Himachal Pradesh High Court
Uma Sharma vs State Of H. P. & Ors on 3 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 4195 of 2020
Decided on : 03.08.2021
.
Uma Sharma .....Petitioner
Versus
State of H. P. & Ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Saurav Rattan, Advocate.
For the Respondents: Nemo.
(Through Video Conferencing)
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The instant petition has been filed for grant of following substantive reliefs:
"i). Issue a writ of mandamus or direction in the nature of mandamus directing the respondents to declare the notification dated 29.03.2018 null and void.
(ii) Issue a writ of mandamus directing the respondents to fix the age of superannuation of the petitioner as per notification dated 24.03.2018.
2. The petitioner was appointed as Sales Girl/Clerk with respondent No. 3-The Kailash District Cooperative Marketing and Development Federation on 01.04.1995 and was promoted as Senior Assistant in the year, 2012.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 31/01/2022 22:48:32 :::CIS 23. It is averred that respondent No. 3 is a registered Society under the Societies Registration Act and is governed by its own Rules, under which she was entitled to continue till the age of .
superannuation i.e. 58 years. It is averred that after withdrawing the earlier notification dated 24.03.2018, respondent No. 3 vide notification dated 29.03.2018, has arbitrarily, reduced the age of superannuation from 58 to 55 years.
4. The petitioner had earlier approached this Court by filing CWP No. 662 of 2018, which was disposed of by this Court vide its order dated 27.02.2020 granting liberty to the petitioner to make a representation to respondent No. 3 and it was directed to decide the same and take a conscious decision in the matter within three months.
5. The claim of the petitioner has now been rejected vide order dated 07.08.2020 on the ground that the services of the petitioner is not required due to paucity of work and financial conditions. It has been further averred that the respondent has not retained any of the four other employees after they attained the age of superannuation on completion of 55 years in terms of the Service Rules as approved by the Registrar Co-operative Societies.
We have heard learned counsel for the petitioner and have gone through the records of the case.
6. It is settled law that fixing of retirement age is matter of policy where the Courts are normally not interfere unless it is arbitrarily, irrationally or in violation of constitutional norms.
::: Downloaded on - 31/01/2022 22:48:32 :::CIS 37. The Hon'ble Apex Court in K. Nagraj and others vs. State of Andhra Pradesh and another, 1985 (1) SCC 523, had the occasion to consider the nature of the decision of the State .
Government regarding the age of superannuation of its employees and in this case the State of Andhra Pardesh had increased the age of retirement from 55 to 58 years. However, the new government came into power and it took a decision to reduce the retirement age from 58 to 55 years. Several writ petitions were filed by the employees challenging the notification issued by the State. These writ petitions were dismissed by the High Court and thereafter the matter was taken up before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the decision regarding age of retirement has to be left to the discretion of the State government, which has to balance the various factors.
8. It is apposite to refer to the relevant observations as contained in para-7, which reads as under:-
"7.This is the broad outline of the petitioners' case. We will presently set out the specific contentions advanced before us but, before doing so, it would be necessary to indicate the approach which, in our opinion, should be adopted while examining a question of the present nature namely, the fixation of the age of retirement. Barring a few services in a few parts of the world as, for example, the American Supreme Court, the term and conditions of every public service provide for an age of retirement. Indeed, the proposition that there ought to be an age of retirement in public services is widely accepted as reasonable and rational. The fact that the stipulation as to the age of retirement is a common feature of all of our ::: Downloaded on - 31/01/2022 22:48:32 :::CIS 4 public services establishes its necessity, no less than its reasonableness. Public interest demands that there ought to be an age, of retirement in public services. The point of the peak level of efficiency is bound to differ from .
individual to individual but the age of retirement cannot obviously differ from individual to individual for that reason. A common scheme of general application governing superannuation has therefore to be evolved in the light of experience regarding performance levels of employees, the need to provide employment opportunities to the younger sections of society and the need to open up promotional opportunities to employees at the lower levels early in their career. Inevitably, the public administrator has to counterbalance conflicting Claims while determining the age of superannuation. On the one hand, public services cannot be deprived of the benefit of the mature experience of senior employees; on the other hand, a sense of frustration and stagnation cannot be allowed to generate in the minds of the junior members of the services and the younger sections of the society. The balancing of these conflicting claims of the different segments of society involves minute questions of policy which must, as far as possible, be left to the judgment of the executive and the legislature, These claims involve considerations of varying vigour and applicability. Often, the Court has no satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of a given case. We do not suggest that every question of policy is outside the scope of judicial review or that, necessarily, there are no manageable standards for reviewing any and every question of policy. Were it so, this Court would have declined to entertain pricing disputes covering as wide a range. as case to mustard-oil. If the age of retirement is fixed at an unreasonably low level so as to make it arbitrary and irrational, the Court's ::: Downloaded on - 31/01/2022 22:48:32 :::CIS 5 interference would be called for, though not for fixing the age of retirement but for mandating a closer consideration of the matter. "Where an act is arbitrary, it is implicit in it that it is unequal both according to political .
logic and constitutional law and is therefore, violative of Article 14; E. P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348 : (AIR 1974 SC 555)." But while resolving the validity of policy issues like the age of retirement, it is not proper to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts. That is an exercise which the administrator and the legislature have to undertake. As stated in 'The Supreme Court and the Judicial Function' Edited by Philips B. Kurland, Oxford and IBH Publishing Co., Page 13.
"Judicial self-restraint is itself one of the factors to be added to the balancing process,carrying more or less weight as the circumstances seem to require".
9. In Indian Institute of Technology vs. Raja Ram Verma and others (2010) 14 SCC 86, the Hon'ble Supreme Court has laid down that prescribing the age of retirement is a managerial function and the Court can interfere only when it is found that the policy of fixation of retirement age is not based on intelligible criterion.
10. It is apposite to refer to the relevant observations as contained in para-27, which reads as under:-
"27. It has been held by this Court, more than once, that prescribing the age of retirement is a managerial function and such decisions are taken by the management of the concerned institute on consideration of various aspects. One of the most predominant consideration is the need of the institute, its functional requirements and efficient management of its manpower. These are the areas where ::: Downloaded on - 31/01/2022 22:48:32 :::CIS 6 the Court should not normally venture and judgment in this area should be best left with the authorities who are in-charge of running or managing such institutes. However, if the Court finds that the policy in fixing the age .
of retirement was not based on any intelligible criterion or is founded on such a basis which are patently unreasonable and perverse, the Court has a bounden duty to interfere and direct the concerned management to proceed on a reasonable basis."
11. It is then contended by the learned counsel for the petitioner that prescribing the age of superannuation to be 55 years is clearly discriminatory as in all the other services, the employees retire at 58 years or above.
12. We do not find any merit in such contention as issue some what similar has already been answered by the Hon'ble Supreme Court in Nagaland Senior Government Employees Welfare Association and others vs. State of Nagaland and others (2010) 7 SCC 643, wherein it was held as under:-
"57. 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 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, retirement policy concerning public employment differs from State to State. Kerala 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 ::: Downloaded on - 31/01/2022 22:48:32 :::CIS 7 employees based on maximum length of service or on attaining particular age, whichever is earlier, if the prescribed length of service or age is not irrational."
.
13. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed in limine.
(Tarlok Singh Chauhan)
Judge
03.08.2021
(sanjeev)
r to (Satyen Vaidya)
Judge
::: Downloaded on - 31/01/2022 22:48:32 :::CIS