PETITIONER: HEAVY ENGINEERING MAZDOOR UNION Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT: 12/03/1969 BENCH: <NAME>, J.M. BENCH: <NAME>, J.M. BHARGAVA, <NAME> CITATION: 1970 AIR 82 1970 SCR (1) 995 1969 SCC (1) 765 CITATOR INFO : F 1975 SC1329 (5) MV 1975 SC1331 (124,127) F 1975 SC1737 (2,3) D 1979 SC1628 (29) RF 1981 SC 212 (38) F 1982 SC 697 (21) D 1984 SC1813 (16,21) R 1984 SC1813 (16,21) D 1984 SC1897 (6,8) F 1985 SC 488 (12) RF 1988 SC 469 (6) D 1988 SC1369 (13) F 1988 SC1708 (13) D 1989 SC1713 (10) ACT: Industrial Disputes Act , 1947, ss. 2(a) and 10-Industry carried on by company incorporated under the Companies Act , 1956-Entire share capital subscribed by <ORG>- Whether industry carried on "under the authority of" <ORG> and if that the "appropriate government". Industrial Employment (Standing Orders) Act , 1946-Questions pending before certifying authority-If bar to a reference of adjudication under s.10 of the Industrial Disputes Act , 1947. HEADNOTE: <ORG> was incorporated under the Companies Act and its entire share capital contributed by <ORG>. It was therefore a <ORG> Company under s. 617 of the Companies Act. its Memorandum and Articles conferred large powers on <ORG> including the power to give directions as regards the operation of the Company, the wages and salaries of its employees, and the appointment of directors of the company. Certain disputes arose between the Company and its workmen whereupon <ORG> referred these disputes by a notification in November 1956 to <ORG> for adjudication. The workmen through their union filed a writ petition under Arts. 226 and 227 of the Constitution disputing the validity of the reference on two grounds :(i) that the appropriate <ORG> to make the said reference under s. 10 of the Industrial Disputes Act, 1947 was <ORG> and not <ORG>; and (ii) that the questions referred for adjudication were at the time actually pending before the certifying authority under the Industrial Employment (Standing Orders) Act , 1946, on an application for modification of the Company's Standing Orders and therefore the said questions would not be industrial disputes which could be validly referred for adjudication. <ORG> negatived both the contentions and upheld the validity of the reference. In appeal to this Court under Art. 133 (i) (c) it was contended inter alia on behalf of the appellant that the industry in question was "carried on under the authority of <ORG>" within the meaning of s. 2(a) of the Act and the reference under s. 10 was therefore required to be made by that <ORG>. HELD, Dismissing the appeal : (i) The words "under the authority of" mean pursuant to the authority, such as where. an agent or a servant acts under or pursuant to the authority of his principal or master. That obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association. An incorporated company has a separate existence and the law recognises it as a juristic person separate and distinct from its members. The mere fact that the entire share capital of the respondent-company was contributed by <ORG> and the fact that all its shares were L 11 Sup Cl/69-14 996 held by the President and certain officers of <ORG> did not make any difference. [998 H-999 G] Salomon v. <ORG>,  A.C. 22; <NAME> v. <ORG>,  A.C. 484; <NAME> v. <NAME>,  1 Q.B. 515; <NAME> v. <ORG>,  (2) K.B. 781; <CITATION> officer Visakhapatnam  4 S.C.R. 99 at 188, per Shah J; <NAME> v. <ORG>  1 K.B. 18 at 25, 26; London County Territorial and Auxiliary Forces Association v. <NAME>,  2 All. E.R. 432; referred to. Although extensive powers were conferred on <ORG> to give directions in regard to various matters, these powers were derived from the company's memorandum and articles and not by reason of the company being the agent of <ORG>. [1000 B] The definition of "employer" in s. 2(g) of the Act suggests that an industry carried on by and under the authority of the <ORG> means either the industry carried on directly by a department of the <ORG>, such as <ORG> or the <ORG>, or one carried on by such department through the instrumentality of an agent. [1001 <CITATION> ,  (1) L.L.J. 488; <CITATION> ,  (1) L.L.J. 734: <CITATION> , A.I.R. 1963 Bom. 267, referred to. (ii) There was no force in the contention that as the questions relating to the modification of the company's Standing Orders were pending before the certifying authority under the Industrial Employees (Standing Orders) Act , no reference could be made relating to these under s. 10 of the Act. [1001 D] Management of Bangalore Woollen, Cotton and Silk Mills Co. Lid. v. Workmen,  1 S.C.R. 581; <CITATION> ,  2 S.C.R. 131, followed. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1463 of 1968.

Appeal from the Judgment and order dated September 5, 1967 of <ORG> in Civil Writ Jurisdiction Case No. 921 of 1966.

<NAME>, <NAME> and <NAME>, for the appellant. <NAME>, for respondent No. 1.

<NAME>, for respondent No. 2.

The Judgment of the court was delivered by <NAME>, J.-The Heavy Engineering Corporation Ltd., Ranchi is a company incorporated under the Companies Act , 1956. Its entire share capital is contributed by <ORG> and all its shares have been registered in the name of the President of India and certain officers of <ORG>. It is, therefore, a <ORG> company within the 99 7 meaning of s. 617 of the Companies Act. The Memorandum of Association and the Articles of Association of the company confer large powers on <ORG> including the power to give directions as regards the functioning of the company. The wages and salaries of its employees are also determined in accordance with the said directions. The directors of the company are appointed by the President. In its standing orders, the company is described as a <ORG> undertaking. The workmen employed by the company have two unions, <ORG> and <ORG>.

Certain disputes having arisen between the company and its workmen, into which it is not necessary for the purposes of this judgment to go, <ORG> by its notification dated November 15, 1966 referred two questions to <ORG> for its adjudication : firstly, as regards the number of festival holidays and secondly, whether the second Saturday in a month should be an off-day. <ORG> thereupon filed a writ petition under Arts. 226 and 227 of the Constitution in <ORG> Patna disputing the validity of the said reference on two grounds : (1) that the appropriate Government to make the said reference under s. 10 of the Industrial Disputes Act, 1947 was <ORG> and not <ORG> and (2) that the questions referred to were at the time actually pending before the certifying authority under the Industrial Employment (Standing Orders) Act , 1946 on an 'application for modification of the company's standing orders and that therefore the said questions would not be industrial disputes which could be validly referred for adjudication. Before <ORG> it was conceded that the company was not an industry carried on by <ORG> but the contention was that considering the fact that the entire share capital was contributed by <ORG> and extensive powers were conferred on it, the company must be regarded as an industry carried on under the authority of <ORG> and that therefore it was that Government which was the appropriate Government which could make the said reference. On the second question, the contention was that the Industrial Employment (Standing Orders) Act was a self-contained code, that once a question relating to conditions of service was before the certifying authority constituted under that Act and was pending before him, the said question could not be an industrial dispute which could be referred for adjudication under s. 10 of the Industrial Disputes Act. It was urged that consequently the reference on both the grounds was invalid. <ORG> negatived both the contentions and upheld the validity of the reference. <ORG> obtained a certificate under Art. 1 3 3 (1) (c) and filed this appeal impugning the correctness of that decision.

Under s. 2(a) 'appropriate Government' (leaving aside the words which are not relevant for our purposes) means (i) in relation to any industrial dispute concerning an industry carried on by or under the authority of <ORG>, <ORG>, and (ii) in relation to any other industrial dispute <ORG>. As was done before <ORG>, Mr. <NAME>, appearing for the appellant-union, conceded that he would not contend that the company is an industry carried on by <ORG> but argued that it is an industry carried on under the authority of <ORG> and therefore it is that Government and not <ORG> which is the appropriate Government for making a reference under s. 10 of the Act. The first question raised by the appellant-union, therefore, turns solely upon the construction of the words " carried on under the authority of <ORG>". The contention was primarily grounded on the fact that the entire share capital of the company has been contributed by <ORG>, all its shares are held by the President and certain officers of <ORG> presumably its nominees and extensive control is vested in <ORG>.

Before considering the authorities cited by counsel before us, we proceed first to examine the meaning of the words used by <ORG> in the definition clause of 'appropriate Government'. It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carries on the undertaking. The undertaking, therefore, is not one carried on directly by <ORG> or by any one of its departments as in the case of posts and telegraphs or the railways. It was, therefore, rightly conceded both in <ORG> as also before us that it is not an industry carried on by <ORG>. That being the position, the question then is, is the undertaking carried on under the authority of <ORG>? There being nothing in s. 2 (a) , to the contrary, the word 'authority' must be construed according to its ,ordinary meaning and therefore must mean a legal power given by one person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authorises B to sell certain goods for and on his behalf and B does so, B incurs no liability for so doing in respect of such goods and confers a good title on the purchaser. There clearly arises in such a case the relationship of a principal and an agent. The words "under the authority of" mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. Can the respondent-company, there-

99 9 fore, be said to be carrying on its business pursuant to the authority of <ORG> ? That obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association. An incorporated company, as is well known, has a separate existence and the law recognises it as a juristic person, separate and distinct from its members. This new personality emerges from the moment of its incorporation and from that date the persons subscribing to its memorandum of association and others joining it as members are regarded as a body incorporate or a corporation aggregate and the new person begins to function as an entity. (of <NAME> v. <ORG>) (1). Its rights and obligations are different from those of its shareholders. Action taken against it does not directly affect its shareholders. The company in holding its property and carrying on its business is not the agent of its shareholders. An infringement of its rights does not give a cause of action to its shareholders. Consequently, it has been said that if a man trusts a corporation he trusts that legal persona and must look to its assets for payment; he can call upon the individual shareholders to contribute only if the Act or charter creating the corporation so provides. The liability of an individual member is not increased by the fact that he is the sole person beneficially interested in the property of the corporation and that the other members have become members merely for the purpose of enabling the corporation to become incorporated and possess only a nominal interest in its property or hold it in trust for him. (cf. <NAME>'s Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective, of the nationality of its members and does not cease to have that nationality even if in times of war it falls under enemy control. (cf. <NAME> v. <ORG>) and <NAME> v. Donnersmarck(3). The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association. Therefore, the mere fact that the entire share capital of the respondent-company was contributed by <ORG> and the fact that all its shares are held by the President and certain officers of <ORG> does not make any difference. The company and the shareholders being, as aforesaid, distinct entitles the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or <ORG>. A notice to the President of India and the said officers of <ORG>, who hold between them all the shares of the company, would not be a notice to the (1)A.C.22. (2)  A.C. 484.

(3) [1955] 1 Q.B. 515.

company; nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers.

It is true that besides <ORG> having contributed the, entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But these powers are derived from the company's memorandum of association and the articles of association and not by reason of the company being the agent of <ORG>. The question whether a corporation is an agent of the <ORG> must depend on the facts of each case. Where a statute setting up a corporation so provides, such a cor- poration can easily be identified as the agent of the <ORG> as in <NAME> v. Public Works Commissioners(1) where <NAME>, J. said that the <ORG> does in certain cases establish with the consent of <ORG> certain officials or bodies who are to be treated as agents of the <ORG> even though they have the power of contracting as principals. In the absence of a statutory provision, however, a commercial corporation acting on its own behalf, even though it is controlled wholly or partially by a <ORG> department, will be ordinarily presumed not to be a servant or agent of the <ORG>. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the <ORG>. (see <CITATION> , Visakhapatnam(2) and <NAME> v. Hannaford(3). Such an inference that the corporation is the agent of the <ORG> may be drawn where it is performing in substance governmental and not commercial functions. (cf. <ORG> v. Nichols(4) In this connection the meaning of the word 'employer' as given in s. 2 (g) of the Act may be looked at with some profit as the legislature there has used identical words while defining (an employer'. An employer under cl. (g) means, in relation to an industry carried on by or under the authority of any department of <ORG> or a <ORG> <ORG>, the authority prescribed in that behalf or where no such authority is prescribed, the head of the department. No such authority has been prescribed in regard to the business carried on by the respondent- (1)  2 K.B. 781.

(2) [1964] 4 S.C.R. 99 at 188, per Shah, J (3) [1950] 1 K.B. 18 at 25, 26.

(4) [1948] 2 All. E.R. 432.

company. But that does not mean that the head of the department which gives the directions as aforesaid or which supervises over the functioning of the company is the employer within the meaning of s. 2(g) . The definition of the employer, on the contrary, suggests that an industry carried on by or under the authority of the <ORG> means either the industry carried on directly by a department of the <ORG>, such as the posts and telegraphs, or the railways, or one carried on by such department through the instrumentality of an agent. We find that the view which we are inclined to take on the interpretation of s. 2(a) is also taken by <ORG>, Punjab and Bombay. (see <CITATION> (1), <CITATION> (2) and <CITATION> (3). In our view the contention that the appropriate <ORG> to make the aforesaid reference was the Central <ORG> and not the State <ORG> has no merit and cannot be sustained. The second contention that the questions referred to were regulated by the company's standing orders and an application for a modification of the said standing orders relating to those questions was actually pending before the certifying authority under the Industrial Employees (Standing Orders) Act precluded a reference thereof under s. 10 of the Act requires no discussion as it is covered by the decision in <CITATION> (4) and <CITATION> (5).

Thus neither of the two contentions can be upheld. In the result the appeal is dismissed but there will be no order as to costs.

R.K.P.S. Appeal dismissed. (1) (1952] 1 L.L.J. 388. (2) [1961] 1 L.L.J. 734. (3) A.I.R. 1963 Bom. 267. (4) [1968] 1 S.C.R. 581. (5) [1969] 2 S.C.R. 131.


PETITIONER: K. NAGARAJ & ORS. ETC. ETC., Vs. RESPONDENT: STATE OF ANDHRA PRADESH & ANR. ETC. DATE OF JUDGMENT18/01/1985 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. MUKHARJI, SABYASACHI (J) CITATION: 1985 AIR 551 1985 SCR (2) 579 1985 SCC (1) 523 1985 SCALE (1)31 CITATOR INFO : R 1985 SC 724 (15) D 1986 SC 210 (16,17,26,29) F 1987 SC 415 (16) RF 1987 SC1676 (16) R 1990 SC 334 (98,99) RF 1992 SC1277 (47,48,97) ACT: Civil Service-Age of superannuation-Age reduced to 55 years for all <ORG> employees, other than those in last grade service, in accordance with the election manifesto. to provide greater employment opportunities to the youths- Whether the order and Notifications are unreasonable, arbitrary and violative articles 14,16, 21 and 300-A of the Canstitution-G.O.M.S- 35 (GAD, dated 8.2 83 and Notification read with the Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance, 1983 omitting Proviso to Rule 2, 56 of the AP Fundamental Rules and Rule 231 of the Hyderabad Civil Service Rule-"Retirement benefits" measuring of-Limits of judicial Review of Policy decisions of the <ORG>-Mala fides, burden of proof-Transferred Malice in unknown in the field of legislation. HEADNOTE: A new political party called <ORG> swept to power in the 1983 <ORG> elections, within a month of assuming office, the new <ORG>, passed an order No. G.O.M.S. 36 GAD Services dated 8.2.83 (appending two Notifications) stating that in order to provide greater employment opportunities to the youths it had decided to reduce the age of superannuation of all <ORG> employees, other than those in the last grade service, from 58 to 55 years with elect from February 28, 1983. Over 18,000 employees and 10,000 public sector employees were superannuated, as a result of the order. The aggreived employees, therefore filed writ petitions and challenged the constitutional validity of the said order and Notifications under Articles 14, 16, 21 and 300A of the Constitution. According to the petitioners: (i) there was no basis at all for reducing the age of retirement from 58 to 55, as nothing had happened since October 29,1979 on which date the age limit was raised from 55 to 58 years; (ii) providing employment opportunities to the youths has no relevance on the question of fixing the age of retirement; (iii) the government had exercised its power arbitrarily without having regard to factors which are relevant on the fixation of the age of retirement; (iv) the government had acted unreasonably in not giving any previous notice to the employees which would have enabled them to arrange their affairs on the eve of retirement; (v) the government was estopped from reducing the age of retirement to 55 since the employees had acted on the representations made to them in 1979 by increasing the age of retirement from 55 to 58; (vi) as a result of the increase in the age of retirement from 55 to 58 years in 1979, a vested right had accrued to the 580 employees. which could be taken away if at all, only from future entrants to the government service; (vii) retirement of experienced and mature persons from government service will result in grave detriment to public services of the <ORG> (viii) the decision of the government is bad for a total non-application of the mind to the relevant facts and circumstances bearing on the question of age of retirement like increased longevity; and (ix) the government had not even considered the enormous delay which would be caused in the payment of pensionary benefits to employees who were retired from service without any pre thought. The respondent <ORG> filed two affidavits traverssing each and every ground of challenge and asserted that the age of retirement was reduced because "it is the duty of the <ORG>, within the- limits of its economic capacity and development to make effective provisions to solve the unemployment problem which has gone upto 17,84,699 by December 31, 1 982. The contentions of the <ORG> were: (i) the question of the age of superannuation was not referred to <ORG> and therefore, its recommendations to increase the age from 55 to 58 was only casual not based on relevant criteria and has no relevance to the present decision of the <ORG> to reduce the age of retirement; (ii) as a result of the unwarranted increase in the age of superannuation from 55 to 58 not only was there a one-third increase in the number of unemployed youths but also the chances of promotion of the service personnel had deteriorated resulting in wide spread frustration and unemployment: (iii) the age of retirement was reduced because it is the duty of the <ORG>, within its limits of economic capacity and development, to make effective provision to solve the unemployment problem; (iv) the fact that the average expectation of life is about 70 years is not a ground for increasing the age of retirement of <ORG> employees; (v) the general trend was for reducing the age of retirement; (vi) the <ORG> of Kerala and Karnataka had reduced the age of retirement of their employees to 55 and in some other <ORG>s in India also the age of retirement is 55, (vii) the present decision was taken by the <ORG> in order to fulfill its commitment that it will make welfare measures in order to improve the lot of the common man, and particularly, in order to afford opportunity to qualified and talented unemployed youths whose number was increasing enormously due to expansion of educational facilities; (viii) the present measure was intended to have a salutory effect on the creation of incentives to the deserving employees; and (ix) the question as regards the age of retirement is a pure question of governmental policy affording no cause of action to the petitioners to file the writ petitions. Rule Nisi was issued on the writ petitions by the court on February 25,1983. <ORG> was prorogued on April 9, 1983. On the very next day, i.e. April 10, 1983 the Governor promulgated Ordinance No. 5 of 1983 called the Andhra Pradesh Public Employment (Regulation of conditions of Service) Ordinance, 1983 by which proviso to Rule 2 and Rule 56 of the Andhra Pradesh Fundamental Rules and Rule 231 of the Hyderabad Civil Service Rules-the rule governing the age of retirement- were omitted. Dismissing the petitions, the <ORG> ^ HELD: 1.1 Public interest demands that there ought to be an age of retirement in public services. The poin of the peak level of efficiency is bound to differ 581 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 and considerations of varying vigour and applicability which must, as far as possible, be left to the judgment of the executive and the legislature. [ 90F-H; 591A- <CITATION> ,  2 SCR 348 referred to. 1.2 While resolving the validity of policy issues like the age of retirement, it is not proper for the <ORG> to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts. That s an exercise which the administrator and the legislature have to undertake. This is so because often, the <ORG> 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. [591E; C] 1.3 It is not that every question of policy is out side the scope of judicial review or that necessarily, there are no manageable standards for reviewing any and every question of policy. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the <ORG>'s interference would be called for though not for fixing the age of retirement but for mandating a closer consideration, of the matter. [591C-D] 2. Fixing the age of superannuation by reducing it from 58 to 55 would be unreasonable or arbitrary if it does not accord with the principles which are relevant for fixing the age of retirement or if it does not subserve any public interest. On the other hand, the Ordinance shall have to be held valid, if the fundamental premise upon which it proceeds has been accepted as fair and reasonable in comparable situations, if its provisions bear nexus with public interest and if it does not offend against the Constitutional limitations either on legislative competence or on the legislative power to pass laws which bear on fundamental rights. [591G-H: 592A] 3.1 The report of <ORG> has to be kept out of consideration in so far as the question of the age of retirement is concerned. The contention that the reversal of the well considered decision of the <ORG> to raise the age to 58 within a short span of less than three years and a half, as nothing had happened in between warranting a departure from it, is fallacious because the question, as to whether the age of retirement should be raised which was then 55, was not referred to the <ORG> at all in the terms of reference. Further the decision which the <ORG> took later to increase the age of retirement from 55 to 58 years was not based on the recommendation of the <ORG>. [595D; C] 582 3.2 The Power of a <ORG> to inquire into a question must depend upon the terms of the reference and not upon the statements made on the floor of the <ORG>. [595A] 3.3 A review of retirement benefits would undoubtedly cover the examination of the rules or schemes relating to pension, provident fund, gratuity, encasement of leave etc., but it cannot include the power to examine the question as regards the fixation of the age of retirement. Therefore, paragraph 9 47 of the report of One-man Pay <ORG> which begins by saying that "since the terms of reference of the <ORG> cover the review of the existing retirement benefits, the reference would naturally include the age of retirement" was an erroneous and unwarranted reading of the terms of the reference. [594F; E] 4.1 No law can be said to be bad because it is passed immediately on the assumption of office by a new <ORG>. Were this so, every decision taken by a new <ORG> soon after assumption of office shall have to be regarded as arbitrary. I 595E] 4.2 The reasonableness of a decision in any jurisdiction, does not depend upon the time which it takes. A delayed decision of the Executive can also be bad as offending against the provisions of the Constitution and it can be no defence to the charge of unconstitutionality that the decision was taken after the lapse of a long time. Conversely, decisions which arc taken promptly cannot be assumed to be bad because they arc taken promptly. [595F-G] 4.3 Every decision has to be examined on its own merits, in order to determine whether it is arbitrary or unreasonable. Here, the <ORG> <ORG> had the relevant facts as also the reports of the various Central and <ORG> Pay <ORG>s before it, 011 the basis of which it had taken a reasonable decision to reduce the age of retirement from 58 to 55. The aid and assistance of a well trained bureaucracy which notoriously, plays an important part not only in the implementation of policies but in their making was also available to the <ORG>. Therefore, the speed with which the decision was taken cannot, without more, invalidate it on the ground of arbitrariness. [59-G; 596.A- B] 5.1 By and large, in the formulation of matters of legislative policy, the government of the day must be allowed a free, though fair play and there need not necessarily be a uniform age of retirement all over India. 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 <ORG> of Tamil Nadu has fixed it at 58 or that the age limit should be fixed at 62 or 65. There is no one fixed or focal point of reasonableness. There can be a 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. [596C-D; F] 5.2 The area between the ages of 55 and 58 is regarded in our country as a permissible field of operation for fixing the are of retirement. Neither the American nor the English notions or norms for fixing the retirement age can render invalid the basis which is widely accepted in our country as reasonable for that purpose. [597D-E] 5.3 On the basis of the data furnished in the White Paper presented to the <ORG> Legislative Assembly in March 1983 on the question of "reduction in 583 the age of superannuation from 58 years to 55 years" by the new <ORG> Party controlled <ORG> <ORG>, the reduction of the age of retirement from 58 to 55, in the instant case is not hit by Article 14 or 16 of the Constitution and the <ORG> <ORG> or the <ORG> has not acted arbitrarily or irrationally. The precedents within our country itself for fixing the retirement age at 55 or for reducing it from 58 to 55 and their acceptance depending upon the employment policy of the <ORG> of the day make it impossible 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 <ORG> or the <ORG> 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. The reports of the various <ORG>s 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. Here, the impugned policy is actuated and influenced predominantly by that consideration. [604C-F] However, the question of age of retirement should always be examined by the <ORG> with more than ordinary care, more than the <ORG> <ORG> 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 f`or the welfare of the citizens is, of necessity, vital for the survival or the <ORG>. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose. [604F-H ] 6. It is well settled that Article 311(2) of the Constitution 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 his behalf is to visit him with evil consequences. The termination of service of an employer on account of his reaching the age of superannuation does not amount to his removal from service within the meaning of Article 311(2). Here there being no arbitrariness in the fixation of reduced retirement age, there is no violation of Article 311(2) of the Constitution, either. [605C; F] Satish Chandra V Union of India SCR 655; <CITATION> .,  1 SCR 26; <CITATION> ,  SCR 571 ; <CITATION> ,  SCR 828; <CITATION> ,  SCR 1052; <CITATION> ,  1 SCR 693, relied on. <CITATION> . <ORG>,  5 SCR 683 explained. 7. Though an ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the <ORG> legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law call be. An executive act is liable to be struck 584 down on the ground of non-application of mind. Not the act of a <ORG>. The power to issue an ordinance is no an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an ordinance is contained in Article 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is "Legislative Power of the Governor". This power is plenary within. its field like the power of the <ORG> <ORG> to pass laws and there are no limitations upon that power except those to which the legislative power of the <ORG> <ORG> is subject. [607C; <CITATION> .  2 SCR 272 at pp. 282, 291; <CITATION> ,  1 SCR 947 at pp. 964, 967; High <ORG> of <CITATION> ,  1 SCR 26; <NAME> v. General Manager, <ORG>,  5 SCR 683 distinguished. 8. If a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement at all. That will be contrary to public interest because the <ORG> cannot afford the luxury of allowing Its employees o continue in service after they have passed the point of peak performance. 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. [608D-E] 9.1 The burden to establish mala fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions. Besides the ordinance making power being a legislative power, the argument of mala fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. If no reasons are so stated as appear from the provisions enacted by it. Its reasons for passing a law or those that are stated in the Objects and Reasons. 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 mala fide. This kind of 'transferred malice' is unknown in the field of legislation. [608G-H; 609A-B] 9.2 The amendment made to the Fundamental Rules in the exercise of power conferred by Articles 309 by which the proviso to Rule 2 was deleted reirospectively, with effect from February 23, 1983 by G.O.M.S. dated P 17-2-83 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 <ORG> but until that is done the exercise of the power cannot be challenged as lacking in authority. [610B-C] 9.3 It is well-settled that the service rules can be as much amended, as they can be mader, 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 to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. [609H; 610A-B] B.s. <CITATION> ,  3 S.C.R. 575 582- <CITATION> [ 1975] 3 S.C.R. 963, 965, followed 585 JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition Nos. 1073-1100, 1117-19 1229-95, 142 -1554, 1746-2140, 2155-2271, 2396-2459. 1198-1217, 1302-12, 1314-15, 1566-1641, 1140-70, 2360-95, 1643-1725,2272-2329,2152,2332,2339,2491,3486-89, 2498-2521, 2522, .533-74,2611-2638 and 2531 of 1983.

(Under Article 32 of the Constitution of India) AND Writ Petition Nos. 4218,4571 and 5266-5280 of 1983 Under article 32 of the Constitution of India) AND Transfer Case Nos. 44-339 of 1983 <CITATION> and <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Petitioners. <NAME>, Attorney General, <NAME>,<NAME> and <NAME> for the Respondents.

<NAME> for the <ORG>.

Miss <NAME> for the <ORG>.

The Judgment of the Court was delivered by CHANDRACHUD, <NAME> In the elections held to <ORG> of Andhra Pradesh in January 1983, a new political party called <ORG> was swept to power. It assumed office on January 9, 1983. On February 8, 1983 an Order (G.O. Ms. No. 36) was issued by <ORG> stating that it had decided to reduce the age of superannuation of all <ORG> employees, other than in the last <ORG>, from 58 to 58 years. Two notifications issued in exercise of the power conferred by the Proviso to Article 309 read with Article 313 of the Constitution was appended to that order. The relevant Fundamental Rules were amended by the first notification, while the corresponding rules of the Hyderabad Civil Services Rules were amended by the second notification. By these notifications, every <ORG> servant, whether ministerial or non-ministerial but not belonging to the last <ORG>, who had already attained the age of 55 years was to retire from service with effect from February 28, 1983. Speaking to the <ORG> employees in the Secretariat premises the next day, the Chief Minister justified the reduction of the retirement age from 58 to 55 years on the ground that it had become necessary to provide greater employment opportunities to the youths. Over 18,000 <ORG> employees and 10,000 public sector employees were superannuated as a result of the order.

These writ petitions were filed by the <ORG> employees to challenge the aforesaid order and the notifications on the ground that they violate Articles 14, 16, 21 and 300A of the Constitution. The case of the petitioners as laid in the writ petitions is that there was no basis at all for reducing the age of retirement from 58 to 55; that the age of retirement was increased from 55 to 58 by <ORG> by a notification dated - October 29, 1979 and nothing had happened since then to justify reduction of the age of retirement again to 5 i; that providing employment opportunities to the youths h Is no relevance on the question of fixing the age of retirement; that the <ORG> had exercised its power arbitrarily without having regard to factors which are relevant on the fixation of the age of retirement; that the <ORG> had acted unreasonably in not giving any previous notice to the employees which would have enabled them to arrange their affairs on the eve of retirement; that the <ORG> was estopped from reducing the age of retirement to 55, since the employees had acted on the representation made to them in 1979 by increasing the age of retirement from 55 to 58; that as a result of the increase in the age of retirement from 55 to 58 years in 1976, a vested right had accrued to the employees, which could be taken away, if at all, only from future entrants to the <ORG> service; that retirement of experienced and mature persons from <ORG> service will result in grave detriment to public services of the <ORG>; and that, the decision of the <ORG> is bad for a total non-application of mind to the relevant facts and circumstances bearing on the question of the age of retirement, like increased longevity. The petitioners aver that the <ORG> had not even considered the enormous delay which would be caused in the payment of pensionary benefits to employees A who were retired from service without any pre- thought.

A counter-affidavit was filed on behalf of the <ORG> of Andhra Pradesh by Shri <NAME>, Joint Secretary in <ORG>, at the stage of admission of the writ petitions. It is stated in that affidavit that the recommendation of the one <ORG> appointed by the <ORG> of Andhra Pradesh. after which the age of retirement was increased to 58 in 1979, has no relevance to the present decision of the <ORG> to reduce the age of retirement; that the fact that the average expectation of life is about 70 years is not a ground for increasing the age of retirement of <ORG> employees; that the general trend was for reducing the age of retirement; that the <ORG> of Kerala and Karnataka had reduce the age of retirement of their employees to 55, though it was earlier increased from 55 to 58; that in some <ORG>s in India the age of retirement is 55 and not 58; the present decision was taken by the <ORG> in order to fulfill its commitment that it will take welfare measures in order to improve the lot of the common man, and. particularly, in order to afford opportunities to qualified and talented unemployed youths whose number was increasing enormously due to expansion of educational facilities; that the <ORG> employees was stagnated in the lower positions due to the increase in the age of retirement from 55 to 58: and that, the present measure was intended to have a salutary effect on the creation of incentives to the deserving employees The affidavit says further that the question as regards the age of retirement is a pure question of <ORG>al policy affording no cause of action to the petitioners to file the writ petitions. The affidavit asserts that the <ORG> had reviewed the situation arising out of the enhancement of the age of retirement from 55 to 58 in 1979 and that it was revealed that on account of the enhancement of the age of retirement, the chances of promotion of the service personnel had deteriorated resulting in widespread frustration and unemployment. The inconvenience alleged by the petitioners in the matter of payment of their pension and other retirement benefits was imaginary, since the <ORG> was making extensive arrangements to disburse such benefits expeditiously. By the counter-affidavit, the <ORG> of Andhra Pradesh denied that any of the provisions of the Constitution were violated by the impugned decision to reduce the age of retirement.

Another affidavit was filed on behalf of <ORG>, after the rule nisi was issued in the writ petitions.

The affidavit is sworn by <NAME>, Deputy Secretary to <ORG>. Finance and Planning. It is stated in that affidavit that the question of the age of superannuation was not referred to the one <ORG> of <NAME>, which was appointed by <ORG> on November 3, 1 977; that the recommendation made by <ORG> was casual and was not based on relevant criteria; that as many as 12,04,008 educated youths were left without employment on September 30, 1979 as a result of the unwarranted increase in the age of superannuation from 55 to 58; that the number of unemployed youths had grown to 17,84,699 by December 31, 1982; and that, the age of retirement was reduced because it is the duty of the <ORG>, within the limits of its economic capacity and development to make effective provision to solve the unemployment problem. The rest of the averments i`1 this affidavit are on the same lines as in the affidavit of Shri <NAME>.

Rule Nisi was issued on the writ petitions by this Court on February 25, 1983. <ORG> of Andhra Pradesh was prorogued on April 9, 1983. On the very next day, that is, on April l0th Governor of Andhra Pradesh promulgated Ordinance No. 5 of 1983 called 'the Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance.' The Ordinance was passed "to regulate the recruitment and conditions of service of persons appointed to Public Services and posts in connection with the affairs of the State of Andhra Pradesh and the officers and servants of <ORG>". We are not concerned in these writ petitions with clauses 3 to 9 of the Ordinance which mostly regulate conditions of service. Clause 10(1) of the Ordinance prescribes that every <ORG> employee, not being a workman and not belonging to <ORG> shall retire from service on the afternoon of the last day of the month in which he attains the are of 55 years. Clause 10(2) provides that every <ORG> employee, not being a workman but belonging to the <ORG>, shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Clause 10(3) provides that every workman belonging to the <ORG> or employed on a monthly rate of pay in any service notified as Inferior, shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Workmen belonging to <ORG> or any service other than the <ORG> notified as Inferior have to retire on the afternoon of the last day of the month in which they attain the age of 55 years. By clause 15, All Rules and Regulations made under the proviso to Article 309 or continued under Article 3 l 3 of the Constitution or made under any other law for the time being in force, governing the recruitment and conditions of service of the <ORG> employees, continue to be in force in so far as they are not inconsistent with the provisions of the Ordinance. Clause 16 of the Ordinance provides that no amendment to the Fundamental Rules shall be deemed to be invalid merely by reason of the fact that the proviso to rule 2 of the Fundamental Rules laid down that the said rules shall not be modified or replaced to the disadvantage of any person already in service. It provides further that all amendments made to the Fundamental Rules and particularly the amendments made by the notification dated February 8, 1983, shall be and shall be deemed always to have been made validly and shall have effect notwithstanding anything to the contrary contained in the proviso to rule 2 of the Fundamental Rules as if the Ordinance was in force on February 8, 1983. Clause 16 of the Ordinance declares that every amendment made before or after the commencement of the Ordinance to the Fundamental Rules and the Hyderabad Civil Services Rules, shall be and shall be always deemed to have applied to all <ORG> employees whether appointed before or after the amendment. Clause 18 of the Ordinance provides by sub-clause (i) that the proviso to rule 2 of the Fundamental Rules shall be and shall be deemed always to have been omitted. Rule 56 of the Fundamental Rules is omitted by Clause l 8(ii) while Rule 231 of the Hyderabad Civil Services Rules is omitted by clause 19 of the Ordinance. The age of retirement was previously governed by these two Rules.

The arguments advanced before us fall under distinct heads, learned counsel having shared their burden equitably. <NAME> challenged the Ordinance on the ground that it is unreasonable. <NAME> challenged it on the ground that the superannuation of the employees by reduction of the age of retirement amounts, in the circumstances, to 'removal' of the employees within the meaning of Article

311. The challenge of <NAME> is based on the ground of a total non application of mind. <NAME>, who appears in a group of three Transferred Cases, contends that the Ordinance is bad because it supersedes all industrial adjudications and overrules even settlements arrived at between the management and the employees. <NAME> contends that the Ordinance is bad because. whereas in the case of compulsory retirement a notice of three months is required to be given by the <ORG> under the relevant rules, in the case of superannuation of employees who had already attained the age of 55 on February 8, 1983; when the first Order was issued, the impugned law gives to the employees a notice of 20 days only since all such employees had to retire on February 28, 1983. <NAME> also challenges the retrospective deletion of the proviso to Rule 2 of the Fundamental Rules as being arbitrary. <NAME> challenges the Ordinance on the ground that it runs into the teeth of the recommendation which <ORG> had made in 1979 in pursuance of which the age of retirement was raised from 55 to 58. <NAME> laid stress on the lack of acceptable reasons to justify the issuance of the Ordinance Like some of the other learned counsel, he suspects the bona fides of the state <ORG> in issuing the Order and the Ordinance. It was suggested by the petitioners, though somewhat in passing, that the object of the State <ORG> in reducing the age of retirement was to get rid of n senior members of <ORG> service whose loyalty was thought to be not above suspicion.

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, <ORG>, the terms 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 counter balance conflicting claims while determining the age of superannua tion. 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. These claims involve considerations of varying vigour and applicability. Often, the <ORG> 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 <ORG> would have declined to entertain pricing disputes covering as wide a range as cars to mustard-oil. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the <ORG>'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. "(l) 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 <ORG> And The Judicial Function'(2): "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".

We must therefore approach the problem before us with a view to determining whether the age of retirement has been reduced from 58 to 55 unreasonably or arbitrarily. Such a fixation of age would be unreasonable or arbitrary if it does not accord with the principles which are relevant for living the age of retirement or if it does not subserve any public interest. On the other hand, the Ordinance shall have to be held valid, if the fundamental premise upon which it proceeds has been accepted as fair and reasonable in comparable situations, if its provisions bear nexus with public interest and if it does not offend against the constitutional limitations either on legis-

(l) E.P Rovappa. State of Tamil Nadu, [1974] 2. SCR

348. (2) Edited by <ORG>, <ORG> and <ORG>, Page 13.

<NAME>, who led the argument on behalf of the petitioners, contends that the provisions of the Ordinance whereby the age of retirement is reduced from 58 to 55 are arbitrary and irrational and hence violative of Articles 14 and 16 of the Constitution for the following reasons:

(a) The age of superannuation was increased from 55 to 58 years with effect from October 29, 1979 after an elaborate and scientific inquiry by <ORG>;

(b) The State Government issued the order reducing the age of retirement within one month of the assumption of office by it. In the very nature of things, no scientific investigation could have been made, no material gathered and no statistics compiled as regards the number of employees who will retire, the number of persons who would get fresh employment and the hardship caused to the superannuated employees by the delay in the payment of retirement benefits to them. Neither the social nor the economic consequences of so grave a decision could have been or were in fact considered by the Government;

(c) The reason given by the Government that promotional opportunities had deteriorated as a result of the increase in the retirement age from 55 to 58 is fanciful and non-existent. That result is indeed produced by the impugned action of <ORG> In 1979, when the age of retirement was increased from 55 to 58 years, promotional opportunities were denied to the employees because, those who would have retired at the age of 55 got a fresh lease of life for another years. Now, when their turn for promotion has come at about the age of 55, they have been superannuated;

(d) The theory that reduction in the age of retirement provides employment opportunities to educated youths is fallacious. The various <ORG> have expressed the view that persons who are required to retire at an early age are compelled by necessity to seek other employments. Even otherwise, not more than one per cent of the unemployed educated youths are likely to get employment as a result of the reduction in the age of retirement from 58 to 55. That is because, not more than 18,000 vacancies arose on account of the reduction in the age of retirement.

(e) The careful planning by the employees of their important affairs of life like the construction of a house, the marriage- of a daughter or the repayment of loans, has been suddenly set at naught by the reduction in the age of retirement;

(f) Two of the most relevant circumstances bearing upon the fixation of the age of retirement have been ignored by <ORG>: increase in longevity and the prevailing age of retirement in public sector undertakings; and

(g) No consideration was given to the plain and direct con sequence of the reduction in the age of retirement, namely, that the State exchequer would have to find and pay Rs. 70 crores on one single day by way of retirement benefits, for which no budgetary provision was made It would appear from these contentions as also from the contions advanced by the other learned counsel that the main plank of the petitioners' case is that the decision to reduce the age of retirement from 58 to 55 is unconstitutional because it is arbitrary, irrational and unconnected with the object which it seeks to achieve.

In this connection, the first ground of challenge to the reduction of the age of retirement is that <ORG> appointed by <ORG> had recommended that the age of retirement should be increased from 55 to 58, that the said recommendation was accepted by <ORG> and consequently, the age of retirement was raised to 58 with effect from October 29, l 979. It is contended that the reversal of that well-considered decision within a short span of less than three and a half years is patently unscientific and arbitrary, especially since no fresh investigation was undertaken to examine the validity of the recommendation made by <ORG>.

The very foundation of this argument is fallacious By G.O. NO. 745 dated November 3,1977 the Government of Andhra Pradesh had appointed <NAME>, a retired member of the l.<ORG> as One-man Pay Revision <ORG> to review the structure of the different scales of pay, dearness allowance and other compensatory allowances of all categories of employees of <ORG>, local bodies, aided institutions, work-charge establishments etc. The terms of reference of the <ORG> were enlarged by the Government by an order dated January 28, 1978 SO as to require the <ORG> to review the existing retirement benefits available to all categories of employees referred to above and to examine the question of extension of retirement benefits to the work-charged establishments. The question as to whether the age of retirement should be raised.

p73 Ordinance which mostly regulate conditions of service. Clause 10(1) of the Ordinance prescribes that every <ORG> employee, not being a workman and not belonging to <ORG> shall retire from service on the afternoon of the last day of the month in which he attains the are of 55 years. Clause 10(2) provides that every <ORG> employee, not being a workman but belonging to the <ORG>, shall retire from service on the afternoon of the last day of the of the <ORG> cover the review of the existing 'retirement benefits', the reference "would naturally include the age of retirement." This was an erroneous and unwarranted reading of the terms of reference. A review of retirement benefits would undoubtedly cover the examination of the rules or schemes relating to pension, provident fund, gratuity, encasement of leave, etc, but it cannot include the power to examine the question as regards the fixation of the age of retirement. The <ORG> says in the same paragraph, as a possible justification of its consideration of the question of the age of retirement, that "it was mentioned on the floor of the <ORG> that this issue is referred to the <ORG>" Our attention has been drawn in this behalf to a statement made in <ORG> on September 20, 1976 by the then Finance Minister, <NAME>, to the effect that one of the terms of reference to the <ORG> was to review the existing retirement age of <ORG> employees. We regret to say that the Finance Minister was not properly briefed when he made that statement. In any case, the power of a <ORG> to enquire into a question must depend upon the terms of the Reference and not upon the statements made on the floor of the <ORG>. The fact that the <ORG> discussed the question of the age of retirement in passing shows that it was not properly seized of that question. The discussion of an important matter like the age of retirement is done in four brief paragraphs which occupy less than two pages of the <ORG>'s report. We do not blame the <ORG> for this hurried and inadequate treatment of an important question. That question was not within its purview. The State <ORG> is therefore justified in its contention that the question of the age of retirement was not referred to the <ORG> and that the decision which the <ORG> took later to increase the age of retirement from 55 to 58 was not based on the recommendation of the <ORG>. The report of the <ORG> has therefore to be kept out of consideration in so far as the question of the age of retirement is concerned and no argument can be founded on the fact that the view of the <ORG> was ignored or that nothing had happened since the date of the report to justify a departure from it.

As regards Shri <NAME>'s argument at (b) above, the fact that the decision to reduce the age of retirement from 58 to 55 was taken by she <ORG> <ORG> within one month of the assumption of office by it cannot justify the conclusion that-lt the decision is arbitrary because it is unscientific in the sense that it is not backed by due investigation or by compilation of relevant data on the subject. Were this so, every decision taken by a new <ORG> soon after assumption of office shall have to be regarded as arbitrary. The reasonableness of a decision, in any jurisdiction, does not depend upon the time which it takes. A delayed decision of the executive can also be had as offending against the provisions of the Constitution and it can be no defense to the charge of unconstitutionality that the decision was taken after the lapse of a long time. Conversely, decisions which are taken promptly cannot be assumed to be bad because they are taken promptly. Every decision has to examined on its own merits in order to determine whether it is arbitrary or unreasonable. Besides, we have to consider the validity of a law regulating the age of retirement. It is untenable to contend that a law is bad because it is passed immediately on the assumption of office by a new <ORG>. It must also be borne in mind that the question as to what should be the proper age of retirement is not a novel or unprecedented question which <ORG> had to consider. There is a wealth of material on that subject and many a <ORG> has dealt with it comprehensively. The <ORG> <ORG> had the relevant facts as also the reports of the various <ORG> and <ORG> <ORG>s before it, on the basis of which it had to take a reasonable decision. The aid and assistance of a well-trained bureaucracy which, notoriously, plays an important part not only in the implementation of policies but in their making, was also available to the <ORG>. Therefore, the speed with which the decision was taken cannot, without more, invalidate it on the ground of arbitrariness.

The contentions of <NAME> which arc 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. 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 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 constraints 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 a 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:

.TB 3.0"

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 1967; enhanced to S years in 1970. Maharashtra 58 years Orissa Previously 55 years; enhanced to 58 years. Rajasthan 55 years (Reduced from 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) .tb .9"

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.

On the question of policy regarding the fixation of retirement age, it will be useful to draw attention to the views expressed upon that question from time to time by the various <ORG>.

Chapter XXXVII of the Report of the Second Central Pay Commission (1959) deals with the question as to the 'Age of Superannuation'. The history and background of the fixation of age of superannuation traced in that Chapter make useful reading. Prior to 1917, the superannuation rule applicable to both ministerial and non ministerial staff was that a <ORG> servant who had attained the age of 55 might be required to retire; but that, in order to avod depriving the <ORG> of the valuable experience of efficient officers and adding unnecessarily to the non-effective charges, the rule should be applied with discretion and, whenever it was applied, reasons should be recorded. In its general effect, here, the rule favoured the retention in <ORG> service of officers who had attained the age of 55, and required inefficiency to be established as the condition of compulsory H retirement. This was considered injurious to the efficiency of the public service, on the ground that most officers lost their keenness and initiative at the age of 55. The rule was, accordingly, changed so as to make retirement at 55 the normal practice, and retention in service beyond that age the exception. A distinction was, however, made between ministerial and non-ministerial officers, presumbly because, it was thought that the duties of the former did not suffer from the effects of advancing age as did those of the others; and it was decided, in effect, that, subject to continued efficiency, ministerial officers should be retained in service till they attained the age of 60. This distinction was, however, abolished in 1937-38, partly as a measure of relieving unemployment-which was acute at that time-but largely in recognition of the invalidity of the distinction and on the consideration that the uncertainty which attended the service of senior men beyond 55 had a disturbing effect on those who were looking forward to succeeding them.

Paragraph 5 of the <ORG>'s Report mentions that the Varadachariar <ORG> had recommended earlier that the age for compulsory retirement should be 58 years for all services- pensionable and non-pensionable-with an option to the <ORG> to retire an employee on the ground of loss of efficiency, at the age of 55. That recommendation involved reduction of the age of superannuation in the case of Class IV servants and in the case of industrial and workcharged staff outside the <ORG>, as well as raising the age for others. But, for some reason or the other, only the latter question was considered and it was ultimately decided in 1949, that there should be no change in the position. The main grounds for the decision were that the majority of persons retiring at the age of 55 were not capable of rendering efficient service any further; their replacement at the age of 55 by younger men would serve the interests of efficiency better; and that, the retirement age should be so fixed as would release men at an age when they would still be fit to render service to the country in other spheres of their choice, even though not wholly capable of keeping up with the fast tempo of <ORG> work, or of meeting its other exacting requirements. It was observed that <ORG> service ages employees quicker and that, the question was one of balancing limited use to <ORG> of such men against, perhaps, their better usefulness to the nation at large.

Paragraph 6 of the <ORG>'s Report shows that the question was reconsidered in 1963 when, the only additional argument advanced against an upward change its adverse effect on educated unemployment. It was recognized that its actual effect would A be small but, importance was attached to its probable impact on public opinion. The earlier decision to maintain the age of retirement at 55 was re-affirmed but, in view of the widespread shortage of trained personnel, it was decided that extension of service beyond that age might be given liberally on the ground of public interest, more specially in the case of scientific and technical personnel. The continuing shortage of trained man-power led to a further review of the problem in 1958; but, apart from laying down the criteria for grant of extension and re-employment, and re-emphasizing the need to retain technical and scientific personnel beyond the age of superannuation, the only significant advance on the earlier decisions was that re- employment or extension might be granted upto two years at a time. thus notwithstanding the recommendation of the Varadachariar <ORG>, the age of superannuation laid down for the non-ministerial staff more than 40 years earlier and for ministerial staff more than 20 years earlier, continued to be in force when the Second Central Pay <ORG> took up that question for examination.

There was an "extraordinary unanimity of opinion" amongst Heads of Departments, distinguished retired public servants, public men and economists who gave evidence before the <ORG> that the age of superannuation should be raised, the only difference being as to whether it should be raised to 58 or 60 years. The great majority of the employees' organizations were also in favour of increasing the age of retirement, the only exception being <ORG>. That <ORG> did not consider the age of 55 as the age of the onset of senile inefficiency, but it was of the opinion that the age of superannuation should not be raised in view of the then prevailing large-scale unemployment. Some of the reasons on which there was unanimity for increasing the age of retirement were; the continuing mental and physical efficiency of most of the <ORG> servants at the age of 55; the increased expectation of life resulting from improved public health conditions; and, the national waste involved in sending men and women into enforced idleness while they were still capable of rendering efficient service. The <ORG> found that there was an overall improvement in public health as shown by the decline in death rate and the increase in expectancy of life at birth. What was even of greater relevance, the <ORG> found that there was improvement in the expectancy of life in the fifties, that is to say, amongst people in the age group of 50 to 60. The data supplied to the <ORG> by the Comptroller and Audi-

tor-General showed that, at least in the case of <ORG> and Class 111 employees, there was a significant increase in the percentage of persons who lived for two years or more after superannuation. On this data, the <ORG> concluded in paragraph 11 of its Report: "Thus, however valid may have been the view taken in 1971, and re-affirmed in 1937-38, that the age of 55 was normally the dividing line between health and efficiency on the one side, and marked physical deterioration and decline in efficiency On the other, there is sufficient reason to think that is no longer so, and that the deviding line can be safely moved a few years upwards." The <ORG> then adverted to the prevailing ages of retirement in foreign countries and reiterated that whether we go by our own "vital statistics" or by the age of retirement prevalent in other countries, there was a clear case for raising the age of superannuation "substantially" above 55 years.

In paragraph 15 of the Report, the <ORG> considered the effect of increasing the age of retirement on the employment situation and concluded that the likely repercussion of increasing the age of retirement on educated unemployment would not be substantial. After talking into account all the relevant considerations, including the fact that most <ORG> servants themselves do not wish to continue in service until they are worn out and have "one foot in the grave", the <ORG> summed up its findings by saying that there was "much in favour of and very little against raising the age of superannuation". The <ORG> recommended that the age of superannuation should be 58 for all classes of public servants including those for whom the retirement age then was 60.

The recommendation of <ORG> that the age of retirement should be raised from 55 to 58 years was not accepted by the <ORG> initially because, it felt that raising the age of retirement would reduce employment opportunities in the immediate future. However. the <ORG> reviewed the position subsequently and raised the age of retirement to 58 years with effect from December 1, 1962. The main considerations which weighed with the <ORG> in reaching this decision were: The shortage of experienced and trained man-power which could be met partly by raising the age of retirement; the insignificant effect which raising the age of retirement would have on employment opportunities; and, the improved life expectation.

<ORG> (1973) dealt with the question of age of superannuation in Chapter 60 of its Report. Paragraph 3 of that Chapter shows that whereas <ORG> Demanded that the age of superannuation should be increased to 60 years on account of increased longevity and on account of the fact that a large number of <ORG> employees were not free from family responsibilities until much later in life because of late marriages, some of the Associations suggested that the age of retirement should be reduced again to 55 years mainly with a view to improving the promotional prospects and providing increased employment opportunities to the educated unemployed in the country.

The conclusions of <ORG> can be summed up thus:-(1) There was a further improvement in the expectancy of life at birth as revealed by the provisional 1971 Census figures; (2) There was improvement in the expectancy of life between the ages of 50 and 55 years, which was of great relevance on the question of fixation of the age of superannuation; (3) There was an appreciable increase since 1950 in the percentage of survivors among the <ORG> employees during about ten years after retirement; (4) Though reduction in the age of superannuation to 55 years would result in making about 96,000 additional jobs available, that factor was counter-balanced by the circumstance that a large number of retired <ORG> employees are obliged to take up some employment or the other after retirement, due to the increased cost of living and the growing family responsibilities. A reduction in the age of superannuation would not therefore, ipso facto, improve the overall employment position for the educated unemployed; (5) Any increase in the age of superannuation beyond the age of 58 would reduce, during the period of the increase, employment opportunities for a very large number of technical, engineering and professional students passing out from the universities, technical institutions and industrial training institutes ; and, (6) The age of retirement should not be changed frequently since it has a vital bearing on the career prospects of and the retirement benefits available to <ORG> employees and since it is an important factor in the attractiveness of <ORG> service. For these reasons, the <ORG> recommended that the age of superannuation should continue to be 58 years for the <ORG> employees with the modification that the retirement should take effect from the afternoon of the last day of the month in which the employee attains the age of superannuation.

<ORG> (1978) has also dealt with the question of the age of retirement. The <ORG> noticed that the age of retirement was more than 60 in some of the develop-

ing countries, the economic development of which was comparable to that of India. The age of retirement is 70 years in Brazil and Peru, 65 years in Chile, 63 years in Philippines and 64 years in Lebanon. The <ORG> examined the co-relationship between increase in the age of retirement and unemployment amongst the educated youth with "a deep sense of concern" and observed that the number of jobs released by retirement would be very marginal as compared with the total number of job seekers and that, therefore, it was not fair to shift the focus of the problem of unemployment to the age of superannuation of the <ORG> employees. In support of this view, it quoted <ORG> (<ORG>): "The three pillars of a strategy for fuller employment are rural development, labour intensive public works programmes and the reduction of capital intensity of industrialisation." Observing that the dimensions of unemployment problem should not deter the <ORG> from improving the service conditions of its employees. the <ORG> concluded that there was a case for increasing the retirement age of the State <ORG> employees to 58 years.

Our attention was also drawn to the views expressed on "Employment Policy" in the Sixth Five Year Plan (1980-85). It is observed therein that lasting solutions to unemployment problems had to be found within the framework of a rapid and employment-oriented economic growth; that suitable measures had to be evolved in the short term in a co-ordinated way, particularly for the benefit of the weaker sections; and that, since the dimension and gravity of educated unemployment vary from State to State, a decentralised approach should be adopted on the district employment plan. According to the Sixth Five Year Plan, unemployment would not be eliminated within the Sixth Plan unless efforts were immediately made to make the current unemployed more employable through short-term training and vocational programmes and unless special employment programmes are directed towards their absorption.

Soon after the assumption of office, <ORG> presented a White Paper to <ORG> in March 1983 on the question of reduction in the age of superannuation from 58 years to 55 years in respect of <ORG> employees, employees of <ORG>, Local Bodies and aided Educational Institutions for whom the pensionary liability is borne by <ORG>". After stating that <ORG> was appointed on November 3, 1977 for the sole purpose of examining the question of ' retirement benefits" and that the question of retirement age was not included in its terms of reference, the White Paper says that although the <ORG> had accepted the recommendations of the <ORG> almost in their entirety, it did not accept its recommendation that the age of retirement should be increased from 55 to 58 years. By a notification dated September 17, 19,9 the recommendations of the <ORG> B in regard to the revision of pay scales were accepted by the <ORG> but, not so the recommendation regarding increasing the age of retirement from 55 to 58 years. it was later, in October 1979, that the <ORG> decided on its own to increase the age of retirement from 55 to 58 years. The specific case of the State <ORG> on the question of reduction of the age of retirement from 58 to 55 years is stated thus:

"As a result of revision of the age of superannuation upwards from 55 years to 58 years, the normal channels of promotions that would have opened up had the retirements taken place in the normal course, were choked. Consequently the resultant vacancies at the direct recruitment level which would have arisen in the chain of appointments that would follow each retirement, were also blocked for 3 years continuously, thereby denying the promotion opportunities to inservice personnel and employment opportunities for the unemployed causing a great deal of frustration all round. It is estimated that on an average there would be approximately 6,500 retirements each year from <ORG> departments, <ORG> and also <ORG>, where pensionary liability is borne by <ORG>. <ORG>, therefore, decided to revise the age of superannuation from 58 years to 55 years so that the unemployed talented youth who were eagerly awaiting chances of appointment could get opportunities of employment. Besides, experienced deserving inservice personnel whose legitimate aspirations for promotion were thwarted could also now look for this much awaited promotion. <ORG> were thus able to create promotional avenues to serving employees at various levels and create opportunities for appointment against about 18,000 posts in <ORG>, <ORG> and aided educational institutions alone, not to speak of the opportunities that were created in the various Corporations etc, owned or controlled by <ORG>."

The White Paper explains that in order to ensure that the employees who had retired by the end of February 1983 should get their pensionary benefits without delay, the Government had constituted a special Pension cell in <ORG>, by a notification dated February 16, 1983. The function of that cell is to "monitor the progress of settlement of pension eases" In addition, it is said, the Government had issued instructions by a notification dated February 14, 1983 for payment of "anticipatory pension" at 3110th of the last pay drawn in all cases wherein the sanction of pension was delayed.

on the basis of this data, it is difficult to hold that in reducing the age of retirement from 58 to 55, <ORG> or the <ORG> acted arbitrarily or irrationally. There are precedents within our country itself for fixing the retirements 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 <ORG> 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 <ORG> or the <ORG> 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 <ORG>, 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 predominatly 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 <ORG> with more than ordinary care, more than <ORG> 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 <ORG>. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose <NAME>, who appears for some of the petitioners, A 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. <CITATION> ,(1) <NAME> v. <ORG> of U P.,(1) <CITATION> ,(3) <CITATION> (4) and <CITATION> (5). Besides, the point made by Shri <NAME> is concluded by a <ORG> decision of this <ORG> in <CITATION> (6) In that case, the <ORG> of Uttar Pradesh and 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 was raised to 58 years, was one of those 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 <ORG> 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 <ORG> based its opinion on the majority judgment in <NAME> v. y,General Manager, <ORG>), in which the <ORG> was not called upon to consider and did not consider the validity of a rule of superannuation. It is true that in <NAME>, the <ORG> was concerned to G (1)  S.C.R. 655.

(2) [1955] 1 S.C.R.26.

(3) [1958] S.C.R. 571.

(4) [1958] S.C.R. 828.

(5) [1958] S.C.R.1052.

(6) [1965] I S.C.R. 693.

(7) [1964] 5 S.C.R 683.

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 <NAME> shows that it was the appellant therein who relied on the decision in <NAME> 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 <ORG> held that the decision in <NAME> 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 the Report). It was after noticing this distinction that the <ORG> observed that the very case, namely, <NAME>'s case on which the appellant relied, contained the observation that the rule as to supperannuation or compulsory retirement resulting in the termination of service of a public servant did not amount to removal from service The <ORG>, in <NAME>, 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".

The theme of <NAME> argument is "non application of mind". He made it clear that his argument should not be construed as a challenge to the power or jurisdiction of the Governor to issue the impugned Ordinance and that his sole attempt was to show that the Ordinance was passed in a hurry, as a result of which, considerations which are relevant to the fixation of retirement age were ignored. The instances of non- application of mind cited by the learned counsel are these: The inclusion o f the employees of <ORG> within the sweep of the Ordinance in violation of the provisions of Chapters V and VI of the Constitution; the inclusion of the employees of <ORG> within the Ordinance; the extension of the Ordinance even to the daily rate workers; and, finally, the fact that nothing worthwhile is likely to be achieved by the passing of the Ordinance since, at the highest, it would create employment at this point of time only, for about 19,500 employees After that point of time passes, the same state of affairs will continue since the age of retirement will be merely substituted by 58 in place of 55 years.

It is impossible to accept the submission that the Ordinance can be invalidated on the ground of non- application of mind. The power to issue an ordinance is not an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an ordinance is contained in Article 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is ' Legislative Power of the Governor". This power is plenary within its field like the power of <ORG> to pass laws and there are no limitations upon that power except those to which the legislative power of <ORG> is subject Therefore, though an ordinance call be invalidated for contravention of the constitutional limitations which exist upon the power of <ORG> to pass laws it cannot be declared invalid for the reason of non- application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of a <ORG>.

On the question as to the legislative character of the ordinancemaking power, we may refer to the decisions of this <ORG> in <CITATION> (1) and <CITATION> (2).

<NAME> raised upon a decision of this Court in <ORG> of <CITATION> ,(3) which has taken the view that in regard to the servants and officers of the <ORG>, Article 229 of the Constitution makes the power of` their appointment, dismissal, removal, compulsory retirement, etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power. This decision cannot assist the petitioners since, it deals with the limitations on the executive power Of the Government to interfere with the power of the Chief Justice under Article

229. The executive cannot encroach upon that power. The decision of this <ORG> in <NAME> which was also cited by the learned counsel, does not touch the point raised by him.

Though <NAME> presented his argument in the shape of a challenge to the Ordinance on the ground of non- application Of mind, the real thrust of his argument was that the hurry with which the Ordinance was passed shows the arbitrary character of the action taken by <ORG>. We have already rejected the contention of haste and hurry as also the argument that the provi-

(1) [1982] 2 S.C.R. 272 at 282, 291.

(2) 11982]1 S.C.R. 947 at 964, 967.

(3) [1979]1 S.C.R. 26.

sions of the Ordinance are, in any manner, arbitrary or unreasonable and thereby violate Articles 14 and 16 of the Constitution.

<NAME>, who appears in Transfer Cases Nos. 70, 71 and 72 of 1983, challenges the validity of the Ordinance on the ground that, casting all established norms aside, it fixes the age of retirement at 55 years, notwithstanding industrial adjudications and even settlements arrived at between employers and employees. Relying upon certain decisions of this Court like <CITATION> (1) and <CITATION> (2) in support of his submission that arbitrariness invalidates laws, counsel contends that a law which overrules an industrial adjudication or settlement is fundamentally unreasonable or arbitrary and must, therefore, be held to be violative of Article 14 of the Constitution. It was also urged by counsel that by reducing the age of retirement to 55 years, the <ORG> employees were deprived of their right to livelihood. There is no substance in this latter argument because, if a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement at all. That will be contrary to public interest because the <ORG> cannot afford the luxury of allowing its employees to continue in service after they have passed the point of peak performance. 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. This argument of the learned counsel can be rejected for other reasons also, we do not propose to deal with these Transferred Cases since, there is nothing on record to show that there are any industrial adjunctions or settlements between employers and employees providing for an age of retirement for any section of industrial workers. These Transferred Cases will be delinked from the other Writ Petitions and will be listed for hearing later, so that they can be dealt with upon their own facts. If the question raised by <NAME> is academic, it will be needless to consider it.

The argument of mala fides advanced by <NAME>, and adopted in passing by some of the other counsel, is without any basis. The burden to establish ma/a fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspi-

(1) [1978] 2 S.C.R. 621 at 659, 685, 689 and 702. (2) 11952] S.C.R. 597 at 607.

cously absent in these writ petitions. Besides, the ordinance-making A power being a legislative power, the argument of mala Fides is misconceived. 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 no reasons 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 mala fide. This kind of 'transferred malice' is unknown in the field of legislation.

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 <ORG>. The Fundamental Rules and the amendments thereto are issued by <ORG> under the powers delegated to it by the Civil Services (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 in to force with effect from January 1, 1972 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 E; 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 February 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. 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 carries with it the power to amend them retrospectively. The power conferred by H 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 <ORG> but until that is done, the exercise of the power cannot be challenged as lacking in authority. ( <CITATION> ;(1) <CITATION> (2).

These then are the main points in controversy on which counsel made their contentions. For reasons aforesaid, we reject those contentions and dismiss these Writ Petitions. There will be no order as to costs.

S.R. Petitions dismissed. (1) [1968] 3 S C.R. 575, 582 585. (2) [1975] 3 S.C.R. 963, 965.