Telangana High Court
B. Sambasiva Rao vs The State Of Telangana And 4 Others on 7 August, 2020
Equivalent citations: AIRONLINE 2020 TEL 115
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HIGH COURT OF JUDICDATURE FOR THE STATE OF
TELANGANA : HYDERABAD
****
WP.No.s 7225, 8473, 8487, 8866 and 8880 of 2020
WP.No.7225 of 2020
B.Sambasiva Rao ...... Petitioner
Vs.
The State of Telangana, Rep. by its special Chief Secretary,
Education Department, Secretariat Buildings, Hyderabad and others.
....... Respondents
DATE OF THE JUDGMENT PRONOUNCED: 07.08.2020
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgment?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Lordships wish to Yes/No
see the fair copy of the judgment?
___________________________
M.S.RAMACHANDRA RAO, J
_______________________
T.AMARNATH GOUD, J
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* HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
+ WP.No.s 7225, 8473, 8487, 8866 and 8880 of 2020
% DATED 7th AUGUST, 2020
WP.No.7225 of 2020:
# B.Sambasiva Rao ...... Petitioner
Vs.
$ The State of Telangana, Rep. by its special Chief Secretary,
Education Department, Secretariat Buildings, Hyderabad and others.
....... Respondents
<Gist:
>Head Note:
In all the Writ Petitions:
! Counsel for the petitioners : Sri R.Satyanarayana Murthy
in 7225, 8487, 8866 and 8880 of 2020
! Counsel for the petitioner : Sri K.Lakshmi Narasimha
in 8473 of 2020
^Counsel for 1st respondent : Sri L.V.S.Nagaraju
^Counsel for Respondents 2 & 3 : Smt C.Vani Reddy
^Counsel for 4th Respondent : Sri P.Govind Reddy, Special
Counsel
? CASES REFERRED:
1. 2017 (6) ALD 103 (DB)
2. 2018(3) ALD 470 (DB)
3. 2017 (4) ALT 173
4. 2019(1) ALD 7 (SC) = AIR 2018 SC 5510
5. (2014) 2 SCC 114
6. (1981) 1 SCC 449
7. (1991) 1 SCC 189
8. (1987) Supp SCC 228
9. (1992) 4 SCC 118
10. (2013) 2 SCC 516
11. 2019(17) SCC 364
12. These details are noted in the decision of the Supreme Court in K.Anand Rao Vs. S.S.
Rawat .. (2019) 13 SCC 24.
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HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
WP.No.s 7225, 8473, 8487, 8866 and 8880 of 2020
COMMON ORDER:(Per Hon'ble Sri Justice M.S. Ramachandra Rao) The A.P. State Residential Educational Institutions Society (hereinafter referred to as the "erstwhile APREIS") was established in 1972 in the erstwhile composite State of Andhra Pradesh as a Society registered under the A.P. Public Societies Registration Act, 1350 Fasli. It ran several Residential Schools, Residential Junior Colleges and Residential Degree Colleges in the composite State of Andhra Pradesh.
2. The composite State of Andhra Pradesh was bifurcated on 02-06-2014 pursuant to the A.P. Reorganization Act, 2014 (for short 'the Act') into the new State of Telangana and the residuary State of Andhra Pradesh. The erstwhile APREIS was listed at Sl.No.41 of the X Schedule to the Act.
3. After 02-06-2014, it is the admitted case of both sides that the erstwhile APREIS was bifurcated into two Societies, one for the new State of Telangana called Telangana State Residential Educational Institutions Society (TREIS) vide G.O.Ms.No.305, GA (SR) dt.10-10-2014 and one for the residuary State of Andhra Pradesh called A.P. State Residential Educational Institutions Society (APREIS) vide G.O.Ms.No.23 Education dt.31-05-2014. These Societies are registered under the A.P. Societies Registration Act, 2001.
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4. The petitioners in all these Writ Petitions were employed in various capacities in Residential Junior Colleges run by the APREIS in the composite State of Andhra Pradesh, and as on 02-06-2014, they were working in various capacities in the State of Telangana in the said Institutions as under:
Sl. W.P.No. Name of petitioner Post in which Place at which petitioner is petitioner is No. working working 1 7225/2020 B.Sambasiva Rao Physical T.S.R. Junior Director College, Sarvail, Yadadri Bhuvanagiri District, Telangana State.
2 8473/2020 O.N.Srinivasa Principal T.S.R.School
Reddy and College,
Beechupalli,
Jogulamba
Gadwal Dist,
Telangana
State
3. 8473/2020 K.Umamaheswara P.G.Teacher T.S.R.School
Reddy (Mathematics) and College
Beechupalli,
Jogulamba
Gadwal Dist,
Telangana
State.
4. 8473/2020 C.Urukondaiah P.G.Teacher T.S.R.School
(Mathematics) and College
Beechupalli,
Jogulamba
Gadwal Dist,
Telangana
State.
5. 8473/2020 V.Hari Junior T.S.R.Junior
Lecturer in College,
Sanskrit Sarvail,
Yadadri
Bhuvanagairi
District,
Telangana
State
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6. 8487/2020 G.Hari Babu Junior College T.S.R.Junior
Librarian College,
Sarvail,
Yadadri
Bhuvanagairi
District,
Telangana
State
7. 8866/2020 N.Kureshi Banu Staff Nurse T.S.R.School
(Boys),
Borabanda,
Hyderabad.
8 8880/2020 Sh.Nazeera Begum P.G.T.Telugu T.S.R.School
(Boys),
Toopran,
Medak Dist,
Telangana
State
5. It is the plea of all the petitioners in these Writ Petitions that all of them are willing to work in the residuary State of Andhra Pradesh as they are local to the said State and that they should be transferred to the APREIS in the residuary State of Andhra Pradesh.
6. All the petitioners gave representations to the Secretary of the APREIS that their local status is Andhra Pradesh, that they are now working under the control of TREIS, and requested that they should be transferred to their native State of Andhra Pradesh.
7. Thereupon, the APREIS wrote a letter on 05-07-2018 to the Special Chief Secretary to Government, School Education Department, A.P. Secretariat, Velagapudi, Amaravathi, State of Andhra Pradesh forwarding the said representations and stating that Board of Governors of the APREIS, in its meeting held on 07-04-2016, had agreed to accommodate all the employees like the petitioners whose nativity is Andhra Pradesh and who are working in the TREIS Institutions in MSR,J & TA,J ::7:: wp_7225_2020 & batch Telangana State as per their options, and also agreed to submit the same proposal to the Government for orders; such proposals were submitted to the Government through letter dt.06-05-2016; earlier with the approval of both the Governments, certain A.P.Residential Junior College lecturers and A.P. Residential Degree College lecturers were allotted to their native State of Telangana; and requested the Government of Andhra Pradesh to issue necessary orders on the representations of the petitioners and others, now working in Telangana State, for their allotment to Andhra Pradesh State in existing vacancies since there were sufficient vacancies to accommodate them in the Andhra Pradesh State as their services were required in APREIS.
8. On 03-08-2018, the Dy. Secretary to Government, School Education Department, A.P. Secretariat, Velagapudi, Amaravathi wrote to the Secretary, APREIS that the said Society should have an agreement on the subject matter with the Secretary, TREIS with mutual understanding and decide the modalities to settle the issue; and in the meantime to also furnish details of how many employees having A.P. local status are working in Telangana State, and how many employees are willing to come to Andhra Pradesh, and vice versa go to Telangana, and thereafter knock the door of the Government.
9. Accordingly, the Secretary APREIS, through a letter dt.09-08-2018, called for willingness of employees whose local status is Telangana and working in APREIS and who wished to go to TREIS.
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10. The Secretary, TREIS wrote to the Secretary, APREIS furnishing list of 23 employees working in Telangana (TREIS) but who have the nativity of A.P.
11. On receipt of the same, the Secretary APREIS addressed a letter dt.17-09-2018 to the Special Chief Secretary to Government, School Education Department, A.P., Amaravathi that 23 persons out of 145, whose local status is A.P., are working in TREIS, and willing for their allotment to A.P., and that the said list had been furnished by the Secretary, TREIS, Hyderabad; and one employee out of 13, whose local status is Telangana and working in A.P., is willing to get allotment to TREIS.
12. The Dy.Secretary to Government, School Education Department, A.P. Secretariat at Velagapudi again wrote a letter on 20-09-2018 to the Secretary, APREIS stating that in the earlier letter dt.03-08-2018 he was asked to have an agreement on the subject matter with the Secretary, TREIS with mutual understanding and decide the modalities to settle the issue and also to furnish list of employees, but he had only given the information furnished to him by the Secretary, TREIS. The Dy.Secretary School Education Department, A.P. Secretariat directed the Secretary, APREIS to furnish information regarding such agreement/understanding and decision on modalities.
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13. In spite of the same, no agreement appears to have been reached between APREIS and TREIS regarding modalities to settle the issue of allocation of employees till date.
14. On 12-02-2019, the Secretary TREIS wrote to the Secretary APREIS that the Government of Telangana had requested to get concurrence letter of the APREIS in the first instance and submit the report to it for taking necessary action in the matter; and he requested the latter to send the concurrence letter from APREIS so as to submit the report to the Government of Telangana for taking necessary action for allotment of staff whose local status is A.P., but working in TREIS in the Telangana State.
15. On 06-03-2019, the Special Chief Secretary to Government, School Education Department, Andhra Pradesh wrote to the Special Chief Secretary to Government, School Education Department of Telangana State forwarding the list of employees whose local status is A.P. and now working under the control of TREIS in Telangana State and vice versa and asking the latter to furnish the consent from the Government of Telangana on the proposal of the Secretary APREIS, Guntur for considering the inter State transfer to the APREIS of the persons mentioned in the said letter who are working under the control of TREIS.
16. But suddenly the Government of Telangana (School Education Department) took a decision on 14-11-2019 by writing to the Secretary, TREIS to forthwith relieve the petitioners and other employees (14 in MSR,J & TA,J ::10:: wp_7225_2020 & batch number) working in TREIS, whose local status is A.P. and willing to working in A.P. State; and immediately the Secretary TREIS issued proceedings on 15-11-2019 relieving the petitioners from TREIS institutions where they were working, and directed them to report to APREIS.
17. The petitioners gave a letter dt.18-11-2019 to the Principal Secretary to School Education, Government of A.P. and also Vice Chairman of APREIS stating that they had been relieved on 15-11-2019 by the TREIS and they reported before the Secretary, APREIS on 16-11-2019. But the Secretary, APREIS opined that they should act according to the orders of the Government of A.P. So he did not accept their joining reports and asked the Govt. of A.P to issue appropriate orders to the APREIS in that regard.
18. The Principal Secretary to Government, School Education Department, Government of Andhra Pradesh then wrote to the Secretary, APREIS on 7.5.2020 vide letter No.17021/17/TRG/A1/2018 dt.07.05.2020 asking him to direct the petitioners, who had been relieved by TREIS and who had submitted joining report to APREIS, to report back to TREIS since allocation of staff between both Societies was yet to be finalized.
19. On 07-05-2020, the Principal Secretary to Government, School Education Department, AP Secretariat, Velagapudi, Amaravathi also wrote letter to the Special Chief Secretary to Government, School Education Department, Telangana Secretariat, Hyderabad informing that MSR,J & TA,J ::11:: wp_7225_2020 & batch consent was sought by the Government of A.P. from the Government of Telangana on 06-03-2019 on the proposal of the Secretary, APREIS regarding inter State transfer of petitioners and others, but instead of conveying consent, the Government of Telangana relieved the 13 employees unilaterally and that these employees had been asked to report back to the TREIS since allocation of employees was not yet finalized. He once again sought for consent for allocation of employees between both the Societies.
20. In view of the decision of the Principal Secretary to Government, School Education Department, Government of Andhra Pradesh referred to in para 18 above, the Secretary APREIS informed all the petitioners on 09-05-2020 vide proc.Rc.No.1142923/ESES3 ACADO COP(SCH)/12020-ACCD to report back to the TREIS as the allocation of staff was not yet finalized.
21. Petitioners therefore made a representation through e-mails to the TREIS on 11.05.2020 through e-mail, in the nature of a joining report. They contend that nothing transpired thereafter. The contentions and prayers of the Writ Petitioners
22. The petitioner in WP.No.7225 of 2020 retired on 31.05.2020 on attaining the age of 58 years and contends that if he had been allocated / transferred to the State of Andhra Pradesh, he would have got two more years of service since the said State had fixed the age of retirement as 60 years. He therefore seeks a Writ of Mandamus to declare non- consideration of his request for allocation to the State of Andhra Pradesh MSR,J & TA,J ::12:: wp_7225_2020 & batch by the respondents as illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and consequently to direct the respondents to relieve him from TREIS and allot him to the State of Andhra Pradesh so that he can continue in service in the APREIS till he attains the age of 60 years.
23. The petitioners in WP.No.8473 of 2020 challenge the proceedings dt.09.05.2020 of the APREIS of the State of Andhra Pradesh and contend that APREIS did not give any posting orders to them when they got relieved from TREIS and reported to APREIS on 18.11.2019 till 09.05.2020; that it ought not to have sent them back to TREIS; and a Writ of Mandamus should be issued to the APREIS to admit them to duty after final allocation between APREIS and TREIS at the earliest. They also seek a direction to the TREIS to pay them salaries with all allowances in the gap period between 15.11.2019 till they are accepted and allocated to APREIS.
24. The petitioners in WP.No.8487 of 2020, W.P.No.8866 of 2020 and W.P.No.8880 of 2020 state that the TREIS should have accepted their joining report and given them posting orders and they seek a Writ of Mandamus to permit them to join TREIS as per the proceedings dt.09.05.2020 of the APREIS; and to direct the respondents to allocate them to APREIS so that they can continue in service up to the age of 60 years.
Stand of the TREIS and State of Telangana in all the Writ Petitions
25. A common counter-affidavit is filed by these two respondents.
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26. Their stand is that the State of Telangana had issued proceedings on 14.11.2019 giving consent permitting TREIS to relieve the petitioners, that the latter therefore relieved the petitioners on 15.11.2019; and six months later, the Government of Andhra Pradesh wrote the letter dt.07.05.2020 stating that instead of conveying consent, the State of Telangana had relieved the petitioners unilaterally. These respondents denied the contention of the APREIS that allocation of staff between the two Societies is yet to be finalized.
27. According to them, there is no provision for allocation of employees at institution-level and as per mutual consent of Government, that the requests of the employees were considered and several employees were transferred on the said basis.
28. It is stated that since the TREIS has already relieved the petitioners, it is the responsibility of the State of Andhra Pradesh and APREIS to allow them to join in service, and that these respondents have nothing further to do.
29. They rely on an order dt.26.08.2019 in WP.No.17104 of 2019 in the case of Smt. K. Vardhanamma and on another order dt.02.01.2019 in WP.No.47334 of 2018 apart form C.C.No.1262 of 2019, and it is stated that in view of the said orders, the State of Telangana and the TREIS have acted properly; and that it is the State of Andhra Pradesh who had taken a U-turn after the closure of the contempt case after having requested the State of Telangana to give consent for transfer of petitioners and other employees. It is stated that the State of Andhra MSR,J & TA,J ::14:: wp_7225_2020 & batch Pradesh however allowed Smt. Vardhanamma to join service in APREIS but not the other petitioners arbitrarily.
The stand of the APREIS
30. It filed a counter affidavit and also an additional counter affidavit and several documents containing the above referred correspondence.
31. The APREIS contended that the petitioners are permanent employees of TREIS and that they cannot claim any right for posting them in APREIS. They contended that though the petitioners were initially relieved by the TREIS on 15.11.2019 and they submitted joining report to the APREIS on 19.11.2019, this was brought to the notice of the State of Andhra Pradesh on 26.11.2019, and the APREIS has acted as per the advice of the State of Andhra Pradesh by sending the petitioners back to TREIS on 9.5.2020.
32. It is contended that the State of Andhra Pradesh addressed a letter dt.07.05.2020 to the State of Telangana stating that the latter had unilaterally relieved 13 employees including the petitioners instead of conveying consent; and that the State of A.P. informed the State of Telangana that the employees who were relieved by TREIS, were instructed to report back to the TREIS, since allocation of employees has not been finalized.
33. It is mentioned that the APREIS is listed at serial No.41 in the X Schedule to the AP Reorganisation Act, 2014; and it is stated that the question of considering options and transferring to the State of Andhra Pradesh would not be possible unless the guidelines framed by the MSR,J & TA,J ::15:: wp_7225_2020 & batch Kamalanathan Committee, which was assigned the task of bifurcation of employees between the States of Andhra Pradesh and Telangana, permit such transfer.
34. It is contended that the order passed in W.P.No.17104 of 2019 by the High Court of Telangana pursuant to which the petitioner Smt. K.Vardhanamma was allowed to join in APREIS is related to her only, and is not a precedent.
35. In the additional counter, it is contended that the Government of Andhra Pradesh issued G.O. 305 dt.10.10.2014 for apportionment of posts between the States of Andhra Pradesh and Telangana provisionally in connection with the affairs of the State of Telangana under Subsection (1) of Section 77 of the A.P. Reorganisation Act, 2014, and that accordingly, the apportionment process of staff between the two societies was taken up under the said provision of law.
36. It is stated that in the 56th Board of Governors meeting held on 07.04.2016 at item no.15, it was agreed that the employees of the erstwhile APREIS should be bifurcated between TREIS and new APREIS to accommodate all employees whose local status is Andhra Pradesh and working in TREIS as per their options, and it was agreed to submit the same proposal to the Government for orders; that a letter dt.06.05.2016 was addressed by the APREIS to the State of Andhra Pradesh quoting the minutes of the said meeting; but the State of Andhra Pradesh issued orders dt.03.08.2018 directing the APREIS to have an agreement on the subject matter with the TREIS with mutual MSR,J & TA,J ::16:: wp_7225_2020 & batch understanding to decide the modalities to settle the issue and thereafter to knock the door of the Government; and in the mean time asked the APREIS to give list of employees of AP Local Cadre who are working in TREIS and how many of them are willing to come to Andhra Pradesh or go to Telangana; that even subsequently,, the Government of Andhra Pradesh issued a letter dt.17.09.2018 to the APREIS on the same lines; that the Special CS to Government of A.P., School Education Department wrote letter dt.06.03.2019 to the Special CS to Government of Telangana, School Education Department to furnish consent from the Government of Telangana on the proposal of the Secretary, APREIS to consider inter State transfer of individuals; and thereafter vide proceedings dt.06.08.2019, the School Education Department of the State of Andhra Pradesh informed the General Administration Department (SR) that inter State transfer of Government employees between the State of AP and the State of Telangana is not covered under the guidelines issued vide Circular Memo No.9940/SPF and MC/2015 dt.07.08.2017.
37. Reference is made to the following recommendation contained in the Kamalanathan Committee Report:
"Further it is to state that the erstwhile State of Andhra Pradesh was reorganized by Act 6/2014 (A.P. State Reorganization Act). According to Sec.79 of the said Act the category of State cadre employees are allocable to their respective local area as defined under para 7 of the Presidential Order 1975. Section 77 deals with the establishment listed in the X Schedule of the Act. The Act is silent about the services of the employees working in the X Schedule of the Act. Therefore an employee of the Institution listed in X Schedule have no specific indefensible right to seek for transfer from Telangana to Andhra Pradesh. It is further submitted that as per the A.P. Reorganization Act 2014 Guidelines for MSR,J & TA,J ::17:: wp_7225_2020 & batch final Allocation of State Cadre Employees (other than AIS Officers) under AP Reorganization Act, 2014 was finalized by the Kamalanathan Committee and as per the same "All employees of local, district, zonal, and multi-zonal cadres, which fall entirely in one of the Successor States, shall be deemed allotted to that Successor State with effect from the appointed day of June 02, 2014. All employees who are transferable throughout the State and employees at the State level belonging to the Secretariat, offices of HoD and State level offices, Institutions, and Special establishments and Major Development Projects shall be allotted to the Successor States. The following illustrative groups of personnel have to be considered for being allocated between the two States: (a) Holders of posts in the organized State cadres other than those that have been localized (b) Holders of other posts which have not been localized (c) Holders of posts in the Secretariat (d) Holders of posts in offices of heads of departments (e) Holders of posts in state level offices and special offices and establishments (f) Holders of posts in Major development projects if any (g) Holders of Trans-border multi zonal cadres posts, and (h) Octopus and greyhound forces personnel."(emphasis supplied).
38. It is contended that the Secretary, APREIS is not competent authority for allocation of staff between both the societies as per Section 77 of the Act and that Section 82 is not applicable to the APREIS or the TREIS; that all the policy decisions are taken by the Government of Andhra Pradesh; and the Secretary, APREIS only implements the orders of the Government of Andhra Pradesh. It is reiterated that final allotment of staff between both the societies is to be made by the Government with the approval of the State Reorganisation Department. The points for consideration
39. In view of the above pleadings, the following points arise for consideration in these cases:
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(a) Which provision of the A.P.Reorganisation Act, 2014 would apply for allocation of employees of erstwhile APREIS between its successors TREIS and the new APREIS ?
(b) Whether the TREIS has accordance with law in relieving the petitioners and other employees who were working in TREIS and whose local status was in the State of A.P. on 15.11.2019 and asking them to report to APREIS ?"
(c) Whether the APREIS had acted in accordance with law in not accepting the joining reports of the petitioners and other employees relieved from TREIS on 15.11.2019 till 09.05.2020 and then asking them to report back to the TREIS ?
(d) Whether APREIS or TREIS is liable to pay salaries to the petitioners for the period 15.11.2019 till date ?
(e) Whether petitioner in W.P.No.7225 of 2020, who retired on 31.05.2020, is entitled to be considered for allocation to APREIS?
(f) To what relief are the petitioners entitled ?
Point (a)
40. It is important to notice that there is no reference in the counter- affidavit filed on behalf of the TREIS to the A.P. Re-Organization Act,2014 or its provisions relating to allocation of employees.
41. We shall first consider the question as to which provision of law in the A.P.Reorganisation Act, 2014 is the applicable provision with regard to allocation of employees of the erstwhile APREIS between the TREIS and the new APREIS societies constituted after 02.06.2014.
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42. The Government Pleader for Education, State of Telangana representing both the State of Telangana and TREIS, as well as Sri L.V.S.Nagaraju, Standing Counsel for APREIS vehemently contended that Section 77 of the Act would be attracted.
43. Therefore we shall first refer to the said provision.
44. Section 77 of the Act States:
"77. Provisions relating to other services: (1) Every person who immediately before the appointed day is serving the substantive basis in connection with the affairs of the existing State of Andhra Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Andhra Pradesh unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Telangana:
Provided that every direction under this sub-section issued after the expiry of a period of one year from the appointed day shall be issued with the consultation of the Government of the successor States.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service, after consideration of option received by seeking option from the employees, and the date with effect from which such allotment shall take effect or be deemed to have taken effect:
Provided that even after the allocation has been made, the Central Government may, in order to meet any deficiency in the service, depute officers of other State services from one successor State to the other:
Provided further that as far as local, district, zonal and multi-zonal cadres are concerned, the employees shall continue to serve, on or after the appointed day, in that cadre:
Provided also that the employees of local, district, zonal and multi- zonal cadres which fall entirely in one of the successor States, shall be deemed to be allotted to that successor State:
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Provided also that if a particular zone or multi-zone falls in both the successor States, then the employees of such zonal or multi-zonal cadre shall be finally allotted to one or the other successor States in terms of the provisions of this sub-section.
(3) Every person who is finally allotted under the provisions of sub-
section (2) to a successor State shall, if he is not already serving therein, be made available for serving in the successor State from such date as may be agreed upon between the Governments of the successor States or, in default of such agreement, as may be determined by the Central Government:
Provided that the Central Government shall have the power to review any of its orders issued under this section."
45. A reading of this provision indicates that it deals with persons serving on substantive basis in connection with the affairs of the composite State of Andhra Pradesh as on 02.06.2014 excluding officers of All India Services, whose cases are dealt with by Section 76 of the Act.
46. The reference to the X Schedule is contained in Section 75 of the Act which states:
"75. Continuance of facilities in certain State institutions:-
(1) The Government of the State of Andhra Pradesh or the State of Telangana, as the case may be, shall, in respect of the institutions specified in the Tenth Schedule to the Act, located in that State, continue to provide facilities to the people of the other State which shall not, in any respect, be less favourable to such people than what were being provided to them before the appointed day, for such period and upon such terms and conditions as may be agreed upon between the two State Government within a period of one year from the appointed day or, if no agreement is reached within the said period, as may be fixed by order of the Central Government.
(2) The Central Government may, at any time within one year from the appointed day, by notification in the Official Gazette, specify in the Tenth MSR,J & TA,J ::21:: wp_7225_2020 & batch Schedule referred to in sub-section (1) any other institution existing on the appointed day in the State of Andhra Pradesh and Telangana and, on the issue of such notification, such Schedule shall be deemed to be amended by the inclusion of the said institution therein."
47. Admittedly, the A.P.Residential Educational Institutions Society is mentioned at serial No.41 in the X Schedule.
48. If Section 75 is considered, sub-section (1) thereof deals with continuance of the provision of facilities by the Governments of Andhra Pradesh and Telangana to the people of the other State if the institution specified in the X Schedule is located in one of them. Section 75 therefore does not deal with bifurcation of employees of organizations such as the erstwhile APREIS.
49. In our opinion, organizations such as the erstwhile APREIS, which are mentioned in the X Schedule to the Act, would be covered by Section 82 of the Act. We shall explain the reasons for this.
50. Section 82 of the Act states:
"82. Provisions for employees of Public Sector Undertakings, etc.: On and from the appointed day, the employees of State Public Sector Undertakings, corporations and other autonomous bodies shall continue to function in such undertaking, corporation or autonomous bodies for a period of one year and during this period the corporate body concerned shall determine the modalities for distributing the personnel between the two successor States."
51. This provision has been considered by 3 Division Benches of this Court in G.Rama Mohan Rao and another Vs. Government of Andhra Pradesh and another1, P.B.Karunakar and others Vs. State 1 2017 (6) ALD 103 (DB) MSR,J & TA,J ::22:: wp_7225_2020 & batch of Telangana and others2 and Rani Vs. Principal Secretary, Higher Education Department and others3.
The important decision of this Court in G. Rama Mohan Rao and another (1 supra)
52. In G. Rama Mohan Rao and another (1 supra), the Division Bench consisting of the Acting Chief Justice Ramesh Ranganathan and Justice U. Durga Prasad Rao was considering cases of employees of IX and X Schedule of the Act, who sought declaration that orders issued by the Government of Andhra Pradesh in G.O.Ms.No.112 dt.18.06.2016, keeping in abeyance the earlier orders issued by it, enhancing the age of superannuation of employees of Public Sector Undertakings under the administrative control of the said Government from 58 to 60 years, was constitutionally valid. The said case included consideration of the erstwhile APREIS also which is mentioned at serial no.41 of the X Schedule.
The Bench held that:
(A) Section 77 is a specific provision relating to State Services and the word "services" used in Section 77 means services other than the All India Services referred to in Section 76 and nothing else; and that there is no provision in the Act which either explicitly or by necessary implication stipulates that Section 77 would apply to employees of Corporate Bodies referred to in Section 82, merely because the modalities for the distribution of such employees have not been 2 2018(3) ALD 470 (DB) 3 2017 (4) ALT 173 MSR,J & TA,J ::23:: wp_7225_2020 & batch determined by the concerned Corporate Bodies within a period of one year. (para 83 p150 ibid) (B) Section 82 is a provision made specifically for employees of Public Sector Undertakings and it stipulates that on and from the appointed date i.e., 02.06.2014, the employees of State Public Sector Undertakings, Corporations and other Autonomous Bodies shall continue to function in such Undertakings, Corporations or Autonomous Bodies for a period of one year, and during this period, the Corporate Body concerned shall determine the modalities for distributing the personnel between the two successor States. (para 73 p147 ibid) (C) Section 82 brings within its ambit not only employees of Public Sector Undertakings and Corporations, but also employees of Autonomous Bodies; the word "autonomous" means independent; and the term "autonomous bodies" referred to in Section 82 can only mean independent bodies other than Public Sector Undertakings and Corporations, since the latter are also referred to in Section 82 along with the expression "autonomous bodies". It then declared as under:
"73. ... Consequently, employees of all the legal entities listed under the IX and X Schedules of the 2014 Central Act must be held to have been brought within the ambit of Section 82 thereof. The legislative intent, underlying Section 82, is to ensure that employees of public sector undertakings, corporations and other autonomous bodies (i.e. all the entities listed in the Ninth and Tenth Schedules) are continued in the services of the existing entities for a period of one year, within which period the entities concerned are required to determine the modalities for distributing these employees between both the two successor States."
MSR,J & TA,J ::24:: wp_7225_2020 & batch (D) The successor States of Telangana and Andhra Pradesh are not required to dissolve the erstwhile Corporations / Companies / Undertakings; and the words "between the two successor States" in Section 82 can only mean between "the Public Sector Undertakings, Corporations and other Autonomous Bodies of the two successor States." It held that Parliament was aware and had therefore provided for the consequences of the Public Sector Undertakings of the erstwhile Government of A.P. continuing to operate in the successor States, albeit as two separate Undertakings. (para 146 p171 ibid) (E) It explained that in the context of Section 82, the modalities for distributing the personnel between the two successor States can only mean the modalities for distributing the personnel between the two successor State Public Sector Undertakings, Corporations and Autonomous Bodies only and not distribution of such personnel between the respective State Governments, as that would make employees of such Corporations/Undertakings/Companies etc., employees of the Governments of the two successor States. (para 148 p172 ibid) (F) It also declared that Section 82 requires the Corporate Bodies themselves to determine the modalities for distributing its personnel between the two successor States; and that each of the Corporate Bodies independently and on its own accord should prescribe modalities for distribution of its employees between the two successor States. It held:
"76. Unlike Section 80 which confers power on the Central Government, on the recommendations of the Advisory Committee, to MSR,J & TA,J ::25:: wp_7225_2020 & batch frame guidelines for allocation of All India Service and State Service employees of the erstwhile State of Andhra Pradesh between the successor States of Andhra Pradesh and Telangana, Section 82 requires the corporate bodies themselves to determine the modalities for distributing its personnel between the two Successor States. It is only because these corporate bodies are legal entities, distinct from the State Government, has Parliament recognised the need for each of these corporate bodies, independently and on its own accord, to prescribe modalities for distribution of its employees between the two successor States."
(G) The limitation of one year prescribed in Section 82 for determining the modalities of distribution of personnel is not mandatory and that such prescription of time is only directory, and the mere fact that the one year period has elapsed, does not prohibit any of the Public Sector Undertakings from determining modalities for, or for the actual allocation of its employees between the two successor States thereafter. It rejected the plea that only the Central Government can frame modalities for allocation after the expiry of the period of one year and held that "even after the period of one year from the appointed day, the concerned Corporate Bodies are not disabled from determining the modalities for distributing their personnel between the two successor States."(para 87 page151 ibid) (H) Failure to complete the exercise of a change in the ownership of the assets and liabilities of the IX and X Schedule entities, would have no bearing on the distribution of employees of Public Sector Undertakings/Corporations/Autonomous Bodies between the entities controlled exclusively by each of the successor States.
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(I) G.O.Ms.No.112 dt.18.06.2016 issued by the Government of Andhra Pradesh was not valid since it was based on an erroneous premise that the Corporate Bodies referred to in Section 82 of the Act, still continue to remain jointly owned and controlled by both the State Governments; and that it is for each of the entities mentioned in the IX and X Schedules where the petitioners therein were employed, to extend the age of superannuation of its employees, if they so choose, by amending the applicable rules and the State Government has no power to issue an omnibus G.O. extending the age of superannuation. (para 160 p177 ibid)
53. This decision was followed by another Division Bench in Rani (2 supra) and it was reiterated that autonomous bodies like the Sri Padmavathi Mahila Viswavidyalayam ( University ), Tirupathi which are mentioned in X Schedule to the Act would be governed by the provisions of Section 82 and that the words 'autonomous bodies' used in Section 82 would only mean institutions referred to in IX and X Schedule to the Act, that the Parliament intended to bring employees of these Institutions / entities within the ambit of Section 82, and Section 75 or any other provision of the Act do not relate to employees of such institutions.
54. A third Division Bench in P.B. Karunakar (3 supra), also took the view that entities such as A.P. Genco, A.P. Transco, EPDCL, SPDCL, CPDCL and NPDCL, i.e., the Generation, Transmission and Distribution Power utilities which are mentioned in Schedule IX of the MSR,J & TA,J ::27:: wp_7225_2020 & batch Re-Organization Act would be governed by Section 82 of the Act only, and followed the decision in G. Rama Mohan Rao (1 supra).
55. Sri P. Govind Reddy, Special Counsel for State of Andhra Pradesh also contended that only Section 82 of the Act would apply for distribution of employees of the erstwhile APREIS and that the above decisions hold the field.
56. The other counsel for respondents did not cite any authority / precedent taking a different view.
57. In view of the above three Division Bench judgments, which are binding on us, and since they have authoritatively laid down that only Section 82 governs distribution of employees of IX and X Schedule bodies / entities / institutions, and since the erstwhile APREIS is also mentioned at Serial No.41 in the X Schedule, we hold that the division of employees of the erstwhile APREIS is governed by Section 82 only; that Section 77 of the Act has no application; that the successor entities to the erstwhile APREIS, i.e., the TREIS and the new APREIS would have to agree upon the modalities for distributing the personnel of the erstwhile APREIS between them; and the State Governments of the new State of Telangana or the residuary State of Andhra Pradesh have no role in the fixing of modalities for distribution of the personnel between TREIS and APREIS.
58. Consequently, we hold that the Kamalnathan Committee guidelines quoted in the additional counter-affidavit of APREIS would have no application since they relate to State-cadre employees; and the MSR,J & TA,J ::28:: wp_7225_2020 & batch view expressed therein that the Act is silent about services of the employees working in X Schedule Institutions, is not correct. Similar stand taken by TREIS that there is no provision for distribution of employees of X Schedule Institutions is also not correct, and the same is rejected.
59. Therefore, we hold on Point (a) that only Section 82 of the Act applies for distribution of employees of the erstwhile APREIS between the newly incorporated TREIS and APREIS and not Section 77 of the Act. We therefore reject the contentions of the respondents i.e., State of Telangana, TREIS and APREIS that (i) Section 82 of the Act is not applicable for such distribution and (ii) that the Secretary, APREIS and the Secretary, TREIS are mere Executive authorities to implement the orders of the respective Governments and they have no role in the matter. We also reject the contention of the said respondents that final allotment of staff between both the Societies is to be made by the respective Governments with the approval of the State Re-Organization Department.
Points (b) and (c) :
60. We shall now consider the questions :
"(b) Whether the TREIS has acted in accordance with law in relieving the petitioners and other employees who were working in TREIS and whose local status was in the State of A.P. on 15.11.2019 and asking them to report to APREIS ?
(c) Whether the APREIS had acted in accordance with law in not accepting the joining reports of the petitioners and other employees MSR,J & TA,J ::29:: wp_7225_2020 & batch relieved from TREIS on 15.11.2019 till 09.05.2020 and then asking them to report back to the TREIS ?"
61. We have already held under Point (a) that APREIS and TREIS have to follow Section 82 of the Act which applies to the distribution of employees of the erstwhile APREIS between them and frame modalities/guidelines for such distribution.
62. We therefore have to see whether there has been any agreement between the APREIS and the TREIS on the modalities for distributing the employees of the erstwhile APREIS between them.
63. In the counter-affidavits filed by both APREIS and TREIS, they have not stated how many employees were there in the erstwhile APREIS prior to 02.06.2014 who would have to be distributed between them.
64. To a specific question put to the counsel for respondents as to whether any meeting took place between the Chairman and Members / governing body of both APREIS and TREIS, it was informed that no such meeting happened to lay down the modalities for distribution of employees between the two entities.
65. It appears that on an ad hoc basis on the basis of nativity / local status of employees only, the APREIS had permitted ten employees having Telangana local status in the erstwhile APREIS to take up employment in the TREIS in Telangana State and that G.O.Rt.No.3 School Education (Training) Department dt.10.01.2018 was issued by the State of Telangana permitting the said ten employees to join in TREIS institutions and they were relieved by the APREIS on 17.01.2018.
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66. As regards the petitioners, though they have been working in TREIS prior to 15.11.2019, and they wanted to work in APREIS as they were having local status of A.P. State, and though the APREIS wanted the Government of Andhra Pradesh to permit it to take them into its services vide a resolution passed in the 56th B.G. meeting held on 07.04.2016, the State of Andhra Pradesh informed the APREIS on 03.08.2018 and again on 17.09.2018 to have an agreement on the subject matter with the TREIS.
67. Obviously, the A.P. Government had taken note of Section 82 of the Act and had rightly advised APREIS to have a mutual understanding with TREIS and decide modalities for distributing all the employees between both entities. We approve of the said view of the State of A.P.
68. However, the State of Telangana, in the absence of any agreement on the modalities for distribution of employees between APREIS and TREIS, and contrary to Section 82 of the Act, unilaterally issued proceedings dt.14.11.2019 instructing the Secretary, TREIS to relieve 13 employees including the petitioners and directed them to report to APREIS; and on 15.11.2019, the Secretary, TREIS relieved all the 13 employees including the petitioners and instructed them to report to the Secretary, APREIS.
69. In our considered opinion, the action of the Government of Telangana and the TREIS in unilaterally relieving these 13 employees including the petitioners from TREIS and asking them to report to APREIS is contrary to Section 82 of the Act. Any such unilateral action MSR,J & TA,J ::31:: wp_7225_2020 & batch by them contrary to the Act is patently illegal, arbitrary and violative of Article 14 of the Constitution of India and is hereby set aside.
70. The reliance placed by the respondents on the decisions rendered by this Court in the case of K.Vardhanamma, who is said to have filed W.P.No.17104 of 2019 in the High Court of Telangana, is of no avail because on 18-09-2019 in W.P.No.17104 of 2019, an interim order was granted directing the State of Andhra Pradesh and APREIS to consider her representation dt.31-08-2019 for allotment to the State of Andhra Pradesh; and even prior thereto, on 30-08-2019 she was relieved by TREIS and asked to report to APREIS at Guntur and on 25-11-2019; and, the latter gave her posting in AP Residential School for Boys, Pattikonda, Kurnool District in the State of Andhra Pradesh. The said Writ Petition is still pending and has practically now become infructuous. There was no view expressed therein regarding any of the aspects discussed by us in this order.
71. Coming to the Writ Petition No.47334 of 2018 which is also referred to in the counter of TREIS, the said Writ Petition was disposed of on 02-01-2019 by a Division Bench directing the State of Telangana to take a decision on the request for inter State transfer made by the three petitioners therein. There was no discussion of any provision of the Act in the said order. In C.C.No.1262 of 2019 filed by the petitioners in the said Writ Petition, the Division Bench on 22-01-2020 did not initiate any action since the TREIS had issued proceedings on 15-11-2019 relieving the said petitioners.
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72. In our opinion, the above cases cannot furnish any guidance and cannot justify the action of the TREIS in relieving the petitioners on 15-11-2019 and asking them to report to APREIS. The said cases have no precedent value as no principle of law was decided there.
73. There may be a delay on the part of the Government of A.P. in issuing proceedings on 07.05.2020 and the Secretary, APREIS in issuing proceedings on 09.05.2020 and asking the petitioners and others to report back to the TREIS on the ground that allocation of staff between both Societies is not finalized. But, any such delay would not validate the actions of the Government of Telangana and the TREIS in relieving the petitioners and other employees from TREIS on 15.11.2019 unilaterally.
74. We are of the view that APREIS and the TREIS ought not to have transferred employees working in one of them to other entity on adhoc basis and as per their whims and fancies; and a comprehensive onetime exercise for allocation of employees of the erstwhile APREIS has to be undertaken by both of them so that each and every employee knows to which entity he is allocated and why, and there would be transparency in the exercise.
75. Till date exclusively on the basis of nativity/local status/desire of the employees these mutual transfers have been carried out between the APREIS and the TREIS, but "nativity"/"local status" alone cannot be the basis as it would be violative of Article 14 and 16(2) of the Constitution MSR,J & TA,J ::33:: wp_7225_2020 & batch of India as held by the Supreme Court in Telangana Judges Association Vs. Union of India4.
76. Therefore it is imperative that appropriate guidelines /modalities are required to be agreed to by the APREIS and TREIS for allocation of all the employees, options be sought from the employees in accordance with the said guidelines/modalities, and then allocation be made of all the employees to ensure that the issue is resolved once and for all; and this exercise ought to be completed with utmost expedition preferably within 2 months from the date of receipt of copy of this order. We are not inclined however, to tinker with any transfer of employees between APREIS and TREIS or vice versa which has already taken place and to the extent possible, such employees shall not be disturbed in the new exercise to be done for allocation after fixing the modalities.
77. Though six years have elapsed since the bifurcation of the composite State of Andhra Pradesh into the new State of Telangana and the residuary State of Andhra Pradesh, it is unfortunate that the successors of the erstwhile APREIS i.e the TREIS and the new APREIS had abdicated their responsibility to frame modalities for allocation of employees of the erstwhile APREIS between them though Section 82 in fact intended such modalities to be laid down within one year and have sat idle doing nothing on the issue. We strongly deprecate this casual attitude and inaction of both APREIS and TREIS, causing hardship to their own employees, for no valid reason.
4
2019(1) ALD 7 (SC) = AIR 2018 SC 5510
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78. Therefore, we hold on Point (b) that the APREIS and the TREIS have not followed Section 82 of the Act and had not agreed upon the modalities for distribution of the employees of the erstwhile APREIS between the TREIS and the new APREIS, and that the TREIS had acted illegally in relieving the petitioners and other employees who were working in TREIS and whose local status was in the State of A.P. on 15.11.2019.
79. Consequently, we hold on Point (c) that the APREIS had acted in accordance with law in not accepting the joining reports of the petitioners and other employees relieved from TREIS on 15.11.2019 till 09.05.2020 and then asking them to report back to the TREIS.
POINT (d)
80. We shall now consider the question:
'Whether APREIS or TREIS are liable to pay salaries to the petitioners for the period 15.11.2019 till date and in future also to the petitioners. ?'
81. Obviously the petitioners expected that both APREIS and TREIS would discharge their statutory obligation to frame modalities for the distribution of the employees of the erstwhile APREIS within the time stipulated, which did not happen though six years have elapsed since 02-06-2014, the date when the composite State of Andhra Pradesh was divided into the new State of Telangana and the residuary State of Andhra Pradesh.
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82. In State of Jharkhand v. Harihar Yadav5, a Government Company was floated by the State of Bihar in the name of Bihar Hill Area Lift Irrigation Corporation Limited (for short 'BHALCO') and it was registered under the Companies Act, 1956.
A Public Interest Litigation was filed in the Supreme Court under Article 32 of the Constitution of India stating that several Government Companies/Public Undertakings situated in the State of Bihar had not paid salaries to their workmen and other employees for a long time causing grave hardship to such employees some of whom had even died. The above Company was also mentioned in the list of defaulting Companies.
The State of Bihar took the stand that after bifurcation of the State of Bihar into the new State of Jharkhand and the State of Bihar, the above Corporation, renamed as JHALCO, which is located in the State of Jharkhand alone under Section 47(1) and Section 56 of the Bihar Reorganisation Act, 2000 has to meet all liabilities and assets.
The Jharkhand Government took the stand that it will not absorb employees of erstwhile BHALCO or pay their salaries.
The Supreme Court found that JHALCO has absorbed only some of the employees but did not take steps to deal with other employees on some pretext or the other and that the State of Jharkhand had taken a vacillating stand.
5
(2014) 2 SCC 114
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It observed that a man in dire need cannot fight a litigation against two experimenting States to get his dues and that it is the duty of the Constitutional Court to ensure that all are paid their dues.
It observed:
"2. ... It is not because of any natural calamity beyond human control but because two States, namely, the State of Jharkhand and the State of Bihar have deliberately chosen to create an Everestine catastrophe by their act of abandonment of responsibility to pay despite availing work for some years and thereafter disowning them and nonchalantly shifting the burden to the other's shoulder and ultimately arguing in chorus that Jharkhand Hill Area Lift Irrigation Corporation (JHALCO) and Bihar Hill Area Lift Irrigation Corporation (BHALCO) being companies registered under the Companies Act, 1956, it is open to the aggrieved employees or their legal representatives to initiate necessary winding-up proceedings to get their dues.
3. We can only say that the stand and stance so adroitly put forth by both the States are shorn of their constitutional accountability and statutory answerability. In a way, it seems to be orchestrated by some kind of abstruse and unfathomable idea fostered in a fertile mind that loves to keep helpless and hapless people in a state of despair where hope dies an unceremonial death or it lives in a state of "Trishanku". It indubitably depicts a startlingly unhappy situation commanding urgent surgical intervention so that the injury does not become malignant.
.........
52. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India6 Krishna Iyer, J. has stated thus: (SCC pp. 484-85, para
70) "70. Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model 6 (1981) 1 SCC 449 MSR,J & TA,J ::37:: wp_7225_2020 & batch employer with a social conscience not an artificial person without soul to be damned or body to be burnt."
53. In Gurmail Singh v. State of Punjab7 it has been held that the State as a model employer is expected to show fairness in action.
54. In Balram Gupta v. Union of India8 the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees.
55. In State of Haryana v. Piara Singh9 the Court has ruled that: (SCC p. 134, para 21) "21. ... The main concern of the court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
56. In Bhupendra Nath Hazarika v. State of Assam10 while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed: (SCC p. 540, para 65) "65. ... It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and sincerity concerned should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised."
57. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracised the concept of "model employer". It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily 7 (1991) 1 SCC 189 8 (1987) Supp SCC 228 9 (1992) 4 SCC 118 10 (2013) 2 SCC 516 MSR,J & TA,J ::38:: wp_7225_2020 & batch happened had there not been a bifurcation of the State and what fate the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so." ( emphasis supplied) The Supreme Court, in the facts and circumstances of that case, directed the State of Bihar to pay salaries of the employees and deceased employees from 01-01-1995 to 29-12-2001 and the State of Jharkhand to pay salaries from 29-12-2001 till 13-09-2004.
83. The observations of the Supreme Court in the above case apply mutatis mutandis to the instant case.
84. In view of the above decision, and since the situation in the instant case being identical, we respectfully follow the said decision and hold that this Court cannot remain an idle spectator to the wrangle between the APREIS and the TREIS and look at impassively at the plight of the petitioners.
85. Coming to the question of payment of salaries to the petitioners in these batch of cases, who have been denied salaries from 15-11-2019 till date, (except the petitioner in W.P.No.7225 of 2020 who is claiming salary from 15-11-2019 to 31-05-2020 (owing to his retirement from service on attaining the age of superannuation of 58 years in the State of Telangana)), we are of the opinion that the unilateral action of TREIS in relieving these persons, being arbitrary and contrary to the mandate of MSR,J & TA,J ::39:: wp_7225_2020 & batch the Act, there was no obligation cast on the APREIS to take them into service without the finalization of allocation of employees between the APREIS and TREIS.
86. We have already held that such unilateral action is illegal, arbitrary and violative of Article 14 of the Constitution of India and Section 82 of the Act and is set aside.
87. Therefore, the petitioners who have been so relieved by the TREIS on 15-11-2019 are declared to be continuing as employees of TREIS; and the TREIS shall pay the salary to all the petitioners from 15.11.2019 till date(except for the petitioner in WP.No.7225 of 2020, who shall be paid such salary from 15.11.2019 till 30.05.2020 only) and continue to pay the same by providing them posting orders till there is an agreement with the APREIS on the modalities/guidelines for allocation of employees of erstwhile APREIS and till they are allotted to the APREIS in such allocation; and such payment shall be made within four weeks from the date of receipt of a copy of this order for the dues till 31.07.2020.
88. Point (d) is answered accordingly.
Point (e) & (f)
89. We shall now consider the following questions:
(e) Whether petitioner in W.P.No.7225 of 2020 who retired on 31.05.2020 is entitled to be considered for allocation to APREIS?
(f) To what relief, if any, are the petitioners entitled?
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90. After 02.06.2014, the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Amendment Act, 2014 (Act 4 of 2014) had been issued by the residuary State of Andhra Pradesh amending the Andhra Pradesh Public Employment(Regulation of Age of Superannuation) Act, 1984 and enhancing the age of superannuation of employees of the State Government from 58 years to 60 years.
91. Act 4 of 2014 contained sub-para (2) to para 3A which enabled even those employees who had retired on attaining the age of 58 years while serving in the State of Telangana provisionally, upon allotment to the State of Andhra Pradesh by the Government of India under sub- section(2) of Section 77 of the Act to be reinducted with effect from the date of his/her final allotment to the State of Andhra Pradesh without break in service, if he/she has not attained the age of 60 years as on the date of final allotment to the State of Andhra Pradesh.
92. The Government of Andhra Pradesh issued G.O.Ms.No.104 dt.28.08.2015 stating that even those who are tentatively allotted to the State of Andhra Pradesh as per the directions of the Government of India would be reinducted into service though final allocation has not happened. This was however made subject to the final allocation of the employees to be made by the Government of India under Section 77(2) of the Act.
93. G.O.Ms.No.102 dt.27.06.2017 was subsequently issued by the Government of A.P., Finance(HR.IV-FR) Department, granting in- principle approval to enhance the age of superannuation of employees MSR,J & TA,J ::41:: wp_7225_2020 & batch working in the institutions listed in IX and X Schedule to the Act 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.
4. ......
5. These orders shall come into force prospectively from the date of issue of the orders by competent authorities after amending the relevant regulations/bye-laws.
6. Any order issued by any department which is repugnant to this order shall be deemed to have been modified or superseded to the extent of repugnancy."(emphasis supplied)
94. Thereafter, the State of Andhra Pradesh issued G.O.Ms.No.138 dt.08.08.2017 stating that the Government had reconsidered the issue and had decided to amend G.O.Ms.No.102 dt.27.06.2017, by making the said G.O. come into force with effect from 02.06.2014; and in case any employee is superannuated on attaining the age of 58 years, he/she shall be reinstated and continued up to 60 years.
95. The Supreme Court in A.Veerraju v. State of A.P.11 , while considering the challenge to the decision in G.Ram Mohan Rao's case (1 supra), took note of G.O.Ms.No.138 dt.08.08.2017 and closed all the SLPs filed against the said decision as employees of Schedule IX and X institutions would get the benefit of continuance in service up to the age 11 2019(17) SCC 364 MSR,J & TA,J ::42:: wp_7225_2020 & batch of 60 years and those who retired at the age of 58 years would be reinstated and continued till they attain 60 years age12.
96. It is not disputed by the APREIS that if the petitioners are allotted to it from the TREIS, they would be entitled to enjoy the higher age of superannuation of 60 years; and that if any of the employees, while in the service of TREIS had retired at the age of 58 years, he/she would be entitled to be reinducted into service and continue in service till the age of 60 years.
97. It may be that due to inaction of the APREIS and TREIS in agreeing on modalities/guidelines for distribution of the employees of the erstwhile APREIS from 02.06.2014 till date, the petitioner in WP.No.7225 of 2020 had retired from service on 31.05.2020 after the filing of the Writ Petition in TREIS on attaining the age of superannuation of 58 years.
98. In the event the modalities/guidelines are agreed upon now by APREIS and TREIS, before he attains the age of 60 years, he would be entitled to be reinducted into service of the APREIS and continue in service till he attains the age of 60 years.
99. Therefore, we direct that on the modalities/guidelines being agreed upon by the APREIS and TREIS, the case of the petitioner in WP.No.7225 of 2020 has to be considered as per the said modalities/guidelines and in the event, he is allocated to the APREIS, he 12 These details are noted in the decision of the Supreme Court in K.Anand Rao Vs. S.S. Rawat .. (2019) 13 SCC 24.
MSR,J & TA,J
::43:: wp_7225_2020 & batch
would be entitled to be reinducted in the APREIS till he attains the age of 60 years, subject to the said petitioner refunding to the TREIS, any amounts received towards retirement benefits from the TREIS without interest within four weeks of such allocation to the APREIS.
100. Accordingly, the Writ Petitions are allowed without costs as under:
a) the proceedings RC.No.2436/C1-1/A1-1/2019 dt.15.11.2019 of the Secretary of TREIS relieving the petitioners from service of TREIS and directing them to report to APREIS are declared as violative of Article 14 of the Constitution and Section 82 of the Act and are accordingly set aside;
b) consequently the proceedings in letter No.17021/17/TRG/A1/2018 dt.07.05.2020 of the Prl.
Secretary to the Government, School Education Department, AP Secretariat, Velagapudi, Amaravathi, addressed to the Secretary, APREIS and the consequential proceedings Rc.No.1142923/ESES3 ACADO COP(SCH)/12020-ACCD dt.9.5.2020 of the Secretary, APREIS asking the petitioners to report back to the TREIS are held to be valid;
c) the TREIS shall pay the salary to all the petitioners from 15.11.2019 till date(except for the petitioner in WP.No.7225 of 2020, who shall be paid such salary from 15.11.2019 till 30.05.2020 only) and continue to pay the same by providing them posting orders till there is an agreement with the APREIS on the modalities/guidelines for allocation of employees of erstwhile APREIS and till they are allotted to the APREIS in such allocation; and such payment shall be MSR,J & TA,J ::44:: wp_7225_2020 & batch made within four weeks from the date of receipt of a copy of this order for the dues till 31.07.2020;
d) the APREIS and the TREIS shall discuss with each other and agree on the modalities/guidelines for allocation of employees of erstwhile APREIS within two months from the date of receipt of a copy of this order; and then allocate the employees as per the said norms within one month of finalization of modalities/guidelines;
e) on the modalities/guidelines being agreed upon by the APREIS and TREIS, the case of the petitioner in WP.No.7225 of 2020 has to be considered as per the said modalities/guidelines and in the event, he is allocated to the APREIS, he would be entitled to be reinducted in the APREIS till he attains the age of 60 years, subject to the said petitioner refunding to the TREIS, any amounts received towards retirement benefits from the TREIS without interest within four weeks of such allocation to the APREIS.
101. Consequently, miscellaneous petitions, pending if any, shall stand closed.
____________________________ M.S. RAMACHANDRA RAO, J ______________________ T.AMARNATH GOUD, J Date: 07.08.2020 Note: L.R.Copy to be marked.
B/o (vsv/ndr/gra)