K. ANANDA RAO ETC. versus SRI S.S. RAWAT, IAS AND ORS. ETC. on 7 March 2019

[2019] 5 S.C.R. 287

K. ANANDA RAO ETC.

v.

SRI S.S. RAWAT, IAS AND ORS. ETC.

(Contempt Petition (Civil) Nos.1045-1055 of 2018)

in

(Civil Appeal Nos.10276, 10277, 10279, 10281, 10282, 10318, 10319,10320, 10321, 10324 and 10328 of 2017)

MARCH 07, 2019

[UDAY UMESH LALIT AND M.R. SHAH, JJ.]

Service Law – Consequential Benefits – Bifurcation of theerstwhile State of Andhra Pradesh – On 05.08.2015, GO issued bythe Government of Andhra Pradesh raising the age ofsuperannuation from 58 years to 60 years – By Resolution dated18.06.2016, the Resolution dated 05.08.2015 was kept in abeyance– Challenged – High Court directed the government to consider theproposals submitted for enhancement of age of superannuation andtake decision thereupon – Various SLPs filed – Tagged – Pendingmatters, the government gave in-principle approval for enhancementof the age of superannuation vide GO dated 27.06.2017 – GO dated08.08.2017 issued by the government amended the GO dated27.06.2017 stating that the orders shall come into force w.e.f02.06.2014 – On 09.08.2017 while disposing of the appeals,Supreme Court ordered that all the employees who superannuatedon account of attainment of age of 58 yrs on 02.06.2014 orthereafter are entitled to the protection of their service upto 60 yearsof age and to all ‘’consequential benefits’’ arising therefrom –Present contempt petitions filed submitting inter alia that in terms ofthe said order, “consequential benefits” must include all back wageseven for the period the petitioners had not actually worked in theirrespective organizations – Held: After the policy decision was takenon 05.08.2015 to raise the age of superannuation from 58 years to60 years that decision was kept in abeyance by Resolution dated18.06.2016 – This was followed by GO dated 28.06.2016 whichdealt with issues like how after re-induction of the employeespursuant to enhancement of age of superannuation, the period that

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Athe employees were out of employment, was to be dealt with – It wasalways in contemplation that if an employee had superannuated onattaining the age of 58 years and was thereafter re-inducted inservice with superannuation age being 60 years, he would not beentitled to any salary or normal emoluments for the interregnumperiod or gap period, but would be entitled to certain notionalBbenefits stipulated therein – GO dated 08.08.2017 modified theearlier decision dated 27.06.2017 to the extent it made suchdecisions prospective and gave retrospective effect from 02.06.2014– However, the said GO did not in any way dilute the principles asto what would be the situation in case of interregnum period or gapCperiod as was specifically dealt with in GO dated 28.06.2016 –Situation becomes clear by further instructions issued on 11.06.2018which again referred to gap period – Benefit of enhancement of theage of superannuation from 58 years to 60 years came to beconferred under policy documents and finally by the GO dated08.08.2017 – Source was in those policy documents and naturallyDthe extent of benefits was also spelt out in those instruments issuedby the Government – Mere expression “consequential benefits”would not entitle the concerned employees anything greater thanwhat was contemplated in the policy documents issued by the StateGovernment – No violation of the orders passed by Supreme CourtE– Every similarly situated employee would be entitled to the benefitsconferred by policy documents but not for salary and otheremoluments for the period they had not actually worked – AndhraPradesh Public Employment (Regulation of age of superannuation)Act, 1984 – s.3 – Andhra Pradesh Tribal Welfare ResidentEducational Institution Society Retirement Rules, 1999 – r.17 –FAndhra Pradesh State Reorganization Act, 2014.

Dismissing the Contempt Petitions, the Court

Conclusion

Dismissing the Contempt Petitions, the Court HELD: 1.1 The raising of age of superannuation byamending Section 3 of the Andhra Pradesh Public EmploymentG(Regulation of age of superannuation) Act, 1984 was soon afterthe bifurcation of the erstwhile State of Andhra Pradesh. Theconcern as to what would be the situation if the employees werefinally allocated to the newly carved State of Andhra Pradesh andthe employees by that time had attained the age of 58 years, was H

dealt with in newly inserted Section 3A in Andhra Pradesh StateReorganization Act, 2014. The principle was to re-induct them inthe services under the State of Andhra Pradesh without any breakin service. Further, if the employee had not attained the age of60 years, he would be re-inducted; and in case he had attainedthe age of 60 years, what would in such cases be conferred uponthe employees was notional advantage for the purpose ofcalculation of his pensionary benefits as if he had rendered servicein the State of Andhra Pradesh. [Para 11] [309-A-C]

1.2 After the policy decision was taken on 05.08.2015 toraise the age of superannuation from 58 years to 60 years inrespect of employees of Society, that decision was kept inabeyance by Resolution dated 18.06.2016. This Resolution statedthat the Government had taken stock of all the developmentsand had decided that the issue regarding enhancement of age ofsuperannuation in respect of employees of the entities andinstitutions listed in IX and X Schedule of 2014 Act would betaken only after the issue of division of assets and liabilities ofthe concerned institutions between the two States was settledand the allotment of employees was finalized. This was followedby GO dated 28.06.2016 which dealt with issues like how afterre-induction of the employees pursuant to enhancement of ageof superannuation, the period that the employees were out ofemployment, was to be dealt with. Such period was referred toas the interregnum period or gap period, and was then dealt withunder various heads. These developments are indicative that itwas always in contemplation that if an employee hadsuperannuated on attaining the age of 58 years and was thereafterre-inducted in service with superannuation age being 60 years,he would not be entitled to any salary or normal emoluments forwhat was referred to as the interregnum period or gap period,but would be entitled to certain notional benefits stipulatedtherein. [Para 12] [309-D-G]

1.3 GO dated 08.08.2017 modified the earlier decision dated27.06.2017 to the extent it had made such decisions prospectiveand now gave retrospective effect from 02.06.2014. It thusundoubtedly relaxed conditions as regards the requirement to AB

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Ahave the rules and regulations amended after due approval bythe Government. It further stated that if an employee was retiredon attaining age of 58 years, he/she shall be reinstated andcontinued upto 60 years. However, this GO dated 08.08.2017did not in any way depart from or dilute the principles as to whatwould be the situation in case of interregnum period or gap periodBas was specifically referred to and dealt with in memo dated28.06.2016. The situation becomes quite clear by furtherinstructions issued on 11.06.2018 which again referred to gapperiod. [Para 13] [310-B-D]

1.4 Benefit of enhancement of the age of superannuationCfrom 58 years to 60 years came to be conferred under policydocuments and finally by the GO dated 08.08.2017. Thus, thesource was in those policy documents and naturally the extent ofbenefits was also spelt out in those instruments issued by theGovernment. The Circular dated 28.06.2016 which was more orDless adopted in proceedings dated 11.06.2018 must be taken tobe the governing criteria in respect of such employees. Unlessand until that governing criteria was departed from specifically,mere expression “consequential benefits” would not entitle theconcerned employees anything greater than what wascontemplated in the policy documents issued by the StateEGovernment. Therefore, no violation of the orders passed bySupreme Court is found. Every employee, who is similarly situatedwould be entitled to the benefits conferred by policy documentsreferred to above but not for salary and other emoluments forthe period they had not actually worked. [Paras 17, 18]F[312-D-G]

B. Prabhakar Rao and Ors. v. State of Andhra Pradesh(1985) Suppl. SCC 432: [1985] Suppl. SCR 573 –distinguished.

G. Rama Mohan Rao and Anr. v. Government of AndhraGPradesh & Ors. Etc. 2017(3) ALT 1(High Court ofJudicature at Hyderabad for States of Telangana andAndhra Pradesh); D.S. Nakara v. Union of India(1983) 1 SCC 305 : [1983] 2 SCR 165; SureshchandraSingh and Others v. Fertilizer Corporation of India Ltd.and Others (2004) 1 SCC 592 : [2003] 6 Suppl. SCRH937 – referred to.

CIVIL ORIGINAL JURISDICTION: Contempt Petition (Civil)Nos.1045-1055 of 2018 in Civil Appeal Nos. 10276, 10277, 10279, 10281,10282, 10318, 10319, 10320, 10321, 10324 and 10328 of 2017

From the Judgment and Order dated 09.08.2017 of the Hon’bleSupreme Court of India in Civil Appeal Nos. 10276-77, 10279, 10281,10282, 10318-19, 10320, 10321, 10324 and 10328 of 2017

With

Contempt Petition (C) Nos. 1873-1891/2017 in Civil Appeal Nos.10354-10361/2017

Contempt Petition (C) No. 1176/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1177/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1178/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1179/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1181/2018 in Civil Appeal No. 12463/2017Contempt Petition (C) No. 1180/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1182/2018 in Civil Appeal No. 12463/2017Contempt Petition (C) No. 1183/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) Nos. 959-962/2018 in Civil AppealNo. 12464/2017

Contempt Petition (C) Nos. 954-955/2018 in Civil Appeal Nos. 10705-10706/2017

Contempt Petition (C) Nos. 1064-1066/2018 in Civil Appeal Nos. 12469-12470/2017

Contempt Petition (C) No. 956/2018 in Civil Appeal No. 10347/2017

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AContempt Petition (C) No. 1130/2018 in Civil Appeal Nos. 12469-12470/2017Contempt Petition (C) No. 958/2018 in Civil Appeal No. 10760/2017Contempt Petition (C) No. 1067/2018 in Civil Appeal No. 10345/2017Contempt Petition (C) No. 1865/2018 in Civil Appeal No. 12457/2017BContempt Petition (C) No. 1866/2018 in Civil Appeal No. 12457/2017(I.A. No. 63451/2018)

Contempt Petition (C) Nos. 1141-1165/2018 in Civil Appeal No. 10285/2017

Contempt Petition (C) No. 1441/2018 in Civil Appeal No. 10760/2017CContempt Petition (C) No. 1442/2018 in Civil Appeal No. 10330/2017Contempt Petition (C) Nos. 1228-1251/2018 in Civil Appeal Nos. 10286-10293/2017

Contempt Petition (C) Nos. 1252-1254/2018 in Civil Appeal No. 12866/2017DContempt Petition (C) No. 1443/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1444/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1449/2018 in Civil Appeal Nos. 10276-10277/2017

EContempt Petition (C) No. 1764/2018 in Civil Appeal No. 10285/2017Contempt Petition (C) No. 1445/2018 in Civil Appeal No. 12463/2017Contempt Petition (C) No. 1448/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1446/2018 in Civil Appeal No. 10366/2017Contempt Petition (C) No. 1447/2018 in Civil Appeal No. 10366/2017FDiary Nos. 40678, 40697 and 40811 of 2018

P. S. Patwalia, Basava Prabhu S. Patil, Parag P. Tripathi, Sr. Advs.,Y. Raja Gopala Rao, Malo Ji Rao, Ms. Y. Vismal Rao, K. Sharat Kumar,Ms. M. Yasasvi, Ms. Prerna Singh, Geet Ahuja, Prashant Chaudhary, A.GV. Rangam, Buddy A Ranganadhan, M. Ravindranath Reddy, L. Joshi,Guntur Prabhakar, Ms. Prabha Swami, Ms. Divya Swami, Nikhil Swami,Nitin S. Tamwekar, Seshatalpa Sai Bandaru, T. V. Ratnam, M. SowriDev, Ashish Dogra, Senkara Kausik, I. V. Kasyap, Ch. Leela Sarveswar, Adesh Kumar, Krishan Pal Mavi, M. Srinivas R. Rao, Harinath Reddy,Mrs. Sudha Gupta, Sriram P., Sarath S. Janardanan, Sridhar Poraraju,Ms. Sindoora VNL, Ms. Shivani T., Ms. G. Usha Sri, D. Mahesh Babu,G. N. Reddy, Ms. Sujatha B., Y. Prabhakara Rao, Advs. for the appearingparties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. These contempt petitions allegeviolation of the judgment and order dated 09.08.2017 passed by thisCourt in appeals arising out of Special Leave Petition (Civil) No.13623of 2017 (A. Veerraju and others Vs. State of Andhra Pradesh andothers) and all connected matters. All the Contempt Petitions give riseto the same questions and are dealt with together. Since ContemptPetition Nos.1045-1055 of 2018, K. Ananda Rao and Ors Shri S.S. Rawat,IAS, Principal Secretary to Government and Vice-Chairman (FAC)APTWREI Society and Others and Contempt Petition No.1873-1891 of2017 (K. Paul and ors. etc. vs Ajay Jain and others etc.) were taken aslead matters, the facts pertaining to these two contempt cases arementioned in detail.

2. Contempt Petition No.1045-1055 of 2018

2.1 The petitioners are employees of Andhra Pradesh TribalWelfare Residential Educational Institution Society (Gurukulam),hereinafter referred to as the Society. Rule 17 of the Andhra PradeshTribal Welfare Resident Educational Institution Society Retirement Rules,1999 (‘1999 Rules’ for short) inter alia provides for conditions of serviceof the employees of the Society and according to Rule 17(1) the age ofretirement for all employees except Class IV employees is 58 years ofage and that of Class IV employees is 60 years. The Society is aninstitution included in Schedule X of the Andhra Pradesh ReorganizationAct, 2014, “2014 Act”, for short.

2.2 The age of superannuation in respect of Governmentemployees under Section 3 of the Andhra Pradesh Public Employment(Regulation of age of superannuation) Act, 1984 (‘1984 Act’ for short)was initially 58 years of age. Consequent upon bifurcation of the erstwhileState of Andhra Pradesh, the Government of Andhra Pradesh took adecision on 27.06.2014 to raise the age of superannuation from 58 years A

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Ato 60 years. Section 3 of 1984 Act was accordingly amended and theage of superannuation was raised to 60 years. Section 3 of the AmendingAct was as under:

“3. In the principal Act, after section 3 so amended, the followingnew section shall be inserted, namely:- B

“Savings. 3A. subject to the provisions of section 3,-

(1) A Government employee belonging to the State Cadre/Multi-zonal Cadre and who by general or specific order of theGovernment of India under sub-section (1) of section 77 of theAndhra Pradesh Reorganisation Act, 2014, and servingprovisionally in connection with the affairs of the State ofTelangana, and if he is finally allotted to the State of Andhra Pradeshby the Government of India under sub-section (2) of section 77 ofthe said Act, 2014 shall be deemed to be continuously serving inthe State of Andhra Pradesh.

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(2) A Government employee belonging to the State Cadre/Multi-zonal Cadre falling in the territories of both the State of AndhraPradesh and the State of Telangana, who by a general or a specificorder of the Government of India under sub-section (1) of section77 of the said Act, 2014, is serving provisionally and retires onattaining the age of fifty eight years and on his final allotment,subsequently to the State of Andhra Pradesh by the Governmentof India under sub-section (2) of section 77 of the said Act butbefore attaining the age of sixty years, shall be re-inducted intoservice/post with effect from the date of his final allotment to theState of Andhra Pradesh without break in service:

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Provided that an employee who attained the age of sixty yearsbefore the final allotment to the State of Andhra Pradesh by thegovernment of India, the service rendered in the State of Telanganatill the date of his retirement shall be considered notionally as if,he has rendered service in the State of Andhra Pradesh for thepurpose of calculation of his pensionary benefits.

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(3) The service conditions of the employee of State Cadre/Multi-zonal Cadre working provisionally in the State of Andhra Pradeshand finally allotted by the Government of India under sub-section(2) of section 77 of the said Act, 2014 to the State of Telangana H

shall be governed by the relevant laws/rules of the State ofTelangana on such final allotment.”

2.3 On 02.07.2014 vide Memo No.4179/14/HRM-IV/2014,Finance Department of the Government of Andhra Pradesh issued aCircular clarifying that the enhanced age of superannuation from 58 to60 years would not be applicable to the State Public Enterprises andother autonomous Institutions and Training Centres included in the XSchedule of 2014 Act and non-teaching employees of the Universities.Around this time the Society had passed a Special Resolution in the 22[nd]Board of Governors’ meeting for division of Gurukulam and allocationof teaching and non-teaching staff to newly formed States. Byproceedings dated 04.07.2014 the Society issued a list of officers andstaff provisionally allocated to the new State of Andhra Pradesh.Thereafter in the 23[rd] Meeting of the Board of Governors of the Society,a Resolution was passed agreeing in principle to enhance the age ofsuperannuation from 58 years to 60 years on par with the Governmentemployees.

2.4 Based on the aforesaid Resolution a letter was sent by theSociety to the State requesting for such enhancement of age ofsuperannuation. On 05.08.2015 GO MS No.61 was issued by theGovernment of Andhra Pradesh, Tribal Welfare (EDN A2) Departmentraising the age of superannuation from 58 years to 60 years in respect ofemployees working in the Society. On 07.12.2015, the State Governmentagain issued a Circular directing the managements of all Public SectorUndertakings and Institutions included in the IX & X Schedules of 2014Act to submit the proposals regarding change in the age ofsuperannuation. Thereafter by virtue of Resolution i.e. GO MS No.112issued by the Government of Andhra Pradesh Finance (HR IV – FR)Department on 18.06.2016, the Resolution dated 05.08.2015 was kept inabeyance. The Resolution dated 18.06.2016 was as under:

“5. Government having taken stock of all the above developmentsand after careful consideration hereby orders that the enhancedage of superannuation cannot be made applicable to the employeesof the Public Sector undertakings and Institutions listed in Ninthand Tenth Schedules of A.P. Re-organization Act, 2014 until thematter of division of assets and liabilities of the institution betweenthe state of Andhra Pradesh and Telangana is settled and the A

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Aallotment of the employees between the two states is finalized forthese Public Sector Undertakings/ Institutions. Government wouldbe in a position to take policy decision on the matter only aftersuch process is completed in all respects. Orders issued, if any,by any Department of Public Sector Undertakings/Institutions shallbe kept in abeyance with immediate effect.”

B2.5 On 28.06.2016, Cir. Memo No.92830/151/HR.IV/2016 wasissued by the Government of Andhra Pradesh Finance (HR.IV)Department issuing following clarifications:- Sl.Issue raised by DTAClarification of FinanceCNo. 1 Whether the pensionary The Pensionary benefits have to be remitted to benefits may be remitted Andhra Pradesh only, as the State of Andhra to Telangana or to the AP Pradesh has to bear the burden of salary for (as stipulated in the G.O. remaining period of service, payment of Ms. NO.104, dated pensionary benefits and pension increase 28.08.2015) (including family pension etc.) after the Demployee’s retirement in A.P. 2 Whether all pensionary The following pensionary benefits drawn by benefits mentioned in the the retired government servant have to be G.O.Ms.No.1097, dated remitted into Government account. 22.06.2000 are to be 1.Commuted value of pension remitted 2.Retirement Gratuity 3.Encashment of Earned Leave E3 Which period has to be The period from date of retirement to re-treated as out of induction shall be treated as out of employment and which employment period. The period from the date is eligible for of re-induction to the date of reporting on compulsory wait issue of posting is eligible for compulsory wait. F4 Whether to regularize the The gap period shall be reckoned as out of employment interregnum period. During the interregnum period period those who retired may get pension or equal to the amount of pension if the pension is not settled.5 Whether the period of The period of out of employment shall be Gout of employment is considered for release of annual grade considered as service for increment and pension. The monetary benefit the purpose of raising of release of increment shall be from the date annual grade increments, of re-induction only. The period shall be seniority, promotions, reckoned for seniority, promotions, AAS. AAS and other benefits including pension. H

6Whether theGIS It is at the option of the Government servant to subscription be recovered continue the GIS benefit, and he/she has to in lump sum with interest remit back the amount already paid and for the period of out of regulate the gap period by paying the GIS employment. subscription for the period of out of employment.7 What shall be the Once the PPO is issued by the Authorization procedure for ensuring issuing authority, such PPO shall be cancelled the stoppage of pension by the same authority. Therefore, the Pension, in the other state and Payment authority has to return the PPO to the cessation of such pension Authorization issuing authority for cancelling authorization already PPO. When the case of sanctioning pension issued/ to be issued in arises the pension sanctioning authority shall future by pension issuing seek for fresh authorization/ PPO duly authorities. following the procedure. 8 Whether it is mandatory The pensionary benefits shall be remitted to see that the pensionary back. However in extraordinary situations benefits shall be remitted such proposals may be referred to Finance back, for the purpose of Department for exemption. allowing salary bills of the re-inducted employees. 9 While calculating a sum Based on the pay in RPS 2015 on the date of equal to pension whether completion of 58 years of service, the sum to take emoluments in equal to pension may be arrived. RPS, 2010 or RPS 2015 for the period from 01.07.2014 to 31.03.2015.

2.6 The Resolution dated 18.06.2016 was challenged by theemployees of various institutions mentioned in Schedule IX and X of2014 Act by filing Writ Petitions in the High Court of Judicature atHyderabad for States of Telangana and Andhra Pradesh. The HighCourt by its judgment and order dated 07.03.2017 passed in G. RamaMohan Rao and Anr. vs. Government of Andhra Pradesh & Ors.etc.[1] and all connected matters disposed of the matters and concludedas under:

“The earlier G.O.s were issued by the Government of A.P. withoutthese legal entities amending its rules regulations/bye-laws, 1 2017(3)ALT 1; 2017(6) ALD 103; (2017) 11 LLJ 535 AP

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governing the age of superannuation and without the prior approvalof the sole/majority shareholder i.e., the State Government asrequired under the Articles of Association/ byelaws of these legalentities. As the Rules and Regulations, by which the petitionersare governed, stipulate 58 years as the age of retirement, theseemployees cannot claim any right to continue in service till theyattain the age of 60 years. It is only if the request of theseCompanies /Corporations/Societies, for amendment of its byelaws/rules and regulations, are approved by the State Government, andthe rules/byelaws/regulations are amended thereafter inaccordance with law, would their employees then be governed bythe enhanced age of superannuation prescribed under the Rules/bye-laws.

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Since the Board of Directors/Managing Committees of thesewholly or substantially government owned Companies/Corporations/ Societies have submitted proposals, the StateGovernment is obligated to consider the request of each of these D

corporations/companies/societies separately, based on theirfinancial position, genuineness of their need to enhance the age ofsuperannuation etc., and then take a decision whether or not theirrequest, to enhance the age of superannuation of their employeesfrom 58 to 60 years, should be approved. Suffice it, if theEGovernment of A.P. is directed to consider the proposals submittedby each of these corporation/societies/companies, forenhancement of the age of superannuation from 58 to 60 years inaccordance with law, and take a decision thereupon at the earliest,in any event not later than four months from the date of receipt ofFa copy of this order.

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All the Writ Petitions are, accordingly, disposed of. Themiscellaneous petitions pending, if any, shall stand closed. Nocosts.”

2.7 SLP (C)No.13623 of 2017 was filed, therefore, by some ofGthe employees of the Society challenging said decision dated 07.03.2017.It was submitted by them that a decision had already been taken by theSociety for raising the age of superannuation and all that was required tobe done was only a formal expression of the decision in the form of anappropriate legislation. While issuing notice on 27.04.2017 this CourtHpassed following interim order:

“In the above circumstances, until further orders, thesuperannuation in the case of those teachers on attaining the ageof 58 years in respondent No.3/Society (Gurukulam) shall bedeferred.”

2.8 Special Leave Petition (Civil)Nos.14033-14034 of 2017preferred by the present contempt petitioners and other connected mattersfiled by similarly situated employees of the Society thereafter came-upbefore this Court on 05.05.2017. This Court noted that Special LeavePetition (Civil)No.13623 of 2017 seeking similar relief was alreadypending. While issuing notice, this Court directed:- “Until further orders, the superannuation in the case ofemployees on attaining the age of 58 years in the respondent-institutions shall be deferred.

Needless to say that in case any employee has retired onlyon the ground of attaining the age of 58 years, such employeesshall be reinstated and continued in service until further orders,but in no case, beyond 60 years.

We also make it clear that this order will apply to all similarlysituated employees under the respondent-institutions whether theyare the petitioners before this Court or not and, therefore, thosesimilarly situated persons need not travel to this Court.

Tag with SLP (C) No.13623 of 2017.”

2.9 Later, one more similar matter i.e. Special Leave Petition(Civil)No.14860 of 2017 came-up before this Court and while issuingnotice on 09.05.2017 following order was passed by this Court:- “The employees in the respondent-institutions shall not besuperannuated only on the ground of attainment of 58 years ofage. In case, any such has been superannuated on that ground,such employee shall be reinstated and continued upto the age of60 years, subject to the result of the Special Leave Petition.”

2.10 While the challenge was thus pending, G.O.Ms.No.102 dated27.06.2017 was issued by the Government of Andhra Pradesh, Finance(HR.IV-FR) Department. After considering the matters, the Governmentdecided to give in-principle approval for enhancement of the age ofsuperannuation. The relevant portion of the Order was as under:- A

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“4. Government after careful examination of the matter herebyaccord to give in-principle approval to enhance the age ofsuperannuation of employees working in the institutions listed inIX and X Schedule Institutions subject to the following conditions:

1. The specific decision to enhance the superannuation agefrom 58 to 60 years to their employees shall be taken bythe Board of Directors/Managing Committees of these legalentities.

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2. While doing so, these Institutions shall take into considerationtheir financial position and genuineness of their need toenhance the age of superannuation.

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3. In case of Residential Education Societies, the decisionshould be based on the genuineness of their need andassessment of performance of these societies.

5. These orders shall come into force prospectively from the dateof issue of the orders by competent authorities after amendingthe relevant regulations/bye-laws.

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6. Any order issued by any department which is repugnant to thisorder shall be deemed to have been modified or superseded to theextent of repugnancy.”

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2.11 All the aforementioned matters, the lead matter being SpecialLeave Petition (Civil)No.13623 of 2017, thereafter came-up before thisCourt on 31.07.2017. The State had prayed for time to file its affidavit-in-reply. This Court directed the State to respond to certain issues in theaffidavit-in-reply and directed the matters to be listed on 09.08.2017.FRelevant portion of the order reads as under:- “In the counter affidavit it shall be mentioned as to whythose who are similarly situated as those covered by the orderdated 05.05.2017 have not been granted the same benefit. Wealso make it clear that in case the order dated 05.05.2017 has notbeen implemented, the benefits due to the beneficiaries coveredby the said order shall be deemed to have been in service fromthe date of the order and those responsible for non-implementationshall be personally liable for the consequences.”

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3. Contempt Petition Nos.1873-1891 of 2017

3.1 The petitioners had originally joined the services of the erstwhileAndhra Pradesh Electricity Board (APSEB) and their service conditionswere regulated by the Andhra Pradesh State Electricity Board ServiceRegulations. APSEB was reorganized into Andhra Pradesh TransmissionCorporation Ltd. (APTRANSCO), Andhra Pradesh Power GenerationCorporation Ltd. (APGENCO), Andhra Pradesh Central PowerDistribution Company Ltd. (APCPDCL), Andhra Pradesh SouthernPower Distribution Company Ltd. (APSPDCL) and Andhra PradeshEastern Power Distribution Company Ltd. (APEPDCL), collectivelyreferred to as the Power Utilities. The services of the petitioners werethereafter transferred to the Power Utilities. After Section 3 of 1984Act was amended to raise the age of superannuation to 60 years asstated above, the Power Utilities had taken a decision on 29.06.2014 toimplement the orders of the Government and continue the service of allemployees who were to attain the age of 58 years as on 30.06.2014 upto60 years.

3.2 On 23.12.2014 a letter was written by the State Governmentinforming APGENCO, APEPDCL and APSPDCL that the Pay RevisionCommission had agreed for enhancement of the age of superannuationfrom 58 years to 60 years on par with the employees of the StateGovernment. On 28.10.2015 a letter was addressed by the StateGovernment to APTRASCO, APGENCO, APEPDCL, APSPDCL thatthe proposal for enhancement of age of superannuation of the employeesof Power Utilities would be considered after issuance of orders by theState Government on demerger of the respective corporations and afterthe process of final allocation of the employees was completed and afterdue examination of viability of the corporations.

3.3 Thereafter, on 26.11.2015 an Advisory Memo bearing no.459/PE.II/A1/2015 was issued by the State Government to all the departmentsto keep the orders, if any, issued for enhancement of the age ofsuperannuation of the employees of public undertakings in abeyancepending orders formulating the policy in that behalf. The relevant partitionof the Memo was as under:

“4. In view of the facts and circumstances supra, the governmenthas decided to examine the matter holistically and in its totality A

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and thereafter adopt a uniform policy in the matter relating to theextension of the age of superannuation of the employees of thePublic Sector Undertakings in the State of Andhra Pradesh.

1. Therefore, till the orders formulating the policy regarding theextension of the age of superannuation of the employees of theBPublic Sector Undertakings in the State of Andhra Pradesh areissued by the Government, all Secretariat, Departments, includingthe Water Resources Department, are advised to keep the orders,if any issued, of enhancement of the age of superannuation from58 years to 60 years of the employees of Public SectorUndertakings under their administrative control, in abeyance withCimmediate effect.”

3.4 After the disposal of Writ Petition Nos.18205 of 2014 and allconnected matters (G. Rama Mohan Rao and Anr. vs. Governmentof Andhra Pradesh etc.) on 07.03.2017 as stated above, writ petitionfiled by the petitioners namely W.P. (C) No.25937 of 2015 and allDconnected matters were disposed of by the High Court on 21.03.2017.Thereafter the petitioners filed Special Leave Petition No.21854 of 2017on 28.07.2017, which was tagged with the matters which were to comeup on 09.08.2017.

4. In the meantime, the matter was under consideration of theEState Government. On 08.08.2017 G.O.Ms.No.138 was issued by theGovernment of Andhra Pradesh, Finance (HR.IV-FR) Department. Thebackground facts were noted in said Order as under:- “The G.O.Ms.No.102 dated 27.06.2017 was issued giving StateGovernment’s approval in-principle and conditional consent forFextension of superannuation of 60 years to employees ofinstitutions listed in the IX and X schedules of AP ReorganizationAct of 2014. The conditions were laid down for the detailedexamination of the working of the various Companies/Corporations/Societies and their financial capabilities so as to decide whetherGthey are financially viable or not. The orders were to come intoforce prospectively after such examination. Also the AndhraPradesh Public Employment (Regulation of age ofSuperannuation) Act, 1984 amended by Act No.4 of 2014 of theState Government would not automatically apply to the scheduleIX and schedule X institutions as they are separate legal entities H

with their own Acts and Rules. Any decision on enhancement ofsuperannuation age of employees would have to be taken by theboard of directors/managing committees. As the State Governmentis the majority stakeholder, its approval of the decision of thegoverning body becomes necessary. After this, the rules/bye-laws of these institutions need to be amended to give effect to thedecision. Any extension of retirement age would come into effectonly from the date of issue of orders by the competent authorities.It follows therefore that the orders would be prospective.

2. Another reason for state government taking time on the issuewas the fact that the matter of division of assets and liabilities ofthese institutions is still pending and the employees also have notbeen allocated between the States of Telangana and AndhraPradesh. At this juncture enhancing the superannuation age forthe employees would have complicated matters, because of which,more employees would opt for Institutions in Andhra Pradesh whichwould affect their viability.”

The Order further noted that the challenge was pending in thisCourt. The Order stated that after reconsideration of the issue, theGovernment had decided to amend the G.O.Ms.No.102, Finance (HR.IV-FR) Department, dated 27.06.2017 and for the expression, “these ordersshall come into force prospectively from the date of issue of theorders by competent authorities after amendment the relevantregulations/bye-laws” appearing in G.O.MS.No.102, the followingexpression was substituted:- “These orders shall come into force with effect from02.06.2014. The Companies/Corporations/Societies shallamend their relevant regulations/bye-laws accordingly.”

Para 5 of the said Order dated 08.08.2017 further stated:

“5. In furtherance of this amended clause Government herebyorder that the employees working in Companies/ Corporations/Societies included in the Schedules IX and X of the Andhra PradeshState Reorganization Act, 2014, shall not be superannuated onlyon the ground of attainment of 58 years of age. In case such anemployee is superannuated on that ground he/she shall be reinstatedand continued upto 60 years.”

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5. All the Special Leave Petitions thereafter came next day beforethis Court i.e. on 09.08.2017 and while disposing of the appeals aftergranting leave, the following order was passed:

“5. The appellants approached this Court with certain grievancesregarding their continuance in service upto 60 years of age.

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6. According to the Government Companies/ Corporation/Societieswhere they have been working and which are included in theSchedules IX and X of the Andhra Pradesh Reorganization Actof 2014, since the Government had not granted approval to therecommendation for continuance upto 60 years of age, they wouldnot be entitled to continue until and unless the Government takesa decision.

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7. When the matters reached this Court, this Court in some caseshad granted an interim order for continuance upto 60 years ofage.

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8. Be that as it may, learned counsel appearing for the State ofAndhra Pradesh has today brought to our notice an order dated08.08.2017 issued by the Government of Andhra Pradesh wherebysuch employees have been granted the benefit of continuanceupto 60 years of age. It has been ordered that the “said orderdated 8.8.2017 …. shall come into force with effect fromE02.06.2014.”

9. In that view of the matter, we do not think it necessary to retainthese appeals in this Court any further. The stand of theGovernment is very clear. The Government Order dated08.08.2017 permitting the employees to continue upto the age of60 years has come into effect with effect from 02.06.2014.Therefore, all employees who have superannuated on account ofattainment of age of 58 years on 02.06.2014 or thereafter areentitled to the protection of their service upto 60 years of age andnaturally to all consequential benefits arising therefrom.

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10. The appeals are, accordingly, disposed of.”

6. Thereafter, Contempt Petitions were filed by the employeessubmitting inter alia that in terms of the order dated 09.08.2017 allconsequential benefits arising out of raising the age of superannuation H

had to be extended to those who had superannuated on attaining age of58 years on or after 02.06.2014. According to the petitioners the“consequential benefits” would and must include all back wages evenfor the period the petitioners had not actually worked in their respectiveorganizations. Reliance was placed on the decision of this Court in B.Prabhakar Rao and ors. vs. State of Andhra Pradesh[2] where certaindirections were issued after the age of superannuation was raised from55 years to 58 years. This Court directed in para 23 as under:-

“23. Finally we come to the question of the relief to be granted.We find that C1.3(1) of Ordinance No.24 of 84 and Sec.4(1) ofAct No.3 of 1985 may easily be brought to conform to therequirements of Art.14 of the Constitution by striking down oromitting the naughty word ‘not’ from those provisions. We maypossibly achieve the same object by striking down the whole ofc1.3(1) of the Ordinance and Sec.4(1) of the Act but then thequestion may arise whether the rest of the Act would be sufficientto bring in these who have been excluded. We think that thesafer course would be to strike down the offending word ‘not’from these provisions. That we have such power is clearly laiddown in Nakara’s case[3] where the court directed the deletion ofsome words from the offending clause and directed it to be readwithout those words. To make matters clear and to put thembeyond dispute, we give the following directions in exercise ofour powers under Art.32 and 142 of the Constitution:

“1. All employees of the Government, public corporations andlocal authorities, who were retired from service on the groundthat they had attained the age of 55 years by February 28,1983 or between February 28, 1983 and August 23, 1984, shallbe reinstated in service provided they would not be completingthe age of 58 years on or before October 31, 1985.

2. All employees who were compelled to retire on February28, 1983 and between February 28, 1983 and August 23, 1984and who are not eligible for reinstatement under the first clause,shall be entitled to be paid compensation equal to the totalemoluments which they would have received, had they beenin service, until they attained the age of 58 years, less any 2 1985 (Supp) SCC 432

3 D.S. Nakara vs. Union of India - (1983) 1 SCC 305

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306SUPREME COURT REPORTS

Aamount they might have received ex-gratia or by way ofpension etc. or under the Interim orders of this Court. Theywill be entitled to consequential retiral benefits. … … …”

7. After notices were issued by this Court, the State filed itsaffidavit in reply. It was submitted that in terms of GO No.138 datedB08.08.2017, Order was issued titled as Procg.Rc.No.B3/Legal/SLPs-even-2017/2018 on 11.06.2018. By this Order, following instructionswere issued for regularization of gap period in respect of retired and re-inducted employees of the society due to enhancement in age ofsuperannuation:

C1. “The gap period will be regularized as leave to which they areeligible (EL/HPL) by the Principals concerned and in case noleave is due, the period should be treated as EOL. The Principalsare hereby authorized to issue necessary orders for regularizingthe gap period of the employees strictly complying with theabove instructions. They should personally verify the fulfilmentDof prescribed conditions before issuing orders.

2. If the gap period is treated as eligible leave, the Annual GradeIncrement will be sanctioned as per eligibility. If the leave periodis treated as EOL, the date of Annual Grade Increment will bepostponed accordingly.E3. If, E.L. and H.P.L. encashment amount or any other retirementbenefits for which he/she was not entitled due to his/herreinstatement into the service has been paid to the individual atthe time of his/her initial retirement (i.e. on completion of 58years of age), the said amount shall be recovered from theFindividual and remit to the Society funds with proper entryrecorded in the Service Register, by 30.06.2018. For any excessdrawal/non-recovery of EL/HPL encashment/other suchamounts, in respect of any individual, the Principal concernedwill be held responsible.”G8. In these contempt petitions the arguments were led by Mr. P.S.Patwalia, learned Senior Advocate which were adopted by the otherlearned Counsel appearing for the petitioners. It was submitted:- (a) The Government order dated 08.08.2017 clearly stipulatedthat the employees working in entities included in Schedules IX and X of H

2014 Act would not be superannuated only on the ground of attainmentof 58 years of age and if any such employee was superannuated on thatground, he/she would be reinstated and continued upto 60 years.

(b) This Order was given retrospective effect from 02.06.2014and a direction was issued to all the companies/corporations/societies toamend their relevant regulations or byelaws accordingly.

(c) In terms of aforesaid order dated 08.08.2017, the matters stooddisposed of by this Court on 09.08.2017. The operative direction that allemployees who had superannuated on account of attainment of age of58 years on 02.08.2014 or thereafter were entitled to “the protection oftheir services upto 60 years of age and inter alia to all consequentialbenefits arising therefrom” was clear that all benefits arising out ofenhancement in age must logically flow in favour of the employees.

(d) The effect of said order would mean that such employeeswould always be treated to be in service till they had attained age of 60years and as such the “consequential benefits” must include back wagesand full emoluments for the period that the employees were not allowedto work.

9. Shri Basava Prabhu S. Patil, learned Senior Advocate appearedfor the alleged contemnors in Contempt Petition (C) Nos.1045-1055 of2018 and in Contempt Petition (C) Nos.1873-1891 of 20017. Mr. ParagP. Tripathi, learned Senior Advocate appeared for alleged contemnors inmatters pertaining to Andhra Pradesh Housing Corporation, namely,Contempt Petition (C) No.1130 of 2018 in C.A. No.12469-70 of 2017.The learned Senior Advocates as well as other learned Advocatesappearing in connected matters submitted:

(a) Initially special leave petitions pertaining to the employees ofthe Society alone had come up before this Court in which Orders dated27.04.2017, 05.05.2017 and 09.05.2017 were passed. In other mattersrelating to the employees of other institutions/entities no orders werepassed and those matters were simply tagged with the matters pertainingto the Society. Consequently, no notices were issued to respondent(s) inthose matters which came to be finally disposed of on 09.08.2017.

(b) In the light of the facts leading to the issuance of G.O. dated08.08.2017, all matters were disposed of without going into the merits.Such disposal would mean and imply that the protection afforded by A

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Avarious policy documents leading to said GO dated 08.08.2017 was foundto be adequate.

(c) In any case expression “consequential benefits” occurring inthe order dated 09.08.2017 cannot be given the expanded meaning andscope as was contended by the contempt petitioners. The PolicyBDocuments on record which culminated in the G.O. order dated08.08.2017 had sufficiently clarified as to what benefits would be givento the employees after enhancement of superannuation age from 58years to 60 years.

(d) Mr. Parag P. Tripathi, learned Senior Advocate relied uponCthe decision of this Court in Sureshchandra Singh and others v.Fertilizer Corporation of India Ltd. and others[4].

10. It is true that the initial orders dated 27.04.2017, 05.05.2017and 09.05.2017 were passed in matters pertaining to the employees ofGurukulam or Society. All these orders were ex-parte orders. InsofarDas the employees of the Society are concerned, it was submitted beforethis Court on 27.04.2017 that a decision had already been taken by theSociety for raising the age of superannuation and all that was required tobe done in the matter was only a formal expression in the form of anappropriate legislation. The expression in the order dated 05.05.2017that the protection afforded would apply “to all similarly situated employeesEunder the respondent institutions” was only in respect of the employeesof the Society and not in relation to employees of all the other entitiesmentioned in Schedules IX and X of 2014 Act. As a matter of fact, nonotice was issued in any matter apart from the matters pertaining to theSociety and all such other matters were simply tagged with the mainFbunch of cases which came up before this Court and were disposed ofon 09.08.2017. The learned Advocates appearing for the allegedcontemnors are right in their submission that insofar as entities otherthan the Society were concerned, the order dated 09.08.2017 was notpassed after due notice to them. Nonetheless the State was definitelyrepresented before this Court on 09.08.2017 and was heard. We do notGtherefore, deem it appropriate to decide these Contempt Petitions purelyon this issue and, therefore, proceed to consider the merits and whetherthere has been any violation of the directions issued by this Court on09.08.2017.

H4 (2004) 1 SCC 592

11. The raising of age of superannuation by amending Section 3of 1984 Act was soon after the bifurcation of the erstwhile State ofAndhra Pradesh. The concern as to what would be the situation if theemployees were finally allocated to the newly carved State of AndhraPradesh and the employees by that time had attained the age of 58years, was dealt with in newly inserted Section 3A in 2014 Act. Theprinciple was to re-induct them in the services under the State of AndhraPradesh without any break in service. Further, if the employee had notattained the age of 60 years, he would be re-inducted; and in case hehad attained the age of 60 years, what would in such cases be conferredupon the employees was notional advantage for the purpose of calculationof his pensionary benefits as if he had rendered service in the State ofAndhra Pradesh.

12. After the policy decision was taken on 05.08.2015 to raise theage of superannuation from 58 years to 60 years in respect of employeesof Society, that decision was kept in abeyance by Resolution dated18.06.2016. This Resolution states that the Government had taken stockof all the developments and had decided that the issue regardingenhancement of age of superannuation in respect of employees of theentities and institutions listed in IX and X Schedule of 2014 Act would betaken only after the issue of division of assets and liabilities of theconcerned institutions between the two States was settled and theallotment of employees was finalized. This was followed by GO dated28.06.2016 which dealt with issues like how after re-induction of theemployees pursuant to enhancement of age of superannuation, the periodthat the employees were out of employment, was to be dealt with. Suchperiod was referred to as the interregnum period or gap period, and wasthen dealt with under various heads. These developments are indicativethat it was always in contemplation that if an employee had superannuatedon attaining the age of 58 years and was thereafter re-inducted in servicewith superannuation age being 60 years, he would not be entitled to anysalary or normal emoluments for what was referred to as the interregnumperiod or gap period, but would be entitled to certain notional benefitsstipulated therein.

13. Even after the disposal of petitions by the High Court, thematter was receiving the attention of the State Government which isevident from GO dated 08.08.2017. It referred to the background facts A

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Aincluding the requirement to have the concerned rules or regulationsregarding the service conditions of employees in establishments inSchedule IX and X to be amended after due approval by the Governmentand after consideration whether such establishments were finally capableand viable. One of the factors which was recited was about that theissue of division of assets and liabilities was still pending and that theBallocation of the employees was not yet finalized. The GO modified theearlier decision dated 27.06.2017 to the extent it had made such decisionsprospective and now gave retrospective effect from 02.06.2014. It thusundoubtedly relaxed conditions as regards the requirement to have therules and regulations amended after due approval by the Government.CIt further stated that if an employee was retired on attaining age of 58years, he/she shall be reinstated and continued upto 60 years. However,this GO dated 08.08.2017 did not in any way depart from or dilute theprinciples as to what would be the situation in case of interregnum periodor gap period as was specifically referred to and dealt with in memo dated 28.06.2016. The situation becomes quite clear by furtherDinstructions issued on 11.06.2018 which again referred to gap period.

14. Since all these issues were not canvased before this Courtand were not gone into by this Court on 09.08.2017, the question thatarises is whether the expression “consequential benefits” occurring inthe order dated 09.08.2017 must be given the interpretation that theEemployees were entitled to all salaries and emoluments for the periodthat they had not even worked in their respective organisations? Theorder dated 09.08.2017 does not indicate that any such aspect of thematter was in contemplation of this Court or the matter was addressedfrom this stand point. In the absence of any discussion, it is very difficultFto say that this Court had thought of granting something which was inexcess of what was contemplated in various policy documents culminatingin the GO dated 08.08.2017. Those policy documents were not overriddenor in way found to be inoperative. As a matter of fact, they were noteven referred to.

G15. In this background we need to consider the expression“consequential benefits” in said order dated 09.8.2017. The contemptpetitioners submit that going by the law laid down by this Court in B.Prabhakar Rao[2] and particularly direction No.2 therein the financialbenefits in the nature of salary and other emoluments must be given to H

the employees even for the period that the employees had not worked.But the situation in B. Prabhakar Rao[2] was completely different. There,the issue was only regarding raising of age of retirement from 55 yearsto 58 years. In the present case the decision of raising the age ofsuperannuation was more or less contemporaneous with bifurcation ofthe erstwhile State of Andhra Pradesh. The division of assets and liabilitieswas still to be undertaken. The issue of allocation of employees in variousinstitutions in the erstwhile State was also to be finalized. And lastly,there was a clear direction issued by this Court invoking powers under142 of the Constitution of India. No such power was invoked or exercisedwhile passing the order dated on 09.08.2017.

16. In Sureshchandra Singh[4], this Court dealt with somewhatsimilar issue. After enhancement of the retirement age of the CentralGovernment employees from 58 years to 60 years, the employees workingin Public Sector Undertakings/Enterprises also raised similar demand onthe principle of parity. The matter was considered by this Court inparagraph 5 as under:

“5. Here the Government of India took a policy decision to increasethe retirement of Central Government employees. Application ofthat decision in respect of employees of public sector enterprisesis dependent upon so many factors that are to be taken into accountin the light of the peculiar characteristics of each company orcorporation or department. So the first OM itself provides thatthe order will come into force only with effect from the date ofnotification of amendment to the relevant rules and regulations.So it is for the authority concerned to make necessary changes inthe rules and regulations after taking into account all the relevantaspects. Immediately after the first OM dated 13-5-1998 theDepartment of Public Enterprises, Ministry of Industry,Government of India issued OM dated 19-5-1998 wherein themodalities of the implementation of the first OM in this Departmentwas detailed. Here it is pertinent to note that the OM dated19-5-1998 is not an instruction issued in the name of the President.On the other hand, it was issued by the Department of PublicEnterprises, which is advisory in nature. It accorded a broaddiscretion to the corporations or companies for the implementationof the enhanced retirement age after taking into account all the AB

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Arelevant factors. Pursuant to this direction the Board of Directorsof FCIL took the decision not to increase the retirement age of itsemployees. The relevant factors that prevailed upon the Board ofDirectors are fully set out in its resolution and they are: that theCompany is one of the highest loss-making company in thecountry; that the accumulated loss till the relevant date was to theBtune of Rs 5049 crores; that the Company is incurring financiallosses of roughly Rs 2.35 crores everyday; that the Company hasno capacity to pay salaries to its employees; that the Companywas referred to BIFR and was declared as sick on 6-11-1992;that as on the relevant date the Company has the negative netCworth to the tune of Rs.4316.21 crores and; that the Companyhas surplus manpower; that it is not taking any new employeesbut on the contrary it is making conscious efforts to reduce thesurplus manpower.”

17. Thus, purely on the principle of parity the employees of theDinstitution or entities in Schedule IX and X of 2014 Act could not demandthe benefit of enhancement of the age of superannuation from 58 yearsto 60 years. That benefit came to be conferred under policy documentsand finally by the GO dated 08.08.2017. Thus, the source was in thosepolicy documents and naturally the extent of benefits was also spelt outin those instruments issued by the Government. The Circular datedE28.06.2016 which was more or less adopted in proceedings dated11.06.2018 must be taken to be the governing criteria in respect of suchemployees. Unless and until that governing criteria was departed fromspecifically, mere expression “consequential benefits” would not entitlethe concerned employees anything greater than what was contemplated Fin the policy documents issued by the State Government.

18. We, therefore, do not find any violation of the orders passedby this Court and dismiss these contempt petitions. It goes without sayingthat every employee, who is similarly situated would be entitled to thebenefits conferred by policy documents referred to above but not forGsalary and other emoluments for the period they had not actually worked.

19. We are grateful for the assistance rendered by all the learnedcounsel.

Divya PandeyH

Contempt Petitions dismissed.