Madhya Pradesh High Court
Dr. Rajender Singh vs Jiwaji University on 30 October, 2025
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1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
WRIT PETITION No. 1944 of 2020
DR. RAJENDER SINGH
Versus
JIWAJI UNIVERSITY AND OTHERS
Appearance:
Petitioner is present in person.
Shri K.N. Gupta - Senior Advocate with Ms. Suhani Dariwal - Advocate and
Shri Rinku Shakya - Advocate for the respondent No.1.
Shri M.P.S. Raghuvanshi - Senior Advocate with Shri Manish Gurjer -
learned counsel for respondent No.3.
Reserved on : 25.09.2025
Pronounced on :30.10.2025
_______________________________________________________________
ORDER
This petition, under Article 226 of Constitution of India, has been
filed seeking the following relief (s):
(1) The order Annexure P/1 and Annexure P/2 may kindly be
quashed.
(ii) That the respondents may kindly be directed to permit the
petitioner to discharge the duties upto the age of 65 years.
(iii) Any other relief, which this Hon'ble Court deems fit in the
peculiar set of facts and circumstances of the case, may also
kindly be awarded to petitioner.
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2. Brief facts giving rise to the present of the case, in short, are that
petitioner was appointed as a Research Assistant at LNIPE, Gwalior (M.P.)
vide Office Order No.25/2714 dated 07.07.1981. Thereafter, the petitioner
was appointed as Lecturer in Physical Education (Sports Psychology) vide
Office Order No.25/373 dated 18.04.1985 at LNIPE, Gwalior (M.P.).
Subsequently, the petitioner was promoted to the post of Lecturer in Senior
Scale (Rs.3,000-5,000) vide Office Order No.614/21 dated 01.01.1991 at
LNIPE, Gwalior (M.P.). Subsequently, vide order dated 29.12.1992, the
petitioner was appointed as Director of Physical Education in the pay scale of
Rs.4,500-150-7,300/- vide Office Order No. Admin/Inst/921/6258. The
petitioner joined the post of Director of Physical Education on 29.12.1992
(afternoon) at Jiwaji University, Gwalior (M.P.) after applying for lien at
LNIPE, Gwalior. The petitioner was granted lien for a period of two years on
the post of Senior Lecturer from LNIPE, Gwalior vide Office Order No.
Conf/718/93 dated 29.03.1993. The members of the Selection Committee
were nominated by the Standing Committee on behalf of the Academic
Council as per the provisions of Section 49(2) of the Madhya Pradesh
Vishwavidyalaya Adhinimyam, 1973 (for brevity, "the Act, 1973") under
Agenda Item No.7(b), Page 267. It was resolved that the appointments to the
posts of Director of Physical Education and Assistant Director of Physical
Education be made in accordance with Section 49 of the Act, 1973. Two
experts were nominated by the Standing Committee on behalf of the
Academic Council as per the provisions of Section 49(2) of the Act, 1973. The
resolution of the Standing Committee dated 13.05.1992 was approved by the
Executive Council in its meeting held on 20.05.1992. The Kuladhipati
nominated three experts to the Selection Committee for appointments in the
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Department of Physical Education to the posts of Director of Physical
Education and Assistant Director of Physical Education, as per the provisions
of Section 49(2) of the Act, 1973 with reference to D.O. Letter No. VC/92/317
dated 15.10.1992. The petitioner was appointed as Director of Physical
Education, Jiwaji University, Gwalior on the recommendation of the Selection
Committee duly constituted under the provisions of Section 49(2) of the Act,
1973, applicable to teaching faculty members. The appointment was approved
by the Executive Council in its meeting held on 29.12.1992 under Item
No.117. The petitioner joined the post of Director, Physical Education on
29.12.1992 (afternoon).
3. Learned counsel for the petitioner submits that by orders dated
26.06.2019 and 10.01.2020, the respondents have deliberately retired the
petitioner at the age of 62 years, whereas the prescribed age of retirement as
per the UGC Guidelines is 65 years. As per the UGC guidelines and in
accordance with Clause 17 of Ordinance No.11, the petitioner has been
recognized as a Supervisor by the subject university to supervise the Ph.D.
Scholars in the field of Physical Education, Psychology and Education and has
supervised thirty two Ph.D and one Post-Doctoral Fellow of UGC till to date
and is still doing the same academic job as a supervisor to the other research
scholars in Jiwaji University, Gwalior.
4. Learned counsel for the petitioner invited attention of this Court to the
provisions contained in the Adhiniyam 1973 which are as under:
(1.1) As per Section 4 Subsection (XX) of the Adhiniyam 1973.
"The teacher of the University means Professor, Readers,
Lecturers and SUCH OTHER PERSONS as may be
appointed for imparting instructions or conducting
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research, with the approval of Academic Council in the
University or College or Institution maintained or
recognized by the University."
The Petitioner falls under the category of SUCH OTHER
PERSONS within the said definition. As per provisions in
Section 4 Subsection (xx) of Act, the teacher of the university is
appointed for, (i) imparting instructions, or (ii) Conducting
research with the approval of academic council. The
petitioner has imparted instructions by teaching theory subjects
in the classroom to students of BPEd, MPED and M.Phil and
have also conducted research for Ph.D students in the
respondent university.
5. It is submitted that it is very much clear from Section 49 Sub-section 1
clause (ii) of Adhiniyam that appointment to teaching post in the University
includes Professor, Reader, Lecturer and any other teaching post of the
University. Hence, it is very much clear from Section 4 sub-section (xx), and
Section 49 sub-section (1) clause (ii) of Adhiniyam that there is provision of
any other teaching post in the Adhiniyam, 1973 along with Professor, Reader
and Lecturer in the respondent university. It is further submitted that it is clear
that coordination committee is the supreme committee and by exercising this
source of power, the co-ordination committee in their meeting dated 25-26
April, 2000 and 29/May/2000 respectively in its agenda item no. 20 in subject
no. 20 decided to amend statute 20 to the extent that the post of Director
Physical Education and Librarian were considered as teaching post and these
post be removed from statute 20. The decision taken by the Standing
Committee and Coordination Committee in its meetings is as under:
fo"k; Ø- 20 lapkyd] 'kkjhfjd f'k{kk] xzUFkikyksa ds laca/k esa
ifjfu;e Øekad 20 esa la'kks/ku%
1- fo'ofo|ky; vf/kfu;e ds vUrxZr fufeZr ifjfu;e daekd 20 esa
lapkyd 'kkjhfjd f'k{kk rFkk ykbczsfj;u ds in dks fo'ofo|ky;
vf/kdkjh ekuk x;k gSA dqyifrx.k us voxr djk;k fd lapkyd]
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'kkjhfjd f'k[kk ds in dks mPpre U;k;ky; us 'kS{kf.kd in ekU;
fd;k gSA vr% ekuuh; mPpre U;k;ky; ds fu.kZ; dks ns[krs gq, bl
in dks ifjfu;e 20 ls i`Fkd djuk mfpr gksxkA mudk ;g Hkh er
Fkk] fd lapkyd 'kkjhfjd f'k{kk rFkk ykbczsfu;u ds in ij
fu;qfä;ka e-ç- fo'ofo|ky; vf/kfu;e dh /kkjk 49 ds rgr~
'kS{kf.kd inksa dh rjg dh tkrh gSA fo'ofo|ky; esa ch-fyc--
,e-fyc] ch-ih-,M-] ,e-ih-,M- ds fu;fer/i=kpkj ikBîØe i<+k, tk
jgs gSA ,slh fLFkfr esa bu inksa dks 'kS{kf.kd in ?kksf"kr fd;k tkdj
bUgsa ifjfu;e 20 ls i`Fkd~ fd;k tk,A
2& bl çLrko ij foLr`r ppkZ dh tkdj leUo; lfefr }kjk fu.kZ;
fy;k x;k fd ftu fo'ofo|ky;ksa esa 'kkjhfjd f'k{kk / ykbczsjh lkabl
ds ikBîØe py jgs gSa ,oa ogka ij lapkyd] 'kkjhfjd f'k{kk o
ykbczsfj;u ds in ij fu;qfä;ka /kkjk 49 ds vUrxZr dh xbZ gS] ;gka
bu inksa dks 'kS{kf.kd ekurs gq, ifjfu;e 20 ls gVk;k tk,A
6. It is further submitted by learned counsel for the petitioner that the
above decision of coordination committee is still intact with regard to
modification of Statute no. 20. It is further submitted that above decision was
taken by the coordination committee in reference to the decision laid down by
the Supreme Court of India in the case of P S Ramamohan Rao vs A P
Agriculture University and others AIR, 1997 SCC 3433. The Hon'ble
Supreme Court in Civil Appeal No. 4675-4676 of 2019 (Dr. R. S. Sohane vs.
State of M.P. & Others) considered the identical situation in which the
question of age of superannuation of the teachers of private aided educational
institutions at par with the government teachers was under consideration. The
Hon'ble Supreme Court in para 12, 15, 16 and 18, considered the power and
scope of the decisions of the co-ordination committee and held that the co-
ordination committee has power to prepare, amend and repeal the statutes. It
can do so on its own motion or on recommendation or proposal from the
executive council of the university. According to the above provision, the
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Statute no. 20 have been modified by the Standing Committee and
Coordination Committee and hence therefore, the post of Director Physical
Education is a teaching post.
7. Learned counsel submits that by rendering decision in the case of P.C.
Modi vs. Jawaharlal Nehru University and others in Civil Appeal No.
4267 of 2011, Hon'ble Supreme Court has considered all the judgments and
held that the sports officer/PTI will fall within the definition of teacher as they
impart instructions to the students of the college in Physical Education and
therefore entitled to the age of superannuation up to 62 years of age at par
with the teachers. In view of the aforesaid discussion, it is deemed appropriate
to quash and set aside the impugned order dated 14th December, 2009 and
restore the judgment dated 26th April, 2005 passed by the learned Single
Judge. It is declared that the appellant (in that case), who was discharging the
duties of a PTI/Sports Officer, would fall within the definition of a "teacher"
and would have been entitled to be continued in service till completion of 62
years of age. As the appellant (in that case) was prematurely retired by the
respondents at the age of 60 years, it is held that he shall be entitled to all
consequential and monetary benefits including, arrear of salary, etc., had he
continued in service upto to the age of 62 years. The retiral benefits of
appellant (in that case) shall also be computed on a presumption that his age
of retirement was 62 years.
8. Learned counsel for the petitioner submits that in identical case i.e. P.S.
Ramamohana Rao, Vs. A. P. Agricultural University and others ( in Civil
Appeal no. 898 of 1992), Hon'ble Supreme Court has considered Director of
Physical Education (in that case) as a teacher since his duty to teach skills of
various games as well as their rules and practices brings a Director of Physical
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Education clearly within main part of definition as a teacher and is entitled to
continued in service till he completes 60 years. Now that he has retired he is
entitled to the emoluments payable to him for the remaining period of the
service upto the completion of 60 years deducting the period for which he
worked as Physical Director beyond 58 years pursuant to stay orders granted
by the High Court. His retiral benefits shall also be computed on the basis that
his age of retirement was 60 years.
9. It is further submitted by the learned counsel for petitioner that the
petitioner was assigned duty to teach theory subjects of B.P.Ed., M.P.Ed. and
M.Phil. Courses in the classroom as well as Practical Classes on the
Playgrounds from 1995 to 2020. The petitioner had maintained record of
attendance of students while teaching in the classroom for theory and practical
subjects at play ground. The parents and the Vice Chancellor were informed
about the percentage of attendance of the students by a letter.
10. It is submitted that as per Clause 4.2 of Ordinance no. 55 & 62, only the
teachers who has taught the theory subjects in the classroom is required to
conduct Internal Assessment Examination for students. The Petitioner have
conducted Internal Assessment Tests for Theory and Practical Subjects being
assigned to petitioner in the time tables from 1995 to 2020 by respondent
University to perform the duty of a classroom teacher. The respondents
University have awarded degrees to students of BPEd., MPEd. And M.Phil on
the basis of Internal Assessment Exam conducted and marks submitted by the
Petitioner from 1995 to 2020 as per provisions in Ordinance no. 55 and 62.
The Petitioner was approved as supervisor for PhD degree for students as per
Clause 17 (1) and (ii) of Ordinance No. 11. As per above provision only a full
time regular teacher of concerned university/college or scientist of research
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establishment recognized as research center can Act as a supervisor. The
external supervisors are not allowed. The petitioner was appointed as a Ph.D
supervisor by the respondent University from 1992 to 2020. The Petitioner
have supervised 32 Ph.D. Scholars and all have been awarded Ph.D. Degrees
by the respondent University. Petitioner has also Guided and Supervised 28
M.Phil. Scholars as per Certificate issued by the Registrar of Respondent
University. Petitioner was allotted Students for Ph.D. by the Registrar of
respondent University. The petitioner conducted research on different topics
and the research article published each year were mentioned in the self-
appraisal report being submitted to respondents University.
11. It is submitted that it is very clear from the reply of respondent
University that the petitioner have performed the duty of the teacher by
conducting research and by providing research guidance to Ph.D and M.Phil
Scholars in University like any other teacher of the University within the
provision of ordinance 11. The petitioner was appointed as Paper Setter for
Ph.D. by respondent University as per Clause 9 (a) of Ordinance 11. The
petitioner was appointed as Paper Setter for Ph.D. By respondent University
as per Clause 9 (a) of Ordinance 11. The Respondent University appointed the
petitioner as Internal as well as External Examiner for B.P.Ed. and M.P.Ed.
classes, as per Statute no.29. As per the provisions, the Internal Examiner
means: In case of theory paper an examiner including a paper setter who is a
teacher in a University Teaching Department, School of Studies. Or College
maintained by or affiliated to the University. Similarly in case of practical and
viva-voce examination an examiner who is a teacher in the Institution whose
candidates are being examined at the examination center. External Examiner
means an examiner other than an internal examiner. Appointed as HOD, SOS
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Physical Education by respondent University. The petitioner was appointed as
Member of Admission Committee of Students by respondent University.
12. It is submitted that as per provision in Section 25(vi) and (vii) the
Petitioner was appointed as a Member of Academic Council by respondent
University. Petitioner was appointed as Superintendent of Examination by
respondent University. As per Provisions in Clause (VI) of Section 37 to be
read with clause (3) (i) of ordinance 5, the petitioner has performed the duties
of Superintendent of Exams. Petitioner was appointed as Member of Result
Committee by respondent University. As per Provision in Section 37(VI) of
Act to be Read with Clause 11 of Ordinance 5, the petitioner was appointed as
a Member of the Result Committee. Petitioner was appointed as Member of
Examination Committee by respondent University. As per Provision in
Section 44(1) of Act, the Petitioner was appointed as a Member of the
Examination Committee for Preparing the Panel of Examiner. The Petitioner
was appointed Member of Board of Studies by respondent University as per
Provisions of Section 28(2)(i) of Act 1973.
13. It is further submitted that as per Provision in 38 (2) of Statute 31 of
Adhiniyam 1973, the Petitioner was granted Earned Leaves which are
provided to only teachers of University. The Petitioner was appointed as a
Member of Research Degree Committee by respondent University as per
Provisions in Clause 12(iii) of Ordinance 11. The Petitioner was appointed as
a Member of Research Advisory Committee by respondent University as per
Provision in Clause 8(c)(4) of Ordinance 11. The name of the Petitioner is
included in the Seniority List of Teachers by respondent University as per
provisions in Statute 16(1) (i) (ii). The name of the Petitioner is included in
the List of Teachers by respondent University as per Provisions in Statute 13
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(1) and (2). Appointment of Petitioner as Member of Selection Committee by
respondent University for the Selection of Guest Faculty on Contract as per
Regulation 5 (5b and 5c). Proof of being appointed as a Member of the
Selection Committee for Selecting Faculty on Contract as per Regulation 5.
14. Hence, lastly it is submitted that it is from the above provisions in the
statutes and ordinances that the petitioner was appointed by the Vice
Chancellor of the respondent University as Member of Academic Council,
Result Committee, Examination Committee, Board of Studies, Superintendent
of Examination and was also awarded Earned leaves in parity with other
teachers of the University. The petitioner had organized games and sports for
the students of the respondent University. Hence it is very clear from the
aforesaid provisions in Madhya Pradesh Vishwavidyalaya Adhiniyam 1973,
statutes and ordinances that the petitioner have performed all duties of teacher
and the modification in statute 20 by the coordination committee as per
section 34 subsection 4 (i) of adhiniyam bring Director Physical Education
post as a teaching post. The retirement age of the petitioner should be in parity
with other teachers of the University.
15. Per contra, learned Senior counsel appearing on behalf of respondent
submitted that Notification No.1070 dated 24.7.00 (Annexure P/19) and
decision of Executive Council Meeting dated 26.2.2010 about designation of
petitioner as Professor from the date of appointment has already been quashed
by Hon'ble Governor Office by order dated 4.9.2010 under Section 12 (4) of
the Adhiniyam. Thereafter, on the basis of order dated 4.9.2010, University
Office annulling quashed/cancel the appointment of petitioner as Professor by
order dated 20.9.2010 and till yet petitioner has not challenged order dated
4.9.2010 and order dated 20.9.2010 and in consequence of order dated
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4.9.2010 and 20.9.2010 treating the petitioner as Director Physical Education
has been retired on attaining the age of superannuation 62 years w.e.f. the
evening of 26.1.2020 by order dated 10.1.2020.
16. A reply has been filed on behalf of the respondents/University and the
stand of the University is that the petitioner was appointed as a Director of
Physical Education keeping in view the Adhiniyam of 1973 and the statutes as
well as Ordinance framed there under. The respondents have categorically
stated that the petitioner is not a teacher as it defined under Section 3 of the
Adhiniyam of 1973 and infact is a Director of Physical Education and
substantive post of petitioner is director of Physical Education, therefore, he
has not been included within the definition of teacher, hence the question of
granting any benefit to the petitioner to continue in service at par with the
teachers does not arise. The respondents have stated that the Director of
Physical Education is certainly not a teacher. The process of appointing a
teacher is altogether different and in the selection committee constituted for
appointing a teacher, a representative of the Higher Education of State of
Madhya Pradesh is a necessary member, whereas no such contingency is
required while appointing a Director of Physical Education. The respondents
have stated that the judgment relied upon by the learned counsel for the
petitioner is distinguishable on facts and there is a subsequent judgment
delivered by this Court in the case of J.N. Vishwavidyalaya Vs. P.C. Modi,
2010 (1) MPLJ 375, wherein in similar circumstances, the Sport Officer was
not treated to be a teacher.
17. Learned counsel for the respondents has placed reliance upon a
judgment delivered by the Apex Court in the case of State of Madhya
Pradesh and Ors. Vs. Ramesh Chandra Bajpai, (2009) 13 SCC 635,
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Brejendra Kumar Vs. JNKVV, 2011 (1) MPLJ 589 (DB), Hukum Chand
Gupta Vs. Director General, Indian Council (2012) 12 SCC 666 and
University Grants Commission Vs. Neha Anil Bobde (2013) 10 SCC 519 and
his contention is that the Director of Physical Education by no stretch of
imagination can be treated as a teacher keeping in view the statutory
provisions governing the field.
18. Heard learned counsel for the parties and perused the record.
19. The relevant statutory provisions under the Madhya Pradesh
Vishwavidyalaya Adhiniyam, 1973, Statutes and Ordinances, which are
necessary for adjudication of the present writ petition reads as under :-
"(A) Section 3 (xx) of the Vishwavidyalaya Adhiniyam,
1973 defines "Teachers" as under :-
"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 recognized by
the University."
(B) Section 24 (x) of the Vishwavidyalaya Adhiniyam,
1973 includes the following as one of the powers of the
Executive Council (which is the apex executive body of
the University), as far as appointment of 'teachers' is
concerned:
"Subject to the provisions of this Act, and the Statues,
Ordinances and regulations made thereunder, the
Executive Council shall have the following powers and
perform the following duties, namely:
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(xx) to institute such Professorship, Readership,
Lectureships or other teaching posts as may be proposed
by the Academic Planning and Evaluation Board:
Provided that no teaching post shall be instituted without
the prior approval of the Commissioner Higher
Education.
(C) Section 18 of the Vishwavidyalaya Adhiniyam:
Others Officers:
"The appointment of other officers of the University
referred to in Section 12, shall be made in such manner
and the conditions of their services and powers and
duties shall be such as may be prescribed by the Statutes,
Ordinances and Regulations."
In view of Section 18, Statute No.20 had been made
which reads as under:
Statute No.20 Other Officers of the University
-Conditions of Service, Powers and Duties:
(1) In addition to the officers mentioned in clauses
(I) to (v) of Section 11 of the Adhiniyam, the following
shall be the officers of the University:
(i) to (iv)-
(v) Director of Physical Education
(2) to (4)_____
(5) ______
Provided that in case of appointment to the following
posts, the Selection Committee shall be constituted in
accordance with the provisions contained under Section
49(2) of the M.P. Adhiniyam, 1973:
Physical Education:
Director
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(D) Section 35 of the Vishwavidyalaya Adhiniyam:
Statutes:
Subject to the provisions of this Act and the rules made
thereunder, the statutes may provide for all or any of the
following matters, namely:
(a) to (c)____
(d) powers and duties of the Registrar, and other officers
and employees of the University and the conditions of
their services.
(e) to (m) -
(n) the emoluments and terms and conditions of service
of the officers and emoluments and terms and conditions
of service other than pay scales of teachers of the
University paid by the University.
In view of the powers conferred under the above
mentioned Sub-clause (d) and (n) of Section 35, the
following Statute No.31 was made:
Statute No.31: Conditions of Services for University
Employees:
(E) Section 49 of the Vishwavidyalaya Adhiniyam, 1973:
Appointment of Teaching posts:
(1) No person shall be appointed:
(i) as a Professor, Reader, Lecturer: or
(ii) to any other teaching post of the University paid by
the University except on the recommendation of a
committee of selection constituted in accordance with
sub-section (2).
(2) The members of the Committee shall be:
(F) Section 63 of the Adhiniyam, 1973: Classification of
Teachers:
(1) "Professor" and "Reader" means respectively teachers
appointed by the Executive Council on the scales of pay
not lower than that approved for a Professor and a
Reader by the University Grants Commission and
accepted by the State Government and where the scale of
pay approved by the University Grants Commission is
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higher than that approved by the State Government in
this behalf then on the scale of pay as provided by the
State Government."
20. The aforesaid statutory provisions of law makes it very clear that the
Director, Physical Education is not included within the meaning of the term
teacher as defined under Section 3(20) of M.P. Vishwavidyalaya Adhiniyam,
1973. Not only this, Section 18 deals with other officers of the
Vishwavidyalaya and for the post of Director Physical Education, a selection
committee has to be constituted under Section 49 (2) of M.P.
Vishwavidyalaya Adhiniyam, 1973, meaning thereby the post of Director,
Physical Education is altogether a different post, other than the teachers under
the statutory provisions as stated aforesaid. The petitioner can by no stretch of
imagination be designated as Professor keeping in view the statutory
provisions. The matter relating to retirement of Sports Officer in respect of
University in the State of Madhya Pradesh at par with the teachers was
considered at length by this Court in the case of of J.N. Vishwavidyalaya Vs.
P.C. Modi (supra). The Division Bench of this Court has taken into account
the judgment delivered by the Apex Court in the case of P.S. Ram Mohana
Rai (supra). Paragraphs 10 to 14 of the judgment delivered in the case of
Brejendra Kumar Pathak Vs. JNKVV (supra) reads as under:-
10. In view of the aforesaid discussions, it is clear that the
Division Bench of this Court in the case of P.C. Modi (supra)
has rightly considered the Judgments of the Supreme Court in
the case of P.S. Ramamohan Rao (supra) and Ramesh Chandra
Bajpai (supra) and we fully agree with the view taken therein.
We are also of the considered opinion that as the Supreme
Court in the case of Ramesh Chanda Bajpai (supra) having
explained the previous judgment in the case of R.S.
Ramamohan Rao (supra) and having clarified that it was
rendered in the light of particular rules in issue, the same was
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rightly considered by the Division Bench in accordance with
the law laid down in the case of Ramesh Chandra Bajpai
(supra) and therefore, the decision in the case of P.C. Modi
(supra) does not require to be reconsidered or referred to a large
Bench as submitted by the learned counsel for the appellant.
We are also of the opinion that there is no conflict between the
aforesaid two judgments of the Supreme Court.
11. Besides that, it appears that the judgment of the Apex Court
in case of R.S. Ramamohan Rao (supra) was rendered on
31.7.1997 by a Bench consisting of two Hon'ble Judges,
whereas the judgment in State of M.P. Vs. Ramesh Chandra
Bajpai (supra) was rendered later, i.e. on 28.7.2009, by a Bench
consisting of three Hon'ble Judges. It is a settled legal position
that where there is a conflict of opinion between two decision
of the Apex Court rendered by the Benches of equal strength,
later decision shall prevail Reference may be made to the
judgment of the Apex Court rendered in Dalbir Singh Vs. State
of MP (2004) 5 SCC 334, wherein the Supreme Court in para
11 has approved the judgment of Punjab and Haryana High
Court, relying upon the later judgment where the earlier
judgment was in conflict with the later one. Thus, the judgment
rendered in Ramesh Chandra Bajpai (supra), which was
decided on 28.7.2009, will prevail. Besides that the judgment in
State of M.P. Vs. Ramesh Chandra Bajpal (supra) is of larger
Bench as it was headed by three Hon'ble Judges whereas, the
judgment in R.S. Ramamohan Rao (supra) was headed by two
Hon'ble judges.
12. In the light of the above, we do not find any error in the
judgment/order of the learned Single Judge. At this stage, the
learned counsel for the appellant submits that he was permitted
to continue to work till the age of 61 years and 3 months and
therefore, the respondents be directed not to recover the salary
already paid to the appellant for the period of service rendered
by him beyond the age of 60 years.
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13. Learned counsel appearing for the University fairly submits
that the salary already paid to the appellant for the period for
which he has worked will not be recovered by the University.
14. In view of the above, we do not find any merit in the appeal
and the same deserves to be dismissed. However, in the facts of
the case, it is provided that the salary and other benefits already
paid to the appellant for the period of service rendered by him
beyond the age of 60 years till his continuance shall not be
recovered from him. However, for all other purposes, such as
fixation of pension and post retiral benefits etc., the appellant
would be deemed to have retired on attaining the age of 60
years."
21. Keeping in view the aforesaid judgment, this Court is of the considered
opinion that the petitioner cannot be permitted to continue in service at par
with the teachers of the University.
22. The Apex Court in the case of State of Madhya Pradesh and Ors. Vs.
Ramesh Chandra Bajpai (supra) again in case of Physical Training Instructor
after taking into account the judgment delivered in the case of P.S. Ram
Mohana Rai (supra) in paragraph 25 and 26 has held as under:-
"25. We may observe that definition of 'teacher' contained in
Section 2(n) of the Andhra Act was an expansive one to include
those persons who were not only been imparting instructions
but also were conducting and carrying on research for extension
programmes. It also included those who had been declared to be
a teacher within the purview of the definition thereof in terms of
any Statutes framed by such State.
26. In our view, the aforementioned decision has been
misapplied and misconstrued by the High court. It is now well
settled principles of law that a decision is an authority for what
it decides and not what can logically be deduced therefrom. In
Ramamohana Rao (supra), this Court, having regard to the
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nature of duties and functions of Physical Director, held that
that post comes within the definition of teacher as contained in
Section 2(n). The proposition laid down in that case should not
have been automatically extended to other case like the present
one, where employees are governed by different sets of rules.
23. Keeping in view the aforesaid judgment, the petitioner cannot claim the
parity in pay scale and in respect of retirement age at par with teachers. The
Apex Court in the case of Hukum Chand Gupta (supra) again dealt with the
issue of parity in pay and the paragraph 20 of the aforesaid judgment reads as
under:-
"20. We are also not inclined to accept the submission of the
appellant that there can be no distinction in the pay scales
between the employees working at Headquarters and the
employees working at the institutional level. It is a matter of
record that the employees working at Headquarters are governed
by a completely different set of rules. Even the hierarchy of the
posts and the channels of promotion are different. Also, merely
because any two posts at the Headquarters and the institutional
level have the same nomenclature, would not necessarily require
that the pay scales on the two posts should also be the same. In
our opinion, the prescription of two different pay scales would
not violate the principle of equal pay for equal work. Such
action would not be arbitrary or violate Articles 14, 16 and 39D
of the Constitution of India. It is for the employer to categorize
the posts and to prescribe the duties of each post. There can not
be any straitjacket formula for holding that two posts having the
same nomenclature would have to be given the same pay scale,
Prescription of pay scales on particular posts is a very complex
exercise. It requires assessment of the nature and quality of the
duties performed and the responsibilities shouldered by the
incumbents on different posts. Even though, the two posts may
be referred to by the same name, it would not lead to the
necessary inference that the posts are identical in every manner.
These are matters to be assessed by expert bodies like the
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employer or the Pay Commission. Neither the Central
Administrative Tribunal nor a Writ Court would normally
venture to substitute its own opinion for the opinions rendered
by the experts. The Tribunal or the Writ Court would lack the
necessary expertise undertake the complex exercise of equation
of posts or the pay scales."
24. A coordinate Bench of this Court in the case of Dr. Mohd. Iqbal
Quraishi Vs. His Excellency, Kuladhipati of DAVV reported in 2015 (1)
MPLJ 8 has already dealt with the same issue. Para 11 of the aforesaid
judgment reads as under:
"11. In the light of the aforesaid judgment, as the petitioner was
appointed on the post of Director of Physical Education,
keeping in view the statutory provisions as contained under the
Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 and the
statute, ordinance framed thereunder, by no stretch of
imagination can be treated as a teacher. He is holding the post
of Director and has to retire as as a Director not as a Teacher.
The writ petition is, therefore, accordingly dismissed."
25. In view of the law laid down by the coordinate Bench of this Court in
the case of Dr. Mohd. Iqbal Quraishi (supra) in which it has been held that
the post of Director of Physical Education keeping in view the statutory
provisions as contained in the Adhiniyam, 1973 cannot be treated as a
Teacher. The same has been decided by Hon'ble Apex Court in the case of
State of M.P. and others Vs. Ramesh Chandra Bajpai reported in (2009)
13 SCC 635, and University Grants Commission and another Vs. Neha
Anil Bobde (Gadekar) reported in (2013) 10 SCC 519 therefore, Director
of Physical Education, by no stretch of imagination can be treated as a
Teacher keeping in view of the statutory provisions governing the field. In
Ramesh Chandra Bajpai (supra) the Hon'ble Apex Court has held as under:
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14. In para 6 of the impugned order, the Division Bench of the
High Court observed that the rules governing and regulating the
service of the respondent make a distinction between Physical
Training Instructor and teacher in the matter of status and pay
scale, but proceeded to sustain the direction given by the
learned Single Judge mainly on the premise that the orders
passed in the cases of other Physical Training Instructors have
not been assailed. The Division Bench also relied upon the ratio
of judgment of this Court in Ramamohana Rao case [(1997) 8
SCC 350 : 1998 SCC (L&S) 46] and observed that the nature
and duties of the Physical Training Instructors are on a par with
those of teachers.
15. In our view, the approach adopted by the learned Single
Judge and the Division Bench is clearly erroneous. It is well
settled that the doctrine of equal pay for equal work can be
invoked only when the employees are similarly situated.
Similarity in the designation or nature or quantum of work is
not determinative of equality in the matter of pay scales. The
court has to consider the factors like the source and mode of
recruitment/appointment, qualifications, the nature of work, the
value thereof, responsibilities, reliability, experience,
confidentiality, functional need, etc. In other words, the equality
clause can be invoked in the matter of pay scales only when
there is wholesale identity between the holders of two posts.
26. In our view, the aforementioned decision has been
misapplied and misconstrued by the High Court. It is now well-
settled principle of law that a decision is an authority for what it
decides and not what can logically be deduced therefrom.
In Ramamohana Rao [(1997) 8 SCC 350 : 1998 SCC (L&S) 46]
this Court, having regard to the nature of duties and functions of
Physical Director, held that that post comes within the definition
of teacher as contained in Section 2(n). The proposition laid
down in that case should not have been automatically extended
to other case like the present one, where employees are
governed by different sets of rules.
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26. The Co-ordinate Bench of this Court has held in the case of Dr. Mohd
Iqbal Quraishi (supra):
10. Keeping in view the aforesaid judgment, the petitioner cannot
claim the parity in pay-scale and in respect of retirement age at par
with teachers. The Apex Court in the case of Hukum Chand
Gupta (supra), again dealt with the issue of parity in pay and the
paragraph 20 of the aforesaid judgment reads as under:
"20. We are also not inclined to accept the submission of
the appellant that there can be no distinction in the pay-
scales between the employees working at Headquarters
and the employees working at the institutional level. It is
a matter of record that the employees working at
Headquarters are governed by a completely different set
of rules. Even the hierarchy of the posts and the channels
of promotion are different. Also, merely because any two
posts at the Headquarters and the institutional level have
the same nomenclature, would not necessarily require that
the pay-scales on the two posts should also be the same.
In our opinion, the prescription of two different pay-
scales would not violate the principle of equal pay for
equal work. Such action would not be arbitrary or violate
Articles 14, 16 and 39D of the Constitution of India. It is
for the employer to categorize the posts and to prescribe
the duties of each post. There cannot be any straitjacket
formula for holding that two posts having the same
nomenclature would have to be given the same pay-scale.
Prescription of pay-scales on particular posts is a very
complex exercise. It requires assessment of the nature and
quality of the duties performed and the responsibilities
shouldered by the incumbents on different posts. Even
though, the two posts may be referred to by the same
name, it would not lead to the necessary inference that the
posts are identical in every manner. These are matters to
be assessed by expert bodies like the employer or the Pay
Commission. Neither the Central Administrative Tribunal
nor a writ Court would normally venture to substitute its
own opinion for the opinions rendered by the experts. The
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Tribunal or the writ Court would lack the necessary
expertise undertake the complex exercise of equation of
posts or the pay-scales."
11. In light of the aforesaid judgment, as the petitioner was appointed
on the post of Director of Physical Education, keeping in view the
statutory provisions as contained under the Madhya Pradesh
Vishwavidyalaya Adhiniyam, 1973 and the statute, ordinance framed
thereunder, by no stretch of imagination can be treated as a teacher.
He is holding the post of Director and has to retire as a Director not as
a Teacher. The writ petition is, therefore, accordingly dismissed.
27. The Division Bench of this Court in WA No.742/2014 upheld the order
passed in Dr. Mohd Iqbal Quraishi (supra).
28. The Supreme Court has held in the case of University Grants
Commission and another v. Neha Anil Bobde (Gadekar) (2013) 10 SCC
519 as under:
31. We are of the view that, in academic matters, unless there
is a clear violation of statutory provisions, the regulations or the
notification issued, the courts shall keep their hands off since
those issues fall within the domain of the experts. This Court
in University of Mysore v. C.D. Govinda Rao [AIR 1965 SC
491] , Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC
546 :2002 SCC (L&S) 1] and Rajbir Singh Dalal v. Chaudhary
Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S)
887] , has taken the view that the court shall not generally sit in
appeal over the opinion expressed by the expert academic
bodies and normally it is wise and safe for the courts to leave
the decision of the academic experts who are more familiar
with the problem they face, than the courts generally are. UGC
as an expert body has been entrusted with the duty to take
steps as it may think fit for the determination and maintenance
of standards of teaching, examination and research in the
university. For attaining the said standards, it is open to UGC to
lay down any "qualifying criteria", which has a rational nexus
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to the object to be achieved, that is, for maintenance of
standards of teaching, examination and research. The
candidates declared eligible for Lectureship may be considered
for appointment as Assistant Professors in universities and
colleges and the standard of such a teaching faculty has a direct
nexus with the maintenance of standards of education to be
imparted to the students of the universities and colleges. UGC
has only implemented the opinion of the experts by laying
down the qualifying criteria, which cannot be considered as
arbitrary, illegal or discriminatory or violative of Article 14 of
the Constitution of India.
29. The following regulation of "UGC REGULATION ON MINIMUM
QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND
OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES
AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN
HIGHER EDUCATION, 2010" is important to decide the controversy
involved in the present case.
3.1.0 The direct recruitment to the posts of Assistant
Professors, Associate Professors and Professors in the
Universities and Colleges shall be on the basis of merit through
all India advertisement and selections by the duly constituted
Selection Committees as per the provisions made under these
Regulations to be incorporated under the Statutes/Ordinances of
the concerned university. The composition of such committees
should be as prescribed by the UGC in these Regulations.
3.2.0 The minimum qualifications required for the post of
Assistant Professors, Associate Professors, Professors,
Principals, Assistant Directors of Physical Education and
Sports, Deputy Directors of Physical Education and Sports,
Directors of Physical Education and Sports, Assistant
Librarians, Deputy Librarians, Librarians will be those as
prescribed by the UGC in these Regulations.
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4.4 ASSISTANT PROFESSOR
i. Good academic record with at least 55% marks (or an
equivalent grade in a point scale wherever grading system is
followed) at the Master's Degree level, in the relevant subject or
an equivalent degree from an Indian/Foreign University.
ii. Besides fulfilling the above qualifications, candidates must
have cleared the National Eligibility Test (NET) for lecturers
conducted by the UGC, CSIR, or similar test accredited by the
UGC. Notwithstanding anything contained in the sub-clauses
(i) and (ii) to this Clause 4.4.2.1, candidates, who are, or have
been awarded Ph. D. Degree in accordance with the University
Grants Commission (Minimum Standards and Procedure for
Award of Ph.D. Degree) Regulations, 2009, shall be exempted
from the requirement of the minimum eligibility condition of
NET/SLET/SET for recruitment and appointment of Assistant
Professor or equivalent positions in Universities / Colleges
/Institutions.
iii. NET/SLET/SET shall also not be required for such Masters
Programmes in disciplines for which NET/SLET/SET is not
conducted.
OR
1. A traditional and a professional artist with highly
commendable professional achievement in the concerned
subject, who should have:
(a) Studied under noted/reputed traditional masters and has
thorough knowledge to explain the subject concerned;
(b) A high grade artist of AIR/TV; and
(c) Ability to explain the logical reasoning of the subject
concerned and adequate knowledge to teach theory with
illustrations in that discipline.
4.6.1. UNIVERSITY DIRECTOR OF PHYSICAL EDUCATION AND
SPORTS
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(i) A Ph.D. in Physical Education.
(ii) Experience of at least ten years as University Deputy or fifteen
years as University Assistant DEs/College (selection grade).
(iii) Participation in at least two national/international
seminars/conferences.
(iv) Consistently good appraisal reports.
(v) Evidence of organizing competitions and conducting coaching
camps of at least two weeks' duration.
(vi) Evidence of having produced good performance teams/athletes
for competitions like state/national/inter-university/combined
university, etc.
7 (d) Director of Physical Education (University):
(i) Post of Director Physical Education in universities shall be in the
Pay Band of Rs. 37400-67000 with AGP of Rs. 10000.
(ii) Post of Director Physical Education (University) shall continue to
be filled through direct recruitment and the existing conditions of
eligibility i.e. the minimum qualification number of years of relevant
experience and other conditions prescribed by the UGC shall continue
to be the eligibility for recruitment.
(iii) Pay of the incumbents shall be fixed at the appropriate stage in
the Pay Band of Rs.37,400 - 67,000/- as per 'fixation formula' of the
Government of India for 6th CPC.
30. The minimum qualification for the post of Director of Physical
Education and sports and minimum qualification of Assistant Professor,
Professor teacher is different.
8.F Age of Superannuation:
(i) In order to meet the situation arising out of shortage of teachers in
universities and other teaching institutions and the consequent vacant
positions therein, the age of superannuation for teachers in Central
Educational Institutions has already been enhanced to sixty five
years vide the Department of Higher Education letter
No.F.No.119/2006-U.II dated 23.3.2007, for those involved in class
room teaching in order to attract eligible persons to the teaching
career and to retain teachers in service for a longer period.
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Consequent on upward revision of the age of superannuation of
teachers, the Central Government has already authorized the Central
Universities, vide Department of Higher Education D.O. letter
No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of
superannuation of Vice- Chancellors of Central Universities from 65
years to 70 years, subject to amendments in the respective statutes,
with the approval of the competent authority (Visitor in the case of
Central Universities).
(ii) Subject to availability of vacant positions and fitness, teachers
shall also be reemployed on contract appointment beyond the age of
sixty five years up to the age of seventy years. Re-employment
beyond the age of superannuation shall, however, be done
selectively, for a limited period of 3 years in the first instance and
then for another further period of 2 years purely on the basis of
merit, experience, area of specialization and peer group review and
only against available vacant positions without affecting selection or
promotion prospects of eligible teachers.
(iii) Whereas the enhancement of the age of superannuation for
teachers engaged in class room teaching is intended to attract
eligible persons to a career in teaching and to meet the shortage of
teachers by: retaining teachers in service for a longer period, and
whereas there is no shortage in the categories of Librarians and
Directors of Physical Education, the increase in the age of
superannuation from the present sixty two years shall not be
available to the categories of Librarians and Directors of Physical
Education.
31. As per aforesaid regulation due to shortage of teachers in universities
and other teaching institutions and to attract eligible persons to the teaching
career and to retain teachers in service for a longer period age of
superannuation is increased from 62 years to 65 years and as there is no
shortage of Director of Physical Education, the increase in the age of
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superannuation from the present sixty two years shall not be available to the
category of Director of Physical Education (petitioner).
32. As per Annexure P/13, Statute No.20 i.e. "Other officers of the
University conditions of service power and duties" referred under Section 18
of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (herein after
referred to as "Adhiniyam, 1973") the Director of Physical Education is
officer of the University. As per Adhiniyam 1973, the appointment of other
officers of the University referred to in Section 12 shall be made in such
manner and the conditions of their services and powers and duties shall be
such as may be prescribed by the Statutes, Ordinances and Regulations. On
the aforesaid basis, the petitioner was appointed to the post of Director of
Physical Education, as per the Committee's recommendation at Serial No. 117
(Annexure P/12), and consequently, the appointment order dated 29.12.1992
(Annexure P/7) was issued. The petitioner is not a teacher as it defined under
Section 3 of the Adhiniyam of 1973 and infact is a Director of Physical
Education and substantive post of petitioner is director of Physical Education,
therefore, he has not been included within the definition of teacher, hence the
question of granting any benefit to the petitioner to continue in service at par
with the teachers does not arise.
33. Perusal of the record reveals that Notification No.1070 dated 24.7.00
(Annexure P/19) and decision of Executive Council Meeting dated 26.2.2010
about designation of petitioner as Professor from the date of appointment has
already been quashed by Hon'ble Governor Office by order dated 4.9.2010
under Section 12 (4) of the Adhiniyam. Thereafter, on the basis of order dated
4.9.2010, University Office annulling quashed/cancel the appointment of
petitioner as Professor by order dated 20.9.2010 and till yet petitioner has not
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challenged order dated 4.9.2010 and order dated 20.9.2010 and in
consequence of order dated 4.9.2010 and 20.9.2010 treating the petitioner as
Director Physical Education has been retired on attaining the age of
superannuation 62 years w.e.f. the evening of 26.1.2020 by order dated
10.1.2020.
34. In light of the aforesaid judgments, facts and grounds, as the petitioner
was appointed on the post of Director, Physical Education, keeping in view
the statutory provisions as contained under the Madhya Pradesh
Vishwavidyalaya Adhiniyam, 1973 and the statute, ordinance framed
thereunder, by no stretch of imagination can be treated as a teacher. Even if
the petitioner has performed all the duties of a teacher, that by itself cannot
confer upon the petitioner the status of a teacher, since the petitioner was
never appointed as such. He is holding the substantive post of Director and
has to retire as a Director not as a Teacher. The writ petition is, therefore,
accordingly dismissed.
(Anand Singh Bahrawat)
Judge
Ahmad
