B. Prabhakar Rao & Ors Vs. State of Andhra Pradesh & Orsetc [1985] INSC 182 (19 August 1985)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA (J) ERADI, V. BALAKRISHNA (J) KHALID, V. (J)
CITATION: 1986 AIR 210 1985 SCR Supl. (2) 573 1985 SCC Supl. 432 1985 SCALE (2)256
CITATOR INFO:
R 1989 SC 903 (24) R 1992 SC 320 (85) RF 1992 SC 767 (8) RF 1992 SC1277 (42)
ACT:
Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act 1984 section 3(1) and Explanation II (a`).
Fundamental Rules Rule 56 (a) and Hyderabad Civil Service Rules Rule 231.
HEADNOTE:
Employees - Age of superannuation - Change of - Amendments effected by Ordinance No. 24 of 1984 and section 4 (1) of Act 3 of 1985 - Whether constitutionally valid - Fixation of date and division of employees into two class on basis thereof - Whether permissible - Whether amenable to judicial scrutiny - Age Of Superannuation - Change of policy or reversal of policy.
Constitution of India 1950, Article 14 Classification - Reasonableness of - Burden of proof on State .
Interpretation of Statutes Government department administering Act - Official statement of - Whether relevant for interpretation legislation to remedy wrongs - Wronged persons - Whether can be excluded.
Practice & Procedure Writ petition - Dismissal in limini - Whether bar to entertainment of another similar writ petition.
In the State of Andhra Pradesh the age of superannuation was 55 years to begin with, but in the year 1979, the Government raised the age to 58 years. In February 1983, the Government decided to reduce the age of superannuation of its employees from 58 to 55 years, and also issued directives to local authorities and public corporations under its control to do likewise.
574 In order to give effect to the aforesaid policy of reversal, the Government amended Rule 56(a) of the Fundamental Rules and Rule 231 of the Hyderabad Civil Services Rules by substituting the figure '55' for the figure '58' and by making a special provision that those who had already attained the age of 55 years and were continuing in service beyond that age on 28.2.1983 shall retire from service on the afternoon of 28.2.1983.
This was followed by another notification dated 17.2.1983 deleting the proviso to Rule 2 of the Fundamental Rules which protected a civil servant against a change in conditions of service to his detriment after he entered service. The Andhra Pradesh Ordinance No. 5 of 1983 was promulgated regulating the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the State of Andhra Pradesh and the Officers and servants of the High Court of Andhra Pradesh Clause 10 of the Ordinance provided that every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-five years. In the case of Government employees belonging to the Last Grade Service, it was provided that they shall retire from service on the afternoon of the last day of the month in which they attain the age of sixty years. Clause 18(1) provided that the proviso to Rule 2 of the Fundamental Rules shall be deemed always to have been omitted.
Immediately after the notification reducing the age of superannuation from 58 to 55 were issued, a large number of Government employees, employees of public sector corporations, and teachers working under various authorities filed writ petitions in this Court as well as in the High Court of Andhra Pradesh challenging the vires of the provisions reducing the age of superannuation.
There was also a State wide agitation by affected employees and on August 3, 1983 an Agreement was arrived at between the Government and the Action Committee of Employees and Workers. Clause (1) of the agreement provided that proviso to F.R. 2 will be restored in respect of all matters, except the age of superannuation retrospectively and that the provisions of the Ordinance relating to the age of superannuation will also be removed after the judgment of the Supreme Court. The Agreement, also, contained a stipulation that it was not to be placed before the Supreme Court either by the Government or by the employees.
575 The Andhra Pradesh Legislature enacted the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act No 23 of 1984 making it applicable to persons appointed to public service and posts and other employees in any Local Authority, Houses of the State Legislature etc. On August 23, 1984 the Act was amended by- the promulgation of the Andhra Pradesh Ordinance No. 24 of 1984 providing that in s. 3(1) of the Act and in Explanation II (a) the words 'fifty-eight years' shall be substituted for the words 'fifty-five years'. The Andhra Pradesh Ordinance No, 24 of 1984 was replaced by Act No. 3 of 1985.
By sec. 2 of the Amending Act, the words 'Fifty-five years' were substituted by the words 'fifty-eight years' in Sec. 3(1) and Explanation II(a) of the Principal Act.
Section 4 of the Amending Act, which replaced Clause 3(1) of Ordinance No. 24 of 1984 provided : that: "4(1) The provisions of section 2 of the Act shall not apply to persons who attained the age of superannuation pursuance of the notifications issued....... or in pursuance of the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act 1984.... ...." During the pendency of the Writ Petitions in this Court, several employees of local authorities etc. Obtained orders of stay from the High Court and were continuing in service on the E date when the judgment of the Supreme Court was pronounced. After the pronouncement of the judgment of the Supreme Court, the authorities sought to give effect to the provisions of the Act and the Ordinance by seeking to throw out the employees on the ground that they had completed 55 years of age during the interregnum between February 28, 1983 and August 23, 1984.
Some others who had completed 55 years between February 28, 1983 and August 23, 1984 but who had not completed 58 years sought re-entry, notwithstanding the raising of the age of superannuation from 55 years to 58 years. Their re- entry was sought to be resisted on the basis of cl. 3(1) of the Ordinance and s. 4(1) of the Amending Act. Those employees who were sought to be removed from service or who were denied re-entry into service On the ground that they had attained the age of 55 years between February 28, 1983 and August 23, 1984 once again invoked the jurisdiction of this Court under Article 32 and sought appropriate writs to continue or to reinstate and continue them in service until they attain the age of 58 Years.
576 On 23.4.1985, a Division Bench of this Court, directed that those Government servants who were in service prior to April 1, 1985 and who were removed from service on account of reduction in age, shall be reinducted in service, if the posts from which each one was removed was still vacant or someone was holding a temporary change.
On May 6/7, 1985 another Bench of this Court directed that the aforesaid Order dated 23rd April, 1985 should be implemented to the extent that the posts from which the employees were removed are still vacant or where such post was held temporarily by others on promotion under Rule 37 of the A.P. States Subordinate Service Rules.
Many persons claiming to have been appointed under Rule 10 or claiming to have been promoted regularly notwithstanding the mention of Rule 37, filed writ petitions questioning the orders of reversion with which they were faced consequent on the aforesaid interim directions of the Court.
On behalf of the employees who had attained the age of 55 years between 28.2.1983 and 23.8.1984 lt was contended that the classification of these persons as a separate group for the purpose of excluding them from the benefit of the redressal of the wrong tone to the and the relief given to them by the amending Ordinance and the Act, was an unreasonable classification having no nexus whatever with the object of the legislation. It was urged that every person who was in Government employment on 28.2.1983 was hit by the reduction of the age of superannuation from 58 to 55 years and when it was realised that a grievous wrong hat been tone which it was necessary to set right by reversing the policy and such a policy decision having been taken, there was no reason to postpone effect being given to the reversal of policy to an uncertain date, namely the pronouncement of the Judgment by the Supreme Court and thereby excluding from the benefits of the change of policy, that group of persons who hat the misfortune of attaining the age of 55 years. It was further contended that several persons who were continuing in service by virtue of stay orders obtained from the High Court, were also sought to be sent away by the Government on the ground that hat they not obtained the orders of stay they would have retired from service on having attained the age of 55 years ant this was patently unreasonable.
On behalf of the State Government and Officers who were promoted in the vacancies created by the retirement of those who 577 had attained the age of 55 years, it was submitted that there was no discrimination whatsoever and that what the Government had done w merely to classify those employees who had ceased to be in service or who should have ceased to be in service And refused to apply the increased age of superannuation to them. Having gone out of service, there was no question of their being eligible to the increased age of superannuation and therefore, the classification was perfectly reasonable. It was also urged that appointments and promotions were made subsequent to the reduction of the age of superannuation on regular basis ant those appointments aud promotions could not therefore be disturbed.
^
HELD: [By the Court Per Chinnappa Reddy, Balakrishna Eradi & Khalid, JJ.]
1. Clause 3 (1) of Ordinance No. 24 of 84 and Section 4(1) of Act NO.. 3 of 1985 be brought to conform to the requirements of Article 14 of the Constitution by striking down or omitting the word 'not' from those provisions. [615 G]
2. In exercise of powers under Art. 32 ant 142 of the Constitution the following directions given :
a. All employees of the Government, public Corporations ant local authorities, who were retired from service on the ground that they hat attained the age of 55 years by 28.2.83 or between 28.2.83 ant 23.8.84 shall be reinstated in service provided they would not be completing the age of 58 years on or before 31.10.1984. [616 B-C] - b. All employees who were compelled to retire on February 28, 1983 and between February 28, 1983 and August 23, 1984 and who are not eligible for reinstatement under the first clause, shall be entitled to be paid compensation equal to the total emoluments which they would have received, hat they been in service until they attained the age of 58 years, less any amount they might have received. They will be entitled to consequential retiral benefits. [616 D] c. Such of the employees as have not been compelled to retire by virtue of orders of stay obtained from the High Court or the Administrative Tribunal or who have actually been reinstated in service pursuant to interim orders cf this Court, shall be allowed to continue in service until they attain the higher age of superannuation. [616 F] 578 d. The reinduction of those employees that have been A compelled to retire previously, will put them back as regards their seniority in precisely the same position which they occupied before they were retired from service and be entitled to all further consequential benefits. [616 G] e. The employees who were retired and who are reinducted will be entitled to be compensated for the period during which they were out of service. [616 H] f. In the matter of reinduction of employees who do not attain the age of 58 years on or before 31st October, 1985 the Government may exercise an option not to reinduct then provided the employees are paid the compensation. [617 A] g. The government is free to revert persons promoted or appointed to the posts held by persons who were retired on having attained the age of 55 years by 28.2.1983 or between 28.2.83 and 23.8.84 to the posts which they held on February 28, 1983 or on the dates previous to their promotion or appointment provided that they need not be so reverted, if they would otherwise be entitled to be promoted or appointed even if the other employees had not been retired consequent on the lowering of the age of superannuation. [617 C] h. The Government shall be free to create supernumerary posts whenever they consider it necessary 80 to do. [617 E] i. All payment of compensation to be made and completed before December 31, 1985. If for any reason the Government finds itself unable to a pay the entire amount at one time or within the time fixed, the Government will be at liberty to pay the amount in not more than four instalments within the time stipulated. Where the employees are awarded compensation, they may apply to the concerned Income Tax Officer for relief under Section 89 of the Income Tax Act read with Rule 21-A of the Income Tax Rules. [617 F] 3a. The dismissal in limine of the earlier Writ Petition cannot possibly bar the present Writ Petitions.
Such a dismissal may inhibit the courts' discretion but not its jurisdiction. [615 D] 3b. Even if some affected parties have not been impleaded their interests are identical with and have been sufficiently and well represented. The relief claimed is of a general nature and against the State and no particular relief is claimed against any individual party. [615 F] 579 3c. It is one thing to say that the Executive Government has no power to pass an order extending the service of a Government servant after he has retired from service; it is altogether a different thing to say that the State while making a law raising the age of superannuation cannot make an unreasonable classification to exclude some Government Servants from the benefit of the increased age of superannuation. The classification must pass the dual test of beating reasonable and related to the object of the legislation, besides not being arbitrary. It is not t open to the State to make an arbitrary classification first by making the date dependent on an uncertain event namely, the date of pronouncement of the Judgment by the Supreme Court and next by making a legislation excluding persons who had attained the age of 55 years before the legislation took effect though the legislation itself was designed to undo the wrong already done to the very Government employees.
[604 F-605 A] 3d. Whenever a law is made or whenever an action is taken, lt has to be with effect from a certain date but it does not necessarily follow that the choice of the date is not open to scrutiny at all. If the choice of the date is made burdensome to some of those, the wrong done to whom is sought to be rectified by the law, it would certainly be open to the court to examine the choice of the date of find out whether it has resulted in any discrimination. [605 C] D.S. Nakara v. Union of India, [1983] 2 S.C.R. 165 referred to.
Bishnu Narain Mishra v. State of Uttar Pradesh & Ors.
[1965] 1 S.C.R. 693, K. Nagaraj & Ors. v. State of Andhra Pradesh A.I.R. 1985 S.C. 551 and State of Assam v. Padma Ram Borah A.I.R. 1965 S.C. 473 distinguished.
4. (a) As the judgment was not pronounced for long, it became imperative for the Government to implement their decision of their own accord and so they passed Ordinance No. 24 of 1984 and Act No. 3 of 1985 amending Act No. 23 of 1984 by substituting 58 years for 55 years. While doing 80, unfortunately again, those that had suffered most by being compelled to retire between 28.2.83 and 23.8.84 were denied the benefit of the legislation by cl. 3(1) of the Ordinance and Sec. 4 (1) of Act No.3 of 1985. Now if all affected employees hit by the reduction of the age of superannuation formed a class and no sooner than the age of superannuation was reduced, it was realist that injustice had 580 been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick out a class of persons who deserved the same treatment and exclude them from the benefits of the beneficient treatment by classifying them as a separate group merely because of the delay in taking the remedial action already decided upon. [611 D-F]
4. (b) The action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory. The division of Government employees into two classes those who had already attained the age of 55 on 28.2.83 on the one hand, and those who attained the age of 55 between 28.2.83 and 23.8.84 on the other and denying the benefit of the higher age of supernnuation to the former class is as arbitrary, as the division of Government employees entitled to pension in the past and in the future into two classes, that is, those that had retired prior to a specified date and those that retired or would retire after the specified date, and confining the benefits of the new pension rules to the latter class only. [611 G-612 A]
5. Legislations to remedy wrongs ought not to exclude from their purview a few of the wronged persons unless the situation and the circumstances make the redressal of the wrong, in their case, either impossible or 80 detrimental to the public interest that the mischief of the remedy outweighs the mischief sought too be remedied. In the instant case, there is no such impossibility or detriment to the public interest involved in reinducting into service those who had retired as a consequence of the legislation which was since though to be inequitable and sought to be remedied [612 B-C]
6. The burden of establishing the reasonableness of a r classification and its nexus with the object of the legislation is on the State. [612 D]
7. We are governed by the Constitution and Constitution must take precedence over convenience and a judge may not turn a bureaucrat. It may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But there must be sufficient evidence of that how the circumstances will lead to chaos. Ups and downs of career bureaucrats do not by themselves justify such a classification It may however be of some consequence in the matter of granting relief. For instance there would be really no point in reinducting an employee if he has but a month or two to go to attain the 581 age of 58 years to retire. Reinduction of such a person is not likely to be of any use to the administration and may indeed be detrimental to the public interest. It is found to be wasteful. In such cases as well as in cases where they can't be reinducted because they have already completed 58 years by now, they cannot obviously be reinducted. The obvious course is to compensate them monetarily. [613 H-614 C]
8. In Industrial Law back and future wages are awarded on quite a large scale ant there is no reason why the same principle cannot be adopted. If as a rule private employers in such situations are asked to pay back wages, there is no impediment in doing so in the case of those that are expected to be a model employer i.e. the Government, public corporations and local authorities. [614 D]
9. Where internal aids are not forthcoming, recourse to external aids are not ruled out. This is now a well settled principle of modern statutory construction. The 'Enacting History' of an Act is relevant. It is the surrounding corpus of public knowledge relative to its introduction into Parliament as a Bill, and subsequent progress through and ultimate passing by, Parliament. In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act. The history of how an enactment is understood forms part of the contemporanea exposition and may be held to throw light on the legislature's intention. The later history may, under the doctrine that an act is always speaking, indicate how the enactment is regarded in the light of development from time to time. Official statements by the Government department administering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provision. [591 A-D]
10. Committee reports, Parliamentary debates, policy statements and public utterances of official spokesman are of relevance in statutory interpretation. But the comity, the courtesy and respect that ought to prevail between the two prime organs of the State, the Legislature and the judiciary, require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable. Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legislator's intention appears to the court so to require. No rule prevents the court from inspecting in private 582 whatever materials it thinks fit to ensure that it is well informed. Where these materials constitute publicly available documents, the court takes judicial notice of them. The court has an inherent power to inspect any material brought before it. This is to enable the court to determine whether the materials is relevant to the point of construction in question and if so whether it should be admitted. This has to be done with a degree of inhibition and an amount of circumspection. 1591 E-G]
11. The history and the succession of events, the initial lowering of the age of superannuation, the agitation consequent upon it and the agreement that followed the agitation clearly indicate that the object or Ordinance No.
23 of 1984 ant Act No 3 of 1985 was to undo the mischief or the harm that had been done by the lowering of the age of superannuation from 58 years to 55 years and to restore the previous position. It was not a case of change of policy consequent on change of social circumstances. It was not a case of a change of policy to set right immediately the recent wrong perpetrated by a well intentioned but perhaps ill thought measure. It was not at all a case of reversal of policy because of changed circumstances. [591 H-592 B]
12. While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied, or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc.
But it would be incorrect to call a statute 'retrospective', "because a part of the requisites for its action is drawn from a time antecedent to its passing". [614 G-615 A] R.V. St. Mary, Whitechapel [Inhabitants][1842] 12 O.B.
120, referred to.
13. Unlike in the United Kingdom here in India we have written Constitution which confers justiciable fundamental rights and 80 the very refusal to make an Act retrospective or the nonapplication of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non retroactivity or not application clause, as offending the fundamental right to equality fore the law and the equal protection of the laws.
1615 B] 583 [Per V. Balakrishna Eradi, J. concurring.] In is now well established by decisions of this Court that the Government has full power to effect a change in the age of superaunuation cf its employees on relevant considerations. If in the exercise of such power the age of superannuation is enhanced purely by way of implementation of a policy decision taken by the Government, such alteration can legally be brought about with prospective effect from the date of the commencement of the operation of the Ordinance, Act or Rule and no question of violation of Article 14 or 16 of the Constitution will arise merely because the benefit of the change is not extended to employees who have already retired from service. [618 D-E] [Per V. Khalid, J. Concurring] In matters relating to policy decisions the charge of arbitrariness cannot be laid at the doors of the Government.
the Government have full powers to decide about the age of retirement considering the various data available before it.
[619 F] Removing a word or adding words to a legislative enactment is an exercise, Courts have been repeatedly warned against from embarking upon. This guideline is one that has to be respected by the Courts of Law. [620 F] Normally this Court will be disinclined to entertain or to hear petitions raising identical points again where on an earlier occasion, the matters were heard and dismissed. Not that this Court has no jurisdiction to entertain such Matters, but that it would normally exercise its discretion against it. [621 C] In the instant case, the petitions involve a serious human problem. Employees of the State with limited resources, who have been planning their future with a secure feeling that they could work till the age of 58 years, have overnight, been robbed of their tenure, their aspirations and future. They have become the helpless victims of certain Swift moves on the political chess board. These swift moves taken in a hurry without serious application of mind have resulted in arbitrariness which has been forcefully projected by the petitioners, This plea cannot be light heartedly thrown overboard. Justice demands that the petitioners should be saved of their predicament. This Court has to share for the sorry state that has come to pass in the matter. The damage had been done and it can be repaired only be extending 584 this Court's powers to a section of employee who deserves sympathy and fair deal. The case is more or less evenly balanced between the parties. The benevolent jurisdiction of Article 142 (1) of the Constitution has therefore to be invoked. [621-H- 622 B. 621 F] K. Nagera p v. State of A.P. A.I.R. 1985 S.C. 551, Bishnu Narain Mishra v. State of U.P. and others, [1965] 1 S.C.R. 693 and D.S. Nakara v. Union [1983] 2 S.C.R 165, referred to.
ORIGINAL JURISDICTION : Writ Petition Nos. 5447-5546 of 1985 etc. etc.
(Under Article 32 of the Constitution of India.) K.K. Yenugopal, Shanti Bhushan, Govindan Nair, F.S.
Nariman, V.M. Tarkunde, Y.S. Chitale, P.P. Rao, S. Markandeya, Mrs. S. Markandeya, D. Sudhakar Rao, K. Ramkumar, Ms. Lalita Kohli, B. Kanta Rao, Gururaja Rao, G. Vedantha Rao, K.K. Lahiri, R. Karanjawala, Hardeep Singh Anand, Mks. M.Karanjawala, A.T.M. Sampath, P.N. Ramalingam, B. Parthasarthi, H.S. Gururaja Rao, Mrs. Sheil Sethi, Sudhendra Kulkarni, R. Venkataramani, A. Subba Rao, and S. V. Deshpande for appearing Petitioners.
K. Subramanya Reddy, Advocate General of A.P., K.K. Venugopal, T.V.S.N. Chari, Naresh Mathur, K. Rajendra Choudhary, K. Shivra; Choudhary, A.S. Namblar, G.N. Rao, Attar Singh, Mrs. Gupta, B. Parthasarthi, S.Markandeya and Mrs. Markandeya for Respondents.
The following Judgments were delivered :
CHINNAPPA REDDY, J. Tossed about by the Executive, the Legislature and, we are sorry to say, by us the Judiciary) too, and therefore, totally bewildered, several civil servants employees of public sector corporations and teachers working under various local authorities are now before us wanting to know where they stand and to what Justice and relief they are entitled. In February, 1983, the Government of Andhra Pradesh decided to reduce the age of superannuation of its employees from 58 to 55 years. The Government also issued directives to local authorities and public corporations under its control to do like wise. The age of superannuation was in fact 55 years to begin with.
But, earlier, in the year 1979, the Government of Andhra Pradesh had raised the age of superannuation to 58 years, presumably, because of the increased average human longevity in India, 585 the better health and medical facilities available, the improved standard of living, the usefulness in service of experienced employees, the employment situation and potential and such other relevant considerations. But in February 1983, the Government decided to reduce the age of superannuation. In order to give effect to their policy of reversal, i.e.. the policy of reducing the are of superannuation from 58 to 55, the Government amended Rule 56 (8) of the Fundamental Rules and Rule 231 of the Hyderabad Civil Services Rules by substituting the figure '55' for the figure '58' and by making a special provision that those who had already attained the age of 55 years and were continuing in service beyond that age on 8.2.1983 shall retire from service on the afternoon of 28. 1983. The notifications by which these amendments were carried out were followed by another notification dated 17.2.1983 deleting the proviso to Rule 2 of the Fundamental Rules which protected a civil servant against a charge of his conditions of service to his detriment after he entered service. m is was followed by the promulgation of the Andhra Pradesh Ordinance No. 5 of 1983 regulating the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the State of Andhra Pradesh and the officers and servants of the High Court of Andhra Pradesh.
Clause 10 of the Ordinance provided that 'every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service in the afternoon of the last day of the month in Which he attains the age of fifty five years.' In the case of Government employees belonging to the Last Grade Service, it was provided that they shall retire from Service on the afternoon of the last day of the month in which they attain the age of sixty years. Clause 18 (1) provided that the proviso to rule 2 of the Fundamental Rules shall be and shall be deemed always to have been omitted. Now immediately after the notifications reducing the age of superannuation from 58 to 55 were issued, a large number of Government employees, employees of public sector corporations and teachers working under various local authorities filed writ petitions in this Court as well as in the High Court of Andhra Pradesh challenging the vires of the provisions reducing the age of superannuation. After promulgation of the ordinance, they were permitted to amend the petitions to question the appropriate provisions of the ordinance too. The petitions in this Court were heard at great length for several days by Chandrachud, CJ, Pathak, J. and S. Mukharji, J. and Judgment was reserved on 27.7.83. The judgment was however pronounced only on January 18, 1985. The impugned provisions were upheld and all the writ petitions were dismissed. In the meanwhile much 586 water had flown under the bridge. There were agitations and agreements. There were twists and turns of political power.
There were amendments to the legislation, once more raising the age of superannuation. Learned counsel informs us that the subsequent events were brought to the notice of the court and that a petition was also filed to amend the writ petitions and to raise additional grounds. The Court however refused to take notice of the subsequent events and proceeded to pronounce their judgment with reference to a situation which obtained several months ago and which situation stood considerably altered and had even become unreal by the subsequent march of events. It was a great pity. Much confusion and heart-burning might have been avoided, as we shall presently see.
It is now necessary to mention in greater detail the events that followed the reduction of the age of superannuation from 58 to 55 years. We referred to agitations and agreements. It appears that soon after the reduction of the age of superannuation, there was a state- wide agitation by affected employees and on August 3, 1983, an agreement was arrived at between the Government of Andhra Pradesh and the Action Committee of Employees and Workers in Andhra Pradesh.
Clause (1) of the Agreement is important and may be usefully extracted. It is as follows:
All provisions relating to Ordinance 5 of 1983, except those. relating to the age of superannuation, will be deleted at an early date.
Proviso to F.R.2 will be restored in respect of all matters, except the age of superannuation retrospectively. The provisions of the Ordinance relating to the age of superannuation will also be removed after the judgment of the Supreme Court, provided that such removal will not adversely effect the right of Government as determined by the Supreme Court judgment to fix the age of superannuation.
If the Supreme Court upholds the power of the Government to reduce the age of superannuation without referring to the provisions in the ordinance and F.R.2, the entire ordinance will be scrapped and F.R.2 will be restored.
This clause of the Agreement shows that while the Government was anxious to obtain a judgment of the Supreme Court securing their 587 right of 'fix the age of superannuation', they had also realised that grave wrong and injustice had been done to its employees by their earlier action in reducing the age of superannuation. They were anxious to undo the wrong and do justice to their employees, while preserving their own power to act in the future, if and when necessary. That apparently was the reason why the Government agreed to scrap the whole of the ordinance if the Supreme Court upheld the power of the Government to reduce the age of superannuation and further agreed to delete provision relating to the age of superannuation in the ordinance, after the judgment of the Supreme Court was pronounced. Clause (1) of the Agreement expressly provides that proviso to F.R. 2 will be restored in respect of all matters, except the age of superannuation retrospectively. It is then followed by the sentence : The provisions of the ordinance relating to the age of superannuation will also be removed after the judgment of the Supreme Court.' The clear implication appears to be that the provisions of the ordinance relating to the age of superannuation will also be removed in the same manner as the proviso to Fundamental Rule 2 i.e. restrospectively.
Otherwise the agreement would make no sense. Those attain ng the age of 55 years before judgment was pronounced would just have to walk out while those who did not would stay on.
Surely their fate was not to hang on a date.
The Agreement, however, contained a further curious stipulation that it was not to be placed before the Supreme Court either by the Government or by the employees. Perhaps the stipulation was intended to prevent the Supreme Court from abstaining from pronouncing upon the power of the Government to reduce the age of superannuation. Quite obviously the Agreement contemplated that the judgment of the Supreme Court would be forthcoming very soon. But that was not to be.
There was considerable discussion at the Bar whether the agreement contemplated and stipulated restoration of 58 years as the age of Superannuation if the power of the Government to reduce the age of superannuation was upheld by the Supreme Court. The agreement appears to us to be clear and categoric and a reference to the pleadings demonstrates that the Government also never doubted the employees' interpretation of agreement. In Para 2 (h) of the petition in Writ Petition No. 3420-26 of 1985, the petitioners asserted, "It is pertinent to point out that in the interregnum between the Writ Petition being admitted in this 588 Hon'ble Court and the judgment being delivered a State wide agitation took place in Andhra Pradesh by the Non Gazetted employees in the Andhra Pradesh State Government in June and July 1983.
That agitation was for the purpose of demanding inter alia that the retirement age of the State Government employees be restored to 58 years.
Ultimately, on 3.8.1983, an agreement was arrived at between the State Government and the Action Committee of the Employees and workers in Andhra Pradesh by which it was agreed the State Government would restore the age of retirement to 58 years if the Supreme Court upheld the State Government's Power to reduce the age of retirement. The said agreement which was a detailed agreement entered into between the State A. P. On behalf of the whom the negotiations were conducted by the then Chief Secretary Shri G.V.
Ramakrishna, I.A.S. and the Action Committee of the employees and workers, which Action Committee represented 39 service organisation." To this the answer of the Government in their counter was:
"I state with respect to paragraph 2 that this paragraph deals with narration of facts regarding the circumstance under which the age of retirement was enhanced and the recommendations of the Pay Revision Commission etc. Hence they require no comments. It is respectfully submitted that all these relevant facts have been taken into consideration by the Supreme Court while rendering the judgment upholding G.O.Ms. NG. 36 dt. 8.2.1983. In its judgment since reported in [1985] 1 S.C.C. page : 524. Hence there is no necessity to traverse those facts once again herein." and "I further state that it is not proper for the petitioner to have filed the agreement reached between the employees Union and the state of Andhra Pradesh as Annexure to the Writ Petition.
Under the last clause of the Agreement reached between the Employees Union and the State of Andhra Pradesh that the agreement shall not be placed before the Supreme Court by the Government or the members of the employees associations.
Contrary to the provisions of the 589 agreement the petitioners have chosen to file this agreement in support of their case and pleaded for enhancement of the age of retirement.
The Government's objection was not to the interpretation placed upon the agreement by the parties but to its being brought to the notice of-the Court.
The Andhra Pradesh Legislature enacted the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act No. 23 of 1984 making lt applicable to all persons appointed to public services and posts in connection with the affairs of the state, all officers and other employees working in any local authority, whose salaries and allowances were paid out of the Consolidated Fund of the State, all persons appointed to the Secretariat staff of the House of the State Legislature: and all officers or employees whole conditions of service were regulated by rules framed under the poviso to Art. 309 of the Constitution immediately before the commencement of this Act. Sub-section (3) of s. 1 stated 'Clause (i) of s. 7 shall be deemed to have come into force on the April 29, 1983. Sections 3 (1) and (2) were as follows:
"3 (1) Every Government employee, not being a workman and not belonging to Last Grade Service shall retire E from service on the afternoon of the last day of the month in which he attains the age of fifty five years.
(2) Every Government employee not being a workman but belonging to the Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
Explanation II(b) to s. 3 was to the following affect:
"(b) a Government employee who attained the age cf superannuation but who was allowed to continue to hold the post beyond that date, but virtue of a stay order of a Court, shall be deemed to have ceased to hold the post and relieved of his charge from the date of the judgment dismissing his petition, irrespective of whether the charge of the post was handed over or not as prescribed in any rule or order of the Government for the time being in force.
590 On August 23, 1984, the Andhra Pradesh Public Employment [Regulation of Age of Superannuation Act No. 23 of 1984 was amended by the promulgation of Andhra Pradesh Ordinance No.
24 of 1984 providing that in s. 3(1) of the Act and in Explanation II (a), the words fifty eight years' shall be substituted for the words fifty five years. This was obviously done to give effect to the agreement of August 3, 1983 and to fulfill the promise held out therein that the age of Superannuation would be restored to 58 years. Clause 3(1) of the Ordinance is the much disputed provision and it has therefore, to be extracted in full. It is as follows:
"3(1) The provisions of this Ordinance shall not apply to persons who attained the age of superannuation in pursuance of the notifications issued in G.O.Ms. No. 36, Finance and Planning (Finance Wing-F.R.I.) Department, dated the 8th February, 1983, or in pursuance of the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as in force prior to the commencement of this Ordinance.
Andhra Pradesh Ordinance No. 24 of 1984 was replaced by Act No.3 of 1985. By Sec. 2 of the Amending Act, the words 'fifty five years' were substituted by the words 'fifty eight years' in Sec. 3(1) and Explanation II (a) of the Principal Act. Section 4 of the Amending Act which is more or less on the same lines as h Clause 3(1) of the Ordinance says:
"4(1) The provisions of section 2 of this Act shall not apply to persons who attained the age of superannuation in pursuance of the notifications issued in G.O.Ms. No. 36 Finance and Planning (Finance Wing F.R.I.) Department, dated the 8th February, 1983, or in pursuance of the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as in force prior to the commencement of this Act.
No explanatory statement accompanying Ordinance to. 23 of 1984 was brought to our notice. The statement of Objects and Reasons of Act No. 3 of 1985 was however placed before US but it is not helpful to ascertain the reasons which led the legislature to restore the age of superannuation to 58 years. If merely states that the Government considered it necessary to raise the age of superannuation from 55 to 58 years . But we are not 591 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 exposition, and may be held to throw light on the legislative intention. The later history may, under the doctrine that an Act is always speaking, indicate how the enactment is regarded in the light of development from time to time.
Official statements by the government department administering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions. Justice may be blind but it is not to be deaf. Judges are not to sit in sound proof rooms.
Committee reports, Parliamentary debates, Policy statements and public utterances of official spokesmen are of relevance in statutory interpretation. But 'the comity the courtesy and respect that ought to prevail between the two prime organs of the State, the legislature and the judiciary', require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable. Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legislator's intention appears to the court so to require. No rule prevents the court from inspecting in private whatever materials it thinks fit to ensure that it is well informed, whether in relation to the case before it or generally.
Where these materials constitute publicly available enacting history, the court takes judicial notice of them. The court has an inherent power to inspect any material brought before it. Erancis Bennien : Statutory Interpretation. This is to enable the court to determine whether the material is relevant to the point of construction in question, and if so whether it should be admitted. This has to be done with a degree of inhibition and an amount of circumspection.
Here, the facts speak for themselves. Res Ipsa Loquitur. The history and the succession of events, the initial lowering of the 592 age of the superannuation, the agitation consequent upon it and the agreement that followed the agitation clearly indicate that the object of Ordinance No. 23 of 1984 and Act No. 3 of 1985 was to undo the mischief or the harm that had been done by the lowering of the age or superannuation from 58 years to 55 years and to restore the previous position.
Quite obviously, lt was not a case of change of social circumstances. It was a case of a change of policy to set right immediately a recent wrong perpetrated by a well intentioned but perhaps ill-thought measure. It was not at all a case of reversal of policy because of changed circumstances. A reference to the note file which was made available to us by the learned Advocate General of Andhra Pradesh at our instance shows that it was after a careful consideration of the representations made by the various services associations in regard to the restroation of the age of superannuation to 58 years that the Government resolved to restore the age of superannuation to 58 years, In the counter, the Government appeared to take the stand that the Governments of the States of Karnataka and Rajasthan had raised the age of superannuation to 58 years and the Government of Andhra Pradesh wanted to fall in line.
It was a wholly inaccurate statement. There is no reference in the note file or elsewhere, except for the first time in the counter, to the circumstance that two other State Governments had raised the age of superannuation and the Andhra Pradesh Government had a accepted their wisdom. The statement in the counter must be ignored. A reference to the pleadings is revealing, if not, startling. In Writ Petition Nos. 3420-3426/85 in paragraph 5, the petitioner averred:
"In fact Shri N.T. Rama Rao, Chief Minister himself admitted that he was misguided and misled by the then Finance Minister and the Chief Secretary when his Government took the decision to reduce the age of retirement. His press conference dated 25.9.1984 was reported in the Deccan Chronicle as follows:
"Chief Minister N.T. Rama Rao today announced that his government would retain the age of superannuation of the Government employees at 58 years as decided by the short-lived Bhaskara Rao Ministry.
Briefing newsmen after the Cabinet meeting this afternoon, Mr. Rama Rao said the Cabinet had reviewed the decision of the previous Government to raise the age of superannuation from 55 years to 58 with effect from August 23, 1984.
593 The Chief Minister charged that Mr. N. Bhaskara Rao, the then Finance Minister and the then Chief Secretary Mr. B.N. Raman had misled him when his Government decided to reduce the age of superannuation from 58 to 55. Both have not raised any objection to the proposal. Despute knowing well that the 'unpopular' have would be detrimental to the Government, they had allowed it go with the evil intention of discrediting him, he allegeded.
Mr. Rama Rao said it was not his intention to hurt the interests of any section of the people and the Government employees constituting a sizeable number who had voted his party to power. However it is not possible for the Government to concede the request of those who had already retired , he observed.
The said report has never been denied or resiled by the Chief Minister.
In answer, the averment was not denied. The deponent of the counter affidavit stated:
"I state with respect to paragraph:5 that it is not open to the petitioner to rely on paper cuttings in support of their contention unless otherwise they are proved apart from the fact that the statement in paper cuttings are in no way advance the case of the petitioner.
This can hardly be considered to be a denial of what was said in paragraph 5 of the petition. We must therefore, proceed on the basis that the Chief Minister (Shri N.T. Rama Rao) did allege that when the Government took the decision to reduce the age of superannuation, he was, 'Misguided and misled' by his Finance Minister and the Chief Secretary. It may be a sorry confession to make on the part of a Chief Minister, especially when it was a momentous decision involving the lives and future of thousands of employees.
One wonders how a decision concerning the lives and the future of civil servants, who all their lives in the past, had loyally served the Government, could have been taken in such a hasty and haphazard fashion. One would expect such a decision to be taken after a full investigation into the multitudinous pros and cons, after deep collection of all pertinent data and after deep consideration of every aspect of the question. But 594 there we have a statement attributed to the Chief Minister that he was 'misled and misguided' by the Finance Minister and his Chief Secretary. Sorry confession, it may be, but a frank and courageous admission it was, exposing him to criticism. It does require a sturdy spirit to own a mistake.
During the pendency of the Writ Petitions in this Court, several employees of local authorities etc. Obtained orders of stay from the High Court and were continuing in service on the dates when the judgment of the Supreme Court was pronounced. After the pronouncement of the judgment of the Supreme Court, the authorities that be have sought to give effect to the provisions of the Act and the Ordinance by seeking to throw them out on the ground that they had completed 55 years of age during the interregnum between February 28, 1983 and August 23, 1984 some others who had completed 55 years between February 28, 1983 and August 23, 1984 but who had not completed 58 years sought re-entry was notwithstanding the raising of the age of superannuation from 55 years Co 58 years. Their re-entry was sought to be resisted on the basis of Cl.3(1) of the Ordinance and S.4(1) of the Amending Act. Those employees who were sought to be removed from service or who were denied re-entry into service on the ground that they had attained the age of 55 years between February 28, 1983 and August 23, 1984, have once again invoked the jurisdiction of this Court and sought appropriate writs from this Court to continue or to reinstate and continue them in service until they attain the age of 58 years. They are the petitioners in Writ Petitions Nos. 3203, 3413-3419, 3420-3426 etc. etc. Of 1985. They sought interim orders from this Court.
On 23.4.85 interim directions to the following effect were issued by Desai and Khalid, JJ:
(1) From amongst those Government servants and servants of Local and other authorities governed by the decision of the Government of A.P. On reduction of age of retirement from service from 58 years to 55 years, who continued in service or continued to hold the post on April 1, 1985 for any reason including the grant of interim relief by Courts and who are removed from that post after that data shall be reinducted and put back in the post from where he/she was removed.
(2) Those Government Servants and others enumerated a in No.(1) here and who are today in service and are likely to- be removed on account of the reduction in 595 age of superannuation notwithstanding restoration of higher age, whatever be the case, shall continue in service till further orders.
(3) Those Government servants and others enumerated in No.(1) here who were in service prior to April 1, 1985 and who are removed from service on account of reduction in age, shall be reinducted in service, if the posts from each one was removed is still vacant or someone is holding a temporary charge.
(4) Those directions shall be carried out and given effect to within one week from today.
(5) These directions will also cover those Government servants who are similarly situated but have not filed the SLPs and WPs.
(6) Government servants referred to in No.(1) will also comprehend members of State Judicial Service.
The matter was mentioned again on two occasions for clarification and the following orders were then made by Tulzapurkar, Desai and Sen, JJ. The order made on May 6, 1985 said:
We do not see any ambiguity in Cl.3 of the order dated 23rd April, 1985. It is directed that Cl.3 or the order dated 23rd April, 1985 should be implemented to the extent that promotions made to the posts which are held by the officers will be made under Rule 37 by temporary appointments and the Chief Secretary and other two senior Secretaries will examine the question as to how many such vacancies could be filed and it is further directed that from out of the petitioners one who has the longest service will be selected.
The order will be carried out within two weeks from today. This is without prejudice to the vacancy clause. All these appointments will be subject to the result of these petitions.
The order made on May 7, 1985 said:
"We do not see any ambiguity in clause 3 or the Order dated 23rd April, 1985. It is directed that clause 3 of the order dated 23rd April, 1985 should be imple- 596 employees were moved are still vacant or where such post is held temporarily by others on promotion under Rule 37 of the A.P. States Subordinate service Rules. The Chief Secretary and two other Senior Secretaries will examine the question as to how many such posts could be filed and it is further directed that in cases where more than one person has retired from a post, the person having the longest service should be selected. The Order will be carried out within two weeks from today. All these appointments will be subject to the result of the Petitions.
These interim orders were made under the misapprehension that all so-called promotions would only be made under Rule 37 whereas whenever a promotion was made from a lower service to a higher service, it was not called a promotion but was styled as an appointment and was made under Rule 10.
Since Rule 10 was not mentioned in the orders, persons who had been 'promoted' and appointed under Rule 10 claimed that they could not be displaced.
Some others though promoted under Rule 37 claimed that they had in fact been promoted regularly after a proper selection by the Departmental Promotion committee but that according to the practice prevailing in Andhra Pradesh, their orders of promotion mentioned that they were prompted temporarily, though in fact they had been promoted regularly. Many such persons, claiming to have been appointed under Rule 10 or claiming to have been promoted regularly notwithstanding the mention of Rule 37, filed Writ Petition Nos. 5447-5546 of 1985 etc. etc. questioning the orders of reversion with which they were faced consequent on the interim directions given by Desai and Khalid,JJ. During the vacation, R.B.
Misra,J. stayed the orders or reversion passed by the Government in order to reinduct the retired employees. The interim orders granted by R.B. Misra,J. appeared to conflict with the earlier interim orders granted by this Court. When all the interim applications came before us a few days back, we directed that all the Writ petitions may be placed before us for final disposal and that is how the matters are now before us.
Before referring to the submissions of the parties on the principal question of discrimination and arbitrariness, it is necessary to ascertain the exact factual situation in regard to certain other matters, besides those to which we have already referred. First in regard to the question whether the vacancies arising consequent on the application of the reduced age of superannuation have been filled and if filled, whether they have 597 been filled on a regular or temporary basis? In Writ Petition No. A 3170/85, a Deputy Secretary to the Government of Andhra Pradesh, speaking for the government of Andhra Pradesh swore to a counter-affidavit in May 1985 in which he stated that:
"I state with respect to paragraph 8, that it is not correct to state that only few vacancies have been filled on temporary basis on the specific condition of review and revision on the basis of outcome of the judgment in the Writ Petitions filed by the employees due to the retirement at the age of 55 years pending in this Hon'ble Court.
It is submitted that it is wholly untrue to say that few vacancies have been filled up. Consequent on the reduction in the age of superannuation the Government took every step to see that most of the vacancies have been filled up in accordance with rules on regular basis. It is only in few cases, temporary promotions have been effected pending writ petitions. It is submitted that Ann.-I to this counter affidavit gives particulars regarding the vacancies that arose due to the reduction in the age of retirement on 28.2.1983 and the vacancies filled up and the vacancies existing. m ere are very few vacancies in the lower echelons.
I also submit that the existing few vacancies are due to administrative dealy, or vacancies that arose latter after originally filling the vacancies.
In Writ Petition Nos. 5447-5546/85, there was a complete volte face ant the very same Deputy Secretary speaking again for the Government of Andhra Pradesh said:
In so far as the first point is concerned in none of the cases there were regular promotions. All the promotions were officiating/Temporary/adhoc which would be clear from orders of promotion, some of which have been produced by the petitioners themselves. The promotions were either subject to the result of the writ petitions then pending in this Honourable court challenging reduction of retirement age from 58 to 55 years, Or some other proceedings relating to inter- seniority pending either in this Honourable Court or in the High Court or in the Administrative Tribunal, Or because of the pendency of finalisation of seniority lists and consequent review of promotions under the State Reorganisation Act. Further the Writ 598 Petitions questioning the reduction of age of retirement from 58 to 55 in G.O.Ms.No. 36, dated 8.2.83 were heard and judgment was reserved on 27th July, 1983. Since the judgment was reserved, the judgment was expected at any movement. Hence the Government were making only officiating/temporary promotions under rule 37.
Under the circumstances it was not possible to make regular appointments/promotions. Therefore, the petitioners were rightly reverted in accordance with the directions of the Honourable Court dated 6.5.1985 and 7.5.85. There was / question of either giving them any notice or hearing before the orders of the reversion are passed, as in terms of Rule 37 (dd), they could be reverted without any notice or hearing.
"Persons holding the posts under Rule 10 have no right to the posts and their appointments/promotions were purely temporary/adhoc.
"Hence, I state that the` petitioners continue to be adhoc promotees under Rule 37 and not regular employees as claimed by them.
and:
Admittedly, the petitioners were promoted under Rule 37 consequent to the vacancies which arose due to the retirement of several persons at the age of 55 years. The Government never intended to appoint them on regular basis pending writs and judgment before the Supreme Court. In case the promotions were effected regularly legal complications will set in the event of the judgment of the Supreme Court going against the State Government deliberately made Rule 37 promotions so that in the event of the judgment going adversely against the State Government, there may not be any difficulty in reverting Rule 37 promotees and reinducting the employees affecting by G.O.Ms.No. 36 dated 8.2.83.
Fortunately, the judgment of the Supreme Court comes in favour of the State Government.
It is amazing that the same Deputy Secretary to the Government, representing the same Government, should have sworn to two such contradictory affidavits. It reveals a total sense of irresponsibility and an utter disregard for veracity. It shows 599 that the deponent had signed the affidavits without even reading them or that he signed them to suit the defence to the particular writ petition without any regard for truth.
In either case, it is reprehensible and totally unworthy of the spokesman of a Government and must unflattering to the Government on whose behalf he spoke. We would have contemplated severe action against the dependent, had we not the feeling that the responsibility for his statements lies with undisclosed higher echelons and we need not make a scapegoat of him. In fact, in a case like this involving the entire body of Government servants in Andhra Pradesh, we would have expected the Chief Secretary or a Principal Secretary to file the counter. But they have chosen to keep themselves back.
However we have a duty to discover the truth. We think that the truth is what is stated in the counter-affidavit in Writ Petition Nos. 5447-5546/85. The counter-affidavit itself gives good reasons why the promotions appointments were made on a temporary basis and the reasons are acceptable. The statements in the counter-affidavit in writ Petition Nos. 5447-5546/85 are supported by the findings of the Committee which was appointed by the government under the interim orders of this Court. The Committee consisted of the Chief Secretary and two senior Secretaries and it was asked to examine the question of the availability of posts for reinduction of retired employees. The findings of the Committee were mentioned in the counter-affidavit in Writ Petition Nos. 5447-5546/85 and this is what was said:
"The Committee constituted under G.O.Ms. No. 205, dt.9.5.1985 has completed its task of determing the number of vacancies for which retired employees can be reinducted as per the directions of this Honourable Court. Here below is given an abstract of the position as emerged. Total number of persons retired from 28.2.83 to 23.8.1984 due to reduction of age of retirement from 58 to 55 is 15,529 of these people 8.928 are eligible for reinduction as they are below 58 years. m e Committee found that 2,770 posts are vacant and that 1751 persons have to be revert
