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2020 DIGILAW 106 (AP)

G. Pulla Reddy v. State of Andhra Pradesh

2020-02-10

T.RAJANI

body2020
ORDER : T. Rajani, J. W.P. No. 26584 of 2019 1. This writ petition is filed seeking to declare the action of the 3rd respondent in contemplating to retire the petitioner from service as Attender on attaining the age of 58 years i.e., on 31.08.2017, as illegal. W.P. No. 26624 of 2019 This writ petition is filed seeking to declare the action of the 3rd respondent in contemplating to retire the petitioner from service as Fitter on attaining the age of 58 years i.e., on 31.08.2017, as illegal. 2. For the sake of convenience, the parties in these writ petitions are hereinafter referred to as, (1) Petitioner in W.P. No. 26584 of 2019- first petitioner, (2) Petitioner in W.P. No. 26624 of 2019-second petitioner, (3) Third respondent in W.P. No. 26584 of 2019-first respondent and (4) Fourth respondent in W.P. No. 26624 of 2019-second respondent. 3. The first petitioner was appointed as Bus Conductor in the first respondent college and the second petitioner was appointed as Fitter in the second respondent college in the years 1996 and 1986 respectively. Later the first petitioner was posted as Attender in Computer Science department and he was working as Attender in the office of the Controller of Examinations of the first respondent college. While so, since the first and second respondents are contemplating to retire the first petitioner and second petitioner from service, they gave representations to continue them as in service as per instructions issued by the State Government and as per Section 78-A(2) of the A.P. Education Act, 1982 (for short, "the Act"). Section 78-A(2), runs as follows- "78A. Age of superannuation of the staff in aided private educational institutions:- (2) Every member belonging to the last grade service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years" There are no separate guidelines governing private unaided educational institutions, prescribing the age of superannuation for last grade service and the same is governed by the Act. The AICTE Regulations do not provide any provision for age of superannuation of last grade service. Hence, the first and second petitioners are entitled to continue in service upto the age of 60 years. The third and fourth respondent-Colleges are private unaided technical institutions and are recognised by respondents 1 to 3. The AICTE Regulations do not provide any provision for age of superannuation of last grade service. Hence, the first and second petitioners are entitled to continue in service upto the age of 60 years. The third and fourth respondent-Colleges are private unaided technical institutions and are recognised by respondents 1 to 3. Even the third and fourth respondents have clarified that the service Rules for the employees of the private/unaided Educational Institutions shall be treated on par with Government Employees of State Government. Therefore, the first and second petitioners are entitled for continuation till 60 years of their age. 4. The first and second respondents filed counter contending that the petitioners filed the writ petitions under the premise that Section 78-A of the Act has application, to this case. As per Section 1(3)(ii) of the Act, the Act is not applicable to the institutions established or maintained and administered by or affiliated to, or recognized by the Andhra Pradesh Agricultural University and the Jawaharlal Nehru Technological University, the question of applicability of Section 78-A of the Act to the instant case does not arise. Apart from the above, the 4th respondent is an autonomous institution affiliated to JNTU, Anantapur. It has got its own set of service rules. As per the said Rules, the age of retirement of all the members of Teaching Staff (faculty) shall be 60 years and in the case of other staff it shall be 58 years By virtue of G.O. Ms. No. 112, Finance, dated 18.06.2016, the Government of Andhra Pradesh ordered that the enhanced age of superannuation cannot be made applicable to the employees of Public Sector Undertakings and Institutions listed in the Schedules-IX and X of the Andhra Pradesh Reorganisation Act, 2014 The rules govern the service conditions of all the employees of the college, both teaching and non teaching staff until the matter of division of assets and liabilities of the Institution between the States of Telangana and the Andhra Pradesh. Challenging the same, employees filed W.P. No. 18205 of 2014 and batch and the High Court passed orders in the said batch of writ petitions holding as under: "The earlier GOs were issued by the government of AP without these legal entities amending its rules-regulation byelaws, governing the age of superannuation and without the prior approval of the sole/majority shareholder i.e., the State Government as required under the Articles of Association/byelaws of these legal entitles. As the rules and regulations, by which the petitioners are governed, stipulate 58 years as the age of retirement, these employees cannot claim any right to continue in service till they attain the age of 60 years It is only if the request of these companies-corporation-societies, for amendment of its byelaws/rules and regulations, are approved by the State Government, and the rules/byelaws/regulations are amended thereafter in accordance with 'law, would their employees then be governed by the enhanced age of superannuation prescribed under the Rules/bye-laws. Since the Board of Directors/Managing Committees of these wholly or substantially government owned Companies/Corporations/Societies have submitted proposals, the State Government is obligated to consider the request of each of these corporations/companies/societies separately, based on their financial position, genuineness of their need to enhance the age of superannuation etc., and then take a decision whether or not their request, to enhance the age of superannuation of their employees from 58 to 60 years, should be approved. Suffice it, if the Government of AP, is directed to consider the proposals submitted by each of these corporations/societies/companies, for enhancement of the age of superannuation from 58 to 60 years in accordance with law, and take a decision there upon at the earliest, in any event not later than four months from the date of receipt of a copy of this order." Based on the said judgment, the Government of Andhra Pradesh issued G.O. Ms. No. 102, Finance, dated 27.06.2017, framing guidelines in regard to the enhancement of age of superannuation. The GO Stipulates that specific decision to enhance the superannuation age shall be taken by the Board of Directors/Managing Committees of these legal entities by considering that their financial position and their genuineness of their need to enhance the age of superannuation. The above would indicate that the first and second respondents is an autonomous institution and it has power to frame its service rules. The above would indicate that the first and second respondents is an autonomous institution and it has power to frame its service rules. AICTE is necessary and proper party to the present writ petition and as it is not made a party, the writ petitions are liable to be dismissed on that ground. The contention of the petitioners that there is no provision of age of superannuation of last grade service of AICTE to continue his service until the age of 60 years as per the provisions of the Act, is without any basis. The reliance placed on the guidelines said to have been issued by the Board of Fee Regulatory Committee is nothing but imaginary. The AFRC Committee constituted by the Government of Andhra Pradesh is to fix the fee on the basis of the financial audit submitted by them. The Committee issued guidelines for fixation of fee only and it has no power to issue of service conditions of teaching and non teaching staff. Based on the above grounds, the respondents seek to dismiss the writ petitions. 5. Heard Sri P. Gangaiah Naidu, learned senior counsel appearing for Smt. G. Bhanu Priya, learned counsel for the petitioners in both the writ petitions; learned Government Pleader for Higher Education appearing for respondents 1 and 2; Sri K. Ramakanth Reddy, learned counsel appearing for the 3rd respondent; and Sri K. Raji Reddy, learned counsel appearing for the 4th respondent. 6. This court by virtue of order in W.P. Nos. 6916 and 7266 of 2019 passed orders, on which the petitioner's counsel relies, allowing the writ petitions therein and directing the respondents to continue the petitioners till they attain age of 60 years. The counsel for the respondent contends that the cases covered by the said order can be distinguished from the present case, as in the said case, since there were no service rules, the institutions therein followed the Act, which prescribed the age of superannuation for the last grade employees as 60 years. But the respondents in this case have framed services rules of employees prescribing the age of retirement as 58 years in case of staff other than the teaching staff. But the respondents in this case have framed services rules of employees prescribing the age of retirement as 58 years in case of staff other than the teaching staff. In the order relied upon by the petitioners' counsel, this court took into consideration the fact that the intention of the respondents therein to follow the Act was evident from the proceedings of the Presidents of the Institutions therein, wherein it was mentioned that as no valid service conditions book for teaching and non teaching staff was in existence, they wanted to follow the Act. Keeping in view the said fact and also holding that the AFRC regulations have statutory force, this court has ruled that the petitioners therein would be entitled to be continued till the age of 60 years. 7. The High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh while disposing of a batch of writ petitions viz., W.P. Nos. 1041 of 2016 and batch, observed that the contention of the learned Standing Counsel for the RTC that the employees of the respondent Corporation are governed by the statutory rules which prescribe age of superannuation of 58 years and as long as those rules are in force, petitioners therein cannot claim as of right that they should be continued in service till the age of 60 years, holding that the questions whether the age of superannuation should be accepted and Rules in this regard should be amended, are all matters which the Corporations should decide. Hence, the intention of the said order is clear, that when there are Rules governing the age of superannuation, without amendment of the said Rules, the age of superannuation cannot be extended by the court. 8. In another batch of writ appeals viz., W.A. Nos. 665 of 2017 and batch, the Andhra High Court vacated the ad interim orders of the single Judge since the interim order was granted relying on the order of the Supreme Court, which has no application to Corporations/Companies/Societies, in the Schedules-IX and X of the 2014 Central Act. 9. There is no dispute that the respondents have enacted service rules of employees, which have statutory force. Under the said Rules, the age of retirement is 58 years for the Staff other than the teaching staff. 9. There is no dispute that the respondents have enacted service rules of employees, which have statutory force. Under the said Rules, the age of retirement is 58 years for the Staff other than the teaching staff. The AFRC Regulations, which the petitioners seek to apply in this case are only guidelines issued for the matters relating to fixation of fee structure in private unaided professional colleges. Hence, the important issue relates-to fixation of fee structure. Incidentally, the retirement age was also specified in the said guidelines. The guidelines are issued for furnishing fee proposals by private unaided professional institutions. 10. Hence, when there are service rules, which specifically mention the age of retirement of the employees, the AFRC Guidelines cannot be pressed into service for extending the superannuation of the age of the petitioners. It also could be noted that the petitioners have already retired by virtue of the proceedings issued in that regard. 11. Hence, in view of the above, this court opines that there is no merit in these writ petitions. 12. With the above observations, the Writ Petitions are dismissed. As a sequel, the miscellaneous applications pending, if any, shall stand closed.