THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
Interlocutory Application No.1 of 2023
in / and
Writ Appeal No.866 of 2023
and
Writ Appeal No.955 of 2023
COMMON JUDGMENT: (per Hon'ble Sri Justice P.SAM KOSHY)
These two writ appeals are filed challenging the same
impugned order passed by the learned single Bench of this
Court in W.P.No.15770 of 2022 decided on 28.06.2023
(for short, 'the impugned order'). W.A.No.866 of 2023 is an
appeal which has been filed along with an application seeking
leave to appeal. So far as W.A.No.955 of 2023 is concerned, it is
an appeal filed by the State Government assailing the decision of
the learned single Bench passed in the aforesaid writ petition.
2. Heard Ms. Madhavi Latha Katasani, learned counsel for
the appellant / proposed party in Writ Appeal No.866 of 2023
and Mr. A. Sanjeev Kumar, learned Special Government Pleader
for the appellant-State Department in Writ Appeal No.955 of
2023 and respondents in Writ Appeal No.866 of 2023.
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3. For convenience, the facts in Writ Appeal No.955 of 2023 are taken up as the lead case for the purpose of deciding the present writ appeals.
4. Writ Appeal No.866 of 2023 has been filed on behalf of one Dr.Srikanth Babu Perugu, who by occupation is a professor and HOD in the Department of Kayachikitsa Dr. B.R.K.R. Government Ayurvedic College. He has sought the leave to appeal on the ground that since he is within the zone of consideration for the next promotion and DPL has also been convened. However, because of the effect of the writ petition which stands decided vide the impugned order, the promotion process initiated by the Department for considering the promotion of the petitioner and other similarly placed persons has got deferred. Thereby his promotional prospects have got adversely affected. Therefore, in the capacity of an aggrieved person he has filed the present appeal and thus seeks leave of the Court to pursue the said appeal.
5. Considering the fact that the impugned order has already been challenged by the State Government vide W.A.No.955 of 2023, whether in W.A.No.866 of 2023 leave has to be granted or not, shall be considered after deciding the W.A.No.955 of 2023.
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6. The brief facts which led to the filing of the instant Writ Appeal i.e., W.A.No.955 of 2023, are that respondent Nos.1 to 10 are Doctors working in the Ayush Department of the State of Telangana. They had filed a Writ Petition before the High Court under Article 226 of the Constitution of India assailing the memo dated 02.02.2022, viz., Writ Petition No.15770 of 2023, by which the appellant No.1 had rejected the representation made by the respondents seeking reinstatement of respondent Nos.1 to 10 back into the service with continuity of service up till the age of 65 along with a direction to the appellant / State to permit the respondent Nos.1 to 10 to perform duties till they attain the age of 65 in terms of the notification publishing the ordinance dated 20.06.2019.
7. It is pertinent here at this juncture to mention that the State Government vide ordinance dated 20.06.2019 had amended the Telangana Public Employment (regulation of age of superannuation) Act, 1984, enhancing the age of superannuation of all professors, associate professors and assistant professors working in the Government medical colleges including semi-autonomous and autonomous colleges to stand retire from service on attaining the age of superannuation.
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8. To further crystallize the factual matrix, it is necessary to submit that the ten petitioners were all working as Medical Officers / Ayurveda Medical Officers or Lecturers in the Government Ayush College established by the Government of Telangana. The age of superannuation in terms of the service rules governing the field of petitioners was (58) years. The Government of Telangana vide Ordinance 3 of 2019 had enhanced the age of superannuation of Government Dental Colleges including semi-Autonomous and Autonomous Medical Colleges from (58) years to (65) years. The similar benefit of enhancement of age of superannuation was not extended to the Professors, Associate Professors working at the Government Ayush Medical Colleges in the State of Telangana. Therefore, there was a demand from the Medical Officers, Lecturers, Professors, Assistant Professors working in the Ayush Department for extending their age of superannuation from (58) years to (65) years. Since the demand was not acceded to by the Government of Telangana, the original writ petitioners had, on an earlier occasion, filed a writ petition, viz., Writ Petition No.19084 of 2021 before this Court. Vide order dated 16.08.2021, a learned Single Judge of this Court, disposed of the writ petition by directing the respondents to consider the 5 PSK,J & LNA,J wa_866&955_2023 case of petitioners therein in terms of the judgment of the Hon'ble Apex Court in North Delhi Municipal Corporation vs. Dr. Ram Naresh Sharma 1. Based upon the said disposal of the said writ petition by a learned Single Judge of this Court, a representation was submitted by the petitioners to the respondent-State Department. Thereafter, the State Department, vide correspondence dated 02.02.2022, rejected the representation submitted by the petitioners reiterating their stand they have taken, on an earlier occasion, in compliance of the order passed by a learned Single Judge of this Court in Writ Petition No.16197 of 2020, dated 22.12.2020. It is this rejection of the representation submitted by the petitioners which was subject to challenge by the petitioners in Writ Petition No.15770 of 2022 and which stood allowed vide order dated 28.06.2022, and which is under challenge in the present appeals.
9. The primary contention of learned counsel for the appellant-Department assailing the impugned order is that the learned Single Judge has not duly appreciated the fact that the pay-scale in both the Departments (i.e., Allopathy and Ayush), the service conditions governing the services of the medical 1 Civil Appeal No.4578 of 2021, decided on 03.08.2021=2021 INSC 376 6 PSK,J & LNA,J wa_866&955_2023 officers, professors, assistant professors are entirely different. Therefore, there cannot be an automatic enhancement of the age of superannuation so far as the officers of Ayush Department is concerned only on the basis of Ordinance 3 of 2019, dated 20.06.2019, whereby in the Medical Colleges and Dental Colleges on the Allopathy field the age of superannuation for the Professors, Assistant Professors, Medical Officers was enhanced from (58) to (65) years.
10. According to learned counsel for the appellant-State Department, as an implication of allowing the Writ Petition No.15770 of 2022, vide order dated 28.06.2022, the learned Single Judge has literally brought the service conditions of the Medical Officers, Professors, Lecturers working in the Ayush Department at parity with the Medical Officers, Lecturers, Assistant Professors, Professors in the Government Medical Colleges in the Allopathy field.
11. According to learned counsel for the appellant- Department, the Allopathy and Ayush are two separate fields which are totally different and distinct with different service regulations governing the field. It was also the contention of the learned counsel for the appellant-State that subsequently the 7 PSK,J & LNA,J wa_866&955_2023 State Government itself issued yet another Ordinance, i.e., Ordinance No.4 of 2020, dated 31.07.2020, enhancing the age of superannuation of the Medical Officers, Lecturers, Assistant Professors and Professors from (58) years to (65) years and, as such, the substantive grievance of the respondents / petitioners stood redressed vide the said ordinance. However, the learned Single Judge has ordered for implementation of the aforesaid ordinance, viz., Ordinance No.4 of 2020, dated 31.07.2020, with retrospective effect, of which the appellant-Department is more aggrieved of.
12. According to learned counsel for the appellant- Department, all the respondents / petitioners even before filing of the Writ Petition, i.e., Writ Petition No.15770 of 2022, the respondents / petitioners have already stood superannuated on account of crossing of the age of superannuation of (58) years as per the service rules and regulations in force as on the date of each of respondents / petitioners' superannuation. He further submitted that it was beyond the judicial competence of the learned Single Judge in granting Ordinance No.4 of 2020, dated 31.07.2020, with retrospective effect.
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13. Learned counsel for the appellant / Department further contended that the judgment relied upon by the learned Single Judge in Dr. Ram Naresh Sharma (1 supra) could not have been applied in a straight-jacket formula so far as relief sought for by the respondent / petitioners is concerned. He emphatically argued that mere enhancement of the age of retirement in the Allopathy department by itself cannot lead to an invariance, and that it also becomes applicable to Ayush Department particularly when the service conditions in the two Departments are entirely different set of Rules and, as such, it is the prerogative of the appellant-Department to decide the age of superannuation of the officers and employees working in each of the department.
14. Learned counsel for the appellant-Department relied on the decision of the Hon'ble Apex Court in Dr. Prakasan M.P. vs. State of Kerala2.
15. Per contra, learned counsel for the respondents / petitioners strongly contended that the appeal does not have any substantial merits as the learned Single Judge has reiterated the 2 2023 LiveLaw (SC) 708 = 2023 INSC 772 9 PSK,J & LNA,J wa_866&955_2023 principle laid down by the Hon'ble Apex Court in Dr. Ram Naresh Sharma (1 supra) where the Hon'ble Apex Court had, in very specific terms, held that the classification of the Ayush Doctors and the Allopathy Doctors is discriminatory and unreasonable. According to him, the Doctors under both the departments are performing the same functions of treating and healing of their respective patients, and the only difference is that the Doctors in the Ayush Department use indigenous system of medicine while the Doctors in Allopathy Department use Allopathy medicine for treatment of their patients and the mode of treatment should not be the criteria to determine the intelligible differentia. He further contended that the Hon'ble Apex Court in Dr. Ram Naresh Sharma (1 supra) went on to show that classification and discrimination amounts to inconsistency with Article 14 of the Constitution of India.
16. Learned counsel for the respondents / petitioners contended that as per the decision of the Hon'ble Apex Court in Dr. Ram Naresh Sharma (1 supra), the Hon'ble Apex Court in almost similar set of facts had directed the State Government to enhance the age of superannuation of the Doctors in the Ayush Department with retrospective effect from the date the age of 10 PSK,J & LNA,J wa_866&955_2023 superannuation was enhanced in the Allopathy field and, therefore, since the learned Single Judge has reiterated the principles of the Hon'ble Apex Court in the case of Dr. Ram Naresh Sharma (1 supra), there is hardly any scope of interference left for this Court in exercise of its Writ Appellate jurisdiction. He further contended that right from the time of issuance of Ordinance 3 of 2019 w.e.f. 20.06.2019, the respondents / petitioners have been approaching the appellate - Department by submitting various representations and reminders for extending similar benefit to the Doctors, Lecturers, Assistant Professors, Professors in the Ayush Department also. It was in this context that the learned Single Judge had ordered for implementation of the said Ordinance with retrospective effect. He further submitted that, in fact, the decision in Dr. Ram Naresh Sharma (1 supra) was also relied upon by this court only in yet another earlier writ petition that was filed seeking parity so far as payment of stipend for the House- Surgeons and Post-Graduate students under the Ayush Department on parity with the House-Surgeons and Post- Graduate Students in the Medical Colleges and other Colleges under the Allopathy system of medicine. Keeping all these facts, if the learned Single Judge had allowed the instant writ petition, 11 PSK,J & LNA,J wa_866&955_2023 viz., Writ Petition No.15770 of 2022, directing the appellant / Department for giving effect of the Ordinance 4 of 2020, dated 31.07.2020 with retrospective effect, i.e., w.e.f. the date of issuance of Ordinance No.3 of 2019, dated 20.06.2019, the same cannot be found fault nor can it be said to be arbitrary, illegal or in any manner contrary to law or contrary to the decision of the Hon'ble Apex Court in Dr. Ram Naresh Sharma (1 supra). Thus, he prayed for dismissal of the Writ Appeal No.955 of 2023.
17. Learned counsel for the respondents / petitioners also objected on the locus standi that the appellant seeking leave to appeal in Writ Appeal No.866 of 2023 where it was the contention of learned counsel for the respondent that the appellants / petitioners were in no way connected with the age of superannuation of the Doctors, Assistant Professors, Professors and Lecturers in the Ayush Department as the person seeking leave to appeal himself is a beneficiary of the said Ordinance No.4 of 2020 and, therefore, the age of superannuation has already been enhanced from (58) years to (65) years. Therefore, the appellant does not have the right to challenge the order passed by the learned Single Judge in Writ Petition No.15770 of 2022, dated 28.06.2023, opposing the 12 PSK,J & LNA,J wa_866&955_2023 claim of appellants / petitioners, and thus, prayed for dismissal of Writ Appeal No.866 of 2023 on the ground that the appellant therein does not have any locus to challenge the order passed by the learned Single Judge in Writ Petition No.15770 of 2022, dated 28.06.2023.
18. Having heard the contentions put forth by either side and on a perusal of the admitted factual matrix of the case as would be revealed from the pleadings that the respondents / petitioners herein have worked in the Ayush Department of the State Government, as the Department which has its own service conditions regulating the service conditions of the employees and officers of the said Ayush Department. The service regulations governing the Ayush Department is entirely distinct and separate than that is governing the service conditions of medical colleges and dental colleges under the Allopathy system of medicine.
19. It is not in dispute that vide Ordinance 3 of 2019, dated 30.06.2019, the Government had enhanced the age of superannuation from (58) years to (65) years in the Medical Colleges and Dental Colleges under the Allopathy system of medicine. The said Ordinance was not covering the Doctors in 13 PSK,J & LNA,J wa_866&955_2023 the teaching faculty or the Ayush Department. The Ayush Department has its own rules and regulations governing the service conditions for the Medical Officers, Lecturers, Assistant Professors, Professors in the Ayush Department. The Government subsequently issued another Ordinance, viz., Ordinance No.4 of 2020, dated 31.07.2020, enhancing the age of superannuation from (58) to (65) years. Since then there was parity so far as the age of superannuation both in the Allopathy institution as also the institutions in the Ayush Department.
20. In the given factual backdrop, the question of law to be considered at this juncture is whether the learned Single Judge was justified in giving effect to Ordinance No.4 of 2020 with retrospective effect w.e.f.20.06.2019. A fact which needs consideration at this juncture is that if the contention of learned counsel for the respondents / petitioners is that the Ordinance No.3 of 2019 itself should had covered the enhanced age of superannuation for the Officers of the Ayush Department also, then there was no need for issuance of Ordinance No.4 of 2020, dated 31.07.2020. Then the prayer of the respondents / petitioners should have been only for making applicable the Ordinance No.3 of 2019 also to the Ayush Department. The fact 14 PSK,J & LNA,J wa_866&955_2023 that there was a requirement for the Government to have issued two separate Ordinances for enhancing the age of superannuation in the two different departments, goes to establish that the two wings are different, distinct and separate altogether with separate rules and regulations governing the service conditions.
21. It is the general principle of law that whenever an ordinance or statute is passed by the Legislature it would only have prospective effect and would not have a retrospective effect unless specifically held so. Another settled principle of law is that under the Service Law jurisprudence also, when service conditions are altered, the same would also stand altered prospectively and cannot be given retrospective effect. The Ordinance No.4 of 2020, dated 31.07.2020, so also the Ordinance No.3 of 2019, dated 20.06.2019, both have been issued by the Government under the Service Law jurisprudence. So far as deciding the terms and conditions of the service under the various departments of the Government including the service conditions dealing with the minimum age of appointment and also the age of superannuation or retirement is concerned, it is exclusively within the domain of the employer and is also the 15 PSK,J & LNA,J wa_866&955_2023 prerogative of the Government / employer to decide these conditions. In the present appeals what is apparent is that the Government in its wisdom first issued Ordinance No.3 of 2019 enhancing the age of superannuation from (58) years to (65) years in respect of the officers under the institutions dealing with Allopathy system of medicine. For the Officers under the Ayush Department, the Government issued the Ordinance at a much later stage that is by Ordinance 4 of 2020 that was passed on 31.07.2020. If the service conditions of the two Departments were same, the Government itself would have only issued a clarificatory notice or a corrigendum or an amendment to the earlier Ordinance No.3 of 2019 extending the enhanced age of superannuation to the officers of Ayush Department as well.
22. The Hon'ble Apex Court recently in the case of Central Council for Research in Ayurvedic Sciences vs. Bikartan Das 3 held at para Nos.42, 43 and 44 as under, viz., "42. We must also look into the decision of this Court in the case of Kerala Assistant Public Prosecutors Associations v. State of Kerala 4, wherein the Assistant Public Prosecutors were seeking parity with respect to the age of superannuation to that of Public Prosecutors. This Court took notice of the fact that 3 2023 LiveLaw (S.C.) 692 :: 2023 INSC 733 4 (2018) 7 SCC 314 : AIR 2018 SC 2652 16 PSK,J & LNA,J wa_866&955_2023 the method of selection between the two posts is very different and that the former are considered to be government employees, whereas the latter are not. The Court thereafter, proceeded to hold that merely because the nature of work between the two is similar, the same does not imply that the age of superannuation ought to be similar as well. The relevant portion is produced hereunder:
"6. ... The fact that the nature of duties and functions of Assistant Public Prosecutors and Public Prosecutors are similar, per se, cannot be the basis to claim parity with Public Prosecutors in respect of age of superannuation."
(Emphasis supplied)
44. In Union of India v. Lieut (Mrs) E. Iacats 5, the respondent therein had filed a writ petition in the Guahati High Court challenging her retirement at the age of 55 years on the ground that in other nursing services under the military establishment the age of retirement was 58 years. It was argued before the High Court that it was discriminatory to retire the nurses who were appointed for local service only at the age of 55 years. The Petition was allowed by the High Court. The UOI came before this Court in appeal. This Court while allowing the appeal filed by the UOI, observed as under:
"3. ... If different nursing services are constituted under separate army instructions carrying their own separate terms and conditions of service, one cannot complain of discrimination if the ages of retirement prescribed under these different services are different.5
(1997) 7 SCC 334 17 PSK,J & LNA,J wa_866&955_2023 Each will be governed by its own rules and regulations. The respondent is, therefore, not justified in claiming that she has been discriminated against because she has retired at the age of 55."
(Emphasis supplied)
44. The age of superannuation is always governed by the statutory rules governing appointment on a particular post.
Hence, even if it is averred that the nature of work involved in the two posts is similar, the same cannot be a ground to increase or alter the service conditions of an employee as each post is governed by its own set of rules. The same was held in the case of New Okhla Industrial Development Authority v. B.D. Singhal 6, wherein this Court held as under:
"24. ... Since the enhancement of the age of superannuation is a 'public function' channelised by the provisions of the statute and the service regulations, the doctrine of promissory estoppel cannot be used to challenge the action of NOIDA."
(Emphasis supplied)
23. The aforesaid principle of law has also been reiterated recently by the Hon'ble Apex Court in the case of Dr. Prakasan M.P. (2 supra), wherein the Hon'ble Apex Court at para Nos.11, 12, 16 & 17 thereof has held as under, viz., 6 2021 S.C.C. Online SC 466 18 PSK,J & LNA,J wa_866&955_2023 "The Analysis:
11. It is well-settled that the age of retirement is purely a policy matter that lies within the domain of the State Government. It is not for the courts to prescribe a different age of retirement from the one applicable to Government employees under the relevant service Rules and Regulations. Nor can the Court insist that once the State had taken a decision to issue a similar Government Order that would extend the age of retirement of the staff teaching in the Homeopathic Colleges as was issued in respect of different categories of teaching staff belonging to the Dental stream and the Ayurvedic stream, the said G.O. ought to have been made retrospective, as was done when G.O. dated 14th January, 2010 was issued by the State and given retrospective effect from 1st May, 2009. These are all matters of policy that engage the State Government. It may even elect to give the benefit of extension of age to a particular class of Government employees while denying the said benefit to others for valid considerations that may include financial implications, administrative considerations, exigencies of service, etc.
12. In a somewhat comparable case on facts that arose in New Okhla Industrial Development Authority (6 supra) had resolved to recommend enhancement of the age of superannuation of its employees from 58 to 60 years. The said proposal, when sent to the State Government for prior approval, was turned down. This led to the aggrieved employees filing a writ petition before the High Court of Judicature at Allahabad which was allowed and NOIDA was directed to consider the matter afresh and forward its proposal to the State Government for its approval. It was left open to the State Government to consider giving effect to the increase in the age of retirement from the date when NOIDA had resolved to bear the financial burden for the increase of age or from such date as it may consider expedient. This time, the State Government acceded to the proposal received from NOIDA for enhancing the age of retirement to 60 years, but made the said decision prospective. Aggrieved by the refusal of the State Government to make the decision retrospective, the respondents amended the pending writ petition which was allowed by the High Court that struck down the provision of making the decision prospective and directed that such of the respondents who had retired from service by then, would be 19 PSK,J & LNA,J wa_866&955_2023 deemed to have worked till the extended age of retirement, with all consequential benefits. Challenging the said decision, the State of Uttar Pradesh filed a Petition for Special Leave to Appeal under Article 136 of the Constitution of India, which was allowed by this Court with the following observations:
"22. Whether the age of superannuation should be enhanced is a matter of policy. If a decision has been taken to enhance the age of superannuation, the date with effect from which the enhancement should be made falls within the realm of policy. The High Court in ordering that the decision of the State government to accept the proposal to enhance the age of superannuation must date back to 29 June 2002 has evidently lost sight of the above factual background, more specifically (i) the rejection of the original proposal on 22 September 2009; and (ii) the judgment of the Division Bench dated 17 January 2012 refusing to set aside the order rejecting the proposal on 22 September 2009 which has attained finality. But there is a more fundamental objection to the basis of the decision of the High Court. The infirmity in the judgment lies in the fact that the High Court has trenched upon the realm of policy making and has assumed to itself, jurisdiction over a matter which lies in the domain of the executive. Whether the age of superannuation should be increased and if so, the date from which this should be effected is a matter of policy into which the High Court ought not to have entered.
xxx xxx xxx
24. Whether the decision to increase the age of superannuation should date back to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut-off, some employees would stand on one side of the line while the others would be positioned otherwise. This 20 PSK,J & LNA,J wa_866&955_2023 element of hardship cannot be a ground for the High Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty-eight to sixty years on 28 November 2001, it had left the public sector corporations to take a decision based on the financial impact which would result if they were to increase the age of superannuation for their own employees.
25. From time to time the authorities of the State took a decision bearing upon the exigencies of service prevailing in each organisation. ... ... ... The State government had evidently determined that it was for each organisation to consider and determine the impact of the financial burden, and based on that the organisation was to submit a proposal for the approval of the government.
26. The High Court's observation that the Government order on 30 September 2012 increasing the age of superannuation prospectively is arbitrary seems to be based on the premise that the respondent-employees have a vested right to the increase in the age of retirement on the passage of the resolution by NOIDA. However, Section 19 of the Act stipulates that regulations - which would include amendments as in this case - will require the previous approval of the State Government. The employees will have a vested right to the increased age of superannuation only after the service regulations are modified upon approval of the State Government, and from such date as maybe prescribed by the Government. Para 1(ii) of the government order issued on 30 September 2012 clearly and in unambiguous terms states that the order shall come into force prospectively. The government order can be given retrospective application only if expressly stated or inferred through necessary implication. Therefore, the respondent-employees could not have claimed a vested right that the enhancement in the age of retirement should be made effective from the date on which NOIDA had 21 PSK,J & LNA,J wa_866&955_2023 resolved to submit a proposal for the approval of the government."
(Emphasis added) .........
16. Had the matter stood as it was on the date when the impugned judgement came to be passed, perhaps the appellants could have advanced an argument that the action of the State must be expected to be fair and reasonable and in line with the guarantees extended under Article 14 of the Constitution of India and that there was no rationale in treating them differently when Doctors/Professors from all streams teaching in Medical Colleges in the State formed a homogenous class and are governed by the same set of Service Rules and Regulations. But after the respondent No.1 - State Government issued three successive G.Os extending the age of retirement of the members of the Dental Faculties, Ayurvedic Faculties and Homeopathic Faculties from 55 years to 60 years, the insistence on the part of the appellants that these G.Os ought to be given retrospective effect, even though there was no clause to that effect inserted therein, cannot be countenanced.
17. Such a decision lies exclusively within the domain of the Executive. It is for the State to take a call as to whether the circumstances demand that a decision be taken to extend the age of superannuation in respect of a set of employees or not. It must be assumed that the State would have weighed all the pros and cons before arriving at any decision to grant extension of age. As for the aspect of retrospectivity of such a decision, let us not forget, whatever may be the cut-off date fixed by the State Government, some employees would always be left out in the cold. But that alone would not make the decision bad; nor would it be a ground for the Court to tread into matters of policy that are best left for the State Government to decide. The appellants herein cannot claim a vested right to apply the extended age of retirement to them retrospectively and assume that by virtue of the enhancement in age ordered by the State at a later date, they would be entitled to all the benefits including the monetary benefits flowing from G.O. dated 9th April, 2012, on the ground of legitimate expectation."
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24. Furthermore, in Chhattisgarh State Electricity Board Diploma Engineers Association, Chattisgarh vs. Chattisgarh State Power Holding Company Limited, Chattisgarh 7, on a similar issue, a learned Single Judge of the High Court of Chhattisgarh, Bilaspur accepting the above principle of law had held at paragraph Nos.9, 10 and 11 as under, viz., "9. In K. Nagara and others vs. State of Andhra Pradesh and another 8, the Supreme Court has held that the decision concerning fixation of age of superannuation pertains to executive sphere and judicial review is available only when the same is arbitrary or unreasonable in the circumstances of the case.
10. In State of Uttar Pradesh and others vs. Hirendra Pal Singh and others 9, the following has been held by the Supreme Court:
12. In view of the above, it is evident that even in government services where the terms and conditions of service are governed by the statutory provisions, the legislature is competent to enhance or reduce the age of superannuation. In view of the above, it is beyond our imagination as to why such a course is not permissible for the appellant-State while fixing the age of working of the District Government Advocates.
11. Thus, the law is well settled that ordinarily the writ court would not interfere with the decision taken by the 7 Writ Petition No.1118 of 2015, dated 06.07.2015 8 (1985) 1 S.C.C. 523 9 (2011) 5 S.C.C. 305 23 PSK,J & LNA,J wa_866&955_2023 Government / Executive to reduce or enhance the age of superannuation. In the case in hand, the said decision is not found to be arbitrary or unreasonable or violative of any statutory provision."
25. In the instant case, a plain reading of paragraph No.3 of decision rendered by the learned Single Judge in Writ Petition No.15770 of 2022, dated 28.06.2023 would go to show that the respondents / petitioners in fact stood retired on attaining the age of (58) years before the Ordinance No.4 of 2020, dated 31.07.2020, was passed. In fact, majority of the respondents / petitioners had retired almost more than a year ago. The date of retirement of the ten respondents / petitioners is, for convenience, reproduced hereunder, viz., Sl.No. NAME DATE OF RETIREMENT
01. Dr. Ch. Ravinder 31.05.2020
02. Dr. M. Surya Prakash 30.06.2020
03. Dr. Chitla Upendra Reddy 30.06.2019
04. Dr. M. Ugandher Reddy 31.03.2020
05. Dr. I. Ramnath Raju 31.08.2019 Employee No.2505609
06. Dr. D. Anuradha 31.03.2020
07. Dr. K.V. Ram Subha Rao 30.10.2019
08. Dr. B. Gurunadham 31.05.2020
09. Dr. Darbhasayanam 30.06.2019 Srinivasacharyulu
10. Dr. Maya Bahut 31.10.2019
26. If the officers stood retired much before the Ordinance No.4 of 2020 was passed, i.e., dated 31.07.2020, and secondly, the officers having retired in terms of the rules and regulations 24 PSK,J & LNA,J wa_866&955_2023 governing their service conditions as it stood on attaining the age of (58) years, and thirdly there was no further employer - employee relationship which existed thereafter, all the respondents / petitioners ceased to be on the rolls of the employer when the said Ordinance No.4 of 2020 dated 31.07.2020 was passed.
27. The judgment which has been relied upon by the learned counsel for the respondents / petitioners in the case of Dr. Ram Naresh Sharma (1 supra) would be distinguishable on its facts itself as that was a case where the persons seeking for enhancement of the age were already in employment and they continued in service on the previous age of superannuation on the basis of an interim order granted by the High Court unlike in the present case where all the petitioners admittedly stood retired for a considerable period of time much before the filing of the writ petition.
28. It is well settled that the enhancement of retirement age is exclusively within the domain and prerogative of the employer. This means that the employer has the sole right to decide whether or not to raise the retirement age for its employees. The 25 PSK,J & LNA,J wa_866&955_2023 decision whether or not to enhance the retirement age is a complex one that must be made on a case-by-case basis.
29. In the given factual matrix particularly keeping in view the decision of the Hon'ble Apex Court in Bikartan Das (3 supra), it was not justified on the part of the learned Single Judge to have gone into the necessity of deciding whether the Ordinance No.4 of 2020 could be given retrospective effect or not in exercise of its writ jurisdiction under Article 226 of the Constitution of India.
30. For the aforesaid reasons, we are inclined to allow the Writ Appeal filed by the State, i.e., Writ Appeal No.955 of 2023 and set aside the order passed by the learned Single Judge in Writ Petition No.15770 of 2022, dated 28.06.2023. At the same time, we find sufficient force in the contention of learned counsel for the appellant-State that the appellant in Writ Appeal No.866 of 2023 does not have locus to seek relief of leave to appeal vide Interlocutory Application No.1 of 2023 in Writ Appeal No.866 of 2023 as the appellant therein seeks leave to appeal stands benefited by Ordinance No.4 of 2020, dated 31.07.2020 since he is already in employment and he does not have any right to oppose the claim of respondents / petitioners who have been 26 PSK,J & LNA,J wa_866&955_2023 denied the benefit of Ordinance No.4 of 2020. Therefore, we are inclined to reject Interlocutory Application No.1 of 2023 in Writ Appeal No.866 of 2023. Consequently, Writ Appeal No.866 of 2023 stands dismissed.
31. In the result, Writ Appeal No.955 of 2023 stands allowed and Writ Appeal No.866 of 2023 stands dismissed. No costs.
32. As a sequel, miscellaneous petitions, pending if any, shall stand closed.
_________________ P.SAM KOSHY, J ___________________________________ LAXMI NARAYANA ALISHETTY, J Date : 10.11.2023 Ndr/Gsd