REPORTABLE

  IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL APPEAL NO.  4955    OF 2010 (Arising out of SLP(C) No. 29786 of 2009)

Nagaland Senior Govt. Employees Welfare Association & Ors.          …Appellants

Versus   The State of Nagaland & Ors.                   …Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

Introduction

2. A new State – State of Nagaland – was formed by  

the State of Nagaland Act, 1962 (for short, ‘the 1962 Act’) which  

came into force on December 1, 1963 comprising the territories  

which immediately before the appointed day were comprised in

the Naga Hills – Tuensang Area of the State of Assam. Prior to  

the  1962  Act,  Naga  Hills-Tuensang  Areas  Act,  1957  was  

enacted  by  the  Parliament  by  which  certain  changes  were  

brought about with regard to the administration of the area viz.,  

Naga Hills – Tuensang Area within the State of Assam. The pay  

structure  applicable  to  civil  servants  of  Assam  was  made  

applicable to the civil servants of the Naga Hills-Tuensang Area  

and  as  regards  the  service  conditions  including  the  age  of  

superannuation,  the  Central  Government  Fundamental  Rules  

and  Subsidiary  Rules  were  made  applicable  to  them.   After  

creation of the State of Nagaland, the conditions of service of  

the State Government employees continued to be governed by  

the  same Rules.  In  1990,  the  superannuation  age of  all  the  

State Government employees other than grade-IV employees  

was raised from 55 years to 58 years.  

The 1991 Act

3. In  1991,  Nagaland  Retirement  from  Public  

Employment Act, 1991 (for short, ‘the 1991 Act’) was enacted  

by the  State  Legislature  which came into  force  on June 18,  

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1991.  Section  3  thereof  provided  for  retirement  from  public  

employment.  It states :

“S.-3. Retirement from public employment:  (1)  Notwithstanding anything contained in any rule or  orders  for  the  time  being  in  force,  a  person  in  public employment shall hold office for a term of  thirty-three  years  from  the  date  of  his  joining  public employment or until he attains the age of  fifty-seven years whichever is earlier :

Provided  that  in  special  circumstances,  a  person under public employment may be granted  extension  by  the  State  Government  upto  a  maximum of one year;  

Provided further that the Government may  have  the  cases  of  all  persons  under  public  employment  screened  from  time  to  time  to  determine their suitability for continuation in public  employment after the attainment of the age of fifty  years.

(2) All persons under public employment shall  retire  on  the  afternoon  of  the  last  day  of  the  month in which he attains the age of fifty-seven  years  or  on  completion  of  thirty-three  years  of  public employment whichever is earlier.

(3) xxx xxx xxx xxx

(4) xxx xxx xxx xxx

(5) xxx xxx xxx xxx”          

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As  a  matter  of  fact,  the  1991  Act  replaced  the  Nagaland  

Retirement from Public Employment Ordinance, 1991.

Challenge to Section 3 (1991 Act)

4. The  Confederation  of  All  Nagaland  State  Service  

Employees  Association  (‘the  Confederation’,  for  short)  

challenged  the  constitutional  validity  of  Section  3  which  

provided for retirement from public employment on completion  

of 33 years from the date of joining employment or until the age  

of 57 years, whichever is earlier by filing a writ petition before  

the Gauhati High Court.  The main grounds of challenge were :  

(i) that retirement of the government employees at the age of  

57  is  arbitrary  and  (ii)  that  classification  of  the  government  

employees  in  two groups  viz.,  one group of  the  government  

employees who are to retire on completion of 33 years service  

before attaining the age of 57 and the other group retiring at the  

age of 57 and having not completed 33 years of service is not  

permissible since retirement of government employees must be  

attributable to the age and not the length of tenure of service.

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5. The Single Judge of  the Gauhati  High Court  vide  

judgment  dated  January  18,  1993  upheld  the  reduction  of  

retirement  age from 58 to  57 years  but  struck  down part  of  

Section  3  of  1991  Act  which  prescribed  the  retirement  from  

service  on  completion  of  33  years  of  service.   But  no  

consequential relief was granted to the employees.   

6. The  Confederation  challenged  the  order  of  the  

Single Judge dated January 18, 1993 by way of an intra court  

appeal  insofar  as  consequential  reliefs  were  denied  to  the  

employees.  The  Division  Bench  allowed  the  appeal  on  

September 6, 1995 and held that affected employees shall be  

entitled to get their salary and other allowances and all other  

consequential benefits which they would have been entitled to  

upto the age of 57 years, except those employees who were  

gainfully employed elsewhere.

7. The  State  of  Nagaland  (for  short,  ‘the  State’)  

challenged the judgment and order dated September 6, 1995 to  

the extent the Division Bench granted consequential reliefs to  

the  employees  in  Special  Leave  Petition  (SLP)  before  this  

Court.  Leave was granted and SLP was converted into  Civil  

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Appeal.  However, on April  7,  1997 appeal was withdrawn by  

the State.

1st Amendment Act, 2007

8. By Nagaland Retirement  from Public  Employment  

(Amendment) Act, 2007 (for short, ‘Ist Amendment Act, 2007),  

the superannuation age of  the government employees in the  

State was enhanced from 57 years to 60 years with effect from  

November 15, 2007.  Later on, the maximum age for entering  

the government service in the State was enhanced to 30 years  

for  general  category  candidates  and  35  years  for  SC/ST  

category candidates.

9. On  October  17,  2008,  the  Naga-Students  

Federation (NSF) being not  satisfied with the 1st Amendment  

Act,  2007  made  a  representation  to  the  State  Government  

voicing  its  concern  that  enhancement  of  retirement  age  had  

reduced the employment opportunities for the educated youth  

in the State. NSF demanded that the State Government should  

also fix maximum length of service that an employee may be  

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entitled  to  put  in  before  retirement.  In  pursuance  of  the  

representation made by NSF, the Department of Personnel and  

Administrative  Reforms  (for  short,  ‘DOP &  AR’)  submitted  a  

Memorandum  dated  October  22,  2008  to  the  Cabinet  for  a  

decision  as  to  whether  the  State  Government  should  also  

prescribe maximum length of service for retirement of the State  

Government employees in addition to the upper age limit of 60  

years and if so, what should be maximum length of the service  

for retirement.

10. The  Cabinet  in  its  meeting  held  on  October  23,  

2008 asked the DOP & AR to examine the matter in greater  

detail and prepare a profile of average length of service put in  

by the government  employees at  the time of  superannuation  

and  submit  its  findings  and  recommendations  for  further  

consideration of the Cabinet.  DOP & AR then appears to have  

prepared its report and submitted the same to the Cabinet for  

consideration.

11. The  Cabinet  considered  the  subject  again  and  

appointed  a  High  Power  Committee  (HPC),  inter  alia,  to  

scrutinize the retirement profile of the government employees  

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prepared by DOP & AR and make necessary recommendations  

regarding  fixation  of  maximum  length  of  service  of  the  

government employees and other service conditions.

12. On  February  18,  2009,  HPC  held  its  meeting  to  

examine  the  superannuation  age  of  the  State  Government  

employees. HPC found gaps in the data base and, accordingly,  

recommended  that  DOP  &  AR  should  be  nodal  agency  to  

streamline  date  base  of  government  employees,  and  put  in  

place a Common Data Base System by coordinating with the  

concerned departments.  It  transpires that  based on the data  

available with the Government, the following compilations were  

made:   

Table -1 : Grade wise employees of the State

Grade No. of employees Percentage Class-I 3495 4% Class-II 2203 3% Class-III 59,598 74% Class-IV 15,704 19%

Total 81,000 100%

Table -2 : State Agency Wise Employees  

State  Agency

No. of employees Percentage

Secretariat 2322 3% Directorate 8540 11%

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District 70,138 86% Total 81,000 100%

Table -3 : Number of years of completed service

Completed  years of  service

No. employees As on 1st January,  

2009 As on 1st July,  

2009 As on 1st  January  

2010 More than  40 years

222 294 362

36 years 1629 1997 2313 35 years 2343 2923 3250 34 years 3280 3954 4327 33 years 4357 4960 5156

           Table -4 : Completed Age of employees as on 1  st         January, 2009 & 1  st   July, 2009   

Age of  employees

No. employees 1st January, 2009 1st July, 2009

59 years 101 268 58 years 409 1029 57 years 1088 2077 56 years 2096 3306 55 years 3346 4675

Table – 5

Entry into service No. of employees 40 and above 21,889 35 to 39 years 28,721 30 to 34 years 13,404 25 to 29 years 2,259

Less than 25 years 1149                                

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13. HPC on the basis of the aforesaid figures observed  

that  most  of  the  non-gazetted  (Class-III  and  IV)  employees  

have joined the service at a very early age, i.e. before 20 years  

and  hence  fixation  of  length  of  service  as  a  criterion  for  

superannuation  may  affect  many  of  the  Class-III  and  IV  

employees who joined the service at the age of 18-20 years.  

HPC  also  observed  that  employment  opportunity  in  the  

government sector is limited but the qualified job seekers have  

increased manifold, thus, causing mismatch in the demand and  

supply for public jobs in the State.  

2nd Amendment Act, 2009

14. On  July  8,  2009  a  Bill  titled  ‘The  Nagaland  

Retirement from Public Employment (Second Amendment) Bill,  

2009’ (for short, `Amendment Bill’) was introduced on the floor  

of the House. By the said Bill the length of service of the State  

Government  employees  was  proposed to  be restricted to  35  

years from the date of joining of service or till he/she attains the  

age of 60 years, whichever is earlier.

15. The State Legislature of Nagaland, on July 10, 2009  

unanimously passed the  Amendment Bill.  Thus by Nagaland  

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Retirement from Public Employment (Second Amendment) Act,  

2009’ (for short, ‘2nd Amendment Act, 2009’), Section 3 of 1991  

Act as amended by 1st Amendment Act, 2007, was substituted  

by the following provision :

“S.3(1).-  Notwithstanding anything contained in any rule  or orders for the time being in force, a person in public  employment shall hold office for a term of 35 years from  the date of joining public employment or until he attains  the age of 60 years, whichever is earlier.

S.3(2).-  A person under public employment shall retire  on the afternoon of the last day of the month in which he  attains the age of 60 years, or in which he completes 35  years of public employment, whichever is earlier.”

16. On  July  20,  2009,  the  State  Government  issued  

Office Memorandum (OM) requesting all departments to submit  

the list of employees, who had completed 35 years of service  

by  October 31, 2009.  

Challenge to the 2nd Amendment Act, 2009

17. The  appellant-Association  challenged  the  

constitutional  validity  of  the  2nd Amendment  Act,  2009  being  

arbitrary,  irrational,  ultra vires and violative of  Articles 14, 16  

and 21 of the Constitution and legality of the OM dated July 20,  

2009 by filing a writ petition before Gauhati High Court.  The  

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Association prayed that 2nd Amendment Act, 2009 be quashed  

to the extent it has introduced 35 years’ service as one of the  

conditions  for  retirement  of  government  employees  and  

direction be issued to the State to superannuate its employees  

only on attaining the prescribed age of  60.   The Association  

also prayed for quashing OM dated July 20, 2009.  

18. The State justified 2nd Amendment  Act,  2009 and  

OM  dated  July  20,  2009  by  filing  a  detailed  affidavit  in  

opposition to the writ petition.  They set up the plea that youth  

in the State were not getting an opportunity in the matters of  

public  employment  because  of  long  period  of  service  of  the  

existing employees who would serve up to 42 years resulting in  

a sense of frustration and stagnation amongst educated youth;  

that  educated  youth  who  remain  unemployed  out  of  sheer  

desperation pursue avocation which is not in tune with the law;  

and that the amended law would result in removal of stagnation  

in the matters of employment to the unemployed and thereby  

making  employment  opportunities  less  arbitrary,  reasonable  

and  in  consonance  with  the  constitutional  provisions.  It  was  

submitted that by 2nd Amendment Act, 2009, the employment  

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prospects of the youth are protected  whereby the number of  

years  of  service  would  be  restricted  to  35  years  while  

maintaining the age of superannuation at 60 years. The State  

also submitted that the literacy rate in Nagaland is amongst one  

of the highest in India and the high literacy rate coupled with the  

fact  that  there  are  no other  avenues for  employment  except  

through  the  Government  sector  has  increased  the  

unemployment problem to an alarming extent. After a thorough  

and systematic  appreciation  and study of  the  unemployment  

problem  and  also  the  social  aspects,  the  State  decided  to  

prescribe the maximum length of service for retirement of its  

employees in addition to the upper age limit of 60 years. The  

State  explained the  peculiar  circumstances  that  necessitated  

the insertion of 35 years of length of service in the government  

employment for superannuation.

19. The  Division  Bench  after  hearing  the  parties  

dismissed the writ petition on October 30, 2009.  It is from this  

judgment and order that the present appeal arises.

20. Before we deal  with  the main submissions of  the  

parties, an intervening factual aspect may be noticed here.  In  

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the month of  February,  2009,  the State made an application  

before  the  Gauhati  High  Court  seeking  review  of  the  order  

dated January 18, 1993 passed by the Single Judge in the writ  

petition wherein constitutional validity of Section 3 of 1991 Act  

was  challenged.   However,  the  said  review  application  was  

withdrawn on March 2, 2009.

Main submissions of the parties

21. Mr. Ram Jethmalani, learned senior counsel for the  

appellants submitted that retirement by way of superannuation  

in respect of government employees is permissible only on the  

basis  of  age and not  on the basis  of  length of  service.  The  

contention  is  that  retirement  by  way  of  superannuation  in  

respect  of  government  employees relates to  discharge of  an  

employee on account of attaining a particular age fixed for such  

retirement,  which  is  uniformly  applicable  to  all  employees  

without  discrimination.  He  submitted  that  where  there  is  

minimum  and  maximum  age  of  entry  into  any  service,  the  

alternative  method of  retirement  by way of  length  of  service  

would  inevitably  result  in  different  age  of  superannuation  of  

employees holding the same post depending upon their age of  

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entry to the service and that would result in manifest violation of  

Article 14 and Article 16 of the Constitution; it  would also be  

inconsistent with the valuable right of a permanent government  

employee  to  continue  service  till  the  age  of  superannuation  

subject to rules of compulsory retirement in public interest and  

abolition  of  posts.  Learned  senior  counsel  submitted  that  

insofar as decision of this Court in  Yeshwant Singh Kothari v.   

State Bank of Indore & Ors1 is concerned, it has no application,  

firstly, to the government employees and in the second place,  

he was not raising the arguments that were raised in that case  

but his contention is that prescribing retirement of government  

employees on completion of 35 years of service is arbitrary and  

irrational.  According  to  learned  senior  counsel,  in  Yeshwant  

Singh Kothari1, the arguments were considered in the backdrop  

of discriminatory classification and not on the grounds of such  

action being arbitrary, irrational or unreasonable.

22. Mr.  Ram  Jethmalani,  learned  senior  counsel  

vehemently  contended  that  even  if  it  be  assumed  that  the  

alternative method of retirement by way of length of service is  

permissible  in  law,  still  the  2nd Amendment  Act,  2009  1 1993 Suppl. (2) SCC 592

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prescribing retirement  of  government  employees in  the State  

on completion of 35 years of service is violative of Article 14 of  

the  Constitution  being  arbitrary,  unreasonable  and  

unconstitutional. In this regard, he placed heavy reliance upon  

judgment of this Court in the case of  K. Nagaraj and Ors. v.  

State of Andhra Pradesh and Anr.2  It was submitted that the  

needs/responsibilities of a person between the age of 50 to 60  

are  the  most  as  he  has  to  educate  his  children,  marry  his  

children in addition to maintaining his family. He submitted that  

Class  III  and  IV  employees  constitute  93  per  cent  of  total  

employee  strength  in  the  State  and  that  as  a  result  of  

prescription of maximum length of service of 35 years, most of  

the  government  employees  (who  joined  service  before  20  

years, i.e. at 18 and 19 years) would retire at the age of 53 or  

54 years which is an unreasonably low age of retirement. In this  

regard, learned senior counsel referred to the report of the HPC  

wherein it is mentioned that most of the non-gazetted (Class-III  

and IV)  employees  have joined service  at  an early  age,  i.e.  

before attaining 20 years.  Mr. Ram Jethmalani also invited our  

attention to the observations made in the report  prepared by  2 (1985) 1 SCC 523

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HPC wherein  it  was observed,  ‘the  committee  examined the  

data  base  available  on  the  State  employees  and  found  that  

there are many deficits and gaps in the data base’. It was, thus,  

submitted that the fixation of 35 years as the maximum length  

of service has been determined by the Government without any  

basis and in a most arbitrary fashion without any objectivity and  

certainly  not  on the  basis  of  empirical  data furnished by the  

scientific investigation. According to him, in the absence of full  

investigation  into  the  multitudinous  pros  and  cons  and  deep  

consideration of every aspect of the question, the prescription  

of  alternative  method of  superannuation by way of  length  of  

service smacks of  total  arbitrariness.   It  was also contended  

that the impugned provision is arbitrary not only from the point  

of view of the employees as a whole but also from the point of  

view of public interest inasmuch as it is against public interest  

to  deprive  the  public  at  large  of  the  benefit  of  the  mature  

experience  of  the  senior  government  employees;  pre-mature  

retirement at an unreasonable low age of 53 or 54 years when  

the  employees  are  at  their  prime  would  be  against  public  

interest.  The learned senior  counsel  would also contend that  

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the impugned provision of prescribing retirement of government  

employees  on completion  of  35  years  of  service  is  actuated  

solely on the pressure exerted upon the State Government by  

NSF which itself is arbitrary.  

23. Mr.  P.K.  Goswami,  learned  senior  counsel  for  

respondent  no.4,  supporting  the  appellants  adopted  the  

arguments of Mr. Ram Jethmalani.

24. On behalf of the contesting respondent nos. 1 to 3 –  

the State and its functionaries – Mr. K.K. Venugopal, learned  

senior counsel stoutly defended the 2nd Amendment Act, 2009  

and impugned judgment of Gauhati High Court.  He submitted  

that the State of Nagaland has a unique problem not faced by  

many  other  States  in  the  country.   He  would  submit  that  

Nagaland  has no industries either in the public sector or in the  

private sector where gainful opportunities are made available to  

the youth in the State although percentage of literacy is as high  

as 70%; that for lack of avenues of employment there is a grave  

danger  arising  out  of  insurgency  and  potential  danger  of  

educated youth joining underground movement; that increase  

of retirement age from 57 years to 60 years in the year 2007  

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resulted  in  grave  resentment  from  the  Naga  youth  who  

protested through NSF which finally led to the enactment of the  

2nd Amendment  Act,  2009  and  that  alternative  mode  of  

retirement on completion of 35 years  of service is consistent  

with the judgment of this Court in Yeshwant Singh Kothari1 and  

based on the policy of the Government and in public interest.

25. Mr. K.K. Venugopal, learned senior counsel argued  

that there is always presumption of constitutionality arising in  

favour of a statute and onus to prove its invalidity lies on a party  

which assails the same.  He submitted that the Legislature is  

the best  judge of  the needs of  the particular  classes and to  

estimate  the  degree  of  evil  so  as  to  adjust  its  legislation  

accordingly.   In  this  regard,  he  sought  support  from  the  

decisions of this Court in  Mahant Moti Das v. S.P. Sahi3,  A.C.  

Aggarwal  v.  Mst.  Ram Kali  etc.4 and The  Amalgamated Tea  

Estates  Co.  Ltd.  v.  State  of  Kerala5.   Mr.  K.K.  Venugopal  

submitted that prescription of two rules of retirement,  one by  

reference  to  age  and  the  other  by  reference  to  years  of  

completed  service  is  permissible  and  the  retirement  policy  

3 AIR 1959 SC 942 4 AIR 1968 SC 1 5 1974 (4) SCC 415

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manifested in 2nd Amendment Act, 2009 is neither arbitrary nor  

discriminatory.  

The issue

26. On the contentions outlined above, the question that  

arises  for  consideration  is  :  whether  the  impugned provision  

that prescribes retiring the persons from public employment in  

the State of Nagaland on completion of 35 years’ service from  

the  date  of  joining  or  until  attaining  the  age  of  60  years,  

whichever  is  earlier,  is  arbitrary,  irrational  and  violative  of  

Articles 14 and 16 of the Constitution.

Appraisal

(A) Should  retirement  from  public  employment  be  effected on account of age alone?

27. It  is  true  that  ‘superannuation’  means  discharge  

from service on account  of  age.   The dictionary meaning of  

‘superannuation’ is to retire or retire and pension on account of  

age.   Although  the  impugned  provision  does  not  use  the  

expression ‘superannuation’ but broadly retirement is referred  

to as superannuation.  There is no absolute proposition in law  

nor  any  invariable  rule  in  the  service  jurisprudence  that  an  

employee can be made to  retire  from public  employment on  

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account of age alone.  What the Constitution guarantees for the  

citizens is equality of opportunity under the employment of the  

Government and the prohibition of  discrimination between its  

employees  but  there  is  no  provision  in  the  Constitution  that  

restricts  retirement  from public  employment  with reference to  

age.  Rather Article 309 empowers the appropriate Legislature  

to  regulate  the  conditions  of  service  of  persons  serving  the  

Union or a State, as the case may be, by an enactment subject  

to the provisions of the Constitution.  The competence of the  

Legislature  to  formulate  uniform   policy  for  retirement  from  

public employment by enacting a law can hardly be doubted.  

The question that has to be asked is, whether such law meets  

constitutional tests?

28. The  legality  and  validity  of  a  provision  permitting  

retirement on the basis of length of service directly came up for  

consideration before this Court in the case of Yeshwant Singh  

Kothari1.  In that case, the appellants – employees of the State  

Bank of Indore (a subsidiary bank of the State Bank of India) –  

were aggrieved by their retirement on completion of 30 years of  

service whereas according to them they were entitled to service  

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upto 58 years of age.  They were initially in the employment of  

the Bank of  Indore Limited which ceased to exist  with  effect  

from January 1, 1960 and became a subsidiary bank known as  

the State Bank of Indore.  The issue was raised in the context  

of the State Bank of India (Subsidiary Banks) Act, 1959 and the  

Regulations framed thereunder.  This Court referred to Section  

11(1) of 1959 Act and Regulation 19(1) which are as follows :

“S.11.-  Transfer of services of employees of  existing  banks.—  (1)  Save  as  otherwise  provided  in  this  Act,  every  employee  of  an  existing  Bank  in  the  employment  of  that  bank  immediately before the appointed day, shall,  on  and from that day, become an employee of the  corresponding new bank and shall hold his office  or service therein by the same tenure at the same  remuneration  and  upon  the  same  terms  and  conditions and with the same rights and privileges  as to pension, gratuity and other matters as he  would have held the same on the appointed day,  if  the  undertaking  of  the  existing  bank  had  not  been  transferred  to  and  vested  in  the  corresponding new bank and shall continue to do  so unless and until his employment in that bank is  terminated  or  until  his  remuneration  or  other  terms  and  conditions  of  service  are  revised  or  altered by the corresponding new bank under, or  in pursuance of any law, or in accordance with  any provision which, for the time being governs,   his service.”  

xxx      xxx xxx     xxx

2

“Regulation 19.-  Age of retirement.— (1) An  officer shall retire from the service of the Bank on  attaining the age of fifty-eight years or upon the  completion  of  thirty  years  service,  whichever  occurs first:

Provided  further  that  the  competent  authority may, at its discretion, extend the period  of service of an officer who has attained the age  of fifty-eight years or has completed thirty years’  service  as  the  case  may  be,  should  such  extension be deemed desirable in the interest of  the Bank.”

In the context of the aforesaid provisions, this Court ruled:

“…..The provision in the Regulation in hand for  maintaining the age of retirement at 58 years as  before  but  in  the  same  breath  permitting  retirement  on  the  completion  of  30  years  of  service,  whichever  occurs  earlier,  is  in  keeping  with the policy of reckoning a stated number of  years  of  office  attaining  the  crest,  whereafter  inevitably is the descent, justifying retirement. In  this context 30 years’ period of active service is  not a small period for gainful employment, or an  arbitrary exercise to withhold the right to hold an  office beyond thirty years, having not attained 58  years of age.”

29. The impugned provision that prescribes retirement  

from  the  public  employment  at  the  age  of  60  years  or  

completion  of  35  years  of  service,  whichever  is  earlier,  is  

apparently consistent with the decision in the case of Yeshwant  

2

Singh Kothari1 and the ratio in that case is squarely applicable  

to the case in hand.  If 30 years’ period of active service was  

not held a small period for gainful employment, or an arbitrary  

exercise to withhold the right to hold an office beyond 30 years,  

having not attained 58 years of age, a fortiori, retiring a person  

from public service on completion of 35 years of service without  

attaining age of 60 years may not be held to be unjustified or  

impermissible.  

(B) K. Nagaraj Case

30. In  the case of  K. Nagaraj2,  the employees of  the  

Government  of  Andhra  Pradesh  were  aggrieved  by  an  

amendment  in  the  Fundamental  Rules  and  Hyderabad  Civil  

Services  Rules  reducing  the  retirement  age  from  58  to  55  

years.  As  a  result  of  these  amendments,  over  18,000  

government  employees  and  10,000  public  sector  employees  

were  superannuated.  The government  employees  challenged  

the  said  amendments  on  diverse  grounds,  inter-alia  that  the  

said  amendment  violated  Articles  14,  16  and  21  of  the  

Constitution.  This  Court  held that  it  was in  public  interest  to  

prescribe age of retirement and while holding so observed that  

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fixation of age would be unreasonable or arbitrary if it does not  

accord with the principles which are relevant for fixing the age  

of  retirement  or  if  it  does  not  sub-serve  any  public  interest.  

While ruling that in reducing the age of retirement from 58 to  

55,  the  State  Government  cannot  be  said  to  have  acted  

arbitrarily or irrationally, it was held :

“On the basis of this data, it is difficult to hold that  in reducing the age of retirement from 58 to 55,  the  State  Government  or  the  Legislature  acted  arbitrarily  or  irrationally.  There  are  precedents  within  our  country itself  for  fixing the retirement  age at 55 or for reducing it from 58 to 55. Either  the  one  or  the  other  of  these  two  stages  is  regarded  generally  as  acceptable,  depending  upon the employment policy of the Government of  the day. It is not possible to lay down an inflexible  rule  that  58  years  is  a  reasonable  age  for  retirement and 55 is not. If the policy adopted for  the  time  being  by  the  Government  or  the  Legislature is shown to violate recognised norms  of employment planning, it  would be possible to  say that the policy is irrational since, in that event,  it  would  not  bear  reasonable  nexus  with  the  object which it seeks to achieve. But such is not  the  case  here.  The  reports  of  the  various  Commissions,  from  which  we  have  extracted  relevant portions, show that the creation of new  avenues  of  employment  for  the  youth  is  an  integral part of any policy governing the fixation of  retirement  age.  Since  the  impugned  policy  is  actuated  and  influenced  predominantly  by  that  consideration,  it  cannot  be  struck  down  as  arbitrary or irrational. We would only like to add  that  the  question  of  age  of  retirement  should  always  be  examined  by  the  Government  with  more  than  ordinary  care,  more  than  the  State  

2

Government has bestowed upon it  in this case.  The fixation of age of retirement has minute and  multifarious dimensions which shape the lives of  citizens. Therefore, it is vital from the point of view  of  their  well-being  that  the  question  should  be  considered  with  the  greatest  objectivity  and  decided  upon  the  basis  of  empirical  data  furnished by scientific investigation. What is vital  for the welfare of the citizens is, of necessity, vital  for the survival of the State. Care must also be  taken  to  ensure  that  the  statistics  are  not  perverted to serve a malevolent purpose.” xxx     xxx             xxx      xxx

“…..the fact that the decision to reduce the age  of  retirement  from  58  to  55  was  taken  by  the  State  Government  within  one  month  of  the  assumption  of  office  by  it,  cannot  justify  the  conclusion that the decision is arbitrary because it  is unscientific in the sense that it is not backed by  due  investigation  or  by  compilation  of  relevant  data on the subject. Were this so, every decision  taken  by  a  new  Government  soon  after  assumption of office shall have to be regarded as  arbitrary.  The  reasonableness  of  a  decision,  in  any jurisdiction, does not depend upon the time  which  it  takes.  A  delayed  decision  of  the  executive can also be bad as offending against  the provisions of the Constitution and it can be no  defence to the charge of unconstitutionality that  the decision was taken after the lapse of a long  time.  Conversely,  decisions  which  are  taken  promptly cannot be assumed to be bad because  they are taken promptly. Every decision has to be  examined on its own merits in order to determine  whether it is arbitrary or unreasonable. Besides,  we  have  to  consider  the  validity  of  a  law  regulating the age of retirement. It is untenable to  contend that a law is bad because it  is passed  immediately on the assumption of office by a new  Government. It must also be borne in mind that  the question as to what should be the proper age  of  retirement  is  not  a  novel  or  unprecedented  

2

question  which  the  State  Legislature  had  to  consider.  There  is  a  wealth  of  material  on  that  subject  and many a Pay Commission has dealt  with  it  comprehensively.  The State  Government  had the relevant facts as also the reports of the  various  Central  and  State  Pay  Commissions  before it,  on the basis of which it had to take a  reasonable decision. The aid and assistance of a  well-trained bureaucracy which, notoriously, plays  an important part not only in the implementation  of policies but in their making, was also available  to  the  Government.  Therefore,  the  speed  with  which  the  decision  was  taken  cannot,  without  more, invalidate it on the ground of arbitrariness.”

Again  in  paragraph  34  of  the  report  this  Court  repelled  the  

argument of the appellants regarding arbitrary character of the  

action taken by the State Government, thus:

“Though Shri Ray presented his argument in the shape  of a challenge to the Ordinance on the ground of non- application of mind, the real thrust of his argument was  that  the  hurry  with  which  the  Ordinance  was  passed  shows the arbitrary character of the action taken by the  State  Government.  We  have  already  rejected  the  contention of haste and hurry as also the argument that  the  provisions  of  the  Ordinance  are,  in  any  manner,  arbitrary or unreasonable and thereby violate Articles 14  and 16 of the Constitution.”

31. As a matter of fact, in K. Nagaraj2 this Court stated clearly  

that fixation of retirement age is a matter of employment policy  

of  the  Government  and  no  inflexible  rule  can  be  laid  down.  

However, if such policy is shown to violate recognized norms of  

2

employment planning, then such policy may not  meet the test  

of  rationality and reasonableness.  The fact that employment  

policy  was  formulated  hurriedly  was  not  held  sufficient  to  

conclude that the policy suffered from non-application of mind  

or arbitrary.  We are afraid, K. Nagaraj case2 instead of helping  

the appellants, rather supports the stand of the State.  Fixation  

of  maximum length  of  service  as  an  alternative  criterion  for  

retirement from public service, by no stretch of imagination, can  

be held to be violative of any recognized norms of employment  

planning.  There may be a large number of compelling reasons  

that  may necessitate  the Government  (or  for  that  matter  the  

Legislature)  to  prescribe  the  rule  of  retirement  from  the  

government  service  on completion of  specified years.   If  the  

reasons are germane to the object sought to be achieved, such  

provision can hardly be faulted.  

(C) Presumption of constitutionality  

32. That there is always a presumption in favour of the  

constitutionality of an enactment and that the burden is upon  

the person, who attacks it is a fairly well settled proposition.  In  

2

Mohd.  Hanif  Quareshi  &  Ors.  v.  State  of  Bihar6,  this  Court  

stated :

“………The classification, it  has been held, may  be  founded  on  different  bases,  namely,  geographical,  or  according  to  objects  or  occupations or the like and what is necessary is  that there must be a nexus between the basis of  classification  and  the  object  of  the  Act  under  consideration. The pronouncements of this Court  further establish, amongst other things, that there  is  always  a  presumption  in  favour  of  the  constitutionality  of  an  enactment  and  that  the  burden is upon him, who attacks it, to show that  there  has  been  a  clear  violation  of  the  constitutional  principles.  The  courts,  it  is  accepted,  must  presume  that  the  legislature  understands and correctly appreciates the needs  of  its  own  people,  that  its  laws are  directed  to  problems made manifest by experience and that  its  discriminations  are  based  on  adequate  grounds.”

33. The  aforesaid  legal  position  was  reiterated  in  

Mahant Moti Das v. S.P. Sahi, the Special Officer In Charge of  

Hindu Religious Trust & Ors.i7 in the following words :

“The decisions of this Court further establish that  there  is  a  presumption  in  favour  of  the  constitutionality of an enactment and the burden  is upon him who attacks it to show that there has  been  a  clear  transgression  of  the  constitutional  guarantee;  that  it  must  be  presumed  that  the  legislature understands and correctly appreciates  the needs of its own people and that its laws are  

6 AIR 1958 SC 731 7 AIR 1959 SC 942

2

directed  to  problems  made  manifest  by  experience and that its discriminations are based  on  adequate  grounds;  and  further  that  the  legislature is free to recognise degrees of harm  and  may confine  its  restrictions  to  those cases  where the need is deemed to be the clearest…...”

34. In  the  case  of  State  of  Uttar  Pradesh v.  Kartar  

Singh8, the Constitution Bench of this Court held that where a  

party seeks to impeach the validity of a rule on the ground of  

such rule offending Article 14, the burden is on him to plead  

and prove infirmity. This Court said :

“………,  if  the  rule  has  to  be  struck  down  as  imposing  unreasonable  or  discriminatory  standards,  it  could  not  be  done merely  on  any  apriori reasoning but only as a result of materials  placed  before  the  Court  by  way  of  scientific  analysis. It is obvious that this can be done only  when the party invoking the protection of Art.  14  makes averments with details to sustain such a  plea  and  leads  evidence  to  establish  his  allegations. That where a party seeks to impeach  the  validity  of  a  rule  made  by  a  competent  authority on the ground that the rules offend Art.  14 the burden is on him to plead and prove the  infirmity  is  too  well  established  to  need  elaboration. If, therefore, the respondent desired  to challenge the validity of the rule on the ground  either  of  its  unreasonableness  or  its  discriminatory nature, he had to lay a foundation  for it by setting out the facts necessary to sustain  such a plea and adduce cogent and convincing  evidence  to  make  out  his  case,  for  there  is  a  presumption that every factor which is relevant or  material  has  been  taken  into  account  in  formulating the classification of the zones and the  

8 (1964) 6 SCR 679

3

Constitution  or  when  the  Act  is  beyond  the  legislative competence of the legislature or such  other grounds. It is for this reason that the Courts  have  recognised  that  there  is  always  a  presumption in favour of the constitutionality of a  statute and the onus to prove its invalidity lies on  the party which assails the same…...”

37. A two-Judge Bench of this Court in  Fertilisers and  

Chemicals  Travancore  Ltd. v.  Kerala  State  Electricity  Board  

and  Anr.11 emphasized  that  the  allegations  of  discrimination  

must  be  specific  and  that  action  of  governmental  authorities  

must be presumed to be reasonable and in public interest. It is  

for the person assailing it to plead and prove to the contrary.

(D) Impugned  provision  :  whether  arbitrary,   unreasonable and irrational

38. The Statement of Objects and Reasons appended  

to Amendment Bill expressly states as follows :

“Whereas there are a large number of educated  unemployed youths in Nagaland registered in the  Employment Exchanges of Nagaland, who are in  search of white collared employment, particularly  under the Government sector;

And  whereas,  such  white  collared  employment  opportunities outside the Government sectors is  very negligible due to less presence of organized  private  sector,  and the  employment  avenues  in  the Government sector is also already saturated;  and  new  job  opportunities,  in  the  Government  sector arising out of normal retirement vacancies,  

11 (1988) 3 SCC 382

3

or creation of new jobs are inadequate to cater to  the rising expectations of the educated youth for  white collared employment;

And  whereas,  the  State  Government,  being  a  welfare  State,  considers  it  necessary  that  job  opportunities  under  the  Government  sector  should  be  shared  by  the  citizens  in  a  more  equitable manner, and that this objective can be  better achieved by fixing the upper age limit  for  retirement from Government service,  as well  as  by  setting  a  limit  on  the  maximum  number  of  years a Government servant may be allowed to  be in Government service;

Therefore,  the  State  Government  considers  it  expedient to introduce a bill in the State Assembly  that would set a limit on the number of years a  person may be allowed to be in the service of the  State Government, by fixing the upper age limit,  as well as the maximum length of service for any  person to be in Government employment.”    

39.  Section 3 as substituted by 2nd Amendment  Act,  

2009 is designed to lay down a general framework of retirement  

policy.   It  seeks  to  put  a  cap  on  the  number  of  years  an  

employee  may be  allowed to  be  in  the  service  of  the  State  

Government in order to make available job opportunities in a  

more equitable manner to its educated youth.  In the counter  

affidavit filed by the State before this Court in opposition to the  

SLP, the impugned clause has been principally sought to be  

justified on the following grounds :

3

• Nagaland  is  a  small  State,  and  industrially  and  economically,  the  State  is  in  disadvantageous  position.

• The avenues of employment in the State is strictly  limited.  There  are  about  3  lac  educated  unemployed  youths  waiting  for  their  employment  under the State.

• With the raising of retirement age from 57 to 60  years, it became necessary for the State to ensure  and provide reasonable avenues of employment to  a large body of educated youth.

• On delicate end fine balancing of  the competing  interest of different groups, namely, people waiting  for employment and those already in employment,  the State Government evolved an additional mode  of  retirement,  i.e.  completion  of  35  years  of  service.

• Long period of service of the existing employees  has resulted in sense of frustration and stagnation  amongst  large  number  of  educated  unemployed  youth.

These were the  grounds set  up by  the  State  in  the counter  

affidavit before High Court as well.     

40. It is appropriate at this stage to notice the view of  

the High Court in the impugned order.  The High Court said :

“The  ratio  of  the  decision  in  Yeshwant  Singh  Kothari  (supra)  is  contained  in  para  11  of  the  judgment.  Retirement  on  attaining  a  particular  age or alternatively on completion of a specified  number of years of service, so long the number of  years prescribed is not unreasonably small,  can  form  a  legally  valid  basis  for  framing  of  a  retirement  policy.  This,  to  our  mind,  is  the true  ratio of the judgment in Yeshwant Singh Kothari  (supra).  The  discussions  in  para  12  of  the  judgment, particularly, those pertaining to uniform  retirement  age of  58  was  in  the  context  of  the  

3

facts of the case before the Supreme Court and  the  view  taken  with  regard  to  the  difference  between  a  nationalized  bank  and  a  subsidiary  bank  has  to  be  confined  to  the  facts  of  the  particular case. If we are correct in identifying the  true  ratio  of  the  judgment  in  Yeshwant  Singh  Kothari  (supra),  we do not see any reason why  the same cannot  be per se made applicable to  the  employees  under  the State,  if  the  State  so  decides. In this connection, we must also keep in  mind that the observations of the Apex Court in  para 7 of  the judgment  in  Nagaraj  (supra)  with  regard to the low age of retirement was rendered  in  a  situation  where  the  Apex  Court   was  considering  the  question  of  reduction  of  the  retirement age from 58 to 55. In Nagaraj (supra),  the Apex Court had no occasion to deal with the  alternative  rule  of  retirement,  namely,  upon  completion  of  a  specified  number  of  years  of  service. In fact, we may very well take the view  that  what  has  been  introduced  by  the  second  amendment by prescription of the alternative Rule  of  retirement  is  not  a  age  of  retirement  but  retirement on completion of  35 years of  service  which  is  an  entirely  independent  yardstick.  Retirement  of  an individual  at  the age of  53/54  years  by  adoption  of  the  said  yardstick  is  a  consequence not of attaining a particular age but  of completing the prescribed period of service.

21……The argument advanced on behalf  of the  petitioners  that  the  Second  Amendment  Act  infringes Article 14 and 16 of the Constitution by  prescribing  a  low  retirement  age  has  already  been  dealt  with  in  the  discussions  that  have  preceded. We have also held that prescription of  length of service of 35 years cannot be said to be  unreasonably  short  or  small  to  bring  about  a  situation of arbitrariness or unreasonableness, as  has been contended on behalf of the petitioners.  We have also held that retirement at the age of  53/54 years on completion of 35 years of service  

3

is  a  consequential  effect  of  completion  of  the  prescribed period of service……

22…..The rule of retirement on completion of 35  years of service has relevance to employees who  have joined service at an age below 25 years and  the prescription with  regard to retirement at  the  age  of  60  years  is  in  respect  of  the  persons  joining  service  at  the age of  25 and thereafter.  The above two categories of employees, though  performing similar duties and may be identically  placed  otherwise,  can  still  be  reasonably  understood to form two different classes to whom  application  of  two  rules  of  retirement  will  not  violate  Article  14.  The  doctrine  of  equality  enshrined by Article 14 of the Constitution is not  necessary to be nor it is capable of being applied  with  mathematical  exactitude and some amount  of  advantage  or  dis-advantage  to  persons  who  may seemingly appear to be equally placed can  occur  in  a given situation.  In the present  case,  persons  joining  Government  service  after  25  years of age, say at 30 or 35 years, though may  retire at 60, will  have a lesser period of service  than the persons who may retire at an earlier age  by virtue of the rule of retirement on completion of  35 years of service. Each and every instance of  such  advantage  and  corresponding  dis- advantage  will  not  attract  Article  14.  In  fact,  uniformity  to  the  extent  possible,  thereby,  enhancing  the  concept  of  equality  has  been  sought  to  be  brought  in  by  the  Second  Amendment  Act  by  prescribing  retirement  on  completion of 35 years of service.

23.……That  apart,  the  materials  placed  before  the Court along with the counter affidavit  of the  respondent  State  indicates  that  the  policy  decision with regard to retirement on completion  of  35  years  of  service  brought  about  by  the  Second  Amendment  Act  was  preceded  by  an  elaborate  and  indepth  study  of  the  possible  consequences  of  introduction  of  the  said  policy  

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and the same is the result of a conscious attempt  to  balance  different  shades  of  opinion  and  interests.”

41. We find ourselves in agreement with the aforesaid  

view of the High Court. It cannot be overlooked that the whole  

idea behind the impugned provision is to create opportunities  

for  employment  and  check  unemployment.  The  impugned  

provision  is  aimed  to  combat  unrest  amongst  educated  

unemployed  youth  and  to  ensure  that  they  do  not  join  

underground movement.  As observed by this Court in State of  

Maharashtra v. Chandrabhan12, public employment opportunity  

is national  wealth  in which all  citizens are equally  entitled to  

share.   In  our  opinion  the  legislation  of  the  kind  we  are  

concerned  with  must  be  regarded  as  establishing  the  

government policy for retirement from public employment based  

on age or length of service to achieve a legitimate aim in public  

interest to permit better access to employment to large number  

of educated youth in the State and for the purpose of curbing  

the  unemployment.  The legitimacy  of  such  an  aim of  public  

interest cannot be reasonably called into question.  In any case,  

the impugned provision founded on peculiar considerations of  12 AIR 1983 SC 803

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the State does not appear to be unreasonable nor it smacks of  

any  arbitrariness.  Moreover,  the  impugned  provision  is  in  

consonance with the legal position highlighted by this Court in  

Yeshwant Singh Kothari1 and K. Nagaraj2 and as stated in  K.  

Nagaraj2, that while testing the validity of policy issues like the  

age of retirement, it is not proper to put the conflicting claims in  

a sensitive judicial  scale and decide the issue by finding out  

which  way  the  balance  tilts.  Such  an  exercise  is  within  the  

domain  of  the  Legislature.  By  the  impugned  provision,  the  

Legislature, after balancing the competing interest of different  

groups, has sought to open avenues of employment for a large  

number  of  educated  youth  in  the  State.  From  the  material  

placed on record it cannot be said that impugned provision has  

been  enacted  without  any  data  and  consideration  of  broad  

aspects of the question.  

42. We  are  not  impressed  by  the  argument  of  the  

appellants that impugned provision is arbitrary not only from the  

point of view of the employees as a whole but also from the  

point of view of public interest since the public at large shall be  

deprived of the benefit of the mature experience of the senior  

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government employees. If the State Government felt that it was  

not fair to deny the large number of educated youth in the State  

an  opportunity  of  public  employment  because  of  existing  

provisions  of  retirement  from  public  employment  and  

accordingly decided to have the impugned provision enacted  

through the legislative process, we are afraid, in the guise of  

mature experience, such provision may not be held to against  

public interest and arbitrary.  

43. During the course of  arguments,  on behalf  of  the  

State  a  statement  was  submitted  that  indicated  that  3098  

employees  retired  from  October  31,  2009  to  December  31,  

2009 on completion of 35 years of service although they had  

not completed the age of 60 years;  of 3098 employees, 181  

retired at the age of 53 years and 512 retired at the age of 54  

years.   The  statement  thus  indicated  that  percentage  of  

employees retiring at the age of 53 is 5.84 per cent and those  

retiring  at  the  age  of  54  years  is  16.52  per  cent  during  the  

aforesaid  period.  It  further  transpired  therefrom  that  145  

employees joined service at the age of 9 to 17 years.  

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44. The aforesaid position, however, has been disputed  

by  the  appellants.   According  to  them  4680  employees  at  

different  age  retired  upto  March  31,  2010.  The  statement  

annexed with the written arguments on behalf of the appellants  

in this regard is as follows :

  “ Age Number Percentage

Below 53 256 5.5 53 429 9.5 54 757 16 55 1167 24 Above 55 2071 45 Total 4690

(4680-

sic)                                                                           ”  

The appellants’ contention is that 31 per cent employees  

retired  at  the  age  of  54  and  below  which  constitutes  a  

substantial section of the total retirees and that also shows that  

the impugned enactment is arbitrary.

45. Insofar as factual aspect is concerned, we have no  

justifiable reason to disbelieve the statement submitted by the  

State  Government  indicating  that  3098 employees retired  on  

completion of 35 years of service with effect from October 31,  

2009  to  December  31,  2009.  There  is  variation  because  

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appellants have given the figures of the employees who retired  

upto March 31, 2010.  Be that as it may, it appears that most of  

the  employees  retired  at  the  age  of  54  and  above  and  the  

persons retiring at the age of 53 are only 5.84 per cent. The  

persons  retiring  at  the  age  of  52  and  below are  those  who  

joined the  Government  service  at  the  age of  9  to  17 years.  

Merely  because  some  employees  had  to  retire  from  public  

employment on completion of 35 years of service although they  

have  not  completed  55  years  of  age  does  not  lead  to  any  

conclusion that the impugned enactment is arbitrary, irrational,  

unfair and unconstitutional. The fact that provision such as the  

impugned  provision  that  allows  the  retirement  from  public  

employment  on completion of  35 years’  service  is  not  to  be  

found in other States is of no relevance.  As a matter of fact,  

retirement  policy  concerning  public  employment  differs  from  

State  to  State.   Kerala  retires  employees  from  public  

employment  at  the  age  of  55  years.   In  any  case  there  is  

nothing wrong if  the legislation provides for  retirement of  the  

government employees based on maximum length of service or  

on  attaining  particular  age,  whichever  is  earlier,  if  the  

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prescribed length of service or age is not irrational.  

46. The  appellants’  contention  that  alternative  method  of  

retirement by way of length of service would result in different  

age  of  superannuation  of  employees holding  the  same post  

depending upon their age of entry into  service and would be  

manifestly violative of Articles 14 and 16 of the Constitution is  

noted to be rejected.  Suffice it to say that alternative mode of  

retirement provided in the impugned provision is applicable to  

all State Government employees.  There is no discrimination.  

The impugned provision prescribes two rules of retirement, one  

by reference to age and the other by reference to maximum  

length of service. The classification is founded on valid reason.  

Pertinently, no uniformity in length of service can be maintained  

if the retirement from public employment is on account of age  

since age of the government employees at the time of entry into  

service would not be same. Conversely, no uniformity in age  

could be possible if retirement rule prescribes maximum length  

of  service.  The  age  at  the  time  of  entry  into  service  would  

always  make  such  difference.  In  our  view,  challenge  to  the  

impugned provision based on the aforesaid ground must fail.  

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47. As  regards  judgment  of  the  Gauhati  High  Court  

dated January 18, 1993,  suffice it to say that the said judgment  

does not lay down the correct legal position. That judgment is in  

direct conflict with the judgment of this Court in Yeshwant Singh  

Kothari1   where this Court  upheld the provision for retirement  

which was to the effect, ‘an officer shall retire from the service  

of  the  Bank  on  attaining  the  age  of  58  years  or  upon  the  

completion  of  30  years’  service,  whichever  occurs  first’.  

Unfortunately,  the  decision  of  this  Court  in  Yeshwant  Singh  

Kothari1 although earlier in point of time was not brought to the  

notice  of  Gauhati  High  Court.   This  might  have  happened  

because  of  short  time  gap  between  the  two  judgments;  the  

judgment in  Yeshwant Singh Kothari1    was  delivered by this  

Court on January 14, 1993 while Single Judge of the Gauhati  

High Court pronounced judgment on January 18, 1993.  Had the  

judgment of this Court in Yeshwant Singh Kothari1 been shown,  

ought  we know what  would have been the view of  the High  

Court.   Be  that  as  it  may,  the  judgment  of  this  Court  in  

Yeshwant Singh Kothari1 holds the field.  

Conclusion

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48. In the light of the foregoing considerations, we hold  

that a provision such as that at issue which prescribes retiring  

the persons from public employment in the State of Nagaland  

on completion of 35 years’ service from the date of joining or  

until attaining the age of 60 years, whichever is earlier, does not  

suffer  from the vice of  arbitrariness or irrationality  and is not  

violative of Articles 14 and 16 of the Constitution.  The appeal  

has no merit and is dismissed with no order as to costs.

………….……………..J                 (J. M. Panchal)

…..…….……………..J                  (R. M. Lodha)

New Delhi. July 6, 2010.

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