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Madhya Pradesh High Court · body

2017 DIGILAW 181 (MP)

Ram Nagina Singh v. State of M. P.

2017-02-03

SUBODH ABHYANKAR

body2017
ORDER : Subodh Abhyankar, J. The petitioner before this Court is a retired Librarian, who stood retired vide impugned order dated 30.7.2011 passed by the respondent No.3 whereby the respondent No.3 has held that because the age of superannuation of Librarian is 60 years and the petitioner has continued in service over and above 60 years i.e. from 30.4.2010 hence he is liable to pay the salary which was received by him from May 2010 to 30th June, 2011 which amount comes to Rs.6,93,575/-. The petitioner has also prayed for quashment of order dated 30.7.2011 (Annexure P/5) whereby he is directed to be retired w.e.f. 30.4.2010. 2. The contention of the petitioner is that the respondent No.1/Department of Higher Education earlier fixed the age of superannuation of Librarian as 62 years for those who are working in Government College by circular dated 30.12.1998 and subsequently on 1.1.2000 the Higher Education Department issued a circular (Annexure P/3) mentioning that the private teachers of Government aided private colleges and the non-teaching staff as well as the class IV employees after attaining the superannuation age at par with the Government employees shall not be entitled to Government aid. The petitioner was working in Nehru Smarak Post Graduate College, which is a private but Government aided college and all the benefits provided by the University Grants Commission under Ministry of Human Resource to the Universities and Colleges are provided to the aforesaid college. Thus the contention of the petitioner is that since he was born on 1.5.1950, his date of superannuation would be 1.5.2012 as Librarian treating the age of superannuation as 62 years. In the aforesaid circumstances, the claim of the petitioner is that the order impugned Annexure P/5 and P/6 both dated 30.7.2011 be quashed. By the order Annexure P/5 dated 30.7.2011 the petitioner is directed to retire and as per Annexure P/6 he has been ordered to deposit the amount of salary which he had already received. The petitioner has also relied upon the judgment dated 10.2.2011 of this Court in the case of Bannam Singh Sikarwar v. The State of M.P. & others passed in W.P. No.7599/2010(S) by the Gwalior Bench of this High Court. 3. The petitioner has also relied upon the judgment dated 10.2.2011 of this Court in the case of Bannam Singh Sikarwar v. The State of M.P. & others passed in W.P. No.7599/2010(S) by the Gwalior Bench of this High Court. 3. In the return, the respondents No.3 has submitted that the petitioner is not entitled to claim any benefit of the aforesaid circular but it has been admitted that vide Annexure R3/1 dated 1.1.2000 which is also filed as Annexure P/3, it was intimated to the respondent No.3 that all teaching and non-teaching staff of private aided colleges will have equivalent superannuation age as of the Government colleges employees and vide Annexure R3/2 dated 30.12.2008, it is stated that the superannuation age of the Sports Officer and Librarian has been enhanced from 60 to 62 years and it is also submitted that vide Annexure R3/3 dated 5.7.2011, it is clearly mentioned that the Government circular dated 30.12.2009 is applicable only to the Government Sports Teacher and Librarian and not the Sport Teacher and Librarian of the private colleges. 4. In the return, respondents No.1 and 2 has submitted that the petitioner is not entitled to any relaxation in the age of superannuation and he is not entitled to the extension of age limit as claimed by him. 5. In the additional return, it is further submitted by the respondents No.1 and 2 that the age of superannuation for Librarian was enhanced from 60 to 62 years for the Government colleges only and hence the petitioner, in connivance with the respondent No.3 could not have been permitted to work beyond the said date. It is further submitted by the respondents No.1 and 2 that the issue pertaining to the age of retirement of Professors working in the private colleges has already been decided by this Court in W.P. No. 5616/2010 and other bunch of petitions wherein the Professors working in private colleges had claimed the enhancement of age of retirement from 62 to 65 years at par with the Professors working in the Government Colleges and this Court vide its order dated 29.3.2016 has rejected the claim of the Professors of the Private Colleges. The respondents have also relied upon the judgment rendered by the Apex Court in the case of Radha Kushun v. Union of India, (1997) 9 SCC 239 wherein the Apex Court has held that the employee who serve beyond the age of superannuation is bound in law to refund salary he has received for the said period and he cannot be permitted to retain the same. Thus the respondents have prayed that the petition being devoid of any merits be dismissed. 6. A perusal of the documents on record reveals that the petitioner continued on the post of Librarian even after attaining the age of 60 years not because of any fault on his part but only on account of misinterpretation of circular dated 2.9.1998 issued by the Government, the aforesaid situation has arisen. 7. This fact is also substantiated by the fact that the respondents No.1 and 2 in their return filed in the year 2011 has submitted that the circular dated 2.9.1998 was not applicable to the petitioner and the respondent No.3 has also filed a circular dated 5.7.2011 which is clarificatory in nature wherein it is clarified that the age of superannuation is not extended to the Librarian and Sports Teacher of the Government aided private colleges. The issuance of the aforesaid clarificatory circular means that there was a confusion and ambiguity in the minds of the concerned authorities of the private colleges, which led to the continuation of the service of the petitioner even after attaining the age of 60 years. Thus the judgment relied upon by the respondents No.1 and 2 of this Court as well as the Apex Court is not applicable in the facts and circumstances of the case. In the case of Radha Kushun (supra) the Hon'ble Apex Court has not considered this aspect of the matter that if employees or employers are misled on account of any Government circular regarding the age of superannuation, then what would be the effect. The present case is not a case where the petitioner has not worked on the post, he has worked as Librarian and performed his duties owing to misinterpretation of a circular. 8. The present case is not a case where the petitioner has not worked on the post, he has worked as Librarian and performed his duties owing to misinterpretation of a circular. 8. In the circumstances, so far as the order Annexure P/5 dated 30.7.2011 is concerned whereby the petitioner has been retired, there is no illegality in it and the prayer of the petitioner to quash the same is declined whereas the impugned order Annexure P/6 for recovery dated 30.7.2011 is liable to be quashed. The petition is allowed to the aforesaid extent with no order as to costs.