The Andhra Pradesh Generation ... vs Mattaparthy Veera Swamy
2023 Latest Caselaw 3094 AP

                              1




      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                        and
         HON'BLE SRI JUSTICE V. SRINIVAS

                  I.A.No.1 of 2023
                         in
  WRIT APPEAL Nos.516; 517, 518, 524, 528, 529, 530,

                        532 of 2023

COMMON ORDER: (per D.V.S.S.Somayajulu, J)

      These Writ Appeals are filed against the interim orders

passed by the learned single Judges in W.P.Nos.9542 of 2023

(18.04.2023); 10136 of 2023 (21.04.2023); 10110 of 2023

(21.04.2023); 7799 of 2023 (25.04.2023); 5681 of 2023

(10.03.2023); 9619 of 2023 (19.04.2023); 9625 of 2023

(19.04.2023) and 8714 of 2023 (28.04.2023).

      2)   This Court has heard the learned Advocate

General appearing for the appellants, learned counsels Sri

Anup Koushik Karavadi, Yella Reddy Rajanala, Sri Metta

Chandra Sekhar Rao, Sri M. Chinnappa Reddy appearing for

the appellants, Sri V.S.R. Anjaneyulu, learned senior counsel

instructed by Sri Peeta Raman, argued for the respondents

in W.A.No.519; 529 and 530 of 2023, Sri Karumanchi

Indraneel Babu, Sri Srinivas Basava, Sri G. Ramgopal and

Sri Rambabu Koppineed appearing for the respondents.

3) All these writ appeals are filed against the interim

orders, which were granted by the learned single Judges

directing the respondents to continue the petitioners in

service till they attain the age of 62 years. The core issue

involved in this batch of writ petitions is about the

enhancement of retirement age from 60 to 62 years pursuant

to the Ordinance No.1 of 2022 and the G.O. issued by the

Government of Andhra Pradesh, by which the retirement age

was enhanced from 60 to 62 years. The petitioners

approached the Courts stating that in view of the said

increase in the age by the modification of the Act i.e., A.P.

Public Employment (Regulation of Age of Superannuation)

Act, 1984 (for short "the Act 23 of 1984"), the petitioners are

entitled to the interim relief. Interim reliefs were granted and

questioning the same the present writ petitioners are filed

and interim orders are obtained.

4) Learned Advocate General commenced the

arguments in W.A.No.516 of 2023. He points out that the

Writ Petitioner was superannuated on 28.02.2022 and the

Writ Petition was filed in April, 2023. The interim order was

granted after the superannuation of the writ petitioner.

According to the learned Advocate General the interim

direction was given to continue the writ petitioner till he

attain the age of 62 years. It is pointed out that by the

interim order, a final order is virtually granted. It is also

pointed out that the prayer in the writ petition is questioning

the inaction of the respondents in not sending the proposal

for enhancement of the age of the superannuation and a

direction is also sought to send the proposes to the

respondents 1 to 3 to enhance the age of superannuation

and also to extend the benefits of the age of the

superannuation to the writ petitioner without reference to

the fact that he had already received the benefits of the

superannuation. Despite this, the interim order was granted

to continue the petitioner's services till he reaches the age of

62 years. Learned Advocate General points out that in

W.A.No.517 of 2023 all the petitioners retired before filing of

the writ petition itself and the last retirement was on the

31.03.2023, yet, overlooking this fact, the order was granted

on 21.04.202 directing the respondents to continue the

employees in service. In W.A.no. 518 of 2023 it is pointed

that the petitioner is yet to retire. Learned Advocate General

submits that the learned single Judges, who passed the

orders, did not consider this vital aspect that the petitioners

had retired from the service and yet directed the restoration

of the status quo ante ignoring the very prayer of the writ

petitioners. Learned Advocate General also relies upon two

Division Bench Judgments of this Court passed in

W.A.No.1033 of 2022 and Batch and also the Division Bench

judgment reported in G. Rama Mohan Rao and another v

Government Andhra Pradesh1. It is pointed that the law

on the subject was totally ignored by the learned single

Judges. The Division Bench in G. Rama Mohan Rao (1

supra) exhaustively dealt with the matter and that the

earlier age was enhanced from 58 to 60 years and clearly

held that the said enhancement is applicable only to

Government servants whose salaries are paid out of the

consolidated fund and as far as the Corporations, companies

and other societies are concerned they have to amend the

rules and regulations and byelaws, secure the permission of

the government and thereafter if the rules and byelaws are

amended in accordance with law the employees would be

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

governed by the enhanced aged, which was followed by the

Division Bench Judgment. With regard to the submissions

made that the appellants should file a vacate stay instead of

Writ Appeal, learned Advocate General relies upon the

judgments in State of Election Commission v State of A.P.

and Others2; Midnapore Peoples' Coop.Bank Ltd., and

Others v Chunilal Nanda and Others3 Assistant

Collector of Central Excise, Chandan Nagar, West

Bengal v Dunlop India Ltd., and Others4 and State of

Rajasthan and others v M/s Swaika Properties and

another5 to argue that clause 15 of the letters of patent does

not bar this appeal as the interim orders granted is virtually

final order and that the Hon'ble Supreme Court of India had

clearly held against granting of interim order which virtually

granted the final order.

5) Similar arguments were also advanced by Sri

Anup Koushik Karavadi in W.A.No.524 of 2023. In

W.A.No.528 of 2023 learned standing counsel submits that

the institution is an autonomous institution, governed by

(2021) 1 ALT 392

(2006) 5 SCC 399

(1985) 1 SCC 260

(1985) 3 SCC 217

their own rules and he adopts the arguments of the other

counsels.

6) Sri V.S.R. Anjaneyulu, learned senior counsel

argues that this Court should not interfere with an interim

order; that the parties should argue the matter on merits

before the learned single Judges; that there is no urgency for

vacating the order; that Aziz Ahmed Khan v. I.A. Patel6,

applies to the case and that this impugned order is not a

judgment.

7) Sri K.Indraneel Babu, learned counsel for the

respondent also argued and stated that the balance of

convenience is in favour of the writ petitioners and they

would attain the age of 62 years by the time the Writ Petition

is disposed of. Therefore, he submits that they should be

allowed to continue. It is also submitted that the appellants

have to file the vacate petition as it is not a final order and by

entering into the merits of the matter this Court is taking

away the jurisdiction of the learned single Judge. Sri Peeta

Raman, also advanced similar arguments and also submits

that the Government had to take a decision on the matter.

AIR 1974 AP 1

Therefore, if the Court at this stage vacates the interim order

it would cause irreparable loss to the writ petitioners. He

submits that the correctness of the order has to be decided

on merits and the appellants should appear before the

learned single Judge.

8) Sri V. Ramgopal, learned counsel appearing for

the respondent in W.A.No.528 of 2023 argues that University

had initially passed a resolution enhancing the age, which

was based upon the Board of Management services decision

and this was purportedly withdrawn by the Registrar. It is

his contention that once the decision has been taken by the

Board of Management to enhance the age, the same cannot

be reversed by the Registrar by his unilateral action. He also

adopts the arguments of the learned senior counsel and his

predecessors.

9) On behalf of Sri Rambabu Koppineedi, learned

counsel in W.A.No.532 of 2023 it is argued that the Act 23 of

1984 applies to the writ petitioners and that they are

governed by the rules framed under Article 309. Therefore, it

is submitted that the amendments are applicable It is also

argued that the A.P. State Council of Higher Education has

given an detailed report, which is pending decision before the

State.

10) Similar arguments are advanced by the other

learned counsels.

COURT:

11) This Court had earlier also considered the issue

raised in other matters, but in the present matter more

detailed arguments are advanced.

12) At the outset, this court notices that the writ

petitioners, in many of the cases, have retired from the

services prior to filing of the writ petitions itself. Yet an order

was granted directing that their services be continued. As

pointed out by the learned Advocate General in W.A.No.506

of 2022 the prayer is to direct the respondent to continue the

petitioners in service, ignoring the fact that he has already

received superannuation benefits. In W.A.No.517 of 2023

there are large number of respondents/writ petitioners, most

of them have retired by 30.03.2023 and the Writ Petition

No.10136 of 2023 was filed on 19.04.2023. In the opinion of

this court, this vital fact has been overlooked by the learned

single Judge in passing the orders.

13) The interim order that is granted in all the cases

is virtually a final order. This practice has been deprecated

in more than one judgment by the Hon'ble Supreme Court of

India. The case laws cited in M/s Swaika Properties case

(5 supra) and Dunlop India case (4 supra) clearly point out

that the Hon'ble Supreme Court of India was extremely

unhappy with these sort of orders.

14) The issue of balance of convenience has also been

overlooked. If the writ petitioners, who have retired from

services are found to be eligible, at the end of the day to

retire at the age of 62 years they can be granted appropriate

monetary relief and other benefits that arise from the said

order. On the other hand if they lose the case it will be a

situation, where an employer is forced to employ people, who

are not qualified to remain in service. Public interest is also

affected. Balance of convenience lies in favour of the State

and there is no risk of irreparable loss to the writ petitioners

since adequate monetary and other relief can be given. Even

on the issue of prima facie case the important aspect that

majority of the writ petitioners have superannuated is

overlooked.

15) In view of the law laid down in Midnapore case

(3 supra) and the State Election Commission case (2

supra) and the case of Purshottam Vishandas Raheja (6

supra), this Court is of the opinion that the Writ Appeal is

correctly filed and since the orders passed are contrary to

law and have overlooked certain vital facts, this Court must

and should interfere.

16) The last issue that arises is maintainability of the

appeal itself. Learned senior counsel for the respondents

argued that the appellant should have filed a vacate stay

petition and that since it is only an interim order, this Court

cannot entertain the Writ Appeal itself. Learned Advocate

General has cited the case of leading judgment of Midnapore

case (3 supra) where the Hon'ble Supreme Court of India

held that interim orders fall into various categories. This is

found in paragraph 15 of the judgment.

17) Relying upon the Division Bench Judgment in

State Election commission case (2 supra) it is argued that

this is virtually a final order. In paragraph 41 of the said

judgment it is held as follows:

"41. We are in agreement with the submission of the learned Senior Counsel for the appellant that the interim order is not a routine order passed in the writ petition to facilitate the progress of the case till its culmination in the final decision and that it has the effect of granting final relief as prayed for in the writ petition without the matter being tested on merits and without determining the rights and obligations of the parties. The interim order has also affected vital and valuable right of the State Election Commission to carry out the constitutional requirement of holding election to the local panchayats. In that view of the matter, we are of the considered opinion that the interim order passed by the learned Single Judge falls within the meaning of the word "judgment" and, therefore, this appeal is maintainable."

18) This Court after examining the interim orders

passed and circumstances in which they are passed has to

agree with what is stated by the learned Advocate General.

The order passed in this case is not an interim order to

facilitate the progress of the case nor is it an order which

may cause some inconvenience or prejudice to the State

without finally determining the rights. As mentioned earlier,

this Court is of the opinion that the impugned orders passed

virtually decided that the writ petitioners are entitled to

continue in service till they attain the age of 62 years.

Therefore, this Court holds that the Writ Appeals are

maintainable.

19) This Court also notices that the interim orders

were passed without considering the two Division Bench

judgments on the subject and are thus contrary to the

judgment in Purushottam Vishandas Raheja v Shrichand

Vishandas Raheja7 the following was stated:

"29. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered with at an interlocutory stage in an intra-court appeal.

xxx

31. A Bench of three Judges of this Court laid down the law in this behalf in para 14 of the judgment which is as follows: (Wander Ltd. Case [1990 Supp SCC 727], SCC p.733)

14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions."

(2011) 6 SCC 73

20) Accordingly, there shall be an interim stay of the

impugned interim orders passed in I.A.No.1 of 2023 in

W.P.Nos.9542 of 2023 (18.04.2023); 10136 of 2023

(21.04.2023); 10110 of 2023 (21.04.2023); 7799 of 2023

(25.04.2023); 5681 of 2023 (10.03.2023); 9619 of 2023

(19.04.2023); 9625 of 2023 (19.04.2023) and 8714 of 2023

(28.04.2023).

__________________________ D.V.S.S.SOMAYAJULU, J

________________ V. SRINIVAS, J Date:12.05.2023.

Ssv