Madhya Pradesh High Court
Dr. Prakash Kumar Dubey vs Rani Durgawati University on 25 April, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 25th OF APRIL, 2022
WRIT PETITION No. 3743 of 2022
Between:-
DR. PRAKASH KUMAR DUBEY S/O LATE M.L.
DUBEY, AGED ABOUT 61 YEARS, OCCUPATION:
NIL R/O 1132/3 PACHPEDI SOUTH CIVIL LINES
JABALPUR (MADHYA PRADESH)
.....PETITIONER
SHRI VIBUDHENDRA MISHRA, LEARNED COUNSEL FOR THE
PETITIONER
AND
RANI DURGAWATI UNIVERSITY THROUGH ITS
REGISTRAR SARASWATI VIHAR PACHPEDI
JABALPUR M.P. (MADHYA PRADESH)
.....RESPONDENTS
SHRI ANVESH SHRIVASTAVA, LEARNED COUNSEL FOR
RESPONDENT/UNIVERSITY
This writ petition is taken up for hearing and the Court has passed the
following:
ORDER
Petitioner has filed this writ petition claiming that he by virtue of his
appointment as Scientific Officer is entitled to continue upto the age of 65 years,
which is the age of superannuation prescribed for teaching faculty of the university.
Petitioner's contention is that he was appointed as Senior Technical
Assistant in the Department of Physics for Diploma Course in Electronic and
Instrumentation under the Scheme of University Grant Commission vide order
dated 10.7.1984 in the pay scale of Rs.550-25-750-EB-30-900 and other admissible
allowances. Thereafter, the petitioner was considered for promotion to the post of
Scientific Officer for which the Screening Committee was constituted by the Vice
Chancellor which met on 5.11.1992 and three of the members of the Screening
Committee observed that they examined the application of the petitioner and
considered the application according to the rules framed by the Committee
Signature
SAN Not
Verified
appointed by the Executive Council of the University. The Committee found that
Digitally signed by
AMIT JAIN
Date: 2022.04.28
the petitioner was possessing all the qualifications and experience necessary for the
17:53:52 IST
promotion to the post of Scientific Officer and, therefore, the Committee
recommended the name of the petitioner for promotion as Scientific Officer. The
Committee further observed that no post of Senior Technical Assistant will be
vacant as it is upgraded for Dr.Dubey.
In pursuance of the said recommendation, the petitioner was given
appointment as Scientific Officer vide order Annexure R/4 dated 8.2.1993
enclosed by the respondent alongwith its return. Since the petitioner is discharging
the work of Scientific Officer, therefore, in terms of the provisions as contained in
IX Plan Guidelines For University Science Instrumentation Centres (for short
'USICs') issued by the University Grant Commission, New Delhi in 1998
(Annexure P/5), it is provided that the age of retirement of the certain technical
staff under University Science Instrumentation Centres (USICs) and their status
will be the same as for the teachers of the university. The technical staff and their
status is prescribed in Clause (b) which speaks that the technical staff of the
USICs will consist of technical officers and technicians in the grades as specified
in these guidelines. The technical officers will have the status of non-vacation
academic staff and technicians will be non-teaching staff of the University. Since
the petitioner is a technical officer, therefore, his status will be that of academic
staff and on this ground also, the petitioner is entitled to continue upto the age of
65 years, which is the age of superannuation for the teaching staff.
Shri Vibudhendra Mishra, learned counsel for the petitioner places reliance
on Clause 8 of IX Plan Guidelines For USICs dealing with technical officers reads
thus:-
Technical Officers
The Technical Officers of the USIC shall be entitled to the
same benefits including Provident Fund, Gratuity, Pension,
Medical Benefits, Leave Travel Concession, Age of
Superannuation, Superannuation Benefits, Facility To Attend
Conferences etc and Periodic Revision of Pay Scales made
available to the teaching staff of the university. Their pay scales
shall be as follows:-
Designation Revised Pay Scales
1.Prof/Technical Officer (III) 4500-150-5700-200-7300
2.Reader/Technical Officer (II) 3700-125-4950-150-5700
3.Lecturer/Technical Officer (I) 3700-125-4950-150-5700
(Senior Scale)
4.Lecturer/Technical/Officer (I) 3000-100-3500-125-5000
(Senior Scale)
5.Lecturer/Technical/Officer (I) 2200-75-2800-100-4000
Reading the aforesaid clause, it is submitted by learned counsel for the
petitioner that the petitioner is to be treated as a teaching staff and, therefore, the
impugned order dated 10.11.2021 directing the petitioner to superannuate on
31.3.2022 on attaining the age of 62 years is liable to be quashed.
Shri Anvesh Shrivastava, learned counsel for the respondent/University in
his turn submits that the petitioner is not a teaching faculty. In Statue 31, there is no
provision for appointment of teaching faculty. The petitioner is infact a non-
teaching class-III post holder and this aspect has been dealt with by a Coordinate
Bench of this Court in Writ Petition No.1348/2013 (Dr.Rameshwar Rawat
versus Chancellor, Rani Durgawati Vishwavidyalaya & Others) decided on
30.10.2015. The aforesaid order rejecting the claim of a similarly situated person,
who was appointed as Senior Technical Assistant in Chemistry Department, has
been affirmed by the Division Bench of this Court in Writ Appeal No.03/2016 vide
order dated 2.12.2019. Being dissatisfied with the aforesaid order, the petitioner
therein had preferred Petition(s) For Special Leave To Appeal (C) No(s).
6365/2020, which was dismissed by Three Judges Bench of the Supreme Court
vide order dated 9.6.2020. It is submitted that this order has now attained finality
and it is now settled principle of law that the Senior Technical Assistant or the
Scientific Officer being a holder of Class-III post is not entitled to claim benefits,
which are meant for teaching faculty of the University.
Shri Vibudhendra Mishra, learned counsel for the petitioner places reliance
on the Full Bench Decision of the Patna High Court in Kamlakant Roy & Others
& Upendra Nath Mishra & Others versus State of Bihar & Others (1984)
32 BLJR 495 (IndiaLawLib/900286) to contend that the aforesaid issue was
dealt with by the Full Bench of the Patna High Court wherein the Patna High Court
has taken into consideration the definition of Teacher, which is also provided in
Section 4(XX) of the Madhya Pradesh Vishwavidyalaya, Adhiniyam, 1973. It is
also submitted that the Teacher means a person as may be appointed for imparting
instruction or conducting research with the approval of the academic Council of
University or any College or Institution maintained or recognized by the University.
It is submitted by learned counsel for the petitioner that the analogous
provision was dealt with by the Full Bench of Patna High Court in Kamlakant
Roy & Others & Upendra Nath Mishra & Others versus State of Bihar &
Others (supra) wherein as per Clause 25 of the Statute framed under the Indian
Council of Agricultural Research, University Grant Commission and the
Agricultural Universities' Pride of Place, the 'teacher' is defined to mean a person
appointed or recognized by the University for the purpose of imparting instruction
or conducting and guiding research or extension education and includes a person,
who may be declared by the Statute to be a Teacher. He submits that the learned
Single Judge of this Court in Writ Petition No.1348/2013 (Dr.Rameshwar
Rawat versus Chancellor, Rani Durgawati Vishwavidyalaya & Others)
decided on 30.10.2015 has not taken into consideration the definition of Teacher
and, therefore, that judgment is per incuriam.
At this stage, Shri Vibudhendra Mishra, learned counsel for the petitioner
takes out a judgment of the Supreme Court in Maharashtra University Of
Health Sciences & Others versus Satchikitsa Prasarak Mandal & Others
(2010) 3 SCC 786 from his pocket and submits that this judgment was lost in the
bunch of the papers and, therefore, he could not produce it while putting forth his
submission alongwith the judgment of the Patna High Court.
During the course of the hearing, this Court asked Shri Vibudhendra Mishra
to point out from record that where is the provision in the Statute providing for
promotion of the Senior Technical Assistant to the post of Scientific Officer? He
was also asked to place on record the rules which have been referred to in
Annexure P/2 by the Screening Committee appointed by the Vice Chancellor,
which met on 5.11.1992, according to which the Screening Committee found that
the petitioner was possessing all the qualifications and experiences necessary for
promotion to the post of Scientific Officer. Shri Vibudhendra Mishra is also
requested to place on record that the post of Scientific Officer is a promotional
post in the Recruitment Rules of the University and the feeder cadre to fill such
post of Scientific Officer is that of the Senior Technical Assistant. Shri
Vibudhendra Mishra is also requested to show from record that he has placed lot
of emphasis on IXth Plan Guidelines For University Science Instrumentation
Centres but whether these guidelines were applicable retrospectively when case of
the petitioner was considered by the so called Screening Committee on 5.11.1992.
This Court is sad to observe that this Court has drawn a complete blank on
these aspects enumerated above. There is no material on record in the form of
rules providing for promotion of Senior Technical Assistant to the post of
Scientific Officer though Shri Anvesh Shrivastava, learned counsel for the
respondent/University submits that reading the judgment of the Coordinate Bench
of this Court in Writ Petition No.1348/2013 (Dr.Rameshwar Rawat versus
Chancellor, Rani Durgawati Vishwavidyalaya & Others) decided on
30.10.2015 would make it clear that it was not promotion but the nomenclature of
the post of Senior Technical Assistant was changed. Thus, it is apparent that there
is no material on record to show that the petitioner was entitled to any promotion
on the post of Scientific Officer. There is no material on record to show that the
petitioner was ever engaged and appointed for the purpose of University Science
Instrumentation Centres so as to take advantage of IX Plan Guidelines as contained
in Annexure P/5.
The petitioner has though placed reliance on an advertisement contained in
Annexure R/7 to show that Rani Durgawati Vishwavidyalaya, Jabalpur on
28.10.2005 had invited applications for the post of Technical Assistant
(Physics/USICs) in the Pay Scale of Rs.6500-10500 but is not in a position to
show that the aforesaid Scheme of USICs, which came in the year 1998, was
considered by the University in the year 1992 when the petitioner was appointed as
Scientific Officer.
The fact of the matter is that IX Plan Guidelines For University Science
Instrumentation Centres, 1998 (Annexure P/5) categorically provides that there will
be procedure for selection of technicians and it also provides in Clause 7(3) that all
selections must be made through proper trade test.
In the present case, the petitioner has not been able to place any material on
record to show that his selection was made through proper trade test so as to
place him in the same category of Technician as is envisaged in the scheme as
contained in Annexure P/5. The petitioner has also placed reliance on Clause 8(2)
dealing with Technical Staff but it is also of no avail to the petitioner inasmuch as it
provides for the pay scales and the corresponding allowances for the technical
staff appointed in the USICs and then it also provides that the Technical Officers
of the USICs shall be entitled to the same benefit including the Provident Fund,
Gratuity, Pension, Medical Benefits, Leave Travel Concession, Age of
Superannuation, Superannuation Benefits, Facility to attend Conferences etc and
the Periodic Revision of Pay Scales made available to the Teaching Staff of the
University but to take advantage of such scheme, the petitioner is required to
show that he was appointed as Technical Officer of USICs. In absence of any
material to show that the petitioner was a Technical Officer under USICs, the
reliance placed by learned counsel for the petitioner is wholly misplaced and
cannot be given the seal of approval.
As far as the Full Bench Judgment of the Patna High Court in Kamlakant
Roy & Others & Upendra Nath Mishra & Others versus State of Bihar &
Others (supra) is concerned, the definition of Teacher is slightly different than
what has been provided by the Madhya Pradesh Vishwavidyalaya Adhiniyam,
1973. At the cost of repetition, it would be appropriate to reproduce the definition
of 'Teacher' as provided under the Madhya Pradesh Vishwavidyalaya Adhiniyam,
1973 and that which is provided under Clause 25 of the relevant Statute, which was
under consideration before the Patna High Court.
"(25) 'Teacher' means a person appointed or recognized by
University for the purpose of imparting instruction or
conducting and guiding researching or extension education
and includes a person who may be declared by the Statutes
to be a teacher."
"
Section 4(XX) of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973
reads as under:-
"4(XX). 'Teachers of the University' means Professors,
Readers, Lecturers and such other persons as may be
appointed for imparting instructions or conducting
research, with the approval of the Academic Council in the
University or any College or Institution maintained or
recognised by the University."
Thus, on comparison of the two, it is evident that the Patna High Court in
Kamlakant Roy & Others & Upendra Nath Mishra & Others versus State
of Bihar & Others (supra) has taken a definition into consideration which
categorically provides that the Teacher means a person appointed or recognized by
University for the purpose of imparting instruction or conducting and guiding
research or extension education and includes a person, who may be declared by
the Statute to be a Teacher.
In the present case, the petitioner has not brought on record any material to
show that the post of Senior Technical Assistant or that of Scientific Officer has
been declared by the Statute to be a post of Teacher and, therefore, the judgment
of the Full Bench of Patna High Court in Kamlakant Roy & Others & Upendra
Nath Mishra & Others versus State of Bihar & Others (supra) on the face of
it will not be of any help to the petitioner inasmuch as the facts of that case are
different. In that case, the petitioners before the Patna High Court were included in
the definition of Teacher by the relevant Statute as has been discussed in the
impugned judgment. In the present case, since the post of Senior Technical
Assistant or Scientific Officer has not been included in the Statute to mean a
Teacher, no extension can be given to the definition just to accommodate the
petitioner without there being any material and dehors the Statute.
As far as the judgment of the Supreme Court in Maharashtra University
Of Health Sciences & Others versus Satchikitsa Prasarak Mandal &
Others (supra) is concerned, it is totally on a different footing. The facts of that
case were that one of the respondents was serving the College for about three and
half years when she was suddenly informed on 6.8.2005 that the College Authority
accepted her resignation. She was shocked as she had never resigned and had
several liabilities to take care of. She had no other source of income.
Section 53 of the Maharashtra University of Health Sciences Act, 1998
provides for a Committee to be known as Grievance Committee to deal with the
grievances of Teachers, the other employees of the University, Colleges,
Institutions and Recognized Institutions to hear and settle grievances as far as may
be practicable within six months but the stand of the appellant/University was that
the petitioner being not an Approved Teacher will not fall within the definition of
Teacher as defined in Section 2(35), which only deals with full time approved
Demonstrators, Tutors, Assistant Lecturers, Lecturers, Readers, Associate
Professors, Professors and other persons teaching or giving instruction on full time
basis in affiliated Colleges or Approved Institution in the University.
The Supreme Court while dealing with the aforesaid definition as provided in
Section 2(35) of the the Maharashtra University of Health Sciences Act, 1998 has
held that the petitioner, one was though not an approved teacher, will still be a
Teacher within the meaning of Section 2(35) of the Maharashtra University of
Health Sciences Act, 1998 so as to raise his/her grievance before the Grievance
Committee as provided under Section 53 of the Maharashtra University of Health
Sciences Act, 1998 applying the principle of "ejusdem genecis" but in the present
case, the facts are totally different. The ratio of judgment of Maharashtra
University Of Health Sciences & Others versus Satchikitsa Prasarak
Mandal & Others (supra) is not applicable to the facts and circumstances of the
present case. It is evident that Section 2(35) of the Maharashtra University of
Health Sciences Act, 1998 after providing for full time approved Demonstrators,
Tutors, Assistant Lecturers, Lecturers, Readers, Associate Professors, Professors
and other persons teaching or giving instruction on full time basis in affiliated
Colleges has embraced other teaching or giving instructions to the people to be
included within the ambit of a Teacher. The Supreme Court in Maharashtra
University Of Health Sciences & Others versus Satchikitsa Prasarak
Mandal & Others (supra) has held that the petitioner is amenable to the
Grievance Committee and, therefore, the judgment of Maharashtra University
Of Health Sciences & Others versus Satchikitsa Prasarak Mandal &
Others (supra) is also not applicable to the facts and circumstances of the present
case.
This brings us to the moot question that whether the petitioner, who is an
appointee on a Class-III post and admittedly, who was never appointed under the
Scheme of University Science Instrumentation Centre, 1998 can take advantage of
the enhanced age of superannuation without inclusion of the post of Senior
Technical Assistant/Scientific Officer in the definition of 'Teacher' as is provided in
Section 4(XX) of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973. In the
definition of 'Teacher' provided under Section 4(XX) of the Madhya Pradesh
Vishwavidyalaya, Adhiniyam, 1973, it is evident that the Teacher of the University
means the Professors, Readers, Lecturers and such other persons as may be
appointed for imparting instruction or conducting research with the approval of the
Academic Council of the University.
The meeting of the Screening Committee makes a mention of the rules
framed by the Executive Council though the petitioner has not produced those
rules but there is no mention of the approval of the Academic Council of the
University to include the posts of Senior Technical Assistant or Scientific Officer
in the cadre of Teacher or to equate them with the Teacher as defined in Section
4(XX) of the Madhya Pradesh Vishwavidyalaya, Adhiniyam, 1973.
In view of the aforesaid discussion and keeping in mind the pronouncement
of law as laid down by a Coordinate Bench of this Court in Writ Petition
No.1348/2013 (Dr.Rameshwar Rawat versus Chancellor, Rani Durgawati
Vishwavidyalaya & Others) decided on 30.10.2015 as upheld by the Division
Bench of this Court, I am of the opinion that the petitioner, being not a Teacher
within the meaning of Section 4(XX) of the Madhya Pradesh Vishwavidyalaya,
Adhiniyam, 1973 or a Technical Officer under University Science Instrumentation
Centres (USICs), is not entitled to claim the age of superannuation meant for a
Teacher.
Accordingly, this writ petition deserves to and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
amit
