M Edwin Fastin vs. The State Of Andhra Pradesh

HONOURABLE SMT. JUSTICE V.SUJATHA

W.P.Nos.5840, 8169, 8181, 8360, 8401, 8403, 8404, 8405, 8416, 8431, 8434, 8485, 8612, 8808, 8816, 8958, 9619, 9625, 9631, 9982, 10110, 10136 and 10418 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.

These writ petitions are filed under Article 226 of the Constitution of India, to declare the action of the respondents, in retiring the petitioners from service at the age of sixty (60) years without allowing them to remain in service till they attain the age of superannuation of sixty-two (62) years, as arbitrary, illegal, unjust, discriminatory and consequently allow the petitioners to continue in service upto the age of sixty-two (62) years with all consequential benefits in accordance with law.

The facts of the present cases, in brief, are that the petitioners are working in APSPDCL/APTransco/APGenco /APCPDCL. The Andhra Pradesh Public Employment (Regulation of age of Superannuation) (Amendment) Ordinance, 2022 was published in the Andhra Pradesh Gazette Part IV-B Extraordinary on 31.01.2022 by way of Ordinance No.1 of 2022 wherein, the age of superannuation was enhanced from 60 to 62 years vide G.O.Ms.No.15 Finance (HR.IV-FR&LR), dated 31.01.2022.

The petitioners submit that, in pursuance of the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014 (Act No.4/2014), orders were issued in G.O.Ms.No.147 Finance (HRM IV) Department, dated 30.06.2014, enhancing the age of superannuation from 58 years to 60 years to the State Government employees. Subsequently, vide G.O.Ms.No.102 Finance (HR.IV-FR) Department, dated 27.06.2017, permission was accorded, enhancing the age of superannuation of employees from 58 years to 60 years, working in the institutions listed in Schedules IX and X of A.P. Re-organization Act, 2014, subject to the condition that specific decision to enhance the age of superannuation from 58 to 60 years to their employees shall be taken by the Board of Directors/Management Committees, taking into consideration their financial position and genuineness of their need to enhance the age of superannuation.

Thereafter, the Andhra Pradesh Southern Power Distribution Company Limited as per G.O.Ms.No.102 (HR.IV-FR) Department, dated 27.06.2017, issued orders enhancing the age of superannuation from 58 years to 60 years to its employees, vide S.O.O. (CGM-HRD) Ms.No.585, dated 29.06.2017.

The petitioners submit that policies of the Government issued from time to time on different counts for the State Government employees viz., House Rent Allowance, City Compensatory Allowance, Allowances of Additional Quantum of pension/family pension to those pensioners/family pensioners etc., have been adopted by the respondents. By virtue of enhancing the age from 58 years to 60 years, the employees are being continued till completion of 60 years.

While the things stood thus, the State Government issued G.O.Ms.No.15, Finance (HR IV – FR&LR) Department, dated 31.01.2022 enhancing the age of superannuation of its employees from 60 years to 62 years. It is the contention of the petitioners that such enhancement of age from 60 years to 62 years was arbitrarily and discriminatively not extended to the employees of the institutions/Public Sector Undertakings listed

under Schedules IX and X of the A.P. Re-organisation Act, 2014. It is contended that the respondents – Corporations did not initiate any kind of affirmative steps to send proposal to the State Government requesting to enhance the age of superannuation of its employees from 60 to 62 years. Due to this reason, many of the employees were forced to retire immediately after completion of 60 years of service and some of them have already retired, thereby putting the employees to severe and irreparable loss. The inaction on the part of the respondents in not sending proposals, seeking permission to enhance the age of superannuation from 60 to 62 years is illegal, arbitrary discriminative and violative of Articles, 14, 16 and 21 of the Constitution of India, the same is challenged in the present writ petitions.

Respondents filed counter affidavits in some writ petitions, contending that the employees working in the respondents - Corporations do not fall under the category of Government employees and even their salaries are paid from the revenue of the Corporation and not from the consolidated fund of State.

It is further contended that the Division Bench of this Court in W.A.No.1033 of 2022 and batch held that Act 23 of 1984 is not applicable to the employees working under various corporations and state undertakings and as such they cannot claim enhancement of retirement age to 62 years as a matter of right. Earlier the Government issued G.O.Ms.No.102 dated 27.06.2017 enhancing the age of superannuation of employees working in the institutions listed in IX and X Schedule Institutions from 58 to 60. Paragraph No.4 of the said G.O.Ms.No.102 is as follows:

"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 their need and assessment of performance of these societies."

It is further contended that in view of the common order passed by the Division Bench of this Court in W.A.No.1033 of 2022 and batch, the petitioners herein are not entitled for enhancement of retirement age from 60 to 62 years as Act 23 of 1984 do not apply to them and they do not fall under the category of a Government employee. In view of the clarification issued by the Government of Andhra Pradesh vide circular memo dated 23.09.2022, the petitioners are entitled to continue in service only up to 60 years as the said circular memo specifically states that the amendment made under Act 4 of 2022 does not apply to the public sector undertakings and Government Corporations.

It is further contended that as many corporations are adopting the enhancement of retirement age from 60 to 62 years without permission from the Government, the Government has issued a circular vide Cir.Memo.No.1813129/ FIN01-HR/212/2022-HR-IV dated 23.09.2022 clarifying that the enhancement of retirement age from 60 to 62 years is only for the Government employees and not for employees working in Corporations and Government undertakings and ordered all the Corporations to take remedial action. Therefore, the petitioners are not entitled to continue in service beyond 60 years and requested to dismiss the writ petition.

Learned counsel for the petitioners would submit that the APSPDCL/APCPDCL/APTransco/APGenco ought to have sent proposals to the State Government for enhancement of age of superannuation from 60 to 62 years as was done earlier. The respondents ought to have amended the Service Rules and Regulations, enabling the employees to continue in service till they attain the age of 62 years. Learned counsel would further contend that initially, enhancement of age from 58 to 60 years was extended to the employees who belong to the Public Sector Undertakings of the State Government, but the same was not done now, and without getting this benefit, many employees got retired from service on attaining the age of 60 years.

Learned counsel for the petitioners would further submit that petitioners are working in the respondents – corporations, which are Public Sector Undertakings as defined under Article 12 of the Constitution of India. He submits that pursuant to (Amendment) Act No.4 of 2022 to Act No.23 of 1984, respondents ought to have addressed a letter(s) to the

higher authorities requesting to enhance the age of superannuation in respect of its employees on par with the State Government employees whose age of superannuation was enhanced from 60 years to 62 years.

Learned counsel for the petitioners would further submit that as per Section 1 (2) of Act No.23 of 1984, a person who is appointed to Public Services in connection with the affairs of the State is termed as "an employee of the Government" and as such his service conditions should be reckoned on par with the State Government employees. Learned counsel for the petitioners would strenuously contend that the petitioners herein who are employees of respondents – corporations are rendering their services in connection with the affairs of the State, as such the petitioners herein also fall within the definition of Section 1 (2) of Act No.23 of 1984, thereby they are entitled for enhancement of age of superannuation from 60 years to 62 years.

On the other hand, learned Standing Counsel for Corporations submits that, in "The Managing Director vs.

C.Chandrasekhar Reddy1", the Division Bench of this Court upheld the contention of the Corporation while setting aside the impugned order therein of the learned Single Judge, in which the age of superannuation was enhanced from 60 to 62 years. He further submits that the services 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.

The learned Standing Counsel would further submit that the employees of the respondents are not entitled for enhancement of age of superannuation from 60 to 62 years. He also points out that the Service Rules of the Corporation Employees were also misinterpreted and those Service Rules do not come under the purview of Service Rules made under Article 301 of the Constitution of India and requested to dismiss the writ petitions.

Heard learned counsel for the petitioners and learned Standing Counsel for the respondents and perused the material available on record.

¹ W.A.No.1033 of 2022 and batch, dated 05.05.2023

It is a fact that the petitioners were employed in the respondents Corporations. The primary contention is that when the respondents are adopting all the policies of the State Government which are applicable to the State Government employees viz., HRA, CCA, etc, the present benefit of enhancement of age of superannuation from 60 to 62 years ought to have been adopted up by the respondents.

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 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.

In "The Managing Director vs. C.Chandrasekhar Reddy

(referred supra)" wherein 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 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 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."

This Court finds that the learned Standing Counsel had clearly specified that they had sought a clarification from the Government of Andhra Pradesh as to whether enhancement of age from 60 to 62 years would apply to Corporations, Public Sector Undertakings and institutions listed under Schedules IX and X of the Andhra Pradesh Reorganisation Act, 2014. The present writ petitions are premature till the Government takes a decision on the matter. Even, in the past, it is stated that the Government issued supporting orders for Corporations/Societies for enhancement of age. Therefore, the case of the petitioners will be considered on similar lines once the decision of the Government is obtained. It was also clarified by the Government that certain PSUs, Corporation have enhanced the age of superannuation to 62 years without getting necessary approval and sanction and therefore remedial action has to be taken by the very appointed authority. 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 the relief.

The Government issued clarification vide Cir.Memo.No.1813129/FIN01-HR/212/2022-HR-IV dated 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 employees working in Corporations and Government undertakings.

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 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 by passing Board Resolution and addressing the same to the State Government in respect of enhancement of age of superannuation from 60 to 62 years on par with the employees of State Government.

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

30.08.2023 Ksp