LIFE INSURANCE CORPORATION OF INDIA & ANOTHER ETC. v. S.S. SRIVASTAVA & OTHERS

No. 13958 (W) of 1980} decided on December 21, 1982 the High Court I of Calcutta has rejected a similar claim. We may at this stage refer to a recent decision of this Court in Miss Lena Khan v. Union of India and Ors., J.T. 1987 2 S.C. 19 decided on 30.3.1987 in which the validity of the continuation of some foreign Air Hostesses beyond the prescribed age of retirement came up for consideration. The Court rejected the petition stating that the management of Air India having taken a deci- sion "to phase out U .K. incumbents when they attain the age of 45", it was not discriminatory to Air Hostesses of Indian origin who were to retire at the age of 35 years and was not unconstitutional. The princi- ple enunciated in this case can be applied to the cases of three officers who belong to the Department of Insurance who joined the service of the Corporation after resigning their posts in the 6overnment of India in the year 1965, there being no chance of any addition to their class. - Classification of employees into two categories for purposes of fixing the age of superannuation depending upon their elates of entry into service when the necessity for doing so arises on account of certain historical reasons is not unknown. This Court had to deal with a case involving a similar situation in Railway Board v. A. Pitchumani, (1972] 2 S.C.R. 187. Several railway companies which were running their own railways in different parts of India were amalagamated with the Indian Railway Administration in 1947. On such amalagamation servants of the railway companies, whose railways were taken over, became the employees of the Indian Railway Administration. On the absorption of the services of the servants of the previous railway companies it became necessary for the Indian Railway Administration to frame "'( rules with regard to their conditions of service including the determi- nation of the age of retirement of those railway employees. Accord- ingly, rule 2046 (F.R. 56) of the Indian Railway Fundamental Rules F had to be modified. That rule was, therefore, substituted by a new rule on January 11, 1967. The new rule read as follows:

"2046. (FR. 56)-(a) Except as otherwise provided in this rule, every railway servant shall retire on the clay he attains the age of fifty-eight years. G (b ). A ministerial railway servant who entered ~ Government service on or before the 31st March, 1938 and held on that date-

(i) a lien or a suspended lien on a permanent post, or H

L.l.C. v. S.S. SRIVASTAVA [VENKATARAMIAH, J.] 219

(ii) a permanent post in a provisional substantive A capacity under Clause (d) of " .le 2008 and continued to hold the same without interruption until he was confirmed in that post,

shall be retained in service till the day he attains the age of sixty years. B

NOTE: For the purpose of this Clause, the expres- sion "Government Service" includes service rendered in ex-company, and ex-State Railways, and in a former pro- vincial Government.''

. . In the above new rule every railway servant, whose case did not fall under clause (b) of that rule was required to retire on the date he attained the age of .58 years. Clause (b), however, provided that every c

ministerial railway servant who had entered the Government service on or before 31st March, 1938 and who satisfied the conditions mentioned either in sub-clause (i) or sub-clause (ii) thereof was entitled to continue in service till he attained the age of 60 years. As may be seen from that rule, the classification of the employees was made on the basis of the date of entry into the service of the Govern- ment. That clause (b) of the said rule applied also to the employees of ex-companies and ex-State railways which were taken over by the Indian Railway Administration is clear from the note attached to clause (b) of rule 2046 which prorvided that for the purpose of that 'r clause the expression 'Government Service' included service rendered in ex-company and ex-State railway& and in a former provincial Government. On December 27, 1967 the Indian Railway Administra-

, tion substituted the note attached to clause (b) of rule 2046 by the new note which read thus:

"For the purpose of this clause the expression 'Government Service' includes service rendered in a former provincial government and in ex-company and ex- F

State Railways, if the rules of the Company or the State had a provision similar to Clause (b) above." G

The effect of the new note was that an employee who satisfied the condition in sub-section (i) or sub clause (ii) of clause (b) was entitled to continue upto 60 years after December 23, 1967 only if the rules of the company in which he was formerly working had a provision similar to clause (b) of rule 2046 which fixed the age of retirement at 60 years. H ·-'

220 SUPREME COURT REPORTS [1987] 3 S.C.R.

A The Respondent in that case, that is, A. Pitchumani while he was J entitled before December 23, 1967 to continue in service till he attained the age of 60 years as he had joined the service of the Madras and Southern Mahratta Railway Company on August 16, 1927, i.e., prior to March 31, 1938 and satisfied the other conditions mentioned in clause (b) of rule 2046 could not have the benefit of that clause on B and after December 23, 1967 since in the Madras and Southern Mahratta Railway Company where he was formerly working there was x no rule similar to clause (b) as regards the age of retirement. He was asked to retire from service on April 14, 1968 on which date he was · ~ completing the age of 58 years. The Respondent, A. Pitchumani questioned before the High Court of Mysore (Karnataka) the validity c of the note substituted by the Order dated December 23, 1967 which took away his right to continue in service till he attained the age of 60 years which he otherwise possessed before the introduction of the said note. The High Court of Mysore struck down a part of the new note - only on the ground that it was discriminatory and directed that the Respondent, A. Pitchumani should be allowed to continue in the service till he completed the age of 60 years. On appeal, the, judgment of the High Court was affirmed by this Court in Railway Board v. A. "'I Pitchumani (supra). This Court did not find fault with the classification that had been made between the persons falling under clause (a) and persons falling under clause (b) on the basis of the date of entry into service since clauses (a) and (b) of rule 2046 had uniform application to all the employees of the Indian Railway Administration who came within the respective clauses. It, however, agreeing with the High Court found fault with the classification of the employees falling under ~ clause (b) into two categories, namely, those employees belonging to a company where there was a rule similar to clause (b) as regards the age of superannuation and those employees who came from companies where there was no rule similar to clause (b) as regards the age of ~' superannuation. In Manindra Chandra Sen v. Union of India & Ors., A.LR. 1973 CAL. 385 Sahyasachi Mukharji J., has upheld the said classification of railway employees into two categories viz. those who joined on or before 31.3.1938 and those who joined after 31.3.1938 for purposes of fixing the age of superannuation on the basis of same historical facts which are set out in detail in that judgment. Such clas- sification for purposes of fixing the age of superannuation depending ~ upon the date of entry into services is not, therefore, something which is unusual and such classification becomes necessary on account of ., historical facts and the need for treating the employees in a fair and ~, just way. H

L.l.C. v. S.S. SRIVASTAVA (VENKATARAMIAll. J.] 221

On behalf of the 1st Respondent reliance is placed on the deci- A sion of this Court in Mis. British Paint.I (India) Ltd. v. The Workmen, [1966] 2 S.C.R. 523 in support of his case that there should be no discrimination amongst the employees of an establishment with regard to the age of superannuation. That decision was rendered in an appeal against an award passed by ~n Industrial Tribunal. In that decision this Court has, no doubt, observed that generally speaking there should not be any difference in the age of retirement of existing workmen and others to be employed in future unless there are special circumstances justifying such difference. By making the above observation this Court has virtually accepted the position that when there are special ! circumstances justifying the difference, it is open to fix different ages of retirement for the employees of an establishment in appropriate cases. We have already explained earlier the reason for treating the transferred employees differently from the employees appointed after !st September, 1956 by the Corporation. The transferred employees who are treated favourably belong to a vanishing group and, perhaps, within a period of few years none of them would be in the service of the Corporation. Thereafter only one class of employees would be in the service ·of the Corporation, namely, those appointed subsequent to !st September, 1956 by the Corporation in respect of whom the Corpo- ration has fixed the age of retirement as 58 years which corresponds to the age of retirement in almost all the public sector establishments, the Central Government services 11nd the State Government services. · E ·The 1st R.espondent cannot derive any assistance from the deci- sion of this Court in Mohammad Shujat Ali & Ors. etc. v. Union of India & Ors. etc., [1975] 1 S.C.R. 449 in support of his case before us. In the above decision this Court was concerned with reservation of posts for graduate Supervisors in the cadre of Assistant Engineers giving them a preferential treatment over non-graduate Supervisors F who were also eligible to be promoted along with the graduate Supervisors to the cadre to Assistant Engineers after the graduates and non-graduates ·had been integrated into one cadre of Supervisors. Merely because the pay, allowances and other perquisites drawn by the transferred employees and by the employees appointed after 1st September, 1956 by the Corporation are the same it cannot be said G that the transferred employees and the other employees had been integrated so as to form one cadre. So far as the age of retirement is concerned as it is already shown they are being treated differently right · from the date on which the Corporation was established.

The decision of this Court in Workmen of the Bharat Petroleum H

222 SUPREME COURT REPORTS ( 1987] 3 S.C.R.

l A Corporation Ltd. (Refining Division) Bombay v. Bharat Petroleum Corporation Ltd. and Another, (1984] I S.C.R. 251 no doubt lays down that under the modem conditions there is a general trend in favour of raising the age of retirement in the case of employees in industrial establishments. It may be so. We are not concerned in this case with the question whether the age of retirement of employees who B have joined the service of the Corporation after !st September, 1956 should be raised to 60 years. That is a ·matter of policy which has got to be decided by the Corporation and the Central Government. We are only concerned with the question whether the employees appointed after 1st September, 19.56 have been subjected to any hostile discrimi· nation while fixing the age of retirement contrary. to Article 14 and C Article 16 of the Constitution. Since the classification of the employees for the purpose of age of retirement into two categories in this case appears to us to be reasonable and not arbitrary and that there is a reasonable nexus beiween the classification and the object to be at; tained thereby, it is not possible to hold that regulation 19(2) is viola· tive of Article 14 and 16 of the Constitution. D We may at this stage refer to the following passage in Tamil Nadu Education Department Ministerial & General Subordinate Service Association v. State of Tamil Nadu & Anr., (1980] 1 S.C.R. 1026.

"In Service Jurisprudence integration is a complicated administrative problem where, in doing broad justice t<Y many, some bruise to a few cannot be ruled out. Some play in the joints, even some wobbing, must be left to Govern· ment without fuss)' forensiC inOnitoring, since the adminis- tration has been entrusted by the Constitution to the F Executive, not to the Court. All life, including administra· tive life, involves experiment, trial and error, but within the leading strings of fundamental rights, and, absent unconstitutional 'excesses'~ judicial correction is not right. Under Article 32, this Court is the constitutional sentinel not the national ombudsman..-We need an ombudsman but the court cannot make-do." (page 1031)

The decision taken by the Corporation and the Central Govern· -<ment as regards the ages of retirement of the different classes of the · employees of the Corporation in the instant case is a bona fide one and cannot be characterised as unreasonable. It is not, therefore, liable to be upset by a decision of the Court. On a careful consideration of all

L.1.C. I'. S.S. SRIVASTAVA [VENKATARAMIAH, J.] 223

the aspects of the case we feel that the High Court erred in striking down regulation 19(2) of the (Staff) Regulations, 1960 as amended in the year 1977, and in directing the Corporation to continue the 1st Respondent in its service till he completed the age of 60 years. We, therefore, set aside the judgment of the High Court and dismiss the writ petition filed in the High Court. The appeals are accordingly allowed. There shall, however, be no order as to costs.

N.P.V. Appeals allowed.