TMI Blog2010 (7) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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. The appellant-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. HELD THAT:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 1991. Section 3 thereof provided for retirement from public employment. It states: Section.-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into Civil 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, ₹ 1st 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 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: Section 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. Section 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-As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior 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 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 inasm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1968 SC 1 and The Amalgamated Tea Estates Co. Ltd. v. State of Kerala 1974 (4) SCC 415. 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 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 completio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously, 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. Nagaraj (1985) 1 SCC 523 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Singh (1964) 6 SCR 679, 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 a priori 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 Article 14 makes averments with details to sustain such a plea and leads ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (1988) 3 SCC 382 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 sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, 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 in depth study of the possible consequences of introduction of the said policy 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement 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 there from that 145 employees joined service at the age of 9 to 17 years. 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: The appellants' contention is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Kothari 1993 Suppl. (2) SCC 592 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 Kothari 1993 Suppl. (2) SCC 592 although earlier in point of time was not brought to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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