Allowed

Gajula Sarat Chandra Babu v. the State of Ap

Andhra Pradesh HC14 Feb 2020WP/3082/2019

Case brief

AI extract

What is this about?

The High Court held that university librarians appointed as Assistant Professors and engaged in regular, structured teaching activities are 'teachers' under the universities Act. Consequently, they are entitled to retirement at age 62 with consequential benefits, rejecting the argument that they are non-teaching staff.

What did the court decide?

Writ petitions allowed; impugned retirement notifications set aside; petitioners entitled to continue service until age 62 with consequential benefits.

Gajula Sarat Chandra Babu Vs the… — Pension and Retirement Benefits | Andhra Pradesh HC (2020)

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HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU W.P.Nos.3082, 4818, 15161, 20948 of 2019

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and 1977 of 2020

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COMMON ORDER :

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The batch of writ petitions were taken up for hearing collectively with the consent of all the parties to the litigation and their standing counsels. The issue raised in all these writ petitions are the same. In the main writ petitions, which are taken up hearing i.e., in W.P.Nos.4818, 15161 and 20948 of 2019, the petitioner is one Professor Sri K.Venkata Rao and in other two writ petitions viz., WP.Nos.3082 of 2019 and 1977 of 2020, petitioner is one Sri Gajula Sarat Chandra Babu. The prayers in the writ petitions, respectively, are as follows:

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WP.No.4818 of 2019:

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“To issue any writ order or direction more particularly one in the nature of writ of Mandamus declaring the memorandum No. ANU / Estt-TS /Adv. Ret. Notice/ Prof.K.V.R./2019, dated 29.03.2019 issued by the 2nd respondent as illegal contrary to law without jurisdiction and against the principles of natural justice and consequently declare that the petitioner is entitled to continue in service upto the age of 62 years with consequential benefits.”

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WP.No.15161 of 2019:

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“To issue any writ, order or direction more particularly one in the nature of writ of Mandamus declaring the Proceedings No. ANU/Legal Cell and T.Estt / Legal Opinion/Withhold the duties/2019, dated

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13.09.2019 and connected proceedings No. ANU/T Estt-TS/Incharge Librarian/2019, dated 19.09.2019 of the 1st respondent in so far as withholding administrative, financial and academic positions of the petitioner as University Librarian and appointing in-charge Librarian as illegal, contrary to law, arbitrary, discriminatory and against the principles of natural justice.”

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WP.No.20948 of 2019:

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“To issue any writ, order or direction more particularly one in the nature of writ of Mandamus declaring the proceedings No. ANU/T.Estt/Retired/ Relieved/Lib & DO/2019 dated 19.12.2019 issued by the respondents 1 to 3 (Ex.P6) as illegal, contrary to law, arbitrary, discriminatory and against the principles of natural justice without jurisdiction and against the orders passed by this Honble Court.”

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WP.No.3082 of 2019:

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“To issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent-University in issuing Memorandum No.ANU / Estt-TS / Adv.Ret. Notice/Mr.G.S.C.B/2019 dated 07.02.2019, directing the petitioner to retire from his post of Assistant Professor of Library and Information Sciences on 31.05.2019 on attaining the age of 60, when the actual age of superannuation is 62 years for his post as illegal etc.”

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WP.No.1977 of 2020:

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“To issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the 2nd

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and 3rd respondents in issuing Proceedings No.ANU/ T-Estt/Retired/ Relieved/ Lib & DO/2019 dated 19.12.2019, retiring and relieving the petitioner from the university service with immediate effect when the actual age of superannuation is 62 years for his post as illegal, unconstitutional and consequently set aside the Proceedings No.ANU/TEstt/Retired/ Relieved/ Lib & DO/2019 dated 19.12.2019, by making it clear that the petitioner is entitled to continue in service up to the age of 62 years keeping in view of the law laid down by this Hon’ble Court in various cases with all consequential benefits.”

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The sum and substance of the dispute raised by the petitioner-K.Venkata Rao in the lead writ petition is that although he is a Librarian in the first respondent-University; that he should be considered as a member of the teaching faculty and that therefore, on par with all other teachers in the University, he should be retired at the age of 62 years. The contest of the respondent-University is that Librarian is not a member of the teaching staff and that even if a few stray hours of teaching are assigned to him, he cannot be counted as a “teacher” of the University. Therefore, the essential defence of the respondent-University is that the petitioners have to retire at the age of 60 years along with non-teaching staff.

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This Court has heard Sri Posani Venkateswarlu and Sri Sasanka Bhuvanagiri, learned counsel appearing for the petitioners in these cases and Sri Kasa Jaganmohan Reddy

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for Sri Rambabu Koppineedi, standing counsel for the respondent-University.

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The documents essentially referred to in the course of the argument are the documents which have filed in WP.No.4818 of 2019. This Court is proposing to refer to the same documents for the purpose of the decision in this matter, which will also have the bearing on the other cases. Some of the documents referred to in the reply affidavit and the other cases will also be referred to in the passing.

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Learned counsel for the petitioner points out that the petitioner has completed M.L.I.Sc and thereafter acquired M.Phil and a Doctorate (Ph.D) in Library and Information Science. He was initially appointed as a Technical Assistant in the library. Thereafter, he was promoted as Library Assistant and Assistant Librarian in the year 2001. The posts in the library and library science were re-designated and the petitioner K.venkata Rao was re-designated as an Assistant Professor in Library and Information Science on 27.11.2003. Thereafter, he continued to discharge his functions in the designation of an Assistant Professor and he was given a senior scale as Assistant Professor in May, 2007. He was thereafter appointed as Deputy Librarian with UGC scales after he obtained his Ph.D degree in September, 2009. Later, he was appointed as Librarian. From 2009, he continued to discharge the duties in the designation of a Librarian. In the

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year 2019, as he completed 60 years, he was directed to be retired from service. Challenging the same, W.P.No.4818 of 2019 was filed.

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Learned counsel for the petitioner drew the attention of this Court to the steady and systematic rise of the petitioner through the hierarchy, ultimately, leading to his designation as a Professor and later as a Librarian after acquiring his Ph.D. Learned counsel for the petitioner drew the attention of this Court to the provisions of the Andhra Pradesh Universities Act, 1991 (for short ‘the Act’) which applies to all the Universities. He drew the attention of this Court to sections 2 (22) of the Act and Section 2(23) of the Act, which are as follows:

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2(22) “Teachers” means, Professors, Readers and Lecturers in a college and such other persons giving instruction in a college as may be declared by the Statues to be teachers.”

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2(23) “Teachers of the University” means, teachers appointed by the University to give instruction or guide research in the University and constituent colleges.”

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Relying on Sections 2(22) and 2(23) of the Act, learned

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counsel argued that the word ‘Teacher’ is an inclusive definition. According to him, a teacher in the University means a person who gives instructions in a college as may be declared by a Statute to be a teacher. A teacher as per section 2(23) of the Act also means teachers appointed by the

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University to give instructions or to guide research in the University and constituent colleges. Based on these definitions of a teacher and teachers of the University, the learned counsel for the petitioner argued that as the petitioner was entrusted with teaching duties, he should be considered as a teacher. He points out from the documents that are filed that the University began regular Masters in Library Science (integrated course) from 2016. He points out that this was a self-financing course, namely that the students have to pay the fees that is determined to make the course self-sufficient. He draws the attention of this Court to (1) the proceedings dated 11.08.2016 by which the petitioner was appointed as Chairman of the Board of Studies in Library Sciences. (2) The e-mail issued to the petitioner by which he was appointed as an Expert Member for recruitment of faculty in the faculty of Library Science. The meeting was scheduled to be held on 01.11.2010; (3) Notification dated 25.05.2018 by which the petitioner’s student one “Aligina Mani” was given a Doctorate in Library and Information Science and the Research Supervisor of this Ph.D student is the petitioner himself. (4) The letter addressed to the petitioner by the Dean of Academic Affairs, Andhra University on 17.04.2012. This letter shows that the petitioner agreed to be the adjudicator for Ph.D thesis of research in Andhra University. (5) The proceedings dated 22.02.2016 under which the petitioner was appointed as a Member of the Executive Council of the

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respondent-University. The petitioner, as per this notification was appointed from the quota of “Teachers of University Colleges”. (6) G.O.Ms.No.28 dated 24.02.2019 by which the term of the Executive Council was extended is also relied upon. This also shows that the petitioner is a Member chosen from the category of teachers. (7) The proceedings dated 19.10.2006 by which a Career Advancement Scheme was started for all the Universities and the age of superannuation for Librarians was also extended to 62 years. Learned counsel lastly drew the attention of this Court to G.O.Ms.No.59 dated 24.12.2014 by which the age of superannuation of Regular University Teachers in the State of Andhra Pradesh was extended to 62 years. This is the G.O. under which the petitioner is claiming relief. Apart from this, learned counsel for the petitioner also drew the attention of this Court to the time table of the Department for the Teachers under the Department of Library and Information Science for 2^nd semester 2018-2019. It shows that a monthly schedule of classes of various subjects is fixed for the 4^th semester 2018-2019. In addition, learned counsel also drew the attention of this Court to the counter affidavit which is filed in his reply affidavit in W.P.No.20948 of 2019 i.e. same petitioner, wherein the time tables for the teachers of Department of Librarian and Information Sciences for the 1^st semester 2017-18 from 17.07.2017, the 2^nd semester 201819, 2^nd semester 2018-19, 4^th semester 2018-19, 1^st semester

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2019-2020, 3^rd semester 2019-2020 are filed. He relies upon these documents and argues that all of these documents would collectively go to show that there is a firm schedule for teaching of classes in the said department and this petitioner, along with other teachers were allotted a specific time table for teaching. He also points out to (1) the document on 03.04.2018, by which the petitioner was appointed as External Evaluator/Examiner for the Masters in Library Science, 2^nd semester students. These proceedings dated 03.04.2018 are signed by the Vice Chancellor himself on 06.04.2018. (2) An admission given to a student into the Ph.D., stream in the Department of Library and Information Science in the respondent-University in the year 2018-2019. The petitioner is shown as Research Supervisor for the said candidate. (3) A reply affidavit filed in WP.No.3082 of 2019 and the documents by which the petitioner therein Sri Sarat Chandra Babu is appointed as an Evaluator along with other teachers for valuation of the Bachelors in Library Science Course; (4) the said Sarat Chandra Babu was again appointed as an Examiner for the BLISc, MLISC course practical examinations at Kakinada on 13.04.2017. (5) He was appointed as an Observer for APSLPRB-2016 at Guntur by the Dean of the APSLPRB. Counsel also relies upon the certificate given to the said Sarat Chandra Babu, by which he conducted Orientation Programme to the Library users/students of different B.Tech and M.Tech students from

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2013-2014 to 2017-2018 for about 180 days per year and two hours per a day. Basing on these documents, which are read conjunctively, learned counsel for the petitioner argues that the petitioner is and should be considered as a Teaching staff since he is not merely discharging duties as a Librarian and is in fact regularly involved in teaching. He relies upon the case law which has appended to the writ petition itself as a part and parcel of his submissions, where similar issues were considered. Ultimately, learned counsel argues that the petitioner should be treated as a Teacher of the University and he should retire at 62 years on par with the regular teachers.

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In reply to this, Sri Kasa Jaganmohan Reddy, special standing counsel appearing for the University on behalf of Sri Rambabu, who assisted Sri Kasa Jaganmohan Reddy and also argued certain points.

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There are more than one counter affidavits that are filed by the respondent-University. Learned counsel specially appearing for the University argued that the initial counter affidavit filed by the Professor K.Rosayya is not correct. He sought to state that the counter affidavit was not properly drafted and that the proper counter affidavit is filed in WP.No.20948 of 2019. He argued on the basis of this counter affidavit. The sum and substance of his contention is that the petitioner cannot be called as a teacher. It is his

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contention that when the petitioner was initially appointed, it was made very clear that he may be allotted a few teaching classes. He relies upon G.O.Ms.No.35 dated 16.06.2003 to argue that both the positions and posts were re-designated and Assistant Librarian began to be called as an Assistant Professor. Condition (2) of the G.O. made it very clear that the Assistant Librarians have their own duties and that they “may” be called upon to teach classes. It was also made clear from condition (2) of the G.O. that they are not regular teaching staff of the Department of Library and Information Sciences. Learned counsel argued with great vehemence that this order has been accepted and acted upon by the petitioner right from the inception for over decades. Therefore, it is his contention that the petitioner cannot be called as a teacher merely because whether he has been to do some random teaching. Relying on Ordinance 4 of the University, which is promulgated under section 53 of the Act, which prescribes the powers and duties of a University Librarian, the learned counsel argued that teaching was not a part and parcel of the duty of a University Librarian. He also relies upon all regulations approved by the executive counsel on 15.05.2018 and senate on 27.01.2018 dealing with the tests for filling up the non-teaching posts in the University. He draws the attention of the Court to the fact that the Librarian, Deputy Librarian and Assistant Librarian are shown as non-teaching staff. He draws the attention of the Court to G.O.Ms.No.5

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dated 18.01.2004, wherein the petitioner was appointed as a Member of Academic Senate under the category of a Librarian. He also argues basing on the decisions that have been submitted along with the counter affidavit filed that the petitioner cannot be called a teacher. He relies upon the decision in WP.No.21035 of 2002 passed by a learned single Judge of this Court which also considered the decisions relied upon by the learned counsel for the petitioner and thereafter came to a conclusion that as the Assistant Librarian has not imparted instructions nor conducted or guided research or extension programme, he cannot be called as a teacher. He also argues that the fact that some teaching classes were assigned to the petitioner in a few stray instances, he cannot be called as a teacher. He relies upon the judgment in WA.No.831 of 2006, wherein also the Division Bench held that the mere assignment of duties to an individual without any duty chart cannot be a factor to be taken into account to conclude, he is a teacher. He relies upon the other judgments also to submit that it is not the duty of the Court to enter into areas of administrative control etc., particularly in matters relating to internal affairs of Universities. It is his contention that because of the huge support the petitioner received from the ruling party at that point of time he is continuing in the University and that he had no right whatsoever to be there. The gist of the submission of the learned counsel is that the

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petitioner cannot be called as a teacher even if a few stray classes were assigned to him.

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Court:

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This Court has heard all the learned counsel who argued at great length in this matter. Both sections 2(22) and 2(23) of the Act deal with “teachers” and “teachers of the University” and define a teacher as a person who gives instructions in a college as may be declared by the statute or a teacher who gives instructions or guides research in the University. Section 2(22) of the Act, deals with professors, readers and lecturers in a college, whereas section 2(23) of the Act, deals with teachers of the University. Therefore, the crux of the matter, as can be seen with regard to a teacher is “giving the instructions”. Unless and until a person gives instructions or guides the research, he cannot be called a teacher. The case law that is cited on either side is also sufficiently clear.

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The crux of the matter, therefore, appears to be whether or not the petitioner has been asked to give instructions or to guide research in the University. Even the judgments cited by the learned counsel for the respondent are clear:-unless and until the person is entrusted with teaching or guiding research skills in a structured or a proper programme, he cannot be called as a teacher. In fact, the learned single Judge in WP.No.21035 of 2002 has refused relief to an

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Assistant Librarian in the case holding that a 30 minutes speech once a year about the University cannot be called as imparting instructions. The learned single Judge noted that the petitioner has not imparted instructions nor has conducted research or extension programmes. In WA.No.831 of 2006, the Division Bench also allowed the Writ Appeal and set aside the single Judges order on the ground that mere assignment of duties to an individual without reference to a general duty chart, cannot be taken into account. The case law cited is to the effect that unless and until the petitioner performs regular/structured and systematic teaching activities, spread over the academic sessions or the academic year, he cannot be called as a teacher. The mere assignment of duties by which he is asked to speak about the Library Sciences or to advise people on benefits of Library Sciences cannot be used to classify the person as a teacher.

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The judgment reported in P.S.Ramamohana Rao v. A.R.Agricultural University¹ is the basis for a number of judgments that have followed on this lis. In P.S.Ramamohana Rao’s case (supra), the appellant before the Hon’ble Supreme Court was a Physical Director of a Government college, who sought to argue that he could not be superannuated and that as he is a teacher, he is entitled to be superannuated in line with the teachers only. The Hon’ble

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1 AIR 1977 SC 3433

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Supreme Court of India considered the material that is available before it and the nature of duties that were assigned to a Physical Director. One of the important factors that weighed with the Hon’ble Supreme Court was the duty assigned to the Physical Director to “guide the students about the rules of the various games and sports”. The Hon’ble Supreme Court of India held that apart from his other duties, other duties of imparting guidance about the rules of various games and sports would bring him within the definition of a teacher. The Supreme Court clearly held at para 10 as follows:

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“10. From the aforesaid affidavit it is clear that a Physical Director has multifarious duties. He not only arranges games and sports for the students every evening and looks 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. 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. Further, in our view, 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. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he

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has to teach them several skills and the techniques of these games apart from the rules applicable to these games.” (emphasis supplied)

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This duty that was assigned to the Physical Director tilted the balance in his favour and the Hon’ble Supreme Court held that the duty to teach the skills of various games as well as rules and practices bring him within the definition of a teacher.

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If the present case is examined against the back drop of this judgment of the Hon’ble Supreme Court of India and the judgments referred to by the learned special counsel for the respondent, the following would emerge:- the petitioner has been given a structured streamlined instruction programme for the students of M.L.I.Sc course. The time table for a number of years has been filed. The petitioner has been assigned subjects and particular classes. The counsel for the respondent sought to distinguish the course on the ground that it is a self-financing scheme. Whether it is a selffinancing based on the higher fee charged or whether it is the course where regular University fees are subsidised by the State does not make any difference in the opinion of this Court. The degree is awarded is by the University alone. The classes are held in the University alone. The teaching staff are employees of the University. The courses are started by the University. Therefore, this Court holds that the objection that it is a self-financing course for study is not very material.

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This Court finds that the petitioner has been given a structured streamlined programme spread over a year. Apart from that he has been nominated as a Member of the Senate of the Executive Council from amongst the teachers. He not only guided students for the research (Ph.D.), for the Nagarjuna University but was also considered as an external faculty for adjudicating the Ph.D. thesis of other Universities. Apart from that he was also supervising the internal examinations.

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Similarly, the petitioner G.Sarat Chandra Babu in WP.No.3082 of 2019 was also deputed to various parts of the State for conducting practical examinations to B.L.I.Sc students. As mentioned earlier, there is a structured streamlined pattern for teaching of M.L.I.Sc course that has been assigned to petitioner and other teachers. This Court holds that the judgments cited by the learned counsel for the petitioner are much more appropriate and relevant to the facts on hand. If imparting of the rules of the game in sports can be held to be teaching as held by the Hon’ble Supreme Court of India, teaching classes in M.L.I.Sc definitely would amount to teaching.

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This Court is of the opinion that the duties assigned to the petitioner in this case would definitely entitle him to be called a “teacher” of the University. Sustained activity is allotted to the petitioner in teaching. His role in guiding

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Doctoral students and the request from other Universities to the petitioners to act as external examiners make it clear that the persons in the Library Science Department are treated as “teachers”. The time tables make it clear that they are assigned duties as teachers of Library Science. Therefore, this Court holds that the various members of the faculty in the Department of Library and Information Sciences who are teaching regular classes should be considered as teachers only. Consequently, they are entitled to be retired/superannuated only when they attained age of 62 years; on par with all other teachers. This Court also feels that in view of the decided case law as applicable to this case; this order would not amount to an interference in an internal matter of a University but would be a case of vindication of the petitioners rights.

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In the case of S.S.Janardhan Rao v. Andhra University² , a similar argument was advanced, wherein the standing counsel stated that the petitioner never discharged duties as a teacher and that he was not declared as a teacher by any statute. The single Judge held that a deeper scrutiny would reveal that the contention does not have any merit. He relied upon regulation 34 of the Act, which mandated that the Librarian should also do teaching work as may be assigned to him. In that case, the learned single Judge did not find that

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2 1998 (6) ALD 480

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the petitioner was actually assigned any teaching work. Still the learned single Judge held that it may be true that the University did not extract teaching work from the petitioner, but he has an obligation to discharge teaching work when it is assigned. Therefore, learned single Judge held that even if the petitioner was not actually called upon to teach, the University can demand him to teach and extract teaching work from him. Assigning or non-assigning teaching work is immaterial, as per single Judge. Once teaching is a part of the duty assigned to the posts, it cannot be said that he is not a teacher. The other argument of the appointment order itself saying that he is a non-teaching staff was also advanced before the single Judge is S.S.Janardhan Rao ’s case (2 supra). This was also over ruled by the learned single Judge. The learned single Judge held that this contention may be correct under the common law of master and servant, but whether the contract is under the Government or in the statutory bodies, he held that this argument will not apply. As submitted by the learned counsel for the petitioner, this decision was also upheld by the Division Bench in Andhra University, Visakhapatnam v. S.S.Janardhana Rao³ .

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These submissions cannot therefore hold water any more. The Division Bench clearly held that the mere fact that the

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3 2002 SCC Online AP 1205

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petitioners were not allotted “teaching” work would not take them out of the definition of teacher.

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Hence, after examining the matter from all the angles, this Court is of the firm opinion that as the petitioners are assigned teaching duties in a structured/pre-determined manner and as they have been consistently teaching the students, they are held to be teachers as per Section 2(22) and 2(23) of the Act. Arguments and the submissions of the petitioners are upheld. Even if they did not actually “teach” the same is immaterial as per the Division Bench order mentioned above. The available material and the regulations governing the petitioners make it clear that the petitioners should be treated as teachers of the University, as a result of which they are entitled to be retired only on attaining the age of 62 years and with all the benefits therefrom.

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Accordingly, Writ Petition Nos.4818, 15161 and 20948 of 2019 filed by Sri K.Venkata Rao are allowed and the proceedings dated 23.03.2019, 19.09.2019 and 12.12.2019 respectively issued by the respondent-University are set aside. Similarly, Writ Petition Nos.3082 of 2019 and 1977 of 2020 filed by Sri Gajula Sarat Chandra Babu are also allowed and the proceedings dated 07.02.2019 and 1912.2019 issued by the respondent-University are set aside. The petitioners are also entitled to all the consequential benefits etc., that flow from this order. No order as to costs.

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As a sequel, the miscellaneous petitions if any shall

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stand dismissed.

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________________________ D.V.S.S.SOMAYAJULU,J

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Date : 14.02.2020 KLP

Gajula Sarat Chandra Babu v. the State of Ap

Case brief

What is this about?

What did the court decide?

Gajula Sarat Chandra Babu v. the State of Ap

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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