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Judgment
In all these Writ Petitions common question of law is involved as to whether the non-teaching staff of Andhra University is entitled to continue in service upto the age of 60 years ?
The Petitioners are appointed in various non-teaching posts and working in the Andhra University and also the constituent institutions under the management and control of Andhra University.
It is the case of the Petitioners that originally, the service conditions of the non-teaching stair employed by the University were governed by the provisions of Andhra University Act. The University prescribed the age of superannuation in respect of non-teaching staff at 60 and teaching staff also at 60 years. But, subsequently the age of superannuation in respect of non-teaching staff was reduced to 58 in 1989. It is the case of the Petitioners that the University cannot differentiate between the teaching staff and non-teaching staff in respect of service conditions and therefore the non-teaching staff is also entitled to have the superannuation age of 60 years. The Petitioners were issued with notices requiring them to retire on completion of 58 years and some of them also retired, but however, the challenge is that they should be allowed to continue till they attain the age of 60 years. The Petitioners also submit that after 1991, Consolidated Act was introduced by the State Legislature namely A.P. Universities Act, 1991, under the said Act, u/s 39, the conditions of all salaried officers as far as possible shall be uniform except in respect of salaries. The Petitioners under non-teaching category as also the teaching category fall under the definition of salaried staff and therefore they cannot be discriminated in respect of matter of service conditions. It is also the case of the petitioners that similar provision existed in the Osmania University Act. The non-teaching staff of University approached this Court by filing a Writ Petition No.l 1524/1983 seeking declaration that they are entitled to continue till they attained the age of 60 years on par with the teaching stall The said Writ Petition was allowed and the Writ Appeal filed by the University in W.A.No.476/1985 is also dismissed. Thereafter the matter was carried to the Supreme Court by the University in Civil Appeal Nos.1107/08 of 1990. The Supreme Court by judgment dated July 8,1997 dismissed the Appeal thereby confirmed the orders passed by the learned single Judge. Section 38 of the Osmania University Act is in para-materia with Section 39 of the A.P. Universities Act and therefore the same principle will also be made applicable to the non-teaching staff of Andhra University.
On the other hand it is submitted on behalf of the University that prior to 1988, the age of superannuation of teaching as well as non-leaching staff of Andhra University was 60 years. But, however, the Govt of Andhra Pradesh introduced Revised Pay Scales of 1986 to be made applicable to the Slate Government employees whose age of superannuation was fixed at 58 years. Since the non-teaching staff of the Andhra University were not extended the benefit of Revised Pension Scheme, 1986, which are more beneficiary, the Non-teaching Staff Association requested the University to implement Revised Pension Rules of 1980, Thereupon the University approached the Government. State Government agreed to extend the Revised Pension Rules to the Non-leaching staff of Andhra University provided they reduce the age of superannuation from 60 years to 58 years. This condition was accepted by the non-teaching staff and thereupon the Executive Council of the University passed Resolution on 17-6-1989 fixing the age of retirement at 58 years for non-leaching employees and thus the resolution acquired the statutory force. Consequent on passing the said Resolution, the Government was intimated the facts and thereupon the Government issued G.O.Ms.No.65, dated: 10-2-1989 making applicable the Revised Pension Rules of 1986. Therefore, it is submitted that the petitioners (non-teaching staff are entitled to continue upto the age of 58 years.
The learned Standing Counsel for the University also submits that Andhra University was not a party before the High Court and the Supreme Court in the earlier litigations, wherein the non-teaching staff of Osmania University approached this Court for declaration. The learned Counsel also submits that some of the contentions raised before the Supreme Court with regard to the age of superannuation of Andhra University were factually incorrect. Even, otherwise he submits that the judgment of the Supreme Court in no way helps the petitioners.
The sheet anchor of the petitioners is the judgment of this Court rendered in Osmania University Case. For proper appreciation of the case it is necessary to refer to certain statutory provisions under the Osmania University Act and other relevant enactments. Section 38 of the Osmania University Act, reads as follows :
"38. Save as otherwise provided, every salaried officer and teacher of the University shall be appointed under a written contract, and the conditions of service relating to them shall, as far as possible be uniform except in respect of salaries payable to them''''
Section 39 of Andhra Pradesh Universities Act, 1991 is extracted below:
"39. Conditions of service :- (1) Save as otherwise provided, every salaried officer and teacher of the University shall be appointed under a written contract, and the conditions of service relating to them shall, as far as possible be uniform except in respect of salaries payable to them.
(2) The Contract shall be lodged with the Registrar and a copy thereof shall be furnished to the officer or teacher concerned."
Under Section 56 of the A.P. Universities Act, the following Acts were repealed:
Andhra University Act, 1925
The Kakatiya University Act, 1976
Sri Krishnadevaraya University Act, 1981
Nagarjuna University Act, 1976
Osmania University Act, 1959
Sri Venkateshwara University Act, 1954
duly protecting the Statutes, Ordinances and Regulations made under the respective Universities Acts and they continued to be in force until they are superseded or modified by the Statutes etc. Sub-clause ''k'' of Section 57(3) 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 they are superseded or modified by Statutes, Ordinances and Regulations made under this Act."
Thus, as on the date of coming into force of Act 4 of 1991, admittedly superannuation age of non-teaching staff of Andhra University was 58 years, as already stated above., this age was fixed by virtue of resolution passed by the Andhra University in 1989.
The only issue that arises for consideration is whether by interpreting Section 39 of the Act which is in para materia with Section 38 of erstwhile Osmania University Act, can the petitioners claim parity of age of superannuation on par with the leaching staff. This issue was considered by the Supreme Court in Civil Appeal Nos. 1107-08 of 1990 which is extracted below:
"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 the 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 bringing a parity in the service conditions of the salaried staff of the University 6y fulfilling the mandate u/s 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 Tightly 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 the 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 decisions 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-leaching 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 u/s 38(1) of the Act, is justified. We, therefore, do not find any reason to interfere with the impugned decision of the High Court."
One of the arguments on behalf of the non-teaching staff before the Supreme Court was u/s 35(A) of Andhra University Act, the State Government shall have the power to make Regulation regarding the classification, method of recruitment, conditions of service, pay and allowances and discipline and conduct of teaching and non-teaching staff of the affiliated colleges of the Universities. But, even though the Government has power to regulate the conditions of service, of both teaching and non-teaching staff, the Government has allowed the different age of superannuation for 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. But, the learned Counsel for Andhra University seriously disputes this position and he submits that the Counsel for non-teaching staff of Osmania University was not aware of the actual statutory provisions which were existing in the Andhra University Act. In fact he submits that Section 35(A) of the Andhra University Act was deleted by Act 28 of 1987 and there was no such provision as on the date when the argument was submitted by the learned Counsel for the non-teaching staff of Osmania University. The learned Counsel submits that an impression was created by the learned Counsel for non-teaching staff of Osmania University that all the Universities were having 60 years of age of superannuation while in fact it was not the correct situation. I am in agreement with the argument of the learned Counsel. Admittedly, the University was having 60 years age of superannuation prior to 1989 and the age of superannuation was fixed at 58 years by the Resolution of the Executive Council of dated 17-6-1989 and thereafter it continued to be at 58 years only. Obviously number of employees have also retired at the age of 58 years till the date and there was no challenge to the resolution of the Executive Council so far.
The Supreme Court has clearly held that there is no compulsion under Law that the University is bound to maintain the same age of superannuation of its teaching and non-teaching staff as is available to the employees of the State Government. But, the principle that is to discernible is that if uniform condition 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 as per the mandate of Section 38(1) of Act. As can be seen from the facts of the case that originally, University was having 60 years of age and subsequently on introduction of Revised Pension Rules, the staff association themselves moved the University for applicability of the Revised Pension Rules, which was accepted by the Government subject to condition that the age of superannuation is reduced from 60 years to 58 years. The Resolution was passed as long back as 1989 reducing the age of the non-teaching staff to 58 years and the said Resolution of the University was not challenged even till today. Therefore, it would not be open for the petitioners to invoke Section 38(1) of the Act 4 of 1991. Moreover, the circumstances under which the age was reduced is apparent, that the staff themselves wanted the liberalised pension rules. It is also brought to the notice of this Court that even in respect of teaching staff still for the purpose of pensionary benefits, the age of superannuation is reckoned 58 years as is notified in G.O.Ms.No.241, Education, dated 30-6-1992. The Supreme Court has recognised the power of the University to have different retirement age for teaching and non-teaching staff for the administrative exigency and subject to condition that uniform conditions of service in leaching and non-teaching staff was not practicable. Admittedly, in the instant case, the very purpose of reducing the age was to make applicable the liberalised pension rules. Once the benefit of liberalised pension rules having been obtained by the teaching staff, it would not be open for them to again seek 60 years of superannuation age which cannot go together and thus it creates a practical impasse. Therefore, on proper consideration of the matter, I am of the firm opinion that the petitioners are not entitled for superannuation age of 60 years. The learned Counsel for the petitioners however again submits that in respect of the teaching staff the retirement age is 60 years, but however the pension is reckoned only on the basis of the emoluments drawn for preceding 10 months drawn during the relevant period in which the Teacher completes 58 years of age. Thus, even though the pension is reckoned on 58 years basis, yet the teaching staff is continued till 60 years and the same procedure can be adopted in this case also. I am afraid, I cannot accept this contention. It is for the concerned authorities to lake a decision. But, as things stand today, the petitioners having consented for implementation of liberalised pension rules and on the basis of which the Executive Council has taken a decision and subsequently the Government has accepted applicability of the liberalised pension rules on reduction of age from 60 years to 58 years, it cannot be held that the non-leaching staff is entitled for 60 years of retirement age.
Accordingly, the Writ Petitions are dismissed. No costs.