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2024 DIGILAW 1030 (AP)

Andhra Pradesh Technology Services Ltd. (APTS) v. Paruchuru Venkateswara Rao

2024-08-08

G.NARENDAR, KIRANMAYEE MANDAVA

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JUDGMENT : (G. Narendar, J.) Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. The appellant is before this Court being aggrieved by the interim order granted by the learned Single Judge, whereby, the learned Single Judge has been pleased to suspend the proceedings impugned and direct reinstatement and continuation of the services of the respective writ petitioners in service till they attain the age of superannuation of 62 years without any break and with all consequential attendant benefits including regular pay and allowances. 3. The learned counsel for the appellant would take this Court through the Articles of association particularly Article 24, which reads as follows: “24. The Chairman shall reserve for the decision of the Government any proposals or decisions of the board of directors or any matter brought before the board which raises, in the opinion of the Chairman, an Important issue and which is on that account fit to be reserved for the decision of the Government and no decision on such an important issue shall be taken till the Government gives its opinion on the issue. 4. Further, the learned counsel would take this Court through the relevant portions of Agenda Item:120 (6), which are as under: 7. On 27.06.2017 Govt. Of Andhra Pradesh has issued G.O.Ms.No. 102 of Finance (HR.IV-FR) Department, according in principle approval to enhance the age of superannuation age from 58 to 60 of employees working in the institutions listed in IX and X Schedule to the Re-organization Act, 2014 subject to the following conditions: 9. As per para no.5 of the G.O.No. 102, dated 27.06.2017 a. "These orders shall come into force prospectively from the date of Issue of the orders by competent authorities after amending the relevant regulations/bye-laws". 19. The matter is placed before the Board of Directors for consideration and to pass the following Resolution: "Resolved that for the reasons and justification stated above and considering the genuine requirement of continuing the services of experienced employees and also considering the comfortable financial position of the company, the resolution may passed and to forwarded a proposal to the Government for approval to consider the proposal of APTS to enhance the age of superannuation of employees of the company from 60 years to 62 years effect on par with other employees of the Government". 5. 5. He would submit that as per the note at S.No.7, a plain reading of the same would demonstrate that on an earlier occasion, the proposal/resolution of the Board to enhance the age of superannuation from 58 to 60 years was implemented after obtaining the approval of the State Government. 6. Further as per 9, it is seen that there is a reference to G.O.No.102 dated 27.06.2017, whereby it has been ordered that order shall come into force prospectively from the date of issue of the order by competent authorities after amending relevant regulations/bye-laws. That apart, the resolution passed on the agenda items as recorded would reveal that the Board itself has deemed it necessary to forward the resolution to the government to seek approval of the company to enhance the age of superannuation from the age of 60 to 62 years. 7. Per contra, the learned counsel for the respondents would take the Court to Chapter B (e) Staff Regulations of Andhra Pradesh Technology Services Limited, 2012 (for short “Regulations”) and Regulations 14 and 15 would read as under: “14. The provisions contained in the Fundamental Rules and as may be amended from time to time applicable to the Andhra Pradesh State Government employees, shall apply to employees of Andhra Pradesh Technology Services Ltd., covered by these Regulations including provisions in Act No.23 of 1984 (i.e.,) The Andhra Pradesh Public Employment (Regulation of age of superannuation) Act, 1984 and as amended. 15. The provisions contained in AP Leave Rules, 1933 and as may be amended from time to time applicable to the AP State Government employees, shall apply to the employees of Andhra Pradesh Technology Services Limited covered by these regulations including Leave Travel Concession.” 8. Regulation 17(ii) in Chapter-C and regulation 18 in Chapter-D of the Regulations read in conjunction with Chapter-B and G.O.No.102 of 2017 and the resolution as such, it would prima facie demonstrate the case that the resolution would be subject to the approval of the government and the resolution would take effect after approval is accorded by the government and necessary amendments are effected to the bye-law/regulations. Prima facie, the resolution itself is worded in such a manner to merely read as a bare proposal, which is subject to the approval of the government. Prima facie, the resolution itself is worded in such a manner to merely read as a bare proposal, which is subject to the approval of the government. That apart, reliance is also placed by the learned counsel for the appellant on the orders on I.A.No.1 of 2023 in W.P.Nos.20756 and 20768 of 2023. Wherein, the Coordinate Bench, after a detailed consideration has been pleased to reject the I.A.No.1 of 2023 preferred by the petitioners in the connected Writ Petitions. 9. Though the counsels have argued at length including on the merits, we desist from pronouncing our opinion on the merits of the Writ Petition, in view of the fact that several other Writ Petitions are pending and any opinion by this Court would naturally prejudice the rights of the petitioners, who are before the learned Single Judge. Be that as it may, we have perused the reliefs sought for by the petitioners. The main relief in W.P.No.9225 of 2023 reads as under: “For the reasons stated above, it is prayed that this Hon'ble Court may be pleased to issue an order, writ or direction, more particularly one in the nature of writ of Mandamus declaring the action of the Respondent No.3 in issuing the proceedings vide Rc.no. APTS/HRD/662/PVRAO/SVS/2015- 16, Dt. 31.10.2022 informing that the petitioner will be retiring from O/o the APTS (Respondent no.3) on 30.04.2023 on attaining the age of superannuation i.e., 60 years as on 30.04.2023, in pursuance of the circular memo ??. 1813129/FIN01-HR/212/2022-HR-IV, Dt.23.09.2022 issued by 1st respondent, being illegal arbitrary contrary to the G.O.Ms.No.15, Finance (HR-IV FR&LR) Department, Dt.31.01.2022 issued by respondent no.2 and also in violation of Articles 14, 21 and 309 of the Constitution of India and consequently direct the respondents to continue the petitioner as Associate Programmer under 3rd respondent (i.e. O/o the Managing Director, AP Technology Services Ltd, Vijayawada, Krishna District,) till he attaining the age of 62 years by set aside the proceedings Rc.no. APTS/HRD/662/PVRAO/SVS/2015-16, Dt. 31.10.2022 of 3rd respondent to be to retire on 30.04.2023 on attaining the age of superannuation i.e., 60 years as on 30.04.2023 in pursuance of the circular memo no. 1813129/FIN01- HR/212/2022-HR-IV, Dt.23.09.2022 issued by 1st respondent, without any break with all consequential attendant benefits including regular pay and allowances and to pass such other order or orders as this Hon'ble Court may deems fit and proper in the circumstances of the case.” 10. 1813129/FIN01- HR/212/2022-HR-IV, Dt.23.09.2022 issued by 1st respondent, without any break with all consequential attendant benefits including regular pay and allowances and to pass such other order or orders as this Hon'ble Court may deems fit and proper in the circumstances of the case.” 10. The interim relief in the said W.P., reads as under: “It is also just and necessary that this Hon'ble Court may be pleased to direct the respondent No.3 to continue the petitioner in service till he attaining the age of superannuation i.e. up to 62 years i.e. up to 30.04.2025 without any break and with all consequential attendant benefits including regular pay and allowances, by suspending the impugned proceedings Rc.no. APTS/HRD/662/PVRAO/SVS/2015-16, Dt. 31.10.2022 and also the circular memo no. 1813129/FIN01-HR/212/2022- HR-IV, Dt.23.09.2022 of Finance Department and to pass such other order or orders as this Hon'ble Court may deems fit and proper in the circumstances of the case.” 11. In W.P.No.10400 of 2023 also, similar main relief and interim relief are prayed for. 12. The principle regarding grant of interim relief is well settled. In this regard, we could make a useful reference to the observations and law settled by the Hon’ble Apex Court in Samir Narain Bhojwani v. Aurora Properties and Investments, (2018) 17 SCC 203 in paragraph No.24 which reads as under: “24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 ], has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 ], has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11-15, the Court went on to observe as follows : (SCC pp. 126-27) “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” (emphasis supplied) ” 13. We place further reliance on the observations of the Hon’ble Apex Court in Hammad Ahmed v. Abdul Majeed, (2019) 14 SCC 1 . Particular reference to the enunciation of law as settled in paras 57 and 58 reads as under: “57. We place further reliance on the observations of the Hon’ble Apex Court in Hammad Ahmed v. Abdul Majeed, (2019) 14 SCC 1 . Particular reference to the enunciation of law as settled in paras 57 and 58 reads as under: “57. The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case [Samir Narain Bhojwani v. Aurora Properties and Investments, (2018) 17 SCC 203 : (2019) 2 SCC (Civ) 257] . It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given. 58. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. In Deoraj v. State of Maharashtra [Deoraj v. State of Maharashtra, (2004) 4 SCC 697], this Court held that Court would grant such an interim relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Therefore, in appropriate case, ad interim injunction in mandatory form can be granted. The Court held as under : (SCC p. 703, para 12) “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.” 14. On a bare perusal of both the reliefs, it is apparent that the main relief and the interim relief are one and the same. It is no more res-integra that the main relief cannot be granted by way of interim relief, as in the event of the Court granting a main relief by way of an interim relief, it would virtually render all further hearings of mere academic interest. In fact, in our considered opinion, the learned Single Judge has not recorded any compelling reason for granting the main relief itself by way of an interim relief. It is undisputed that the resolution as recorded above has been forwarded to the government and is lying before the competent authority. In the event, the employees were of the opinion, that the same creates a right in their favour, the prudent course of action would have been to seek for a mandamus to direct the government to expedite the consideration and disposal of the resolution placed before it by the Board. 15. For otherwise, it would virtually amount to holding that the staff regulations including service conditions would stand or are deemed to have been automatically amended, pursuant to the amendment carried out to the government regulations. Whether Chapter-B includes a deeming clause or not was one of the prima facie findings of the learned Single Judge, which would have to be examined at the time of final consideration. In the absence of Chapter-B Regulations 14 and 15 being read as a deeming provision, the interim relief would stand vitiated. Whether Chapter-B includes a deeming clause or not was one of the prima facie findings of the learned Single Judge, which would have to be examined at the time of final consideration. In the absence of Chapter-B Regulations 14 and 15 being read as a deeming provision, the interim relief would stand vitiated. In that view, we are of the considered opinion that the appellant has made out a case warranting interference with the interim order passed by the learned Single Judge at the hands of this Court. 16. Accordingly, the Writ Appeals are allowed in part. The interim orders granted by the learned Single Judge dated 18.04.2023 in W.P.No.9225 of 2023 and dated 25.04.2023 in W.P.No.10400 of 2023 stand set aside. The matter is remitted back to the learned Single Judge for consideration and disposal of the interim relief in accordance with law. 17. In view of the sensitive nature of the dispute involved, we request the learned Single Judge to expedite the hearing and if permissible, to consider disposal of either the interim relief or the writ petition itself within four weeks. 18. The Writ Appeals stand ordered accordingly. In view of the above order, the W.P.Nos.18076 of 2022, 20756 and 20768 of 2023 are sent back to the learned Single Judge for consideration along with the connected matters. We further request the learned Single Judge to list the matters for consideration at the earliest date possible. No order as to costs. As a sequel, pending interlocutory applications, if any, shall stand closed.