Bombay High Court
Dr. Sakhaullah S/O. Darab Khan vs Visvesveraya Regional College Of ... on 2 December, 1998
Equivalent citations: 1999(2)BOMCR38
Author: A.B. Palkar
Bench: A.B. Palkar
ORDER A.B. Palkar, J.
1. The only material question that is now posed for our decision in this petition, is whether the petitioner who was admittedly appointed as Bio-chemist with the respondent No. 1 Institution- viz. Visvesvaraya Regional College of Engineering Nagpur, has in fact worked as a lecturer or a member of the teaching staff and for that reason on the basis of equivalence in the nature of duties or on the principle of equal pay for equal work; he is required to be paid the scale which the respondent No. 1 has been paying to the lecturers from the date form which he was, in fact, required to discharge the duties of the aforesaid nature.
2. The petitioner holding a Master Degree in Bio-Chemistry and a doctorate also in the said branch, was appointed as Bio-Chemist by respondent No. 1 with effect from 1984. As per the Rules applicable, the retirement age of the teaching staff was 60 years whereas for other staff members including the demonstrator, Bio-chemist etc., the age of retirement on superannuation was 58 years. By office order dtd. 4-1-1994, petitioner's retirement age on superannuation was shown as 58 years which he was to attain on 31-10-95.
3. In brief, the petitioner's contention is that his post was in fact a post of teacher and, therefore his age of retirement by superannuation was 60 years and he has, therefore prayed for quashing of the said order dtd. 4-1-94. Although he had prayed for interim direction to stay the effect of the aforesaid order, no such direction has been issued by this Court. There remains the only prayer of petitioner worth considering that he should be declared as a teacher although holding the post of Bio-chemist and consequently his retirement age be declared to be 60 years, which prayer has now become infructuous in view of the fact that he has already retired at the age of 58 years. However, the petitioner's request can be considered to the extent of giving him the pay scale equivalent to that of lecturer i.e. a member of the teaching staff at least from the date from which he has in fact discharged such duties. We have been informed by the learned Counsel of the petitioner that as per record, he was officially required to discharge the duties of a lecturer after the retirement of professor Shri. W.M. Deshpande. As the Professor Shri W.M. Deshpande retired on 30-9-92 the petitioner as per the available record with the Court at present, discharged the duties as a member of the teaching staff i.e. lecturer by actually taking classes even of Post Graduate Students from 1-10-1992.
4. Although in the petition, these dates are not specifically mentioned, we have been informed of these dates by the learned Counsel for the petitioner, which respondents have not disputed.
5. According to the petitioner since he was holding a doctorate in Biochemistry and had good reputation in the technical field, especially in his subject of Bio-chemistry and had published number of papers, he was considered having sufficient qualification to teach the said subject of Bio-chemistry as well as Environmental Engineering by the authorities and was asked to discharge the duties of a lecturer. In any case, positively after the retirement of Professor Shri W.M. Deshpande. Admittedly the petitioner was appointed as Bio-chemist and we are told that this is a unique post which is only in the respondent No. 1 college viz. Visvesvaraya Regional College of Engineering, 'Nagpur. The posts of Bio-chemist are there is certain Medical Colleges but so far as Engineering Colleges are concerned, this is a unique college is having such a post.
6. During the tenure of service, the petitioner has made attempts to convince the authorities to absorb him either in the post of lecturer or to consider him equivalent to the said post i.e. to say to grant him the pay scale of lecturer. However, this request was not accepted and as already pointed out the petitioner has retired on attaining the age of 58 years in the year 1995, immediately after filing of the present petition.
7. The respondent No. 1 who is primarily responsible to grant the pay scales and for payment of salary to the petitioner, has denied the claim in its entirity. However, the fact that after the retirement of Professor Shri Deshpande, he was asked to work as a lecturer or to do the work of teaching in place of said Shri Deshpande for a period of 6 months, has not been specifically denied by the contesting respondents in the entire Return. There is no specific denial that petitioner was asked to discharge the work of lecturer and asked to teach students including post graduate class students. There does not appear any substance in the vague denial in as much as there is ample correspondence on record which shows that even the responsible Heads of the Departments under whom the petitioner was working had from time to time brought to the notice of the respondent No. 1 that the petitioner was in fact doing the work of giving lecturers even to Post Graduate students. It is not possible for us to accept, in the absence of any material on record, that all these letters written by such highly placed responsible persons like the Heads of Departments were managed by the petitioner to suit his case.
8. The petitioner's claim is based mainly on the fact that he has in fact discharged the duties of a lecturer and has also done certain functional jobs as paper setting, working as examiner and, therefore, he cannot be put at disadvantageous position by not paying him the scale which the respondent No. 1 is paying to the persons discharging such duties. In other words, he cannot be discriminated against. It is an admitted fact that his initial appointment was as a technical assistant which post was later on abolished and he was appointed as associate teacher in bio-chemistry. The post being unique in nature, it is not possible to find it's equivalent in other Engineering Colleges. The respondent No. 1 had also entered into correspondence with some of the Medical Colleges to have comparison with the post of Bio-chemist in these colleges.
9. There is ample material on record which clearly indicates that although posted as Bio-chemist, the petitioner had been asked by the respondent No. 1 to discharge the function of the members of the teaching staff, in other words, to do the work of lecturer. At the cost of repetition, we would like to point out that after retirement of Professor Shri Deshpande, he was asked to work as a lecturer and to give lectures in the subjects which Professor Deshpande was teaching the students as there was no other person available to discharge the said function.
10. The petitioner was also asked to work as a paper setter and examiner as is clear from the page Nos. 48, 49, 61, 62- Annex, P- 16, P- 17, P- 18, P- 19 and P- 20. Page 58 is the letter from the Assistant Registrar, Nagpur University to the Dr. W. M. Deshpande and the petitioner in which it is clearly mentioned that the petitioner and said Shri W. M. Deshpande were appointed as paper setter and examiner in the respective subjects- Environmental Biology and Microbiology and Environmental Engineering. The petitioner was appointed as internal examiner and both of them were asked to prepare 3 different sets of question papers in accordance with the syllabus and general instructions already issued. Column No. 5 of the letter in categorical terms states that the internal examiner "petitioner" shall submit a composite paper after consulting external examiner by correspondence to the Registrar of the University on or before 15th March, 1994, alongwith the original question papers of the external examiner. Two topics to be covered in two different sections shall be mutually decided by the internal and external examiners by correspondence if not separately given in the syllabus.
11. At page 59, there is another letter written to petitioner by the Assistant Registrar informing him that he had to set the question papers of Environmental biology and micro-biology for the examination of the second semister of M.Tech (Environmental Engineering) to be held in Summer 1994. Similar is the letter at page 60 whereby the petitioner was informed that he has been appointed as examiner for the practical examination in Environmental Chemistry Laboratory for 1st semister of M.Tech (Env. Engg.) to be held on 2-1-1995 at Visvesvaraya Regional College of Engineering, Nagpur. At page No. 65, there is an office order which permits the petitioner to avail the facility of L.T.C. and we are told by the learned Counsel for the petitioner that this facility is not provided to non- teaching staff. Even if that aspect of the matter is not considered, the earlier referred documents clearly show that the petitioner was asked to do the work of a member of teaching staff and was also called upon to do ancillary functions as examiner and paper setter which work would normally not been assigned to a person who is not, according to the respondent No. 1, a member of the teaching staff. In any case, this material sufficiently indicates that as a matter of fact the petitioner was asked by the respondent No. 1 - Institution to do the teaching job and also by the University to work as examiner and paper setter and, therefore, it is not possible to accept the contention of the respondent No. 4 that the petitioner may have secured some letters from the Heads of the Departments where he was working to show that he has in fact worked as a lecturer. As already pointed out, the petitioner having retired from service after filing of this petition and consequently not having worked after attaining the age of 58 years, there is no question of considering his earlier request as there was no stay to the order impugned in this petition. The only relief that can possibly be granted to the petitioner on accepting his contention that he has on the directions of respondent No. 1 as well as University the respondent No. 4, practically worked as a lecturer and has also discharged ancillary functions of paper setting and examiner which as pointed out as per the present record after the retirement of the Professor Shri W. M. Deshpande w.e.f. 1-10-1992, the petitioner's request for granting him equivalent pay scale of a lecturer deserves consideration as the same is wholly justified.
12. Smt. Sirpurkar the learned Counsel for the petitioner has brought to our notice one unreported Judgment of this Court passed in W.P. No. 1240/81 delivered on 18th July, 1989 (Deshpande & D. J. Moharir, JJ.). In that case the petitioner was appointed as a foreman with the Laxminarayan Institute of Technology in short LIT Nagpur. This institution is maintained and run by the Nagpur University and the order of Director of Education refusing to recognise the petitioner in that case as a teacher and grant him revised scale as implemented by the Government of Maharashtra was challenged. The petition was allowed and the order impugned therein was quashed by this Court.
13. The petitioner has also placed reliance on the Judgement of the Apex Court Grih Kalyan Kendra Workers' Union v. Union of India and others, para 6 on page 1176.
14. In view of this law laid down by the Apex Court after carefully scrutiny of the entire material placed before us, we are of the considered opinion that the petitioner deserves to be granted scale of pay equivalent to that of a lecturer with periodical increments at least from the date from which he was officially called upon to discharge the said duties on retirement of Professor Shri W.M. Deshpande w.e.f. 1-10-92. The petitioner would be entitled to get his pay fixed in the scale of lecturer from the aforesaid date. The respondents are directed to fix the petitioner's pay scale in the grade of a lecturer w.e.f. 1-10-92 with periodical increments as admissible under the rules and after calculation of his pay scale on the said basis on pending increments upto the date of his retirement i.e. 31-10-1995, grant him retirement benefits and pension admissible under the rules within a period of 6 months from the date of receipt of this order.
15. Rule is made absolute in the aforesaid terms.