IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 12893 of 2007(I) ------------------------------------ PETITIONER(S): ----------------------- DR.AMBILI K.S., DEPUTY LIBRARIAN, IN-CHARGE OF LIBRARIAN, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, KERALA AGRICULTURAL UNIVERSITY, MANNUTHI, THRISSUR. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV.MR.S.SUJIN RESPONDENT(S): ------------------------ 1. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, MANNUTHI, THRISSUR. 2. THE VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, MANNUTHI, THRISSUR. 3. THE KERALA AGRICULTURAL UNIVERSITY, MANNUTHI, THRISSUR- REPRESENTED BY ITS REGISTRAR. 4. THE EXECUTIVE COMMITTEE OF KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS CHAIRMAN, THE VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, MANNUTHI, THRISSUR. ADDL. R5 & R6 ARE IMPLEADED. 5. STATE OF KERALA, REP.BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 6. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. ADDL. R5 & R6 ARE IMPLEADED AS PER ORDER DT. 25.6.07 IN IA. 8599/2007. BY ADV. MR.RENJITH THAMPAN FOR R1 GOVERNMENT PLEADER MR.T.T.MUHAMOOD FOR ADDL.R5 & 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON 01/07/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.12893/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DT. 5.2.07 SUBMITTED BEFORE THE IST RESPONDENT BY THE PETITIONER. P2:- COPY OF THE REPRESENTATION DT. 15.3.07 SUBMITTED BEFORE THE IST RESPONDENT. P3:- COPY OF THE LETTER NO.R2/844/07 DT. 13.2.07 SENT BY DEAN OF THE AGRICULTURAL UNIVERSITY. P4;- COPY OF THE ORDER NO.GA/C2/2346/99(ii0 DT. 8.7.99. P5:- COPY OF THE GO(P) NO.44/01/H.EDN. DT. 29.3.01. P6:- COPY OF THE PAY SLIP NO.H5/3007/i-186/2002-03 DT. 26.2.07. P7:- COPY OF THE GO(P) NO.179/90/AD DT. 25.6.90. P8:- COPY OF THE ORDER NO.GA/522/3908/06 DT. 30.1.06 ISSUED BY THE IST RESPONDENT UNIVERSITY. P9:- COPY OF THE ORDER NO.GA/C2/10/77/99 DT. 15.10.05 ISSUED BY THE IST RESPONDENT UNIVERSITY. P10:- COPY OF THE ORDER GO(MS) 35 DT. 16.6.03 ISSUED BY THE GOVERNMENT OF ANDHRA PRADESH. P11:- COPY OF THE ORDER GO(MS) 270 DT. 8.10.01 ISSUED BY THE GOVERNMENT OF TAMIL NADU. P12:- COPY OF THE ORDER NO.F.3-1/94(PS) -7 DT. 19.10.06 ISSUED BY THE UNIVERSITY GRANTS COMMISSIONER NEW DELHI. P13:- COPY OF THE CERTIFICATE DT. 2.3.07 ISSUED BY THE DEAN OF COLLEGE OF VETERINARY & ANIMAL SCIENCE OF THE IST RESPONDENT UNIVERSITY. P14:- COPY OF THE RELEVANT PAGES OF CURRICULA & COURSE CATALOGUE OF THE COLLEGE OF VETERINARY & ANIMAL SCIENCES OF THE SIT RESPONDENT UNIVERSITY. P15:- COPY OF THE RELEVANT PAGES OF THE IST RESPONDENT UNIVERSITY ACT ACT NO.33/71 WITH AMENDMENTS UPT 31.3.01. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12893 of 2007-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2009. JUDGMENT The petitioner herein was working as Deputy Librarian in the Kerala Agricultural University. The retirement age in the said post is 55 years. The petitioner contends that the post of Librarian should be treated at par with a teaching post and therefore she is entitled to continue up to the age of 60 years. 2. The contentions raised by the petitioner in a nutshell are the following: She is having the qualification of Master’s Degree in Library Science with Publications and Ph.D. degree in Library and Information Science. She was given the full additional charge of the post of Librarian in the College of Veterinary and Animal Sciences of the Kerala Agricultural University for the year 1981 and she had worked for 17 years as Asst. Librarian in charge of Librarian and thereafter was promoted as Deputy Librarian. Seeking for appropriate action to allow her to continue up to the age of 60 years, she filed Exts.P1 and P2 representations and since no action was taken in the matter, this writ petition has been filed. 3. It is contended that Physical Education Lecturers were allowed to wpc 12893/2007 2 continue in service up to the age of 60 and in all the Agricultural Universities in the country, Librarians are allowed to continue in service up to the age of 60. Ext.P4 is produced in support of the said contention. It is further submitted that in Andhra Pradesh Agricultural University, Librarians are redesignated as Lecturers, Asst. Professors and Professors of Library and Information Science. In Tamil Nadu Agricultural University also the Government declared that Librarians are all teachers and entitled to continue up to the age of 60. Ext.P11 is the proceedings produced in support of the above plea. It is pointed out that under the Kerala Agricultural University both the Physical Education Director and Librarian are brought under the purview of the UGC Scheme in parity with the teaching staff, they are eligible for all the benefits such as promotion, scale of pay etc. under the UGC Scheme and are given the same benefits. But as regards retirement age, no decision has been taken by the University. 4. In para 10 of the writ petition, the petitioner has stated in detail the functions undertaken to impart instructions to the students, etc. It is pointed out that the petitioner has been imparting instructions to post- graduate students in Research Methodology Course, specially in C.D. Search. Ext.P13 is the certificate produced in support of the said plea. Ext.P14 is the curricula and course catalogue of the said subjects. wpc 12893/2007 3 5. In the counter affidavit filed by the first respondent University, the stand taken is that the petitioner is not a member of the teaching staff of the University. Since she has to retire at the age of 55 as stipulated in Section 44(5) of the Act, enhancement sought in the retirement age cannot be accepted. All the predecessors of the petitioner who were working as library staff, had retired at the age of 55. 6. By an interim order dated 13.9.2007, this court, after considering the contentions in detail, and after referring to the definition of “teacher” in Section 2(26) of the Kerala Agricultural University Act, directed the Government to consider at the highest level the controversies and to file an affidavit after taking appropriate decision. Accordingly, an affidavit has been filed on behalf of the Government. 7. In the affidavit filed on behalf of additional respondent No.6, viz. the Government of Kerala, it is pointed out that there is lot of difference between the work of the Librarians of other Universities and that of Kerala Agricultural University Librarian. The Librarians of other Universities offer Library Degree Course and are obviously teaching staff and that is not the case of the Librarian of Kerala Agricultural University. 8. Heard learned Senior Counsel Shri N.N. Sugunapalan, appearing for the petitioner, Shri Renjith Thamban, learned Standing Counsel wpc 12893/2007 4 appearing for the University and Shri T.T. Mohamood, learned Govt. Pleader. 9. Learned Senior Counsel submitted that under various circumstances, this court had allowed similar prayers in the cases of Physical Education Teachers, (O.P.No.24878/2002), Sub Editor of the Department of Malayalam Lexicon, University of Kerala (O.P.No.15370/96), Coach in charge of Director and Head of the Department of Physical Education, University of Calicut (O.P.No.2174/99), Director of Centre for Adult Education and Extension, University of Kerala (W.A.No.180/92), Director and Head, Department of Printing and Publishing, M.G. University, Sub Editor, Department of Malayalam Lexicon, University of Kerala (O.P.No.4209/1994). A recent judgment of the Allahabad High Court in Writ Petition No.1303/2005 also has been relied upon. My attention was invited to the decision of the Apex Court in P.S. Ramamohana Rao v. A.P. Agricultural University and another (AIR 1997 SC 3433) wherein it was held that Director of Physical Education in the University comes within the definition of ‘Teacher’. 10. In the said decision, the Apex Court held, after examining the various functions of the Physical Education Teacher, that “it is inherent in the duties of a Physical Director that he imparts to the students various wpc 12893/2007 5 skills and techniques of these games and sports. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these games.” In fact, the said dictum was followed by a learned Single Judge of this court in O.P.No.24878/2002, wherein it was declared that the Deputy Director of Physical Education in the Cochin University of Science and Technology is a teacher of the said University and he is entitled to continue in service till he attains the age of 60 years. A Division Bench of this court in W.A.No.2174/1999 also adopted the same test while considering the case of a Coach in charge of Director and Head of the Department, Department of Physical Education, University of Calicut. The same question was considered in the judgment in W.A.No.180/1992. 11. Therefore, the crucial question will be whether the petitioner imparts instructions to students to attain various skills. As mentioned already, in para 10 of the writ petition, it has been clearly averred that the petitioner had been imparting instructions to post graduate students in Research Methodology Course, especially in C.D. Search. Ext.P13 is the certificate produced in support of the above plea. The certificate shows that the petitioner is handling classes for MVSc. Programme in SRM 613 wpc 12893/2007 6 Research Methodology on the use of library, documentation of data, computer aided literature search and retrieval. She also gives training to undergraduate students on scientific use of library in a befitting manner. Ext.P14 is the curricula and course catalogue. The definition of “teacher” in Section 2(26) of the Kerala Agricultural University Act, is the following: “”Teacher” means the person appointed or recognised by the University for the purpose of imparting instructions or conducting and guiding research or extension education programmes, and includes any other person who may be declared by the Statutes to be a teacher.” Therefore, the crucial test is whether the functions, responsibilities and duties of the petitioner will be covered by the definition of “teacher” under the Act. 12. In the judgment rendered by the Allahabad High Court in Writ Petition No.1303/2005, the question was elaborately examined. The Special Leave Petition from the said judgment has also been dismissed by the Apex Court as per order dated 19.12.2008. Of course, there, the main question was whether the members of the association, viz. Uttar Pradesh Library Association are entitled for the ancillary benefits of UGC like Career Advancement Scheme and other benefits as has been provided to the Teachers and Directors of Physical Education. The same was allowed in wpc 12893/2007 7 their favour. Various materials and reports of certain committees have been considered in detail in the said judgment. The view taken is that Librarians cannot be treated differently with the teachers. Specific reference is made to Mehrotra Committee Report also. 13. Therefore, the important question is whether the petitioner will come within the definition of teacher. In the counter affidavit filed by the University, reliance is placed only on the statutory provision to contend that the petitioner has to retire at the age of 55. The issue has not been examined in the light of the various averments made by the petitioner in the writ petition and in the light of the definition of teacher in Section 2(26) of the Agricultural University Act, 1971. The affidavit filed by the Government also does not throw much light on this aspect. The crucial question is whether as held by the Apex Court in AIR 1997 SC 3433, the duties include teaching. If the said test is satisfied, the petitioner will be entitled for the benefit of enhanced retirement age. This court has also considered the question under various circumstances, as noticed already. These aspects have not been considered by the University or the Government at all. Therefore, the matter will be re-examined by the University and a fresh decision will be taken. The relevant aspects pointed out as above and wpc 12893/2007 8 the test laid down by various decisions of this court and the Apex Court will be considered while taking a decision. Appropriate action shall be taken within a period of three months from the date of receipt of a copy of this judgment. The petitioner will produce additional materials, if any, including the judgment of the Allahabad High Court mentioned above, before the University. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/