Dr. Kirti Saxena (Smt.) Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - degree on 31-7-1998 and two advance increments were sanctioned vide order dated 24-6-2000. the respondents have withdrawn the benefit of two advance increments sanctioned to the petitioner after her retirement and an entry has been made in the ppo issued on 4-6-2008 for recovering the amount of two advance increments received by the petitioner with effect from 31-7-1998. the petitioner's contention is that she was rightly extended the benefit of two advance increments and, therefore, action of the respondents is bad in law. the petitioner's contention is that for all purpose she has been treated as a teacher and, therefore, action of the respondents in withdrawing the benefit of two advance increments is bad in law, and therefore, she is entitled for terminal dues and recovery initiated by the respondents deserves to be quashed by this court. 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. 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. in the present case, the case of the petitioner stands on better footing. resultantly, the action of the respondents in withdrawing the benefit of two advance increments is bad in law and deserves to be quashed. in the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. the submission of the learned counsel for the appellant, that retiral benefits are not in the nature of 'bounty' is, in our opinion, well founded and needs no authority in support thereof.orders.c. sharma, j.1. the petitioner before this court a retired government servant has filed this present petition for issuance of appropriate writ, order or direction directing the respondents to finalize her terminal dues. the petitioner is also aggrieved by the recovery initiated by the respondents against her.2. the contention of the petitioner is that she was appointed as a lecturer on 27-10-1965 and the post of lecturer was later on redesignated as assistant professor. it has been further stated that she was promoted as professor in the year 1985 and later on in the year 2003 she was promoted as principal of degree college. the petitioner has further stated that prior to her retirement she has also worked as assistant director, education. the petitioner on completion of 62 years of age has attained the age of superannuation on 30th april, 2007. the petitioner's further contention is that she was awarded a ph.d. degree on 31-7-1998 and two advance increments were sanctioned vide order dated 24-6-2000. the respondents have withdrawn the benefit of two advance increments sanctioned to the petitioner after her retirement and an entry has been made in the ppo issued on 4-6-2008 for recovering the amount of two advance increments received by the petitioner with effect from 31-7-1998. the petitioner's contention is that she was rightly extended the benefit of two advance increments and, therefore, action of the respondents is bad in law. the petitioner has also stated before this court that she is in fact a teacher and the respondents have permitted her to continue in service upto 62 years in the light of the statutory provisions as contained under the madhya pradesh shaskiya sevak (adhivarshiki-ayu dwitiya sanshodhan) adhiniyam, 1998. the learned counsel appearing for the petitioner has further argued before this court that a teacher has been defined under the college code (statute 28) framed under the madhya pradesh vishwavidyalaya adhiniyam, 1973 and definition of a teacher as contained in statute 28(1)(d) includes the principal. the petitioner's contention is that for all purpose she has been treated as a teacher and, therefore, action of the respondents in withdrawing the benefit of two advance increments is bad in law, and therefore, she is entitled for terminal dues and recovery initiated by the respondents deserves to be quashed by this court.3. a reply has been filed by the respondents and the respondents have relied upon a circular of the state government dated 11th october, 1999. the contention of the respondents is that benefit of two advance increments has been extended to the teachers alone. they have relied upon clause 9(c) of the circular dated 11th october, 1999 and the contention of the respondents is that the petitioner at the relevant point of time was serving as a principal and was certainly not entitled to the benefit of two advance increments, and therefore, the amount received by virtue of the aforesaid circular is being recovered. the respondents have prayed for dismissal of the writ petition.4. heard learned counsel for the parties at length and perused the record.5. in the present case, the petitioner before this court was initially appointed as a lecturer on 27-10-1965 and later on the post of lecturer was redesignated as assistant professor. the petitioner was promoted to the post of professor in the year 1985 and in the year 2003 she was promoted to the post of principal. the petitioner has attained the age of superannuation on 30th april, 2007 while serving the education department of the state of m.p. as a principal.6. this court has carefully gone through the circular enclosed as annexure r-1 and the aforesaid circular deals with grant of two advance increments to the teachers who have obtained the ph.d. degree. the petitioner has obtained the ph.d. degree on 31st july, 1998 and the respondents have sanctioned two advance increments to the petitioner by an order dated 24-6-2000 with effect from 31-7-1998, annexure p-4. the petitioner has attained the age of superannuation on 30th april, 2007. the basic question involved in the present case is whether the petitioner who was serving the higher education department of the state of madhya pradesh at the time of retirement as a principal, is a teacher or not. the statute 28 framed under the provisions of madhya pradesh vishwavidyalaya adhiniyam, 1973 defines teachers under statute 28(1)(d) which reads as under:teachers means members of the teaching staff of a college and includes the principal.not only this, the statute governing the field relating to retirement of state government employees provides for retirement of teachers at the age of 62 years. the madhya pradesh shaskiya sevak (adhivarshiki-ayu dwitiya sanshodhan) adhiniyam of 1998 provides for retirement of teachers at the age of 62 years and the same reads as under:2. amendment of fundamental rule 56 as substituted by section 2 of the madhya pradesh act no. 29 of 1967.-- in section 2 of the madhya pradesh shaskiya sevak (adhivarshiki-ayu) adhiniyam, 1967 (no. 29 of 1967), after sub-rule (1) of rule 56, of the fundamental rules, the following sub-rule shall be inserted, namely:(1-a) subject to the provisions of sub-rule (2), every government teacher shall retire from service on the afternoon of the last dale of the month in which he attains the age of sixty two years : provided that a government teacher whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty two years. explanation:-- for the purpose of this sub-rule 'teacher' means a government servant by whatever designation called, appointed for the purpose of teacher in government educational institution including technical or medical educational institutions, in accordance with the recruitment rules applicable to 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 teacher for not less than twenty years provided he holds a lien on a post in the concerned school/collegiate/technical/ medical education service.the petitioner was permitted to continue upto the age of 62 years by the respondents keeping in view the provisions of the adhiniyam of 1998 and the respondents have treated the petitioner as a teacher for the purpose of retirement. not only this, the definition under the college code also makes it clear that the petitioner is a teacher and is entitled for all benefits to which a teacher is entitled.7. the apex court in the case of p.s. ramamohana rao v. a.p. agricultural university and anr. : air 1997 sc 3433, in paragraphs 10 and 20 has held as under: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 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 to the students various skills and techniques of these games and sports. there are 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.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 apex court in the aforesaid case has treated a director of physical education in university as a teacher and the benefit of continuance in service up to the age of 62 years was extended to the director of physical education in the university. in the present case, the case of the petitioner stands on better footing. the petitioner was appointed as a lecturer, promoted to the post of professor and was subsequently promoted to the post of principal. the principal is also involved in teaching activities and by no stretch of imagination, the post of principal can be excluded from the definition of a 'teacher' as has been done in the present case by the respondents/state. once the respondents have extended the benefit of continuance in service by treating the petitioner as a teacher upto the age of 62 years, there appears to be no justification in withdrawing the benefit of two advance increments granted to her on account of acquiring the ph.d. degree. resultantly, the action of the respondents in withdrawing the benefit of two advance increments is bad in law and deserves to be quashed.8. the petitioner is certainly entitled for two advance increments granted to her vide order dated 24-6-2000. it is really very strange that the terminal dues of the petitioner who has attained the age of superannuation on 30th april, 2007 have not been finalized till date as stated by the learned counsel for the petitioner before this court.9. the respondents in the present case have not finalized the pensionary dues of the petitioner till date, though the petitioner has attained the age of superannuation on 30-4-2007. the apex court in the case of s.k. dua v. state of haryana and anr. (2008) 3 scc 44, in paragraph 14 has held as under:in the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. if there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. if there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. but even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under part iii of the constitution relying on articles 14, 19 and 21 of the constitution. the submission of the learned counsel for the appellant, that retiral benefits are not in the nature of 'bounty' is, in our opinion, well founded and needs no authority in support thereof. in that view of the matter, in our considered opinion, the high court was not right in dismissing the petition in limine even without issuing notice to the respondents.in the light of the judgment delivered by the apex court the petitioner is certainly entitled for interest also on delayed payment of retiral dues.10. the writ petition is allowed with the following directions:(a) the petitioner being a teacher shall be entitled for two advance increments on acquiring the ph.d. degree with effect from 31-7-1998.(b) the recovery initiated against the petitioner is hereby quashed.(c) the respondents are directed to finalize and to release all terminal dues of the petitioner within a period of 90 days from the date of receipt of a certified copy of this order including pension, arrears of pension, etc.(d) the respondents shall pay interest at the rate of 8% per annum on the amount of terminal dues withheld by them from the date of entitlement of the petitioner till the amount is actually paid to the petitioner.(e) in case, the terminal dues of the petitioner are not paid within a period of 90 days as directed by this court, the respondents shall pay interest at the rate of 14% per annum from the date of entitlement of the petitioner till the amount is actually paid to the petitioner.11. with the aforesaid, the writ petition stands allowed. no order as to costs.certified copy as per rules.

Judgment:
ORDER

S.C. Sharma, J.

1. The petitioner before this Court a retired Government servant has filed this present petition for issuance of appropriate writ, order or direction directing the respondents to finalize her terminal dues. The petitioner is also aggrieved by the recovery initiated by the respondents against her.

2. The contention of the petitioner is that she was appointed as a Lecturer on 27-10-1965 and the post of Lecturer was later on redesignated as Assistant Professor. It has been further stated that she was promoted as Professor in the year 1985 and later on in the year 2003 she was promoted as Principal of Degree College. The petitioner has further stated that prior to her retirement she has also worked as Assistant Director, Education. The petitioner on completion of 62 years of age has attained the age of superannuation on 30th April, 2007. The petitioner's further contention is that she was awarded a Ph.D. degree on 31-7-1998 and two advance increments were sanctioned vide order dated 24-6-2000. The respondents have withdrawn the benefit of two advance increments sanctioned to the petitioner after her retirement and an entry has been made in the PPO issued on 4-6-2008 for recovering the amount of two advance increments received by the petitioner with effect from 31-7-1998. The petitioner's contention is that she was rightly extended the benefit of two advance increments and, therefore, action of the respondents is bad in law. The petitioner has also stated before this Court that she is in fact a teacher and the respondents have permitted her to continue in service upto 62 years in the light of the statutory provisions as contained under the Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu Dwitiya Sanshodhan) Adhiniyam, 1998. The learned Counsel appearing for the petitioner has further argued before this Court that a teacher has been defined under the College Code (Statute 28) framed under the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 and definition of a teacher as contained in Statute 28(1)(d) includes the Principal. The petitioner's contention is that for all purpose she has been treated as a Teacher and, therefore, action of the respondents in withdrawing the benefit of two advance increments is bad in law, and therefore, she is entitled for terminal dues and recovery initiated by the respondents deserves to be quashed by this Court.

3. A reply has been filed by the respondents and the respondents have relied upon a circular of the State Government dated 11th October, 1999. The contention of the respondents is that benefit of two advance increments has been extended to the teachers alone. They have relied upon Clause 9(c) of the circular dated 11th October, 1999 and the contention of the respondents is that the petitioner at the relevant point of time was serving as a Principal and was certainly not entitled to the benefit of two advance increments, and therefore, the amount received by virtue of the aforesaid circular is being recovered. The respondents have prayed for dismissal of the writ petition.

4. Heard learned Counsel for the parties at length and perused the record.

5. In the present case, the petitioner before this Court was initially appointed as a Lecturer on 27-10-1965 and later on the post of Lecturer was redesignated as Assistant Professor. The petitioner was promoted to the post of Professor in the year 1985 and in the year 2003 she was promoted to the post of Principal. The petitioner has attained the age of superannuation on 30th April, 2007 while serving the Education Department of the State of M.P. as a Principal.

6. This Court has carefully gone through the circular enclosed as Annexure R-1 and the aforesaid circular deals with grant of two advance increments to the teachers who have obtained the Ph.D. Degree. The petitioner has obtained the Ph.D. Degree on 31st July, 1998 and the respondents have sanctioned two advance increments to the petitioner by an order dated 24-6-2000 with effect from 31-7-1998, Annexure P-4. The petitioner has attained the age of superannuation on 30th April, 2007. The basic question involved in the present case is whether the petitioner who was serving the Higher Education Department of the State of Madhya Pradesh at the time of retirement as a Principal, is a teacher or not. The Statute 28 framed under the provisions of Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 defines teachers under Statute 28(1)(d) which reads as under:

Teachers means members of the teaching staff of a College and includes the Principal.

Not only this, the Statute governing the field relating to retirement of State Government employees provides for retirement of teachers at the age of 62 years. The Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu Dwitiya Sanshodhan) Adhiniyam of 1998 provides for retirement of teachers at the age of 62 years and the same reads as under:

2. Amendment of Fundamental Rule 56 as substituted by Section 2 of the Madhya Pradesh Act No. 29 of 1967.-- In Section 2 of the Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Adhiniyam, 1967 (No. 29 of 1967), after sub-rule (1) of Rule 56, of the Fundamental Rules, the following sub-rule shall be inserted, namely:(1-a) Subject to the provisions of sub-rule (2), every Government Teacher shall retire from service on the afternoon of the last dale of the month in which he attains the age of sixty two years : Provided that a Government teacher whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty two years. Explanation:-- For the purpose of this sub-rule 'Teacher' means a Government servant by whatever designation called, appointed for the purpose of teacher in Government Educational Institution including technical or medical educational institutions, in accordance with the recruitment rules applicable to 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 teacher for not less than twenty years provided he holds a lien on a post in the concerned School/Collegiate/Technical/ Medical Education Service.

The petitioner was permitted to continue upto the age of 62 years by the respondents keeping in view the provisions of the Adhiniyam of 1998 and the respondents have treated the petitioner as a teacher for the purpose of retirement. Not only this, the definition under the College Code also makes it clear that the petitioner is a teacher and is entitled for all benefits to which a teacher is entitled.

7. The Apex Court in the case of P.S. Ramamohana Rao v. A.P. Agricultural University and Anr. : AIR 1997 SC 3433, in Paragraphs 10 and 20 has held as under:

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 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 to the students various skills and techniques of these games and sports. There are 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.

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 Apex Court in the aforesaid case has treated a Director of Physical Education in University as a teacher and the benefit of continuance in service up to the age of 62 years was extended to the Director of Physical Education in the University. In the present case, the case of the petitioner stands on better footing. The petitioner was appointed as a Lecturer, promoted to the post of Professor and was subsequently promoted to the post of Principal. The Principal is also involved in teaching activities and by no stretch of imagination, the post of Principal can be excluded from the definition of a 'teacher' as has been done in the present case by the respondents/State. Once the respondents have extended the benefit of continuance in service by treating the petitioner as a teacher upto the age of 62 years, there appears to be no justification in withdrawing the benefit of two advance increments granted to her on account of acquiring the Ph.D. Degree. Resultantly, the action of the respondents in withdrawing the benefit of two advance increments is bad in law and deserves to be quashed.

8. The petitioner is certainly entitled for two advance increments granted to her vide order dated 24-6-2000. It is really very strange that the terminal dues of the petitioner who has attained the age of superannuation on 30th April, 2007 have not been finalized till date as stated by the learned Counsel for the petitioner before this Court.

9. The respondents in the present case have not finalized the pensionary dues of the petitioner till date, though the petitioner has attained the age of superannuation on 30-4-2007. The Apex Court in the case of S.K. Dua v. State of Haryana and Anr. (2008) 3 SCC 44, in Paragraph 14 has held as under:

In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned Counsel for the appellant, that retiral benefits are not in the nature of 'bounty' is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.

In the light of the judgment delivered by the Apex Court the petitioner is certainly entitled for interest also on delayed payment of retiral dues.

10. The writ petition is allowed with the following directions:

(a) The petitioner being a teacher shall be entitled for two advance increments on acquiring the Ph.D. Degree with effect from 31-7-1998.

(b) The recovery initiated against the petitioner is hereby quashed.

(c) The respondents are directed to finalize and to release all terminal dues of the petitioner within a period of 90 days from the date of receipt of a certified copy of this order including pension, arrears of pension, etc.

(d) The respondents shall pay interest at the rate of 8% per annum on the amount of terminal dues withheld by them from the date of entitlement of the petitioner till the amount is actually paid to the petitioner.

(e) In case, the terminal dues of the petitioner are not paid within a period of 90 days as directed by this Court, the respondents shall pay interest at the rate of 14% per annum from the date of entitlement of the petitioner till the amount is actually paid to the petitioner.

11. With the aforesaid, the writ petition stands allowed. No order as to costs.

Certified copy as per rules.