Andhra Pradesh High Court - Amravati
Bodaballa Suryanarayana vs Andhra Pradesh Housing Board on 10 September, 2024
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION Nos.22682 of 2023 and 5320, 6875, 7548, 13018 &
15859 of 2024
WRIT PETITION No.22682 of 2023
Between:
D.S.N.Swamy
... Petitioners.
AND
THE STATE OF ANDHRA PRADESH AND OTHERS
... Respondents.
WRIT PETITION No.5320 of 2024
Between:
S.JAYALAKSHMI AND OTHERS
... Petitioners.
AND
THE STATE OF ANDHRA PRADESH AND OTHERS
... Respondents.
WRIT PETITION No.6875 of 2024
Between:
SMT. THIRUMALASETTY MADHAVI OTHERS
... Petitioners.
AND
THE STATE OF ANDHRA PRADESH AND OTHERS
... Respondents.
Page 2 of 25
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WRIT PETITION No.7548 of 2024
Between:
ABDUL HAFIZ
... Petitioners.
AND
THE STATE OF ANDHRA PRADESH AND OTHERS
... Respondents.
WRIT PETITION No.13018 of 2024
Between:
T SIVAIAH
... Petitioners.
AND
THE STATE OF ANDHRA PRADESH AND OTHERS
... Respondents.
WRIT PETITION No.15859 of 2024
Between:
PARIMI HANUMANTHA RAO
... Petitioners.
AND
THE STATE OF ANDHRA PRADESH AND OTHERS
... Respondents.
Counsel for the petitioners : Sri P.Bala Murali Krishna
Counsel for respondents : Sri Y.V.Srinivasan,
Standing Counsel
Page 3 of 25
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COMMON ORDER
Since the issue involved in all the writ petitions is the same, this
Court feels it appropriate to dispose of them through this common
order.
2. Petitioners, employees of the A.P. Housing Board, filed these
writ petitions to declare the inaction on the part of respondents in
enhancing the age of superannuation from 60 years to 62 years in
terms of G.O.Ms.No.15 dated 31.01.2022 issued by 1st respondent;
Memo No.AP Ordinance.01/B6/APHB/2022 dated 27.09.2022 issued
by 2nd respondent and the clarification given by the 3rd respondent vide
Circular Memo No.1813129/FIN01-HR/212/2022-HR-IV dated
23.09.2022, as arbitrary, self-contradictory and violative of Articles 14,
16, 21 and 23 of the Constitution of India and consequently direct the
respondents to enhance the age of superannuation of petitioners from
60 years to 62 years.
3. a) Succinctly, the averments in the affidavit, are that the
petitioners, employees of the A.P. Housing Board in different
categories are due to retirement on attaining the age of
superannuation of 60 years. Government issued G.O.Ms.No.15 dated
31.01.2022 enhancing the age of superannuation from 60 to 62 years.
The Board in its 544th meeting resolved to extend the age of
superannuation to its employees from 60 to 62 years. The 1st
respondent issued Circular Memo No.02/Estt/BM/2022 dated
26.04.2022 with certain conditions.
b) Be that as it may, the Government issued Circular Memo
No.1813129/FIN01-HR/212/2022-HR-IV dated 23.09.2022. Based on
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the memo, the 2nd respondent issued a Memo No.AP
Ordinance.01/B6/APHB/2022 dated 27.09.2022 directing all the
Executing Engineers to retire the employees of the A.P. Housing
Board who are continuing beyond 60 years in the service with
immediate effect. Accordingly, all the petitioners are sought to be
superannuated. Hence, these writ petitions came to be filed.
4. A counter affidavit was filed on behalf of respondents 1 and 2. It
was contended, inter alia, that the Government has taken the policy
decision to enhance the age of superannuation of Government
servants from 60 years to 62 years and the employees of the A.P.
Housing Board have no legally enforceable right to seek
enhancement. The claim of the petitioners to enhance the age of
superannuation by relying upon G.O.Ms.No.15 dated 31.01.2022
cannot be extended to the petitioners given the clarification issued by
the Government vide Circular Memo No.1813129/FIN01-HR/212/2022-
HR-IV dated 23.09.2022. The circular memo dated 23.09.2022 issued
by the Government binds the A.P. Housing Board. Section 79 of the
Andhra Pradesh Housing Board Act, 1956 (for short "Act 1956"), gives
power to the Government to give directions to the Board and the Board
normally should comply with the directions. The issue involved in these
writ petitions is squarely covered by the order of the Division Bench in
W.A.No.1033 of 2022 & batch and eventually prayed to dismiss the
writ petitions.
5. Heard the learned counsel for petitioners, Sri Y.V.Srinivasan,
learned standing counsel for respondents 1 & 2, and learned Assistant
Government Pleader for Services for respondents 3 & 4.
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6. Learned counsel for petitioners while reiterating the averments
in the affidavits, would contend that when the resolution passed by the
Board is pending before the Government for consideration. The 2nd
respondent ought not to have issued the Memo dated 27.09.2022
directing the Executive Engineers to retire the employees working
beyond 60 years. He would also submit that since the Board already
passed a resolution dated 13.04.2022, getting approval from the
Government is nominal and the approval from the Government is
required when there is chaos of financial problems. Learned counsel
placed reliance upon the order of the Division Bench of the composite
High Court of Andhra Pradesh in W.P.Nos.26495 and 26926 of 2015
dated 25.08.2024.
7. Learned standing counsel for respondents 1 & 2 and learned
Assistant Government Pleader for Services for respondents 3 & 4
would submit that so far the Government has not taken any decision in
pursuance of Board Resolution dated 13.04.2022. Learned standing
counsel would submit that a Circular Memo dated 23.09.2022 was
issued by the 3rd respondent clarifying the applicability of
G.O.Ms.No.15 dated 31.01.2022 binds the A.P. Housing Board. He
would also submit that Section 16 of the Act 1956 will not help the
petitioners in getting relief.
8. Now, the point for consideration is:
Are the petitioners entitled to claim benefits under
G.O.Ms.No.15 Finance (HR.IV-FR&LR) Department
dated 31.01.2022 qua the enhancement of age of
superannuation from 60 years to 62 years?
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9. The A.P. Housing Board is a creature of a statute i.e. the A.P.
Housing Board Act, 1956. It was incorporated in terms of section 3 of
the Act 1956. Section 4 deals with the Constitution of the Board.
Section 16 prescribes, the provisions of Services Rules, for the time
being in force, in the State, be made applicable unless and otherwise
provided in the Act or prescribed thereunder, relating to salaries,
leave, pensions, traveling allowance, retirements, and all service
conditions etc. shall apply to the Officers and servants of the Board
appointed under Section 17. As per section 79 of the Act, the
Government may give the Board such directions as in its opinion
necessary or expedient for carrying out the purposes of this Act, after
allowing the Board to State its objections, if any, to such directions and
after considering the said objections. It shall be the duty of the Board
to comply with such directions. The Government also got powers to
call for records and examine any case pending before or disposed of
by the Board. The A.P. Housing Board is one of the public sector
undertakings. As per Schedule IX of the A.P. Reorganisation Act,
2014, A.P. Housing Board is at entry No.14.
10. The State of Andhra Pradesh amended the Andhra Pradesh
Public Employment (Regulation of Age of Superannuation) Act, 1984
by Act 4 of 2022 regarding the age of superannuation. Initially,
Ordinance No.1 of 2022 was issued and later the same became Act 4
of 2022 by which, the age of superannuation is enhanced for
Government servants. Before the Act was amended in pursuance of
the ordinance, G.O.Ms.No.15 dated 31.01.2022 was issued. By
amendment, Act 4 of 2022, Section 3A of the principal Act was
amended and the words "60 years", is substituted by the words "62
years".
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11. When the Superannuation Act was amended enhancing the age
of superannuation from 58 years to 60 years, it became the subject
matter of decision in G.Rama Mohan Rao and another Vs.
Government of Andhra Pradesh and Another1. A batch of writ
petitions was filed by the employees of different
Corporations/Companies/Societies/Institutions, listed in the IX and X
Schedule of the A.P. Reorganisation Act, 2014, claiming the benefit of
extending of age of superannuation from 58 years to 60 years. The
matter was argued sumptuously, and the Division disposed of batch
writ petitions. The learned Division Bench considered various
intricacies and finally held that since the recommendations are before
the Government, the Government is directed to consider the same.
Issues (a), (1a) and (1b) are relevant for present discussion.
(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 GOVERNMENT
SERVANTS.
2017 (6) ALD 103 (DB) = 2017 SCC OnLine Hyd 54
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12. The Division Bench after considering the respective submissions
made the following observations:
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.
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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.
13. Thus, the Division Bench held that the State Government is
obligated to consider the request of corporations/companies/societies
separately, based on their financial position, the genuineness of their
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need to enhance the age of superannuation, and then take a decision
whether or not their request, qua the enhancement of age of
superannuation.
14. Against the Judgment of the Division Bench, the matter was
carried to the Apex Court in A.Veerraju and others Vs. State of
Andhra Pradesh and others2. When the issue was pending before
the Hon'ble Apex Court, the Government issued G.O.Ms.No.112
Finance (HR.IV-FR) Department dated 18.06.2016 and
G.O.Ms.No.102 Finance (HR.IV-FR) Department dated 27.06.2017,
enhancing the age of superannuation of employees working in the
Institutions included in IX and X schedules subject to certain
conditions. In Paragraph-4 of G.O.Ms.No.102, it was stated thus:
"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 for 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."
(2019) 17 SCC 364 = 2017 SCC OnLine SC 1063
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15. Given subsequent developments pending the SLPs, the Hon'ble
Apex Court disposed of the appeals by making the following
observations:
"9. 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.
10. The appeals are, accordingly, disposed of. Pending
application(s), if any, shall stand disposed of. There shall be no
orders as to costs."
16. Thereafter, Contempt Petition (Civil) Nos.1045-1055 of 2018
was filed by one K.Ananda Rao and others. The issue was elaborately
discussed in contempt petitions and eventually, they were closed on
07.03.2019.
17. In pursuance of the G.O.Ms.No.15 dated 31.01.2022,
employees of the A.P. Education and Welfare Infrastructure
Development Corporation and others filed different writ petitions
seeking enhancement of the age of superannuation from 60 years to
62 years. Learned single Judge allowed those writ petitions by a
common order dated 11.08.2022. Against the said common order in
W.P.No.8225 of 2022 & batch dated 11.08.2022, intra-court appeals
W.A.Nos.1033 of 2022 & batch were filed. The Division Bench of this
Court allowed the said appeals on 05.05.2023 and set aside the order
passed in W.P.No.8225 of 2022 & batch dated 11.08.2022. While
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setting aside the order of a learned single judge, the Division Bench
placed reliance upon the judgment in G.Rama Mohan Rao case
(supra-1). The Division Bench also considered the fact of the merger
and eventually allowed intra-court appeals.
18. Both the Division Benches considered the language employed in
Section 1 (2) of the Act 23 of 1984 and eventually concluded the
employees of the Corporation cannot claim the benefit of extension of
age of superannuation from 60 to 62 years unless the Corporations/
Societies amend the Rules/Act.
19. It is a settled principle of law that the observations made in the
judgments by Courts are neither to be read as Euclid's theorems nor
as provisions of a statute, and that too taken out of their context.
(Amar Nath Om Prakash Vs. State of Punjab3)
20. The decision of a Court is only an authority for what it decides.
What is of the essence in a decision is its ratio, and not every
observation found therein nor what logically follows from the various
observations made in it.
(State of Orissa Vs. Sudhansu Sekhar Mistra4).
21. It is pertinent to mention here that neither in G.Rama Mohan
Rao case (supra-1) nor in W.A.No.1033 of 2022 and batch, the
employees of the Housing Board are parties. It is an undisputed fact
that the A.P. Housing Board is at entry 14, Schedule IX of the A.P.
(1985)1 SCC 345
AIR 1968 SC 647
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Reorganisation Act 2014. Employees of eighteen corporations in
Schedule IX and others filed writ petitions challenging the action of the
State in not extending the age of superannuation from 58 to 60 years.
As seen from the Paragraph-14 of the order in W.A.No.1033 of 2022
and batch, the appellant therein is APEWIDC. In fact, APEWIDC has
its own service rules.
22. As discussed supra, the A.P. Housing Board was constituted in
terms of Section 3 of the A.P. Housing Board Act, 1956. Section 16 of
the Act deals with service rules of its employees. It is appropriate to
extract Section 16 of the Act 1956, which reads thus:
"16. Application of Service Rules and Certain other rules -
Unless otherwise provided in this Act or prescribed thereunder,
the provisions of the Service Rules for the time being in force
in the State, relating to salaries, leave, pensions, traveling
allowance, retirements, and all conditions of service and the
rules for the time being in force relating to the conduct of
Government servants and inquiries into the conduct and
punishment of Government servants, shall apply to the Officers
and servants of the Board appointed under Section 17."
(emphasis is mine)
23. A careful perusal of the section extracted supra, would discern
that service rules for the time being in force in the State shall apply to
officers and servants of the Board appointed under Section 17. The
service rules include salaries, leave etc., and also conditions of
service.
24. In G.Rama Mohan Rao case (supra-1), the Division Bench while
placing reliance upon judgments of Apex Court qua conditions of
service observed as follows:
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25. The expression "conditions of service" means all those
conditions which regulate the holding of a post by a person right
from the time of his appointment till his retirement and even
beyond it, in matters like pension etc. (State of Punjab Vs.
Kailash Nath5; Union of India Vs. Tulsiram Patel 6; State of
M.P. Vs. Shardul Singh7; I.N.Subba Reddy Vs. Andhra
University8). What falls within the purview of the term
"conditions of service" may be classified as salary or wages
including subsistence allowance during suspension, the
periodical increments, pay scale, leave, provident fund, gratuity,
confirmation, promotion, seniority, tenure or termination of
service, compulsory or premature retirement, superannuation,
pension, changing the age of superannuation, deputation and
disciplinary proceedings. (Kailash Nath's case supra). Article
309 confers legislative power to provide conditions of service
including prescription of the age of superannuation.
(N.Lakshmana Rao Vs. State of Karnataka9 and
P.Venugopal Vs. Union of India10).
25. Thus, conditions of service include retirement. During the
arguments, when the Court pointed out, on a couple of occasions,
regarding the making of service rules of employees of A.P. Housing
Board qua the conditions of service, learned standing counsel
emphatically submitted that no separate rules were framed so far by
the Board. The Board adheres to the Rules framed by the State
Government.
(1989) 1 SCC 321
(1985) 3 SCC 398
(1970) 1 SCC 108
(1977) 1 SCC 554
(1976) 2 SCC 502
(2008) 5 SCC 1
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26. The Phrase 'for the time being in force' used in the section be
interpreted to refer to the rules which are in force when the event took
place. The case at hand, the event took place after the amendment to
Act 23 of 1984 enhancing the age of superannuation
27. In Municipal Corporation of Delhi Vs Premchand Gupta11, the
Hon'ble Apex Court observed thus:
"13. In this connection, one submission of learned counsel for
the respondent workman may be noted. He submitted that as laid
down by Regulation 4(1), the rules for the time being in force as
mentioned therein would refer to only those rules which were in
force when the Service Regulations of 1959 were promulgated
and not any latter rules. It is difficult to countenance this
submission. Rules for the time being in force will have a nexus
with the regulation of condition of service of the municipal officers
at the relevant time as expressly mentioned in Regulation 4(1).
Therefore, whenever the question of regulation of conditions of
service of the municipal officers comes up for consideration, the
relevant rules in force at that time have to be looked into. This is
the clear thrust of Regulation 4(1). Its scope and ambit cannot be
circumscribed and frozen only to the point of time in the year
1959, when the Service Regulations were promulgated. If such
was the intention of the framers of the Regulation, Regulation 4(1)
would have employed a different phraseology, namely, "rules at
present in force" instead of the phraseology "rules for the time
being in force". The phraseology "rules for the time being in force"
would necessarily mean rules in force from time to time and not
rules in force only at a fixed point of time in 1959 as tried to be
suggested by learned counsel for the respondent workman."
(2000) 10 SCC 115
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28. The observation of Division Bench of the Madras High Court in
J.Parthiban &Ors Vs. State of Tamilnadu & Ors12, reads thus,
"....The phraseology ''laws for the time being in force" would
necessarily mean laws in force from time to time and not laws in
force only at a fixed point of time, i.e. the date on which the
Airports Authority of India Act was enacted. The expression ''for
the time being" denotes time indefinite and refers to indefinite
state of facts which will arise in future and which may vary from
time to time."
29. The Andhra Pradesh Legislature enacted the Andhra Pradesh
Public Employment (Regulation of age of Superannuation) Act No.23
of 1984 making it applicable to persons appointed to public service and
posts and other employees in any Local Authority, Houses of the State
Legislature etc. To give effect to their policy of reversal, i.e., the policy
of reducing the age of superannuation from 58 to 55, the Government
amended Rule 56 of the Fundamental Rules and Rule 231 of the
Hyderabad Civil Services Rules by substituting the number '55' for the
number '58'. Thus, by amending the Rules that existed, thus far, qua
the age of superannuation, the legislature enacted the Andhra Pradesh
Public Employment (Regulation of age of Superannuation) Act 1984.
30. In the absence of any separate rules framed by the A.P. Housing
Board, whatever the Rules/Act exist as of today shall apply to the
employees of the Board because of the language employed in Section
16 of the Act.
AIR 2008 MADRAS 203
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31. Whether the employees of the Board can claim the status of
government servants as per the Act 23 of 1984 is no longer res integra
in view of the judgment in G.Rama Mohan Rao case (supra-1),
wherein it was held that the employees covered by the Corporation etc.
in Schedule IX and X of the A.P. Reorganisation Act 2014, cannot get
the benefit of amendment of Act 23 of 1984. However, as discussed
supra, Section 16 of the A.P. Housing Board Act did not fall for
consideration before the two Division Benches. A perusal of the
judgments of Division Benches, the language akin to Section 16 of the
A.P. Housing Board Act was not considered.
32. It is pertinent to mention here that another Division Bench of the
composite High Court in W.P.No.26495 of 2015 dated 25.08.2015
upheld the order of the Tribunal, wherein the Tribunal allowed the O.A.
filed by employees of the Housing Board, regarding the age of
superannuation from 58 years to 60 years. The Division Bench
observed as follows:
"A careful perusal of the above provision makes it very clear that
unless a provision is otherwise provided in this enactment or any
prescription is made under the provisions of the service rules
framed thereunder, the provisions of service rules for the time
being in force in the State of Andhra Pradesh relating to the
retirement, shall apply to the officers and servants of the Housing
Board, appointed under Sec 17 of the Housing Board Act. There
is no dispute that the contesting respondents are those who were
appointed in accordance with and in terms of sec 17 of the
Housing Board Act. Therefore, section 16 of the Act is the result
of a telescoping tool, which was used by the legislature. It has
literally regulated the field occupied by Section 16 by borrowing
the matter of application to the servants of the Housing Board
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appointed under Sec 17 of the Housing Board Act, what is
prevailing for the time in force in the State of Andhra Pradesh.
In the State of Andhra Pradesh, by Act 4 of 2014, Sec 3 of the
Superannuation Act, 1984 has been amended and the
amendment was also notified in the official gazette on 27-6-2014.
By amending Sec 3, the age of superannuation of every
government employee has been raised from 58 years to 60 years.
Therefore, it becomes crystal clear that unless a contra provision
is made under the Housing Board Act or under the regulations
framed thereunder, the age of retirement prescribed for the
servants of the State of Andhra Pradesh, which is available for the
time being in force, will get applied to the servants of the Housing
Board also.
In our opinion section 16 of the Housing Board Act binds the
Housing Board to regulate the age of superannuation of its
servants strictly in terms thereof.
The learned standing counsel is more than fair in pointing out that
there is no contra provision made under the Housing Board Act or
under the regulations framed thereunder, which has the
enforceability prescribing the age of superannuation of the
servants of the Housing Board. In the absence of this exception
carved out by Section 16 of the Housing Board Act, the remaining
provisions of the said Section 16 will spring to life".
33. Thus, the Division Bench of the composite High Court
specifically dealt with Section 16 of the Housing Board Act, 1956 and
concluded that the amendment made to Act 23 of 1984 would apply to
the employees of the Housing Board by applying the telescoping toll
principle.
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34. If one looks at Section 16 of the Housing Board Act, the section
in the Act is by way of Referral or Incorporation of legislation. The
aspect of Incorporation and Reference has been dealt with by the
author G.P. Singh in the "Principles of Statutory Interpretation" 12th
Edition, 2010. Incorporation of an earlier Act into a later Act is a
legislative device adopted for the sake of convenience in order to
avoid verbatim reproduction of the provisions of the earlier Act into the
latter.
35. In Pandurang Ganpati Chaugule Vs. Vishwasrao Patil
Murgud Sahakari Bank Ltd.13, the Hon'ble Apex Court held thus:
"When an earlier Act or certain of its provisions are incorporated
by reference into a later Act, the provisions so incorporated
become part and parcel of the later Act as if they had been
"bodily transposed into it".
The effect of incorporation is admirably stated by Lord Esher,
M.R.:"If a subsequent Act brings into itself by reference some of
the clauses of a former Act, the legal effect of that, as has often
been held, is to write those sections into the new Act as if they
had been actually written in it with the pen, or printed in it." The
result is to constitute the later Act along with the incorporated
provisions of the earlier Act, an independent legislation which is
not modified or repealed by a modification or repeal of the earlier
Act.
As observed by Brett, J.: "Where a statute is incorporated, by
reference, into a second statute, the repeal of the first statute by
a third does not affect the second".
(2020) 9 SCC 215 : 2020 SCC OnLine SC 431
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To the same effect is the statement by Sir George Lowndes: "It
seems to be no less logical to hold that where certain provisions
from an existing Act have been incorporated into subsequent
Act, no addition to the former Act, which is not expressly made
applicable to the subsequent Act, can be deemed to be
incorporated in it, at all events if it is possible for the subsequent
Act to function, effectually without the addition.
Ordinarily, if an Act is incorporated in a later Act, the intention is
to incorporate the earlier Act, with all the amendments made in it
up to the date of incorporation.
The rule that the repeal or amendment of the Act which is
incorporated by reference in a later Act is not applicable for
purposes of the later Act is subject to qualifications and
exceptions.
Further, a distinction is also drawn when what is referred to is not
an earlier Act or any provision from it but law on a subject in
general.
There is, however, no controversy on the point that when any Act
or rules are adopted in any later Act or rules, such adoption
normally whether by incorporation or mere reference takes in all
the amendments in the earlier Act or rules till the date of
adoption."
36. In State of Uttarakhand v. Mohan Singh14, the Hon'ble Apex
Court held thus:
19. The law is, therefore, clear that a distinction has to be
drawn between a mere reference or citation of one statute into
(2012) 13 SCC 281 : 2012 SCC OnLine SC 715
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another and incorporation. In the case of mere reference of
citation, a modification, repeal or re-enactment of the statute that
is referred will also have an effect on the statute in which it is
referred; but in the latter case any change in the incorporated
statute by way of amendment or repeal has no repercussion on
the incorporating statute.
37. In IBBI v. Satyanarayan Bankatlal Malu15, the Hon'ble Apex
Court held thus:
41. This Court has held in Girnar Traders Vs. State of
Maharashtra, (2011) 3 SCC 1 : (2011) 1 SCC (Civ) 578] that
once a finding is recorded that an Act is a self-contained code,
then the application of either of the doctrines i.e. "legislation by
reference" or "legislation by incorporation" would lose their
significance particularly when the two Acts can co-exist and
operate without conflict. This Court further held that, in case of
general reference in the Act in question to an earlier Act but
there being no specific mention of the provisions of the former
Act, then it would clearly be considered as "legislation by
reference". In such a case, the amending laws of the former Act
would become applicable to the later Act. However, when the
provisions of an Act are specifically referred and incorporated in
the later statute, then those provisions alone are applicable and
the amending provisions of the former Act would not become
part of the later Act.
38. Thus, given the expressions of the Hon'ble Apex Court,
Incorporation occurs when an earlier statute or specific provisions of it
are explicitly brought into a latter statute. The incorporated provisions
(2024) 6 SCC 508 : 2024 SCC OnLine SC 560
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become part of the latter statute as if they had been directly written into
it. The legal effect of incorporation is that the earlier provisions are
treated as if they are physically inserted into the later statute which
means, the incorporated provisions are fully part of the new statute and
are independent of any amendments made to the earlier statute after
the date of Incorporation.
39. In respect of Legislature by Reference, it involves a latter statute
mentioning or referring to an earlier statute or its provisions without
actually incorporating them. The earlier statute or its provisions are not
considered to be part of the latter statute because they are merely
cited. In the case of reference, the latter statute relies on the earlier
statute as it currently stands or as it may be amended in the future.
Any changes to the earlier statute will automatically apply to the
referenced provisions in the later statute.
40. A perusal of Section 16 of the Housing Board Act, it can be
inferred that the Service Rules including conditions of service etc., of
the State, for the time being in force are made applicable to employees
appointed under Section 17 of the Act. Thus, whatever the
amendments made to the Act 23 of 1984 would by reference apply to
the employees of the Housing Board.
41. The Division Bench in G.Rama Mohan Rao case (supra-1)
considered whether the employees of Corporations/Societies in IX and
X Schedules are entitled to the benefit of superannuation and
eventually negatived claim. However, the employees of A.P. Housing
Board or provision akin to Sec 16 of the A.P. Housing Board fall for
consideration before the Division Bench. Before the other Bench in
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W.P.Nos.26495 and 26926 of 2015 dated 25.08.2024, Sec 16 of the
Housing Board fell for consideration.
42. Learned standing counsel appearing for respondents would
contend that the ratio of law in the judgment in W.P.Nos.26495 of 2015
and 26926 of 2015 and G.Rama Mohan Rao's case (supra-1) is
diametrically opposite and hence the ratio in the latter judgment must
be followed. This Court is not persuaded with such submission.
43. In Indian Petrochemicals Corpn. Ltd. Vs. Shramik Sena16, the
Hon'ble Apex Court took a view that if the High Court was faced with
diametrically opposite interpretation, it should have decided the case
on merits and according to its own interpretation of the said judgment.
44. Salmond in Book on Jurisprudence, 12th Edition termed the
conflict rules as Schizophrenic. In Mansing Surajsingh Padvi Vs. The
State of Maharashtra17, the Bombay High Court observed that when
there are contrary decisions, binding on the High Courts, it has to
undertake the unpleasant task of choosing one which appears to have
better authority or reason. It was held thus:
"Where authorities of equal standing are irreconcilably in conflict,
a lower court has the same freedom to pick and choose between
them as the schizophrenic court itself. The lower court may
refuse to follow the later decision on the ground that it was
arrived at per incuriam, or it may follow such decision on the
ground that it is the latest authority. Which of these two courses
the court adopts depends, or should depend, upon its own view
of what the law ought to be."
(2001) 7 SCC 469 : 2001 SCC OnLine SC 1064
(1968)70 BOM LR 654
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45. This Court is of the considered opinion that though it was held in
G.Rama Mohan Rao's case (supra-1) that employees of Schedule IX
and X A.P. Reorganisation Act are not entitled to benefit of amendment
to Act 23 of 1984, however, the Division Bench did not specifically
consider Section 16 of the A.P. Housing Board Act or any provision
akin to Section 16. When the employees of A.P. Housing Board are not
parties and Section 16 of the Act was not considered, the ratio laid
down in G.Rama Mohan Rao's case (supra-1) shall not apply to the
employees of A.P. Housing Board, whereas the other Division Bench
specially considered Section 16 of the Housing Board Act. Thus, this
Court intends to take the support of the common order in
W.P.No.26495 of 2015.
46. Indeed, in the case at hand, the Board in its meeting held on
13.04.2022 passed the resolution extending the age of superannuation
to its employees, both regular and work charged, from 60 years to 62
years with retrospective effect. Seems the copy of the resolution was
forwarded to the Government and the same is pending.
47. The Circular Memo No. 1813129/FIN01-HR/212/2022-HR-IV
dated 23.09.2022 issued by the Special Chief Secretary to the
Government is only a clarification in nature. It only points out that the
orders issued in G.O.Ms.No.15 dated 31.01.2022 would apply to the
category of employees mentioned in Section 1(2) of the Act 23 of
1984. The Circular issued aligns with the judgment of G.Rama Mohan
Rao's Case (supra-1). Though in the counter affidavit, it was
contended that the Circular Memo dated 23.09.2022 binds the
Corporation, this Court is not persuaded by said submission.
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48. When any amendment to Act 23 of 1984 is made applicable to
the employees of the A.P. Housing Board, there is no need even to
pass a resolution by the Board. Thus, the memo No.AP
Ordinance.01/B6/APHB/2012 dated 27.09.2022 issued by the Vice
Chairman and Managing Director is liable to be set aside. In fact, the
Vice Chairman is one of the members of the Board. He cannot decide
contrary to the resolution passed by the Board. Of course, the
Government got supervisory powers under Section 79 of the Act.
However, given Section 16 of the Housing Board Act, such supervision
qua applicability of provisions of Act 23 of 1984 is not required.
49. Given the discussion supra, these Writ Petitions are Allowed.
1) The Memo No.AP Ordinance.01/B6/APHB/2012 dated
27.09.2022 issued by the Vice Chairman and Managing Director
is set aside.
2) Because of Section 16 of the A.P. Housing Board Act, 1956 the
amendment made to Act 23 of 1984, extending the age of
superannuation from 60 years to 62 years, by reference, applies
to its employees.
3) The respondent Board shall continue the writ petitioners in
service till they attain the age of superannuation of 62 years.
4) No order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
__________________________
JUSTICE SUBBA REDDY SATTI
th
10 September, 2024
PVD
