Andhra Pradesh High Court - Amravati
M.V. Subramanyam vs The State Of Andhra Pradesh, on 2 May, 2023
Bench: K Manmadha Rao
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION Nos. 27810 AND 29918 OF 2022
COMMON ORDER:
These Writ Petitions are filed under Article 226 of the
Constitution of India, to issue a Writ of mandamus by declaring
that the petitioners are entitled to retire on their attaining the age
of 62 years and further to direct the respondents to extend the
services of petitioners up to the age of 62 years by continuing their
services in consonance with G.O.Ms.No.15 Finance (HR.IV.FR &
LR) Department, dated 31.01.2022 on par with the Government
Employees and pass such other orders.
2. Since the issue involved in both the writ petitions is
one and the same, the same are heard and are being disposed of
by this common order.
3. Heard Sri Narasimha Rao Gudiseva, learned counsel
appearing for the petitioners and Sri C. Sumon, learned
Government Pleader appearing for the respondents.
4. The brief facts of the case are that the respondent No.2
is a Tourism Development Corporation, working under the control
of the respondent No.1. The petitioners are working in different
position and now they got promotions in the present designation.
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The Government of Andhra Pradesh has taken a policy to enhance
the superannuation age from 60 to 62 years, accordingly issued an
ordinance amending the service conditions of age of
superannuation of Government Employees from 60 to 62 years as
per the Andhra Pradesh Public Employment (Regulation of age of
Superannuation) (Amendment) Ordinance, 2022 w.e.f. 01.01.2022
vide G.O.ms.No.15 Finance (HR.IV FR & LR) Department, dated
31.01.2022 as per the said amendment respondents have to carry
out the service regulations and consequential orders pursuant to
the said G.O. The 2nd respondent had taken a decision in its Board
Meeting and passed a resolution dated 17.03.2022 by adopting the
retirement age from 60 years to 62 years as Item No.31 "To
consider and approve the enhancement of superannuation age for
APTDC Employees (Regular & Contract) from 60 to 62 years as per
the Government Orders and ratify the action taken for service
continuation of employees (Regular & Contract) who attained age of
"60 years" in the months of January and February 2022.
RESOLVED that pursuant to AP (Amendment) Ordinance, 2022
(AP Ordinance No.1 of 2022) the superannuation age of the
employees of the Corporation be and is hereby raised from 60 to 62
years duly amending Rule 7 of APTDC Employees (Service) Rule
2001 and also resolved that the action taken in continuation of
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service of Sri A. Sattar, General Helper Grade-I and Sri D.
Amarnath Reddy, Supervisor, whose superannuation is due in the
month of January 2022 & February 2022 on attaining their age of
60 years pursuant to the above be and is hereby considered and
ratified."
While the matter stood thus, the 2nd respondent Corporation
has reviewed its earlier decision and held a Board Meeting on
15.07.2022 and passed a resolution (Item No.2) "Confirmation of
the minutes of the previous meeting: "RESOLVED that the minutes
of the previous meeting of the Board of Director held on
17.03.2022 be and hereby received and confirmed except the Item
No.31". During the meeting, the Secretary, Finance Department,
opined that the enhanced superannuation age is not applicable for
public enterprises. The Chairman apprised the Secretary, Finance
Department that the Board was wrongly induced by the then MD
to and get ratification for the said item in the previous meeting.
After deliberation the Board Resolved that the matter with regard
to the item No.31, on Enhancement in the superannuation Age of
the employees, shall be referred to the Government of AP for
approval. The implementation of the decision shall be stopped till
the approval from the Government is received", by differing their
earlier decision. In view of the said decision, the respondents No.2
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to 4 directed the petitioners to retire by the end of the month i.e.,
30.08.2022 (31.08.2022 is happened to be a public holiday).
Aggrieved by the said decision, the petitioners have preferred the
present writ petitions.
5. During pendency of the above writ petitions, this Court
granted interim direction. In W.P.No.27810 of 2022, this Court
vide order, dated 30.08.2022, granted interim direction as under:
"...In view of the same, as the petitioners showed prima facie
case, there shall be interim direction to the respondents to continue the
petitioners till they attain the age of 62 years...."
6. Since the respondents have not complied with the above
order, the petitioners have filed the Contempt Cases vide
C.C.No.4666 and 4667 of 2022 against the respondents in both the
writ petitions.
7. Per contra, the respondents No.2 to 4 filed counter-
affidavit in W.P.No. 27810 of 2022 denying all material averments
made in the writ petition and mainly contended that the
Government employees from 60 years to 62 years as per the
Amendment Ordinance, 2022 w.e.f 01.01.2022. In pursuance of
the said GO, the respondent No.2/APTDC has adopted the said GO
vide its 191st Board resolution Meeting held on 17.03.2022 by
amending the Rule 7 of APTDC Rules 2001. Thereafter, the
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respondent No.2 realised its mistake in adopting the GO without
having approval from the Government. In furtherance of the
deliberations with Secretary, Finance Department, the Board vide
its 192nd Board Resolution Meeting held on 15.07.2022, has
resolved that the issue of enhancement of superannuation age of
the APTDC employees (Regular & Contract) shall be referred to the
Government of AP for approval and stopped the implementation of
the decision till the approval from the Government is received. In
these circumstances, the petitioners in anticipation of the
consequences of the Board resolution have approached this Court.
It is further stated that the Finance Department vide Circular
Memo, dated 2309.2022, in Memo No.1813129/FIN01-
HR/212/2022-HR-IV, has clarified its applicability to the following
categories of Government Employees :
i) Persons appointed to public services and posts in connection with the
affairs of the State;
ii) Officers and other employee 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;
v) Whether appointed before or after the commencement of this Act
It is further stated that in view of the said Circular Memo of
Finance Department, the orders in G.O.Ms.No.15 are not
applicable to the employees of respondent No.2/APTDC and the
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interim orders passed by this Court directing the respondents to
continue the petitioners till they attain the age of 62 years may be
vacated.
8. It is pertinent to mention here that as per Rule 7 of
APTDC Employees (Service) Rules-2001, wherein it is stated:
7. Retiring Date :
i. (a) An employee shall retire from service with effect from the
afternoon of the last of the month in which he attains the age of 58 years.
(b) In case of Class-IV i.e., Grade-I&II, Attenders, General Helpers,
Sweepers & Watchmen etc., they shall retire from service w.e.f. the
afternoon of the last day of the month in which they attain the age of 60
years.
(c ) when an employee is required to retire,, revert or cense to be on leave
with effect from the date of retirement, in accordance with the provisions of the
Rules, the employee must retire, revert or cease to be on leave with effect from
the afternoon of that day.
(ii) (a) An employee under suspension on a charge of misconduct
should not be required or permitted to retire on attaining the age
of Superannuation but should be retained in service by an order
issued to that effect until the disciplinary proceedings are
concluded by the competent authority.
Provided that the date of retirement of such employee should be the date
of termination of the disciplinary proceedings finally with an order
simultaneously issued to the effect.
b) An employee who attained the age of superannuation but allowed
to continue to hold the post beyond that date, by virtue of a stay order of the
court, shall be deemed to have ceased to hold the post and relieved of his charge
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from the date of the judgment dismissing his petition irrespective of whether
charge of the post was handed-over or not as prescribed in any rule of executive
instructions for the time being in force......
..........
........".
9. As seen from the Minutes of the 191st meeting of the
Board of Directors of the 2nd respondent which was held on
17.03.2022, wherein it was mentioned at Item No.30 as "To
consider and approve the action taken and implemented PRC to all
APTDC employees (Regular/Contract/Outsourcing) as per
Government orders w.e.f. 1st January 2022. It was also
RESOLVED that the action taken in implementation of rps-2022 TO
ALL Regular, Deputation, Contract and outsourcing staff working in
the corporation be and is hereby considered and ratified. It is also
observed that at Item No.31 it was mentioned that "RESOLVED
that pursuant to Andhra Pradesh Public Employment
(Amendment) Ordinance, 2022 (AP Ordinance No.1 of 2022) the
superannuation age of the employees of the Corporation be and is
hereby raised from 60 years to 62 years duly amending Rule 7 of
APTDC Employees (Service) Rules 2001. It was also RESOLVED
that the action taken in continuation of service of Sri A.Sattar,
General Helper Grade-I and Sri D.Amarnath Reddy, Supervisor,
whose superannuation is due in the month of January 2022 &
February 2022 on attaining their age of 60 years pursuant to the
above be and is hereby considered and ratified.
10. And as could be seen from the 192nd meeting of the
Board of Directors of the 2nd respondent which was held on
15.07.2022, wherein it was resolved that the matter with regard to
the item No.31, on Enhancement in the superannuation Age of the
employees, shall be referred to the Government of AP for approval.
The implementation of the decision shall be stopped till the
approval from the Government is received.
11. It is pertinent to mention here that in Memorandum and
Articles of Association of APTDC, as per Article 90, wherein it is
stated that :
90. (1) whenever such a resolution as aforesaid shall have
been passed, the Board shall:
(a) make all appropriations and applications of the undivided
profits resoled to be capitalised thereby, and all allotments and issues of
fully paid shares or debentures, if any; and
(b) generally do all acts and things required to give effect thereto.
(2 ) The Board shall have full power:-
(a) To make such provision, by the issued of fractional certificates or by
payment in cash or otherwise as it thinks fit, for the case of shares or
debentures becoming distributable in fractions; and also
(b) To authorise any person to enter, on behalf of all the Members entitled
thereto, into an agreement with the Company providing for the allotment
to them respectively, credited as fully paid up, of any further shares of
debentures to which they may be entitled upon such capitalization, or (as
the case may require) for the payment by the Company on their behalf, by
the application thereto of their respective proportions of the profits
resolved to be capitalised of the amounts or any part of the amounts
remaining unpaid on their existing shares.
And as per Article 93, wherein it is stated as follows:
93. Notwithstanding any thing contained in any of these Articles the State
Government may, from time to time issue such directives or instructions
as may be considered necessary in regard to the finance; conduct of
business and affairs of the Company. The Company shall give immediate
effect to the directives or instructions so issued.
12. Learned Government Pleader has relied upon a
judgment reported in G. Rama Mohan Rao and another versus
Government Andhra Pradesh rep by its Principal Secretary and
another1, wherein the High Court of Andhra Pradesh held that :
While a Public Sector Undertaking is a distinct juristic entity with a
corporate structure of its own and carries on its functions on business
principles with a certain amount of autonomy, behind the formal ownership
is the deeply pervasive presence of the Government which acts through the
instrumentality or agency of the corporation. Such a Corporation would,
therefore, not be free from its basic obligation to obey the fundamental
rights, and the Court must not allow enforcement of fundamental rights to
be frustrated by taking the view that it is not the Government and,
therefore, not subject to constitutional limitations. (Ajay Hasia v. Khalid
Mujib Sehravardi ). The mere fact that a Corporate body, or a Cooperative
Society, answers the definition of State under Article 12 does not make it
the State Government, nor will the employees of such a body become
holders of civil posts or employees of the State Government. While such
Corporations/Societies may answer the definition of a State, that does not
mean that the State Government is liable to bear and pay the salaries of its
employees, as it is an independent juristic entity, and cannot be identified
with or treated as the State Government. (State of Assam v. Barak
Upatyaka D.U. Karmachari Sanstha ). While a Company/Corporation may
be called an agency or an instrumentality of the Central/State Government
for the limited purpose of labelling it a State within the meaning of Article
12 of the Constitution, a Corporation cannot also be held to be an agent of
the Central/State Government under Section 182 of the Contract Act.
(National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad ; Pradeep
Kumar Biswas v. Indian Institute of Chemical Biology ).
2017 SCC OnLine Hyd 54
Unlike Part III of the Constitution, service provisions in Part- XIV of the
Constitution relate to recruitment, conditions and tenure of service of
persons, citizens or otherwise, appointed to a Civil Service or to posts in
connection with the affairs of the Union or any State. The word State has a
different connotation in Part III relating to Fundamental Rights. It includes
the Government and Parliament of India, the Government and Legislature
of each of the States and all local or other authorities within the territory of
India, etc. The scope and ambit of the Service provisions are to a large
extent distinct and different from the scope and ambit of the fundamental
right, guaranteeing to all citizens, an equality of opportunity in matters of
public employment. It would be wrong in principle to either cut down or
expand the amplitude of a fundamental right by reference to provisions
which have an altogether different scope and purpose. (Gazula Dasaratha
Rama Rao v. State of A.P., ). While Public Sector Undertakings are, no
doubt, instrumentalities of the State under Article 12 of the Constitution
and are governed by Part-III of the Constitution of India, that does not
make employees, of these corporate bodies, Government employees.
Corporate bodies are independent entities, and their employees cannot
claim parity with employees of the State Government. The State
Government has a master-servant relationship with the civil servants of the
State, whilst it has no such direct or indirect nexus with employees of
corporate bodies. The State Government may legitimately choose to extend
different rights in terms of pay-scales and retiral benefits to civil servants.
It may disagree to extend the same benefits to employees of corporate
bodies. The State Government would be well within its right, to deny
similar benefits to employees of corporate bodies, which are financially
unviable, or if their activities have resulted in financial losses. When pay-
scales are periodically reviewed for civil servants, they do not
automatically become applicable to employees of corporate bodies, which
are wholly financed by the Government, and similarly not even to
employees of Government companies. Likewise, there cannot be parity with
Government employees, in respect of allowances. So also, of retiral
benefits. (State of H.P. v. Rajesh Chander Sood ).
Employees governed by the terms of a contract do not possess the status of
government servants. Neither are they governed by the Rules framed
under Article 309 of the Constitution, nor do they enjoy the protection
under Article 311. (UPSC v. Dr. Jamuna Kurup ; Roshan Lal
Tandon19; Dinesh Chandra Sangma v. State of Assam ). Employees of
statutory bodies are governed by statutory rules, and do not enjoy the
status of government servants. (Dr. Jamuna Kurup38). Employees of
government companies are not civil servants. Such employees have no legal
right to claim that the Government should pay their salary or that the
additional expenditure incurred on account of revision of their pay scale
should be met by the Government. Being employees of the Companies, it is
the responsibility of the Companies concerned to pay them salary and, if
the company is sustaining losses continuously over a period and does not
have the financial capacity to revise or enhance pay scales, its employees
cannot claim any legal right against, or seek a direction to, the State
Government to meet the additional expenditure required to be incurred on
account of revision of pay scales. (A.K. Bindal v. Union of India ; Pyare Lal
Sharma v. Managing Director ).
As employees of Public Sector Undertakings and Government servants
constitute two different and distinct classes, neither do the conditions of
service prescribed for government servants automatically apply to
employees of Public Sector Undertakings, nor does the plea of
discrimination, or of violation of Article 14, merit acceptance. The contention
that the Government cannot apply different yardsticks is therefore not
tenable. While several of these corporate bodies appear to have adopted
the 1984 Act, they are required to also adopt the 2014 State Act, and
amend the rules and bye-laws, governing the age of superannuation of its
employees, accordingly. It is only if the rules, governing the age of
superannuation, are amended as prescribed under the applicable bye-
laws/Articles of association would the employees of these corporate bodies
then be entitled to claim the benefit of the enhanced age of superannuation.
13. Learned counsel for the petitioners while relying on the
above judgment, submits that after the pronouncement of the
above judgment, the Government has issued G.O.Ms.No.102
Finance (HR.IV-FR) Department dated 27.06.2017, wherein it was
stated that 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. The Government also
issued another G.O.Ms.138 Finance (GR.IV-FR) Department dated
8.8.2017, wherein it was mentioned that "In case such an
employee is superannuated on that ground he/she shall be
reinstated and continued up to 60 years." In view of the same, he
stated that the respondent authorities have considered the
employees up to the age of 60 years.
14. Learned counsel for the petitioners has also relied upon
a catena of judgments of this Court and submits that this Court
has already considered and ratified the age of superannuation from
60 years to 62 years to the employees and further requests this
Court as similarly situated persons in these cases also may be
considered in similar manner by allowing these writ petitions.
15. Now the present G.O.Ms.No.15 has come into force for
extension of the age of superannuation from 60 years to 62 years,
which is now under challenge.
16. On perusing the entire material available on record and
the submissions of both the learned counsels and the decision
referred to above, this Court observed that, while considering
whatever analysis mentioned and taking reliance by the
respondents counsel, the analysis of the judgment, nowhere the
respondents stated that whenever the Government has introduced
Government Orders with regard to the superannuation that they
are not applicable to the employees of the Corporations/
Companies. So, while considering the issue, on one hand the
respondent authorities are considered some of the employees while
relying on the resolution 191st dated 17.03.2022 and ratified their
services up to the age and Amended Rule 7 of APTDC and accorded
on their own without taking any approvals from the Government.
Whereas in case of the petitioners herein concerned, the same
respondent authorities are passed resolution dated 15.07.2022
vide item No.31 vide Resolution No.192 the superannuation age of
the employees of the Corporation be and is hereby raised from 60
years to 62 years and stating that the same was send for approval
of the Government. It clearly reveals that the respondents are
showing clear discrimination towards the employees is concerned.
So in view of the above circumstances, the respondent authorities
are stating that the orders G.O.Ms.No.15 are not applicable to the
employees of respondent No.3/APTDC, which is not acceptable
under law.
17. It is also observed that as the employees of Public Sector
undertakings and Government servants constitute two different
and distinct classes, neither do the conditions of service prescribed
for government servants automatically apply to employees of Public
Sector Undertakings, nor does the plea of discrimination, or of
violation of Article 14, merit acceptance. The contention that the
Government cannot apply different yardsticks is therefore not
tenable. While several of these corporate bodies appear to have
adopted the 1984 Act, they are required to also adopt the
2014 State Act, and amend the rules and bye-laws, governing the
age of superannuation of its employees, accordingly. It is only if the
rules, governing the age of superannuation, are amended as
prescribed under the applicable bye-laws/Articles of association
would the employees of these corporate bodies then be entitled to
claim the benefit of the enhanced age of superannuation.
18. It is also observed that the earlier G.Os 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 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 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.
19. It is observed that the Government has enhancing the
age by taking as a policy matter and giving enhancement to some
of the employees and not considering some of the employees are
concerned depending on their financial status of the respective
departments undertaking corporations/ societies/companies,
whereas, the employees are approaching to Court of law for
availing their remedy under Article 226 of the Constitution of India.
On earlier occasion, the Government has considered the employees
age from 58 to 60 years almost all the employees of the
corporations/ societies/companies and the Government has
enhanced. Earlier it is disputed and thereafter it is considered by
the Government. Even by experiencing the same, again the
Government issuing G.O.Ms.No.1 and again the employees
concerned whoever faced the problem on earlier occasion have also
again approaching this Court for the same cause. On earlier
occasions also, batch of writ petitions were filed on the same cause
and while considering the directions of this Court the Government
has considered and issued separate Government Orders, similarly
the Government has issued G.O.Ms.No.102, dated 27.06.2017 and
G.O.Ms.138, dated 8.8.2017, wherein stated that the respondent
authorities have considered the employees up to the age of 60
years.
20. 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.
21. This Court further observed that, whereas, while passing
the resolution 191st, dated 17.03.2022, Service Rule 7 of APTDC
was amended and considered for superannuation from 60 years to
62 years the above two persons on their own without taking any
approvals from the Government. It shows that the respondent
authorities have taken decision and considered in their favour.
Whereas in the case of the petitioners concerned, the respondent
authorities have passed another resolution i.e., 192nd dated
15.07.2022 stating that they send proposals for the approval of the
Government. It clearly establishes the apathy towards the
petitioners and it clear indiscrimination.
22. In view of the facts and circumstances of the case, this
Court is of the opinion that there is no need to send proposals to
the Government for approval. It is also observed that, in the
counter filed by the respondents, no where stated that whether
Amended Service Rule 7 of APTDC existing or not and further it is
observed that the respondents are amended the Service Rule 7. In
view of the amendment, the respondent authorities are considered
the G.O.Ms.No.15 dated 31.012022 and superannuation has been
given to their employees on amended service rules and issued the
proceedings to their employees. So, while considering the same,
this Court deems fit to allow these writ petitions with the following
directions:
i). while making the interim order absolute, the respondents
are directed to continue the petitioners up to the age of 62 years of each
petitioner by continuing their service in consonance with G.O.Ms.No.15
dated 31.01.2022 on par with Government Employees;
ii). Further, the respondents are also directed to consider the
proposals submitted vide 192nd resolution dated 15.07.2022 vide item
No.31 for enhancement of the age of superannuation from 60 to 62 years
in pursuance of the Amendment of Service Rule 7 of APTDC;
iii). Further, the respondents are directed to consider the case
of the petitioners on par with the Board Resolution (Item No.31) dated
17.03.2022, as well as the G.O.Ms.No.15 dated 31.01.2022 on par with
the Government Employees, within a period of eight (08) weeks from the
date of receipt of a copy of this order.
23. With the above observations, these Writ Petitions are
Allowed. There shall be no order as to costs. As a sequel,
miscellaneous applications pending, if any, shall also stand closed.
___________________________
DR.K. MANMADHA RAO, J
Date: 02.05.2023
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THE HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION Nos. 27810 AND 29918 OF 2022
Date: 02 .05.2023
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