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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: HARI DATT SHARMA

DATE OF JUDGMENT04/11/1992

BENCH: [LALIT MOHAN SHARMA, S. MOHAN AND N. VENKATACHALA, JJ.]

ACT: Civil Services : Madhya Pradesh State Fundamental Rules. F.R.56, Sub-Rule  (1-a)  and  M.P.  Shaskiya  (Adhiwarshkiya Adhiniyam) 1987-Retirement  age-Superintendent Deaf Mute and Blind School-Whether  ‘teaching post’-Duties  of supervisory nature-Held respondent  rightly retired  at 58 years as post was non-teaching post.

HEADNOTE: The respondent in the appeal after due selection by the State Public  Service Commission  was appointed in 1965 as a Superintendent in  a Deaf  Mute and  Blind  School.  He  was thereafter promoted  and posted  as Deputy  Director, and in 1989 he  was further  promoted to the rank of Joint Director in the Social Welfare Department. He completed the age of 58 years in January, 1991 when according to the decision of the appellant he  had to retire. According to the Rules - FR 56, Sub-Rule (1-a) - the age of retirement in the department was 58 years  excepting for  teachers who  were to  continue  in service till 60. The respondent  assailed the order of retirement before the  State   Administrative  Tribunal   relying   upon   the Explanation to  the Rule which allowed his claim to continue in service  upto the age of 60 years and held that he cannot be retired at 58 years. In the  State’s appeal  to this Court, it was contended that the  post of  Superintendent in  Deaf  Mute  and  Blind School to  which the  respondent was  initially appointed in 1965 was  not a  ‘teaching post’  and he could not therefore claim the benefit of the Explanation to the Rule. Allowing the appeal, this Court, HELD :1. The parties to the appeal have referred to and relied upon the advertisement No. 9/1965 issued by the State Public  Service   Commission   inviting   applications   for appointment to  the posts  of Superintendent  Deaf Mute  and Blind  School.  Paragraph  3  thereof  mentions  the  duties attached to  the post,  and when  examined closely, indicate that they  were supervisory  in nature and not teaching. The Explanation to  the Rule  therefore does not come to the aid of the  respondent and  he was  therefore rightly retired on 31.1.1992. [354-G; 355-D] 2. The  Original Application  filed by  the  respondent before  the   State  Administrative  Tribunal  is  therefore dismissed. In  case the  respondent was  paid for performing any duty  after the  date of his retirement, he shall not be asked to refund the same. [355-E, F]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 4733 of 1992.      From the  Judgment and  Order dated  28.2.1992  of  the Madhya Pradesh  State Administrative  Tribunal,  Gwalior  in Original Application No. 2932 of 1991.      Sakesh Kumar and S.K. Agnihotri for the Appellant.      Vivek Gambhir and S.K. Gambhir for the Respondent.      The Judgment of the Court was delivered by      SHARMA, J.  1. By the impugned order the Madhya Pradesh State Administrative  Tribunal has  allowed the claim of the respondent to  continue in service up to the age of 60 years and has  held that  he cannot be retired at 58 only. We have heard the  learned counsel for the parties. Special leave is granted.      2. The  respondent  was  holding  the  post  of  Deputy Director when  he was  promoted as  Joint  Director,  Social Welfare Department in 1989. He completed the age of 58 years in January,  1991 when  according to  the  decision  of  the appellant he  had to  retire. According to the Rules the age of retirement  in the  department is  58 years excepting for teachers who  are to  continue in service till 60. It is not disputed  that  the  posts  of  Deputy  Director  and  Joint Director are  not teaching  posts and  the respondent cannot take advantage  of the  higher age  of  retirement  on  that account. However, the respondent relies upon the Explanation to the Rule which is in the following terms :      "Explanation: For  purpose of  this      sub-Rule    "Teacher"    means    a      Government  Servant,   by  whatever      designation called,  appointed  for      the  purpose   of  teaching  in  an      educational institution  run by the      Government including  technical  or      medical educational  institution in      accordance  with   the  recruitment      rules    applicable     in     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 teaching  for not  less than  20      years  provided  he  holds  a  lien      Collegiate/Technical/Medical      Educational Service".      His case  is that  since initially he was appointed for the purpose of teaching in an educational institution run by the Government,  he is  entitled to continue in service upto the age  of 60  although later he was holding a non-teaching post. At  this stage it will be relevant to mention that the condition  that   a  person  claiming  the  benefit  of  the Explanation had  to be  engaged in  a teaching  post for not less than  20 years, has been struck down as ultra vires and this part  of the  Explanation, therefore,  does not come in the way of the respondent.      3. On  behalf of  the appellant  it has  been contended that post  of the  Superintendent in  a Deaf  Mute and Blind School in  which the  respondent was  initially appointed in 1965 was not a teaching post and he, therefore, cannot claim any benefit  of this  Explanation. The result of the case is thus   dependent upon  the issue  as to  whether the post of Superintendent in  Deaf Mute  and Blind School is a teaching

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post or not.      4. The relevant document which has been referred to and relied upon  by both  sides is  the advertisement No. 9/1965 issued by  the Public  Service  Commission,  Madhya  Pradesh inviting  applications  for  appointment  to  the  posts  of Superintendent Deaf Mute and Blind School. The duties are mentioned  in  paragraph  3  of  the  advertisement  to  the following effect :-      "Duties - (i) To undertake planning      and organisation of the institution      for education, vocational training,      rehabilitation  and  recreation  of      children, (ii)  To undertake  case-      wise in  respect of  every child of      the  institution  with  a  view  to      ascertaining the  personality make-      up, aptitudes  and interest, socio-      economic       background       and      intelligence,   (iii)    To   apply      educational     tests,      prepare      syllabus,  organise  -  specialised      methods of education and vocational      training   of   children   and   to      organise examination,  (iv) To take      steps  for   the  after   care  and      rehabilitation of  children, (v) To      supervise the  general  maintenance      of  the   children  including   the      general     health,     recreation,      discipline etc.  and  to  meet  the      special needs of the children, (vi)      To supervise  and control staff and      undertake   other    administrative      duties and  (vii)  Any  other  work      that may  be  assigned  to  him  by      Government    or    his    superior      officers."      5. We  have examined  the provisions closely and are of the view  that the duties were supervisory in nature and not teaching. Accordingly, we hold that the Explanation referred to above  does not  come to the aid of the respondent and he was, therefore, rightly retired on 31.1.1992.      6. In  the result  the appeal  is allowed, the impugned judgment is  set aside and the Original Application filed by the respondent  before the  State Administrative Tribunal is dismissed. The  parties  will  bear  their  own  costs.  We, however, make  it clear that in case the respondent was paid for performing any duty after the dated of his retirement in pursuance of  the impugned  order he  shall not  be asked to refund the same. Appeal allowed.