State
Of Madhya Pradesh Vs. Hari Datt Sharma [1992] INSC
225 (4 November 1992)
[LALIT
MOHAN SHARMA, S. MOHAN AND N. VENKATACHALA,
JJ.]
ACT:
Civil Services
:
Madhya Pradesh State Fundamental Rules.
F.R.56,
Sub-Rule (1-a) and M.P. Shaskiya (Adhiwarshkiya Adhiniyam) 1987-Retirement
age-Superintendent Deaf Mute and Blind School-Whether `teaching post'-Duties of
supervisory nature-Held respondent rightly retired at 58 years as post was
non-teaching post.
HEAD NOTE:
The
respondent in the appeal after due selection by the State Public Service
Commission was appointed in 1965 as a Superintendent in a Deaf Mute and Blind School. He was thereafter promoted and posted as Deputy Director,
and in 1989 he was further promoted to the rank of Joint Director in the Social
Welfare Department. He completed the age of 58 years in January, 1991 when
according to the decision of the appellant he had to retire. According to the
Rules - FR 56, Sub-Rule (1-a) - the age of retirement in the department was 58
years excepting for teachers who were to continue in service till 60.
The
respondent assailed the order of retirement before the State Administrative
Tribunal relying upon the Explanation to the Rule which allowed his claim to
continue in service upto the age of 60 years and held that he cannot be retired
at 58 years.
In the
State's appeal to this Court, it was contended that the post of Superintendent
in Deaf Mute and Blind School to which the respondent was initially appointed
in 1965 was not a `teaching post' and he could not therefore claim the benefit
of the Explanation to the Rule.
Allowing
the appeal, this Court,
HELD
:1. The parties to the appeal have referred to and relied upon the
advertisement No. 9/1965 issued by the State Public Service Commission inviting
applications for appointment to the posts of Superintendent Deaf Mute and Blind School. Paragraph 3 thereof mentions the duties attached to the
post, and when examined closely, indicate that they were supervisory in nature
and not teaching. The Explanation to the Rule therefore does not come to the
aid of the respondent and he was therefore rightly retired on 31.1.1992.
[354-G; 355-D]
2. The
Original Application filed by the respondent before the State Administrative
Tribunal is therefore dismissed. In case the respondent was paid for performing
any duty after the date of his retirement, he shall not be asked to refund the
same. [355-E, F]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 4733 of 1992.
From
the Judgment and Order dated 28.2.1992 of the Madhya Pradesh State
Administrative Tribunal, Gwalior in Original Application No. 2932 of
1991.
Sakesh
Kumar and S.K. Agnihotri for the Appellant. Vivek Gambhir and S.K. Gambhir for
the Respondent.
The
Judgment of the Court was delivered by SHARMA, J. 1. By the impugned order the
Madhya Pradesh State Administrative Tribunal has allowed the claim of the
respondent to continue in service up to the age of 60 years and has held that
he cannot be retired at 58 only. We have heard the learned counsel for the
parties. Special leave is granted.
2. The
respondent was holding the post of Deputy Director when he was promoted as
Joint Director, Social Welfare Department in 1989. He completed the age of 58
years in January, 1991 when according to the decision of the appellant he had
to retire. According to the Rules the age of retirement in the department is 58
years excepting for teachers who are to continue in service till 60. It is not
disputed that the posts of Deputy Director and Joint Director are not teaching
posts and the respondent cannot take advantage of the higher age of retirement
on that account. However, the respondent relies upon the Explanation to the
Rule which is in the following terms :
"Explanation:
For purpose of this sub-Rule "Teacher" means a Government Servant, by
whatever designation called, appointed for the purpose of teaching in an
educational institution run by the Government including technical or medical
educational institution in accordance with the recruitment rules applicable in
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
Collegiate/Technical/Medical Educational Service".
His
case is that since initially he was appointed for the purpose of teaching in an
educational institution run by the Government, he is entitled to continue in
service upto the age of 60 although later he was holding a non-teaching post.
At this stage it will be relevant to mention that the condition that a person
claiming the benefit of the Explanation had to be engaged in a teaching post
for not less than 20 years, has been struck down as ultra vires and this part
of the Explanation, therefore, does not come in the way of the respondent.
3. On
behalf of the appellant it has been contended that post of the Superintendent
in a Deaf Mute and Blind School in which the respondent was initially appointed in 1965 was
not a teaching post and he, therefore, cannot claim any benefit of this
Explanation. The result of the case is thus dependent upon the issue as to
whether the post of Superintendent in Deaf Mute and Blind School is a teaching post or not.
4. The
relevant document which has been referred to and relied upon by both sides is
the advertisement No. 9/1965 issued by the Public Service Commission, Madhya
Pradesh inviting applications for appointment to the posts of Superintendent
Deaf Mute and Blind School. The duties are mentioned in paragraph 3 of the advertisement
to the following effect :- "Duties - (i) To undertake planning and organisation
of the institution for education, vocational training, rehabilitation and
recreation of children, (ii) To undertake case- wise in respect of every child
of the institution with a view to ascertaining the personality make- up,
aptitudes and interest, socio- economic background and intelligence, (iii) To
apply educational tests, prepare syllabus, organise - specialised methods of
education and vocational training of children and to organise examination, (iv)
To take steps for the after care and rehabilitation of children, (v) To
supervise the general maintenance of the children including the general health,
recreation, discipline etc. and to meet the special needs of the children, (vi)
To supervise and control staff and undertake other administrative duties and
(vii) Any other work that may be assigned to him by Government or his superior
officers."
5. We
have examined the provisions closely and are of the view that the duties were
supervisory in nature and not teaching. Accordingly, we hold that the
Explanation referred to above does not come to the aid of the respondent and he
was, therefore, rightly retired on 31.1.1992.
6. In
the result the appeal is allowed, the impugned judgment is set aside and the
Original Application filed by the respondent before the State Administrative
Tribunal is dismissed. The parties will bear their own costs. We, however, make
it clear that in case the respondent was paid for performing any duty after the
dated of his retirement in pursuance of the impugned order he shall not be
asked to refund the same.
Appeal
allowed.
Back