B. PRABHAKAR RAD &ORS. ETC. v. STATE OJ! ANDHRA PRADESH & ORS. ETC .ETC•

614 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

I A creation of a chaotic State of administration is not a circum- stance to be taken into account. It may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But, there 1111st be suffi- cient evidence of that - how the circumstances will lead to chaos. Ups and downs of career bureaucrats do not by themselves B justify such a classification. It may however be of some conse- quence 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 age of 58 years and 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 bound to be wasteful. In such cases as c well as in cases where they can't be reinducted because they have already completed 58 years by now, they cannot obviously be reinducted. So other ways of compensating them 11U.1St be found. The obvious course is to compensate them monetarily. In Industrial Law we do award back and future wages on quite a large scale and there is no reason why we cannot adopt the same principle here. If as a rule private employers in such situa- D tions are asked to pay backwages, we see no impediment in doing so in the case of those that are expected to be model employers i.e. the Government, public corporations and local authorities.

An argument which requires to be dealt with is that it is not open to the Court to give restrospecti vely to a legislation to which the legislature plainly and expressly refused to give retrospectivity. As pointed out in Nakara'a case, the question is not one of retrospectivity at all. The circumstances that the relif given by Ordinance No.24 of 84 and Act No.3 of 1985 is not extended to those who had attained the age of 55 years by February 28, 1983 or between 28.2.83 and 23.8.84, has the effect of limiting the field of operation of the Ordinance and the Act and introducing a classification which in order to be sustained must be shown to be reasonable and to have a nexus to the object to be achieved besides not being arbitrary. While it is a general rule of law that statutes are not to operate retrospec- tively, 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. etc. But it would be incorrect to call a statute 'retrospective', "because a part of the requisites for its H

B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 615

action is drawn from a time antecedent to its passing". (Viele A R.V. St. Mary, Whitecbapel (Inhabitants) [i842] 12 Q.B. 120). We must further remember, quite apart from any question of.retros- pectivity, that, unlike in the United Kingdom here in India we have a· written Constitution which confers justificiable funda- mental rights and so the very refusal to make an Act retrospective or the non-application of the Act with rP.ference B to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justi- fying the striking down of the non-retroactivity or non-appli- cation clause, as offending the fundamental right to equality before the law and the equal protection of the laws. That is the situation that we have here. c We may now refer to two arguments which were mentioned in passing but were not pursued. The first was that a writ petition similar to Writ Petition Nos. 3420-3426/83 etc. had been filed earlier and had been dismissed in limine by a Bench of this Court. We do not see how the dismissal in limine of such a writ petition can possibly bar the present writ petitions. Such a dismissal in limine may inhibit our discretion but not our jurisdictioli:- So the objection such as it was, was not pursued further. So also the second objection which related to the non- joinder of all affected parties to the litigation. We are quite satisfied that even if some individual affected parties have not been impleaded before us, their interests are identical with those and, have been sufficiently and well represented. Further, the relief claimed in Writ Petition Nos. 3420-3426 of 1983 etc. is of a general nature and claimed against the State and no particular relief is claimed against any individual party. We do not think that the more failure to impead all affected parties is a bar to the maintai.nability of the present petitions in the special circumstances of these cases where the actions are really between two 'warning groups'.

Finally we come to the question of the relief to be granted. We find that Cl.3(1) of Ordinance No;24 of 84 and Sec.4 (1) of Act No. 3 of 1985 may easily be brought to conform to the requirements of Art. 14 of the Constitution by striking down or omitting the naughty word .. 'not' from those provisions. We may possibly achieve the same object by striking down the whole of cl.3(1) of the Ordinance and Sec.4(1) of the Act but then the question may arise whether the rest of the Act would be suffi- cient to bring in these who have been excluded. We think that the safer course would be to strike down the off ending word

616 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 'not' from these provisions. That we have such power is clearly laid down in Nakara's case where the court directed the deletion of some words from the offending clause and directed it to be read without those words. To make matters clear and to pul them beyond dispute, we give the following directions in exercise of our powers under Art. 32 and 142 of the Constitution: B "l. All employees of the Government, public corpora- tions and local authorities, who -were retired from service on the ground that they had attained the age of 55 years by 28.2.85 or betwiaen 28.2.83 and 23.8.84, shall be reinstated in service provided they would not be completing the age of 58 years on or c before 31.10.1985.

2. 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 rein- statement under the first clause, shall be entitled D • to be paid compensation equal to the total emoluments which they would have received, had they been in ser- vice, until they attained the age of 58 years, less any amount they might have received ex gratia or by way of pension etc. or under the interim orders of this Court. They will be entitled to consequential retiral benefits. E

3. 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 reinsta~ed in service pursuant to interim orders of this Court, shall be allowed to continue in service until they attain the higher age of superannuation.

4. The reinduction of those employees that have been 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• They will be entitled to all further consequential benefits.

5. 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 in the same manner as mentioned in clause ( 2) •

B.PRABHAKAR RAO v. STATE (CHINNAPPA REDDY, J.] 617

6. 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 them in the case of all or some or any of the employees, as the case may be, provided the employees are paid the compensation as in the case of those covered by (2) and (5). B

7. All interim orders -are vacated and subject to these directions, 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 C 23.8.84 to the posts which they held on February 29, 1983 or on the dates previous to their promotion or appointment provided that they need not be so rever- ted, 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 D age of superannuation.

8. The Government shall be free to create super- numerary posts wherever they considet it necessary so to do. E

9. All payment of compensation to be made and comple- ted before December 31, 1985. If for any reason the Government finds itself unable to pay the entire amount at one time within the time fixed by us, the Government will be at liberty to pay the amount in not more than four instalments within the tiine stipu- lated by us. The Govermnent will a,lso have the liberty to supply to us for extension of time, if so advised. Where the employees are awarded compensation by the Government. such employees 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-true Rules and Income-tax Officer concerned will grant the appropriate relief."

With these directions, Writ Petitions Nos. 3420-26 of 1985 etc. are allowed with costs and Writ Petitions Nos. 5447-5546 of 1985 etc. are dismissed but in the special circumstances without any order as to costs. H

618 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A llALAKRISllNA ERADI, J, While respectfully agreeing with the judgment prepared by my learned Brother Reddy, J. I have thought it fit to add a few words of my own since I consider it necessary to make it absolutely clear that the conclusions reached by us in these cases are based entirely on the special facts and circumstances constituting the legislative history of the impugned Andhra Pradesh Ordinance No.24 of 1984 and Act 3 of 1985 which have been set out in extenso in the judgment of Reddy,J.

We are not to be understood as laying down that whenever the age of superannuation of Government employees or of employees of local authorities etc. is enhanced, the benefit of such enhancement should be extended not merely to persons in service on the date on which the change is effected but also to persons who have already retired from service prior to that date. It is now well established by decisions of this Court that the Government has full power to effect a change in the age of superannuation of its employees on :i:-elevant considerations. If D 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 change is not extended to E employees who have already retired from service. In these cases now before us our conclusion is rested entirely on the finding arrived at by us after a consideration of the factual background and legislative history of the impugned Ordinance and Act that the underlying purpose and object behind the relevant provisions of the Ordinance and the Act was to set right and nullify a F wrong or injustice that had been done to the employees by ti)e abrupt reduction of the age of superannuation from 58 years to 55 years by Ordinance No. 8 of 1983 and the Government's Notifi- cation issued as per G.Q. Ms.No.36, dated 8th February, 1983 which preceded it. All that we are holding is that in the context of these telling facts and circumstances which conclusively show that the object and purpose of the Legislation was to set right the injustice that had been done, there is no rational or reasonable nexus or basis for separately classifying the employees who had retired from service prior to the date of commencement of Ordinance No.23 of 1984, who are the persons most affected by the wrong_ - by denying to them the benefit of the rectification of the injustice. It is so1ely on this ground that we are allowing these Writ Petitions and granting the reliefs specified in the judgment of Reddy J,

B.PRABHAKAR RAO v• STATE (KHALID, J.] 619

KHALID, J. After considering the rival contentions put forward by the learned counsel on both sides, the factual matrix and the law involved, the following points gave me some difficulty in accepting the petitioners' case. I felt that these points posed hurdles in the way of the petitioners succeeding in their.attempt to secure the relief sought. I am fornrulating the points as I understood them. B

1. This Court in K. Nagaraja V• State of A.P; [1985] A.I.R. s.c. 551, upheld the action of the Government in reducing the age of retirement from 58 to 55. The contention that such reduc- tion was arbitrary and irrational was not accepted. Further, the content.ion that the age of superannuation was increased from 55 C to 58 years with effect from October 29, 1979, after an elaborate and scientific enquiry by an one-man pay connnission did not find favour with this Court because it felt that the question of the age of retirement was not referred to the Commission. Accordingly the Court held that the decision regarding the age of retirement was a matter of policy in the fornrulation of which theGovernment must be allowed a free and fair role to play. It. is not always necessary that such a decision is taken on the basis of empirical data collected on scientific investigation. The further submission that the decision to reduce the age of retirement from 58 ·to 55 years was arbitrary in view of the fact that it was .taken by the State Government within ·one month of the assumption of office by it also did not find favour with this Court. This Court observed that the reasonableness of a decision in any jurisdiction, did not depend upon the time which it took. This decision has became final and the petitioners before us cannot in any manner question it. This decision is, therefore, an authority for the proposition that the charge of arbitrariness cannot be laid at the doors of the Government in matters relating to policy decisions and that the Government have full powers to decide about the age of retirement considering the various data available before it.

(2) Bislmu Narain Mishra v. State of U.P; & others, ll965] G 1 S.C.R. 693, is a decision rendered by a Constitution Bench of this Court. In that case, a ,notificatJ.on on November 27, 1957, raised the age of superannuation from 55 to 58 years. On May 25, 1961, the age of retirement was reduced once-again to 55 years. It was proVided in the second notification that those who were retained in service beyond the age of superannuation on the H basis of the earlier notification would be compulsorily retired on December 31, 1961. The second notification was questioned as

620 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A being arbitrary and hit by Article 14 since it resulted in inequality between the public servants .in the matter of retire-:. ment. In this Judgment the classification of Government employees who were in service into two groups base~ on their age was upheld by the Constitution Bench as a reasonable classification. I felt that this case had a great bearing on the petitions before us and B the principle laid down there could be extended to the cases before us• It was strongly contended that if classificati<>n of two groups. of in-service employees on the basis of age and a cut off date could be justified. as reasonable classification, it can be more so in cases like the one before us where the classifica- tion is between the retired employees and those in service.

C (3) By the operation of a valid law, some employees have retired by superannuation and have thus ceased to be members of their respective service. What. is noW attempted is to retrospec- tively re7induct them into service, a procedure that Courts should froWn upon and not encourage.

D ( 4) For the purpose of the cases before us , Bistrun Narain IU811ra 's case is more "l'P.ropriate and useful tha.n that of o.s; 11aksrs -.;,Uliion, [1983'] 2 S.C.R. 165, which dealt with two· classes of retired employees and a cut off date. The attempt to distinguish Bislrun Narain's case on the factual difference avail- able in these cases is ~'. matter for further probe, in order to see how for the distinction is destructive of the principle laid E down there in its application to these cases.

(5) ''i'he original attempt by the petitioners was to get Section 3 of the amending Act struck down in its entirety. Now they realise that such a relief would not serve their purpose. What they now want is that this Court should' remove the word F 'not' froill 'the Section, so 'that the petitioners will be r'escued from the mischief of that word. Removing a word or adding words to a leg~slative enactment is an exercise, Courts have been repeatedly warned against from embanking upon. I personally feel that this· guideline is one that has to be respected by Courts of law. G (6) A petition, similar to one before us, was filed in this Court as W.P. No. 16080/1984 raising identical points. This writ petition came up for hearing on 12.2.1985 before a Bench consist- ing of the Chief' Justice, Justice D.A. Desai and Justice .A.N. Sen. After hearing the counsel for the petitioner as well as the H

B.PllABllAKAR RAO v. S'tATI! [KHALID, J •I 621

State of Andhra Ptadesh, the BenCh suggested that the counsel for A the State should take instructions from the · State of Andhra Ptadesh about reinstating in service of those persons who had not attained 58 years of age, but without back-wages. The caae was adjourned to 19.2.1985 for thst purpose. I understand that counter-affidavits· were also filed in that caae. The caae appeared before a Benell consisting of Justice R.S. Pathak and B Justice A. Varadarajan · on the next occasion. On that occasion, the petition was dismissed, after hearing. Normally this Court will be disinclined to entertain or to hear petitions raising identical points again where·on an earlier occaaion, the matter was heard and dismissed. Not that this Court has no jurisdiction to entertain such matters, but would normally exercise its c discretion against it. One of the counsel appearing for the respondents strongly pleaded the bar of Res Judicata against these petitions on the basis of the earlier decision.

(7) The learned Advocate General of ·the Andhra· Pradesh with great concern and justifiably appealed to us that if the D petitions were allowed, it would cause serious dislocation in the administration. He strongly pleaded that the action taken did not have any tinge of mala f ides that there was no attempt at picking and choosing of any Government servant and that therefore the Court should not exercise its jurisdiction to annul a policy decision. E

2. I have given my anxious considerations to the above questions and the rivai submissions in reply. I find that the case is 100re o'r less evenly balanced between the parties. The important factors ruive, however, persuaded me, to agree with the main Judgment and 'to err on the side of Justice 100re than that of law, invoking the benevolent jurisdiction under Article 142(1) of the Constitution of India which reads:

"142(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable through- out the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the Ptesident may by order prescribe." H These 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

622 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.

A age of 58 years, have as though 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, perhaps taken in a hurry, w1.thout serious application of mind have resulted in arbl.trariness that B has been forcefully projected by the petitioners. This plea cannot be light hearte.dly thrown overboard. Justice demands that the petitioners should be saved of their predicament.

The second factor that has prevailed upon me to give succour to the petitioners is the blame that this Court has to share for c the sorry state that has come to pass in the matter. Without meaning disrespect to anyone, I firmly believe, that prompt .action by the Court, would have eased the situation, considerably and relieved the petitioners of their sad plight and us of this avoidable exercise. It is not as though that the subsequent developments were not brought to the notice of this C.ourt in D Nagaraja's case, (supra). We were told that the Hench was alerted in time about the developments that had taken place but unfortunately they were not taken into account. When the Judgment ultimately came on 18.1.1985, as many as 6000 employees had lost their service, a tragic result, not based on any relevant consi- deration having a nexus to the age of superannuation. The damage had been done and it can be repaired only by extending this eoUrt 's powers to a section of employees who deserves !;.-lympathy and fair deal.

This short Judgment is only to vindicate my stand. I respectfully agree with the Judgment prepared by my learned brother Reddy, J. I am also in entire agreement with my learned brother Eradi, J, about the limited scope of the principles laid down in these cases on their peculiar facts.

N.v.K. Petitions dismissed.