2008 Supreme(SC) 809

2008(3) Supreme 651
SUPREME COURT OF INDIA
Tarun Chatterjee & Harjit Singh Bedi, JJ.
P. Venugopal —Petitioner
Versus
Union of India —Respondent
Writ Petition (Civil) 656 of 2007
Decided on 8.5.2008

IMPORTANT POINTS
(1) It is open to an employer to reduce the age of superannuation of its employees even affecting the serving employees under appropriate circumstances.
(2) The State or other public authorities are not, therefore, entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status.
(3) Principle of superannuation does not apply to a tenure post. It is a condition of holding the office.

Headnote:(a) Service Law – Service conditions – It is open to an employer to reduce the age of superannuation of its employees even affecting the serving employees under appropriate circumstances and no exception can be taken thereto – Similarly the employer has a discretion to grant or not to grant extension after superannuation having regard to the interest of the employer or the establishment. (Para 7)

       AIR 1989 SC 75 – Relied upon

       (b) Service Law – Service conditions – A person appointed in Government service acquires a status – His service conditions are determined by the Service Rules or Statutory Rules and not by the contrary or inconsistent terms of the contract, and such terms and conditions of service may be unilaterally altered by the Government. (Para 8)

       AIR 1967 SC 1889; (1976) 2 SCC 502; (1998)2 SCC 208: 1998(5) Supreme 283; – Relied upon

       (c) Service Law – Service conditions – A Government servant is liable to be dealt with by the relevant Act or the Rules but only until he succeeds in challenging the constitutional validity of the same – A Government servant does not forego his fundamental rights – On the other hand he acquires additional rights constitutionally protected – The State or other public authorities are not, therefore, entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status – Such a person is also entitled to constitutional remedies under Article 32 or 226 of the Constitution in case of arbitrary, unreasonable and unequal treatment. (Para 10)

       AIR 1939 Federal Court P.1; (1977)4 SCC 98; (1980)3 SCC 97; 1992 Suppl.2 SCC 351; (2004) 12 SCC 588: 2005(1) Supreme 589 – Distinguished

        (d) All India Institute of Medical Sciences (Amendment) Act, 2007 – Section 11 (1A), Proviso – Validity – The impugned proviso manifestly designed to apply and in fact applied only against the writ petitioner and not intended to and could not apply even, in principle or otherwise, to anybody else – The proviso does not at all deal with the alteration of the age of superannuation but modifies the initial appointment on the ground of alleged inconsistency with a subsequent enactment and makes the incumbent entitled to compensation for premature termination of his office – To equate the impugned proviso with the simple alteration of the age of superannuation is to ignore the clear language of the proviso itself. (Paras 20 and 21)

       AIR 1953 SC 215 – Relied upon

       (e) Constitution of India 1950 – Article 14 – The proviso brings about a premature termination and provides for compensation – Superannuation in usual course gives rise to ordinary retiral benefits and not to any compensation – Again a person is being singled out for premature termination without any question of his being justifiably treated as a Member of a separate and distinct class on any rational basis, any question of intelligible differentia having a nexus to the object of classification cannot arise – Instant legislation is not in respect of any class but it is in respect of an individual requiring him to move out of office. (Para 21)

       (f) All India Institute of Medical Sciences (Amendment) Act, 2007 – Statement of Objects and Reasons – Amendments purportedly with a view to comply with the directions of the High Court of Delhi in the judgment dated 29th of March, 2007 – High Court rendered an effective and binding determination of the right of the writ petitioner to continue as Director for five years up to 2nd of July, 2008 – However instead of laying down any policy or principle at all, the amendment deals only with the case of the writ petitioner and seeks to affect him in isolation – Therefore it is difficult to conceive how the amendments are in compliance or in consonance with the directions of the High Court. (Paras 21, 22 and 24)

       (g) Service Law – Tenure appointment – The tenure of the writ petitioner as a Director to act as a Member of the Governing Body was for five years which was to expire on 2nd of July, 2008 – Therefore, it was a tenure appointment – Principle of superannuation does not apply to a tenure post – It is a condition of holding the office – Appointment to a tenure post begins when the person joins and it comes to an end on the completion of the tenure, unless curtailed on justifiable grounds and after complying with principles of natural justice. (Paras 25, 27 and 30)

       (h) Constitution of India 1950 – Article 132 – The interim order or final order of High Court would remain binding upon the parties and they cannot be ignored or disregarded until and unless they are modified or leave is granted to take any step contrary thereto. (Para 25)

       (1978) 2 SCC 50; (1982)1 SCC 205 – Referred

       (i) Interpretation of Statutes – The AIIMS (Amendment) Act, 2007 introducing he proviso purporting to comply with the directions of the Delhi High Court – Pendency of the SLP not brought to the notice of the Parliament – There being no non-obstante clause in the impugned amendment, the same cannot be treated to be a validating Act. (Para 26)

       (1992)3 SCC 526 – Relied upon

       (j) All India Institute of Medical Sciences (Amendment) Act, 2007 – Section 11 (1A), Proviso – Validity – There was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director – Such an impermissible over-classification through a one man legislation clearly falls foul of Article 14 of the Constitution being an apparent case of “naked discrimination” and renders the impugned proviso as void, ab initio and unconstitutional. (Para 30)

       (1992)3 SCC 526; 1967 (2) SCR 214 – Relied upon

       Facts of the case:

       1. In this writ application under Article 32 of the Constitution moved at the instance of Dr.P.Venugopal, a renowned and internationally famed Cardio Vascular Surgeon, calls in question the constitutional validity of the proviso to sub-section (1A) of Section 11 of the All India Institute of Medical Sciences (Amendment) Act, 2007.

       Findings of the Court:

        The Proviso to Section 11(1A) inserted by AIIMS (Amendment) Act, 2007 is void and unconstitutional.

       Result: Petition allowed.