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Himachal Pradesh High Court · body

2009 DIGILAW 1045 (HP)

Krishan Chand v. State of H. P.

2009-11-12

R.B.MISRA, RAJIV SHARMA

body2009
JUDGMENT 1. Since common questions of law and facts are involved in these petitions, these were heard and are being disposed of by a common judgment. However, in order to maintain clarity in the facts, the facts of each petition are being dealt with in the following manner: CWF (T) No. 15719/2008 (O.A. 2524 of 2007) 2. The petitioner was appointed as a Beldar on daily wage basis in the year, 1988. He was regularized on 19.5.2003 w.e.f. 16.1.2003. His date of birth is 26.1.1949. He was retired on 28:2.2007. According to him, he had to retire on 31st January, 2009 and his case is not covered by the amendment carried out in Fundamental Rule 56 vide Notification dated 10th May, 2001. CWF (T) No. 239/2008 (O.A. 111 of 2008) The petitioner was appointed as a Part Time Worker on 1.9.1980. He was regularized on 24.10.2005. His date of birth is 15.1.1950. He had to retire on 2nd January, 2008 after attaining the age of 58 years and 60 years in case the date of retirement was 31st January, 2010. He has assailed the decision of the State Government to retire him w.e.f. 2nd January, 2008. CWP (T) No. 345/2008 (O.A. 284 of 2008) The petitioner was regularized on 26.10.2005. He was retired on 28.2.2007. According to him, he should have been retired after attaining the age of 60 years. CWP (T) No. 347/2008 (O.A. 286 of 2008) The petitioner was regularized on 26.10.2005. He was retired on 6.3.2007. According to him, he should have been permitted to work for another two years. CWP (T) No. 368/2008 (O.A. 326 of 2008) The petitioner was appointed as a Beldar on daily wage basis in the year, 1989. He was regularized in the month of January, 2001. He was retired on 29.2.2008. His case is that he should have been permitted to work till the age of 60 years and not 58 years. CWP (T) No. 579 of 2008 (O.A. 668 of 2008) The date of appointment of the petitioner as daily wage worker is 1st January, 1993. He was regularized on 10.1.2007. He was retired on 31.3.2008. The contention of the petitioner is that he should have been permitted to work till the age of 60 years. CWP (T) No. 1113/2008 (O.A. 1481 of 2008) The petitioner was regularized on 10.10.2007. He had to retire on 31.5.2008. He was regularized on 10.1.2007. He was retired on 31.3.2008. The contention of the petitioner is that he should have been permitted to work till the age of 60 years. CWP (T) No. 1113/2008 (O.A. 1481 of 2008) The petitioner was regularized on 10.10.2007. He had to retire on 31.5.2008. The precise case of the petitioner is that he should have been permitted to work till the age of 60 years. CWP (T) No. 1153/2008 (O.A. 1551 of 2008) The petitioner was engaged as a daily waged worker in 1990. He was regularized in the month of October, 2002. He was retired on 31.12.2006. 3. Mr. R.S. Gautam, Mr. Ajay Sharma, Mr. A.K. Gupta and Mr. L.N. Sharma, learned Counsel for the petitioners have vehemently argued that the action of the respondents of retiring their clients at the age of 58 years instead of 60 years is illegal and arbitrary. According to them, their clients were appointed before the issuance of Notification dated 10th May, 2001 and this notification cannot destroy the vested rights of their clients to continue up to the age of 60 years on the basis of un-amended Rule 56(b) of Fundamental Rules. Learned Advocate General has vehemently argued that though the petitioners were engaged on daily wage basis before the date of amendment, i.e., 10th May, 2001, however, they have been regularized/appointed after this date and the action of the respondent-State to retire them at the age of 58 years is legal and justified. 4. We have heard the learned Counsel for the parties and gone through the pleadings carefully. 5. It will be apt at this' stage to refer to un-amended Rule 56(b) of Fundamental Rules as well as the amendment carried out by way of Notification dated 10th May, 2001. Un-amended Rule 56(b) of Fundamental Rules reads thus: or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years. (b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Note.--In this Clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment. 6. (b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Note.--In this Clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment. 6. The amendment has been carried out by the State of Himachal Pradesh vide Notification dated 10th May, 2001, whereby after Clause (b) in Rule 56 of Fundamental Rules, the following proviso has been inserted: Provided that a workman appointed on or after the date of publication of this notification in the Rajpatra Himachal Pradesh shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. 7. Similarly, after Clause (c), the following proviso has been inserted: Provided further that a Class-IV Government servant appointed on or after the date of publication of this notification in Rajpatra Himachal Pradesh shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. 8. The petitioners have been engaged on daily wage/part time basis before the amendment carried out on 10th May, 2001. However, the fact of the matter is that the petitioners have been regularized/appointed on various dates as mentioned in opening part of the judgment. Prescribing the retirement/superannuation age is a policy decision. The scope of judicial review in these matters is indeed very limited. 9. Their Lordships of the Hon'ble Supreme Court in AIR 1985 Supreme Court 551, K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. have held that the Rules of retirement do not take away the right of a person to his livelihood, they limit his right to hold office to a stated number of years. Their Lordships have further held that by and large in matters of legislative policy, the Government of the day must be allowed a free, though fair, play. In this case, the State of Andhra Pradesh has reduced the age of retirement from 58 to 55. Their Lordships of the Hon'ble Supreme Court have up-held this decision of the State Government. Their Lordships have also repelled the contention that reduction in age will amount to "removal" from service. Their Lordships have held as under: 7. In this case, the State of Andhra Pradesh has reduced the age of retirement from 58 to 55. Their Lordships of the Hon'ble Supreme Court have up-held this decision of the State Government. Their Lordships have also repelled the contention that reduction in age will amount to "removal" from service. Their Lordships have held as under: 7. This is the broad outline of the petitioners' case. We will presently set out the specific contentions advanced before us but, before doing so, it would be necessary to indicate the approach which, in our opinion, should be adopted while examining a question of the present nature namely, the fixation of the age of retirement. Barring a few services in a few parts of the world as, for example, the American Supreme Court, the term and conditions of every public service provide for an age of retirement. Indeed, the proposition that there ought to be an age of retirement in public services is widely accepted as reasonable and rational. 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 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 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 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. Inevitably, the public administrator has to counterbalance conflicting Claims while determining the age of superannuation. On the one hand, public services cannot be deprived of the benefit of the mature experience of senior employees; on the other hand, a sense of frustration and stagnation cannot be allowed to generate in the minds of the junior members of the services and the younger Sections of the society. The balancing of these conflicting claims of the different segments of society involves minute questions of policy which must, as far as possible, be left to the judgment of the executive and the legislature. The balancing of these conflicting claims of the different segments of society involves minute questions of policy which must, as far as possible, be left to the judgment of the executive and the legislature. These claims involve considerations of varying vigour and applicability. Often, the Court has no satisfactory and effective means to decide which alternative, out of the many 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 reviewing any and every question of policy. Were it so, this Court would have declined to entertain pricing disputes covering as wide a range, as case to mustard-oil. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the 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 Article 14; E.P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348 : AIR 1974 SC 555." But while resolving the validity of policy issues like the age of retirement, it is not proper to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts. That is an exercise which the 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 more or less weight as the circumstances seem to require". 14. The contentions of Shri Venugopal which are set out in paragraphs (c) to (g) above and, partly in paragraph (b) itself, are by and large matters of legislative policy in the formulation of which the Government of the day must be allowed a free, though fair, play. Indeed, the acceptance of argument advanced by the various Counsel for the petitioners must lead to the conclusion that there has to be a uniform age of retirement all over India. Indeed, the acceptance of argument advanced by the various Counsel for the petitioners must lead to the conclusion that there has to be a uniform age of retirement all over India. If reduction of the retirement age from 58 to 55 is to be regarded as arbitrary on the ground that it overlooks the advance made in longevity, fixation of retirement age at 58 is also not likely to sustain the charge of arbitrariness. The argument could still be made that improvement in the expectation of life requires that the age of retirement should be fixed at 60 or 62 or even at 65. Then again, though immutable considerations which are generally or universally true like increased life expectation are as much valid for Jammu and Kashmir as for Tamil Nadu, that cannot justify the conclusion that fixation of the retirement age at 55 in Jammu and Kashmir is invalid since the State of Tamil Nadu has fixed it at 58. Both can fall within the constrains of the Constitution and neither the one nor the other can be considered to be arbitrary or unreasonable. There is no one fixed or focal point of reasonableness. There can be large and wide area within which the administrator or the legislator can act, without violating the constitutional mandate of reasonableness. That is the area which permits free play in the joints. The following table will show the variation in the retirement age which exists at present in the various States in India: State Retirement Age Haryana 58 years Jammu & Kashmir 55 years Karnataka 1979 - 58 years 1981 - 55 years Kerala 1967 - 55 years 1968 - 58 years 1969 - 55 years 1984 - 58 years Madhya Pradesh 58 years; Reduced to 55 years in 1967; enhanced to 58 years in 1970. Maharashtra 58 years Orissa 58 years Previously 55 years; enhanced to 58 years. Rajasthan 55 years (Reduced to 58 years to 55 years about 12 years back) Uttar Pradesh 58 years (Reduced to 55 years in 1962; enhanced to 58 years) Tamil Nadu 58 years (For District Judges, lowered from 58 to 55 years) West Bengal 58 years (since 1961) It is clear from this table that the area between the ages of 55 and 58 is regarded in our country as a permissible field of operation for fixing the age of retirement. Neither the American nor the English notions or norms for fixing retirement age can render invalid the basis which is widely accepted in our country as reasonable for that purpose. 28. 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 recognized 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. 29. 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. 29. Shri V.M. Tarkunde, who appears for some of the petitioners, limited his argument to the contention that arbitrary fixation of retirement age amounts to "removal" from service and is therefore violative of Article 311(2) of the Constitution. This argument has to be rejected because of our conclusion that the reduction of the age of retirement from 58 to 55 in the instant case is not hit by Article 14 or Article 16, since it is not arbitrary or unreasonable in the circumstances of the case. But, apart from this position, we find it difficult to appreciate how the retirement of an employee in accordance with a law or rules regulating his conditions of service can amount to his "removal" from service. It is well settled that Article 311(2) is attracted only when a civil servant is reduced in rank, dismissed or removed from service by way of penalty, that is to say, when the effect of the order passed against him in this behalf is to visit him with evil consequences. See Satish Chandra v. Union of India 1953 SCR 655 : AIR 1953 SC 250 Shyam Lal v. State of U.P. (1955) 1 SCR 26 : AIR 1954 SC 369, State of Bombay v. Saubhagchand M. Doshi 1958 SCR 571 : AIR 1957 SC 892, Purshotam Lal Dhingra v. Union of India 1958 SCR 828 : AIR 1958 SC 36 and P. Balakotaiah v. Union of India 1958 SCR 1052 : AIR 1958 SC 232. Besides, the point made by Shri Tarkunde is concluded by a Constitution Bench decision of this Court in Bishun Narain Misra v. State of U.P. (1965) 1 SCR 693 : AIR 1965 SC 1567. In that case, the Government of Uttar Pradesh raised the age of superannuation from 55 to 58 years by a Notification dated November 27, 1957 but reduced it again to 55 years by a Notification dated May 25, 1961. In that case, the Government of Uttar Pradesh raised the age of superannuation from 55 to 58 years by a Notification dated November 27, 1957 but reduced it again to 55 years by a Notification dated May 25, 1961. The appellant therein, who had attained the age of 55 years on December 11, 1960 and was continued in service when the age of retirement has raised to 58 years, was one of these who had to retire on December 31, 1961 as a result of reduction of the age of retirement to 55. It was held by this Court that, the termination of service of an employee on account of his reaching the age of superannuation does not amount to his removal from service within the meaning of Article 311(2), Learned Counsel contends that this decision is of doubtful authority since the Court based its opinion on the majority judgment in Moti Ram Deka v. General Manager, North Frontier Railway (1964) 5 SCR 683 : AIR 1964 SC 600, in which the Court was not called upon to consider and did not consider the validity of a rule of superannuation. It is true that in Moti Ram Deka, the Court was concerned to determine the validity of Rules 148(3) and 149(3) of the Railway Establishment Code which provided for the termination of the service of a permanent servant by a mere notice. But, interestingly, the judgment in Bishun Narain Mishra shows that it was the appellant therein who relied on the decision in Moti Ram Deka in support of his contention that the rule by which the age of retirement was reduced to 55 years amounted to removal within the meaning of Article 311(2). The Court held that the decision in Moti Ram Deka had no application to the case before them since "that case did not deal with any rule relating to age of retirement". (See page 696 (of SCR) : (at p. 606 of AIR) of the Report). It was after noticing 9 this distinction that the Court observed that the very case, namely, Moti Ram Deka's case on which the appellant relied, contained the observation that the rule as to superannuation or compulsory retirement resulting in the termination of, service of a public servant did not amount to removal from service. It was after noticing 9 this distinction that the Court observed that the very case, namely, Moti Ram Deka's case on which the appellant relied, contained the observation that the rule as to superannuation or compulsory retirement resulting in the termination of, service of a public servant did not amount to removal from service. The Court, in Bishun Narain Misra, came independently to the conclusion that "as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311". 37. Finally, there is no substance in the contention that the amendment to the Fundamental Rules, whereby the proviso to Rule 2 was deleted, is beyond the powers of the rule-making authority or the Legislature. The Fundamental Rules and the amendments thereto are issued by the State Government under the powers delegated to it by the Civil Service (Governors' Provinces) Delegation Rules 1926, the Civil Services (Classification, Control and Appeal) Rules, 1930 and under the Proviso to Article 309 of the Constitution. The Fundamental Rules which came into force with effect from January 1, 1922 were amended earlier by G.O.Ms. No. 128 dated April 29, 1969. By that amendment, a proviso was added to rule 2 which reads thus: Provided that the rules shall, not be modified or replaced to the disadvantage of any person already in service. By G.O.Ms. No. 48 dated February 17, 1983, this Proviso was deleted with retrospective effect from Feb. 23, 1979. The contention of the petitioners is that the proviso which conferred a benefit upon Government servants by protecting their conditions of service, cannot be amended so as to empower the Government to alter those conditions to their prejudice and, in any event, they cannot be amended retrospectively so as to take away rights which had already accrued to them. The simple answer to this argument is that the amendment of February 17, 1983 to the Fundamental Rules was made by the Government of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution. The simple answer to this argument is that the amendment of February 17, 1983 to the Fundamental Rules was made by the Government of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution. It is well settled that the service rules can be as much amended, as they can be made, under the proviso to Article 309 and that the power to amend these rules carried with it the power to amend them retrospectively. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule-making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. Therefore, the amendment made to the Fundamental Rules in the exercise of power conferred by Article 309, by which the proviso to Rule 2 was deleted retrospectively, was a valid exercise of legislative power. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power cannot be challenged as lacking in authority. (See B.S. Vadera v. Union of India (1968) 3 SCR 575 : AIR 1969 SC 118); Raj Kumar v. Union of India (1975) 3 SCR 963 : AIR 1975 SC 1116. 10. Their Lordships of the Hon'ble Supreme Court in (2007) 8 Supreme Court Cases 294, Central Bank of India and Ors. v. Madan Chandra Brahma and Anr. while interpreting the impression "recruited" have held that (employee of Purbanchal Bank) could be deemed to have been recruited to the service of the appellant Bank only on amalgamation of Purbanchal Bank with the appellant Bank. He could be deemed to have been recruited to the service of the appellant Bank only after 19.7.1969 and thus, he was not entitled to be retired at the age of 60 years. Their Lordships have held as under: 3. Respondent No. 1 approached the High Court challenging his being retired on attaining the age of 58 years and, of course, also raising an issue about his date of birth. The learned single judge held that there was no. merit in the challenge to the date of birth recorded in the records of the Bank. Respondent No. 1 approached the High Court challenging his being retired on attaining the age of 58 years and, of course, also raising an issue about his date of birth. The learned single judge held that there was no. merit in the challenge to the date of birth recorded in the records of the Bank. He further held that respondent No. 1 was entitled to continue in service only till he attained the age of 58 years in the face of the Regulations. The learned single judge, hence, dismissed the Writ Petition. Respondent No. 1 filed an appeal. 7. On a plain understanding of the factual situation, it appears to us that respondent No. 1 could be taken to have become an officer of the appellant Bank only on the amalgamation of the Purbanchal Bank with the appellant Bank. Admittedly, that was on 29.8.1990, well after 19.7.1969. Strictly speaking, respondent No. 1 was not recruited in the appellant Bank, if we literally construe the expression 'recruited' occurring in the Regulation. But obviously the expression includes those who have become officers of the appellant Bank by way of amalgamation or merger. Here, the merger took place only on 29.8.1990, long after 19.7.1969. In this situation, it is clear that respondent No. 1 could be deemed to have been recruited to the service of the appellant Bank only after 19.7.1969. If so, it would be clause 1.3 of Regulation 19 that would apply and not clause 1.2 of that Regulation. We may also notice that there is nothing inequitable or unjust in the result thus reached, since the age of superannuation insofar as respondent No. 1 and those similarly situated were concerned, was 58 years both in Gauhati Bank, the entry Bank and the Purbanchal Bank with which the Gauhati Bank merged on 1.8.1975. 12. The fact that the regulation had been made applicable, would not mean that such officers must be taken to have been recruited from the date of their entry in the Purbanchal Bank. The applicability of the Regulations with effect from 1.4.1991 is subject to exceptions provided thereunder. It is in that context that the non-reckoning of service for one year in Purbanchal Bank as equivalent to service of one year in the appellant bank assumes significance. The applicability of the Regulations with effect from 1.4.1991 is subject to exceptions provided thereunder. It is in that context that the non-reckoning of service for one year in Purbanchal Bank as equivalent to service of one year in the appellant bank assumes significance. In this situation, while applying Regulation 19, it is not possible to uphold the plea that the respondent should be taken to have been recruited to the appellant bank prior to 19.7.1969 so as to attract paragraph 1.2 thereof. The right to be treated on a par with the employees of the appellant Bunk is one thing, but the right to insist that the employee must be deemed to have become an employee of the appellant Bank even before the amalgamation is another. 13. It may be noted that clause (i) of Sub-section (5) of Section 45 of the Banking Regulation Act, 1949 has only provided that an employee, such as the respondent, had the right to get the same remuneration and to have the same terms and conditions of service which they were getting or by which they were being governed immediately before the date of the order of moratorium. The right to be treated on a par with the employees of the appellant Bank cannot extend to a right to be treated as having entered the service of the appellant Bank even before the very amalgamation. The decision referred to above also shows that it is the age of superannuation in the transferee Bank that would govern and the age of superannuation in the transferee Bank subsequent to 19.7.1969, is only 58 years. 14. As we have noticed earlier, the age of superannuation, when respondent No. 1 joined service in the Gauhati Bank was 58 years and when that Bank merged with the Purbanchal Bank, it continued to be 58 years. As far as we can see, there is nothing in the Regulations or the Resolution which would enable respondent No. 1 to claim that he was entitled to continue until the age of 60 years when the age of superannuation of even an officer originally recruited to the appellant Bank after 19.7.1969 was only 58 years. As far as we can see, there is nothing in the Regulations or the Resolution which would enable respondent No. 1 to claim that he was entitled to continue until the age of 60 years when the age of superannuation of even an officer originally recruited to the appellant Bank after 19.7.1969 was only 58 years. Even though, respondent No. 1 may carry his date of appointment in Gauhati Bank for the purpose of service benefits to the extent specified, the same does not extend to supporting a claim that he must be deemed to have been recruited in the Central Bank prior to 19.7.1969. We are, therefore, of the view that the High Court was in error in holding that respondent No. 1 was entitled to continue in service in the appellant Bank till he attained the age of 60 years and was entitled to monetary benefits on that basis. On a plain reading of Regulation 19 in the context of the materials available, we are satisfied that respondent No. 1 was bound to retire on attaining the age of 58 years. The learned single judge was, therefore, justified in dismissing the Writ Petition. The Division Bench was not justified in allowing it. 15. We may notice here that in B.S. Yadav and Anr. v. Chief Manager, Central Bank of India and Ors. 1987 (3) SCC 120 this Court upheld the rule providing for different retirement ages for the employees recruited by the Central Bank before its nationalization and for those recruited to the Bank after its nationalization. The age of superannuation of the former was 60 years and of the latter only 58 years. When this is the position and the date of retirement is 58 years after nationalization of the bank we find no reason to hold that those who came to the bank after nationalization by way of amalgamation should stand on a better footing than the employees recruited to the Central Bank itself after nationalization. 11. The Apex Court in (2007) 11 Scc 58, B. Bharat Kumar and Ors. v. Osmania University and Ors. have held that what should be the age of retirement/superannuation, is a policy decision. Their Lordships have held as under: 18. For the similar reasons we do not see as to why the judgment in T.P. George's case is not applicable to the present case. v. Osmania University and Ors. have held that what should be the age of retirement/superannuation, is a policy decision. Their Lordships have held as under: 18. For the similar reasons we do not see as to why the judgment in T.P. George's case is not applicable to the present case. A very serious argument was raised by the learned Counsel that the judgment stood overruled by Yashpal's case. We do not think so. Yashpal's case was on entirely different issue. There the controversy was relating to a legislation creating number of universities. The question there was as to whether the State Government could create so many universities and whether the legislation creating such universities was a valid legislation, particularly in view of the fact that the subject of higher education was covered under Entry 66 of List I. Such is not the subject in the present case. Here is a case where there is no legislation. Even if we take the scheme to the higher pedestal of policy statement under Article 73 of the Constitution, the scheme itself suggests to be voluntary and not binding and the scheme itself gives a discretion to the State Government to accept it or not to accept it. If such is the case, we do not see the relevance of the Yashpal's case in the present matter. Once this argument fails, the reference to the other cases which we have referred to earlier also becomes unnecessary. In our considered opinion all those cases relate to the legislative powers on the subject of education on the part of the State Government and the Central Government. In the present case we do not have any such legislation for being considered. Where the scheme itself gives the discretion to the State Government and where the State Government uses that discretion to accept a part of the scheme and not the whole thereof, it would be perfectly within the powers of the State Government not to accept the suggestion made by the scheme to increase the age of superannuation. 19. Learned Counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. 19. Learned Counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is not for this Court 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, 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 into doing so. 12. The petitioners, as noticed above, have been regularized after the issuance of notification dated 10th May, 2001. A specific status has been given to them after their regularization. There is no force in the contention of the petitioners that their dates of appointment should relate back to the dates when they were engaged on daily wage basis. The dates of appointment of the petitioners for the purpose of retirement are to be determined/considered from the date of their regularization. Since the petitioners have been appointed/regularized after the amendment was carried out in Rule 56 of Fundamental Rules vide notification dated 10th May, 2001, their date of retirement will be 58 years and not 60 years, as claimed by them. 13. The petitioners were engaged on daily wage basis. They have not been issued any appointment letters. They have not been appointed under any statutory rules. Their appointments were on day-to-day basis. They have attained the status of a Government employee only after they have been regularized. Their Lordships of the Hon'ble Supreme Court in (2006) 2 Supreme Court Cases 702, M.P. Housing Board and Anr. v. Manoj Shrivastava, have held that a daily wager does not hold a post unless he is appointed in terms of the Act and Rules. Their Lordships have held as under: 15. A daily-wager does not hold a post unless he is appointed in terms of the Act and the Rules framed thereunder. He does not derive any legal right in relation thereto. 14. The State Government in its own wisdom, has taken a policy decision to carry out the amendment, as noticed above, by inserting proviso to Rule 56(b) of Fundamental Rules and proviso to Clause (c). He does not derive any legal right in relation thereto. 14. The State Government in its own wisdom, has taken a policy decision to carry out the amendment, as noticed above, by inserting proviso to Rule 56(b) of Fundamental Rules and proviso to Clause (c). The age of retirement for the workman and also for the Class-IV Government servant appointed on or after the date of publication of the notification on 10th May, 2001, is on the last day of the month in which he attains the age of 58 years. The Court will not interfere with this policy decision. There is neither any arbitrariness nor illegality or un-constitutionality in the amendment carried out vide notification dated 10th May, 2001. The other contention that the notification has been applied retrospectively merits rejection. The notification is prospective and will cover all the employees alike, i.e., workman and Class-IV employees, who have been recruited/appointed/regularized after 10th May, 2001. The term 'appointed' has been loosely worded in the amendment carried out vide notification dated 10th May, 2001. We clarify that this term 'appointed' shall include regularization/recruitment by any mode known under service jurisprudence. 15. In view of the observations made hereinabove, there is no merit in these writ petitions and the same are dismissed. The action of the respondents of carrying out the amendment in Rule 56 of Fundamental Rules by insertion of provisos is up-held. The consequences shall ensue. No costs.