Pradeep Agnihotri vs State of M.P. and Others

Krishn Kumar Lahoti, J.—This order shall decide Writ Appeal No. 1087/2012 (Pradeep Agnihotri vs. State of Madhya Pradesh & others) and Writ Appeal No. 1088/2012 (Pramod Mishra vs. State of Madhya Pradesh & others), arising out of the common order dated 23/08/2012, in two separate petitions by the Single Bench. A short question arises for our consideration in the appeals is whether by virtue of Regulation issued by the All India Council for Technical Education (AICTE) dated 05/03/2010, appellants herein were entitled to continue in his services till attaining the age of 65 years or Circular dated 19/10/2012 issued by the State of Madhya Pradesh Technical Education and Training Department of Ministry, by which the aforesaid Regulations were given prospective effect with effect from the date of issuance of the order, will govern the age of superannuation.

To decide the issue, the facts are taken from the Writ Appeal No. 1087/ 2012 for the convenience.

The appellant was working on the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. He has attained the age of superannuation on 31/08/2010. Prior to his attaining the age of superannuation, the All India Council for Technical Education (AICTE) issued a notification dated 05/03/2010 by which age of superannuation was enhanced to 65 years.

The appellants herein have claimed that they were entitled to continue in services till attaining the age of 65 years and they were wrongly superannuated on attaining the age of 62 years. It was submitted before the Single Bench that the State Government was having no jurisdiction to give effect to the aforesaid notification w.e.f. 19/10/2010, but the appellants were entitled for the benefit of regulation from the date of issuance of notification i.e. 05/03/2010. Learned Single Judge has considered the matter and found that the petitioners/appellants were employees of the State. The State Government was having power to give effect to the aforesaid Regulation from a subsequent date and was not bound to make the Regulation effective from 05/03/2010. Considering the aforesaid, learned Single Judge found that the State Government has given effect to the aforesaid Regulation from 19/10/2010 and the appellants who were superannuated prior to this date were not entitled for any relief and dismissed the writ petitions. Aggrieved by the aforesaid order, appellants have preferred these writ appeals.

Learned counsel for the appellants submitted that the notification dated 05/03/2010 was issued by the All India Council for Technical Education (AICTE) in exercising the power u/s 23(1) read with Section 10(i) & (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987), so the aforesaid Regulations were binding on the State Government, It was submitted that as per Regulation, the age of superannuation was extended till 65 years then the appellants were entitled for the same benefit. It was also submitted that though in clause 3 & 4 of the applicability of the scheme provides that this scheme may be extended, but hindi version of the same Regulation provides that aforesaid benefit is extended to all Polytechnic Technical Institutions, meaning thereby that from the date of issuance of notification, the appellants were entitled for the extended benefit of the age of superannuation.

Shri P.K. Kaurav, learned counsel for the State supported the order and submitted that as per the Regulation it was to be given effect to the State Government by issuing an order to the appellants and other similar situated employees. The State Government by notification dated 19/10/2010 have extended the benefit of the aforesaid scheme to all the employees prospectively so the persons who were employed on 19/10/2010 were entitled for the benefit and other persons who were already superannuated, were not entitled for the aforesaid benefit.

To consider the aforesaid arguments, we have gone through the record to ascertain factual position of the case.

In this case, it was not disputed that the appellants were superannuated on 31/08/2010. The Regulation was notified on 05/03/2010 by the All India Council for Technical Education (AICTE), The State Government have given effect to the aforesaid notification, in particularly in respect of the age of superannuation, vide order dated 19/10/2010 (Annexure R-1) and the aforesaid Regulation was made applicable to all the Teachers who were working on the date of issuance of order i.e. on 19/10/2010.

The relevant paragraph of the Regulation dated 05/03/2010 about the age of superannuation, reads thus:

Age of Superannuation:

In order to meet the situation arising out of the shortage of teachers in Technical Institutions and the consequent vacant positions therein, the age of superannuation for teachers in Technical Institutions has been enhanced to sixty five years, vide the Department of Higher Education letter No. F. No. 1-19/2006-U.II dated 23/03/2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period.

The applicability of the scheme clause reads thus:

Applicability of the Scheme:

(i) This scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mention in this letter as well as Regulations to be framed by the AICTE in this behalf.

(ii) This scheme does not extend to the posts of professionals like System Analysis, Senior Analysis, Research Officers etc., who shall be treated at par with similarly qualified personnel in research/Scientific organizations of the Central Government.

(iii) This scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State Legislatures.

(iv) The entire liability on account of revision of pay scales etc. of Polytechnic teachers shall be that of the State Government.

State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this scheme, and may give effect to the revised bands/scales of pay from a date on or after 01/01/2006. However, appropriate steps to achieve the goals and objectives of MHRD''s "Sub-Mission on polytechnics" may be taken.

As the hindi version of the aforesaid notification has been referred by the learned counsel for the appellants, so the aforesaid provision is also reproduced which reads thus:

(Emphasis supplied)

From perusal of the aforesaid, it is apparent that the hindi version of the scheme provides that the scheme shall be applicable to all the Polytechnic Institutions which are under the State Government. The English version of the aforesaid clause specifically provides that the scheme may be extended to all the Polytechnic Technical Institutions coming under the purview of State legislatures. If there is some ambiguity between the hindi version and english version, the english version has to be given effect. [See: M/s. Park Leather Industry (P) Ltd. and Another Vs. State of U.P. and Others, and Prabhat Kumar Sharma Vs. U.P.S.C. and Others, . The english version of this Regulation provides that the scheme was to be extended to all the Polytechnic Technical Institutions coming under the purview of State legislatures. The State Government vide notification (Annexure R-1) dated 19/10/2010 has given effect to the aforesaid scheme from the date of issuance of notification that is 19/10/2010 and any teacher who was in service on that date was entitled for the benefit of such scheme and was entitled to continue till attaining the age of 65 years.

A Division Bench of this Court have considered this aspect in Dr. R.K. Chapra & others Vs. State of Madhya Pradesh in Writ Petition No. 5267/2010, considering similar provision held thus:

The State Government vide order dated 16/04/2010, Annexure P-10 has taken a decision to implement the scheme with certain modifications. The age of superannuation as recommended in the scheme for the Central Government teaching staff has been enhanced from 62 years to 65 yeas. However, the same has been made applicable with effect from the date of order i.e. 16/04/2010. From perusal of the scheme framed by the Central Government, it is apparent that aforesaid scheme is not binding on the State Government. In our opinion, the contention of learned counsel for petitioners that petitioners who are teachers working in the Department of Higher Education of Government of M.P., are also entitled to get the same benefit which has been granted to teaching staff of the universities, is misconceived. Supreme Court while dealing with the claim of servants with regard to parity of pay scales with their counter part in the university in State of West Bengal and others Vs. Tropical School Employees'' Union and others, in paragraph 5 held as under:

Shri M.N. Krishnamani, the learned senior counsel for the respondents, contended that the teaching staff are receiving the scale of pay prescribed by the UGC and the respondents are assisting the teaching staff. When similar persons working in the universities are receiving the pay scales prescribed by the UGC the respondents are also equality entitled to the same. We fail to appreciate the stand. The employees of the universities are not the government servants. They are governed by their own regulations and statues under the respective enactments. The respondents on their own admitted position being the government servants, cannot get high scale of the pay then prescribed for the post. Under those circumstances, the High Court was wholly unjustified in extending the benefit of pay scales prescribed by the UGC to the non-teaching medical staff and also to class-IV government employees.

In view of the aforesaid enunciation of law by the Supreme Court, we hold that the order dated 16/04/2010 passed by the State Government can neither be treated as arbitrary nor discriminatory.

Apart from this, the Regulation of the AICTE was not applicable immediately on notification of Gazette on 05/03/2010, but it was to be extended by the State Government in the Polytechnic Institutions of the State Government and until and unless such Regulation is extended to the Polytechnic Institutions of the State Government, such benefit was not available to the employees of such institution coming under the purview of State legislatures. It is not in dispute that the appellants were working in Government Polytechnic Colleges, in the State of Madhya Pradesh and such benefit was available to the appellants only after extending such benefit of the Regulation to the employees.

In view of the law laid down by the Apex Court in State of W.B. vs. Tropical School Employee Union and others (referred in the order of Dr. R.K. Chapar) and the Division Bench in Dr. R.K. Chapar, there is no doubt that such Regulation was to be made applicable to the employees of Polytechnic Technical Institutions in the State and until and unless it is made applicable specifically, such benefit was not available to the employees because of specific clause of applicability of the Scheme.

In view of the aforesaid, learned Single Bench has rightly held that such scheme was made applicable to the employees w.e.f. 19/10/2010 and the appellants who had already attained the age of superannuation, were not entitled for the same benefit. In view of aforesaid, we do not find any error in the order passed by the learned Single Judge.

At this stage, Shri Ghildyal, submitted that because of ad-interim writ issued by the Single Bench, both the appellants have continue in the services till the decision of the Writ Court, out of two appellants, one Pradeep Agnihotri was paid monthly salary while Promod Mishra has not been paid fully. It was submitted that appellant Pramod may also be paid his salary till he had discharged the duty.

The prayer made by Shri Ghildiyal is opposed by Shri P.K. Kaurav, but considering the fact that out of two employees, one Pradeep Agnihotri has been paid his salary for the period he had discharged his duty while Pramod Mishra has not been paid for the same, the respondent is directed to release the payment to Shri Pramod Mishra also for the period, for which he had discharged his duty, within a period of three months. With the aforesaid modification, both the appeals are dismissed at admission stage, with no order as to costs.

CC as per rules.