P. RADHAKRISHNA NAIDU & OTHERS versus GOVERNMENT OF ANDHRA PRADESH AND OTHERS

P. RADHAKRISHNA NAIDU & OTHERS

GOVERNMENT OF ANDHRA PRADESH AND OTHERS

December 9, 1976

[A. N. RAY, C.J. AND M. H. BEG, J.]

Constitution of India, Articles 16, 32 and 311, Government servantl cone· pu/sory retirement, whether violates Art. 16-Ban on re-empluyment by semi· Government Institutions, whether within the scope of Art. 32-Availabi/iry ·of alternative remedy.

On the completion of their 25 years of qualifying service, the appellants were compulsorily retired in public interest, and were to receive 3 months salary in lieu of notice. Thereafter, the respondent Government passed general order forbidding re-employment of compulsorily retired persons in semi-Governmellt institutions. The appellants filed writ petitions under Ar•. 32 of the Constitution . challenging the compulsory retirement orders as violative of Art. 16 and the ban on such re-employment as stigma under Art. 311.

Disntissing the petitions, the Court,

HELD : ( 1) Article 16 does not prohibit the prescription of reasonable rulea for compulsory retirement. The provision for compulsory retirement in public interest after the completion of certain period of qualifying service or attain-ment of certain age, applies to all Government servants and as such it is not open to challenge either under Art. 14 or under Art. 16, and the individual application of the order in given case cannot offend Art. 16. [367-D-H]

T. C. Shivacharana Singh. v. State of Mysore A.l.R. 1965 S.C. 280, applied.

Union of India v. Col. J. N. Sinha, & Anr. [1971] 1 S.C.R. 791; Tara Singh etc. v. State of Rajasthan & Ors. [197S] 3 S.C.R. 1002, and B. Narayana Murthy & Or:r. v. State of Andhra Pradesh etc. [1971] Supp. S.C.R. 741, refer-red to.

(2) The Government order forbidding re-appointment of compulsorily retired persons as stigma within the meaning of Article 311 is not an infringe-ment of fundamental rights, and the enforcement of violation of Article 311 does not come within the scope of Article 32. The ban is not apinst anyone individually and has reasonable basis and some relation to the suitability for employment or appointment to an office. [367 A-B, m-A::JJ]

Krishna Chander Nayar v. Chairman, Central Tractor Organisation & Ors. [1962] 3 S.C.R. 187; Shyam Lal v. State of U.P. [1955] 1 S.C.R. 26; Tata ·Engineering and Locomotive Company Ltd. v. Assistant Commissioner of Com-mercial Taxes & Anr. [1967] 2 S.C.R. 751 and Hukumchand Mills Ltd. v. The State of Madhya Bharat & Anr. [1964] 6 S.C.R. 857, referred to.

{3) The Government of Andhra Pradesh has by an administrative order <:onstituted review committee for each department to review orders of retire-meat ill public intere3t and to revoke ud modify the same, if necessary. The petitioners made representations to the reYiew comntittee, and are not justified in applying to this Court. [370A-B] ·

ORIGINAL JURISDICTION : Petition No. 97 of 1976.

(Under Article 32 of the Constitution of India).

S. Ramchandra Rao and B. Kanta Rao for the appellants in W.P.

S. Ramachandra ·Rao and A. Subba Rao, for the appellants in

W. P. No. 114/76.

, N~ren De, 4ttorney General, P. P. Rao, Sr. Advocate and T. V. S. Naraszmhacharz, for the respondents in W.P. No. 97176.

P. Parmeshwara Rao, and G. Narayana Rao, for respondents in W.P. No. 114/76. ·

The Judgment of the Court was delivered by

RAY, C.J. ~~e writ petitions. ~hallenge the compulsory retire-ment of the petitioners. The petitioners were retired compulsorily under order dated 23 September, 1975.

The order dated 23 September 1975 in the case of the first petitioner in writ petition No. 97 of 1976 may be referred to as typical of orders in the case of other petitioners. This order state<l first that the said first petitioner completed 25 years of qualifyin o 11ervice on 24th July, 1975. The order next stated that the Com~ missioner of Police being the authority to make substantive appoint-ment to the post of Inspector of Police is of opinion that it is in public interest to retire the persons mentioned in the order.

The order thereafter states that in exercise of the powers con-D ferred by Clause (a) of sub-rule (2) /sub-rule 2(A) read with Clause (a) of sub-rule (2) of rule 3 of the Andhra Pradesh Liberalised Pension Rules, 1961/sub-rule (1) of rule 2/rule 3 read with sub-rule ( 1) of rule 2 of the Andhra Pradesh Government Servants' Premature Retirement Rules, 1975, the Commissioner of Police directs that the person mentioned in the order shall retire in public interest from service with effect from the date of service of the order and that he shall be paid sum equivalent to the amount of pay and allowances for 3 months in lieu of notice calculated at the same rate at which he was drawing immediately before the date on which the order is served on him.

The Government of Andhra Pradesh passed general order dated 28 November, 1975. In that Government order it is st>ated that in several Government orders recited therein, orders for the premature retirement of the Government servants in public interest had been issued in those cases after giving 3 months previous notice in writ-ing or after giving 3 months salary in lieu of such notice. The 28 November, 1975 order next states that an instance came to the notice of the Government that Government servant after compul-sory retirement as per orders mentioned above was re-appointed in cooperative institution as exec1;1tive offi~er. Though t~e . re-appointment of the incumbent was m the Senu-Government lnstitut10n, his re-appointment was state<l .to be. ~egular and co~trary. to the intention of the Government m retmng corrupt and meffic1ent per-sons. The Government order directed that all the Departments of the Secretariat, all Heads of Department, and all CoJ.lectors etc., sho~d ensure that on no account persons who are retrred premat~ely m pursuance of orders issued by the Government should 1:Je re-instated or re-appointed in any Semi-Government or Quasi-Government Institutions.

The petitioners challenged the compulsory retirement orders as violation of Article 16. The petitioners also challenged the Govern-ment order forbidding re-appointment of compulsorily retired persons in Semi-Government or Quasi-Government Institutions as stigma within the meaning o~ Article 311.

At the outset it should be stated that enforcement of violation of Article 311 does not come within the scope of Article 32. The challenge to the Government order forbidding re-appointment of compulsorily retired persons as stigma within the meaning of Article 311 is, therefore, not an infringement CJi. fundamental rights.

The petitioners challenged the orders of compulsory retirement as an infraction of Article 16. It is not known how the petitioners have been discriminated against other persons because no such per-son is impleaded as respondent and there are no allegations to' that effect.

During the subsistence of the Presidential Order issued under Article 359(1) it is not competent to invoke Article 14 for enforce-ment of any fundamental rights. Articles 14 and 16 are to certain extent overlapping in regard t.o rights of equality.

Equality of opportunity for all citizens in matters relating to em-ployment is not violited by provisions for compulsory retirement of G<Wernment servants in public interest after the completion of certain period of qualifying service or attainment of certain age. This Court has consistently taken the view that compulsory retirement does not involve any civil consequences. See Union of India v. Col. l. N. Sinha and Another(') and Tara Singh etc. v. State of R«jasthan and Ors.(')

writ petition under Article 32 can lie only for infringement of fundamental rights. See B. Narayana Murthy and Ors. etc. v. State of Andhra Pradesh etc.([3]) The general order for compulsory retirement is applicable to all employees. The individual application of the order in given case cannot offend Article 16. It cannot be suggested that an order for compulsory retirement in the case of one person is denial of equality of opportunity relating to employment because another person in employment has not been compulsorily retired.

Article 16 does not prohibit the prescription of reasonable rules for compulsory retirement. question arose in T. C. Shivacharana Singh v. State of Mysore (4) whether rule providing for compulsory premature retirement from Government service violates Article 16. This Court said that the law in relation to the validity of rulei permitting compulsory premature retirement from Government ser-

(I) (1971] 1 S.C.R. 791. (3) (1971] Supp S.C.R. 741.

vice is well-settled by prior decision of this Court which does not require to be reconsidered. The ratio is that the provision for com-pulsory retirement in public interest applies to all Government ser-vants and as such it is not open to challenge either under Article 14 or under Article 16.

In. Shya'!l Lal v. State of U.P. (') the appellant had been com-pulsorily retrred. The order was challenged as violating Article 311. This Court held that there is no stigma involved iii compulsory retirement. Compulsory retirement does not amount to dismissal or removal and, thereore, it is not within the vice of Article 311.

One of the petitioners, namely, the first in writ petition No. 97 of 1976, challenged the order of compulsory retirement on the ground that he did not complete 25 years of service. He alleged that be was appointed on 10 September, 1952 and, therefore, the order of compulsory retirement dated 23 September, 1975 is bad. The State on the other band contends &at the correct date of appointment of the first petitioner is 25 July, 1950. In writ petitions the Court does not go into disputed questions of fact, like date of appointment .D as in the present case. In Tata Engineering and Locomotive Com-pany Ltd. v. Assistant Commissioner of Commercial Taxe~ d: A.nr. (2) this Court said .that the exercise of jurisdiction in writ matters is not desirable if facts have to be found on evidence. This Court bas also said that there may be exceptions. One such exception is when action is taken under an invalid law or arbitrarily without the sanc-tion of law. In the present case there is no aspect of either kind. ·Further it has to be observed that in the present writ petitions several petitioners have combined as petitioners. Their causes of action are separate and independent. Eacla is allegi:d to be an instance of individual assertion of constitutional right in regard to facts and circumstances of each case. Where several petitioners combine for alleged violation of their rights, it is difficult for court to go into each and every individual case. In the present case the affidavit evidence on behalf of the State is preferred and, therefore, the first petitioner cannot agitate the question of disputed date of appointment.

In Krishna Chandra Nayar v. Chairman, Central Tractor Orga-nization and Others(B) this Court considered the imposition oJ. ban against one man, namely, the petitioner in that case from bemg ever taken into Government service. He was temporary servant and his services were terminated by giving him pay and allowances in lieu of notice for one month. This Court found that case to be one of arbitmry imposition of ban against the employment or appointment of one individual to an office.

(2) [1967] 2 S.C.R. 751.

(1) [1955] l S.C.R. 26.

(3) [1962] 3 S.C.R. 187.

Krishna Chander's case (supra) is of no aid to the petitioners in the present case. The half is not challenged here. In Krishna · Chander's cas_e (supra) the ban was challenged as an arbitrary act against one individual. In the present case the ban is not against anyone individually but it is not to employ in Quasi-Government service or ·Semi-Government service, persons who are compulsorily retired from Government service. The ban has reasonable basis and has some relation to the suitability for employment or appoint-B ment t-0 an office. When compulsory retirement is made in public interest it will be an exercise in futility if Government ~ervanl'.i who are compulsorily retired are again employed in Government service or Semi-Government service or Qµasi-Government service.

The petitionen1 challenged the orders for compulsory retirement also on the ground that reference to so many rules was made and, therefore, it was not possible for the petitioners to know under what provision the orders for compulsory retirement had been made. It is not open to the petitioners to challenge the orders on that ground. The orders specifically mention that compulsory retirement is Iil.ado in public interest. The State affidavit evidence is that petitioners No. 4 and 5 in ~t petition No. 97 of 1976 are governed by Hyderabad Civil Service Regulations and the rest of the petitioner1> are governed by Andhra Pradesh Liberalised Pension Rules, 1961. Rule 292 of the Hyderabad Civil Service Regulations and sub-rule (2) (a) of rule 3 of the Andhra Pradesh Liberalised Pension Rules, 1961 are similar. Both the rules confer power on the authority to require Government servant to retire in the public interest from t1ervice on the date on which he completes 25 yean of qualifying ~ervice or attains 50_years of age. Rule 2(1) of the Andhra Pradesh Government Servants' Premature Retirement Rules, 1975 is also worded in similar language. The wording of the rules relating to retirement in public interest is identical in all the three sets of rules mentioned above. The mere fact that three different rules were mentioned in the .impugued orders without scoring out the rules which are not appli-cable to petitioner in one case cannot be any grievance for the reason that in each case the relevant rule is identically worded. The <:Jmission on the part of the officers competent to retire the petitioners in not scoring out the rules which are inapplicable to particular individual does not render the order bad. The reason is that one <:Jf the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the . applicability of the rule mentioned. Further this Court has taken the view that wrong reference to power will not vitiate any action "if it can be justified under some other power under which the Go-vernment can lawfully do the act. See Hukumchand Mills Ltd. v. The State of Madhya Bharat and Anothert'). l:n the present case the -valid rule is mentioned in each case.

The Government of Andhra Pradesh bas by an administrative order constituted review committee for each department to review orders of retirement in public interest and to revoke and modify the same, if necessary. The petitioners made representations to the review committee. The petitioners yet choose to come to this court. The petitioners are not justified in applying to this court.

The petitioners obtained rules in these two cases during the vacation. similar matter came before this Court on 29 April,. 1976 and this Court did not issue any rule. If the attention of this. Court had been drawn to that order, perhaps no rule would have· been issued in these matters. ·

The Andhra Pradesh Administrative Tribunal Order, 1975 con-c fers power on the Tribunal to exercise jurisdiction with respect to appointment, allotment or promotion and other conditions of service· of such persons. It is open to person who complains about an order of compulsory retirement to approach the Tribunal in given, case.

For the foregoing reasons, the writ petitions are dismissed. There will be no order as to costs.

Petitions dismissed.