TUESDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL NO : 997 of 2002 and WRIT APPEAL NO : 1022 of 2002 WRIT APPEAL NO : 997 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 26/12/2001 in WP NO : 26830 OF 1998 on the file of the High Court.) Between: 1 Prl.Secretary to Government Govt. of A.P., I & CD, IB Department Secretariat, Hyderabad 2 Superintending Engineer, I&CD, IB Irrigation, Red Hills, Hyderabad 3 Executive Engineer, I & CD, MI Division Nagar Kurnool, Mahabubnagar District ..... APPELLANT(S) AND B.Kistaiah S/o.B.Budanna R/o.Chikkayapally Village Kollapur Mandal Mahabubnagar District .....RESPONDENT Counsel for the Appellant:ADVOCATE GENERAL Counsel for the Respondent No.: MR.SOORAMPRABHAKAR REDDY WRIT APPEAL NO : 1022 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 26/12/2001 in WP NO : 17799 OF 1997 on the file of the High Court.) Between: 1 The Prl.Secretary to Government I & CAD Department Secretariat, Hyderabad 2 The Superintending Engineer I&PD Circle, Red Hills, Hyderabad 3 Executive Engineer, I & CAD MI Division, Nagar Kurnool ..... APPELLANT(S) AND B.Kistaiah S/o.B.Budanna R/o.Chikkayapally Village Kollapur Mandal, Mahabubnagar District .....RESPONDENT Counsel for the Appellant:ADVOCATE GENERAL Counsel for the Respondent No.: MR.S.PRABHAKAR The Court made the following : COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) These two writ appeals are interconnected and the parties to both the writ appeals are common. Hence, they are heard together and are being disposed of by this common judgment. These two appeals are directed against the orders of the learned Single Judge dated 26.12.2001 passed in W.P.M.P. No.18219 of 1998 in Review W.P.M.P.(sr).No.19594 of 1998 in W.P.No.17799 of 1997 in dismissing the WPMP ﬁled by the Government for condoning the delay of 96 days in ﬁling the review petition to review the judgment passed in W.P.No.17799 of 1997; and in allowing W.P.No.26830 of 1998, dated 26.12.2001. The facts which gave rise to ﬁling of these appeals are as under: The respondent herein-writ petitioner was designated as Work Inspector Grade-IV on 19.3.1974 and later he was designated as Work Inspector Grade-III. Subsequently, on completion of 10 years of service, his services were provincialised as per G.O.Ms.No.130, dated 18.3.1981. He ﬁled Writ Petition No.17799 of 1997 when he was directed to retire from service on attaining the age of 58 years vide Memo.No.A1/WC/Estt/96- 97/1756, dated 21.2.1997. According to him, he had discharged the semi-skilled and skilled work as per the requirement and this falls within the definition of workmen under Section 3 of the A.P. Public Employment (Regulation of Age of Superannuation) Act, 1984 (A.P. Act No.23/84) and therefore, he is entitled to be in service till he attains the age of 60 years. The post of Work Inspector belongs to the category of worker “Maistry skilled Class-IV” and in view of the judgment of a Division Bench of This Court in W.A.No.830 of 1988 and batch, dated 24.11. 1988, he cannot be retired from service at 58 years and he is entitled to continue in such service till he attains the age of 60 years. Heard Sri Satya Prasad, learned Special Government Pleader, for the appellants. None appeared for the respondent- writ petitioner. Learned Single Judge of this Court, by order dated 01.10.1997 allowed W.P.No.17799 of 1997 with the following observations: “The facts of this case are substantially similar to the one covered by the decision of this Court delivered in Writ Appeal Nos.830 to 860/85 and the batch dt.24.11.1998. Following the said decision, the writ petition is allowed and a writ of mandamus shall issue to the respondents to continue the services of the petitioner till he attains the age of sixty years.” On allowing the said writ petition, a review petition being Review W.P.M.P.(Sr).No.19594 of 1998 was ﬁled by the Government with an application in W.P.M.P.No.18219 of 1998 to condone the delay of 96 days in filing the review petition. Meanwhile, the writ petitioner was retired from service on attaining the age of superannuation at 58 years and he was not allowed to continue in service till he attained the age of 60 years. Therefore, in view of allowing W.P.No.17799 of 1997, the writ petitioner, ﬁled a contempt case in C.C.No.436 of 1998. On admission of contempt case and issuance of notice, the writ petitioner was reinstated into service on 29.7.1998 as Work Inspector Grade-III and continued to serve till he attained the age of 60 years. Claiming beneﬁts of salary for the period from 1.7.1997 to the date of reinstatement i.e. 28.7.1998, the writ petitioner ﬁled W.P.No.26830 of 1998. In the said writ petition, the Department ﬁled a counter aﬃdavit stating that a review petition had been ﬁled to review the order dated 1.10.1997 in W.P.No.17799 of 1997 along with an application to condone the delay in ﬁling the review petition. It was stated that the writ petitioner himself opted to come over to Government service in terms of G.O.Ms.No.130 I&PD. Department, dated 18.3.1981 knowing fully well that the age of superannuation would be 58 years as per Revised Pension Rules of 1980. The writ petitioner belongs to superior service and even otherwise as per para 5 of G.O.Ms.No.62, I&CAD. Ser.V. Department, dated 21.5.1996, the Work Inspectors of Grade-I to V, whose duties are supervisor in nature, have to retire at the age of 58 years. As per the Act No.19/97 published in A.P. Gazette No.32, dated 10.8.1997, an employee in workcharged establishment of Government, who becomes a regular Government employee by whatever means of orders issued by the Government from time to time, shall not be treated as workmen for the purpose of this Act and shall be regarded as holder of Civil post within the meaning of Article 311 of Constitution of India and accordingly, he shall retire from service on attaining the age of 58 years as a Government servant and therefore, the writ petitioner has no right to claim the services up to the age of 60 years. Unfortunately, none represented when the condone delay application in W.P.M.P.No.18219 of 1998 was taken up for hearing which was ﬁled to review the judgment dated 1.10.1997 passed in W.P.No.17799 of 1997 and the same was dismissed by the impugned order. Consequently, W.P.No.26830 of 1998 ﬁled by the writ petitioner was allowed by order dated 26.12.2001, which is impugned in W.A.No.997 of 2002. We have gone through the judgment of this Court in W.A.No.830 of 1985 and batch, dated 24.11.1988, following which, the relief claimed by the writ petitioner in W.P.No.17799 of 1997 was granted, directing the appellants herein to continue the writ petitioner in service till he attains the age of 60 years. In the judgment dated 24.11.1988 passed in W.A.No.830 of 1985 and batch, this Court after referring to the judgment of the Apex Court in V.N. Shastry v. State of A.P. (AIR 1987 SC 3200) found that all the respondents in that appeal are skilled artisans and they had been working in industrial workcharged establishments and therefore, they deﬁnitely come within the meaning of ‘workmen’ and the mere option for pensionary scheme will not alter the nature of the work done by them and they will not come within the purview of the Government employees not being workmen and accordingly dismissed the appeals conﬁrming the order passed by the learned single judge. But, the said judgment in W.A.No.830 of 1985 and batch, dated 24.11.1988 does not apply to the case of the writ petitioner. Admittedly, by virtue of Act No.19/97 published in A.P. Gazette No.32, dated 10.8.1997, Section 3 of the A.P. Public Employment (Regulation of Age of Superannuation) Act, 1984 (A.P. Act No.23/84) has been amended by adding sub- section, which reads: “(4) Notwithstanding anything contained in this section, an employee in the workcharged establishment of the Government, who becomes a regular Government employee by whatever means or orders issued by Government from time to time shall not be treated as workman for purposes of this Act and shall be regarded as holder of a Civil Post within the meaning of Article 311 of the Constitution of India and accordingly, he shall retire from service (a) on attaining the age of ﬁfty eight years in case, on becoming as a regular Government employee, he belongs to superior service; and (b) on attaining the age of sixty years in case, on becoming as a regular Government employee, he belongs to last grade services or in any service notified as inferior for the purpose of this sub-section”. That apart, in G.O.Ms.No.62, Irrigation and C.A.D. (S.R.V) Department, dated 21.5.1996 the Government ordered that ‘all the provincialised workcharged employees under superior service (barring the ﬁve categories, which are supervisory in nature i.e., Work Inspectors Grade-I to Grade V, Assistant Fore man and Fore man, Line Inspector, Lab Assistant and Care Takers in Rest House) be continued in service up to their attaining the age of 60 years with pensionary beneﬁts accordingly’. From the above, it is crystal clear that except Work Inspectors Grade-I to V, all other provincialised workcharged employees under superior service alone can be continued in service up to their attaining the age of 60 years. Therefore, the writ petitioner, who admittedly worked as a Work Inspector Grade-III, cannot be continued in service up to the age of 60 years and he had to retire from service on attaining the age of 58 years. Furthermore, when it is a civil post, the Andhra Pradesh Administrative Tribunal alone will have jurisdiction, at the first instance, to entertain the dispute. For the foregoing reasons, we allow both the writ appeals setting aside the impugned order passed by the learned single judge in W.P.No.17799 of 1997, dated 26.12.2001. Consequently, both the writ petitions filed by the writ petitioner i.e. W.P.No.17799 of 1997 and 26830 of 1998 are dismissed. There shall be no order as to costs. ________________ A. GOPAL REDDY, J. ______________________ 23rd SEPTEMBER, 2008 VILAS V. AFZULPURKAR, J. Tsr. Copy to: 1 The Principal Secretary to Government Govt. of A.P., I & CD, IB Department Secretariat, Hyderabad 2. The Superintending Engineer, I&CD, IB Irrigation, Red Hills, Hyderabad 3. The Executive Engineer, I & CD, MI Division Nagar Kurnool, Mahabubnagar District. 4. Two C.Cs. to Advocate General, High Court Buildings, (OUT) 5. Two C.D. copies.