B. Narayana Murthy & Ors. Etc. v. State of Andhra Pradesh Etc.

Judgment

ORIGINAL JURISDICTION: Writ Petitions Nos. 144, 216, 217,. 221, 223, 242, 247 to 249, 308 and 324 of 1970. Petition under Article 32 of the Constiution of India for theenforcement of fundamental rights. L. M. Singhvi, Kanta Rao and K. Rajendra Chaudhuri, for the petitioners (in W. P. No. 144/1970.). B. Kanta Rao and K. Rajendra Chaudhuri, for the petitioners (in W. P. No. 21 of 1970). M. C. Chag/a, S. S. Shukla and B. Kanta Rao; for the petitioners (in W. P. No. 249 of 1970). S. S. Shukla and B. Kanta Rao, for the petitioners (in W. P. Nos. 216, 248 and 324 of 1970). Sarjoo Prasad and A. Subba Rao. for the petitioners (in W. p, No. 217 of 1970). A. Subbh Rao, for the petitioners (in W. P. No. 247 /1970} K. Jayaram, for the p@titioners (in W. P. Nos. 223 and 242' of 1970). B. Kanta Rao and ·G. Narasimhulu, for the petitioner (iIL W. P. No. 308 of 1970). P. Ram Reddy and A. V. V. Nair, for respondents No. t W. P. Nos. 144, 216, 217, 221, 223, 242, 247, 248 and 249 of 1970. B. N. MURTHY v. A. P. STATE (Dua,J.)

P. Ram Reddy and P. Parameswara Rao, for respondent Nos. 6 and 28 (in W. P. No. 217 vf 1970), respondents Nos. 4 and 10 (in W. P. No. 223 /70), respondents Nos. 84, 38, 52, 83 ".nd 120 (in W. P. No. 247/1970), respondent No. 2 (in W. P. \lo. 248). The Judgment of the Court was delivered by Dua, J.-This batch of writ· petitions raise common questi<;ms of fact and law and have, there.fore, been heard together ood are being disposed of by a common judgment. As the salient features of all the writ petitions are similar in essential particulMS, we may, for understanding the nature of the controversy, only refer to the facts of writ Petition No. 217 of 1970 (B. V. Subhaiah & Ors v. State of Andhra Pradesh & Ors.), because Shri Sarjoo Prasad who led the arguments on behalf of the petitioners addressed us by reference to this writ petition as illustrative of the common controversy. Writ Petition No. 217 of 1970 has been presented in this Court by 387 teachers under Art. 32 of the Constitution praying for a writ in the nature of mandamus or order or direction restraining the respondents from giving effect to, (i) the orders, G. 0.

Ms. No. 2219 dated November 3, 1967, read with Government of Andhra Pradesh Memo No. 6573 dated Noveinber 8, 1968 and G. 0. Ms. No. 1321 dated June 17, 1969, (ii) the substituted r. 14 of the Rules made under the Andhra Pradesh Muni- CiP,alities Act, and (iii) the substituted r. 16 of the Rules made under the Panchayat Samitis and Zilla Parishads Act. A declaration is also claimed to the effect that order No. G. 0. Ms. No. 2219 dated November 3, 1967 read with Government Memo No. 6573 dated November 8, 1968 and G. 0. Ms. No. 1321 dated June 17, 1969, Note 2 of the FundamentaL Rule 56(a) and the Rules made under the Andhra Municipalities Act and Andhra Pradesh Panchayat Samitis Zilla Parishads Act are illegal and unconstitutional and for a further declaration that the rules laid down in G. 0. Ms. No. 3099 dated November 30,. 1964 and No. 1596 dated June 26, 1966 are applicable to the petitioners subject to the conditions stipulated in those orders.

These petitioners claim/to be working as permanent teachers in. the service of Zilla Parishads, Panchayat Samitis and Municipalities for the last 25 or .30 years. According to their a.verments, the retirement age for the teachers in the service of the Andhra Pradesh Government, Zilla Parishads, Panchayat Samitis ood the . Municipalities is fixed at 55 years. Under F. R. 56(a) and the Subsidiary Rules of. the Andhra. Pradesh Government 1962, a government servant may however be retained in service after completing 55 years with the sanction of the Government and in p [1971) Sl:PP. S.C.R. special circumstances he may even be retained in service after 60 years. Rule 14 of the Esta·blishment Rules made under the Andhra Pradesh Municipalities Act, 1959, and r. 16 of the Rules made under the Andhra Pradesh Zilla Parishads and Panchaya.t Samitis Act, 1959. also fix the age of retirement at 55 years for the employees of these bodies.

The Fundamental Rule providing for extension of the age of retirement with the sanction of the Government on public ground was also claimed in the petition to be applicable to the employees under the Municipalities, Zilla Parishads and Panchaya,t Samitis, though at the hearing no serious attempt was made to substantiate this avcrm.ent, or to 'how it advances their ca~e. On November 20, 1964, the Government of Andhra Pradesh issued G. 0. Ms. No. 3099 raising the age of superannuation to 58 years subject to medical fitness and satisfactory work a,nd conduct in respect of the Head-Masters and teaching staff in Government service and also in the institutions under the Zilla Pa·rishads and Panchayat Samitis and Municipalities. On June 28, 1966. the Education Department of Andhra Pradesh issued G. 0. Ms: No. 1596 raising the age of retirement to 60 years subject to certain conditions.

On August 26, 1966, a clarification was issued whereby extension of service upto 60 years was sta.ted to be subject to only two conditions, r:amely, medical fitness and satisfactory work and conduct. On November 3, 1967 the Government of Andhra Pradesh issued G. 0. Ms. No. 2219 cancelling with effect from November 30, 1967, the earlier Government orders extending the age of retirement of teachers, first from 55 .lo 58 and then from 58 to 60 years. This order also contained a direction for making suitable rules under the Panchayat Samitis and Municipalities Act sepa.rately. by the Panchayat Raj and Health, Housing and Municipal Administration Departments so . as to give effect to the Government's decision. It was howeve.r provided in this order that the teachers affected thereby would be continued in service till the end of the academic year 1967-68 in order to ensure continuity in the academic teaching. On November 16, 1967, new r. 16 was substituted for old r.

16 by means of which the age of superannuation of officers and s~vants of Panchayat Samits and Zilla Parishads was reduced to 55 years. · On November 20, 1967, new r. 14 was substituted for the old r. 14, similarly reducing the retirement age to 55 years, in respect of the employees of the establishments under the Municipalities. On March 14, 1968, Funda-mental Rules 56(a) was amended by the Governor under Art. 309 of the Constitution by adding to it Note 2, according to which a government servant retained in service after the date of compulsory retirement could be retired at any time without notice and without assigning any reason. •. N. MURTHY v. A. P. STATE (Dua, J.) It appears that some teachers, other than the present petitioners, feeling aggrieved by these orders approached the Andhra Pradesh High Court for relief under Art. 226 of the Constitution.

On April 16, 1968, Chinnappa Reddy, J., allowed those writ petitions and directed the Andhra Pradesh Government not to give effect to G. 0. Ms. No. 2219 dated November 3, 1967, and the 31mendment to the Fundamental Rule and the Rules under the Municipalities Act, Panchayat Samitis and Zilla Parishads Act, insofar as they affected the rights of the petitioners in those petitions. Another batch of teachers employed by the Zilla Parishads, Panchayat Samitis and the Municipalities, other than the present petitioners, along with a few teachers employed by private esta-blishments also applied· to that High Court under Art. 226 of the Constitution with similar grievance. Those writ petitions were disposed of by the same learned Judge on August 7, 1968. The State in those cases tried, without success, to get over the earlier judgment in the case of the teachers by relying on the 1lecision of the Supreme Court in B. S. Vadera v. Union of India & Ors.(') which upheld the validity of retrospective operation of Rules made under Art. 309 of the Constitution.

On appeal from the earlier judgment of the learned Single Judge, a Division Bench of the Andhra Pradesh High Court on April 14, 1969, agreed with the single bench in holding that the cancellation of the extension of the service of the writ petitioners by the impugned orders was inoperative. In the meantime, in pursuance of the judgment of the learned Single Judge the Government had on November 8, 1968, issued a Government Memo providing as under : "I. Teachers employed by Municipalities, Zilla Parishad and Panchayat Samithis. la) Teachers whose services have been extended up to the age of 60 years by specific individual orders should be retained in service until they atta-in that age. (b)

Teachers who attained the age of 55 years before 30-11-1967 and in whose favour there are specific individual orders extending their services up to 58 years 'Should be retained in service until they attain the age of 58 years and therea.fter their cases for further extension up to the age of 60 years should be considered by the competent authorities in accordance with the G. 0. Ms. 3099 Edn. dated 20-11-1964 and G. 0. Ms. No. 1596 Edn. dated 28-6-1966. (l) W.P.No. 96of1967 de<ided on March 27, 1968, since reported as [t96SJ 3 s.c.R. 575. p [1971] SUPP. s.c.R .. (c) The cases of teachers who attained the age of 55 yea;rs before 30-11-1967 but in whose favour there are . no specific individual orders of extension of service should be considered by the competent authorities in accordance with G. 0. Ms. No. 3099 Edn. dated 20-11-64 and G. 0. Ms. No. 1596 Edn. dated 28-6-1966. (d) Teachers who attained the age of 55 years after 30-11-1967 should be dealt with under G. 0. Ms. No. 2219.

Education dt. 3-11-1967 &nd they should be retired on attaining the age of 55 years. Any such person continued in service after attaining 55 years as a result of the High Court's stay orders should be consider.ed as on extension and their extension terminated immedi&tely." On March 17, 1969, the Government issued a Memorandum (No. 5929 /HI/ 68) directing all the Block Development Officers. Secretaries of Zilla Parishads and Secretaries of Municipal Coun· cils not to oust the teachers who had &ttained 55 years of ag'e· before November 30, 1967, merely because there were no exten-. sion orders in their favour. This Memorandum also desired that proposals for extension of service of teachers be promptly· forwarded to the District Educational Officers concerned without delay. On June 17, 1969, r.

16(2) of the Rules relating to the establishments under the Pa·nchayat Samitis and Zilla Parishads was. amended so as to bring it in conformity with the decision arrived at pursuant to the judgment of the High Court. Th~ petitioners before us are feeling aggrieved by cl. (d) of the Memorandum issued by the Government on November S, 1968, and it is this clause which is the main target of challenge on behalf of the petitioners. i Mr. Sarjoo Pra~ad. who led the attack on behalf of the petitioners and addressed us in support of Writ Petition No. 217 of 1970 categorized his challenge under three heads : (!) that the classification made by the Government order fixing November 30, 1967, as the da.te for deter· mining as to who should retire at the age of 55 years and whose service should be extended is arbitrary and highly discriminatory;

(2) that the Government order dated November 3, 1967 can only affect persons joining service after that date and not those who were already in service because their service conditions could not be unilaterailly changed to their prejudice; and B. N. MURTHY v. A. p, STATE (Dua, J.) (3) that Government is estopped to vary the date of retirement of the petitioners because they had on the faith of the modified conditions of their service arranged their affairs on the basis of their retirement at the age of 60 years. By way of illustration it was pointed that their contributions to the provident fund and their life insurance policies had been so planned as to suitably fit in with their retirement at the completion of 60 years. We did not permit Mr. Sarjoo Prasad to raise points Nos. (2) & (3) because they did not pertain to any fundamental right of the petitioners. In so far as point No. (1) is concerned the learned counsel concentraited on the contention that the classification based on November 30, 1967 as the dividing line for determining the age of retirement was arbitrary and highly discriminatory, and it denied to the petitioners on irrational grounds equal opportunity with those employed along with them.

The Government Order No. 2219 daited November 3. 1967, which cancelled the earlier orders extending the age ·of retirement reads as under : "G. 0. Ms. No. 2219 Edn. Dated 3rd Nov., 1967. Reading the following :-

1G. 0. Ms. No. 3099 Education dated 22-11-1964

2G. 0. Ms. No. 1596 Education dated 28-6-1966, and

3Memo No. 8553-H. l /66-1-1 Education daited 26-8-1966 ORDER: The Government hereby direct that the orders contained in the Government Orders first and second read above, as subsequeRtly amended, extending the age of retirement of teachers from 55 to 58 and from 58 to 60 years be cancelled with effect from 30th November 1967. Suitable rules under the Panchayat and Municipalities Act will be made. separately by the Panchayat Raj and Health, Housing and Municipal Administration Depart· ments to give effect to the above decision. (2) The teachers who are affected by the orders in para I above, will however be continued in service till the er.d of the academic year 1'907-68 in order to ensure continuity in the academic teaching." On behq)f of the respondents justification for first increasing the a.ge of co)ipulsory retirement to 58 and then to 60 years and (1971] SUPP. S.C.R. later restoring it to 55 years is stated in the counter-affidavit in the following words : . the G. 0. did not contemplate any classification for it fixed a uniform date for retirement of teachers, who have completed 55 years but who got extension of the period of service, even before they a.ttained their 60th year.

It is only in compliance with the order of the Hon'ble High Court of Andhra Pradesh dated 16-4-1968 in Writ Petitions Nos. 3105 of 1967, etc. holding that teachers whose term has already been extended up to their 60th year have got a vested right to continue till their 60th year that they were a.Uowed to continue. It is also significant that the Writ Appeal preferred by this respondent against the judgment was also dismissed. The writ petitions filed by the teachers who did not complete their 55th year before the G. 0. reducing the age of retirement was pa.ssed were dismissed by the same High Court in Judgment dated 7-8-1968 in W. P. Nos. 1741 of 1968 etc. As such even if there are some anomalies in the working out of the G. 0. that will not be a ground for striking out the G. 0. as it treats alike all in the same c&tegory. x x x the object for raising the retirement age was to solve the problem of dearth of qualified teachers because of the opening of new schools and the need for the maximum utilisation of trained intelligensia."

It is further explained in the counter-affidavit that as soon as the dearth of qualified teachers disappeared, the retirement 1ge was a•gain restored to 55 years. In this counter-affidavit it is also pointed out that "if the G. 0. is struck down, it will me1n extension of services of thousands of teachers, when there is rea!ly no need for them." After a faint attempt to challenge the validity of the Government Order No. 2219 dated November 3, 1967, the learned counsel expressly confined his challenge only to the subsequent orders mooe by the Government. Now if G. 0. No. 2219 dated November 3, 1967 is valid, then obviously the petitioners have to retire at the age of 55 years notwithstanding the fact that after their initial employment their retirement age was raised by Government orders, first from 55 to 58 years and then to 60 years because those intermediary orders had been cancelled by G. 0. No. 2219 before they became operative by actually retaining in service the present petitioners after their superannuation under the earlier rules.

Merely because by some subsequent orders the extended da~e of retirement was accepted in respect of those employees I D. N. MURTHY v. A. P. STATE (Dua, J.) in whose favour either specific orders had been made extending thdr age of retirement from 55 to 58 or to 6(1 years, or who had, aft~' crossing the 55 years age limit, been actually retained in service pursuant to the modified directions, notwithstanding that those directions were Jailer canceUed, would not by itself entitle the present petitioners to claim similar extension in their age of refrement on the basis of the equality rule embodied in Arts. 14 & 16 of the Constitution. The other employees were given bee efit of the directions pursuant to the orders of the High Court wi1ich have since become final. This clearly provides a valid difierentia and the present petitioners cannot claim to be equaited with those employees who had been given such benefits.

The learned counsel contended that the case of the present petitioners is identical with that of the teachers who had applied to the Andhra Pradesh High Court and ha,d secured orders in the':" favour. The present petitioners, it was argued, having also acquired a vested right by virtue of the Government orders raising their retirement age to 60 years are entitled to claim from this Co·.;ct similar orders as were made by the High Court in .favour of the petitioners in the two writ petitions. We do not think there is any such fundamental right possessed by the present pet'tioners as would entitle them to claim similar relief from this Court in the present proceedings. The two categories of the tea· ' chers employed by tile three local bodies are distinct and separate.

We are not concerned with the question whether tile High Court wa; right in grainting relief to the petitioners in the two earlier cases. though the respondent has in the counter-affidavit questioned the correctness of those orders. They became final and are binding on the parties to those proceedings. The present petitioners did not secure similar orders and now their retirement age having been restored to the original limit of 55 yearn the petitioners cannot claim the higher age limit. No doubt during a short period the increased age limit for retirement remained in force. But, as is rightly conceded by aU the counsel for the various petitioners, it is open to the Government in this case to reduce the age of retirement wiiliout exposing such reduction to any constitutional infirmity.

Jn this connection it may be pointed out that the Andhra Pradesh High Court also had by a subsequent order denied relief to some of the teachers similarly plaiced as tile present petitioners, holding their case to be distinguishable from ilia! of tile teachers who had successfully applied for relief in tile earlier two writ peti· tions. The submission, that when the Government itself accepted the judgment of the Andhra Pradesh High Court striking down the Government order reducing the retirement age to 55 years, [1971] SUPP. s.c.R. then the earlier order increasing the age of compulsory retirement must automatically be held to be revived, is unacceptable. The Government, it is noteworthy, made the impugned orders after the decision of the Andhra Pradesh High Court with the object of giving the benefit of that decision to a.JI the employees whose cases were covered by the principal laid down by the High Court.

The case of the present petitioners is quite different and is not covered by the rule laid down by the High Court. The impugned Government order fixing November 1967, as the date for founding the classification of teachers who should retire at the n-ge of 55 years and those who should get the benefit of the interim orders e;<tending the age of retirement to 58 or 60 years cannot be considered to be either irrational, or unreasonable or having no nexus with the object to be achieved by reducing the age of retirement. The problem of unemployment in our country is undoubtedly a complex problem and opinions ma-y differ how best to solve it. But that would not raise any question of fundamenta! right with which alone we are concerned in the present proceedings. The position as stated in the counter-affidavit in the case before us, however, furnishes a complete answer to the petitioner's contention.

The cJa.ssification made by the Government does not suffer from any infirmity as it is founded on rational nexus with the object to be achieved. Shri Chagla appearing in support of Writ Petition No. 249 of 1970 also made aittempt to challenge the Government Order dated November 3, 1967. But nothing new was urged and the learned counsel had, with his usual candour, to concede that the Government could lawfully reduce the a•ge of retirement with· out attracting constitutional infirmity. Dr. Singhvi appearing in support of Writ Petition No. 144 of 1970 drew our attention to Fundamental Rule 56(a) as amended by the Andhra Pra<le~h Government in 1965 and submitted that according to the amended sub-rule "the date of compulsory retirement of a Governme~t servant, whether ministerial or nonrninisterial and in the last erade service is the date on which he attains to the a.ge of 55 years and 60 years respectively".

According to the learned counsel the petitioners are non-'111inisterial government servants in the last grade service and are, therefore, er!itled to remain in service till they attain 60 years of age. This submission appears to us to be inconsistent with the petitioners' case as pleaded in the writ petitions. In the writ petitions it has been assumed that according to the F. R. 56(a) the teachers have ordinarily to retire at the age of 55 years. In any event, whether or not the amended F. R. 56(a) fixed the retirement age of nonministerial government servants at 60 years, and whether or not B. N. MURTHY v. A. P. STATE (Dua, J.) the petitioners are covered by this rule, seems to be immaterial because it has not been shown that the teachers employed by the Municipalities, Zilla Parishads and Panchayat Samitis are governed directly by this Fundamental Rule.

The submission that the rule applicable to the teachers ·employed by such bodies was intended to be in conformity with the Fundamental Rule is of little avail to the petitioners becimse those Rules could not be considered to have been automatically modified as result of the amendment in F. R. 56(a) in 1965. It is not disputed that there is no such modification in the Rules which directly govern such teachers. The argument ba6ed on the amended F. R. 56(a) is, therecore. of no assistance to the petitioners. Dr. Singhvi's criticism that the position taken up in the coun- !er-affidavit that the rule "last come, first go" applies to the petitioners is unfounded also cannot benefit the petitioners. The petitioners have to retire at the age of 55 years because the benefit under the intermediary directions, whi2h have since been cancelled, cannot after cancellation be claimed by them under any provision of law. This conkntion is, therefore, also repelled. Dr. Singhvi referred us to Bis!;un Narain Mishra v. State of Uttar Pradesh and Othcrs(1\;

State of Assam and others v. Premadhar Baruah and others('); and to an unreported decision of this Court in The State of U. P. and Anr. v. Kishan Chand Dlzaun0). These decisions do not advance the petitioners' case. In Bishun Narain Mishra(') this Court observed: "Now it cannot be urged that if Government decides to reta.in the services of some public servants after the age of retirement it must retain every public servant for the satne length of time. The retention of public servants after the period of retiren~ent depends upon their efficiency and the exi~encies cf public service, and in the present case the difference in the oerioJ of retention has arisen on accou1~t of exigencies Of nublic service." In Premadhar !Jarua!z(') it was obsen·ed b:· this Court : "As 'we have already iwlkated r~ragr~"11 4 cf the memorandum flowed from F. R. 56(a). The Government could retain a Government servant bevond the 3'.!e of superannuation.

The Government has ·also the discretion to withdraw such retention in service because the retention does not confer any right on the Government servant." (I) [1965]1 S.C. R. 693. (2) A.LR. [1970] S.C. 1314. (l) C.A. No. 1832of1968 decided on Dec. 12, 1968. (1971] SUPP. s.c.R. It is not understood how these decisions are helpful to the counsel. The unreported decision had to deal with a different problem and nothing said in that judgment has been shown to assist the petitioners before us. In the other writ petitions the counsel merely adopted the arguments raised by Mr .. Sarjoo Prasad and Mr.· Chag!a, and therefore they do not call for any comment. In the final result, all the writ petitions oce dismissed, but in the circumatances with no order as to costs. V.P.S. Petitions dismissed.