Maddali Chandra Sekhar Kumar vs The State Of Andhra Pradesh
2023 Latest Caselaw 3978 AP

                                   1




             HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                  And
 HON'BLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO


                           I.A.No.1 of 2023
                                  in
               W.P.Nos.20756 and 20768 of 2023

COMMON ORDER: (Per Hon'ble Sri Justice D.V.S.S.Somayajulu)

       This Court has heard Sri Seetarama Chaparla, learned

counsel, as instructed by Sri K. Gani Reddy, learned counsel

for    the   petitioners    and   Sri    Sumon,     learned    special

Government Pleader appearing for the respondents.

2) These two cases also relate to the issue of age of

superannuation and the consequential amendment of the

Andhra Pradesh Public Employment (Regulation of Age of

Superannuation) Act, 1984. The crux of the submissions

made by the learned counsel for the petitioners is that the

writ petitioners are working for the Andhra Pradesh

Technology Services Ltd., (for short "APTS"), which has

framed its own staff regulations with the prior approval of the

Government. He relies upon the Rule 14, which states that

the provisions contained in the Fundamental Rules as

amended from time to time, applicable to the A.P. State

Government Employees shall apply to the APTS including the

provisions of the Act 23 of 1984. Therefore, learned counsel

contends that the amendment is mutatis mutandis applicable

to the employees of the 4th respondent like the petitioners. He

also points out that the Board of Directors had passed a

resolution on 21.04.2022 enhancing the age of

superannuation. Therefore, it is his contention that the

petitioners are entitled to an interim order as prayed for.

3) In reply, Sri Sumon, learned Special Government

Pleader submits that the petitioners are not entitled to any

order and that this Court in the course of an order passed in

the Division Bench while hearing the W.A.No.1033 of 2022

and batch has clearly considered a similar case and has come

to a conclusion that unless the procedural formalities are

followed and the government approves the same, the benefit

of enhanced age cannot be given. He also submits that the

judgment of the Division Bench in G. Rammohan Rao v

Government of Andhra Pradesh1 squarely applies to the

facts of the case and that unless and until the approval is

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obtained from the Government and the regulations are

amended etc., enhancement cannot be granted. He, therefore,

submits that the petitioners have no case and balance of

convenience is in their favour.

4) This Court after hearing the submissions notices the

following -

5) It is a fact that the rule provides for the application of

the Act 23 of 1984 (Regulation of Superannuation Act) to the

3rd respondent APTS. However, the fact remains that after the

Board of Directors decided to enhance the age a proposal was

sent to the Government for its approval. This is visible from a

reading of the minutes of the meeting, whereunder it is clearly

mentioned that the proposal is being sent to the Government

for its approval. According to Sri Sumon, a further resolution

was passed by the Directors by way of circulation on

10.08.2013, wherein he says four Directors have given assent

to negative the enhancement of the age. This is disputed by

Sri Seetaram Chaparla, who states that only three Directors

signed on the document confirming their assent. This is,

therefore, debatable.

6) Apart from this the document filed by the writ petitioner

in W.P.No.20756 of 2023 shows that the proposal was sent to

the Government for approval. It is in the Writ Petitioners'

knowledge too. The letter dated 17.04.2023 addressed by the

writ petitioner in W.P.No.20756 of 2023 is filed as a material

document and para 3 bears this out.

7) The judgment that is of value and importance is the

case of G. Rammohan Rao case, (1 supra). This matter was

decided when the age was enhanced from 58 to 60 for the

State employees. In the course of this order the Division

Bench clearly held that the amendment of the enhancement

of age is only applicable to the Government servants per se

whose salaries are being paid out of contingent funds etc. In

addition, in paragraphs 173, 174 of this judgment similar

issue was discussed and finally it is held in paragraph 182

and 184 that the State is required to take a decision on the

proposal submitted with respect to each of the legal entities

on merits of each proposal and that no mandamus can be

granted to the entity to enhance the age. In para 183 it is

also clarified that the decision of the Board of Directors is

tentative and not final. It is subject to the proposal is being

accepted by the State Government. Finally in para 190 it is

clarified that if the request is made by the company for

amendment of the bye laws and rules is approved by the State

Government and the rules are amended thereafter in

accordance with law the employees would be governed by the

enhanced age.

8) In the light of these clear findings of the Division Bench,

which have been followed in the subsequent judgments

passed by this Bench also, this Court is of the opinion that

the writ petitioners are not entitled to an interim order at this

stage.

9) The issue of balance of convenience is also an important

issue. The employer who is now circulating the Board of

Directors' resolution negativing the earlier resolution will be

compelled to keep on its rolls an employee, who technically

attained the age of superannuation. If the Board resolution is

passed rejecting the enhancement proposals, the respondent

company by virtue of interim order would be compelled to

keep on its rolls an employee who otherwise is not technically

qualified to be on the rolls. If the employee, on the other

hand succeeds he will be entitled to get all the benefits that

arise out of the enhancement of age. Therefore, in the opinion

of this Court the balance of convenience is in favour of the

respondent organization only and not in the petitioners'

favour. The alternative request of the learned counsel for the

petitioners for keeping the writ petitioners in the employment

till the State Government formally approves the request is

also negatived on the ground that the balance of convenience

is against them. The Division Bench judgment is also not in

their favour. The Board of Directors' resolution has to be

approved and thereafter the regulations have to be modified in

line with the approval before any benefit can be passed on.

Therefore, the interim application filed with a request for an

interim order is rejected.

10) Accordingly, I.A.No.1 of 2023 in both these Writ

Petitions is dismissed. No costs.

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

________________________________________________ VENUTHURUMALLI GOPALA KRISHNA RAO, J

Date :01.09.2023 Ssv