Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 965 (MP)

Pratibha Rajgopal v. State of M. P.

2010-09-22

SANJAY YADAV

body2010
ORDER Sanjay Yadav, J. 1. Being a teacher having an entitlement to serve till she attains 62 years of age, the Petitioner by way of present writ petition under Article 226 of the Constitution of India calls in question the legality of the action of Respondents in retiring her on superannuation at the age of 60 years. 2. Relevant facts briefly are that the Petitioner was initially appointed as Lecturer, Political Science, on ad-hoc basis in Home Science College, Jabalpur, by order dated 04-07-1981. Later on vide order dated 31-05-1987 the services of the Petitioner were regularized as Assistant Professor in accordance with the M.P. Regularization of Ad-hoc Appointment Rules, 1986. 3. The Petitioner while she was working with the Higher Education Department, her services were borrowed by the General Administration Department, pursuant whereof vide order dated 05-03-1994, she was sent on deputation to Academy of Administration i.e. R. S. B. P. Naronha Academy of Administration in the capacity as Professor. By order dated 17-07-2003, the Petitioner was directed to discharge her duties as Director in Madhya Pradesh Mahila Sansadhan Kendra, established within the Academy, in addition to Reader. The Petitioner's services were thereafter absorbed with the Academy vide order dated 01-03-2004 with effect from 01-07-2003. Consequent whereof the services of the Petitioner came to be governed by Madhya Pradesh Academy of Administration Service (Gazetted) Recruitment Rules, 1997, the set of rules framed in pursuance to the proviso to Article 309 of the Constitution of India. 4. The case of the Petitioner is that, though governed by the Rules of 1997, whereunder Rule 15, the age of superannuation being 60 years; however, in pursuance to the Madhya Pradesh Fundamental Rule 56 which incorporated the age of superannuation of member belonging to State Civil Service vide Madhya Pradesh Adhivarshiki Ayu Adhiniyam, 1967 and as amended from time to time, whereby, the age of superannuation of teacher being 62 years, the Petitioner has a right to continue till the age of 62 years and cannot be retired at the age of 60 years. 5. Thus the short controversy involved in the present petition is as to whether Petitioner, a teacher, can be deprived of an enhanced age of retirement because of her being absorbed in Academy of Administration under General Administration Department. 6. 5. Thus the short controversy involved in the present petition is as to whether Petitioner, a teacher, can be deprived of an enhanced age of retirement because of her being absorbed in Academy of Administration under General Administration Department. 6. The Respondents have vehemently opposed the contention put forth on behalf of the Petitioner, contending inter-alia that though initially appointed as a teacher, the Petitioner was later on sent to the Academy of Administration on deputation wherein she was absorbed. It is urged that on her absorption in the Academy the services were governed by the Rules of 1997; Rule 15 whereof provides, the age of superannuation being 60 years. It is contended that the Petitioner being governed by specific rules, the same would prevail over the stipulation in Fundamental Rules which as per Respondents are general in nature. It is further contended that even in the Academy, the Petitioner was not engaged in teaching as could have been benefited from 'explanation' appended to Fundamental Rule 56 requiring that a person initially appointed as a teacher but posted or otherwise appointed to the administrative post must have to his credit teaching experience of 20 years, i.e. must be engaged in teaching for 20 years (active years). It is contended that the Petitioner since did not qualify the relevant provision has no right to insist for an extended age of superannuation. Learned Govt. Advocate led this Court through documents and record pertaining to the distribution of work to bring home the submission that the nature of work which the Petitioner was required to do in the Academy was not teaching but administrative in nature. 7. Controversy as raised can be appreciated in the backdrop of relevant Rules. 8. After the absorption in the Academy of Administration (Gazetted) Services, the Petitioner is governed by Rules framed as per proviso to Article 309 of the Constitution of India. These rules are Madhya Pradesh Academy of Administration Services (Gazetted) Recruitment Rules, 1997. Rule 15 of the Rules stipulates the age for retirement for the faculty members. It provides for: 15. Retirement: Age for retirement for the officers on deputation in the Academy will be same as applied in their parent departments but for faculty members appointed/ absorbed in the Academy, the age for retirement will be 60 years. 9. There could have been no difficulty in accepting the contention put forth by learned Govt. It provides for: 15. Retirement: Age for retirement for the officers on deputation in the Academy will be same as applied in their parent departments but for faculty members appointed/ absorbed in the Academy, the age for retirement will be 60 years. 9. There could have been no difficulty in accepting the contention put forth by learned Govt. Advocate, that, the Petitioner having been absorbed in service of Academy of Administration and as per Rule 15 of the Rule of 1997, the Petitioner stand superannuated on attaining the age of 60 years. 10. But, it would not be so if Fundamental Rule 56 is taken into consideration which is on the basis of a State legislation, viz., Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Adhiniyam, 1967, which is an Act to provide for the age of superannuation of government servants in the State of Madhya Pradesh and for certain matters connected therewith. 11. That vide M.P. Act No. 21 of 1998 with effect from 31-05-1998 and M.P. Act No. 13 of 1999 with effect from 18-09-1998, for Rule 56 of the Fundamental Rules applicable to the State of Madhya Pradesh was substituted as follows: 56. Age of superannuation. - (1) Subject to the provisions of Sub-rule (2) every Government Servant other than a Government Teacher and a Class IV Government Servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Government Servant 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 sixty years. (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 sixty two years: (Emphasis supplied) 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 sixty two years. Explanation.- For the purpose of this sub-rule "Teacher" means a Government servant by whatever designation called, appointed for the purpose of teaching in Government Educational Institution including technical or medical educational 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 twenty years provided he holds a lien on a post in the concerned School/Collegiate/Technical/Medical education service. (Emphasis supplied) (1-b) Subject to the provisions of Sub-rule (2), every Class IV Government Servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty two years: Provided that a Class IV Government Servant 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 sixty two years. (2) (a) A Government Servant may, in the public interest, be retired at any time after he has completed 20 years qualifying service, or he attains the age of fifty years whichever is earlier, without assigning any reason by giving him a notice in writing. (b) the period of such notice shall be three months: Provided that such Government servant may be retired forthwith and on such retirement the Government Servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before his retirement or, as the case may be, for the period by which such notice falls short of three months. 12. With the aforementioned amendment by virtue of an Adhiniyam, the retirement age of every government teacher got enhanced to 62 years. 13. Contention of the learned Govt. Advocate that the specific Rules which govern the service condition over the Fundamental Rules, is being mentioned to be negatived. 14. The reasons are not far fetched. Article 309 of the Constitution of India stipulates: 309. 13. Contention of the learned Govt. Advocate that the specific Rules which govern the service condition over the Fundamental Rules, is being mentioned to be negatived. 14. The reasons are not far fetched. Article 309 of the Constitution of India stipulates: 309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act. 15. Thus, it is the appropriate legislature which is empowered to enact to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with affairs of Union or the State as the case may be. That fixation of age of superannuation is a condition of service needs no elucidation. For reference please see Bishun Narain v. State of U. P.: AIR 1965 SC 1567 (paragraphs 4, 6 & 7), and State of A.P. v. S.K. Mohinuddin: AIR 1994 SC 1474 (paragraph 6). 16. Proviso to Article 309 empowers the President or the Governor of State, as the case may be, to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature. 17. In the case at hand there exists an enactment providing the age of superannuation of Govt. Servants in the State of Madhya Pradesh in the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Adhiniyam, 1967. 17. In the case at hand there exists an enactment providing the age of superannuation of Govt. Servants in the State of Madhya Pradesh in the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Adhiniyam, 1967. And the Rules of 1997 also exist to govern the service condition of the Petitioner including the age of superannuation. However, since there exists an enactment by the State Legislature governing the age of superannuation, the same shall have an overriding effect on Rule 15 of the Rules of 1997. 18. In this context regard can be had of the judgment by Supreme Court in Union of India v. Soma Sundaram Vishvanath: (1989) 1 SCC 175 ; wherein their Lordships were please to observe: 6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails. 19. It therefore leaves no iota of doubt that the provisions contained in the Adhiniyam 1967 and the amendment effected thereunder from time to time will have an overriding effect on the Rule 15 of the Rules of 1997 framed by virtue of powers conferred by the proviso to Article 309 of the Constitution of India. 20. The next question which emanates from the submission of learned Govt. 20. The next question which emanates from the submission of learned Govt. Advocate that even if the provisions contained under the Adhiniyam of 1967 governing the age of superannuation of an employee of State Government is applicable in case of the Petitioner; however, unless the Petitioner fulfills the conditions stipulated in "Explanation" of Sub-rule (1-a) of Fundamental Rules 1956, she is not entitled for enhanced age of superannuation. 21. The "Explanation" stipulates that for the purpose of this sub-rule "Teacher" means a Government servant by whatever designation called, appointed for the purpose of teaching in Government Educational Institution including technical or medical educational 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 twenty years provided he holds a lien on a post in the concerned School/Collegiate/Technical/Medical education service. 22. A close reading of the explanation would make it clear that the same is attracted where in case a government servant, irrespective of the designation, is appointed for the purpose of teaching and shall also include a teacher who is appointed to an administrative post by promotion or otherwise and who has been engaged in teaching for not less than twenty years. 23. Though the aforesaid explanation is of no consequence in the present case because the Petitioner is a government teacher initially appointed with Higher Education Department and later absorbed in the same capacity in Academy of Administration as a Member of Academy of Administration (Gazetted) Service. However, for the sake of completeness when the facts of the present case are adjudged on the touchstone of the 'explanation' pressed in service by the learned Government Advocate, it is observed that the Petitioner qualifies the same. That is to say having been initially appointed as teacher, Political Science (on ad-hoc basis) on 04-07-1981, she was regularized as Assistant Professor by order dated 31-03-1987 and continued to service in the Higher Education Department till she is absorbed in the same capacity in the Academy of Administration with effect from 01-07-2003. Even after her absorption she continues as a teacher, engaged in teaching. Even after her absorption she continues as a teacher, engaged in teaching. The contention on behalf of the State that she was given the additional charge to Chair on administrative post, will not, in the considered opinion of this Court, bereft her of the experience she gains when engaged in teaching. In this context regard can be had of the judgment of Supreme Court in Asim Kumar Bose v. Union of India: AIR 1983 SC 509 , wherein in the context as to whether a Specialist Grade-Ill in a teaching hospital belonging to the Central Health Service is eligible for appointment or promotion as a Professor or Associate Professor of the concerned speciality their Lordships were please to observe: 29. It is necessary to emphasize that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation. As the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the Appellant while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College. 24. In view of above analysis it is held that the Petitioner, a teacher, cannot be made to superannuate at the age of 60 years and is entitled to serve till 62 years of age. 25. In the result petition is allowed to the extent above.