Nagaland Senior Govt. Employees Welfare Assn. vs State of Nagaland

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

Versus

The State of Nagaland & Ors. ...Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

Introduction

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

the State of Nagaland Act, 1962 (for short, `the 1962 Act') which

came into force on December 1, 1963 comprising the territories

which immediately before the appointed day were comprised in the Naga Hills - Tuensang Area of the State of Assam. Prior to

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

enacted by the Parliament by which certain changes were

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

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

structure applicable to civil servants of Assam was made

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

and as regards the service conditions including the age of

superannuation, the Central Government Fundamental Rules

and Subsidiary Rules were made applicable to them. After

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

the State Government employees continued to be governed by

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

State Government employees other than grade-IV employees

was raised from 55 years to 58 years.

The 1991 Act

3. In 1991, Nagaland Retirement from Public

Employment Act, 1991 (for short, `the 1991 Act') was enacted

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

2 1991. Section 3 thereof provided for retirement from public

employment. It states :

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

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

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

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

(3) xxx xxx xxx xxx

(4) xxx xxx xxx xxx

(5) xxx xxx xxx xxx"

3

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

Retirement from Public Employment Ordinance, 1991.

Challenge to Section 3 (1991 Act)

4. The Confederation of All Nagaland State Service

Employees Association (`the Confederation', for short)

challenged the constitutional validity of Section 3 which

provided for retirement from public employment on completion

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

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

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

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

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

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

employees who are to retire on completion of 33 years service

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

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

permissible since retirement of government employees must be

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

4 5. The Single Judge of the Gauhati High Court vide

judgment dated January 18, 1993 upheld the reduction of

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

Section 3 of 1991 Act which prescribed the retirement from

service on completion of 33 years of service. But no

consequential relief was granted to the employees.

6. The Confederation challenged the order of the

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

appeal insofar as consequential reliefs were denied to the

employees. The Division Bench allowed the appeal on

September 6, 1995 and held that affected employees shall be

entitled to get their salary and other allowances and all other

consequential benefits which they would have been entitled to

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

gainfully employed elsewhere.

7. The State of Nagaland (for short, `the State')

challenged the judgment and order dated September 6, 1995 to

the extent the Division Bench granted consequential reliefs to

the employees in Special Leave Petition (SLP) before this

Court. Leave was granted and SLP was converted into Civil

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

the State.

1st Amendment Act, 2007

8. By Nagaland Retirement from Public Employment

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

the superannuation age of the government employees in the

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

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

the government service in the State was enhanced to 30 years

for general category candidates and 35 years for SC/ST

category candidates.

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

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

Act, 2007 made a representation to the State Government

voicing its concern that enhancement of retirement age had

reduced the employment opportunities for the educated youth

in the State. NSF demanded that the State Government should

also fix maximum length of service that an employee may be

6 entitled to put in before retirement. In pursuance of the

representation made by NSF, the Department of Personnel and

Administrative Reforms (for short, `DOP & AR') submitted a

Memorandum dated October 22, 2008 to the Cabinet for a

decision as to whether the State Government should also

prescribe maximum length of service for retirement of the State

Government employees in addition to the upper age limit of 60

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

for retirement.

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

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

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

by the government employees at the time of superannuation

and submit its findings and recommendations for further

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

prepared its report and submitted the same to the Cabinet for

consideration.

11. The Cabinet considered the subject again and

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

scrutinize the retirement profile of the government employees

7 prepared by DOP & AR and make necessary recommendations

regarding fixation of maximum length of service of the

government employees and other service conditions.

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

examine the superannuation age of the State Government

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

recommended that DOP & AR should be nodal agency to

streamline date base of government employees, and put in

place a Common Data Base System by coordinating with the

concerned departments. It transpires that based on the data

available with the Government, the following compilations were

made:

Table -1 : Grade wise employees of the State

Grade No. of employees Percentage Class-I 3495 4% Class-II 2203 3% Class-III 59,598 74% Class-IV 15,704 19% Total 81,000 100%

Table -2 : State Agency Wise Employees

State No. of employees Percentage Agency Secretariat 2322 3% Directorate 8540 11%

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

Table -3 : Number of years of completed service

Completed No. employees years of As on 1st January, As on 1st July, As on 1st service 2009 2009 January 2010 More than 222 294 362 40 years 36 years 1629 1997 2313 35 years 2343 2923 3250 34 years 3280 3954 4327 33 years 4357 4960 5156

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

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

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

Table - 5

Entry into service No. of employees 40 and above 21,889 35 to 39 years 28,721 30 to 34 years 13,404 25 to 29 years 2,259 Less than 25 years 1149

9

13. HPC on the basis of the aforesaid figures observed

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

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

and hence fixation of length of service as a criterion for

superannuation may affect many of the Class-III and IV

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

HPC also observed that employment opportunity in the

government sector is limited but the qualified job seekers have

increased manifold, thus, causing mismatch in the demand and

supply for public jobs in the State.

2nd Amendment Act, 2009

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

Retirement from Public Employment (Second Amendment) Bill,

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

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

Government employees was proposed to be restricted to 35

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

age of 60 years, whichever is earlier.

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

unanimously passed the Amendment Bill. Thus by Nagaland

1 Retirement from Public Employment (Second Amendment) Act,

2009' (for short, `2nd Amendment Act, 2009'), Section 3 of 1991

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

by the following provision :

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

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

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

Office Memorandum (OM) requesting all departments to submit

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

by October 31, 2009.

Challenge to the 2nd Amendment Act, 2009

17. The appellant-Association challenged the

constitutional validity of the 2nd Amendment Act, 2009 being

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

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

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

1 Association prayed that 2nd Amendment Act, 2009 be quashed

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

conditions for retirement of government employees and

direction be issued to the State to superannuate its employees

only on attaining the prescribed age of 60. The Association

also prayed for quashing OM dated July 20, 2009.

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

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

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

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

public employment because of long period of service of the

existing employees who would serve up to 42 years resulting in

a sense of frustration and stagnation amongst educated youth;

that educated youth who remain unemployed out of sheer

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

and that the amended law would result in removal of stagnation

in the matters of employment to the unemployed and thereby

making employment opportunities less arbitrary, reasonable

and in consonance with the constitutional provisions. It was

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

1 prospects of the youth are protected whereby the number of

years of service would be restricted to 35 years while

maintaining the age of superannuation at 60 years. The State

also submitted that the literacy rate in Nagaland is amongst one

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

fact that there are no other avenues for employment except

through the Government sector has increased the

unemployment problem to an alarming extent. After a thorough

and systematic appreciation and study of the unemployment

problem and also the social aspects, the State decided to

prescribe the maximum length of service for retirement of its

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

State explained the peculiar circumstances that necessitated

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

employment for superannuation.

19. The Division Bench after hearing the parties

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

judgment and order that the present appeal arises.

20. Before we deal with the main submissions of the

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

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

before the Gauhati High Court seeking review of the order

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

petition wherein constitutional validity of Section 3 of 1991 Act

was challenged. However, the said review application was

withdrawn on March 2, 2009.

Main submissions of the parties

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

appellants submitted that retirement by way of superannuation

in respect of government employees is permissible only on the

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

contention is that retirement by way of superannuation in

respect of government employees relates to discharge of an

employee on account of attaining a particular age fixed for such

retirement, which is uniformly applicable to all employees

without discrimination. He submitted that where there is

minimum and maximum age of entry into any service, the

alternative method of retirement by way of length of service

would inevitably result in different age of superannuation of

employees holding the same post depending upon their age of

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

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

inconsistent with the valuable right of a permanent government

employee to continue service till the age of superannuation

subject to rules of compulsory retirement in public interest and

abolition of posts. Learned senior counsel submitted that

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

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

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

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

but his contention is that prescribing retirement of government

employees on completion of 35 years of service is arbitrary and

irrational. According to learned senior counsel, in Yeshwant

Singh Kothari1, the arguments were considered in the backdrop

of discriminatory classification and not on the grounds of such

action being arbitrary, irrational or unreasonable.

22. Mr. Ram Jethmalani, learned senior counsel

vehemently contended that even if it be assumed that the

alternative method of retirement by way of length of service is

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

1 prescribing retirement of government employees in the State

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

the Constitution being arbitrary, unreasonable and

unconstitutional. In this regard, he placed heavy reliance upon

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

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

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

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

children in addition to maintaining his family. He submitted that

Class III and IV employees constitute 93 per cent of total

employee strength in the State and that as a result of

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

the government employees (who joined service before 20

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

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

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

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

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

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

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

1 HPC wherein it was observed, `the committee examined the

data base available on the State employees and found that

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

submitted that the fixation of 35 years as the maximum length

of service has been determined by the Government without any

basis and in a most arbitrary fashion without any objectivity and

certainly not on the basis of empirical data furnished by the

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

investigation into the multitudinous pros and cons and deep

consideration of every aspect of the question, the prescription

of alternative method of superannuation by way of length of

service smacks of total arbitrariness. It was also contended

that the impugned provision is arbitrary not only from the point

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

view of public interest inasmuch as it is against public interest

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

experience of the senior government employees; pre-mature

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

the employees are at their prime would be against public

interest. The learned senior counsel would also contend that

1 the impugned provision of prescribing retirement of government

employees on completion of 35 years of service is actuated

solely on the pressure exerted upon the State Government by

NSF which itself is arbitrary.

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

respondent no.4, supporting the appellants adopted the

arguments of Mr. Ram Jethmalani.

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

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

senior counsel stoutly defended the 2nd Amendment Act, 2009

and impugned judgment of Gauhati High Court. He submitted

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

many other States in the country. He would submit that

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

private sector where gainful opportunities are made available to

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

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

danger arising out of insurgency and potential danger of

educated youth joining underground movement; that increase

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

1 resulted in grave resentment from the Naga youth who

protested through NSF which finally led to the enactment of the

2nd Amendment Act, 2009 and that alternative mode of

retirement on completion of 35 years of service is consistent

with the judgment of this Court in Yeshwant Singh Kothari1 and

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

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

that there is always presumption of constitutionality arising in

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

which assails the same. He submitted that the Legislature is

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

estimate the degree of evil so as to adjust its legislation

accordingly. In this regard, he sought support from the

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

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

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

submitted that prescription of two rules of retirement, one by

reference to age and the other by reference to years of

completed service is permissible and the retirement policy 3 AIR 1959 SC 942 4 AIR 1968 SC 1 5 1974 (4) SCC 415

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

discriminatory.

The issue

26. On the contentions outlined above, the question that

arises for consideration is : whether the impugned provision

that prescribes retiring the persons from public employment in

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

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

whichever is earlier, is arbitrary, irrational and violative of

Articles 14 and 16 of the Constitution.

Appraisal

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

27. It is true that `superannuation' means discharge

from service on account of age. The dictionary meaning of

`superannuation' is to retire or retire and pension on account of

age. Although the impugned provision does not use the

expression `superannuation' but broadly retirement is referred

to as superannuation. There is no absolute proposition in law

nor any invariable rule in the service jurisprudence that an

employee can be made to retire from public employment on

2 account of age alone. What the Constitution guarantees for the

citizens is equality of opportunity under the employment of the

Government and the prohibition of discrimination between its

employees but there is no provision in the Constitution that

restricts retirement from public employment with reference to

age. Rather Article 309 empowers the appropriate Legislature

to regulate the conditions of service of persons serving the

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

to the provisions of the Constitution. The competence of the

Legislature to formulate uniform policy for retirement from

public employment by enacting a law can hardly be doubted.

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

constitutional tests?

28. The legality and validity of a provision permitting

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

consideration before this Court in the case of Yeshwant Singh

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

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

were aggrieved by their retirement on completion of 30 years of

service whereas according to them they were entitled to service

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

the Bank of Indore Limited which ceased to exist with effect

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

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

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

Regulations framed thereunder. This Court referred to Section

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

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

xxx xxx xxx xxx

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

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

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

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

29. The impugned provision that prescribes retirement

from the public employment at the age of 60 years or

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

apparently consistent with the decision in the case of Yeshwant

2 Singh Kothari1 and the ratio in that case is squarely applicable

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

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

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

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

from public service on completion of 35 years of service without

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

impermissible.

(B) K. Nagaraj Case

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

Government of Andhra Pradesh were aggrieved by an

amendment in the Fundamental Rules and Hyderabad Civil

Services Rules reducing the retirement age from 58 to 55

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

government employees and 10,000 public sector employees

were superannuated. The government employees challenged

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

said amendment violated Articles 14, 16 and 21 of the

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

prescribe age of retirement and while holding so observed that

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

accord with the principles which are relevant for fixing the age

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

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

55, the State Government cannot be said to have acted

arbitrarily or irrationally, it was held :

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

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

xxx xxx xxx xxx

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

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

Again in paragraph 34 of the report this Court repelled the

argument of the appellants regarding arbitrary character of the

action taken by the State Government, thus:

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

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

that fixation of retirement age is a matter of employment policy

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

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

2 employment planning, then such policy may not meet the test

of rationality and reasonableness. The fact that employment

policy was formulated hurriedly was not held sufficient to

conclude that the policy suffered from non-application of mind

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

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

of maximum length of service as an alternative criterion for

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

be held to be violative of any recognized norms of employment

planning. There may be a large number of compelling reasons

that may necessitate the Government (or for that matter the

Legislature) to prescribe the rule of retirement from the

government service on completion of specified years. If the

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

provision can hardly be faulted.

(C) Presumption of constitutionality

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

constitutionality of an enactment and that the burden is upon

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

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

stated :

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

33. The aforesaid legal position was reiterated in

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

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

"The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are 6 AIR 1958 SC 731 7 AIR 1959 SC 942

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

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

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

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

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

and prove infirmity. This Court said :

"........., if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any apriori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Art. 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the 8 (1964) 6 SCR 679

3 prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under s. 3 of the Act, that presumption is strong, if not overwhelming...

......"

35. In A.C. Aggarwal, Sub-Divisional Magistrate, Delhi

& Anr. v. Mst. Ram Kali etc.9, the Constitution Bench of this

Court reiterated the legal position thus :

"........The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds."

36. In Pathumma & Ors. v. State of Kerala & Ors.10 ,

a seven-Judge Bench of this Court highlighted that the

Legislature is in the best position to understand and appreciate

the needs of the people as enjoined by the Constitution. It was

stated :

"It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the 9 AIR (1968) SC 1 10 (1978) 2 SCC 1

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

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

Chemicals Travancore Ltd. v. Kerala State Electricity Board

and Anr.11 emphasized that the allegations of discrimination

must be specific and that action of governmental authorities

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

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

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

38. The Statement of Objects and Reasons appended

to Amendment Bill expressly states as follows :

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

And whereas, such white collared employment opportunities outside the Government sectors is very negligible due to less presence of organized private sector, and the employment avenues in the Government sector is also already saturated; and new job opportunities, in the Government sector arising out of normal retirement vacancies, 11 (1988) 3 SCC 382

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

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

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

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

2009 is designed to lay down a general framework of retirement

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

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

Government in order to make available job opportunities in a

more equitable manner to its educated youth. In the counter

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

SLP, the impugned clause has been principally sought to be

justified on the following grounds :

3

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

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

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

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

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

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

affidavit before High Court as well.

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

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

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

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

Retirement of an individual at the age of 53/54 years by adoption of the said yardstick is a consequence not of attaining a particular age but of completing the prescribed period of service.

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

3 is a consequential effect of completion of the prescribed period of service......

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

advantage will not attract Article 14. In fact, uniformity to the extent possible, thereby, enhancing the concept of equality has been sought to be brought in by the Second Amendment Act by prescribing retirement on completion of 35 years of service.

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

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

41. We find ourselves in agreement with the aforesaid

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

idea behind the impugned provision is to create opportunities

for employment and check unemployment. The impugned

provision is aimed to combat unrest amongst educated

unemployed youth and to ensure that they do not join

underground movement. As observed by this Court in State of

Maharashtra v. Chandrabhan12, public employment opportunity

is national wealth in which all citizens are equally entitled to

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

concerned with must be regarded as establishing the

government policy for retirement from public employment based

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

interest to permit better access to employment to large number

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

the unemployment. The legitimacy of such an aim of public

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

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

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

any arbitrariness. Moreover, the impugned provision is in

consonance with the legal position highlighted by this Court in

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

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

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

a sensitive judicial scale and decide the issue by finding out

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

domain of the Legislature. By the impugned provision, the

Legislature, after balancing the competing interest of different

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

number of educated youth in the State. From the material

placed on record it cannot be said that impugned provision has

been enacted without any data and consideration of broad

aspects of the question.

42. We are not impressed by the argument of the

appellants that impugned provision is arbitrary not only from the

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

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

deprived of the benefit of the mature experience of the senior

3 government employees. If the State Government felt that it was

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

an opportunity of public employment because of existing

provisions of retirement from public employment and

accordingly decided to have the impugned provision enacted

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

mature experience, such provision may not be held to against

public interest and arbitrary.

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

State a statement was submitted that indicated that 3098

employees retired from October 31, 2009 to December 31,

2009 on completion of 35 years of service although they had

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

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

years. The statement thus indicated that percentage of

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

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

aforesaid period. It further transpired therefrom that 145

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

3

44. The aforesaid position, however, has been disputed

by the appellants. According to them 4680 employees at

different age retired upto March 31, 2010. The statement

annexed with the written arguments on behalf of the appellants

in this regard is as follows :

"

Age Number Percentage Below 53 256 5.5 53 429 9.5 54 757 16 55 1167 24 Above 55 2071 45 Total 4690 (4680-

sic) "

The appellants' contention is that 31 per cent employees

retired at the age of 54 and below which constitutes a

substantial section of the total retirees and that also shows that

the impugned enactment is arbitrary.

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

justifiable reason to disbelieve the statement submitted by the

State Government indicating that 3098 employees retired on

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

2009 to December 31, 2009. There is variation because

4 appellants have given the figures of the employees who retired

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

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

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

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

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

Merely because some employees had to retire from public

employment on completion of 35 years of service although they

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

conclusion that the impugned enactment is arbitrary, irrational,

unfair and unconstitutional. The fact that provision such as the

impugned provision that allows the retirement from public

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

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

retirement policy concerning public employment differs from

State to State. Kerala retires employees from public

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

nothing wrong if the legislation provides for retirement of the

government employees based on maximum length of service or

on attaining particular age, whichever is earlier, if the

4 prescribed length of service or age is not irrational.

46. The appellants' contention that alternative method of

retirement by way of length of service would result in different

age of superannuation of employees holding the same post

depending upon their age of entry into service and would be

manifestly violative of Articles 14 and 16 of the Constitution is

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

retirement provided in the impugned provision is applicable to

all State Government employees. There is no discrimination.

The impugned provision prescribes two rules of retirement, one

by reference to age and the other by reference to maximum

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

Pertinently, no uniformity in length of service can be maintained

if the retirement from public employment is on account of age

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

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

could be possible if retirement rule prescribes maximum length

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

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

impugned provision based on the aforesaid ground must fail.

4

47. As regards judgment of the Gauhati High Court

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

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

direct conflict with the judgment of this Court in Yeshwant Singh

Kothari1 where this Court upheld the provision for retirement

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

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

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

Unfortunately, the decision of this Court in Yeshwant Singh

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

notice of Gauhati High Court. This might have happened

because of short time gap between the two judgments; the

judgment in Yeshwant Singh Kothari1 was delivered by this

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

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

judgment of this Court in Yeshwant Singh Kothari1 been shown,

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

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

Yeshwant Singh Kothari1 holds the field.

Conclusion

4

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

that a provision such as that at issue which prescribes retiring

the persons from public employment in the State of Nagaland

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

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

suffer from the vice of arbitrariness or irrationality and is not

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

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

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

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

New Delhi.

July 6, 2010.

4