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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.