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2023 DIGILAW 746 (AP)

Thota Venkateswara Rao v. State of Andhra Pradesh

2023-05-02

K.MANMADHA RAO

body2023
ORDER : These Writ Petitions are filed under Article 226 of the Constitution of India, to issue a Writ of mandamus by declaring that the petitioners are entitled to retire on their attaining the age of 62 years and further to direct the respondents to extend the services of petitioners up to the age of 62 years by continuing their services in consonance with G.O.Ms.No.15 Finance (HR.IV.FR & LR) Department, dated 31.01.2022 on par with the Government Employees and pass such other orders. 2. Since the issue involved in both the writ petitions is one and the same, the same are heard and are being disposed of by this common order. 3. Heard Sri Narasimha Rao Gudiseva, learned counsel appearing for the petitioners and Sri C. Sumon, learned Government Pleader appearing for the respondents. 4. The brief facts of the case are that the respondent No.2 is a Tourism Development Corporation, working under the control of the respondent No.1. The petitioners are working in different position and now they got promotions in the present designation. The Government of Andhra Pradesh has taken a policy to enhance the superannuation age from 60 to 62 years, accordingly issued an ordinance amending the service conditions of age of superannuation of Government Employees from 60 to 62 years as per the Andhra Pradesh Public Employment (Regulation of age of Superannuation) (Amendment) Ordinance, 2022 w.e.f. 01.01.2022 vide G.O.ms.No.15 Finance (HR.IV FR & LR) Department, dated 31.01.2022 as per the said amendment respondents have to carry out the service regulations and consequential orders pursuant to the said G.O. The 2nd respondent had taken a decision in its Board Meeting and passed a resolution dated 17.03.2022 by adopting the retirement age from 60 years to 62 years as Item No.31 “To consider and approve the enhancement of superannuation age for APTDC Employees (Regular & Contract) from 60 to 62 years as per the Government Orders and ratify the action taken for service continuation of employees (Regular & Contract) who attained age of “60 years” in the months of January and February 2022. RESOLVED that pursuant to AP (Amendment) Ordinance, 2022 (AP Ordinance No.1 of 2022) the superannuation age of the employees of the Corporation be and is hereby raised from 60 to 62 years duly amending Rule 7 of APTDC Employees (Service) Rule 2001 and also resolved that the action taken in continuation of service of Sri A. Sattar, General Helper Grade-I and Sri D. Amarnath Reddy, Supervisor, whose superannuation is due in the month of January 2022 & February 2022 on attaining their age of 60 years pursuant to the above be and is hereby considered and ratified.” While the matter stood thus, the 2nd respondent Corporation has reviewed its earlier decision and held a Board Meeting on 15.07.2022 and passed a resolution (Item No.2) “Confirmation of the minutes of the previous meeting: “RESOLVED that the minutes of the previous meeting of the Board of Director held on 17.03.2022 be and hereby received and confirmed except the Item No.31”. During the meeting, the Secretary, Finance Department, opined that the enhanced superannuation age is not applicable for public enterprises. The Chairman apprised the Secretary, Finance Department that the Board was wrongly induced by the then MD to and get ratification for the said item in the previous meeting. After deliberation the Board Resolved that the matter with regard to the item No.31, on Enhancement in the superannuation Age of the employees, shall be referred to the Government of AP for approval. The implementation of the decision shall be stopped till the approval from the Government is received”, by differing their earlier decision. In view of the said decision, the respondents No.2 to 4 directed the petitioners to retire by the end of the month i.e., 30.08.2022 (31.08.2022 is happened to be a public holiday). Aggrieved by the said decision, the petitioners have preferred the present writ petitions. 5. During pendency of the above writ petitions, this Court granted interim direction. In W.P.No.27810 of 2022, this Court vide order, dated 30.08.2022, granted interim direction as under: “…In view of the same, as the petitioners showed prima facie case, there shall be interim direction to the respondents to continue the petitioners till they attain the age of 62 years….” 6. Since the respondents have not complied with the above order, the petitioners have filed the Contempt Cases vide C.C.No.4666 and 4667 of 2022 against the respondents in both the writ petitions. 7. Since the respondents have not complied with the above order, the petitioners have filed the Contempt Cases vide C.C.No.4666 and 4667 of 2022 against the respondents in both the writ petitions. 7. Per contra, the respondents No.2 to 4 filed counter-affidavit in W.P.No. 27810 of 2022 denying all material averments made in the writ petition and mainly contended that the Government employees from 60 years to 62 years as per the Amendment Ordinance, 2022 w.e.f 01.01.2022. In pursuance of the said GO, the respondent No.2/APTDC has adopted the said GO vide its 191st Board resolution Meeting held on 17.03.2022 by amending the Rule 7 of APTDC Rules 2001. Thereafter, the respondent No.2 realised its mistake in adopting the GO without having approval from the Government. In furtherance of the deliberations with Secretary, Finance Department, the Board vide its 192nd Board Resolution Meeting held on 15.07.2022, has resolved that the issue of enhancement of superannuation age of the APTDC employees (Regular & Contract) shall be referred to the Government of AP for approval and stopped the implementation of the decision till the approval from the Government is received. In these circumstances, the petitioners in anticipation of the consequences of the Board resolution have approached this Court. It is further stated that the Finance Department vide Circular Memo, dated 2309.2022, in Memo No.1813129/FIN01- HR/212/2022-HR-IV, has clarified its applicability to the following categories of Government Employees : 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 in view of the said Circular Memo of Finance Department, the orders in G.O.Ms.No.15 are not applicable to the employees of respondent No.2/APTDC and the interim orders passed by this Court directing the respondents to continue the petitioners till they attain the age of 62 years may be vacated. 8. 8. It is pertinent to mention here that as per Rule 7 of APTDC Employees (Service) Rules-2001, wherein it is stated: 7. Retiring Date : i. (a) An employee shall retire from service with effect from the afternoon of the last of the month in which he attains the age of 58 years. (b) In case of Class-IV i.e., Grade-I&II, Attenders, General Helpers, Sweepers & Watchmen etc., they shall retire from service w.e.f. the afternoon of the last day of the month in which they attain the age of 60 years. (c) when an employee is required to retire,, revert or cense to be on leave with effect from the date of retirement, in accordance with the provisions of the Rules, the employee must retire, revert or cease to be on leave with effect from the afternoon of that day. (ii) (a) An employee under suspension on a charge of misconduct should not be required or permitted to retire on attaining the age of Superannuation but should be retained in service by an order issued to that effect until the disciplinary proceedings are concluded by the competent authority. Provided that the date of retirement of such employee should be the date of termination of the disciplinary proceedings finally with an order simultaneously issued to the effect. b) An employee who attained the age of superannuation but allowed to continue to hold the post beyond that date, by virtue of a stay order of the court, shall be deemed to have ceased to hold the post and relieved of his charge from the date of the judgment dismissing his petition irrespective of whether charge of the post was handed-over or not as prescribed in any rule of executive instructions for the time being in force…… ………. ……..”. 9. As seen from the Minutes of the 191st meeting of the Board of Directors of the 2nd respondent which was held on 17.03.2022, wherein it was mentioned at Item No.30 as “To consider and approve the action taken and implemented PRC to all APTDC employees (Regular/Contract/Outsourcing) as per Government orders w.e.f. 1st January 2022. It was also RESOLVED that the action taken in implementation of rps-2022 TO ALL Regular, Deputation, Contract and outsourcing staff working in the corporation be and is hereby considered and ratified. It was also RESOLVED that the action taken in implementation of rps-2022 TO ALL Regular, Deputation, Contract and outsourcing staff working in the corporation be and is hereby considered and ratified. It is also observed that at Item No.31 it was mentioned that “RESOLVED that pursuant to Andhra Pradesh Public Employment (Amendment) Ordinance, 2022 (AP Ordinance No.1 of 2022) the superannuation age of the employees of the Corporation be and is hereby raised from 60 years to 62 years duly amending Rule 7 of APTDC Employees (Service) Rules 2001. It was also RESOLVED that the action taken in continuation of service of Sri A.Sattar, General Helper Grade-I and Sri D.Amarnath Reddy, Supervisor, whose superannuation is due in the month of January 2022 & February 2022 on attaining their age of 60 years pursuant to the above be and is hereby considered and ratified. 10. And as could be seen from the 192nd meeting of the Board of Directors of the 2nd respondent which was held on 15.07.2022, wherein it was resolved that the matter with regard to the item No.31, on Enhancement in the superannuation Age of the employees, shall be referred to the Government of AP for approval. The implementation of the decision shall be stopped till the approval from the Government is received. 11. It is pertinent to mention here that in Memorandum and Articles of Association of APTDC, as per Article 90, wherein it is stated that : 90. (1) whenever such a resolution as aforesaid shall have been passed, the Board shall: (a) make all appropriations and applications of the undivided profits resoled to be capitalised thereby, and all allotments and issues of fully paid shares or debentures, if any; and (b) generally do all acts and things required to give effect thereto. (1) whenever such a resolution as aforesaid shall have been passed, the Board shall: (a) make all appropriations and applications of the undivided profits resoled to be capitalised thereby, and all allotments and issues of fully paid shares or debentures, if any; and (b) generally do all acts and things required to give effect thereto. (2) The Board shall have full power:- (a) To make such provision, by the issued of fractional certificates or by payment in cash or otherwise as it thinks fit, for the case of shares or debentures becoming distributable in fractions; and also (b) To authorise any person to enter, on behalf of all the Members entitled thereto, into an agreement with the Company providing for the allotment to them respectively, credited as fully paid up, of any further shares of debentures to which they may be entitled upon such capitalization, or (as the case may require) for the payment by the Company on their behalf, by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts or any part of the amounts remaining unpaid on their existing shares. And as per Article 93, wherein it is stated as follows: 93. Notwithstanding any thing contained in any of these Articles the State Government may, from time to time issue such directives or instructions as may be considered necessary in regard to the finance; conduct of business and affairs of the Company. The Company shall give immediate effect to the directives or instructions so issued. 12. Learned Government Pleader has relied upon a judgment reported in G. Rama Mohan Rao and another versus Government Andhra Pradesh rep by its Principal Secretary and another, 2017 SCC OnLine Hyd 54, wherein the High Court of Andhra Pradesh held that : While a Public Sector Undertaking is a distinct juristic entity with a corporate structure of its own and carries on its functions on business principles with a certain amount of autonomy, behind the formal ownership is the deeply pervasive presence of the Government which acts through the instrumentality or agency of the corporation. Such a Corporation would, therefore, not be free from its basic obligation to obey the fundamental rights, and the Court must not allow enforcement of fundamental rights to be frustrated by taking the view that it is not the Government and, therefore, not subject to constitutional limitations. Such a Corporation would, therefore, not be free from its basic obligation to obey the fundamental rights, and the Court must not allow enforcement of fundamental rights to be frustrated by taking the view that it is not the Government and, therefore, not subject to constitutional limitations. (Ajay Hasia v. Khalid Mujib Sehravardi). The mere fact that a Corporate body, or a Cooperative Society, answers the definition of State under Article 12 does not make it the State Government, nor will the employees of such a body become holders of civil posts or employees of the State Government. While such Corporations/Societies may answer the definition of a State, that does not mean that the State Government is liable to bear and pay the salaries of its employees, as it is an independent juristic entity, and cannot be identified with or treated as the State Government. (State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha). While a Company/Corporation may be called an agency or an instrumentality of the Central/State Government for the limited purpose of labelling it a State within the meaning of Article 12 of the Constitution, a Corporation cannot also be held to be an agent of the Central/State Government under Section 182 of the Contract Act. (National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad ; Pradeep Kumar Biswas v. Indian Institute of Chemical Biology). Unlike Part III of the Constitution, service provisions in Part- XIV of the Constitution relate to recruitment, conditions and tenure of service of persons, citizens or otherwise, appointed to a Civil Service or to posts in connection with the affairs of the Union or any State. The word State has a different connotation in Part III relating to Fundamental Rights. It includes the Government and Parliament of India, the Government and Legislature of each of the States and all local or other authorities within the territory of India, etc. The scope and ambit of the Service provisions are to a large extent distinct and different from the scope and ambit of the fundamental right, guaranteeing to all citizens, an equality of opportunity in matters of public employment. It would be wrong in principle to either cut down or expand the amplitude of a fundamental right by reference to provisions which have an altogether different scope and purpose. (Gazula Dasaratha Rama Rao v. State of A.P.). It would be wrong in principle to either cut down or expand the amplitude of a fundamental right by reference to provisions which have an altogether different scope and purpose. (Gazula Dasaratha Rama Rao v. State of A.P.). While Public Sector Undertakings are, no doubt, instrumentalities of the State under Article 12 of the Constitution and are governed by Part-III of the Constitution of India, that does not make employees, of these corporate bodies, Government employees. Corporate bodies are independent entities, and their employees cannot claim parity with employees of the State Government. The State Government has a master-servant relationship with the civil servants of the State, whilst it has no such direct or indirect nexus with employees of corporate bodies. The State Government may legitimately choose to extend different rights in terms of pay-scales and retiral benefits to civil servants. It may disagree to extend the same benefits to employees of corporate bodies. The State Government would be well within its right, to deny similar benefits to employees of corporate bodies, which are financially unviable, or if their activities have resulted in financial losses. When payscales are periodically reviewed for civil servants, they do not automatically become applicable to employees of corporate bodies, which are wholly financed by the Government, and similarly not even to employees of Government companies. Likewise, there cannot be parity with Government employees, in respect of allowances. So also, of retiral benefits. (State of H.P. v. Rajesh Chander Sood). Employees governed by the terms of a contract do not possess the status of government servants. Neither are they governed by the Rules framed under Article 309 of the Constitution, nor do they enjoy the protection under Article 311. (UPSC v. Dr. Jamuna Kurup ; Roshan Lal Tandon; Dinesh Chandra Sangma v. State of Assam). Employees of statutory bodies are governed by statutory rules, and do not enjoy the status of government servants. (Dr. Jamuna Kurup). Employees of government companies are not civil servants. Such employees have no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scale should be met by the Government. (Dr. Jamuna Kurup). Employees of government companies are not civil servants. Such employees have no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scale should be met by the Government. Being employees of the Companies, it is the responsibility of the Companies concerned to pay them salary and, if the company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance pay scales, its employees cannot claim any legal right against, or seek a direction to, the State Government to meet the additional expenditure required to be incurred on account of revision of pay scales. (A.K. Bindal v. Union of India ; Pyare Lal Sharma v. Managing Director). 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. 13. Learned counsel for the petitioners while relying on the above judgment, submits that after the pronouncement of the above judgment, the Government has issued G.O.Ms.No.102 Finance (HR.IV-FR) Department dated 27.06.2017, wherein it was stated that 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. The Government also issued another G.O.Ms.138 Finance (GR.IV-FR) Department dated 8.8.2017, wherein it was mentioned that “In case such an employee is superannuated on that ground he/she shall be reinstated and continued up to 60 years.” In view of the same, he stated that the respondent authorities have considered the employees up to the age of 60 years. 14. Learned counsel for the petitioners has also relied upon a catena of judgments of this Court and submits that this Court 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 these cases also may be considered in similar manner by allowing these writ petitions. 15. 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. 16. 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, while considering the issue, on one hand the respondent authorities are considered some of the employees while relying on the resolution 191st dated 17.03.2022 and ratified their services up to the age and Amended Rule 7 of APTDC and accorded on their own without taking any approvals from the Government. Whereas in case of the petitioners herein concerned, the same respondent authorities are passed resolution dated 15.07.2022 vide item No.31 vide Resolution No.192 the superannuation age of the employees of the Corporation be and is hereby raised from 60 years to 62 years and stating that the same was send for approval of the Government. It clearly reveals that the respondents are showing clear discrimination towards the employees is concerned. 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.3/APTDC, which is not acceptable under law. 17. It clearly reveals that the respondents are showing clear discrimination towards the employees is concerned. 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.3/APTDC, which is not acceptable under law. 17. 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. 18. 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. 19. It is observed that the Government has enhancing the age by taking as a policy matter and giving enhancement to some of the employees and not considering some of the employees are concerned depending on their financial status of the respective departments undertaking corporations/societies/companies, whereas, the employees are approaching to Court of law for availing their remedy under Article 226 of the Constitution of India. On earlier occasion, the Government has considered the employees age from 58 to 60 years almost all the employees of the corporations/societies/companies and the Government has enhanced. Earlier it is disputed and thereafter it is considered by the Government. Even by experiencing the same, again the Government issuing G.O.Ms.No.1 and again the employees concerned whoever faced the problem on earlier occasion have also again approaching this Court for the same cause. On earlier occasions also, batch of writ petitions were filed on the same cause and while considering the directions of this Court the Government has considered and issued separate Government Orders, similarly the Government has issued G.O.Ms.No.102, dated 27.06.2017 and G.O.Ms.138, dated 8.8.2017, wherein stated that the respondent authorities have considered the employees up to the age of 60 years. 20. 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. 21. This Court further observed that, whereas, while passing the resolution 191st, dated 17.03.2022, Service Rule 7 of APTDC was amended and considered for superannuation from 60 years to 62 years the above two persons on their own without taking any approvals from the Government. It shows that the respondent authorities have taken decision and considered in their favour. Whereas in the case of the petitioners concerned, the respondent authorities have passed another resolution i.e., 192nd dated 15.07.2022 stating that they send proposals for the approval of the Government. It clearly establishes the apathy towards the petitioners and it clear indiscrimination. 22. In view of the facts and circumstances of the case, this Court is of the opinion that there is no need to send proposals to the Government for approval. It is also observed that, in the counter filed by the respondents, no where stated that whether Amended Service Rule 7 of APTDC existing or not and further it is observed that the respondents are amended the Service Rule 7. It is also observed that, in the counter filed by the respondents, no where stated that whether Amended Service Rule 7 of APTDC existing or not and further it is observed that the respondents are amended the Service Rule 7. In view of the amendment, the respondent authorities are considered the G.O.Ms.No.15 dated 31.01.2022 and superannuation has been given to their employees on amended service rules and issued the proceedings to their employees. So, while considering the same, this Court deems fit to allow these writ petitions with the following directions: i). while making the interim order absolute, the respondents are directed to continue the petitioners up to the age of 62 years of each petitioner by continuing their service in consonance with G.O.Ms.No.15 dated 31.01.2022 on par with Government Employees; ii). Further, the respondents are also directed to consider the proposals submitted vide 192nd resolution dated 15.07.2022 vide item No.31 for enhancement of the age of superannuation from 60 to 62 years in pursuance of the Amendment of Service Rule 7 of APTDC; iii). Further, the respondents are directed to consider the case of the petitioners on par with the Board Resolution (Item No.31) dated 17.03.2022, as well as the G.O.Ms.No.15 dated 31.01.2022 on par with the Government Employees, within a period of eight (08) weeks from the date of receipt of a copy of this order. 23. With the above observations, these Writ Petitions are Allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.