Anil Kumar Chaturvedi vs State Of U.P. And 2 Others
2022 Latest Caselaw 10226 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - A No. - 23400 of 2018
 

 
Petitioner :- Anil Kumar Chaturvedi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Surendra Kumar Tripathi,Lokesh Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.,M.N. Singh,Vivek Verma,Vivek Rai
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioner, learned State Counsel for respondent No.1 and Mr. Vivek Rai learned counsel for respondents 2 and 3.

Learned counsel for petitioner is granted liberty to incorporate challenge to order dated 31st October, 2018 passed by Registrar of the University approving the resolution of executive council dated 22nd October, 2018.

Petition has been filed seeking quashing of decision taken by the executive council of Dr. B.R. Ambedkar University, Agra for superannuating petitioner on completion of 60 years of age. Further direction to the respondents to permit him to continue in service till achieving the age of 62 years on the post of Lecturer and for providing all consequential benefits has also been sought.

Learned counsel for petitioner submits that petitioner was initially appointed on the post of Inspector (Coach) in sports department of the university vide appointment letter dated 17th May, 1989. It has been further submitted that his services were subsequently regularized on the said post vide order dated 8th April, 1993 and he was continued in service as such. Learned counsel has drawn attention to the government order dated 30th August, 1989 providing that persons appointed on the post of Sport Officers in universities in the State would be granted appointment as Lecturers henceforth in the subject of physical education. It is submitted that aforesaid government order made no mention regarding persons appointed as Physical Instructors/Coaches prior to the aforesaid date. Due to such an anomaly, it is submitted that subsequently another government order dated 19th August, 1993 was issued specifically providing that persons appointed in the State universities prior to 30th August, 1989 would be granted the nomenclature and pay scale of Lecturers in the subject of physical education. The said government order also provided for relaxation in educational qualifications required for holding the post of Lecturer in the subject of physical education. It is submitted that subsequently vide another order dated 30th November, 2002 the Joint Secretary to the State Government reiterated the aforesaid aspect particularly with regard to relaxation in educational qualification.

Learned counsel has also drawn attention to the letter dated 22nd November, 2013 issued by the Joint Secretary to State Government directing authorities of the university to provide nomenclature and pay scale of Lecturer to the petitioner and in pursuance thereof letter dated 8th September, 2014 was issued whereby aforesaid benefits were granted to petitioner by Registrar of the University.

Learned counsel has also drawn attention to the government order dated 4th February, 2004 whereby age of superannuation of teaching staff of the State Universities has been enhanced from 60 years to 62 years while those of non teaching staff of universities has been enhanced from 58 years to 60 years. It is submitted that petitioner would be covered by the definition of 'teacher' as defined under Section 2(19) of the U.P. State Universities Act, 1973 as well as first Statute of the University whereby petitioner would come within definition of 'teacher' and therefore would be entitled to superannuate at the age of 62 years as with teaching staff instead of 60 years as has been done by the respondent university.

Learned counsel has placed reliance upon judgment rendered by Supreme Court in the case of P.S. Ramamohana Rao versus A,P. Agricultural University and others reported in A.I.R. 1997 Supreme Court 3433.

Learned counsel appearing for the respondent university has refuted submissions advanced by learned counsel for petitioner with the submission that petitioner was appointed on the post of Instructor/Coach in physical education department of the university by orders of Registrar who is not the appointing authority as per first statute of the University. It is submitted that by means of government order dated 30th August, 1989, although nomenclature of persons appointed on the post of Instructor/Coach in the physical education department was changed to that of Lecturer but such persons were required compulsorily to have the essential qualifications required to hold the post. It is submitted that petitioner did not have the requisite qualifications for the post of Lecturer in the subject of Physical Education in the university concerned and as such he could not be treated as a member of teaching staff in the university. It is submitted that as a consequence thereof, petitioner was treated to be as a member of the non teaching staff and was rightly superannuated at the age of 60 years. Learned counsel has also drawn attention to Chapter XI-A of the Act of 1973 to submit that petitioner does not come within the definition of 'teacher' as indicated in the said chapter.

Learned counsel has also drawn attention to the judgment and order dated 6th January, 2011 passed in Writ A No. 328 of 2011 filed by the petitioner earlier challenging the constitution of committee to enquire into claim of petitioner by which his pay and promotion as Lecturer had been stayed. It is submitted that division bench in the aforesaid petition came to the conclusion that petitioner did not disclose his qualifications or even the relaxed qualification possessed by him and method by which he was appointed to claim any right to the post of Lecturer. It is submitted that the aforesaid petition was dismissed due to which petitioner can not claim his rights as Lecturer in the University.

Upon consideration of submissions advanced by learned counsel for parties, the only question requiring adjudication in present writ petition pertains to whether petitioner can be termed to be a member of the teaching staff particularly on the post of Lecturer in the subject of Physical Education in the university concerned so as to enable him to superannuate at the age of 62 years or whether he was required to continue to be treated as a member of non teaching staff of the university concerned and therefore was rightly superannuated at the age of 60 years.

With regard to aforesaid aspect, it is relevant to notice the fact that petitioner has admittedly continued in service since 17th May, 1989 till the date of superannuation on 31st October, 2018 without any break in service. It is also admitted that by means of order dated 8th September, 2014, the university itself has granted the benefits of nomenclature of Lecturer along with pay scale of post to the petitioner. The said order was never rescinded, varied or modified in any manner. In view of such a long service rendered by petitioner with the respondent university, the insinuation that petitioner was not appointed in accordance with first statute of the university can not be said to be a good ground particularly in view of acquiescence by the university to services rendered by petitioner for such a long period. The university as such is also barred by the principle of estoppel from challenging the initial appointment of petitioner, after 29 years.

By means of government order dated 30th August, 1989, it was provided that persons henceforth appointed for the post of Instructor/Coach in physical education department of the university would be termed as Lecturers with the same pay scale. The said government order also provided for revised educational qualifications to hold the said post. It is evident that the aforesaid government order was prospective in nature without any retrospectivity being attached thereto and as such was inapplicable upon petitioner. However in view of dichotomy between persons appointed prior to 30th August, 1989 and those appointed subsequent thereto, State Government itself vide order dated 19th August, 1993 indicated relaxation in the educational qualifications of all such persons who were appointed on the post prior to 30th August, 1989. The said order also provided the nomenclature and pay scale of Lecturers to all such persons appointed prior to 30th August, 1989. The aforesaid conditions were thereafter reiterated by State Government in its earlier order dated 30th November, 2002. Clearly petitioner would be governed by the aforesaid government orders since his date of appointment is prior to 30th August 1989. It is also a relevant fact that State Government also vide order dated 22nd November, 2013 directed the respondent university to provide benefits of nomenclature and pay scale of Lecturer to the petitioner and in pursuance of which, same were paid to the petitioner by university vide order dated 8th September, 2014 which continued till date of petitioner's superannuation.

The question as to whether petitioner can be considered to be a member of the teaching staff of the university or not is required to be discerned from the definition of the term 'teacher' as defined under the Act of 1973. A perusal of the aforesaid Act makes it evident that there are two definitions of the term 'teacher' given in the Act. One definition is found in Section 2(19) of the Act whereas the other definition is found in Chapter XI-A of the Act relating to Section 60-A. The comparison of the two will clearly indicate a difference since Chapter XI-A pertains to payment of salary to teachers and other employees of degree colleges. Section 60-A (vi) pertains to definition of 'teacher' for the purposes of payment of salary whereas Section 2(19) provides function of teacher in relation to provisions of the Act and reads as follows:-

"2(19) 'teacher' in relation to the provisions of this Act except Chapter XI-A, means a person employed in a University or in an institute or in a constituent or affiliated or associated college of a University for imparting instructions or guiding or conducting research in any subject or course approved by that University and includes a Principal or Director;]"

A pari materia provision in the Andhra Pradesh Agricultural University Act, 1963 has been considered by Supreme Court in the case of P.S. Ramamohana Rao (supra) where the definition of 'teacher' under Section 2(n) was as follows:-

"teacher" includes a professor, reader, lecturer or other person appointed or recognised by the University for the purpose of imparting instruction or conducting and guiding research or extension programmes, and any person declared by the statute to be a teacher"

Hon'ble the Supreme Court in the aforesaid matter dwelt upon the duties of a Physical Director and has come to the conclusion that it is the inherent duty of a physical Director to impart various skills and techniques of games and sports which come within the term of teaching them skills and techniques. It has also been held that teaching of skills and various games as well as the rules and practices clearly bring a physical Director within the main part of definition as a teacher. Relevant paragraphs of the judgment are as follows:-

"10. From the aforesaid affidavit, it is clear that a Physical Director has multifarious duties. He not only arranges game and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanies the students team when they go for the inter-University tournaments. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. It is well known that different games and sports have different rules and practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper manner. Further, in our view, it is inherent in the duties of a Physical Director that he imparts to the students various skills and techniques of these games and sports. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these games.

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18. In our view, the learned Judges did not go into the meaning of the word "teacher" in the main part of the clause nor assess correctly the effect of the material evidence on record. The learned Judges observed that assuming Physical Directors imparted instructions to his students, unless the University recognised them as teachers they could not claim the benefit of section 2(n) of the Act. Obviously the learned Judges were referring to the last part of section 2(n) which includes persons other than those enumerated in the inclusive part if so recognised by the University. As we have held that the Physical Directors come within the main part of the definition of `teacher', it is in our opinion not necessary that they should be separately recognised as teachers by an order or statute of the University.

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20. We are unable to agree. It may be that the Physical Director gives his guidance or teaching to the students only in the evenings after the regular classes are over. It may also be that the University has not prescribed in writing any theoretical and practical classes for the students so far as physical education is concerned. But as pointed by us earlier, among various duties of the Physical Director, expressly or otherwise, are included the duty to teach the skills of various games as well as their rules and practices. The said duties bring him clearly within the main part of the definition as a `teacher'. We therefore, do not accept the contention raised in the additional counter affidavit of the University."

The aforesaid aspect has also been dealt with by division bench of this Court in the case of S.A. Naqvi versus State of U.P. and others, writ petition (S/B) No. 104 of 2001.

Considering the definition of the word 'teacher' as given under the separate provisions of the Act of 1973, it is evident that the definition given under Chapter XI-A is only for the purposes of payment of salary whereas the definition given under Section 2(19) of the Act would govern the entire service conditions of a person employed as an Instructor/Coach in the subject of Physical Education in the university. In the considered opinion of this Court, the aspect of age of superannuation of a person employed by the university is relatable to the service conditions and not for the purposes of payment of salary. As such the definition given under Section 2(19) of the Act of 1973 would govern the petitioner instead of the definition given under Chapter XI-A of the Act of 1973. Having come to the said conclusion, the definition as decided upon by the Supreme Court in the case of P.S. Ramamohana Rao (supra) would definitely have applicability in the present facts and circumstances of the case.

To that effect, this court is in respectful agreement with and bound by the judgment rendered by Hon'ble Supreme Court in the case of P.S. Ramamohana Rao (supra) whereby looking into the aspects of duties and functions of an Instructure/Coach in the university, such as the petitioner, he would definitely come within the definition of 'teacher' as defined under Section 2(19) of the Act, 1973.

The said aspect is also clearly discernible from the orders passed by the government on 19th August, 1993 and 30th November, 2002 passed as a consequence to the government order dated 30th August, 1989 so as not to keep persons employed as Instructors prior to the advent of the government order dated 30th August, 1989 in limbo. The said orders were issued by the State Government itself so as to provide continuity in service and conditions of service to persons employed as Instructors/Coach in the State universities prior to 30th August, 1989.

The submission of learned counsel for respondent university that petitioner's case would be covered by the division bench judgment rendered in earlier petition filed by petitioner in Writ A No. 328 of 2011 is to be seen in the context that the petition ultimately was dismissed as not maintainable since only a committee had been appointed to look into claim of petitioner. A passing reference has been made by the division bench pertaining to non disclosure of his qualifications or the relaxed qualification but in the considered opinion of this Court, the aforesaid factor was not the main dispute before the division bench and as such the dismissal of the said petition would have no bearing in the present facts and circumstances particularly when the university itself by means of order dated 8th September, 2014 has subsequently granted not only the nomenclature but even the pay scale of Lecturer to petitioner.

Once this Court finds that petitioner was entitled and covered under the definition of 'teacher' as per Act of 1973, the applicability of the government order dated 4th February, 2004 would be of consequence which clearly prescribes the date of superannuation to teaching staff of the State Universities as 62 years after enhancement from 60 years. The aforesaid government order is clearly applicable in the present case and it is admitted case of parties that teaching staff of the university even as per first statutes of university are required to superannuate at the age of 62 years and not 60 years.

In view of aforesaid, it is clear that the petitioner was entitled to be considered as part of the teaching staff of the university and was therefore entitled to superannuate at the age of 62 years instead of 60 years.

The impugned order dated 31st October, 2018 as well as the resolution of executive government dated 22nd October, 2018 as such being against the provisions of the Act of 1973 and the decision of Hon'ble Supreme Court is therefore quashed by issuance of writ in the nature of Certiorari. A further writ in the nature of Mandamus is issued commanding the respondents 2 and 3 to treat petitioner as having superannuated at the age of 62 years instead of 60 years and to grant consequential benefits thereof although payment of salary shall be only on notional basis.Recalculation of financial benefits to petitioner and payment thereof shall be made within a period of four months from the date a copy of this order is produced before the concerned authority. The petition as such succeeds and is allowed with the aforesaid directions. Parties to bear their own costs.

Order Date :- 16.8.2022

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