Holding

The classification excluding employees who retired between 28‑Feb‑1983 and 23‑Aug‑1984 is arbitrary and violative of Article 14; the word ‘not’ in the impugned provisions must be struck out and the affected employees reinstated or compensated.

Summary

The Andhra Pradesh government reduced the superannuation age for its employees from 58 to 55 years in 1983 and later attempted to reverse the decision by raising it back to 58 years through Ordinance No.24 of 1984 and Act No.3 of 1985. A large number of employees who had been forced to retire under the 55‑year rule challenged the validity of the reversal, arguing that the classification excluding them was arbitrary and violative of Article 14. The Supreme Court examined the legislative history, the purpose of the amendment (to remedy a wrong), and applied the test of reasonable classification. It held that the exclusion of those who retired between 28‑Feb‑1983 and 23‑Aug‑1984 was unreasonable and discriminatory, and struck down the word “not” in the offending provisions. The Court ordered reinstatement of eligible employees, compensation for those not reinstated, and directed the government to pay the amounts by a specified date. The petitions were allowed, with some dismissed on technical grounds.

Issues considered

The constitutionality of Clause 3(1) of Ordinance No.24 of 1984 and Section 4(1) of Act No.3 of 1985 under Article 14
Whether the classification of employees who retired between 28‑Feb‑1983 and 23‑Aug‑1984 is reasonable and has a rational nexus to the legislative objective
Whether the provisions are amenable to judicial scrutiny despite being policy measures
The effect of the earlier dismissal in limine on the present writ petitions
The appropriate remedy – reinstatement, compensation, or both

Legislation cited

Andhra Pradesh Ordinance No.24 of 1984s. 3(1)
Andhra Pradesh Ordinance No.5 of 1983s. Clause 10
Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984s. 3(1), s. Explanation II(a)
Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 – Amending Act (Act No.3 of 1985)s. 2 (substituting 55 with 58), s. 4(1)
Fundamental Ruless. Rule 56(a)
Hyderabad Civil Service Ruless. Rule 231
Income Tax Acts. Section 89

Subjects

Age of superannuationArticle 14ClassificationArbitrarinessRetrospective legislationStatutory interpretationReinstatementCompensationAdministrative lawJudicial review

Judgment

\

573

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

AUGUST 19, 1985

[O. CHINNAPPA REDDY, V. BALAKRlSHNA ERADI AND v. KHALID, JJ.J B

Andhra Pradesh PUblic Employment (RP-gulation of Age of
St.1perannuation) Act 1984 section 3(1) and Explanation II (a).

Fundamental Rules Rule 56 (a) and Hyderabad Civil Service
Rules Rule 231. c
Employees - Age of superannuation - Change of - Amendments
effected by Ordinance No. 24 of 1984 and section 4 (1) of Act 3
of 1985 - Whether constitutionally valid - Fixation of date and
division of employees into two class on basis thereof - Whether
permissible - Whether amenable to judicial scrutiny - Age of D
Superartnuation - Change of policy or reversal of policy.

Constitution ~f India 1950, Article 14

Classification - Reasonableness of - Burden of proof on
State.
E
Interpretation of Statutes

Government department administering Act - Official state-
ment of - Whether relevant for interpretation legislation to
remedy wrongs - Wronged persons - Whether can be excluded.
F
Practice & Procedure

Writ petition - Dismissal in limini - Whether bar to enter-
tainment of another similar writ petition.

In the State of Andhra Ptadesh the age of superannuation G
was 55 years to begin with, but in the year 1979, the Government
raised the age to 58 years. In February 1983, the Government
decided to reduce the age of superannuation of its employees from
58 to 55 years, and also issued directives to local authorities
and public corporations under its control to"do likewise.
H
574 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A In order to give effect to the aforesaid policy of
reversal, the Government amended Rule 56(a) of the Fundamental
Rules and Rule 231 of the lfyderabad Civil Services Rules by
substituting the figure '55' for the figure '58 1 and by making a
special provision that those who had already attained the age of
55 years and were continuing in service beyond that age on
l! 28.2.1983. shall retire frbm service on the afternoon of
28.2.1983.

This was followed by another notification dated 17.2.1983
deleting the proviso to Rule 2 of the Fundamental Rules which
protected a civik servant against a change in conditions of
service to his detriment after he entered service. The Andhra
c Ptadesh Ordinance No. 5 of 1983 was promulgated regulating the
recruitment and conditions of service of persons appointed to
public service and posts in connection with the affairs of the
State of·Andhra Ptadesh and the Officers and servants of the High
Court of Andhra Ptadesh Clause 10 of the Ordinance provided that
every Government employee, not being a workman and not· belonging
to Last Grade Service shall retire from service on the afternoon
D of the last day of the month in which he attains the age of
fifty-five years. In the case of Government employees belonging
to the Last Grade Service, ·it was provided that they shall retire
from service on the afternoon of the last day of the month in
which they attain the age of sixty years. Clause 18(1) provided
that the proviso to Rule 2 of the Fundamental Rules shall be
E
deemed always to have been omitted.

Tumtediately after the notification reducing the age of
superannuation from 58 to 55 were issued, a large number of
Government employees, employees of public sector corporations,
and teachers working under various authorities filed writ
F petitions in this Court as well as in the High Court of Andhra
Ptadesh challenging the vires of the provisions reducing the age
of superannuation. · ·

There was also a State wide agitation by affected employees
and on' August 3, 1983 an Agreement was arrived at between the
G Government and the Action Committee of Employees and Workers.
Clause (1) of the agreement provided that proviso to F.R. 2 will
be restored in respect of all matters, except the age of
superannuation retrospectively · and that the provisions of the
Ordinance relating to the age of superanntiaticin will also be
removed after the judgment of the Supreme Court. The Agreement,
H
also, contained a stipulation that it was not to be placed before
the Supreme Court either by the Government or by the employees.
B.PRABl!AKAR RAO v. STATE 575

A
The Andhra Pradesh Legislature enacted the Andhra Ptadesh
PUblic Employment (Regulation of age of Superannuation) Act No.
23 of 1984 making it applicable to persons . appointed to public
service and posts and other employees in any Local Authority,
Houses of the State Legislature etc. On August 23, 1984 the Act
was amended by the promulgation of the Andhra Ptadesh Ordinanee ll
No. 24 of 1984 providing that in s. 3(1) of the Act and in Expla-
nation II (a) the wrds 'fifty-e.ight years' shall be substituted ,
for the words 'fifty-five years'. The Andhra Ptadesh Ordinanee
No. 24 of 1984 was replaced by Act No. 3 of 1985. By sec. 2 of
the Amending Act, the.words 'Fifty-five year•' were substituted
by the words 'fifty-eight years' in Sec. 3(1) and Explanation c
II(a) of the Ptineipal Act.

Section 4 of the Amending Act, which replaced Clause 3(1)
of Ordinance No. 24 of 1984 provided : that: "4(1) The
provisions of section 2 of the Act shall not apply to persons
who attained the age of superannuation pursuance of the noti-. D
fications issued ....... or in pursuance of the provisions of the
Andhra Ptadesh Pilblic Employment (Regulation of Age of Super-
annuation) Act 1984 •••••••• "

During the pendency of the Writ Petitions in this ('.ourt,
several employees of locS.l authorities etc. obtained orders of
stay from the High Court ahd were continuing in service on the E
date when the judgment of the Supreme Court was pronounced.
After the pronouneement of the judgment of the Supreme Court, the
authorities sought to give effect to the provisions of the Act ·
and the Ordinance by seeking to throw out the employees on the
ground that they had completed 55 years of age during the
interregnum between February 28, 1983 and August 23, 1984. F

Some others who had completed 5j years between February 28,
1983 and August 23, 1984 but who had not completed 58 years
sought re-entry, notwithstanding the raising of the.age of super-
annuation from 55 years to 58 years. Their re-entry was sought
to be resisted on the basis of cl. 3(1) of the Ordinance and s. G
4(1) of the Amending Act. Those employees who were sought to be
remcved from service or -who were denied re-~ntry into service on
the ground that they had attained the age of 55 years between
February 28, 1983 and Aug.1st 23, 1984 once asain invoked the
jurisdiction of this Court under Article 32 and sought
appropriate writs to continue or t~ reinstate and cotinue them in H
service until they attain the age of 58 years.

··'\,

'
576 SUPREME COURT REPORTS [1985] SUPP;2 s.c.R.
'
A On 23.4.1985, a Division Bench of this Court, directed that
those Government servants who were in service prior to April 1,
1985 and who were removed from service on account of reduction in
age, shall be reinducted in service, if the posts from which each
one was removed was still vacant or someone was holding a
temporary change.
l!
On May 6/7, 1985 another Bench of this Court directed that
the aforesaid Order dated 23rd April, 1985 should be implemented
to the extent that the posts from which the employees ware
removed are still vacant or where such post was held temporarily
by others on promotion under Rule 37 of the A.P; States
Subordinate Service Rules.
c
Many persons claiming to have been appointed under Rule 10
or claiming to have been promoted regularly notwithstanding the
mention of Rule 37, filed writ petitions questioning the orders
of reversion with which they were faced consequent on the afore-
said interim directions of the Court.

D On behalf of the employees who had attained the age of 55
years between 28.2.1983 and 23.8.1984 it was contended that the
classification of these persons as a separate group for the
purpose of excluding them from the benefit of the redressal of
the wrong done to them and the relief given to them by the amend-
ing Ordinance .and the Act, was an unreasonable classificatio"
E having no nexus whatever with the object of the legislation. It
was urged that every person who was in Government employment on
28.2.1983 was hit by the reduction of the age of superannuation
from 58 ·to 55 years and when it was realised that a grievous
wrong had been done which it was necessary to set right by '
reversing the policy and such a policy decision having been
taken, there was no reason to postpone effect being given to the
reversal of policy to an uncertain date, namely the pronouncement
of the judgment by the Supreme Court and thereby excluding from
the benefits of the change of policy, that group of persons who
had the lD!.sfortune of attaining the age of 55 years, It was
further contended that several. persons who were continuing in
G service by virtue of stay orders obtained from the High Court,
were also sought to be sent away by the Government on the ground
that had. they not obtained the orders of stay they would have
retired from service on having attained the age of 55 years and
this was patently unreasonable.

H On behalf of the State Government and Officers who were
promoted in the vacancies created by the retirement of those who

·-
B.P\WlHAKAR RAO v. STATE 577

A
had attained the age of 55 years, it was submitted that there was
no discrimination whatsoever and that what the Government had
done""" merely to classify those employees who had'ceased'to be
in service or who should have ceased to be in service and refused
to apply the increased age of superannuation to them. Having gone
out of service, there was no question of their being eligible to
B
the increased age of superannuation and therefore, the classifi-
cation was perfectly reasonable. It was also urged that appoint-
ments and prOlllOtions were made subsequent to the reduction of the
age of superannuation on regular basis and those appointments and
promotions could not therefore be disturbed.

llKIJl: [By the Court Per Chinnappa Reddy, Balakrishns Eradi
c
& Khalid, JJ • l

1. Clause 3 (1) of Ordinance No. 24 of 84 and Section 4(1)
of Act No. 3 of 1985 be brought to conform to the requirements of
Article 14 of the Constitution by striking down or omitting the
D
word 'not' from those provisions. [615 G)

2. In exercise of powers under Art. 32 and 142 ·of the
Constitution the following directions given :

a• All employees of the Government, public Corporations and
local authorities, who were retir£d from service on the ground
E.
that they had attained the age of 55 years by 28.2.83 or between
28.2.83 and 23.8.84 shall be reinstated in service provided they
vould not be completing the age of 58 years on or before
'· 31,10.1984. [616 S-C)

b. All employees who were compelled to retire on February
F
28, 1983 and between February 28, 1983 and August 23, 1984 and
who are not eligible for reinstatement under the first clause,
shall be entitled to be paid compensation equal to the total
' emoluments which they would have received, had they been in
service uotil they attained the age of 58 years, less any amouot
they might have received. They will be entitled to consequential
G
retiral benefits. [616 D)

c. Such of the employees as have not been compelled to
retire by virtue of orders of stay obtained from the High Court
or the Administrative Tribunal or who have actus1ly been
reinstated in service pursuant to interim orders of thia Court,
H
shall be allowed to continue in service uotil they attain the
higher age of superannuation. [616 F)
578 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

d· The reinduction of those employees that have been
A compelled to retire previously, will put them back as regards
their seniority in precisely the same position which they
occupied before they were retired from service and be entitled to
all further consequential benefits. [616 G]

e. The employees who were retired and who are reinducted
ll
will be entitled to be compensated for the period during which
they were.out of service. [616 H]
i

f. In the matter of reinduction of employees who do not
attain the. age of 58 years on or before 31st October, 1985 the
Government may exercise an .option not to reinduct then provided
the employees are paid the compensation. [617 A]
c
g. The government is free to revert persons promoted or
appointed ,to the posts held by persons who were retired on having
attained the age of 55 years by 28.2.1983 or between 28.2.83 and
23.8.84 to the posts which they held on February 28, 1983 or on
the dates previous to their promotion or appointment provided
that they need not be so reverted, if they would other.dee be
lJ
entitled to be promoted or appointed even if the other employees
had 'not been retired consequent on the lowering of the age of
superannuation. [617 CJ

h. The Government shall be free to create supernumerary
posts whenever they consider it necessary so to do. [617 E]
E
i· All payment of compensation to be made and completed
before December 31, 1985. If for any reason the Government finds
itself unable to a pay the entire amount at one time or within
the time' fixed, the Government will be at liberty to pay the
amount in not more than four instalments within the time
F
stipulated. Where the employees are awarded compensation, they
may apply to the concerned Income Tax Officer for relief under
Section 89 of the Income Tax Act read with Rule 21-A of the
Income Tax Rules. [617 F]

3a. The dismissal in limine of the earlier Writ Petition
G
cannot possibly bar the present Writ Petitions. Such a dismissal
may inhibit the courts' discretion but not its jurisdiction.
[615 D] '

3b. 'Even i f some affected parties have not been impleaded
their interests are identical with and have been sufficiently
H
and well represented. The relief claimed is of a general nature
and against the State and no particular relief is claimed against
any individual party. [615 F]
B.PRABHAKAR RAO v. STATE 579

3c. It is one thing to say that the Executive Government A
has no power to pass an -0rder extending the service of a Govern-
ment servant after he has retired from service;· it is altogether
a different thing to say that the State while making a law
raising the age of superannuation cannot make an unreasonable
classification to exclude .some Government Servants from the
benefit of the increased age of superannuation. The classifica- B
tion 111118t pass the dual test of beating reasonable and related to
the object of the legislation, besides not being arbitrary. It is
not open to the .state to make an arbitrary classification first
by making the date dependent on an uncertain event namely, the
date of pronouncement of the Judgment by the Supreme Court and
next by making a legislation excluding persona who had attained c
the age of 55 years before the legislation took effect though the
legislation itself was designed to undo the wrong already done to
the very Government employees •. (604 F-605 A]

3d. Whenever a law is made or whenever an action is taken,
it has to be with effect from a certain date but it does not D
necessarily follow that the choice of the date is· not open to
scrutiny at all. If the choice of the date is made burdensome to
some of those, the wrong done to whom is sought to be rectified
by the law,it would certainly· be.open to the court to examine the
choice of the date of find out whether it has resulted in any
discrimination. [605 CJ
E
D.S. llakara v. Union of Iildia, (1983] 2 s.c.R. 165 referred
to.

Bialmo Narain Mishra v. State of Ur.tar Ptadesh & Ors,
(1965] 1 s.c.a. 693, r;, Ragaraj & Ors. v. State of Andhra
Ptadesh A.I.R. 1985 S.C. 551 and State of Aaaam v. Pidma Baa F
Borah A.I;R. 1965 s.c. 473 distinguished.

4. (a) As the judgment was not pronounced for long, it
became imperative for the Government to implement their decision
of their own accord and so they passed ordinance No. 24 of 1984
and Act No. 3 of 1985 amending Act No. 23 of 1984 by substituting G
58 years for 55 years. While doing so, unfortunately again, those
that had suffered most by being compelled to retire between
28.2.83 and 23.8.84 were denied the benefit of the legislation by
cl. 3(1) of the ordinance and Sec. 4 (1) of Act No.3 of 1985. Now
if all affected employees hit by the reduction of the age of
superannuation formed a class and no sooner than the age of H
superannuation was reduced, it was realised that injustice had
580 SUPREME COURT REPORTS [1985] SUPP:2 s.c.R.

A been done and it was decided that steps should be taken to undo
what had been done, there was no reason to pick out a class of
persons who deserved the same treatment and exclude them from the
benefits of the beneflcient treatment by classifying them aa a
separate group merely because of the delay in taking the remedial
action already decided upon. [611 D-F]
B
4. (b) The action of the Government and the provisions of
the legislation were plainly arbitrary and discriminatory. The
division of Government employees into two cla8ses those who had
already attained the age of 55 on 28.2.83 on the one hand, and •
those who attained the age of 55 between 28.2.83 and 23.8.84 on
the other and denying the benefit of the higher age of snpernnua-
c tion to the former claas is as arbitrary, as the division of
Government employees entitled to pension in the past and in the
future into 1:1<0 classes, that is, those that had retired prior to
a specified date and those that retired or would retire after the
specified date, and confining the benefits of the new pension
rules to the latter claas only. [611 G-612 A]
])
5, Legislations to remedy wrongs ought not to exclude from
their purview a few of the wronged persons unless the situation
and the circumstances make the redressal of the wrong, in their
· case, either impossible or so detrimental to the public interest
that the mischief of the remedy outweighs the mischief sought too
be remedied. In the instant case, there is no such impossibility
E
or detriment to the public interest involved in reinducting into
service those who had retired as a consequence of the legislation
which was since though to be inequitable and sought to be
remedied. [612 B-C]

6. The burden of establishing the reasonableness of a
F
classification and its nexus with the object of the legislation
is on the State. [612 DJ

7, We are governed by the Constitution and Constitution
must take precedence over convenience and a judge may not turn a
bureaucrat. It may be possible that in a given set of circumstan-
G
ces, portentous administrative complexity may itself justify a
classification. But there must be sufficient evidence of that how
the circumstances will lead to chaos. Ups and aawns of career
bureaucrats do not by themselves justify such a classification.
It may however be of some consequence in the matter of granting
relief. For instance there would be really no point in reinduct-
H
ing an employee if he baa but a month or two to go to attain the
B.~RABHAKAR RAO v. STATE 581

age of 58 years to retire. Reinduction of such a person is not A
likely to be of ally use to the administration and may indeed be
detrimental to the public interest. It is found to be wasteful.
In such cases as well as in cases where they can't be reinducted
because they have already completed 58 years by now, they cannot
obviously be reinducted. The obvious course· is to compensate them
monetarily. [613 H-614 C) B
\
8. In' Industrial Law back and future wages are awarded on
. quite a large scale and there is no reason why the same principle
cannot be adopted. If as a rule private employers in such
situations are asked to pay back wages, there is .no impediment in
doing so in the case of those that are expected to be a oodel c
employer i.e. the Government, public corporations and lOcal
authorities. [614 DJ · ·

9. Where interns! aids are not· forthcoming, recourse to
external aids are not ruled out. This is now a well settled
principle of modem statutory .construction. The 'Enacting D
History' of an Act is relevant. It is the surrounding corpus of
public knowledge relative to its introduction into Parliament as
a Bill, and subsequent progress through and ultimate passing by,
Parliament. In particular it is the extrinsic material assumed to
be within the contemplation of Parliament when it passed the Act.
The history of how an enactment is understood forms part of the
contemporanea· exposition and may be held to throw light on the E
legislature's intention. The later · history may, under the
doctrine ·that an act is always speaking, indicate how the enact-
ment is regarded in the light of development from time to time.
Official statements by the Government department administering an
Act, or by any other authority concerned with the Act, may be
taken into account as persuasive authority on the meaning of its F
provision, [591 A~D)

10. Committee reports, Parliamentary debates, policy state-
ments and public utterances of official spokesman are of
relevance in statutory interpretation. ·But the comity, the
courtesy and respect that ought to prevail between the two prime G
organs of the State, the Legislature and the judiciary, require
the courts to make skilled evaluation of the extra textual
material placed before it and exclude the essentially unreliable.
Nevertheless the court, as master of its own procedure, retains a
residuary right to admit them where, in rare cases, the need to
carry out_ the legislator's intention appears to the court so to H
require. No rule prevents the court from inspecting in private
582 SUPREME COURT REPORTS [1985] SUPP;2 s.c.R.

A whatever materials it thinks fit to ensure that it is well
informed. Where these materials constitute publicly available
documents, the court takes judicial notice of them. The court has
an inherent power to inspect any material brought before it. This
is to ensble the court to determine whether the materials is
relevant to the point of construction in question and if so
l! whether it should be admitted. This has to be done with a degree.
of inhibition and. an amount of circumspection. [591 E:-G] /

11. The hl.atorf and the succession of events, the initial
'
lowering ··of the age of superannustion, the agitation consequent
upon it and the agreement that followed the agitation clearly ,
indicate that the object or Ordinance No. 23 of 1984 and Act No.
c 3 of 1985 was to undo the mischief or the harm that had been done
by the lowering of the age of superannuation from 58 years to 55
years and.to restore the previous position. It was not a case of
change of policy consequent on change of social circumstances. It
was a case of a change of policy to set right iamediately the
recent wrong perpetrated by a well intentioned but perhaps ill
thought measure. It was not at all a case of reversal of policy
D
because of changed circumstances. [591 H-592 B]

12. While it is a general rule of law that statutes are not 1
to operate retrospectively, they may so operate by express enact-
ment, by necessary implication from the language implied, or
where the . statute is explanatory or declaratory or where the
E
statute is passed for the purpose of protecting the public
against some evil or absue or where the statute engrafts itself
upon existing situations etc. But it would be incorrect to call a
statute ~retrospective', "because a part of the requisites for
its . action is drawn from a time antecedent to its passing",
[614 <Hi15 A]
F
11..v. st. Mary, Whitechapel [Inhabitants][l842J 12 o.B.
120, referred to.

13;unlike in the United Kingdom here in India we have a
written Constitution which confers justiciable fundamental rights
G and so the very refusal to make an Act retrospective or the non-
application of the Act with reference to a date or to an event
that took place before the enactment may, by itself, create an
impermissible classification justifying the striking down of the
non retroa:ctivity or non application clause, as offending the
fundamental rigl\t to equality before the law and the equal
H
protection of the laws. [615 B]
B.PRABHAKAR RAO v. STATE 583

[Per V. Bal.akrisboa Eradi, J. com:urring.J A

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 relevant considerations. If in
the exercise of such power the age of superannuation is enhanced
purely by way of implementation of a policy decision taken by the B
Government, such alteration can legally be brought about with
prospective effect from the date of the c011111eI1Cement of the
operation of the OrdiDa11ce, Act or Rule and no question of
violation of Article 14 or 16 of the Constitution will arise
merely because the benefit of the change is not extended to
employees who have already retired from service. [618 D-E) c

[Per v. lhalid, J. Concurrillg)

In matters relating to policy decisions the charge of
arbitrariness cannot be laid at the doors of the Government. The
Government have full powers to decide about the age of retirement o
considering the various data available before it •. (619 F)

Removing a word or adding words to a legislative enactment
is an exercise, Courts have been repeatedly warned against from
embarking upon. This guideline is one that has to be respected by
the Courts of Law. [620 F)
E
Normally this Court will be disinclined to entertain or to
hear petitions raising identical points again where on an earlier
occasion, the matters were heard and dismissed. Not that this
Court has no jurisdiction to entertain such matters, but that it
would normally exercise its discretion against it. [621 C]
F
In the instant case, the petitions involve a serious human
problE!lll. Employees of the State with limited resources, who have
been planning their future with a secure feeling that they could
work till the age of 58 years, have overnight, been robbed of
their tenure, their aspirations and future. They have become the
helpless victims of certain swift moves on the political chess G
board. These swift moves taken in a hurry without serious
application of mind have resulted in arbitrariness which has been
forcefully projected by the petitioners, This plea cannot be
light heartedly thrown overboard. Justice demands that the
petitioners should be saved of their predicament. This Court has
to share for the sorry state that has come to pass in the matter. H
l'he damage had been done and it can be repaired only be extending
584 SUPREME COURT REPORTS [1985j SUPP.2 s.c.R.

A this Court's powers to a sectl-oi:: of employees who de.serves
sympathy and fair deal. The case is more or less evenly be.lanced
between the parties. The benevolent jurisdiction of Article 142
(1) of. the Constitution has therefore to be invoked. [621 H-
622 B, 621 F]
B K. Nagaraja v. State of A.P. A.LR. 1985 S.C. 551, Bil!bm
Narain Hisbra v. State of u.p. mid others, [1965] l s.c.R. 693
aud D.S. Nak.sra v. Union (1983] 2 s.c.R. 165, referrP.d to.

ORIGINAL JURISDWTION : Writ Petition Nos. 5447-5546 of
1985 etc. etc.

c (Under Article 32 of the Constitution of India.)

K.K. Venugopal, Shanti Bhushan, Govindan Nair, F .s.
Nari.man, V.M. Tarkunde, Y.S. Chitale, P.P. Rao, S. Markandeya,
Mrs. s. Markandeya, D. Sudhakar Rao, K. Ramkumar, Ms. Lall ta
Kohli, B. Kanta Rao, Gururaja Rao, G. Vedantha Rao, K.K. Lahiri,
R. Kc.ranjawala, llardeep Singh Anand, Mrs. M. Karanjawala, A.T.M.
D Sampath, P.N. Ramalingam, B. Parthasarthi, H.S. Gururaja Rao,
Mrs. Sheil Sethi, Sudhendra Kulkarni, R. Venkataramani, A. Subba
Rao, and s. v. Deshpande for appearing Petitioners.

K· Subramanya Reddy, Advocate General of A.P., K.K. Venu'-
gopal, T.v.s.N. Chari, Naresh Mathur, K. Rajendra Choudhary, K.
E Shivraj Choudhary, A.s. Nambiar, G.N. Rao, Attar Singh, Mrs.
Gupta, B. Parthasarthi, S.Markandeya and Mrs. C. Markandeya for
Respondents.

The following Judgments were delivered
F CHINNAPPA REDDY, J. Tossed about by the Executive, the
Legislature and, we are sorry to say, by us (the Judiciary) too,
and therefore, totally bewildered, several civil servants
employees of public sector corporations and teachers working
under various local authorities are now before us wanting to know
where they stand and to what justice and relief they are
G entitled. In February, 1983, the Government of Andhra Pradesh
decided to reduce ·the age of superannuation of its employees from
58 to 55 years. The Government also issued directives to local
authorities and public corporations under its control to do lik.e-
wise. The age of superannuation was in fact 55 years to begin
with. But, earlier, in the year 1979, the Government of Andhra
H Pradesh had raised the age of superannuation to 58 years, presum-
ably, because of the increased average human longevity in India,
B.PRABHAKAR RAO v. STAIE [CHINNAPPA REDDY, J. J 585

the bet'ter health and medical facilities available, the improved A
standard of living, the usefulness in service of experienced
employees, the employment situation and potential and such other
relevant considerations. But in February 1983, the Government
decided to reduce the age of superannustion. ln order to give
effect to their policy of reversal, i.e. the policy of reducing
the age of superannustion from 58 to 55, the Government amended B
Rule 56 (a) of the Fundamental Rules and Rule 231 of the Hydera-
bad Civil Ser'vl.ces Rules by subsituting the figure '55' for the
figure .• 58' and by making a special provision ·that those who had
already attained the age of 55 years and were continuing in
service beyond that age on 8.2.1983 shall retire from service on
the afternoon of 28.2.1983. The notification8 by which these C
amendments were carried out were followed by another notification
dated 17.2.1983 deleting the proviso to Rule 2 of the Fundamental
Rules which protected a civil servant against a ·change of his
conditions of service to his detriment after he entered ser\'ice.
This was followed by the promulgation of the Andhra Pradesh
Ordinance No. 5 of 1983 regulating the recruitment and conditions D
of servlce of persons appointed to public service and posts in
connection with the affairs of the State of Andhra Pradesh and
the officers and servants of the High Court of Andhra Pradesh.
Clause 10 of the Ordinance provided that 'every Government
employee, not being a workman and not belonging to Last Grade
Service shall retire from service in the afternoon of the lsst
day of the month in which he attains the age of fifty five E
years.' In the case of Government employees belonging to the Last
Grade Service, it was provi-ded that they shall retire from
service on the afternoon of the last day of the month in which
they attain the age of sixty years. Clause 18 (1) provided that
the proviso to rule 2 of the Fundamental Rules shall be and shall
be deemed always to have been omitted. Now immediately after the F
notifications reducing the age of superannuation from 58 to 55
were issued, a large number of Government employees, employees of
public sector corporations and teachers 'working under various
local authorities .filed writ petitions in this Court as well as
in the High Court of Andhra Pradesh challenging the vires of the
provisions reducing the age of superannuation. After promulgation G
of the ordinanc.e, they were permitted to amend the petitions to
question the appropriate provisions of the ordinance too. The
petitions 'in this Court were heard at great length for several
days by Chandrachud; CJ, Pathak, J. and $. Mukharji, J. and judg-
ment was reserved on 27.7.83. The judgment was however pronounced
only on January 18, 1985. The impugned provisions were upheld and H
all the writ petitions were dismissed. In the meanwhile much
586 SUPREME COURT REPORTS [1985] SUPP;2 S.C.R.

A water had flown under the bridge. There were agitations and
agreements. There were twists and turns of political power. There
were amendments to the legislation, once more raising the age of
superannuation. Learned counsel informs us that the subsequent
events were brought to the notice of the court and that a
petition was also filed to amend the writ petitions and to raise
ll additional grounds. The Court however refused to take notice of
the subsequent events and proceeded to pronounce their judgment
with reference to a situation Which obtained several months ago
and Which situation stood considerably altered and had even
become unreal by the subsequent march of events. It was a great
pity. Much confusion and heart-burning might have been avoided,
as we shall presently see.
c
It is now necessary to mention in greater detail the events
that followed the reduction of the age of superannuation from 58
to 55 yea.rs. We referred' to agitations and agreements. It appears
that soon after the reduction of the age of superannuation, there
was a state-wide agitation by affected employees and on August 3,
1983, an agreement was arrived at between the Government of
D Andhra Pradesh and the Action Committee of Employees and Workers
in Andhra Pradesh.
r.
Clause (1) of the Agreement is important and may be usefully
extracted. It is as follows:
E "All provisions relating to Ordinance 5 of 1983,
except those relating to the age of superannuation,
will be deleted at an early date. Ptoviso to F.R.2
will be restored in respect of all matters, except the
· age of superannuation retrospectively. The provisions
of the Ordinance relating to the age of superannuation
F , will also be removed ·af.ter the judgment of the Supreme
Court, provided that such removal will not adversely
effect the right of Government as determined by the'
Supreme Court judgment to fix the age of superannua-
~ tion.

G If the Supreme Court upholds the power of the
Government to reduce the age of superannuation without
ref erring to the provisions in the ordinance and
, F.R.2, the entire ordinance will be scrapped and F.R.2
' will be restored."
H This clause of the Agreement shows that While the Government was
anxious to obtain a judgment of the Supreme Court securing their
B.PRABHAKAR RAD v. STATE [CHINNAPPA REDDY, J.] 587

right of 'fix the age of superannuation', they had also realised A
that grave wrong and injustice had been done to its employees by
their earlier action in reducing the age of superannuation. They
were anxious to undo the wrong and do justice to their employees,
while preserving . their own power to act in the future, if and
when necessary. That apparently was the reason why the Government
agreed to scrap the whole of . the ordinance if .the Supreme Court B
· upehld the power of the Government to reduce the age of superan-
nuation and further agreed to delete provision relating to the
age of superannuation in the ordinance, after the judgment of the
Supreme Court was prononnced. Clause (1) of the Agreement
expressly provides that proviso to F .R. 2 will be restored in
respect of all matters, except the age of superannuation C
retroapecti\'l!ly. It is then followed by the sentence The
provisions of the ordinance relating to the age of superannuation
will also be removed after the judgment of the Supreme Court.'
The clear implication appears to be that the provisions of the
ordinance relating to the age of superannuation will also be
removed in. the same manner as the proviso to Fundamental Rule 2 D
i.e. restrospectively. Otherwise the agreement would make no
sense. Those attaining the age of 55 years before judgment. was
pronounced would just have to walk out while those who did not
wonld stay on. Surely their fate was not to bang on a date.
., The Agreement, however, contained a further curious
stipulation that it was not to be placed before the Supreme Conrt E
either by the Government or by the employees. Perhaps the
stipulation was intended to prevent the Supreme Court from
abstaining from pronouncing upon the power of the Government to
reduce the age of superannuation. Quite obviously the Agreement
contamplated that the judgment of the Supreme Court wonld be
forthcoming very soon. But that was not to be.

There was considerable discussion at the Bar whether the
agreement contemplated and stipulated rest.oration of 58 years as
the age of Superannuation if the power of the Government to
reduce the age of superannuation was upheld by the Supreme Court.
The agreement appears to us to be clear and categoric and a G
reference to the pleadings demonstrates that th~ Government also
never doubted the emplooyees' interpretation of agreement. In
Para 2 (h) of the petition in Writ Petition No. 3420-26 of 1985,
the petitioners ~sserted,

"It is pertinent to point out that in the interregnum H
between the Writ Petition being admitted in this
588 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Hon'ble Court and the judgment being delivered a State
wide agitation took place in P.ndhra Pradesh by the Non
Gazetted employees in the Andhra Pradesh State Govern-
ment in June and July 1983. That agitation was for
the purpose of demanding inter alia that the retire-
ment age of the State Government employees be resto~ed
B to 58 years. Ultimately, on 3.8.1983, an agreement was
arrived at between the State Government and the Action
Committee of the Employees aud workers in Andhra
Pradesh by which it was agreed the State Govermnent
would restore the age of retirement to 58 years if the
Supreme Court upheld the State Govermnent 's Power to
reduce the age of retirement. The said agreement which
c was a detailed agreement entei'ed into between the
State A. P. on behalf of the whom the negotiations
were conducted by the then Chief Secretary Shri G. V.
Ramakrishna, I.A.s. and the Action Committee of the
employees and workers, which Action Connnittee
represented 39 service organisation."
D
To this the answer of the Govennnent in their counter was:

"I state with respect to paragraph 2 that this
paragraph deals with narration of facts regarding the
circumstance under which the age of retirement was ,-
en.~anced and the recommendations of the Pay Revision
E Commission etco Hence they require no comnents. It is
respectfully submitted that all these relevant facts
have been taken into consideration by the Supreme
Court while rendering the judgment upholding G.O.Ms.
No. 36 dt. 8.2.1983. In its judgment since reported in
[1985] 1 s.c.c. page : 524. Hence there is no
F necessity to traverse those facts once again herein."

and

"I further state that it is ,.not proper for the
petitioner to have filed the agreement reached between
G the employees Union and the .State of Andhra Pradesh
as Annexure to the Writ Petition. Under the last
clause of the Agreement reached between the Employees
Union and the State of Andhra Pradesh that the
agreement shall not be placed before the Supreme Court
by the Government or the members of the employees
H associations. ContrQry to the provisions of the
B.PRABHAKAR FAD v. STATE [CHINNAPPA REDDY, J.] 589

agreement the petitioners have chosen to file this A
agreement in support of their case and pleaded for
enhancement of the age of retirement."

The Government 1s objection was not to the interpretation placed
upon the agreement by the parties but to its being brought to the
notice of the Court. B

The .<.ndhra Pradesh Legislature enacted the Andhra Pradesh
Publlk Employment (Regulation of Age of Superannuation) Act No.
23 of 1984 making it applicable to all persons appointed to
public services and posts in connection with the affairs of the
si:ate, all officers and other employees working in any local c
authority, whose salaries and allowances were paid out of the
Consolidated Fund of the State, all persons appointed to the
Secretariat staff of the House of the State Legislature: and all
officers or employees whose conditions of service were regulated
by rules framed under the poviso to Art. 309 of the Constitution
immediately before the commencement of this Act. Sub-section (3) D
of s. l stated 'Clause (i) of s. 7 shall be deemed to have come
into force on the April 29, 1983. Sections 3 (1) and (2) were as
follows:

"3 (1) Every Government employee, not being a workman
and not belonging to Last Grade Service shall retire E
from service on the afternoon ·of the last day of the
month in which he attains the age of fifty five years.

(2) Every Government employee not being a workman but
belonging to the Last Grade Service shall retire from
service on the afternoon of the last day of the month
in which he attaina the age of sixty years." F

Explanation II(b) to s. 3 was to the following affect:

"(b) a Government employee who attained the age of
superannuation but who was allowed to continue to hold
the post beyond that date, but virtue of a stay order G
of a Court, shall be de~ed to have ceased to hold the
post and relieved of his charge from the date of the
judgment ·dismissing his petition, irrespective of
whether the charge of the post was handed over or not
as prescribed in any rule or orde~ of the Government
for the time being in force."
H
'
590 SUPREME COURT REPORTS [1985] SUPP.2 S.C•R.

A On August 23, 1984, the Andhra Pradesh Public Fmployment
(Regulation of Age of Superannuation] Act No.. 23 of 1984 was
amended by the prOIDlllgation of Andhra Pradesh Ordinance No. 7.4 of
1984 providing that in s. 3(1) of the Act and in Explanation II
(a), the words fifty eight years' shall be substituted for the
words fifty five years. This was obviously done to give effect
B to the agreement of August 3, 1983 and to fulfil the promise held
out therein that the age of Superannuation would be restored to
58 years. Clause 3(1) of the Ordinance is the much disputed
provision and it has therefore, to be extracted in full. It .is as
follows:

· "3(1) 'The provisions of this Ordinance shall not apply
C to persons ·who attained the age of· superannuation in
pursuance of the notifications issued in G.Q.Ms. No.
36, Finance and Planning (Finance Wing-F.R.I.) Depart-
ment, dated the 8th February, 1983, or.in Pursuance of
the provisions of the Andhra Pradesh Public Employment
. (Regulation of Age of Superannuation) Act, 1984, as in
D force prior to the connnencement of this Ordinance."

'
Andhra Pradesh Ordinance Na. 24 of 1984 was replaced by Act No.3
of 1985. By Sec. 2 of the Amending Act, the words 'fifty five
years' were substituted by the words 'fifty eight years' in Sec.
3(1) and Explanation 11 (a) of the Principal Act. Section 4 of
the Amending Act which is more or less on the same lines as
E Clause 3(1) of the Ordinance says:

"4(1) The provisions of section. 2 of this Act shall
not apply to persons who attained the age of
superannuation in pursuance of the notifications
issued in G.O.~.s. No. 36 Finance and Planning (Finance
F Wing F.R.I.) Department, dated the 8th February, 1983,
or in pursuance of the provisions of ·the Anclhra
Pradesh Public Employment (Regulation of Age of
Superannuation) Act, 1984, as in force prior to the
connnencement of this Act."

G No eXplanatory statement accompanying Ordinance No. 23 of
1984. was brought to our notice. The Statement of Objects and
Reasons of Act No' 3 of 1985 was however placed before us but it
is not helpful to ascertain the reasons which led the legislature
to restore the age of superannustion to 58 years. If merely
states that "the Government considered it necessary to raise the
H age of superannuation from 55 to 58 years". But we are not
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 591

altogether helpless. Where internal aids are not forthcoming, we A
can always have recourse to external aids to discover the·object
of the legislation. External aids are not ruled out. This is now
a well settled principle of. modern statutory construction. Thus
'Enacting History' is relevant: "The enacting history of an Act
is the· surrounding corpus of public knowledge· relative to its
introduction into Parliament as a Bill, and subsequent progress B
through, and ultimate passing by, Parliament. In particular it is
the extrinsic material assumed to be within the contemplation of
Parliament when it passed the Act." Again "In the period
immediately. following its· enactme,nt,· the history of how an
enactment is understood forms part of the contelnporanea
expositio, and may be held to throw light on the legislative C
intention. The later history may, under the doctrine that an Act
is always speaking, indicate how the enactment is regarded in the
light of development from time to time." "Official statements by
the government department administering an Act, or by any other
authority concerned with the Act, may be taken into account as
persuasive authority on the meaning of its provisions." Justice D
may be blind but it is not to be deaf. Judges are not to sit in
aound proof.roans.

Conmittee reports, ParliamentarY debates, Policy statements
and public utterances of official spokesmen are of relevance in
staturory interpretation. But 'the comity, the courtesy arid E
respect that ought to prevail .between the two prime organs of the
State, the legislature and the judiciary', require the courts to
make skilled eval\iation of the extra textiial matertal placed
before it and exclude the essentially unreliable. "Nevertheless
the court, as master of ·its own procedure, retains a resid~ry
right to admit them where, in rare cases, the need ~o carry out
the legislator's intention appears to the court so to require." F
"No rule prevents. the court frOm inspecting in private whatever
materials it thinks fit to ensure that i t is well informed,
whether in relation to the case· before it or generally. Where
these materials constitute publicly available enacting history,
the court takes judicial notice of them." "The .cou.rt has an
inherent power to inspect any material broUght before it." G
E'rancis Bermien : Statutory Interpretation. This is to enable the
court to determine whether the material is relevant to the point
of construction in question, and if so whether it should be
admitted. 1his has to be done with a degree of inhibition and an
amount of circumspection.

Here, the facts speak for themselves. Res lpsa Loquitur.. The ~ H
history and the succession of events, the_ initial lowering of the
592 SUPREME COURT REPORTS [1985] SUPP:2 s.c.R.

A age of the superannuation, the agitation consequent upon it and
the agreement that followed the agitation clearly indicate that
the object of Ordinance No. 23 of 1984 and Act No. 3 of 1985 was
to ·undo the mischief or the harm . that had been done by the
lowering of the age of superannuation from 58 years to 55 years
and to restore the previous position. Quite obviously, it was not
B a case of change of social circumstances. It was a case of a
change of policy to set right immediately a ·recent wrong
perpetrated by a well intentioned but perhaps ill-thought
measure. It was not at all a case of reversal of policy because
of changed circumstances. A reference to the note file which was )
made available to us by the learned Advocate General of Andhra
Ptadesh at, our instance shows that it was after a careful
C consideration of the representations made by the various services
associations in regard to the restroation of the age of
superannuation to 58 years that the Government resolved to
restore the age of superannuation to 58' years, In the counter,
the Government appeared to take the stand that the Governments
of the States of Karnataka and Rajasthan had raised the age of
superannuation to 58 years and the Government of Andhra ptadesh
D wanted to fall in line. It waa a wholly inaccurate statement.
There is no reference in the note file or elsewhere, except for
the first time in the counter, to the circumstance that two other
State Governments had raised the age of superannuation and the
Andhra. Ptadesh Government had a accepted their wisdom. The
statement in the counter tm1St be ignored. A reference to the
E pleadings is revealing, l.£ not, startling. In Writ Petition Nos.
3420-3426/85 in paragraph 5, the petitioner averred:

"In fact Shri N.T. Rama Rao, Chief Minister himself admitted
that he was misguided and misled by the then Finance Minister and
the Chief. Secretary when his Government took the decision to
F reduce the age of retirement. His press conference dated
25.9.1984 was reported in the :Deccan Chronicle as follows:

"Chief Minister N.T. Rama Rao today announced that his
government would retain the age of superannuation of
the Government employees at 58 years as decided by the
G short-lived Bhaakara Rao Ministry. ~-

Briefing newsmen after the Cabinet ..,eting this
· aftenoon, Mr. Rama Rao said the Cabinet had reviewed
the decision of.the previoua Government to raise the
age of superannuation from 55 years to 58 with effect ·
H from August 23, 1984.
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 593

The Chief Minister charged that Mr. N. Bhas'kara Rao, A
the then Finance Minister and the then Chief Secretary
Mr. B.il. Raman had misled him when his Government
decided to reduce the age of superannuation f rO!ll 58 to
ss. Both have not raised any objection to the
proposal. Despute knowing well that the 'unp6pular'
move would be detrimental to the Government, they had B
allowed it go with the evil intention of discrediting
him, he alleged.

Mr~ Rama Rao said it waa not his intention to hurt the
interests of any section of the people atid the
Govermreqt eillployees constituting a sizeable mnnber c
who had voted his party to power. "Hmtever it is not
possible for the Govermrent t~ concede the request of
· those who had already retired", he observed."

The said report has never been denied ot resiled by the
Chief Minister. D

In answer, the averment waa not· d.enied. The deponent of the
counter affidavit stated:

"I state with respect to paragraph: 5 that it is not
open to the petitioner to rely on paper cuttings in
support of their contention unless otherwise they are E
proved apart from the fact that the statement in paper
cuttings are in no way advance the case of the
petitioner."

This can hardly be considered to be a denial of what waa said in
paragraph 5 of the petition. We must therefore, proceed on the F
basis that the Chief Minister (Shri N.T. Rama Rao) did allege
that when the Goverriment took the decision to reduce the age of
superannuation, he was, 'Misguided and misled' by his Finance
Minister and the Chief Secretary. It may be a sorry confession to
make on the part of a Chief Minister, especially when it was a
momentous decision involving the lives and future of thousands ot G
employees. One wonders how a decision concerning the lives and
the future of civil servants, who all their lives in the past,·
had loyally served the Government, could have been taken in·· such
a hasty and haphazard fashion. One would expect such a decision
to be taken after a full investigation into the nultitudinous
pros and cons, after deep collection of all pertinent data and H
after deep consideration of every aspect of the question. But
594 SUPREME COURT REPORTS [1985] SUPP.2 .s.c.R.

A there we have a statement attributed to the Chief Minister that
he was 'misled and misguided' by the Finance Minister and his
Chief Secretary. Sorry confession, it may be, but a frank and
courageous admission it was, exposing him to criticism. It does
require a sturdy spirit to own a mistake.

B During the pendency of the Writ Petitions in this Court,
,several. employees of local authorities etc. obtained orders of
stay from the High Court and were continuing in service on the
dates when the judgment of the Supreme Court was pronounced.
After the pronouncement of the judgment of the Supreme Court, the
authorities that be have sought to give effect to the provisions
of the Act and_ the Ordinance by seeking to throw them out on the
c ground that they had completed 55 years of age during the
interregnum between February 28, 1983 and August 23, 1984 some
others who had completed 55 years between February 28, 1983 and
August 23, 1984 but who had not completed 58 years sought
re-entry notwithstanding the raising of the age of superanillllltion
from 55 years ro 58 years. Their re-entry was sought to be
D reaisted on the basis of Cl.3(1) of the Ordinance and S.4(1) of
the Amending Act. Those employees who were sought to be removed
tI-Om seI-Vice · or who were denied re-entry into service on the
ground that they had attained the age of 55 years between
February 28, 1983 and August 23, 1984, have once again invoked
the jurisdiction of this Court and sought appropriate writs from
this Court to continue or to reinstate and continue them in
E servic~ until they attain the age of 58 years. They are the peti-
tioners in Writ Petitions Nos. 3203, 3413-3419, 3420-3426 etc.
etc. of 1985. They sought interim orders from this _Court.

On 23.4.85 interim directions to the following effect were
issued by Desai and Khalid, JJ:
F
" (1) From amongst those Government servants and
I.
servants of Local and other authorities governed by
the decision of the Government of A.P. on reduction of
age of retirement from service from 58 years to 55
·years, who continued in service or continued to hold
G the post on April 1, 1985 for any reason including the
grant of interim relief by Courts and who are removed
from that post after that data shall be reinducted and
'put back in the post from where he/she was removed •
. ,..
(2) Those Government Servants and others enlimerated
B in No. (1) here Aud :who are today in service and are
·likely to~ be removed on aceount of the reduc.tion in
B.PRABHAKAR RAO. v. STATE [CHINNAPPA REDDY, J.] 595

age of superannuation notwithstanding restoration of A
higher age, whatever be the case, shall continue in
service till further orders.

(3) Those Government servants and others enumerated
in No.(l) here who were in service prior to April 1,
1985 and who are removed from service on account of B
reduction in age, shall be reinducted in service, if
the posts from each one was removed is s·till vacant or
someone is holding a temporary charge.

(4) Those directions shall be carried out and given
efffect to within one week from today. C

(5) These directions will also cover those ·Government
servants who are similarly situated but have not filed
the SLPs and WPs.

(6) Government servants referred to in No,(l) will D
also comprehend members of State Judicial .ser-irice."

The matter was mentioned again on two occasions for clarification
and the following orders were then made by Tulzapurkar, Desai and
Sen, JJ. The order made on May 6, 1985 $aid: · .
E
''We do not see any ambiguity in Cl.3 of the order
dated 23rd April, 1985. It is directed that Cl.3 or
the order dated 23rd April, 1985 should be implemented
to the extent that promotions made to the posts which
are held by the officers will be made under Rule 37 by
temporary appointments and the Chief Secretary and
-0ther two senior Secretaries will ~xamine the question F
as to how many such vacancies could be filed and it_ is
further.directed that from out of the petitioners one
who has the longest service will be selected. The
order will be carried out within two weeks from today.
This is without prejudice to the vacancy clause. All
these appointments will be subject to ·the result of G
these petitions."

The order made on May 7, 1985 said:

"We do not see any ambiguity in clause 3 or the Order
dated 23rd April, 1985. It is directed that clause 3
of the order dated 23rd April, 1985 should be imple- K
596 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A employees were moved are still vacant or where such
post is held temporarily by others on promotion under
Rule 37 of the A.P. States Subordinate service Rules.
The Chief Secretary and two other Senior Secretaries
will examine the question as to how many such posts
could be filed and it is further directed that in
ll cases where more than one person has retired from a
post, the person having the longest service should be
selected. The Order will be carried out within two
weeks from today. All these appointments will be-
subject to the result of the Petitions."

These interim orders were made under the misapprehension that all
c so-called promotions would only be made under Rule 37 whereas
whenever a promotion was made from a lower service to a higher
service, it was not called' a promotion but was styled as an
appointment and was made under Rule 10. Since Rule 10 was not
· mentioned . in the orders, persons who had been 'promoted' and
appointed under Rule 10 claimed that they could not be displaced.
D Some others though promoted undet Rule 37 claimed that they had
in fact .been promoted regularly after a proper selection by the
Departmental Promotion committee but that according to the
practice prevailing in Andhra Pradesh, their orders of promotion
mentioried that they were promoted temporarily, though in fact
they had been promoted regularly. Many such persons, claiming to
have been appointed under Rule 10 or claiming to have been
E promoted regularly notwithstanding the mention of Rule 37, filed
Writ Petition Nos. 5447-5546 of 1985 etc. etc. questioning the
orders of reversion with which they were faced consequent on· the
interim :directions given by Desai and Khalid,JJ. During the
vacation, R.ll. Misra,J. stayed the .orders or reversion passed by
the Government in order to reinduct the retired employees. The
F interim orders granted by R.B. Misra,J. appeared to conflict with
the earlier interim orders granted by this Court. When all the
interim applications came before us a few days back, we directed
that all the Writ petitions may be placed before us for final
disposal and that is how the matters are now before, us.

G Before referring to the submissions of the parties on the
principal question of discrimination and arbitrariness, i t is
necessary to ascertain the exact factual situation in regard to
certain other matters, besides those to which we have already
· referred. First in regard to the question whether the vacancies
arising const;?quent on the application of the reduced age of
H superannuation have been filled and if filled, whether they have
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.J 597

been filled on a regular or temporary basis? ln Writ Petition No.. A
3170/85, a Deputy Secretary to the Government of Andhra Pradesh,
speaking for the government of Andhra Pradesh swore to a
counter-affidavit in May 1985 in which he stated that:

"I state with respect to paragraph 8, that it .is
not correct to state that only few vacancies have been B
filled on temporary basis on the specific condition of
review and revision on the basis of outcome of the
judgment in the Writ Petitions filed by the employees
due to the retirement at the age of· 55 years pending
in this Hon 'ble Court. It is submitted that it is
wholly untrue to say that few vacancies have been c
filled up. Consequent on the reduction in the age of
superannuation the Government took every step to see
that most of the vacancies have been filled up in
accordance with rules on regular basis. It is only in
few cases, temporary promotions have been . effected
pending writ petitions. It is submitted that Ann.-I to D
this counter affidavit gives particulars regarding the
vacancies that arose due to the reduction in the age
of retirement· on 28.2.1983 and the vacancies fillec) up
and the vacancies existing. There are very few vacan-
des in the lower echelons. I also submit that the
existing few vacancies are due to administrative E
dealy, or vacancies that arose latter after originally
filling the vacancies."

In Writ Petition Nos. 5447-5546/85, there was a complete volte
face and the very same Deputy Secretary speaking again for the
Government of Andhra Pradest said:
F
"In so far as the first point is concerned in none
of the cases there were ·regular promotions. All the
promotions were officiating/Temporary/adhoc which
would be clear from orders of promotion, some of which
have been produced by the petitioners themselves. The
promotions were either subject to the result of the G
writ petitions then pending in this Honourable court
challenging reducti.on of retirement age from 58 to 55
years, Or some other proceedings relating to inter-se
seniority pending either in this Honourable Court or.
in the High Court ·or in the Administrative Tribunsl,
Or because of the pendency of finslisation of
seniority.lists and consequent review of promotions H
under the State Reorganisation Act. Further the Writ
598 SUPRF.ME COURT REPORTS [1985] SUPP.2 s.c.R.

A Petitions questioning the reduction of age of retire-
ment from 58 to 55 in G.o.Ms.No. 36, dated 8.2.83 were
heard and judgment was reserved on 27th July, 1983.
Since the judgment was reserved, the judgment was
expected at any movement. Hence the Government were
...
making only officiating/temporary promotions under
B
rule 37. Under the circumstances it was not possible
to make regular appointments/promotions. Therefore,
the petitioners were rightly reverted in accordance
with the directions of the Honourable Court dated
6.5.1985 and 7.5.85. There was no question of either
giving them any notice or hearing before the orders of
the reversion are passed, as in terms of Rule 37 {dd),
c they could be reverted without any notice or hearing."

"Persons holding the posts under Rule 10 nave no right
to the posts and their appointments/promotions were
purely temporary/adhoc."
I)
"Hence, I state that the petitioners continue to be
adhoc promotees under Rule 37 and not regular
employees as claimed by them. "

and:

"Admittedly, the petitioners were promoted under Rule
E
37 consequent to the vacancies which arose due to the
retirement of several persons at the age of 55 years.
The Government never intended to appoint them on
regular basis pending writs and judgment before the
Supreme Court. In case the promotions were effected
regularly legal complications will set in the event of
F
the judgment of the Supreme Court going against the
State Government deliberately made Rule 37 promotions
so that in the event of the judgment going adversely
against the State Government, there may not be any
difficulty in reverting Rule 37 promotees and
reinducting the employees affecting by G.O.Ms.No. 36
G dated 8.2.83. Fortunately, the judgment of the
Supreme Court comes in favuur of the State
Government. "

It is amazing that the same Deputy Secretary to the Government,
representing the same Government, should have sworn to two such
H contradictory affidavits. It reveals a total sense of
irresponsibility and an utter disregard for veracity. It shows
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 599

that the deponent had signed the affidavits without even reading A'
them or that he signed them to suit the defence to the particular
writ petition without any regard for truth. In either case, it is
reprehensible · and to~ally unworthy of the spokesman of a
Government and most unflattering to the Government on whose
behalf he spoke. We would have contemplated severe action against
the depondent, had we not the feeling that the responsibility for B
his statements lies with undisclosed higher echelons and we.need
not make a scapegoat of him. In fact, in a case like this
involving the entire body of Government servants in Andhra
Pradesh, we would havP. expected the Chief Secretary or a
Principal Secretary to file the counter. But they have chosen to
keep themselves back. c
However we have a duty to discover the truth. We think that
the truth is what is stated in the counter-affidavit in Writ
Petition Nos. 5447-5546/85. The counter-affidavit itself gives
good reasons why the promotions appointments were made on a
temporary basis and the reasons are acceptable. The statements in D
the counter-affidavit in writ Petition Nos. 5447-5546/85. are
supported by the findings of the Committee which was appointed by
the government under the interim orders of this Court. The
Conmittee consisted of the Chief Secretary and two senior
Secretaries and it was asked to examine the question of the
availability of posts for reinduction of retired employees. The E
findings of the Committee were mentioned in the counter--aff idavit
in Writ Petiition Nos. 5447-5546/85 and this is what was said:

"The Committee constituted under G.O.Ms. No. 205,
dt.9.5.1985 has completed its task of determing 'the
number of vacancies for which retired employees can be
reinducted as per the directions of this Honourable F
Court. Here below is given an abstract of the position
as emerged. Total number of persons retired from
28.2.83 to 23.8.1984 due .to reduction of age of
retirement from 58 to 55 is 15, 529 of these people
8·:928 are eligible for reinduction as they are below
58 years. The Committee found that 2, 770 posts are G
vacant and that 1751 persons have to be reverted as
they were holding the posts on temporary promotions
under Rule 37. Thus, the total number of vacancies to
which retired persons could be reinducted as 4,521."

It was said that it was a practice in the State of Andhra
Pradesh to make even regular appointments and regular promotions H
600 SUPREME COURT REPORTS [1985] SUPP;2 s.c.R.

A under Rule 10 and Rule 37 only and therefore, the mere fact that
Rtile 10 or Rule 37 was mentioned in an order of appointment or
promotion would not necessarily make the appointment or promotion
temporary. Such appointments or promotions, if made after going
through the regular process or selection were to be considered as
regular and not temporary notwithstanding the mention of Rtile 10
JI or Rtile 37. But' here as pointed out in the counter, there was a
special situation immediately after the age of superannuation was
reduced, writ petitions were filed in the Supreme Court and in
the High Court and there was considerable agitation by the
employees. The entire situation was fluid as it were and there
was good reason for the Government to make the appointments and
promotions on a purely temporary basis, and that was what they
C did. That the Departmental Committees recommended the temporary
appointments and promotions made on the recommendation of the
Departmental Ptomotion Committee. This is clear from the counter-
affidavit in Writ Petition on Nos. 5447-5546/85 where it is
stated as follows in paragraph IV-B:

"In certain cases, the promotions were given on the
D basis of the recommendations of the Departmental
Ptomotion Committee but that does not mean that their
promotions were regular. The Departmental Ptomotion
Committee also makes recommendations for temporary
appointments/promotions otherwise it will offend Art.
14 and 16 in case all eligible candidates are not
E considered for promotion even though the promotions is
either officiating/temporary. Therefore, the mere
seli!ction by the Departmental Ptomotion Committe.e does
not make their promotions regular. Promotion or post-
ing after completion of training daes not make the
promotions regular. The promotion orders of the
F petitioners promoted under Rule 37 clearly show that
their promotions were purely temporary."

it is in this setting and background of facts that we are
required to consider the submissions made to us. The submission
ma~e by Sarvasri K.K. Venugopal, v. M. Tarkunde and F.s. Nariman
G who appeared for the employees who attained the age of 55 years
between 28.2.83 and 23.8.84, was that the classification of these
persons as a separate group for the purpose of excluding them
.from , the benefit of the redressal of the wrong done to the
employees and the relief given to them by the amending Ordinance
and the Act, was an unreasonable classification having no nexus
H whatever with the object of the legislation. They urged that
every person who was in Government employment on 28.2.83 was hit
B.JRABHAKAR RAO v. STATE (CHINNAPPA REDDY, J. J 601

by the reduction of the age of superannuation from 58 to 55 years A
and when it was realised that a grievous wrong had been done
which it was necessary to set right by reversing the policy and
such a policy decision was in fact soon taken there was no reason
to postpone effect being given to the reversal of policy to an
uncertain date, namely the pronouncement of the judgment by the
Supreme Court and thereby to exclude from the benefits of the B
change of policy that group of peraons who had the misfortune of
attaining the age of 55 years between the two dates. The learned
counsel pointed out that, the decision to reverse the policy
having been taken, the uncertain date of pronouncement of judg-
ment was an irrelevancy in fixing the date from which to give
effect to the policy. In the event, the goveritment also did not C
await the pronouncement of the judgment but came forward first
with the Ordinance and then with the Act. Therefore the learned
counsel urged, by merely giving them the appellation 'retirees'
as the Government had done in this case, the group .of persons who
had attained the age of 55 years before the delayed date of
giving effect to the reversal of policy could not be discrimi- D
nated against. The question according to the learned counsel, was
not one of retrospectivity at all, but one whether when making a
legislation to right a wrong or remedy a mischief a group of
persons who had also been wronged and suffered the mischief could
be excluded by the mere mechanics of delayed legislation. Shri
Venugopal further submitted that several persons who were E
continuing in service by virtue of orders of stay obtained from
the High Court, were also sought to be sent away·by the govern-
ment on the ground that had they not obtained the orders of stay,
they would have retired from service on having attained the age
of 55 years. This he urged was patently unreasonable. On the
other hand it was urged by the learned Advocate General of Andhra
Ptadesh, who appeared for the Government of Andhra Pradesh, Shri F
Shanti Bhushan, Shri Govindan Nair, Shri Pilrmeshw,.r Rao, Shri
H.S. Guru Raja Rao and Shri Kanta Rao, learned counsel who
appeared for the officers ~o were promoted in the vacancies
created by the retirement of those who had attained the age of 55
years, that there was no discrimination whatever and that what
the Government had done was merely to classify those employees G
who had ceased to be in service or who should have ceased to be
in service and. refuse to apply the ·increased age of super-
annuation to them. It was said that having gone out of service,
there was no question of their being eligible to the increased
age of superjlnnuation and therefore, the classification was
perfectly reasonable.• It was also urged that appointments and
prODK>tions were made subsequent to the reduction of the age of H
602 SUPKEME COURT REPORTS [1985] SUPP.2 s.c.R.

A superannuation on regular basis and those appointments and
promotions could not be disturbed. We were told that interference-
by us at this stage would lead to administrat.ive disorder,
disaster and chaos. We would like to mention here that the
learned Advocate General of Andhra Pradesh as well as the other
learned counsel who appeared on either side presented their
li respective points of view very fairly and with moderation. The
task of the learned Advocate General was particularly difficult
as he stood between the devil and the deep sea as it were.

A situation such as the one before us had. never presented
itself to the court previously. Make this case a precedent for
justice say one side; let this not be the first say the other. We
c have had cases where the age of superannuation had been raised
from 55 to 58 years; we have had cases where having earlier
raised the age of superannuation from 55 to 58 years, there was
later a change of policy and the age of superannuation was once
again reduced to 55 years. But this is the first occasion-neither
our researches nor those of the learned counsel have been able to
D trace another case of this kind - where the age of superannuation
was first raised from 55 to 58 years, there was then a change of
policy a few years later reducing the age of superannuation from
58 to 55 years and finally there was again, within a few months,
a reversion to the higher age of superannuation of 58 years.

The cases of Bislmu Narain Mishra v. State of Uttar Pradesh &
E Ors. [1965] 1 s.c.R. 693 and K. Nagaraj & Ors. v. State of
Audbra Pradesh AIR 1985 s.c. 551, belong to the second category
of cases. In Bislmu Narain Hisbra's case, by a notification dated
November 27, 1957 the Government of Uttar Pradesh raised the age
of superannuation from 55 to 58 years. On may 25, 1961 the
Government 'reduced the age once against to 55 years, and further
F laid down that those who had continued beyond the age of 55 years
owing to the earlier notification would be deemed to have been
retained in service beyond the age of superannuation and would be
compulsorily retired on December 31, 1961. The appellant who
attained the age of 55 years on December 11, 1960 and was
continued in service was one of those who was retired on December
G 31, 1961. He questioned the change in the rule of retirement on
the ground that it was hit by Art.14 inasmuch as it resulted in
inequality between public servants in the matter of retirement.
The argument was that when all those who had passed 55 years were
asked to retire on December 31, 1960 some had just.completed 55,
some were 56, some were 57 and so on and, the~efore, there was
H discrimination. Dealing with this;question, Wanchoo, J, speaking
for the Court observed:
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.j 603

A
"The last argument that has been urged is that the new
rule is discriminatory as different public servants
have in effect been retired at different ages. We see
no force in this contention either, retirement namely
December 31, 1961 in the case of all public servants
and fixes.the age of retirement at 55 years. There is B
no discrimination in the rwl.e itself. It is however
urged that the second notification by which all public
servants above the age of 55 years were required to
retire. on December 31, ~961 except those few who
completed the age of 58 years between May 25, 1961 and
December 31, 1961 shows that varioU.s public servants c
were retired at various ages ranging from 55 years and
one day to up· to 58 years. That certainly is the
effect of the second order. But it is remarkable that
the order also fixed the same date of retirement
namely December 31, 1961 in the ,case of all public
se.rvants who had completed the age of 55 years but ·not D
the age of 58 years .before December 31, 1961. In this
respeC.t also, therefore, there was no .discrimination
and all public servants who had completed the age of
55 years which was being introduced as the age of
superannuation by the new rule by· way of reduction
Were ordered to retire on the same date, namely E
December 31, 1961. The result of this seems to be that
the affected public servants retired at different
ages. Hut this was not because they retired at
different ages but because their services were
retained for different periods after the fifty-five~
Now it cannot be urged that if Government decides to
retain the s~rvices of some public servants after the F
age of retirement it must retain every public servant
for the same length of time. The retention of public
servants after the period of retirement depends upon
their efficiency and the exigencies of publiC service,
and in the present case the difference in the period
of retention has cirisen on account of exigencies of G
public service. We are, therefore, of opinion that the
second notification of May 25, 1961 on which reliance
is placed to prove discrimination is really not dis-
criminatory, for it has ti-eated all public servants
alike and fixed December 31, 1961 as the date of
retirement for those who had completed 55 years but
not 58 years up to December 31, 1961. The challenge H
therefore, to the two notifications on the basis of
Art.14 must fail."
604 SUPREME COURT REPORTS [1985] SUPP.2 s.c.~.

A The situation which was considered in Bisbou Narain's case
was exactly the identical situation which obtained on February
28, 1983 in the present·case and precisely the situation which
was considered by the judgment pronounced on January 18, 1985 and
which is reported in A.I.R. 1985 s.c. 551 as K. Nagaraj v.
State of Aodhra Pradesh, the very judgment the delay in
B pronouncing which is said to have led to this confusion. Neither
in Bisbou Narain Mishra 's case nor in Nagaraja 's case bad the
court occasion to consider the further step that had been taken
in the present case, namely, once again raising the age of super-
annuation to 58 years and the exclusion of a class of persons
from its benefit. Both the case are therefore plainly
distinguishable and are of no assistance to us in solving the
C problem bef?re us.

Another case on which reliance was palced by the learned
counsel appearing for the respondents in Writ Petition Nos.
3203, 3413-3419, 3420-3426 etc.etc. of 1985 was State of As8811l V•
Padma Ram Borah AIR 1965 s.c. 473. In that case a Government
D servant who ·was due to retire from service on and from January 1,
1961, was suspended from service on December 22, 1960, pending a
departmental inquiry. His services were extended till March 31,
1961. The departmental inquiry was, however, not concluded even
by then. So on May 9, 1961, the Government passed an order
extending his services for a period of 3 months with effect from
April 1, 1961. This Gourt held that the government bad no juris-.
E diction to exteljd the services of a Government servant, after he
bad retired from service, merely for the purpose of continuing
the departmental inquiry. Rule 56 of the Departmental rules did
not authorise such a course. It is difficult to see how this case
can possibly assist the respondents in Writ Petitions Nos. 3203,
3413-3419, 3420-3426 etc. etc. of 1985. It is one thing to say
F that the Executive Government bas no power to pass an order
extending the service of a Government servant after he bas
retired from service; it is altogether a different thing to say
that the State while making a law raising the age of super-
annuation cannot make an unreasonable classification to exclude
some Government Servants from the benefit of the increased age of
G superannuation. The classification must pass the dual test of·
being reasonable and related to the object of the legislation,
besides not being arbitrary. It is not open to the State to make
an arbitrary classification first by making the date dependent on
an uncertain event namely, the date of pronouncement of judgment
by the Supreme Court and next by making a legislation excluding

'
H persons who had attained the age of 55 years before the legis-
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.) 605

lation took effect though 'the legislation itself was desinged to A
undo the wrong already done to the very Government employees•
Some other cases were also cited before us to illustrate the
point that it was open to the Legislature and the Executive to
choose a 'cut-off' date for bringing into force laws such as Land
Reform Laws etc. It is true that whenever a law is made or when-
ever an action is taken, it has to be with effect from a certain B
date but it does not necssarily follow that the choice O·f the
date of not open to scrutiny at all. If the choice of the date is
made burdensome to some of those, the wrong done to whom is
sought to be rectified by the law it would certainly be open to
the Court to examine the choice of the date to find out wether it
has resulted in any discrimination. C

We think that the one case which is really of assistance to
us in this matter is the recent ,decision of the Constitution.
Bench in D.S. Nakara v. Union of India [1983] 2 SCR 165. We
propose not merely to quote extensively from Nakara's case, not
merely to adopt the principles therein . laid down but also to D
employ the very techniques applied there to solve the problem.
The question arose there whether, for the purpose of application
of the liberalised pension niles, the Government of India could
stipulate March 31, 1979 as the date for dividing Government
employees into two classes: one class who had retired before
March 31, 1979 who would not be entitled to the benefits of the.
liberalised pension rules and the other class who retired after E
March 31, 1979 who would be entitled to such benefits. The sub-
mission was that the differential treatment accorded to those who
had retired prior to the specified date was voilative of Art.14
as the choice of the date was arbitrary and the classification
based on the fortuitous circumstance of retirement- before ot
subsequent to the specified date was invalid. This submission was F
accepted by the Constitution Bench. Justice D.A. Desai speaking
for a unanimous Court, considered the question at great length in
all its implications. First considering the scope of Art.14, it
was observed:

"The decisions clearly lay down that though Art.14 G
forbids class legislation, it does not forbid
reasonable classification for the purpose of
legislation. In order, however to pass the test of
permissible classification two conditions must be
fulfilled, viz. (i) that the clas.sification must be

r
founded on an intelligible dif f erentia which II
distinguishes persons or things that are grouped
oOo SUPREME COURT. REPORTS [1985] SUPP.2 S.C.R.

A
together from those that are left out of the group;
and (ii) that differentia must have a rational
relation to the objects sought to be achieved by the
statute in question •••••••••••••••••••••••••••••••••
The other fact of Art.14 which must be remembered is
that it eschews arbitrariness in any form. Article 14
B
has, therefore, not to be held identical with the
doctrine of classification."

Thereafter the Court posed the question:

"As a corollary to this well established proposition,
the next question is, on whom the burden lies to
c affirmatively establish the rational principle on
which the classification is founded correlated to the
object sought to be achieved?"

The question was answered and it was said:

"The State, theretore, would have to affirmatively
D
satisfy the Court that the twin tests have been
satisfied. It can only be satisfied if the State
establishes not only the rational principle on which
classification is founded but correlate it to objects
the sought to be achieved."
E
The submission made by the learned Attorney-General on
behalf of the Union of India was summarised:

"Thus accoi"ding to the respondents, pensioners who
retire from Central Government service and are
governed by the relevant pension rules all do not
F
form a class but pensioners who retire prior to a
certain date and those who retire subsequent to a
certain date form distinct aµd separate classes. It
may be made clear that the date of retirement of each
individual pensioner is not suggested as a criterion
for classification as that would lead to an absurd
G
result, because in that event every pensioner relevant
to his date of retirement will form a class unto
himself. What is suggested is that when a pension
scheme undergoes a revision and is enforced effective
from a certain date, the date so specified becomes a
sort of rubicon and those who retire prior to that
H
date from one class and those who retire on a subse-

'
B.PRAl!HAKAR RAO v. STATE (CHINNAPPA REDDY, J.] 607

quent date form a distinct and separate class and no A
one can cross the· Rubicon."

The Court then proceeded tO consider the question: what is a
pension? and why a liberalised pension schemes? After answering
these questions the court referred to some of the very arguments
now advanced before us that th~ date is an integral part of the ll
scheme and so not severable from the scheme at all and that the
Court should not usurp legislative functions. The learned
Atton1~y General's argument on these questions was:

"The Learned Attorney-General contended that the
sctieme is one whole and that the date is_ an integral c
part of the scheme and the Government would have never
enforced the scheme devoid of the date and the date is
not severable from the scheme as a whole. Contended
the learned Attorney-General that the Court does not
take upon itself the function of legislation for
persons, things or situations omitted by the legis- D
lature. It was said that when the legislature has
expressly defined the class with clarify and precis.ion
to which the legislation applies, it would be outside
the judicial function to enlarge the class and to do
so is not to. interpret but to legislate which is the
forbidden field. Alternatively it was also contended
that where a· larger class comprising two smaller E
classes is cov~red by a legislation of which one part
is constitutional-, the Court examines whether the
legislation llllSt be incalidated as a whole or only in
respect of the unconstitutional part. It was also
said that severance always cuts down the scope of
legisation but can never enlarge it and in the present F
case the scheme as it stands would not cover
pensioners such as the petitioners and if by severance
an attempt is made to include them in the scheme it is
not cutting down the class or the scope but enlarge
the ambit of the scheme which is impermissible even
under the doctrine of severability. In this context it G
was lastly submitted that there is not a single case
in India or elsewhere where the Court has included
some category within the scope of provisions of a law
to maintain its constitutionality."

Proceeding them to meet the submission of ·the learned R
Attorney General, Desai J. said,
608 SUPREME COURT REPORTS [1985] SUPP;2 s.c.R.

A · "If it appears to be undisputable as it does to us
that the pensioners for the purpose of pension
benefits form a class would its upward revision permit
a homogeneous class to be divided by arbitrarily
fixing an eligibility criteria unrelated to purpose of
revision and would such classification be founded on
B some rational principle. The classification has to be
based, as is well settled, on some rational principle
and the rational principle must have nexus to the
objects sought to be achieved. We have set out the
objects underlying the payment of pension. If the
State considered it necessary to liberalise the
pension scheme, we find no rational principle behind
c it for granting these benefits only to those who
retired subsequent to that date sillJ.lltaneously denying
the same to those who retired prior to that date. If
the liberalisation was considered necessary for
augmenting social security in old age to government
servants then those who retired earlier cannot be
wotst off than those who retire later. Therefore, this
D division which classified pensioners into two classes
is not based on any rational principle and if the
rational principle is the one of dividing pensioners
with a view to giving something more to persons other-
wise equally placed it would be discriminatory. To
illustrate take two persons, one retired just a day
E prior and antoher a day just succeeding the specified
date. Both were in the same pay bracket the average
·emolument was the same and both had put in equal
number of years of service. How does a fortuitous
circumstance of retiring a day earlier or a day later
will permit totally unequal treatment in the matter of
F pension. One retiring a day earlier will have to be
subject to ceiling of Rs. 8,100 p.a. and average
emolument to be worked out on 36 months' salary while
the other will have a ceiling of Rs. 12,000 p.a. and
average emolument will be computed on the basis of
last ten months average. The Artificial division
G stares into face and is unrelated to any principle and
whatever principle, if there be any, has absolutely no
nexes to the objects sought to be achieved by
liberalising the pension scheme. In fact this
arbitrary division has not only no nexus to the
liberalised pension scheme but it is counter produc-
tive and runs counter to the whole gamut of pension
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.] 609

A
scheme. The equal treatment guaranteed in Art. 14 is
wholly violated inas!llllch as the pension rules being
statutory in character, since the specified date, the
rules accord differential and discriminatory treatment
to equals in the matter of comnrutation of pension. A
48 hours difference in matter of retirement would have
Jl
a traumatic effect. Division is thus both arbitrary
and unprincipled. Therefore the Classification does
not stand the test of Art. 14."

The Court then asked itself the question: "By our approach, are
we making the scheme retroactive." The answer was an emphatic
'No'. They said,
c

"In other words, benefit of revised scale is not
limited to those who enter service subsequent to the
date fixed for introducing revised scales but the
benefit is extended to all those in service prior to
D
that date. This is just and.fair. Now if pension as
we view it, is some kind of retirement wages for past
service, can it be denied to those who retired
earlier, revised retirement benefits being available
to .futurE'. reti.res orily. Therefore, there is no
substance in the contention that the court by its
approach would be making the scheme retroactive,
E
because it is implicit in theory of wages."

The Court finally considered the favourite argument advanced
against what some of the Counsel who appeared before us
described ·as judicial 'tinkering' with legislative policy. The
Court· took the view that the State cannot say 'Take it or leave
F
it'. If there are words in a statute which bring about
discrimination, those words can be seve~ They said,

"There is nothing in!lllltable about the choosing of an
event as an eligibility criteria subsequent to a
specified date. If the· event is certain but its
G
occurrence at a point of time is considered wholly
irrelevant and arbitrarily selected having no
rationale for selecting it and having an undesirable
effect of . dividing homogeneous class and of
introducing the' discrimination, the same can be easily
severed and set aside. While examining the case under
H
Art. 14, ·the approach is not : 'either take it or
.leave it', the approach is removal of arbitrariness

..-----.......
610 SUPREME COURT REPORTS [1985] SUPP.2 s.C.R.

A and if that can be brought about by severing the mis-
chievous portion the ourt ought to remove the discri-
minatory part retaining the beneficial portion. The
pensioners do not challenge the liberalised pension
•
scheme. They seek the benefit of it. Their grievance
is of the denial to them of the same by arbitrary
B introduction of words of limitation and we find no
difficulty in severing and quashing the same. This
approach can be legitimised •on the ground that every
Govennnent servant retires. State grants upward
revision of pension undoubtedly from a date. Event has
occured revision has been earned. Date is. merely to ·
avoid payment of arrears which may impose a heavy
c burden. If the date is wholly removed, revised
pensions will have to be paid from the actual date of
retirement of each pensioner. That is impermissible.
The State cannot be burdened with arrears connnencing
from the date of retirement of each pensioner. But
effective from the specified date future pension of
D earlier retired Govermnent servants can be computed
and paid on the analogy of fitments in revised
pay-scales becoming prospectively operative. That
removes the nefarious unconstitutional part and
· retains the beneficial portion. It does not adversely
affect future pensioners and their presence in the
petitions becomes irrelevant .• But before we do so, we
E must look into the reasons assigned for eligibility
criteria, namely, 'in service on the specified date
and retiring after that date'."

The learned judges then expressed their disinclination to share
the. fear 'expressed by the learned Attorney ,General that the
F Parliament. would not have enacted the measure if the unconstitu-
tional part was struck down and added "Our approach may have a
parliamentary flavour to sensitive noses." ·Dealing with the
_question o.f frame of relief, the .Court struck down as unconstitu-
tional,the words, "that in respect of the Government servants who
were ·in service. on the 31st March, 1979 and re'tiring from service
G on or after that date" and the words "the new rates of pension
are effective from 1st April, 1979 and will be applicable to all
serv~ce officers who became/become non-effective on or after that
date" in the impugned memoranda, but specified that "the date
. mentioned therein will be relevant as being one from which the
liberalised pension scheme becomes operative to all pensioners
H gover:ned:bY 1972 Rules i-Crespective of the date of retirement."
B.PRABHAKAR RAO v. STATE [CHINNAPPA REDDY, J.j 611

It was declared "all pensioners governed by the 1972 Rules and
Army Pension Regulations shall be entitled to pension as computed A
under the liberalised pen8ion scheme from the specified ·date,
irrespective or the date of retirement." ·

In ~he course of our narration, we have already stated. our
conclusions on several of the questions at issue, both factual
and legal. The final situation that emerges is that almost B
immediately after the age of. superannuation· was reduced from 58
to 55 years, it was realised by the Government of Andhra Pradesh
that they had taken a step in the wrong direction and that
serious wrong and grave injustice had been doneto their·
employees. A decision was very soon taken to redress the wrong by
reversing the decision but an unfortunate rider was added that c
they should wait till the pronouncement of the jucjgment of the
Supreme Court, which was perhaps expected to be pronounced ·
shortly. As the judgment was not pronounced for long, it became
imperative for the Government to implement their decision of
their own accord and so they passed Ordinance No. 24 of 1984.and
Act No. 3 of 1985, amending Act No. 23 of 1984 by substituting 58 D
years for 55 years. While doing so, unfortunately again, thQse
that had suffered most by being compelled to retire between
28.2.83 and 23.8.84 were denied the benefit of the legislation by ·
cl.3(1) of the Ordinance and Sec. 4(1) of Act No.3 of 1985. Now
if all effected employees hit by the reduction of the age of
superannuation forn:ied a class and no sooner than the age of E
superannuation was reduced, .it was realised that injustice had
been done and it was decided that steps should be taken to undo
what had been done, there was no reason to pick up out a class of
persons who deserved the same treatment and exclude from the
benefits of the beneficent treatment by classifying them as a
separate group merely because of the dealy in taking the.remedial
action already decided upon. We do not .doubt that the Judge's. F
fri~nd and counsellor, 'the counnon man' , if asked, will
unhestitatingly respond that it would be plainly unfair to make
any such classification. The coonnon sense response that may be
expected from the conmon man, ~ntramelled by legal lore and
learning, should always help the judge in deciding .questions of
fairness, arbitrariness etc. Viewed from whatever angle, to our G
minds, the action of the Government and the provisions of the
legislation were plainly arbitrary and discriminatory. The
principle of Nakara clearly applies. The diversion of Government
employees into two classes, those who had already attained the·
age of 55 on 28.2.83 and those who attained the age of 55 on
28.2.83 and 23.8.84 on the one hand, and. the rest on the other
H
612 SUPREME COURT REPORTS [1985] SUPP~2 s.c.R.

A and denying the benefit of the higher age of superannuation to
the former class is as arbitrary as the division of Government
employees entitled to pension in the past and in the future into
two classes, that is, those that had retired prior to a specified
date and those that retired or would retire after the specified
date and confining the benefits of the new pension rules to the
B latter class only. Legislations to remedy wrongs ought not to.
exclude from their purview persons a few of the wronged persons
unless the situation and the circ\DDStances make the redressal of
the wrong, in their case, either impossible or so detrimental to
the public interest that the mischief of the remedy outweighs the
mischief· sought to be remedied. We do not find that there is any
such impossibility or detriment to the public interest involved
C in reinducting into service those who had retired as a conse-
quence of the legislation which was since thought to be inequit-
able and sought to be remedied. As observed in Nakara, the burden
of establishing the reasonableness of a classification arid its
nexus with the object of the legislation is on the State. Though
no calamitous consequences were mentioned in any of the counter-
affidavits, one of the submissions strenuously urged before us
D by the learned Advocate-General of Andhra Pradesh and the several
other counsel who followed him was the oft-repeated and -now
familiar argument of 'administrative chaos'. It was said that
there would be considerable chaos in the administration if those
who had already retired are nciw directed to be reinducted into
service.

We are afraid we are unable to agree with this submission.
Those that have stirred up a hornet's nest cannot complain of
being stung. The argument about administrative chaos has been
well met by Lord Denning M.R. in Bredburry & Ors. v. lmldon
Borough of Enfield [1967] 3 All E.R. 434, where the Master of
F Rolls in his characteristic and forceful way observed:

' "It has been suggested by the Chief education officer
that, if an injunction is granted, chaos will super-
vene. All the arrangements have been made for the
next term, the teachers appointed ~o the new compre-
G hensive schools, the pupils allotted their places,
·and so forth· It would be next to impossible, he
say~, to reverse all these arrangements without com-
plete chaos and demage to teachers, pupils and .
public· I 011st say this: if a local authority does
not fulfil the requirements of the law, this court
H will see that it does fulfil them. It will.not listen
B.PRABHAKAR RAD v. STATE [CHINNAPPA REDDY, J.] 613

readily to suggestions of "chaos" • The department of A
education and the council are subject to the rule of
law and must comply with it, just like everyone elae.
Even if chaos should result, still the law must be
obeyed; but I do not think that chaos will result.
The evidence convinces me that the "chaos" is much
over-stated •.•.••............•... I see no reason why B
the position should not be restored; so that the
eight schools retain their previous character until
the statutory requirements are fulfilled. I can well
see that there may be a considerable upset for a
nwnber of people, but I think it far more important
to unphold the rule of law. Parliament has laid down c
these requirements so as to ensure that the electors
can make their objections and have them properly
considered. We must see that their rights are upheld."

In the present case too, we think that the case of chaos is
much overstated. The affidavits do not disclose what disastrous D
consequences, insoluble problems and unsunnountable difficulties
will follow and how chaos will inevitably result. True quite a
large nwnber of employees who have been promoted will have to be
reverted, but their promotions and promotionsl-appointments are
all temporary (and, we take care to add here it would make no
difference ev~n if a few were regularly promoted) and it is not g
as if they lose for ever their promotional opportunities. The
promotions! opportunities are merely postponed to the dates on
which they would be entitled to be promoted had not the funda-
mental rules and the Hyderabad Civil Services, Rules been
amended and Act No. 23 of 1984 passed. What has n0w happened is
that these persons have secured a double advantage. First, by
the initial reduction of the age of superannuation, they obtain- F
ed early and unanticipated promotion, that is to say, promotion
ahead of the normal date on which they would have otherwise been
promoted; and second their tenure in the promoted post was
increased by a further three years as a result of the subsequent
increase of the age of superannuation. Having secured this
double advantage they nsturally desire to stick to them and talk G
glibly of hardship and inconvenience. On the other hand, it
would be a great injustice to deny justice to those who have·
suffered injustice must merely because it may cause incon-
venience to the adminis_tration. We are governed by the Consti-
tution and constitutionsl rights have to be upheld. 8urely the
Constitution must take precedence over convenience and a judge
may not turn a bureaucrat. We do not mean to suggest that H
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
E
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
F
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
G 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
D
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
E
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
F
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
G
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
H
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
F
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
G
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
H
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 A
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 F
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 G
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
B 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
C 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
G 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
H 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 A
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 D
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 E
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 F
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 F
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 G
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
E 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
F brother Eradi, J, about the limited scope of the principles laid
down in these cases on their peculiar facts.

N.v.K. Petitions dismissed.