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2009 DIGILAW 852 (KAR)

Jagdish Shastri v. Chief Secretary State of Karnataka

2009-11-12

MOHAN M.SHANTANAGOUDAR, P.D.DINAKARAN

body2009
Judgment :- Mohan Shantanagoudar, J. In this public interest litigation, the petitioner has sought for quashing the Government Order No.DPAR 44 Se Ni Si 2008, Bangalore, dated 28.7.2008 vide Annexure-‘A’, by which the age of retirement of Government employees is increased from 58 to 60 years. According to the petitioner, the State Government without calling for objections from the general public and without issuing the draft rules to the amendment to Karnataka Civil Services Rules for enhancing the age of superannuation and without giving opportunity to the public at large to file objections to the draft rules, has issued the Government Order dated 28.7.2008; that the said rule is brought into effect from 17.7.2008; that it will affect the current economic condition of the State and the prospects of the younger generation of being appointed; and that the younger generation and their parents are put to depression due to unemployment problem and consequently, the impugned Government order is bad in the eye of law. Statement of objections are filed by the State Government by inter alia contending that the experienced employees are the asset to the State Government; that due to increase in life expectancy and improvement in other health indicators, it is possible for the employees to serve for a longer period than earlier; with this background, the Government has decided to increase the retirement age of Government employees from 58 to 60 years; that the Budget Speech of the Chief Minister was approved by the Cabinet on 17.7.2008 before its presentation in the Legislative Assembly; and that the Cabinet in its meeting held on 24.7.2008 has approved this proposal of enhancement of retirement age of Government employees with effect from 17.7.2008 and after presenting the Budget Speech in the Legislative Assembly, the Government order has been issued on 28.7.2008. It is further averred in the statement of objections that, the enhancement of retirement age of the Government employee is a policy matter of the State Government; the Government of India has also enhanced the age of superannuation from 58 to 60 years in respect of Central Government employees during 1998; that the age of retirement of the Government servants in Bihar, Chattisgarh, Jharkhand, Madhya Pradesh, Uttaranchal, West Bengal and all the Union Territories, except Chandigarh, is 60 years; in the State of Assam and Manipur, it is 59 years: in Karnataka, the retirement age of All India service Officers borne on Karnataka cadre is 60 years’ that the retirement age of teaching staff of all the Universities is 60 years and that the retirement age of District Judges is 60 years. The Central 5th Pay Commission has recommended the increase of the retirement age as 60 years based on several reasons. It is also stated in the statement of objections by the State Government that action has already been taken to make necessary amendment to the Karnataka Civil Service Rules in accordance with the provisions contained in the Karnataka Civil Services Act, 1978 (Act 14 of 1990). 2. It is now well established by the decisions of the Apex Court, including the decision in the case of B. Prabhakar Rao and Others etc., vs. State of Andhra Pradesh and Others etc. etc., (AIR 1986 Supreme Court 210), that the Government has full power to effect change in the age of superannuation of its employees on relevant considerations. In the matter of B. Prabhakar Rao, the judgment in the case of K. Nagaraj and Others vs. State of Andhra Pradesh and Another (AIR 1985 Supreme Court 551) has been referred to. In the matter of K. Nagaraj, it is observed (in Paragraph-37 of the judgment) by the Apex Court as under: “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 carries 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 conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule-making power. The rules and amendments made under the provision 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.” The decision rendered in K. Nagaraj’s case is again followed by the Apex Court in the case of State of Himachal Pradesh and Another vs. Kailash Chand Mahajan and Others (AIR 1992 Supreme Court 1277). In paragraphs-47 and 48 in Kailash Chand Mahajan’s case, it is observed thus: “Certainly no one could quarrel with the introduction of that measure as of policy. In fact this Court has repeatedly recognized such a right of the State. It is enough if we quote K. Nagaraj Vs. State of Andhra Pradesh, AIR 1985 SC 551 .” “….. The Legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if, none are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law malafide. This kind of ‘transferred malice” is unknown in the field of legislation.” In the case of Yeshwant Singh Kothari vs. State Bank of Indore and Others (1993 Supp (2a) Supreme Court Cases 592), the Apex Court again relying upon K. Nagaraj’s case, has held that it is a policy matter of the Bank to provide for age of retirement for the employees of the Bank at 58 years or completion of 30 years of service whichever is earlier and that no arbitrariness could be imputed. 3. From the above, it is clear that fixing the age of superannuation or enhancing/reducing the age of superannuation is a policy matter and cannot be interfered with, inasmuch as, the Government has full power to fix the age of superannuation of its employees on relevant considerations. We do not find any arbitrariness in the action of the State Government, inasmuch as, the State Government based on relevant considerations, has enhanced the age of retirement from 58 to 60 years. 4. We do not find any arbitrariness in the action of the State Government, inasmuch as, the State Government based on relevant considerations, has enhanced the age of retirement from 58 to 60 years. 4. It is by now well established that this Court has limited role to play in such matters by exercising the power of judicial review. This Court cannot enter into the merits of the decision. In this context, it is relevant to note the decision in the case of Delhi Development Authority and Another vs. Joint Action Committee, Allottee of SFS Flats and Others ((2008) 2 Part 5 SCC 672), wherein it is held that: “Para – 64: An Executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct to contend that the court shall lay its judicial hands off. When a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. Para-65: Broadly, a policy decision is subject to judicial review on the following grounds: .(a) if it is unconstitutional; .(b) if it is dehors the provisions of the Act and the regulations; .(c) if the delegatee has acted beyond its power of delegation; .(d) if the executive policy is contrary to the statutory or a larger policy.” We do not find that the case on hand falls in any of the aforementioned categories. Since the action of the State Government is based on relevant considerations, this court declines to interfere in the policy matter of the State Government. Accordingly, the Writ Petition is liable to be dismissed. Hence, the same is dismissed.