1

* HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON’BLE MR. JUSTICE D.V.S.S. SOMAYAJULU

AND

HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ W.A.Nos.441, 492, 496, 500, 502, 508, 510, 512, 514,

516, 523, 527, 533 and 541 of 2021

% 25.09.2023

W.A.No.441 of 2021

#The Vice Chairman and Managing Director,

Andhra Pradesh State Road Transport Corporation,

RTC House, Vijayawada, Krishna District.

… Appellants

Vs.

$Pragada Vasudevarao,

S/o Papayya, E456337, Aged about 58 years,

Occ: Retd Conductor, C/o Srikakulam Depot-II,

Srikakulam District and 22 others

… Respondents

! Counsel for the appellants : Sri M.Solmon Raju for learned Advocate

General

! Counsel for the Respondents : Sri N.Ashwani Kumar and

Sri G.V.Shivaji

< Gist:

> Head Note:

? Cases referred:

1

2017 (3) ALT 1

2

2023 SCC Online SC 1074

3

2021 SCC Online 466

4

(1983) 1 SCC 305

5

1992 (1) SCC 28

6 (1983) 1 SCC 305

2

HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

AND

HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

W.A.Nos.441, 492, 496, 500, 502, 508, 510, 512, 514,

516, 523, 527, 533 and 541 of 2021

COMMON JUDGMENT : (per Hon’ble Sri Justice D.V.S.S.Somayajulu)

This batch of writ appeals is taken up for hearing with the

consent of all the learned counsels appearing for the respective

parties.

2. For the appellants, the Advocate General as instructed by Sri

M.Solmon Raju appeared. For the respondents/writ petitioners the

essential arguments were advanced by Sri N.Ashwani Kumar and Sri

G.V.Shivaji.

3. The writ appeals are filed against the common order passed in

W.P.No.2350 of 2020 and batch and in W.P.No.19075 of 2019 and

batch.

4. The writ petitioners have sought a direction in the nature of a

Mandamus declaring the action of the respondents in issuing a

notification No.PD-20/2019, dated 30.09.2019 by which the age of

superannuation was increased from 58 to 60 years with immediate

effect i.e., from September 2019 instead of with retrospective effect

3

from 02.06.2014. This was contested and the batch of writ petitions

were allowed. The learned single Judge held that the notification

No.PD-20/2019 dated 30.09.2019 shall be applicable retrospectively

from 02.06.2014 with all consequential benefits. Against the same,

the present appeals are filed and the matters were argued at length.

5. The facts are not in dispute. Both the parties have relied upon

tabulated statements field in the form of memos which are taken on

record. The case law and the written arguments are also taken on

record. The important dates and events which are pointed out are set

out in the form of tabulated statements, which are as under:

S.No. Date Description

1 27.06.2014 The State Government has amended the

A.P. Public Employment Regulation of

Age of Superannuation Act vide Act No.4

of 2014, wherein, the age of

superannuation was enhanced from 58 to

60 years

2 18.06.2016 G.O.Ms.No.112 was issued by the

Finance (HRM IV) Dept. clarifying that

the Act 4 of 2014 is only applicable to the

categories under section 2 (6) of the 1984

Act and that the enhanced age of

superannuation from 58 to 60 years is

not applicable to PSUs and institutions

listed in schedule IX and X of

Reorganization Act.

3 07.03.2017 WP order was given by the Composite

High Court of AP in W.P.No.18205 of

2016 and batch reported in (2017) 3 ALT

1 (DB), wherein, the GO Ms.No.112,

Dt.18.06.2016 was challenged and the

Hon‟ble Court held that the employees

working under the respective PSUs and

Institutions cannot claim any right to

continue service till attainment of age of

60 years and only upon the request of the

4

concerned PSU / Corporation / Society /

Institution and thereafter upon the

approval of the State Government, the

employees shall be eligible for

enhancement of superannuation.

4 09.08.2017 The Hon‟ble Apex Court has diposed of

the appeals (reported in (2019) 17 SCC

364) filed against W.P.No.18205 of 2016

and batch in light of the GO Ms.No.138,

Fin (HRM IV) Dept., Dt.08.08.2017.

5 22.08.2017 The Hon‟ble High Court of AP disposed

W.P.No.19707 of 201 and batch directing

APSRTC or the Appellant Corporation to

take a decision regarding the

enhancement of age of superann uation

within 3 months

6 19.06.2018 The Appellant Corporation vide its

Resolution No.64/2918 has decided not

to enhance the age of superannuation to

its employees from 58 to 60 years.

7 24.07.2018 The Hon‟ble Apex Court was not inclined

to interfere in the orders Dt.22.08.2017

passed by this Hon‟ble High Court in

W.P.No.19707 of 2017 and batch.

8 14.06.2019 GO Ms.29 was issued by the Transport

Dept., thereby an expert committee was

constituted to look into the merger of

APSRTC in to the Government of AP.

9 03.09.2019 The expert committee has given its report

on merger of APSRTC in to the

Government of AP.

10 30.09.2019 GO Ms.39 was issued by the Transport

Dept., wherein, the State Government

has agreed to enhance the age of

superannuation of the Appellant

Corporation employees from 58 to 60

years pending the formal merger with the

State Government.

11 30.09.2019 The Appellant Corporation has enhanced

the age of its employees from 58 to 60

years vide its Notification No.PD-20/19

12 16.12.2019 The State Government has introduced a

bill vide L.A. Bill No.53 of 2019 in the

A.P. Legislative Assembly pertaining to

the absorption of employees of the

Appellant Corporation into the service of

the State Government.

13 27.12.2019 The State Government has brought and

Act vide Act No.36/2019 into force

5

absorbing the employees of the Appellant

Corporation into the service of the State

Government.

14 31.12.2019 GO Ms.No.52 was issued by the

Transport Department, wherein, all the

employees of the Appellant Corporation

are absorbed into the Public Transport

Department created by the State

Government.

15 14.02.2020 W.P.No.4204 of 2020 was filed

challenging the notification of the

Appellant Corporation Dt.30.09.2019

pertaining to the enhancement of age of

superannuation.

6. Learned Advocate General took this Court through the series of

events and the documents filed which are mentioned above in the

tabulated statement. He also points out that the Judgment of the

Division Bench in the Case of G.Rama Mohan Rao v. Govt. of A.P.,

1

is conclusive and this Court has to follow the same. He also points out

that a subsequent Division Bench in Writ Appeal No.878 of 2022 and

batch has also followed the Judgment and passed orders. It is his

contention that the conclusions in the case of G.Rama Mohan Rao (1

supra) make it clear that the Board of Directors have to amend the

Corporation bye-laws, rules and regulations which have to be

approved by the State Government and after the rules, bye-laws and

regulations are amended in accordance with law, the employees would

be entitled to the enhanced age of superannuation. He also points out

that the Division Bench clearly pointed out that the decision has to be

taken based upon various parameters which are mentioned including

1

2017 (3) ALT 1

6

the financial capacity of the Corporation. Learned Advocate General

also pointed out that the employees of the Corporation have also filed

W.P.No.19707 of 2017 and batch which was disposed of on

22.08.2017 directing the respondents-Corporation to take a decision

whether or not to amend its statutory regulations within three (3)

months and further action with regard to the continuation or

otherwise of its employees would be taken pursuant to the decision of

the Board. After these writ petitions were allowed, the decision of the

Board was taken not to enhance the age to 60 years. Thereafter, a

committee was appointed to merge the APSRTC with the State

Government itself. After the merger was approved , the age of

retirement was enhanced by the Government itself to 60 years by

G.O.Ms.No.39 dated 30.09.2019. This was followed by notification

dated 30.09.2019 by which the age of superannuation was enhanced

to 60 years with effect from September, 2019. Learned Advocate

General submits that this decision was taken after reviewing of the

parameters in line with the Judgment of G.Rama Mohan Rao (1

supra) and after looking in to the report of an expert committee.

Thereafter, the merger was approved. He submits that these are all

matters of policy and that the Court should very lightly interfere in

matters of policy. It is his contention that whenever a “date” is decided

in matters like this, there will always be some employees who will be

losing out since a date has to be necessarily fixed as a cut-off. He

7

contends that if such a cut-off date is not fixed, it would be impossible

for a retirement date to be arrived at in the Corporation. He also

submits that the question of discrimination also does not arise in a

case like this and the submissions of the learned counsels for the

respondents and the conclusion by the learned Judge is wrong for the

reason that in matters of policy and with regard to the date of

retirement, the employees do not have a vested right to be considered

and that the employees who have already retired and those who are in

the service as on September, 2019 are a distinct class by themselves.

Therefore, the question of discrimination will not arise. He relies on a

judgment in the case of Dr.Prakasan M.P. and others v. State of

Kerala and another

2 which is also considered earlier judgment in

the case of New Okhla Industrial Development Authority (NOIDA)

v. B.D.Singhal

3.

7. In reply to this, Sri N.Ashwani Kumar argues that once the age

of superannuation was decided to be enha nced based upon the

merger, the benefit of the same should be given to the petitioners also.

He also points out that State Government had agreed to enhance the

retirement age from 58 to 60 based upon the recommendation of the

expert committee pending formal merger and did not impos e any

conditions or a prospective date. On the other hand, the appellant-

2

2023 SCC Online SC 1074

3

2021 SCC Online 466

8

Corporation had introduced the cut-off date as September, 2019. He

points out that by virtue of the judgment in earlier case of G.Rama

Mohan Rao (1 supra) that went upto the Hon‟ble Supreme Court, the

amendment was given retrospective effect. Therefore, it is his

contention that as per G.O.Ms.No.102, all the Corporations have to

amend their bye-laws and that in view of the language used, in para 5

of the said G.O., the orders should come into force and be made

applicable without any pre-conditions. The learned counsel contends

that the introduction of cut-off date amounts to discrimination. He

also argues at length about the decision of G.Rama Mohan Rao (1

supra) and the appeal before the Hon‟ble Supreme Court etc. He

submitted a brief note also.

8. Sri G.V.Shivaji, learned counsel also argued the matter and filed

a written note also. It is his contention also that the learned single

Judge rightly interpreted the mandatory nature of the directions

issued in G.O.Ms.No.102 and the word used in clause 5 “shall”.

Therefore, he submits that the Corporation was bound to amend its

regulations. Instead of doing so, they differed and later instead of

following the said direction fully, they have introduced a cut-off date

which is contrary to the earlier directions on the subject. He also

relies upon G.O.Ms.No.138 which gave retrospective effect to the dates

by amending G.O.Ms.No.102. He submits that by virtue of this G.O.

dated 08.08.2017, the orders have come into force with retrospective

9

effect and all the employees working in a Corporation included in

schedules 9 and 10 of the A.P.State Reorganization Act, like the RTC

are entitled to the benefit. He, therefore, submits that denial of the

benefit to the writ petitioners is contrary to law and is discriminatory.

He relies upon the well known judgment of D.S.Nakara and others v.

Union of India

4 to justify his case of unreasonable classification and

arbitrariness. Lastly, without prejudice to any of his conditions,

learned counsel also submits by relying upon Ashok Alias Somanna

Gowda and another v. State of Karnataka by its Chief Secretary

and others

5 that the relief can also be limited to the writ petitioners

and not to all other who are similarly placed.

9. In rejoinder, the learned Advocate General submits that the

prayer in the writ petition is against a policy decision and is

questioning the notification in PD-20/2019. Therefore, he submits

that if a declaration is given, it will be applicable to all and the request

of the learned counsel for the respondents made in the alternative that

it should be limited to the writ petitioners cannot be given. He points

out that the recent judgment of the Hon‟ble Supreme Court in New

Okhla Industrial Development Authority (NOIDA) (3 supra) and

Dr.Prakasan M.P., (2 supra) are an answer to the issue raised.

4

(1983) 1 SCC 305

5

1992 (1) SCC 28

10

10. COURT: It is an admitted fact that by the date the writ

petition was filed all the petitioners had retired. The lead case of

W.P.No.4204 of 2020 shows that the majority of writ petitioners had

retired in 2017 and some other retired in 2018 and 2019. The writ

was filed in February, 2020. The chequered history of the decision to

enhance the age of superannuation is set out in the tabular statement

mentioned above. In the previous round of litigation when the age was

enhanced from 58 to 60 years, a big batch of writ petitions were filed

which culminated in the decision of G.Rama Mohan Rao (1 supra).

The findings of this judgment of the Division Bench were not in any

way modified or altered by the Hon‟ble Supreme Court in the SLP‟s

filed. Since the Government decided to enhance the age and did not

contest the matter in this SLP‟s the Hon‟ble Supreme Court did not

pass any further orders. Therefore, in the opinion of this Bench, the

findings in the case of G.Rama Mohan Rao (1 supra) are still good

law. This Bench is bound by them. In para 163 of the judgment of

G.Rama Mohan Rao , the following was held in para 163:

163. Not to provide for an age of retirement at all would be

contrary to public interest, because the State or its

instrumentalities cannot afford the luxury of allowing its

employees to continue in service after they have passed their peak.

(Yeshwant Singh Kothari v. State Bank of Indore ; K.

Nagaraj v. State of A.P.). The proposition that there ought to be an

age of retirement in services is widely accepted as reasonable and

rational. The fact that the stipulation, as to the age of retirement,

11

is a common feature of all services establishes its necessity, no

less than its reasonableness. Public interest demands that there

ought to be an age of retirement in all services. A common scheme

of general application governing superannuation is evolved in the

light of experience regarding performance levels of employees, the

need to provide employment opportunities to the younger sections

of society, and the need to open up promotional opportunities to

employees at the lower levels early in their career. Inevitably, the

employer has to counter -balance conflicting claims while

determining the age of superannuation. On the one hand, services

under the State or its instrumentalities cannot be deprived of the

benefit of the mature experience of senior employees. On the other

hand, a sense of frustration and stagnation cannot be allowed to

generate in the minds of the junior members of the services, and

the younger sections of the society. The balancing of these

conflicting claims of different segments of society involves minute

questions of policy. These claims involve considerations of varying

vigour and applicability. Often, the Court has no satisfactory and

effective means to decide which alternative, out of the many

competing ones, is the best in the circumstances of a given case.

While resolving the validity of policy issues like the age of

retirement, it is not proper to put the conflicting claims in a

sensitive judicial scale, and decide the issue by finding out which

way the balance tilts. That is an exercise which the administrator

has to undertake. (K. Nagaraj111).

In paras 165 and 166, the following was held:

165. If a rule of retirement can be deemed to deprive a person

of his right to livelihood, it will be impermissible to provide for an

age of retirement at all. That will be contrary to public interest

because the State or its instrumentalities cannot afford the luxury

of allowing its employees to continue in service after they have

passed the point of peak performance. Rules of retirement do not

12

take away the right of a person to his livelihood : they limit his

right to hold office to a stated number of years. (K. Nagaraj111). A

government servant/employee of a public sector undertaking has

no right to continue in service beyond the age of superannuation

and, if he is retained beyond that age, it is only in exercise of the

discretion of the Government or the pub lic sector undertaking

concerned. (State of Assam v. Basanta Kumar Das). Once the age

of superannuation is fixed it may be open to the employer, for

special reasons, to continue in its employment an employee who

has passed that age; but it is inconceivable that when the age of

superannuation is fixed, it should be in the option of the employee

to continue in service thereafter. (Guest Keen Williams (P)

Ltd. v. P.J. Sterling).

166. Fixing an age of retirement does not amount to

termination of services. (N. Lakshmana Rao1). There is no

provision which takes away the power of the Government or the

public sector undertaking to increase or reduce the age of

superannuation. (Bishun Narain Mishra v. State of U.P.; N.

Lakshmana Rao1). Application of the legislative policy decision, to

increase the age of retirement of Government employees, to

employees of public sector enterprises also depends on many

factors that should be taken into account in the light of the

peculiar characteristics of each company or corporation or

department. It is for the concerned authority to make necessary

changes in the rules and regulations after taking into account all

relevant aspects. (Sureshchandra Singh112).

11. Ultimately, in conclusion, the Division Bench held that the

Corporations will have to take steps to secure the approval of the

Government for amendment of the bye-laws, regulations and only after

13

approval, the employees would get the benefit of enhanced age of

superannuation.

12. In the case on hand, after this decision was pronounced,

employees of the Corporation filed W.P.No.19707 of 2017 and batch.

The Division Bench by common order directed the respondent

Corporation to take a decision within three months from that date.

Thereafter, with a slight delay, on 19.06.2018, a decision was taken by

the Board to negative the request and not to enhance the retirement

age. The financial status of the Corporation and also the financial

impact of the retirement age enhanced with effect from 02.06.2014

were also considered by the Board of APSRTC. It was noted that if the

benefit is given and 02.06.2014 is considered for enhancing the

retirement age with retrospective effect, the burden would be Rs.878

crores and if the benefit of enhancement is given even on a notional

basis, the cost would be approximately Rs.382 crores. Other reasons

are also cited by the Board which resolved not to enhance the age.

Thereafter, the State decided to merge the Corporation into itself. A

committee was appointed to study the various aspects with regard to

the merger. The committee gave a report with some options. One out

of the two options was accepted by the Government and G.O.Ms.No.39

dated 30.09.2019 was issued agreeing to the recommendation of the

committee of the employees from 58 to 60 years pending formal

14

merger. Immediately thereafter, and on the same day, the impugned

order dated 30.09.2019 was issued.

13. It is therefore clear that the procedure stipulated in the case of

G.Rama Mohan Rao (1 supra) was also followed and that the decision

was not a spur of moment decision or a kneejerk reaction. For certain

reasons, the Board of the APSRTC decided not to enhance the age of

superannuation. Pursuant to the Governments decision of merger, a

committee was appointed to study the modalities and it is thereafter

only that the decision was taken to enhance the age from 58 to 60

years. This was made applicable from September, 2019.

14. In the opinion of this Court and as mentioned earlier, this is a

reasoned thought out decision and it is purely in realm of a „policy

decision‟. The judgment cited by the learned Advocate General in the

case of Dr.Prakasan M.P. is in the opinion of this Court an answer to

the argument advanced. In para 9 of this judgment, it is noticed that

all the G.Os issued were prospective in nature and the primary G.O.

dealt with enhancement of superannuation age. In para 12, the

Hon‟ble Supreme Court in this decision started its analysis by stating

that the age of retirement is purely a matter of policy which lies within

the domain of the State Government. In para 12 the following was

noticed:

15

12. In a somewhat comparable case on facts that arose

in New Okhla Industrial Development Authority v. B.D.

Singhal

12

, the appellant - Authority (NOIDA) had resolved to

recommend enhancement of the age of superannuation of its

employees from 58 to 60 years. The said proposal, when sent

to the State Government for prior approval, was turned

down. This led to the aggrieved employees filing a writ

petition before the High Court of Judicature at Allahabad

which was allowed and NOIDA was directed to consider the

matter afresh and forward its proposal to the State

Government for its approval. It was left open to the State

Government to consider giving effect to the increase in the

age of retirement from the date when NOIDA had resolved to

bear the financial burden for the increase of age or from

such date as it may consider expedient. This time, the State

Government acceded to the proposal received from NOIDA

for enhancing the age of retirement to 60 years, but made

the said decision prospective. Aggrieved by the refusal of the

State Government to make the decision retrospective, the

respondents amended the pending writ petition which was

allowed by the High Court that struck down the provision of

making the decision prospective and directed that such of

the respondents who had retired from service by then, would

be deemed to have worked till the extended age of retirement,

with all consequential benefits. Challenging the said

decision, the State of Uttar Pradesh filed a Petition for

Special Leave to Appeal under Article 136 of the Constitution

of India, which was allowed by this Court with the following

observations:

“22. Whether the age of superannuation should be

enhanced is a matter of policy. If a decision has been

taken to enhance the age of superannuation, the date

with effect from which the enhancement should be made

16

falls within the realm of policy. The High Court in ordering

that the decision of the State government to accept the

proposal to enhance the age of superannuation must date

back to 29 June 2002 has evidently lost sight of the above

factual background, more specifically (i) the rejection of the

original proposal on 22 September 2009; and ( ii) the

judgment of the Division Bench dated 17 January 2012

refusing to set aside the order rejecting the proposal on 22

September 2009 which has attained finality. But there is a

more fundamental objection to the basis of the decision of

the High Court. The infirmity in the judgment lies in the

fact that the High Court has trenched upon the realm of

policy making and has assumed to itself, jurisdiction

over a matter which lies in the domain of the executive.

Whether the age of superannuation should be inc reased

and if so, the date from which this should be effected is a

matter of policy into which the High Court ought not to

have entered.

xxxxxxxxx

24. Whether the decision to increase the age of

superannuation should date back to the resolution

passed by NOIDA or should be made effective from the

date of the approval by the State government was a

matter for the State government to decide. Ultimately,

in drawing every cut-off, some employees would stand on

one side of the line while the others would be positioned

otherwise. This element of hardship cannot be a ground

for the High Court to hold that the decision was

arbitrary. When the State government originally decided to

increase the age of superannuation of its own employees

from fifty-eight to sixty years on 28 November 2001, it had

left the public sector corporations to take a decision based

17

on the financial impact which would result if they were to

increase the age of superannuation for their own employees.

25. From time to time the authorities of the State took a

decision bearing upon the exigencies of service prevailing in

each organisation. ………. The State government had

evidently determined that it was for each organisation to

consider and determine the impact of the financial burden,

and based on that the organisation was to submit a proposal

for the approval of the government.

26. The High Court's observation that the Government

order on 30 September 2012 increasing the age of

superannuation prospectively is arbitrary seems to be

based on the premise that the respondent-employees

have a vested right to the increase in the age of

retirement on the passage of the resolution by NOIDA .

However, Section 19 of the Act stipulates that regulations -

which would include amendments as in this case - will

require the previous approval of the State Government. The

employees will have a vested right to the increased age of

superannuation only after the service regulations are

modified upon approval of the State Government, and from

such date as maybe prescribed by the Government. Para 1(ii)

of the government order issued on 30 September 2012

clearly and in unambiguous terms states that the order shall

come into force prospectively. The government order can

be given retrospective application only if expressly

stated or inferred through necessary implication.

Therefore, the respondent -employees could not have

claimed a vested right that the enhancement in the age

of retirement should be made effective from the date on

which NOIDA had resolved to submit a proposal for t he

approval of the government.”

(Emphasis added)

18

15. The Hon‟ble Supreme Court clearly held in para 1 7 of

Dr.Prakasan M.P. ( 2 supra) as follows:

17. Such a decision lies exclusively within the domain of the

Executive. It is for the State to take a call as to whether the

circumstances demand that a decision be taken to extend the age

of superannuation in respect of a set of employees or not. It must

be assumed that the State would have weighed all the pros and

cons before arriving at any decision to grant extension of age. As

for the aspect of retrospectivity of such a decision, let us not

forget, whatever may be the cut -off date fixed by the State

Government, some employees would always be left out in the cold.

But that alone would not make the decision bad; nor would it be a

ground for the Court to tread into matters of policy that are best

left for the State Government to decide. The appellants herein

cannot claim a vested right to apply the extended age of retirement

to them retrospectively and assume that by virtue of the

enhancement in age ordered by the State at a later date, they

would be entitled to all the benefits including the monetary

benefits flowing from G.O. dated 9

th April, 2012, on the ground of

legitimate expectation.

16. Similarly, if the New Okhla Industrial Development Authority

(NOIDA) (3 supra) case is seen, it is clear that a similar fact situation

with regard to enhancement of retirement age was the core issue. In

para 17, the following is found:

17. The High Court while striking down para 1(ii) of the

Government Order dated 30 September 2012 to enhance the

age of retirement with prospective effect (para 1(ii) of the

government order makes this position clear) has directed

that the enhancement of the age of retirement must date

19

back to 29 June 2002. This direction giving retrospective

effect to the enhancement in the age of retirement seems to

be based on the fact that the original resolution of the Board

of NOIDA to enhance the age of retirement was issued on 29

June 2002. In granting this relief, the High Court has

formulated two reasons in its judgment:

firstly, the government order dated 30 September 2012 is

arbitrary for having increased the age of retirement with

effect from the date of the order without giving the benefit to

employees who had retired prior to that date;and secondly,

there was no reason to refuse the benefit of an extension of

the age of superannuation retrospectively when the

resolution was received by the State government “more than

three years back”.

17. The Hon‟ble Supreme Court also held as follows in paras 24 and

26:

24. Whether the decision to increase the age of superannuation

should date back to the resolution passed by NOIDA or should be

made effective from the date of the approval by the State

government was a matter for the State government to decide.

Ultimately, in drawing every cut-off, some employees would stand

on one side of the line while the others would be positioned

otherwise. This element of hardship cannot be a ground for the

High Court to hold that the decision was arbitrary. When the State

government originally decided to increase the age of

superannuation of its own employees from fifty-eight to sixty years

on 28 November 2001, it had left the public sector corporations to

take a decision based on the financial impact which would result if

they were to increase the age of superannuation for their own

employees.

20

26. The High Court's observation that the Government order on 30

September 2012 increasing the age of superannuation

prospectively is arbitrary seems to be based on the premise that

the respondent-employees have a vested right to the increase in

the age of retirement on the passage of the resolution by NOIDA.

However, Section 19 of the Act stipulates that regulations - which

would include amendments as in this case - will require the

previous approval of the State Government. The employees will

have a vested right to the increased age of superannuation only

after the service regulations are modified upon approval of the

State Government, and from such date as maybe prescribed by the

Government. Para 1(ii) of the government order issued on 30

September 2012 clearly and in unambiguous terms states that the

order shall come into force prospectively. The government order

can be given retrospective application only if expressly stated or

inferred through necessary implication. Therefore, the respondent-

employees could not have claimed a vested right that the

enhancement in the age of retirement should be made effective

from the date on which NOIDA had resolved to submit a proposal

for the approval of the government.

18. In addition, the law on the matter of this Courts power to

interfere in matters of policy decision is well settled. This Court does

not have either the expertise or wherewithal to decide the issue. The

issue of financial implication of the decision is also a matter which the

Courts will have to keep in mind and cannot ignore.

19. Therefore, if the decision taken to implement the enhancement is

viewed against the above mentioned legal and factual backdrop, it is

21

clear that it is a reasoned decision. No ground is pleaded or proved to

set it aside.

20. As far as the other argument of discrimination based upon

D.A.Nakara and others v. Union of India

6 is concerned, this Court

notices that a similar issue was also considered and decided in para

17 of this very same judgment that some employees would be left out

in the cold. So is the finding in para 24 of New Okhla Industrial

Development Authority (NOIDA) (3 supra).

21. Therefore, this Court has to hold that in view of the fact situation

in this case and the law on the subject, it cannot be said that the

action of the appellants in fixing the date of superannuation from

September 2019 is contrary to law. In addition, the petitioners were

seeking a Mandamus. A Mandamus would only arise when there is a

right. As held by the Division Bench in G.Rama Mohan Rao (1

supra) and the Hon‟ble Supreme Court in the above mentioned case,

the petitioners do not have a vested right to claim the relief. The relief

cannot be limited to the writ petitioners as the prayer is against a

decision/policy decision that is applicable to all employees.

22. For this reason also, this Court agrees with the submissions of

the appellants and holds that the order of the learned single Judge

has to be set aside. The two recent judgments of the Hon‟ble Supreme

6

(1983) 1 SCC 305

22

Court have also settled the legal position. It is clear that in cases of

enhancement of age of superannuation the petitioners cannot claim it

must be from a retrospective date.

23. The writ appeals are therefore allowed. No order as to costs.

As a sequel, the miscellaneous petitions if any shall stand dismissed.

__________________________

D.V.S.S.SOMAYAJULU, J

__________________________________

DUPPALA VENKATA RAMANA, J

Date: .09.2023

Note: L.R.Copy be marked.

KLP