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Judgment
The petitioner is seeking a declaration to the effect that the action of the respondents in not releasing the benefits to the petitioner by treating his age of retirements 60 years is illegal and void and to give a direction to the respondents to release all consequential benefits accruing to the petitioner on that account.
The petitioner was originally appointed on 26-12-1953 in the erstwhile Electricity Department of the Ex-Hyderabad Government as Special Estimator. After the formation of the Andhra Pradesh State, his services were transferred to the Andhra Pradesh State Electricity Board (for short ''the Board'') and all rules applicable to the ex-Hyderabad employees were made applicable to him. Subsequently he was promoted as Foreman and on the date when he filed this writ petition, he was working as Foreman Grade-IV, According to Hyderabad Civil Service Rules, he could be superannuated at the age of 60 years.
An Award was passed by the Industrial Tribunal being Award No. 1/49, according to which, all daily wage employees who had put in 1-1/2 years continuous service were to be made permanent with effect from August, 1949. A letter dated 26-12-1953 was issued by the Assistant Secretary, Finance Department, Government of Hyderabad, absorbing such employees on permanent posts. Even after the formation of the State of Andhra Pradesh, the Subordinate Service Rules were made applicable to the daily wageemployees and as per Rule 1(c) of the OSW Rules, such employees were given all kinds of service benefits like leave, provident fund, gratuity and other benefits. The employees working on daily wages in the erstwhile Government of Hyderabad were paid monthly salary calculated on daily rate basis. The Department was recovering EDPE amount from the petitioner''s salary from 26-12-1953 and Account No. 1532 was given to him. GPF A/c No.2247 was also given to him under Ticket No.5013 like other permanent employees.
Further, according to the petitioner, when he attained the age of 59 years, the 1st respondent served him with a Memo No.DEE/EHT/L1/GF-25/E-1/D.No.1651, dated 28-3-1988 asking him to retire from service on 31-7-1988 at the age of 59 years on the ground that the petitioner had completed the age of superannuation and the period in excess of 58 years put in by the petitioner was termed as "re-employment". The respondents also recovered from the petitioner the payments made during the alleged re-employment period i.e., from 1-8-1987 to 31-7-1988 vide Board''s Memo dated 5-7-1990 inspite of the petitioner''s representation dated 25-7-1991 not to recover the same.
The petitioner further states that while forwarding petitioner''s pension papers the 1st respondent wrote to the 2nd respondent a letter dated 24-1-1991 that the petitioner was an Ex-Hyderabad Government employee and he had to retire the age of 60 years. Later on when the petitioner came to know that all Ex-Hyderabad Government Employees were allowed to continue up to 60 years and also having regard to the fact that the High Court in WP Nos.13366/88,979/90,8820/90 and 5538/91 allowed them to continue upto 60 years, he filed a representation dated 24-2-1992 to the respondents for giving all consequential benefits to him as if the petitioner had been superannuated at the age of 60 years. But the respondents did not pay any heed to the same. However, the 1st respondent wrotea letter dated 11-5-1992 to the 2nd respondent for further action. Since there was no response, the petitioner issued a legal notice dated 12-5-1992 to the 1st respondent asking for retirement benefits on the same lines. The 1st respondent mainly stated by its letter dated 24-6-1992 that the petitioner''s case had been referred to the Competent Authority for reconsideration. But, eventually nothing positive came forward and, therefore, it became necessary for the petitioner to file the present writ petition.
The Deputy Manager (Legal) of the respondent-Board states in his counter-affidavit that the petitioner was originally appointed on daily wages on 24-9-1949. Subsequently on 26-12-1953 he was transferred to the temporary staff on daily wages and he continued as such till 1-8-1958 and on the said date i.e., 1-8-1958 the petitioner''s services were regularised and he was given a time scale of pay. The effective date of regularisation was 1-11-1956 which was the date on which the State of Andhra Pradesh was formed. The Hyderabad Civil Service Regulations were not applicable to the petitioner.
According to Rule 231 of Hyderabad Civil Service Rules, as contended by the respondents, a workman who was paid salary "on a monthly rate of pay" was entitled to be continued in service till his 60th year. However, since the petitioner was working on daily wage basis till 1-8-1958 he was not entitled to get the advantage of continuing his service till 60th year which was available only to the employees working on monthly salary basis, and therefore, according to the respondents, there was no irregularity in superannuating the petitioner from service at his 58th year. The petitioner''s contention that all daily wage employees of the erstwhile Government of Hyderabad were treated as permanent employees in view of the order of the Industrial Tribunal and that as per letter dated 26-12-1953 of the Assistant Secretary, Finance Department of the Government of Hyderabad, all the daily wage employees had to be absorbed, was unsound and untenable according to the respondents.
May it be unsound, according to the Deputy Manager (Legal) of the respondents-Board, it cannot be disputed that the Assistant Secretary, Finance Department by his letter dated 26-12-1995, copy of which had been produced by the petitioner at page 3 of the material papers attached to the writ petition addressed to the Accountant General Hyderabad, stated that the Rajpramukh had been pleased to sanction that all the temporary employees in the City Electricity Department who had put in more than 1-1/2 years of continuous service, would be absorbed on permanent basis as and when vacancies occur and they were to be treated as permanent for all purposes which in my opinion includes the age of superannuation because it has not been specifically exceptcd. The existence of this letter dated 26-12-1953 has not been disputed. It has also not been pointed out that the said letter was declared as illegal and void by any judicial pronouncement. It is also not disputed by the said letter that except that the temporary employees in the State Electricity Department who had put in 1-1/2 years of continuous service, would be absorbed on permanent posts as and when vacancies occur, they were to be treated in unambiguous terms as permanent "for all purposes".
The date of petitioner''s birth was 12-7-1929 and, therefore, according to the respondents, he attained the age of superannuation on 31-7-1987 on completion of 58 years. He was continued in service till 31-7-1988 by over-sight and, therefore, according to the respondents, by a Memo, dated 5-7-1990 the period from 1-8-1987 to 31-7-1988 was treated as ''re-employment''. It is significant to note mat the respondents do not dispute or challenge the ground taken by the petitioner that the 1st respondent while forwarding the petitioner''s pension papers to the 2nd respondent, sent a letter dated 24-1-1991 mentioning that the petitioner was Ex-Hyderabad Government Employee and had to retire at the age of 60 years. The copy ofthe said letter dated 24-1-1991 is produced by the petitioner at Annexure 7 along with the writ petition, the contents of which had not, been denied by the respondents. It is clearly stated in the said letter that the petitioner had to retire from service with effect from 31-7-1989 A.N on attaining the age of 60 years since his birth dated was 12-7-1929 and his date of first appointment was 26-12-1953. It is further clarified in the said letter that as per Board''s Memo No.DMfTR/PO/2.2/453/88-2, dated 24-6-1988, communicated to the petitioner vide letter dated 27-7-1988, the petitioner had been retired from service with effect from31-7-1988 A.N.
It is pertinent to note that with regard to the averments made by the petitioner in his affidavit filed in support of the writ petition that the High Court of Andhra Pradesh in WP No.13366/88,979/90, 8820/90 and 5538/91 allowed the Ex-Hyderabad Government Employees to continue up to 60 years of age, the respondents merely said that before the respresentation made by the petitioner in that regard could be considered by the Respondents the petitioner rushed to this Court by filing the present writ petition. Obviously this is not an answer to the orders passed by the High Court in the writ petitions directing that the Ex-Hyderabad Government employees should be allowed to continue in service up to 60 years of age.
It is also pertinent to note that at Annexure-No.15, the petitioner has produced a copy of G.O. Ms. No.2388, dated 1-10-1960 in which the Government of Andhra Pradcsh extended the provision of Rule 231 of the HCS Rules to the workmen of the City Electricity Department and directed, that the workmen in the City Electricity Department shall ordinarily be retained in service up to the age of 60 years. He may, however, be required to retire at any time after attaining the age of 55 years after being given a month''s notice or a month''s pay in lieu thereof on account of impaired health or of being negligent or inefficient in the discharge of his duties. He also may retire at any time after attaining the age of 55 years by giving a month''s notice in writing. The workmen means highly skilled and unskilled artisan employed on a monthly rate of pay in Industrial and work charged establishment. In para 2 of the said G.O., the Government ratified the action of the Engineer (Electricity Projects) in having continued the employees beyond the age of 55 years in anticipation of sanction was stated in the proceeding in para if they were found medically fit to continue in service for the period noted against their names.
It would appear from the above G.O. dated 1-10-1960 that the Government of Andhra Pradesh clearly took a stand in the opening part of the G.O. that the provision of Rule 231 of the HCS Rules was extended to the workmen of the City Electricity Department and accordingly directed that the workmen of City Electricity Department be ordinarily retained in service up to the age of 60 years. In the instant case, since the petitioner was undisputedly a workman of the City Electricity Department he was entitled to be retained in service up to the age of 60 years and he could have been made to retire earlier at the age of 55 years only if any of the infirmities as stated in the said G.O. was incurred by the petitioner. But it is not the case of the respondents that the petitioner was made to retire at an earlier age on account of any such infirmity.
In the case of Radha Kishun Vs. Union of India (UOI) and Others, , the Supreme Court held as follows:
"We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the abovesaid date when admittedly he was to retire on May 31, 1991. It would bean obvious case of absolute irresponsibility on the part of the officer concerned in the establishment in the concerned section for not taking any action to have the petitioner retired from service on hisattaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits."
The invocation of the above authority to the facts of the present case is rather misconceived. It is true that in the counter-affidavit the respondents have come with a contention that the petitioner was erroneously continued in service up to the completion of the age of 59 years inspite of the fact that he was liable to be retired at the age of 58 years. But in fact it was not a case of allowing continuation of service inadvertently. The petitioner was rightfully entitled to be continued in service up to the age of 60 years on various grounds which have been elaborately discussed above and the same need not be repeated here all over again. If it was a genuine mistake on part of the Electricity Board there could be no constraint on applying squarely the ratio emerging from the decision of the Supreme Court cited above. Believing it even for arguments sake that in the perception of the respondents the continuation of the petitioner in service after the completion of the age of 58 years was erroneous, the fact that the petitioner was rightfully entitled to be given the advantage which was available to the Ex-Hyderabad Government employees cannot be undermined or made subservient to the misconception on part of the respondents. I am firmly of the opinion that the petitioner was lawfully empowered to be given the advantage of 60 years being the age of superannuation and therefore the writ petition deserves to be allowed.
The writ petition is accordingly allowed. The respondents are directed torelease the benefits available to the petitioner by treating him as the employee who was entitled to be superannuated not earlier than the completion of the age of 60 years. The respondents shall comply with the above direction as expeditiously as possible but not later than 31-1-1998. No costs.