable. Here,  the State  Government had  the relevant facts as  also the  reports of the various Central and State Pay Commissions  before it,  011 the  basis of  which it had taken a  reasonable decision to reduce the age of retirement from 58  to 55.  The aid  and assistance  of a  well trained bureaucracy which  notoriously, plays  an important part not only in  the implementation  of policies but in their making was also  available to  the Government. Therefore, the speed with which  the decision  was taken  cannot,  without  more, invalidate it  on the ground of arbitrariness. [59-G; 596.A- B]       5.1  By and  large, in  the formulation  of matters 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 India. Though  immutable  considerations  which  are  generally  or universally true like increased life expectation are as much valid for  Jammu and  Kashmir as for Tamil Nadu, that cannot justify the  conclusion that  fixation of the retirement age at 55  in Jammu  and Kashmir  is invalid  since the State of

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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 be a large and wide area within which the  administrator or  the legislator can act, without violating the constitutional mandate of reasonableness. That is the  area which permits free play in the joints. [596C-D; F]       5.2 The area between the ages of 55 and 58 is regarded in our  country as  a permissible  field  of  operation  for fixing the  are of  retirement. Neither the American nor the English notions  or norms  for fixing the retirement age can render invalid  the basis  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 Legislative Assembly in March 1983 on the question of "reduction in 583 the 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 55 or for reducing it from 58 to 55 and their acceptance depending upon the employment policy of the Government of the day make it impossible  to lay  down an inflexible rule that 58 years is a  reasonable age  for retirement  and 55  is not. If the policy adopted  for the  time being by the Government or the Legislature  is   shown  to   violate  recognized  norms  of employment 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 employment  for the youth is an integral part  of  any  policy  governing  the  fixation  of retirement age.  Here, the  impugned policy  is actuated and influenced predominantly by that consideration. [604C-F]       However,  the question  of age  of  retirement  should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation. Of age of retirement has minute and multifarious dimensions  which shape  the lives of citizens. Therefore, it is vital from the point of view of their well- being that  the  question  should  be  considered  with  the greatest objectivity and decided upon the basis of empirical data furnished  by scientific  investigation. What  is vital f‘or the welfare of the citizens is, of necessity, vital for the survival or the State. Care must also be taken to ensure that the  statistics are not perverted to serve a malevolent purpose. [604F-H ]       6.  It is  well 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 superannuation does not amount to  his removal  from service  within the  meaning of Article 311(2).  Here there  being no  arbitrariness in  the fixation of reduced retirement age, there is no violation of Article 311(2) of the Constitution, either. [605C; F]       Satish  Chandra V  Union of India[1953] SCR 655; Shyam Lal v.  State of  U.P., [1955]  1 SCR 26; State of Bombay v. ,Saubhagchand M.  Doshi, [1958]  SCR  571  ;  Purshotam  Lal

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Dhingra v.  Union of India, [1958] SCR 828; P. Balakotiah V. Union of  India, [1958]  SCR 1052;  Bishun Narain  Misra  v. State Union of Uttar Pradesh, [1965] 1 SCR 693, relied on.       Moti  Ram 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  legislature to  pass laws  it cannot be declared invalid for the reason of non-application of mind,  any more  than any other law call be. An executive act is liable to be struck 584 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  213  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 legislative 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  Court of  Andhra Pradesh  v.  V  V.  S. Krishnamurthy, [1979]  1 SCR  26; Motiram  Dake  v.  General Manager,  North   Frontier  Railway,   [1964]  5   SCR   683 distinguished.       8.  If a rule of retirement can be deemed to deprive a person of  his 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 Slate cannot afford the luxury  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 of a person to his livelihood: they  limit his right to hold office to a stated number of years. [608D-E]       9.1  The burden  to establish  mala fides  is a  heavy burden to discharge. Vague and casual allegations suggesting that a  certain act  was done with an ulterior motive cannot be accepted  without proper  pleadings and  adequate  proof, both  of  which  are  conspicuously  absent  in  these  writ petitions.  Besides  the  ordinance  making  power  being  a legislative  power,   the  argument   of   mala   fides   is misconceived. The  legislature, as a body, cannot be accused of having  passed a  law for  an extraneous  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 mala  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 conferred 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 P  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. [610B-C]            9.3 It is well-settled that the service rules can be as  much amended, as they can be mader, under the proviso

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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-B]           B.s. Vadera v. Union of India, [1968] 3 S.C.R. 575 582-55, Raj  Kumar   v. Union of India [ 1975] 3 S.C.R. 963, 965, followed 585

JUDGMENT:       ORIGINAL  JURISDICTION: Writ  Petition Nos. 1073-1100, 1117-19 1229-95, 142 -1554, 1746-2140, 2155-2271, 2396-2459. 1198-1217, 1302-12,  1314-15, 1566-1641,  1140-70,  2360-95, 1643-1725,2272-2329,2152,2332,2339,2491,3486-89,  2498-2521, 2522, .533-74,2611-2638 and 2531 of 1983.       (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 of India)                             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. Churi,  G. Narasimhulu,  A. Subba Rao, M.K.D. Namboodiry, H.S. Guru Raj Rao, S. Markandeya, A.T.M. Sampath, D.K. Garg, Nikhil Chandra and A K Panda for the Petitioners.         L.N.  Sinha,  Attorney  General,  Anil  B.  Divan,B. Parthasarthi and K.R. Chaudhary for the Respondents.       G.N. Rao for the State.       Miss A. Subhashini for the Union.       The Judgment of the Court was delivered by       CHANDRACHUD,  C. J.  In  the  elections  held  to  the Legislative Assembly  of Andhra  Pradesh in  January 1983, a new political  party called Telugu Desam was swept to power. It assumed office 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  58  years.  Two notifications issued in exercise of the power conferred 586 by the  Proviso to  Article 309 read with Article 313 of the Constitution  was  appended  to  that  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

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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 Government  of Andhra  Pradesh by  a notification dated - October 29, 1979 and nothing had happened since then to justify  reduction of the age of retirement again to 5 i; that providing  employment opportunities  to the youths h Is 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  increasing 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 1976, 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 587 would be  caused in  the payment  of pensionary  benefits to employees A  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  that  the  recommendation  of  the  one  Man  Pay Commission 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 reduce  the age  of retirement of their employees to 55, though it  was earlier increased from 55 to 58; 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 fulfill 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  unemployed 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 petitioners  to  file  the  writ  petitions.  The  affidavit

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asserts that  the  Government  had  reviewed  the  situation arising out of the enhancement of the age of retirement from 55 to 58 in 1979 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  widespread 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  Andhra 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 Government of Andhra Pradesh, after the rule nisi was issued in the writ petitions. 588 The affidavit is sworn by Shri A.K. Sharma, Deputy Secretary to Government of Andhra 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, 1 977; 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 because 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 i‘1 this affidavit are on the same lines as in the affidavit of Shri R. Partbasarathy.       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 l0th 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 10(1) 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 are of 55 years. Clause 10(2) provides  that 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 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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589 years. By  clause 15,  All Rules  and Regulations made under the  proviso to Article 309 or continued under Article 3 l 3 of the Constitution 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 always 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 l  8(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. Shri 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 non application 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 industrial  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 590 required to  be given  by the  Government under the relevant rules, in  the case  of superannuation  of employees who had already attained the age of 55 on February 8, 1983; when the first Order  was issued,  the  impugned  law  gives  to  the employees a  notice of 20 days only since all such employees had to  retire on  February 28,  1983. Shri  P P.  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 bona fides of  the state  Government in issuing the Order and the

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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   n 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 of 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 proposition that  there ought  to be an age of retirement in public  services   is  widely  accepted  as  reasonable  and rational. The  fact that  the   stipulation as to the age of retirement is a common feature of all of our public services establishes its  necessity, no  less than its reasonableness Public interest  demands that  there ought  to be  an age of retirement in public services The point of the peak level of efficiency is  bound to differ from individual to individual but the  age of  retirement  cannot  obviously  differ  from individual to individual for that reason. A common scheme of general application  governing superannuation  has therefore to  be   evolved  in   the  light  of  experience  regarding performance  levels   of  employees,  the  need  to  provide employment opportunities  to the younger sections of society and  the  need  to  open  up  promotional  opportunities  to employees  at  the  lower  levels  early  in  their  career. Inevitably, the public administrator has to counter  balance conflicting claims while determining the age of superannua 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 stagnation cannot be allowed to generate in the minds of the junior members of the services  and the  younger sections  of the society. The balancing of  these  conflicting  claims  of  the  different segments of  society involves  minute  questions  of  policy which must  as far  as possible,  be left to the judgment of the executive  and the  legislature.  These  claims  involve considerations of  varying vigour  and applicability. Often, the Court  has no satisfactory and effective means to decide which alternative,  out of  the many  competing ones, is the best in the circumstances of a given case. We do not suggest that every  question of  policy  is  outside  the  scope  Of judicial  review   or  that,   necessarily,  there   are  no manageable standards for reviewing any and every question of policy. Were  it so,  this  Court  would  have  declined  to entertain pricing  disputes covering as wide a range as cars to mustard-oil.  If the  age of  retirement is  fixed at  an unreasonably low  level so  as  to  make  it  arbitrary  and irrational, the  Court’s interference  would be  called for, though  not  for  fixing  the  age  of  retirement  but  for mandating a  closer consideration  of the  matter. "Where an act is  arbitrary, it  is implicit  in it that it is unequal both according to political logic and constitutional law and is  therefore   violative  of  Article  14."(l)  But,  while resolving the  validity of  policy issues  like the  age  of retirement, it  is not  proper to put the conflicting claims in a  sensitive judicial  scale  and  decide  the  issue  by finding out which way the balance tilts. That is an exercise which  the   administrator  and   the  legislature  have  to undertake. As  stated in ’The Supreme Court And The Judicial

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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 living 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 legis-       (l)  E.P Rovappa.  State of  Tamil Nadu, [1974] 2. SCR 348. (2) Edited  by Philips B. Kurland, Oxford and IBH Publisning Co., Page 13. 592 lative competence  or on  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 following 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.  Neither           the social  nor the  economic consequences  of  so           grave a  decision could  have been or were in fact           considered by the Government;      (c)  The  reason   given   by   the   Government   that           promotional opportunities  had deteriorated  as  a           result of  the increase in the retirement age from           55 to 58 is fanciful and non-existent. That result           is indeed  produced by  the impugned action of the           State  Government   In  1979,   when  the  age  of           retirement was  increased from  55  to  58  years,           promotional  opportunities   were  denied  to  the           employees because, those who would have retired at           the age  of 55  got a  fresh  lease  of  life  for           another years.  Now, when their turn for promotion           has come  at about  the age  of 55, they have been           superannuated;      (d)  The theory that reduction in the age of retirement           provides  employment   opportunities  to  educated           youths is  fallacious. The various Pay Commissions           have expressed  the  view  that  persons  who  are           required to retire at 593      an early  age are  compelled by necessity to seek other      employments. Even otherwise, not more than one per cent

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    of the  unemployed educated  youths are  likely to  get      employment as  a result  of the reduction in the age of      retirement from  58 to  55. That  is because,  not more      than 18,000 vacancies arose on account of the reduction      in the age of retirement.      (e)  The careful  planning by  the employees  of  their           important affairs of life like the construction of           a house,  the  marriage-  of  a  daughter  or  the           repayment of  loans,  has  been  suddenly  set  at           naught by the reduction in the age of retirement;      (f)  Two of  the most  relevant  circumstances  bearing           upon the  fixation of  the age  of retirement have           been ignored  by the State Government: increase in           longevity and  the prevailing age of retirement in           public sector undertakings; and      (g)  No consideration was given to the plain and direct           con sequence  of  the  reduction  in  the  age  of           retirement, namely, that the State exchequer would           have to  find and  pay Rs. 70 crores on one single           day by  way of  retirement benefits,  for which no           budgetary provision was made       It  would appear  from these  contentions as also from the contions  advanced by the other learned counsel that the main plank  of the petitioners’ case is that the decision to reduce  the   age  of   retirement  from   58   to   55   is unconstitutional because  it is  arbitrary,  irrational  and unconnected with the object which it seeks to achieve.       In  this connection,  the first ground of challenge to the reduction  of the  age of retirement is that the One-man Pay Revision  Commission  appointed  by  the  Government  of Andhra Pradesh  had recommended  that the  age of retirement should  be   increased  from   55  to   58,  that  the  said recommendation was  accepted by  the  State  Government  and consequently, the  age of  retirement was  raised to 58 with effect from  October 29,  l 979.  It is  contended that  the reversal of  that well-considered  decision within  a  short span of  less than  three  and  a  half  years  is  patently unscientific and arbitrary, 594 especially since  no fresh  investigation was  undertaken to examine the  validity of the recommendation made by the One- man Pay Commission.       The  very foundation of this argument is fallacious By G.O. NO.  745 dated November 3,1977 the Government of Andhra Pradesh had appointed Shri A. Krishnaswamy, a retired member of the  l.A.S. as  One-man Pay Revision Commission to review the structure  of the  different  scales  of  pay,  dearness allowance  and   other  compensatory   allowances   of   all categories of  employees of  State Government, local bodies, aided institutions, work-charge establishments etc. The terms of reference of the Commission were enlarged  by the  Government by  an order dated January 28, 1978  SO as  to require  the Commission  to  review  the existing retirement  benefits available to all categories of employees referred  to above  and to examine the question of extension  of   retirement  benefits   to  the  work-charged establishments. The  question  as  to  whether  the  age  of retirement      should       be      raised. p73 Ordinance  which  mostly  regulate  conditions  of  service. Clause  10(1)  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 are  of 55  years.  Clause  10(2)  provides  that  every

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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 of the Commission cover the  review  of  the  existing  ’retirement  benefits’,  the reference "would  naturally include  the age of retirement." This was  an erroneous  and unwarranted reading of the terms of  reference.   A  review   of  retirement  benefits  would undoubtedly cover  the examination  of the  rules or schemes relating to  pension, provident  fund,  gratuity, encasement of leave,  etc, but  it cannot  include the power to examine the  question   as  regards  the  fixation  of  the  age  of retirement. The  Commission says in the same paragraph, as a possible justification  of its consideration of the question of the  age of  retirement, that  "it was  mentioned on  the floor of  the House  that this  issue  is  referred  to  the Commission" Our  attention has been drawn  in this behalf to a statement  made in  the Andhra Pradesh Legislative Council on September  20, 1976 by the then Finance Minister, Shri G. Rajaram, to the effect that one of the terms of reference to the Commission  was to review the existing retirement age of Government employees.  We regret  to say  that  the  Finance Minister  was   not  properly  briefed  when  he  made  that statement. In  any case,  the   power  of  a  Commission  to enquire into a question must depend 595 upon the  terms of the Reference and not upon the statements made on the floor of the House. The fact that the Commission discussed the  question of  the age of retirement in passing shows that  it was not properly seized of that question. The discussion of an important matter like the age of retirement is done  in four brief paragraphs which occupy less than two pages of  the Commission’s  report.  We  do  not  blame  the Commission for  this hurried  and inadequate treatment of an important  question.   That  question  was  not  within  its purview. The  State Government is therefore justified in its contention that  the question  of the  age of retirement was not referred  to the  Commission and that the decision which the Government  took later to increase the age of retirement from 55  to 58  was not  based on  the recommendation of the Commission. The report of the Commission has therefore to be kept out  of consideration  in so far as the question of the age of  retirement is  concerned  and  no  argument  can  be founded on  the fact  that the  view of  the Commission  was ignored or  that nothing  had happened since the date of the report to justify a departure from it.       As regards Shri Venugopal’s argument at (b) above, the fact that  the decision to reduce the age of retirement from 58 to  55 was taken by she State Government within one month of the  assumption  of  office  by  it  cannot  justify  the conclusion that-lt  the decision  is arbitrary because it is unscientific in  the sense  that it  is not  backed  by  due investigation or  by compilation  of relevant  data  on  the subject. Were  this  so,  every  decision  taken  by  a  new Government soon  after assumption of office shall have to be regarded as  arbitrary. 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 had as offending  against the provisions of the Constitution and it can  be no  defense to  the charge of unconstitutionality that the  decision was taken after the lapse of a long time. Conversely, decisions  which are  taken promptly  cannot  be assumed to  be bad  because they  are taken  promptly. Every decision has  to examined  on its  own merits  in  order  to determine whether  it is arbitrary or unreasonable. Besides, we have to consider the validity of a law regulating the age

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of retirement.  It is untenable to contend that a law is bad because it is passed immediately on the assumption of office by a  new Government. It must also be borne in mind that the question as  to what  should be the proper age of retirement is not  a novel  or unprecedented  question which  the State Legislative had  to consider.  There is a wealth of material on that  subject and many a Pay Commission has dealt with it comprehensively. The State 596 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 to take a reasonable decision. The aid and  assistance   of  a   well-trained  bureaucracy   which, notoriously,  plays  an  important  part  not  only  in  the implementation of  policies but  in their  making, was  also available to the Government. Therefore, the speed with which the decision  was taken  cannot, without more, invalidate it on the ground of arbitrariness.       The contentions of Shri Venugopal which arc set out in paragraphs (c)  to (g)  above and,  partly in  paragraph (b) itself, are  by and  large matters  of legislative policy in the formulation  of which  the Government of the day must be allowed a  free, though fair play. Indeed, the acceptance of argument advanced by the various counsel for the petitioners must lead  to the conclusion that there, has to be a uniform age of  retirement all  over  India.  If  reduction  of  the retirement age  from 58 to 55 is to be regarded as arbitrary on  the  ground  that  it  overlooks  the  advance  made  in longevity, fixation  of retirement  age at  58 is  also  not likely to sustain the charge of  arbitrariness. The argument could still  be made  that improvement in the expectation of life requires  that the age of retirement should be fixed at 60 or  62 or  even  at  65.  Then  again,  though  immutable considerations which  are generally or universally true like increased life-expectation  are as much Jammu and Kashmir as for Tamil  Nadu, that  cannot justify  the  conclusion  that fixation of  the retirement  age  at 55 in Jammu and Kashmir is invalid since the State of Tamil Nadu has fixed it at 58. Both can fall within the constraints of the Constitution and neither the  one nor  the other  can  be  considered  to  be arbitrary or  unreasonable. There  is no  one fixed or focal point of  reasonableness. There can be a large and wide area within which   the  administrator or the legislator can act, without   violating    the   constitutional    mandate    of reasonableness. That  is the area which permits free play in the joints.  The following  table will show the variation in the retirement  age which  exists at  present in the various States in India: .TB 3.0" State                         Retirement Age Haryana                        58 years Jammu & Kashmir               55 years Karnataka                     1979-58 years                               1981-55 years  Kerala                       1967-55 years                               1968-58 years 597                               1969- 55 years                                1984-58 years Madhya Pradesh                58 years;                               Reduced to 55 years 1967;                               enhanced to S years in 1970. Maharashtra                   58 years Orissa                        Previously 55 years;                                enhanced to 58 years.

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Rajasthan                          55 years (Reduced from 58 years to                               55 years about 12 years back) Uttar Pradesh                  58 years (Reduced to 55 years in                               1962; enhanced to 58 years) Tamil Nadu                    58 years (For District Judges,                               lowered from 58 to 55 years)                                  West Bengal 58 years (since 1961) .tb .9" It is  clear from  this table that the area between the ages of 55  and 58  is regarded  in our  country as a permissible field of operation for fixing the age of retirement. Neither the American  nor the  English notions  or norms  for fixing retirement age  can render invalid the basis which is widely accepted in our country as reasonable for that purpose.       On  the question  of policy  regarding the fixation of retirement age,  it will  be useful to draw attention to the views expressed  upon that question from time to time by the various Pay Commissions.       Chapter XXXVII of the Report of the Second Central Pay Commission (1959)  deals with the question as to the ’Age of Superannuation’. The  history and background of the fixation of age  of superannuation traced in that Chapter make useful reading. Prior  to 1917,  the superannuation rule applicable to both  ministerial and  non ministerial  staff was  that a Government servant  who had  attained the age of 55 might be required to retire; but that, in order to avod depriving the State of  the valuable  experience of efficient officers and adding unnecessarily  to the non-effective charges, the rule should be  applied with  discretion  and,  whenever  it  was applied, reasons  should be recorded. In its general effect, here, the  rule favoured the retention in Government service of officers  who had  attained the  age of  55, and required inefficiency  to   be  established   as  the   condition  of compulsory H 598 retirement. This  was considered injurious to the efficiency of the public service, on the ground that most officers lost their keenness  and initiative  at the  age of  55. The rule was, accordingly, changed so as to make retirement at 55 the normal practice,  and retention  in service  beyond that age the exception.  A distinction  was,  however,  made  between ministerial and non-ministerial officers, presumbly because, it was  thought that the duties of the former did not suffer from the  effects of  advancing age  as  did  those  of  the others; and  it was  decided, in  effect, that,  subject  to continued  efficiency,   ministerial  officers   should   be retained in  service till  they attained the age of 60. This distinction was,  however, abolished in 1937-38, partly as a measure of  relieving unemployment-which  was acute  at that time-but largely  in recognition  of the  invalidity of  the distinction and  on the  consideration that  the uncertainty which attended  the service  of senior  men beyond  55 had a disturbing effect  on those  who  were  looking  forward  to succeeding them.       Paragraph  5 of  the Commission’s Report mentions that the Varadachariar  Commission had  recommended earlier  that the age for  compulsory  retirement should be 58 years for all services- pensionable  and   non-pensionable-with  an  option  to  the Government to  retire an  employee on  the ground of loss of efficiency, at  the age  of 55. That recommendation involved reduction of  the age of superannuation in the case of Class IV servants  and in  the case  of industrial and workcharged

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staff outside  the Railways,  as well as raising the age for others. But,  for some  reason or the other, only the latter question was  considered and  it was  ultimately decided  in 1949, that  there should  be no  change in the position. The main grounds  for the  decision were  that the  majority  of persons retiring  at the  age of  55  were  not  capable  of rendering efficient  service any  further; their replacement at the age of 55 by younger men would serve the interests of efficiency better; and that, the retirement age should be so fixed as  would release  men at an age when they would still be fit  to render service to the country in other spheres of their choice,  even though  not wholly capable of keeping up with the  fast tempo  of Government  work, or of meeting its other  exacting   requirements.  It   was  observed     that Government service  ages employees  quicker  and  that,  the question was  one of  balancing limited use to Government of such men  against, perhaps,  their better  usefulness to the nation at large.       Paragraph  6 of the Commission’s Report shows that the question was  reconsidered in 1963 when, the only additional argument   advanced against  an upward  change  its  adverse effect on educated 599 unemployment. It was recognized that its actual effect would A be  small but,  importance was  attached to  its  probable impact on  public opinion.  The earlier decision to maintain the age  of retirement at 55 was re-affirmed but, in view of the widespread shortage of trained personnel, it was decided that extension  of service  beyond that  age might  be given liberally on  the ground  of public interest, more specially in the  case of  scientific  and  technical  personnel.  The continuing shortage  of trained  man-power led  to a further review of  the problem  in 1958; but, apart from laying down the criteria  for grant  of extension and re-employment, and re-emphasizing the  need to  retain technical and scientific personnel  beyond   the  age  of  superannuation,  the  only significant advance  on the  earlier decisions  was that re- employment or extension might be granted upto two years at a time.  thus   notwithstanding  the   recommendation  of  the Varadachariar Commission,  the age  of  superannuation  laid down for  the  non-ministerial  staff  more  than  40  years earlier  and  for  ministerial  staff  more  than  20  years earlier, continued  to be  in force  when the Second Central Pay Commission took up that question for examination.       There  was an  "extraordinary  unanimity  of  opinion" amongst Heads  of Departments,  distinguished retired public servants, public men and economists who gave evidence before the Commission  that the  age of  superannuation  should  be raised, the only difference being as to whether it should be raised to  58  or  60  years.  The  great  majority  of  the employees’ organizations  were also  in favour of increasing the age  of retirement,  the only  exception being  the  All India  Railwaymen’s  Federation.  That  Federation  did  not consider the  age of  55 as  the age  of the onset of senile inefficiency, but  it was  of the  opinion that  the age  of superannuation should  not be  raised in  view of  the  then prevailing large-scale  unemployment. Some of the reasons on which  there   was  unanimity  for  increasing  the  age  of retirement  were;   the  continuing   mental  and   physical efficiency of  most of the Government servants at the age of 55;  the   increased  expectation  of  life  resulting  from improved public  health conditions;  and, the national waste involved in  sending men  and women  into enforced  idleness while   they  were  still  capable  of  rendering  efficient service. The  Commission found  that there  was  an  overall

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improvement in  public health  as shown  by the  decline  in death rate  and the increase in expectancy of life at birth. What was  even of  greater relevance,  the Commission  found that there  was improvement in the expectancy of life in the fifties, that  is to say, amongst people in the age group of 50 to  60. The  data  supplied  to  the  Commission  by  the Comptroller and Audi- 600 tor-General showed  that, at  least in  the case of Gazetted and Class 111 employees, there was a significant increase in the percentage  of persons  who lived  for two years or more after superannuation. On this data, the Commission concluded in paragraph 11 of its Report: "Thus, however valid may have been the  view taken  in 1971,  and re-affirmed  in 1937-38, that the  age of  55 was normally the dividing  line between health and  efficiency on  the one side, and marked physical deterioration and  decline in efficiency On the other, there is sufficient reason to think that is no longer so, and that the deviding  line can be safely moved a few years upwards." The Commission  then adverted  to  the  prevailing  ages  of retirement in  foreign countries and reiterated that whether we go  by our  own "vital  statistics"  or  by  the  age  of retirement prevalent  in other  countries, there was a clear case   for raising the age of superannuation "substantially" above 55 years.        In   paragraph  15  of  the  Report,  the  Commission considered the effect of increasing the age of retirement on the employment  situation  and  concluded  that  the  likely repercussion of increasing the age of retirement on educated unemployment would  not be  substantial.  After talking into account all  the relevant considerations, including the fact that most  Government servants  themselves do  not  wish  to continue in  service until  they are  worn out and have "one foot in the grave", the Commission summed up its findings by saying that  there was  "much in  favour of  and very little against raising  the age  of superannuation". The Commission recommended that the age of  superannuation should be 58 for all classes  of public servants including those for whom the retirement age then was 60.        The   recommendation  of   the  Second   Central  Pay Commission that  the age of retirement should be raised from 55 to  58 years was not accepted by the Government initially because, it  felt that  raising  the age of retirement would reduce employment  opportunities in  the  immediate  future. However. the  Government reviewed  the position subsequently and raised  the age  of retirement  to 58  years with effect from December 1, 1962. The main considerations which weighed with the  Government in  reaching this  decision  were:  The shortage of   experienced  and trained man-power which could be  met  partly  by  raising  the  age  of  retirement;  the insignificant effect  which raising  the age  of  retirement would have  on employment  opportunities; and,  the improved life expectation.       The Third Central Pay Commission (1973) dealt with the question of  age of  superannuation in  Chapter  60  of  its Report. Paragraph 601 3  of   that  Chapter   shows  that   whereas  some  Service Associations Demanded  that the age of superannuation should be increased  to 60  years on account of increased longevity and on account of the fact that a large number of Government employees were  not free  from family responsibilities until much later  in life  because of  late marriages, some of the Associations suggested  that the age of retirement should be reduced again  to 55  years mainly  with a view to improving

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the promotional prospects and providing increased employment opportunities to the educated unemployed in the country.       The  conclusions of  the Third  Central Pay Commission can be  summed up  thus:-(1) There was a further improvement in the  expectancy of  life at  birth  as  revealed  by  the provisional 1971  Census figures;  (2) There was improvement in the  expectancy of  life between  the ages  of 50  and 55 years, which  was of  great relevance  on  the  question  of fixation of  the age  of superannuation;  (3) There  was  an appreciable  increase   since  1950  in  the  percentage  of survivors among  the  Central  Government  employees  during about ten  years after  retirement; (4)  Though reduction in the age of superannuation to 55 years would result in making about 96,000  additional jobs  available,  that  factor  was counter-balanced by  the circumstance that a large number of retired Government  employees are  obliged to  take up  some employment  or  the  other  after  retirement,  due  to  the increased  cost   of   living   and   the   growing   family responsibilities. A  reduction in  the age of superannuation would  not   therefore,  ipso  facto,  improve  the  overall employment position  for the  educated unemployed;  (5)  Any increase in  the age  of superannuation beyond the age of 58 would reduce,  during the period of the increase, employment opportunities  for   a  very   large  number  of  technical, engineering and  professional students  passing out from the universities, technical institutions and industrial training institutes ;  and, (6)  The age  of retirement should not be changed frequently  since it  has a  vital  bearing  on  the career prospects of and the retirement benefits available to Government employees  and since it is an important factor in the attractiveness of Government service. For these reasons, the Commission  recommended that  the age  of superannuation should continue  to be  58 years  for the Central Government employees with  the modification  that the retirement should take effect  from the afternoon of the last day of the month in which the employee attains the age of superannuation.       The  Third Tamil  Nadu Pay  Commission (1978) has also dealt with  the question  of  the  age  of  retirement.  The Commission noticed  that the age of retirement was more than 60 in some of the develop- 602 ing  countries,   the  economic  development  of  which  was comparable to  that of  India. The  age of  retirement is 70 years in  Brazil and  Peru, 65  years in  Chile, 63 years in Philippines and 64 years in Lebanon. The Commission examined the  co-relationship   between  increase   in  the   age  of retirement and  unemployment amongst the educated youth with "a deep  sense of  concern" and  observed that the number of jobs   released by  retirement would  be  very  marginal  as compared with  the total  number of  job seekers  and  that, therefore, it was not fair to shift the focus of the problem of  unemployment   to  the  age  of  superannuation  of  the Government employees. In support of this view, it quoted the International  Labour  Organisation  (The  World  Employment Programme): "The  three pillars  of a  strategy  for  fuller employment are  rural development,  labour intensive  public works programmes  and the  reduction of capital intensity of industrialisation."  Observing   that  the   dimensions   of unemployment problem  should not  deter the  Government from improving the  service  conditions  of  its  employees.  the Commission concluded  that there  was a  case for increasing the retirement  age of  the State Government employees to 58 years.       Our attention was also drawn to the views expressed on "Employment Policy"  in the  Sixth Five Year Plan (1980-85).

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It  is   observed  therein   that   lasting   solutions   to unemployment problems  had to  be found within the framework of a  rapid and  employment-oriented economic  growth;  that suitable measures  had to  be evolved in the short term in a co-ordinated way, particularly for the benefit of the weaker sections; and  that, since  the  dimension  and  gravity  of educated  unemployment   vary  from   State  to   State,   a decentralised approach  should be  adopted on  the  district employment plan.  According to  the Sixth  Five  Year  Plan, unemployment would  not be  eliminated within the Sixth Plan unless efforts  were immediately  made to   make the current unemployed more  employable through  short-term training and vocational  programmes   and   unless   special   employment programmes are directed towards their absorption.       Soon after the assumption of office, the Government of Andhra  Pradesh   presented  a  White  Paper  to  the  State Legislative Assembly   in  March 1983  on  the  question  of reduction in  the age  of superannuation from 58 years to 55 years in  respect  of  Government  employees,  employees  of Panchayat  Raj   Institutions,  Local   Bodies   and   aided Educational Institutions  for whom  the pensionary liability is borne by Government". After stating that the Krishnaswamy Commission   was appointed  on November 3, 1977 for the sole purpose of 603 examining the  question of  ’ retirement  benefits" and that the question of retirement age was not included in its terms of  reference,  the  White  Paper  says  that  although  the Government  had   accepted  the   recommendations   of   the Commission almost  in their  entirety, it did not accept its recommendation  that   the  age   of  retirement  should  be increased from  55 to  58 years.  By  a  notification  dated September 17,  19,9 the  recommendations of the Commission B in regard to the revision of pay scales were accepted by the Government  but,   not  so   the  recommendation   regarding increasing the age of retirement from 55 to 58 years. it was later, in  October 1979,  that the Government decided on its own to  increase the  age of retirement from 55 to 58 years. The specific case of the State Government on the question of reduction of  the age  of retirement  from 58 to 55 years is stated thus:       "As  a result of revision of the age of superannuation upwards from  55 years  to 58  years, the normal channels of promotions that  would have  opened up  had the  retirements taken place  in the normal course, were choked. Consequently the resultant  vacancies at  the  direct  recruitment  level which would  have arisen  in the  chain of appointments that would follow  each retirement, were also blocked for 3 years continuously, thereby denying the promotion opportunities to inservice personnel  and employment  opportunities  for  the unemployed causing a great deal of frustration all round. It is estimated that on an average there would be approximately 6,500 retirements  each year  from  Government  departments, Panchayat Raj  Institutions  and  also  Aided  Institutions, where  pensionary   liability  is   borne   by   Government. Government,  therefore,   decided  to   revise  the  age  of superannuation from  58  years  to  55  years  so  that  the unemployed talented  youth who were eagerly awaiting chances of  appointment   could  get  opportunities  of  employment. Besides, experienced  deserving  inservice  personnel  whose legitimate aspirations  for promotion  were  thwarted  could also now  look for  this much  awaited promotion. Government were thus  able to  create promotional  avenues  to  serving employees at  various levels  and create  opportunities  for appointment  against   about  18,000  posts  in  Government,

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Panchayat Raj  and aided educational institutions alone, not to speak  of the  opportunities that  were  created  in  the various   Corporations   etc,   owned   or   controlled   by Government." 604       The  White Paper explains that in order to ensure that the employees  who had  retired by  the end of February 1983 should get  their pensionary  benefits  without  delay,  the Government had  constituted a  special Pension  cell in  the Finance Department,  by a  notification dated  February  16, 1983. The function of that cell is to  "monitor the progress of settlement of pension eases" In addition, it is said, the Government had  issued instructions  by a notification dated February 14,  1983 for  payment of "anticipatory pension" at 3110th of  the last  pay drawn  in  all  cases  wherein  the sanction of pension was delayed.       on  the basis  of this  data, it  is difficult to hold that in  reducing the  age of  retirement from 58 to 55, the State Government  or the  Legislature acted  arbitrarily  or irrationally. There are precedents within our country itself for fixing the retirements age at 55 or for reducing it from 58 to 55. Either the one or the other of these two stages is regarded  generally   as  acceptable,   depending  upon  the employment policy  of the  Government of  the day. It is not possible to  lay down  an inflexible rule that 58 years is a reasonable age  for retirement  and 55 is not. If the policy adopted  for  the  time  being  by  the  Government  or  the Legislature  is   shown  to   violate  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. But such  is not  the case  here. The reports of the various Commissions, from which we have extracted relevant portions, show that  the creation of new avenues of employment for the youth is  an integral  part  of  any  policy  governing  the fixation of  retirement age.  Since the  impugned policy  is actuated and  influenced predominatly by that consideration, it cannot  be struck  down as  arbitrary or  irrational.  We would  only  like  to  add  that  the  question  of  age  of retirement should  always be examined by the Government with more than  ordinary care, more than the State Government has bestowed upon  it in  this case.  The  fixation  of  age  of retirement has  minute  and  multifarious  dimensions  which shape the lives of citizens. Therefore, it is vital from the point of  view of  their well-being that the question should be considered with the greatest objectivity and decided upon the  basis   of  empirical   data  furnished  by  scientific investigation. What is vital for the welfare of the citizens is, of  necessity vital  for the survival of the State. Care must also  be taken  to ensure  that the  statistics are not perverted to serve a malevolent purpose 605              Shri V.M. Tarkunde, who appears for some of the petitioners, A  limited his  argument to the contention that arbitrary fixation  of retirement  age amounts  to "removal" from service  and is  therefore violative of Article 311 (2) of the Constitution This argument has to be rejected because of  our   conclusion  that  the  reduction  of  the  age  of retirement from  58 to  55 in the instant case is not hit by Article 14  or Article  16, since  it is  not  arbitrary  or unreasonable in  the circumstances  of the  case. But, apart from this  position, we  find it difficult to appreciate how the retirement  of an  employee in  accordance with a law or rules regulating his conditions of service can amount to his "removal" from  service. It is well-settled that Article 311

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(2) 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  this behalf  is to visit him with evil consequences. See Satish  Chandra v. Union of India,(1) Shyam Lal v. State of U  P.,(1) State  of Bombay  v. Saubhagchand  M. Doshi,(3) Purshottam  Lal   Dhingra  v.   Union  of  India(4)  and  P. Balakotiah v.  Union of India(5). Besides, the point made by Shri Tarkunde  is concluded by a Constitution Bench decision of this  Court in  Bishun Narain  Misra v.  State  of  Uttar Pradesh (6)  In that  case, the  Government of Uttar Pradesh and raised  the age of superannuation from 55 to 58 years by a Notification  dated November 27, 1957 but reduced it again to 55  years by  a Notification  dated  May  25,  1961.  The appellant therein,  who had  attained the age of 55 years on December 11,  1960 and was continued in service when the age of retirement  was raised  to 58 years, was one of those who had to  retire on December 31, 1961 as a result of reduction of the  age of  retirement to  55. It was held by this Court that the termination of service of an employee on account of his reaching  the age  of superannuation  does not amount to his removal  from service  within the meaning of Article 311 (2). Learned  counsel contends  that  this  decision  is  of doubtful authority  since the Court based its opinion on the majority judgment  in Moti  Ram Deka  v. y,General  Manager, North Frontier Railway(7), in which the Court was not called upon to consider and did not consider the validity of a rule of superannuation.  It is  true that  in Moti  Ram Deka, the Court was concerned to G      (1) [1953] S.C.R. 655.      (2) [1955] 1 S.C.R.26.      (3) [1958] S.C.R. 571.      (4) [1958] S.C.R. 828.      (5) [1958] S.C.R.1052.      (6) [1965] I S.C.R. 693.      (7) [1964] 5 S.C.R 683. 606 determine the  validity of  Rules 148 (3) and 149 (3) of the Railway  Establishment   Code   which   provided   for   the termination of  the service of a permanent servant by a mere notice But,  interestingly, the  judgment in  Bishun  Narain Mishra shows that it was the appellant therein who relied on the decision  in Moti  Ram Deka in support of his contention that the  rule by which the age of retirement was reduced to 55 years  amounted to  removal within the meaning of Article 311 (2)  The Court  held that  the decision in Moti Ram Deka had no  application to the case before them since "that case did not  deal with  any rule relating to age of retirement". (See page  696 of  the Report).  It was  after noticing this distinction that  the Court  observed that  the  very  case, namely, Moti  Ram Deka’s case on which the appellant relied, contained   the    observation   that   the   rule   as   to supperannuation or  compulsory retirement  resulting in  the termination of service of a public servant did not amount to removal from service The Court, in Bishun Narain Misra, came independently  to  the  conclusion  that  "as  the  rule  in question only  dealt with  the age of superannuation and the appellant had  to retire because of the reduction in the age of superannuation  it cannot be said that the termination of his service  which thus  came about  was removal  within the meaning of Article 311".       The theme of Shri Siddhartha Sbankar Ray’s argument is "non application  of  mind".  He  made  it  clear  that  his argument should not be construed as a challenge to the power or jurisdiction  of  the  Governor  to  issue  the  impugned

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Ordinance and  that his  sole attempt  was to  show that the Ordinance was  passed in  a hurry,  as a  result  of  which, considerations  which   are  relevant  to  the  fixation  of retirement  age   were  ignored.   The  instances   of  non- application of  mind cited by the learned counsel are these: The inclusion o f the employees of the High Court within the sweep of  the Ordinance  in violation  of the  provisions of Chapters V  and VI of the Constitution; the inclusion of the employees  of   the  Legislature   Secretariat  within   the Ordinance; the  extension of the Ordinance even to the daily rate workers; and, finally, the fact that nothing worthwhile is likely  to be  achieved by  the passing  of the Ordinance since, at  the highest,  it would  create employment at this point of  time only,  for about  19,500 employees After that point of  time  passes,  the  same  state  of  affairs  will continue  since   the  age  of  retirement  will  be  merely substituted by 58 in place of 55 years.       It  is impossible  to accept  the submission  that the Ordinance  can   be  invalidated   on  the  ground  of  non- application of mind. The 607 power to issue an ordinance is not 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 213  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  legislative power  of the  State  Legislature  is subject Therefore,  though an  ordinance call be invalidated for contravention  of the  constitutional limitations  which exist upon  the power  of the State Legislature to pass laws it cannot  be  declared  invalid  for  the  reason  of  non- application of  mind, any more than any other law can be. An executive act  is liable  to be struck down on the ground of non-application of mind. Not the act of a Legislature.       On the question as to the legislative character of the ordinancemaking power, we may refer to the decisions of this Court in  A.K. Roy  v. Union  of India(1)  and R.K.  Garg v. Union of India(2).       Shri  Ray raised upon a decision of this Court in High Court of  Andhra Pradesh  v. V.V.S.  Krishnamurthy,(3) which has taken  the view  that in  regard  to  the  servants  and officers of  the High Court, Article 229 of the Constitution makes the  power of‘  their appointment, dismissal, removal, compulsory  retirement,   etc.,  including   the  power   to prescribe their  conditions of service, the sole preserve of the Chief  Justice and no extraneous executive authority can interfere with  the exercise  of that  power. This  decision cannot assist  the petitioners  since,  it  deals  with  the limitations on  the executive  power Of  the  Government  to interfere with  the power of the Chief Justice under Article 229. The  executive cannot  encroach upon  that  power.  The decision of this Court in Moti Ram Deka which was also cited by the  learned counsel,  does not touch the point raised by him.       Though Shri Ray presented his argument in the shape of a  challenge   to  the  Ordinance  on  the  ground  of  non- application Of  mind, the  real thrust  of his  argument was that the hurry with which the Ordinance was passed shows the arbitrary  character  of  the  action  taken  by  the  State Government. We have already rejected the contention of haste and hurry as also the argument that the provi-       (1) [1982] 2 S.C.R. 272 at 282, 291.

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        (2) 11982]1 S.C.R. 947 at 964, 967.          (3) [1979]1 S.C.R. 26. 608 sions of  the Ordinance  are, in  any manner,  arbitrary  or unreasonable and  thereby violate  Articles 14 and 16 of the Constitution.       Shri R.K. Garg, who appears in Transfer Cases Nos. 70, 71 and  72 of 1983, challenges the validity of the Ordinance on the  ground that, casting all established norms aside, it fixes the  age of  retirement at  55 years,  notwithstanding industrial adjudications  and even  settlements  arrived  at between  employers   and  employees.  Relying  upon  certain decisions of this Court like Maneka Gandhi v. Union India(1) and State  of Madras  v.  V.G.  Row(2)  in  support  of  his submission  that  arbitrariness  invalidates  laws,  counsel contends  that     a   law  which  overrules  an  industrial adjudication or  settlement is fundamentally unreasonable or arbitrary and  must, therefore,  be held  to be violative of Article 14 of the Constitution. It was also urged by counsel that by  reducing the  age of  retirement to  55 years,  the Government  employees   were  deprived  of  their  right  to livelihood. There  is no  substance in  this latter argument because, if a  rule of retirement can be deemed to deprive a person of  his 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 cannot afford the luxury  of allowing its employees to continue in service after they have passed the point of peak performance.  Rules of retirement  do not take away the right of a person to his livelihood: they  limit his right to hold office to a stated number of years. This argument of the learned counsel can be rejected for  other reasons  also, we do not propose to deal with these  Transferred Cases  since, there  is  nothing  on record to  show that there are any industrial adjunctions or settlements between employers and employees providing for an age of  retirement for  any section  of industrial  workers. These Transferred Cases will be delinked from the other Writ Petitions and will be listed for hearing later, so that they can be  dealt with  upon their  own facts.  If the  question raised by  Shri Garg  is academic,  it will  be needless  to consider it.       The  argument of  mala fides  advanced  by  Shri  A.T. Sampat, and adopted in passing by some of the other counsel, is without  any basis. The burden to establish ma/a fides is a heavy  burden to  discharge. Vague  and casual allegations suggesting that  a certain  act was  done with  an  ulterior motive cannot  be  accepted  without  proper  pleadings  and adequate proof, both of which are conspi-          (1) [1978] 2 S.C.R. 621 at 659, 685, 689 and 702.          (2) 11952] S.C.R. 597 at 607. 609 cously  absent   in  these   writ  petitions.  Besides,  the ordinance-making A  power being  a  legislative  power,  the argument of  mala Fides is misconceived. The legislature, as a body,  cannot be  accused of  having passed  a law  for an extraneous purpose.  Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons are so  stated, as appear from the provisions enacted by it. 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  mala  fide.  This  kind  of ’transferred malice’ is unknown in the field of legislation.       Finally,  there is no substance in the contention that the amendment  to the Fundamental Rules, whereby the proviso to rule  2 was  deleted, is  beyond the  powers of the rule-

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making authority  or the  Legislature. The Fundamental Rules and  the   amendments  thereto   are  issued  by  the  State Government under  the powers  delegated to  it by  the Civil Services (Governors’  Provinces) Delegation  Rules 1926, the Civil Services  (Classification, Control  and Appeal)  Rules 1930,  and   under  the   Proviso  to  Article  309  of  the Constitution. The  Fundamental Rules  which came in to force with effect  from January  1, 1972  were amended  earlier by G.O. Ms.  No. 128 dated April 29, 1969. By that amendment, a proviso was added to rule 2 which reads thus:            "Provided that the rules shall not be modified or      E; replaced  to the  disadvantage of any person already      in service." By G.O.  Ms. No. 48 dated February 17, 1983 this proviso was deleted with  retrospective effect  from February  23, 1979. The contention  of the petitioners is that the proviso which conferred a  benefit upon  Government servants by protecting their conditions  of service,  cannot be  amended so  as  to empower the  Government to  alter those  conditions to their prejudice  and,   in  any  event,  they  cannot  be  amended retrospectively so  as to take away rights which had already accrued to  them The  simple answer to this argument is that the amendment  of February 17, 1983 to the Fundamental Rules was made  by the Government of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution. It is well-settled that the service rules  can be  as much amended, as they can be made, under the  proviso to  Article 309  and that,  the power  to amend these  rules carries  with it  the power to amend them retrospectively. The power conferred by H 610 the proviso to Article 309 is of a legislative character and is to  be distinguished  from an ordinary rule making power. The power  to legislate  is of  a plenary  nature within the field demarcated  by the  Constitution and  it includes  the power to legislate retrospectively. Therefore, the amendment made to  the Fundamental  Rules in  the   exercise of  power conferred by Article 309, by which the proviso to rule 2 was deleted retrospectively, 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. (See  B.S. Vaderu  v. Union of India;(1) Raj Kumar v. Union of India(2).       These then are the main points in controversy on which counsel made  their contentions.  For reasons  aforesaid, we reject those  contentions and  dismiss these Writ Petitions. There will be no order as to costs. S.R.                                    Petitions dismissed.          (1) [1968] 3 S C.R. 575, 582 585.          (2) [1975] 3 S.C.R. 963, 965. 611