A. Venkata Ratnam v. Nagarjuna University, Nagarjunanagar, Guntur Dist.
2003-03-07
GODA RAGHURAM
body2003
DigiLaw.ai
GODA RAGHURAM, J. ( 1 ) THE petitioner joined Andhra University as a Supervisor on 23-6-1967 after obtaining the academic qualification of a Diploma in civil Engineering. On appointment he was posted at the Andhra University Post graduate Centre, Nallapadu, Guntur where he reported for duty on 23-6-1967. He continued to work at the P. G. Centre. Subsequently, by the Nagarjuna University act, 1976 (A. P. Act No. 43 of 1976) (for short the 1976 Act ), the Post Graduate Centre, nallapadu, Guntur was upgraded as the nagarjuna University and all the employees serving in the Post Graduate Centre, nallapadu, Guntur became the employees of the Nagarjuna University. This Act came into force with effect from 17-8-1976. The petitioner was promoted as a Deputy executive Engineer with effect from 21-3-1980. While so, by the impugned memorandum dt. 27-12-2000 of the 1st respondent, the petitioner was intimated that he would retire from service on attaining the age of superannuation on 30-6-2001. Contending that he is entitled to continue in service until he attains the age of 60 years i. e. , upto 30-6-2003 and seeking appropriate relief in this behalf, the writ petition is filed. ( 2 ) RELIEF is claimed in this writ petition on the basis of a plurality of contentions. Firstly, it is asserted, having regard to the provisions of Section 39 (1) of A. P. Universities Act, 1991 (for short the 1991 Act ), the conditions of service of every salaried officer and teacher of University governed by the provisions of the 1991 Act shall as far as be uniform. The contention, in specie, is that as the age of superannuation of teaching staff of the universities in the State is 60 years and as there is no demonstrable difficulty or impracticability in having a uniform age of superannuation for non-teaching staff also on par with the age of superannuation of teaching staff, the non-teaching staff to which category the petitioner belongs are also entitled to superannuate at the age of 60 years. On behalf of the petitioner reliance is placed on the judgment of the Supreme court in Osmania University, Hyderabad v. Muthurangam which had approved the decision of a Division Bench of this Court reported in Osmania University, Hyderabad v. Muthurangam.
On behalf of the petitioner reliance is placed on the judgment of the Supreme court in Osmania University, Hyderabad v. Muthurangam which had approved the decision of a Division Bench of this Court reported in Osmania University, Hyderabad v. Muthurangam. The decision of the Division bench of this Court as affirmed by the supreme Court was in respect of non- teaching employees of the 1st respondent university where on an interpretation of the provisions of Section 38 (1) of the Osmania universities Act, 1959 which are ipsissima verba the provisions of Section 39 (1) of the 1991 Act, the Supreme Court while holding that for demonstrable reasons, Universities are at liberty to have different conditions of service for teaching and non-teaching employees, nevertheless held that as the respondent University could not establish any germane reasons for having different ages of superannuation for teaching and non-teaching employees, such classification amounts to hostile discrimination and the decision of the Division Bench of this Court ordaining the University to have a uniform age for both teaching and non-teaching employees suffers from no vice or infirmity warranting interference by the Supreme court. ( 3 ) SRI T. S. Harinath, learned Standing Counsel for the respondents submits that there are statutory provisions and factual circumstances which were not brought to the notice of the Supreme Court and had those been brought to its notice, the supreme Court may not have affirmed the decision of the Division Bench of this Court which had ordered maintenance of identical age of superannuation for teaching and non- teaching employees. In the considered view of this Court, the litigative trajectory in respect of the non-teaching employees of the osmania University nor the decision either of this Court or of the Supreme Court rendered in the dispute relating to the age of superannuation of non-teaching employees of Osmania University or for that matter the andhra University is relevant in the factual circumstances of this writ petition. Therefore for the reasons set out in the succeeding paragraphs, I am not inclined to adjudicate upon the possible consequences of the ratio of the Division Bench of this Court or of the supreme Court referred to above. ( 4 ) THE petitioner inherited a unique factual package, which operates within a significant statutory environment.
Therefore for the reasons set out in the succeeding paragraphs, I am not inclined to adjudicate upon the possible consequences of the ratio of the Division Bench of this Court or of the supreme Court referred to above. ( 4 ) THE petitioner inherited a unique factual package, which operates within a significant statutory environment. As already stated, he was working in the Post graduate Centre, Nallapadu, Guntur which p. G. centre was divested from the jurisdiction of Andhra University and vested in Nagarjuna University under the provisions of Section 45 (3) of the 1976 Act with effect from 17-8-1976. Analaysis of the provisions of the 1976 act to the extent relevant to this writ petition, ( 5 ) SECTION 2 (20) defines the University as meaning the Nagarjuna University as set out under the Act. Section 45 reads as under,"45 (1) With effect on and from the date of commencement of this Act, the provisions of the Andhra Pradesh university Acts (Supplementary) Act, 1976 in so far as they relate to the Postgraduate centre at Guntur shall stand repealed. (2) With effect on and from the commencement of this Act- (i) the control and management of the said Post-Graduate Centre; (ii) all the properties, assets and liabilities and the rights and obligations of the Post-Graduate centre in relation thereto; and (iii) all obligations of the Government in relation to the said Post-Graduate centre shall stand transferred to vest in, or devolve upon the university. (3) Every person, who has been, immediately before the commencement of this Act, serving in or attached to the said Post-Graduate centre, shall become, as from such commencement, an employee of the university and shall hold his office or service therein by the same tenure, on the same remuneration and upon the same terms and conditions and same rights and privileges as to pension and gratuity and other like matters as he would have held the same under the said Post-Graduate Centre before the said commencement and shall continue to do so unless and until his employment in the University is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the University.
" ( 6 ) ON a true and fair construction of Section 45 of the 1976 Act, it is apparent that every employee who was, before commencement of the 1976 Act i. e. before 17-8-1976, serving in or attached to the Post graduate Centre, Guntur shall become, from the date of such commencement, an employee of the Nagarjuna University. Further his tenure, remuneration and rights and privileges as to pension and gratuity and other like matters, as were available to him under the Post Graduate Centre before the commencement of this Act, are protected subject to an enabling power conferred on the Nagarjuna University to duly alter such employee s remuneration, terms and conditions of employment or till his employment in the Nagarjuna University is duly terminated. On an application of the grammatical principles of construction to the phraseology employed by the legislative presents in Section 45 (3), the interpretation and conclusion is irresistible that the terms and conditions of the specified areas of employment including the tenure of employment of an employee of the Post graduate Centre, Nallapadu, Guntur, whose services stand transferred to the control and jurisdiction of Nagarjuna university under the Provisions of the 1976 act, shall be preserved as they were in the post Graduate Centre, Guntur as on the date of commencement of this Act subject to exercise of the power by the Nagarjuna university duly altering such protected conditions of service specifically in respect of such an employee. It would necessarily follow that a general regime of dynamic administrative reform addressed to the generality of Nagarjuna University employees and which regime neither expressly nor by necessary implication specifically signal inclusion of this class of migrant employees of Andhra University would be inapplicable to such migrant class of employees. ( 7 ) IT is the synoptic submission of the Counsel for the respective parties that the age of superannuation as ordained by extant provisions of Andhra University regulations prior to the date of commencement of the 1976 Act and applicable to the employees of the Post graduate Centre, Guntur, was 60 years. ( 8 ) IT would appear that the non-teaching employees of the Andhra University wanted to avail the benefits of the Revised Pension rules, 1980, as are applicable to the government employees of the State of andhra Pradesh.
( 8 ) IT would appear that the non-teaching employees of the Andhra University wanted to avail the benefits of the Revised Pension rules, 1980, as are applicable to the government employees of the State of andhra Pradesh. When the Andhra university administration approached the government beseeching it to extend the 1980 Revised Pension Rules to its employees, the Government of Andhra pradesh informed the Andhra University that it would extend the benefits provided the age of superannuation of non-teaching employees is restricted to 58 years. Consequent on the agreement by the employees of Andhra University to avail the benefits of the 1980 revised pension rules and subject to the conditionalities ordained by the State Government, the Andhra university in the year 1989 brought in a resolution of the Executive Council and had amended its relevant statutes reducing the age of superannuation of non-teaching employees from 60 to 58. ( 9 ) IN the 1st respondent Nagarjuna University also since 1976 when the university came into being, there were dynamic developments in its legal architecture relating to the age of superannuation. In the year 1983, the State of Andhra Pradesh by G. O. Ms. No. 36 dt. 8-2-1983 reduced the age of superannuation of its employees from 58 to 55 years. Following suit, the 1st respondent university by proceedings dt. 28-2-1983 of its syndicate reduced the age of superannuation of its non-teaching employees from 58 to 55 years. During 1985 the State Government increased the age of superannuation from 55 to 58. The nagarjuna University also followed suit. ( 10 ) BY the order in G. O. Ms. No. 386 dt. 27-9-1988, the Government of Andhra pradesh, pursuant to representations in this regard from various Universities, extended the benefit of the Revised Pension Rules, 1980 to non-teaching and Class IV employees of the specified Universities whose age of superannuation is 58 years in respect of superior services and 60 years in respect of inferior services with effect from the dates indicated against each University. S. No. 2 is the Nagarjuna University and the extension of benefit of the revised pension rules to the employees of this university is from 7-3-1979. The Executive Council of the nagarjuna University at its meeting held on 5-11-2002 resolved to fix the age of superannuation of non-teaching employees.
S. No. 2 is the Nagarjuna University and the extension of benefit of the revised pension rules to the employees of this university is from 7-3-1979. The Executive Council of the nagarjuna University at its meeting held on 5-11-2002 resolved to fix the age of superannuation of non-teaching employees. The resolution reads as under,"in supersession of all the resolutions of the Executive Council including the resolution No. 15, dated 7-2-2002 on the subject of fixation of age of superannuation of Non-teaching employees (except class IV employees) of the University, it is resolved to fix the age of superannuation of the Nonteaching employees of the University (except class IV employees) of all categories at 58 years only for all the employees irrespective of the date of appointment and whether they joined in Andhra University originally or in nagarjuna University and whether they gave options or not regarding the age of superannuation. " ( 11 ) SRI T. S. Harinath, learned Standing Counsel for the University would strenuously contend that such age of superannuation for all non-teaching employees other than Class IV employees of the Nagarjuna University had been reduced to 55 years in the year 1983 and restored to 58 years in the year 1985 and similarly the age of superannuation of non-teaching employees, except Class IV employees, of the Andhra University too was reduced to 58 years since the year 1985. The petitioner herein who is admittedly a non-teaching employee belonging to a category other than class IV category, is entitled to continue till he attains the age of superannuation either as per the extant age of superannuation of his class of employees in the Andhra university or the Nagarjuna University, is the contention. On behalf of the respondents reliance is placed on the decision of the supreme Court reported in State of M. P. v. R. N. Mishra for the principle that the age of superannuation shall be as per the relevant rule applicable on the date of attaining the age of superannuation. There can be no demur on this general principle urged on behalf of the respondents.
There can be no demur on this general principle urged on behalf of the respondents. This principle is a corollary of the theory that in its evolution from a contractual to a "status" plat-form, the necessary incidence of the evolution is the power inhering in a public employer to alter the conditions of service from time to time having regard to the administrative exigencies and that a public employee is bound by such dynamic changes in the conditions of his service. ( 12 ) THIS general principle is subject to specific factual and legal situations. Where a statutory prescription creates a specific package of service conditions applicable to an employee, such specific statutory conditions would be applicable and recourse cannot be had to a general principle. Having regard to the phraseology employed in Section 45 (3) of the 1976 Act, the petitioner was entitled to certain service benefits, in particular, to the protection of service conditions in respect of the age of superannuation as on the date of vestiture of the Post Graduate Centre, Nallapadu, guntur with the Nagarjuna University i. e. , 17-8-1976. As already recorded hereinabove, it is the admitted position that the age of superannuation applicable to the petitioner on the date of commencement of the 1976 act was 60 years as prescribed by extant instruments of the Andhra University. This court has also concluded earlier in this judgment while interpreting the provisions of Section 45 (3) of the 1976 Act that the nagarjuna University is empowered to alter the tenure, remuneration and terms and conditions of employment of the employees of the Post Graduate Centre who came into the fold of the Nagarjuna University by the 1976 Act, by specific instruments applicable to such employees. The relevant clause of section 45 (3) is to the effect that the employees of Post Graduate Centre, Guntur are protected in the matter of their tenure, terms and conditions, rights and privileges as to pension and gratuity as they were entitled to in the Post Graduate Centre before the commencement of the 1976 Act and an employee is entitled to these benefits until and unless his employment in the university is duly terminated or until his tenure, remuneration or terms and conditions of employment are duly altered by the University.
Having regard to the specific language of Section 45 (3) of the 1976 act, I find no ambiguity in the statutory provisions impregnating an avenue for a creative interpretive role by the judicial branch. It is a settled principle of interpretation that existence of ambiguity is a sine qua non for dynamic interpretation. In the case on hand, I discern no ambiguity in the provisions of Section 45 (3) warranting recourse to what Sri Harinath, learned standing Counsel for the respondents seeks, namely a purposive construction. A purposive or dynamic construction either restrictive or amplificatory of statutory provisions may also appropriate if the Court comes to the conclusion that a statutory provision interpreted on its plain grammatical terms would lead to public mischief. No such public mischief is discernible in the plain language of sec. 45 (3) of 1976 Act or in its consequences, warranting a dynamic construction. ( 13 ) IN the above analysis, the provisions of Section 45 (3) would have to be given effect to on their and fair grammatical construction. So construed, the conclusion is irresistible that the 1st respondent nagarjuna University is enabled to alter the conditions of service of the employees of the post Graduate Centre, Guntur who have come within its administrative control and jurisdictional fold under the provisions of the 1976 Act, by instruments which specifically address themselves to such class of employees. This is not to say that a general change in the terms and conditions of its employees cannot apply to this class of employees but to have that encompassing effect such instruments should expressly or by necessary implication have been intended to extend to the employees of the former Andhra University who came into the fold of the 1976 Act. The resolutions of the 1st respondent, of the year 1983 or 1985, neither expressly nor by necessary and permissible implication specify the date of superannuation so as to make such date of superannuation applicable to the employees of the Nagarjuna University, within the meaning of Section 45 (3 ). The alterations of the terms and conditions of general class of nagarjuna University employees would not extend to the class of employees whose conditions are protected under Section 45 (3) of the 1976 Act. ( 14 ) IT is in recognition of this immunity that the 1st respondent has in its resolution dt.
The alterations of the terms and conditions of general class of nagarjuna University employees would not extend to the class of employees whose conditions are protected under Section 45 (3) of the 1976 Act. ( 14 ) IT is in recognition of this immunity that the 1st respondent has in its resolution dt. 1-11-2002 determined the age of superannuation of non-teaching employees of the University, except IV employees, at 58 years specifically making it applicable even to those who joined in the Andhra university originally . Qua the Executive council s resolution dt. 1-11-2002 and prospective from that date (it is not the contention of the 1st respondent that the executive Council s resolution dt. 1-11-2002 is retrospective), the age of superannuation of the petitioner s class of employees would also be 58 years. Therefore, in view of the general principle that a public employee s tenure is determined on the basis of the age of superannuation that is extant, as reiterated in the judgment of the Supreme court in 1997 (6) SCALE 142 (3 supra), the petitioner is obligated to superannuate with effect from 1-11-2002. As the petitioner herein has not assailed the validity of the executive Council s resolution dt. 1-11-2002 determining the age of superannuation including of former employees of the andhra University at 58 years, the petitioner is required to demit his office with effect from 1-11-2002. ( 15 ) IN view of the provisions of Sec. 45 (3) of the 1976 Act, as analyzed hereinabove, the petitioner belongs to a class of employees who are entitled to protection under sec. 45 (3) of 1976 Act, there being no Rule or regulation or appropriate instrument issued by the 1st respondent determining the age of superannuation of the former Andhra university employees at 58 years, the petitioner in terms of Section 45 (3) of the 1976 Act was but prior to the resolution dated 5-11-2002, entitled to the age of superannuation of 60 years. ( 16 ) IN the circumstances, it is declared that the Memorandum bearing no. NU/estt/nts/e. 2/2000dt. 27-12-2000 of the 1st respondent intimating that the petitioner was required to retire with effect from 30th June, 2001 on attaining the age of superannuation of 58 years is illegal and inoperative. It is further declared that in view of the resolution of the Executive council of the 1st respondent University, dt.
NU/estt/nts/e. 2/2000dt. 27-12-2000 of the 1st respondent intimating that the petitioner was required to retire with effect from 30th June, 2001 on attaining the age of superannuation of 58 years is illegal and inoperative. It is further declared that in view of the resolution of the Executive council of the 1st respondent University, dt. 1-11-2002, the petitioner s age of superannuation is 58 years prospective from 1-11-2002 and it is open to the 1st respondent University to act on that basis. The petitioner shall be entitled to all available benefits under law in accordance with the above declaration. ( 17 ) IT is also contended by Sri T. S. Harinath, learned Standing Counsel for the 1st respondent that as the provisions of the 1976 Act have been repealed by the 1991 Act, the provisions of Section 45 (3) also stand repealed and therefore the petitioner cannot claim any benefit under the said provision. It requires to be noted that clause (i) of sub-section (3) of Section 57 of the 1991 Act saves certain circumstances and positions notwithstanding the repeal of certain Acts specified in Section 57 (1 ). Clause (i) of sub-section (3) of Section 57 reads as under,"the appointment of the officers (other than the Vice-Chancellor), teachers and employees of the University constituted immediately before the commencement of this Act and subsisting immediately before the commencement of this Act shall be deemed to have been made under and for the purposes of this Act, and such officers, teachers and employees shall continue to hold office, subject to the conditions governing the terms of their office or employment. " (emphasis) ( 18 ) ON a true and fair construction of the legislative presents in clause (i) of sub- section (3) of Section 57, it is apparent that the officers, teachers and employees other than the Vice-Chancellor of the Universities constituted immediately before commencement of 1991 Act will hold office subject to the conditions governing the terms of their office or employment. Therefore, the conclusion is irresistible that the existing terms and conditions of employment of officers, teachers and employees of the Universities who have come within the fold of the 1991 Act are protected and preserved under the provisions of 1991 Act till duly altered under the 1991 Act.
Therefore, the conclusion is irresistible that the existing terms and conditions of employment of officers, teachers and employees of the Universities who have come within the fold of the 1991 Act are protected and preserved under the provisions of 1991 Act till duly altered under the 1991 Act. To that extent, it must be held, the provisions of Section 45 (3) of the 1976 act continue to operate as a protective package of the conditions of service of the former employees of the Andhra University working at Post Graduate Centre, Guntur who came within the fold of the Nagarjuna university under the provisions of the 1976 act with effect from 17-8-1976, till appropriate provisions altering such protected service conditions are made under the provisions of 1991 Act. It is not the case of the 1st respondent University and nothing has been brought to the notice of this Court by Sri T. S. Harinath, learned standing Counsel for the 1st respondent that subsequent to 21st January, 1991 (the date of commencement of 1991 Act), the 1st respondent University has engendered any instrument reducing the age of superannuation of the petitioner s class of employees from 60 years to 58 years except the resolution of the Executive Council dt. 1-11-2002. Therefore, the provisions of 1991 Act do not in any way alter the legal architecture to the detriment of the petitioner s right to continue upto 60 years but subject to the operation of the resolution dt. 1-11-2002 of the 1st respondent s executive Council. ( 19 ) THE writ petition is allowed as above. No order as to costs.