HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 5225 OF 2004 Monday, the Twenty Sixth Day of October, Two Thousand and Nine Between K.M. Mohan Rao Petitioner AND Acharya N.G. Ranga Agricultural University, Rep. By the Vice Chancellor, Rajendranagar, Hyderabad and others Respondents THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 5225 OF 2004 ORAL ORDER: By way of this writ petition, the petitioner challenged Memo No.19728/Ser.IV/A1/2003 dated 28.02.2004 whereby the Acharya N.G. Ranga Agricultural University, Hyderabad, rejected his request to retire him at the age of 60 years on par with the teachers working in the University. He also sought a consequential direction to the respondent University to fix his age of superannuation as 60 years as was done in the case of similarly situated employees. The petitioner entered in the service of the respondent University on 29.11.1967 as a Mechanic Grade – III (Engine Oil Driver). He was subsequently promoted as Mechanic Grade – II with effect from 1.8.1972 and was appointed as Draftsman with effect from 1.11.1972. He was further promoted to the post of Supervisor in the year 1978. By proceedings dated 12.02.1979, he was transferred and posted as a Research Assistant, which is a teaching post, and having joined in the said position on 9.03.1979, he continued in the same position till the date of filing of this writ petition and even thereafter. The teaching staff of the University retire from service at the age of 60 years while the non-teaching staff retire at the age of 58 years. It is the case of the petitioner that the duties attached to the post of Research Assistant, which he held right from 1979, primarily consisted of assisting research projects and conducting field experiments on tools, etc. so as to prepare reports on the experiments so conducted. He was also required to explain and instruct research graduates and postgraduates studying in the respondent University with regard to the use and advantages of specific tools and implements. He therefore claimed that he was working on the teaching side and his age of retirement would be that applicable to the teaching staff, i.e. 60 years. The petitioner also relied upon the fact that the respondent University had itself granted him an adhoc promotion and an additional increment in tune with the scheme extended by it to the teaching staff, when he completed 16 years and 24 years of service respectively. While so, the respondent University issued Circular Memo No. 17113/Ser.IV/A1/2003 dated 5.5.2003, stating that the date of superannuation of the petitioner was 31.05.2004, whereupon he would attain the age of 58 years, the age of retirement for non-teaching employees. The petitioner made representation dated 13.05.2003 pointing out the he had worked as a Research Assistant in the University from 1979 and therefore he should be treated as a member of the teaching staff; and requested that his age of superannuation should be fixed at 60 years on par with the other teachers working in the University. He filed W.P. No. 3834 of 2004 aggrieved by the inaction on the part of the respondent University in acting upon his representation. During the pendency of the said writ petition, he was served with the Memo dated 28.02.2004 informing him of the rejection of his request by the respondent University. Hence, this writ petition. In the counter affidavit filed by the respondent University through its Registrar, it is admitted that the petitioner having been appointed on the non-teaching side was thereafter transferred and posted as a Research Assistant, a teaching post, with effect from 9.3.1979. It is, however the case of the University that the petitioner was never appointed to the said post but was only posted in it and therefore he could not claim to be a member of the teaching staff. Though stating on the one hand that the petitioner was never treated as a teacher, the University admitted that he was assigned the scale of a Research Assistant, though he was not appointed to the said post as per Regulations. The respondent University therefore justified the stand adopted by it as reflected in the Memo No.19728/Ser.IV/A1/2003 dated 28.2.2004 and asserted that the petitioner, being a member of the non-teaching staff of the University, was required to retire at the age of superannuation for such employees, i.e. 58 years. The short point that arises for consideration in this writ petition is whether the petitioner should be treated as a member of the teaching staff of the respondent University thereby entitling him to retire at the age of 60 years, the age of superannuation of teaching staff instead of 58 years, the age of superannuation of non-teaching employees. Learned counsel for the petitioner stressed upon the fact that the petitioner was made to work in a teaching post since 9.3.1979 without break and asserted that it was not open to the University to treat him as a non-teaching employee. The learned counsel submitted that the petitioner had to forego various benefits which he would have got on the non-teaching side had he continued in that service. He stated that the petitioner would have, in fact, retired as an Executive Engineer had be continued on the non-teaching side. He further submitted that having utilized the services of the petitioner on the teaching side, it was not open to the respondent University to deprive him of the benefit of retiring at the later age of 60 years, the age of superannuation applicable to such teaching employees. The learned counsel also pointed out that the predecessor of the petitioner, one T.Satyanadha Rao, who was also a Supervisor on the non-teaching side, had been similarly brought into the teaching post of Research Assistant and was continued till the age of 60 years. Learned counsel submitted that the stand adopted by the respondent University insofar as the case of the petitioner is concerned, clearly demonstrates discrimination as he stood on the same footing as T.Satyanadha Rao. The respondent University denied parity between the petitioner and T.Satyanadha Rao, stating that T.Satyanadha Rao was eligible, being a diploma holder, to be posted as a Research Assistant as per the Regulations prevailing at that time and therefore he was retired at the age of 60 years. It is pointed out by the University that the petitioner was not eligible to be appointed as a Research Assistant at the time of his transfer as the qualifications for the post of Research Assistant had been upgraded by then. It is however to be noted that notwithstanding the alleged lack of eligibility of the petitioner, the respondent University not only resorted to the practice of transferring and posting him as a Research Assistant, but continued to utilize his services on the teaching side from that date upto the date of his superannuation. In this regard, reference may be made to the definition of ‘Teacher’ as per Sec. 2(n) of the A.P. Agricultural University Act, 1963. As per Sec. 2(n), a teacher includes a Professor, Reader, Lecturer or other person appointed or recognized by the University for the purpose of imparting instruction or conducting and guiding research or extension programmes and any person declared by the Statutes to be a Teacher. The facts of the present case clearly demonstrate that the respondent university recognized the petitioner as a teacher as it utilized his services on the teaching side for 2½ decades and extended to him the benefits normally given to teachers. Having done so, it is not open to the respondent University to baldly state now that the petitioner was not appointed to a teaching post and therefore must be deemed to be a non-teaching employee, who was bound to retire at the age of 58 years. Learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in P.S. Ramamohana Rao Vs. A.P. Agricultural University and another( [1]), wherein the Supreme Court dealt with the issue as to whether a Physical Director in the Agricultural University would be a teacher in the University. Having considered the nature of the duties and functions discharged by a Physical Director, the Supreme Court came to the conclusion that he falls within the definition of a teacher in Clause (n) of Sec. 2 of the A.P. Agricultural University Act, 1963. In the present case, the issue is much simpler as I am not called upon to examine as to whether the nature of duties attached to the post of Research Assistant would bring it within the definition of teacher in clause (n) of Sec. 2. Learned counsel for the respondent University fairly concedes that the post of Research Assistant is borne on the cadre of the teaching staff of the respondent University. The only point urged by him is that the petitioner was not appointed to a teaching post but was only transferred and posted in it and therefore he could not be treated on par with the teaching staff. This argument is liable to be rejected for the reasons already aforementioned. Having recognized him as a Research Assistant for all these years, the respondent University cannot take advantage of its own unholy practice of transferring a non-teaching employee to a teaching post and then seek to deprive him of the benefit of such service ignoring the fact that it had continued to utilize his services on the teaching side for decades. The writ petitioner is therefore entitled to retire at the age of superannuation fixed for the teaching staff of the University, i.e. 60 years. It is brought to my notice that pursuant to the orders passed by a Division Bench of this Court in Writ Appeal No. 875 of 2004 arising out of the refusal by a learned Single Judge to grant interim orders in this writ petition, the petitioner was continued in service upto the age of 60 years, but without salary. In the light of my finding that the petitioner is entitled to retire at the age of superannuaiton fixed for teachers i.e. 60 years, he is also entitled to the full salary and other attendant benefits due for the period of service rendered by him pursuant to the orders of this court in Writ Appeal No. 875 of 2004. In the event the respondent University has already paid the said salary, the same shall be given credit while computing the amounts payable to the petitioner under the present order. The respondent University shall also take into account the services rendered by him upto the age of 60 years for the purpose of computing pensionary and other retirement benefits. The Writ Petition is accordingly allowed. There shall be no order as to costs. __________________ Justice Sanjay Kumar October 26, 2009 MAS. [1] (1997) 8 Supreme Court Cases 350