S. K. Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 21745 MP

Madhya Pradesh High Court

S. K. Tiwari vs The State Of Madhya Pradesh on 19 December, 2023

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                             1        W.P.No.8306/2020



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                          BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 19th OF DECEMBER, 2023
              WRIT PETITION No. 8306 of 2020
BETWEEN:-
S.K. TIWARI S/O LATE SHRI B.P.
TIWARI, AGED ABOUT 62 YEARS,
OCCUPATION:    SPORTS    OFFICER
SHRAMDHAM ARTS AND COMMERCE
COLLEGE KYMORE DISTRICT KATNI
R/O   KYMORE    DISTRICT   KATNI
(MADHYA PRADESH)

                                       .....PETITIONER
(BY SHRI ANSHUL TIWARI - ADVOCATE )

AND
1.    THE STATE OF MADHYA PRADESH
      THROUGH PRINCIPAL SECRETARY
      DEPARTMENT     OF    HIGHER
      EDUCATION       MANTRALAYA
      VALLABH    BHAWAN,   BHOPAL
      (MADHYA PRADESH)

2.    COMMISSIONER         HIGHER
      EDUCATION       DEPARTMENT,
      GOVERNMENT    OF    MADHYA
      PRADESH, VALLABH BHAWAN,
      BHOPAL (MADHYA PRADESH)

3.    THE    ADDITIONAL   DIRECTOR
      EDUCATION        DEPARTMENT,
      GOVERNMENT OF M.P. CIVIL
      LINES,   JABALPUR    (MADHYA
      PRADESH)

4.    THE    DISTRICT   EDUCATION
      OFFICER/PRINCIPAL
      GOVERNMENT TILAK COLLEG,
      DISTRICT    KATNI   (MADHYA
      PRADESH)
                                                                2                                         W.P.No.8306/2020


5.        THE PRINCIPAL SHRAMDHAM
          ARTS AND COMMERCE COLLEGE
          KYMORE,    DISTRICT KATNI
          (MADHYA PRADESH)

                                                                                                       .....RESPONDENTS
(BY SHRI ANUBHAV JAIN- GOVERNMENT ADVOCATE )
............................................................................................................................................
RESERVED ON : 28.11.2023
PRONOUNCED ON :19.12.2023
           This petition having been heard and reserved for order, coming on
for pronouncement this day, the court passed the following:
                                                             ORDER

This Petition under Article 226 of Constitution of India has been filed seeking following reliefs:

"(i) To issue a writ in the nature of certiorari, for quashing of the impugned order dated 28.03.2020 (Annexure P-1).

(ii) To direct the respondent authorities to continue the petitioner upto the age of 65 years in terms of the order passed in Civil Appeal No.4657-

4675/2019 and to grant all consequential benefits thereof.

(iii) To declare the superannuation of the petitioner at the age of 62 years by the respondents is bad in law.

(iv) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner."

2. It is the case of petitioner that he is working as Sports Officer in Shramdaham Arts and Commerce College, Kymore, District Katni, which is a Government Aided College and by impugned order dated 28.03.2020, he was informed that he would stand retired w.e.f 30.06.2020 after attaining the age of 62 years.

3. Respondents have filed their return and have claimed that petitioner is not a teacher and he has been retired in the light of Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sansodhan Adhiniyam, 2011 made in Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Adhiniyam, 1967 and Rule 56 of Fundamental Rules, sub-rule (1) so far as it excludes Sports Officer from the benefit of enhanced age of superannuation of 62 years to 65 years.

4. Heard the learned counsel for parties.

5. The Supreme Court in the case of P.C. Modi Vs. The Jawaharlal Nehru Vishwa Vidyalaya And Another decided on 13.12.2023 passed in Civil Appeal No.4267/2011 has held that a Sports Officer would fall within the definition of "teacher" and is entitled to continue up to the age of 62 years but here the dispute is as to whether petitioner is entitled to continue up to the age of 65 years or not?

6. It is the case of respondents that Department of Higher Education, Ministry of Human Resources Development, Government of India on the recommendation of University Grants Commission has issued a scheme dated 31.12.2008 for revision of pay and age of superannuation. From clause 8(f)(ii), it is clear that bifurcation of teachers is done i.e., teachers, who are giving their services inside the class rooms and other teachers like Lbrarian and Director of Physical Education, who are giving their services outside the class rooms. Since eligible candidates for teaching inside the class rooms were very less and as there was no shortage of teachers teaching outside the class rooms, namely; Librarian and Director of Physical Education, therefore age of superannuation was increased from 62 years to 65 years for inside class room teachers, while it remained the same for Librarian and Director of Physical

Education/Sports Officer. The said scheme was duly adopted by State of M.P. by Higher Education Department vide order dated 16.04.2010 and clause 11 clearly stipulates that recommendation of UGC vide Central Government order dated 31.12.2008 is adopted and for non-teaching staff like Sports Officer and others, age of retirement was kept 62 years, whereas teaching staff, who are teaching inside the class room, their age of retirement was increased to 65 years.

7. It is not the case of petitioner that respondents are not treating him to be a teacher.

8. Recently i.e. after the case was reserved for order, the Supreme Court in the case of P.C. Modi Vs. The Jawaharlal Nehru Vishwa Vidyalaya And Another decided on 13.12.2023 passed in Civil Appeal No.4267/2011 has held that a Sport Officer is a teacher and is entitled to serve up to the age of 62 years. However, the facts of present case are distinguishable. Petitioner has not been retired at the age of 62 years on the ground that he is not a teacher but he has been retired in the light of scheme of revision of pay and age of superannuation of teachers issued on 31.12.2008 by Ministry of Human Resources Development, Government of India, which was duly adopted by State Government by order dated 16.04.2010. As per clause 11 of order dated 16.04.2010 issued by Higher Education Department, State of M.P. age of retirement of class room teaching staff was enhanced to 65 years, whereas age of non-teaching staff and administrative officers remained 62 years. It is true that post of Sports Officer has been treated to be the post of teacher by the Supreme Court by judgment passed in the case of P.C. Modi (supra) but the main line of distinction for prescribing different age of superannuation for teaching staff, which is teaching inside the class

room and teaching staff, which is teaching outside the class room is the shortage of inside class room teaching staff.

9. However, this Court is of considered opinion that in view of interim order, which was passed by this Court it would be an academic issue to consider as to whether petitioner was entitled to continue up to the age of 65 years or not. The petitioner was supposed to stand retired w.e.f. 30.06.2020 after attaining the age of 62 years. By interim order dated 26.06.2020, it was directed that petitioner shall not retire till the next date of hearing. Thus, it appears that petitioner continued in service. Petitioner must have attained the age of 65 years on 30.06.2023. Thus, it is clear that petitioner has attained the age of 65 years also.

10. In the light of judgment passed by Division Bench of this Court in the case of Munna Lal Rajak Vs. State of M.P. and others decided on 16.08.2019 in W.A. No.1326/2019 (Gwalior Bench), it is clear that salary paid to the employee, who has worked for the extended period in the light of interim order cannot be recovered. Therefore, whether petitioner was entitled to continue up to the age of 65 years or was rightly retired at the age of 62 years is an academic issue because the salary paid in lieu of the services rendered by petitioner up to the age of 65 years cannot be recovered.

11. Accordingly, by affirming the interim order dated 26.06.2020, this petition is dismissed as infructuous.

(G.S. AHLUWALIA) JUDGE SR*

Date: 2023.12.19 15:07:19 +05'30'