Supreme Court of India
UNION OF INDIA & ORS.versusA.K. BEHL, AVSM, PHS ETC.
- Citation
- 2015 INSC 1006
- Decided
- 24 July 2015
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
The government may prescribe a conditional two‑year tenure for Lt General and equivalent officers in the AFMS, subject to the stipulated age limits, and the Tribunal’s declaration of the clause as ultra vires was erroneous.
Summary
The case concerned officers of the Armed Forces Medical Services (AFMS) of the rank of Lt General (or equivalent) and the Director General AFMS, who were appointed for a fixed two‑year tenure subject to age limits. The Armed Forces Tribunal held that the tenure clause was ultra vires and ordered retirement at the age of 61, overturning the government’s policy of retirement at 60 or after completing the tenure. The Union appealed, arguing that the government could validly prescribe a conditional tenure and that courts should not interfere with retirement age unless it is arbitrary or irrational. The Supreme Court held that the government may prescribe a conditional two‑year tenure for such officers, that the clause is constitutionally valid, and that the Tribunal erred in declaring it ultra vires. Consequently, the appeals were allowed and the Tribunal’s orders set aside.
Issues considered
- The constitutional validity of the two‑year tenure clause for Lt General and equivalent officers in the AFMS, subject to age conditions.
- Whether the Armed Forces Tribunal erred in holding the tenure clause ultra vires of the Constitution.
- Whether courts may interfere with the prescription of retirement age in public service.
- Whether the tenure rule violates Article 14 by creating discrimination.
Legislation cited
Subjects
Tenure appointmentRetirement ageArmed Forces Medical ServicesConstitutional validityArticle 14Judicial restraintService lawFixed tenure
Judgment
[2015] 8 S.C.R. 396
A UNION OF INDIA & ORS.
v.
A.K. BEHL, AVSM, PHS ETC.
(Civil Appeal Nos. 9382-83 of2014)
. B
JULY24, 2015
[T.S. THAKUR, R.K. AGRAWAL AND
ADARSH KUMAR GOEL, JJ.]
c Service Law:
Tenure post - Fixed tenure - As provided in Order
No. 10(14)06/D(Med) dated 2()1h April, 2007 - Applicable to
AFMS officers of the rank of Lt. General and its equivalent
0 as well as to Director General Armed Force Medical Services
- Constitutional validity of-Armed Forces Tribunal held that
prescription of fixed tenure by the order dated 20.4.2007 was
ultra vires the Constitution - On appeal, held: The courts
E should exercise restraint in interfering with prescription of
retirement age in public service unless such prescription is
arbitrary and irrational - The tenure rule was made subject
to the conditions that (i) the officer if completes the tenure
before he touches 60 years of age, he can continue beyond
F the tenure till he completes the age of 60 years, (ii) the officer
must demit office at the age of 61 regardless whether he has
completed his two years tenure - There is nothing wrong in
stipulating a tenure conditionally- Such tenure rule is being
applied on uniform basis in all cases without exception - Just
G because some officers are allowed in certain situations upto
61 years does not bring about any discrimination between
such officers and those officers who completed their tenure
before attaining the age of 60 years- Tribunal was in error in
396
H
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 397
interfering with the provisions made by the Government, A
prescribing the age of retirement.
Allowing the appeals, the Court
HELD: 1. Th~ courts should exercise restraint in
8
interfering with any prescription of retirement age in
public service unless the age stipulated is so
unreasonably low as to make it arbitrary and irrational.
[Para 11] (408-B]
K. Nagaraj and Ors. etc. v. State ofAndhra Pradesh arid C
Anr. 1985 (2) SCR 579: (1985) 1SCC523; T.P. George and
Ors. vs. The State of Kera/a and Ors. 1992 (2) SCR 311:
1992 Supp (3) SCC 191; B. Bharat Kumar and Ors. vs.
Osmania University and Ors. 2007 (6) SCR 168: (2007) 11
0
. sec 58 - relied on ..
2.1 The Government could classify Lt. Generals and
those holding equivalent ranks for a tenure appointment.
Such a classification for granting the incumbents a
tenure of two years each was constitutionally E
permissible. Having regard to the experience, the
professional capability and potential of officers who are
appointed as Lt. Generals and equivalent, the
Government could in its wisdom direct that officers F
appointed to that rank shall enjoy a tenure of two years.
That prescription however gave rise to an anomaly
· where an officer who picked up the rank at a relatively
younger age would have to go home even before he
·attained the age of 60 years. This was remedied by the G
Government by amending letter dated 1•1 May, 2000 and
making the tenure rule subject to two important
conditions viz. (i) if the officer concerned completes his
tenure of two years before he touches 60 years of age,
he can continue beyond the said tenure till he completes H
398 SUPREME COURT REPORTS [2015] 8 S.C.R.
A the age of 60 years; and (ii) an officer would demit office
at the age of 61 years even if he has not completed his
two years tenure by thattime. [Para 13] (410-G-D; 411-A-
D]
B 2.2 There is nothing wrong in stipulating of a tenure
of two years conditionally, specially when unconditional
prescription had resulted in an anomaly, where an officer
who because of his merit picked-up the rank of Lt General
or equivalent early in life had to go out upon his
C completing the period of two years in that rank, even
before he completed the age of 60 years which
incidentally is the age at which other similar ranks in the
army and services, retire. So also, the Government was
entitled to fix an upper age limit for officers who were
D . unable to pick-up the rank early. The stipulation of the
two conditions afore-mentioned does not suggest that
the Government has not specified tenure for those
holding the rank of Lt. General and equivalent in AFMS.
The Tribunal, therefore, committed a manifest error in
E holding that there was actually no tenure prescribed for
those serving in the rank of Lt Generals and equivalent
· The tenure rule being conditional, the same could and
is being applied on a uniform basis in ai'I cases without
F exception. (Paras 13, 14] (411-D-F: 412-A, C-D]
3. Just because Lt. Generals and equivalent rank
holders are allowed to continue in certain situations upto
61 years does not bring about any discrimination
between such officers and others who complete their
G two years tenure by the time they reach the age of 60
years. At any rate, the grievance assuming the~e is any
legal basis for the same, could be made by such of the
officers as were not allowed to complete their tenure just
H because they had completed 61 years of age. The
grievance of the respondents who had completed their
UNION OF INDIA v.A.K. BEHL,AVSM, PHSETC. 399
tenure of two years and 60 years of age was misplaced. A
The Tribunal was clearly in error in interfering with the
provisions made by the Government prescribing the age
of retirement and the orders of retirement issued by the
competent authority. [Para 19) [419-A-E]
B
State of Himachal Pradesh and Anr. vs. Kai/ash Chand
Mahajan and Ors. 1992 (1) SCR 917: 1992 Supp (2) SCC
351; Nagaland Senior Government Employees. Welfare
Association and Ors. vs. State of Nagaland and Ors. 2010
(7) SCR 630: (2010) 7 SCC 643; Yeshwant Singh Kothari C
vs. State Bank of Indore 1993 (1) SCR .208: 1993 Supp (2)
sec 592 - relied on ..
Dr. L.P. Agarwal vs. Union of/ndia &Ors. 1992 (3) SCR
567: (1992) 3 SCC 526 - distinguished. D
Case Law Reference
1985 (2) SCR 579 relied on. Para 11
1992 (2) SCR 311 relied on. Para 12 .E
2007 (6) SCR 168 relied on. Para 12
1992 (1) SCR 917 relied on. . para 15
2010 (7) SCR 630 relied on. Para 16 F
1993 (1) SCR 208 relied on. Para 17
1992 (3) SCR 567 distinguished. Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. G
9382-9383 of 2014.
From the Judgment and Order dated 12.09.2014 in 0. A.
No. 250 of 2014 and dated 15.09.2014 in M.A. No. 541 of
2014 in O.A. No. 250 of250 of2014 &O.A. No. 296 of2014 H
400 SUPREME COURT REPORTS [2015] 8 S.C.R.
A of Armed Forces Tribunal Act, 2007.
· Ranjit Kumar, SG, Binu Tamta, R. K. Verma, B. V. Balaram
Das for the Appellants.
Gopal Subramonium, SG, Chinmoy Sharma, R. N.
8
Karanjawala, Nandini Gore,Abhishek Roy,Aditi Bhatt, Amar
Dave, Brijesh Oberai (For Karanjawala & Co.) for the
Respondents.
Caveator-in-person.
c
· The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. The short question that falls for
determination in these two appeals filed by the Union of India
D is whether the "Tenure Clause" applicable to AFMS officers of
the rank of Lt. General and its equivalent as well as to Director
General Armed Force Medical Services (DGAFMS) is
constitutionally valid. The Tribunal has, while allowing the OAs
filed by the respondents, taken the view that a fixed tenure of
E two years provided in order No.10(14)/06/D(Med) dated 20th
April, 2007 is ultra vires and accordingly set aside the clause
with the direction that all the Lt. Generals and their equivalent
in AFMS will retire only upon completion of 61 years of age
provided in the said order. The controversy arises in the
F following circumstances:
2. Respondent AK. Behl was commissioned in the Army
Medical Corps on 1•1 March, 1976 and was seconded to the
Air Force in the rank of Flying Officer. He was in due course
G promoted and appointed as Air Marshal (equivalent to Lt.
General) w.e.f. 1•1 April, 2012. His date of birth being 17th
September, 1954, he was under the provisions of the existing
policy due to retire on 30th September, 2014 on attaining the
age of 60 years after a tenure of two years which he completed
H on31•1 March,2014.
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC: 401
[T:S. THAKUR, J.]
3. Vice Admiral Shalesh Rohatagi, respondent in the A
connected appeal, whose date of birth is 24th September,
1954, too joined the Army Medical Corps.and was promoted
on 1st July, 2012 to the rank of Vice Admiral which is equivalent
to the rank of Lt. General. He completed his tenure oftwo years
in that rank on 30th June, 2014 and was due to retire on 30th B
September, 2014 upon completion of 60 years of age.
4. Orders dated 11th October, 2013 and 7th November,
2013 were issued to respondent Air Marshal A.K. Behl,
intimating to him that he would retire from service on 30th C
September,· 2014 (AN) on attaining the age of 60 years.
Similarly, orders dated 11th October, 2013 and 11th December,
2013 were to the same effeCt issued to respondent Vice
Admiral Shalesh Rohtagi.
D
. 5. Aggrieved, the respondents submitted statutory
complaints which were disposed of by the CompetentAuthority
as "untenable", on the ground that the officers had not been
subjected to any military wrong and were being asked to retire
from service on the basis of a Government policy that was E
uniformly applicable to all the officers of the rank of Lt. Generals
and equivalent and DGAFMS in the AFMS. Aggrieved by the
order rejecting his statutory complaint, respondent Air Marshal
A.K. Behl filed OANo. 250 of 2014 before theArmed Forces
Appellate Tribunal, Delhi, challenging the policy of the F
Government prescribing a tenure linked age of retirement for
officers of the rank of Lt. General and equivalent in the Armed
Forces Medical Services and praying for quashing of the
retirement orders issued to him. A similar petition being OA
No. 296 of 2014 was filed by respondent Vice Admiral Shalesh G
Rohtagi also. By an order dated 12-09-2014 theAFT allowed
O.A. No. 250 of 2014 filed by Air Marshal A.K. Behl holding
that the tenure clause of two years provided in the impugned
order No.10(14)/06/D/(Med) dated 20th April, 2007 was ultra H
•
402 SUPREME COURT REPORTS (2015] 8 S.C.R.
A vires and directing that all Lt. Generals and its equivalent rank
holders in the AFMS shall retire only after completion of 61
years of age. On an application for clarification filed by the
respondent separately, the Tribunal passed another order
dated 15th September, 2014 whereby it held that orders of
B retirement dated 11th October, 2013 and 7th November, 2013
shall also stand quashed. An oral prayer made on behalf of
the Union of India for a certificate of fitness to appeal having
been declined by the Tribunal, the Union has filed the present
C appeals by leave under Section 31 of the Act.
6. Civil Appeal Nos.9382-9383 of 2014 filed by the Union
of India challenge order dated 15th September, 2014 passed
in OA No.296 of 2014 filed by respondent Vice Admiral
Shalesh Rohtagi relying upon its order in O.A. No.250 of 2014.
D That is precisely how these appeals were heard together and
shall stand disposed of by this common order.
7. Appearing for the appellant, Mr. Ranjit Kumar, learned
Solicitor General, argued that the power to prescribe the age
E of retirement vests entirely with the Government with which the
Tribunal could not find fault. He urged that age of retirement of
Lt. Generals and equivalent was approved by the Cabinet and
accordingly prescribed in terms of letter dated 1st May, 2000.
Experience, however, showed that a Lt. General could retire
F even before attaining the age of 60 years due to the prevalent
tenure clause, just because the incumbent had picked up that
rank at an early age. To avoid any such anomaly the provision
regarding retirement was amended to incorporate the
expression "in any case not before attaining the age of 60
G years". It was argued that the proposal received from the Chief
of Staff Committee (COSC) in May, 2001 recommending the
removal of the tenure prescribed for Lt. General and its
equivalent inAFMS while retaining the age of retirement at 61
H years was examinecJ by the DoPT, who opined that while there
•
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 403
[T.S. THAKUR, J.)
could be no objection to the removal of the tenure clause, the A
age of retirement would remain 60 years only. Retaining the
maximum age of 61 years while removing the tenure clause
was found to be tantamount to raising the age of retirement for
this category of officers which was not acceptable keeping in
view the recommendations of the 6th Pay Commission. A B
second proposal received from COSC for officers holding the
rank of Lt. Generals and equivalent from 2 to 3 years was also
considered and declined by the DoPT. The net result was that
the age of retirement of Lt. Generals and equivalent continued
to be as stipulated in letter dated 1st May, 2000 as amended C
by letter dated 2Qth April, 2007. Mr. Kumar argued that the
age of retirement of Lt. General for other services remains at
60 years and that the very purpose of prescribing a tenure
was to provide them a minimum period of two years as Lt.
0
Generals subject of course to the upper age limit of 61 years
in the case of officers who pick up that rank at the age of 59
years or above. There was, according to Mr. Kumar, no illegality,
or constitutional infirmity in the provisions made by the
Government in providing a tenure for those holding the rank of E
Lt. General and equivalent in AFMS subject to the condition
that in case the officer completes his two years tenure before
he attains 60 years of age he shall continue till that age. Officers
who pick up the rank at the age of 59 years or more and were
unable to complete two years tenure could continue till they F
completed 61 years. Such a provision was perfectly justified
and did not result in any discrimination whatsoever leave alone
a hostile discrimination vis-a-vis respondents who have served
for more than two years before attaining the age of 60 years
and, were, therefore, rightly retired from service., G
8. On behalf of the respondents a two-fold contention was
urged before the Tribunal and so also before us. Firstly, it was
argued that letter dated 151 May, 2000 as amended by letter
dated 20th April, 2007 prescribes two dates for retirement of. H
404 SUPREME COURT REPORTS [2015] 8 S.C.R.
A those serving in the rank of Lt. General in AFMS. This,
according to the respondents, implies that the tenure clause
of two years is not applicable to officers who complete two
years service. but are allowed to continue in service till they
complete the age of 60 years. So also those who complete
B two years tenure after crossing the age of 60 years will retire
by or before completion of 61 years. The contention is that the
retirement of Lt. General or its equivalent in AFMS is not
governed by a mandatory tenure clause but by retirement age
which would vary between 60 to 61 years depending upon the
C age of the officers who picked up the rarik of Lt. General or its
equivalent. It is further contended that since meritorious officers
generally pick up their ranks earlier they were bound to retire
atthe age of60 years while less meritorious officers who picked
up the rank later in point of time would retire at the higher age
0
of 61 years. This, according to the respondents, militates
against the concept of 'tenure appointments' which implies that
the tenure starts with the appointment of an incumbent and
comes to an end on completion of the tenure period. Officers
E serving in the rank of Lt. General and equivalent in AFMS
would, however, continue till attaining the age of 60 years even
when their tenure of two years is completed which implies that
the post/rank of Lt. General is a non-tenure appointmel)t and
is governed by different retirement ages thereby making the
F entire basis arbitrary, illegal and discriminatory. It was
alternatively argued that the post of Lt. General is not an
appointment but a promotional rank. To describe the post of
Lt. General in AFMS as a tenure post is, according to the
respondents, a misnomer. The impugned tenure clause, at any
G rate, leads to a situation whereunder different retirement ages
are applied to Lt. Generals and its equivalent in the AFMS
and is, therefore, wholly arbitrary, discriminatory and violative .
of Article 14 of the Constitution of India.
H 9. Before we advert to the legal position relevant to the
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 405
[T.S. THAKUR, J.]
issue that falls for determination, we may refer to the factual A
background in brief. The age of retirement for those serving
in the rank of Lt. Generals and equivalent in AFMS has been
. prescribed by the Government in terms of orders issued on
the subject from time to time. By a letter dated 1st May, 2000
the Government stipulated the age of retirement for Lt Generals B
and equivalent in the AMC and DGAFMS, in modification of
the orders issued earlier. The letter reads:
'To 1•1 May, 2000
c
DGAMFS
Sub: Ages of Retirement of Officers of Lt General and
equivalents of Army Medical Corps (AMC).
Sir, D
I am directed to refer to paragraph 6 of Ministry of
Personnel, Public grievances & Pension (Department of
Personnel and Training) O.M. No. 2501212197-Est. (A)
DATED 13.5.1988 and this Ministry's letter No. 14(3)1981 E
D(AG) dated 30.5.98 and 29. 7.98 and 3.9.98 as a/so letter
No.62212000/D(Med) dated 8.3.2000 and to convey the
sanction of the President to that the following shall be the
revised retirement age/tenure for officers ofArmy Medical
Corps (AMC). F
Rank Age of Retirement
LI. Gen era I & 2 year tenure or on attaining 61 years of age,
whichever is earlier
DGAFMS 3 year tenure or on attaining 62 years of.. G
age, whichever is earlier.·
3. These orders will come into force immediately.
4. The period of service of those officers who have H
406 SUPREME COURT REPORTS [2015] 8 S.C.R.
A continued in service beyond their existing ages of
retirement in pursuance of this Ministry's letters No. 14(3)/
98/D(AG) dated 30.5.98 and 29.7.98 will be regularized
as extension in service as a special case. All such officers
will demit their office with effect from31. 5. 2000.
B
5. This issues with the concurrence of Ministry of Defence
(Finance) vide theiru.o. No. 1254/Addl.FA(V)/2000 dated
1.5.2000.
c
Yours faithfully,
Sdl-xxxxxxx
(Jose Thomas)
Under Secretary to the Govt. of India"
D
10. The application of the tenure clause appears to have
led to the anomaly referred to by Mr. Ranjit Kumar makingit
necessary for the Government to modify letter dated 1st May,
2000 by stipulating that an officer who completes his tenure of
· E 2 years before attaining the age of 60 years would continue in
service till he attains the age of 60 years. This modification
was brought about by letter dated 20'" April, 2014, which may
also be extracted in extenso:
F ''To New Delhi 2(Jh May, 2007
DGAMFS
Sub: Age of Retirement of Lieu.tenant General and
equivalents, in the Armed Forces Medical Services
G
(AFMS).
Sir,
I am directed to convey the sanction of the President
H of for amendment in the Ministry of Defence, letter No. 14(3)/
UNION OF INDIA v. AK. BEHL, AVSM, PHS ETC. 407
[T.S. THAKUR, J.]
98-D(AG) dated 1•1 May, 2000 as follows: A
For
Rank Age of RetiretrJ.ent
u. Gen & equivalents 2 year tenure or on attaining 61 years of age,
(except DGAFMS) whichever is earlier B
DGAFMS 3 year tenure or on attaining tl2 ·years of age,
whichever is earlier.
Read c
Rank Age cl Retirement
ll. Gen & equfv~ts 2 year tenure or on attainirY;J 61 years cl age,
(except DGAFMS) v.hiche\,flf is earlier, but in any case rd before
attaining the age cl 60 yealS. D
DGAFMS 3 year tenure a on attainirY;J 62 years cl age,
v.hiche\,flf is earlier, but in any case rd
before attairing the age cl 60 years
E·
2. The other instructions on this subject will be deemed to
have been amended accordingly.
3. These orders will be effective from the date of issue of
this Jetter.
F
5. This issues with the concurrence of Ministry of Defence
Finance vide their Diary No. 2483/Addl.FA(M) dated
19.4.2007.
Yours faithfully, G
Sdl-xxxxxxx
(RC Raturi)
Under Secretary to the Govt. of India"·
H
408 SUPREME COURT REPORTS (2015] 8 S.C.R.
A 11. In K. Nagaraj and Ors. etc. v. State of Andhra
Pradesh and Anr. (1985) 1 SCC 523 a three-Judge Bench
of this Court examined the rationale underlying prescription of
retirement age in public service and sounded a note of caution
for the courts to exercise restraint in interfering with any such
B prescription unless of course the age stipulated is so
unreasonably low as to make it arbitrary and irrational. This
Court accepted the proposition that there ought to be an age
of retirement in public service and that if the same is prescribed ·
it would be accepted as reasonable unless of course it is found
C wholly unacceptable being arbitrary or irrational. Chandrachud,
CJI, as His Lordship then was, succinctly summed-up the
rationale underlying the prescription of retirement age for public
services and the need for judicial restraint in dealing with any
challenge to the age prescribed for purposes of retirement.
0
The following passage from the judgment is instructive:
"... ... ... The fact that the stipulation as to the age of
retirement is a common feature of all of our public
services establishes its necessity, no less than its
E reasonableness Public interest demands that there ought
to be an age of retirement in public services The point of
the peak level of efficiency is bound to differ from
individual to individual but the age of retirement cannot
obviously differ from individual to individual for that
F
reason. A common scheme of general application
governing superannuation has therefore to be evolved
in the light of experience regarding performance levels
of employees. the need to provide employment
. G opportunities to the younger sections of society and the
need to open up promotional opportunities to employees
at the lower levels early in their career. /nevitablv. the
public administrator has to counter balance conflicting
claims while determining the age of superannuation. On
H the one hand. public services cannot be deprived of the
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 409
[T.S. THAKUR, J.]
benefit of the mature experience of senior emplovees: A
on the other hand. a sense of frustration and stagnation
cannot be allowed to generate in the minds of the ;unior
members of the services and the vounger sections of
the societv. The balancing of these conflicting claims of
the different segments of society involves minute B
questions of policy which.must as far as possible. be left
to the ;udgment of the executive and the legislature.
These claims involve considerations of varving vigour
and applicability. Often. the Court has no satisfactorv and
effective. means to decide which alternative. out of the C
manv competing ones. is the best in the circumstances
of a given case. We do not suggest that every question
of policy is outside the scope Of judicial review or that,
necessarily, there are no manageable standards for
0
reviewing any and every question of poiicy. Were it so,
this Court would have declined to entertain pricing
disputes covering as wide a range as cars to mustard-
oil. If the age of retirement is fixed at an unreasonablv
low level so as to make it arbitrarv and irrational. the E
Court's interference would be called for. though not for
· fixing the age of retirement but for mandating a closer
consideration of the matter. "Where an act is arbitrary, it
is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of F
Article 14."(1974 [4] SCC 3) But. while resolving the
validitv of policy issues like the age of retirement. it is
not proper to put the conflicting claims in a sensitive
iudicial scale and decide the issue by finding out which
way the balance tilts. That is an exercise which the G
administrator and the legislature have to undertake. As
stated in 'The Supreme Court And The Judicial Function'
[Edited by Philips B. Kurland, Oxford & IBH Publishing
Co., page 13]: "Judicial self-restraint is itself one of the
factors to be added to the balancing process, carrying H ·
410 SUPREME COURT REPORTS [2015] 8 S.C.R.
A more or less weight as the circumstances seem to
require".
(emphasis supplied)
12. To the same effect is the decision of this Court in T.P.
B George and Ors. vs. The State of Kera/a and Ors. [1992
Supp (3) SCC 191]where this Court held that even when the
age of retirement fixed at 55 years in the case of teachers of
affiliated collegei was too low having regard to the fact that
teachers require several years of teaching experience before
C they really become adept in their jobs, yet, it is not for the courts
to prescribe the correct age of retirement but a policy function
requiring considerable expertise which can be done only by
the State Government or the State Legislature. With that
observation the Court left it to the government to consider the
0
question and determine the age of retirement considered
suitably in its wisdom. Reference may also be made to the
decision of this Court in 8. Bharat Kumar and Ors. vs.
Osmania University and Ors. (2007) 11 SCC 58 where this
E Court observed:
"19 ...... it is not for this Courl to formulate a policy as to
what the age of retirement should be as by doing so we
would be trailing into the dangerous area of the wisdom
of the legislation. If the State Government in its discretion,
F which 'is permissible to it under the scheme, decides to
restrict the age and not increase it to 60, or as the case
may be, 62, it was perfectly justified in doing so."
13. Coming to the case at hand, the Tribunal has clearly
G held and, in our opinion, rightly so that the government could
classify Lt. Generals and those holding equivalent ranks for a
tenure appointment. Such a classification for granting the
incumbents a tenure of two years each was constitutionally
permissible said the Tribunal. There can be even otherwise
H no quarrel with that proposition. Having regard to the
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 411
[T.S. THAKUR, J.]
experience, the professional capability and potential of officers A
who are appointed as Lt. Generals and equivalent, the
Government could in its wisdom direct that officers appointed
to that rank shall enjoy a tenure of two years. That prescription .
however gave rise to an anomaly where an officer who picked
up the rank at a relatively younger age would have to go home B
even before he attained the age of 60 years. This was
remedied by the Government by amending letter dated 1si May,
2000 and making the tenure rule subject to two important
conditions viz. (i) if the officer concerned completes his tenure
of two years before he touches 6.0 years of age, he can C
continue beyond the said tenure till he completes the age of
60 years; and (ii) an officer would demit office at the age of 61
years even if he has not completed his two years tenure by
that.time. There is nothing wrong in stipulating of a tenure of
0
two years conditionally, specially when unconditional
prescription had resulted in an anomaly, where an officer who
because of his merit picked-up the rank of Lt. General or
equivalent early in life had to go out upon his completing the
period of two years in that rank, even before he completed the E
age of 60 years which incidentally is the age at which other
similar ranks in the army and services, retire. ·
14. So also, the government was entitled to fix an upper
age limit for officers who were unable to pick-up the rank early. F
The reason for doing so apparently was the go~ernment's
resolve to keep the Indian army relatively young at senior
positions. The tenure rule if allowed to have an unhindered
applicatior. may have taken the retirement age of those who.
picked-up the rank around the time they were 60 years old to G
62 years. The government in its wisdom did not approve of •
such a scenario and made the tenure rule subject to the
condition that an officer holding the rank of Lt. General or
equivalent in AFMS must demit office at the age of 61
regardless whether he has completed his two years tenure. H
412 SUPREME COURT REPORTS [2015] 8 S.C.R.
A The stipulation of_ the two conditions afore-mentioned does
not in the least suggest that the Government has not specified
a tenure for those holding the rank of Lt. General and equivalent
in AFMS. This is amply demonstrated by the fact that an officer
who picks-up his rank let us say at the age of 58% years will
B have to demit office when he completes his tenure at 60%. He
will not be entitled to continue because the tenure rule clearly
stipulates that he will have to demit when he completes a tenure
of two years or when he completes 61 years "whichever is
earlier". The Tribunal, therefore, committed a manifest error
C in holding that there was actually no tenure prescribed for those
serving in the rank of Lt. Generals and equivalent. It is one
thing to say that an officer will continue till the age of 60 years
even after he completes two years tenure but an entirely
different thing to say that there is no tenure at all. The tenure
0
rule being conditional, the same could and is being applied
on a uniform basis in all cases without exception.
15. We may, atthis stage, refer to a decision of this Court
in State of Himachal Pradesh and Anr. vs. Kailash Chand
E Mahajan and Ors. [1992 Supp (2) SCC 351] in which a
somewhat situation arose for consideration. The respondent
in that case had been appointed as the Chairman of the
Himachal Pradesh State Electricity Board initially for a period
of two years. That period was extended from time to time by
F successive notifications issued under Section 5 of the
Electricity (Supply) Act. The last of such notifications extended
the appointment of respondent Mahajan for three years with
effect from July 25, 1989 endjng 25th July, 1992. In January,
G 1990 elections to the Legislative Assembly of the State of
Himachal Pradesh were held and a new government installed
in the State. A notification issued on 61h March, 1990
superseded the earlier notification issued and restricted the
appointment of respondent as Chairman of the Board from
H July 25, 1989 to March, 6, 1990 only. Another notification issued
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 413
[T.S. THAKUR, J.]
on March 6, 1990 directed someone else to function as A
Chairman with effect from March 7, 1990. Aggrieved by the
steps taken by the State Government respondent preferred a
writ petition before the High Court challenging the notifications
issued by the State Government. During the pendency of the
said petition ariother notification dated 30th March, 1990 B
terminating the appointment of first respondent as Member of
the Board was issued. Both these notifications were eventually
withdrawn by the Government and the writ petition disposed
of. But, on 11th June, 1990 a show cause notice was issued to
the respondent and he was placed under suspension in C
exercise of powers vested under Section 10 of the Act.
Respondent, then, filed a writ petition and by way of an interim
order the High Court stayed the order of suspension. At this
stage the Chief Secretary of the State of Himachal Pradesh
0
wrote to the Secretary, Government of India, Ministry of Home
Affairs emphasising necessity for introducing an upper age
limit for holding the office of Chairman or Member of the Board
through an Ordinance. The Government of India advised the
State to explore the feasibility of amending the Rules. The E
Government, thereupon, issued the Electricity (Supply) (H.P.
Amendment) Ordinance, 1990 which later became Act 10 of
1990. Thereby the age of superannuation for the Chairman
and the Member of the Board was fixed at 65 years. As a
se~uel to the Ordinance and the Act, the respondent was told F
••
that he had ceased to be th~ Member of the H.P. Electricity
Board and consequently the Chairman of the said Board,
having attained the age of more than 65 years. The respondent
questioned that action before the High Court. In appeal by the
State before this Court one of the contentions was.that the G
State could not by stipulating an upper age limit for the
incumbent of a tenure post oust the incumbent. This Court,
however, rejected the contention holding that there was no legal
impediment in the State prescribing an upper age limit even
for a tenure post. This Court observed: H
414 SUPREME COURT REPORTS [2015] 8 S.C.R.
A "We are also unable to accept the arguments advanced
on behalf of the first respondent that for a tenure post no
period can be fixed. Instances are not wanting in this
regard. Therefore, rightly reference is made by Mr. Shanti
Bhushan to Article 224 of the Constitution extract of which
B is given below:-
224. Appointment of additional and acting Judges - (1) If
by reason of any temporary increase in the business of
a High Court or by reason of arrears of work therein, it
C appears to the President that the number of the Judges
of that court should be for the time being increased, the
President may appoint duly qualified persons to be
additional Judges of the Court for such period not
exceeding two years as he may specify.
D
(2) When any Judge of a High Court other than the Chief
Justice is by reason of absence or for any other reason
unable to perform the duties of his office or is appointed
to act temporarily as Chief Justice, the President may
E appoint a duly qualified person to act as a Judge of that
Court until the permanent Judge has resumed his duties.
(3) No person appointed as an additional or acting Judge
of a High Court shall hold office after attaining the age of
F (Sixty- two years). ~
Again, a reference. can be made to Section 8 of the
Administrative Tribunals Act. That Section reads as
follows:-
G Term of Office - The Chairman, Vice Chairman or other
Member shall hold office as such for a term of five years
from the date on which he enters upon his office, but shall
be eligible for reappointment for another term of five
years:
H
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 415
[T.S. THAKUR, J.]
Provided that no Chairman, Vice-Chairman or other A
Members shall hold office as such after he has attained
(a) in the case of the Chairman or Vice- Chairman, the
age 963 of sixty five years, and B
(b) in the case of any other Member; the age of sixty-two
years".
Therefore, where the State has taken a policy decision
to prescribe an outer age limit for the Members or the C
Chairman of the Electricity Board it is perfectly legal."
16. In Nagaland Senior Government Employees
Welfare Association and Ors. vs. State of Nagaland and
Ors. (2010) 7 sec 643 this Court was examining whether a · D
provision prescribing that employees shall retire from public
employment in the State of Nagaland on completion of 35 years
service.from the date of joining or on attaining the age of 60
years whichever is earlier was arbitrary, irrational or violative
of Articles 14 and 16 of the Constitution. It was, inter a/ia, E
contended on behalf of the employees that prescribing a
different basis for retirement from public service for employees
situate similarly was discriminatory. It was argued that
employees who had joined the Government service at an agei F
below 25 years would be asked to retire upon completion of
35 years although they may not have attained the age of 60
years, while those who joined after attaining the age of 25 years
could continue serving till they attained 60 years of age. This
dichotomy was, according to the employees, discriminatory G
and violative of Articles 14 and 16 of the Constitution. The
substance of the contention urged on behalf of the employees
can be gathered from the following passage from the report:
"Mr.. Ram Jethma/ani, teamed senior counsel for the H
416 SUPREME COURT REPORTS [2015] 8 S.C.R.
A appellants submitted that retirement by way of
superannuation in respect of government employees is
permissible only on the basis of age and not on the basis
of length of service. The contention is that retirement by
way of superannuation in respect of government
B employees relates to discharge of an employee on
account of attaining a particular age fixed for such
retirement, which is uniformly applicable to all employees
without discrimination. He submitted that where there is
minimum and maximum age of entry into any service,
c the alternative method of retirement by way of length of.
service would inevitably result in different age of
superannuation of employees holding the same post
depending upon their age of entry to the service and that
would result in manifest violation ofArticle 14 and Article
D
16 of the Constitution; it would also be inconsistent with
the valuable right of a permanent government employee
to continue service t(ll the age of superannuation subject
to rules of compulsory retirement in public interest and
E abolition ofposts."
17. This Court, however, rejected the contention relying
upon the decision of this Court in Yeshwant Singh Kothari
vs. State Bank of Indore [1993 Supp (2) SCC 592]. This
F Court observed:
"The impugned provision that prescribes retirement from
the public employment at the age of 60 years or
completion of 35 years of service, whichever is earlier,
is apparently consistent with the decision in the case of
G Yeshwant Singh Kothari1 and the ratio in that case is
squarely applicable to the case in hand. If 30 years' period
of active service was not held a small period for gainful
employment, or an arbitrary exercise to withhold the right
to hold an office beyond 30 years, having not attained
H
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 417
rr.s. THAKUR, J.]
58 years of age, a fortiori, retiring a person from public A
service on completion of 35 yeaf"S of service without
attaining age of 60 years may not be held to be unjustified
or impermissible.
The impugned provision prescribes two rules of B
retirement, one by reference to age and the other by
reference to maximum length of service. The
classification is founded on valid reason. Pertinently,
no uniformity in length of service can be maintained if
the retirement from public employment is on account of C
age since age of the government employees at the time
of entry into service would not be same. Conversely, no
uniformity in age could be possible if retirement rule
prescribes maximum length of service. The age at the
time of entry into service would always make such D
difference. In our view, challenge to the .impugned
provision based on the aforesaid ground must fail."
18. In Yeshwant Singh's case (supra) also the regulation
prescribed a dual basis for purposes of retirement viz. attaining E
the age of 58 years or completing 30 years of service whichever
was E:larlier. The challenge .to the rule was repelled by this
Court and the provision upheld with the following observations:
"In K Nagaraj and others etc. etc. v. Chief S_f!Cretary of F
Andhra Pradesh, AIR 1985 SC 551 this Courl repelled
a challenge to the reduction of retirement age from 58 to
55 on the basis of the policy of the Government, which
was found not to be irrational or violating recognised
norms of erpployment plan. It was also noticed that not G
to provide for an age of retirement at all would be contrary
to public interest because the State cannot afford the
luxury of allowing its employee to continue in service
after they have passed the point of peak and that rules
of retirement do not take away the right of a member to H .
418 SUPREME COURT REPORTS (2015] 8 S.C.R.
A his livelihood, the only limit is to the right to hold office
till the stated number of years. The provision in the
Regulation in hand for maintaining the age of retirement
at 58 years as before but in the same breath permitting
retirement on the completion of 30 years of service,
B whichever occurs earlier, is in keeping with the policy of
reckoning a stated number of years of office attaining
the crest, whereafter inevitably is the descent, justifying
retirement. In this context 30 years period of active
service is not a small period for gainful employment, or
c an arf:Jitrary exercise to withhold the right to hold an office
beyond thirty years, having not attained 58 years of age."
19. What follows from the above two decisions is that the
number of years an employee actually puts-in before he retires
D from service or the age of the employee may not be the sole
basis for retirement. There can be a dual basis namely number
of years which he puts-in and the age at which he would retire.
Application of such a dual basis for purposes of retirement
may, in certain situations, as noted in Nagaland Senior
E Government Employees's case (supra) and Yeshwant
Singh's case (supra) result in employees falling in the same
category being asked to go out at different ages. For instance,
an employee who joins at the age of 20 under the Rules
F applicable in Nagaland Senior Government Employees's
case (su'pra) and Yeshwant Singh's case (supra) could be
asked to leave after completion of 35 years or 30 years as the
case may be, meaning thereby that he could be asked to go
out from service at the age of 55 years, as in Nagaland Senior
G Government Employees's case (supra) and 50 years as in
Yeshwant Singh's case (supra). In contradistinction, an
employee who joined at the age of 25 years would continue to
serve till he attains the age of 60 years. The challenge to the
provisions sanctioning such dual basi'> for retirement having
H been authoritatively repelled by this Court, we have no
UNION OF INDIA v.A.K. BEHL,AVSM, PHS ETC. 419
[T.S. THAKUR, J.)
hesitation in holding that just because Lt. Generals and A
equivalent rank holders are allowed to continue in certain
situations upto 61 years does not bring about any discrimination
between such officers and others who complete their two years
tenure by the time they reach the age of 60 years. At any rate
the grievance assuming there is any legal basis for the same B
could be made by such of the officers as were not allowed to
complete their tenure just because they had completed 61 years
of age. They could perhaps argue that the tenure rule could
not be controlled or conditioned by the requirement that the
incumbent does not go beyond 61 years of age, although the C
decision in Kaliash Chand Mahajan's case (supra) is a
complete answer to the same. No such grievance has been
made by those who are asked to leave before the completion
of tenure just because they have completed 61 years of age. D
The grievance of the respondents who had completed their
tenure of two years and 60 years of age was in that view
misplaced. The Tribunal was clearly in error in interfering with
the provisions made by the government prescribing the age
of retirement and the orders of retirement. issued by the E
competent authority.
20. We may, before parting, deal with the decision of this
Court in Dr. L.P. Agarwal vs. Union of India & Ors. (1992)
3 SCC 526, reliance whereupon has been placed by the F
Tribunal in support of its conclusion that the post of Lt. General
and equivalent in AFMS arfl not tenure posts.
21. In Dr. Agarwal's case (supra) Dr. Agarwal was
appointed as Directpr of All India Institute of Medical Sciences
(AllMS) for a period of five years or till he attains the age of 62 G
years whichever is earlier. He was, during the continuance of
the tenure, retired from the service in public interest by giving
him three months' pay and allowances, in lieu of notice. The
said order was challenged by Dr. A@arwal in a writ petition H
•
420 SUPREME COURT REPORTS [2015] 8 S.C.R.
A before the High Court. The writ petition was dismissed by the
High Court holding that the removal order did not suffer from
any illegality. In an appeal filed by Dr. Agarwal before this Court,
this Court took the view that the post of Director being a tenure
post under the Recruitment Rules to which he was appointed
B by way of direct recruitment, the tenure could not be cut short
by bringing in the concept of superannuation or premature
retirement which expressions were alien to a tenure post. This
Court also held that although, according to proviso to
Regulation 30(2) of the Regulations, there was an upper age
C limit of 62 years fixed for the incumbent yet. the appointment
of Dr. Agarwal was for a period of five years, the appointment
did not cease to be a tenure post. This Court held that even
an outsider could be selected and appointed to the post of
D Director, but, any such employee could not be prematurely
removed by curtailing his tenure. This Court held that the
concept of superannuation applied to an appointment like the
one made in favour of Dr. Agarwal. The decision of this Court
in Dr. Agarwal's case (supra), does not, in our opinion, help
E the respondents. The present are not the cases where services
of the respondents have been terminated during the time the
respondents were enjoying their tenure of two years as was
the decision in Dr. Agarwa/'s case (supra). It is also not a
case where a lateral entry was possible for appointment as Lt.
F General or equivalent inAFMS. The only additional feature to
the concept of tenure, as applicable to the rank of Lt. General
and equivalent, is that in case th.e officers pick-up their ranks
relatively later in life their tenure would be terminated by the
time they attain the age of 61 years. The factual matrix and the
G Rules on the subject as applicable in the case at hand are
totally different from what was the position in Dr. Agarwal's
case (supra).
22. In the result these appeals succeed, the impugned
H orders passed by the Armed Forces Tribunal are, hereby, set
UNION OF INDIA v. A.K. BEHL, AVSM, PHS ETC. 421
[T.S. THAKUR, J.]
aside and OA Nos.296 of 2014 and 250 of 2014 filed by the A
respondents dismissed but in the circumstances of the case
without any orders as to costs.
Kalpana K. Tripathy Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Tenure appointment"Sign in to search