CHANDRACHUD, C.J. - (1.) THE Judgment of the court was delivered by
(2.) IN the elections held to the Legislative Assembly of Andhra Pradesh in January 1983, a new political party called Telugu Desam was swept to power. It assumed office on 9/01/1983. On 8/02/1983 an order (G.O.Ms. No. 36) was issued by the government of Andhra Pradesh stating that it had decided to reduce the age of superannuation of all government employees, other than in the Last Grade Service, from 58 to 55 years. Two notifications issued in exercise of the power conferred by the proviso to Article 309 read with Article 313 of the Constitution were appended to that order. The relevant Fundamental Rules were amended by the first notification, while the corresponding rules of the Hyderabad Civil Services Rules were amended by the second notification. By these notifications, every government servant, whether ministerial or non-ministerial but not belonging to the last grade service, who had already attained the age of 55 years was to retire from service with effect from 28/02/1983. Speaking to the government employees in the Secretariat premises the next day, the Chief Minister justified the reduction of the retirement age from 58 to 55 years on the ground that it had become necessary to provide greater employment opportunities to the youths. Over 18,000.00 government employees and 10.000 public sector employees were superannuated as A result of the order. These Writ Petition were filed by the Andhra Pradesh government employees to challenge the aforesaid order and the notifications on the ground that they violate Articles 14, 16, 21 and 300-A of the Constitution. The case of the petitioners as laid in the Writ Petition is that there was no basis at all for reducing the age of retirement from 58 to 55 : that the age of retirement was increased from 55 to 58 by the government of Andhra Pradesh by a notification dated October 29, 1079 and nothing had happened since then to justify reduction of the age of retirement again to 55: that providing employment opportunities to the youths has no relevance on the question of fixing the age of retirement: that the government had exercised its power arbitrarily without having regard to factors which are relevant on the fixation of the age of retirement: that the government had acted unreasonably in not giving any previous notice to the employees which would have enabled them to arrange their affairs on the eve of retirement; that the government was estopped from reducing the age of retirement to 55, since the employees had acted on the representation made to 530 them in 1979 by increasing the age of retirement from 55 to 58; that as a result of the increase in the age of retirement from 55 to 58 years in 1979, a vested right had accrued to the employees, which could be taken away, if at all, only from future entrants to the government service; that retirement of experienced and mature persons from government service will result in grave detriment to public services of the State; and that, the decision of the government is bad for a total non-application of mind to the relevant facts and circumstances bearing on the question of the age of retirement, like increased longevity. The petitioners aver that the government had not even considered the enormous delay which would be caused in the payment of pensionary benefits to employees who were retired from service without any pre-thought. A counter-affidavit was filed on behalf of the State of Andhra Pradesh by Shri R. Parthasarathy, Joint secretary in the Finance Department of the State, at the stage of admission of the Writ Petition. It is sated in that affidavit that the recommendation of the one-man Pay Commission appointed by the government of Andhra Pradesh, after which the age of retirement was increased to 58 in 1979, has no relevance to the present decision of the State to reduce the age of retirement; that the fact that the average expectation of life is about 70 years is not a ground for increasing the age of retirement of government employees; that the general trend was for reducing the age of retirement: that the governments of Kerala and Karnataka had reduced the age of retirement of their employees to 55, though it was earlier increased from 55 to 58: that in some States in India the age of retirement is 55 and not 58; that the present decision was taken by the government in order to fulfil its commitment that it will take welfare measures in order to improve the lot of the common man, and. particularly, in order to afford opportunities to qualified and talented unemployed youths whose number was increasing enormously due to expansion of educational facilities; that the government employees were stagnated in the lower positions due to the increase in the age of retirement from 55 to 58; and that, the present measure was intended to have a salutary effect on the creation of incentives to the deserving employees. The affidavit says further that the question as regards the age of retirement is a pure question of governmental policy affording no cause of action to the petitioners to file the Writ Petition. The affidavit asserts that the government had reviewed the situation arising out of the enhancement of the age of retirement from 55 to 58 in 1979 and that it was revealed that on account of the enhancement, of the age of retirement, the chances of promotion of the service personnel had deteriorated. resulting in widespread frustration and unemployment. The 531 convenience alleged by the petitioners in the matter of payment of their pension and other retirement benefits was imaginary, since the government was making extensive arrangements to disburse such benefits expeditiously. By the counter-affidavit, the government of Andhra Pradesh denied that any of the provisions of the Constitution were violated by the impugned decision to reduce the age of retirement.
(3.) ANOTHER affidavit was filed on behalf of the government of Andhra Pradesh, after the rule nisi was issued in the Writ Petition. That affidavit is sworn by Shri A.K. Sharma, Deputy secretary to government of Andhra Pradesh, Finance and Planning. It is stated in that affidavit that the question of the age of superannuation was not referred to the one-man Pay Commission of Shri A. Krishnaswamy, which was appointed by the Andhra Pradesh government on 3/11/1977; that the recommendation made by the Pay Commission was casual and was not based on relevant criteria; that as many as 12,04,008 educated youths were left without employment on 30/09/1979 as a result of the unwarranted increase in the age of superannuation from 55 to 58: that the number of unemployed youths had grown to 17,84,69 9/12/1982; and that, the age of retirement was reduced because it is the duty of the State, within the limits of its economic capacity and development to make effective provision to solve the unemployment problem. The rest of the averments in this affidavit are on the same lines as in the affidavit of Shri R. Parthasarathy. Rule nisi was issued on the Writ Petition by this court on 25/02/1983. The Legislative Assembly of Andhra Pradesh was prorogued on 9/04/1983. On the very next day, that is, on April 10 the Governor of Andhra Pradesh promulgated Ordinance No. 5 of 1983 called "The Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance". The Ordinance was passed "to regulate the recruitment and conditions of service of persons appointed to public services 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". We are not concerned in these Writ Petition with Clauses 3 to 9 of the Ordinance which mostly regulate conditions of service. Clause 10(1) of the Ordinance prescribes that every government employee, not being a workman and not belonging to last grade service shall retire from service on the afternoon of the last day of the month in which he attains the age of 55 years. Clause 10(2) provides that 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 attains the age of 60 years. Clause 10(3) provides that every workman belonging to the Last Grade Service or employed 532 on a monthly rate of pay in any service notified as inferior, shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Workmen belonging to ministerial service or any service other than the Last Grade Service notified as inferior have to retire on the afternoon of the last day of the month in which they attain the age of 55 years. By Clause 15, all rules and regulations made under the proviso to Article 309 or continued under Article 313 of the Constitution or made under any other law for the time being in force, governing the recruitment and conditions of service of the government employees, continue to be in force insofar as they are not inconsistent with the provisions of the Ordinance. Clause 16 of the Ordinance provides that no amendment to the Fundamental Rules shall be deemed to be invalid merely by reason of the fact that the proviso to Rule 2 of the Fundamental Rules laid down that the said rules shall not be modified or replaced to the disadvantage of any person already in service. It provides further that all amendments made to the Fundamental Rules and particularly the amendments made by the notification dated 8/02/1983. shall be and shall be deemed always to have been made validly and shall have effect notwithstanding anything to the contrary contained in the proviso to Rule 2 of the Fundamental Rules as if the Ordinance was in force on 8/02/1983. Clause 16 of the Ordinance declares that every amendment made before or after the commencement of the Ordinance to the Fundamental Rules and the Hyderabad Civil Services Rules, shall be and shall be always deemed to have applied to all government employees, whether appointed before or after the amendment. Clause 18 of the Ordinance provides by sub-clause (1) that the proviso to Rule 2 of the Fundamental Rules shall be and shall be deemed always to have been omitted. Rule 56 of the Fundamental Rules is omitted by Clause 18(ii) while Rule 231 of the Hyderabad Civil Services Rules is omitted by Clause 19 of the Ordinance. The age of retirement was previously governed by these two rules.;