The Managing Director vs T Satyanandam
2023 Latest Caselaw 2892 AP

                                  1




      THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                AND
          THE HON'BLE SRI JUSTICE V.SRINIVAS


WRIT APPEAL Nos.1033; 1036; 1053; 1054; 1055 of 2022

             and 174; 258; 259 and 260 of 2023


COMMON JUDGMENT: (per Hon'ble Sri Justice D.V.S.S.Somayajulu)


       These Writ Appeals are filed assailing the common order

passed in W.P.Nos.8225, 8226 and 15889 of 2022, dated

11.08.2022; and the similar orders passed in W.P.Nos.29640

of 2022; 29684 of 2022; 29942 of 2022; 30133 of 2022;

30319 of 2022; 31027 of 2022 and 30133 of 2022.



2.     With the consent of the learned Advocate General and

the    learned   counsel     appearing     for   the   respondents

W.A.No.1036 of 2022 is taken as the lead case for arguments

in these appeals.

3. This Court has heard the learned Advocate General

appearing for the State, Sri O.Manohar Reddy, learned senior

counsel and Sri P.V.A.Padmanabham, learned counsel

appearing for the respondents. In addition Sri M. Sree Rama

Rao and Sri G. Jagadeeswar supplemented the submissions.

4. W.A.No.1036 of 2022 is filed against the order of the

learned single Judge in W.P.No.8225; 8226 and 15889 of

2022. The writ Petitioners have sought identical prayers. The

prayer in W.P.No.8225 of 2022 is as follows:

".....to issue a writ, order or direction more in the nature of Writ of Mandamus holding that the impugned proceedings Rc.No.E1/754/APEWIDC/ 2020 dt.07.03.2022 of the 1st respondent is illegal, arbitrary against Art.14, 16 and 21 of the Constitution of India and is non est in the eye of law as per ordinance issued by the Government of Andhra Pradesh, it is against G.O.No.15, Finance (HR.IV FR and LR) Department dated 31.01.2022 wherein the age of Superannuation was extended from 60 to 62 years and set aside the impugned proceedings Rc.No.E1/754/ APEWIDC /2020, dt.07.03.2022 of the 1st respondent and direct the 1st respondent to continue the petitioner as Executive Engineering / Supdt. Engineer in consonance with G.O.Ms.No.15, Finance (HR.IV FR and LR) Dept. dt.31.01.2022 and to continue him upto 62 years as was done in other Corporations."

5. Similar prayers are made in other writ petitions. The

writ petitioners want a mandamus against the orders

impugned by which the petitioners' request for continuation

of service till attaining the age of 62 years was negatived.

6. The facts in W.P.No.8225 of 2022 are relied upon. The

petitioner in the said writ petition pleads that since he is

rendering service in the A.P. Education and Welfare

Infrastructure Development Corporation (for short

"APEWIDC") he is entitled to the benefit of the enhanced age

of superannuation, which is enhanced to 62 years by the A.P.

Public Employment (Regulation of Age of Superannuation) Act,

1984 (for short "the Act 23 of 1984"). This was initially done

by Ordinance No.1 of 2022, dated 17.01.2022, which later

became Act No. 4 of 2022. By this Ordinance and the Act, the

age of superannuation was increased to 62 years. The writ

petitioners claim that the same is applicable to them and the

organization they work for. Hence they have filed the writ

petitions for the reliefs mentioned above. A detailed counter

affidavit was filed by the State stating that the said ordinance

will not apply to the petitioners and others, who are

employees of APEWIDC etc., and such other organizations. It

is pointed out that the ordinance would only apply to the

State Government employees and the employees mentioned in

the Act No.23 of 1984 only. It is also urged that the Division

Bench Judgment of this combined Court reported in G. Rama

Mohan Rao and another v Government Andhra Pradesh1

has not been considered by the learned Judge. It is stated

that this judgment is an answer to all the contentions of the

writ petitioner.

7. Learned Advocate General relies upon the grounds of

Appeal and makes his submissions. The essential

submissions of the learned Advocate General can be

summarized as follows:

a) That the Act 23 of 1984 is only applicable to the special

category of employees and not to employees of the present

respondents in the writ (the APEWIDC) which is a society

established with its own service rules etc. It is also submitted

that when the age of retirement was enhanced earlier from 58

to 60 years, in view of the judgment of the Division Bench

mentioned above, all the corporations / societies were

required to secure certain approvals, Government

1 (2017) 3 ALT 1 (DB)= 2017 SCC OnLine Hyd 54

permissions and amendments to their service rules before the

age of retirement could be enhanced pursuant to the

government's decision.

b) Relying upon G.O.Ms.No.102, dated 27.06.2017,

learned Advocate General submits that pursuant to the

Division Bench order it is stipulated in paragraph 4 that

- the Board of directors / Managing Committee should take a decision to enhance the age of superannuation;

- the institution should look into their financial position

and genuineness of their need to enhance the superannuation age;

- in case of Residential Educational Societies the decision also should be taken on certain parameters; and

- lastly, the orders would come into force prospectively

from the date of issuance of orders by the competent authorities after amending relevant regulations and bye-laws.

8. Learned Advocate General, therefore, contends that

unless and until these steps are taken by the individual

employers, (whether they are societies or public sector

undertakings), the employees are not entitled to enhancement

of the superannuation age. He also points out that the

APEWIDC Employee's Service Rules were also misinterpreted

by the learned single Judge and that these rules have not yet

been amended as required under the Division Bench

judgment or the subsequent G.O. on the subject.

9. Lastly, learned Advocate General submits that the

provisions of the Act No.23 of 1984 are crystal clear and they

only apply to those government servants, who fit within the

description mentioned in Section 1 (2) of the said Act.

10. It is also pointed out that the learned single Judge did

not really appreciate these contentions and came to an abrupt

conclusion based upon the orders passed by other

corporations like A.P. Schedule Caste Finance Corporation

Ltd., A.P. Police Housing Board etc. He also submits that on

misinterpretation of the Rules 18 and 20 of the service rules,

the impugned order was passed without deciding the issues

raised in the course of the counter affidavit.

11. Learned Advocate General, therefore, submits that

unless and until the requisite permissions and decisions are

taken by each of these respective corporations, bodies etc., in

line with what is stated above, an employee is not entitled to

enhancement of superannuation age.

12. Sri O.Manohar Reddy, learned senior counsel submits

that the Act is amended raising the age to 62 and

consequently Rule 18 is also amended. He also argues that

there is merger of the Division Bench order i.e., G. Rama

Mohan Rao case (1 supra) as the SLP was disposed by the

Hon'ble Supreme Court of India in A. Veerraju and Others v

State of A.P. and Others2. He submits that the bye laws are

still showing the age as 58 but the State agreed that it is

enhanced to 60 as on date. So he submits that there is no

need to further amend the bye laws as contended. He also

urges that the function of APEWIDC is a "State" function only,

that it is fully controlled by the State and the deep pervasive

control of the State is clear. Hence, he submits that the

employees are all involved in affairs of the state only. Hence,

the Act applies as per him.

13. Sri P.V.A.Padmanabham, learned counsel appearing for

the respondent, relied upon the compendium of case law. His

primary contention is that the order of the Division Bench in

2 (2019) 17 SCC 364

G. Rama Mohan Rao case (1 supra) is now merged into the

order passed by the Hon'ble Supreme Court of India in A.

Veerraju's case (2 supra) which is an SLP filed against the

orders of the Division Bench. Thereafter, the matter was also

considered in contempt jurisdiction and the said judgment is

reported in K. Ananda Rao and Others v S.S.Rawat, IAS

and Others3. Therefore, learned counsel argues that in view

of the fact that the SLP was filed, entertained and is disposed

of, the order of the Division Bench is merged into the SLP

order. It is no longer a precedent as per him. He contends

that none of the issues raised by the learned Advocate

General merit consideration and the order of the learned

single Judge is therefore right. Alternatively, he also submits

that Act No.23 of 1984 is also applicable to the members of

the appellant, including the current respondent, since Rule

18 of the service rules clearly states that the age of

superannuation is 58 years (60 years in respect of class IV

employees) "as per" the Act 23 of 1984. Learned counsel,

therefore, submits that by incorporation the said Act has been

made applicable. Alternatively he submits that the society's

3 (2019) 13 SCC 24

rules have no statutory force and are subordinate legislation

and the order of the learned single Judge interpreting the rule

is correct. He also adopts the submissions of the other

learned counsel. The other learned counsel argued on the

same lines.

COURT:

14. This Court notices that the facts in this case are not

really in dispute. The present-respondent/writ petitioner is

an employee of appellant-APEWIDC, which is a corporation

created for the establishment of educational welfare

infrastructure (3rd respondent in Writ).

15. It is also a fact that the appellant APEWIDC has its own

service rules, which were framed in 2013. It is also a

Corporation which is included in the 9th schedule of the A.P.

Reorganization Act. The other respondents/employers are

also included in the 9th schedule of this Act.

16. The first and foremost question to be decided in this

case is about the applicability of Act No.23 of 1984, also

known as A.P. Public Employment (Regulation of age of

Superannuation) Act, 1984, to the writ petitioners. This Act

was amended initially by Ordinance No.1 of 2022 and later

the same became an Act No.4 of 2022, by which the age of

superannuation was increased to 62 years.

17. Coming to the provisions of the Act 23 of 1984 it is very

clear that it is an Act passed to regulate the age of

superannuation of persons appointed to "Public service and

posts in connection with the affairs" of the State of Andhra

Pradesh. It shall apply to the following four categories of

employees as per Section 1(2):

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 rules framed under the proviso to article 309 of the Constitution of India immediately before the commencement of this Act, other than the village officers and law officers; whether appointed before or after the commencement of this Act.

18. Government employees are defined in Section 2 (3) as

follows:

"(3) "Government employee" includes all categories of officers and employees referred to in sub-section (2) of section 1."

19. Initially, the age of retirement was fixed as 58, which

was later enhanced to 60 and it is now enhanced to 62.

20. Admittedly, the APEWIDC has been formed as a society.

It is meant to provide educational infrastructure. It is

categorically asserted that the salaries of the employees of

this Corporation are not paid out of the consolidated fund of

the State. It is also asserted that these employees are

governed by their own service rules. So the question that falls

for consideration : Whether the employees of such

corporations, societies etc., which may in a way be

discharging some governmental functions be deemed to be

persons appointed to public services and posts in connection

with the affairs of the State?

LEGAL BACKDROP TO DECIDE THIS -

21. When the State of Andhra Pradesh enhanced the age,

earlier it became the subject matter of the decision in the case

of G. Rama Mohan Rao case (1 supra). The Division Bench

noticed that the present corporation (APEWIDC) is also

included in the schedule 9. The matter was argued

threadbare before the Division Bench by a galaxy of counsels.

The Division Bench framed the following questions for

decision and held against the Writ Petitioners therein:

(1) ARE EMPLOYEES OF STATE PUBLIC SECTOR UNDERTAKINGS GOVERNED BY ACT 23 OF 1984.

(1A) CAN EMPLOYEES OF PUBLIC SECTOR UNDERTAKINGS BE SAID TO BE PERSONS APPOINTED TO PUBLIC SERVICES AND POSTS IN CONNECTION WITH THE AFFAIRS OF THE STATE.

(1B) MERELY BECAUSE PUBLIC SECTOR UNDERTAKINGS ARE INSTRUMENTALITIES OF THE STATE UNDER ARTICLE DOES NOT MAKE ITS EMPLOYEES AS GOVERNMENT SERVANTS.

22. Thereafter, after considering the submissions made the

Division Bench came to the following among other

conclusions:

"37. .... It is only if the 1984 and the 2014 State Act are held applicable to employees of public sector undertakings, can it be held that they are entitled to continue in service till they reach the age of superannuation of 60 years. As employees of public sector undertakings are not persons appointed to public services and posts in connection with the affairs of the State, they are not governed by the provisions of the 1984 Act as amended by the 2014 State Act. While it is open to the Board of Directors/Managing Committees of each of these Corporations/Companies/Societies, in accordance with the provisions of the enactment by which they are governed and the Articles of Association/bye-laws which

are applicable to them, to adopt the provisions of the 1984 Act and the 2014 State Act, and make them applicable to their employees by amending their rules and regulations, it is only thereafter can employees of these undertakings claim the right to continue in service upto the enhanced age of superannuation of 60 years.

42. 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.

44. The Companies/Corporations/Societies, listed in the IX Schedule to the 2014 Central Act, are distinct legal entities and are neither departments, nor form part, of the State Government. The Board of Directors/Managing Committees of each of these legal entities govern each of these entities subject only to the provisions of the Companies Act, the Memorandum of Association and the Articles of Association in so far as Companies/Corporations are concerned, and the bye- laws and the provisions of the Act whereunder the

Societies were constituted in so far as Societies are concerned. The control exercised by the State Government, over such Companies/Societies, is as its shareholder, and in terms of the relevant enactments and the Articles of Association of each of these Companies, and the bye-laws of each of these Societies. Neither the 1984 Act, nor the Rules made by the Government for its employees under the proviso to Article 309 of the Constitution of India, automatically apply to these Corporations/Companies/Societies.

xxx xxx

192. 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."

23. Pursuant to this decision of the Division Bench two

G.Os., were issued viz., G.O.Ms.No.112 dated 18.06.2016 and

G.O.Ms.No.102, dated 27.06.2017. In G.O. Ms.No.102, dated

27.06.2017, in paragraph 4 the following is stated:

"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 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 Committees 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."

24. Therefore, in view of this judgment and the subsequent

actions taken by the State it is clear that the procedure

stipulated in these two GOs., has to be followed in letter and

spirit and the necessary resolutions and approvals have to be

approved before the employees of these corporations, societies

etc., can claim the benefit of enhanced age of retirement.

25. The next question is - Is this judgment good law and a

precedent or has it merged into the order of the Supreme

Court of India in A. Veerraju case (2 supra)? On a close

examination of this order of the Hon'ble Supreme Court it is

noticed that the submission of the respondent therein was

that the Government had not yet given any approval for

enhancement of age upto 60 years. On the date of hearing

the counsel for the State of Andhra Pradesh produced before

the Hon'ble Supreme Court of India an order dated

09.08.2017, issued by the Government, whereby the

employees of Government companies, corporations, societies

were granted the benefit of continuation of age till they attain

60 years of age. Therefore, the following was held in

paragraph 7 and 8 by the Hon'ble Supreme Court of India:

"7. In that view of the matter, we do not think it necessary to retain these appeals in this Court any further. The stand of the Government is very clear. The Government Order dated 8-8-2017 permitting the employees to continue up to the age of 60 years has come into effect with effect from 2-6-2014. Therefore, all employees who have superannuated on account of attainment of age of 58 years on 2-6-2014 or thereafter are entitled to the protection of their service up to 60 years of age and naturally to all consequential benefits arising therefrom.

8. The appeals are, accordingly, disposed of. Pending application(s), if any, shall stand disposed of. There shall be no orders as to costs."

26. Thereafter, on 07.03.2019 the contempt petitions, which

were pending before the Hon'ble Supreme Court of India were

also dismissed. In the course of order also, the order, dated

09.08.2017, referred to above was mentioned. Since the

consequential benefits were not given and contempt

applications were moved, after considering the submissions

the contempt applications were dismissed.

27. In these circumstances, the question is - Is there a

merger of Division Bench order? Learned counsel for the

respondents submit that once the SLP is admitted; the

exercise of appellate jurisdiction is left open and hereafter, the

final order is passed. It is their contention that it is only the

judgment of the Hon'ble Supreme Court of India that will

prevail and the Division Bench judgment has merged into the

SLP order. The leading judgment reported in Kunhayammed

and others v State of Kerala and another4 relied upon and

in particular paragraphs 41 and 42 of this judgment, which

are as follows:

"41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any

4 (2000) 6 SCC 359

order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.)"

28. Therefore, it is the contention that the order of the

Division Bench is merged into the order of this Supreme

Court. Similar submissions are made by the other leading

counsels too. However, a closer reading of this finding of the

Hon'ble Supreme Court of India reveals that even if the order

is a speaking or non-speaking order, once the Hon'ble

Supreme Court feels inclined to apply its mind to the merits

of the matter and grants leave and/or dismisses the special

leave it shows the exercise of appellate jurisdiction. Therefore,

when the doors of the Supreme Court are opened and the

petition is entertained by permitting the SLP the Supreme

Court of India would look into the matter and then either

dismiss the SLP or allow the same. It is only if there is

"judicial scrutiny of the merits" of the order resulting in either

the affirmation of the order or rejection of the order, there will

be a doctrine of merger. In this case, leave was granted as

the Hon'ble Supreme court of India wanted to go into the

merits of the matter, but as it transpired during the course of

the hearing the State of Andhra Pradesh decided to grant the

enhancement of age to its employees. A government order,

dated 08.08.2017, was produced before the Hon'ble Supreme

Court of India which thereafter proceeded to record the fact

that as the State had decided to enhance the age for

retirement "we do not find it necessary to retain these appeals

in this Court any further". The appeals were, therefore,

disposed of.

29. In the humble opinion of this Court, there is no

decision on the merits of the matter. There is no appreciation

on merits by the Hon'ble Supreme Court of India leading to an

affirmation or rejection of the order impugned. But in view of

bringing the ground realities of the fact brought to the notice

of Apex Court, it might have thought, keeping the things

before the court is not necessary and making findings there in

those circumstances by closing the proceedings. Thus, the

order was that the SLPs were simply disposed of as the

Hon'ble Supreme Court of India felt that there is no need to

further look into the matter and / or to test the findings of the

Division Bench in view of the compliance of the State with the

findings.

30. In the case referred to above, the conclusions of the

Hon'ble Supreme Court of India are spelt out in paragraph

44(3) and 44 (6) and are reproduced hereunder:

44. To sum up, our conclusions are:

xxx

(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of

reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of a petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

xxx Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

31. In the case on hand the Hon'ble Supreme Court has not

reversed the order, modified the order or even affirmed the

order expressly. It did not go into the merits of the matter at

all. The SLP was disposed of noting the compliance of the

State. Neither party invited the Supreme Court to look into

the merits of the matter.

32. This Court also derives support from paras 53-55 of the

Judgment in Kaikhosrou (Chick) Kavasji Framji v. Union

of India5 which are as follows:-

"53. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go

5 (2019) 20 SCC 705

into the merits of the issues decided by the subordinate court and record finding(s) one way or another on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N. [S. Shanmugavel Nadar v. State of T.N., (2002) 8 SCC 361] ).

54. In our view, this Court while disposing of the appeals by its order dated 4-8-1998 [Union of India v. P.T. Anklesaria, (2014) 14 SCC 204, 211 (footnote 6)] , did not go into the merits of the various contentions which were decided by the High Court in its order dated 6-2-1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that Respondent 1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit.

55. Indeed, in the light of such a statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate."

33. Therefore, this Court is of the opinion that there is no

merger and the submission of learned counsels Sri Manohar

Reddy, Sri Padmanabham and others is that the order of the

Division Bench order has merged into the order of the

Supreme Court of India is not correct. In the opinion of this

Court, the order of the Division Bench continues to hold the

field. It is still good law and is a binding precedent. Unless all

the conditions stipulated therein are fulfilled the employees

are not entitled to an order of enhancement of retirement age

to 62. The writ appeals are allowed on this issue itself but for

the sake of good order the other issues urged are touched

upon briefly hereunder.

34. Even apart from all of this, this Court finds a plain

reading of the Act No.23 of 1984 makes it clear that it is

applicable only to the persons appointed to public service and

connected with the affairs of the State and to those people

whose salaries are paid out of consolidated fund. This issue

is raised in the counter also. No proof is filed to show that

this is incorrect. It is also admitted and clear that the service

rules of the employees of this Corporation or the others are

not framed under Article 309 of the Constitution of India. In

the present case it is clear that the employees have their own

service regulations. The language used in section 2 (1) of Act

23 of 1984 is very clear. Admittedly, in this case the

appointments are by the officers, who are designated in the

service rules; salaries are also paid by the corporation itself

and are not drawn out of the consolidated fund of the State.

This Section 1 (2) also contains sub clause-4 dealing with

every other officer or employee whose conditions of service are

required by rules framed under Article 309 immediately

before the commencement of this Act and whether appointed

before or after the Act. Therefore, as per this clause also

employees would come under the Act if the service conditions

are governed by the proviso to Article 309. It is clear from a

plain language interpretation that the employees of

corporations, like the present appellants, are not eligible to

claim benefits of Act 23 of 1984. They have their own service

regulations, which are not admittedly framed under Article

309. On this ground also this Court has to hold that the writ

petitioner is not entitled to the relief.

35. One another issue is raised about the Act No.23 of 1984

being "incorporated" in the service rules. Rule 18 is as

follows:

"Rule-18: Age of Superannuation:

The Age of Superannuation unless otherwise terminated or retrenched or compulsorily retired is 58 years (60 years in respect of clause-IV employees) as per A.P.

Public Employment (Regulation of Age of Superannuation) Act, 1984.

36. According to the learned counsel for the respondents,

the Act is incorporated into the service of the rules.

Therefore, the writ petitioner is entitled to the relief. On the

other hand it is contended that there is merely a reference to

the Act No.23 of 1984 and it is not incorporated.

37. The distinction between this rule and other rules is

clear. If the rules are seen in the context it is clear that there

is only a reference to certain rules and not an incorporation.

For example under Rule 12 it is stated that Rule 22 as

amended from time to time of the AP State and Subordinate

Service Rules shall be applied. Similarly Rule 15 shows Rules

32 to 36 of the AP Subordinate Service Rules shall be followed

for seniority. The A.P. Leave Rules as amended from time to

time shall apply for leave. Therefore, it is clear that all these

rules or the enactment are being referred to for a specific

purpose only. For reservation Rule 22, for seniority Rules 33

to 36, for leave A.P. Leave Rules and for age of

superannuation there is only a reference to Act No.23 of

1984. For incorporation the language used in such matters

should be clear before this Court can come to a conclusion

that it is incorporated. The language used in this Court's

opinion refers to Act 23 of 1984 but does not incorporate it.

38. As far as the Rule 20 is concerned, the learned single

Judge was of the opinion that all the State service rules are

applicable. However, a clear reading of this Rule 20 shows

that this rule will apply when there is a "deficiency and

insufficiency" and unless otherwise specified in the rules to

meet the requirements and demands, the AP Subordinate

Service Rules etc., shall apply. The application of these rules

is only for the purpose of removing and supplementing the

deficiency or insufficiency. Therefore, in the opinion of this

court Rule 20 will only be applicable if there is 'deficiency or

insufficiency' in the current rules and the need is to remove

and supplement the deficiency. Therefore, unless and until

there is a deficiency or an insufficiency the State service rules

will not apply. In fact no such pleading or argument is

advanced about a deficiency or an insufficiency in these

cases. The entire argument is about the applicability of an

amendment to the Act only.

39. The single judge referred to certain orders issued by

other corporations etc enhancing the age but the

circumstances/conditions under which those orders were

issued is not clear. If those corporations etc., had followed

the order of the D.B., sought Government approval etc., is not

borne out by record clear. Hence they cannot be used as a

precedent to be followed.

40. This Court also finds that in the counter affidavit filed

the respondent No.1 had clearly specified that they had

sought a clarification from the Government of Andhra

Pradesh, whether the enhancement of age from 60 to 62

would apply to corporations, associations, societies etc., on

14.02.2022. In the counter, it is clearly mentioned that the

writ petition is also premature till the Government takes a

decision on the matter. Even in the past it is stated that the

Government issued separate orders for corporations and the

societies for enhancement of age. Therefore, it is stated that

the petitioner's case will be considered on similar lines once

the decision of the Government was obtained. The learned

Advocate General submitted that this decision is spelt out by

the memo, dated 23.09.2022, which clearly states

G.O.Ms.No.15 is applicable to the employees, who are

described in Section 1(2) of the Act only. It is also clarified by

the Government that certain PSUs, Corporations etc., have

enhanced the age to 62 without necessary approval and

sanction and therefore, remedial action is to be taken by the

very disciplinary action against this respondent.

41. In view of all the above, this Court is of the opinion that

the orders of the learned single judge are not sustainable and

a mandamus cannot be issued in the circumstances like this

as there is no right in the writ petitioner to seek the relief.

42. These Writ Appeals are, therefore, allowed setting aside

the common order passed in W.P.Nos.8225, 8226 and 15889

of 2022, dated 11.08.2022; and also the orders passed in

W.P.Nos.29640 of 2022; 29684 of 2022; 29942 of 2022;

30133 of 2022; 30319 of 2022; 31027 of 2022 and 30133 of

2022. No order as to costs.

43. Miscellaneous Applications pending, if any, shall also

stand dismissed.

_________________________________ JUSTICE D.V.S.S.SOMAYAJULU

_______________________ JUSTICE V.SRINIVAS Date:05.05.2023 Ssv