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P. Radhakrishna Naidu and ors. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1977SC854; 1959CriLJ1497; (1977)1SCC561; [1977]2SCR365; 1977(1)SLJ211(SC); 1977(9)LC84(SC)
ActsConstitution of India - Articles 14, 16, 32, 226, 311 and 359(1)
AppellantP. Radhakrishna Naidu and ors.
RespondentGovernment of Andhra Pradesh and ors.
Cases ReferredSee Hukumchand Mills Ltd. v. The State of Madhya Bharat and Anr.
Excerpt:
service - compulsory retirement - articles 14, 16, 32, 226, 311 and 359 (1) of constitution of india - petitioners challenged compulsory retirement orders as violative of article 16 - order specifically mentioned that compulsory retirement is made in public interest - the state affidavit evidence is that petitioners are governed by andhra pradesh liberalised pension rules, 1961 - rules confer power on authority to require government servant to retire in public interest from service on which he completes 25 years of qualifying service or attains 50 years of age - state government has constituted review committee to review order of retirement and to revoke or modify same if necessary - petitioners are not justified in applying to court - court further held that person who complains about..........of sub-rule (2) of rule 3 of the andhra pradesh liberalised pension rules, 1961/sub-rule (1) of rule 2/rule 3 read with sub-rule (1) of rule 2 of the andhra pradesh government servants' premature retirement rules, 1975, the commissioner of police directs that the person mentioned in the order shall retire in public interest from service with effect from the date of service of the order and that he shall be paid a sum equivalent to the amount of pay and allowances for 3 months in lieu of notice calculated at the same rate at which he was drawing immediately before the date on which the order is served on him. 4. the government of andhra pradesh passed a general order dated 28 november, 1975. in that government order it is stated that in several government orders recited therein, orders.....
Judgment:

A.N. Ray, C.J.

1. These writ petitions challenge the compulsory retirement of the petitioners. The petitioners were retired compulsorily under order dated 23 September 1975.

2. The order dated 23 September 1975 in the case of the first petitioner in writ petition No. 97 of 1976 may be referred to as typical of orders in the case of other petitioners. This order stated first that the said first petitioner completed 25 years of qualifying service on 24 July, 1975. The order next stated that the Commissioner of Police being the authority to make a substantive appointment to the post of Inspector of Police is of opinion that it is in public interest to retire the persons mentioned in the order.

3. The order thereafter states that in exercise of the powers conferred by Clause (a) of Sub-rule (2) Sub-rule (2) A read with Clause (a) of Sub-rule (2) of Rule 3 of the Andhra Pradesh Liberalised Pension Rules, 1961/Sub-rule (1) of Rule 2/Rule 3 read with Sub-rule (1) of Rule 2 of the Andhra Pradesh Government Servants' Premature Retirement Rules, 1975, the Commissioner of Police directs that the person mentioned in the order shall retire in public interest from service with effect from the date of service of the order and that he shall be paid a sum equivalent to the amount of pay and allowances for 3 months in lieu of notice calculated at the same rate at which he was drawing immediately before the date on which the order is served on him.

4. The Government of Andhra Pradesh passed a general order dated 28 November, 1975. In that Government order it is stated that in several Government orders recited therein, orders for the premature retirement of the Government servants in public interest had been issued in those cases after giving 3 months previous notice in writing or after giving 3 months salary in lieu of such notice. The 28 November, 1975 order next states that an instance came to the notice of the Government that a Government servant after compulsory retirement as per orders mentioned above was re appointed in a cooperative institution as executive officer. Though the re-appointment of the incumbent was in the Semi-Government Institution, his re-appointment was stated to be irregular and contrary to the intention of the Government in retiring corrupt and inefficient persons. The Government order directed that all the Departments of the Secretariat, all Heads of Department and all Collectors etc., should ensure that on no account persons who are retired prematurely in pursuance of orders issued by the Government should be re-instated or re-appointed in any Semi-Government or Quasi-Government Institutions.

5. The petitioners challenged the compulsory retirement orders as violation of Article 16. The petitioners also challenged the Government order forbidding re-appointment of compulsorily retired persons in Semi Government or Quasi-Government Institutions as a stigma within the meaning of Article 311.

6. At the outset it should be stated that enforcement of violation of Article 311 does not come within the scope of Article 32. The challenge to the Government order forbidding re-appointment of compulsorily retired persons as a stigma within the meaning of Article 311 is, therefore, not an infringement of fundamental rights.

7. The petitioners challenged the orders of compulsory retirement as an infraction of Article 16. It is not known how the petitioners have been discriminated against other persons because no such person is impleaded as a respondent and there are no allegations to that effect.

8. During the subsistence of the Presidential Order issued under Article 359(1) it is not competent to invoke Article 14 for enforcement of any fundamental rights. Articles 14 and 16 are to a certain extent overlapping in regard to rights of equality.

9. Equality of opportunity for all citizens in matters relating to employment is not violated by provisions for compulsory retirement of Government servants in public interest after the completion of a certain period of qualifying service or attainment of a certain age. This Court has consistently taken the view that compulsory retirement does not involve any civil consequences. See Union of India v. Col. J.N. Sinha and Anr. : (1970)IILLJ284SC and Tara Singh etc, v. State of Rajasthan and Ors. : [1975]3SCR1002 .

10. A writ petition under Article 32 can lie only for infringement of fundamental rights. See D. Narayana. Murthy and Ors. etc. v. Stale of Andhra Pradesh etc. 1971 Su. S.C.R 741. The General order for compulsory retirement is applicable to all employees. The individual application of the order in a given case cannot offend Article 16. It cannot be suggested that an order for compulsory retirement in the case of one person is denial of equality of opportunity relating to employment because another person in employment has not been compulsorily retired.

11. Article 16 does not prohibit the prescription of reasonable rules for compulsory retirement. A question arose in T.G. Shivacharana Singh v. State of Mysore : (1967)IILLJ246SC whether a rule providing for compulsory premature retirement from Government service violates Article 16. This Court said that the law in relation to the validity of rules permitting compulsory premature retirement from Government service is well-settled by prior decision of this Court which does not require to be reconsidered. The ratio is that the provision for compulsory retirement in public interest applies to all Government servants and as such it is not open to challenge either under Article 14 or under Article 16.

12. In ShyamLal v. State of (U.P.) : (1954)IILLJ139SC the appellant had been compulsorily retired. The order was challenged as violating Article 311. This Court held that there is no stigma involved in compulsory retirement. Compulsory retirement does not amount to a dismissal or removal and, therefore, it is not within the vice of Article 311.

13. One of the petitioners, namely, the first in writ petition No. 97 of 1976, challenged the order of compulsory retirement on the ground that he did not complete 25 years of service. He alleged that he was appointed on 10 September, 1952 and, therefore, the order of compulsory retirement dated 23rd September, 1975 is bad. The State on the other hand contends that the correct date of appointment of the first petitioner is 25 July, 1950. In writ petitions the Court does not go into discussed questions of fact, like age as in the present case. In Tata Engineering and Locomotive Company Ltd. v. Assistant Commissioner of Commercial Taxes and Anr. : [1967]2SCR751 this Court said that the exercise of jurisdiction in writ matters is not desirable if facts have to be found on evidence. This Court has also said that here may be exceptions. On such exception is when action is taken under an invalid law or arbitrarily without the sanction of law. In the present case there is no aspect of either kind.

14. Further it has to be observed that in the present writ petitions several petitioners have combined as petitioners. Their causes of action are separate and independent. Each is alleged to be an instance of individual assertion of constitutional right in regard to facts and circumstances of each case. Where several petitioners combine fur alleged violation of their rights, it is difficult for court to go into each and every individual case. In the present case the affidavit evidence on behalf of the State is preferred and, therefore, the first petitioner cannot agitate the question of disputed age.

15. In Krishna Chandar Noyar v. Chairman, Central Tractor Organization Ors. : (1963)ILLJ661SC this Court considered the imposition of a ban against one man, namely, the petitioner in that case from being ever taken into Government service. He was a temporary servant and his services were terminated by giving him pay and allowances in lieu of notice for one month. This Court found that case to be one of arbitrary imposition of ban against the employment or appointment of the individual to an office.

16. Krishna Chander's (7) case (supra) is of no aid to the petitioners is the present case. The ban is not challenged here. In Krishna Chander's (7) case (supra) the ban was challenged as an arbitrary act against one individual. In the present case the ban is not against anyone individually but it is not to employ in Quasi-Government service or Semi-Government service, persons who are compulsorily retired from Government service. The ban has a reasonable basis and has some relation to the suitability for employment or appointment to an office. When compulsory retirement is made in public service it will be an exercise in futility if Government servants who are compulsorily retired are again employed in Government service or Semi Government service or Quasi-Government service.

17. The petitioners challenged the orders for compulsory retirement also on the ground that reference to so many rules was made and, therefore, it was not possible for the petitioners to know under what provision the orders for compulsory retirement had been made. It is not open to the petitioners to challenge the orders on the ground. The orders specifically mention that compulsory retirement is made in public interest. The State affidavit evidence is that petitioners No. 4 and 5 in writ petition No. 97 of 1976 are governed by Hyderabad Civil Service Regulations and the rest of the petitioners are governed by Andhra Pradesh Liberalised Pension Rule, 1961. Rule 292 of the Hyderabad Civil Service Regulations Rules and Sub-rule (2)(a) of Rule 3 of the Andhra Pradesh Liberalised Pension Rules, 1961 are similar. Both the rules confer power on the authority to require Government servant to retire in the public interest from service on the date on which he completes 25 years of qualifying service or attains 50 years of age. Rule 2(1) of the Andhra Pradesh Government Servant's Premature Retirement Rules, 1975 is also worded in similar language. The wording of the rules relating to retirement in public interest is identical in all the three sets of rules mentioned above.

18. The mere fact that three different rules were mentioned in the impugned orders without scoring out the rules which are not applicable to a petitioner in one case cannot be any grievance for the reason that in each case the relevant rule is identically worded. The omission on the part of the officers competent to retire the petitioners is not scoring out the rules which are inapplicable to a particular individual does not render the order bad. The reason is that one of the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the applicability of the rule mentioned. Further this Court has taken the view that a wrong reference to power will not vitiate any action if it can be justified under some other powers under which the Government can lawfully do the act. See Hukumchand Mills Ltd. v. The State of Madhya Bharat and Anr. : [1964]52ITR583(SC) . In the present case the valid rule is mentioned in each case.

19. The Government of Andhra Pradesh has by an administrative order constituted a review committee for each department to review orders of retirement in public interest and to revoke and modify the same, if necessary. The petitioners made representations to the review committee. The petitioners yet choose to some to this Court. The petitioners are not justified in applying to this Court.

20. The petitioners obtained rules in these two caser during the vacation. A similar matter came before this Court on April 29, 1976 and this Court did not issue any rule. If the attention of this Court had been drawn to that order, perhaps no rule would have been issued in these matters.

21. The Andhra Pradesh Administrative Tribunal Order 1975 confers power on the Tribunal to exercise jurisdiction with respect to appointment, allotment or promotion and other conditions of service of such persons. It is open to a person who complains about an order of compulsory retirement to approach the Tribunal in a given case.

22. For the foregoing reasons, the writ petitions are dismissed. There will be no order as to costs.


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