1. The issue that arises for consideration is as to the superannuation age of the Librarian working in Andhra University.
2. The petitioner filed writ petition seeking writ of mandamus declaring that theage of superannuation of Librarian as 60 years. The petitioner submits that he was appointed as Librarian in the University in the year 1995 in the scale of 4500-7300 (equivalent to the scale of Professor). It is the case of the petitioner that the Government of India, Ministry of Human Resources Development by letter dated 22-7-1988 directed that the revised pay scales of Librarians and Physical Educational Personnel should be the same as approved for Teacher. The revised pay scales were sanctioned to those who are having prescribed qualification. A direction was also issued by the Government on 31-3-1988 to make necessary amendments to the statutes, Ordinances etc., incorporating the scheme. The scheme provided the age of superannuation of 60 years. In pursuance of the said direction, the Central Institute of English implemented the same and declared the age of superannuation as 60 years in respect of the Librarians. The other Universities also fixed the age of superannuation of Librarians at 60 years. It is the case of the petitioner that the Librarians working in Jawaharlal Nehru Technological University, Telugu University, Sri Venkateshwara University, Osmania University, the age of superannuation is 60 years. He also submits that the Sri Venkateshwara University and Osmania University are governed by the common enactment namely A.P. Universities Act, 1991. When the said Universities have fixed 60 years as age of superannuation, not implementing the same by the Andhra University is illegal and violative of Article 14 of the Constitution of India. It is also stated that the Government also issued G.O. on 26-7-1991 redesignating Physical Directors and Librarians in Degree Colleges as Lecturers in Physical Education and Lecturer in Library Science. Even the Lecturer working in the Junior College is also getting the same benefit of 60 years. It is his case that he has also been teaching the students of Bachelor of Library Science at A.P. Open University and he is also an Examiner. He has been discharging the academic work by giving Lecturers in the Osmania University. He was also nominated as Member of theSelection Committee for teaching posts. In effect he submits that the post of Librarian is a teaching post and therefore he must be given the benefit of superannuation age of 60 years. Even one Mr. P. Ramachandra Rao, who was sought to be retired on attaining the age of 60 years, filed a writ petition and continued till he attained the age of 60 years. The University however issued proceedings dated 25-1-1996 intimating that the petitioner shall retire on 31-10-1996 on attaining the age of 58 years. The said order is assailed before this Court.
3. In the counter it is stated that the writ petition is not maintainable on the ground of laches. It is also stated that the petitioner having been appointed by a specific appointment order which clearly contain a clause that he shall be treated as Member of non-Teaching staff, it would not be open for him to resile from the condition. Therefore, it is stated that he is bound by the terms of the appointment and he cannot claim a declaration that his age of superannuation is 60 years. It is also stated that the petitioner cannot be equated with the post of Professor or a teaching post even though he is holding the scale of Professor. He was not entrusted with any teaching work. The University has its own rules and regulations. Each University has its own rules and regulations and even though the other Universities fixed the age of superannuation of Librarians as 60 years, it is not incumbent on the part of the Andhra University to fix the said age. It is also stated that the Librarian will not come within the definition of Teacher under Sections 2(22} and 2(23) of the A.P. Universities Act. It is also stated that in pursuance of the directions of the Government, the age of superannuation was fixed at 58 years.
4. While admitting the writ petition, interim direction was granted to continue the petitioner. But, however the same was vacated on 4-7-1997 with an observation that if ultimately the petitioner succeeds in the writ petition, he will get of his pay and allowances.
5. The learned Counsel for the petitioner submits that the post of Librarian is treated as a teaching post. The University also issued proceedings dated 27-7-1987 treating the post of Librarians, among other posts, as Academic (Non-Vacational) post. The learned Counsel also submits that while the age of superannuation of Librarian in Osmania University and Sri Venkateshwara University which are covered by the provisions of the Andhra Pradesh Universities Act is 60 years, it is always desirable to have a common pattern of service conditions. Treating the post of Librarian as non-teaching staff in the Andhra University, while the same is treated as a teaching post in the aforesaid Universities, the action is per se, arbitrary and discriminatory offending Article 14 of the Constitution of India. The learned Counsel also submits that under Section 39 of the A.P. Universities Act, the service conditions of all salaried officers and teachers shall as far as possible be uniform except in respect of the salaries payable to them. He submits that a similar condition was interpreted by the Supreme Court in respect of Osmania University and the Supreme Court held that the non-teaching staff also should have the similar condition as that of teaching staff in respect of the age of superannuation and accordingly alt the non-teaching staff are now entitled to be retired at the age of 60 years. The case on hand stands on similar footing and therefore the age should be reckoned as 60 years. The learned Counsel also takes the assistance of the recent judgment of the Supreme Court reported in P.S. Ramamohana Rao v. A.P.Agricultural University, : AIR1997SC3433 , wherein the Supreme Court declared the post of Physical Director as a teaching post and consequently the incumbent was entitled to continue in service up to 60 years of age.
6. The learned Standing Counsel for the University only submits that, it is the rules and regulations that governs the service conditions of the employees in the Andhra University and it is not obliged to change the service conditions simply because other Universities have changed it.
7. The issue that falls for consideration is as to whether the post of Librarian fells under teaching category or non-teaching category'. If it falls under teaching category, the incumbent is entitled to continue in service up to the age of 60 years or otherwise he is entitled to retire at 58 years ?
8. This Court is not called upon to consider whether all the non-teaching staff are entitled to have the similar condition of service as that of teaching staff in respect of the age of superannuation. In this instant case, we have to consider with reference to the post of Librarian in the University.
9. There is no dispute that the petitioner was appointed as Librarian in 1995 and he is now sought to be retired at the age of 58 years. It is also not in dispute that all the non-teaching staff in the University are being retired at the age of 58 years while the teaching staff at 60 years. However, the Class-IV employees in the University arc also entitled to be continued in service upto 60 years. The Ministry of Human Resources Development, Government of India in letter dated 22-7-1988 issued detailed guidelines with regard to the application of Revised Pay Scales of Librarians and Physical Educational Personnel in the Universities and Colleges and they were made applicable to all the Universities and Colleges. The recruitment to the post of Librarian shall be on the basis of the merit on All India basis through an advertisement and selection. The minimum qualifications have also been prescribed by the UGC from time to time. Under para 24 of the guidelines the age of retirement of the Librarian is fixed as 60 years. There is no dispute that the petitioner was appointed by a duly constituted selection Committee to the post of Librarian and he was also given the revised scales in accordance with the UGC Scales. It is also not in dispute that the merit promotion scheme as applicable to the teaching staff was also made applicableto the personnel working' in the Library Department. The Osmania University issued letter dated 12-4-1984 treating the Librarian on par with the University teachers. The Central Institute of English and Foreign Languages issued notification dated 29-5-1995 declaring the post of Librarian as non-vacation academic staff and fixing the age at 60 years. Aligarh Muslim University also fixed the age of superannuation as 60 years. Sri Venkateshwara University passed a resolution as early as 1964 treating the post of Librarian and Assistant Librarian on par with the teaching staff. Similarly, number of Universities have treated the Librarians as Teachers and retirement age was fixed as 60 years on par with the teaching staff. The UGC also constituted Expert Committee with regard to the fixation of minimum qualifications and work load for Librarians and Physical Directors in the University and Colleges and the said Committee under the Chairmanship of Professor R.C. Mchrotra, Emeritus Professor, Rajasthan University recommended the age of superannuation of Librarian and Physcial Directors and Instructors at 60 years. There is also no dispute that the Government redesignated the post of Librarian and Physical Director as Lecturers in the Physcial Education and Lecturers in the Library Science and their age of retirement is fixed as 60 years. But the question that calls for consideration is how far the decisions of other Universities arc binding on the Andhra University and whether Andhra University is entitled to contend that the age fixed by it should be final. Even though' the learned Counsel for the petitioner takes me to various books wherein study was made with regard to the Librarians and Librarians in Indian Universities and a positive case was made out in the respective books and that they should be treated as teaching staff and they should be extended the same benefit, I am not prepared to go into those inasmuch as, we have to consider the matter only with reference to the statutory provisions.
10. The Andhra Pradesh Universities Act, 1991 (Act No.4 of 1991) was enacted bythe State Legislature with an intention to enact a single law in place of six Universities Acts to achieve the object of uniformity of law's in respect of the Conventional Universities and to establish common conventional University under the same enactment. The enactments of the respective Universities including the Andhra University Act, 1925 was repealed duly applying the provisions of Sections 8 and 18 of AP General Clauses Act, 1889. But, however, by virtue of non-obstante clause of the statutes, Ordinances etc., made under the relevant Universities Act, shall continue in force and deemed to have been made in the provisions of this Act. Thus, the Andhra University also came into fold of AP Universities Act, 1991. It is necessary to refer to certain provisions in the said Act, for proper appreciation of the issue. The expression 'Teacher' is defined under Section 2(22) of the Act, which reads as follows:
'Teacher' means, Professors, Readers and Lecturers in a college and such other persons giving instruction in a college as may be declared by the Statutes to be teachers'.
The expression Teachers of the University is also defined under Section 2(23) which reads as follows:
'Teachers of the University' means teachers appointed by the University to give instruction or guide research in the University and constituent colleges'.
The saving clause (k) under Section 57(3)(k) is extracted below:
'(k) all Statutes, Ordinances, and Regulations, made under the relevant University Act in respect of the Universities specified in Section 4 shall, so far as such Statutes, Ordinances and Regulations, are not inconsistent with the provisions of this Act, continue to be in force and be deemed to have been made under the provisions of this Act until the are superseded or modified by Statutes,Ordinances and Regulations made under this Act.'
The learned Counsel for the petitioner submits that the petitioner falls within the category of Teacher and that he had also undertaken the teaching work in the other Universities including the AP Open University. He also fells within the criteria laid down by the University Grants Commission for grant of UGC scales. Further, he submits that the principles laid down by the Supreme Court in Ramamohana Rao's case (supra), squarely covers the case of the petitioner also and therefore, he should be declared as a teaching staff. The Andhra University framed the Service Conditions of various personnel in Chapter V of the Administration Manual in clause 2 which provides for making appointments to teachcrship due consideration should be given according to nature of the post to be filled to any, or all of the following considerations among the rest.
(a) Academic training and record,
(b) Research experience,
(c) Administrative experience,
(d) Teaching experience,
(e) Conduct and temperament; and
(f) Previous connection with the University.
In respect of University Librarian, it is contained at clause 34, which is extracted below:
'University Librarian: The Librarian shall be a whole time employee of the University appointed by the Executive Council. The internal management for the Library shall be vested in him subject to the general control of the Library Advisory Committee.
He shall also do such teaching work as may be assigned from time to time.
Qualifications:
(a) First/Second Class BA/B.SC/B.Com. Degree plus First or Second ClassM.Lib.Sc.Degree (two-years course) or First/Second Class M.A/M.Sc. Degree and First/Second Class B.Lib.Sc. or one-year Diploma Course in Lib.Sc.
(b) Atleast ten years experience as Librarian or of working in a responsible professional capacity in a Library.
(c) Recognised research experience or workon special projects.
He shall execute an agreement with the University in the prescribed form'.
The provision was existing prior to the 1991 Act and it is saved under Section 58(3)(k). In Ramamohana Rao's case (supra), the duties and functions of the Physical Directors were not prescribed under any Rules or Regulations, but only an affidavit was filed by the University, which stated that the Physical Director was having the following duties:
(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.
Considering the aforesaid characteristics of the duties attached to the post of Physical Director, the Supreme Court held as follows:
'From the aforesaid affidavit, it is clear that a Physical Director has multifarious duties. He not only arranges games and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanies thestudents 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 to the students various skills and techniques of these games and sports. There arc a large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and techniques of these games apart from the rules applicable to these games.
Having regard to the abovesaid 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'
Disagreeing with the findings of the High Court that merely because, the Physical Directors were paid the same scale as that of teaching staff that did not confer on them the status of a Teacher, that there was no discrimination with regard to the age and that under Section 2(n) of the Act, he did not fall within the categories mentioned in the definition because he- was neither Professor nor Reader nor Lecturer nor was a person appointed or recognised by the University for the purpose of imparting instructions for conducting guiding or the extension programmes, the Supreme Court observed thus:
'In our view, the learned Judges did not go into the meaning of the work 'teacher' in the main part of the clause nor assessed correctly the effect of the material evidence on record. The learned Judges observed that assuming Physical Directors impartedinstructions to their 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 then those enumerated in the inclusive part if so recognised by the University. As we have held that the Physical Directors 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 of statute of the University.
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 the 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.'
The definition of Teacher in AP Agricultural University Act under Section 2(n) reads as follows:
'2(n) 'teacher' includes 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 statutes to be a teacher.'
The contention was that to come within the definition of Teacher, one should be aProfessor, Reader or Lecturer or any other person appointed or recognised for the purpose of imparting instruction for conducting and guiding research programmes including a person declared by a statute to be a Teacher. A comparison of Sections 2(22) and 2(23) of the Universities Act and 2(n) of A.P. Agricultural University Act would lead to irresistable conclusion that the provision in University Act is in para materia with the Agricultural University Act. But, however, the learned Standing Counsel for the Univeisity submits that the petitioner never discharged the functions of a Teacher and he did not undertake any teaching work in the University and more over he was not declared as a teacher by any statute and therefore he cannot take the advantage of the decision of the Supreme Court. This contention though appears to be appealing, but deeper scrutiny would reveal that the contention is devoid of any merits. Regulation 34 framed by the Andhra University enjoined upon the University Librarian to perform certain duties including the one that he shall do such teaching work as may be assigned from time to time. Therefore, a person appointed as a University Librarian under the Andhra University is statutorily bound to undertake the teaching work which may be assigned from time to time. Simply because, he was in fact not assigned the teaching work for various reasons, it cannot be said that he falls outside the parameters of the teaching work. It may be that the University might have not extracted the teaching work from the petitioner, but at the same time he has statutory obligation to discharge the teaching work also as and when it is assigned. Merely because no teaching work was entrusted, it cannot be said that he did not discharge the teaching assignments. When the statute casts upon the petitioner to discharge the teaching work as and when entrusted, he is bound to obey the command of the statute. The right to extract the teaching work is reserved to the University under the regulation. Therefore, it is always open for the University to assign the teaching work wherever it feels. Assigning or not assigning the teaching work is immaterial. Solong as the teaching work is a part of the duty attached to the post, it cannot be said that he did not fall within the category of a teacher. The Regulation of the University is comprehensive and enjoins upon the University Librarian to undertake teaching work as and when assigned. This specific condition was not even available in Ramamohana Rao 's case (supra) and there was no provision much less statutory rules defining the duties. For various reasons, the University might have not extracted the teaching work from the petitioner, but at the same time, that cannot be taken as a ground to remove the petitioner from the category of a teacher. If a person is recruited in the army and if he did not take part in the battle field for various reasons, can it be said that the person is not called a Sepoy and can be denied the benefit of the Army Act. The answer should be emphatically in the negative. Keeping in view the qualifications prescribed for the post and adherence to the UGC directive and also the duties of teaching work attached to the post as also the fact that the other Universities such as Osmania University and Sri Venkatcshwara University have already treated the Librarian on par with the teaching staff, I am of the considered view that the post of Librarian in the Andhra University falls within the category of teaching staff.
11. Even the perusal of the appointment order of the petitioner confirms that the University treated the petitioner as teaching staff. 1st and 3rd paras of the appointment order reads thus:
'The following candidate is temporarily appointed as Librarian in the scale of pay of Rs.4,500-150-5,700-200-7,300 with usual allowances at the rates as admissible from time to time with effect from the date of taking charge and posted to the place noted against him subject to the condition that the age of superannuation is on par with that of Non-teaching Staff of Andhra University.
Sl.No.Name andaddress of the candidatePosting
1.Sri S.S.Janardhana Rao, 7-1-45, Mohan Kunj, Kirlampudi Layout, Visakhapatnam-530023
LibrarianDr.V.S.K. Library, Andhra University,Waltair.
The above appointment is subject to Statutes, Ordinances, Regulations and other Rules of the University that are in force and that may be amended from time to time. Further, the appointment is purely on temporary basis.'
Therefore, a close reading of the order itself consciously indicates that the petitioner was treated as non-teaching staff only for the purpose of superannuation age and the rest of other service conditions could be presumed to be on par with other than non-teaching staff viz., teaching staff. Therefore, viewed from this angle also the conclusion is irresistable that the petitioner falls in the branch of teaching category.
12. The learned Standing Counsel for the University, however, submits that the petitioner is bound by the terms of appointment order and he cannot resile from the appointment order. The petitioner having not made any objections and having accepted the appointment, he acquiesed his right to challenge the action of the University. It is true that a special condition was made in the appointment order that he will be treated as a non-teaching staff. The contention may be correct under the common law of master and servant where the contract of employment in purely private organisations is governed by the terms of contract subject to labour laws. But, in the case employment under the Government or the statutory bodies it is a conferment of statutes. The service conditions of such persons arc either governed by the rules framed by virtue of Article 309 of the Constitution of India subject to Article 311 or the rules framed by the respective statutory bodies. The principles of estoppel do not operate against law. When the regulation made by theUniversity itself treat the post as a Teacher by attaching the teaching assignments, it would not be open for the University to convert that post into a non-teaching category post without any authority of law. It is well settled that the administrative instructions issued by the Administrative authority cannot be in derogation of statute law. If the statute stipulated teaching assignments to the Librarian so as to cover under the penumbra of definition of teacher, the administrative authority cannot ignore the same and act contrary to the statute, by inserting a clause that the age of superannuation would be on par with non-teaching staff. Therefore, any administrative instructions or action contrary to the statute, are ultra vires. The power of appointments, promotions, retirements etc., are vested in the administrative authorities and they shall function inconsonance with the statutory provisions- Therefore, the clause that the petitioner is governed by the condition that the age of superannuation is on par with the non-teaching staff of the University is a condition colliding with the statute and the same has to be ignored being non-est in law. The principle of estoppel or acquisence are not applicable to the facts of the present case.
13. Under these circumstances, I hold that the post of Librarian in Andhra University falls in the category of a teacher in the University and consequently the incumbent (petitioner) is entitled to continue in service upto the age of 60 years. As the petitioner has been retired prematurely, he shall be reinstated back into service forthwith and he shall be paid salary and other benefits from the date he was kept out of service till the date of reinstatement.
14. Accordingly, the writ petition is allowed. No costs.