Dr. Rajendra Singh Pawar vs State of Madhya Pradesh and Another

Sujoy Paul, J.—By filing this petition, the petitioner has challenged the order dated 18.4.2012, whereby he was directed to retire on attaining 62 years of age. It is contended that the petitioner is entitled to continue till 65 years of age. Shri Vivek Jain, learned counsel for the petitioner submits that the petitioner was initially appointed pursuant to his selection through PSC as a Professor. By placing reliance on appointment order dated 29.2.1988 (Annexure P-7), it is canvassed that the petitioner was appointed because he had ten years experience as per the advertisement (Annexure P/5). Before joining as Principle in the Government of Madhya Pradesh, the petitioner was working as Lecturer at Mujaffar Nagar (UP) w.e.f. 12th December, 1975. While working as a Lecturer at Mujaffar Nagar, the petitioner submitted his candidature for the post of Professor as per the advertisement issued by PSC (Annexure P-5). The petitioner was further promoted as Principal w.e.f. 31.7.2008. Learned counsel for the petitioner submits that the petitioner must be treated as "teacher" as per Fundamental Rule 56(1) and, therefore, is entitled to continue till 65 years of age.

Shri Vivek Jain submits that the respondents have erred in not treating the petitioner as a teacher. Even when he was promoted as Principal, he continuously imparted education to the pupil. He was continuously engaged in teaching activity and, therefore, even if he was a Principal, he must be treated as a teacher. In addition, it is contended that the respondents have counted the teaching period for which the petitioner had rendered services in Government of Madhya Pradesh. It comes to 19 years 2 months. If the services as teacher rendered in Mujaffar Nagar are also taken into account, it will be more than 20 years and, therefore, the petitioner for all practical purposes has experience of 20 years of teaching and, therefore, is entitled to continue till 65 years of age.

Per Contra, Smt. Sangita Pachauri, learned Deputy Government Advocate supported the order, Annexure P-1. She submits that the services rendered elsewhere and not in Government of Madhya Pradesh cannot be taken into account for the purpose of Fundamental Rule 56(1). She further submits that the petitioner has only 19 years 2 months teaching experience in State Government service in Madhya Pradesh. By placing reliance on Fundamental Rules 56(1) and 56(1-a), it is contended that the petitioner has less than 20 years teaching experience and, therefore, he was rightly retired at the age of 62 years.

I have heard learned counsel for the parties and perused the record.

Before dealing with the rival contentions advanced at the bar, I deem it proper to reproduce Fundamental Rule 56, which reads as under:--

F.R. 56. Age of superannuation.--(1) Subject to the provision of sub-rule (2) (every Government servant other than a Government teacher, a Class IV Government servant, every member of the Madhya Pradesh Public Health and Family Welfare (Gazetted) Service appointed to a medical post mentioned in Schedule I to the Madhya Pradesh Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988 and every member of the Madhya Pradesh Medical Education (Gazetted) Service appointed to a Medical teacher post mentioned in Schedule I to the Madhya Pradesh Medical Education (Gazetted) Service Recruitment Rules, 1997) shall retire from service on the afternoon of the last day of the month in which he attain the age of sixty years:

Provided that a Government servant 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 years.

(1-a) Subject to the provisions of sub-rule (2), every Government teacher shall retire from service on the afternoon of the last day 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 proceeding 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 teaching in a Government educational Institution including Technical 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 teaching for not less than twenty years provided he holds a lien on the post in concerned school/Collegiate/Technical education services.

This is not in dispute that the petitioner was appointed in Government of Madhya Pradesh pursuant to an advertisement issued by PSC, Annexure P-5. In the eligibility condition of advertisement it was made clear that the candidate must have ten years experience of teaching. The petitioner was appointed as Professor on 29.2.1988 on the basis of his earlier experience of teaching. It is the specific case of the petitioner that he as a Principal also imparted education and taught the students. For example, reliance is placed on pages 43, 52 and 58 of the petition which shows that the petitioner has taken 240, 145, 186, 134 and 168 periods at Graduation and Post-Graduation level in different financial years. The respondents have rejected the case of the petitioner on the singular ground that in Government service in M.P. the petitioner has rendered only 19 years 2 months services. The respondents have not assigned any reason as to why his earlier experience should not be taken into account. In the opinion of this Court, there is nothing in FR 56 aforesaid, which precludes earlier experience rendered by the petitioner, which was taken into account for his appointment. Apart from this, the definition of "teacher" is a wide definition. The Statute makes it clear that the teacher means any Government servant by "whatever designation called" appointed for the purpose of teaching. In addition, the Statute provides that a person who has been engaged in teaching for not less than 20 years and has a lien on the post shall be treated as teacher. The petitioner has more than 20 years of service/experience of teaching. There is no justification in not taking into account the experience gathered by the petitioner at Mujaffar Nagar, when such experience became the reason of petitioner''s selection for the post of Professor. The respondents have also not taken into account the fact that the petitioner as a Principal also took classes regularly. An administrative order can be interfered with if a valid and relevant material is ignored and not taken into account. Interference can also be made if irrelevant material is taken into account. In the opinion of this Court, the respondents have not taken into account the relevant material, i.e., the classes taken by the petitioner even in the capacity of Principal. Apart from this, this Court in WP No. 1528 of 2009 (Dr. (Smt.) Kirti Sharma v. State) opined that the basic question is whether a Principal is a Teacher or not. By taking into account the nature of duties, this Court opined that the petitioner is a teacher. The finding is as under:-

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''.

The order of writ court is affirmed by Division Bench in Writ Appeal No. 579/2010.

As analyzed above, in the considered opinion of this Court, the order dated 18.4.2012 is bad in law. The petitioner should have been treated as a teacher and is entitled to continue with all benefits till 65 years of age. Resultantly, the order dated 18.4.2012 is set aside. The petitioner is entitled to continue till 65 years of age with all consequential benefits. Petition is allowed. No costs.