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Madhya Pradesh High Court · body

2013 DIGILAW 17 (MP)

Yugul Kishore Sharma v. State of M. P.

2013-01-02

K.K.TRIVEDI

body2013
JUDGMENT : This petition under Article 226 of the Constitution of India has been filed challenging the order dated 6-3-2009 passed by the respondents retiring the petitioner at the age of 60 years on the grounds that the petitioner was working on the post of Junior Instructor in the Women Weaving Centre, Rewa, and thus, is termed to be a teacher. By an amendment made in the M.P. Shaskiya Sevak (Ardhvarshiki Ayu) Adhiniyam, 1967 (hereinafter referred to as "the Act" for brevity), the amendment in the age of superannuation for the teachers serving in the Govt. Institutions has been made enhancing such age to 62 years, by amending Fundamental Rule 56. It is contended that the petitioner though is appointed on the post of Instructor, but in fact is performing the teaching job, therefore, he could not have been superannuated at the age of 60 years. According to the petitioner, the amendment and the explanation attached to the Amending Act specifically prescribes that those who are appointed on teaching post, have to retire on attaining the age of 62 years. It is contended that the similar issue was raised before this Court in some what similar circumstances by one Annapurna Prasad Shukla by filing Writ Petition No. 2289/2003 and the said writ petition has been allowed interpreting the provisions of the Amending Act and treating that the persons like Lab Technician and Assistant Librarian are to be treated as teachers within the definition of the amending provisions and, therefore, are entitled to continue on the post upto the age of 62 years. It is further contended that when the age of superannuation of the teachers was enhanced from 58 years to 60 years way back in the year 1987, the persons working on the post of Instructor have approached the High Court of Madhya Pradesh by filing the writ petition which subsequently was transferred to the M.P. Administrative Tribunal and was registered as T.A. No. 747/1988, Ku. Chandra Kakker Vs. State of M.P., and was allowed vide order dated 14-11-1991. In terms of the said provision and in terms of the explanation appended to the Act of 1998, it would be abundantly clear that Instructors appointed in the institute to impart training are also to be treated as Teacher and, therefore, they are to be granted the benefit of extension of services upto the age of 62 years. In terms of the said provision and in terms of the explanation appended to the Act of 1998, it would be abundantly clear that Instructors appointed in the institute to impart training are also to be treated as Teacher and, therefore, they are to be granted the benefit of extension of services upto the age of 62 years. Thus, it is contended that the order impugned passed in respect of the petitioner is bad in law. 2. This Court has entertained the writ petition granted an interim order in favour of the petitioner on 15-6-2009 and till the date of final hearing of the writ petition, in fact the petitioner has completed the age of 62 years. It is contended that since the petitioner has worked on the post, he would be entitled to the payment of salary of the post and the question involved in the present writ petition has become only an academic question which need not to be adjudicated in this petition as after the working, the petitioner would be entitled to the salary of the post. 3. However, refuting such submissions made by the petitioner, a return has been filed. Placing full reliance in the amending provisions of the Act aforesaid as notified vide amending Act of 1998, it has been contended that the amendment would become applicable only in cases of those for whom specific provisions are made in the amending Act. It is contended that every Government teacher has been specifically mentioned in the amended provisions and for the purposes of interpretation of the word Teacher' an explanation has been appended to the amending Act. Since the explanation is the part of the amending Act, unless a person is appointed in the educational institutions which are covered under the said explanation, he or she cannot be designated as Teacher. Therefore, it is contended that even -if the petitioner has performed the duty as Instructor for more than 20 years, he would not be entitled to grant of benefit of enhancement of age of superannuation by the amending Act. However, it is contended that since the petitioner had worked on the post because of an interim stay granted by this Court, ultimately, on attaining the age of superannuation as per the amending Act, the petitioner stood retired on 30-6-2011. However, it is contended that since the petitioner had worked on the post because of an interim stay granted by this Court, ultimately, on attaining the age of superannuation as per the amending Act, the petitioner stood retired on 30-6-2011. It is refuted by the respondents that since the petitioner was allowed to continue to work on the post, he would be entitled to the salary. It is contended that in terms of the provisions of the amending Act, since the petitioner is not one, who can be termed as teacher, the writ petition is misconceived and the same is liable to be dismissed. 4. Heard learned Counsel for the parties at length and perused the record minutely. 5. It is not in dispute that the petitioner has continued to work on the post on the strength of an interim order passed by this Court and has ultimately retired on attaining the age of 62 years. However, it has to be seen whether the petitioner was entitled to continue on the post of Instructor treating him as a Teacher working in an educational Institution, so as to make the provisions of amending Act applicable in his case? This is primarily important because only on the strength of interim stay granted by this Court, the petitioner has continued on the post after the actual age of superannuation, he may not be entitled to the salary for the period he remained working on the post after the age of superannuation unless the said period is treated as period spent on re-employment, therefore, the petition is not to be disposed of only because of the fact that the petitioner has now completed the age of superannuation even according to the amending Act. The question is thus not academic purely as is contended. 6. Now, the scheme of amendment made in the Act is required to be seen and it has to be interpreted that the petitioner can be treated as teacher or not. The explanation appended to the Act prescribing the age of superannuation for the teachers upto the age of 62 years is required to be examined at length. For the said purposes, the entire provisions of Section 2 of the amending Act is required to be reproduced where the amendment has been prescribed. The amending provisions of the Act read thus :- "2. For the said purposes, the entire provisions of Section 2 of the amending Act is required to be reproduced where the amendment has been prescribed. The amending provisions of the Act read thus :- "2. In Section 2 of the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Adhiniyam, 1967 (No. 29 of 1967), after sub-rule (1) of Rule 56, of the Fundamental Rules, the following sub-rule shall be inserted, namely:- '(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 : 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." 7. A plain reading of the aforesaid provisions will make it clear that the word every Govt. Teacher is specifically mentioned in sub-rule (1-a) of the amending provisions. The proviso is not relevant for the purposes of interpretation. The word 'Teacher' is defined in explanation appended to the aforesaid Rule. The teacher means a Government servant by whatever designation called appointed for the purposes of teaching in Govt. "Educational Institution". Certain educational institutions have been inserted in the same for the purposes of example such as technical or medical educational institutions. The word 'Teacher' is defined in explanation appended to the aforesaid Rule. The teacher means a Government servant by whatever designation called appointed for the purposes of teaching in Govt. "Educational Institution". Certain educational institutions have been inserted in the same for the purposes of example such as technical or medical educational institutions. However, the word "Educational Institution" has not been defined completely nor it is said in the said explanation that the institutions only where the class-room teaching in primary, middle or secondary education or even the collegiate level education is imparted, would be termed to be educational institution, therefore, the word "Educational Institution" is required to be interpreted and it has to be seen whether the institution where the petitioner was engaged for imparting instructions, could be termed as an educational institution or not. This is required to be done only because persons like petitioner even working on the post of Laboratory Assistant in the colleges were termed to be Teachers by this Court. In the case of Ku. Chandra Kakker (supra), the Tribunal has interpreted the word 'Teacher' and has included the Instructor, appointed for tailoring and cutting classes as Teacher within the definition given in the amending Act. This being so, this has to be examined whether again the same analogy is to be made applicable and again it has to be treated that the centre where the petitioner was working was in fact an educational institution established by the State Government or not. This particular aspect was not considered either by the Tribunal or by this Court while dealing with such a situation. Obviously, the Laboratory Assistant and Technicians were appointed in the colleges and schools, therefore, it was not necessary for this Court to interpret the word "Educational Institution". 8. The educational institutions are not defined in the amending Act nor their status is clear from the statutory provisions of the Rules, therefore, the literary meaning of the educational institution is required to be seen. The definition of educational institution according to the literary meaning means a pre-primary, primary or secondary school owned or managed or recognised by any local authority, State or Central Government or any college affiliated to or established or managed by any University established by law. However, the Apex Court in the case of S. Azeez Basha and another Vs. The definition of educational institution according to the literary meaning means a pre-primary, primary or secondary school owned or managed or recognised by any local authority, State or Central Government or any college affiliated to or established or managed by any University established by law. However, the Apex Court in the case of S. Azeez Basha and another Vs. Union of India, AIR 1968 SC 662 , while interpreting the provisions of Article 30 (1) has categorically said that the word "Educational Institutions" are of very wider import and would include a University also. The Noise Pollution Regulation and Control (Rules), 2000 defines the word "Educational Institution". As per the definition given in Rule 2 (e) of the Rule aforesaid, the educational institution means a school, seminary, college, university, professional academies, training institutes or other educational establishment, not necessarily a chartered institution and includes not only buildings, but also all grounds necessary for the accomplishment of the full scope of educational instruction, including those things essential to mental, moral and physical development. However, such a wider definition of word "Educational Institution" is given under the Rules only for the purposes of making the Noise Pollution Regulation applicable. 9. While making the provisions for constitution of the Panchayat in Part IX of the Constitution of India, specific provisions are made under Article 243-G of the Constitution of India, prescribing the powers, authority and responsibilities of Panchayat. One of the subjects entrusting such responsibilities to the Panchayat is for preparation of plans for economic development and social justice. In Schedule XI of the Constitution, the education is included as a responsibility of the Panchayats and social justice which includes primary and secondary school education. In the Entry 18 of Schedule XI, technical training and vocational education are included as the responsibility of the Panchayat. Thus, if an institution is opened for the purpose of imparting vocational education, it has to be treated as an educational institution. In the case of, Aditanar Educational Institution Vs. Additional Commissioner of Income Tax, AIR 1997 SC 1436 , even 'a Society established for the purposes of establishing an educational college, was termed as an educational institution by the Apex Court for the purposes of assessment of the said Society for Income Tax. In the case of, Aditanar Educational Institution Vs. Additional Commissioner of Income Tax, AIR 1997 SC 1436 , even 'a Society established for the purposes of establishing an educational college, was termed as an educational institution by the Apex Court for the purposes of assessment of the said Society for Income Tax. This Court has come accrossed such a situation and has looked into the provisions of the amending Act and has held that the Weaving Master appointed in a prison cannot be termed to be a teacher appointed in a teaching institution as the prison is differently defined and the welfare scheme run within the prison for the purposes of providing some vocational training to the prisoners, cannot be termed to be a teaching institution. [Please refer S.A.M. Ansari Vs. State of M.P., 2007(4) M.P.H.T. 147 ]. The distinction is to be seen. If a Scheme is started by the State Government for the purposes of economic upliftment of the weaker section and the vocational trainings are prescribed in the said institution whether such an institution can be termed as educational institution or not? This particular aspect is required to be seen in view of the law laid down by the Apex Court in the aforementioned cases. The Apex Court in various cases though has specifically dealt with the admissions, the systems of regulating the fees, but has normally dealt with all such cases in respect of the educational institutions like schools and colleges and has not considered whether a vocational training institute started by the State Government under the Scheme of prescribing education to the weaker section can be termed as an educational institution or not. However, from the narration of the fact and the provisions of the Constitution of India specially the responsibility of the State to make Schemes for upliftment of the weaker section, if a vocational training centre is opened prescribing vocational training to the members of the weaker section so as to make them self sufficient to make earning, it has to be held that the said institution or centres started by the State Government are covered as educational institutions. Prescribing training or providing such elementary information to make a member of the society to become self sufficient is in fact a part of imparting education. Prescribing training or providing such elementary information to make a member of the society to become self sufficient is in fact a part of imparting education. It is more so important looking to the growth of population in the country and, therefore, all such institutions established by the State Government for prescribing the training are to be treated as educational institutions. One more reason of giving such a finding is that in the amending Act, the State Government itself has included the institution established for the purposes of providing technical education. All industrial training institutions are to be treated as educational institutions. Similarly, the training centres started by the respondents under the Women and Child Development Department are also to be treated as educational institutions. 10. This Court has already held that instructors are to be treated as teachers. The Tribunal has also equated the instructors as teachers, therefore, the petitioner has to be treated as a teacher and, thus, would be entitled to continue on the post till he actually attained the age of 62 years. Since the petitioner has already worked upto the age of 62 years, in view of the aforesaid finding, he would be entitled to payment of salary of the post till he worked on the said post. If the salary has not been paid to the petitioner, now the amount be paid to him within a period of two months from the date of order. The petitioner would also be entitled to all benefits of services including, counting the period of two years of service, for the purposes of fixation of pension. 11. The writ petition stands allowed to the extent indicated herein above. However, there shall be no order as to costs.