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1985 (8) TMI 372

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..... o, 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, 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 R .....

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..... ile much 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 statewide agitation by affected employees and on August 3, 1983, an agreement was arrived at between the Government of Andhra Pradesh and the .....

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..... o 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 .....

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..... nacted 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 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 .....

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..... . 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 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 m .....

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..... y 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 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. 3 .....

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..... , 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 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 provisi .....

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..... e 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 .....

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..... 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 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 .....

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..... o 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 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 un .....

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..... ade 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 1 .....

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..... el, 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 .....

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..... ed 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: 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 requi .....

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..... 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 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 .....

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..... 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 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 together from those that are left out of the .....

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..... 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 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 .....

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..... en 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 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 pri .....

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..... ales 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 .....

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..... ge 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 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 rem .....

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..... 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 .....

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..... ty. 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 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, quit .....

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..... e safer course would be to strike down the offending word 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 und .....

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..... 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. 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 .....

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..... . 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 .....

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..... ishun 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 State of Andhra Pradesh, the Bench suggested that the counsel for the State should take .....

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..... y could work till the 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 ul .....

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