Allowed

J.J.S.Prasad, v. The State of Andhra Pradesh, Rep by its Principal

Andhra Pradesh HC19 Jul 2022WP/19447/2016

Case brief

AI extract

What is this about?

This writ petition challenged the retirement of two teaching staff in a private polytechnic before reaching the age of 65. The court held that AICTE regulations mandated the age of superannuation at 65 years. Consequently, the institution was directed to continue the petitioners in service and pay pending salaries.

What did the court decide?

Writ of Mandamus directing respondents to continue petitioners' service till age 65 and pay salaries for the period from 01.07.2016 to 30.06.2018.

J.J.S.Prasad, Vs The State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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THE HON’BLE DR.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.19447 of 2016

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ORDER:

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This Writ Petition is filed under Article 226 of the

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Constitution of India, seeking the following relief:

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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 respondents in not continuing the petitioners’ service till the age of superannuation i.e 65 years of age in the 4^th respondent institution as illegal, irregular, arbitrary, discrimination, un-constitutional, against to the provisions of All India Council for Technical Education (Pay Scales, Service conditions and qualifications for the Teachers and other academic staff in Technical Institutions (Diploma) Regulations 2010 and A.P. Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014 i.e Act 4 of 2014 and the Andhra Pradesh Education (Amendment) Act, 2014 i.e Act 1 of 2015 and in violation of fundamental rights guaranteed under Articles 14, 16 and 19 of Constitution of India and consequently direct the respondents to continue the petitioners in service in 4^th respondent Institution till his superannuation i.e 65 years of age and pass such other orders.”

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Heard learned counsel for the petitioners and learned

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Counsel for the respondents 4 and 5.

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The brief case of the petitioners is that the 1^st petitioner is working as Lecturer in Physics and 2^nd petitioner is working as Senior Instructor in the 4^th respondent college since 35 years. Now they have attained the age of 58 years and the 4^th respondent intended to retire the petitioners from service by end of June-2016, though they are entitled to continue up to 65 years as per AICTE Regulations or atleast they are entitled to continue up to 60 years as per A.P. Education Act 1982 and Act 1 of 2014. The State of A.P has promulgated Act-2014 which came into force from 27.06.2014,

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enhancing the age of retirement from 58 to 60 years. Accordingly, the government has amended section 78-A of A.P. Education Act, 1982 by bringing Act 1 of 2015. Therefore the petitioners are supposed to be continued until attained the age of 60 years. The 4^th respondent is a private unaided polytechnic and it is recognized by respondents 1 to 3. The respondents 4 and 5 are not acting as per the law and amended provisions relating to the age of superannuation. Hence inaction of the respondents 4 and 5 in continuing the petitioners’ service till the age of superannuation i.e 65 years of age in the 4^th respondent institution is questioned in this writ petition.

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Per contra, the respondents 4 and 5 filed their counter by denying all material averments made in the writ affidavit and contended that the petitioners have attained the age of 58 years and they are liable to be retired from service. The Government of A.P enhancing the age of retirement of its employees from 58 years to 60 years and amended the Section 78-A of the A.P.Education Act, 1982 by enhancing the age of superannuation of the teaching and non teaching staff employed in any “aided private educational institutions” from 58 to 60 years. But the same is not applicable to the petitioners, since the said act is only applicable to the State Government Employees and the employees working in aided private educational institutions, but not relating to the unaided private institutions. The 4^th respondent is a private unaided institution without any financial aid from the State Government and the 4^th respondent institution is not in a position either to

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continue the petitioners in service or to pay their salary due to financial crisis. Hence, requested to dismiss the writ petition.

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The petitioner filed reply affidavit against the counter filed by the respondents 4 and 5 and contended that this Court has got jurisdiction under Article 226 of the Constitution of India as the 4^th respondent institution is entrusted with public duty to follow AICTE regulations and A.P.Education Act, 1982. The AICTE is authorized to prescribe service conditions of the teaching staff and the 4^th respondent is bound to follow the same, otherwise it is liable to derecognized. Since the 4^th respondent did not follow with the AICTE regulations, the AICTE had kept the institution under ‘no admission’ category from 2018-2019 as the AICTE regulations are statutory in nature. The AICTE while exercising its powers under clause (i) of Section 10 which provides that AICTE is empowered to lay down norms and standards for courses, staff pattern, assessment and examinations etc., and therefore includes power to prescribe service conditions of staff of technical institutions. As per the regulations No.12.0, the age of superannuation of teachers in diploma level institutions was increased to 62 years, as per regulations 2.4, the pay-scales, qualifications and other associated terms as given in the said notification dated 30.12.1999 shall be applicable to all selffinancing (Private unaided) institutions such as the 4^th respondent institution. The said recommendations dated 30.12.1999 was held statutory and mandatory on the part of the state government to implement by various High Courts and also the Hon’ble Apex Court.

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6. Learned counsel for the petitioners relied on a decision in

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Pramod Vs. State of Maharashtra¹ wherein it was held that:

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“On the issue of age of superannuation, there was no occasion for the High Court to consider the relevant Rules or Notifications and before us there is a serious controversy as to whether the age of superannuation on the post of a teacher other than Principal ought to be 60, 62 or 65 years. According to Respondent, the State Government had issued a Notification through the Higher and Technical Education Department dated 5^th March, 2010 whereby the age of superannuation for nongovernment polytechnic institutions has been increased from 58 years to 60 years and it can be extended up to 62 years only after obtaining prior approval of the State Government. Similarly, for the post of Principal the age of superannuation has been increased to 65 years but with the rider that State Government should grant approval for any further extension beyond 62 years. On the other hand, the stand of the Appellant is that he has been arbitrarily ignored and not considered for extension because of pending litigation against the Management of the Respondent-Society since several years. It is further case of the Appellant that: State Government has never differed with the recommendation of the AICTE on the issue of age of superannuation; in exercise of its statutory powers Under Sub section (1) of Section 23 read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987, the AICTE has issued the Regulations dated 5^th March, 2010; and the Regulations, inter alia, provide for age of superannuation and since they apply to technical institutions conducting technical education and such other courses/ programmes and areas as notified by the Council from time to time, the age of superannuation for teachers of the Polytechnic stand enhanced to 65 years with sole exception of Librarian whose age of superannuation continues to be 62 years”.

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In the case of the petitioners, the 4^th respondent

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institution has no service rules of its own and hence, it is bound to follow the service rules which were applicable to the staff working in the Government College as per Section 78-A of the A.P.Education Act. Following the above said decision, the

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1 2016 AIR (SC) 204

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petitioners are entitled to be continued up to 65 years as per AICTE regulations, the petitioners chosen to adhere to the directions of this Court and retired on attaining 60 years. One of the reasons that the petitioners chose to retire, was non-payment of salaries by the 4^th respondent for the period the petitioners worked in the college i.e from 01.07.2016 to 30.06.2018. The 4^th respondent has given false statement that they did not continue in service, inspite of interim orders of this Court with an intention to pay salaries.

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In view of the above said circumstances the petitioners are entitled to be continued until 65 years of age and entitled for the salaries for the period they have worked i.e from 01.07.2016 to 30.06.2018, since the petitioners are entitled to continue beyond 58 years as per regulations. More over the respondent/ college has been put under ‘No Admission’ category by AICTE, its being continued for old batch of students and conducting examinations.

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Accordingly the writ petition is allowed, directing the respondents to continue the petitioners in service in 4^th respondent institution till superannuation i.e 65 years of age, within a period of four (04) weeks from the date of receipt of a copy of this order. No order as to costs.

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As a sequel, miscellaneous petitions pending consideration if any in the writ petition shall stand closed.

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____________________________ DR. K. MANMADHA RAO, J

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Dated 19.07.2022. KK

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THE HON’BLE DR.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.19447 of 2016

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