Andhra Pradesh High Court - Amravati
G. Bala Suri Naidu, vs The State Of Andhra Pradesh on 16 April, 2021
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
W.P.Nos.2350, 1219, 1656, 21, 2277, 2450, 4204, 4629, 4735,
5631, 994 of 2020 and W.P.No.19075, 19950 and 20277 of 2019
W.P.No.2350 of 2020
Between:
K.Subbarayudu and 60 others
... Petitioners
And
The State of Andhra Pradesh,
Represented by its Chief Secretary to Government,
Secretariat, Velagapudi, Guntur District and 3 others
... Respondents.
JUDGMENT PRONOUNCED ON 16.04.2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? - No -
2. Whether the copies of judgment may be
marked to Law Reporters/Journals - Yes -
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? - Yes -
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* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ W.P.Nos.2350, 1219, 1656, 21, 2277, 2450, 4204, 4629, 4735,
5631, 994 of 2020 and W.P.No.19075, 19950 and 20277 of 2019
W.P.No.2350 of 2020
% 16.04.2021
# K.Subbarayudu and 60 others
....Petitioners
v.
$ The State of Andhra Pradesh,
Represented by its Chief Secretary to Government,
Secretariat, Velagapudi, Guntur District and 3 others
.... Respondents
! Counsel for the Petitioners : Sri Gada Venkateswarlu
Counsel for Respondents: Government Pleader for General
Administration Department
Sri P.Durga Prasad,
Standing Counsel for APSTRC
<Gist :
>Head Note:
? Cases referred:
1. 2017(6)ALD103
2. AIR 1957 SC 751
3. AIR 1976 SC 263
4. (2004) 8 SCC 402
5. AIR 2002 SC 1248
6. AIR 1961 SC 1480
7. AIR 2000 SC 3214
8. (1847) 3 MIA 488
9. (1850) 19 LJ Ex 228
10. AIR 1985 SC 964
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11. (2011) 1 SCC 640
12. (2007) 8 SCC 418
13. 320 US 591, 602 (1944)
14. (1996) 5 SCC 268
15. (1980) 3 SCC 97
16. (2002) 2 SCC 333
17. 2004 (2) ALD 599 (D.B.)
18. AIR 1998 SC 1703
19. (2000) 10 SCC 664
20. (1991) 3 SCC 11
21. (2016) 10 SCC 77
22. (2014) 6 SCC 415
23. (2019)13SCC24
24. AIR 2019 SC 3338
25. (1983) 1 SCC 305
MSM,J
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
W.P.Nos.2350, 1219, 1656, 21, 2277, 2450, 4204, 4629, 4735,
5631, 994 of 2020 and W.P.No.19075, 19950 and 20277 of 2019
COMMON ORDER:
The petitioners in all these petitions are employees in Andhra
Pradesh Road Transport Corporation (for short "APSRTC") in
different stations. They filed these petitions under Article 226 of the
Constitution of India to declare the action of the respondents in
issuing Notification No.PD-20/2019 dated 30.09.2019, enhancing
the age of superannuation of the petitioners from 58 years to 60
years with immediate effect i.e. from the month of September, 2019
instead of retrospective effect from 02.06.2014 is illegal, arbitrary,
discriminatory, contrary to G.O.Ms.No.138 dated 08.08.2017 and in
violation of principles of natural justice; consequently, direct the
respondents to re-induct the petitioners into service forthwith with
all consequential benefits from the date of attaining 58 years and
continue them in service until they attain the age of superannuation
i.e. 60 years.
In all these petitions, the plea of the petitioners and the
respondents is one and the same. Therefore, I find that it is
expedient to decide all these petitions by common order treating the
Writ Petition No.2350 of 2020 as leading case.
The petitioners have worked in APSRTC and retired from
service on attaining the age of superannuation i.e. 58 years instead
of 60 years as per G.O.Ms.No.138 dated 08.08.2017. The petitioners
discharged their duties to the utmost satisfaction of the superior
officers and retired from service on attaining the age of 58 years.
The details of petitioners in W.P.No.2350 of 2020 i.e., Name,
Employee ID number and designation along with date of retirement
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and actual date of superannuation as per G.O.Ms.No.138 dated 08-
08-2017 are given below:
S. Petitioner Name& Father's Staff Designation Date Actual
No. Name No. (E) of Date
Retirement of
Retirement
1. Kalla.Subbarayudu 250228 Personnel Officer, 30-06-2019 30-06-
S/o. Subbanna Kadapa 2021
2. K.Srinivasulu 575350 Conductor, 31-07-2019 31-07-
S/o. Venkataramudu Dharmavaram 2021
3. K.M.B S Khan 400947 ADC 31-08-2019 31-08-
Kadiri 2021
4. S.S.R.Prasad, 402527 Conductor, Kadiri 30-06-2019 30-06-
S/o. Ramalingaiah 2021
5. C.C.Reddanna 575290 Driver, Guntakal 31-07-2019 31-07-
S/o.Chandraiah 2021
6. C.Adi Reddy 400662 S.A(F) Ananthapur 30-06-2019 30-06-
S/o.C.Chenna Reddy 2021
7. N.Jayaramudu 401610 D.C. Tadipatri 30-06-2019 30-06-
S/o.Balakondappa Yadav 2021
8. S.Srinivasulu, 401603 A.D.C. Tadipatri 31-07-2019 31-07-
S/o. S.Puttanna 2021
9. S.Rajarathnam 409545 Driver, Tadipatri 30-06-2019 30-06-
S/o. Danam 2021
10. B.Kullayappa 405947 Helper, 31-08-2019 31-08-
S/o. B.Munaiah Dharmavaram 2021
11 K.K Murthy 402128 D.C 30-06-2019 30-06-
Kalyandurg 2021
12. S.Rahiman, 402607 Driver, 30-06-2019 30-06-
S/o. S.Salar Saheb Ananthapur 2021
13. D.V.R. Reddy 402592 Conductor, Kadiri 30-06-2019 30-06-
S/o. D.Narayana Reddy 2021
14. M.V.Sekhar 401228 A.D.C. Kadiri 30-06-2019 30-06-
S/o. Lakshminarayana 2021
15. T.S.Sai Siva Ram, 575167 Conductor, 30-06-2019 30-06-
S/o.T.S.Rao Uravakonda 2021
16. M.S.C. Reddy 406083 Driver, 30-06-2019 30-06-
S/o. M.Narappa Reddy Ananthapur 2021
17 C.N.Murthy 576326 Driver, Hindupur 30-06-2019 30-06-
S/o. C.Anjaneyulu 2021
18. K.L.Murthy, 400190 D.C. Penukonda 31-08-2019 31-08-
S/o. K.Subbanna 2021
19. K.Anandappa 575327 Conductor 30-06-2019 30-06-
S/o. K.Ramaiah Hindupur 2021
20. B.Balachandrappa 110217 D.M. Ananthapur 30-06-2019 30-06-
S/o. B.Nagappa 2021
21 K.L.N Prasad 575121 Conductor. 31-08-2019 31-08-
Ananthapur 2021
22. P.Amanullah 402590 TI-3. Ananthapur 30-06-2019 30-06-
23. P.H Vali 354200 Conductor,Chilaka 31-07-2019 31-07-
luripet 2021
24. P.V.P Reddy 111775 SA (P) RMs. Off,. 30-06-2019 30-06-
Ananthapur 2021
25 B.Radha Krishnaiah 502425 Conductor 30-06-2019 30-06-
S/o.Naranaiah Thirupathi 2021
26. V.Srinivasulu 400009 ADC 30-06-2019 30-06-
S/o.Gurappa Ananathpur 2021
27. B.V Ramana 405059 Driver 30-06-2019 30-06-
S/o.Ramanna Dharmavaram 2021
28. D.Veera Narayana 114577 S.O.C 30-06-2019 30-06-
S/o.Veeraiah HO/VJA 2021
29 A. Bhupathamma 550641 Sup., 30-06-2019 30-06-
W/o. Kantaiah Thirupathi 2021
30 C.C Sekhar 112330 T.I -3 30-06-2019 30-06-
Alipiri 2021
31. K.Srinivasulu 550789 Conductor 31-07-2019 31-07-
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S/o Krishnaiah Thirupathi 2021
32. K.V. Rathnam 505148 Conductor 30-06-2019 30-06-
S/o. Venkataiah Thirupathi 2021
33 T.R Parthasarathi 550629 Conductor 31-07-2019 31-07-
S/o. Munuswamy Chetty Thirupathi 2021
34 C.Rajagopala 404403 Mechanic 30-06-2019 30-06-
S/o.Paradasappa Dharmavaram 2021
35 M.V Swamy 500188 ADC, 30-06-2019 30-06-
S/o.Penchalaiah Nellore -II 2021
36 V.Ganganna 403341 Conductor 30-06-2019 30-06-
S/oHanumanthappa Kalyandurg 2021
37 J. Simhachalam 104603 Asst. (S) 30-06-2019 30-06-
H/O.VJA 2021
38 S.V Venkatanarayana 405565 Driver 30-06-2019 30-06-
S/o. Ramaswamy Kadiri 2021
39 A. Trinadha 107518 DM 30-06-2019 30-06-
Atmakur 2021
40 S. Sarveswaraiah 425769 Conductor 30-06-2019 30-06-
S/o. Adeppa Kurnool-I 2021
41 Ch. Venkateswara Rao 101498 ATM-II (IT) 31-07-2019 31-07-
HO 2021
42. G.Krishna Murthy 111751 Sup., 31-08-2019 31-08-
Penukonda 2021
43. G.L Narayana 402192 AE (Civil) 31-07-2019 31-07-
S/o. Pullaiah RMs Off., 2021
Kadapha
44. D.Naresh Babu 500176 AM 31-08-2019 31-08-
S/o. Govindaiah Puttur 2021
45. B.Balagopal 113874 Sec.Officer 31-08-2019 31-08-
S/o. Jagannadharao Thirupathi 2021
.46 B.Devasena 514885 Dy.Sup., 31-07-2019 31-07-
W/o. Chennaiah Kavali 2021
47 Sri Adinarayana 404467 Mechanic 30-06-2019 30-06-
Tadipatri 2021
48. Ch. Gopal Krishna Reddy 514449 Driver 31-07-2019 31-07-
Atmakur-N 2021
49 T.Chandra Sekhar 510747 Conductor 30-06-2019 30-06-
Atmakur-N 2021
50 K.Sanjevaraidu 401659 Shramic 31-08-2019 31-08-
Tadipatri 2021
51. P.Yatheeswar 503134 TTI RMs office 31-05-2019 31-05-
Chittore 2021
52 S. Meenakshamma D/o. 575884 Conductor 31-05-2019 31-05-
venkataswamy ATP 2021
53 O.Mohanbabu 404535 Electrician 31-08-2019 31-08-
Dharmavaram 2021
54 K.V Buchi Babu 775253 Conductor 30-06-2019 30-06-
Srikakulam-I 2021
55 N. Manmadha Rao 775353 Conductor 31-08-2019 31-08-
Srikakulam-I 2021
56 Samineni Lakshmi 410279 Conductor 31-05-2019 31-05-
Narasaiah Rajampet 2021
57 B.Sai Prasad 405587 LH 31-05-2019 31-05-
Dharmavaram 2021
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58 C.Varadaiah 405844 ELECDC 31-05-2019 31-05-
Dharmavaram 2021
59 VoletiVenkataramana 106260 Dy.Sup. (F) 31-05-2019 31-05-
R.M.S Office 2021
Cuddapah
60 VommiMuninadhudu 405153 Conductor 31-07-2019 31-07-
Rajampet 2021
61 Ketha Narayana 410747 Conductor 31-8-2019 31-08-
Rajampet 2021
After bifurcation of Andhra Pradesh State into two states, the
Government has issued Orders in G.O.Ms.No.147 Finance (HRM.IV)
Department, dated 30.06.2014 enhancing the Age of Superannuation
of Government Employees from 58 to 60 years in A.P. Public
Employment (Regulation of Age of Superannuation) (Amendment)
Act, 2014 (Act 4 of 2014) as per Sub-Section (2) of the A.P. Public
Employment (Regulation of Age of Superannuation) Act, 1984, the
provisions of the said Act shall apply to the following categories of
employees:
(i) Persons appointed to public services and posts in
connection with the affairs of the State;
(ii) Officers and other employees 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; whether appointed before or
after the commencement of this Act.
After amendment to A.P.Act 4 of 2014, the Finance
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Department of State of Andhra Pradesh has issued another
G.O.Ms.No.112 Finance (HR.IV-FR) Department dated 18.06.2016 in
accordance with IX and X Schedule of A.P. Re-Organisation Act,
2014 amending the Section 3(1) of A.P. Public Employment
(Regulation of Age of Superannuation) Act, 1984 issued Act 4 of
2014, holding that the every employee of Andhra Pradesh
Government shall retire from service on the afternoon of the last day
of the month in which he/she attains the age of sixty years i.e.
enhancing the age of superannuation from 58 to 60 years of the
employees of Public Sector Undertakings. Thereafter, the
Government has issued orders vide G.O.Ms.No.102 Finance (HR.IV-
FR) Department, dated 27.06.2017 clarifying the issue of age of
superannuation of an employee in Clause No.4 and 5 is as follows:
"4. Government after careful examination of the matter hereby
accord to give in principle approval to enhance the age of superannuation of
employees working in the institutions listed in IX and X Schedule of the
Andhra Pradesh Reorganisation Act, 2014 subject to the following conditions;
1. The specific decision to enhance the superannuation age
from 58 to 60 years to their employees shall be taken by the Board
of Directors / Managing Committee of these legal entities.
2. While doing so, these institutions shall take into
consideration their financial position and genuineness of their
need to enhance the age of superannuation.
3. In case of Residential Education Societies, the decision
should be based on the genuineness of their need and assessment
of performance of these societies.
5. These orders shall come into force prospectively from the date of issue
of the Orders by competent authorities after amending the relevant
regulations / by-laws."
Aggrieved by the same, different persons approached the
Supreme Court on the issue. Thereafter, the Government has issued
another G.O.Ms.No.138 Finance (HR.IV-FR) Department dated
08.08.2017, by which, the following amendment is carried;
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For Read
These orders shall come into These orders shall come into force
force prospectively from the with effect from 02-06-2014. The
date of issue of the orders by companies / corporations /
competent authorities after societies shall amend their
amending the relevant relevant regulations / bye-laws
regulations / bye-laws. accordingly.
Para-5 of G.O.Ms.No.138 dated 08.08.2017 is as follows:
"5. In furtherance of this amended clause Government hereby order
that the employees working in Companies / Corporations / Societies
included in the Schedule IX and X of the Andhra Pradesh State
Reorganization Act, 2014, shall not be superannuated only on the
ground of attainment of 58 years of age. In case such an employee is
superannuated on that ground he / she shall be reinstated and
continued upto 60 years".
The Government has decided to merge the APSRTC into A.P.
State Government. Accordingly, respondent No.1 has issued Orders
in G.O.Ms.No.29 Transport, Roads & Buildings (TR-II) Department
dated 14.06.2019 constituted a Committee to study in detail various
aspects regarding merger of APSRTC with the Government.
Thereafter, respondent No.1 has issued Order in
G.O.Ms.No.39, Transport, Road & Buildings (TR-II) Department
dated 30-09-2019 after careful examination of the subject matter i.e.
enhancement of age of superannuation of APSRTC employees from
58 to 60 years and agreed to the recommendations of the Expert
Committee in option 1 at Para 8.5 i.e. "to enhance the retirement age
of APSRTC employees from 58 to 60 years pending formal merger of
the Establishment of employees with the Statement Government,
directing the 4th respondent to take further necessary action in the
matter with immediate effect."
Subsequently, respondent No.4 issued notification No.PD-
20/2019, dated 30.09.2019 enhancing the age of superannuation
from the existing 58 years to 60 years with immediate effect i.e. from
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the month of September, 2019 instead of 02.06.2014 and the very
action of the respondent is highly illegal, improper, unjust, arbitrary,
discriminatory, contrary to the Orders of the Supreme Court and to
the G.O.Ms.No.138 dated 08-08-2017 issued by respondent No.2
and also in violation of Article 14, 16 and 300-A of the Constitution
of India.
Later, G.O.Ms.No.112 dated 18.06.2016 was challenged by the
employees of various institutions mentioned in Schedule IX and X of
2014 Act by filing Writ Petitions in the High Court of Judicature at
Hyderabad for States of Telangana and Andhra Pradesh. The High
Court of Judicature at Hyderabad for States of Telangana and
Andhra Pradesh by its Judgement and Order dated 07.03.2017
passed in "G.Rama Mohan Rao v. Government of Andhra
Pradesh1" and all connected matters disposed of the matters and
concluded as under:
"The earlier G.O.s 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 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 laws would their employees then be
governed by the enhanced age of superannuation prescribed under the
Rules/bye-laws.
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, superannuation
2017(6) ALD 103
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etc., and then taken a decision whether or not their request, to
enhance the age of superannuation of their employees from 58 to 60
years, should be approved. Suffice, it the Government of A.P. is
directed to consider the proposals submitted by each of these
corporation / societies / companies, for enhancement of the age of
superannuation from 58 to 60 years in accordance with law, and take a
decision thereupon at the earliest in any event not later than four
months from the date of receipt of a copy of this order.
All the Writ Petitions are, accordingly, disposed of. The miscellaneous
petitions pending, if any, shall stand closed. No costs".
Aggrieved by the said Judgment, some of the employees of the
society challenged said decision dated 07.03.2017 passed in Writ
Petitions filed SLP (C) No.13623 of 2017.
The petitioners also referred positive orders passed by the Apex
Court in various Special Leave Petitions and Contempt Cases with
regard to enhancement of superannuation age for the employees
working in the institutions included in IX and X schedules of A.P.
Re-Organisation Act, 2014. They will be referred at appropriate
stage.
It is further contended that rising of age of superannuation by
amending Section 3 of 1984 Act was soon after the bifurcation of the
erstwhile State of Andhra Pradesh. The concern as to what would be
the situation if the employees were finally allocated to the newly
carved State of Andhra Pradesh and the employees by that time had
attained the age of 58 years, was dealt with in newly inserted
Section 3A in 2014 Act. The principle was to re-induct them in the
services under the State of Andhra Pradesh without any break in
service. Further, if the employee had not attained the age of 60
years, what would be re-inducted; and in case he has attained the
age of 60 years, what would in such cases be conferred upon the
employees was notional advantage for the purpose of calculation of
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his pensionary benefits as if he had rendered service in the State of
Andhra Pradesh.
It is further asserted that the APSRTC is a public sector
undertaking, but the respondents clingingly passed the impugned
order vide Notification No.PD-20/2019, dated 30.09.2019, enhancing
the age of superannuation from 58 to 60 years with immediate effect
ie., from the month of September, 2019 as if the APSRTC will not
come under the Public Sector and also contrary to the G.OMs.No.138
dated 08.08.2017.
It is further contended that the Committee was formulated for
taking over the APSRTC by the Government and treat the employees
of APSRTC as State Government employees. The Committee, after
detailed study, made the following recommendations.
(i) To work out the modalities for the merger, the implications
relating to this decision and ways to address the arising
issues.
(ii) Feasibility of substituting the present diesel buses with
electric buses and the way forward.
(iii) Addressing the issues of clearance of outstanding dues to
employees, accumulated bank and current liabilities.
(iv) to examine the current cost of operation with break up on
all the expenditure items, suggest measures to reduce the
expenditure and improve the efficiency parameters.
On 03.09.2019 the expert Committee Members has submitted
their report. One of the recommendations of Expert Committee in
Option 1 - Merger of APSRTC Establishment with Government of
Andhra Pradesh is that the age of superannuation of all employees
may be raised to sixty (60) years, on par with the employees of
Government of Andhra Pradesh keeping in view of A.P. Public
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Employment (Regulation of Age of Superannuation) (Amendment)
Act, 2014 (Act 4 of 2014) in which Section 3 of A.P. Public
Employment (Regulation of Age of Superannuation) Act, 1984 has
been amended. The Government after careful examination of the
matter agreed to the said recommendation of the Expert Committee
in Option 1 at Para (8.5) i.e., "to enhance retirement age of APSRTC
employees from 58 to 60 years pending formal merger of the
Establishment of Employees with the State Government."
Subsequently, the respondents passed the impugned Order dated
30.09.2019, which is contrary to the G.O.Ms.No.138 Finance (HR.IV-
FR) Department dated 08.08.2017, Article 14, 16 and 300-A of the
Constitution of India. Therefore, the petitioners approached this
Court claiming the relief as stated above.
Respondent No.4 filed counter admitting issue of Government
Orders by the State as referred in the affidavit and also notification
No.PD-20/2019 dated 30.09.2019 while contending that as per
Regulation No.6 (l) (a) of APSRTC Employees (Service) Regulations,
1964 an employee shall retire from service with effect from the
afternoon of the last day of the month in which he attains the age of
58 years. All the petitioners are retired employees of the APSRTC
which is a statutory Public Sector Undertaking under the Road
Transport Corporations Act, 1950. The services of the employees of
APSRTC are governed by statutory Rules and Regulations made by
the Board of Directors of the APSRTC in exercise of the powers
conferred on them under the said Act. The subject matter of the
present litigation in W.P.No.4735 of 2020, is squarely covered by the
orders of this Court in W.P. No.21468 of 2017 and batch dated
22.08.2017. In compliance with the said orders, the Corporation
Board vide their resolution No.64/2018 resolved not to enhance
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the age of superannuation of its employees from 58 to 60. When the
aggrieved petitioners in W.P.No.21468 of 2017 and batch carried
the cases in appeal to the Supreme Court vide SLP(C)
No.28036 of 2017 and batch, citing G.O.Ms.No.102 dated
27.06.2017 and G.O.Ms.No.138 dated 08.08.2017, the Apex
Court dismissed those SLPs duly upholding the decision of
the High Court and the consequential Board Resolution passed by
APSRTC in compliance with the orders of this Court. Hence, the
present writ petition is liable to be dismissed in limine as the issue
has already attained finality.
It is further contended that the G.O.Ms.No.147 dated
30.06.2014, enhancement of retirement age from 58 to 60 years was
not applicable to APSRTC Employees. Through the G.O.Ms.No.112
dated 18.06.2016, orders were issued that enhanced age of
superannuation cannot be made universally applicable to the
employees of Public Sector Undertakings and Institutions listed in IX
and X Schedule of AP Re-organisation Act, 2014 until the matter of
division of assets and liabilities of the institutions between Andhra
Pradesh and Telangana is settled and the allotment of the employees
between the two states is finalized. Only on completion of the above
issues of bifurcation, the Government of Andhra Pradesh would be in
a position to take any policy decision. APSRTC is also placed in the
IX schedule of the AP Reorganisation Act and while the conditions of
bifurcation issues mentioned as above were still pending, the
employees of APSRTC cannot claim enhancement of retirement age
to 60 years.
It is further contended that the G.O.Ms.No.138 dated
08.08.2018 is not applicable to APSRTC as it does not permit
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application of enhancement of age of superannuation to all the
employees of the Corporations, Societies etc and it is only a
continuation of earlier G.O.Ms.No.102 dated 27.06.2017 in which
certain conditions while processing cases stipulated to government
on this subject that (i) the decision regarding the enhancement of age
of superannuation shall be taken by the Board of
Directors/Managing Committees and (ii) while taking such decision,
the financial position and genuineness of the need, shall be taken
into consideration. In view of the critical financial situation of the
Respondent Corporation, the Vice Chairman and Managing Director
of APSRTC vide Letter No.IR3/471(10)/2018-PO.III, dated
07.06.2019 represented to the Government of Andhra Pradesh for a
solution to the Corporation's financial difficulties viz. clearance of
outstanding dues to employees, accumulated bank loans and
current liabilities etc. Respondent No.4 admitted about the
constitution of committee and recommendations of the committee
referred in the affidavit filed by the writ petitioners and also admitted
the decision taken by the Government to merge the Corporation into
the Andhra Pradesh State Government.
It is further contended that the Government after careful
examination of the matter, agreed to the said recommendation of the
Expert Committee in Option - 1 at para (8.5) i.e., "to enhance
retirement age of APSRTC employees from 58 to 60 years pending
formal merger of the Establishment of employees of APSRTC with the
State Government, and directed the Vice Chairman and Managing
Director of APSRTC to take further action in the matter with
immediate effect vide G.O.Ms.No.39 dated 30.09.2019." Accordingly,
the Vice Chairman and Managing Director of APSRTC issued
Notification. No. PD-20/2019, Dated 30.09.2019 enhancing the age
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of superannuation of all employees of APSRTC from the existing 58
years to 60 years with immediate effect from the month of
September, 2019. Thus, it is clear that the decision for enhancement
of age of superannuation of employees in APSRTC from 58 to 60 is
applicable to the employees who are on rolls of the Corporation as on
30.09.2019 with immediate prospective effect. All the employees of
APSRTC who retired from the services of the Corporation prior to
September 2019 are governed by the Board Resolution No.64/2018
dated 19.06.2018 in view of the aforementioned Apex Court order
dated 24.07.2018 in SLP(C) No.26853-26854/2017 and batch. Since
all the petitioners in the present batch retired from the service of the
Corporation prior to September 2019, they are not eligible for
continuation in service beyond the age of 58 years, requested to
dismiss the petition.
Petitioners filed rejoinder to the petition reiterating the
contentions urged in the petition while refuting the contentions
urged in the counter annexing the copies of the Government Orders
and orders passed by this Court.
Learned counsel for the petitioners mainly contended that in
view of the judgments of Apex Court in SLP (C) No.13623 of 2017,
Special Leave Petition (Civil) No.13623 of 2017, SLP(C) No.28036 of
2017 and G.O.Ms.No.138 Finance (HR.IV-FR) Department dated
08.08.2017, the amendment was given retrospective effect and the
same is applicable to the Corporations also. Thus, in view of giving
retrospective effect i.e. from 02.06.2014, employees of the
Companies/Corporations/Societies shall retire only on attaining 60
years age. As such, the age of superannuation is increased from 58
to 60 and the same is accepted by the Supreme Court in the
judgments referred above. Consequently, the petitioners are entitled
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to claim benefits of service more particularly in terms of
G.O.Ms.No.138 Finance (HR.IV-FR) Department dated 08.08.2017
(referred above), but the respondents issued impugned notification
No.PD-20/2019 dated 30.09.2019 giving prospective effect to
G.O.Ms.No.138 Finance (HR.IV-FR) Department dated 08.08.2017.
Therefore, the act of the respondents in issuing impugned
notification is illegal and requested to set aside the same and extend
all service benefits of enhanced age of superannuation.
Sri P.Durga Prasad, learned Standing Counsel for APSRTC,
would contend that in view of the judgment of the Division Bench of
this Court in W.P.No.19707 of 2017 and batch and its affirmation by
the Apex Court in SLP(C) No.26853-26854/2017, the petitioners are
not entitled to claim benefits of enhanced age of superannuation,
thereby giving prospective effect to the amendment is not illegal and
it is for the Corporation to give effect either prospective or
retrospective. Consequently, the petitioners are not entitled to claim
any benefits, requested to dismiss the writ petitions.
Considering rival contentions, perusing the material available
on record, the point that arose for consideration is:
Whether the petitioners, who retired from service on
attaining age of 58 years of age without giving benefit to
the petitioners in terms of G.O.Ms.No.138 Finance (HR.IV-
FR) Department dated 08.08.2017 and the earlier orders
passed by the Apex Court in judgments (referred supra),
are entitled to claim benefit of enhancement
superannuation age of 60years? If so, whether the
impugned notification No.PD-20/2019 dated 30.09.2019
is liable to be set aside while declaring the same as
illegal, arbitrary, holding that the petitioners are
entitled to the benefits of enhanced age of
superannuation from 58 years to 60 years?
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P O I N T:
Undisputedly, all the petitioners in writ petition No.2350 of
2020 have retired from service on attaining age of 58 years in terms
of Regulation 6 (1) (a) of the Andhra Pradesh State Road Transort
Corporation Employees' (Service) Regulations, 1964 (for short
"Regulations, 1964). APSRTC is shown at serial No.26 of Schedule
IX annexed to the Andhra Pradesh Reorganisation Act, 2014. Issue
of G.O.Ms.No.147 Finance (HRM IV) Department dated 30.06.2014
enhancing age of superannuation of employees of State Government
from 58 to 60 years is also not in quarrel. Admittedly, the benefits of
G.O.Ms.No.147 dated 30.06.2014 were not extended to the State
owned Corporations or public sector undertakings and societies.
Therefore, the petitioners being employees in State Road Transport
Corporation are not entitled to claim benefits under the said
Government Order.
The petitioners in support of their contention that they have
retired from service on different dates, they placed on record office
orders issued by the officials of different depots of APSRTC. But the
retirement of the petitioners is not in quarrel. The only dispute is
with regard to denying the enhancement of superannuation age to 60
years as per G.O.Ms.No.102 dated 27.06.2017 as amended by
G.O.Ms.No.138 Finance (HR.IV-FR) Department dated 08.08.2017.
The State issued G.O.Ms.No.102 Finance (HR.IV-FR)
Department dated 27.06.2017 enhancing the superannuation age
from 58 to 60 years to the employees working in the institutions
included in IX and X schedules of A.P. Re-Organisation Act, 2014.
According to the said Government Order, the Government after
careful examination of the matter hereby accord to give in principle
approval to enhance the age of superannuation of employees working
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in the institutions listed in IX and X Schedule Institutions subject to
the following conditions:
1. The specific decision to enhance the superannuation age
from 58 to 60 years to their employees shall be taken by the
Board of Directors/Managing Committee of these legal entities.
2. While doing so, these institutions shall taken into
consideration their financial position and genuineness of their
need to enhance the age of superannuation.
3. In case of Residential Education Societies, the decision
should be based on the genuineness of their need and
assessment of performance of these societies.
Though the G.O.Ms.No.102 dated 27.06.2017 was issued
enhancing the age of superannuation to the employees working in
the institutions included in the IX and X schedules of A.P.Re-
organisation Act, 2014, the APSRTC, which is shown at Serial No.26
of Schedule IX of the A.P.Re-organisation Act, 2014, did not amend
its Regulations, 1964. However, Andhra Pradesh Power Generation
Corporation Limited issued G.O.O.No.86/J.S.(PER)/2017 dated
29.06.2017 enhancing the age of superannuation from 58 years to
60 years in terms of judgment of the High Court of Judicature at
Hyderabad in W.P.No.18205 of 2014 dated 07.03.2017, wherein the
Court held as follows:
"The earlier G.Os were issued by the Government of A.P. without these
legal entities amending its rules/regulations/byelaws, 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
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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.
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. Suffice it, if the Government of A.P. is directed to
consider the proposals submitted by each of these corporations/societies/
companies, for enhancement of the age of superannuation from 58 to 60
years in accordance with law, and take a decision thereupon at the earliest,
in any event not later than four months from the date of receipt of a copy of
this order."
In pursuance of the orders passed by the High Court of
Judicature at Hyderabad (referred supra) and based on the
representations of employees working in the Andhra Pradesh Public
Sector Undertakings to extend the provisions of G.O.Ms.No.147
dated 30.06.2014 with effect from 02.06.2014, the Government of
Andhra Pradesh accorded in principle approval to enhance the age
of superannuation of employees working in the institutions listed in
IX and X schedules of A.P.Re-orgaisation Act, 2014 subject to
certain conditions and orders laid down in G.O.Ms.No.102 Finance
(HR.IV-FR) Department dated 27.06.2017. Thus, the employees in
the Andhra Pradesh Power Generation Corporation Limited are
enjoying the benefits of enhanced age of superannuation, but the
same is not extended to the RTC employees.
Initially, the Managing Director of APSRTC refused to enhance
the age of superannuation on various grounds and passed
resolution No.64/2018 dated 19.06.2018 on the following reasons.
A. Current Financial Status: (i) there are outstanding loans
amounting to Rs.2,918 crores
(ii) various current liabilities
amount to Rs.964 crores
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(iii) incurred a cumulative loss of
about Rs.3,105 Crores from
2014-15 to 2018-19
(till May, 2018)
B. Number of employees already retired: 8336 from June, 2014 till
May, 2018 of whom 4,117 have already attained even 60 years of age
and hence, are unemployable while the remaining 4,219 retired
employees are within 1 to 24 months from attaining 60 years.
C. The financial impact if the retirement age is enhanced to 60 years with
retrospective effect from 02.06.2014 would be about Rs.878 crores if
arrears are to be paid or about Rs.382 Crores if the benefit is to be
extended even on notional basis.
D. If the enhancement of retirement age is with prospective effect, it
is likely to provide temporary relief by the postponement of retirement
benefits of about Rs.500 Crores over next two years, but increases the
cost on personnel by Rs.8 Crores per annum.
E. The current cost on personnel is about 45% at about Rs.2,782 Crores in
2017-18.
F. The average annual financial impact DA revisions and increments
amount to about 9% increase.
G. The Revision of Pay Scales due from 01.04.2017 will further add to the
cost on personnel anywhere from about Rs.300 Crores to Rs.540 Crores
per annum
H. From the date of last revision of the-bus fares on 24.10.2015, the HSD
oil price increased by Rs.25.31 per litre till date resulting in the
corresponding Increase in the expenditure on HSD amounting to about
Rs.846 Crores whlchls absorbed by the Corporation till 31.05.2018.
I. The Corporation has been paying about Rs.297 Crores towards MV Taxes
per annum
J. Considering the nature of business of the Corporation, there is
the requirement of maintaining high standards of health of 86% of
the workforce comprising of Drivers, Conductors, Mechanics and shramiks,
whose jobs are strenuous.
As the Government in G.O.Ms.No.102 dated 27.06.2017 laid
down certain guidelines referred above, the APSRTC passed the above
resolution (referred above) refusing to enhance the age of
superannuation from 58 to 60 years assigning the above reasons.
However, the Government of Andhra Pradesh issued
G.O.Ms.No.138 Finance (HR.IV-FR) Department dated 08.08.2017
enhancing the age of superannuation from 58 to 60 years with effect
from 02.06.2014 to the employees working in the State Public Sector
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Undertakings and Institutions included in Schedule IX and X of the
A.P.Re-organisation Act, 2014 while referring to G.O.Ms.No.102
Finance (HR-IV-FR) Department dated 27.06.2017. In the said
G.O.Ms.No.138 dated 08.08.2017 the Government issued
amendment to para 5 of the G.O.Ms.No.102 dated 27.06.2017, which
is as follows:
For Read
These orders shall come into These orders shall come into force
force prospectively from the with effect from 02-06-2014. The
date of issue of the orders by companies / corporations /
competent authorities after societies shall amend their
amending the relevant relevant regulations / bye-laws
regulations / bye-laws. accordingly.
In view of this amendment by G.O.Ms.No.138 dated
08.08.2017, the employees who are working in the public sector
undertakings, Corporations etc. included in schedule IX and X of the
Andhra Pradesh Reorganisation Act, 2014 are entitled to the benefit
of the enhanced age of superannuation with effect from 02.06.2014.
As per unamended G.O.Ms.No.102 dated 27.06.2017 the
orders of enhancement of superannuation age would come into force
prospectively from the date of issue of the orders by competent
authorities after amending the relevant regulations/bye-laws.
Whereas, as per amended G.O.Ms.No.102 dated 27.06.2017 by
G.O.Ms.No.138 dated 08.08.2017 the orders shall come into force
with effect from 02.06.2014, that means amendment is given
retrospective effect from the date of bifurcation of the State and
directed the Companies, Corporations shall amend their relevant
regulations accordingly. The language employed in the amended
portion of G.O.Ms.No.102 dated 27.06.2017 indicates that the
Companies/Corporations/Societies shall amend their bye-laws, it
means, it is mandatory. Instead of amending regulations in terms of
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WP No.2350_2020 and batch
G.O.Ms.No.102 dated 27.06.2017 as amended by G.O.Ms.No.138
dated 08.08.2017, the Principal Secretary to Government issued
G.O.Ms.No.39 Transport, Roads, Buildings (TR.II) Department dated
30.09.2019 enhancing the age of employees of APSRTC from 58 to 60
years on par with the employees of Government of Andhra Pradesh
with a direction to the Vice Chairman and Managing Director,
APSRTC, to take further necessary action.
G.O.Ms.No.39 Transport, Roads, Buildings (TR.II)
Department dated 30.09.2019 is not clear, whether the benefit is
given prospectively or retrospectively. If G.O.Ms.No.39 dated
30.09.2019 is read with G.O.Ms.No.102 dated 27.06.2017 as
amended by G.O.Ms.No.138 dated 08.08.2017, it must be given
retrospective effect and the APSRTC shall amend the Regulation No.6
in terms of the Government Orders referred above giving
retrospective effect from 02.06.2014, but till date, it appears that the
Regulation 6 is not amended and in fact, as on date there is no need
to amend the Regulation 6 since the APSRTC is merged in the State
Government and the employees of APSRTC are deemed to be
employees of Government of Andhra Pradesh.
The main endeavour of the petitioners is that when the
Government issued G.O.Ms.No.102 dated 27.06.2017 and
G.O.Ms.No.138 dated 08.08.2017 directing the respondents to
amend the regulations of the concerned Corporations included in
Schedule IX and X of the Andhra Pradesh Reorganisation Act, 2014,
the Chairman and Managing Director ought to have amended the
Regulations, 1964 immediately after issue of G.O.Ms.No.138 dated
08.08.2017 giving retrospective effect to amendment, but they did
not do so. However, the excuse of the APSRTC is that the financial
condition of the APSRTC is bad and not in a position to bear the
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burden of enhanced age of superannuation as mentioned in
Resolution No.64 of 2018.
If G.O.Ms.No.102 dated 27.06.2017 as amended by
G.O.Ms.No.138 dated 08.08.2017 are read together, still, the public
sector undertakings shall examine the issue taking into
consideration of three conditions prescribed in paragraph No.4 of the
G.O.Ms.No.102 dated 27.06.2017.
Taking advantage of the conditions contained in paragraph
No.4 of the G.O.Ms.No.102 dated 27.06.2017, resolution No.64/2018
dated 19.06.2018 was passed denying the enhancement of age of
superannuation by the Managing Director. But, before merger of
APSRTC into State Government, G.O.Ms.No.39 dated 30.09.2019
was issued enhancing the age of superannuation from 58 to 60 years
to the employees working in APSRTC.
G.O.Ms.No.138 Finance (HR.IV-FR) Department dated
08.08.2017 was issued directing the concerned authorities to amend
the relevant regulations/bye-laws of the institutions included in
schedule IX and X of the Andhra Pradesh Reorganisation Act, 2014
amending G.O.Ms.No.102 Finance (HR.IV-FR) Department dated
27.06.2017. The language employed therein is indicative of direction
to the concerned, to amend the regulations governing the services of
those institutions. The use of word 'shall' raises a presumption that
the particular provisions is imperative as held in "State of U.P. v.
Manbodhan Lal Srivastava2" and "Govindlal Chagganlal Patel v.
Agriculture Produce Market Committee3". But this prima facie
inference may be rebutted by other considerations such as object
and scope of the enactment and the consequences flowing from such
AIR 1957 SC 751
AIR 1976 SC 263
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construction. There are numerous cases where the word 'shall' has,
therefore, been construed as merely directory. (Vide: U.P.State
Electricity Board v. Shiv Mohan Singh4 and "State of Karnataka
v. Sareen Kumar Shetty5")
The word 'shall' is ordinarily mandatory, but it is sometimes
not so interpreted if the context or the intention otherwise demands
(See: Sainik Motors v. State of Rajasthan6).
When a statute employed the word 'shall', prima facie it is
mandatory, but the Court may ascertain the real intention of the
legislature by carefully attending to the whole scope of the statute.
(See: Basavraj R.Patil v. State of Karnataka7)
If different provisions are connected with the same word 'shall',
and if with respect to some of them the intention of the legislature is
clear that the word 'shall' in relation to them must be given an
obligatory or a directory meaning, it may indicate that with respect to
other provisions also, the same construction should be placed. If the
word 'shall' has been substituted for the word 'may' by an
amendment, it will be a very strong indication that use of 'shall'
makes the provision imperative.
The words 'shall and may' are construed imperatively. Lord
Brougham pointed as follows:
"If the words are it 'shall and may' be so and so done, by such
and such officer and body then the word 'may' is held in all
soundness of construction to confer, a power but the word 'shall' is
held to make that power, or the exercise of that power compulsory.
(Vide: Queen v. Allooparao8). Similarly, the words 'shall and
(2004) 8 SCC 402
AIR 2002 SC 1248
AIR 1961 SC 1480
AIR 2000 SC 3214
(1847) 3 MIA 488
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lawfully may' are in their ordinary import obligatory. (See: Chapman
v. Milvain9)
The use of the word 'shall' with respect to one matter and use
of word 'may' with respect to another matter in the same section of a
statute, will normally lead to the conclusion that the word 'shall'
imposes an obligation, whereas the word 'may' confers a
discretionary power. But that by itself is not decisive and the court
may having regard to the context and consequences come to the
conclusion that the part using 'shall' is directory. (See: Ganesh
Prasad Shah Kesari v. Lakshmi Narayan Gupta10)
In view of the law settled by the Apex Court (referred supra), it
is clear that while interpreting the word 'shall', the Court has to
examine the legislative intention in employing the word 'shall' to find
out whether it is mandatory or directory?
In the present case, initially, the age of superannuation of the
State Government Employees was increased from 58 to 60 years.
Thereafter, the employees of the institutions included in Schedule IX
and X of the Andhra Pradesh Reorgnisation Act demanded for
extending the same benefit to them including the APSRTC. In
G.O.Ms.No.138 Finance (HR.IV-FR) Department dated 08.08.2017,
the Government specifically stated as follows:
"The G.O.Ms.No.102 dated 27.06.2017 was issued giving State
Government's approval in- principle and conditional consent for
extension of superannuation of 60 years to employees of institutions listed
in the IX and X schedules of AP Reorganization Act of 2014. The conditions
were laid down for the detailed examination of the working of the various
Companies /Corporations / Societies and their financial capabilities so as to
decide whether they are financially viable or not. The orders were to come
into force prospectively after such examination. Also the Andhra Pradesh
Public Employment (Regulation of age of Superannuation) Act, 1984
amended by Act No.4 of 2014 of the State Government would not
(1850) 19 LJ Ex 228
AIR 1985 SC 964
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automatically apply to the schedule IX and schedule X institutions as they
are separate legal entities with their own Acts and Rules. Any decision
on enhancement of superannuation age of employees would have to be taken
by the board of directors / managing committees. As the State Government
is the majority stakeholder, its approval of the decision of the governing body
becomes necessary. After this, the rules / bye - laws of these institutions
need to be amended to give effect to the decision. Any extension of retirement
age would come into effect only from the date of issue of orders by the
competent authorities. It follows therefore that the orders would be
prospective.
Another reason for state government taking time on the issue was the
fact that the matter of division of assets and liabilities of these institutions is
still pending and the employees also have not been allocated between the
states of Telangana and Andhra Pradesh. At this juncture enhancing the
superannuation age for the employees would have complicated matters,
because of which, more employees would opt for Institutions in Andhra
Pradesh which would effect their viability."
In view of the reasons mentioned in G.O.Ms.No.138 Finance
(HR.IV-FR) Department dated 08.08.2017 i.e. demand by the
employees working in Schedule IX and X of the Andhra Pradesh
Reorganisation Act, 2014, the State amended the G.O.Ms.No.102
dated 27.06.2017. Following the same, Andhra Pradesh Power
Generation Corporation Limited issued G.O.O.No.86/J.S.(PER)/2017
dated 29.06.2017. Thus, the Government has decided to extend the
benefit of enhancement of superannuation age to the employees
working in the institutions included in Schedule IX and X of the
Andhra Pradesh Reorganisation Act, 2014 with retrospective effect
from 02.06.2014 as per G.O.Ms.No.138 dated 08.08.2017. Therefore,
the intention of the Government is clear that they intend to extend
the benefit irrespective of their viability and other conditions imposed
in paragraph No.4 of G.O.Ms.No.102 dated 27.06.2017.
If the word 'shall' employed in the amendment to
G.O.Ms.No.102 dated 27.06.2017 by G.O.Ms.No.138 dated
08.08.2017 is read along with the conditions specified in paragraph
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No.4 of G.O.Ms.No.102, it is difficult to harmonize both the clauses
i.e. paragraph No.4 and 5 of G.O.Ms.No.102 and paragraph No.5 of
G.O.Ms.No.138 dated 08.08.2017. In such case, the Court has to
take into consideration the legislative intention in issuing a direction
to amend the regulations/bye-laws of Companies/Corporations/
Societies included in IX and X schedules of the Andhra Pradesh
Reorganisation Act, 2014. Applying the principles laid down in the
above judgments to the present facts of the case and tracing the
legislative intention from various Government Orders, the
managements of those institutions have to extend the benefit of
enhanced age of superannuation in view of the language employed in
amendment of paragraph 5 of G.O.Ms.No.102 dated 27.06.2017 by
G.O.Ms.No.138 dated 08.08.2017. In view of the constructive
language used in amendment to paragraph No.5 of G.O.Ms.No.102
dated 27.06.2017, the managements of those institutions are bound
to amend the regulations/bye-laws governing the service conditions
of employees working in those institutions. Instead of implementing
the direction, the respondents issued the impugned notification
extending the benefit to the employees working in the APSRTC
prospectively. Such amendment is contrary to the intention of the
legislature in amending G.O.Ms.No.102 dated 27.06.2017 by
G.O.Ms.No.138 dated 08.08.2017, it amounts discriminating the
employees working and worked in one institution which is prohibited
under Article 14 of the Constitution of India.
Enhancement of age of superannuation is a policy matter of
the State, such policy matters cannot be given effect by the
managements of the institutions included in schedule IX and X of
the Andhra Pradesh Reorganisation Act, 2014 except to implement
those directions in strict sense.
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A decision whether the age of superannuation should be 58 or
60 years is a matter of policy, and such policy decisions can be
changed by the Government for just and valid reasons. The power to
lay policy includes the power to withdraw the earlier policy or to
change it. (Vide: Bajaj Hindustan Ltd. v. Sir Shadi Lal
Enterprises Ltd.11). The action of the Government cannot be
declared illegal, arbitrary or ultra vires the provisions of the
Constitution merely on the ground that the earlier policy had been
given up, changed or not adhered to. It cannot also be attacked on
the plea that the earlier policy was better suited to the prevailing
situation. (See: Dhampur Sugar (Kashipur) Ltd. v. State of
Uttaranchal12). Whether the policy should be altered or not is a
matter for the Government to decide. (Vide: Federal Power
Commission v. Hope Gas Co.13). When the Government is satisfied
that a change in the policy is necessary in the public interest, it
would be entitled to revise the policy and lay down a new policy. It is
equally entitled to issue or withdraw or modify the policy. The Court
would not bind the Government to a previous policy. (Vide: P.T.R.
Exports (Madras) Pvt. Ltd. v. Union of India14). The Court cannot
strike down a policy merely because there is a variation. Consistency
is not always a virtue. What is important is to know whether
irrational and extraneous factors foul. There can be no quarrel if a
policy is revised. The wisdom of yesterday may obsolesce into the
folly of today, even as the science of old may sour into the
superstition now, and vice versa. (Vide: Tamil Nadu Education
Dept. Ministerial & General Subordinate Services Assn. v. State
(2011) 1 SCC 640
(2007) 8 SCC 418
320 US 591, 602 (1944)
(1996) 5 SCC 268
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of T.N.15) Unless any illegality is committed in the execution of the
policy, or the same is contrary to law or malafide, a decision bringing
about change cannot, per se, be interfered with by the Court. (Vide:
BALCO Employees' Union (Regd.) v. Union of India16; Irrigation
Development Employees Association v. Govt. of A.P.17)
The right of the State or of its instrumentality to change its
policy decisions from time to time under changing circumstances
cannot be disputed, and it is an integral part of democratic process.
This Court in the exercise of its jurisdiction under Article 226 of the
Constitution of India, while considering the validity of a
Governmental policy, cannot weigh the pros and cons of the policy or
scrutinize it to test the degree of its beneficial or equitable
disposition for the purpose of varying, modifying or annulling it,
based on even sound reasoning. (Vide: Irrigation Development
Employees Association v. Govt. of A.P. (referred supra). One of the
inputs in formulating and reformulating Governmental policies may
be availability or lack of resources. Since the purse of the State is not
under the control of the Court, it will not transgress into the field of
policy decision. (Vide: Irrigation Development Employees
Association v. Govt. of A.P. (referred supra) and "State of Punjab
v. Ram Lubhaya Bagga18; "Narmada Bachao Andolan v. Union
of India19 and "Union of India v. Tejram Parashramji
Bombhate20").
(1980) 3 SCC 97
(2002) 2 SCC 333
2004 (2) ALD 599 (D.B.)
AIR 1998 SC 1703
(2000) 10 SCC 664
(1991) 3 SCC 11
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In "State of H.P. v. Rajesh Chander Sood21" the Supreme
Court held that the State Government, which had introduced 'the
1999 Scheme', had the right to repeal the same; employees of
corporate bodies, who were extended the benefits of 'the 1999
Scheme', were not employees of the State Government; the 1999
Scheme' was, therefore, just a welfare scheme introduced by the
State Government with the object of ameliorating the financial
condition of employees who had rendered valuable service in State
owned corporations; when and how much is to be paid as wages (or
allowances) to employees of an organization is also a policy decision;
so also, post-retiral benefits; all these issues fell in the realm of
executive determination; the Court had no role therein; the
conditions of service including wages, allowances and post-retiral
benefits of employees of corporate bodies, must necessarily be
determined administratively, on the basis of relevant factors; and
financial viability is an important factor in such consideration.
Considering those judgments, the Division Bench of the High
Court of Judicature at Hyderabad in "G.Rama Mohan Rao v.
Government of Andhra Pradesh" (referred supra) concluded that it
is for the Government to take policy decision and on taking such
decision, legal entities included in Schedule IX and X of the Andhra
Pradesh Reorganisation Act, 2014 has to amend the regulations/bye-
laws governing the service conditions of their employees.
Thus, from the above discussion, it is clear that the policy
decision was taken by the State to extend the benefit to the
employees of the Corporation included in Schedule IX and X of the
Andhra Pradesh Reorganisation Act, 2014. In such case, the
(2016) 10 SCC 77
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management of legal entities have no option except to amend the
regulations/bye-laws as directed by the State. Taking advantage of
conditions in paragraph No.4 of G.O.Ms.No.102 dated 27.06.2017,
the APSRTC issued notification impugned in the writ petition giving
prospective effect from the date of issue of notification, which is
contrary to the intention of the legislature and the policy decision
taken by the Government by amending G.O.Ms.No.102 dated
27.06.2017 by G.O.Ms.No.138 dated 08.08.2017. Thus, the
notification impugned in the writ petitions is not only contrary to the
legislative intention to extend the benefit of enhancement of
superannuation age to the employees working in the institutions
included in Schedule IX and X of the Andhra Pradesh Reorganisation
Act, 2014 and also contrary to the policy decision taken by the
Government for such enhancement of age of superannuation of those
employees with retrospective effect. The notification impugned in the
writ petitions is allowed to sustain, it would nullify the policy of the
Government and the policy became otiose or rendered useless.
Therefore, the notification impugned in the writ petitions giving
prospective effect is invalid, arbitrary and contrary to the policy
decision taken by the Government.
The Division Bench of the High Court of Judicature at
Hyderabad in "G.Rama Mohan Rao v. Government of Andhra
Pradesh" (referred supra) discussed about the applicability of the
enhanced age of superannuation to the Companies/Corporations/
Societies and noted the principle laid down by the Apex Court in
"State of Rajasthan v. C.P. Singh22", an employee cannot be
deprived of the benefits of the enhanced age of retirement on account
(2014) 6 SCC 415
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of the amendments made in the Regulations subsequent to the
States Reorganization; and, consequent to the reorganization of the
State, employees of State Public Enterprises in the State of Andhra
Pradesh are entitled to the benefit of the enhanced age of
superannuation of 60 years.
Finally, the Division Bench of the High Court of Judicature at
Hyderabad in "G.Rama Mohan Rao v. Government of Andhra
Pradesh" (referred supra) held that the judgment in "State of
Rajasthan v. C.P. Singh" (referred supra) has no application to the
facts of the case in "G.Rama Mohan Rao v. Government of Andhra
Pradesh" (referred supra) and held as follows:
"The question which arises for consideration in these Writ Petitions is
whether the 1984 Act, and the amendment made thereto by the 2014 State
Act, are applicable to employees of Public Sector Undertakings. No such
question arose for consideration in C.P. Singh (supra). It is only if the
concerned public sector undertakings, had amended their rules/bye-laws
making the provisions of the 2014 State Act applicable to its employees,
would the age of retirement of employees of these legal entities have stood
extended to 60 years. It is also not as if employees of these PSUs were asked
to exercise their option, and they had chosen to be governed by the 2014
State Act. Even otherwise neither the 1984 Act nor the 2014 State Act
provide for the exercise of options by employees of PSUs. Reliance placed by
the petitioners on C.P. Singh (supra) is, therefore, misplaced."
However, the observations made by the Division Bench is clear
that if the rules governing the service conditions of the employees are
amended giving retrospective or prospective effect, they are entitled
to claim such benefit of enhanced age of superannuation.
In "A.Veerraju v. The State of Andhra Pradesh (Civil Appeal
No.10273 of 2017 (Special Leave Petition (C) No.13623 of 2017) the
Apex Court concluded as follows:
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"8. Be that as it may, learned counsel appearing for the State of
Andhra Pradesh has today brought to our notice an order dated 08-08-
2017 issued by the Government of Andhra Pradesh whereby such
employees have been granted the benefit of continuance upto 60 years
of age. It has been ordered that the "said order dated 08-08-2017 shall
come into force with effect from 02-06-2014".
9. In that view of the matter, we do not thing it necessary to
retain these appeals in this Court any further. The stand of the
Government is very clear. The Government Order dated 08-08-2017
permitting the employees to continue upto the age of 60 years has
come into effect with effect from 02-06-2014. Therefore, all employees
who have superannuated on account of attainment of age of 58 years
on 02-06-2014 or thereafter are entitled to the protection of their
service upto 60 years of age and naturally to all consequential benefits
arising therefrom".
In view of the said findings, the State agreed to extend the
benefit of enhanced age of superannuation to the employees of
APSRTC only.
SLP (C) No. 13623 of 2017 was filed by some of the employees
of the Society challenging said decision of the Division Bench of the
High Court of Judicature at Hyderabad in "G.Rama Mohan Rao v.
Government of Andhra Pradesh" (referred supra). It was submitted
by them that a decision had already been taken by the Society for
raising the age of superannuation and all that was required to be
done was only a formal expression of the decision in the form of an
appropriate legislation. While issuing notice on 27.04.2017 the Apex
Court passed following interim order:
"In the above circumstances, until further orders, the superannuation in
the case of those teachers on attaining the age of 58 years in Respondent No.
3/Society (Gurukulam) shall be deferred.
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Similarly, in a contempt case between "K.Ananda Rao v.
S.S.Rawat23" the Apex Court after noting the amendment to
G.O.Ms.No.138 dated 08.08.2017, concluded as follows:
"Thus, purely on the principle of parity the employees of the institution
or entities in Schedule IX and X of 2014 Act could not demand the benefit of
enhancement of the age of superannuation from 58 years to 60 years. That
benefit came to be conferred under policy documents and finally by the GO
dated 08.08.2017. Thus, the source was in those policy documents and
naturally the extent of benefits was also spelt out in those instruments
issued by the Government. The Circular dated 28.06.2016 which was more
or less adopted in proceedings dated 11.06.2018 must be taken to be the
governing criteria in respect of such employees. Unless and until that
governing criteria was departed from specifically, mere expression
"consequential benefits" would not entitle the concerned employees anything
greater than what was contemplated in the policy documents issued by the
State Government."
Learned Standing Counsel for APSRTC would contend that in
view of the judgment of Division Bench in "G.Rama Mohan Rao v.
Government of Andhra Pradesh" (referred supra), confirmed by the
Apex Court, the petitioners are disentitled to claim the benefits.
In "A.Veerraju v. The State of Andhra Pradesh (Civil Appeal
No.10273 of 2017 (Special Leave Petition (C) No.13623 of 2017) the
Apex Court concluded that the benefit shall be extended to all the
employees from 02.06.2014 onwards, with all consequential benefits.
Therefore, the financial condition and other conditions specified in
paragraph No.4 of G.O.Ms.No.102 dated 27.06.2017 became otiose
in view of paragraph No.5 of G.O.Ms.No.138 dated 08.08.2017, and
lost its importance. Therefore, the contention of the learned standing
counsel for APSRTC that the financial condition of the Corporation is
weak is more or less become insignificant or irrelevant for extension
of age of superannuation of employees working in APSRTC in view of
(2019)13SCC24
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paragraph No.5 of G.O.Ms.No.138 dated 08.08.2017 since it is based
on policy decision taken by the State.
Thus, it is clear from the judgment of the Apex Court in the
judgments (referred supra), the petitioners are entitled to the benefit
of policy decision taken by the State and in view of the amended
G.O.Ms.No.102 dated 27.06.2017 by G.O.Ms.No.138 dated
08.08.2017 the petitioners are entitled to claim benefits of enhanced
age of superannuation with effect from 02.06.2014. Therefore, the
petitioners are entitled to claim benefit of G.O.Ms.No.102 dated
27.06.2017 as amended by G.O.Ms.No.138 dated 08.08.2017
retrospectively from 02.06.2014 with all consequential benefits as
held by the Apex Court in "A.Veerraju v. The State of Andhra
Pradesh (Civil Appeal No.10273 of 2017 (Special Leave Petition (C)
No.13623 of 2017).
The petitioners contended that failure to extend the benefit to
the employees retired after 02.06.2014 is discriminatory and relied
on the judgment of the Apex Court in "All Manipur Pensioners
Association v. The State of Manipur24". In the said judgment,
short question which is posed for consideration before the Apex
Court is, whether in the facts and circumstances of the case, the
decision of this Court in the case of "D.S. Nakara and Ors. vs.
Union of India (UOI)25"shall be applicable or not, and in the facts
and circumstances of the case and solely on the ground of financial
constraint, the State Government would be justified in creating two
classes of pensioners, viz., pre-1996 retirees and post-1996 retirees
for the purpose of payment of revised pension and whether such a
AIR 2019 SC 3338
(1983) 1 SCC 305
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classification is arbitrary, unreasonable and violative of Article 14 of
the Constitution of India or not? While referring to several
judgments, the Apex Court observed as follows:
"In fact this arbitrary division has not only no nexus to the liberalised
pension scheme but it is counterproductive and runs counter to the whole
gamut of pension scheme. The equal treatment guaranteed in Article 14 is
wholly violated inasmuch as the pension Rules being statutory in character,
since the specified date, the Rules accord differential and discriminatory
treatment to equals in the matter of commutation of pension. A 48 hours'
difference in matter of retirement would have a traumatic effect. Division is
thus both arbitrary and unprincipled. Therefore, the classification does not
stand the test of Article 14.
That is the end of the journey. With the expanding horizons of socio-
economic justice, the Socialist Republic and welfare State which we
endeavour to set up and largely influenced by the fact that the old men who
retired when emoluments were comparatively low and are exposed to
vagaries of continuously rising prices, the falling value of the rupee
consequent upon inflationary inputs, we are satisfied that by introducing an
arbitrary eligibility criterion: "being in service and retiring subsequent to the
specified date" for being eligible for the liberalised pension scheme and
thereby dividing a homogeneous class, the classification being not based on
any discernible rational principle and having been found wholly unrelated to
the objects sought to be achieved by grant of liberalised pension and the
eligibility criteria devised being thoroughly arbitrary, we are of the view that
the eligibility for liberalised pension scheme of "being in service on the
specified date and retiring subsequent to that date" in impugned
memoranda, Exs. P-1 & P-2, violates Article 14 and is unconstitutional and
is struck down. Both the memoranda shall be enforced and implemented as
read down as under: In other words, in Ex. P-1, the words:
that in respect of the government servants who were in service on March
31, 1979 and retiring from service on or after that date and in Ex. P-2, the
words:
"the new rates of pension are effective from April 1, 1979 and will be
applicable to all service officers who became/become non-effective on or after
that date" are unconstitutional and are struck down with this specification
that the date mentioned therein will be relevant as being one from which the
liberalised pension scheme becomes operative to all pensioners governed by
1972 Rules irrespective of the date of retirement. Omitting the
unconstitutional part it is declared that all pensioners governed by the 1972
Rules and Army Pension Regulations shall be entitled to pension as
computed under the liberalised pension scheme from the specified date,
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irrespective of the date of retirement. Arrears of pension prior to the specified
date as per fresh computation is not admissible. Let a writ to that effect be
issued. But in the circumstances of the case, there will be no order as to
costs."
Finally, the Apex Court concluded as follows:
"Even otherwise on merits also, we are of the firm opinion that there is
no valid justification to create two classes, viz., one who retired pre-1996 and
another who retired post-1996, for the purpose of grant of revised pension, In
our view, such a classification has no nexus with the object and purpose of
grant of benefit of revised pension. All the pensioners form a one class who
are entitled to pension as per the pension rules. Article 14 of the
Constitution of India ensures to all equality before law and equal protection
of laws. At this juncture it is also necessary to examine the concept of valid
classification. A valid classification is truly a valid discrimination. It is true
that Article 16 of the Constitution of India permits a valid classification.
However, a very classification must be based on a just objective. The result to
be achieved by the just objective presupposes the choice of some for
differential consideration/treatment over others. A classification to be valid
must necessarily satisfy two tests. Firstly, the distinguishing rationale has to
be based on a just objective and secondly, the choice of differentiating one
set of persons from another, must have a reasonable nexus to the objective
sought to be achieved. The test for a valid classification may be summarised
as a distinction based on a classification founded on an intelligible
differentia, which has a rational relationship with the object sought to be
achieved. Therefore, whenever a cut-off date (as in the present controversy) is
fixed to categorise one set of pensioners for favourable consideration over
others, the twin test for valid classification or valid discrimination therefore
must necessarily be satisfied. In the present case, the classification in
question has no reasonable nexus to the objective sought to be achieved
while revising the pension. As observed hereinabove, the object and purpose
for revising the pension is due to the increase in the cost of living. All the
pensioners form a single class and therefore such a classification for the
purpose of grant of revised pension is unreasonable, arbitrary,
discriminatory and violative of Article 14 of the Constitution of India. The
State cannot arbitrarily pick and choose from amongst similarly situated
persons, a cut-off date for extension of benefits especially pensionary
benefits. There has to be a classification founded on some rational principle
when similarly situated class is differentiated for grant of any benefit.
As observed hereinabove, and even it is not in dispute that as such a
decision has been taken by the State Government to revise the pension
keeping in mind the increase in the cost of living. Increase in the cost of
living would affect all the pensioners irrespective of whether they have retired
pre-1996 or post-1996. As observed hereinabove, all the pensioners belong to
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one class. Therefore, by such a classification/cut-off date the equals are
treated as unequals and therefore such a classification which has no nexus
with the object and purpose of revision of pension is unreasonable,
discriminatory and arbitrary and therefore the said classification was rightly
set aside by the learned Single Judge of the High Court. At this stage, it is
required to be observed that whenever a new benefit is granted and/or new
scheme is introduced, it might be possible for the State to provide a cut-off
date taking into consideration its financial resources. But the same shall not
be applicable with respect to one and single class of persons, the benefit to
be given to the one class of persons, who are already otherwise getting the
benefits and the question is with respect to revision."
Thus, the division of employees in two different categories, who
retired pre 1996 in the facts of the above judgment is arbitrary.
In the present facts of the cases also, the respondents divided
the employees, who retired from service on attaining superannuation
age i.e. prior to 30.09.2019 and after 30.09.2019 on account of
financial constraints referred in Resolution No.64/2018 dated
19.06.2018. But if the principle laid down in the above judgment is
applied to the present facts of the cases, it amounts to
discrimination of employees, who retired between 02.06.2014 and
30.09.2019 and the persons, who are in service after 30.09.2019,
and such discrimination is arbitrary.
The Supreme Court made it clear in Special Leave Petition
(Civil) No.14033-14034 of 2017 that "in case any employee has
retired only on the ground of attaining the age of 58 years, such
employees shall be reinstated and continued in service until further
orders, but in no case, beyond 60 years". The Apex Court further
made it clear that "this order will apply to all similarly situated
employees under the respondent-institutions whether they are the
petitioners before this court or not and, therefore, those similarly
situated persons need not travel to this Court." But, the respondents
did not adhere to the directions issued by the Apex Court in various
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orders referred above, issued the impugned notification, such act of
the respondents can be described as schadenfreude. Therefore,
such discrimination of employees dividing into two groups amounts
to arbitrary exercise of power by the respondents and it is contrary to
the directions issued by the Apex Court in various Special Leave
Petitions and contempt cases referred in the earlier paragraphs.
Accordingly, the point is answered in favour of the petitioners and
against the respondents.
In the result, the writ petitions are allowed setting aside the
impugned notification No.PD-20/2019 dated 30.09.2019 holding
that the petitioners are entitled to claim benefit of G.O.Ms.No.102
dated 27.06.2017 as amended by G.O.Ms.No.138 dated 08.08.2017
retrospectively from 02.06.2014 with all consequential benefits.
Consequently, the respondents are directed to reinstate the
petitioners into service with immediate effect, if they are below the
age of 60 years. No costs
Consequently, miscellaneous petitions pending if any, shall
also stand dismissed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
16.04.2021
Note:
L.R. Copy to be marked.
B/o
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