'S^&eSsf ta-.i?^1-1' RYK%^S^oii?D^)«|: i^^;£'Xl?SPK^ED]NSCHEDaE ^i^SSK^^t^^^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH ^H /2008 WRIT APPEAL N0. r'~ -' (WRIT APPEAL UNDER SECTION 2 OF CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT 2006) kui-. APPELLANTS (RESPONDENTS) vf ,w.y~ h^ G ^ -/•\t"» /l. State of Chhattisgarh, Through: The Secretary, Departraent of Education, Mantralaya, D.K.S. Bhavan, Raipur, (C.G.) /2. Director Public Instructions, Directorate of F^iblic Instructions, Raipur (C.G.) /3. District Education OfBcer, Raipur (C.G.) VERSUS Padamdhar Singh, S/o - Late Shri Shivbaran Singh, Aged about - 63 years, District Librarian, R/o - Sr. 11, New Pension ^ Bada, Raipur (C.G.) ^t^^ ARISING OUT OF THE ORDER PASSED BY SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION NQ^793 /2005 ON 15 JANUARY, 2008 ^^^fr**3 f>- Division Bench ran S »E »• W State of Chhattisgarh and tA'o'others Padamdhar Singh 'ritAppeai underSection 2 of Chhattisgarh Hlgh Shr's Vinay Harit, Deputy Advocate General w!th Ms. Deepaii Pandey, Panel Lawyer for the State/appelianl Shri, Jitendra Pa!i, counsei for the on this 4th day of May,2010) WiSh the consent of iearned counsei appearing for the partses, the mattsr is heard finaliy. hhattisgarh and two others learned Singie Judgs in Writ jiven by tearneci counset of in terms of the order (2) This appeal has been fiied by the State of chal'enging the order dated 15-01-2008 passed by the Petition No.4793 of 2005 on the basis of concession appearing for the State thaS ths writ petition be disposed dated 02-04-2007 passed in W.P.(S) No.5073 of 2006. (3) However, it was mentioned that the respondent sha!! not be entitied for consequential benefits ftov/ing from the order dated 31-03-2007 i.e. the order passed by the State of Chhattisgarh, Higher Education Department, by vvhich, Librarians ttave been treated as Teachers in the Department of Higher Education snd would be entitled to retire at the age of 62 years. (4) The petitioner in Writ Petition (S) No.5073 of 2006 i.e. Rameshwar Prasad Choube was appointed as Laborafory Assistant in Zooiogy Department, s^ ( '^ I s^. '(<a ^^ ^t 39 Government Degree College, Abmikapur, but, later on, he was appointed as Librarian in the said Degree Coilege at Abmikapur. Slnce respondent in this writ appea! has never been appointed as Librarian in Govemment Degree Cotiege no.r he could have been treated at par with those, therefore, the order passed by the leamed Single Judge in W.P. (S) No.5073 of 2006 would not be applicable in the case of respondent, who was appointed as Librarian in the Higher Secondary Schooi. The order of appointment of various persons including that of the respondenf, dated 28-07-1971, was perused by us, which shows that as many as 49 candidates were selecfed for the post of temporary Librarian in Government Higher Secondaiy Schoois, thsrefore, candidate who was s.elected and appointed in the post of Librarian in the Higher Secondary Schoois cannot claim parity with that ofthe persons appointed on the post of Librarian in Degree Colleges. (5) Learned counsel appearing for the respondent has placed rellance on Madhya Pradesh Arajpatrit Tritiya Warg Shaishanik Sewa (Non-coilegiate Servics) iharti Tatha Padonnati Niyam, 1973, (hsreinafter referred to as the "Rules of 1973") in which, Rule-4 ofthe Ruies of 1973, it has been clearly mentioned thatthe sen/ice is constituted regarding the post mentioned in Schedu!e !. Initialiy in Scheduie !, post of Librarian was nof mentioned, but by way of an amendment on 21-05-1991, posts of Librarian in the Degree Colleges as well as in the Higher Secondary Schools and others have been included therein, but, no where, it has been mentloned aboutthe age of retiremsnt in the Rules of 1973. (6) Learned counsel for the respondent has also poinfed out the amendment of Fundamenta! Rules 58, notffied by Chhattisgarh Shaskiya Sevak (Adhivarsiiik!- Ayu) Adhinlyam, 1967, (For short "Adhiniyam, 1967") in which, iS has been provided that every Government Servant other than a Govemment Teacher and a Glass !V Government Servant shal! retire from service on the afternoon of the iast day of the month in which he attains the age of sixty years. In the explanation, it has been —• g •3^ A ;-% ^ ,,-ra^ iS yven that for the purpose of this sub-rule "Teacher" means a .Govemment Sen/ant by whatever designation callsd, appointed for the purpose of teaching in Government educationai Institution incfuding technical or medica! educationa! institutions, in accordance with the recruitment ru!es appticable 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 feaching for not less than twenty years provided he holds a lien on a post in the concerned Schooi/Co!legiate/Technica!/Medlcal education service. (7) But as we have already discussed above that the respondent was holding the post of Librarian in the Higher Secondary School and nothing has been produced to show that the Librarian of the Higher Secondary Schools wouid be Teacher vvithin the meaning of Adhiniyam, 1967, we are unable to hoi'd that Librarian in the Higher Sscondary Schools are Teachers. Deputy Advocate Genera! appearing on behaif of the snts/State submits that agreement of the learned State counsel before the te Judge was liable to be ignored as unless the statutory rules permit .ibrarian working in the Higher Secondary Schools at the age of 82 years, no order can be passed retiring the respondent at the age of 62 years. iearned Sing to retire the (9) !n view of the facts and circumstances mentioned above, we are of the opinion that unless fhe respondent shov/s any statutory provision that the Librarians working i;n the Higher Secondary Schoo!s would be treateci as teachers, respondent was rightly retired at the age of 60 years. (10) We therefore set aslde the impugned order dated 15-01-2008 passed by the leamed Single Judge in Writ Petition No.4793 of 2005 and aliow this writ appeai. (11) However, iiberty is reserved to the learned counse! for the respondent that in case, he brings any order or statutory provision of the State Government {reat.'nc __L. t\» the Librarians of Higher Secondary Schools as Teachers, it will be open for him to -^ggroach the Court again by fifing a fresh writ petition. 'umane Sd/. '•M-9«ddus, Jucfge Sd/- Manindra Mohan Shrivastava Judge