P.S. Ramamohana
Rao Vs. A.P. Agricultural University & ANR [1997] INSC 632 (31 July 1997)
SUJATA
V. MAHNOHAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
M.
JAGANNADHA RAO This appeal has been preferred against the judgment of the
Andhra Pradesh High Court in writ Petition No. 12751 of 1989 dated 25-4-1989 by which a Division Bench of the High Court
dismissed the writ petition filed by the appellant.
The
question that falls for consideration in this appeal is whether the appellant
is entitled to be continued in service of the A.P. Agricultural University as Director of Physical Education till he completed 60
years or whether he was liable to superannuate after completion of 58 years ?
The brief facts of the case are as follows :
The
appellant was initially employed as Physical Director in the Bapatia
Agricultural Collage which is a Government collage, w.e.f. 4th August, 1986. The Andhra Pradesh Agricultural
University was formed under Andhra Pradesh Act 24 of 1963 (hereinafter called
the act') and he abovesaid collage stood transferred to the said University by
virtue of Section 43 of the said act w.e.f. 4th May, 1964. The services of the
appellant, therefore, stood transferred to the Agricultural University accordingly and the appellant
continued to work a Physical Director in the said the University. When the
appellant was about to complete 58 years, the respondent University sought to
retire him on the completion of 58 years. The appellant filed a writ petition
in the High Court and initially obtained an order of Stay. By virtue thereof he
continued for sometime as Physical Director beyond 58 years but subsequently
the stay was vacated. According to the appellant the respondent was not right
in contending that the age of superannuation for Physical Directors in the University
is 58 years. He contends that he is entitled to continue till he completed 60
years as he is said a `teacher within the meaning of the said words in Section
2(n) of the Act. Now that the appellant has retired, the purpose of grant of
emoluments for the period after the vacation of the stay and before the
completion of 60 years and also for the purpose of computing his retiral
benefits.
Learned
counsel for the appellant contended by virtue of the definition of teachers in
section 2(n) read along with the material available on record, the appellant
came within the main part of the definition of teacher and that the High Court
was wrong in coming to a contrary conclusion.
According
to him the definition in section 2(n) is and inclusive one and, therefore, must
be interpreted as extending to persons other than those included within the inclusionary
part of the definition. Learned counsel also referred us to Regulations 3 &
33 of the Regulations dated 9.12.1965 prescribed in regard to the conditions of
service of teachers and other employees of the university. Counsel also relied
upon a letter of the Joint Registrar of the University dated 29.7.1976 and the
proceedings of the Education department of the State government dated
29.11.1976 and 20.4.1987 to contend that Physical Director was treated as a
teacher and was not therefore outside the definition of `teacher'. He also
relied upon the additional affidavit filed by the respondent in the Andhra
Pradesh High Court to say that going by the duties of the Physical Director as
set out in the said additional affidavit. He must be deemed to be a `teacher'. On
the above basis. He contended that the age of superannuation is 60 years
applicable to teachers and not 58 years which was applicable to certain other
categories of employees.
On the
other hand, learned counsel for the University contended that Physical director
was not a `teacher' within the meaning of said expression in section 2(n) of
the act and that he could not be continued till he completed 60 years. There
was no regular curriculum on syllabus for physical education and merely because
he was helping the students in sports and games and for participating in
certain competitions, he could not be called a teacher.
For
the purpose of deciding the above issue arising between the parties, it is
necessary to refer to the relevant provisions of the Act and the Regulations.
Sub- clause (n) of sector 2 defines `teacher' as follows :
"teacher"
includes a professor, reader, lecturer or other person appointed or recognised
by the University for the purpose of imparting instruction or conducting and
guiding research or extension programmes, and any person declared by the
statute to be a teacher" The definition does not say what the word
`teacher' means but includes certain categories within the meaning of the said
word.
Regulation
33 (as amended on 27.4.1976) of the Regulations deals with the presumption of
the ape of superannuation and, in so far as it is material, reads as follows :
"(a)
The age of retirement for teachers shall be 60 years provided that it shall be
competent for the appointing authority to review the case of any teacher at any
time after he attains the age of 38 years and retire him, without assigning any
reason, giving three months prior notice or after paying him three months
salary in lieu of such notice.
(b) (i)
The age of retirement of the employees other than those mentioned in Clause (a)
and Class IV employees shall be 38 years provided that the appointing authority
may retire an employee from service in public interest, after giving him at
least three month's notice or at least three month 's salary in lied or such
notice at any time after completing twenty five years of qualifying service or
attaining fifty years of age.
(b)
(ii) "The age of retirement of the Class IV employees shall be 60 years,
provided that the appointing authority may retire an employee from service in
public interest, after giving him atleast 3 month's notice or atleast three
month's salary in lied of such notice at any time after completing twenty five
years of qualifying service or attaining fifty five years of age." From
the above Regulation, it is clear that the age of retirement for `teachers' is
60 years and for other employees it is 58 years while the age of Class IV employees
is 60 years. It is, therefore, clear that if the appellant is a teacher, he
will come under subclause (a) of Regulation 33 and is entitled to be continued
till he completes 60 years. If on the other hand he does not come within the
definition of teacher. He has to retire at the ape of 58 years under clause b (i)
of the above-said Regulation.
Neither
the Act nor the rules & regulations specify the duties and functions of a
Physical Director. We have, therefore, to go by the material available in the
affidavits filed by the parties to decide that question. In the additional
affidavit filed on behalf of the University in the High Court, it is stated in
paragraph 7 as follows :
"I
further submit that the duties of the Physical Directors in this University, in
brief, are as follows:
a) to
arrange Games and Sports daily in the evenings for the students.
b) to
look after the procurement of sports material and the maintenance of the sports
grounds.
c) to
arrange Inter-class and Inter-Collegiate tournaments.
d) to
accompany the student Teams for the Inter-University tournaments.
e) to
guide the students about the rules of the various games and sports." From
the aforesaid affidavit, it is clear that a Physical Director has multifarious
duties. He not only arranges game and sports for the students every evening and
looks after the procurement of sports material and the maintenance of the
grounds out also arranges inter-class and inter-college tournaments and accompany
the students team when they go for the inter-University tournaments. For that
purpose it is one of his important duties to guide them about the rules of the
various games and sports. It is well known that different games and sports have
different rules and practices and unless the students are guided about the said
rules and practices they will not be able to play the games and participate in
the sports in a proper manner, further, in our view, it is inherent in the
duties of a Physical Director that he imparts games and sports. There are large
number of indoor and outdoor games in which the students have to be trained.
Therefore, he has to teach them several skills and the techniques of these
games apart from the rules applicable to these games.
Having
regard to the above-said material before us, we are clearly of the view that
the appellant comes within the definition of a teacher in sub-clause (n) of
section 2 of the Act.
We may
also here refer to certain proceedings relied upon by the learned counsel for
the appellant. The Secretary to the University Grants Commission in a letter
dated 7.1.1959 addressed to the Registrar of the Agricultural University in
connection with the upgrading of the scales of physical Directors referred to
the minimum qualifications required for an appointment of a Physical Director
and in the said letter described Physical Directors as "teachers".
The
relevant portion cf. the said letter reads as follows :
"I
am directed to state that the University Grants Commission considered the
question of upgrading the salary scales of teachers of Physical Education in
Universities and Collapse and decided as follows :
The
minimum qualifications for appointment as a Director of Physical Education or a
Physical Instructor in Universities and colleges should be & Post-Graduated
Diploma for certificate) a or Degree in Physical Education.
Persons
with much qualifications may be appointed in the same scale of the universities
may be appointed in the scale of pay of Readers if the Universities no desire.
Persons with lower qualifications may be appointed on the same terms as Tutors
and Demonstrators. These teacher of Physical education may be included among
the teaching staff of College and Universities for purposes of revision of
salary scales.
2. I
am to request you to furnish the information ink respect of the existing
Physical Instructors in he Universities and Colleges in the enclosed proformas,
with a commitment to share the increased cost at 20% in the case of University
teachers and 50%, 25% in the case of College Teachers consequent upon the
fixation of their salaries in the revised grades. If the scheme of upgrading
the salary males of teachers of physical Education on detailed above, is
acceptable to the University/college. The date of the implementation of the
scheme will be the same as for the other teachers viz. 1.4.1956 in the case of
Universities teachers and 1.4.1957 in respect of College teachers." In
fact, it is clear from the above that while computing the percentages of
teachers as mentioned in para 2 of the said letter. Physical Directors have
also to be counted.
There
is a memorandum of the Joint Registrar of the said University dated 29.7.1966
dealing with the case of one M. Hanumantha Rao, Physical Director in connection
with his retirement, it is clearly admitted that Physical Director comes within
the category of teachers. The relevant part of the said letter reads as follows
:
"With
reference to his letter cited, the Principal Agricultural College. Bapatia is informed that the physical Directors working in
the Colleges under Andhra Pradesh Agricultural University come under the category of teaching staff and that the age
of retirement for such employees has been prescribed in the Andhra Pradesh Agricultural University (conditions of Service) Regulations, 1965." In
connection with the Physical Directors working in Degree colleges and Junior
colleges the Education department of the Andhra Pradesh Government has issued
proceedings dated 29.11.1976 and in the said proceedings Physical Directors
have been described as teachers, for the purpose of he application of the
Andhra Pradesh General Subordinate Service. In regard to the pay scales of
Physical Directors in Degree Colleges in the State, the Government of Andhra
Pradesh had issued proceedings dated 20.4.1987 designating Physical Education
Directors as Lecturers in Physical Education.
We are
of the view that the above said communications of the University Grants
Commission and of the Joint Registrar of the respondent University and of the
State Government support the view we have taken above.
In the
impugned judgment of the High Court it has been said that merely because
Physical Directors are paid the same scales of the teaching staff that does not
confer on them the status of a teacher. There is also no discrimination if
Physical Directors are retired at the age of 58 years and other teachers are
allowed to retire at the age of 60 years and other teachers are allowed to
retire at the age of 60 years. The High Court further said that while it was
true that section 2 (n) of the Act contained an inclusive definition of
`teacher', the Physical Directors did not come within the categories mentioned
in the inclusive definition. They are neither professors nor readers nor
lecturers nor were they persons appointed or recognised by the University for
the purpose of imparting instruction or conducting and guiding research or
extension programmes.
In our
view, the learned Judges did not go into the meaning of the word
"teacher" in the main part of the clause nor assess correctly the
effect of the material evidence on record. The learned Judges observed that
assuming Physical Directors imparted instructions to his students, unless the
University recognised them as teachers they could not claim the benefit of
section 2(n) of the act. Obviously the learned Judges were referring to the
last part of section 2(n) which includes persons other than those enumerated in
the inclusive part if so recognised by the University. As we have held that the
Physical Directions come within the main part of the definition of `teacher',
it is in our opinion not necessary that they should be separately recognised as
teachers by an order or statute of the University.
In the
additional affidavit of the university, referred to earlier, it is no doubt
contended that a semester course in the University means a unit of instruction
and devotes a segment of subject matter to be covered in a semester. Under such
a system a person has to get a specific number of credits. A credit hour
"means one hour lecture or two to three hours of a laboratory of field
work" in practicals. It is contended that the student undergoes a course
of study leading to various under-graduate programmes in the University and has
to pass courses and complete the minimum number of credit hours prescribed
therefore from time to time. So far the games and sports are concerned, it is
contended, that there is no weight age of credit hours and there are also no
theoretical and practical courses prescribed for the students. It is contended
that for the said reasons Physical Director cannot be treated as teachers.
We are
unable to agree. It may be that the Physical Director gives his guidance or
teaching to the students only in the evenings after the regular classes are
over. It may also be that he University has not prescribed in writing any
theoretical and practical classes for the students so far as physical education
is concerned. But as pointed by us earlier, among various duties of the
Physical Director, expressly or otherwise, are included the duty to teach the
skills of various games as well as their rules and practices. The said duties
bring him clearly within the main part of the definition as a `teacher'. We
therefore, do not accept the contention raised in the additional counter
affidavit of the University.
For
the aforesaid reasons the appeal is allowed and judgment of High Court is set
aside and it is declared that appellant was entitled to continue in service
till he completed 60 years of age. Now that he has retired he is entitled to
the emoluments payable to him for the remaining period of the service upto the
completion of 60 years deducting the period for which he worked as Physical
Director beyond 58 years pursuant to stay orders granted by the High Court. His
retiral benefits shall also be computed on the basis that his age of retirement
was 60 years. The appeal is allowed and disposed of accordingly.
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