S Bhaskar Naidu vs The State Of Ap
2023 Latest Caselaw 5014 AP

        HONOURABLE SMT. JUSTICE V.SUJATHA

WRIT PETITION Nos. 7329, 7827, 19779, and 20906 of
                      2023
COMMON ORDER:

      All these petitions are filed claiming same relief by

different petitioners, but the issue involved in these petitions is

one and the same. Therefore, I am of the view that it is

appropriate to decide all the petitions by common order taking

Writ Petition No.7329 of 2023 as leading petition.

      W.P. No.7329 of 2023 came to be filed under Article 226

of the Constitution of India seeking the following relief:-

         "....to issue a writ, order or orders more particularly one
         in the nature of Writ of Mandamus declaring the action
         of the 4th   Respondent in issuing in Rc.No.16/Ser. 1-

B/2019 dated 14.06.2022 to be to retire on 31.03.2023 on attaining the age of Superannuation i.e. 60 years as on 31.03.2023 and 2nd Petitioner to be retire on 30.6.2023 in pursuance of the Cir.Memo No.1813129/FIN01-HR/212/2022-HR-IV dated 23.09.2022 issued by the 1st Respondent being illegal, arbitrary and violation of Article 14, 21 and 309 of the Constitution of India, contrary to the Order of this in W.P.No.31714/2022 dated 28.09.2022 and consequently direct the Respondents to continue the 1st Petitioner under 5th respondent as Part-Time Lecturer Commerce and 2nd Petitioner under 6th respondent as Part-Time Lecturer in Economics till he attains the age of 62 years by setting aside the proceedings of the 4th

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Respondent in Rc.No. 16/Ser.1-B/2019 dated 14.06.2022 and pass..."

The brief facts of the case are that petitioner No.1 has

been working as part-time lecturer in Commerce in different

Government Degree Colleges from 02.09.1992, petitioner No.2

has been working as part-time lecturer in Economics in

different Government degree colleges from 05.07.1991. While

things stood thus, respondent No.3 issued proceedings

Rc.No.16/Ser.1-B/2019 dated 14.06.2022 permitting petitioner

No.1 to retire on 31.03.2023 and petitioner No.2 to retire on

30.06.2023 on attaining the age of superannuation i.e. 60

years even though the Government of Andhra Pradesh took a

decision to enhance the age of the employees working in the

State of Andhra Pradesh from 60 to 62 years vide G.O.Ms.No.15

dated 31.01.2022. The Government by amending the Andhra

Pradesh Public Employment (Regulation of Age of

Superannuation) (Amendment) Act, 2022 enhanced the age of

superannuation to its employees. The said amendment came

into force on 01.01.2022 and all the Government Employees

were allowed to work even though they crossed 60 years of age

in view of the above said amendment.

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It is further submitted that earlier the Government issued

G.O.Ms.No.26 dated 19.02.2019 enhancing the age of

superannuation from 58 years to 60 years to NMRs/Daily

Wage/Full Time/Part Time/Contingent Employees joined before

the cut-off date i.e. 25.11.1993. The Government has taken

decision for extension of the age of superannuation from 60

years to 62 years for Zilla Grandhalaya Samsthas Employees

vide Memo No.1681611/Services-I/A2/2022 dated 15.12.2022.

However, the same benefit is not extended to part-time

employees, therefore, the action of the Government is illegal and

violation of fundamental rights under the Constitution of India.

It is further contended that when the Government issued

orders enhancing the age of superannuation of Government

Servants from 60 years to 62 years, the petitioners, who are

discharging duties similar to the regular employees, are also

entitled for enhancement of age of superannuation from 60

years to 62 years. Further, the petitioners are working in

Government Degree Colleges as part-time lecturers from 1991

and 1992 onwards, they are entitled for the same benefit

extended to Government Employees vide G.O.Ms.No.15 dated

31.01.2022.

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When the writ petition came up for admission on

24.03.2023, this Court passed the following interim order.

"..............Therefore, there shall be an interim suspension of the operation of the impugned proceedings vide Rc.No.16/Ser.1-B/2019, dated 14.06.2022, issued by the 4th respondent, and the respondents are further directed to reinstate and continue the petitioners into service till they attain the age of superannuation of 62 years."

Respondent Nos.3 and 4 filed counter along with vacate

stay petition contending that the Government vide Memo

No.1186442/CE/A1/2020 dated 08.06.2022 accorded

permission to continue the services of 36 part time lecturers

working in various Government Degree colleges in the state for

the academic year 2022-2023. Subsequently, another

proceedings were also issued on the same date with a list of

same 36 candidates, vide proceedings Pr.Rc.No.16/SER-

1B/2019 dated 14.06.2022 informing them to follow the

instructions issued in Government Memo No.EHE01-

CCEORULS(EIR)/2/2019-CE, Higher Education department

dated 25.07.2019 (whereby the age of superannuation was

enhanced from 58 to 60 years) communicated in CCE's

Pr.Rc.No.16/Ser-II/2019 dated 14.08.2019 read with

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G.O.Ms.No.26 Finance (HR.Plg&Policy) Department dated

19.02.2019 scrupulously.

It is further contended that the Government vide

G.O.Ms.No.15 Finance (HR.IV-FR&LR) Department dated

31.01.2022 issued amendment to the A.P. Public Employment

(Regulation of age of superannuation) Act, 1984, by which the

age of superannuation was enhanced from 60 years to 62 years

and the said orders came into force from 01.01.2022. Therefore,

all the teaching and non-teaching staff working in Government

Degree Colleges in the State are continued in service beyond 60

years. The said orders are applicable to the regular Government

employees only and they are not applicable to part-time

lecturers working in Government Degree Colleges as they were

engaged on part-time basis with consolidated pay and their

services will be terminated after completion of the academic

year.

It is further contended that earlier the Government in

Ordinance No.13 of 2022 dated 29.11.2022 have issued

amendment to sub-section (2) of A.P. Education Act, 1982 as

per which the age of superannuation of teaching and

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non-teaching staff working in private aided degree colleges is

enhanced from 60 years to 62 years. The said ordinance is

applicable to the regular government employees only. The said

ordinance is not applicable to the petitioners as they are

working as part-time lecturers. Further, the Government has

not extended the benefit of G.O.Ms.No.15 Finance (HR.IV-FR &

LR) Department dated 31.01.2022 to the NMRs/Daily

Wage/Full time/Part time/Contingent employees those who are

joined before the cut-off date i.e. 25.11.1993 and working in the

State till date. The petitioners cannot avail the benefit of

enhancement of age of superannuation contrary to the Act 1 of

1984, requested to dismiss the writ petitions.

Learned counsel for the petitioners would contend that

the petitioners are working as part-time lecturers in different

Government Degree Colleges for longtime. The Government by

amending the Andhra Pradesh Public Employment (Regulation

of Age of Superannuation) (Amendment) Act, 2022 enhanced

the age of superannuation to its employees from 60 years to 62

years vide G.O.Ms.No.15 dated 31.01.2022. The said

amendment came into force from 01.01.2022 and all the

Government Employees were allowed to work even though they

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crossed 60 years of age in view of the above said amendment.

Earlier the Government issued G.O.Ms.No.26 dated 19.02.2019

enhancing the age of superannuation from 58 years to 60 years

to NMRs/Daily Wage/Full Time/Part Time/Contingent

Employees joined before the cut-off date i.e. 25.11.1993. The

Government has taken decision for extension of the age of

superannuation from 60 years to 62 years for Zilla Grandhalaya

Samsthas Employees vide Memo No.1681611/Services-

I/A2/2022 dated 15.12.2022. However, the same benefit is not

extended to part-time employees, therefore, the action of the

Government is illegal and violation of fundamental rights under

the Constitution of India.

Learned counsel for the respondents would contend that

the Government vide G.O.Ms.No.15 Finance (HR.IV-FR&LR)

Department dated 31.01.2022 issued amendment to the A.P.

Public Employment (Regulation of age of superannuation) Act,

1984, by which the age of superannuation was enhanced from

60 years to 62 years and the said orders came into force from

01.01.2022. Therefore, all the teaching and non-teaching staff

working in Government Degree Colleges in the State are

continued in service beyond 60 years. The said orders are

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applicable to the regular Government employees only and they

are not applicable to part-time lecturers working in Government

Degree Colleges as they were engaged on part-time basis. Till

date, the State has not extended the benefit of G.O.Ms.No.15

dated 31.01.2022 to the NMRs/Daily Wage/Full time/part

time/contingent employees, requested to dismiss the writ

petitions.

Learned counsel for the respondents would further

submit that, in "The Managing Director vs. C.Chandrasekhar

Reddy (W.A.No.1033 of 2022 and batch, dated 05.05.2023)", the

Division Bench of this Court upheld the contention of the

Corporation therein while setting aside the impugned order of

the learned Single Judge, where the age of superannuation was

enhanced from 60 to 62 years. The service of the petitioners

cannot be equated with the services of the State Government

employees and Act No.4 of 2022 is not at all applicable to the

petitioners herein, requested to dismiss the writ petitions.

Admittedly, petitioner No.1 has been working as part-time

lecturer in Commerce in different Government Degree Colleges

from 02.09.1992, petitioner No.2 has been working as part-time

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lecturer in Economics in different Government degree colleges

from 05.07.1991. Earlier the Government issued G.O.Ms.No.26

dated 19.02.2019 enhancing the age of superannuation from 58

years to 60 years to NMRs/Daily Wage/Full Time/Part

Time/Contingent Employees joined before the cut-off date i.e.

25.11.1993.

Government vide G.O.Ms.No.15 Finance (HR.IV-FR&LR)

Department dated 31.01.2022 issued amendment to the A.P.

Public Employment (Regulation of age of superannuation) Act,

1984, by which the age of superannuation was enhanced from

60 years to 62 years and the said orders came into force from

01.01.2022. Therefore, all the regular teaching and non-

teaching staff working in Government Degree Colleges in the

State are continued in service beyond 60 years.

        Further,             State            Government          issued

Cir.Memo.No.1813129/FIN01-HR/212/2022-HR-IV                        dated

23.09.2022, wherein it is observed that certain Government

PSUs/ Corporations / Institutions/ Companies/ Societies

including Educational Institutions/Non-teaching staff of the

Universities have issued orders extending the age of

superannuation from 60 to 62 years, without having the

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necessary competency and clarified that the order issued vide

G.O.Ms.No.15, Finance (HR IV - FR&LR) Department, dated

31.01.2022 read with the Andhra Pradesh Public Employment

(Regulation of Age of Superannuation) (Amendment) Act, 2022

(Act 4 of 2022) are applicable in respect of no other category of

employee except the following:

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.

Later, the Government has taken decision for extension of

the age of superannuation from 60 years to 62 years for Zilla

Grandhalaya Samsthas Employees vide Memo

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No.1681611/Services-I/A2/2022 dated 15.12.2022. However,

the same benefit is not extended to part-time employees.

In "The Managing Director vs. C.Chandrasekhar Reddy

(referred supra)" it is held as follows:

"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 13 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

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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 byelaws and the provisions of the Act whereunder the 14 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 petitioner 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 15 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

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their need and assessment of performance of these societies."

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.

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."

In "The Managing Director Vs. C.Chandrasekhar

Reddy, (referred supra) the Division Bench of this Court had set

aside the orders of the learned Single Judge on the ground that

writ of Mandamus cannot be issued in the circumstances of this

nature, as there is no right to the writ petitioners to seek

enhancement of age of superannuation from 60 to 62 years.

The Government issued clarification vide

Cir.Memo.No.1813129/FIN01-HR/212/2022-HR-IV dated

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23.09.2022 clarifying that the enhancement of retirement age

from 60 to 62 years issued vide G.O.Ms.No.15 dated 31.01.2022

is only for the Government employees and not for other

employees working in the Government colleges etc.

Admittedly, the petitioners are part-time lecturers. They

cannot be treated as regular Government Employees.

G.O.Ms.No.15 dated 31.01.2022 is applicable to the regular

Government employees only as the same was clarified by the

Government by issuing Cir.Memo.No.1813129/FIN01-

HR/212/2022-HR-IV dated 23.09.2022. Till today, the

Government has not issued any order extending the

superannuation age of the part-time lecturers from 60 to 62

years. Moreover, the petitioners have not filed any document to

show that their salaries are being paid out of the consolidated

fund of the State and they are also entitled for the benefit given

by the State Government to its employees vide G.O.Ms.No.15

dated 31.01.2022.

Hence, in view of the clarification issued by the

Government vide Cir.Memo.No.1813129/FIN01-HR/212/2022-

HR-IV dated 23.09.2022 and following the judgment of the

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Hon'ble Division Bench of this Court in "The Managing

Director vs. C.Chandrasekhar Reddy, (referred supra)" it is for

the respondents to take a policy decision in respect of

enhancement of age of superannuation from 60 to 62 years to

the petitioners on par with the employees of State Government.

In view of my aforesaid discussion, the writ petitions are

liable to be dismissed.

In the result, the writ petitions are dismissed. There shall

be no order as to costs.

In view of the dismissal of the main writ petitions, the

interim order, if any, passed in the writ petitions shall stand

vacated.

Consequently, miscellaneous petitions, if any, pending in

these writ petitions shall stand closed.

______________________ JUSTICE V.SUJATHA

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