THE HONOURABLE SRI JUSTICE GODA RAGHU RAM AND THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WRIT APPEAL Nos.668 AND 669 OF 2011 Dated:07.09.2011 W.A.No.668 of 2011: Between: T.Jithendra Prasad …Petitioner And The Government of A.P., rep. by its Principal Secretary, Revenue (Endowments) Department, Secretariat, Hyderabad and others …Respondents W.A.No.669 of 2011: Between: T.Jithendra Prasad …Petitioner And The Government of A.P., rep. by its Principal Secretary, Revenue (Endowments) Department, Secretariat, Hyderabad and others …Respondents. THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE GODA RAGHU RAM AND THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT APPEAL Nos.668 and 669 of 2011 COMMON JUDGMENT: (per THE HON’BLE SRI JUSTICE N.RAVI SHANKAR) Heard Sri V.Ravi Kiran Rao, the learned counsel for appellants, Sri Ch.Satish Kumar, the learned standing counsel for Endowments, Sri Sriram Reddy, the learned counsel for fourth respondent and Sri Gangaiah Naidu, the learned senior counsel appearing for fifth respondent in both the appeals. As both sides argued the matter extensively we propose to dispose them of giving details though the matters arise out of interlocutory orders. 2. Both these writ appeals, as stated supra, arise out of two separate interlocutory orders of a learned single judge passed in miscellaneous petitions in two writ petitions viz. W.P.No.2441 of 2011 and W.P.No.21429 of 2010 vacating the interim orders earlier granted in them. The petitioner in the aforesaid two writ petitions is the appellant in both these appeals. The parties and the controversy in both the writ petitions are same and therefore these two writ appeals are disposed of by this common order. 3. The controversy in these matters pertains to superannuation age of religious staff including Archakas working in Hindu Temples. Earlier the Government of Andhra Pradesh framed Service Rules called A.P. Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000 (for short Service Rules) through G.O.Ms.No.888, Revenue (Endowments.I) Department, dated 8-12-2000 under Section 65(4) read with Section 153 of Andhra Pradesh Charitable and Hindu Religious Institutions Endowments Act, 1987 (for short Act). Rule 9 of the above Service Rules deals with the age of superannuation of the religious staff and servants. It says that the age of superannuation of every officer holder or servant shall be 58 years. These rules are admittedly statutory rules framed under the Act. 4. Previously the applicability and scope of Rule 9 of the above Service Rules came up for interpretation in a Division Bench decision of this court given in Principal Secretary to Government (Revenue/Endowments) Dept., A.P., Hyderabad Vs. Chadavada Koteswara Rao[1]. In the said decision this court categorically held that the superannuation age of 58 years prescribed by Rule 9 is applicable to all the employees including Archakas whether they were appointed prior or subsequent to the said Service Rules. This Division Bench decision is dated 16-10- 2001 and it is stated that it has become final. 5. Thereafter the Government of Andhra Pradesh issued Memo No.77160/Endts.I(2)/2000 dated 19-11-2001 giving certain instructions regarding the age of superannuation in respect of Ultharai services. That memo reads as follows. “In continuation of the orders issued in the G.O. first cited, the Commissioner, Endowments Department, A.P., Hyderabad is informed that, it has been decided to apply the age of superannuation in respect of Ultharai Services as 65 years in respect of the Religious Staff who were in service before issue of the orders issued in G.O.Ms.No.888, Revenue (Endts.I) Department dated 8-12-2000. The age of 58 years for the purpose of superannuation referred to in the G.O. first cited would therefore apply to those who entered into service after issue of the G.O. The Commissioner, Endowments Department, is therefore requested to issue necessary instructions/orders to all the concerned, urgently.” AJEYA KALLAM EX-OFFICIO SECRETARY TO GOVERNMENT To The Commissioner of Endowments, Andhra Pradesh, Hyderabad. The P.S. to M (Endowments) The P.S. to Spl. Secy. To C.M. The P.S. to Prl. Secy. (Rev.) Sf/Sc. //FORWARDED BY ORDER// Sd/- SECTION OFFICER //TRUE COPY// 6. It is therefore clear from the above Government memo that after the aforesaid Division Bench decision of this court the Government have taken a decision through the above memo to apply the retirement age of 65 years in respect of the religious staff including Archakas who were in service before the date of framing of above Service Rules i.e. prior to 8-12-2000. 7. It should be noted here itself that the aforesaid memo only contains the Governments decision and is in the nature of executive instructions to the Commissioner of Endowments Department, whereas the Service Rules are statutory rules framed under the Act and have statutory force. The petitioner is questioning the validity of this Government memo in W.P.No.2441 of 2011 on the ground that it is contrary to the said statutory rules and is therefore not enforceable and the retirement age at 58 as per Rule 9 has to be implemented for all as held by this court in the Division Bench decision (1 supra) whereas the contention of the opposite parties is it can be allowed to stand. The relief claimed in the other writ petition is connected to this relief. The cause of action pleaded in both these writ petitions is that the fourth respondent is being continued in service as Sthanacharya in the third respondent-Temple even though he crossed 58 years of age and if he is retired from service as per Rule 9 that would pave the way for the petitioner who is now an Upa Pradhana Archaka in the third respondent-Temple to the post of Sthanacharya. We are not concerned with the merits of this aspect and that has to be looked in the writ petitions. 8. Prima facie, in view of the above Division Bench decision (1 supra), we are of the opinion that the aforesaid Government memo dated 19-11-2001 as held by the learned single judge in the earlier interim order dated 14-2-2011 in W.P.No.2441 of 2011 has to be suspended pending disposal of the said W.P for the following reasons. It may be noted that Rule 9 of the Service Rules which prescribes superannuation age is a statutory rule having statutory force as it is part of the Service Rules framed under the Act. 9. In A.K.Bhatnagar Vs. Union of India[2], the Supreme Court had an occasion to give certain directions to Union of India and States as to how they should act when dealing with statutory rules and the following are the observations made by the court in the said case. “On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often Government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the Government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules. There shall be no order as to costs.” The above observations are in the nature of obiter dicta, but they are very relevant for the purpose of this case. The impugned Government memo, as will be presently seen, can prima facie be said to be one such mistake committed in transgression of the Service Rules. 10. It is now settled legal position that rules governing the service having statutory force are framed by the Governor under the Proviso to Article 309 of the Constitution or under a statute giving power to frame such rules. The above observations of the Supreme Court are equally applicable to statutory rules framed under a statute. The present Service Rules of the Endowments Department are framed under the Act and as G.O.Ms.No.888, dated 8-12-2000 would indicate they have been published after placing them before the Legislative Assembly as required under Section 153 of the Act and have become statutory rules. 11. It would also in this context be useful to note the Supreme Court decision given in I.N. Saksena Vs. The State of M.P[3]. In the said case the Government of Madhya Pradesh through a memorandum dated 28.02.1963 communicated its decision to raise retirement age of Government Servants to 58 years, subject to certain conditions, to all District Collectors, High Court and other departments and mentioned that the relevant rules would be suitably amended. In para 5 of the said memo it was mentioned that the Government reserved to itself to retire a Government servant on attaining the age of 55 years with three months notice without assigning any reason. However while amending the relevant rules i.e. Fundamental Rules applicable to that State, Government by notification substituted a new rule relating to the raising of retirement age to 58 years but it failed to provide in the said Rule to retire a Government servant compulsorily at 55. The said rule was framed under the proviso to Article 309 of the Constitution. 12. Basing on the above new rule a District Judge who was in the service of State of Madhya Pradesh was sought to be retired compulsorily on attaining the age of 55 years. The Supreme Court intervened and set aside that decision on the ground that since the provision for compulsory retirement found in the above Government memo was not incorporated in the statutory rules, the said action was bad. This decision shows that unless rules are enacted having statutory force, the Government cannot act on its memoranda. 13. The impugned Government memo is only in the nature of an executive instruction and it seeks to express only the opinion of the Government to apply the superannuation age of 58 years to those appointed subsequent to the date of the said rules i.e.08-12- 2000 whereas it seeks to apply the previous superannuation age of 65 years to those appointed prior to the said rules. This is clearly contrary to Rule 9 of the statutory rules and the Division Bench decision of this court (1 supra) and the Government cannot through a memorandum take such a decision which has the effect of amending the rules especially Rule 9 unless the rules are again amended in accordance with the procedure prescribed under the Act and Section 19 of the A.P. General Clauses Act which says that statutory rules can be amended only in the manner in which they are framed. It should be noted that the power conferred under a statute on the executive branch of the Government to make legislation i.e. delegated legislation by way of rules can be exercised in the prescribed manner to amend the delegated legislation i.e. Rules already made, in the like manner prescribed for making the rules but not otherwise. The circumstances in this case would prima facie that the said principle has been violated by the Government. 14. Hence in our opinion the petitioner/appellant can be said to have made out a case for interim suspension of the Government memo impugned in the writ petition No.2441 of 2011 pending disposal of the said writ petition. If that is suspended, the initial interim order granted in the other writ petition directing the endowment authorities to follow Rule 9 has also to be maintained. 15. It was then pointed out by the learned counsel for respondents that the main relief claimed in W.P.No.2411 of 2011 is for setting aside the impugned Government memo and therefore if the same is now suspended, that would amount to granting the main relief itself at the interlocutory stage and consequently that is not permissible. We are aware of this position. It may however be noted that when prima facie it is found that the impugned Government memo or action is found to be not in accordance with law, the above objection cannot be sustained. 16. It is brought to our notice by the learned counsel for respondents that the impugned memo is dated 19.11.2001 and it has been in force since then and there is a delay in challenging it and if the said memo is now suspended, there is every danger of a large number of Archakas being retired from service and no experienced Archakas well versed in the religious rituals may be available for performing Poojas in the Temples. It is true that there may be this danger because of the delay in filing the writ petitions, but the Government should have been careful and taken proper steps and acted in accordance with law; and the observations made by the Supreme Court in A.K.Bhatnagar’s case (2 supra) and the principle laid down in I.N.Saksena’s case (3 supra) aptly apply here. This court cannot be expected to intervene in the matter to save the Government from its predicament as it can take its own decision in the matter afresh in accordance with law. In view of this prima facie legal position the balance of convenience factor argued on behalf of respondents cannot also be considered. 17. Lastly it has been submitted by the counsel for respondents that Rule 47 (a saving clause) of the present Service Rules has been wrongly interpreted in the Division Bench judgment (1 supra) and therefore the matter may be referred to Full Bench also. We do not propose to go into this question as the matters are at interlocutory stage. 18. For the aforesaid reasons it follows that the common order dated 05.08.2011 passed in W.V.M.P.No.1585 of 2011 and W.V.M.P.No.2978 of 2011 in W.P.M.P.No.3036 of 2011 in W.P.No.2441 of 2011 and the common order dated 05.08.2011 passed in W.V.M.P.Nos.2577, 2576 and 2979 of 2011 in W.P.M.P.No.27255 of 2010 in W.P.No.21429 of 2010 vacating the earlier interim orders granted in both the writ petitions cannot be sustained and they are set aside. The writ appeals are accordingly allowed. No costs. _______________________ GODA RAGHURAM, J _______________________ N. RAVI SHANKAR, J 7th September, 2011 TJMR/CVRK [1]2002(1) ALD 537 [2] 1991(1) SLR 191 [3] A.I.R.1967 SC 1264