Syed Amin Khalandar vs The Director of Collegiate Education and others

T. Jayarama Chouta, J.—In this Writ Petition, the petitioner has prayed to issue appropriate Writs, Orders or Directions and in particular

issue a Writ in the nature of Certiorarified Mandamus after calling for the concerned records from the third respondent pertaining to their

proceedings in reference No. D. 1831/C/88 and quash the order dated June 6, 1988 and consequently direct the respondents to continue the

services of the petitioner till May 31. 1989.

The brief facts necessary for the disposal of the above writ petition are as follows : The petitioner who was working in the third respondent

college as ""Librarian"" has reached the age of superannuation on June 9, 1988. The post of ""Librarian"" is categorised as ""Teacher"" u/s 2(10) of the

Tamil nadu Private College (Regulations) Act, 1976 (hereinafter referred to as the Act). u/s 17 of the said Act, the Government is empowered to

prescribe the service condition of the teachers employed in private colleges and that includes fixation of age s of retirement. The third respondent

college is a ""private college"" within the meaning of Section 2(8) of the Act. The service conditions of the teachers working in private colleges in the

State of Tamil Nadu are governed by the above Act and the Rules framed thereunder.

The Government of Tamil Nadu by their order in G.O.Ms. No. 281, Education Department, dated February 13, 1981 have prescribed the age

of retirement for teachers working in private colleges as 58 years. By the very same order, they have also made it clear that in the event of the

retirement age falling in the middle of the academic year the services of such teachers should be continued till the end of the academic year. Under

the said order no discretion is vested with any authority to modify the terms as provided. Further, in order to avoid any ambiguity the Act itself

defines the term ''academic year'' u/s 2(1) of the Act. By the said definition the ""academic year"" means the year commencing on the first day of

June.

In view of the fact that the age of superannuation falls on June 9, 1988, the petitioner is entitled to continue in the post of Librarian in the third

respondent college till May 31, 1989 as per the orders of the Government. On April 22, 1988 the petitioner made a representation with the

second respondent asking for his orders to continue in service till May 31, 1989. The said letter was communicated with the recommendation by

the third respondent vide their letter dated April 25, 1988. In the said letter, it was stated that the petitioner is entitled to continue in service and

necessary orders were sought for from the second respondent. The second respondent without even passing any order returned the request made

by the third respondent with an endorsement dated April 29, 1988, stating that no such permission can be given. In accordance with the

communication received from the second respondent, the third respondent by an order dated June 6, 1988 has informed the petitioner that he will

retire from service with effect from June 30, 1988.

As against the said order of the third respondent, the present writ petition has been filed.

On behalf of the respondent, the Director of Collegiate Education has filed a counter affidavit denying all the allegations made in the affidavit filed

by the petitioner except those which are specifically admitted by him. He has stated that ""Librarians"" in the Government colleges are now

considered as non-teaching staff. Government in their letter No. 106727/22/82-2, dated March 29, 1988 have stated that the question of

considering the ""librarians"" in aided colleges as teaching staff is a general issue and could be decided based on the final orders to be issued in

respect of librarians in Government colleges, which is separately under consideration.

According to the G.O.Ms. No. 281, Education dated February 13, 1981, the age of retirement of aided college teachers shall be 58 years for

the purpose of assessment of grant. No teacher shall be permitted to continue beyond 58 years for the purpose of assessment of grant. Those who

attained the age of 58 years in the middle of the academic year shall however be permitted to continue till the end of the academic year. The above

rule will apply only to the category of teachers. According to Section 17 of the Act, Government have every power to make rules in consultation

with the University in the matter relating to conditions of service of the employees of private colleges. The order relating to the age of retirement

passed within the purview of condition of service, according to the G.O.Ms. No. 281, Education dated February 13, 1981, aided College

teachers shall be reemployed upto the end of the academic year. But since, the question of treating Librarians as teaching staff is under the

consideration of the Government, the petitioner was not re-employed upto the end of the academic year. On these grounds, he has prayed this

Court to dismiss the writ petition as devoid of merits.

I have heard Mr. K. Chandru, learned counsel for the petitioner. He submitted that the respondents 2 and 3 have no discretion vested with them

to reject the request of the petitioner to continue the services till the end of the academic year as long as librarian is categorised as a teacher u/s

2(10) of the Act. It is submitted that the third respondent who is a private college within the meaning of Section 2(8) of the Act and u/s 17 of the

Act, the Government is empowered to prescribe the service conditions of the teachers employed in private colleges and that includes fixation of

age of retirement. In this connection, he has invited my attention to the judgment of this Court in W.P. No. 1107 of 1979 decided on November

17, 1981, wherein this Court after interpreting Section 2(10) of the Act and Section 2(j) of the Tamil Nadu University Act, has held that in the light

of the definition of teacher found under the two enactments, the librarian has to be treated only as a teacher and not otherwise.

He has further submitted that instead of complying with the said decision to deviate the said decision, the Government has passed another

G.O.Ms. No. 1489, Education Department, dated November 5, 1990, which reads as follows :-

According to the definition of the term ''teachers'' as provided in Section 2(10) of the Tamil Nadu Private Colleges (R) Act, 1976 (President''s

Act 19 of 1976) the term ''teacher'' includes Librarians. In the G.O. first read above it has been ordered that the age of retirement of teachers of

the aided colleges shall be 58 years for the purpose of assessment of grant and that those who attain 58 years in the middle of the academic year

shall be permitted to continue till the end of the academic year. However, the above G.O. was not issued invoking the powers under the above

said Act and as the expression ''teaching staff'' has not been defined in the above G.O. it cannot be said to include Librarians. Hence the Director

of Collegiate Education has requested the Government to issue orders permitting the librarians of aided colleges on par with the teaching staff for

re-employment upto the end of the academic year concerned, even after attaining the age of 58 years.

2 The Government have examined the proposal carefully. The Government continue the services of those teachers who attain 58 years in the

middle of an academic year, till the end of the academic year in order to have continuity in teaching and to maintain academic standard. But since

librarians are on the administrative side and stand on a different footing and hence the Government do not o consider it necessary to extend the

concession granted in the G.O. first read above to the Librarians of aided colleges"".

The above said Government Order was challenged before this Court in W.P. No. 8017 of 1992 and this Court by its order dated January 24,

1994 allowed the writ petition by quashing the said Government Order. The learned Advocate also pointed out that the said decision has been

followed by this Court in W.P. No. 15097 of 1994 decided on September 29, 1994. On these grounds, the learned advocate for the petitioner

submitted that the present writ petition is entitled to be allowed.

On the other hand, the learned Government Advocate appearing on behalf of the respondents took me through the counter affidavit and

submitted that in view of G.O.Ms. No. 1489, Education Department, dated November 5, 1990, wherein the benefit extended to the teachers has

not been extended to the administrative side which stands on a different footing. The petitioner being the librarian cannot get the said benefit.

According to her, librarians are not the teaching staff and they are only on the administrative side and hence, the concession shown to the teachers

permitting them to continue till the end of the academic year will not be available to them. She has further submitted that u/s 17 of the Act,

Government has every power to make rules in consultation with the University in the matter relating to conditions of service of the employees of

private colleges and the question of treating librarians as teaching staff is under consideration of the Government.

After hearing the rival submissions, perusing the affidavit and counter affidavit and the provisions of the Act, I am of the opinion that the

respondents are not justified in not extending the services of the petitioner till May 31, 1989 i.e. till the end of the academic year. As long as

librarians are included in the definition of teacher, then they have to be treated only as teacher and not otherwise. Section 2(10) of the Act defines

teachers as follows :

Teachers"" means such Professors, Assistant Professors, Readers, Lecturers, Demonstrators, Tutors, Librarians and other like persons as may be

declared to be teachers by the statutes framed under any law for the time being in force governing a University

Similarly, ''teacher'' has been defined in Section 2(j) of the Tamil Nadu University Act, 1923, which reads as follows :

Teachers"" means such Professors, Assistant Professors, Readers, Lecturers, Librarians and other like persons as may be declared by the statutes

to be teachers"".

In excluding the librarians from the purview of G.O.Ms. No. 281, Education Department, dated February 13, 1981 and denying the concession to

librarians to retire till the end of the academic year on their superannuation is discriminatory and violative of Article 14 of the Constitution of India.

G.O.Ms. No. 281, Education Department, dated February 13, 1981 has been clarified under the order in G.O.Ms. No. 1489, Education

Department dated November 5, 1980, which has been extracted above. The said Government Order has been struck down by this Court. When

Act 18 of 1976 and Tamil Nadu University Act, 1923 define ''teacher'' including ''librarians'', the petitioner being a librarian, I cannot understand

how the Government can alter or withdraw the concession by means of an executive order. Therefore, I am unable to agree with the Government

Advocate.

Even assuming that the conditions of service can be different for the post of librarians and teachers, that could be done only after consulting the

University concerned. It is seen that even before the original Government Order passed by the Government in G.O.Ms. No. 281, Education

Department, dated February 13, 1981, the University was consulted and subsequent Government Orders seem to have been passed without

consulting the University. As per Section 17 of the Act, change or alteration of the service conditions could be done only after consulting the

university. In this case, it has not been done. That apart, a statutory provision cannot be modified or clarified by means of an executive order. For

all the reasons, I allow this Writ Petition. The respondents are directed to pay the salary till the end of May 31, 1989, within a period of eight

weeks from the date of receipt of a copy of this order.