IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION Nos.1635, 3845, 12402 & 24173 of 1996 and 20304 of 1999 WRIT PETITION No.1635 of 1996 Between: 1 G.V.V.R.Ramanujam S/o Gopalakrishna Murthy KBN College, Vijayawada 2 K. Hanumantha Rao KBN College, Vijayawada 3 A. Padmanabham S/o Sundara Raghavan S.R.V.B.S.J.B. Maharani College, Peddapuram, E.G. District. 4 M. Raghupathi Rao S/o Radhakrishna Rao Andhra Loyola College, Vijayawada ..... PETITIONERS AND 1 Govt. of A.P. Dept. of Education, A.P., Hyderbad 2 Indian Audit and Accounts Dept., O/o Accountant General (A&E) A.P. Hyderabad-22 3 M/s. KBN College rep. by Secretary & Correspondent, Vijayawada 4 S.R.V.B.S.J.B. Maharani College, Peddapuram rep. by Secretary & Correspondent Peddapuram, E.G. District. 5 M/s. Andhra Loyola College rep. by Correspondent, Vijayawada .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any other appropriate Writ or Order or direction declaring the action of respondents in denying the pensionery benefits under A.P. Revised Pension rules of 1980 to the Petitioners herein who Voluntary retired from service after 1-11-1992 as arbitrary, illegal, unjust and as unsustainable and issue a consequential direction directing the respondents herein to grant and disburse the pensionary benefits to petitioners herein as per A.P. Revised Pension Rules of 1980 w.e.f. the date of retirement with all consequential benefits and to grant 18% p.a. interest on the arrears of pensionery benefits payable to Petitioners w.e.f. the date of retirement Counsel for the Petitioners: Mr.S.SATYANARAYANA PRASAD Counsel for the Respondents: GP FOR HIGHER EDUCATION WRIT PETITION No. 3845 of 1996 Between: Bhattiprolu Venkata Sayanarayana Sarma, S/o B. Kutumba Rao R/o Tenali, Guntur District. ..... PETITIONER AND 1 Government of Andhra Pradesh, rep. by Secretary Department of Education, Andhra Pradesh, Hyderabad 2 Indian & Audit Accounts Department, Office of Accountant General (A & E) Andhra Pradesh, Hyderabad 3 M/s. V.S.R. and N.V.R. College rep. by Correspondent, Tenali .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any other appropriate Writ or Order or direction declaring the action of respondents in denying the pensionary benefits under the A.P. Pension Rules of 1980 to petitioner herein who Voluntary retired from service after 1-11-1992 as arbitrary, illegal, unjust and as unsustainable and issue a consequential direction directing the respondents herein to grant and disburse the pensionary benefits to the petitioner herein as per A.P. Revised Pension Rules of 1980 w.e.f. the date of retirement with all consequential benefits and to grant 18% p.a. interest on the arrears of pensionary benefits payable to the Petitioner w.e.f. the date of retirement. Counsel for the Petitioner: Mr. S.SATYANARAYANA PRASAD Counsel for the Respondents: GP FOR EDUCATION WRIT PETITION No. 12402 of 1996 Between: K.Shankar Rao S/o.late K.Rajalingam A.V.V.Junior College, Warangal, Warangal Dist ..... PETITIONER AND 1 The State of Andhra Pradesh, rep.by its Secretary Education (Higher) Department, A.P.Secretariat Buildings, Hyderabad 2 The Director of Intermediate Education Andhra Pradesh, Hyderabad 3 The Regional Joint Director of Higher Education, Warangal 4 The Indian Audit and Accounts Department, Office of the Accountant General (A&E) Andhra Pradesh, Hyderbad, rep.by its Accounts Officer, 5 The Principal A.V.V.Junior College, Warangal 6 The A.V.V.Junior College, Warangal rep.by its Secretary - Correspondent .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction especially in the nature of a writ of mandamus directing the respondents to revise and re-fix the pension of the petitioner in terms of para 2(b) part-A of the rules contained in GO.Ms.No.2, Dt.05/01/1994 by declaring the letter No.Pen.8/II/95-96/1038, Dt.11/09/1995 of the Accounts Officer, Indian Audit and Accounts Department, Office of the A.G (A&E), AP., Hyderabad as being arbitrary, illegal, unconstitutional null and void and accord all consequential benefits as regards arrears etc. Counsel for the Petitioner: Mr.Y.VENKAT SASTRY Counsel for the Respondents: GP FOR SCHOOL EDUCATION WRIT PETITION No. 24173 of 1996 Between: R.S.Mallikarjunam S/o. R.Venkata Subbaiah Jawahar Bharathi College. R/o. Kavali, Nellore Dist. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep by its Secretary Dept of Education Hyderabad. 2 Indian Audit and Accounts Dept C/o Office of Accountant General, A.P Hyderabad. 3 Jawahar Bharathi, Kavali, Rep by its Correspondent Kavali , Nellore Dist. 4 D.K.Govt College Rep by its Principal Nellore. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to May be pleased to issue a writ of Mandamus or any other appropriate writ or order or direction declaring the action of respondents in denying the Pensionary benefits under A.P. Pension Rules of 1980 to the Petitioner herein who Voluntarily retired from service before 1-11-1992 as arbitrary, illegal, unjust and unsustainable and issue a consequential direction directing the respondents herein grant and disburse the pensionary benefits to the petitioner herein as per A.P. Revised Pension Rules of 1980 with effect from the date of his retirement with all consequential benefits and to grant 18%p.a. interest on the arrears of Pensionary benefits payable to petitioner with effect from the date of retirement. Counsel for the Petitioner: Mr. S.SATYANARAYANA PRASAD Counsel for the Respondents: GP FOR EDUCATION WRIT PETITION No. 20304 of 1999 Between: Smt. Gunmala Somani S/o Ramchander Somani Agarwal Junior College for Boys, Charkaman, Hyderabad ..... PETITIONER AND 1 State of A.P. rep. by Secretary Education Dept., Secretariat, Hyderabad 2 The Commissioner & Director of Intermediate Education A.P., Hyderabad 3 Indian Audit Accounts Dept., rep. by Accountant General, A.P. Hyderabad 4 Agarwal Junior College for Boys rep. by Secretary Charkaman, Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a appropriate writ, order or direction particularly one in the nture of Writ by declaring the G.O.Ms.No.2 Education (C.E.III) Dept. dt: 5-1-1994 is also applicable to the persons who retired voluntarily. 2. declare the action of the 3rd respondent in not granting the Revised Pension as contemplated under G.O.Ms.No.2 Education (C.E.III) Dept., dt: 5-1-94 to the petitioner as wholly illegal, arbitrary and unconstitutional. 3. and consequently direct the respondents to revise and pay the difference of pension as per G.O.Ms.No.2 Education (C.E..III) Dept. dt: 5-1-1994 with interest @ 24% and also continue pay the same. Counsel for the Petitioner: Mr.PRATAP NARAYAN SANGHI Counsel for Respondents 1 to 3: G.P. FOR HIGHER EDUCATION Counsel for the Respondent No.4: MR.AKHTER AHMED JABRI The Court made the following : COMMON JUDGMENT: A common question of law arises for consideration in all these writ petitions; therefore, they are being disposed of by this common Judgment. Petitioners are all Lecturers retired from various private Aided Degree Colleges of East Godavari, Krishna and Guntur districts as noted in the statement infra. S.No. Name W.P.No. College Date of Birth Date of joining service Date of retirement 1 GVVR Ramanujam 1635/96 Principal, KBN College, Vijayawada 2.11.1938 27.8.1960 31.5.1991 2 K.Hanumantha Rao 1635/96 Head of the Department of Physics, KBN College, Vijayawada 1.7.1936 22.7.1966 31.5.1992 3 A.Padmanabham 1635/96 Lecturer in Maths, SRVBSJB Maharani College, Peddapuram, E.G.District 1.4.1941 17.8.1962 15.9.1992 4 M. Raghupathi Rao 1635/96 Senior Assistant, Andhra Loyola College, Vijayawada 8.1.1937 31.12.1988 5 B.V.S.Sarma 3845/96 Lecturer in Mathematics, VSR & NVR College,. Tenali 14.10.1935 8.1.1993 6 K. Shankar Rao 12402/96 Lecturer in Economics, A.V.V.Junior College, Warangal .1930 .1951 18.10.1983 6 R.S.Mallikarjunam 24173/96 Lecturer in Maths,Jawahar Bharathi Junior College, Kavali 6.11.1938 31.10.1991 7 Smt.Gunmala Somani 20304/99 Lecturer in Physics, St.Joseph College for Women 7.7.1964 27.6.1987 Their grievance is that they have been sanctioned pension in accordance with the Pension Rules of 1961 i.e. maximum of Rs.1,000/- per month. As on the date of their retirement from service, the Andhra Pradesh Revised Pension Rules of 1980 as applicable to Government College Lecturers were extended to the aided college staff through G.O.Ms.No.536, Education (J) Department, dated 17-6-1992, but the same is not extended to them. Joint Secretary to Government, Education Department of Government of Andhra Pradesh, Hyderabad issued a letter dated 1-7- 1995 stating that the cases of ‘voluntary retirement of staff of aided Colleges like the petitioners have to be finalized in accordance with Pension Rules of 1961 only. It is the case of the petitioners that the Andhra Pradesh Education Act,1982 governs the functioning of aided educational institutions and teaching and non-teaching staff working in those institutions. The Amending Act 17 of 1993 introduced Section 78-A in the said Act. Further, the State Government issued G.O.Ms.No.2, dated 5-1-1994 framing the Andhra Pradesh Aided Degree, Oriental and Junior Colleges Staff Pension Rules,1993. These Rules provide for payment of pension of the teaching and non-teaching staff of affiliated aided colleges in the State as per the Andhra Pradesh Revised Pension Rules of 1980. All the petitioners opted for voluntary retirement after completion of minimum qualifying service between 31-12-1988 and 8-1-1993. However, the respondents did not extend the pensionary benefits to them as required under the Andhra Pradesh Revised Pension Rules of 1980. The denial of pensionary benefits to the petitioners as per the Andhra Pradesh Revised Pension Rules of 1980 is arbitrary, illegal, discriminatory and in violative of Articles 14 and 16 of the Constitution of India. The said facility/benefit has been extended vide G.O.Ms.No.536, dated 17-6-1982 even to the teachers working in aided colleges. Teaching/non-teaching staff of the aided colleges in the State must be treated on par with those Government employees opted for voluntary retirement for the purpose of payment of pension under Andhra Pradesh Revised Pension Rules of 1980. In fact, the respondents are extending the benefit of Andhra Pradesh Revised Pension Rules of 1980 to those who retired before or after 1-11-1992 and similarly placed with that of the petitioners, but they are not extending the same to the petitioners on the short ground that the words ‘voluntary retirement’ were not mentioned in Part-A of G.O.Ms.No.2, dated 5-1-1994. In fact, the respondents also extended benefits under Andhra Pradesh Revised Pension Rules of 1980 for all those employees, who voluntarily retired after 13-7-1993 and while granting such benefit to such employees, denying the said benefits to those who voluntarily retired before and after crucial date i.e. 1-11-1992 is arbitrary and illegal. A detailed counter affidavit has been filed on behalf of the respondents denying the allegations made by the petitioners. It is the case of the respondents that in letter No.1249/CE.III-1/94-3 Education, dated 1-7-1995, the Government had clarified as under: “I am directed to invite attention to your letter 3rd cited and to state that cases of voluntary retirements from 01-01-1992 to 13-7-1993 (i.e. the date of effect of Act No.17/93) may be finalized under Andhra Pradesh L.R.Rs.1961 without applying the maximum ceiling of Rs.1,000/- per month. However, restricting the commutation to 1/3 of the Rs.1,000/- besides revising the family pension at the rate of Revised Pension Rules,1980 in respect of Service Pensioners alive as on 1-11-1993. It may also be clarified that the cases of the voluntary retirement and retirement in invalid pension and arising on or after 13-7-1993 may be finalized restricting the service and emoluments upto the age of 58 years only………”. According to the above letter, the revision of pension is only applicable for the staff of private aided Degree, Oriental and Junior Colleges, who retired after 13-7-1993. Therefore, the petitioners are not eligible for revision of pension. However, the pension may be revised without applying the maximum ceiling of Rs.1,000/- per month restricting the commutation to 1/3rd of Rs.1,000/- besides revising family pension at the rate of Revised Pension Rules,1980 in respect of service pensioners alive as on 1-11-1992. The cases of the voluntary retirement and retirement on invalid pension etc., arising on or after 13-7-1993 may be finalized restricting the service and emoluments upto the age of 58 years only. It is also stated in the counter that there is a provision to exercise an option to retire from service voluntarily on completion of 20 years of qualifying service as per G.O.Ms.No.536, dated 17-6-1982. The Rules framed under Section 78-B of the Andhra Pradesh Education Act and the Rules issued in G.O.Ms.No.2, dated 5-1-1994 deal with different classes of employees, who worked in private aided Degree, Oriental and Junior colleges. Part- A of the Rules deal with the employees, who have retired on attaining the age of superannuation either before or after the commencement of A.P. Act 17 of 1993. Part B of the Rules deal with the employees, who have retired on attaining the age of 60 years prior to commencement of A.P. Act 17 of 1993. Similarly, Part-C deals with the employees, who have continued in service beyond 58 years, but were retired consequent on coming into force of Act 17 of 1993. While in cases falling under Parts A and C, Andhra Pradesh Revised Pension Rules of 1980 were made applicable, in cases falling under Part B, A.P. Liberalized Pension Rules,1961 were made applicable. The reason is that by the time the Act 17 of 1993 came into force, such of the employees, who fall in the ambit of Part B already stood retired. However, with a view to provide some relief to such of the persons, who stood retired before commencement of the Act 17 of 1993, but were alive, were extended pensionary benefits in a limited way. Petitioners took voluntary retirement much before the Act came into force. The Rules framed under G.O.Ms.No.2, dated 5-1- 1994 were given effect from 1-11-1992. Therefore, the petitioners cannot compare themselves with that of the category of employees, who had retired subsequent to coming into force of the Act. Under the Act and Rules the employees, who retired prior to commencement of the Act were treated on separate basis and the A.P. Liberalized Pension Rules,1961 were made applicable to them subject, however, the condition that the ceiling limit under the said Rules was not applied. Inasmuch as they took voluntary retirement prior to the commencement of Act 17 of 1993, their case is similar and akin to those who retired prior to coming into force of the Act. Therefore, this position was clarified by the Government in their Memo dated 1-7- 1995. The petitioners cannot compare themselves with those employees, who retired subsequent to the coming into force of the Act. Under the said Act and the Rules made thereudner, advantageous scheme was framed in view of curtailment of age of retirement from 60 years to 58 years. The calculation of the pension in respect of petitioners is valid and is in accordance with law. It is also stated that the A.P. Education Act,1982 was amended by the State Government making provision that ‘(a) notwithstanding anything contained in any orders issued for payment of pension to the Private aided Degree and Junior Colleges staff including last grade staff before the commencement of the said Act, who retired at 58/60 years respectively are entitled to pension w.e.f 1-11-1992 in accordance with such separate rules as may be made in that behalf; (b) Members of teaching and non-teaching staff, who continue in service beyond 58 years for any reason, shall be entitled to pension w.e.f. 1-11-1992 in accordance with such separate rules as may be made in that behalf.” Therefore, the writ petition is devoid of merits and liable to be dismissed. Sri S. Satyanarayana Prasad, learned senior counsel appearing for the petitioners, contended that the respondents cannot adopt discriminative attitude in making applicability of the pensionary benefits in the Andhra Pradesh Revised Pension Rules of 1980 between a person retired before 1-11-1992 and a person retired after 1-11-1992. Once the Andhra Pradesh Revised Pension Rules, 1980 are made applicable to the teaching and non-teaching staff of the private aided schools, the respondents cannot differentiate between the persons retired before 1-11-1992 and after 1-11-1992. Further, the respondents cannot discriminate between the persons those who retired from service on attaining the age of superannuation at 58 years and those who opted for voluntary retirement on completion of 58 years. The discrimination sought to be made by the respondents is arbitrary, illegal and liable to be set aside. Learned counsel for the petitioners placed reliance upon the reported Judgment of the Apex Court in KRISHNADEVARAYA EDUCATION TRUST v. L.A. BALAKRISHNA wherein it was held as under: “All that has happened is in such of the banks where a scheme for voluntary retirement was available, certain employees retired under that scheme. Now a comprehensive Pension Scheme has been framed which came into force w.e.f. 1- 11-1993 and is applicable uniformly to all bank employees, which provides for voluntary retirement as well. The applicability of these rules to those employees who have voluntarily retired w.e.f. 1-1-1986 to 31-10-1993 is raised in these matters. It is not possible for Shri V.R. Reddy, learned Senior Counsel who appears for the appellants to point out that there is any significant financial or other burden or difference so far as those who had voluntarily retired and those who had ordinarily retired. In that event, where there is no distinction, the authorities having sought to make a distinction and not applied the regulations framed subsequent to their retirement, the High Court has given appropriate directions. We also notice that the number of employees who have retired in this manner is also very small. Therefore, we think no interference is called for in these appeals….” The ratio laid down in the above case squarely applies to the facts of these cases. Learned counsel for the petitioners also stated that these are only the petitioners, who are left over and even otherwise, it will not cause any financial burden to the State exchequer. The very same arguments were adopted by the other learned counsel appearing for the petitioners. Learned Government Pleader for Higher Education contended that the law as available as on the date of retirement of the petitioners was implemented in its strict sense. Petitioners cannot have any grievance and they cannot seek fixation of pension under the law, which came into being after their retirement. Further, it is not the case of the petitioners that they have retired from service on attaining the age of superannuation at 58 years. The retirement and voluntary retirement are altogether different. Petitioners took voluntary retirement; therefore, they cannot seek the same benefit as that of the others. This Court has given earnest consideration to the submissions made by the learned counsel on either side and gone through the material made available on record. Before going to consider the question of law, it may be necessary to notice few relevant provisions of the Act and the Rules. Section 78A of the A.P. Education Act reads as under: “78-A: Age of superannuation of the staff in aided private educational institutions:- 1. Every teacher or member of non-teaching staff employed in any aided, private educational institution, not belonging to last grade service, shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years; Provided that a teacher or a member of the non-teaching staff aforesaid, who has already attained the age of fifty eight years and continuing in service on the date of commencement of the Andhra Pradesh Education (Amendment) Act,1993, shall retire on the afternoon of the last day of the month of commencement of the said Act. 2. Every member belonging to the last grade service shall retire from service on the afternoon of the last day in which he attains the age of sixty years.” A.P. Aided Degree, Oriental and Junior College Staff Pension Rules,1993 which have come into force with effect from 1-11-1992 issued vide G.O.Ms.No.2, dated 5-1- 1994 read as under: “(1) Short title and commencement:- i. These Rules shall be called ‘the Andhra Pradesh Aided Degree, Oriental and Junior Colleges Staff Pension Rules,1993’. ii. They shall come into force on and from 1-11-1992. (2) These rules shall consist of three parts; Part-A in respect of teaching and non-teaching staff, who retired from service on attaining the age of 58 years and Last Grade Staff, who retired from service on attaining the age of 60 years; Part-B in respect of teaching and non-teaching staff, who retired from service on attaining the age of 60 years and Part-C in respect of teaching and non-teaching staff, who continued in service beyond 58 years and retired from service before completing the age of 60 years:- PART-A a. The Andhra Pradesh Revised Pension Rules,1980 shall apply mutatis mutandis to all the teaching and non-teaching staff of private aided Degree, Oriental and Junior colleges, who retired from service on attaining the age of 58 years and the members belonging to the Last Grade Service of private Aided Degree, Oriental and Junior Colleges, who retired from service on attaining the age of 60 years before or after the commencement of the Andhra Pradesh Education (Amendment) Act,1993 and alive. b. Refixation of Pension:- Such of the teaching and non-teaching staff of private Aided Degree, Oriental and Junior colleges, who have retired at the age of 58 years, even prior to commencement of Act No.17 of 1993 shall be eligible to claim refixation of Pension under the Rules, with effect from 1-11-1992 or the date of their retirement, whichever is later. These staff members would also be eligible for arrears of pension from 1-11-1992. However, such staff members shall not be eligible for any increased Gratuity. They shall also not be eligible from commutation on account of increase in the Pension. PART-B The Andhra Pradesh Liberalized Pension Rules,1961 shall be applicable mutatis mutandis to all such members of teaching and non- teaching staff of private aided Degree, Oriental and Junior Colleges, who retired from service on attaining the age of 60 years and are alive as on 1-11- 1992. Provided that the maximum ceiling limit of pension as provided in Rule 3 of the Andhra Pradesh Liberalized Pension Rules,1961 shall not be applicable to the above staff members. PART-C The pension formula given in Part-A is also applicable to these teaching and non-teaching staff of private aided degree, oriental and Junior Colleges, who continued in service beyond the age of 58 years and retired from service before completing the age of 60 years after coming into force of the Andhra Pradesh Education (Amendment) Act,1993 (Act 17 of 1993) and alive. The services rendered beyond 58 years in any case shall not count as qualifying service and it shall be treated as just service, not qualifying in any manner for pensionary benefits. 3) Commencement of Qualifying Service:- Subject to the provisions of these rules, qualifying service of the teaching and non-teaching staff of private aided degree, oriental and Junior Colleges in aided service, shall commence from the date he/she takes charge of the post to which he/she is first appointed either substantively or in an officiating or temporary capacity in an aided post. The unaided service shall not count for pension.” The amended Section 78-A of the A.P. Education Act contemplates applicability of age of superannuation of the staff in aided private educational institutions except for the last grade service as 58 years. However, if a teacher has already attained the age of 58 years and continuing in service on the date of commencement of the A.P. Act 17 of 1993 shall retire on the afternoon of the last day of the month of the commencement of the Act. A.P. Act 17 of 1993 introducing Section 78A into A.P. Education Act came into force with effect from 1-11-1992. It is the case of the petitioners that Part A of G.O.Ms.No.2, dated 5-1-1994 is applicable to the