Supreme Court of India
NAGALAND SENIOR GOVT. EMPLOYEES WELFARE ASSOCIATION & ORS.versusTHE STATE OF NAGALAND & ORS.
- Citation
- 2010 INSC 354
- Decided
- 6 July 2010
- Disposal
- Dismissed
- Bench
- M PANCHAL
Holding
The retirement provision of 35 years of service or age 60, whichever is earlier, is constitutionally valid, not arbitrary, and does not violate Articles 14 and 16.
Summary
The Nagaland Senior Government Employees Welfare Association challenged the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009, which mandated retirement after 35 years of service or upon attaining age 60, whichever came first, alleging it was arbitrary, irrational and violative of Articles 14, 16 and 21 of the Constitution. The State argued that the amendment was a legitimate policy response to high youth unemployment and aimed to create more job opportunities by limiting the tenure of long‑serving employees. The Supreme Court examined precedents such as Yeshwant Singh Kothari and K. Nagaraj, emphasizing the legislature’s competence under Article 309 to set retirement criteria based on age or length of service, provided there is a rational nexus with a public purpose. The Court held that the 35‑year service ceiling is a reasonable classification, not excessive, and serves a legitimate public‑interest goal, thus not violating equality provisions. Consequently, the appeal was dismissed, upholding the amendment.
Issues considered
- Whether the provision prescribing retirement on completion of 35 years of service or age 60, whichever is earlier, is arbitrary, irrational and violative of Article 14 of the Constitution.
- Whether the same provision violates Article 16 of the Constitution.
- Whether the provision infringes Article 21 of the Constitution.
Legislation cited
- Constitution of Indias. Article 14, s. Article 16, s. Article 21, s. Article 309
- Nagaland Retirement From Public Employment Act, 1991s. Section 3 (as amended)
- Nagaland Retirement From Public Employment (Amendment) Act, 2007
- Nagaland Retirement From Public Employment (Second Amendment) Act, 2009
Subjects
service lawretirementsuperannuationage limitlength of serviceArticle 14Article 16arbitrarinessemployment policyNagaland
Judgment
[2010] 7 S.C.R. 630
A NAGALAND SENIOR GOVT. EMPLOYEES WELFARE
ASSOCIATION & ORS.
v.
THE STATE OF NAGALAND & ORS.
(Civil Appeal No. 4955 of 2010)
B
JULY 6, 2010
[J.M. PANCHAL AND R.M. LODHA, JJ.]
Service Law:
c
Nagaland Retirement From Public Employment Act,
1991:
s.3(as amended by Amendment Act, 2009) - Providing
for retirement of a person on completing 35 years of service
D from the date of joining or on attaining the age of 60 years,
whichever is earlier- HELD: Is valid and does not suffer from
the vice of arbitrariness/ irrationality nor is it violative of Articlf]s
14 and 16 of the Constitution - There is no absolute
proposition in law nor any invariable rule in the service
E jurisprudence that an employee can be made to retire from
public employment on account of age alone - Fixation of
maximum length of service as an alternative criterion for
retirement from public service, by no stretch of imagination,
can be held to be violative of any recognized norms of
F employment planning - High Court has rightly upheld the
amendment - Constitution of India, 1950 - Articles 14 and
16.
The Nagaland Retirement From Public Employment
G Act, 1991 was amended by the Nagaland Retirement From
Public Employment (Amendment) Act, 2007 (1st
Amendment Act, 2007) increasing the age of
superannuation from 57 to 60 years. This led to State-
wide students unrest, and pursuant to the representation
H 630
NAGALAND SR. GOVT. EMPLOYEES WELFARE 631
ASSN. v. STATE OF NAGALAND
made by the Naga-Students Federation on the issue of A
growing frustration amongst the youth of the State
because of unemployment, the State Legislature, by the
Nagaland Retirement From Public Employment (Second
Amendment) Act, 2009 amended s. 3 of the Act
prescribing, "a person in public employment shall hold B
office for a term of 35 years froni the date of joining public
employment or until he attains the age of 60 years,
whichever is earlier." On July 20, 2009, the State
Government issued an Office Memorandum asking all
departments to submit the list of employees who would c
have completed 35 yeas of service by October 31, 2009.
The Nagaland Senior Government Employees Welfare
Association filed a writ petition before the High Court
challenging the 2009 Amendment and the O.M. The single
Judge as also the Division Bench of the High Court 0
upheld the amendment.
In the instant appeal filed by the Employees'
Association, the question for consideration before the
Court was: "whether the impugned provision that
prescribes retiring the persons from public employment E
in the State of Nagaland on completion of 35 years'
service from the date of joining or until attaining the age
of 60 years whichever is earlier, is arbitrary, irrational and
violative of Articles 14 and 16 of the Constitution."
F
Dismissing the appeal, the Court
HELD: 1.1. Section 3 of the Nagaland Retirement
From Public Employment Act, 1991 (as amended by the
2nd Amendment Act, 2009), which prescribes retiring the
persons from public employment in the State on G
completion of 35 years' service from the date of joining
or until attaining the age of 60 years, whichever is earlier,
does not suffer from the vice of arbitrariness or
irrationality and is not violative of Articles 14 and 16 of
H
632 SUPREME COURT REPORTS [2010] 7 S.C.R.
A the Constitution of India. The provision is consistent with
the decision in the case of Yeshwant Singh Kothari* and
the ratio in that case is squarely applicable to the case
In hand. The High Court has rightly upheld the
amendment. [para 29, 40·41 and 48] [651-D·E; 666-G]
B
*Yeshwant Singh Kothari v. State Bank of Indore & Ors.
1993 (1) SCR 208 = 1993 (2) Suppl. sec 592, relied on.
K Nagaraj and Ors. v. State of Andhra Pradesh and Anr.
1985 ( 2 ) SCR 579 = 1985 ( 1 ) SCC 523, referred to.
c
1.2. It is true that 'superannuation' means discharge
from service on account of age. Although the impugned
provision does not use the expression 'superannuation'
but broadly retirement is referred to as superannuation.
0 There is no absolute proposition in law nor any invariable
rule in the service jurisprudence that an employee can be
made to retire from public employment on account of age
alone. What the Constitution guarantees for the citizens
is equality of opportunity under the employment of the
E Government and the prohibition of discrimination
between its employees but there is no provision in the
Constitution that restricts retirement from public
employment with reference to age. Rather Article 309
empowers· the appropriate Legislature to regulate the
conditions of service of persons serving the Union or a
F State, as the case may be, by an enactment subject to the
provisions of the Constitution. The competence of the
Legislature to formulate uniform policy for retirement from
public employment by enacting a law can hardly be
doubted. [para 27] [649-B-E]
G
1.3. Fixation of maximum length of service as an
alternative criterion for retirement from public service, by
no stretch of imagination, can be held to be violative of
any recognized norms of employment planning. There
H may be a large number of compelling reasons that may
NAGALAND SR. GOVT. EMPLOYEES WELFARE. 633
ASSN. v. STATE OF NAGALAND
necessitate the Government (or for that matter the A
Legislature) to prescribe the rule of retirement from the
government service on completion of specified years. If
the reasons are germane to the object sought to be
achieved, such provision can hardly be faulted. [para 31)
[654-H; 655-A-B] B
2.1. That there is always a presumption in favour of
the constitutionality of an enactment; and that the burden
is upon the person, who attacks it, is a fairly well settled
proposition. [para 32] [655-C]
c
Mohd. Hanif Quareshi & Ors. v. State of Bihar, this Court
1959 SCR 629 =1958 AIR 731; Mahant Moti Oas v. S.P.
Sahi 1959 Suppl. SCR 503 = 1959 AIR 942; State of Uttar
Pradesh v. Kartar Singh (1964) 6 SCR 679; A.G. Aggarwal,
Sub-Divisional Magistrate, Delhi & Anr. v. Mst. Ram Kali etc. D
1968 SCR 205 =1968 AIR 1; The Amalgamated Tea Estates
Co. Ltd. v. State of Kera/a 1974 ( 3) SCR 820 = 1974 ( 4)
SCC 415; Pathumma & Ors. v. State of Kera/a & Ors. 1978
=
(2) SCR 537 1978(2) SCC 1; and Fertilisers and Chemicals
Travancore Ltd. v. Kera/a State Electricity Board and Anr. E
1988 (3) SCR 925 = 1988 (3) SCC 382, referred to.
2.2. Section 3 of the Act as substituted by the 2nd
Amendment Act, 2009, is designed to lay down a general
framework of retirement policy. It seeks to put a cap on
the number of years an employee may be allowed to be F
in the service of the State Government in order to make
available job opportunities in a more equitable manner to
its educated youth. It cannot be overlooked that the
whole idea behind the provision is to create opportunities
for employment and check unemployment. It is aimed to G
combat unrest amongst educated unemployed youth and
to ensure that they do not join underground movement.
The legislation of the kind the Court is concerned with
must be regarded as establishing the government policy
for retirement from public employment based on age or H
634 SUPREME COURT REPORTS [2010] 7 S.C.R
A length of service to achieve a legitimate aim in public
interest, after balancing the competing interest of different
groups, to permit better access to employment to large
number of educated youth in the State and for the
purpose of curbing the unemployment. The legitimacy of
s such an aim of public interest cannot be reasonably
called into question. In any case, the impugned provision
founded on peculiar considerations of the State does not
appear to be unreasonable nor does it smack of any
arbitrariness. From the material placed on record it
C cannot be said that impugned provision has been
enacted without any data and consideration of broad
aspects of the question. [para 39 and 41] [659-D-H; 662-
F-G; 663-A-E]
State of Maharashtra v. Chandrabhan 1983 (3)
=
D SCR 327 1983 AIR 803, referred to.
2.3. It cannot be said that the impugned provision is
arbitrary not only from the point of view of the employees
as a whole but also from the point of view of public
E interest since the public at large shall be deprived of the
benefit of the mature experience of the senior
government employees. If the State Government felt that
it was not fair to deny the large number of educated youth
in the State an opportunity of public employment
F
because of existing provisions of retirement from public
employment and accordingly decided to have the
impugned provision enacted through the legislative
process, in the guise of mature experience, such
provision may not be held to be arbitrary and against
G public interest. [para 42] [663-F-H; 664-A]
2.4. It cannot be said that the alternative method of
retirement by way of length of service would result in
different age of superannuation of employees holding the
same post depending upon their age of entry into service
H and would be manifestly violative of Articles 14 and 16
NAGALAND SR. GOVT. EMPLOYEES WELFARE. 635
ASSN. v. STATE OF NAGALAND
of the Constitution. Suffice it to say that alternative mode A
of retirement provided in the impugned provision is
applicable to all the State Government employees. There
is ho discrimination. The impugned provision prescribes
two rules of retirement, one by. reference to age and the
other by reference to maximum· length of service. The s
classification is founded on valid reason. Pertinently, no
uniformity in length of service can be maintained if the
retirement from public employment is on account of age
since age of the government employees at the time of
entry into service would not be same. Conversely, no c
uniformity in age could be possible if retirement rule
prescribes maximum length of service. The age at the
time of entry into service would always make such
difference. Merely because some employees had to retire
from public employment on completion of 35 years of
0
service although they have not completed 55 years df age
does not lead to any conclusion that the impugned
enactment is arbitrary, irrational, unfair and
unconstitutional. [para 45-46] [665-F-H; 666-A-B; 665-C]
Case Law Reference: E
1993 (1) SCR 208 relied on para 21
1985 (2) SCR 579 referred to para 22
1959 Suppl. SCR 503 referred to para 25
F
1968 SCR 205 referred to para 25
1974 (3) SCR 820 referred to para 25
1959 SCR 629 referred to para 32
(1964) 6 SCR 679 referred to para 34 G
(1968) SCR 205 referred to para 35
1978 (2) SCR 537 referred to para 36
1988 (3) SCR 925 referred to para 37 H
636 SUPREME COURT REPORTS [2010] 7 S.C.R
A 1983 (3) SCR 327 referred to. Para 41
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4955 of 2010.
From the Judgment & Order dated 30.10.2009 of the High
B Court of Gauhati in Writ Petition No. 2980 of 2009.
Ram Jethmalani, B.N. Aggarwalla, Rajiv Mehta, Parthiv
Goswami, Ahanthem Henry for the Appellants.
K.K. Venugopal, P.K. Goswami, K.N. Balgopal, AG, AP.
C Mukundan, Nitya Nambiar, B.D. Vivek, Madhusimta Bora,
Edward Belho, Timikha Koza, L.S. Jamir, Tsibu Khro, Tea
Temsin Ao, Balaji Srinivasan, Enatdi Serna, Pradhuman Gohil,
Vikash Singh, S. Hari Haran, Charu Mathur for the
Respondents.
D
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Leave granted.
Introduction
E
2. A new State - State of Nagaland - was formed by the
State of Nagaland Act, 1962 (for short, 'the 1962 Act') which
came into force on December 1, 1963 comprising the
territories which immediately before the appointed day were
F comprised in the Naga Hills - Tuensang Area of the State of
Assam. Prior to the 1962 Act, Naga Hills-Tuensang Areas Act,
1957 was enacted by the Parliament by which certain changes
were brought about with regard to the administration of the area
viz., Naga Hills - Tuensang Area within the State of Assam.
G The pay structure applicable to civil servants of Assam was
made applicable to the civil servants of the Naga Hills-
Tuensang Area and as regards the service conditions including
the age of superannuation, the Central Government
Fundamental Rules and Subsidiary Rules were made
H applicable to them. After creation of the State of Nagaland, the
NAGALAND SR. GOVT. EMPLOYEES WELFARE 637
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
conditions of service of the State Government employees A
continued to be governed by the same Rules. In 1990, the
superannuation age of all the State Government employees
other than grade-IV employees was raised from 55 years to 58
years.
B
The 1991 Act
3. In 1991, Nagaland Retirement from Public Employment
Act, 1991 (for short, 'the 1991 Act') was enacted by the State
Legislature which came into force on June 18, 1991. Section
3 thereof provided for retirement from public employment. It C
states :
"S.-3. Retirement from public employment: ( 1)
Notwithstanding anything contained in any rule or orders
for the time being in force, a person in public employment o
shall hold office for a term of thirty-three years from the date
of his joining public employment or until he attains the age
of fifty-seven years whichever is earlier :
Provided that in special circumstances, a person
under public employment may be granted extension by the E
State Government upto a maximum of one year;
Provided further that the Government may have the
cases of all persons under public employment screened
from time to time to determine their suitability for F
continuation in public employment after the attainment of
the age of fifty years.
(2) All persons under public employment shall retire on the
afternoon of the last day of the month in which he attains
the age of fifty-seven years or on completion of thirty-three G
years of public employment whichever is earlier.
(3) xxx xxx xxx xxx
(4) xxx xxx xxx xxx H
638 SUPREME COURT REPORTS [2010] 7 SCR
A (5) )()()( )()()( )()()( XXX:'
As a matter of fact, the 1991 Act replaced the Nagaland
Retirement from Public Employment Ordinance, 1991.
Challenge to Section 3 (1991 Act)
B
4. The Confederation of All Nagaland State Service
Employees Association ('the Confederation', for short)
challenged the constitutional validity of Section 3 which provided
for retirement from public employment on completion of 33
c years from the date of joining employment or until the age of
57 years, whichever is earlier by filing a writ petition before the
Gauhati High Court. The main grounds of challenge were : (i)
that retirement of the government employees at the age of 57
is arbitrary and (ii) that classification of the government
0 employees in two groups viz., one group of the government
employees who are to retire on completion of 33 years service
before attaining the age of 57 and the other group retiring at
the age of 57 and having not completed 33 years of service is
not permissible since retirement of government employees
E . must be attributable to the age and not the length of tenure of
service.
5. The Single Judge of the Gauhati High Court vide
judgment dated January 18, 1993 upheld the reduction of
retirement age from 58 tc 57 years but struck down part of
F Section 3 of 1991 Act which prescribed the retirement from
service on completion of 33 years of service. But no
consequential relief was granted to the employees.
6. The Confederation challenged the order of the Single
G Judge dated January 18, 1993 by way of an intra court appeal
insofar as consequential reliefs were denied to the employees.
The Division Bench allowed the appeal on September 6, 1995
and held that affected employees shall be entitled to get their
salary and other allowances and all other consequential benefits
H which they would have been entitled to upto the age of 57 years,
NAGALAND SR. GOVT. EMPLOYEES WELFARE 639
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
except those employees who were gainfully employed A
elsewhere.
7. The State of Nagaland (for short, 'the State') challenged
the judgment and order dated September 6, 1995 to the extent
the Division Bench granted consequential reliefs to the B
employees in Special Leave Petition (SLP) before this Court.
Leave was granted and SLP was converted into Civil Appeal.
However, on April 7, 1997 appeal was withdrawn by the State.
1st Amendment Act, 2007
c
8. By Nagaland Retirement from Public Employment
(Amendment) Act, 2007 (for short, '1st Amendment Act, 2007),
the superannuation age of the government employees in the
State was enhanced from 57 years to 60 years with effect from
November 15, 2007. Later on, the maximum age for entering D
the government service in the State was enhanced to 30 years
for general category candidates and 35 years for SC/ST /
category cand.idates.
9. On October 17, 2008, the Naga-Students Federation
(NSF) being not satisfied with the 1st Amendment Act, 2007 E
made a representation to the State Government voicing its
concern that enhancement of retirement age had reduced the
employment opportunities for the educated youth in the State.
NSF demanded that the State Government should also fix
maximum length of service that an employee may be entitled F
to put in before retirement. In pursuance of the representation
made by NSF, the Department of Personnel and Administrative
·Reforms (for short, 'DOP & AR') submitted a Memorandum
dated October 22, 2008 to the Cabinet for a decision as to
whether the State Government should also prescribe maximum G
length of service for retirement of the State Government
employees in addition to the upper age limit of 60 years and if
so, what should be maximum length of the service for retirement.
H
640 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 10. The Cabinet in its meeting held on October 23, 2008
asked the DOP & AR to examine the matter in greater detail
and prepare a profile of average length of service put in by the
government employees at the time of superannuation and
submit its findings and recommendations for further
B consideration of the Cabinet. DOP & AR tfien appears to have
prepared its report and submitted the same to the Cabinet for
consideration.
11. The Cabinet considered the subject again and
appointed a High Power Committee (HPC), inter alia, to
C scrutinize the retirement profile of the government employees
prepared by DOP & AR and make necessary
recommendations regarding fixation of maximum length of
service of the government employees and other service
conditions.
D
12. On February 18, 2009, HPC held its meeting to
examine the superannuation age of the State Government
employees. HPC found gaps in the data base and, accordingly,
recommended that DOP & AR should be nodal agency to
E streamline date base of government employees, and put in
place a Common Data Base System by coordinating with the
concerned departments. It transpires that based on the'·data
available with the Government, the following compilations were
made:
F Table-1 : Grade wise employees of the State
Grade No. of employees Percentage
Class-I 3495 4%
G Class-II 2203 3%
Class-Ill 59,598 74%
Class-IV 15,704 19%
Total 81,000 100%
H
NAGALAND SR. GOVT. EMPLOYEES WELFARE 641
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
A
Table-2 : State Agency Wise Employees
I State No. of Agency
Percentage employees
B
Secretariat 2322 3%
Directorate 8540 11%
District 70,138 86% "·
Total 81,000 100% c
Table-3 : Number of years of completed
service
D
Completed No. employees
years of As on 1st As on As on 1s
service January, 1st July, January
2009 2009 2010
More than E
40 years 222 294 362
36 years 1629 1997 2313
35 years 2343 2923 3250
34 years 3280
F
3954 4327
33 years 4357 4960 5156
G
H
642 SUPREME COURT REPORTS [2010] 7 S C.R
A Table-4 : Completed Age of employees as on
1st January, 2009 & 1st July, 2009
Age of No. employees
·-- --
employees 1st January, 1st July,
B 2009 2009
-
59 years 101 268
·---
58 years 409 1029
---··---
57 years 1088 2077
c 56 years 2096 3306
·-
55 years 3346 4675
Table - 5
D
Entry into service No. of employees
40 and above 21,889
35 to 39 years 28,721
E 30 to 34 years 13,404
25 to 29 years 2,259
Less than 25 years 1149
F 13. HPC on the basis of the aforesaid figures observed
that most of the non-gazetted (Class-Ill and IV) employees have
joined the service at a very early age, i.e. before 20 years and
hence fixation of length of service as a criterion for
superannuation may affect many of the Class-Ill and IV
employees who joined the service at the age of 18-20 years.
G HPC also observed that employment opportunity in the
government sector is limited but the qualified job seekers have
increased manifold, thus, causing mismatch in the demand and
supply for public jobs in the State.
H
NAGALAND SR. GOVT. EMPLOYEES WELFARE 643
ASSN. v. STATE OF NAGALAND (R.M. LODHA, J.]
2nd Amendment Act, 2009 A
14. On July 8, 2009 a Bill titled 'The Nagaland Retirement
from Public Employment (Second Amendment) Bill, 2009' (for
short, 'Amendment Bill') was introduced on the floor of the
House. By the said Bill the length of service of the State B
Government employees was proposed to be restricted to 35
years from the date of joining of service or till he/she attains
the age of 60 years, whichever is earlier.
15. The State Legislature of Nagaland, on July 10, 2009
unanimously passed the Amendment Bill. Thus by Nagaland C
Retirement from Public Employment (Second Amendment) Act,
2009' (for short, '2nd Amendment Act, 2009'}, Section 3 of
1991 Act as amended by 1st Amendment Act, 2007, was
substituted by the following provision :
D
"S.3(1 ).- Notwithstanding anything contained in any rule or
orders for the time being in force, a person in public
employment shall hold office for a term of 35 years from
the date of joining public employment or until he attains the
age of 60 years, whichever is earlier.
E
S.3(2).- A person under public employment shall retire on
the afternoon of the last day of the month in which he attains
the age of 60 years, or in which he completes 35 years of
public employment, whichever is earlier."
F
16. On July 20, 2009, the State Government issued Office
Memorandum (OM) requesting all departments to submit the
list of employees, who had completed 35 years of service by
October 31, 2009.
Challenge to the 2nd Amendment Act, 2009
G
17. The appellant-Association challenged the constitutional
validity of the 2nd Amendment Act, 2009 being arbitrary,
irrational,, ultra vires and violative of Articles 14, 16 and 21 of
the Constitution and legality of the OM dated July 20, 2009 by H
644 SUPREME COURT REPORTS [201 O] 7 S.C.R.
A filing a writ petition before Gauhati High Court. The Association
prayed that 2nd Amendment Act, 2009 be quashed to the extent
it has introduced 35 years' service as one of the conditions for
retirement of government employees and direction be issued
to the State to superannuate its employees only on attaining
B the prescribed age of 60. The Association also prayed for
quashing OM dated July 20, 2009.
18. The State justified 2nd Amendment Act, 2009 and OM
dated July 20, 2009 by filing a detailed affidavit in opposition
C to the writ petition. They set up the plea that youth in the State
were not getting an opportunity in the matters of public
employment because of long period of service of the existing
employees who would serve up to 42 years resulting in a sense
of frustration and stagnation amongst educated youth; that
educated youth who remain unemployed out of sheer
D desperation pursue avocation which is not in tune with the law;
and that the amended law would result in removal of stagnation
in the matters of employment to the unemployed and thereby
making employment opportunities less arbitrary, reasonable
and in consonance with the constitutional provisions. It was
E submitted that by 2nd Amendment Act, 2009, the employment
prospects of the youth are protected whereby the number of
years of service would be restricted to 35 years while
maintaining the age of superannuation at 60 years. The State
also submitted that the literacy rate in Nagaland is amongst one
F of the highest in India and the high literacy rate coupled with
the fact that there are no other avenues for employment except
through the Government sector has increased the
unemployment problem to an alarming extent. After a thorough
and systematic appreciation and study of the unemployment
G problem and also the social aspects, the State decided to
prescribe the maximum length of service for retirement of its
employees in addition to tne upper age limit of 60 years. The
State explained the peculiar circumstances that necessitated
the insertion of 35 years of length of service in the government
H employment for superannuation.
NAGALAND SR. GOVT. EMPLOYEES WELFARE 645
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
19. The Division Bench after hearing the parties dismissed A
the writ petition on October 30, 2009. It is from this judgment
and order that the present appeal arises.
20. Before we deal with the main submissions of the
parties, an intervening factual aspect may be noticed here. In B
the month of February, 2009, the. State made an application
before the Gauhati High Court seeking review of the order
dated January 18, 1993 passed by the Single Judge in the writ
petition wherein constitutional validity of Section 3 of 1991 Act
was challenged. However, the said review application was C
withdrawn on March 2, 2009.
Main submissions of the parties
21. Mr. Ram Jethmalani, learned senior counsel for the
appellants submitted that retirement by way of superannuation 0
in respect of government employees is permissible only on the
basis of age and not on the basis of length of service. The
contention is that retirement by way of superannuation in
respect of government employees relates to discharge of an
employee on account of attaining a particular age fixed for such E
retirement, which is uniformly applicable to all employees
without discrimination. He submitted that where there is
minimum and maximum age of entry into any service, the
alternative method of retirement by way of length of service
would inevitably result in different age of superannuation of
employees holding the same post depending upon their age F
of entry to the service and that would result in manifest violation
of Article 14 and Article 16 of the Constitution; it would also be
inconsistent with the valuable right of a permanent government
employee to continue service till the age of superannuation
subject to rules of compulsory retirement in public interest and G
abolition of posts. Learned senior counsel submitted that
insofar as decision of this Court in Yeshwant Singh Kothari v.
State Bank of Indore & Ors1 is concerned, it has no application,
1. 1993 Suppl. (2) sec 592. H
646 SUPREME COURT REPORTS [2010] 7 S.C.R.
A firstly, to the government employees and in the second place,
he was not raising the arguments that were raised in that case
but his contention is that prescribing retirement of government
employees on completion of 35 years of service is arbitrary and
irrational. According to learned senior counsel, in Yeshwant
8 Singh Kothari1, the arguments were considered in the
backdrop of discriminatory classification and not on the grounds
of such action being arbitrary, irrational or unreasonable.
22. Mr. Ram Jethmalani, learned senior counsel
vehemently contended that even if it be assumed that the
C alternative method of retirement by way of length of service is
permissible in law, still the 2nd Amendment Act, 2009
prescribing retirement of government employees in the State
on completion of 35 years of service is violative of Article 14
of the Constitution being arbitrary, unreasonable and
D unconstitutional. In this regard, he placed heavy reliance upon
judgment of this Court in the case of K. Nagaraj and Ors. v.
State of Andhra Pradesh and Anr2. It was submitted that the
needs/responsibilities of a person between the age of 50 to
60 are the most as he has to educate his children, marry his
E children in addition to maintaining his family. He submitted that
Class Ill and IV employees constitute 93 per cent of total
employee strength in the State and that as a result of
prescription of maximum length of service of 35 years, most of
the government employees (who joined service before 20
F years, i.e. at 18 and 19 years) would retire at the age of 53 or
54 years which is an unreasonably low age of retirement. In this
regard, learned senior counsel referred to the report of the HPC
wherein it is mentioned that most of the non-gazetted (Class-Ill
and IV) employees have joined service at an early age, i.e.
G before attaining 20 years. Mr. Ram Jethmalani also invited our
attention to the observations made in the report prepared by
HPC wherein it was observed, 'the committee examined the
data base available on the State employees and found that
H 2. (1985) 1 sec 523.
NAGALAND SR. GOVT. EMPLOYEES WELFARE 647
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
there are many deficits and gaps in the data base'. It was, thus, A
submitted that the fixation of 35 years as the maximum length
of service has been determined by the Government without any
basis and in a most arbitrary fashion without any objectivity and
certainly not on the basis of empirical data furnished by the
scientific investigation. According to him, in the absence of full B
investigation into the multitudinous pros and qons and deep
consideration of every aspect of the question, the prescription
of alternative method of superannuation by way of length of
service smacks of total arbitrariness. It was also contended that
the impugned provision is arbitrary not only from the point of C
view of the employees as a whole but also from the point of
view of public interest inasmuch as it is against public interest
to deprive the public at large of the benefit of the mature
experience of the senior government employees; pre-mature
retirement at an unreasonable low age of 53 or 54 years when
0
the employees are at their prime would be against public
interest. The learned senior counsel would also contend that the
impugned provision of prescribing retirement of government
employees on completion of 35 years of service is actuated
solely on the pressure exerted upon the State Government by
NSF which itself is arbitrary. E
23. Mr. P.K. Goswami, learned senior counsel for
respondent no.4, supporting the appellants adopted the
arguments of Mr. Rarn Jethmalani.
F
24. On behalf of the contesting respondent nos. 1 to 3 -
the State and its functionaries - Mr. K.K. Venugopal, learned
senior counsel stoutly defended the 2nd Amendment Act, 2009
and impugned judgment of Gauhati High Court. He submitted
that the State of Nagaland has a unique problem not faced by G
many other States in the country. He would submit that
Nagaland has no industries either in the public sector or in the
private sector where gainful opportunities are made available
to the youth in the State although percentage of literacy is as
high as 70%; that for lack of avenues of employment there is a
grave danger arising out of insurgency and potential danger of H
648 SUPREME COURT REPORTS [2010] 7 S.C.R.
A educated youth joining underground movement; that increase
of retirement age from 57 years to 60 years in the year 2007
resulted in grave resentment from the Naga youth who protested
through NSF which finally led to the enactment of the 2nd
Amendment Act, 2009 and that alternative mode of retirement
s on completion of 35 years of service is consistent with the
judgment of this Court in Yeshwant Singh Kothari1 and based
on the policy of the Government and in public interest.
25. Mr. K.K. Venugopal, learned senior counsel argued that
there is always presumption of constitutionality arising in favour
C of a statute and onus to prove its invalidity lies on a party which
assails the same. He submitted that the Legislature is the best
judge of the needs of the particular classes and to estimate the
degree of evil so as to adjust its legislation accordingly. In this
regard, he sought support from the decisions of this Court in
D Mahant Moti Oas v. S.P. Sahi3, A.C. Aggarwal v. Mst. Ram
Kali etc4. and The Amalgamated Tea Estates Co. Ltd. v. State
of Kerala 5 • Mr. K.K. Venugopal submitted that prescription of
two rules of retirement, one by reference to age and the other
by reference to years of completed service is permissible and
E the retirement policy manifested in 2nd Amendment Act, 2009
is neither arbitrary nor discriminatory.
The issue
26. On the contentions outlined above, the question that
F arises for consideration is : whether the impugned provision
that prescribes retiring the persons from public employment in
the State of Nagaland on completion of 35 years' service from
the date of joining or until attaining the age of 60 years,
whichever is earlier, is arbitrary, irrational and violative of
G Articles 14 and 16 of the Constitution.
3. AIR 1959 SC 942.
4. AIR 1968 SC 1.
H 5. 1974 (4) sec 415.
NAGALAND SR. GOVT. EMPLOYEES WELFARE 649
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
Appraisal A
(A) Should retirement from public employment be
effected on account of age alone?
27. It is true that 'superannuation' means discharge from
service on account of age. The dictionary meaning of B
'superannuation' is to retire or retire and pension on account
of age. Although the impugned provision does not use the
expression 'superannuation' but broadly retirement is referred
to as superannuation. There is no absolute proposition in law
nor any invariable rule in the service jurisprudence that an C
employee can be made to retire from public employment on
account of age alone. What the Constitution guarantees for the
citizens is equality of opportunity under the employment of the
Government and the prohibition of discrimination between its
employees but there is no provision in the Constitution that D
restricts retirement from public employment with reference to
age. Rather Article 309 empowers the appropriate Legislature
to regulate the conditions of service of persons serving the
Union or a State, as the case may be, by an enactment subject
to the provisions of the Constitution. The competence of the E
Legislature to formulate uniform policy for retirement ftC>Ql public
employment by enacting a law can hardly be doubted. The
question that has to be asked is, whether such law meets
constitutional tests?
28. The legality and validity of a provision permitting
F
retirement on the basis of length of service directly came up
for consideration before this Court in the case of Yeshwant
Singh Kothan1 • In that case, the appellants - employees of the
State Bank of Indore (a subsidiary bank of the State Bank of
India) - were aggrieved by their retirement on completion of G
30 years of service whereas according to them they were
entitled to service upto 58 years of age. They were initially in
the employment of the Bank of Indore Limited which ceased
to exist with effect from January 1, 1960 and became a
H
650 SUPREME COURT REPORTS [2010] 7 S.C.R.
A subsidiary bank known as the State Bank of Indore. The issue
was raised in the context of the State Bank of India (Subsidiary
Banks) Act, 1959 and the Regulations framed thereunder. This
Court referred to Section 11(1) of 1959 Act and Regulation
19(1) which are as follows :
B
"S.11.- Transfer of services of employees of existing
banks.- (1) Save as otherwise provided in this Act, every
employee of an existing Bank in the employment of that
bank immediately before the appointed day, shall, on and '
from that day become an employee of the corresponding
c new bank and shall hold his office or service therein by the
same tenure at the same remuneration and upon the same
terms and conditions and with the same rights and
· privileges as to pension, gratuity and other matters as he
would have held the same on the appointed day, if the
D undertaking of the existing bank had not been transferred
to and vested in the corresponding new bank and shall
continue to do so unless and until his employment in that
bank is terminated or until his remuneration or other
terms and conditions of service are revised or altered by
E the corresponding new bank under, or in pursuance of
any Jaw, or in accordance with any provision which, for the
time being governs, his service."
xxx xxx xxx xxx
F "Regulation 19.- Age of retirement.- (1) An officer shall
retire from the service of the Bank on attaining the age of
fifty-eight years or upon the completion of thirty years
service, whichever occurs first:
G Provided further that the competent authority may, at
its discretion, extend the period of service of an officer who
has attained the age of fifty-eight years or has completed
thirty years' service as the case may be, should such
extension be deemed desirable in the interest of the
H Bank."
NAGALAND SR. GOVT. EMPLOYEES WELFARE. 651
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
In the context of the aforesaid provisions, this Court ruled: A
" ..... The provision in the Regulation in hand for maintaining
the age of retirement at 58 years as before but in the same
breath permitting retirement on the completion of 30 years
of service, whichever occurs earlier, is in keeping with the
8
policy of reckoning a stated number of years of office
attaining the crest, whereafter inevitably is the descent,
justifying retirement. In this context 30 years' period of
active service is not a small period for gainful employment,
or an arbitrary exercise to withhold the right to hold an
office beyond thirty years, having not attained 58 years of C
age."
29. The impugned provision that prescribes retirement
from the public employment at the age of 60 years or
completion of 35 years of service, whichever is earlier, is D
apparently consistent with the decision in the case of Yeshwant
Singh Kothari1 and the ratio in that case is squarely applicable
to the case in hand. If 30 years' period of active service was
not held a small period for gainful employment, or an arbitrary
exercise to withhold the right to hold an office beyond 30 years, E
having not attained 58 years of age, a fortiori, retiring a person
from public service on completion of 35 years of service without
attaining age of 60 years may not be held to be unjustified or
impermissible.
(8) K. Nagaraj Case F
30. In the case of K .. Nagaraj2, the employees of the
Government of Andhra Pradesh were aggrieved by an
amendment in the Fundamental Rules and Hyderabad Civil
Services Rules reducing the retirement age from 58 to 55 years. G
As a result of these amendments, over 18,000 government
employees and 10,000 public sector employees were
superannuated. The government employees challenged the
said amendments on diverse grounds, inter-alia that the said
H
652 SUPREME COURT REPO.RTS [2010] 7 S.C.R.
A amendment violated Articles 14, 16 and 21 of the Constitution.
This Court held that it was in public interest to prescribe age
of retirement and while holding so observed that fixation of age
would be unreasonable or arbitrary if it does not accord with
the principles which are relevant for fixing the age of retirement
B or if it does not sub-serve any public interest. While ruling that
in reducing the age of retirement from 58 to 55, the State
Government cannot be said to have acted arbitrarily or
irrationally, it was held :
"On the basis of this data, it is difficult to hold that in
c reducing the age of r~tirement from 58 to 55, the State
Government or the. Legislature acted arbitrarily or
irrationally. There are precedents within our country itself
for fixing the retirement age at 55 or for reducing it from
58 to 55. Either the one or the other of these two stages
D is regarded generally as acceptable, depending upon the
employment policy of the Government of the day. It is not
possible to lay down an inflexible rule that 58 years is a
reasonable age for retirement and 55 is not. If the policy
adopted for the time being by the Government or the
E Legislature is shown to violate recognised norms of
employment planning, it would be possible to say that the
policy is irrational since, in that event, it would not bear
reasonable nexus with the object which it seeks to achieve.
But such is not the case here. The reports of the various
F Commissions, from which we have extracted relevant
portions, show that the creation of new avenues of
employment for the youth is an integral part of any policy
governing the fixation of retirement age. Since the
impugned policy is actuated and influenced predominantly
G by that consideration, it cannot be struck down as arbitrary
or irrational. We would only like to add that the question
of age of retirement should always be examined by the
Government with more than ordinary care, more than the
State Government has bestowed upon it in this case. The
H fixation of age of retirement has minute and multifarious
NAGALAND SR. GOVT. EMPLOYEES WELFARE 653
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
dimensions which shape the lives of citizens. Therefore, it A
is vital from the point of view of their well-being that the
question should be considered with the greatest objectivity
and decided upon the basis of empirical data furnished
by scientific investigation. What is vital for the welfare of
the citizens is, of necessity, vital for the survival of the State. B
Care must also be taken to ensure that the statistics are
not perverted to serve a malevolent purpose."
)()()( )()()( )()()( )()()(
" ..... the fact that the decision to reduce the age of C
retirement from 58 to 55 was taken by the State
Government within one month of the assumption of office
by it, cannot justify the conclusion that the decision is
arbitrary because it is unsciel')tific in the sense that it is not ·
backed by due investigation or by compilation of relevant D
data on the subject. Were this so, every decision taken by
a new Government soon after assumption of office shall
have t_o 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 E
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 are taken
promptly cannot be assumed to be bad because they are F
taken promptly. Every decision has to be 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 G
immediately on the assumption of office by a new
Government. 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 the State
Legislature had to consider. There is a wealth of material H
654 SUPREME COURT REPORTS [2010] 7 S.C.R.
A on that subject and many a Pay Commission has dealt
with it comprehensively. The State Government had the
relevant facts as also the reports of the various Central and
State Pay Commissions before it, on the basis of which it
had to take a reasonable decision. The aid and assistance
B of a well-trained bureaucracy which, notoriously, plays an
important part not only in the implementation of policies but
in their makin.g, was also available to the Government.
Therefore, the speed with which the decision was taken
cannot, without more, invalidate it on the ground of
c arbitrariness."
Again in paragraph 34 of the report this Court repelled the
argument of the appellants regarding arbitrary character of the
action taken by the State Government, thus:
D "Though Shri Ray 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 the State
E Government. We have already rejected the contention of
haste and hurry as also the argument that the pro~isions
of the Ordinance are, in any manner, arbitrary or
unreasonable and thereby violate Articles 14 and 16 of the
Constitution."
F
31. As a matter of fact, in K. Nagaraj2 this CoU(t stated
clearly that fixation of retirement age is a matter of emp.'.:>yment
policy of the Government and no inflexible rule can be laid down.
However, if such policy is shown to violate recognized norms
of employment planning, then such policy may not meet the test
G of rationality and reasonableness. The fact that employment
policy was formulated hurriedly was not h.eld sufficient to
conclude that the policy suffered from non-application of mind
or arbitrary. We are afraid, K. Nagaraj case2 instead of helping
the appellants, rather supports the stand of the State. Fixation
H of maximum length of service as an alternative criterion for
NAGALAND SR. GOVT. EMPLOYEES WELFARE 655
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
retirement from public service, by no stretch of imagination, can A
be held to be violative of any recognized norms of employment
planning. There may be a large number of compelling reasons
that may necessitate the Government (or for that matter the
Legislature) to prescribe the rule of retirement from the
government service on completion of specified years. If the B
reasons are germane to the object sought to be achieved, such
provision can hardly be faulted.
(C) Presumption of constitutionality
32. That there is always a presumption in favour of the C
constitutionality of an .enactment and that the burden is upon
the person, who attacks it is a fairly well settled proposition. In
Mohd. Hanif Quareshi & Ors. v. State of Bihar°, this Court
stated :
D
"., ....... The classification, it has been held, may be
founded on different bases, namely, geographical, or
according to objects or occupations or the like and what
is necessary is that there must be a nexus between the
bas.is of classification and the object of the Act;under
consideration. The pronouncements of this Court further
establish, amongst other things, that there is always a
presumption in favour of the constitutionality of an
enactment and that the burden is upon him, who attacks
it, to show that there has been a clear violation of the
F
constitutional principles. The courts, it is accepted, must
presume that the legislature understands and correctly
appreciates the needs of its own people, that its laws are
directed to problems made manifest by experience and
that its discriminations are based on adequate grounds." ·
G
33. The aforesaid legal position was reiterated in Mahant
Moti Das v. S.P. Sahi, the Special Officer In Charge of Hindu
Religious Trust & Ors. 7 i in the following words :
6. AIR 1958 SC 731.
7. AIR 1959 SC 942. H
656 SUPREME COURT REPORTS [201 O] 7 S.C.R.
A
.
"The decisions of this Court further establish that there is
a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to
show that there has been a clear transgression of the
constitutional guarantee; that it must be presumed that the
B legislature understands and corrPctly appreciates the
needs of its own people and that its laws are directed to
problems made manifect by experience and that its
discriminations are based on adequate grounds; and
further that the legislature is free to recognise degrees of
harm and may confine its restrictions to those cases where
c the need is deemed to be the clearest ...... "
34. In the case of State of Uttar Pradesh v. Kartar Singh 8 ,
the Constitution Bench bf this Court held that where a party
seeks to impeach the validity of a rule on the ground of such
D rule offending Article 14, the burden is on him to plead and
prove infirmity. This Court said :
" ......... , if the rule has to be struck down as imposing
unreasonable or discriminatory standards, it could not be
E done merely on any apriori reasoning but only as a result
of materials placed before the Court by way of scientific
analysis. It is obvious that this can be done only when the
party invoking the protection of Art. 14 makes averments
with details to sustain such a plea and leads evidence to
F establish his allegations. That where a party seeks to
impeach the validity of a rule made by a competent
authority on the ground that the rules offend Art. 14 the
burden is on him to plead and prove the Infirmity is too well
established to need elaboration. If, therefore, the
respondent desired to challenge the validity of the rule on
G
the ground either of its unreasonableness or its
discriminatory nature, he had to lay a foundation for it by
setting out the facts necessary to sustain such a plea and
adduce cogent and convincing evidence to make out his
H 8. (1964) 6 SCR 679.
NAGALAND SR. GOVT. EMPLOYEES WELFARE 657
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
case, for there is a presumption that every factor which is A
relevant or material has been taken into account in
formulating the classification of the zones and the
prescription of the minimum standards to each zone, and
where we have a rule framed with the assistance of a
committee containing experts such as the one constituted B
under s. 3 of the Act, that presumption is strong, if not
overwheImmg . ......... "
35. In A. C. Aggarwal, Sub-Divisional Magistrate, Delhi &
Anr. v. Mst. Ram Kali etc. 9 , the Constitution Bench of this Court C
reiterated the legal position thus :
" ........ The presumption is always in favour of the
constitutionality of an enactment, since it must be assumed
that the legislature understands and correctly appreciates
the needs of its own people, and its laws are directed to D
problems made manifest by experience and its
discriminations are based on adequate grounds."
36. In Pathumma & Ors. v. State of Kera/a & Ors. 10 , a
seven-Judge Bench of this Court highlighted that the Legislature E
is in the best position to understand and appreciate the needs
of the people as enjoined by the Constitution. It was stated :
"It is obvious that the Legislature is in the best position to
understand and appreciate the needs of the people as
enjoined by the Constitution to bring about social reforms F
for the upliftment of the backward and the weaker sections
of the society and for the improvement of the lot of poor
people. The Court will, therefore, interf~re in this process
only when the statute is clearly violfitive of the right
conferred on the citizen under Part Ill bf the Constitution G
or when the Act is beyond the legislative competence of
the legislature or such other grounds. It is for this reason
9. AIR (1968) SC 1.
10. (1978) 2 sec 1. H
658 SUPREME COURT REPORTS [2010] 7 S.C.R.
A that the Courts have recognised that there is always a
presumption in favour of the constitutionality of a statute
and the onus to prove its invalidity lies on the party which
assails the same ...... "
B 37. A two-Judge Bench of this Court in Fertilisers and
Chemicals Travancore Ltd. v. Kera/a State Electricity Board
and Anr11 • emphasized that the allegations of discrimination
must be specific and that action of governmental authorities
must be presumed to be reasonable and in puplic interest. It
C is for the person assailing it to plead and prove to the contrary.
(D) Impugned provision : whether arbitrary,
unreasonable and irrational
38. The Statement of Objects and Reasons appended to
. 0 Amendment Bill expressly states as follows :
"Whereas there are a large number of educated
unemployed youths in Nagaland registered in the
Employment Exchanges of Nagaland, who are in search
of white collared employment, particularly under the
Government sector;
And whereas, such white collared employment
opportunities outside the Government sectors is very
negligible due to less presence of organized private
F sector, and the employment avenues in the Government
sector is also already saturated; and new job opportunities,
in the Government sector arising out of normal retirement
vacancies, or creation of new jobs are inadequate to cater
to the rising expectations of the educated youth for white
G collared employment;
And whereas, the State Government, being a welfare
State, considers it necessary that job opportunities under
the Government sector should be shared by the citizens
H 11. (1983) 3 sec 382.
NAGALAND SR. GOVT. EMPLOYEES WELFARE 659
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
in a more equitable manner, and that this objective can be A
better achieved by fixing the upper age limit for retirement
from Government service, as well as by setting a limit on
'
the maximum number of years a Government servant may
be allowed to be in Government service;
B
Therefore, the State Government considers it expedient to
introduce a bill in the State Assembly that would set a limit
on the number of years a person may be allowed to be in
the service of the State Government, by fixing the upper
age limit, as well as the maximum length of service for any C
person to be in Government employment."
39. Section 3 as substituted. by 2nd Amendment Act,
2009 is designed to lay down a general framework of retirement
policy. It seeks to put a cap on the number of years an
employee may be allowed to be in the service of the State · D
Government in order to make available job opportunities in a
more equitable manner to its educated youth. In the counter
affidavit filed by the State before this Court in opposition to the
SLP, the impugned clause has been principally sought to be
justified on the following grounds : E
Nagaland is a small State, and industrially a.nd
economically, the State is in disadvantageous
position.
The avenues of employment in the State is strictly F
limited. There are about 3 lac educated unemployed
youths waiting for their employment under the State.
With the raising of retirement age from 57 to 60
years, it became necessary for the State to ensure G
and provide reasonable avenues of employment to
a large body of educated youth.
On delicate end fine balancing of the competing
H
660 SUPREME COURT REPORTS [2010] 7 S.C.R.
A interest of different groups, namely, people waiting
for employment and those already in employment,
the State Government evolved an additional mode
of retirement, i.e. completion of 35 years of service.
Long period of service of the existing employees
B
has resulted in sense of frustration and stagnation
amongst large number of educated unemployed
youth.
These were the grounds set up by the State in the counter
C affidavit before High Court as well.
40. It is appropriate at this stage to notice the view of the
High Court in the impugned order. The High Court said :
"The ratio of the decision in Yeshwant Singh Kothari
D (supra) is contained in para 11 of the judgment. Retirement
on attaining a particular age or alternatively on completion
of a specified number of years of service, so long the
number of years prescribed is not unreasonably small, can
form a legally valid basis for framing of a retirement policy.
E This, to our mind, is the true ratio of the judgment in
Yeshwant Singh Kothari (supra). The discussions in para
12 of the judgment, particularly, those pertaining to uniform
retirement age of 58 was in the context of the facts of the
case before the Supreme Court and the view taken with
F regard to the difference between a nationalized bank and
a subsidiary bank has to be confined to the facts of the
particular case. If we are correct in identifying the true ratio
of the judgment in Yeshwant Singh Kothari (supra), we do
not see any reason why the same cannot be per se made
G applicable to the employees under the State, if the State
so decides. In this connection, we must also keep in mind
that the observations of the Apex Court in para 7 of the
judgment in Nagaraj (supra) with regard to the low age of
retirement was rendered in a situation where the Apex
H Court was considering the question of reduction of the
NAGALAND SR. GOVT. EMPLOYEES WELFARE 661
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
retirement age from 58 to 55. In Nagaraj (supra), the Apex A
Court had no occasion to deal with the alternative rule of
retirement, namely, upon completion of a specified number
of years of service. In fact, we may very well take the view
that what has been introduced by the second amendment
by prescription of the alternative Rule of retirement is not s
a age of retirement but retirement on completion of 35
years of service which is an entirely independent yardstick.
Retirement of an individual at the age of 53/54 years by
adoption of the said yardstick is a consequence not of
attaining a particular age but of completing the prescribed c
period of service.
21 ...... The argument advanced on behalf of the petitioners
that the Second Amendment Act infringes Article 14 and
16 of the Constitution by prescribing a low retirement age
has already been dealt with in the discussions that have D
preceded. We have also held that prescription of length of
service of 35 years cannot be said to be unreasonably
short or small to bring about a situation of arbitrariness or
unreasonableness, as has been contended on behalf of
the petitioners. We have also held that retirement at th.e E
age of 53/54 years on completion of 35 years of service
is a consequential effect of completion of the prescribed
period of service ......
22 ..... The rule of retirement on completion of 35 years of F
service has relevance to employees who have joined
service at an age below 25 years and the prescription with
regard to retirement at the age of 60 years is in respect
of the persons joining service at the age of 25 and
thereafter. The above two categories of employees, though G
performing similar duties and may be identically placed
otherwise, can still be reasonably understood to form two
different classes to whom application of two rules of
retirement will not violate Article 14. The doctrine of equality
enshrined by Article 14 of the Constitution is not necessary
H
662 SUPREME COURT REPORTS [2010] 7 S.C.R.
A to be nor it is capable of being applied with mathematical
exactitude and some amount of advantage or dis-
advantage to persons who may seemingly appear to be
equally placed can occur in a given situation. In the present
case, persons joining Government service after 25 years
B of age, say at 30 or 35 years, though may retire at 60, will
have a lesser period of service than the persons who may
retire at an earlier age by virtue of the rule of retirement
on completion of 35 years of service. Each and every
instance of such advantage and corresponding dis-
c advantage will not attract Article 14. In fact, uniformity to
the extent possible, thereby, enhancing the concept of
equality has been sought to be brought in by the Second
Amendment Act by prescribing retirement on completion
of 35 years of service.
D 23 ....... That apart, the materials placed before the Court
along with the counter affidavit of the respondent State
indicates that the policy decision with regard to retirement
on completion of 35 years of service brought about by the
Second Amendment Act was preceded by an e~aborate
E ·and indepth study of the possible consequences of
introduction of the said policy and the same is the,result
of a conscious attempt to balance different shades of
opinion and interests."
F 41. We find ourselves in agreement with the aforesaid view
of the High Court. It cannot be overlooked that the whole idea
behind the impugned provision is to create opportunities for
employment and check unemployment. The impugned provision
is aimed to combat unrest amongst educated unemployed youth
G and to ensure that they do not join underground movement. As
observed by this Court in State of Maharashtra v.
Chandrabhan 12 , public employment opportunity is national
wealth. in which all citizens are equally entitled to share. In our
opinion the legislation of the kind we are concerned with must
H . 12. AIR 1983 SC 803
\.
NAGALAND SR. GOVT. EMPLOYEES WELFARE 663
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
be regarded as establishing the government policy for A
retirement from public employment based on age or length of
service to achieve a legitimate aim in public interest to permit
better access to employment to large number of educated youth
in the State and for the purpose of curbing the unemployment.
The legitimacy of such an aim of public interest cannot be s
. reasonably called into question. In any case, the impugned
provision founded on peculiar considerations of the State does
not appear to be unreasonal;>le nor it smacks of any
arbitrariness. Moreover, the impugned provision is in
consonance with the legal position highlighted by this Court in c
Yeshwant Singh Kothari1 and K. Nagaraj2 and as stated in K.
Nagaraj2, that while testing 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. Such an exercise is within the
0
domatn of the Legislature. By the impugned provision, the
Legislature, after balancing the competing interest of different
groups, has sought to open avenues of employment for a large
number of educated youth in the State. From the material
placed on record it cannot be said that impugned provision has
been enacted without any data and consideration\ of broad E
aspects of the question. ·
42. We are not impressed by the argument of the
appellants that impugned provision is arbitrary not only from the
point of view of the employees as a whole but also from the F
point of view of public interest since the public at large shall
be deprived of the benefit of the mature experience of the senior
government employees. If the State Government felt that it was
not fair to deny the large number of educated youth in the State
an opportunity of public employment because of existing G
provisions of retirement from public employment and
accordingly decided to have the impugned provision enacted
through the legislative process, we are afraid, in the guise of
mature experience, such provision may not be held to against
H
664 SUPREME COURT REPORTS [201 O] 7 S.C.R.
A public interest and arbitrary.
43. During the course of arguments, on behalf of the State
a statement was submitted that indicated that 3098 employees
retired from October 31, 2009 to December 31, 2009 on
completion of 35 years of service although they had not
8
completed the age of 60 years; of 3098 employees, 181 retired
at the.age of 53 years and 512 retired at the age of 54 years.
The statement thus indicated that percentage of employees
retiring at the age of 53 is 5.84 per cent and those retiring at
the age of 54 years is 16.52 per cent during the aforesaid
C period. It further transpired therefrom that 145 employees joined
service at the age of 9 to 17 years.
44. The aforesaid position, however, has been disputed
by the appellants. According to them 4680 employees at
D different age retired upto March 31, 2010. The statement
annexed with the written arguments on behalf of the appellants
in this regard is as follows :
Age Number Percentage
E Below 53 256 5.5
53 429 9.5
54 757 16
55 1167 24
F Above 55 2071 45
Total 4690
(4680-sic)
'The appellants' contention is that 31 per cent employees
retired at the age of 54 and below which constitutes a
G substantial section of the total retirees and that also shows that
the impugned enactment is arbitrary.
45. Insofar as factual aspect is concerned, we have no
justifiable reason to disbelieve the statement submitted by the
H State Government indicating that 3098 employees retired on
NAGALAND SR. GOVT. EMPLOYEES WELFARE 665
ASSN. v. STATE OF NAGALAND [R.M. LODHA, J.]
completion of 35 years of service with effect from October 31, A
2009 to December 31; 2009. There is variation because
appellants have given the figures of the employees who retired
upto March 31, 2010. Be that as it may, it appears that most
of the employees retired at the age of 54 and above and the
persons retiring at the age of 53 are only 5.84 per cent. The B
persons retiring at the age of 52 and below are those who
joined the Government service at the age of 9 to 17 years.
Merely because some employees had to retire from public
employment on completion of 35 years of service although they
have not completed 55 years of age does not lead to any c
conclusion that the impugned enactment is arbitrary, irrational,
unfair and unconstitutional. The fact that provision such as the
impugned provision that allows the retirement from public
employment on completion of 35 years' service is not to be
found in other States is of no relevance. As a matter of fact, .
0
retirement policy concerning public employment differs frpm
State to State. Kera la retires employees from public
employment at the age of 55 years. In any case there is nothing
wrong if the legislation provides for retirement of the government
employees based on maximum length of service or on attaining E
particular age, whichever is earlier, if the prescribed length of
service or age is not irrational.
46. The appellants' contention that alternative method of
retirement by way of length of service would result in different
age of superannuation of employees holding the same post F
depending upon their age of entry into service and would be
manifestly violative of Articles 14 and 16 of the Constitution is
noted to be rejected. Suffice it to say that alternative mode of
retirement provided in the impugned provision is.applicable to
all State Government employees. There is no discrimination. G
The impugned provision prescribes two rules of retirement, one
by reference to age and the other by reference to maximum
length of service. The classification is founded on valid reason.
Pertinently, no uniformity in length of service can be maintained
if the retirement from public employment is on account of age H
666 SUPREME COURT REPORTS [2010] 7 S.C.R
A since age of the government employees at the time of entry into
service would not be same. Conversely, no uniformity in age
could be possible if retirement rule prescribes maximum length
of service. The age at the time of entry into service would
always make such difference. In our view, challenge to the
B impugned provision based on the aforesaid ground must fail.
47. As regards judgment of the Gauhati High Court dated
January 18, 1993, -suffice it to say that the said judgment does
not lay down the correct legal position. That judgment is in
direct conflict with the judgment of this Court in Yeshwant Singh
C Kothari1 where this Court upheld the provision for retirement
which was to the effect, 'an officer shall retire from the service
of the Bank on attaining the age of 58 years or upon the
completion of 30 years' service, whichever occurs first'.
Unfortunately, the decision of this Court in Yeshwant Singh
D Kothari1 although earlier in point of time was not brought to the
notice of Gauhati High Court. This might have happened
because of short time gap between the two judgments; the
judgment in Yeshwant Singh Kothari1 was delivered by this
Court on January 14, 1993 while Single Judge of the Gauhati
E High Court pronounced judgment on January 18, 1993. Had the
judgment of this Court in Yeshwant Singh Kothan"1 been shown,
ought we know what would have been the view of the High Court.
Be that as it may, the judgment of this Court in Yeshwant Singh
Kothari1 holds the field.
F Conclusion
48. In the light of the foregoing considerations, we hold that
a provision such as that at issue which prescribes retiring the
persons from public employment in the State of Nagaland on
G completion of 35 years' service from the date of joining or until
attaining the age of 60 years, whichever is earlier, does not
suffer from the vice of arbitrariness or irrationality and is not
violative of Articles 14 and 16 of the Constitution. The appeal
has no merit and is dismissed with no order as to costs.
H R.P. Appeal dismissed.
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