Dr.Srikanth Babu Perugu vs Dr. Chiliveru Ravinder
2023 Latest Caselaw 3813 Tel

        THE HONOURABLE SRI JUSTICE P.SAM KOSHY
                                   AND
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             Interlocutory Application No.1 of 2023
                            in / and
                   Writ Appeal No.866 of 2023
                               and
                   Writ Appeal No.955 of 2023
COMMON JUDGMENT: (per Hon'ble Sri Justice P.SAM KOSHY)

      These two writ appeals are filed challenging the same

impugned order passed by the learned single Bench of this

Court   in    W.P.No.15770    of    2022   decided   on   28.06.2023

(for short, 'the impugned order'). W.A.No.866 of 2023 is an

appeal which has been filed along with an application seeking

leave to appeal. So far as W.A.No.955 of 2023 is concerned, it is

an appeal filed by the State Government assailing the decision of

the learned single Bench passed in the aforesaid writ petition.


2.    Heard Ms. Madhavi Latha Katasani, learned counsel for

the appellant / proposed party in Writ Appeal No.866 of 2023

and Mr. A. Sanjeev Kumar, learned Special Government Pleader

for the appellant-State Department in Writ Appeal No.955 of

2023 and respondents in Writ Appeal No.866 of 2023.

                                   2                       PSK,J & LNA,J
                                                      wa_866&955_2023

3. For convenience, the facts in Writ Appeal No.955 of 2023

are taken up as the lead case for the purpose of deciding the

present writ appeals.

4. Writ Appeal No.866 of 2023 has been filed on behalf of one

Dr.Srikanth Babu Perugu, who by occupation is a professor and

HOD in the Department of Kayachikitsa Dr. B.R.K.R.

Government Ayurvedic College. He has sought the leave to

appeal on the ground that since he is within the zone of

consideration for the next promotion and DPL has also been

convened. However, because of the effect of the writ petition

which stands decided vide the impugned order, the promotion

process initiated by the Department for considering the

promotion of the petitioner and other similarly placed persons

has got deferred. Thereby his promotional prospects have got

adversely affected. Therefore, in the capacity of an aggrieved

person he has filed the present appeal and thus seeks leave of

the Court to pursue the said appeal.

5. Considering the fact that the impugned order has already

been challenged by the State Government vide W.A.No.955 of

2023, whether in W.A.No.866 of 2023 leave has to be granted or

not, shall be considered after deciding the W.A.No.955 of 2023.

                                   3                       PSK,J & LNA,J
                                                      wa_866&955_2023

6. The brief facts which led to the filing of the instant Writ

Appeal i.e., W.A.No.955 of 2023, are that respondent Nos.1 to 10

are Doctors working in the Ayush Department of the State of

Telangana. They had filed a Writ Petition before the High Court

under Article 226 of the Constitution of India assailing the

memo dated 02.02.2022, viz., Writ Petition No.15770 of 2023, by

which the appellant No.1 had rejected the representation made

by the respondents seeking reinstatement of respondent Nos.1

to 10 back into the service with continuity of service up till the

age of 65 along with a direction to the appellant / State to

permit the respondent Nos.1 to 10 to perform duties till they

attain the age of 65 in terms of the notification publishing the

ordinance dated 20.06.2019.

7. It is pertinent here at this juncture to mention that the

State Government vide ordinance dated 20.06.2019 had

amended the Telangana Public Employment (regulation of age of

superannuation) Act, 1984, enhancing the age of

superannuation of all professors, associate professors and

assistant professors working in the Government medical colleges

including semi-autonomous and autonomous colleges to stand

retire from service on attaining the age of superannuation.

                                 4                           PSK,J & LNA,J
                                                        wa_866&955_2023

8. To further crystallize the factual matrix, it is necessary to

submit that the ten petitioners were all working as Medical

Officers / Ayurveda Medical Officers or Lecturers in the

Government Ayush College established by the Government of

Telangana. The age of superannuation in terms of the service

rules governing the field of petitioners was (58) years. The

Government of Telangana vide Ordinance 3 of 2019 had

enhanced the age of superannuation of Government Dental

Colleges including semi-Autonomous and Autonomous Medical

Colleges from (58) years to (65) years. The similar benefit of

enhancement of age of superannuation was not extended to the

Professors, Associate Professors working at the Government

Ayush Medical Colleges in the State of Telangana. Therefore,

there was a demand from the Medical Officers, Lecturers,

Professors, Assistant Professors working in the Ayush

Department for extending their age of superannuation from (58)

years to (65) years. Since the demand was not acceded to by the

Government of Telangana, the original writ petitioners had, on

an earlier occasion, filed a writ petition, viz., Writ Petition

No.19084 of 2021 before this Court. Vide order dated

16.08.2021, a learned Single Judge of this Court, disposed of

the writ petition by directing the respondents to consider the 5 PSK,J & LNA,J wa_866&955_2023

case of petitioners therein in terms of the judgment of the

Hon'ble Apex Court in North Delhi Municipal Corporation vs.

Dr. Ram Naresh Sharma 1. Based upon the said disposal of the

said writ petition by a learned Single Judge of this Court, a

representation was submitted by the petitioners to the

respondent-State Department. Thereafter, the State

Department, vide correspondence dated 02.02.2022, rejected the

representation submitted by the petitioners reiterating their

stand they have taken, on an earlier occasion, in compliance of

the order passed by a learned Single Judge of this Court in Writ

Petition No.16197 of 2020, dated 22.12.2020. It is this rejection

of the representation submitted by the petitioners which was

subject to challenge by the petitioners in Writ Petition No.15770

of 2022 and which stood allowed vide order dated 28.06.2022,

and which is under challenge in the present appeals.

9. The primary contention of learned counsel for the

appellant-Department assailing the impugned order is that the

learned Single Judge has not duly appreciated the fact that the

pay-scale in both the Departments (i.e., Allopathy and Ayush),

the service conditions governing the services of the medical

Civil Appeal No.4578 of 2021, decided on 03.08.2021=2021 INSC 376 6 PSK,J & LNA,J wa_866&955_2023

officers, professors, assistant professors are entirely different.

Therefore, there cannot be an automatic enhancement of the age

of superannuation so far as the officers of Ayush Department is

concerned only on the basis of Ordinance 3 of 2019, dated

20.06.2019, whereby in the Medical Colleges and Dental

Colleges on the Allopathy field the age of superannuation for the

Professors, Assistant Professors, Medical Officers was enhanced

from (58) to (65) years.

10. According to learned counsel for the appellant-State

Department, as an implication of allowing the Writ Petition

No.15770 of 2022, vide order dated 28.06.2022, the learned

Single Judge has literally brought the service conditions of the

Medical Officers, Professors, Lecturers working in the Ayush

Department at parity with the Medical Officers, Lecturers,

Assistant Professors, Professors in the Government Medical

Colleges in the Allopathy field.

11. According to learned counsel for the appellant-

Department, the Allopathy and Ayush are two separate fields

which are totally different and distinct with different service

regulations governing the field. It was also the contention of the

learned counsel for the appellant-State that subsequently the 7 PSK,J & LNA,J wa_866&955_2023

State Government itself issued yet another Ordinance, i.e.,

Ordinance No.4 of 2020, dated 31.07.2020, enhancing the age of

superannuation of the Medical Officers, Lecturers, Assistant

Professors and Professors from (58) years to (65) years and, as

such, the substantive grievance of the respondents / petitioners

stood redressed vide the said ordinance. However, the learned

Single Judge has ordered for implementation of the aforesaid

ordinance, viz., Ordinance No.4 of 2020, dated 31.07.2020, with

retrospective effect, of which the appellant-Department is more

aggrieved of.

12. According to learned counsel for the appellant-

Department, all the respondents / petitioners even before filing

of the Writ Petition, i.e., Writ Petition No.15770 of 2022, the

respondents / petitioners have already stood superannuated on

account of crossing of the age of superannuation of (58) years as

per the service rules and regulations in force as on the date of

each of respondents / petitioners' superannuation. He further

submitted that it was beyond the judicial competence of the

learned Single Judge in granting Ordinance No.4 of 2020, dated

31.07.2020, with retrospective effect.

                                               8                           PSK,J & LNA,J
                                                                      wa_866&955_2023

13. Learned counsel for the appellant / Department further

contended that the judgment relied upon by the learned Single

Judge in Dr. Ram Naresh Sharma (1 supra) could not have

been applied in a straight-jacket formula so far as relief sought

for by the respondent / petitioners is concerned. He

emphatically argued that mere enhancement of the age of

retirement in the Allopathy department by itself cannot lead to

an invariance, and that it also becomes applicable to Ayush

Department particularly when the service conditions in the two

Departments are entirely different set of Rules and, as such, it is

the prerogative of the appellant-Department to decide the age of

superannuation of the officers and employees working in each of

the department.

14. Learned counsel for the appellant-Department relied on

the decision of the Hon'ble Apex Court in Dr. Prakasan M.P. vs.

State of Kerala2.

15. Per contra, learned counsel for the respondents /

petitioners strongly contended that the appeal does not have any

substantial merits as the learned Single Judge has reiterated the

2023 LiveLaw (SC) 708 = 2023 INSC 772 9 PSK,J & LNA,J wa_866&955_2023

principle laid down by the Hon'ble Apex Court in Dr. Ram

Naresh Sharma (1 supra) where the Hon'ble Apex Court had, in

very specific terms, held that the classification of the Ayush

Doctors and the Allopathy Doctors is discriminatory and

unreasonable. According to him, the Doctors under both the

departments are performing the same functions of treating and

healing of their respective patients, and the only difference is

that the Doctors in the Ayush Department use indigenous

system of medicine while the Doctors in Allopathy Department

use Allopathy medicine for treatment of their patients and the

mode of treatment should not be the criteria to determine the

intelligible differentia. He further contended that the Hon'ble

Apex Court in Dr. Ram Naresh Sharma (1 supra) went on to

show that classification and discrimination amounts to

inconsistency with Article 14 of the Constitution of India.

16. Learned counsel for the respondents / petitioners

contended that as per the decision of the Hon'ble Apex Court in

Dr. Ram Naresh Sharma (1 supra), the Hon'ble Apex Court in

almost similar set of facts had directed the State Government to

enhance the age of superannuation of the Doctors in the Ayush

Department with retrospective effect from the date the age of 10 PSK,J & LNA,J wa_866&955_2023

superannuation was enhanced in the Allopathy field and,

therefore, since the learned Single Judge has reiterated the

principles of the Hon'ble Apex Court in the case of Dr. Ram

Naresh Sharma (1 supra), there is hardly any scope of

interference left for this Court in exercise of its Writ Appellate

jurisdiction. He further contended that right from the time of

issuance of Ordinance 3 of 2019 w.e.f. 20.06.2019, the

respondents / petitioners have been approaching the appellate -

Department by submitting various representations and

reminders for extending similar benefit to the Doctors, Lecturers,

Assistant Professors, Professors in the Ayush Department also.

It was in this context that the learned Single Judge had ordered

for implementation of the said Ordinance with retrospective

effect. He further submitted that, in fact, the decision in

Dr. Ram Naresh Sharma (1 supra) was also relied upon by this

court only in yet another earlier writ petition that was filed

seeking parity so far as payment of stipend for the House-

Surgeons and Post-Graduate students under the Ayush

Department on parity with the House-Surgeons and Post-

Graduate Students in the Medical Colleges and other Colleges

under the Allopathy system of medicine. Keeping all these facts,

if the learned Single Judge had allowed the instant writ petition, 11 PSK,J & LNA,J wa_866&955_2023

viz., Writ Petition No.15770 of 2022, directing the appellant /

Department for giving effect of the Ordinance 4 of 2020, dated

31.07.2020 with retrospective effect, i.e., w.e.f. the date of

issuance of Ordinance No.3 of 2019, dated 20.06.2019, the same

cannot be found fault nor can it be said to be arbitrary, illegal or

in any manner contrary to law or contrary to the decision of the

Hon'ble Apex Court in Dr. Ram Naresh Sharma (1 supra).

Thus, he prayed for dismissal of the Writ Appeal No.955 of 2023.

17. Learned counsel for the respondents / petitioners also

objected on the locus standi that the appellant seeking leave to

appeal in Writ Appeal No.866 of 2023 where it was the

contention of learned counsel for the respondent that the

appellants / petitioners were in no way connected with the age

of superannuation of the Doctors, Assistant Professors,

Professors and Lecturers in the Ayush Department as the person

seeking leave to appeal himself is a beneficiary of the said

Ordinance No.4 of 2020 and, therefore, the age of

superannuation has already been enhanced from (58) years to

(65) years. Therefore, the appellant does not have the right to

challenge the order passed by the learned Single Judge in Writ

Petition No.15770 of 2022, dated 28.06.2023, opposing the 12 PSK,J & LNA,J wa_866&955_2023

claim of appellants / petitioners, and thus, prayed for dismissal

of Writ Appeal No.866 of 2023 on the ground that the appellant

therein does not have any locus to challenge the order passed by

the learned Single Judge in Writ Petition No.15770 of 2022,

dated 28.06.2023.

18. Having heard the contentions put forth by either side and

on a perusal of the admitted factual matrix of the case as would

be revealed from the pleadings that the respondents /

petitioners herein have worked in the Ayush Department of the

State Government, as the Department which has its own service

conditions regulating the service conditions of the employees

and officers of the said Ayush Department. The service

regulations governing the Ayush Department is entirely distinct

and separate than that is governing the service conditions of

medical colleges and dental colleges under the Allopathy system

of medicine.

19. It is not in dispute that vide Ordinance 3 of 2019, dated

30.06.2019, the Government had enhanced the age of

superannuation from (58) years to (65) years in the Medical

Colleges and Dental Colleges under the Allopathy system of

medicine. The said Ordinance was not covering the Doctors in 13 PSK,J & LNA,J wa_866&955_2023

the teaching faculty or the Ayush Department. The Ayush

Department has its own rules and regulations governing the

service conditions for the Medical Officers, Lecturers, Assistant

Professors, Professors in the Ayush Department. The

Government subsequently issued another Ordinance, viz.,

Ordinance No.4 of 2020, dated 31.07.2020, enhancing the age of

superannuation from (58) to (65) years. Since then there was

parity so far as the age of superannuation both in the Allopathy

institution as also the institutions in the Ayush Department.

20. In the given factual backdrop, the question of law to be

considered at this juncture is whether the learned Single Judge

was justified in giving effect to Ordinance No.4 of 2020 with

retrospective effect w.e.f.20.06.2019. A fact which needs

consideration at this juncture is that if the contention of learned

counsel for the respondents / petitioners is that the Ordinance

No.3 of 2019 itself should had covered the enhanced age of

superannuation for the Officers of the Ayush Department also,

then there was no need for issuance of Ordinance No.4 of 2020,

dated 31.07.2020. Then the prayer of the respondents /

petitioners should have been only for making applicable the

Ordinance No.3 of 2019 also to the Ayush Department. The fact 14 PSK,J & LNA,J wa_866&955_2023

that there was a requirement for the Government to have issued

two separate Ordinances for enhancing the age of

superannuation in the two different departments, goes to

establish that the two wings are different, distinct and separate

altogether with separate rules and regulations governing the

service conditions.

21. It is the general principle of law that whenever an

ordinance or statute is passed by the Legislature it would only

have prospective effect and would not have a retrospective effect

unless specifically held so. Another settled principle of law is

that under the Service Law jurisprudence also, when service

conditions are altered, the same would also stand altered

prospectively and cannot be given retrospective effect. The

Ordinance No.4 of 2020, dated 31.07.2020, so also the

Ordinance No.3 of 2019, dated 20.06.2019, both have been

issued by the Government under the Service Law jurisprudence.

So far as deciding the terms and conditions of the service under

the various departments of the Government including the service

conditions dealing with the minimum age of appointment and

also the age of superannuation or retirement is concerned, it is

exclusively within the domain of the employer and is also the 15 PSK,J & LNA,J wa_866&955_2023

prerogative of the Government / employer to decide these

conditions. In the present appeals what is apparent is that the

Government in its wisdom first issued Ordinance No.3 of 2019

enhancing the age of superannuation from (58) years to (65)

years in respect of the officers under the institutions dealing

with Allopathy system of medicine. For the Officers under the

Ayush Department, the Government issued the Ordinance at a

much later stage that is by Ordinance 4 of 2020 that was passed

on 31.07.2020. If the service conditions of the two Departments

were same, the Government itself would have only issued a

clarificatory notice or a corrigendum or an amendment to the

earlier Ordinance No.3 of 2019 extending the enhanced age of

superannuation to the officers of Ayush Department as well.

22. The Hon'ble Apex Court recently in the case of Central

Council for Research in Ayurvedic Sciences vs. Bikartan

Das 3 held at para Nos.42, 43 and 44 as under, viz.,

"42. We must also look into the decision of this Court in the case of Kerala Assistant Public Prosecutors Associations v. State of Kerala 4, wherein the Assistant Public Prosecutors were seeking parity with respect to the age of superannuation to that of Public Prosecutors. This Court took notice of the fact that

2023 LiveLaw (S.C.) 692 :: 2023 INSC 733

(2018) 7 SCC 314 : AIR 2018 SC 2652 16 PSK,J & LNA,J wa_866&955_2023

the method of selection between the two posts is very different and that the former are considered to be government employees, whereas the latter are not. The Court thereafter, proceeded to hold that merely because the nature of work between the two is similar, the same does not imply that the age of superannuation ought to be similar as well. The relevant portion is produced hereunder:

"6. ... The fact that the nature of duties and functions of Assistant Public Prosecutors and Public Prosecutors are similar, per se, cannot be the basis to claim parity with Public Prosecutors in respect of age of superannuation."

(Emphasis supplied)

44. In Union of India v. Lieut (Mrs) E. Iacats 5, the respondent therein had filed a writ petition in the Guahati High Court challenging her retirement at the age of 55 years on the ground that in other nursing services under the military establishment the age of retirement was 58 years. It was argued before the High Court that it was discriminatory to retire the nurses who were appointed for local service only at the age of 55 years. The Petition was allowed by the High Court. The UOI came before this Court in appeal. This Court while allowing the appeal filed by the UOI, observed as under:

"3. ... If different nursing services are constituted under separate army instructions carrying their own separate terms and conditions of service, one cannot complain of discrimination if the ages of retirement prescribed under these different services are different.

(1997) 7 SCC 334 17 PSK,J & LNA,J wa_866&955_2023

Each will be governed by its own rules and regulations. The respondent is, therefore, not justified in claiming that she has been discriminated against because she has retired at the age of 55."

(Emphasis supplied)

44. The age of superannuation is always governed by the statutory rules governing appointment on a particular post.

Hence, even if it is averred that the nature of work involved in the two posts is similar, the same cannot be a ground to increase or alter the service conditions of an employee as each post is governed by its own set of rules. The same was held in the case of New Okhla Industrial Development Authority v. B.D. Singhal 6, wherein this Court held as under:

"24. ... Since the enhancement of the age of superannuation is a 'public function' channelised by the provisions of the statute and the service regulations, the doctrine of promissory estoppel cannot be used to challenge the action of NOIDA."

(Emphasis supplied)

23. The aforesaid principle of law has also been reiterated

recently by the Hon'ble Apex Court in the case of Dr. Prakasan

M.P. (2 supra), wherein the Hon'ble Apex Court at para Nos.11,

12, 16 & 17 thereof has held as under, viz.,

2021 S.C.C. Online SC 466 18 PSK,J & LNA,J wa_866&955_2023

"The Analysis:

11. It is well-settled that the age of retirement is purely a policy matter that lies within the domain of the State Government. It is not for the courts to prescribe a different age of retirement from the one applicable to Government employees under the relevant service Rules and Regulations. Nor can the Court insist that once the State had taken a decision to issue a similar Government Order that would extend the age of retirement of the staff teaching in the Homeopathic Colleges as was issued in respect of different categories of teaching staff belonging to the Dental stream and the Ayurvedic stream, the said G.O. ought to have been made retrospective, as was done when G.O. dated 14th January, 2010 was issued by the State and given retrospective effect from 1st May, 2009. These are all matters of policy that engage the State Government. It may even elect to give the benefit of extension of age to a particular class of Government employees while denying the said benefit to others for valid considerations that may include financial implications, administrative considerations, exigencies of service, etc.

12. In a somewhat comparable case on facts that arose in New Okhla Industrial Development Authority (6 supra) had resolved to recommend enhancement of the age of superannuation of its employees from 58 to 60 years. The said proposal, when sent to the State Government for prior approval, was turned down. This led to the aggrieved employees filing a writ petition before the High Court of Judicature at Allahabad which was allowed and NOIDA was directed to consider the matter afresh and forward its proposal to the State Government for its approval. It was left open to the State Government to consider giving effect to the increase in the age of retirement from the date when NOIDA had resolved to bear the financial burden for the increase of age or from such date as it may consider expedient. This time, the State Government acceded to the proposal received from NOIDA for enhancing the age of retirement to 60 years, but made the said decision prospective. Aggrieved by the refusal of the State Government to make the decision retrospective, the respondents amended the pending writ petition which was allowed by the High Court that struck down the provision of making the decision prospective and directed that such of the respondents who had retired from service by then, would be 19 PSK,J & LNA,J wa_866&955_2023

deemed to have worked till the extended age of retirement, with all consequential benefits. Challenging the said decision, the State of Uttar Pradesh filed a Petition for Special Leave to Appeal under Article 136 of the Constitution of India, which was allowed by this Court with the following observations:

"22. Whether the age of superannuation should be enhanced is a matter of policy. If a decision has been taken to enhance the age of superannuation, the date with effect from which the enhancement should be made falls within the realm of policy. The High Court in ordering that the decision of the State government to accept the proposal to enhance the age of superannuation must date back to 29 June 2002 has evidently lost sight of the above factual background, more specifically (i) the rejection of the original proposal on 22 September 2009; and (ii) the judgment of the Division Bench dated 17 January 2012 refusing to set aside the order rejecting the proposal on 22 September 2009 which has attained finality. But there is a more fundamental objection to the basis of the decision of the High Court. The infirmity in the judgment lies in the fact that the High Court has trenched upon the realm of policy making and has assumed to itself, jurisdiction over a matter which lies in the domain of the executive. Whether the age of superannuation should be increased and if so, the date from which this should be effected is a matter of policy into which the High Court ought not to have entered.

xxx xxx xxx

24. Whether the decision to increase the age of superannuation should date back to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut-off, some employees would stand on one side of the line while the others would be positioned otherwise. This 20 PSK,J & LNA,J wa_866&955_2023

element of hardship cannot be a ground for the High Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty-eight to sixty years on 28 November 2001, it had left the public sector corporations to take a decision based on the financial impact which would result if they were to increase the age of superannuation for their own employees.

25. From time to time the authorities of the State took a decision bearing upon the exigencies of service prevailing in each organisation. ... ... ... The State government had evidently determined that it was for each organisation to consider and determine the impact of the financial burden, and based on that the organisation was to submit a proposal for the approval of the government.

26. The High Court's observation that the Government order on 30 September 2012 increasing the age of superannuation prospectively is arbitrary seems to be based on the premise that the respondent-employees have a vested right to the increase in the age of retirement on the passage of the resolution by NOIDA. However, Section 19 of the Act stipulates that regulations - which would include amendments as in this case - will require the previous approval of the State Government. The employees will have a vested right to the increased age of superannuation only after the service regulations are modified upon approval of the State Government, and from such date as maybe prescribed by the Government. Para 1(ii) of the government order issued on 30 September 2012 clearly and in unambiguous terms states that the order shall come into force prospectively. The government order can be given retrospective application only if expressly stated or inferred through necessary implication. Therefore, the respondent-employees could not have claimed a vested right that the enhancement in the age of retirement should be made effective from the date on which NOIDA had 21 PSK,J & LNA,J wa_866&955_2023

resolved to submit a proposal for the approval of the government."

(Emphasis added) .........

16. Had the matter stood as it was on the date when the impugned judgement came to be passed, perhaps the appellants could have advanced an argument that the action of the State must be expected to be fair and reasonable and in line with the guarantees extended under Article 14 of the Constitution of India and that there was no rationale in treating them differently when Doctors/Professors from all streams teaching in Medical Colleges in the State formed a homogenous class and are governed by the same set of Service Rules and Regulations. But after the respondent No.1 - State Government issued three successive G.Os extending the age of retirement of the members of the Dental Faculties, Ayurvedic Faculties and Homeopathic Faculties from 55 years to 60 years, the insistence on the part of the appellants that these G.Os ought to be given retrospective effect, even though there was no clause to that effect inserted therein, cannot be countenanced.

17. Such a decision lies exclusively within the domain of the Executive. It is for the State to take a call as to whether the circumstances demand that a decision be taken to extend the age of superannuation in respect of a set of employees or not. It must be assumed that the State would have weighed all the pros and cons before arriving at any decision to grant extension of age. As for the aspect of retrospectivity of such a decision, let us not forget, whatever may be the cut-off date fixed by the State Government, some employees would always be left out in the cold. But that alone would not make the decision bad; nor would it be a ground for the Court to tread into matters of policy that are best left for the State Government to decide. The appellants herein cannot claim a vested right to apply the extended age of retirement to them retrospectively and assume that by virtue of the enhancement in age ordered by the State at a later date, they would be entitled to all the benefits including the monetary benefits flowing from G.O. dated 9th April, 2012, on the ground of legitimate expectation."

                                                   22                      PSK,J & LNA,J
                                                                      wa_866&955_2023

24. Furthermore, in Chhattisgarh State Electricity Board

Diploma Engineers Association, Chattisgarh vs. Chattisgarh

State Power Holding Company Limited, Chattisgarh 7, on a

similar issue, a learned Single Judge of the High Court of

Chhattisgarh, Bilaspur accepting the above principle of law had

held at paragraph Nos.9, 10 and 11 as under, viz.,

"9. In K. Nagara and others vs. State of Andhra Pradesh and another 8, the Supreme Court has held that the decision concerning fixation of age of superannuation pertains to executive sphere and judicial review is available only when the same is arbitrary or unreasonable in the circumstances of the case.

10. In State of Uttar Pradesh and others vs. Hirendra Pal Singh and others 9, the following has been held by the Supreme Court:

12. In view of the above, it is evident that even in government services where the terms and conditions of service are governed by the statutory provisions, the legislature is competent to enhance or reduce the age of superannuation. In view of the above, it is beyond our imagination as to why such a course is not permissible for the appellant-State while fixing the age of working of the District Government Advocates.

11. Thus, the law is well settled that ordinarily the writ court would not interfere with the decision taken by the

Writ Petition No.1118 of 2015, dated 06.07.2015

(1985) 1 S.C.C. 523

(2011) 5 S.C.C. 305 23 PSK,J & LNA,J wa_866&955_2023

Government / Executive to reduce or enhance the age of superannuation. In the case in hand, the said decision is not found to be arbitrary or unreasonable or violative of any statutory provision."

25. In the instant case, a plain reading of paragraph No.3 of

decision rendered by the learned Single Judge in Writ Petition

No.15770 of 2022, dated 28.06.2023 would go to show that the

respondents / petitioners in fact stood retired on attaining the

age of (58) years before the Ordinance No.4 of 2020, dated

31.07.2020, was passed. In fact, majority of the respondents /

petitioners had retired almost more than a year ago. The date of

retirement of the ten respondents / petitioners is, for

convenience, reproduced hereunder, viz.,

Sl.No. NAME DATE OF RETIREMENT

01. Dr. Ch. Ravinder 31.05.2020

02. Dr. M. Surya Prakash 30.06.2020

03. Dr. Chitla Upendra Reddy 30.06.2019

04. Dr. M. Ugandher Reddy 31.03.2020

05. Dr. I. Ramnath Raju 31.08.2019 Employee No.2505609

06. Dr. D. Anuradha 31.03.2020

07. Dr. K.V. Ram Subha Rao 30.10.2019

08. Dr. B. Gurunadham 31.05.2020

09. Dr. Darbhasayanam 30.06.2019 Srinivasacharyulu

10. Dr. Maya Bahut 31.10.2019

26. If the officers stood retired much before the Ordinance

No.4 of 2020 was passed, i.e., dated 31.07.2020, and secondly,

the officers having retired in terms of the rules and regulations 24 PSK,J & LNA,J wa_866&955_2023

governing their service conditions as it stood on attaining the

age of (58) years, and thirdly there was no further employer -

employee relationship which existed thereafter, all the

respondents / petitioners ceased to be on the rolls of the

employer when the said Ordinance No.4 of 2020 dated

31.07.2020 was passed.

27. The judgment which has been relied upon by the learned

counsel for the respondents / petitioners in the case of Dr. Ram

Naresh Sharma (1 supra) would be distinguishable on its facts

itself as that was a case where the persons seeking for

enhancement of the age were already in employment and they

continued in service on the previous age of superannuation on

the basis of an interim order granted by the High Court unlike in

the present case where all the petitioners admittedly stood

retired for a considerable period of time much before the filing of

the writ petition.

28. It is well settled that the enhancement of retirement age is

exclusively within the domain and prerogative of the employer.

This means that the employer has the sole right to decide

whether or not to raise the retirement age for its employees. The 25 PSK,J & LNA,J wa_866&955_2023

decision whether or not to enhance the retirement age is a

complex one that must be made on a case-by-case basis.

29. In the given factual matrix particularly keeping in view the

decision of the Hon'ble Apex Court in Bikartan Das (3 supra), it

was not justified on the part of the learned Single Judge to have

gone into the necessity of deciding whether the Ordinance No.4

of 2020 could be given retrospective effect or not in exercise of

its writ jurisdiction under Article 226 of the Constitution of

India.

30. For the aforesaid reasons, we are inclined to allow the Writ

Appeal filed by the State, i.e., Writ Appeal No.955 of 2023 and

set aside the order passed by the learned Single Judge in Writ

Petition No.15770 of 2022, dated 28.06.2023. At the same time,

we find sufficient force in the contention of learned counsel for

the appellant-State that the appellant in Writ Appeal No.866 of

2023 does not have locus to seek relief of leave to appeal vide

Interlocutory Application No.1 of 2023 in Writ Appeal No.866 of

2023 as the appellant therein seeks leave to appeal stands

benefited by Ordinance No.4 of 2020, dated 31.07.2020 since he

is already in employment and he does not have any right to

oppose the claim of respondents / petitioners who have been 26 PSK,J & LNA,J wa_866&955_2023

denied the benefit of Ordinance No.4 of 2020. Therefore, we are

inclined to reject Interlocutory Application No.1 of 2023 in Writ

Appeal No.866 of 2023. Consequently, Writ Appeal No.866 of

2023 stands dismissed.

31. In the result, Writ Appeal No.955 of 2023 stands allowed

and Writ Appeal No.866 of 2023 stands dismissed. No costs.

32. As a sequel, miscellaneous petitions, pending if any, shall

stand closed.

_________________ P.SAM KOSHY, J

___________________________________ LAXMI NARAYANA ALISHETTY, J

Date : 10.11.2023 Ndr/Gsd