*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY +Writ Petition No.493 of 2010 %30.09.2010 #Sri K.Venkat Rao. ..Petitioner. Vs. $ The Sports Authority of Andhra Pradesh and another. ..Respondents. !Counsel for the petitioner : Sri B.G.Ravindra Reddy ^Counsel for the Respondents : Sri M.V.S.Prasad <Gist : >Head Note: ? Cases Referred: [1] 1990 (6) SLR 24 2 AIR 1992 SC 1100 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.493 of 2004 ORDER: The petitioner was appointed as a Coach in Gymnastics, by the A.P. Sports Council (for short ‘the Council”) on 08.10.1971. Thereafter, he was promoted as Assistant Director on 01.07.1982. Ever since then, he is said to be discharging duties on establishment side. The State of A.P. enacted A.P. Sports Authorities Act 1988, bringing into existence, the Sports Authority of A.P. (for short “the Authority”) in the place of this Council. Through a notification, issued in G.O.Ms.No.268 Education (NS) Department, dated 01.11.1987, the Council and the other units constituted under it, were abolished. By separate arrangement, the staff and assets of the Council were transferred to the Authority. The petitioner continued to work as the Deputy Director in the Authority also. Through an order, dated 23.11.2002, the Vice Chairman and Managing Director of the Authority, the 1st respondent herein, informed the petitioner that he would attain the age of superannuation of 58 years in April, 2003 and he would retire from service on 30.04.2003. Stating that he is entitled to remain in service till he attains the age of 60 years, in terms of Rule 25 of the A.P. Sports Authorities Rules, 1993 (for short ‘the Rules”), the petitioner filed W.P.No.4166 of 2003. On the basis of an interim order passed therein, he was continuing in service. During the pendency of the writ petition, the Government issued G.O.Ms.No.171, dated 12.12.2003 amending Rule 25 of the Rules, prescribing uniform age of 58 years for all the employees of the Authority. W.P.No.4166 of 2003 was allowed on 31.12.2003, setting aside the order dated 23.11.2002. On the same day, the 1st respondent issued order, dated 31.12.2003, directing retirement of the petitioner forthwith, on attaining the age of 58 years. The petitioner challenges G.O.Ms.No.171, dated 12.12.2003, and the consequential order, dated 31.12.2003. He contends that Rule 25 of the Rules, as it stood before amendment, protected the rights of the employees, who were absorbed from the Council and there is absolutely no justification for the 2nd respondent in amending the Rule, taking away such protection. The 1st respondent filed a counter-affidavit justifying its action. It is stated that the petitioner does not have any vested right and once the Rule is amended, the petitioner cannot continue in service beyond the age of 58 years. Sri B.G.Ravindra Reddy, learned counsel for the petitioner, submits that Rule 25 of the Rules, before it was amended, maintained a clear distinction between the persons that were employed before 01.11.1987 comprising of those, who were in service of the A.P. Sports Council, and those that are appointed subsequent to that date. He contends that there is a special protection given to the employees, who were made over to the Authority from the Council and such a right could not have been taken away, by amending the Rule. He further submits that the amendment is aimed at bringing about an end to the service of the petitioner, and it did not have any other specific purpose. Sri M.V.S.Prasad, learned counsel for the 1st respondent and learned Government Pleader for Education, on the other hand, submit that Section 23 of the Andhra Pradesh Sports Authorities Act, 1988 (for short ‘the Act’) empowers the 2nd respondent not only to frame the Rules, but also to amend them. They contend that it is within the competence and power of the 2nd respondent to stipulate the conditions of service, if necessary, by amending the Rules and once the rule is amended, there is no other option, except to retire the petitioner, who admittedly crossed 58 years. The Sports activity in the State of A.P. was being monitored and conducted by the Council. With a view to strengthen the organization, the State Legislature stepped in and the Act was brought into existence. As a result, the Authority was constituted. It became necessary to effect transition of the activities of the Council to the Authority, as in many such cases. Administrative orders were issued providing for transfer, not only of the assets of the Council, but also its employees to the Authority. It is not in dispute that the age of superannuation of the employees of the Council was 60 years. The Authority, however, intended to adopt a different Rule, and stipulated the age of 58 years for the persons, who are employed by it, after its formation. This, naturally needed the provision to protect the interests of the employees who stood transferred from the Council to the Authority. It is in this context that Rule 25 of the Rules made a special provision for the employees, who were appointed before 01.11.1987. It reads as under: “25.RETIREMENT:- (1) An employee shall retire from the Service of SAAP; (a) on the afternoon of the last day of the month in which he/she attains the age of 60 years (Sixty years) in the case of pre. 1- 11-1987 entrants of office establishment and 58 (Fifty eight) years of age in the case of post 1-11-1987 entrants. Provided that in the case of Coaches continuance beyond 55 years of age shall be on the basis of year to year review upto 58 years by the appointing authority and on his/her being declared physically fit by the Medical Authority as specific by the SAAP: Provided further that an employee in last grade service post shall retire from service on the afternoon of the last dayof the month in which he attains the age of 60 years: Provided also that in the case of person appointed on “Contract or on Honorarium basis as Adviser these Provisions abut retirement age will not apply.” (b) On his/her being declared medically unfit for service by a Medical board to be designated by the Appointing Authority, in this behalf. (2) Not withstanding anything contained in clause (1) above the Appointing Authority, if it is for opinion that it is in the interest of SAAP so to do, shall have the absolute right to retire any employee by giving him/her notice of not less than three month’s pay and allowances in lieu of such notice after he/she has attained the age of 55 years. (3) An employee may, by giving notice in writing or not less than three month’s retire from service after he/she attains the age of 55 years or on completion of 20 years of service. In the latter case the employee will have to seek prior approval of the Appointing Authority.” The only significance for the date 01.11.1987, is that, it is on that day that the Council stood abolished and the Authority came into existence. Except this, there is no other relevance of that date. It is therefore, evident that the Rule making authority i.e., the 2nd respondent, and thereby, the 1st respondent, have undertaken steps to protect the interests as well as service conditions of the employees, who have come from the Council. Ever since then, the employees, who came from the Council were extended the benefit and quite large number of persons retired on attaining the age of 60 years. The petitioner was sought to be retired on attaining the age of 58 years, on the strength of G.O.Ms.No.76, dated 17.04.2000. In W.P.No.4166 of 2003 filed by the petitioner challenging the order dated 23.11.2002, it was observed that the said G.O., is not enforceable, since it was not published. Obviously to cure this defect, the 1st respondent issued the impugned G.O., which was issued on 12.12.2003 and published on 31.12.2003. It does not suffer from the vice or defect of non-publication. However, it is challenged on other grounds. It is not uncommon that whenever amalgamation of two organizations take place or one organization succeeds to the another, the conditions of the employees in service, before such transition takes place, are protected by making special provisions. Such provisions give rise to vested rights in their favour. Though an employer is competent to alter certain conditions of its employees, those of the category, referred to above, which are intended to protect the vested rights, cannot be meddled with. I n S.P.Dubey v. M.P.S.R.T. Corporation[1], the Supreme Court held that such vested rights cannot be taken away. The principle laid down in that case squarely applies to the facts of the case. Reliance is placed by the respondents upon the judgment of the Supreme Court in The Chairman, Canara Bank, Bangalore v. M.S.Jasra[2]. That was a case where amalgamation took place and the employees of one organization insisted that their rights must be protected. The competent authority did not make any special provision for protecting the rights of the employees of erstwhile organization, or one of the amalgamated units. It was held that the employees of one organization cannot insist that there must be a separate set of rules for them, and once amalgamation takes place, at the most, they can seek parity of treatment, with employees of the other organization. Such is not the case here. The rights of employees of Council were specifically recognized and protected by making special provision in Rule 25 of the Rules. Therefore, the impugned G.O., cannot be sustained in law, and it is accordingly, set aside. The petitioner no doubt attained the age of superannuation during the pendency of the writ petition. However, this Court while vacating the interim order, passed in his favour, specifically observed that if he is successful in the writ petition, he would be entitled to the consequential benefits. Hence, the Writ Petition is allowed and the impugned order is set aside. It is directed that the 1st respondent shall be under obligation to extend the pay and other allowances applicable to the post of Deputy Director held by the petitioner till he attained the age of 60 years from the date of his retirement. It is directed that the 1st respondent shall extend all the benefits to the petitioner by treating that he had retired from service on attaining the age of 60 years; within two months from the date of receipt of a copy of this order. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.30.09.2010. L.R.Copy to be marked. GJ [1] 1990 (6) SLR 24 [2] AIR 1992 SC 1100