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Kerala Gazetted Officers Front and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1987)IILLJ455Ker
AppellantKerala Gazetted Officers Front and ors.
RespondentState of Kerala
Cases ReferredNagaraj v. State of A.P.
Excerpt:
.....age has been increased uniformly by the government of india as well as by almost all the state governments from 55 to 58 etc. but, he was not given the option to go over to the agricultural university, with the result that he has to retire at the age of 55 years, whereas juniors with lesser attainments enjoy the benefit of continuance in service upto 60 years. in the latter decision, the supreme court observed,-the problem of unemployment in our country is undoubtedly a complex problem and opinions may differ how best to solve it. we would only like to add that the question of age of retirement should always be examined by the government with more than ordinary care, more than the state government has bestowed upon it in this case. therefore, it is vital from the point of view.....sivaraman nair, j.1. petitioner's in these original petitions are employees of the state government or their representative associations. such government servants are those who are to retire from service on superannuation on the attainment of 55 years of age as provided in rule 60(a) part i, kerala service rules. they seek revision of their age of retirement from 55 years to 58 or 60 years. incidentally they also pray that the respondent state may be directed to continue them in service even after they attain the age of superannuation in accordance with rule 60(a), part i, kerala service rules.2. some of the principal grounds urged by petitioners are that the age of superannuation has been refixed as 60 for teachers and academics in all the universities and that the benefit of such.....
Judgment:

Sivaraman Nair, J.

1. Petitioner's in these Original Petitions are employees of the State Government or their representative associations. Such Government servants are those who are to retire from service on superannuation on the attainment of 55 years of age as provided in Rule 60(a) Part I, Kerala Service Rules. They seek revision of their age of retirement from 55 years to 58 or 60 years. Incidentally they also pray that the respondent State may be directed to continue them in service even after they attain the age of superannuation in accordance with Rule 60(a), Part I, Kerala Service Rules.

2. Some of the principal grounds urged by petitioners are that the age of superannuation has been refixed as 60 for teachers and academics in all the Universities and that the benefit of such revised age of retirement has been extended to Coaches, personnel in the Physical Education Department, Instructors etc. The age of retirement of members of the Kerala Public Service Commission is 62 years, in Nationalised Banks 58 years, in Statutory Boards and Corporations 58 to 60 years, for Class IV employees appointed prior to 7th April 1970, 60 years, for NMR workers on absorption into regular establishment 58 years, and State Service Officers promoted to IAS cadre 58 years. Reference is also made to the recommendations made by the Central Pay Commission, whereby the age of retirement is proposed to be enhanced to 60 years. Specific reference is made to Ext. P1, Ordinance 63 of 1984, amending Section 42(4) of the Kerala Agricultural University Act enhancing the age of retirement from 55 to 60 years for Deans, Directors, Librarians and Teachers under the University, whereas the age of retirement of other staff is retained as 55 years. Clause 10 of the Kerala University First Statutes, 1977 prescribing the age of retirement of University Teachers as 60 years and Exts. P2, P3 and P4 orders extending that benefit to the University Coaches and personnel in the Physical Education Department in Calicut University are also referred to. Exts. P5 and P6, Press Reports dated 26th April, 1985 about the statement of the Chief Minister and Ext. P7 News Report dated 21st May, 1985 regarding the statement of the then Minister for Finance, seemingly supporting the demand for refixation of the age of retirement are also relied upon. Ext. P8 memorandum submitted in January, 1985 by the Kerala Gazetted Officers Association and Ext. P9 representation dated 18th May 1985 submitted by the Kerala Gazetted Officers Front have urged the Government to refix the age of retirement at 60 years. Technical Officers of the Animal Husbandary Department and former employees of the Agricultural Department who were absorbed into Kerala Agricultural University are said to be continuing in service beyond 55 years, the former on re-employment basis and the latter by virtue of their absorption into Kerala Agricultural University without ascertaining the option of the senior officers. The 8th petitioner in O.P. 2 No. 6541 of 1986 points out that he has to retire at 55 years, whereas many of his juniors in Ext. P10 seniority list, who were absorbed into Kerala Agricultural University have got the benefit of continuance in service upto 60 years. Reference 3 is made to Ext. P10 and Ext. P11 orders extending the age of retirement of Livestock and Veterinary Surgeons after retirement at the age of 55 years. Exts. P 12 to P 14 are similar orders of re-employment of personnel who retired from the Labour Department. On the basis of these facts, petitioners submit that the age of retirement has to be refixed. Age of retirement was fixed as 55 years at a time when the maximum age limit for entry into service had been fixed as 25 years. The period of qualifying service necessary for earning full pension as provided in the Kerala Service Rules is 30 years. It is stated that with the re fixation of the maximum age limit for entry into service as 35 years, many may not be able to complete the qualifying service to earn full pension. Average life-span which was 38 years at the time when the age of retirement was fixed as 55 years is now 66 years, by reason of the rapid strides of progress in health-care and the consequent increase in longevity of the people. Average number of Government employees who are to retire at the age of 55 years is said to be 4200. Each retired employee has to be paid an average of Rs. 85,000/. It is, therefore, stated that an amount of Rs. 35.7 crores per year can be saved if the age of retirement is extended by one year. Extension of the age of retirement by three years is said to result in an average saving of Rs. 300 crores. It is asserted on the basis of these assumptions, that if such amounts as can be saved are utilised for intensive development activities, employment potential far in excess of the employment opportunities which may be generated consequent on retirement can be achieved.

3. Petitione in O.P. No. 8074 of 1986 submits that the relevant factors which are to be taken into account for determination of the age of retirement are:

(1) The longevity of human life.

(2) The life expectancy.

(3) The ability of Government servants to contribute useful and productive work even at the age of 55 and more.

(4) Increase in employment opportunity in industrial sector both in public and private sectors.

(5) The negligible number of posts that will fall vacant from year to year for 3 years if the age of retirement is increased to 58 years.

(6) The fact that retirement age has been increased uniformly by the Government of India as well as by almost all the State Governments from 55 to 58 etc.

Just over 9000 is said to be the number of Government employees retiring each year on an average. Retention of the age of retirement will therefore create only that number of job opportunities to the new generation. Reference is made to G.O. Ms. 91/66/Home dated 5th March 1966, whereby the age or retirement f was enhanced from 55 to 58 and its reduction again to 55 years as per G.O. (P) 176/66/Fin. dated 4th May 1967. The enhancement in age of retirement, it is claimed, was a step in the right direction and based on relevant considerations, whereas its reduction was compelled by political considerations. It is stated that during the last 20 years, age of superannuation had been enhanced from 55 to 58 in most of the States, excepting Kerala and Jammu and Kashmir, in spite of the fact that the maximum life-expectancy in Kerala is the highest, where the average now stands at 68 as compared to 52 to 54, which is the all India average. Petitioners submit that refusal to realistically refix the age 2 of superannuation is violative of Article 14 of the Constitution of India as understood and interpreted in the decisions of the Supreme Court reported in : (1974)ILLJ172SC . Reference is also made to the decision of the Supreme Court in Nagaraj's case 1985 I LLJ 444. Petitioners, therefore, seek the issue of a writ of mandamus directing the State to review and reconsider the age of retirement from 55 years to 58 or 60 years, and to effect consequential amendments in Rule 60, Part 1 of the Kerala Service Rules.

4. In O.P. No. 7678 of 1986, petitioner is an employee of the Agriculture Department. It is submitted that he has high academic attainments and could easily have gone over to the Agricultural University, in which many of his juniors were absorbed. He could have continued till the age of 60 years in that event. But, he was not given the option to go over to the Agricultural University, with the result that he has to retire at the age of 55 years, whereas juniors with lesser attainments enjoy the benefit of continuance in service upto 60 years. These are the salient features. There are of course individual variations of facts in each of the Original Petitions.

5. The grounds which the petitioners urge are mainly that it is essential to refix the age of retirement, which was initially prescribed decades ago, in view of the tremendous changes in all the relevant factors which have taken place during the last about 20 years. It is submitted that the age of retirement which was fixed at 55 years decades ago requires reconsideration in view of the changed circumstances. The age of retirement fixed in the Universities, National Banks, Statutory Corporations and Authorities etc are referred to in this connection. Retention of 55 years as the age of retirement is said to be discriminatory in these circumstances. Refusal to take into account the increase in longevity, the capacity of Government employees to render useful service at the peak period of their efficiency from 50 to 60 years of age and the saving which is likely to be effected, if the age of retirement is extended by three more years, is said to be manifest refusal to consider relevant factors constituting violation of Article 14 of the Constitution of India. Prescription of different ages as age of superannuation of employees who belonged to the same service is also said to be violation of Article 14 of the Constitution of India. It is also their case that the only factor which stands in the way of refixation of the age of superannuation is the possibility of additional job opportunities to new candidates if the age of retirement is fixed at a comparatively lower level.

6. The validity of Rule 60(a), Part I, Kerala Service Rules was upheld by a Full Bench of this Court in N. Srinivasan v. State of Kerala 1968 II LLJ 233. Raman Nayar J., as he then was, while dealing with the reasonableness of the rule reducing the age of retirement from 58 to 55 years, stated as follows at p. 236:

The adequacy of the reason which prompted the re-amended rule is something which the court cannot go into; nor indeed as we shall presently show, its relevance. We would, however observe that the public weal cannot be an irrelevant consideration in making rules under Article 309 and the provision of opportunities to employment is a duty enjoined on the State by the Directive Principles in Part IV of the Constitution.

These very sentiments find their echo in the decision of the Supreme Court in Union of India v. J.N. Sinha 1970 II LLJ 284, wherein the Court had to deal with the compulsory retirement of a Government employee on attaining 50 years of age. The court observed at page 288:

Under the existing system, there is no uniform retirement age for all Government servants. The retirement age is fixed not merely on the basis of the interest of the Government servant, but also on the requirement of the society.

7. In the matter of prescription of age of superannuation the Supreme Court had held in State of Bombay v. Subhag Chand M. Dossi : [1958]1SCR571 , Balakotia v. Union of India : [1958]1SCR1052 , Dilip Singh v. State of Punjab : 1953CriLJ1465 , Motiram Deka v. G.M.N.E.F. Rly. 1964 II LLJ 467, B.N. Mishra v. State : (1966)ILLJ45SC and T.S. Mankad v. State of Gujarath : [1970]1SCR244 , that it was competent for the State to provide for retirement after a reasonably long period of service, but provision for premature retirement without providing for a reasonable period of service would amount to removal from service offending Article 311 of the Constitution of India. The following passage from Motiram Deka's case (supra) at Page. 488 will clarify the position:

We think that if any rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that rule would be invalid and the so called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of Article 311(2).

The question which falls for consideration in this batch of Original Petitions is whether the petitioners have made out such circumstances as would indicate at least prima facie case for reconsideration of the decision of the Full Bench in Srinivasan's case (supra) and whether it can be successfully urged that Rule 60(a) prescribing 55 years of age as the age of superannuation has become unreasonable by reason of the change of circumstances during the last about 20 years.

8. The decided cases do not seem to lend any support to the petitioners on either of these two submissions. In B.N. Mishra v. State of U.P. 1966 I LLJ 45, the Supreme Court upheld the reduction of the age of retirement from 58 to 55 years. It was observed at page 49:

We have not been shown any provision which takes away the power of the Government to increase or reduce the age of superannuation.

In B. Narayana Moorthy v. State of A.P. 1971 SLR 888, and Lakshmana Rao v. State of Mysore 1975 II LLJ 87, the Supreme Court had to deal with rules enacted by the Andhra Pradesh and Karnataka Governments reducing the age of retirement from 60 to 55 and 58 to 55 years respectively. The decision in B.N. Mishra (supra) was followed in those cases. In the latter decision, the Supreme Court observed,-

the problem of unemployment in our country is undoubtedly a complex problem and opinions may differ how best to solve it. But that would not raise any question of fundamental right with which alone we are concerned in these proceedings.

The latest in the series of decisions dealing with reduction of the age of retirement is Nagaraj v. State of A.P., (supra). After a detailed consideration of the various decisions, reports and recommendations of Pay Commissions, Employment Policy in the Sixth Five Year Plan 1980-85 and the explanations of the State Government of Andhra Pradesh for reducting the age of retirement from 58 to 55 years, the court observed at P. 456 of 1985 I LLJ 444:

On the basis of this data, it is difficult to hold that in reducing the age of retirement from 58 to 55, the State Government or the Legislature acted arbitrarily or irrationally. There are precedents within our country itself for fixing the retirement age at 55 or for reducing it from 58 to 55. Either the one or the other of these two stages is regarded generally as acceptable, depending upon the employment policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the legislature is shown to violate recognised norms of employment planning, it would be possible to say that the policy is irrational since, in that event it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominantly by that consideration, it cannot be struck down as arbitrary or irrational. We would only like to add that the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation of age of retirement has minute and multifarious dimensions which shape the lives of citizens. Therefore, it is vital from the point of view of their well-being that the question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital for the welfare of the citizens is of necessity, vital for the survival of the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose.

9. It is evident that it has not been held so far that fixation of 55 years as the age of superannuation for Government employees is unreasonable and arbitrary in any of the decisions. The consensus seems to have been that it is one of the reasonable and possible alternatives. The petitioners have had a fairly long period of service of 25 to 30 years before superannuation. The pleadings indicate that such persons have now to make way for younger persons who are qualified but unemployed. How far the complex problem of unemployment could be tackled effectively by providing 4200 to 9000 jobs per year (12,600 to 27,000 for the 3 years period) and what other methods can be adopted to do better are all matters of policy and expediency for the State Government. It may perhaps be that the age of superannuation can as well be 58 years, since there are many circumstances in favour of that view, just as there are quite a few in support of the contrary view also. Choice out of such reasonable policy alternatives is not for the Courts, it is for the executive.

10. The following observations of the Supreme Court in Nagaraj's case (supra) at p. 456 of 1985 I LLJ 444 seem to be relevant in this connection:

It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the legislature is shown to violate recognised norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominantly by that consideration, it cannot be struck down as arbitrary or irrational1.

Even as late as in 1985, the Supreme Court found it difficult to hold that 55 years as age of retirement was unreasonable. On the same materials, it is now difficult to hold that 58 or 60 years and not 55 years is the reasonable age of retirement of Government employees.

11. It is true that the State Government Officers who were promoted to Indian Administrative Service retire at the age of 58, the University Teachers retire at the age of 60 and the employees of Nationalised Banks and State owned Corporations and Boards retire at the age of 58 to 60 years. It is also true that the members of the Public Service Commission and Judges of High Courts retire at the age of 62. The fact that for different services, different ages of retirement have been prescribed is no reason why such fixation of the age of superannuation in the case of Government employees as 55 years shall be held to be unreasonable or arbitrary. I need only refer to the decisions reported in (1968) 2 SLR 718 and (1973) 1 SLR 755 in this regard.

12. The fact that the employees of the Animal Husbandry Department and the Labour Department and many other individual employees are retained in service beyond the age of 55 years, on the basis of re-employment or otherwise, also do not justify the submission that the retirement at the age of 55 years is discriminatory. Almost the same question arose for consideration in (1965) 1 SCR 693. Dealing with almost the same contentions it was observed:

Now it cannot be urged that if Government decides to retain the services of some public servants after the 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 arisen on account of exigencies of public service.

13. In the present case, Exts. P10(a) and P11 specify the reason for re-employment of technical personnel belonging to the Animal Husbandry Department viz., that there were no qualified persons for appointment. I have not been told by any counsel appearing for the petitioners that it is an incorrect reason. The retention of retired employees in the exigencies of service on re-employment terms after the age of 55 years cannot, therefore, be used to sustain the attack on the retirement of other Government employees on superannuation at the age of 55 years. The fixation of the age of retirement differently in other public organisations like Universities, Statutory Authorities, Boards, Nationalised Banks etc., also cannot sustain the submission of the petitioners that the retention of the age of 55 years as the age of retirement of Government employees is discriminatory.

14. We should remember that the problem of unemployment in our country is a complex problem and the opinions may differ as to the manner in which that has to be handled. Practical considerations of policy and expediency should play a major role in dealing with it. The only aspect which this Court can consider is that involving fundamental or other enforceable lights of the petitioners.

15. Some of counsel for petitioners submitted that retention in service affects the right of livelihood under Article 21 of the Constitution of India. It is true that the right to livelihood is considered by the Supreme Court as a part of the right under Article 21 of the Constitution of India. It is the case of the petitioners that further retention of Government servants after the age of superannuation is a matter of livelihood, and therefore termination of their service affects the right under Article 21 of the Constitution of India. To the thousands of educated unemployed who are waiting in the wings to step into the next available employment opportunity, it is, in a greater measure, a matter of livelihood. There are conflicting claims for right of livelihood. It is not for this Court to decide as to which of these two conflicting claims shall get priority. The State has to determine the question or priorities in this area on the basis of relevant considerations.

16. The problem focussed by these Original Petitions cannot be wished away so easily. There is considerable force in the submission that the Government employees are now thrown out of service at the peak of their efficiency and what the State loses thereby is irreplaceable. Equally important is the need for a national policy on retirement age. The age of superannuation is differently prescribed even in the State. The question whether and how far there shall be unification in the age of retirement is a matter which has to considered more by sociologists and economists as the part of a national employment policy rather than by this Court in proceedings under Article 226 of the Constitution of India.

In view of the above, the only course open for me now is to dismiss these Original Petitions with the observation that the matter of policy with possible reverberations in the regions of complex problems of unemployment is a matter better decided by the State as a part of a comprehensive national employment policy with the assistance of sociologists and economists rather than this court. The Original Petitions are, therefore, dismissed.

Issue photostat/carbon copies of this judgment to counsel on all sides on usual terms.


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