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Andhra High Court · body

2012 DIGILAW 1039 (AP)

G. N. Murthy v. Kakatiya University

2012-10-18

NOOTY RAMAMOHANA RAO

body2012
Judgment The writ petitioners, who are all non-teaching staff members, have all retired from the service of the 1st respondent – Kakatiya University on attaining the age of superannuation of 58 years on various dates. However, they seek a writ of mandamus to direct the respondent – University to treat the petitioners to have continued in service of the respondent University till they attained the age of 60 years and on that basis accord all consequential benefits including payment of salary and allowances as also terminal benefits, in accordance with law declared by the Supreme Court in the judgment rendered in CA No. 1107-08/1990 and Civil Appeal No. 641 of 1991. The writ petitioners submit that they were initially recruited to the service of the Osmania University at Hyderabad. At that time, the Post-Graduate Centre at Warangal was not only affiliated, but was also under the direct administrative control of the Osmania University. But, subsequently, by the Kakatiya University Act, Act 44/1976, the Post Graduate Centre at Warangal has been constituted as a University. In accordance with sub-section (2) of Section 46 of the said Act, the entire establishment of the Post Graduate Centre at Warangal stood transferred to the newly constituted Kakatiya University. That is how the writ petitioners have come to function as non-teaching staff members of the 1st respondent – Kakatiya University ever since it came to be so constituted. Sub-section (3) of Section 46 of Kakatiya University Act accorded protection to the former Osmania University Employees, enablishing them to continue to hold the office or serve the newly constituted University on the same terms and conditions of employment, same tenure, rights and privileges as to pension and gratuity which were prevailing at the time of their transfer to Kakatiya University. When the age of superannuation of non-teaching staff members of the Osmania University was fixed as 58 years, while that of the teachers of the Osmania University was fixed at 60 years, the said issue has been raised in a series of writ petitions instituted by the aggrieved parties in this court. Ultimately, the said lis was carried to Supreme Court by way of Civil Appeal No. 1107-08/1990. Ultimately, the said lis was carried to Supreme Court by way of Civil Appeal No. 1107-08/1990. These Civil Appeals have been decided by the Supreme Court by a judgment dated 8.7.1997, (which was since reported in OsmaniaUniversity v. V.S.Muthrangam ( AIR 1997 SC 2758 ) wherein the Supreme Court, found that apart from different scales of pay provided for each of the posts in the hierarchy of service in both teaching and non-teaching departments, the nature of service and performance of duties of the two are distinct and different. Therefore, there is an inherent difference in between both the streams viz., teaching and non-teaching staff of the same University. However, the Supreme Court went on to add that the University is under an obligation to maintain uniformity in the conditions of service of its employees as far as possible and that in that case, the University has not taken any decision that it is not practicable to maintain parity in the age of superannuation of both teaching and non-teaching staff. However, it was recognized by the Supreme Court that there is no compulsion under law that the University is bound to maintain the same age of superannuation for teaching and non-teaching staff as is available amongst in teaching and non-teaching staff of government educational institutions. In those set of circumstances, the Civil Appeals preferred by the Osmania University have been dismissed and the view expressed by the Division Bench of the Andhra Pradesh High Court that the non-teaching staff are also entitled for parity in the conditions of service to the extent of uniformity with teaching staff is upheld. As was already noticed supra, this judgment gave rise to the present writ petition. Sri P.R.Prasad, learned counsel for the writ petitioners would submit that the State Legislature has enacted the A.P. Universities Act, 1991, Act No.4/1991 replacing the earlier statutes by which each of the respective Universities have been constituted viz., Andhra University Act, Osmania University Act, Sri Venkateswara University Act and sub-section (1) of Section 39 of the Universities Act, 1991, dealt with the conditions of service and it provided that every salaried officer and teacher of the University shall be appointed under a written contract and the conditions of service relating to them shall as far as possible be uniform except in respect of salaries payable to them. Therefore, the learned counsel for the writ petitioner Sri P.R.Prasad would submit that the contents of sub-section (1) of Section 39 of the 1991 Act are in para materia with that of Section 38 of the Osmania Universities Act, which fell for consideration of the Supreme Court in V.S.Muthurangam’scase (supra 1). Sri P.R.Prasad, learned counsel would submit that it is for the University to maintain uniform conditions of service excepting with regard to the salaries payable between teaching and non-teaching staff, as far as possible. Unless, it is shown by the University that it is not possible to continue the non-teaching staff also in service till they attain the age of 60 years on par with teaching staff, the University shall not be permitted or allowed to retire the non-teaching staff at the age of 58 years. No such decision has been taken by the 1st respondent – University in the instant case. Hence, in accordance with the judgment rendered by the Supreme Court in Muthurangam’scase (supra 1), the petitioners are all entitled to be treated to have continued in service till they attain the age of 60 years and be accorded all necessary benefits flowing therefrom including payment of salary and allowances and also terminal benefits. The respondent – University has filed a detailed counter affidavit in the matter. It is pointed out that after the Supreme Court has rendered its judgment in Muthurangam’scase (supra 1), the Executive Council of the Osmania University has taken a decision to fix the age of superannuation of non-teaching staff also at 60 years and on that basis accorded all consequential benefits on the non-teaching employees of the Osmania University, whereas the Kakatiya University has not taken any such decision and hence the decision of the Executive Council of the Osmania University cannot be binding on the 1st respondent – University which is an altogether different and separate entity. It was also pointed out that in terms of Section 19(8) of the Kakatiya University Act, it is the Executive Council of the Kakatiya University which has the power to fix the emoluments and other conditions of service of its employees. It was also pointed out that in terms of Section 19(8) of the Kakatiya University Act, it is the Executive Council of the Kakatiya University which has the power to fix the emoluments and other conditions of service of its employees. By virtue of the provisions of the said Act, all the petitioners herein were treated to have been transferred to the control of the 1st respondent University and therefore they are bound by the conditions of service as are notified and fixed by the 1st respondent University. In the absence of any such decision by the Executive Council of the 1st respondent University, it is not open to the petitioners to insist that the age of superannuation of the non-teaching staff of the 1st respondent should stand at parity to the age of superannuation of the teaching faculty. It was further pointed out that the 1st respondent University following the instructions issued by the Government of Andhra Pradesh, has given notices individually while fixing the age of superannuation of its nonteaching staff and invited them to submit their pension papers for finalization of their pension and other terminal benefits as at the time of their actual retirement. Accordingly, all the petitioners have accepted the retirement notices and submitted the pension papers in the prescribed format and got relieved from the service of the University on the respective dates of their retirements and further they were paid their pension and other retirement benefits such as gratuity, GPF amounts, leave salary etc., and all such monies were received without any demur or protest. It was further pointed out that even while circulating a provisional seniority list as early as on 11.10.1983, the respective dates of superannuation/retirement of the petitioners has been mentioned therein, duly based on the provisions contained in the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984. Neither the petitioners nor for that matter any other non-teaching employee of the 1st respondent – University had raised an objection with respect to their respective dates of superannuation. It was also pointed out that incidentally the said Circular dated 11.10.1983 was issued under the signature of the 15th petitioner who was working then as a Deputy Registrar in the Administrative Branch of the University. It was also pointed out that incidentally the said Circular dated 11.10.1983 was issued under the signature of the 15th petitioner who was working then as a Deputy Registrar in the Administrative Branch of the University. Hence, it is sought to be pointed out that the claim of the petitioners in this writ petition is hopelessly belated one and a settled issue is sought to be unsettled by them after long years after their retirement. It is also pointed out that the 1st petitioner has retired from service on 30.6.1994 while the 2nd petitioner retired on 28.2.1993 and the 3rd petitioner retired from service on 30.4.1986 and the 4th petitioner retired on 31.3.1989 and the 5th petitioner retired on 31.10.1989 and the 6th petitioner retired on 31.1.1996 while the 7th petitioner retired on 29.2.1996 and so on and so forth which clearly reveals that the petitioners have retired long years prior to the institution of the writ petition in the year 1999 and they are seeking to rake up a stale claim. Learned counsel appearing for the 1st respondent University would further contend that that after the State Legislature has enacted Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1994, the 1st respondent – Kakatiya University, has preferred to follow the provisions of the said Act by fixing the age of superannuation of its non-teaching employees at 58 years. It was also contended by the learned counsel for the 1st respondent that in a batch of cases viz., WP No. 1601 of 2003 and Batch, a learned single Judge of this Court, Justice N.V.Ramana, has taken a view that the benefit of the ratio in Muthurangam’scase (supra 1) cannot be extended in favour of the petitioners and therefore commends for acceptance of the said judgment. The question that requires to be adjudicated is whether different age of superannuation can be prescribed for different categories of posts under the same employer or not? The 1st respondent – University has not disputed that the age of superannuation for its teaching staff is 60 years while the age of superannuation for the non-teaching staff is 58 years. It is also further not in doubt that members of the teaching staff form into an altogether different class by themselves. The conditions of their recruitment vastly vary with that of the conditions of recruitment of non-teaching staff. It is also further not in doubt that members of the teaching staff form into an altogether different class by themselves. The conditions of their recruitment vastly vary with that of the conditions of recruitment of non-teaching staff. Most of the conditions of service of the teaching staff members are regulated or essentially guided by the standards and norms prescribed by the University Grants Commission for securing uniformity across all the Universities in the country. Thus, the distinguishing and differentiating features which are peculiar to the teaching staff members of the Universities stand alone and apart from the non-teaching staff members working under the same University. These distinguishing features render the separate classification wholly reasonable and appropriate. It is therefore not unusual for a more favourable age of superannuation to be prescribed for the teaching staff members of the University in comparison to the non-teaching staff members. Further, even amongst the non-teaching staff members, it is not an uncommon feature to prescribe a more favourable age of superannuation for those employees who are working in last grade services, taking into consideration the nature of duties performed by them and the low emoluments paid to them. Hence, I am of the opinion that prescribing a different age of superannuation for teaching staff and non-teaching staff working under the same 1st respondent University does not offend Article 14 of our Constitution. [See All India Sainik Schools Employees’ Association v. Defence Minister-cum-Chairman Board of Governors and others – 1989 Supp (1) SCC 205 : AIR 1989 SC 88 , Life Insurance Corporation of India and others v. S.S.Srivastava and Others – AIR 1987 SC 1527, B.S.Yadav and Another v. Chief Manager, Central Bank of India and Others – AIR 1987 SC 1706 : (1987) 3 SCC 120 ]. The classification in between them is intrinsically sound and based upon justifiable factors. Sri Deepak Bhattacherji with a view to neutralize the contention of the petitioners has repeatedly urged that the petitioners who were all originally employees of the Osmania University, prior to constitution of the Kakatiya University, were regulated by the age of superannuation fixed by the said Osmania University which stood at 58 years. At the time of their absorption into Kakatiya University, they were assured of the conditions of service prevailing earlier in Osmania University would be continued by the Kakatiya University. At the time of their absorption into Kakatiya University, they were assured of the conditions of service prevailing earlier in Osmania University would be continued by the Kakatiya University. It is therefore only appropriate that the non-teaching staff of the Kakatiya University should have their age of superannuation at 58 years, but not at 60 years. Sri Deepak Bhattacherji has also urged that the Osmania University has taken a decision to raise the age of superannuation of its non-teaching staff to be 60 years whereas Kakatiya University has not taken any such decision. Therefore, the age of superannuation for the non-teaching staff members of the Kakatiya University should be 58 years only. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Supreme Court in PrithipalSingh v. Satpal Singh (Dead) Through its LRs (2010) 2 SCC 15 ). Sri Deepak Bhattacherji, learned Standing Counsel for the Osmania University has placed reliance upon the judgments of the Supreme Court in Raj Soni v. Air Officer in charge Administration ( AIR 1990 SC 1305 )and RajbirSingh Dalal (Dr.) v. Chaudhari Devilal University, Sirsa and another (2008) 9 SCC 284 . It is true that in PrithipalSingh’s case (supra 3), where a provision contained under the Maharashtra Rent Control Act and the provision contained under the Delhi Rent Control Act are found para materia, the Supreme Court has pointed out that the principle behind the decision rendered in PrakashH.Jain v. Marie Fernandes (2003) 8 SCC 431 ) casearising out of Maharashtra Rent Control Act should hold good even in a case arising out of Delhi Rent Control Act. Sri P.R.Prasad, therefore would contend that the provision contained under Section 38(1) of the Osmania University Act and 39(1) of A.P. Universities Act are one and the same and hence the dicta laid down in OsmaniaUniversity v. V.S.Muthrangam (supra 1) should hold good even in the instant case. As was already noticed, the Supreme Court in V.S.Muthrangam’scase pointed out the distinguishing features between members of the teaching staff and the non-teaching staff in the following words: “8. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned Solicitor General and also the learned counsel appearing for the respondents, it appears to us that teaching and non teaching staff of the University are distinct and separate categories. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned Solicitor General and also the learned counsel appearing for the respondents, it appears to us that teaching and non teaching staff of the University are distinct and separate categories. The nature of duties to be performed by the teaching and non teaching staff of the University are also different. Therefore, apart from different scales of pay in the hierarchy of the service in both teaching and non teaching departments, it may be held that the nature of service of the two distinct and different departments namely the teaching and non teaching departments, is inherently different. Mr. Solicitor General is justified in his contention that Section 38(1) of the Act recognizes flexibility and the expression 'as far as possible' inheres in it an inbuilt flexibility. There was impelling necessity for the University to change the age of superannuation of the teaching staff in order to give effect to the recommendations of the University Grants Commission. The University, in our view, will be justified within the ambit of Section 38(1) to introduce different conditions of service for different categories of employees if such different conditions of service for different categories of employees if such different conditions become necessary for the exigency of the administration and if it is otherwise impracticable to bring uniformity in the conditions of service of different categories of its employees. For the same reason, it is permissible for the University to introduce the age of superannuation differently for different categories of the employees, if introduction of such different age of superannuation can be justified on the anvil of felt need of the administration. But if uniform conditions of service for teaching and non teaching staff of the University is not otherwise impracticable, the University is under an obligation to maintain such uniformity because of the mandate of Section 38 (1) of the Act. In the instant case, we do not find that it is not at all practicable for the University to maintain the parity in the age of superannuation of both teaching and non teaching staff. In the instant case, we do not find that it is not at all practicable for the University to maintain the parity in the age of superannuation of both teaching and non teaching staff. There is no compulsion under the law that University is bound to maintain the same age of superannuation of its teaching and non teaching staff as is available to the employees of the State Government……” But, however, it had upheld the view taken by the Division Bench of this Court as the University had not taken any decision to maintain the differentiation between the two. In the instant case, the Kakatiya University has all through maintained 58 years as the age of superannuation for the non-teaching staff while for its teaching staff it was 60 years. Therefore, the action of the respondent – University cannot be faulted. Learned counsel for the respondent – University is right in pointing out that a decision of a court becomes a precedent if it lays down a principle of law supported by reasons and the directions issued in a decision based upon a fact situation prevailing in that case do not become a binding precedent. He has rightly placed reliance upon the judgment rendered by the Supreme Court in RajbirSingh Dalal (Dr.) v. Chaudhari Devilal University, Sirsa and another (supra 4). For the aforesaid reasons, I do not find any justifiable reason to interfere with the decision of the 1st respondent – University. There is also one other reason for my declining to grant the relief prayed for in this case. The petitioners have all retired from service long years back upon attaining the age of superannuation of 58 years. They have all accepted the terminal benefits paid by the 1st respondent University without any demur or protest. After a long lapse of time thereafter, they have insisted this writ petition. The delay defeats even a just cause. The 1st respondent University is not a profit making commercial enterprise. Imparting education is the primary objective of it. It also carries on research and other academic services. But, it does not earn any surplus amount than to enable it meet its usual expenditure. Therefore, relief prayed for by the petitioners, if granted would cause a grave dent to the precarious financial balance of the University and jeopardize its interests. Imparting education is the primary objective of it. It also carries on research and other academic services. But, it does not earn any surplus amount than to enable it meet its usual expenditure. Therefore, relief prayed for by the petitioners, if granted would cause a grave dent to the precarious financial balance of the University and jeopardize its interests. Therefore, keeping the funding position of the 1st respondent University in view, for the latches on the part of the writ petitioners also, this writ petition deserves to be dismissed. Accordingly, it is dismissed. No costs.