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PETITIONER: B. PRABHAKAR RAO & ORS. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS. ETC.ETC.

DATE OF JUDGMENT19/08/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) ERADI, V. BALAKRISHNA (J) KHALID, V. (J)

CITATION:  1986 AIR  210            1985 SCR  Supl. (2) 573  1985 SCC  Supl.  432     1985 SCALE  (2)256  CITATOR INFO :  R          1989 SC 903  (24)  R          1992 SC 320  (85)  RF         1992 SC 767  (8)  RF         1992 SC1277  (42)

ACT:      Andhra Pradesh  Public Employment (Regulation of Age of Superannuation) Act  1984 section  3(1) and  Explanation  II (a‘).      Fundamental Rules  Rule  56  (a)  and  Hyderabad  Civil Service Rules Rule 231.

HEADNOTE:      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 division of employees into two class on basis thereof  - Whether  permissible -  Whether amenable to judicial scrutiny - Age Of Superannuation - Change of policy or reversal of policy.      Constitution of India 1950, Article 14      Classification - Reasonableness of - Burden of proof on State .      Interpretation of Statutes      Government  department  administering  Act  -  Official statement  of   -  Whether   relevant   for   interpretation legislation to remedy wrongs - Wronged persons - Whether can be excluded.      Practice & Procedure      Writ petition  - Dismissal  in limini  - Whether bar to entertainment of another similar writ petition.      In  the   State  of   Andhra   Pradesh   the   age   of superannuation 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. 574      In order  to give  effect to  the aforesaid  policy  of reversal,  the   Government  amended   Rule  56(a)   of  the

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Fundamental Rules  and  Rule  231  of  the  Hyderabad  Civil Services Rules  by substituting  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  28.2.1983 shall retire from 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  civil servant  against a change in conditions of  service to  his detriment  after  he  entered service. The  Andhra Pradesh  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 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  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.      Immediately 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  Pradesh  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 superannuation 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. 575      The  Andhra  Pradesh  Legislature  enacted  the  Andhra Pradesh   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 Pradesh Ordinance No. 24 of 1984 providing that in s. 3(1) of the Act and in Explanation II (a)  the words  ’fifty-eight years’  shall be substituted for  the   words  ’fifty-five  years’.  The  Andhra  Pradesh Ordinance No,  24 of 1984 was replaced by Act No. 3 of 1985. By sec.  2 of the Amending Act, the words ’Fifty-five years’ were substituted  by the  words ’fifty-eight  years’ in Sec. 3(1) and Explanation II(a) of the Principal 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 notifications  issued.......  or  in  pursuance  of  the provisions  of   the  Andhra   Pradesh   Public   Employment

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(Regulation of Age of Superannuation) Act 1984.... ...."      During the  pendency of  the  Writ  Petitions  in  this Court, several  employees of local authorities etc. Obtained orders of  stay from  the High  Court and were continuing in service on the E date when the judgment of the Supreme Court was pronounced.  After the  pronouncement 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 55 years between February 28, 1983  and August  23, 1984  but who had not completed 58 years sought  re-entry, notwithstanding  the raising  of the age of  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 removed from service or who were denied  re-entry into  service On  the ground that they had attained  the age  of 55 years between February 28, 1983 and August  23, 1984  once again invoked the jurisdiction of this Court  under Article 32 and sought appropriate writs to continue or  to reinstate and continue them in service until they attain the age of 58 Years. 576      On 23.4.1985,  a Division Bench of this Court, directed that those  Government servants who were in service prior to April 1,  1985 and  who were removed from service on account of reduction  in age, shall be reinducted in service, if the posts from  which each  one was  removed was still vacant or someone was holding a temporary change.      On May  6/7, 1985  another Bench of this Court directed that the  aforesaid Order  dated 23rd  April, 1985 should be implemented to  the extent  that the  posts from  which  the employees were  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  lt 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  tone to the and the relief given to them  by   the  amending  Ordinance  and  the  Act,  was  an unreasonable classification  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 hat been tone  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 hat  the misfortune 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 hat they not

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obtained the  orders of  stay they  would have  retired from service on  having attained the age of 55 years ant this was patently unreasonable.      On behalf of the State Government and Officers who were promoted in the vacancies created by the retirement of those who 577 had attained  the age  of 55  years, it  was submitted  that there was   no  discrimination whatsoever  and that what the Government had done w 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 promotions  were made subsequent to the reduction of the age  of   superannuation  on   regular   basis   ant   those appointments  aud   promotions  could   not   therefore   be disturbed. ^      HELD: [By  the Court  Per Chinnappa  Reddy, Balakrishna Eradi & Khalid, JJ.]      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 ant 142 of the Constitution the following directions given :      a. All employees of the Government, public Corporations ant local  authorities, who were retired from service on the ground that they hat attained the age of 55 years by 28.2.83 or between  28.2.83  ant  23.8.84  shall  be  reinstated  in service provided  they would not be completing the age of 58 years on or before 31.10.1984. [616 B-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,  hat they been  in service  until they  attained the  age  of  58 years, less  any amount  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 actually been reinstated  in service  pursuant to  interim orders  cf this Court,  shall be  allowed to  continue in service until they attain the higher age of superannuation. [616 F] 578      d. The  reinduction of those employees that have been A 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

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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 otherwise 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 C]      h. The Government shall be free to create supernumerary posts whenever they consider it necessary 80 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] 579      3c.  It   is  one  thing  to  say  that  the  Executive Government   has no  power to  pass an  order 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  classification must  pass the dual test of beating  reasonable and  related to  the  object  of  the legislation, besides  not being  arbitrary. It is not t 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 persons who had attained 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, lt  has to  be with effect from a certain date but it does not  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 C]      D.S. Nakara  v. Union  of India,  [1983] 2  S.C.R.  165 referred to.      Bishnu Narain Mishra v. State of Uttar Pradesh & Ors.  [1965]  1 S.C.R.  693, K. Nagaraj & Ors. v. State of Andhra Pradesh A.I.R. 1985 S.C. 551 and State of Assam v. Padma Ram 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 58 years for 55 years. While doing 80,

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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 superannuation was reduced, it was realist that injustice had 580 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  beneficient  treatment  by classifying them  as 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 classes  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  supernnuation to  the former class  is  as  arbitrary,  as  the  division  of  Government employees entitled  to pension in the past and in the future into two classes, that is, those that had retired prior to a specified date  and those that retired or would retire after the specified  date, and  confining the  benefits of the new pension rules to the latter class 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 80 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 r classification  and   its  nexus  with  the  object  of  the legislation is on the State. [612 D]      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  downs of  career bureaucrats  do not  by themselves justify  such a  classification It may however be of some  consequence in  the matter  of granting relief. For instance there  would be  really no  point in reinducting an employee if he has but a month or two to go to attain the 581 age of  58 years  to retire. Reinduction of such a person is not   likely to  be of any use to the administration and may indeed be detrimental to the public interest. It is 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]       8. In Industrial Law back and future wages are awarded on quite  a large  scale ant there is no reason why the same principle cannot  be adopted. If as a rule private employers

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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 model employer i.e. the Government, public corporations and local authorities. [614 D]      9. Where internal aids are not forthcoming, recourse to external aids  are not ruled out. This is now a well settled principle of  modern statutory  construction. The  ’Enacting 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 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 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  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  require.  No  rule prevents the court from inspecting in private 582 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 enable 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. 1591 E-G]       11.  The history  and the  succession of  events,  the initial lowering of the age of superannuation, the agitation consequent upon  it and  the  agreement  that  followed  the agitation clearly  indicate that the object or Ordinance No. 23 of 1984 ant 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 not a case of  a change  of policy  to set  right immediately  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 to  operate retrospectively,  they  may  so  operate  by express  enactment,   by  necessary   implication  from  the language implied,  or where  the statute  is explanatory  or declaratory or  where the  statute is passed for the purpose of protecting the public against some evil or abuse or where the statute  engrafts itself  upon existing  situations etc. But it would be incorrect to call a statute ’retrospective’,

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"because a  part of  the requisites  for its action is drawn from a time antecedent to its passing". [614 G-615 A]      R.V. St.  Mary, Whitechapel [Inhabitants][1842] 12 O.B. 120, referred to.      13. Unlike  in the United Kingdom here in India we have written Constitution  which confers  justiciable fundamental rights and  80 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   retroactivity  or  not application clause,  as offending  the fundamental  right to equality fore  the law and the equal protection of the laws. 1615 B] 583      [Per V. Balakrishna  Eradi, J. concurring.]      In is  now well  established by decisions of this Court that the Government has full power to effect a change in the age  of   superaunuation  cf   its  employees   on  relevant considerations. If  in the exercise of such power the age of superannuation is  enhanced purely  by way of implementation of  a   policy  decision   taken  by  the  Government,  such alteration can  legally be  brought about  with  prospective effect from the date of the commencement of the operation of the Ordinance,  Act or  Rule and no question of violation of Article 14  or 16  of the  Constitution  will  arise  merely because the  benefit  of  the  change  is  not  extended  to employees who have already retired from service. [618 D-E]      [Per V. Khalid, J. Concurring]      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 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  problem.   Employees  of   the  State   with  limited resources, who have been planning their future with a secure feeling that  they could work till the age of 58 years, have overnight, been  robbed of  their tenure,  their aspirations and future. They have become the helpless victims of certain Swift moves  on the political chess board. These swift moves 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.  The damage had been done and it can be repaired only be extending 584 this Court’s  powers to  a section  of employee who deserves sympathy and  fair deal.  The case  is more  or less  evenly balanced between the parties. The benevolent jurisdiction of Article 142  (1) of  the Constitution  has therefore  to  be invoked. [621-H- 622 B. 621 F]

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    K. Nagera  p v.  State of  A.P. A.I.R.  1985 S.C.  551, Bishnu Narain  Mishra v.  State of U.P. and others, [1965] 1 S.C.R. 693  and D.S.  Nakara v.  Union [1983]  2 S.C.R  165, referred to.

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition Nos. 5447-5546 of 1985 etc. etc.      (Under Article 32 of the Constitution of India.)      K.K. Yenugopal,  Shanti Bhushan,  Govindan  Nair,  F.S. Nariman,  V.M.   Tarkunde,  Y.S.   Chitale,  P.P.   Rao,  S. Markandeya,  Mrs.   S.  Markandeya,   D.  Sudhakar  Rao,  K. Ramkumar, Ms.  Lalita Kohli,  B. Kanta Rao, Gururaja Rao, G. Vedantha Rao,  K.K. Lahiri,  R. Karanjawala,  Hardeep  Singh Anand, Mks.  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. Venugopal,  T.V.S.N.   Chari,  Naresh  Mathur,  K.  Rajendra Choudhary, K.  Shivra; Choudhary,  A.S. Namblar,  G.N.  Rao, Attar Singh,  Mrs. Gupta,  B. Parthasarthi, S.Markandeya and Mrs. 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 like wise. 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, 585 the better  health and  medical  facilities  available,  the improved 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 superannuation. In  order to  give effect to their policy of reversal,  i.e..   the  policy   of  reducing   the  are  of superannuation from 58 to 55, the Government amended Rule 56 (8) of  the Fundamental  Rules and Rule 231 of the Hyderabad Civil Services Rules by substituting 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. 1983. The notifications by which these  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 charge of his conditions of service to his detriment after he entered service. m is was followed by the promulgation of  the Andhra  Pradesh Ordinance No. 5 of 1983 regulating the  recruitment and  conditions  of  service  of persons appointed  to public service and posts in connection

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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 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 and shall be deemed always to have been  omitted. Now  immediately after the 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 of  the ordinance,  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 S. 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  all the  writ petitions  were dismissed.  In the meanwhile much 586 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  years.  We  referred  to agitations and  agreements. It  appears that  soon after the reduction of  the age  of superannuation, there was a state- wide agitation  by affected employees and on August 3, 1983, an agreement was arrived at between the Government of Andhra Pradesh and the Action Committee of Employees and Workers in Andhra Pradesh.      Clause (1)  of the  Agreement is  important and  may be usefully extracted. It is as follows:           All provisions  relating to  Ordinance 5  of 1983,           except   those.    relating   to    the   age   of           superannuation, will  be deleted at an early date.           Proviso 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 after  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

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         superannuation.           If the  Supreme Court  upholds the  power  of  the           Government to  reduce the  age  of  superannuation           without  referring   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 587 right of  ’fix the  age of  superannuation’, they  had  also realised   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 upheld 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 pronounced.  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 retrospectively. 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  i.e.  restrospectively. Otherwise the agreement would make no sense. Those attain ng the age  of 55  years before  judgment was  pronounced would just have to walk out while those who did not would stay on. Surely their fate was not to hang on a date.      The Agreement,  however, contained  a  further  curious stipulation that  it was not to be placed before the Supreme Court 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 contemplated  that the  judgment of the Supreme  Court would  be forthcoming very soon. But that was not to be.      There was  considerable discussion  at the  Bar whether the agreement  contemplated and stipulated restoration of 58 years as  the age  of Superannuation  if the  power  of  the Government to reduce the age of superannuation was upheld by the Supreme  Court. The  agreement appears to us to be clear and categoric  and a reference to the pleadings demonstrates that  the  Government  also  never  doubted  the  employees’ interpretation of  agreement. In  Para 2 (h) of the petition in Writ  Petition  No.  3420-26  of  1985,  the  petitioners asserted,           "It  is   pertinent  to  point  out  that  in  the           interregnum  between   the  Writ   Petition  being           admitted in this 588           Hon’ble Court  and the  judgment being delivered a           State wide  agitation took place in Andhra 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  restored  to  58  years.

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         Ultimately, on  3.8.1983, an agreement was arrived           at between  the State  Government and  the  Action           Committee of  the Employees  and workers in Andhra           Pradesh  by   which  it   was  agreed   the  State           Government would  restore the age of retirement to           58 years  if the  Supreme Court  upheld the  State           Government’s  Power   to   reduce   the   age   of           retirement.  The   said  agreement   which  was  a           detailed agreement  entered 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 Committee           represented 39 service organisation."      To this  the answer  of the Government in their counter was:           "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 enhanced  and the  recommendations of  the Pay           Revision Commission  etc. Hence  they  require  no           comments. 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.   NG.  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."      and           "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.           Contrary to the provisions of the 589           agreement the petitioners have chosen to file this           agreement in support of their case and pleaded for           enhancement of the age of retirement. The Government’s  objection was  not to  the  interpretation placed upon  the agreement  by the  parties but to its being brought to the notice of-the Court.      The  Andhra  Pradesh  Legislature  enacted  the  Andhra Pradesh   Public    Employment   (Regulation   of   Age   of Superannuation) Act  No. 23  of 1984 making lt applicable to all persons  appointed  to  public  services  and  posts  in connection with  the affairs  of the state, all officers and other  employees  working  in  any  local  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  whole  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) of  s. 1  stated ’Clause  (i) of  s. 7 shall be  deemed to  have come  into force  on the April 29, 1983. Sections 3 (1) and (2) were as follows:           "3 (1)  Every Government  employee,  not  being  a           workman and  not belonging  to Last  Grade Service           shall retire  E from  service on  the afternoon of           the last  day of the month in which he attains the

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         age of fifty five years.           (2) Every  Government employee not being a workman           but belonging  to the  Last  Grade  Service  shall           retire from  service on  the afternoon of the last           day of  the month  in which  he attains the age of           sixty years.           Explanation II(b)  to s.  3 was  to the  following           affect:           "(b) a Government employee who attained the age cf           superannuation but  who was allowed to continue to           hold the  post beyond  that date,  but virtue of a           stay order  of a  Court, shall  be deemed to  have           ceased to hold the post and relieved of his charge           from the  date  of  the  judgment  dismissing  his           petition, irrespective  of whether  the charge  of           the post  was handed  over or not as prescribed in           any rule  or order  of the Government for the time           being in force. 590 On August  23, 1984,  the Andhra  Pradesh Public  Employment [Regulation of  Age of Superannuation Act No. 23 of 1984 was amended by  the promulgation of Andhra Pradesh Ordinance No. 24 of  1984 providing  that in  s. 3(1)  of the  Act and  in Explanation II  (a), the  words fifty  eight years’ shall be substituted  for  the  words  fifty  five  years.  This  was obviously done  to give effect to the agreement of August 3, 1983 and to fulfil the promise held out therein that the age of Superannuation would be restored to 58 years. Clause 3(1) of the  Ordinance is  the much disputed provision and it has therefore, to be extracted in full. It is as follows:           "3(1) The  provisions of  this Ordinance shall not           apply  to   persons  who   attained  the   age  of           superannuation in  pursuance of  the notifications           issued in  G.O.Ms. No.  36, Finance  and  Planning           (Finance Wing-F.R.I.)  Department, dated  the  8th           February, 1983,  or in pursuance of the provisions           of   the    Andhra   Pradesh   Public   Employment           (Regulation of  Age of  Superannuation) Act, 1984,           as in  force prior  to the  commencement  of  this           Ordinance. Andhra Pradesh  Ordinance No. 24 of 1984 was replaced by Act No.3 of  1985. By  Sec. 2  of the  Amending Act,  the  words ’fifty five  years’ were  substituted by  the  words  ’fifty eight years’  in Sec.  3(1) and  Explanation II  (a) of  the Principal Act.  Section 4  of the Amending Act which is more or less  on the same lines as h Clause 3(1) of the Ordinance says:           "4(1) The  provisions of  section 2  of  this  Act           shall not apply to persons who attained the age of           superannuation in  pursuance of  the notifications           issued in  G.O.Ms. No.  36  Finance  and  Planning           (Finance Wing  F.R.I.) Department,  dated the  8th           February, 1983,  or in pursuance of the provisions           of   the    Andhra   Pradesh   Public   Employment           (Regulation of  Age of  Superannuation) Act, 1984,           as in force prior to the commencement of this Act.      No explanatory  statement accompanying Ordinance to. 23 of 1984  was brought to our notice. The statement of Objects and Reasons  of Act  No. 3 of 1985 was however placed before US but  it is not helpful to ascertain the reasons which led the legislature  to restore  the age of superannuation to 58 years. If  merely states  that the  Government considered it necessary to  raise the  age of superannuation from 55 to 58 years . But we are not 591

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altogether   helpless.   Where   internal   aids   are   not forthcoming, we can always have recourse to external aids to discover the  object of  the legislation.  External aids are not ruled  out. This  is now  a well  settled  principle  of modern statutory  construction. Thus  ’Enacting History’  is relevant: The  enacting history of an Act is the surrounding corpus of public knowledge relative to its introduction into Parliament as  a Bill,  and subsequent progress through, and ultimate passing  by, Parliament.  In particular  it is  the extrinsic material assumed to be within the contemplation of Parliament when  it passed  the Act.  Again  In  the  period immediately following  its enactment,  the history of how an enactment is  understood forms  part  of  the  contemporanea expositio, and may be held to throw light on the legislative intention. The later history may, under the doctrine that an Act is  always  speaking,  indicate  how  the  enactment  is regarded in  the light  of development  from time  to  time. Official   statements    by   the    government   department administering an  Act, or  by any  other authority concerned with the  Act, may  be  taken  into  account  as  persuasive authority on  the meaning  of its provisions. Justice may be blind but  it is  not to  be deaf.  Judges are not to sit in sound proof rooms.      Committee  reports,   Parliamentary   debates,   Policy statements and  public utterances  of official spokesmen are of relevance  in statutory  interpretation. But  ’the comity the courtesy  and respect  that ought to prevail between the two prime  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  require.  No  rule prevents the  court  from  inspecting  in  private  whatever materials it  thinks fit to ensure that it is well informed, whether in  relation to  the case  before it  or  generally. Where these materials constitute publicly available enacting history, the  court takes judicial notice of them. The court has an inherent power to inspect any material brought before it. Erancis  Bennien :  Statutory Interpretation. This is to enable the  court  to  determine  whether  the  material  is relevant to the point of construction in question, and if so whether it  should be  admitted. This  has to be done with a degree of inhibition and an amount of circumspection.      Here,  the   facts  speak   for  themselves.  Res  Ipsa Loquitur. The  history and  the succession  of  events,  the initial lowering of the 592 age of  the superannuation, the agitation consequent upon it and  the  agreement  that  followed  the  agitation  clearly indicate that the object of Ordinance No. 23 of 1984 and Act No. 3  of 1985 was to undo the mischief or the harm that had been done  by the lowering of the age or superannuation from 58 years  to 55  years and to restore the previous position. Quite obviously,  lt was  not a  case of  change  of  social circumstances. It  was a  case of  a change of policy to set right immediately  a recent  wrong  perpetrated  by  a  well intentioned but  perhaps ill-thought  measure. It was not at all  a  case  of  reversal  of  policy  because  of  changed circumstances. A  reference to  the note file which was made available to  us by  the learned  Advocate General of Andhra Pradesh at  our instance  shows that  it was after a careful consideration of  the representations  made by  the  various services associations  in regard  to the  restroation of the

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age of  superannuation  to  58  years  that  the  Government resolved to  restore the  age of superannuation to 58 years, In the  counter, the  Government appeared  to take the stand that  the   Governments  of  the  States  of  Karnataka  and Rajasthan had  raised the  age of superannuation to 58 years and the Government of Andhra Pradesh wanted to fall in line. It was  a wholly inaccurate statement. There is no reference in the  note file or elsewhere, except for the first time in the counter,  to  the  circumstance  that  two  other  State Governments had  raised the  age of  superannuation and  the Andhra Pradesh  Government had  a accepted their wisdom. The statement in the counter must be ignored. A reference to the pleadings is  revealing, if not, startling. In Writ Petition Nos. 3420-3426/85 in paragraph 5, the petitioner averred:      "In fact  Shri N.T.  Rama Rao,  Chief Minister  himself admitted that  he was  misguided  and  misled  by  the  then Finance Minister and the Chief Secretary when his Government took the decision to reduce the age of retirement. His press conference  dated  25.9.1984  was  reported  in  the  Deccan Chronicle as follows:           "Chief Minister N.T. Rama Rao today announced that           his   government   would   retain   the   age   of           superannuation of  the Government  employees at 58           years as  decided by  the short-lived Bhaskara Rao           Ministry.           Briefing newsmen  after the  Cabinet meeting  this           afternoon, Mr.  Rama  Rao  said  the  Cabinet  had           reviewed the  decision of  the previous Government           to raise  the age  of superannuation from 55 years           to 58 with effect from August 23, 1984. 593           The Chief  Minister charged  that Mr.  N. Bhaskara           Rao,  the then Finance Minister and the then Chief           Secretary Mr.  B.N. Raman  had misled him when his           Government  decided   to   reduce   the   age   of           superannuation from 58 to 55. Both have not raised           any objection  to the  proposal.  Despute  knowing           well  that   the   ’unpopular’   have   would   be           detrimental to the Government, they had allowed it           go with the evil intention of discrediting him, he           allegeded.           Mr. Rama Rao said it was not his intention to hurt           the interests of any section of the people and the           Government  employees   constituting  a   sizeable           number who  had voted  his party to power. However           it is  not possible  for the Government to concede           the request  of those who had already retired , he           observed.      The said report has never been denied or resiled by the Chief Minister. In answer,  the averment was not denied. The deponent of the counter affidavit stated:           "I state  with respect  to paragraph:5  that it is           not open  to  the  petitioner  to  rely  on  paper           cuttings in  support of  their  contention  unless           otherwise they are proved apart from the fact that           the statement  in paper  cuttings are  in  no  way           advance the case of the petitioner. This can  hardly be  considered to  be a  denial of what was said in  paragraph 5  of the  petition. We  must  therefore, proceed on the basis that the Chief Minister (Shri N.T. Rama Rao) did  allege that  when the Government took the decision to reduce  the age of superannuation, he was, ’Misguided and misled’ by  his Finance Minister and the Chief Secretary. It may be  a sorry  confession to  make on  the part of a Chief

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Minister,  especially  when  it  was  a  momentous  decision involving the  lives and  future of  thousands of employees. One wonders  how a  decision concerning  the lives  and  the future of  civil servants,  who all their lives in the past, had loyally  served the Government, could have been taken in such a  hasty and haphazard fashion. One would expect such a decision to  be taken  after a  full investigation  into the multitudinous pros  and cons,  after deep  collection of all pertinent data  and after deep consideration of every aspect of the question. But 594 there we  have a  statement attributed to the Chief Minister that he  was ’misled  and misguided’ by the Finance Minister and his  Chief Secretary. Sorry confession, it may be, but a frank and  courageous admission  it  was,  exposing  him  to criticism. It does require a sturdy spirit to own a mistake.      During the  pendency of  the  Writ  Petitions  in  this Court, several  employees of local authorities etc. Obtained orders of  stay from  the High  Court and were continuing in service on  the dates when the judgment of the Supreme Court was pronounced.  After the  pronouncement of the judgment of the Supreme  Court, the  authorities that  be have sought to give effect  to the  provisions of the Act and the Ordinance by seeking  to throw  them out  on the  ground that they had completed 55  years of  age during  the interregnum  between February 28,  1983 and  August 23,  1984 some others who had completed 55  years between February 28, 1983 and August 23, 1984 but  who had not completed 58 years sought re-entry was notwithstanding the  raising of  the age  of  superannuation from 55  years Co  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 removed from  service  or  who  were  denied  re-entry  into service on  the ground  that they had attained the age of 55 years between  February 28,  1983 and  August 23, 1984, have once again invoked the jurisdiction of this Court and sought appropriate  writs   from  this  Court  to  continue  or  to reinstate and continue them in service until they attain the age of  58 years. They are the petitioners in Writ Petitions Nos. 3203,  3413-3419, 3420-3426  etc. etc.  Of  1985.  They sought interim orders from this Court.      On 23.4.85  interim directions  to the following effect were issued by Desai and Khalid, JJ:           (1) From  amongst those  Government  servants  and           servants of  Local and  other authorities governed           by the  decision of  the  Government  of  A.P.  On           reduction of  age of  retirement from service from           58 years  to 55 years, who continued in service or           continued to  hold the  post on  April 1, 1985 for           any reason  including the  grant of interim relief           by Courts and who are removed from that post after           that data  shall be reinducted and put back in the           post from where he/she was removed.           (2)   Those   Government   Servants   and   others           enumerated a  in No.(1)  here and who are today in           service and  are likely  to- be removed on account           of the reduction in 595           age of  superannuation notwithstanding restoration           of   higher  age,  whatever  be  the  case,  shall           continue in service till further orders.           (3)   Those   Government   servants   and   others           enumerated in  No.(1) here  who  were  in  service           prior to  April 1,  1985 and  who are removed from           service on  account of  reduction in age, shall be

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         reinducted in  service, if the posts from each one           was removed  is still vacant or someone is holding           a temporary charge.           (4) Those  directions shall  be  carried  out  and           given effect to within one week from today.           (5)  These   directions  will   also  cover  those           Government servants who are similarly situated but           have not filed the SLPs and WPs.           (6) Government servants referred to in No.(1) will           also comprehend members of State Judicial Service. The  matter   was  mentioned  again  on  two  occasions  for clarification and  the following  orders were  then made  by Tulzapurkar, Desai  and Sen,  JJ. The  order made  on May 6, 1985 said:           We do  not see  any ambiguity in Cl.3 of the order           dated 23rd  April, 1985.  It is directed that Cl.3           or the  order dated  23rd April,  1985  should  be           implemented to  the extent that promotions made to           the posts  which are  held by the officers will be           made under  Rule 37  by temporary appointments and           the  Chief   Secretary  and   other   two   senior           Secretaries will  examine the  question as  to how           many such  vacancies could  be  filed  and  it  is           further directed  that from out of the petitioners           one who  has the longest service will be selected.           The order  will be  carried out  within two  weeks           from today.  This  is  without  prejudice  to  the           vacancy clause.  All these  appointments  will  be           subject to the result of these petitions. The order made on May 7, 1985 said:           "We do  not see  any ambiguity  in clause 3 or the           Order dated  23rd April, 1985. It is directed that           clause 3  of the  order  dated  23rd  April,  1985           should be imple- 596           employees were  moved are  still vacant  or  where           such  post   is  held  temporarily  by  others  on           promotion  under   Rule  37  of  the  A.P.  States           Subordinate service Rules. The Chief Secretary and           two other  Senior  Secretaries  will  examine  the           question as  to how many such posts could be filed           and it  is further  directed that  in cases  where           more than  one person has retired from a post, the           person  having   the  longest  service  should  be           selected. The Order will be carried out within two           weeks from  today. All  these appointments will be           subject to the result of the Petitions. These interim  orders were  made under  the  misapprehension that all  so-called promotions would only be made under Rule 37 whereas  whenever a  promotion  was  made  from  a  lower service to  a higher  service, it was not called a promotion but was styled as an appointment and was made under Rule 10. Since Rule  10 was  not mentioned in the orders, persons who had been ’promoted’ and appointed under Rule 10 claimed that they could not be displaced.  Some others though promoted under Rule 37 claimed that they had in fact been promoted regularly after a proper selection by the  Departmental Promotion  committee but that according to the  practice prevailing  in Andhra Pradesh, their orders of promotion  mentioned that they were prompted temporarily, though in  fact they  had been promoted regularly. Many such persons, claiming  to have  been appointed  under Rule 10 or claiming to have been promoted regularly notwithstanding the mention of  Rule 37,  filed Writ  Petition Nos. 5447-5546 of 1985 etc.  etc. questioning  the orders  of  reversion  with

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which they  were faced  consequent on the interim directions given by  Desai and  Khalid,JJ. During  the  vacation,  R.B. Misra,J. stayed  the  orders  or  reversion  passed  by  the Government in  order to  reinduct the retired employees. The interim orders granted by R.B. Misra,J. appeared to conflict with the  earlier interim orders granted by this Court. When all the interim applications came before us a few days back, we directed that all the Writ petitions may be placed before us for  final disposal  and that  is how the matters are now before us.      Before referring  to the  submissions of the parties on the principal  question of discrimination and arbitrariness, it is  necessary to ascertain the exact factual situation in regard to  certain other  matters, besides those to which we have already  referred. First  in  regard  to  the  question whether the  vacancies arising consequent on the application of the reduced age of superannuation have been filled and if filled, whether they have 597 been filled  on  a  regular  or  temporary  basis?  In  Writ Petition No. A 3170/85, a Deputy Secretary to the Government of Andhra  Pradesh, speaking  for the  government of  Andhra Pradesh swore to a counter-affidavit in May 1985 in which he stated that:           "I state  with respect  to paragraph 8, that it is           not correct  to state that only few vacancies have           been filled  on temporary  basis on  the  specific           condition of  review and  revision on the basis of           outcome of  the judgment  in  the  Writ  Petitions           filed by  the employees  due to  the retirement at           the age of 55 years pending in this Hon’ble Court.           It is  submitted that  it is  wholly untrue to say           that few vacancies have been filled up. Consequent           on the  reduction in the age of superannuation the           Government took every step to see that most of the           vacancies have  been filled  up in accordance with           rules on  regular basis.  It is only in few cases,           temporary promotions  have been  effected  pending           writ petitions.  It is  submitted that  Ann.-I  to           this counter affidavit gives particulars regarding           the vacancies  that arose  due to the reduction in           the  age   of  retirement  on  28.2.1983  and  the           vacancies filled  up and the vacancies existing. m           ere are  very few vacancies in the lower echelons.           I also  submit that the existing few vacancies are           due to  administrative dealy,  or  vacancies  that           arose  latter   after   originally   filling   the           vacancies. In Writ  Petition Nos.  5447-5546/85, there  was a  complete volte face ant the very same Deputy Secretary speaking again for the Government of Andhra Pradesh said:           In so  far as the first point is concerned in none           of the  cases there  were regular  promotions. All           the  promotions  were  officiating/Temporary/adhoc           which would  be clear  from orders  of  promotion,           some  of   which  have   been  produced   by   the           petitioners themselves. The promotions were either           subject to  the result  of the writ petitions then           pending  in   this  Honourable  court  challenging           reduction of  retirement age  from 58 to 55 years,           Or  some  other  proceedings  relating  to  inter-           seniority pending  either in this Honourable Court           or in  the High  Court or  in  the  Administrative           Tribunal,  Or   because   of   the   pendency   of           finalisation of  seniority  lists  and  consequent

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         review   of    promotions    under    the    State           Reorganisation Act. Further the Writ 598           Petitions questioning  the  reduction  of  age  of           retirement from  58 to  55 in G.O.Ms.No. 36, dated           8.2.83 were  heard and  judgment was  reserved  on           27th July,  1983. Since the judgment was reserved,           the judgment  was expected  at any movement. Hence           the     Government      were      making      only           officiating/temporary promotions  under  rule  37.           Under the  circumstances it  was not  possible  to           make regular  appointments/promotions.  Therefore,           the   petitioners   were   rightly   reverted   in           accordance with  the directions  of the Honourable           Court dated  6.5.1985  and  7.5.85.  There  was  /           question of  either  giving  them  any  notice  or           hearing before  the orders  of the  reversion  are           passed, as in terms of Rule 37 (dd), they could be           reverted without any notice or hearing.           "Persons holding  the posts  under Rule 10 have no           right     to      the     posts      and     their           appointments/promotions        were         purely           temporary/adhoc.           "Hence, I  state that  the‘petitioners continue to           be adhoc  promotees under  Rule 37 and not regular           employees as claimed by them.           and:           Admittedly, the  petitioners were  promoted  under           Rule 37  consequent to  the vacancies  which arose           due to  the retirement  of several  persons at the           age of  55 years. The Government never intended to           appoint them  on regular  basis pending  writs and           judgment before  the Supreme  Court. In  case  the           promotions   were    effected   regularly    legal           complications  will   set  in  the  event  of  the           judgment of  the Supreme  Court going  against the           State  Government   deliberately  made   Rule   37           promotions so  that in  the event  of the judgment           going  adversely  against  the  State  Government,           there may  not be any difficulty in reverting Rule           37  promotees   and  reinducting   the   employees           affecting   by   G.O.Ms.No.   36   dated   8.2.83.           Fortunately, the  judgment of  the  Supreme  Court           comes in favour of the State Government. It  is  amazing  that  the  same  Deputy  Secretary  to  the Government, representing  the same  Government, should  have sworn to  two such  contradictory affidavits.  It reveals  a total sense  of irresponsibility  and an utter disregard for veracity. It shows 599 that the  deponent had  signed the  affidavits without  even reading   them or that he signed them to suit the defence to the particular  writ petition  without any regard for truth. In either  case, it is reprehensible and totally unworthy of the spokesman  of a  Government and must unflattering to the Government  on   whose  behalf   he  spoke.  We  would  have contemplated severe action against the dependent, had we not the feeling  that the responsibility for his statements lies with undisclosed  higher echelons  and we  need not  make  a scapegoat of him. In fact, in a case like this involving the entire body  of Government  servants in  Andhra Pradesh,  we would have  expected the  Chief  Secretary  or  a  Principal Secretary to  file the counter. But they have chosen to keep themselves back.      However we  have a duty to discover the truth. We think

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that the truth is what is stated in the counter-affidavit in Writ  Petition   Nos.  5447-5546/85.  The  counter-affidavit itself gives  good reasons  why the  promotions appointments were  made   on  a  temporary  basis  and  the  reasons  are acceptable. The  statements in the counter-affidavit in writ Petition Nos.  5447-5546/85 are supported by the findings of the Committee  which was  appointed by  the government under the interim orders of this Court. The Committee consisted of the Chief  Secretary and  two senior  Secretaries and it was asked to  examine the  question of the availability of posts for reinduction  of retired  employees. The  findings of the Committee were  mentioned in  the counter-affidavit  in Writ Petition Nos. 5447-5546/85 and this is what was said:           "The Committee  constituted under G.O.Ms. No. 205,           dt.9.5.1985 has  completed its  task of  determing           the  number   of  vacancies   for  which   retired           employees can  be reinducted as per the directions           of this  Honourable Court.  Here below is given an           abstract of  the position as emerged. Total number           of persons  retired from  28.2.83 to 23.8.1984 due           to reduction of age of retirement from 58 to 55 is           15,529 of  these people  8.928  are  eligible  for           reinduction as  they  are  below  58  years.  m  e           Committee found  that 2,770  posts are  vacant and           that 1751 persons have to be reverted as they were           holding the  posts on  temporary promotions  under           Rule 37.  Thus, the  total number  of vacancies to           which  retired  persons  could  be  reinducted  as           4,521."      It was  said that  it was  a practice  in the  State of Andhra Pradesh to make even regular appointments and regular promotions 600 under Rule  10 and Rule 37 only and therefore, the mere fact that Rule  10 or  Rule 37  was  mentioned  in  an  order  of appointment or  promotion would  not  necessarily  make  the appointment or  promotion temporary.  Such  appointments  or promotions, if  made after going through the regular process or selection  were to  be  considered  as  regular  and  not temporary notwithstanding the mention of Rule 10 or Rule 37. But here  as pointed out in the counter, there was a special situation immediately  after the  age of  superannuation was reduced, writ  petitions were filed is the Supreme Court and in the  High Court  and there  was considerable agitation by the employees. The entire situation was fluid as it were and there was  good  reason  for  the  Government  to  make  the appointments and promotions on a purely temporary basis, and that was  what they  did. That  the Departmental  Committees recommended the  temporary appointments  and promotions made on  the   recommendation  of   the  Departmental   Promotion Committee. This  is clear from the counter affidavit in Writ Petition on  Nos. 5447-5546/85 where it is stated as follows in paragraph IV-B:           "In certain  cases, the  promotions were  given on           the  basis   of   the   recommendations   of   the           Departmental Promotion Committee but that does not           mean  that  their  promotions  were  regular.  The           Departmental  Promotion   Committee   also   makes           recommendations           for            temporary           appointments/promotions otherwise  it will  offend           Art. 14 and 16 in case all eligible candidates are           not  considered  for  promotion  even  though  the           promotions   is    either   officiating/temporary.           Therefore, the  mere section  by-the  Departmental           Promotion Committee does not make their promotions

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         regular. Promotion  or posting after completion of           training does not make the promotions regular. The           promotion orders of the petitioners promoted under           Rule 37  clearly show  that their  promotions were           purely temporary.      It is  in this  setting and background of facts that we are required  to consider  the submissions  made to  us. The submission made  by Sarvasri  K.K. Venugopal, V. M. Tarkunde and F.S. Nariman who appeared for the employees who attained the age  of 55  years between  28.2.83 and 23.8.84, was that the classification  of these persons as a separate group for the purpose  of excluding  them  from  the  benefit  of  the redressal of  the wrong done to the employees and the relief given to  them by the amending Ordinance and the Act, was an unreasonable classification  having no  nexus whatever  with the object  of the legislation. They urged that every person who was in Government employment on 28.2.83 was hit 601 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 was in fact soon taken there was  no reason  to postpone  effect being given to the reversal  of   policy  to  an  uncertain  date,  namely  the pronouncement of  the judgment  by  the  Supreme  Court  and thereby to exclude from the benefits of the change of policy that group  of persons  who had  the misfortune of attaining the age  of 55  years between  the two  dates.  The  learned counsel pointed  out that the decision to reverse the policy having been  taken, the  uncertain date  of pronouncement of judgment was an irrelevancy in fixing the date from which to give effect to the policy. In the event, the government also did not  await the  pronouncement of  the judgment  but came forward first  with the  Ordinance and  then with  the  Act. Therefore the  learned counsel  urged, by merely giving them the appellation  ’retirees’ as  the Government  had done  in this case,  the group of persons who had attained the age of 55 years  before the  delayed date  of giving  effect to the reversal of  policy could  not be discriminated against. The question according  to the  learned counsel,  was not one of retrospectivity at  all,  but  one  whether  when  making  a legislation to right a wrong or remedy a mischief a group of persons who  had also been wronged and suffered the mischief could  be   excluded  by   the  mere  mechanics  of  delayed legislation. Shri  Venugopal further  submitted that several persons who  were continuing  in service by virtue of orders of stay 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. This  he urged was  patently unreasonable.  On the  other hand it was urged by the learned Advocate General of Andhra Pradesh, who appeared for  the government  of Andhra Pradesh, Shri Shanti Bhushan, Shri  Govindan Nair, Shri Parmeshwar Rao, Shri H.S. Guru Raja  Rao and  Shri  Kanta  Rao,  learned  counsel  who appeared for the officers who were promoted in the vacancies created by  the retirement of those who had attained the age of 55  years, that  there was no discrimination whatever and that what  the Government  had done  was merely  to classify those employees  who had  ceased to  be in  service  or  who should have  ceased to be in service and refuse to apply the increased age  of superannuation  to them.  It was said that having gone  out of  service, there was no question of their being eligible  to the  increased age  of superannuation and therefore, the  classification was  perfectly reasonable. It

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was also  urged that  appointments and  promotions were made subsequent to the reduction of the age of 602 superannuation on  regular basis  and those appointments and promotions  could  not  be  disturbed.  We  were  told  that interference  by   us  at   this   stage   would   lead   to administrative disorder,  disaster and  chaos. We would like to mention  here that the learned Advocate General of Andhra Pradesh as well as the other learned counsel who appeared on either side  presented their  respective points of view very fairly and with moderation. The task of the learned Advocate General was  particularly difficult  as he stood between the devil and the deep sea as it were.      A situation  such  as  the  one  before  us  had  never presented itself  to the  court previously. Make this case a precedent for  justice say  one side;  let this  not be  the first say  the other.  We have  had cases  where the  age of superannuation had  been raised from 55 to 58 years; we have had  cases   where  having   earlier  raised   the  age   of superannuation from 55 to 58 years, there was later a change of policy  and the  age of  superannuation  was  once  again reduced to  55 years. But this is the first occasion-neither our researches  nor those  of the  learned counsel have been able to  trace another  case of this kind - where the age of superannuation was  first raised  from 55 to 58 years, there was then  a change  of policy a few years later reducing the age of  superannuation from 58 to 55 years and finally there was again,  within a  few months,  a reversion to the higher age of superannuation of 58 Years. The cases  of Bishnu Narain Mishra v. State of Uttar Pradesh Ors. [1965]  1 S.C.R.  693 and K. Nagaraj & Ors. v. State of Andhra Pradesh  AIR 1985  S.C. 551,  belong  to  the  second category of  cases. In  Bishnu Narain  Mishra’s case,  by  a notification dated November 27, 1957 the Government of Uttar Pradesh raised  the age  of superannuation  from  55  to  58 years. On  may 25,  1961 the Government reduced the age once against to  55 years,  and further  laid down that those who had continued  beyond the  age of  55  years  owing  to  the earlier notification  would be  deemed to have been retained in service  beyond the  age of  superannuation and  would be compulsorily retired on December 31, 1961. The appellant who attained the  age of  55 years  on December 11, 1960 and was continued in  service was  one of  those who  was retired on December 31,  1961. He  questioned the change in the rule of retirement on  the ground  that it  was hit by Art. 14 in as much as it resulted in inequality between public servants in the matter  of retirement.  The argument  was that  when all those who  had passed  55 years  were  asked  to  retire  on December 31,  1960 some had just completed 55, some were 56, some  were   57  and   so  on   and,  therefore,  there  was discrimination. Dealing  with  this  question,  Wanchoo,  J. speaking for the Court observed: 603           "The last argument that has been urged is that the           new rule  is discriminatory  as  different  public           servants have  in effect been retired at different           ages. We  see no  force in this contention either,           retirement namely December 31, 1961 in the case of           all  public   servants  and   fixes  the   age  of           retirement at 55 years. There is no discrimination           in the  rule itself.  It is however urged that the           second notification  by which  all public servants           above the  age of 55 years were required to retire           on  December   31,  1961   except  those  few  who           completed the age of 55 years between May 25, 1961

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         and December  31, 1961  shows that  various public           servants were retired at various ages ranging from           55 years  and one  day to  up to  58  years.  That           certainly is  the effect  of the second order. But           it is  remarkable that  the order  also fixed  the           same date  of retirement  namely December 31, 1961           in  the  case  of  all  public  servants  who  had           completed the  age of  55 years but not the age of           58 years before December 31, 1961. In this respect           also, therefore,  there was  no discrimination and           all public  servants who  had completed the age of           55 years  which was being introduced as the age of           superannuation by the new rule by way of reduction           were ordered  to retire  on the  same date, namely           December 31,  1961. The result of this seems to be           that  the  affected  public  servants  retired  at           different ages.  Out this  was  not  because  they           retired  at   different  ages  but  because  their           services were retained for different periods after           the fifty-five.  Now it  cannot be  urged that  if           Government decides  to retain the services of some           public servants  after the E‘ age of retirement it           must retain  every public  servant  for  the  same           length of  time. The  retention of public servants           after the  period of retirement depends upon their           efficiency and  the exigencies  of public service,           and in  the present  case the  difference  in  the           period of  retention  has  arisen  on  account  of           exigencies of  public service.  We are, therefore,           of opinion that the second notification of May 25,           1961  on   which  reliance   is  placed  to  prove           discrimination is  really not  discriminatory, for           it has treated all public servants alike and fixed           December 31,  1961 as  the date  of retirement for           those who  had completed 55 years but not 58 years           up to  December 31, 1961. The challenge therefore,           to the  two notifications  on the basis of Art. 14           must fail." 604      The situation  which was  considered in Bishnu Narain’s case was  exactly the  identical situation which obtained on February 28,  1983 in  the present  case and  precisely  the situation which was considered by the judgment pronounced on January 18,  1985 and  which is reported in A.I.R. 1985 S.C. 551 as  K. Nagaraj  v. State  of Andhra  Pradesh,  the  very judgment the  delay in pronouncing which is said to have led to this  confusion. Neither  in Bishnu  Narain Mishra’s case nor in Nagaraa’s case had the court occasion to consider the further step  that had  been  taken  in  the  present  case, namely, once  again raising the age of super annuation to 58 years and  the exclusion  of a  class of  persons  from  its benefit. Both the case are therefore plainly distinguishable and are of no assistance to us in solving the problem before us.      Another case  on  which  reliance  was  palced  by  the learned  counsel  appearing  for  the  respondents  in  Writ Petition Nos.  3203, 3413-3419,  3420-3426 etc.etc.  Of 1985 was State  of Assam v. Padma Ram Borah AIR 1965 S.C. 473. In that case  a Government  servant who  was due to retire from service on  and from  January 1,  1961, was  suspended  from service  on   December  22,  1960,  pending  a  departmental inquiry. His services were extended till March 31, 1961. The departmental inquiry  was, however,  not concluded  even  by then. So  on May  9, 1961,  the Government  passed an  order extending his  services for a period of 3 months with effect

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from April  1, 1961. This Court held that the government had no jurisdiction  to  extend  the  service  of  a  Government servant, after  he had  retired from service; merely for the purpose of  continuing the  departmental inquiry. Rule 56 of the Departmental  rules did  not authorise such a course. It is difficult  to see  how this  case can possibly assist the respondents in  Writ Petitions  Nos. 3203,  3413-3419, 3420- 3426 etc.  etc. Of  1985. It  is one  thing to  say that the Executive Government has no power to pass an order 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  classification  must pass the  dual test  of being  reasonable and related to the object of  the legislation,  besides not being arbitrary. It is not open to the State to make an arbitrary classification first by  making the  date dependent  on an  uncertain event namely, the date of pronouncement of judgment by the Supreme Court and next by making a legislation excluding persons who had attained the age of 55 years before the legis 605 lation  took   effect  though  the  legislation  itself  was designed  to  undo  the  wrong  already  done  to  the  very Government employees.  Some  other  cases  were  also  cited before us  to illustrate  the point  that it was open to the Legislature and the Executive to choose a ’cut-off’ date for bringing into force laws such as Land Reform Laws etc. It is true that  whenever a  law is  made or whenever an action is taken, it  has to  be with effect from a certain date but it does not  necessarily follow  that the choice of the date of not open  to scrutiny  at all.  If the choice of the date is made burdensome  to some of those, the wrong done to whom is sought to be rectified by the law it would certainly be open to the  Court to  examine the choice of the date to find out wether it has resulted in any discrimination.      We  think   that  the  one  case  which  is  really  of assistance to  us in  this matter  is the recent decision of the Constitution  Bench in  D.S. Nakara  v. Union  of  India [1983] 2 SCR 165. We propose not merely to quote extensively from NaKara’s  case, not  merely  to  adopt  the  principles therein laid  down but  also to  employ the  very techniques applied there to solve the problem. The question arose there whether, for  the purpose  of application of the liberalised pension rules, the Government of India could stipulate March 31, 1979  as the date for dividing Government employees into two classes: one class who had retired before March 31, 1979 who would not be entitled to the benefits of the liberalised pension rules  and the  other class  who retired after March 31, 1979  who  would  be  entitled  to  such  benefits.  The submission was  that the  differential treatment accorded to those who  had retired  prior  to  the  specified  date  was voilative of Art. 14 as the choice of the date was arbitrary and the  classification based on the fortuitous circumstance of retirement-  before or  subsequent to  the specified date was  invalid.   This  submission   was   accepted   by   the Constitution  Bench.  Justice  D.A.  Desai  speaking  for  a unanimous Court,  considered the question at great length in all its  implications. First  considering the  scope of Art. 14, it was observed:           "The decisions clearly lay down that though Art.14           forbids class  legislation,  it  does  not  forbid           reasonable  classification   for  the  purpose  of           legislation. In order, however to pass the test of

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         permissible classification  two conditions must be           fulfilled, viz.  (i) that  the classification must           he founded  on an  intelligible differentia  which           distinguishes persons or things that are grouped 606           together from  those that  are  left  out  of  the           group; and  (ii)  that  differentia  must  have  a           rational relation  to the  objects  sought  to  be           achieved by the statute in question The other fact           of Art.14  which must  be remembered  is  that  it           eschews arbitrariness in any form. Article 14 has,           therefore, not  to  be  held  identical  with  the           doctrine of classification.           Thereafter the Court posed the question:           "  As   a  corollary   to  this  well  established           proposition, the  next question  is, on  whom  the           burden  lies   to  affirmatively   establish   the           rational principle  on which the classification is           founded correlated  to the  object  sought  to  be           achieved?"           The question was answered and it was said:           "The State, therefore, would have to affirmatively           satisfy the  Court that  the twin  tests have been           satisfied. It  can only  be satisfied if the State           establishes not  only the  rational  principle  on           which classification  is founded  but correlate it           to objects the sought to be achieved."      The submission  made by the learned Attorney-General on behalf of the Union of India was summarised:           "Thus according to the respondents, pensioners who           retire from  Central Government  service  and  are           governed by  the relevant pension rules all do not           form a  class but pensioners who retire prior to a           certain date  and those who retire subsequent to a           certain date  form distinct  and separate classes.           It may  be made  clear that the date of retirement           of each individual pensioner is not suggested as a           criterion for classification as that would lead to           an absurd  result, because  in  that  event  every           pensioner relevant  to his date of retirement will           form a  class unto  himself. What  is suggested is           that when  a pension  scheme undergoes  a revision           and is enforced effective from a certain date, the           date so  specified becomes  a sort  of rubicon and           those who retire prior to that date from one class           and those who retire on a subse- 607           quent date  form a distinct and separate class and           no  one can cross the Rubicon. The Court then proceeded to consider the question: what is a pension?  and  why  a  liberalised  pension  schemes?  After answering these  questions the court referred to some of the very arguments  now advanced  before us  that the date is an integral part  of the  scheme and  so not severable from the scheme  at   all  and   that  the  Court  should  not  usurp legislative  functions.   The  learned   Attorney  General’s argument on these questions was:           "The Learned  Attorney-General contended  that the           scheme is  one whole  and  that  the  date  is  an           integral part  of the  scheme and  the  Government           would have never enforced the scheme devoid of the           date and the date is not severable from the scheme           as a whole. Contended the learned Attorney-General           that the  Court does  not  take  upon  itself  the           function of  legislation for  persons,  things  or

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         situations omitted by the legislature. It was said           that when  the legislature  has expressly  defined           the class  with clarify and precision to which the           legislation  applies,  it  would  be  outside  the           judicial function  to enlarge  the class and to do           so is  not to  interpret but to legislate which is           the forbidden  field. Alternatively  it  was  also           contended that where a larger class comprising two           smaller classes  is covered  by a  legislation  of           which  one   part  is  constitutional,  the  Court           examines   whether   the   legislation   must   be           incalidated as  a whole  or only in respect of the           unconstitutional  part.  It  was  also  said  that           severance always cuts down the scope of legisation           but can  never enlarge  it and in the present case           the scheme as it stands would not cover pensioners           such as  the petitioners  and if  by severance  an           attempt is  made to  include them in the scheme it           is not  cutting down  the class  or the  scope but           enlarge  the   ambit  of   the  scheme   which  is           impermissible   even   under   the   doctrine   of           severability.  In   this  context  it  was  lastly           submitted that there is not a single case in India           or elsewhere  where the  Court has  included  some           category within  the scope  of provisions of a law           to maintain its constitutionality."      Proceeding them  to meet  the submission of the learned Attorney General, Desai J. said, 608           "If it appears to be undisputable as it does to us           that the  pensioners for  the purpose  of  pension           benefits form  a class  would its  upward revision           permit  a  homogeneous  class  to  be  divided  by           arbitrarily   fixing   an   eligibility   criteria           unrelated to  purpose of  revision and  would such           classification  be   founded  on   some   rational           principle. The  classification has to be based, as           is well  settled, on  some rational  principle and           the rational  principle must  have  nexus  to  the           objects sought to be achieved. We have set out the           objects underlying  the payment of pension. If the           State considered  it necessary  to liberalise  the           pension scheme,  we  find  no  rational  principle           behind it  for granting  these  benefits  only  to           those  who   retired  subsequent   to  that   date           simultaneously  denying  the  same  to  those  who           retired prior  to that date. If the liberalisation           was considered  necessary  for  augmenting  social           security in  old age  to government  servants then           those who retired earlier cannot be worst off than           those who  retire later.  Therefore, this division           which classified  pensioners into  two classes  is           not based  on any  rational principle  and if  the           rational  principle   is  the   one  of   dividing           pensioners with a view to giving something more to           persons other  wise equally  placed  it  would  be           discriminatory. To  illustrate take  two  persons,           one retired  just a  day prior  and another  a day           just succeeding  the specified  date. Both were in           the same pay bracket the average emolument was the           same and  both had put in equal number of years of           service. How  does a  fortuitous  circumstance  of           retiring a  day earlier or a day later will permit           totally  unequal   treatment  in   the  matter  of           pension. One  retiring a  day earlier will have to

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         be subject  to  ceiling  of  Rs.  8,100  p.a.  and           average emolument  to be  worked out on 36 months’           salary while  the other will have a ceiling of Rs.           12,000 p.a. and average emolument will be computed           on the  basis of  last  ten  months  average.  The           Artificial  division   stares  into  face  and  is           unrelated to any principle and whatever principle,           if there  be any,  has absolutely  no nexus to the           objects sought  to be achieved by liberalising the           pension scheme.  In fact  this arbitrary  division           has not  only no  nexus to the liberalised pension           scheme but  it  is  counter  productive  and  runs           counter to the whole gamut of pension 609           scheme. The  equal treatment guaranteed in Art. 14           is   wholly violated inasmuch as the pension rules           being statutory  in character, since the specified           date,   the    rules   accord   differential   and           discriminatory treatment  to equals  in the matter           of commutation  of pension.  A 48 hours difference           in matter  of retirement  would have  a  traumatic           effect.  Division   is  thus  both  arbitrary  and           unprincipled. Therefore  the  classification  does           not stand the test of Art. 14." The Court  then asked  itself the question: By our approach, are we  making the  scheme retroactive.  The answer  was  an emphatic ’No’. They said,           "In other  words, benefit  of revised scale is not           limited to  those who  enter service subsequent to           the date  fixed for introducing revised scales but           the benefit  is extended  to all  those in service           prior to  that date. This is just and fair. Now if           pension as  we view it, is some kind of retirement           wages for  past service, can it be denied to those           who retired  earlier, revised  retirement benefits           being available to future retires only. Therefore,           there is  no substance  in the contention that the           court by  its approach  would be making the scheme           retroactive, because  it is  implicit in theory of           wages. The Court finally considered the favourite argument advanced against what  some of  the Counsel  who appeared  before  us described as  judical ’tinkering’  with legislative  policy. The Court  took the  view that the State cannot say ’Take it or leave  it’. If  there are  words in a statute which bring about discrimination, those words can be severed. They said,           "There is  nothing inmutable about the choosing of           an event  as an eligibility criteria subsequent to           a specified  date. If the event is certain but its           occurrence at a point of time is considered wholly           irrelevant  and  arbitrarily  selected  having  no           rationale  for   selecting  it   and   having   an           undesirable effect  of dividing  homogeneous class           and of  introducing the  discrimination, the  same           can  be   easily  severed  and  set  aside.  While           examining the  case under Art. 14, the approach is           not :  ’either take  it or leave it’, the approach           is removal of arbitrariness 610           and if  that can  be brought about by severing the           mischievous portion  the ourt  ought to remove the           discriminatory  part   retaining  the   beneficial           portion.  The  pensioners  do  not  challenge  the           liberalised pension  scheme. They seek the benefit           of it. Their grievance is of the denial to them of

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         the same  by arbitrary  introduction of  words  of           limitation and  we find  no difficulty in severing           and  quashing  the  same.  This  approach  can  be           legitimised on  the ground  that every  Government           servant retires.  State grants  upward revision of           pension undoubtedly from a date. Event has occured           revision has  been earned. Date is merely to avoid           payment  of  arrears  which  may  impose  a  heavy           burden. If  the date  is wholly  removed,  revised           pensions will have to be paid from the actual date           of  -   retirement  of  each  pensioner.  That  is           impermissible. The  State cannot  be burdened with           arrears commencing  from the date of retirement of           each pensioner.  But effective  from the specified           date future  pension of earlier retired Government           servants can  be computed  and paid on the analogy           of  fitments   in  revised   pay-scales   becoming           prospectively   operative.    That   removes   the           nefarious unconstitutional  part and  retains  the           beneficial portion.  It does  not adversely affect           future  pensioners   and  their  presence  in  the           petitions becomes irrelevant. out before we do so,           we  must   look  into  the  reasons  assigned  for           eligibility criteria,  namely, ’in  service on the           specified date and retiring after that date’." The learned  judges then  expressed their  disinclination to share the  fear expressed  by the  learned Attorney, General that the  Parliament would  not have  enacted the measure if the unconstitutional  part was  struck down  and added  "Our approach may  have  a  parliamentary  flavour  to  sensitive noses. Dealing  with the  question of  frame of  relief, the Court struck  down as  unconstitutional the  words, that  in respect of  the Government  servants who  were in service on the 31st  March, 1979  and retiring from service on or after that date  and the  words  the  new  rates  of  pension  are effective from 1st April, 1979 and will be applicable to all service officers who became/become non-effective on or after that date  in the impugned memoranda, but specified that the date mentioned  therein will  be relevant  as being one from which the  liberalised pension  scheme becomes  operative to all pensioners  governed by  1972 Rules  irrespective of the date of retirement." 611 It was  declared all  pensioners governed  by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed   under the  liberalised pension  scheme  from  the specified date, irrespective or the date of retirement."      In the  course of our narration, we have already stated our conclusions  on several  of the questions at issue, both factual and  legal. The final situation that emerges is that almost immediately  after  the  age  of  superannuation  was reduced from  58  to  55  years,  it  was  realised  by  the Government of  Andhra Pradesh  that they had taken a step in the  wrong  direction  and  that  serious  wrong  and  grave injustice had  been done  to their employees. A decision was very soon  taken to  redress  the  wrong  by  reversing  the decision but an unfortunate rider was added that they should wait till  the pronouncement  of the judgment of the Supreme Court, which  was perhaps expected to be pronounced shortly. As the  judgment was  not pronounced  for  long,  it  became imperative for the Government to implement their decision of their own accord and so they passed Ordinance No. 24 of 1984 and Act  No. 3  of 1985,  amending Act  No. 23  of  1984  by substituting  58   years  for  55  years.  While  doing  80, unfortunately again,  those that  had suffered must by being

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compelled to  retire between 28.2.83 and 23.8.84 were denied the benefit  of the  legislation by cl.3(1) of the Ordinance and Sec.  4(1) of  Act No.3  of 1985.  Now if  all  effected employees hit  by the reduction of the age of superannuation formed a  class and no sooner than the age of superannuation was reduced,  it was  realised that  injustice had been done and it  was decided  that steps should be taken to undo what had been done, there was no reason to pick up out a class of persons who deserved the same treatment and exclude from the benefits of  the beneficent treatment by classifying them as a separate  group merely  because of the delay in taking the remedial action  already decided  upon. We do not doubt that the Judge’s  friend and  counsellor, ’the  common  man’,  if asked, will  unhesitatingly respond that it would be plainly unfair to  make any  such classification.  The common  sense response  that   may  be   expected  from  the  common  man, untramelled by  legal lore  and learning, should always help the judge  in deciding  questions of fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the action of the Government  and the  provisions of  the legislation were plainly  arbitrary  and  discriminatory.  The  principle  of Nakara  clearly   applies.  The   diversion  of   Government employees into  two classes,  those who had already attained the age  of 55  on 28.2.83 and those who attained the age of 55 on  28.2.83 and  23.8.84 on the one hand, and the rest on the other 612 and denying  the benefit of the higher age of superannuation to the  former class  is as  arbitrary as  the  division  of Government employees  entitled to pension in the past and in the future into two classes, that is, those that had retired prior to  a specified  date and  those that retired or would retire after  the specified  date and confining the benefits of  the   new  pension  rules  to  the  latter  class  only. Legislations to  remedy wrongs  ought not  to  exclude  from their purview  persons a  few of  the wronged persons unless the situation  and the  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 to be remedied. We do not find  that there  is any 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 thought  to be inequitable and sought to be remedied. As  observed in Nakara, the burden of establishing the reasonableness  of a  classification and  its nexus with the object  of the  legislation is  on the  State. Though no calamitous consequences were mentioned in any of the counter affidavits, one  of the submissions strenuously urged before us by the learned Advocate-General of Andhra Pradesh and the several other  counsel who followed him was the oft-repeated and now  familiar argument of ’administrative chaos’. It was said  that   there  would   be  considerable  chaos  in  the administration if  those who  had already  retired  are  now directed to be reinducted into service.      We  are  afraid  we  are  unable  to  agree  with  this submission. Those  that  have  stirred-up  a  hornet’s  nest cannot  complain   of  being   stung.  The   argument  about administrative chaos  has been well met by Lord Denning M.R. in Bredburry  & Ors.  v. London  Borough of Enfield [1957] 3 All  E.R.   434,  where   the  Master   of  Rolls   in   his characteristic and forceful way observed:           "It has  been suggested  by  the  Chief  education           officer that,  if an  injunction is granted, chaos           will supervene.  All the  arrangements  have  been

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         made for  the next term, the teachers appointed to           the new comprehensive schools, the pupils allotted           their places,  and 80  forth. It  would be next to           impossible,  he   says,  to   reverse  all   these           arrangements without  complete chaos and demage to           teachers, pupils and public. I must say this: if a           local authority  does not  fulfil the requirements           of the  law, this  court will  see  that  it  does           fulfil them. It will not listen 613           readily to  suggestions Of  chaos . The department           of education  and the  council are  subject to the           rule of  law and  must comply  with it,  just like           everyone else.  Even if chaos should result, still           the law  must be  obeyed; but  I do not think that           chaos will  result. The evidence convinces me that           the chaos" is much over-stated.................. I           see no  reason why  the  position  should  not  be           restored, so  that the  eight schools retain their           previous    character    until    the    statutory           requirements are  fulfilled. I  can well  see that           there may  be a considerable upset for a number of           people, but  I think  it  far  more  important  to           unphold the  rule of law. Parliament has laid down           these  requirements  so  as  to  ensure  that  the           electors can  make their  objections and have them           properly considered. We must see that their rights           are upheld."      In the  present case  too, we  think that  the case  of chaos is  much overstated.  The affidavits  do not  disclose what  disastrous   consequences,  insoluble   problems   and unsurmountable difficulties  will follow  and how chaos will inevitably result.  True quite  a large  number of employees who have  been promoted  will have to be reverted, but their promotions and  promotional - appointments are all temporary (and, we  take care  to add here it would make no difference even if a few were regularly promoted) and it is not e as if they lose  for ever  their  promotional  opportunities.  The promotional opportunities  are merely postponed to the dates on which  they would  be entitled to be promoted had not the fundamental rules  and the  Hyderabad Civil  Services, Rules been amended  and Act  No. 23  of 1984  passed. What has now happened  18  that  these  persons  have  secured  a  double advantage. First,  by the  initial reduction  of the  age of superannuation, they  obtain-  ed  early  and  unanticipated promotion, that  is to  say, promotion  ahead of  the normal date on  which they  would have otherwise been promoted; and second their  tenure in the promoted post was increased by a further three  years as  a result of the subsequent increase of the  age of  superannuation. Having  secured this  double advantage they  naturally desire  to stick  to them and talk glibly of  hardship and inconvenience. On the other hand, it would be a great injustice to deny justice to those who have suffered  injustice   must  merely   because  it  may  cause inconvenience to  the administration. We are governed by the Constitution and  constitutional rights  have to  be upheld. Surely  the   Constitution   must   take   precedence   over convenience and a judge may not turn a bureaucrat. We do not mean to suggest that 614 creation of  a chaotic  State of  administration  is  not  a circumstance to  be taken  into account.  It may be possible that  in   a  given   set   of   circumstances,   portentous administrative   complexity    may    itself    justify    a classification. But,  there must  be sufficient  evidence of

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that -  how the  circumstances will  lead to  chaos. Ups and downs of career bureaucrats do not by themselves  justify  such a  classification. It  may however be of some consequence in  the matter  of granting relief. For instance there would be really no point in reinducting an employee if he has but a  nth or two to go to attain the age of 58 years and to retire. Reinduction of such a person is not likely to be of  any use  to the  administration  and  may  indeed  be detrimental to  the public  interest.  It  is  bound  to  be wasteful. In such cases as well as in cases where they can’t be reinducted  because they  have already completed 58 years by now,  they cannot  obviously be reinducted. So other ways of compensating them must be found. The obvious course is to compensate them  monetarily. In  Industrial Law  we do award back and future wages on quite a large scale and there is no reason why  we cannot adopt the same principle here. If as a rule private  employers in  such situations are asked to pay backwages, we  see no  impediment in doing 80 in the case of those that  are expected  to be  model  employers  i.e.  the Government, public corporations and local authorities.      An argument  which requires to be dealt with is that it is not  open to  the Court  to  give  retrospectively  to  a legislation to  which the  legislature plainly and expressly refused to  give retrospectivity. As pointed out in NaKara’s case. the question is not one of retrospectivity at all. The circumstances that the relief given by Ordinance No.24 of 84 and Act  No.3 of  1985 is  not extended  to  those  who  had attained the age of 55 years by February 28, 1983 or between 28.2.83 and 23.8.84, has the effect of limiting the field of operation of  the Ordinance  and the  Act and  introducing a classification which  in order to be sustained must be shown to be  reasonable and  to have  a nexus  to the object to be achieved besides  not being arbitrary. While it is a general rule   of   law   that   statutes   are   not   to   operate retrospectively, they  may 80  operate by express enactment, by necessary  implication from the language implied or where the statute  is explanatory  or  declaratory  or  where  the statute is  passed for  the purpose of protecting the public against some  evil or  abuse or  where the  statute engrafts itself upon  existing situations  etc. etc.  But it would be incorrect to call a statute ’retrospective’, "because a part of the requisites for its 615 action is  drawn from  a time  antecedent to  its passing  . (Vide   R.V. St.  Mary, Whitechape1  (Inhabitants) [1842] 12 Q.B. 120).  We must  further remember,  quite apart from any question of  retrospectivity, that,  unlike  in  the  United Kingdom here  in India  we have a written Constitution which confers justificiable  fundamental rights  and so  the  very refusal to  make an Act retrospective or the non-application of the Act with 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-retroactivity   or   non-application   clause,   as offending the  fundamental right  to equality before the law and the  equal protection of the laws. That is the situation that we have here.      We may  now refer to two arguments which were mentioned in passing  but were  not pursued. The first was that a writ petition similar to Writ Petition Nos. 3420-3426/83 etc. had been filed  earlier and  had been  dismissed in  limine by a Bench of  this Court.  We do  not see  how the  dismissal in limine of  such a writ petition can possibly bar the present writ petitions.  Such a  dismissal in limine may inhibit our discretion but  not our  jurisdiction. So the objection such

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as it  was, was  not pursued  further. So  also  the  second objection which  related to  the nonjoinder  of all affected parties to  the litigation. We are quite satisfied that even if some  individual affected parties have not been impleaded before us,  their interests  are identical  with those  and, have been  sufficiently and  well represented.  Further, the relief claimed  in Writ petition Nos. 3420-3426 of 1983 etc. is of  a general nature and claimed against the State and no particular relief  is claimed  against any individual party. We do not think that the more failure to impead all affected parties is  a bar  to the  maintainability  of  the  present petitions in  the special circumstances of these cases where the actions are really between two ’warning groups’.      Finally we  come to  the question  of the  relief to be granted. We  find that  C1.3(1) of Ordinance No.24 of 84 and Sec.4 (1)  of Act  No. 3  of 1985  may easily  be brought to conform to  the requirements  of Art. 14 of the Constitution by striking  down or  omitting the  naughty word  ’not’ from those provisions. We may possibly achieve the same object by striking down  the whole  of c1.3(1)  of the  Ordinance  and Sec.4(1) of  the Act but then the question may arise whether the rest  of the  Act would  be sufficient to bring in these who have been excluded. We think that the safer course would be to strike down the offending word 616 ’not’ from  these provisions.  That we  have such  power  is clearly laid  down in Nakara’s case where the court directed the deletion  of some  words from  the offending  clause and directed it  to be read without those words. To make matters clear and  to put them beyond dispute, we give the following directions in  exercise of  our powers under Art. 32 and 142 of the Constitution:           "1.  All   employees  of  the  Government,  public           corporations  and   local  authorities,  who  were           retired from  service on  the ground that they had           attained the age of 55 years by 28.2.85 or between           28.2.83  and   23.8.84,  shall  be  reinstated  in           service provided  they would not be completing the           age of 58 years on or before 31.10.1985.           2. All  employees who  were compelled to retire on           February 28,  1983 and  between February  28, 1983           and August  23, 1984  and who are not eligible for           reinstatement under  the first  clause,  shall  be           entitled to  be paid  compensation  equal  to  the           total emoluments  which they  would have received,           had they been in ser vice, until they attained the           age of  58 years,  less any amount they might have           received ex-gratia  or by  way of  pension etc. Or           under the  Interim orders of this Court. They will           be entitled to consequential retiral benefits.           3.  Such   of  the  employees  as  have  not  been           compelled to  retire by  virtue of  orders of stay           obtained from the High Court or the Administrative           Tribunal, or  who have actually been reinstated in           service pursuant  to interim orders of this Court,           shall be allowed to continue in service until they           attain the higher age of superannuation.           4. The  reinduction of  those employees  that have           been compelled  to retire previously will put them           back as  regards their  seniority in precisely the           same position which they occupied before they were           retired from service. They will be entitled to all           further consequential benefits.           5. The  employees who  were retired  and  who  are           reinducted will  be entitled to be compensated for

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         the period  during which  they were out of service           in the same manner as mentioned in clause (2). 617           6. 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 them in the case of all or           some or  any of the employees, as the case may be,           provided the  employees are  paid the compensation           as in the case of those covered by (2) and (5).           7. All  interim orders  are vacated and subject to           these directions, the Government is free to revert           persons promoted or appointed to the posts held by           persons who  were retired  on having  attained the           age of  55 years  by 28.2.1983  or between 28.2.83           and 23.8.84  to  the  posts  which  they  held  on           February 29,  1983 or  on the  dates  previous  to           their promotion  or appointment provided that they           need not  be so  reverted, if they would otherwise           be entitled  to be  promoted or  appointed even if           the  other   employees  had   not   been   retired           consequent  on   the  lowering   of  the   age  of           superannuation.           8.  The   Government  shall   be  free  to  create           supernumerary  posts  wherever  they  consider  it           necessary so to do.           9. All  payment of  compensation to  be  made  and           completed before  December 31,  1985. If  for  any           reason the  Government finds  itself unable to pay           the entire  amount at  one time  within  the  time           fixed by  us, the Government will be at liberty to           pay the  amount in  not more than four instalments           within the  time stipulated  by us. The Government           will also  have the  liberty to  supply to  us for           extension  of  time,  if  so  advised.  Where  the           employees  are   awarded   compensation   by   the           Government,  such   employees  may  apply  to  the           concerned  Income-tax  Officer  for  relief  under           Section 89  of the  Income-tax Act  read with Rule           21-A  of   the  Income-tax  Rules  and  Income-tax           Officer  concerned   will  grant  the  appropriate           relief."      With these  directions, Writ  Petitions Nos. 3420-26 of 1985 etc.  are allowed  with costs  and Writ  Petitions Nos. 5447-5546 of  1985 etc.  are dismissed  but in  the  special circumstances without any order as to costs. 618      BALAKRISHNA ERADI,  J. While respectfully agreeing with the judgment prepared by my learned Brother Reddy, J. I have thought it fit to add a few words of my own since I consider it  necessary   to  make   it  absolutely   clear  that  the conclusions reached  by us in these cases are based entirely on the  special facts  and  circumstances  constituting  the legislative history of the impugned Andhra Pradesh Ordinance No.24 of  1984 and  Act 3 of 1985 which have been set out in extenso in the judgment of Reddy,J.      We are  not  to  be  understood  as  laying  down  that whenever the  age of  superannuation of Government employees or of  employees of  local authorities etc. is enhanced, the benefit of such enhancement should be extended not merely to persons in  service on  the date  on  which  the  change  is effected but  also to  persons who have already retired from service prior  to that  date. It  is now well established by decisions of  this Court  that the Government has full power to effect  a change  in the  age of  superannuation  of  its

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employees on  relevant considerations. If in the exercise of such power  the age  of superannuation is enhanced purely by way of  implementation of  a policy  decision taken  by  the Government, such  alteration can  legally be  brought  about with prospective effect from the date of the commencement of the operation  of the Ordinance, Act or Rule and no question of violation  of Article  14 or  16 of the Constitution will arise merely  because the  benefit of change is not extended to employees who have already retired from service. In these cases now before us our conclusion is rested entirely on the finding arrived  at by  us  after  a  consideration  of  the factual background  and legislative  history of the impugned Ordinance and  Act that  the underlying  purpose and  object behind the  relevant provisions of the Ordinance and the Act was to  set right  and nullify a wrong or injustice that had been done  to the  employees by  the abrupt reduction of the age of superannuation from 58 years to 55 years by Ordinance No. 8  of 1983  and the  Government’s Notification issued as per G.O.  Ms.No.36, dated  8th February, 1983 which preceded it. All  that we are holding is that in the context of these telling facts and circumstances which conclusively show that the object  and purpose  of the Legislation was to set right the injustice  that had  been done,  there is no rational or reasonable nexus  or basis  for separately  classifying  the employees who  had retired from service prior to the date of commencement of Ordinance No.23 of 1984, who are the persons most affected  by the wrong - by denying to them the benefit of the  rectification of the injustice. It is solely on this ground  that  we  are  allowing  these  Writ  Petitions  and granting the reliefs specified in the judgment of Reddy J. 619      KHALID, J.  After considering the rival contentions put forward by  the learned  counsel on  both sides, the factual matrix and  the law  involved, the  following points gave me some difficulty  in accepting  the petitioners’ case. I felt that  these   points  posed   hurdles  in  the  way  of  the petitioners succeeding in their attempt to secure the relief sought. I am formulating the points as I understood them.      1. This  Court in  K. Nagaraja  v. State of A.P. [1985] A.I.R. S.C.  551, upheld  the action  of the  Government  in reducing the age of retirement from 58 to 55. The contention that such  reduction was  arbitrary and  irrational was  not accepted.  Further,   the  contention   that  the   age   of superannuation was increased from 55 to 58 years with effect from October  29, 1979,  after an  elaborate and  scientific enquiry by  an one-man  pay commission  did not  find favour with this Court because it felt that the question of The age of  retirement   was  not   referred  to   the   Commission. Accordingly the  Court held  that the decision regarding the age of  retirement was a matter of policy in the formulation of which the Government must be allowed a free and fair role to play.  It is not always necessary that such a decision is taken on the basis of empirical data collected on scientific investigation. The  further submission  that the decision to reduce the  age of  retirement  from  58  to  55  years  was arbitrary in view of the fact that it was taken by the State Government within  one month  of the assumption of office by it also  did not  find favour  with this  Court. This  Court observed that  the  reasonableness  of  a  decision  in  any jurisdiction, did  not depend  upon the  time which it took. This decision has became final and the petitioners before us cannot  in   any  manner  question  it.  This  decision  is, therefore, an  authority for the proposition that the charge of arbitrariness  cannot be  laid at  F  the  doors  of  the Government in  matters relating to policy decisions and that

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the Government  have full  powers to decide about the age of retirement considering the various data available before it.      (2) Bishnu  Narain Mishra  v. State  of U.P.  & others, [1965]  1   S.C.R.  693,   is  a   decision  rendered  by  a Constitution  Bench   of  this   Court.  In   that  case,  a notification  on  November  27,  1957,  raised  the  age  of superannuation from 55 to 58 years. On May 25, 1961, the age of retirement  was reduced  once-again to  55 years.  It was provided in  the second  notification that  those  who  were retained in  service beyond the age of superannuation on the basis of  the earlier  notification  would  be  compulsorily retired on  December 31,  1961. The  second notification was questioned as 620 being arbitrary  and hit  by Article 14 since it resulted in inequality between  the public  servants in  the  matter  of retirement.  In   this  Judgment   the   classification   of Government employees  who were  in service  into two  groups based on their age was upheld by the Constitution Bench as a reasonable classification. I felt that this case had a great bearing on  the petitions  before us  and the principle laid down there  could be extended to the cases before us. It was strongly contended  that if  classification of two groups of in-service employees  on the basis of age and a cut off date could be  justified as  reasonable classification, it can be more  so   in  cases  like  the  one  before  us  where  the classification is between the retired employees and those in service.      (3) By  the operation  of a  valid law,  some employees have retired  by superannuation  and have  thus ceased to be members of  their respective  service. What is now attempted is  to   retrospectively  re-induct  them  into  service,  a procedure that Courts should frown upon and not encourage.      (4) For  the purpose  of the  cases before  us,  Bishun Narain Mishra’s  case is  more appropriate  and useful  than that of  D.S. Nakara  v. Union,  [1983] 2  S.C.R. 165, which dealt with  two classes  of retired  employees and a cut off date. The attempt to distinguish Bishun Narain’s case on the factual difference avail able in these cases is a matter for further probe,  in order  to see  how for the distinction is destructive  of   the  principle  laid  down  there  in  its application to these cases.      (5) The  original attempt by the petitioners was to get Section 3  of the  amending Act struck down in its entirety. Now they  realise that  such a  relief would not serve their purpose. What they now want is that this Court should remove the word  ’not’ from  the Section,  so that  the petitioners will be  rescued from  the mischief of that word. Removing a word or  adding words  to  a  legislative  enactment  is  an exercise, Courts  have been  repeatedly warned  against from embanking upon. I personally feel that this guideline is one that has to be respected by Courts of law.      (6) A  petition, similar to one before us, was filed in this Court  as W.P. No. 16080/1984 raising identical points. This writ petition came up for hearing on 12.2.1985 before a Bench consisting  of the  Chief Justice,  Justice D.A. Desai and Justice  A.N. Sen.  After hearing  the counsel  for  the petitioner as well as the 621 State of  Andhra  Pradesh,  the  Bench  suggested  that  the counsel for  the State  should take  instructions  from  the State of  Andhra Pradesh  about reinstating  in  service  of those persons  who had  not attained  58 years  of age,  but without back-wages.  The case was adjourned to 19.2.1985 for that purpose. I understand that counter-affidavits were also

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filled in  that case.  The  case  appeared  before  a  Bench consisting of Justice R.S. Pathak and Justice A. Varadarajan on the  next occasion.  On that  occasion, the  petition was dismissed,  after  hearing.  Normally  this  Court  will  be disinclined  to  entertain  or  to  hear  petitions  raising identical points  again where  on an  earlier occasion,  the matter was  heard and  dismissed. Not that this Court has no jurisdiction to  entertain such  matters, but would normally exercise its  discretion against  it.  One  of  the  counsel appearing for  the respondents  strongly pleaded  the bar of Res Judicata  against these  petitions on  the basis  of the earlier decision.      (7) The  learned Advocate General of the Andhra Pradesh with great  concern and  justifiably appealed  to US that if the  petitions   were  allowed,   lt  would   cause  serious dislocation in  the administration. He strongly pleaded that the action  taken did  not have any tinge of mala fides that there  was  no  attempt  at  picking  and  choosing  of  any Government servant  and that  therefore the Court should not exercise its jurisdiction to annul a policy decision.      2. I  have given my anxious considerations to the above questions and  the rival  submissions in  reply. I find that the case  is  more  or  less  evenly  balanced  between  the parties. The  important factors have, however, persuaded me, to agree  with the  main Judgment  and to err on the side of Justice more  than that  of  law,  invoking  the  benevolent jurisdiction under  Article 142(1)  of the  Constitution  of India which reads:           "142(1) The  Supreme Court  in the exercise of its           jurisdiction may  pass such  decree or  make  such           order as  is necessary  for doing complete justice           in any  cause or matter pending before it, and any           decree  80  passed  or  order  80  made  shall  be           enforceable through  out the territory of India in           such manner  as may  be prescribed by or under any           law made  by Parliament  and, until  provision  In           that behalf  is so  made, in  such manner  as  the           President may by order prescribe.      These  petitions   involve  a  serious  human  problem. Employees of the State with limited resources, who have been planning their  future with a secure feeling that they could work till the 622 age of  58 years,  have as  though overnight, been robbed of their tenure, their aspirations and future. They have become the helpless victims of certain swift moves on the political chess board.  These swift  moves, perhaps  taken in a hurry, without  serious   application  of  mind  have  resulted  in arbitrariness that  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.      The second  factor that  has prevailed  upon me to give succour to  the petitioners is the blame that this Court has to share  for the  sorry state  that has come to pass in the matter. Without  meaning  disrespect  to  anyone,  I  firmly believe, that  prompt action  by the Court, would have eased the situation,  considerably and relieved the petitioners of their sad  plight and  us of  this avoidable exercise. It is not as  though that  the subsequent  developments  were  not brought to  the notice  of  this  Court  in  Nagara’s  case, (supra). We  were told  that the  Bench was  alerted in time about  the   developments   that   had   taken   place   but unfortunately they  were not  taken into  account. When  the Judgment ultimately  came on  18.1.1985,  as  many  as  6000

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employees had lost their service, a tragic result, not based on any  relevant consideration  having a nexus to the age of superannuation. The  damage had  been done  and  it  can  be repaired only  by extending this Court’s powers to a section of employees who deserves sympathy and fair deal.      This short  Judgment is  only to  vindicate my stand. I respectfully agree  with the Judgment prepared by my learned brother Reddy,  J. I  am also  in entire  agreement with  my learned brother  Eradi, J.  about the  limited scope  of the principles laid down in these cases on their peculiar facts. N.V.K.                                  Petitions dismissed. 623