THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.25130 of 2009 ORDER: This writ petition is filed seeking a Mandamus declaring that the petitioner is entitled to continue in service till he attains the age of 65 years, which is the age of retirement of Doctors in AIIMS (All India Institute of Medical Sciences) and further declaring the proceedings Roc.No.C1/50/SVIMS/92 dated 17.3.2009 issued by second respondent seeking to retire the petitioner on attaining the age of 60 years from the afternoon of 30.11.2009 as arbitrary, illegal, and violative of Articles 14, 16 and 21 of the Constitution of India. The short question that arises for consideration in this writ petition is “whether the petitioner is entitled to be continued upto the age of 65 years in the service of Respondent Institute (SVIMS)”. It appears, petitioner completed his MBBS in July, 1973 and also completed FRCS in September, 1979. He was trained in Cardio Thoracic Surgery (CTS) in U.K. He worked as Cardiac Surgeon in Singapore from 1981 to 1989. He also worked as Cardiac Surgeon at Amsterdam Holland from 1989-91. He was a member (Fellow) of American College of Surgeons. He had empanelled as an expert on the rolls of Union Public Service Commission. On return to India, petitioner offered his candidature to work as a Cardio Thoracic Surgeon in the Respondent Institute and he was given order of appointment vide proceedings No.C1/50/SVIMS/92 dated 17.8.1992. According to the petitioner, in the order of appointment, it was stated that his service conditions will be as applicable to the holder of similar post in All India Institute of Medical Sciences (AIIMS) (from time to time). The order of appointment also refers to Resolution No.601 dated 27.11.1991 of the Board of Trustees of T.T.D. According to the petitioner, his service conditions are governed by such conditions of service in regard to probation, seniority, retirement, leave, LTC, provident fund, pension, conduct penalties, retirement benefits etc. as provided for in the establishment of All India Institute of Medical Sciences, as amended from time to time. As of today, the Cardio Thoracic Surgeon of AIIMS is entitled to continue in service till he attains the age of 65 years. Therefore, same benefit should be extended to the petitioner. In this regard, learned counsel for the petitioner relied upon the conditions mentioned in the appointment order, which reads as under: “Dr.Dronam Raju Dilip S/o D.Raghavendra Rao who has been selected by the Selection Committee of this institution held on 31.5.1992 at Tirupati is appointed on regular basis as consultant in the department of Cardio Thoracic Surgery on a pay of Rs.4,100/- plus N.P.A. per month in the time scale of Rs.4100-125-4850-150-5300 + HPA with immediate effect. He/she will be entitled to such other allowances, like D.A., H.R.A., N.P.A., C.C.A., T.A., joining time etc., as admissible to the post from time to time in the institute on the basis of basic pay and allowance, on par with All India Institute of Medical Sciences, New Delhi as approved by the Board of Trustees, T.T. Devasthanams, Tirupati in Resolution No.601 dated 27.11.1991. Due consideration will be given in granting pay protection taking into account the last pay drawn and past service rendered in similar institution”. In the year 1995, Act 12/95 was enacted declaring Sri Venkateswara Institute of Medical Sciences, Tirupati, an University by law and for matters connected therewith or incidental thereto. The Institute shall be a body corporate having perpetual succession and a common seal and shall sue and be sued by the said corporate name. Section 40(1)(e) of the Act, reads as under: “40(1) Subject to the provisions of this Act and the rules made thereunder, the Governing Council, may with the previous approval of the Government, make regulations to provide for any matter which is to be or may be provided for, by regulation and without prejudice to the generality of this power, such regulations may provide for, (e) The tenure of office, salaries and allowances and other conditions of service of the officers, teachers and employees of the Institute”. From the above, it is seen that subject to the approval of the Government, the Governing Council, may make resolutions regulating the service conditions as to tenure of office and allowances and other conditions of service of the officers, teachers and employees of the Institute. The contention of the learned counsel for petitioner is that even after the advent of Act 12/95, which deemed to have come into force w.e.f. 8.9.1994, no service regulations have been framed by the SVIMS. Therefore, in the absence of any regulations, resolutions made by the Governing Council as to retirement age of a particular category of employees, it must be deemed insofar as retirement age of petitioner is concerned, he is governed by the rules and regulations as applicable to the persons with equal designation working in AIIMS, as amended from time to time, in terms of the order of appointment. Further, the learned counsel relied upon a letter issued by the Government of India, Ministry of Health and Family Welfare in File No.A1/12034/3/2005-CHS V dated 5.11.2000, wherein the age of superannuation of specialized Doctors of Central Health Service belonging to (i) Teaching (ii) Non-Teaching and (iii) Public Health Sub-Cadres from 60 years to 65 years with immediate effect. Further, it is also submitted that the Union Cabinet enhanced the age of those specialists who are engaged only in teaching activities and are not occupying administrative positions from 62 to 65 years as is being done in AIIMS and Post Graduate Institute at Chandigarh. Further, the Medical Council of India, New Delhi by way of notification dated 15.3.2005 under Section 33 of Indian Medical Council Act, 1956 enhanced the age of retirement upto 65 years. The petitioner also relied upon the resolution of 9th Governing Council Meeting of Sri Venkateswara Institute Medical Sciences, Tirupati held in the Chambers of the Chief Minister of Andhra Pradesh and Chairman, SVIMS, A.P. Secretariat, Hyderabad on 22.5.2007, with regard to retirement age of 62 years and the Finance Committee was authorized to revise salary and allowances. According to the petitioner, this decision was taken by the Governing Council of the University, he is entitled to continue till he attains the age of 62 years, if not 65 years as is being enhanced in the AIIMS. Whereas the learned senior counsel Sri D.Prakash Reddy, appearing for Respondent-SVIMS strenuously contended that after advent of Act 12/95, the service conditions of Teachers working in SVIMS are governed by resolution passed by the Governing Council subject to approval of the Government as contemplated under Section 40(1) of the said Act. The retirement age of the Teachers in SVIMS was never enhanced or extended from time to time as is being done by AIIMS as contended by the learned counsel for petitioner. The age of superannuation as is being applied in other similar institution within the State was adopted by the University by way of convention and practice. The Nizams Institute of Medical Sciences (NIMS), Hyderabad has fixed the age of superannuation of its Teachers as 60 years. However, no material adopting the age of 60 years as is being fixed by the other similarly placed institutions like NIMS etc., in the State placed before this Court. But it is conceded that the pay scales of the Teachers as was revised in 5th and 6th Central Pay Commission was adopted to the Teachers in SVIMS including the petitioner. When a dispute arose as to the service conditions, the agenda for TTDs specified authority meeting held at Hyderabad on 3.2.2000 reveals as under: “At present there are 37 faculty Doctors working in SVIMS. Out of which for 20 Doctors appointment orders were issued in 1992-93 indicating that they would be entitled to pay and allowances as admissible to the post from time to time on par with All India Institute of Medical Sciences, New Delhi. There are 17 Doctors who were appointed later in whose appointment orders it was indicated that their pay and allowances would be as per SVIMS Rules. SVIMS Rules have not yet been finalized regarding implementation of Central Pay Scales. The Executive Board in its meeting held on 20.1.1998 had resolved to follow the rules of sister institution i.e. NIMS, Hyderabad in implementing Central Civil Service rules. On 23.1.2000, the Executive Officer of TTD and other TTD officials met with the faculty staff and mutually agreed to adopt Fifth Pay Commission Scales from 1.1.1996. SVIMS package will be evolved on the basis of Fifth Pay Commission with attractive perquisites to be mutually agreed. There would be no linkage with AIIMS except in academic and scientific matters not withstanding the terms of the earlier appointment orders. All further pay revisions will be governed by Central Government pattern.” Further, in the meeting, it was mutually agreed as under: “It was mutually agreed to adopt Fifth Pay Commission scales from 1.1.1996. SVIMS package will be evolved on the basis of fifth pay commission with attractive perquisites to be mutually agreed. There would be no linkage with AIIMS except in academic and scientific matters notwithstanding the terms of the earlier appointment orders”. These proceedings have no authenticity under law, since they are not made under Section 41(e) of the SVIMS Act. Learned counsel for the petitioner also objected for giving any weightage to such proceedings. Further, according to the respondents, even the resolution passed by the Governing Council on 22.5.2007 was not approved by the Government as required under Section 40(1) of the Act. It was an understanding of both the parties that the Teachers are entitled to continue upto the age of 60 years and that is the reason why the impugned order was communicated to the petitioner and in fact, petitioner also after filing the writ petition, has addressed a letter requesting the respondents to pay his pension and other retiral benefits treating that he has retired from service on attaining the age of 60 years. In this letter, petitioner of course has not reserved his right to contest the case before this Court. From the above discussion, it is clear that though the Respondent-University has all the powers under the Act, particularly under Section 40(1)(e) of the Act to frame the rules as to retirement age etc., they have not done so. They have simply adopted the age of retirement as is subsisting in the NIMS, Hyderabad. The resolution passed by the Governing Council enhancing the age from 60 to 62 years was rejected by the Government through proceedings dated 13.3.2009. Under mutual agreement dated 23.1.2000, the fifth pay commission scales with effect from 1.1.1996 were adopted and it was also agreed that there would be no linkage with AIIMS except in academic and scientific matters notwithstanding the terms of the earlier appointment orders. This appears to be an agreement reached between the administration of University and the Faculty Staff for implementation of Fifth Pay Commission scales, which was in fact implemented and the petitioner was also one of the beneficiaries. What it appeared could have been agreed upon was as to the extension of pay scales of Fifth Pay Commission with effect from 1.1.1996, but not the other benefits, such as retirement age, etc., as contended by the learned counsel for petitioner. Of course, this agreement also has no authenticity under law. But there appears to be sound understanding between faculty staff (teaching staff) and the administration of the University that the fifth pay commission scales shall be implemented in their favour. Thus, looking from any angle, neither the petitioner can say that as a matter of right, he is entitled to be continued beyond the age of 60 years as is notified by the Medical Council of India and extended to the Central Health Services in the advent of Act 12/95 nor the respondents can say that the age of superannuation of teachers in SVIMS is only 60 years and not 62 or 65 years. There is no definite age of retirement fixed by the University under law, which is binding on both the parties. It is unfortunate that the Respondent University functioning under the Act has not taken any authentic decision as to fixation of retirement age of its Teachers for such a long time, particularly in these days, where the age of superannuation of teaching and non-teaching staff is under consideration for enhancement beyond 60 years. Section 3(2) of the Act contemplates that the institute shall function as an University established under a State Act and funded and maintained by the Tirumala Tirupati Devasthanams, Tirupati. Thus, it can be construed that this is an University established under the State Act and as to the features of State University, in a way the service conditions, particularly the age of superannuation of Teachers of SVIMS can be adopted as is available for the Teachers established under the said Act. After the advent of Act 12/95, the submissions made by the learned counsel for petitioner that still the conditions in the appointment order (as per the AIIMS) would govern the age of retirement and therefore, petitioner is entitled to be continued till he attains the age of 65 years, cannot be countenanced. In this case, everything left to lurch and everybody was in dark. In view of the above, the decisions relied on by the learned counsel for petitioner reported in (1) 1997(1) SLR 15 para 4 and (2) 1999(6) SLR 664 have no relevance to the facts of the case. Therefore, they need not be delved in detail. Under those circumstances, in the interest of justice, the Respondent-SVIMS is directed to take an immediate decision under the Act, particularly as required under Section 40(1)(e) of the Act for the purpose of fixing the age of superannuation of Teachers like the petitioner and get approval of the Government without reference to the rejection orders passed by the Government denying approval of resolution dated 22.5.2007, while taking into consideration various aspects regarding enhancement of age of Teachers and if any regulations are made in this regard fixing the age of retirement beyond 60 years, petitioner shall be extended all the benefits. This exercise shall be completed within a period of (8) weeks from the date of receipt of this order. In the result, the order impugned is set aside and the respondents are directed to reinstate the petitioner into service forthwith and shall be continued till a final decision is taken by the University as to the age of retirement of the cadre of the petitioner. The writ petition is accordingly disposed of. No order as to costs. _____________ C.V.RAMULU, J Date: 6.7.2010. DA THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.25130 of 2009 6.7.2010 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.25130 of 2009 Date: 6th July, 2010 Between: D.Dilip .. Petitioner And Sri Venkateshwara Institute of Medical Sciences, rep. by its Registrar, Tirupati, Chittoor district and another. .. Respondents