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2024 DIGILAW 401 (AP)

State of AP v. M Eswaraiah

2024-03-28

G.NARENDAR, HARINATH.N

body2024
JUDGMENT : HON’BLE SRI JUSTICE G. NARENDAR 1. Heard Sri G.V.S. Kishore Kumar, learned Government Pleader for Services-I appearing for the appellants and Sri Nagaraju Naguru, learned counsel for the respondents. 2. The appellants, the Department of Agriculture Co-operation (Horticulture & Sericulture) and the Department of Finance & Establishments, the State of Andhra Pradesh, are before this Court in very peculiar circumstances. The parties would be referred to as per their nomenclature in the writ petition before the learned single judge. 3. As is well known, the State of Andhra Pradesh underwent a bifurcation that resulted in the creation of two states, namely the State of Andhra Pradesh and the State of Telangana. This caused man-management &logistical issues, as the State of Andhra Pradesh, carved out from the districts outside of the Hyderabad region, had a shortfall of manpower and, more importantly, experienced working hands to run and streamline the administration. The Government of the truncated State of Andhra Pradesh, in order to tide over the manpower crises, issued G.O.Ms. No.104, dated 28.08.2015, wherein at sub-paragraphs (a) to (d) in paragraph 7, the employees who were previously employed in the services of the erstwhile State of Andhra Pradesh (including the State of Telangana) were permitted to migrate into the services of the newly created State of Andhra Pradesh and while so, granting such liberty, the State of Andhra Pradesh also deemed it necessary to increase the age of superannuation to 60 years from 58 years under the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014. This was made applicable to employees who opted for services under the State of Andhra Pradesh and also to those who were awaiting re-allocation orders to the State of AP but in the interregnum attained superannuation on completing the age of 58 years. In this regard a promise was made to them, as stipulated in Sub-Paragraph (c) of Paragraph 7 of G.O.Ms. No.104, dated 28.08.2015, which reads as under: “(c) During the period of out of employment, they may be paid a sum equal to the pension which they would have drawn based on the emoluments drawn by them on the date of their retirement in Telangana State and the pensionary benefits if any, already drawn shall be remitted into Government Account.” 4. From a reading of the above provision of the G.O., it is clear that only individuals, who were on the rolls and in the Services of the erstwhile State, are entitled to the emoluments. Those not part of the State Service will not receive any salary or pay, much less emoluments. However, an exception is carved out to this rule. The State of Andhra Pradesh legislated Sub-paragraph (c) of paragraph 7 of the aforementioned G.O. This provision allowed for individuals to receive emoluments equivalent to the pension they were receiving from the erstwhile composite State (now the State of Telangana) even if they were not yet on the rolls of the newly created State of Andhra Pradesh. This measure was probably to incentivize experienced hands to serve the newly bifurcated state of Andhra Pradesh and ensure good governance. 5. It was a laudable objective that sought to address the situation that arose from the partition of the unified State, into the states of Andhra Pradesh and Telangana. Sub-Paragraph (c) of paragraph 7 has been carved out as a special provision, enabling payment to individuals who were yet to be borne on the services of the newly created state of Andhra Pradesh. 6. “No work, No pay” is a fundamental principle, with some exceptions, that the Hon'ble Apex Court has laid down. Despite this settled the principle, the state of Andhra Pradesh enacted a beneficial measure in sub-paragraph (c) to reward retired individuals who were willing to aid it, in its administration and governance. The fact that it was conceived to attract experienced hands in order to facilitate the continued administration is not disputed. In that view the policy would certainly pass the test of arbitrariness. 7. The fact that the seat of administration and governance in the composite state was retained by the newly created State of Telangana resulted in administrative log-jams & problems. The finding of the learned Single Judge that the provision in subparagraph (c) of paragraph 7 of the G.O. is illegal and arbitrary is wholly unsustainable. The fact remains that, apart from the said G.O., no other provision would enable payment to employees who were not on the rolls of state service. The fact remains that all four petitioners had retired in Telangana by the time they were re-inducted into the services of Andhra Pradesh. The fact remains that, apart from the said G.O., no other provision would enable payment to employees who were not on the rolls of state service. The fact remains that all four petitioners had retired in Telangana by the time they were re-inducted into the services of Andhra Pradesh. Hence, strictly speaking, although the policy had been framed, the petitioners, who had no employer and were drawing pensions from their erstwhile employer, namely, the state of Telangana, would have been ineligible for any emoluments from the State of Andhra Pradesh. This being an undisputed fact, the writ petition came to be filed with the following prayer: “For all the above reasons, facts and circumstances, the applicants herein prays that this Hon’ble Tribunal may be pleased to quash the G.O.Ms. No.104 dt.28.08.2015 for the extent mentioned in para 7(c) where under it contemplates that the applicants services were not continued and the period of out of employment, they may be paid a sum equal to the pension which they would have drawn based on the emoluments drawn by them on the date of their retirements in Telangana State and the pensionary benefits if any, already drawn shall be remitted into Government Account as arbitrary, illegal against Art.14, 16 & 311(2) of the Constitution of India and consequently direct the respondents to pay full salary for the interregnum period as above of receiving pensionary emoluments and pass such other order or orders as deemed fit and proper in the circumstances of the case.” 8. On a reading the prayer in the writ petition, it becomes clear that the petitioners are demanding payment of the full salary they received prior to their date of retirement and they are not merely asking for the pension amount to be paid post their superannuation. It is an undisputed fact that the petitioners were not employed by the state of Andhra Pradesh. However, the state had promised to re-induct the persons in sanctioned posts, subject to the availability of similar posts. A mere promise to the employee in the future, in our considered opinion, would not tantamount to actual employment. Actual employment commenced on various dates, which are also undisputed, and from the date of such re-induction or reemployment, the petitioners have been paid their salary. A mere promise to the employee in the future, in our considered opinion, would not tantamount to actual employment. Actual employment commenced on various dates, which are also undisputed, and from the date of such re-induction or reemployment, the petitioners have been paid their salary. Now the bone of contention is the period between the date of superannuation in the state of Telangana and the date on which they were re-inducted or re-employed by the State of Andhra Pradesh in various posts. It is important to note that their re-employment or re-induction on the rolls of State services was allowed due to the increase in the age of superannuation. Otherwise, the petitioners would have been superannuated in view of the earlier age of superannuation in the composite State and in fact had superannuated in the State of Telangana. 9. Be that as it may, now the petitioners have come up with the demand that they are entitled to full salary for the period between their date of superannuation and the date of their re-induction. However, there is no provision of law or principle that would entitle them to raise such a demand. They were not on the employer's payroll during that period and were not discharging any duties. Despite the same, the petitioners have presented a speculative argument before the Court. We consider it speculative, as there is no provision of law or principle that enables or permits such payment of salary much less premise such a demand. It is not as if the petitioners were unaware of the provisions of G.O.Ms. No. 104. The reading of the prayer clearly demonstrates the same, which has sought the quashing of subparagraph (c) of paragraph 7 of the G.O. 10. As noted supra, apart from the said provision, no other law or provision enables the state exchequer to be burdened with paying any emoluments to the petitioners or persons similarly situated. We have also perused the petition pleadings, and nowhere has it been pleaded, much-less demonstrably pleaded that the same is illegal. For argument sake, if the said provision be held to be arbitrary and illegal, then the state would not even have a semblance of a burden to pay any amounts much less the emoluments equivalent to the emoluments that they would have received from the state of Telangana. For argument sake, if the said provision be held to be arbitrary and illegal, then the state would not even have a semblance of a burden to pay any amounts much less the emoluments equivalent to the emoluments that they would have received from the state of Telangana. Yet the learned single Judge has been pleased to declare the same as arbitrary and illegal. Sub-paragraph(c) of paragraph 7 in the G.O.Ms.No.104 is a special provision and in exercise of the power vested in the State under Article 309 of the Constitution of India. It is not demonstrated by the petitioners as to how the same is ultravires. The state was right in equating the payments to the pensionary emoluments and could have only done so in view of the deeming clause under the Act. The fact that they had superannuated and were yet to be borne on the rolls of the newly formed State of Andhra Pradesh is not in dispute and they being only in the status of pensioners, in the considered opinion of this Court, they could not have asked for any sum over and above the sum they would be entitled to as pension. 11. This being the position, we find absolutely no ground that would sustain the declaration by the learned Single Judge declaring Subparagraph (c) of paragraph 7 of the G.O. as illegal and arbitrary. We do not find any other provisions that would enable the petitioners to sustain their claim for payment of full salary. As noted supra, if the writ petition order is sustained, it would result in a position where the petitioners would be required even to refund the emoluments paid to them but for the enabling provision. The said sub-paragraph (c) of Paragraph 7 of the G.O. having been quashed, there is no other provision of law which enables the petitioners to demand payment or which cast a duty on the appellant state to make any payments. The relief granted in paragraph 8 of the writ petition order is a contradiction in terms. A enabling provision has been declared as arbitrary and illegal, this coupled with the petitioners not being in the employment of the State of Andhra Pradesh, the Petitioners could not have even maintained the prayer. The relief granted in paragraph 8 of the writ petition order is a contradiction in terms. A enabling provision has been declared as arbitrary and illegal, this coupled with the petitioners not being in the employment of the State of Andhra Pradesh, the Petitioners could not have even maintained the prayer. The learned Single Judge could not have issued a direction directing payment of consequential benefits, as bereft of the above provision there is no privity of contract between the petitioners and the newly formed State of Andhra Pradesh. In that view the direction to pay consequential benefits is wholly illegal and unsustainable. 12. Be that as it may, the learned Government Pleader for Services would submit that the state is bound by the G.O.Ms.No.104 and that the State has no intention of reneging on the promise made to the citizens. In that view of the matter and in view of the above discussion, we are of the considered opinion that the writ petition prayer was not maintainable as there was no privity of contract between the petitioners and the state of Andhra Pradesh nor was there any employer and employee relationship. In the absence of such a contract of employment, the question of directing the third party to pay a salary to a stranger is unknown to service jurisprudence. In that view of the matter and in view of the discussion hereinabove, the impugned order requires to be set aside and the writ appeal is to be allowed. 13. Accordingly, the writ appeal is allowed and the writ petition stands dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ appeal shall stand closed.