Brig. K.S. Rao, Air Commodore S.P. ... vs The Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1467 Del

JUDGMENT

S.B. Sinha, C.J.

1. Whether increasing the age of retirement from 58 years to 60 years in the case of other officers whereas increasing the same to 59 years in the case of Brigadiers, is unconstitutional or not, is the question involved in these writ petitions.

2. The fact of the matter, however, is being noticed from CW 2559/2000 Brig. K.S. Rao's case.

3. The petitioner is working in the defense forces. The Government of India vide Office Memorandum dated 13th May 1998 issued decision of the Union of India to implement the recommendations made by the Fifth Central Pay Commission vide letter No. 25012/N/97-Estt(A) of Ministry of Personnel, Public Grievance & Pensions (Department of Personnel & Training) which made recommendations that the Central Pay Commission was constituted for revising the pay scale of the Cental Government employees including the defense officers. Consequent upon acceptance of the recommendations made by the said Commission, the Central Government issued a notification on 30th May 1998 and thereby Fundamental Rules were amended. Rule 56 of the Fundamental Rules, 1963 was amended to the effect that every Government servant shall retire from services on the afternoon of the last day of the month in which he attains the age of sixty years. No rule made in terms of the proviso appended to Article 309 of the Constitution apply to personnel or under the provisions of the Army Act, In relation to the personnel of Armed Forces and the Central Para-Military Forces, a policy memorandum was issued, inter alia, stating:

"6. It has been also decided that the age of retirement of the personnel of the Armed Forces and the Central Para-Military Forces, be enhanced by two years. Necessary orders and amendment to the respective rules, etc. will be issued by the Ministry of defense and Ministry of Home Affairs, as the case may be, in consultation with Department of Personnel & Training."

4. The said policy decision was communicated by a letter dated 30th May 1998 by the Director of Ministry of defense to the Chief of Army Staff, the relevant portion whereof reads thus:

"I am directed to refer to para 6 of the Ministry of Personnel, Public Grievances & Pension, (DOP & T) O.M. No. 25012/ 2 /97-Estt (A) dated 13.5.1998 and to say that the modalities of the implementation of orders regarding retirement age of Army personnel by two years are under active consideration of the Govt. and the orders on the same will be issued shortly. In the meantime, the President is pleased to defer the retirement of all Army personnel who are to entire on 31.5.98 and thereafter till final orders are issued except the following categories.

(a) to (f)

(g) Lt Gen & equivalent of Armed Forces Medical Services who have attained their stipulated age of retirement viz. 60 years."

5. Pursuant to or in furtherance of the said policy decision, rank-wise changes in retirement age of the officers were made which are as under:

Category of Officer

Age of retirement (in years)

Before31.5.1998

After31.5,1998

(i)

AMC (Non-Tech.) officers

(ii)

AMC(Tech.), ADC, RVC and MNS officers

(a) Lt. Co. & equivalent and below

(b) Colonel and equivalent

(c) Brigadiers and equivalent

(d) Major General and equivalent

(e) Lt. General and equivalent

6. Allegedly, a dispute which had arisen for allowing the officers of the rank of Lt. Generals and equivalent in Air Force and Navy to continue in service beyond the age of 60 years, was determined allegedly in terms of a decision taken in this regard.

7. In a Division Bench decision of this court in Union of India v. Lt. Gen. R.C. Kochhar being LPA No. 520/99 decided on 17th February 2000, it was held:

"In our view on the good reasons, no interference is called for in the impugned decision of learned Single Judge: First being that on 13.5.1998 decision had already been taken that in the case of personnel of Armed Forces and the Central Para Military Forces age of retirement stand enhanced by two years. While giving effect to the said decision by letter dated 30.5.1998 in the case of all armed force personnel, no reason is stated that why category of Lt. Generals and equivalents of Armed Forces were excluded; and secondly, even if there be any reason for excluding the category of Lt. Generals and equivalents of Armed Forces Medical Services and other allied services in the letter dated 30.5.1998, decision was conveyed through letter dated 29.7.1998 not to exclude Lt. Generals and equivalent of Armed Forces Medical Services / Arbitrary cut off date was fixed as 31.7.1998 in letter dated 29.7.1998 by deferring retirement of officers of the rank of Lt. General and equivalent of A.F.M.S. retire on 31.7.1998 and thereafter instead officers retiring on of 31.5.1998 and thereafter. It may be observed that on behalf of the appellant it was stated that till date no decision has yet been taken in the case of all Armed Force officers, who were to retire either on 31.5.1998 and thereafter and in case of Lt. Generals and equivalents of Armed Forces Medical Services and other allied services, who were to retire on 31.7.1998 and thereafter, that when they will retire. Their retirement has been deferred till further orders. We fail to understand that when the Government had taken a decision of extension of two years only from the date of superannuation, in case of all personnel of Armed Force and Central Para Military Forces, why an unlimited deferment of retirement has been ordered in the two letters dated 30.5.1998 and 29.7.1998, which can have the effect of extending the period by mere two years, till further orders are passed."

8. By reason of a letter dated 29th July 1998, three Service Chief were intimated thereto as regard working out the modalities of the age of retirement, the relevant portion whereof is as under:

"I am directed to refer to this Ministry's letter of even number dated 30th May 1998 on the subject of ages of retirement of Army Officers and Personnel Below Officers' Rank including AMC, ADC, MNS and RVC and to say that the ages of retirement of officers of the rank of Lt. General and equivalent of Armed Forces Medical Services have further been considered by the Government. The modalities of the implementation of orders regarding retirement age of Armed Forces personnel by two years based upon Government decision are under active consideration of the Government and the orders n the same will be issued shortly. In the meantime, the President is pleased to defer the retirement of all officers of the rank of Lt. General and equivalent of Armed Forces Medical Services and Remount Veterinary Corps who are due to retire on 31-7-1998 and thereafter on attaining their stipulated age of retirement viz. 60 years."

9. According to the petitioner, having regard to the fact that a final policy decision was adopted in terms of the letter dated 30th May 1998 and only modalities of implementation of the said order were required to be made, it was not permissible for the respondents to resile there from. By reason of the impugned order dated 1st May 2000, as amended by letter dated 8th May 2000, however, orders were issued pursuant whereto and in furtherance whereof if was communicated:

"I am directed to refer to paragraph 6 of Ministry of Personnel, Publiv Grievances and Pension (Department of Personnel and Training) O.M. No. 25012 / 2 / 97 -Estt. (A) dated 13.5.1998 and this Ministry's letter No. 14(3) / 98 / D(AG) dated 30.5.98 and 3.9.98 and to convey the sanction of the President that the following shall be the revised retirement age for offices of Army Medical Corps (AMC), Army Dental Corps (ADC), Military Nursing Services (MNS), Army Medical Corps (Non-tech) [AMC (NT)]:-

 Rank    Age of retirement 
AMC (NT)    56 years 
Lt. Colonel & equivalent  56 years
And below
Colonel & equivalent   58 years
Brigadiers and equivalent  59 years
Major General & equivalent  60 years
 

2. These orders will come into force immediately.
 

3. The period of service of those officers who have continued in service beyond their existing ages of retirement in pursuance of this Ministry's letter No. 14(3) / 98 / D(AG) dated 30.5.98 will be regularized as extension in service as a special case. All such officers will demit their office with effect from 31.5.2000.

4. A1 74 / 76 as amended from time to time and any other instructions in this regard contained in the relevant Rules and Regulations will be deemed to have been amended accordingly.

5. This issues with the concurrence of Ministry of defense (Finance) vide their u.o. No. 1254/Addl. FA(V) / 2000 dated 1.5.2000."

10. However, by reason of a letter dated 8th May 2000, para 3 of the afore-mentioned letter was substituted by the following letter:

"The following amendment is hereby authorised to the Government of India, Ministry of defense letter No. 14(3) / 98- D(AG) dated 1st May, 2000.

2. Existing para 3 may be substituted by the following:

"3. The period of service of those who have continued in service in pursuance of this Ministry's letters No. 14(3)/98 - D(AG) dated 30.5.98, beyond their ages of retirement as given in para 1, will be regularized as extension in service as a special case. All such officers will demit office with effect from 31-5-2000."

3. This issues with the concurrence of Ministry of defense (Finance) vide their u.o. No. 1347 / Addl. FA (V) / 2000 dated 8.5.2000."

11. The contention of Mr. Khanna, the learned counsel for the petitioner is that having regard to the fact that a policy decision had been taken to uniformly increase the age of the officers holding the rank of Brigadier and equivalent, there was absolutely no reason as to why by reason of the impugned order dated 1st May 2000 as amended by order dated 8th May 2000, the retirement age instead and place of 60 years was increased only to 59 years. It has been contended that from the history of the age of superannuation of the Army Officers, it would appear that the age of retirement of the Brigadiers was 58 years whereas that of the Colonel was 57 years and those holding the posts of Major and Lt. Colonel was only 55 years as would appear from the following:

" Age of Superannuation (Prior to Fifth Pay Commission).

Rank Other branches such as Armoured Corps, Infantry etc. ArmyMedical Corps.

Major 50 years 55 years

Lt. Col 51 years 55 years

Col.Col.

52 years 57 years

Brigadier 54 years 58 years

Major Gen. 56 years 59 years

Lt. Gen. 58 years 60 years

" Age of Superannuation (Post Fifth Pay Commission).

Rank

Other branches such as Armoured Corps, Infantry etc.

Army Medical Corps.

Major

52 years

56 years

Lt. Col

53 years

56 years

Col.

54 years

58 years

Brigadier

56 years

59 years

Major Gen.

58 years

60 years

Lt. Gen.

60 years

*61 years

Note: * the age of superannuation for Lt. Gen. in AMC is 61 years or two years in the rank whichever is earlier as the same is tenure rank. Apart from the above there is a single post of Director General Armed Forces Medical Services which is a post available to an officer in AMC who has earned a rank of Lt. Gen. The Director General of Armed forces retires at the age of 62 years or after serving a tenure of three years in the post whichever is earlier."

12. In regard to the Indian Air Force officers, the retirement age in respect of permanent commissioner and branch commissioner officers was as under:

" A. Permanent Commissioner Officers

Substantive Rank

Flying Branch

Ground Duty Branches other than education&Meteorological 

Meteorological Branch

Education Branch 

years

Air Marshal

Air Vice Marshal 57 (Extendable to 58) 57 (Extendableto 58) 57 (Extendableto 58) 57 (Extendable to 58)

Air Commodore 54 (Extendable to 56)

Group Captain 52 (Extendable to 54)

Wing Commander (Selective)

54 (See Note - 1)

Wing Commander (Time Scale)

54 (See Note - 1)

Sqn. Ldr. & below

54 (See Note - 1)

B. Branch Commissioned Officers - 57 years

Note-1: In the case of Education Offices the retirement age of Wg. Cdr. And below can be raised to 57 years if they are fully qualified for the Branch and possess the following qualifications or higher qualifications:

(a) An honour degree of a recognised Indian or Foreign University and -

(i) a degree or diploma in teaching from a recognized university, or

(ii) at least two years teaching experience in a recognized educational institution

OR

(b) An Engineering degree of a recognised Indian or Foreign University or equivalent qualification recognized by the Government and -

(i) Specialized training in Aeronautical Wireless or Mechanical Engineering, or

(ii) Drawing office/or workshop experience

OR

(c) M.A., M.Sc., or M.Ed.

This enhancement will also apply to Education Officers who were recruited during the last war under AFI 123 / 43 and posses the following qualifications;

(i) M.A. / M.Sc.

(ii)

(iii) B.A. / B.Sc., with a degree in teaching and to those education officers who were commissioned from ranks.

Note-2: Medical and Dental officers will be governed by the rules applicable to AMC and ADC respectively in the Army.

Note-3: In the above table, wherever the age of compulsory retirement is extendable, such extension will not be granted automatically but will be subject to the fulfillling of requisite conditions to be determined by Ministry of defense in consultation with Ministry of defense (Finance) and Air HQrs."

13. The contention of the respondents in that in terms of Article 33 of the Constitution of India, the Fundamental Rights, if any, of the petitioner stand curtailed on the protection stipulated by the Army Act, 1950 and the Rules and Regulations made therein.

14. It has been contended by learned counsel for the respondents that the age of retirement of the Director General of Armed Forces was 62 years.

15. According to the learned counsel, although the relevant rules had not been amended but having regard to the facts and circumstances of this case, the policy decision could not have been changed. It was submitted that at least in one of the cases namely in the case of Brig. Prabir Kumar Sarkar in CWP No. 2673/2000, he was already in the list of promotion and had the impugned orders not been issued, he could have been promoted to a higher post where after his age of retirement would have been 60 years.

16. It was submitted that the decision taken in the matter being not final, it was open to the respondents to change the age of superannuation. Strong reliance in this connection has been placed on K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr., , Roshan Lal Tandon v. Union of India and Anr., Union of India and Ors. v. Lieut. (Mrs.) E. Iacats, .

17. The learned counsel would contend that the writ petitioners neither have any Fundamental Right as regards conditions of service nor have they any Fundamental Right for promotion whereby chances of promotion are merely affected, cannot be regarded as varying a condition of service. It has been pointed out that not only the method of recruitment is different, even the educational qualifications for the said posts are also different.

18. In Chandra Gupta v. Secretary Govt. of India, Ministry of Environment & Forest and Ors. 1994 (5) SLR 1, it was noted that no employee has a right or vested right to chances of promotion.

19. An employee, it is trite, does not have any Fundamental Right or statutory right to serve his employer up to a particular age. It may be true that the age of superannuation should be determined objectively but no fixed criteria therefore can be laid down.

20. It may be true that the Central Government in terms of its letter dated 13th May 1998 and another letter dated 30th May 1998 had thought to extend the age of superannuation uniformly but no final decision had been taken in relation thereto. Any policy decision as is well known, can be replaced by another policy decision. Even a rule made as regards the age of superannuation can be changed. In K. Perumal v. A & N Administration and Ors., 2000(1) CHN 866, one of us observed:

"19...However, he can issued executive instructions in such fields and in respect of the matter which is not covered by any legislation. An executive instruction issued or a policy decision taken in favor of a trespasser would be subject to fulfillment of the conditions imposed thereby. Undoubtedly the same can be modified, amended or rescinded. A policy decision taken may even be withdrawn..."

21. The ratio of said decision has been noted with approval by a division bench of the Calcutta High Court in Lt. Governor v. Kulsn Bibi, 2000(1) 2nd (A&N) 28.

22. In Madhya Pradesh Ration Vikreta Sangh Society and Ors. etc., v. State of Madhya Pradesh and Ors. 1981 (AIR) SC 2001, the Apex Court held:-

"9. The question whether fair price shops in the State of Madhya Pradesh under a Government scheme should be directly run by the Government through the instrumentality of consumers' co-operative societies as its agents or by retail dealers to be appointed by the Collector under Clause 3 of the Control Order; is essentially a matter of policy with which the Court is not concerned. ..."

23. In K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. (supra), it was held that despite recommendations of the Pay Commission, the age of retirement can be reduced. The Apex Court held, in the facts and circumstances of the case, that 58 years cannot be said to be the age of retirement and not 55. However, in the instant case, as noticed hereinbefore, the age of retirement has been fixed at 59 years. In the words of the Apex Court:

"28. 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 recognized norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. 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 influence 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 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."

24. In Roshan Lal Tandon v. Union of India and Anr. (supra), the law has been laid down in the following terms:

"6. We pass on to consider the next contention of the petitioner that there was contractual rights as regards the condition of service applicable to the petitioner at the time he entered Grade 'D' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B', laid down that promotion to Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his cost or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status in a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:

"So we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status." (Salmond and Williams on Contracts, 2nd edition, p. 12)."

25. In Shri Hari Krishan Sharma v. Municipal Corporation of Delhi, , it has been held that the fixing of the age of retirement or superannuation is a matter for the government and the employees have no legal right to continue in service after attaining the age of retirement.

26. Yet again, in Union of India and Ors. v. Lieut. (Mrs.) E. lacats (supra), it was held that it is permissible for the military authorities to fix a cut-off date.

27. This court in a recent decision in Anuradha Saini and Ors. v. Union of India, CWP 2260/2002 decided on 11th July 2002 has observed that by reason of an abolition of posts, a right of life and liberty is not taken away.

28. We, therefore, are of the opinion that by reason of the impugned order, particularly having regard to the fact that according to the respondents, not only the method of recruitment is different but the educational qualifications and other relevant material are different, the impugned orders cannot be said to be arbitrary attracting the wrath of Article 14 of the Constitution of India. Furthermore, the writ petitioners herein had no vested right of promotion; they merely had the chances of promotion.

29. In Ramachandra Shankar Deodhar and Ors. v. The State of Maharashtra and Ors., , it has been held:

"12. ...A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In State of Mysore v. G.B. Purohit , [C.A. No. 2281 of 1965, D/- -285 - 1-1967 (SC)] the district-wise seniority of sanitary inspector was changed to State-wise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115 Sub-section (7). This contention was negative and Wanchoo, J. (as he then was), speaking on behalf of this Court observed: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. It is, therefore, clear that neither the Rules of 30th July, 1959, nor the procedure for making promotions to the posts of Deputy Collector division-wise varies the conditions of service of the petitioners to their disadvantage. The proviso to Section 115, Sub-section (7) is accordingly not attracted and the Rules of 30th July, 1959 cannot be assailed as invalid on ground of non-compliance with that proviso..."

30. Yet again in Mohammad Shujat Ali and Ors. v. Union of India and Ors. 1974 (2) SLR 508, it has been held:

"16. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to non-graduate supervisors from the erstwhile State of Hyderabad immediately prior to 1st November, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncement of this Court on the point and particularly the decision in Mohammed Bhakar v. Krishna Reddy [1970 SLR 768] where this Court, speaking through Mitter, J., said: "Any rule which affects the promotion of a person relates to his condition of service. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion - the latter would certainly not be a condition of service. This Court pointed out in State of Mysore v. G.B. Purohit [1967 SLR 753] that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G.B. Purohit [1967 SLR 753] was that the district-wise seniority of Sanitary Inspectors was changed to State-wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under a proviso to Section 115, Sub-section (7). This contention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument, because chances of promotion are not conditions of service." Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced: originally it was fifty per cent, then it became thirty-three and one third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to 1st November, 1956 and the proviso to section 115, Sub-section (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar and Ors. , v. The State of Maharashtra [1974 (1) SLR 470]."

31. For the reasons afore-mentioned, we find no merit in these writ petitions which are accordingly dismissed but in the facts and circumstances of the case, there shall be no order as to costs.