Gorli Shoury Sukumar Vs the State of Ap

The prayer sought in the writ petition is for a direction to the respondents to enhance the age of superannuation of the petitioners from 60 to 62 years, on the basis of G.O.Ms.No.15, Finance (HR.IV-FR & LR) Department, dated 31.01.2022, amending the provisions of Section 3 of The Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, (for short, <the Act, 1984=).

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The 2^nd respondent is a Central Public Sector Undertaking, Government of India. It is contended that pursuant to a Memorandum of Understanding between Rastriya Ispath Nigam Limited (RINL) - the 2^nd respondent and the 3^rd respondent - Society, the 4^th respondent school was established to impart education to the children of RINL employees. The infrastructural facilities for running the educational institution are being provided by the 2^nd respondent at nominal charges. In pursuance thereof, the 4^th respondent school was established. Contending that the provisions of the Act, 1984, and the provisions of Section 78A of Andhra Pradesh Education

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Act, 1982, as regards the age of superannuation, would apply to the case of the petitioners, the petitioners have earlier approached this Court, seeking the same benefit of enhanced age of superannuation as that of the teaching staff of the Government Schools from 58 to 60 years.

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The petitioners, who are working in the said school, had claimed for enhancement of superannuation from 58 to 60 years on par with the regular teachers working in the Government schools in terms of the amendment made. The petitioners were not given the said benefit. Seeking redressal of the said grievance, the petitioners have earlier filed W.P.No.1432 of 2019. The same was dismissed vide order dated 05.08.2019. Being aggrieved by the same, a writ appeal was filed in W.A.No.267 of 2019. The said writ appeal was partly allowed on 27.11.2019, directing the respondents to enhance the age of superannuation from 58 to 60 years. Against the said order, the 2^nd and 4^th respondents filed appeals before the Hon’ble Apex Court. The said SLP’s were dismissed. In the meanwhile, the 1^st respondent issued G.O.Ms.No.15, Finance (HR.IV-FR & LR) Department, dated 31.01.2022, pursuant to the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Ordinance, 2022 (A.P. Ordinance No.1 of 2022), enhancing the age of superannuation in the employees of the State Government from 60 to 62 years. In furtherance of the said G.O., the petitioners have made a representation to the respondents to allow them to work till completion of 62 years. The same was not considered. Hence the

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instant writ petition.

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The respondents filed counter affidavit stating that the petitioners are not entitled for the benefits of the amendment made to the provisions of the Act,1984, and that the writ petition is not maintainable. The State Government Service Conditions would not apply to the petitioners. Unless the 2^nd respondent falls within the list of corporations/companies/societies or other institutions listed under Schedule IX and X of the Andhra Pradesh Reorganization Act, 2014, the amended provision would not apply to the petitioners. It is further contended that since the 4^th respondent school was established by the 3^rd respondent society, their pay and allowances have been discharged by the 2^nd respondent in terms of the Memorandum of Agreement and the State Education Department did not provide any aid or assistance to the 4^th respondent school. In other words, it is stated that the subject school is a private school, therefore, not entitled to the benefit of Section 78A of Andhra Pradesh Education Act, 1982. It is further contended that the 4^th respondent school is not under the administrative control of the State Government. It is argued that the Act 4 of 1984 has been enacted to regulate the age of superannuation of the persons appointed to public services and in connection with the affairs of State of Andhra Pradesh. In view of the same, amendments made under the said Act would not apply to the 4^th respondent school.

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Learned counsel for the petitioner Sri A.K.Kishore Reddy, argues

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that in the MOA between the 2^nd respondent and the 3^rd respondent, it was agreed that the scales of pay and other allowances of the teaching and non-teaching staff of the school would be governed by the Rules and Regulations of the Andhra Pradesh Education Act, 1982. Placing reliance on the judgment of the Division Bench in W.A.No.267 of 2019, it is contended that the petitioners' age of superannuation should be enhanced to 62 years.

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Sri V.Subrahmanyam, learned Standing Counsel appearing for the 2^nd respondent, placing reliance on the Judgment of the Hon’ble Apex Court in the case of Dileep Kumar Pandey and another Vs. Union of India

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& Others , contends that the writ petition is not maintainable. He further relying on the Judgments of this Court and Hon’ble Apex Court in W.P.Nos.1033 of 2022 & batch and in the case of Armu Welfare Education Society, New Delhi Vs. Sunil Kumar Sharma & Others , contends that the 4^th respondent is a private entity and the relationship between the 2^nd and 3^rd respondents is in the private domain thus the petitioners are also employees of the 3^rd respondent Society andthey cannot have any right to invoke the jurisdiction under Article 226 for enhancement of age of superannuation. With regard to the contention of the petitioners that the order of the Division Bench in W.A.No.267 of 2019 has become final, the learned Standing Counsel, Sri V.Subrahmanyam, placing reliance on the judgment of the Hon’ble Apex Court in the case of Shivappa Etc.Vs The Chief Engineer and Others in Civil Appeal Nos.2694-2700 of 2023, contends that mere dismissal of the SLP

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would not amount to affirmation of the view taken by the High Court, unless the Judgment of the High Court is affirmed at least with short reasoning and the same would not amount to binding precedent.

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Considered the rival submissions.

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Perusal of the record would indicate that as per Clauses 7(a) and 8 of MOA dated - January, 2015, it is the responsibility of the 2^nd respondent Company to meet the expenditure of the school relating to recurring and nonrecurring heads of expenditure. As per Clause 11 of the said MOA, the teaching and non-teaching staff of the 4^th respondent – school are entitled to the same scales of pay and other allowances as would be paid by State Government. The provisions of Section 78A of Andhra Pradesh Education Act, 1982, would not apply to the facts of the present case, since the 4^th respondent school is not an aided institution. Mere obligation under the MOA on the part of the 2^nd respondent company to pay salaries of the teaching staff would not entitle the petitioners to claim enhancement of age of superannuation as that of the State Government employees. The obligation on the part of the 2^nd respondent in payment of salaries is referrable to the contract between the Company and the Society, and the same would not make the petitioners as employees of the 2^nd respondent Company.

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Further, with regard to the contention of the respondents as to the maintainability of the writ petition, a reference to the decision of the Hon’ble

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Apex Court in the case of St. Mary's Education Society and Another Vs. Rajendra Prasad Bhargava and Others¹ , is required to be made in the said

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regard, wherein the Hon’ble Apex Court observed as follows:

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<75.We may sum up our final conclusions as under:4

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(a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.

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(b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of <State= within the expansive definition under Article 12 or it was found that the action complained of has public law element.

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(c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational

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1 (2023) 4 SCC 498

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institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a <public function= or <public duty= be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.

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(d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether <A= or <B= is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.

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(e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.=

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In view of the same, this Court is of the view that not only the writ petitions are not maintainable, but also having regard the nature of the duties discharged by the petitioners, the petitioners are not entitle to the claim of

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enhancement of age of superannuation.

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