Full Judgment Text
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PETITIONER:
OSMANIA UNIVERSITY
Vs.
RESPONDENT:
V. S. MUTHURANGAM AND ORS.
DATE OF JUDGMENT: 08/07/1997
BENCH:
G. N. RAY, K. T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
G. N. RAY, J.
The short question involved in these appeals is whether
the age of superannuation of the non-teaching staff of the
Osmania University should be raised to 60 years when the
University has fixed the age of superannuation of the
teaching staff of the University at 60 years. As the Osmania
University authorities refused to raise the age of
superannuation of the non-teaching staff to 60 years by
implementing the mandate of maintaining uniformity in the
conditions of service of all the salaried staff of the
University under Section 38 (I) of the Osmania University
Act, 1959 (hereinafter referred to as the Act), a number of
non-teaching staff of the University moved Andhra Pradesh
High Court by filing writ petitions claiming the age of
superannuation at 60 years. Such claim was allowed by
learned Single Judge and by the impugned judgment the
Division Bench of the High Court has also upheld the claim
of the writ petitioners that the age of superannuation of
the non teaching staff of the University will also be 60
years.
The learned Solicitor General, appearing for the
Osmania University, has submitted that sub-section (1) of
the Act has two distinct parts. The first part provides that
unless otherwise provided, every salaried officer of the
University shall be appointed under a written contract and
the second part of sub-section (1) of Section 38 provides
that conditions of service relating to such salaried
officers of the University shall as far as possible, be
uniform except in respect of salaries payable to them.
Mr. Solicitor General has contended that the University
has a large number of employees both in the teaching and non
teaching departments. In each of such departments, there are
different cadres having different pay structure. Since the
employees belong to different cadres discharging different
types of duties and responsibilities, it is inherently not
practicable to lay down absolutely uniform service
conditions even other than pay structure for such diverse
cadres of teaching and non teaching staff of the University.
Keeping in view the felt need of some amount of flexibility
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in the service conditions of the various cadres in the
teaching and non teaching establishments, in sub-section (1)
of Section 38 of the Act, it has been specifically indicated
that the conditions of service of the employees of the
University will be uniform as far as possible. Such
expression clearly indicates that although by and large
service conditions of the employees will be uniform there
may be occasions to have some difference in the conditions
of service in order to meet different exigencies having
bearing on the service conditions of the employees.
Mr. Solicitor General has also contended that age of
superannuation is undoubtedly an important condition of
service of an employee. Previously, both the teaching and
non-teaching staff of the University had uniform age of
retirement on attaining 55 years. Such age of superannuation
was later on increased to 58 years when the State Government
increased the age of superannuation of is employees because
University, in principle, follows the conditions of service
of the employees of the State Government. But in view of the
recommendations of the University Grants Commission in
respect of pay structure of various cadres of the teaching
staff of the University e.g. Lecturers, Assistant Professor,
Professor etc. and age of superannuation of such teaching
staff of the University, the University had to implement
such recommendations of the University Grants Commission in
respect of its teaching staff. Mr. Solicitor General has
submitted that the recommendations of an august body like
University Grants Commission cannot be stifled and as a
matter of fact all the universities having gracefully
accepted such recommendations have implemented the same. It
was recommended by the University Grants Commission that the
normal age of superannuation of a teaching staff would be 60
years. Such recommendations of the University Grants
Commission necessitated for a change of the age of
superannuation of the teaching staff of the University and
the University has implemented the recommendations of age of
superannuation by raising the age of superannuation of its
staff. For the large number of non teaching staff of the
University, such raising of the age of superannuation was
thought neither desirable nor practicable.
In this connection, Mr. Solicitor General has referred
to the meaning of "as far as possible" by referring to
Stroud’s Judicial Dictionary of Words and Phrases (4th
Edition) Vol.4 p. 2068. It has been indicated that a duty to
do a thing ‘if possible’ means generally ‘if reasonably
possible’ in business sense. Similarly, ‘as far as possible’
has been held to mean ‘as far as possible consistently with
carrying of the manufacture in question’. It is contended by
the learned Solicitor General that it was never intended
that the terms and conditions of all the employees of the
University should be absolutely same. Precisely, for the
said reason, flexibility was introduced by providing the
expression ‘as far as possible’ in Section 38 (1) of the
Act. Mr. Solicitor General has also submitted that since the
conditions of the teaching staff of the University had to be
regulated on the basis of the recommendations of the
University Grants Commission, the service conditions of the
teaching staff had been framed differently. But so far as
the non teaching staff of the University is concerned, all
such non teaching staff have been treated uniformly. He has
submitted that the fixation of different age of
superannuation for the teaching and non teaching staff is
not only legal and within the competence of the authorities
of the University but such action is also not unreasonable
or arbitrary or capricious. He has contended that teaching
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staff inherently hold two different types of services.
Therefore, these two categories of employees are essentially
unequal. Hence, by treating the unequals differently, there
has been no violation of Article 14 of the Constitution. In
this connection, Mr. Solicitor General has also referred to
a decision of this court in State of West Bengal and others
Vs. Gopal Chandra Paul and others (1995 Suppl. (3) SCC 327).
In the said case, the superannuation age of 60 years which
was available to the teaching staff of the Government School
of the Education Department was not made available to the
Inspecting Staff of the Education Department whose age of
superannuation was 58 years. It has been held in the said
decision that the teaching staff and the Inspecting Staff of
the Education Department are distinct and independent
services and even if on occasions transfers from one service
to the other have been permitted, the Inspecting Staff of
the Education Department holding a different service cannot
claim parity with the teaching staff in the matter of age of
superannuation.
Mr. Solicitor General has submitted that the High Court
has not appreciated the true import of ‘as far as possible’.
The High Court has proceeded on the footing that unless it
is impossible to implement, the conditions of service of he
employees for both the teaching and non teaching
establishments must be made the same because of the mandate
under Section 38 (1) of the Act. Mr. Solicitor General has
submitted that such reading of the High Court of the
expression ‘as far as possible’ is contrary to the accepted
meaning of the said expression. The University is competent
to fix different age of superannuation for its employees in
respect of two distinctly different categories of employees,
namely, teaching staff and non teaching staff, if for good
reason, the University feels that a different age of
superannuation is required to be introduced for a distinctly
different group of employees. Mr. Solicitor General has
submitted that University on its own, did not take steps to
treat the teaching staff favorably by increasing the age of
superannuation of the teaching staff but such decision has
to be taken in view of the recommendations of the University
Grants Commission. The University has also followed the
accepted policy of the University to maintain the service
conditions of its employees in the non teaching department
at par with the government employees of the State
Government. In the aforesaid circumstances, the impugned
decision of the High Court in directing that the non
teaching staff of the University would also retire at the
age of 60 years cannot be sustained and such judgment
should, therefore, be set aside.
Mr. Subba Rao, learned counsel appearing for the
private respondents who are the writ petitions before the
High Court, has, however, disputed the contentions made by
learned Solicitor General. Mr. Subba Rao has submitted that
Section 38 of the Act clearly lays down that the conditions
of service of all salaried employees of the University
should be the same ‘as far as possible’ even after noticing
that the nature of duties of a large number of employees of
the University in both teaching and non teaching
establishments are likely to be different and the employees
in both the establishments also belong to different cadres.
According to Mr. Subba Rao, Section 38 (1) of the Act
indicates that if not otherwise absolutely impracticable or
impossible, the University must maintain uniformity on the
service conditions of all its employees whether such
employees belong to the teaching staff or non teaching
staff. In the instant case, there is no impracticability in
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bringing uniformity in the age of superannuation of the
teaching and non teaching staff of the University. There may
be justification of the University to increase the age of
superannuation of the teaching staff because of the
recommendations of the University Grants Commission, but
such change in the age of superannuation of the teaching
staff can easily be effected in respect of the non teaching
staff of the University, there is no room to contend that
corresponding change of the age of superannuation of the
employees of the non teaching staff is neither practicable
nor possible. Mr. Subba Rao has submitted that a number of
Universities in the State of Andhra Pradesh, age of
superannuation of the non teaching staff is 60 years even
though the age of superannuation of the government employees
is 58 years. In this connection, Mr. Subba Rao has referred
to provisions of the Andhra University Act, 1925. Under
Section 35 A of the Andhra University Act, the State
Government shall have power to make regulations regarding
the classification, methods of recruitment, conditions of
service, pay and allowances and discipline and conduct of
the members of teaching and non teaching staff of the
affiliated colleges of the University. But even though the
Government has the power to regulate the conditions of
service of the teaching and non teaching staff of the
colleges, the government has allowed a different age of
superannuation for the teaching and non teaching staff of
the University and has not fixed the age of superannuation
of the non teaching staff at 58 years on the footing that
the age of superannuation of the government employees in the
State of Andhra Pradesh is 58 years. Therefore, the plea of
the University that University is obliged to fix the same
age of superannuation of the non teaching staff as available
to the government employees of the State Government and for
the said reason the age of superannuation of the non
teaching staff cannot be raised to 60 years even though the
age of superannuation of the teaching staff has been raised
to 60 year in order to implement the recommendations of the
University Grants Commission, cannot be sustained. Mr. Subba
Rao has submitted that the raising of the superannuation age
of the non teaching staff to 60 years for bringing
uniformity in the superannuation age of both teaching and
non teaching staff of the University is neither
impracticable nor unreasonable or undesirable. Therefore, no
interference with the impugned order of the High Court is
called for in these appeals.
After giving our careful consideration to the facts and
circumstances of the case and the submissions made by the
learned Solicitor General and also the learned counsel
appearing for the respondents, it appears to us that
teaching and non teaching staff of the University are
distinct and separate categories. The nature of duties to be
performed by the teaching and non teaching staff of the
University are also different. Therefore, apart from
different scales of pay in the hierarchy of the service in
both teaching and non teaching departments, it may be held
that the nature of service of the two distinct and different
departments namely the teaching and non teaching
departments, is inherently different. Mr. Solicitor General
is justified in his contention that Section 38 (1) of the
Act recognizes flexibility and the expression ‘as far as
possible’ inheres in it an inbuilt flexibility. There was
impelling necessity for the University to change the age of
superannuation of the teaching staff in order to give effect
to the recommendations of the University Grants Commission.
The University, in our view, will be justified within the
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ambit of Section 38 (1) to introduce different conditions of
service for different categories of employees if such
different conditions become necessary for the exigency of
the administration and if it is otherwise impracticable to
bring uniformity in the conditions of service of different
categories of its employees. For the same reason, it is
permissible for the University to introduce the age of
superannuation differently for different categories of the
employees, if introduction of such different age of
superannuation can be justified on the anvil of felt need of
the administration. But if uniform conditions of service for
teaching and non teaching staff of the University is not
otherwise impracticable, the University is under an
obligation to maintain such uniformity because of the
mandate of Section 38 (1) of the Act. In the instant case,
we do not find that it is not at all practicable for the
University to maintain the parity in the age of
superannuation of both teaching and non teaching staff.
There is no compulsion under the law that University is
bound to maintain the same age of superannuation of its
teaching and non teaching staff as is available to he
employees of the State Government. Because there is no such
statutory compulsion to maintain the age of superannuation
of the teaching staff at par with government employees, the
University has increased the age of superannuation of its
teaching staff. Hence, University can easily raise the age
of superannuation of the non teaching staff for teaching
staff for bringing a parity in the service conditions of the
salaried staff of the University by fulfilling the mandate
under Section 38 (1) of the Act. The age of superannuation
of the employees of some of the Universities in the State of
Andhra Pradesh is different to that of the employees of the
State Government of Andhra Pradesh. It has been rightly
contended by Mr. Subba Rao that although the State
Government itself has authority to regulate the conditions
of service of the employees of the Andhra Pradesh
University, the State Government has fixed he age of
superannuation of the employees of the said University
differently. Therefore, it cannot be contended that it is
either undesirable or impracticable to bring uniformity in
the age of superannuation of the teaching and non teaching
staff of the Osmania University. Hence, the decision of the
High Court that when the age of the teaching staff of the
University has been increased to 60 years the age of
superannuation of the non teaching staff should also be
changed in the similar manner in order to bring parity in
the service conditions of the salaried staff of the
University in obedience of the mandate under Section 38 (1)
of the Act, is justified. We, therefore, do not find any
reason to interfere with the impugned decision of the High
Court. These appeals, therefore, fail and are dismissed
without any order as to costs.