1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.3838 of 2007 Mr.Vaijanath Maruti Kadam. … … Petitioner v/s. The Government of Maharashtra & ors. … Respondents Mr.Suresh Pakale for petitioner. Ms.Manjiri Parasnis h/f Mr.Girish Godbole for respondent 2. Mr.Jitendra Pathade h/f Mr.R.V. Govilkar for respondent 5. Mr.C.R. Sonawane, AGP for respondents 1, 3 & 4. ------ CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVi, JJ. DATED : 3 rd March 2008 ORAL JUDGMENT : (Per Smt.Ranjana Desai, J.) 1. In this petition, filed under Article 226 of the Constitution of India, the petitioner is, inter alia, seeking a direction to the respondents not to retire him from the post of Director of Physical Education in respondent 2-college till he attains the age of 60 years i.e. till 31.5.2009 and a further direction to the respondents to grant him the revised pay scale 2 recommended by the University Grants Commission and all such subsequent pay scales as revised by the Government Resolutions issued from time to time to the post of Physical Education Teacher with effect from his initial date of appointment i.e. 1.9.1984. 2. Respondent 1 is the Government of Maharashtra, Medical Education and Drugs Department. Respondent 2 is the Ayurved college run and managed by the trust known as Sheth Sakharam Nemchand Jain Pharmacy & Hospital Trust. Respondent 2 College is an aided college and is affiliated to respondent 5 University. The said college is bound by the Government Resolutions issued by respondent 1 from time to time. Respondent 3 is the Directorate of Ayurved Maharashtra State, Mumbai. Respondent 4 is the Assistant Director of Ayurved, Pune. Respondent 5 is the health science university to which respondent 2 college is affiliated. 3 3. The petitioner's case is that he was initially appointed as Physical Education Teacher (Part Time). Respondent 4-Assistant Director of Ayurved, Pune sought guidance from the Directorate of Ayurved, Maharashtra State, Mumbai, in the matter of appointing the petitioner in respondent 2-college under his letter dated 11.1.1984. On 23.4.1984, respondent 3 wrote to respondent 4 giving his approval to appoint the petitioner in respondent 2-college on full time basis in the scale of Rs.500- 20- 700- 25- 900. 4. Pursuant to the aforesaid approval received from respondent 3, respondent 4 addressed a letter dated 31.5.1984 to respondent 2-college stating that respondent 3 had granted his approval to the appointment of the petitioner in respondent 2-college as Physical Education Teacher on full time basis and giving direction to respondent 2 college to take appropriate steps in the matter. 4 5. The petitioner was appointed as Physical Education Teacher (Full Time) in respondent 2-college with effect from 1.9.1984 in the scale of Rs.500- 20- 700- 25- 900. In the meanwhile, the Maharashtra University of Health Sciences was formed under the Maharashtra University of Health Sciences Act, 1998. Respondent 2-college has since been functioning under the rules and regulations framed by the said University. A committee known as “Approval Campaign Committee” was formed for the purpose of regularizing the approval granted by the conventional universities like Shivaji University, Kolhapur. 6. Vide letter dated 4.10.2004, the said committee regularized the approval granted to all the teachers employed with respondent 2-college. 7. The case of the petitioner is that though in the letter dated 4.10.2004 he is described as Director of Physical Education, he is a teacher within the meaning of 5 Section 2(34) of the Maharashtra Universities Act, 1994. It reads as under:- “ “teacher” means full-time approved professor, associate professor, assistant professor, reader lecturer, librarian, [principal, deputy or assistant librarian and documentation officer in the university and college librarian,] Director or instructor of physical education in any university department, conduced, affiliated or autonomous college, autonomous institution or department or recognized institution in the university.” The petitioner has also relied on the definition of the term 'teachers' as given in the Maharashtra University of Health Sciences Act, 1998. We may also quote Section 2(35) thereof, on which the petitioner has relied upon. It reads as under:- “teachers” means full time approved Demonstrators, Tutors, Assistant Lecturers, Lecturers, Readers, Associate Professors, Professors and other persons teaching or giving instructions on full time basis in affiliated colleges or approved institutions in the University.” 8. The petitioner relies upon Direction No.25/2001 issued by the Vice Chancellor of Maharashtra 6 University of Health Sciences in exercise of powers conferred upon him under sub- section 8 of Section 16 of the Maharashtra University of Health Sciences Act, 1998. Clause 20 thereof reads as under:- “ 20) Superannuation : The age of superannuation of the Principal/Dean /Director/Teacher in an affiliated college/recognised institute shall be 60 years and thereafter no further extension in service shall be given. However, if such Principal/Dean /Director/Teacher attains age of superannuation in the middle of the month, he shall continue in the service till the end of that month. However, the Management may re-employ the Principal/Dean /Director/Teacher of affiliated college/recognized institute who is due to superannuate in the middle of the academic year, on attaining the age of 60 years till the end of academic year only. During the period of re-employment which will be deemed as temporary service, the person shall not earn increment and shall not contribute to the provident fund. The period of re-employment shall not count for the purpose of payment of gratuity.” 7 9. The petitioner is aggrieved by the letter dated 22.4.2007 issued by the college, informing him that on 1.6.2007 he is completing 58 years of age and hence, he would be retired with effect from 31.5.2007. 10. Mr.Pakale, learned counsel for the petitioner, contended that the petitioner squarely falls within the definition of the term “teacher” and “teachers” and Clause 20 of Direction No.25/2001, which are quoted hereinabove and, therefore, the college could not have sent the impugned letter informing him that he would retire on his completing 58 years. In support of his submission, learned counsel for the petitioner has relied upon judgment of the Supreme Court in P.S. Ramamohan Rao vs. A.P. Agricultural University & anr. , 1997 (8) SC 350 . Mr.Pakale submitted that, in the circumstances, the impugned letter be set aside. Mr.Pakale submitted that the petitioner is also entitled to revised pay scales as recommended by University Grants Commission and subsequent Government 8 Resolutions issued from time to time with effect from the date of his appointment till date. In this connection, he relied on judgment of Nagpur Bench of this court in Ramrao, son of Pisarmji Bele v State of Maharashtra & ors. in Writ Petition No.722 of 1991 decided on 12.7.2004 . 11. Mr.Sonawane, learned AGP, has taken us through the affidavit of Dr.Singh, Assistant Director of Ayurved, Pune. He drew our attention to letter dated 9.9.2002 to which reference is made by Dr.Singh in his affidavit and pointed out that the said letter was in accordance with the guidelines of the Government and it states that in all Government Medical colleges age of retirement of physical education teacher is 58 years. Mr.Sonawane submitted that, therefore, the petitioner will have to be relieved from services of the 2nd respondent on attaining the age of 58 years. He submitted that, in the circumstances, the impugned letter is perfectly legal and should not be set aside. He 9 further submitted that the petitioner is not entitled to revised pay scale. 12. Before we deal with the rival contentions, we must note that the petitioner, though designated as Director of Physical Education, has been discharging duties as quoted in paragraph 12 of the petition. We may reproduce the said duties as quoted in paragraph 12 :- “(a) to arrange games and sports daily in the evenings for the students. (b) to look after the procurement of sports material and the maintenance of the sports grounds, (c) to arrange inter- class and inter- collegiate tournaments, (d) to accompany the student teams for the inter- university tournaments. (e) to guide the students about the rules of the various games and sports.” There is no denial of paragraph 12 in Dr.Singh's affidavit. 13. Having quoted relevant definitions, we must refer to the judgment of the Supreme Court in P.S. Ramamohan Rao 's 10 case (supra). In that case the Supreme Court was considering whether the appellant therein, who was working as Physical Director, would fall within the definition of the term “teacher” as given in sub- section (2) of Section 2 of A.P. Agricultural University Act, 1963. We must note that the said definition is similar to the definition of the term “teacher” in Maharashtra University of Health Sciences Act, 1998. It reads thus : “2. (n) `teacher' includes a professor, reader, lecturer or other person appointed or recognised 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.” At this stage, it must be mentioned that the duties of the petitioner are similar to those of the appellant before the Supreme Court. 14. After considering the nature of the duties of the Physical Director, the Supreme Court observed that a Physical Director has multifarious duties. He not only arranges games and sports for the students every evening and looks 11 after the procurement of sports material and the maintenance of the grounds but also arranges inter- class and inter- college tournaments and accompanies the students' team when they go for the inter- university tournaments. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. The Supreme Court further observed that it is well known that different games and sports have different rules and practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper manner. The Supreme Court expressed its view that it is inherent in the duties of a Physical Director that he imparts to the students various skills and techniques of these games and sports. The Supreme Court further observed that there are a large number of indoor and outdoor games in which the students have to be trained and, therefore, the Physical Director has to teach them several skills and techniques of the games apart from the rules applicable to these games. 12 Having regard to the duties of the Physical Director, the Supreme Court concluded that he comes within the definition of the term “teacher” quoted hereinabove. Since the duties of the petitioner are identical to the duties of the Physical Director whose case was before the Supreme Court, in our opinion, the petitioner would also be covered by the term “teacher” as defined in the Maharashtra University of Health Sciences Act, 1998. 15. It was also, inter alia, argued before the Supreme Court that so far as games and sports are concerned, there is no weightage of credit hours and there are also no theoretical and practical courses prescribed for the students and, therefore, Physical Directors cannot be called teachers. Negativing this contention, the Supreme Court observed as under:- “19. We are unable to agree. It may be that the Physical Director gives his guidance or teaching to the students only in the evenings after the regular classes are over. It may also be that the University has not prescribed in writing any theoretical and practical classes for the students so far as physical education is concerned. But as pointed by us 13 earlier, among various duties of the Physical Director, expressly or otherwise, are included the duty to teach the skills of various games as well as their rules and practices. The said duties bring him clearly within the main part of the definition as a “teacher”. We, therefore, do not accept the contention raised in the additional counter- affidavit of the University.” After so observing, the Supreme Court set aside the impugned order and declared that the appellant therein was entitled to continue in service till he completed 60 years of age. In our considered opinion, the said judgment is clearly applicable to the facts of the present case. 16. In the affidavit in reply, Dr.Singh has accepted that the petitioner is a teacher within the meaning of Section 2(34) of the Maharashtra University Act, 1994 and also under Section 2(35) of the Maharashtra University of Health Sciences Act, 1998 and is entitled to continue in service of the 2 nd respondent till he completes 60 years of age in view of Clause 20 of Direction No.25/20001 of 10.10.2001 issued by respondent 5-University. However, reliance is placed in this affidavit on letter dated 9.9.2002 issued by respondent 3 i.e. 14 Director of Ayurved, Maharashtra State, which states that guidance was sought as to what shall be the age of superannuation of Physical Education Teacher in aided Ayurved Colleges. It is mentioned in the letter dated 16.8.2002 that since the age of superannuation of Physical Instructor in all the Government Medical Colleges is 58 years, the age of superannuation of Physical Instructor in Shree Gurudeo Ayurved College, Mozari, shall be considered as 58 years. We find substance in Mr.Pakale’s submission that this letter does not have any statutory force and it merely contains administrative instructions. Nothing has been pointed out to us to establish that this letter has statutory force. In the affidavit of Dr.Singh, it is stated that the letter was in accordance with the guidelines of Government and it was circulated to all concerned for necessary action. Copy of letter dated 16.8.2002, which is referred to in letter dated 9.9.2002, has also been relied upon and its copy is annexed to the affidavit of Dr.Singh. This letter is addressed by Section Officer of the State of 15 Maharashtra to Directorate of Ayurved. It refers to letter of Directorate of Ayurved dated 8.7.2002 and states that the Directorate of Ayurved is being informed that the age of superannuation of Physical Instructor in all Government Ayurved colleges will be 58 years. It is not clear as to under what statutory provisions this decision is taken or this letter is addressed. We may note that similar issue has been raised before Nagpur Bench of this court in Writ Petition No.1840 of 2006 and in that case, interim relief has been granted in favour of the petitioner. This fact is stated in the affidavit of Dr.Singh. 17. In the aforementioned circumstances and in the light of the judgment of the Supreme Court in P.S. Ramamohan Rao's case (supra), we have no hesitation in holding that the post of Director of Physical Education is covered by Section 2(35) of the Maharashtra University of Health Sciences Act, 1998. The petitioner's case is covered by Clause 20 of the Direction No.25/2001 dated 10.10.2001 issued by the 5th respondent university which states that the age of superannuation of 16 Teacher / Principal / Dean / Director / Teacher in an affiliated college / recognized institute shall be 60 years. In the light of the judgment of the Supreme Court in P.S. Ramamohan Rao's case (supra), we hold that the petitioner being teacher covered by Clause 20 of Direction No.25/2001, his age of retirement is 60 years i.e. till 31.5.2009 and hence, the impugned letter dated 28.4.2007 deserves to be set aside and is accordingly set aside. 18.The petitioner's second grievance is that he has been deprived the benefit of revised pay scales. According to the petitioner, Government of Maharashtra in pursuance of the recommendations made by the Central Council of India (Medicine) in order to upgrade the standard of education in Ayurvedic faculty directed that the pay scales recommended by the University Grants Commission (UGC) be made applicable to the teachers of Ayurvedic colleges affiliated to the respective universities. Government of Maharashtra thereafter accepted the said recommendations and revised the pay scales of the post of Physical Instructor by issuing 17 various Government Resolutions. The petitioner contends that he is entitled to the benefit of revision of pay scales. Reiterating these submissions, Mr.Pakale, learned counsel for the petitioner, has, in this connection, relied on the judgment of Nagpur Bench of this court in Ramrao, son of Pisaramji Bele vs. State of Maharashtra & others in Writ Petition No.722 of 1991 decided on 12.7.2004 . 19. In Ramrao's case (supra), the petitioner was appointed as Physical Education Teacher with effect from 23.7.1981 in respondent 4 college. The Government of Maharashtra, vide Government Resolution (“GR” for short) dated 18.9.1990 made pay scale of UGC applicable for the Instructors of Physical Education in the non- agricultural universities and affiliated non- Government colleges in the State of Maharashtra with effect from 1.1.1973 and the Physical Education Teachers in the colleges were given the pay scale of Rs.550- 900. The petitioner therein was given pay scale of Rs.550- 900 prescribed under the GR dated 18.9.1980 from the date of his appointment i.e. 1.1.1973. By GR dated 18 10.4.1984, pay scales were again revised. The revised pay scale of Rs.700- 1600 was recommended for various categories, including Physical Instructor / Teacher. Though the revised scale recommended by UGC was sanctioned for Physical Instructor by GR dated 10.4.1984, it was not made applicable to the petitioner therein and hence, he filed the writ petition before the Nagpur Bench of this court. Two cases were cited before the Nagpur Bench. One Mr.Jadhav, who was working as Physical Training Instructor in Government Ayurvedic College, Nanded, was denied revised pay scale recommended by UGC. He approached Maharashtra Administrative Tribunal (“MAT” for short). His original application was allowed. On that basis, the Government of Maharashtra issued GR dated 12.9.2003 making the revised pay scale applicable as recommended by the UGC vide GR dated 18.4.1984. Similarly one Mr.Ramkishor Gupta, who was, at the relevant time working as Physical Instructor, approached the MAT for getting revised pay scale as per GR dated 18.4.1984. He succeeded 19 before the MAT. By GR dated 24.3.1995, the revised pay scale recommended by UGC vide GR dated 18.4.1984, was given to him. The Nagpur Bench of this court observed that the State Government implemented the decision rendered by the MAT in the cases of the above- referred persons who were Physical Education Instructors at the relevant time and issued necessary Government Resolutions and, therefore, it was not open for the State Government to deny the same benefit to the petitioner who is similarly situated. The Nagpur Bench further observed that denying benefit of GR dated 18.4.1984 in the facts and circumstances of the case would be arbitrary and such discrimination is impermissible. It was also observed that the State is estopped from canvassing that the category of Physical Education Instructor serving in affiliated non- Government Ayurvedic colleges is not included in the GR dated 10.4.1984 and, therefore, these benefits cannot be extended to them. In view of this, the Nagpur Bench directed the State to grant to the petitioner therein revised pay scale recommended by the 20 UGC as per GR dated 18.4.1984 with effect from the date of his appointment i.e. 23.7.1981. The Nagpur Bench further directed that the petitioner therein should be granted all subsequent pay scales revised by the Government Resolutions from time to time to the post of Physical Education Instructor. In our opinion, this judgment is squarely applicable to the facts of the present case. 20. The 2 nd respondent college is also affiliated private aided college. It appears that precisely for this reason Dr.Singh has in his affidavit stated that the question of sanctioning revised pay scales on the analogy of UGC pay scales to the similarly situated persons including the petitioner is under consideration of the Government. In our opinion, since the petitioner's case is covered by Ramrao's case (supra) as he is similarly situated as the petitioner therein, the petitioner is entitled to the benefit of revised pay scales as per GR dated 18.4.1984. We, therefore, direct the 1st respondent to grant the petitioner revised pay scale as per GR dated 18.4.1984. The petitioner is also entitled to all subsequent 21 pay scales revised by the Government Resolutions from time to time for the post of Physical Instructor. However, so far as the prayer for the recovery of arrears of revised pay scales is concerned, we are not inclined to grant the arrears from 1.9.1984 i.e. the date of his appointment because the petition is filed belatedly on 30.4.2007. Considering the fact that claim beyond three years from the date of filing of the petition would be barred by limitation, we direct the 1st respondent to grant the arrears of revised pay scales from 30.4.2004. [See Mr.Vijay Vyankatesh Bidnur & another v The State of Maharashtra & others, decided on 27.9.2002 by Division Bench of this court in Writ Petition No.3793 of 2002 ). We order accordingly. 21. The petition is disposed of in the aforestated terms. There shall be no order as to costs. [SMT.RANJANA DESAI, J.] [SMT.ROSHAN DALVI, J.] 22 23