Andhra Pradesh High Court - Amravati
Prof.M.Srinivasulu Reddy vs Union Of India on 16 April, 2024
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
WRIT PETITION No. 21745 OF 2023
ORDER:
Heard Sri C.V. Mohan Reddy, learned Senior Counsel, assisted by Sri V.R.N. Prasanth, learned Counsel for the Writ Petitioners; Sri K.V. Raghuveer, learned Government Pleader for Higher Education, assisted by Sri C.B. Adarsh Kumar, learned Assistant Government Pleader for Higher Education-Respondent No.3; Sri Butta Vijaya Bhaskar, learned Standing Counsel for S.V.U-Respondent No.5; Sri M. Koteswara Rao, learned Standing Counsel for Dravidian University - Respondent No.7; Smt. M. Manikya Veena, learned Standing Counsel for SPMVV - Respondent No.8; Sri Kari Basaiah, learned Standing Counsel for S.K University - Respondent No.9; Sri M. Murali Lincoln, learned Standing Counsel for A.N.U - Respondent No.10; Sri Penjuri Venugopal, learned Standing Counsel for JNTU - Respondent No.11; Sri T. Niranjan, learned Standing Counsel for Y.V.U - Respondent No.12.
2. Prayer made in the Writ Petition is as under:-
"For the reasons stated in the accompanying affidavit, the Hon'ble High Court may be pleased to issue a writ, direction or order or orders, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not extending the benefits of G.O.Ms.No.39 Higher Education (UE) dated 29.07.2023 as illegal, arbitrary and violative of Article 14 of the 2 Constitution of India and consequently direct the 5 th respondent to reinstate the Petitioners similarly placed petitioners to those retired from service on or after 01.01.2022 with all consequential benefits including the monetary benefits and pass such other order or orders as are deem fit and proper in the circumstances of the case."
SUBMISSIONS OF LEARNED COUNSEL FOR THE WRIT PETITIONERS:
3. Sri C.V. Mohan Reddy, learned Senior Counsel has submitted that the issue of enhancement of age of superannuation for teaching faculty in the centrally funded universities from 62 to 65 years has been considered by the Ministry of Human Resource Development (the HRD Ministry), Department of Higher Education. In that sequel, the HRD Ministry has addressed a letter to the University Grants Commission (the UGC) on 23.03.2007 (Ex.P.2). The said letter stipulates that all the persons who are holding teaching posts on regular employment against the sanctioned posts as on 15.03.2007 in the centrally funded institutions in higher and technical education shall be superannuated on completion of 65 years of age. This means, that the age of superannuation of all persons who are holding teaching posts on regular employment has been enhanced from 62 to 65 years. On or about 31.12.2008, the HRD Ministry, Department of Higher Education has also conveyed its decision to revise the pay scales of the teachers in 3 the Central Universities. This was conveyed by the HRD Ministry to the UGC.
4. The cardinal purpose for enhancement of age of superannuation from 62 to 65 years is to mitigate the shortage of teachers in Universities and other teaching institutions and also to utilise the valuable human resource of teaching which is enriched by their long experience in their respective subjects.
5. He would further submit that keeping in tune with these trends namely the recommendation for enhancement of age of superannuation by the HRD Ministry, Department of Higher Education, as implemented through the UGC, the Andhra Pradesh State Council of Higher Education - Respondent No.4 herein, has also recommended to the Respondent No.3 namely the Higher Education Department, Government of Andhra Pradesh to enhance the age of superannuation from 60 to 62 years vide APSCHE Lr.No.APSCHE/UM-777/AP.UGCRPS- Superannuation -2nd Coomt/2014, dated 18.07.2014. The Government of Andhra Pradesh through Higher Education Department issued G.O.Ms.No.59 Higher Education (UE) Department dated 24.12.2014 (Ex.P.6) thereby enhancing the age of superannuation of regular University teachers in the State from 60 to 62 years with effect from 02.06.2014. 4
6. It is further submitted by the learned Senior Counsel that the Respondent No.4 has addressed a letter informing that the 6th Central Pay Commission constituted by the Government of India has recommended enhancement of age of superannuation for teachers to 65 years.
7. Learned Senior Counsel would submit that the Respondent No.3 has issued G.O.Ms.No.39 Higher Education (UE) Department dated 29.07.2023 (hereinafter referred as G.O.Ms.No.39) (Ex.P.1), thereby enhancing the age of superannuation of teachers in all State Universities under the administrative control of Higher Education from 62 to 65 years with a condition that such benefit shall be applicable only to the teaching faculty who are drawing U.G.C Scale of Pay in the Universities in the State. Relevant portion of the G.O.Ms. No.39 Higher Education (U.E) Department dated 29.07.2023 (Ex.P.1) is usefully extracted hereunder:
"Government after careful examination of the matter, hereby enhance the age of superannuation of regular teachers working in the Universities of the State of Andhra Pradesh under the Administrative control of Higher Education Department from 62 years to 65 years. The enhanced age of superannuation is applicable only to the Teaching faculty, who are drawing UGC scale of pay in Universities in the State."
8. The impact of this G.O.Ms.No.39 dated 29.07.2023 is that the Universities shall extend the benefit flowing from 5 G.O.Ms.No.39 (Ex.P.1) to the teachers working in the Universities of the State of Andhra Pradesh prospectively from 29.07.2023. The Writ Petitioners have submitted Representation prior to the issuance of G.O.Ms.No.39 dated 29.07.2023 requesting the Government to consider the extension of age of superannuation from 62 years to 65 years. They have submitted Representations on 09.07.2019, 10.01.2022 and 02.07.2023 (Ex.P.8 colly). They have also submitted Representation on 31.07.2023 (Ex.P.8 colly). Since the requests of the Writ Petitioners dated 31.07.2023 has not been positively considered, this G.O.Ms.No.39 dated 29.07.2023 is assailed by the teachers who had worked in the Universities in the State of Andhra Pradesh but have superannuated prior to 29.07.2023.
9. The present Writ Petitioners who are 46 in number have worked and retired after completing the age of 62 years on various dates prior to coming into force of G.O.Ms.No.39 (Ex.P.1). The Chart/Table at the end of Paragraph No.3 of the Affidavit filed in support of this Writ Petition would indicate the dates of their superannuation after completion of 62 years in the years 2022 and 2023. Some Professors have even retired on 30.06.2023. Since the Universities have implemented G.O.Ms.No.39 (Ex.P.1) from 29.07.2023 onwards (prospectively), the present Writ Petitioners are seeking application of 6 G.O.Ms.No.39 (Ex.P.1) retrospectively in their favour. The paramount contention in the present Writ Petition is that the underlying object of G.O.Ms.No.39 (Ex.P.1) is "to keep up the expertise and also retain the senior most faculty in the Andhra Pradesh State Universities for some more time", so that the respective Universities can get the benefit of grading in the National Assessment and Accreditation Council (NAAC) and to harness the Central Government grants, the Writ Petitioners must also be re-appointed. The submission of the learned Senior Counsel is that the object that is spelt out in the G.O.Ms.No.39 (Ex.P.1) can only be achieved to its fullest extent when the Universities reappoint the Writ Petitioners into their respective faculties.
10. Learned Senior Counsel would submit that the Government Order can be given retrospective application, since there is no express bar on retrospective operation of the G.O.Ms.No.39 (Ex.P.1). He would also submit that the G.O.Ms.No.39 (Ex.P.1) does not expressly state that the operation of the G.O.Ms.No.39 (Ex.P.1) shall be prospective. Learned Senior Counsel has also cited G.O.Ms.No.52 School Education (PS) Department dated 12.06.2023 (Ex.P.7). By this G.O, Section 78-A of A.P Education Act has been amended to the effect that the age of superannuation, that has been effected 7 vide Act No. 21 of 2023, provided for retrospective operation by treating the gap between the date of retirement and date of assuming of office as leave period and if no leaves are available, the same shall be treated as Extra-Ordinary Leave. Learned Senior Counsel would submit that this analogy can be applied even in respect of the present Writ Petitioners in order to adjust the gap between their dates of superannuation and the dates of joining, if the Writ Petitioners are allowed to resume their services in various faculties.
11. Learned Senior Counsel has specifically submitted that the Writ Petitioners have not consciously accepted/drawn the „retirement benefits‟ with a view that the State would accommodate them by recommending them for reappointment into respective faculties. He would also submit that the amount (retiral benefits) has been lying with the Government, and that, the Government has benefitted by keeping their retiral benefits. SUBMISSION OF THE LEARNED GOVERNMENT PLEADER FOR HIGHER EDUCATION:
12. Sri K.V. Raghuveer, learned Government Pleader for Higher Education has taken the Court through the contents of the Counter Affidavit. His contention on behalf of the Department of Higher Education is multi-fold, which are as follows : 8
a) That the G.O.Ms.No.39 (Ex.P.1) has not been intended to operate retrospectively, and that it is only intended to operate prospectively;
b) That in the process of Judicial Review, the Court cannot direct the Government to apply the G.O.Ms.No.39 retrospectively as the Government never intended to do so and that it is the conscious decision taken by the Government;
c) That the Government, in its wisdom, by taking into account the financial implications attached to the decision, has decided to implement the G.O.Ms.No.39 dated 29.07.2023 (Ex.P.1) prospectively;
d) That the Writ Petitioners do not have any vested right for reappointment by seeking to apply the benefit of enhancement of age of superannuation upto the completion of 65 years of age after they have retired from service.
13. In this connection, Sri K.V. Raghuveer, learned Government Pleader for Higher Education has cited several authorities rendered by the Hon‟ble Apex Court. He has referred to a Judgment of the Hon‟ble Apex Court in Dr. Prakasan M P and Others Vs. State of Kerala and another in Civil Appeal 9 No.7580 of 2012. Learned Government Pleader has cited Para Nos.17 and 18. The same are usefully extracted hereunder:
"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.
18. Pertinently, similar pleas as taken by the respondents-employees herein were raised in the case of NOIDA (supra) where the employees had sought to invoke the principles of promissory estoppel and legitimate expectation for increasing the age of superannuation retrospectively and were shot down as inapplicable. For taking this view, reliance was placed on Monnet Ispat and Energy Limited. Vs. Union of India13 wherein this Court had opined that if a communication issued was a proposal or a mere recommendation, the principle of promissory estoppel will not apply for the simple reason that for invoking the said principle, there must be a promise and based on the said promise, the party concerned ought to have acted to its prejudice. In the NOIDA case (supra), this Court had outrightly turned down the argument advanced by the respondent- employees therein that the Doctrine of Legitimate Expectation would come into play. It was held that the said doctrine cannot have a place when enhancement of the age of superannuation is "a public function" that is governed by the provisions of the Statute and the relevant service regulations. The position is the same in the present case."10
14. The ratio of the above Judgment of the Hon‟ble Apex Court would indicate that, 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.
15. Learned Government Pleader for Higher Education has also cited a Judgment rendered by the Hon‟ble Apex Court in B. Bharat Kumar and Others Vs. Osmania University and Others ((2007) 11 SCC 58). He relied on Para Nos.14, 21 and 23 of the Judgment, which are usefully extracted hereunder:
"14. In spite of our best efforts, we have not been able to follow as to how the judgment of the Kerala High Court, which has been approved by this Court is, in any manner, different from the factual situation that prevails here in this case. It is for that reason that we have extensively quoted not only the aforementioned letter dated 27-7-1998 but also the subsequent letters and the further policy statement. Plain reading of all these is clear enough to suggest that the scheme was voluntary and it was up to the State Governments to accept or not to accept the scheme. Again even if the State Government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State Government. In fact the subsequent developments suggest that the State Government has not chosen to accept the scheme in full inasmuch as it has not accepted the suggestions on the part of UGC to increase the age of superannuation.
21. Since there is no conflict in the present case whatsoever, either apparent or latent, as such there is no question of invalidating the said GOMs which has been challenged only in few of the writ petitions. Even after the said GOMs came on the anvil, the petitioners who had filed the writ petitions earlier have never bothered to amend their writ petitions so as to challenge the said GOMs. However, we leave it at that particularly when we have taken the view that there has been no 11 conflict between any of the Central legislation or for that matter its policy and the said GOMs or the policy of the State Government displayed from the same.
23. Further it is clear from the letter dated 27-7-1998 that it is expressly left to the discretion of the State Government to implement or not to implement the policy. Once there is no question of any conflict we do not think that would have the effect of overruling T.P. George [1992 Supp (3) SCC 191] . Further, merely because in Yashpal case [(2005) 5 SCC 420] the observation are about the gamut of the University it does not necessarily mean that the State Government will not be able to decide the age of retirement, particularly where it has the discretion to do so as also the legislative powers. We must hasten to add that no provision of any Act has been challenged in these writ petitions. All that the plea of the appellants in the original writ petitions was that the State Government must implement the UGC recommendations of the scheme and it was rightly found to be untenable."
16. Sri K.V. Raghuveer, learned Government Pleader for Higher Education has also cited a Judgement in New Okhla Industrial Development Authority and Another Vs. B.D. Singhal and Others ((2021) 17 SCC 435). He relies on Para Nos.29 to 32, which are usefully extracted hereunder:
"29. 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 Authority. Though Noida Authority sought the approval of the State Government for the enhancement with "immediate effect", it never intended or portrayed to have intended to give retrospective effect to the prospectively applicable government order. The representation of Noida Authority could not have given rise to a legitimate expectation since it was a mere recommendation which was subject to the approval of the State Government. Hence, the doctrine of legitimate expectation also finds no application to the facts of the present case.12
30. The reliance placed by the respondents on Dayanand Chakrawarty [State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 : (2013) 2 SCC (L&S) 791] to argue that they were willing to work till they attained the age of sixty years but were not permitted to, and thus the principle of "no work no pay" would not be applicable is misplaced. In Dayanand Chakrawarty [State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 : (2013) 2 SCC (L&S) 791] , the issue before the two-Judge Bench of this Court was whether prescription of different ages of retirement based on the mode of recruitment under the U.P. Jal Nigam (Retirement on Attaining Age of Superannuation) Regulations, 2005 was unconstitutional for violating Article 14 of the Constitution. This Court held that the differential superannuating age was discriminatory.
However, by virtue of Regulation 31 of the U.P. Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978 the service conditions of the State Government employees is applicable to the U.P. Jal Nigam employees. Therefore when the Jal Nigam through an office memorandum had resolved that the age of retirement for its employees shall be fifty-eight years, though it was sixty years for the State Government employees, it was set aside by this Court in Harwindra Kumar v. Chief Engineer, Karmik [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 : 2006 SCC (L&S) 1063] .
In Harwindra Kumar [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 : 2006 SCC (L&S) 1063] and the subsequent cases (U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] and U.P. Jal Nigam v. Radhey Shyam Gautam [U.P. Jal Nigam v. Radhey Shyam Gautam, (2007) 11 SCC 507 :
(2008) 1 SCC (L&S) 59] ) involving the age of retirement of the U.P. Jal Nigam employees, this Court had held that employees who had approached the courts shall be entitled to full salary until the age of sixty years. It was in this context that a two-Judge Bench of this Court speaking through Mukhopadhaya, J. made the following observation in Dayanand Chakrawarty [State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 :
(2013) 2 SCC (L&S) 791] : (Dayanand Chakrawarty case [State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 : (2013) 2 SCC (L&S) 791] , SCC p. 614, para
48) "48. ... We observe that the principle of "no pay no work" is not applicable to the employees who were guided by specific 13 rules like Leave Rules, etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no pay no work" shall not be applicable to such employee."
31. In Dayanand Chakrawarty [State of U.P. v. Dayanand Chakrawarty, (2013) 7 SCC 595 :
(2013) 2 SCC (L&S) 791] the Court directed payment of arrears deeming the employees to have worked till sixty years in spite of no interim order being issued in that regard because (i) the Office Memorandum was held ultra vires; (ii) Harwindra Kumar [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 :
2006 SCC (L&S) 1063] , Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , and Radhey Shyam Gautam [U.P. Jal Nigam v. Radhey Shyam Gautam, (2007) 11 SCC 507 : (2008) 1 SCC (L&S) 59] had already held that the age of retirement of the Jal Nigam employees shall be 60 years unless a regulation prescribing a lower retirement age is issued in terms of Regulation 31, and had extended this benefit to all the parties who had filed writ petitions.
Therefore, the above observation must be read in the context of the distinct factual situation in the case.
32. The argument of the employees that since they had moved the Chief Minister with a representation in August 2012 before their date of superannuation which was to fall at the end of the month and that they should have the benefit of the enhancement in the age of superannuation has no substance. On 31-8-2012, the respondents moved the High Court but no interim relief was granted to them and they attained the age of superannuation. They have not worked in service thereafter. Since the High Court's judgment dismissing the challenge to the Government Order dated 30-9-2012 has attained finality, the submission cannot be accepted."
14RE-JOINDER BY LEARNED COUNSEL FOR THE WRIT PETITIONERS:
17. Sri V.R.N. Prasanth, learned Counsel for the Writ Petitioners while giving Rejoinder, has cited a Judgment of the Hon‟ble Apex Court in Balco Employees Union Vs. Union of India (UOI) and Others dated 10.12.2001 in Transfer Case (Civil) No.8 of 2001. Learned Counsel for the Writ Petitioners has placed reliance on Para No.42 of the said Judgment, which is usefully extracted hereunder:-
42. While considering the validity of the industrial policy of the State of Madhya Pradesh relating to the agreements entered into for supply of sal seeds for extracting oil in M.P. Oil Extraction v. State of M.P. [(1997) 7 SCC 592] the Court at p. 610-11 held as follows: (SCC para 41) "41. After giving our careful consideration to the facts and circumstances of the case and to the submissions made by the learned counsel for the parties, it appears to us that the Industrial Policy of 1979 which was subsequently revised from time to time cannot be held to be arbitrary and based on no reason whatsoever but founded on mere ipse dixit of the State Government of M.P. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating 15 that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of the three organs of the State i.e. legislature, executive and judiciary in their respective fields of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields."
(emphasis added)"
ANALYSIS:
18. Having taken into consideration, the contentions of the Writ Petitioners and the Respondents, the following issues would arise for consideration:
i. Whether a Writ of Mandamus can be issued in favour of the present Writ Petitioners, who have superannuated as teachers from the Universities prior to 29.07.2023, for re- appointment or re-instatement?
ii. If such Writ of Mandamus can be issued, whether this Court can give a direction to the Respondents to apply the analogy from G.O.Ms. No.52 School Education (PS) 16 Department, dated 12.06.2023 for treating the gap between the superannuation till the date of re-appointment/re-instatement?
19. ISSUES:
Insofar as the issue with regard to the applicability of G.O.Ms.No.39 Higher Education (U.E) Department dated 29.07.2023 with retrospective effect, this Court is of the view that this issue is squarely covered by the Judgment rendered by the Hon‟ble Apex Court in Dr. Prakasan M P and Others‟s case and the other two Judgments cited by the Learned Government Pleader for Higher Education (in B. Bharat Kumar and Others Vs. Osmania University and Others ((2007) 11 SCC 58) and New Okhla Industrial Development Authority and Another Vs. B.D. Singhal and Others ((2021) 17 SCC 435) would also squarely apply to the facts of this case.
20. Accordingly, this Court is of the considered opinion that it cannot declare and give a direction that G.O.Ms.No.39 Higher Education (U.E) dated 29.07.2023 (Ex.P.1) can be applied retrospectively for it is purely the executive domain. At the same time, it is a settled law that it is for the Government to take a call on the policy decision and therefore, this Court cannot issue a Mandamus directing the Petitioners to be re-appointed/re-
instated into services. This Court is also of the opinion that the G.O.Ms. No.52 School Education (PS) Department, dated 17 12.06.2023 (Ex.P.7) cannot enure to the benefit of the Writ Petitioners, since the same relates to the Department of School Education and that the Government has taken a decision to treat the gap between the dates of superannuation by the Teachers therein and the date of re-appointment/re-instatement as leave period if leaves are available or as extraordinary leave if leaves are unavailable. This Court is in complete agreement with the submissions made by the learned Government Pleader for Higher Education that the issues raised by the Writ Petitioners are no more res Integra. In the above premise, this Court is of the opinion that the Writ Petition is devoid of any merit.
21. Accordingly, this Writ Petition is dismissed. However, the Respondents are free to re-engage the services of the Writ Petitioners in future, if the State intends to review its‟ policy decision. No order as to costs.
22. Interlocutory Applications, if any, stand closed in terms of this Order.
__________________________________________ (GANNAMANENI RAMAKRISHNA PRASAD, J) Dt: 16.04.2024 JKS/MNR 18 110 HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD WRIT PETITION No. 21745 OF 2023 Dt: 16.04.2024 Note: LR Copy to be marked.
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