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2024 DIGILAW 540 (AP)

M. Subbarayudu v. State Of A. P.

2024-05-07

G.NARENDAR, HARINATH N.

body2024
JUDGMENT : (per Sri Justice G. Narendar) Heard the learned counsel for the Appellants, learned Government Pleader for Services I and the learned Standing Counsel for A.P.Mineral Development Corporation Limited. 2. The short point that is canvassed by the learned Standing Counsel is that the Appellants are entitled for enhancement of age of superannuation in view of the Board Resolution, dated 30.06.2022. 3. When the matter was listed on the earlier occasion and on the earlier date of hearing, the learned Standing Counsel for the Board was directed to place on the record the Memorandum of Association and Articles of Association of the Statutory Corporation i.e., Andhra Pradesh Mineral Development Corporation. 4. It is apparent that the right to amend the provisions relating to pay scales, promotions, allowances and all other payments are subject to approval of the State Government. Admittedly, Clause 100 (A) of Memorandum And Articles of Association of The Andhra Pradesh Mineral Development Corporation Limited, reads as under: “(A) Notwithstanding anything contained in any of these Articles, the Government may, from time to time, issue such directives as they consider necessary in regard to the conduct of the business of the Corporation of Directors thereof and in like manner may vary and annul any such directive. The Directors shall give immediate effect to directives so issued. In particular the Government will have the following powers. To call for any information, approve plans, budgets, foreign collaborations, new business and activity, new projects over and above the limits specified by the Govt. Further, the following powers/acts are vested only in the Government. To approve the staffing pattern, rules for recruitment, promotions and disciplinary actions etc., and pay scales allowances and all other payments.” 5. A plain reading of the same would make it amply clear and it necessitates no further elaboration or dilation. The use of the word “to approve” clearly makes it mandatory for the corporation to seek the prior approval of the State Government in terms of the provisions relating to the service conditions of the employees. In this regard, the Coordinate Bench of this Court while dealing with a similar issue was pleased to dispose of the Writ Petition No.377 of 2023 after examining the law in this regard. In this regard, the Coordinate Bench of this Court while dealing with a similar issue was pleased to dispose of the Writ Petition No.377 of 2023 after examining the law in this regard. Para 3 to 9 of the Judgment read as under: 3) A Coordinate Bench of this Court, to which one of us was a Member, while hearing an Appeal involving a similar issue was pleased to appreciate the law laid down by the Hon’ble Apex Court in State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 and Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 was pleased to observe in paragraph Nos. 9, 10, 11, 12, 13, 14 and 15 as under: “9. Per contra, learned Counsels appearing for the respondent/Writ Petitioners would reiterate the findings of the learned Single Judge. They would submit that the law in this regard is no more res integra and that the Hon’ble Apex Court has settled the issue in the case of the State of U.P. v. Dayanand Chakrawarty, and Harwindra Kumar v. Chief Engineer, Karmik. They would submit that the learned Single Judge has rightly placed reliance on the rulings in Dayanand Chakrawarty and has drawn sustenance from the law laid down by the Hon’ble Apex Court. They would invite the attention of the Court to paras.5, 6 and 7 which narrate the facts involved therein. Paras.5, 6 and 7 read as under: “5. The questions involved in these appeals are: 5.1. Whether two different ages of superannuation of 58 and 60 years can be prescribed for the employees similarly situated, including members of the same service, solely on the basis of their source of entry in the service. 5.2. Whether the Uttar Pradesh Jal Nigam (Retirement on Attaining Age of Superannuation) Regulations, 2005 fixing two different ages of superannuation for similarly situated employees of Jal Nigam are discriminatory and ultra vires under Article 14 of the Constitution of India. 6. The factual matrix of the case is as follows: a department, known as the Public Health Engineering Department (hereinafter referred to as “PHED”) was created during the British period for performing all the works related to public health engineering including sewerage and water supply. Just before the Independence, the State of United Province created a Local Self- Government Engineering Department (hereinafter referred to as “LSGED”) which was converted from PHED. Just before the Independence, the State of United Province created a Local Self- Government Engineering Department (hereinafter referred to as “LSGED”) which was converted from PHED. All the engineering works of Local Self Government were entrusted to the said newly created Department. 7. By a Notification dated 18-6-1975 issued under Section 3 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 (hereinafter referred to as “the 1975 Act”), the State Government constituted the Uttar Pradesh Jal Nigam (hereinafter referred to as “the Nigam”). Section 37(1) of the 1975 Act provided that the services of the employees and engineers of the Local Self Government Engineering Department (LSGED) will be transferred and merged into the newly created Nigam on the same terms and conditions, which were governing their services prior to such absorption, till the said service conditions are altered/changed by the rules or regulations framed in accordance with law.” 10. The learned Counsels for the respondent/writ petitioners would also take this Court through para.7 of the judgment in Harwindra Kumar, which reads as under: 7. To appreciate the point in issue, it would be necessary to refer to the relevant provisions of Sections 15, 31(1), 37, 89 and 97 of the Act and Regulation 31 of the Regulations which read thus: “15. Powers of the Jal Nigam.—(1) The Nigam shall, subject to the provisions of this Act have power to do anything which may be necessary or expedient for carrying out its functions under this Act. Powers of the Jal Nigam.—(1) The Nigam shall, subject to the provisions of this Act have power to do anything which may be necessary or expedient for carrying out its functions under this Act. (2) Without prejudice to the generality of the foregoing provision, such power shall include the power— (i) to inspect all water supply and sewerage facilities in the State by whomsoever they are operated; (ii) to obtain such periodic or specific information from any local body and operating agency as it may deem necessary; (iii) to provide training for its own personnel as well as employees of the local bodies; (iv) to prepare and carry out schemes for water supply and sewerage; (v) to lay down the schedule of fees for all services rendered by the Nigam to the State Government, local bodies, institutions or individuals; (vi) to enter into contract or agreement with any person, firm or institution, as the Nigam may deem necessary, for performing its functions under this Act; (vii) to adopt its own budget annually; (viii) to approve tariffs for water supply and sewerage services applicable to respective local areas comprised within the jurisdiction of Jal Sansthans and such local bodies as have entered into an agreement with the Nigam under Section 46; (ix) to borrow money, issue debentures to obtain subventions and grants and manage its own funds; (x) to disburse loans to local bodies for their water supply and sewerage schemes; (xi) to incur expenditure and to grant loans and advances to such persons or authorities as the Nigam may deem necessary for performing the functions under this Act. 31. Vesting and transfer of property to Nigam.— (1) As from June 18, 1975, the date of establishment of the Nigam hereinafter in this Chapter referred to as “the appointed date”,— (a) all properties and assets (including waterworks, buildings, laboratories, stores, vehicles, furnitures and other furnishing) which immediately before the appointed date were vested in the State Government for the purposes of the Local Self-Government Engineering Department shall vest in and stand transferred to the Nigam; and (b) all the rights, liabilities and obligations of the State Government whether arising out of any contract or otherwise pertaining to the said departments shall be the rights, liabilities and obligations of the Nigam. 37. 37. Transfer of employees to Nigam.—(1) Save as otherwise provided in this section every person, who was employed in the Local Self- Government Engineering Department of the State Government shall on and from the appointed date become employee of the Nigam and shall hold his office or service therein by the same tenure, at the same remuneration and upon same other terms and conditions, and with the same rights and privileges as to pension, gratuity and other matters as he would have held the same on the appointed date if this Act had not come into force, and shall continue to do so until his employment in the Nigam is terminated or until his remuneration or other terms and conditions of services are revised or altered by the Nigam under or in pursuance of any law or in accordance with any provision which for the time being governs his service: 89. Directions to the Nigam on questions of policy.—(1) In the discharge of its functions, the Nigam shall be guided by such directions on questions of policy as may be given to it by the State Government. (2) If any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under subsection (1), the decision of the State Government shall be final. 97. Regulations.—(1) The Nigam and a Jal Sansthan may, with the previous approval of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Nigam or a Jal Sansthan. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely— (a)-(b)(c) the salaries and allowances and other conditions of service of employees of the Nigam or a Jal Sansthan other than employees employed on contract basis;” Regulation 31 “31. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely— (a)-(b)(c) the salaries and allowances and other conditions of service of employees of the Nigam or a Jal Sansthan other than employees employed on contract basis;” Regulation 31 “31. Besides the provision made under these Regulations, the pay and allowances, pension, leave, imposition of penalty and other terms and conditions of service shall be governed by such rules, regulations and orders which are equally applicable to other serving government servants concerned functioning in the State.” From the aforesaid provisions, it would be clear that the appointed date for the purposes of the Act was 18-6-1975 when the Nigam was established and under Section 37 of the Act, conditions of service of the appellant-petitioners who were employed in the Local Self-Government Engineering Department of the Government of Uttar Pradesh before the appointed date, were continued to remain the same as they were before the appointed date unless and until the same are altered by the Nigam under the provisions of the Act. Section 97 confers power upon the Nigam with the previous approval of the State Government to frame regulations in relation to service conditions of employees of the Nigam and, acting thereunder, the Regulations were framed by the Nigam in the year 1978, Regulation 31 whereof provides that service conditions of the employees of the Nigam shall be governed by such rules, regulations and orders which are applicable to other serving government servants functioning in the State of Uttar Pradesh. Thus, from a bare reading of Section 37 and Regulation 31, it would be clear that the service conditions of the employees of the Nigam would be the same as are applicable to the employees of the State Government under the rules, regulations and orders applicable to such government servants so long as the same are not altered by the Nigam in accordance with the provisions of the Act. If the regulations would not have been framed, the Nigam had residuary power under Section 15(1) of the Act whereby under general power it could change the service conditions and the same could remain operative so long as regulations were not framed but in the present case, regulations were already framed in the year 1978 specifically providing in Regulation 31 that the conditions of service of the employees of the Nigam shall be governed by the rules, regulations and orders governing the conditions of service of government servants which would not only mean then in existence but any amendment made therein as neither in Section 37 nor in Regulation 31, has it been mentioned that the Rules then in existence shall only apply. After the amendment made in Rule 56(a) of the Rules by the State Government and thereby enhancing the age of superannuation of government servants from 58 years to 60 years, the same would equally apply to the employees of the Nigam and in case the State Government as well as the Nigam intended that the same would not be applicable, the only option with it was to make suitable amendment in Regulation 31 of the Regulations after taking previous approval of the State Government and by simply issuing direction by the State Government purporting to act under Section 89 of the Act and thereupon taking administrative decision by the Nigam under Section 15 of the Act in relation to the age of the employees would not tantamount to amending Regulation 31 of the Regulations.” 11. On a reading of the same, in both the Rulings, the parties involved are the employer U.P.Jal Nigam and its employees. The facts in the said case disclose that on account of restructuring, engineers/officers, in the services of the local authorities were absorbed and taken within the fold of the U.P Jal Nigam. But, despite the absorption on the rolls of the U.P.Jal Nigam, their age of superannuation was continued as per the terms and conditions of service stipulated by the local authority. The Hon’ble Apex Court taking note of this has formulated the questions that fell for its consideration in para.5, 5(1) and 5(2) in Dayanand Chakrawarty, which are extracted supra. 12. A bare reading of the same would clearly obviate any discussions on the same. The Hon’ble Apex Court taking note of this has formulated the questions that fell for its consideration in para.5, 5(1) and 5(2) in Dayanand Chakrawarty, which are extracted supra. 12. A bare reading of the same would clearly obviate any discussions on the same. The queries formulated by the Hon’ble Apex Court would clearly demonstrate that the absorbed employees were discriminated against the employees selected and appointed by the Board itself. That despite the absorption, the employees of the erstwhile local bodies, were continued to be discriminated and were not given the benefit of the Nigam’s bye-laws. On the other hand, the petitioners herein have not demonstrated any such absorption or equivalence in status. 13. Having heard the learned Counsels, we are of the considered opinion that the various contentions advanced by the Appellants merit consideration. The learned Single Judge has failed to appreciate the applicability of the Rulings relied upon, to the facts and circumstances of the case on hand. The learned Single Judge has fallen in an error in holding that the afore noted rulings are applicable to the facts and circumstances of the case on hand. The learned Single Judge has failed to see that the employees of the U.P. Jal Nigam were from two streams - (i) those who are directly recruited by the Nigam and (ii) those who are absorbed from the local authorities. Despite the erstwhile employees of the local authorities having been borne on the rolls of the Nigam, the Nigam continued applying the terms and service conditions as devised by the erstwhile local authorities and the Hon’ble Apex Court taking note of the fact that the erstwhile employees of the local authorities having already been borne on the rolls of the Nigam, the same amounted to discrimination to similarly placed employees i.e. being the employees of the Nigam. 14. That apart, the Hon’ble Apex Court has also noticed the impact of Regulation 31 of the U.P. Jal Nigam Regulations, which mandated that the service conditions including leave, pension, pay, allowances, penalty etc., shall be such as are equally applicable to the other serving government servants. Para. 7 of the ruling in Harwindra Kumar case, is extracted supra. 15. 14. That apart, the Hon’ble Apex Court has also noticed the impact of Regulation 31 of the U.P. Jal Nigam Regulations, which mandated that the service conditions including leave, pension, pay, allowances, penalty etc., shall be such as are equally applicable to the other serving government servants. Para. 7 of the ruling in Harwindra Kumar case, is extracted supra. 15. From a bare reading of the above, it is apparent that the Hon’ble Apex Court deemed it appropriate to hold the employees as being similarly situated as they were already absorbed into the services of the Nigam and in that view, the Hon’ble Apex Court was pleased to hold the approach of the Nigam as being discriminatory. That apart, the Hon’ble Apex Court has also taken note of Regulation 31, which mandates that the privileges of pay, pension etc. available to the employees of the Nigam shall be on par to those given to the State Employees. In that view, the Hon’ble Apex Court was pleased to hold that the employees, though initially employed by the local authorities, now having been employed by the Nigam, by way of absorption, would be entitled to similar service conditions. On the contrary, no such case is demonstrated either before the learned Single Judge or before this Court. No similar provision entitling them to treatment on par with the Government servants is brought to the notice of this Court.” 4) In paragraph No. 16, a Coordinate Bench has also discussed and upheld the arguments regarding inapplicability of G.O.Ms. No. 15 to person employed by the societies. The only distinction in the instant case is that the Petitioners are employed by the State owned Corporation i.e., the Appellant No.4. 5) It is not in dispute that the Appellant No. 4 is an independent entity and bears its own service regulations, copy of which is placed before this Court. The employee and employer relationship and the terms of employment are undoubtedly governed by the A.P. Beverages Corporation Limited, Hyderabad, “Service Regulations (2009). There is no dispute with regard to this aspect of the matter. 6) On a close scrutiny of the regulation, it is seen that superannuation is dealt by Regulation 40 under the heading “Retirement”. The employee and employer relationship and the terms of employment are undoubtedly governed by the A.P. Beverages Corporation Limited, Hyderabad, “Service Regulations (2009). There is no dispute with regard to this aspect of the matter. 6) On a close scrutiny of the regulation, it is seen that superannuation is dealt by Regulation 40 under the heading “Retirement”. Regulation 52 mandates that any change or alteration/amendment to the existing service regulations can be effected only with prior approval of the Government, implying thereby that the amendment to the age of superannuation can be implemented with the prior approval of the Government. Regulation 54 deals with the power of the Government to relax any regulations. 7) The Petitioners have not placed on record any material, which demonstrate that the State Government was pleased to exercise powers by invoking the Regulation 54 thereby relaxing any of the regulation. 8) The learned Counsel for the Petitioners/Respondents would place reliance on the ruling rendered by the Constitution Bench of the Apex Court in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, (1981) 1 Supreme Court Cases 722 with regard to issue of maintainability. 9) The issue in the said ruling, in our considered opinion is of no avail. It is needless to say that there can be no quarrel with the principle evolved therein. 6. In that view of the matter, the Writ Appeals must fail. The Appellants/petitioners are unable to demonstrate any prior approval of the State Government approving the Board Resolution dated 30.06.2022. In the absence of such approval, no right gets vested on the employee of the board to assert a right, contrary to the existing service conditions. 7. In that view of the matter, the order of the learned single Judge is in consonance with and sustainable in law. The same does not merit any interference in the hands of this Court. 8. Accordingly, the Writ Appeals are devoid of merits and stands dismissed.