Osmania University Vs. V. S. Muthurangam & Ors [1997] INSC 569 (8 July
1997)
G. N.
RAY, K. T. THOMAS
ACT:
HEADNOTE:
G. N.
RAY, J.
The
short question involved in these appeals is whether the age of superannuation
of the non-teaching staff of the Osmania University should be raised to 60 years when
the University has fixed the age of superannuation of the teaching staff of the
University at 60 years. As the Osmania University authorities refused to raise
the age of superannuation of the non-teaching staff to 60 years by implementing
the mandate of maintaining uniformity in the conditions of service of all the
salaried staff of the University under Section 38 (I) of the Osmania University
Act, 1959 (hereinafter referred to as the Act), a number of non-teaching staff
of the University moved Andhra Pradesh High Court by filing writ petitions
claiming the age of superannuation at 60 years. Such claim was allowed by
learned Single Judge and by the impugned judgment the Division Bench of the
High Court has also upheld the claim of the writ petitioners that the age of
superannuation of the non teaching staff of the University will also be 60
years.
The
learned Solicitor General, appearing for the Osmania University, has submitted that sub-section (1)
of the Act has two distinct parts. The first part provides that unless
otherwise provided, every salaried officer of the University shall be appointed
under a written contract and the second part of sub-section (1) of Section 38
provides that conditions of service relating to such salaried officers of the
University shall as far as possible, be uniform except in respect of salaries
payable to them.
Mr.
Solicitor General has contended that the University has a large number of
employees both in the teaching and non teaching departments. In each of such
departments, there are different cadres having different pay structure. Since
the employees belong to different cadres discharging different types of duties
and responsibilities, it is inherently not practicable to lay down absolutely
uniform service conditions even other than pay structure for such diverse
cadres of teaching and non teaching staff of the University.
Keeping
in view the felt need of some amount of flexibility in the service conditions
of the various cadres in the teaching and non teaching establishments, in
sub-section (1) of Section 38 of the Act, it has been specifically indicated
that the conditions of service of the employees of the University will be
uniform as far as possible. Such expression clearly indicates that although by
and large service conditions of the employees will be uniform there may be
occasions to have some difference in the conditions of service in order to meet
different exigencies having bearing on the service conditions of the employees.
Mr.
Solicitor General has also contended that age of superannuation is undoubtedly
an important condition of service of an employee. Previously, both the teaching
and non-teaching staff of the University had uniform age of retirement on
attaining 55 years. Such age of superannuation was later on increased to 58
years when the State Government increased the age of superannuation of is
employees because University, in principle, follows the conditions of service
of the employees of the State Government. But in view of the recommendations of
the University Grants Commission in respect of pay structure of various cadres
of the teaching staff of the University e.g. Lecturers, Assistant Professor,
Professor etc. and age of superannuation of such teaching staff of the
University, the University had to implement such recommendations of the
University Grants Commission in respect of its teaching staff. Mr. Solicitor
General has submitted that the recommendations of an august body like
University Grants Commission cannot be stifled and as a matter of fact all the
universities having gracefully accepted such recommendations have implemented
the same. It was recommended by the University Grants Commission that the
normal age of superannuation of a teaching staff would be 60 years. Such
recommendations of the University Grants Commission necessitated for a change
of the age of superannuation of the teaching staff of the University and the
University has implemented the recommendations of age of superannuation by raising
the age of superannuation of its staff. For the large number of non teaching
staff of the University, such raising of the age of superannuation was thought
neither desirable nor practicable.
In
this connection, Mr. Solicitor General has referred to the meaning of "as
far as possible" by referring to Stroud's Judicial Dictionary of Words and
Phrases (4th Edition) Vol.4 p. 2068. It has been indicated that a duty to do a
thing `if possible' means generally `if reasonably possible' in business sense.
Similarly, `as far as possible' has been held to mean `as far as possible
consistently with carrying of the manufacture in question'. It is contended by
the learned Solicitor General that it was never intended that the terms and
conditions of all the employees of the University should be absolutely same.
Precisely, for the said reason, flexibility was introduced by providing the
expression `as far as possible' in Section 38 (1) of the Act. Mr. Solicitor
General has also submitted that since the conditions of the teaching staff of
the University had to be regulated on the basis of the recommendations of the
University Grants Commission, the service conditions of the teaching staff had
been framed differently. But so far as the non teaching staff of the University
is concerned, all such non teaching staff have been treated uniformly. He has
submitted that the fixation of different age of superannuation for the teaching
and non teaching staff is not only legal and within the competence of the
authorities of the University but such action is also not unreasonable or
arbitrary or capricious. He has contended that teaching staff inherently hold
two different types of services.
Therefore,
these two categories of employees are essentially unequal. Hence, by treating
the unequals differently, there has been no violation of Article 14 of the
Constitution. In this connection, Mr. Solicitor General has also referred to a
decision of this court in State of West Bengal and others In the said case, the
superannuation age of 60 years which was available to the teaching staff of the
Government School of the Education Department was not made available to the
Inspecting Staff of the Education Department whose age of superannuation was 58
years. It has been held in the said decision that the teaching staff and the
Inspecting Staff of the Education Department are distinct and independent
services and even if on occasions transfers from one service to the other have
been permitted, the Inspecting Staff of the Education Department holding a
different service cannot claim parity with the teaching staff in the matter of
age of superannuation.
Mr.
Solicitor General has submitted that the High Court has not appreciated the
true import of `as far as possible'.
The
High Court has proceeded on the footing that unless it is impossible to
implement, the conditions of service of he employees for both the teaching and
non teaching establishments must be made the same because of the mandate under
Section 38 (1) of the Act. Mr. Solicitor General has submitted that such
reading of the High Court of the expression `as far as possible' is contrary to
the accepted meaning of the said expression. The University is competent to fix
different age of superannuation for its employees in respect of two distinctly
different categories of employees, namely, teaching staff and non teaching
staff, if for good reason, the University feels that a different age of
superannuation is required to be introduced for a distinctly different group of
employees. Mr. Solicitor General has submitted that University on its own, did
not take steps to treat the teaching staff favorably by increasing the age of
superannuation of the teaching staff but such decision has to be taken in view
of the recommendations of the University Grants Commission. The University has
also followed the accepted policy of the University to maintain the service
conditions of its employees in the non teaching department at par with the
government employees of the State Government. In the aforesaid circumstances,
the impugned decision of the High Court in directing that the non teaching
staff of the University would also retire at the age of 60 years cannot be
sustained and such judgment should, therefore, be set aside.
Mr. Subba
Rao, learned counsel appearing for the private respondents who are the writ
petitions before the High Court, has, however, disputed the contentions made by
learned Solicitor General. Mr. Subba Rao has submitted that Section 38 of the
Act clearly lays down that the conditions of service of all salaried employees
of the University should be the same `as far as possible' even after noticing
that the nature of duties of a large number of employees of the University in
both teaching and non teaching establishments are likely to be different and
the employees in both the establishments also belong to different cadres.
According
to Mr. Subba Rao, Section 38 (1) of the Act indicates that if not otherwise
absolutely impracticable or impossible, the University must maintain uniformity
on the service conditions of all its employees whether such employees belong to
the teaching staff or non teaching staff. In the instant case, there is no
impracticability in bringing uniformity in the age of superannuation of the
teaching and non teaching staff of the University. There may be justification
of the University to increase the age of superannuation of the teaching staff
because of the recommendations of the University Grants Commission, but such
change in the age of superannuation of the teaching staff can easily be effected
in respect of the non teaching staff of the University, there is no room to
contend that corresponding change of the age of superannuation of the employees
of the non teaching staff is neither practicable nor possible. Mr. Subba Rao
has submitted that a number of Universities in the State of Andhra Pradesh, age of superannuation of the non
teaching staff is 60 years even though the age of superannuation of the
government employees is 58 years. In this connection, Mr. Subba Rao has
referred to provisions of the Andhra University Act, 1925. Under Section 35 A
of the Andhra University Act, the State Government shall have power to make
regulations regarding the classification, methods of recruitment, conditions of
service, pay and allowances and discipline and conduct of the members of
teaching and non teaching staff of the affiliated colleges of the University.
But even though the Government has the power to regulate the conditions of
service of the teaching and non teaching staff of the colleges, the government
has allowed a different age of superannuation for the teaching and non teaching
staff of the University and has not fixed the age of superannuation of the non
teaching staff at 58 years on the footing that the age of superannuation of the
government employees in the State of Andhra Pradesh is 58 years. Therefore, the
plea of the University that University is obliged to fix the same age of
superannuation of the non teaching staff as available to the government
employees of the State Government and for the said reason the age of
superannuation of the non teaching staff cannot be raised to 60 years even
though the age of superannuation of the teaching staff has been raised to 60
year in order to implement the recommendations of the University Grants Commission,
cannot be sustained. Mr. Subba Rao has submitted that the raising of the
superannuation age of the non teaching staff to 60 years for bringing
uniformity in the superannuation age of both teaching and non teaching staff of
the University is neither impracticable nor unreasonable or undesirable.
Therefore, no interference with the impugned order of the High Court is called
for in these appeals.
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 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.
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
he employees of the State Government. Because there is no such statutory
compulsion to maintain the age of superannuation of the teaching staff at par
with government employees, the University has increased the age of
superannuation of its teaching staff. Hence, University can easily raise the
age of superannuation of the non teaching staff for teaching staff for bringing
a parity in the service conditions of the salaried staff of the University by
fulfilling the mandate under Section 38 (1) of the Act. The age of
superannuation of the employees of some of the Universities in the State of Andhra Pradesh is different to that of the
employees of the State Government of Andhra Pradesh. It has been rightly
contended by Mr. Subba Rao that although the State Government itself has
authority to regulate the conditions of service of the employees of the Andhra Pradesh University, the State Government has fixed he
age of superannuation of the employees of the said University differently.
Therefore, it cannot be contended that it is either undesirable or
impracticable to bring uniformity in the age of superannuation of the teaching
and non teaching staff of the Osmania University. Hence, the decision of the High
Court that when the age of the teaching staff of the University has been
increased to 60 years the age of superannuation of the non teaching staff
should also be changed in the similar manner in order to bring parity in the
service conditions of the salaried staff of the University in obedience of the
mandate under Section 38 (1) of the Act, is justified. We, therefore, do not
find any reason to interfere with the impugned decision of the High Court.
These appeals, therefore, fail and are dismissed without any order as to costs.
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