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Madhya Pradesh High Court · body

2009 DIGILAW 342 (MP)

R S MAURYA v. STATE OF M P

2009-03-18

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) IN this batch of writ petitions, the singular controversy that emerges for consideration is whether a Librarian appointed in a Govt. or Non Govt. educational institution, be it College or school, is entitled to be superannuated on attaining the age of 62 years. ( 2. ) THE facts of the case, in our considered opinion, need not be stated in detail except expositing that all the petitioners were appointed as Librarians and there had been recommendations from time to time by the State Govt. for the equal pay scale of librarian to that of a sports teacher and further there had been recommendation to treat them at par for other service conditions. ( 3. ) ORDINARILY, we would have adverted to the said documents but Mr. Kumaresh Pathak, learned Dy. Advocate General has emphasized on the amendment brought into with effect from 7. 8. 98 by virtue of Section 2 of M. P. Shashkiya Sewak (Adhivarshiki Ayu) Adhiniyam, 1967. After the amendment, fundamental Rule 56 (1) (1-a) reads as under:- "56 (1) (1-a): Subject to the provisions of sub rule (2) every government teacher shall retire from service on the afternoon of the last day of the month in which he attains the age of 62 years. Provided- that a Government teacher whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 62 years. Explanation: For the purpose of sub Rule a teacher means a government servant by whatever designation called, appointed for the purpose of teaching any Government educational Institution including Technical or medical Institutions, in accordance with the recruitment rules applicable to such appointment and shall also include the teacher who is appointed to an administrative post by promotion or otherwise and who has been engaged in teaching for not less than 20 years provided he holds a lien on a post in the concerned school/collegiate/technical/medical education service. (emphasis supplied) ( 4. ) IT is urged by Mr. Rajendra Tiwari, learned senior counsel along with Mr. T. K. Khadka, Mr. R. B. Dubey, Mr. Sanjay Agrawal, mr. P. K. Asati, Mr. (emphasis supplied) ( 4. ) IT is urged by Mr. Rajendra Tiwari, learned senior counsel along with Mr. T. K. Khadka, Mr. R. B. Dubey, Mr. Sanjay Agrawal, mr. P. K. Asati, Mr. Saurabh Sunder appearing for the petitioners that the University Grants Commission on many an occasion had recommended to the State Government to confer all the benefits that are available to teachers and, therefore, they should be classified and treated as teachers. ( 5. ) MR. Dharmendra Sharma, learned Assistant Solicitor general for Union of India appearing for the University Grants commission fairly stated that U. G. C. had only recommended and it was open to the State Govt. to frame the rules. ( 6. ) IN view of the aforesaid factual scenario, the analysis by us has to be restricted with regard to the facet whether by virtue of coming into force of the rules, a Librarian can be regarded as a teacher. The rule which we have reproduced, defines a teacher. Under the definition a teacher means a government servant by whatever designation called, appointed for the purpose of teaching any Government Educational Institution including technical or Medical Institutions, in accordance with the recruitment rules applicable to such appointment and shall also include the teacher who is appointed to an Administrative post by promotion or otherwise and who has been engaged in teaching for not less than 20 years provided he holds a lien on a post in the concerned School/collegiate/technical/medical Education service. If the definition is understood in proper perspective, we are inclined to think that it only covers a teacher who is appointed for the purpose of teaching in a Government educational Institution which includes Technical or Medical institutions. ( 7. ) WE have been apprised at the bar that there is a set of rules, namely, M. P. Educational Service (Collegiate Branch)Recruitment Rules, 1990. On a scrutiny of said rules, it appears that the post of Librarian is reflected in Schedule III. On a perusal of the same, it does not reflect that he is a teacher or assigned any kind of teaching. ( 8. ) IN this context, Mr. Kumaresh Pathak has commended us to the decision rendered in case of State of Madhya Pradesh Vs. Kshetra Pal Sharma 1992 Madhya Pradesh Service Times 719. On a perusal of the same, it does not reflect that he is a teacher or assigned any kind of teaching. ( 8. ) IN this context, Mr. Kumaresh Pathak has commended us to the decision rendered in case of State of Madhya Pradesh Vs. Kshetra Pal Sharma 1992 Madhya Pradesh Service Times 719. In the said case, the Apex Court has observed as under:- "having accepted the appointment to the post of librarian and having taken benefit of higher pay scale till the date of his superannuation, he cannot be allowed to turn round and claim benefit of service conditions as a teacher. We are, therefore, of the opinion that he was rightly retired at the age of 58 years on 30th April, 1986 and the Tribunal was wrong in concluding that he was entitled to the benefit of the service condition of teacher. We are, therefore of the view that the Tribunal committed an error in thinking that the applicant was working as a librarian in his capacity as a teacher. We, therefore allow this appeal set aside the order of the Tribunal and dismiss the original application which has given rise to this appeal. " Submission of Mr. Rajendra Tiwari, learned senior counsel and the other counsel appearing for the petitioners is that said decision cannot be treated as a precedent under Article 141 of the Constitution of India for the purpose of holding that a librarian is not a Teacher. ( 9. ) LEARNED counsel for the petitioners have also commended us to the decision rendered in P. S. Ramamohana Rao Vs. A. P. Agricultural University and another AIR 1997 SC 3433 wherein it has been held as under:- "10. From the aforesaid affidavit it is clear that a physical Director has multifarious duties. He not only arranges games and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanys the students team when they go for the inter-University tournaments. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. It is well known that different games and sports have different rules and practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper manner. Further, in our view, it is inherent in the duties of a Physical Director that he imparts to the students various skills and techniques of these games and sports. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these games. Thereafter, their Lordships proceed to state as follows:- 20. We are unable to agree. It may be that the physical Director gives his guidance or teaching to the students only in the evenings after the regular classes are over. It may also be that the University has not prescribed in writing any theoretical and practical classes for the students so far as physical education is concerned. But as pointed by us earlier, among various duties of the Physical Director, expressly or otherwise, are included the duty to teach the skills of various games as well as their rules and practices. The said duties bring him clearly within the main part of the definition as a teacher. We, therefore, do not accept the contention raised in the additional counter affidavit of the University. 21. For the aforesaid reasons the appeal is allowed and judgment of the High Court is set aside and it is declared that appellant was entitled to continue in service till he completed 60 years of age. Now that he has retired he is entitled to the emoluments payable to him for the remaining period of the service up to 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. The appeal is allowed and disposed of accordingly. " ( 10. His retiral benefits shall also be computed on the basis that his age of retirement was 60 years. The appeal is allowed and disposed of accordingly. " ( 10. ) ON a careful reading of the aforesaid decision and the analysis made by their Lordships, we are of the considered view that a Sports Teacher stands on a different footing than a librarian. Nothing has been brought on record that Librarian carries on any kind of teaching. Once the definition has been brought into existence, Librarians do not fit into the compartment of definition even in the remotest sense. It will be extremely difficult to confer the benefit of teacher on them as far as date of retirement is concerned. It is worth noting that the State Govt. issued a circular on 30th December, 2008. The english translation of the said circular would be as under:- "1. The State Government has decided to increase the age of superannuation from the age of 60 years to 62 years for Sports Officer /librarian working in all the Government Colleges. In pursuant thereto the age of superannuation of Sports Officer/ librarian has increased from the age of 60 years to 62 years. 2. The same is confirmed by order no. KR/2010/08/rules/four dated 8. 12. 2008. 3. The aforesaid order will come into effect from the date of order. " If the language of the said circular is understood, it can be stated without any fear of contradiction that no status has been conferred on the librarians treating them as teachers inasmuch as they belong to a different class altogether and the State govt. has conferred them the benefit by a circular which is within its domain but it cannot be construed that they have been given the benefit because they are equated with teachers. ( 11. ) IN view of the aforesaid analysis, we do not perceive any merit in these writ petitions and accordingly they stand dismissed without any order as to costs.