Madhya Pradesh High Court
Dr. Upendra Kumar Gupta vs The State Of Madhya Pradesh Thr on 20 December, 2017
1
Writ Petition No.3328/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : VIVEK AGARWAL, J.)
Writ Petition No.3328/2016
Dr. Upendra Kumar Gupta
Vs.
State of MP & Others.
Shri Pawan Dwivedi, learned counsel for petitioner.
Shri Praveen Newaskar, learned Government Advocate for
respondents.
Date of hearing : 28.11.2017.
ORDER
(Passed on 20th December, 2017) This order shall also govern the disposal of Writ Petition No.4905/2016 (Ajay Pratap Singh Chauhan v. State of MP & Others).
2. Petitioner has filed this petition being aggrieved by order dated 04.01.2016, whereby a decision was taken to superannuate the petitioner on attaining the age of 60 years with effect from 31.05.2016. He has also prayed for quashing orders dated 24.05.2016 and 27.01.2017. Vide order dated 24.05.2016, the petitioner was directed to superannuate in the afternoon of 31.05.2016 by the Principal/Chief Executive Officer, Government Autonomous Ayurved College and Hospital, Gwalior and vide order dated 27.01.2017, a decision has been taken by the Commissioner Directorate of Ayush holding that the provisions of FR 56 (1)-A will not be applicable to the case of the petitioner inasmuch as he had not put in 20 years of teaching and consequently directions have been issued to the Officer Incharge to file additional return in the High Court.
2 Writ Petition No.3328/20163. It is petitioner's contention that the petitioner was appointed as Ayurved Medical Officer vide order dated 31.01.1985 and thereafter was posted against the vacant post of Lecturer in Government Ayurved College, Gwalior vide order dated 14.06.2000. Ultimately his services were absorbed on the post of Lecturer in the said Government Ayurved College, Gwalior on 25.01.2012 and, therefore, by virtue of the provisions contained in FR 56 (1)-A, the petitioner is entitled to continue upto the age of 62 years. Petitioner submits that the interpretation, which has been given by the respondents to the provisions contained in FR 56 (1)-A that a person is required to put in 20 years of actual teaching so as to keep the age of superannuation at 62 years is faulty and is not maintainable inasmuch as such interpretation is against the provisions of law and further Explanation below FR 56(1)-A has used the word "and", which is disjunctive and it has been used for those officials who have been appointed to an administrative post by promotion or otherwise and not a teacher per se. Placing reliance on such submissions, the learned counsel for the petitioner prays for allowing the writ petition. It is submitted that the petitioner deserves to be continued in service upto the age of 62 years and, therefore, the petition deserves to be allowed.
4. Respondents, on the other hand, have taken a stand that in the year 1998, the State Government extended the age of Lecturers to 62 years and according to the State, clarification below FR 56 (1)-A has been given in the Fundamental Rules, which provides that the teacher as has been used in FR 56 will mean such Government servant who has been appointed in a 3 Writ Petition No.3328/2016 Government Educational Institute whether technical or medical for the purposes of teaching in consonance with the said Recruitment Rules and a person will be treated as teacher who has put in 20 years of actual teaching in the concerned College provided he skipping his lien on such post. Based on such submissions, it is submitted that since the petitioner has not put in 20 years of teaching after being appointed in terms of the Recruitment Rules on the post of Lecturer, therefore, the petitioner is not entitled to be continued upto the age of 62 years.
5. As far as the Explanation below FR 56 is concerned, it provides as under -
"A Government Teacher, other than a Government Teacher mentioned in sub-rule (1-g), (1-h) and (1-i), by whatever designation called, appointed for the purpose of teaching in Government educational institution including technical educational 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 a post in the concerned Government educational institution."
Thus, the Explanation clearly provides that there are two parts, one which deals with a Government Teacher appointed for the purpose of teaching in a Government Educational Institution in accordance with the Recruitment Rules applicable to such appointment, and the second part is that even if a person is 4 Writ Petition No.3328/2016 appointed to an administrative post by promotion or otherwise and who has been engaged in teaching for not less than 20 years, will also be considered as a teacher for the purpose of applying FR 56 (1)-A. Since there is no dispute about the proposition that in the year 2012, the petitioner's services were absorbed as Lecturer in the Government Ayurved College in terms of the Recruitment Rules applicable to such appointment, therefore, the petitioner will be treated as a Government teacher and will be entitled to continue in service upto the age of 62 years. In fact, the Explanation requiring 20 years of teaching experience is for those who have been appointed on an administrative post by virtue of promotion and not for a person appointed as a teacher and continuing to be a teacher on the date of his superannuation. In view of such facts, the petitioner is entitled to continue upto the age of 62 years.
6. Learned counsel for the State has placed reliance on the judgment in the case of Kumari Sikandar Sabana & Others v. State of M.P. & Others as reported in 2012 (2) MPHT 336 to impress upon this Court that there is interpretation to the Explanation below FR 56 (1)-A and, therefore, in view of such Explanation being explained by the Coordinate Bench of this Court, the petitioner ought to have retired on 60 years of age.
7. In fact, the case of Kumari Sikandar Sabana (supra) deals with interpretation of FR 56 and the ratio of the law is that only those teachers, who are appointed under the M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990, Madhya Pradesh Technical Education Engineering 5 Writ Petition No.3328/2016 College (Teaching Cadre) Service (Recruitment) Rules, 2004 and Madhya Pradesh Technical Education Polytechnic College (Teaching Cadre) Service (Recruitment) Rules 2004 by Rule 56 (1-g), 56 (1-h) and 56 (1-i) respectively, have been provided with the age of 65 years and all the remaining teachers age continues to be 62 years as provided under Rule 56 (1)-A. Therefore, it is incorrectly submitted by the learned Government Advocate that the ratio in the case of Kumari Sikandar Sabana (supra) will be applicable to the facts and circumstances of the case inasmuch as the case of Kumari Sikandar Sabana has not undertaken analysis of the word "And" in the Explanation below FR 56 (1-A).
8. Accordingly, it is held that since the petitioner was appointed to the teaching post of Lecturer in the Government Ayurved College prior to attaining the age of superannuation, therefore, he will be entitled to continue upto the age of 62 years. Thus, the petition is allowed and the impugned orders are quashed.
(Vivek Agarwal) Judge 20.12.2017 Mehfooz/-
MEHFOOZ AHMED 2017.12.20 16:29:16 +05'30'