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2023 DIGILAW 1172 (AP)

B. Peddanna v. State of Andhra Pradesh

2023-08-08

K.MANMADHA RAO

body2023
JUDGMEN 1. The Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of mandamus by declaring that the petitioner is entitled to retire on his attaining the age of 62 years and further to direct the respondents to extend the service of petitioner up to the age of 62 years by continuing his service in consonance with G.O.Ms.No.15 Finance (HR.IV.FR & LR) Department, dtd. 31/1/2022 on par with the Government Employees and pass such other orders. 2. Heard Sri N. Madhava Rao, learned counsel appearing for the petitioner and Sri Ravi Teja Padiri, learned counsel and learned Government Pleader for Panchayat Raj and Rural Development appearing for the respondents. 3. The facts of the case are that the petitioner was appointed as Watchman in the year 1984 in District Rural Development Agency, Ananthapuram District. Thereafter, he promoted as Attender in the year 1994, and he is continuing in the same post till now. While he was working in the said post the 4th respondent issued proceedings vide No.54/G/2020, dtd. 6/4/2022 through which he was initiated to retire on 31/5/2022 from his service. While the matter stood thus the Government of Andhra Pradesh took a decision to enhance the age of superannuation of the Employees working under the Government. As per the said decision the Government issued G.O.Ms.No.15 dtd. 31/1/2022, wherein enhanced the age of superannuation of Government Employees from 60 years to 2 years as per the A.P. Public Employment (Regulation of Age of Superannuation) (Amendment) Ordinance, 2022 (for short "A.P.(Amendment) Ordinance, 2022") and accordingly an amendment has been issued to that extent. The said amendment came into force on 1/1/2022 and all the Government Employees were allowed to work, even though they crossed 60 years of age in view of the above said amendment. The said amendment came into force on 1/1/2022 and all the Government Employees were allowed to work, even though they crossed 60 years of age in view of the above said amendment. In similar circumstances, when the Government of Andhra Pradesh enhanced the age of superannuation in the year 2014 from 58 years to 60 years, at that point of time, the employees working in the District Rural Development Agencies were asked to retire and they approached this Court by way of filing W P No.21304 of 2017 and this Court allowed the said writ petition by declaring that the employees working in District Rural Development Agencies are entitled to be continued in their service as per Regulation No.12 of Model Service Regulations till they attain the age of superannuation on par with the Government employees. Even though the petitioner is entitled and eligible to be continued in his service till attains the age of 62 years as per the Regulation No.12 of Model Service Regulations, which were issued through G.O.Ms.No.135 dtd. 8/3/1991 and as per the order of this Court in WP No.21304 of 10Rs. 7 the respondents without considering the said legal aspect, illegally issued the proceedings. Hence, the present writ petition. 4. During pendency of the above W.P.No.15449 of 2022, this Court vide order, dtd. 26/5/2022, granted interim direction as under: "...Accordingly, the petitioner shall be continued up to the age of Superannuation of "62" years if otherwise entitled as per law pending further orders in this writ petition. The respondents shall file their counter..." 5. Since the respondents have not complied with the above order, the petitioner has filed the Contempt Case No.3239 of 2022 against the respondents in W.P.No.15449 of 2022. 6. Per contra, the respondent No.2 filed vacate stay petition vide I.A No.2 of 2022 in W.P.No.15449 of 2022, while denying all the allegations made in the petition, contended that the Government considering the employees recruited in earlier years and put-in considerably long service felt necessary to have service regulation to thee directly retired employees of the DRDAs. Accordingly the Government vide G.O.Ms.No.135 PR & RD-(RD.II) Department, dtd. 8/3/1991 communicated Model Service Regulations and directed the DRDAs to frame the bye laws in accordance with those model service regulations and get them approved by their respective Governing bodies. Accordingly the Government vide G.O.Ms.No.135 PR & RD-(RD.II) Department, dtd. 8/3/1991 communicated Model Service Regulations and directed the DRDAs to frame the bye laws in accordance with those model service regulations and get them approved by their respective Governing bodies. It is further stated that the SERP (Society for Elimination of Rural Poverty) is the controlling authority of DRDA, on behalf of the State of Andhra Pradesh. The DRDAs have been placed under this respondent supervision through Memo No.17296/RD.I/A2/2009, dtd. 5/9/2009 of the Department of Rural Development. It is further stated that the Government of Andhra Pradesh has issued orders on 31/1/2022 vide G.O.ms.No.15 enhancing the age of employees from 60 years to 62 years as per the A.P. Public Employment (Regulation of age of superannuation (Amendment) Ordinance, 2022 w.e.f 1/1/2022. As such the DRDAs are registered under societies Act and it is an Agency. As per the said amendment, it applicable to the following categories of Government employees only : i) Persons appointed to public services and posts in connection with the affairs of the State; ii) Officers and other employee working in any local authority, whose salaries and allowances are paid out of the consolidated fund of the State; iii) Persons appointed to the Secretariat Staff of the Houses of the State Legislature and iv) Every other officer or employee whose conditions of service are regulated by the rules framed under the proviso to Article 309 of the Constitution of India before the commencement of this act, other than the village Officers and Law Officers; v) Whether appointed before or after the commencement of this Act It is further stated that because of financial issues and policy differences between the State and Union, DRDAs weren't able to either adopt model guidelines issued by State of Andhra Pradesh nor were able to give benefits. Further stated that the enhancement of age of superannuation from 60 years to 62 years is presently under consideration of the Government. As such the petitioner is not entitled for enhancement of the age of superannuation till the State takes a positive view and any such benefits would accrue for the employees as on the date of decision of the Government and not those who would retire prior to such decisions. Hence, the writ petition is misconceived and the same may be liable to be dismissed. 7. Hence, the writ petition is misconceived and the same may be liable to be dismissed. 7. Learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court reported in State of Uttar Pradesh Versus Dayanand Chakrawarty and others,(2013) 7 Supreme Court Cases 595. wherein the Apex Court held that : Initially, in exercise of powers conferred under sub-sec. (1) and clause (c) of sub-sec. (2) of Sec. 97 of Act, 1975 and with the previous approval of the State Government, the Nigam made regulations for regulating the recruitment to the posts and the conditions of service of persons appointed to the Uttar Pradesh Jal Nigam Service of Engineers (Public Health Branch) known as the Uttar Pradesh Service of Engineers (Public Health Branch) Regulations, 1977. 6. Subsequently, in exercise of powers conferred under sub-sec. (1) and clause (c) of sub-sec. (2) of Sec. 97 of the Act, 1975, and with the previous approval of the State Government, Nigam made the "Uttar Pradesh Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978" (hereinafter referred to as the "Regulations, 1978") for regulating the recruitment to the posts and the conditions of service of persons appointed to the Jal Nigam Engineers (Public Health Branch). The said Regulations, 1978 were made equally applicable to the employees transferred and merged from the erstwhile LSGED and the employees directly recruited by the Nigam and it came into force w.e.f. 27/4/1978. Regulation 31 relates to pay, allowance, pension, leave and other conditions of service which reads as follows: "Regulation 31.- Except as provided in these regulations the pay, allowance, pension, leave, imposition of penalties and other conditions of service of the members of the service shall be regulated by rules, regulations or orders applicable generally to the Government Service in connection with the affairs of the state." 7. There is no separate provision for age of superannuation of employees of the Nigam prescribed under Regulations, 1978. There is no separate provision for age of superannuation of employees of the Nigam prescribed under Regulations, 1978. As per Regulation, 31, the terms and conditions of service of the employees of the Nigam shall be governed by the same rules, regulations and orders generally applicable to the employees of the State Government and hence the retirement and superannuation age of employees of the Nigam shall stand governed by the provisions of Rule 56(a) of the Uttar Pradesh Fundamental Rules contained in the Financial Handbook, Volume II, Part II-IV, which reads as follows: "Rule 56(a).Except as otherwise provided in other clauses of this rule every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He may be retained in service after the date of retirement on superannuation with the sanction of the government on public grounds which must be recorded in writing but he must not be retained after the age of sixty years except in very special circumstances." The age of retirement of the State Government employees as per Rule 56(a) of Uttar Pradesh Fundamental Rules was 58 years. In the year 2001, the State Government vide its Official Order No.1098/A-1/2001 dtd. 28/11/2001 informed of its intention to amend clause (a) of Rule 56. Consequently, Rule 56(a) was amended by "The Uttar Pradesh Fundamental (Amendment) Rules, 2002" vide Notification dtd. 27/6/2002, which came into force on 28/11/2001. As per the amended clause (c) of Rule 56, the age of superannuation of the State Government employees was enhanced from 58 years to 60 years, which reads as follows: "Rule 56(a).Except as otherwise provided in this rule, every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Provided that a Government servant whose date of birth is the first day of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years. Provided further that a Government servant who has attained the age of fifty eight years on or before the first day of November, 2001 and is on extension in service shall retire from service on expiry of his extended period of service." .... Provided further that a Government servant who has attained the age of fifty eight years on or before the first day of November, 2001 and is on extension in service shall retire from service on expiry of his extended period of service." .... For the foregoing reasons, we are of the view that so long as Regulation 31 of the Regulations is not amended, 60 years which is the age of superannuation of government servants employed under the State of Uttar Pradesh shall be applicable to the employees of the Nigam. However, it would be open to the Nigam with the previous approval of the State Government to make suitable amendment in Regulation 31 and alter the service conditions of employees of the Nigam, including their age of superannuation. It is needless to say that if it is so done, the same shall be prospective. 8. Learned counsel further submits that when the Government of Andhra Pradesh enhanced the age of superannuation in the year 2014 from 58 to 60 years, at that point of time some of the employees working in the DRDA were approached this Court by way of filing WP No.21304 of 2017 and the same was allowed by this Court declaring that the employees working in the DRDA are entitled to be continued in their services as per Regulation 12 of Model Service Regulations till they attain the age of superannuation on par with the Government Employees. He further submits that this Court in a catena of judgments has already considered and ratified the age of superannuation from 60 years to 62 years to the employees and further requests this Court as similarly situated persons in this case also may be considered in similar manner by allowing these writ petitions. 9. In a case of G. Rama Mohan Rao and another versus Government Andhra Pradesh rep by its Principal Secretary and another,2017 SCC OnLine Hyd 54. the High Court of Andhra Pradesh held that : "While a Public Sector Undertaking is a distinct juristic entity with a As employees of Public Sector Undertakings and Government servants constitute two different and distinct classes, neither do the conditions of service prescribed for government servants automatically apply to employees of Public Sector Undertakings, nor does the plea of discrimination, or of violation of Article 14, merit acceptance. The contention that the Government cannot apply different yardsticks is therefore not tenable. While several of these corporate bodies appear to have adopted the 1984 Act, they are required to also adopt the 2014 State Act, and amend the rules and bye-laws, governing the age of superannuation of its employees, accordingly. It is only if the rules, governing the age of superannuation, are amended as prescribed under the applicable byelaws/Articles of association would the employees of these corporate bodies then be entitled to claim the benefit of the enhanced age of superannuation." 10. Now the present G.O.Ms.No.15 has come into force for extension of the age of superannuation from 60 years to 62 years, which is now under challenge. 11. On perusing the entire material available on record and the submissions of both the learned counsels and the decision referred to above, this Court observed that, while considering whatever analysis mentioned and taking reliance by the respondents counsel, the analysis of the judgment, nowhere the respondents stated that whenever the Government has introduced Government Orders with regard to the superannuation that they are not applicable to the employees of the Corporations/ Companies. So in view of the above circumstances, the respondent authorities are stating that the orders G.O.Ms.No.15 are not applicable to the employees of respondent No.2/DRDA, which is not acceptable under law. 12. It is also observed that as the employees of Public Sector undertakings and Government servants constitute two different and distinct classes, neither do the conditions of service prescribed for government servants automatically apply to employees of Public Sector Undertakings, nor does the plea of discrimination, or of violation of Article 14, merit acceptance. The contention that the Government cannot apply different yardsticks is therefore not tenable. While several of these corporate bodies appear to have adopted the 1984 Act, they are required to also adopt the 2014 State Act, and amend the rules and bye-laws, governing the age of superannuation of its employees, accordingly. It is only if the rules, governing the age of superannuation, are amended as prescribed under the applicable bye-laws/Articles of association would the employees of these corporate bodies then be entitled to claim the benefit of the enhanced age of superannuation. 13. It is only if the rules, governing the age of superannuation, are amended as prescribed under the applicable bye-laws/Articles of association would the employees of these corporate bodies then be entitled to claim the benefit of the enhanced age of superannuation. 13. It is also observed that the earlier G.Os were issued by the Government of A.P. without these legal entities amending its rules/regulations/bye- laws, 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 entities. 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/Corporations/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. 14. This Court finds that earlier this Court taken into consideration of the fact with regard to enhancement of age from 58 to 60 as per existing G.Os by then for the employees working in the Sugar Factories in the State, the same principle would directly applies in this matter also, under the circumstances as stated supra. Therefore the contention of the learned counsel for the respondents that as per the APPE (Regulation of age of superannuation (Amendment) Ordinance, DRDAs are registered under societies Act and it is an Agency, and this enhancement is not applicable to the employees working in PSUs, Corporations and Societies etc. all the DRDAs are the Public Societies registered under Societies and as no decision was taken to continue the employees working in Societies/Corporations, the petitioner is not entitled to get benefit to extend the age from 60 to 62 years cannot be sustained. Though in similar circumstances the same Sugar Factories adopted the G.Os and extended the age from 58 to 60. At this juncture, the same principle would be attracted in this case also. 15. Though in similar circumstances the same Sugar Factories adopted the G.Os and extended the age from 58 to 60. At this juncture, the same principle would be attracted in this case also. 15. Having regard to the facts and circumstances of the case, upon perusal of the material on record and on considering the submissions of learned counsel, this Court is of the opinion that as the DRDAs are registered under Societies Act and it is an Agency, the enhancement of age of superannuation from 60 to 62 years as per G.O.Ms.No.15, dtd. 31/1/2022, which affects to the Government employees, shall also be applicable to the petitioner, as per the A.P.P.E (Amendment) Ordinance, 2022. In similar circumstances this Court held in catena of writ petitions also. At this juncture, the same principle would also be attracted in this case. 16. Accordingly, the Writ Petition is allowed while declaring the impugned proceedings dtd. 6/4/2022 issued by the 4th respondent, as illegal and arbitrary and same is hereby set aside. Further, the respondents are directed to continue the petitioner service by extending the benefit of G.O.Ms.No.15, dtd. 31/1/2022. There shall be no order as to costs. 17. As a sequel, miscellaneous applications pending, if any, shall also stand closed.