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PETITIONER: P.S. RAMAMOHANA RAO

       Vs.

RESPONDENT: A.P. AGRICULTURAL UNIVERSITY & ANR.

DATE OF JUDGMENT:       31/07/1997

BENCH: SUJATA V. MAHNOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. JAGANNADHA RAO      This appeal  has been preferred against the judgment of the Andhra  Pradesh High Court in writ Petition No. 12751 of 1989 dated  25-4-1989 by  which a Division Bench of the High Court dismissed  the writ  petition filed  by the appellant. The question  that falls for consideration in this appeal is whether the appellant is entitled to be continued in service of the  A.P. Agricultural University as Director of Physical Education till  he completed  60 years  or  whether  he  was liable to superannuate after completion of 58 years ?      The brief facts of the case are as follows :      The  appellant   was  initially  employed  as  Physical Director in  the Bapatia  Agricultural Collage  which  is  a Government collage,  w.e.f. 4th  August,  1986.  The  Andhra Pradesh Agricultural  University  was  formed  under  Andhra Pradesh Act  24 of 1963 (hereinafter called the act’) and he abovesaid collage  stood transferred  to the said University by virtue  of Section  43 of  the said  act w.e.f.  4th May, 1964.  The  services  of  the  appellant,  therefore,  stood transferred to  the Agricultural  University accordingly and the appellant  continued to  work a Physical Director in the said  the  University.  When  the  appellant  was  about  to complete 58  years,  the  respondent  University  sought  to retire him  on the  completion of  58 years.  The  appellant filed a  writ petition  in  the  High  Court  and  initially obtained an  order of  Stay. By  virtue thereof he continued for sometime  as  Physical  Director  beyond  58  years  but subsequently  the   stay  was   vacated.  According  to  the appellant the  respondent was  not right  in contending that the age  of superannuation  for Physical  Directors  in  the University is  58 years.  He contends that he is entitled to continue till he completed 60 years as he is said a ‘teacher within the  meaning of the said words in Section 2(n) of the Act. Now  that the  appellant has  retired, the  purpose  of grant of emoluments for the period after the vacation of the stay and  before the completion of 60 years and also for the purpose of computing his retiral benefits.      Learned counsel  for the  appellant contended by virtue of the  definition of  teachers in  section 2(n)  read along

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with the  material available  on record,  the appellant came within the  main part  of the definition of teacher and that the High Court was wrong in coming to a contrary conclusion. According to  him the  definition in  section  2(n)  is  and inclusive  one   and,  therefore,  must  be  interpreted  as extending to  persons other  than those  included within the inclusionary part  of the  definition. Learned  counsel also referred us  to Regulations  3 & 33 of the Regulations dated 9.12.1965 prescribed  in regard to the conditions of service of teachers  and other  employees of the university. Counsel also relied  upon a  letter of  the Joint  Registrar of  the University  dated  29.7.1976  and  the  proceedings  of  the Education  department   of  the   State   government   dated 29.11.1976 and  20.4.1987 to  contend that Physical Director was treated  as a  teacher and was not therefore outside the definition of  ‘teacher’. He also relied upon the additional affidavit filed by the respondent in the Andhra Pradesh High Court to  say that  going by  the  duties  of  the  Physical Director as  set out  in the  said additional  affidavit. He must be  deemed to  be a  ‘teacher’. On  the above basis. He contended  that  the  age  of  superannuation  is  60  years applicable to teachers and not 58 years which was applicable to certain other categories of employees.      On the  other hand,  learned counsel for the University contended that  Physical director was not a ‘teacher’ within the meaning  of said  expression in  section 2(n) of the act and that  he could  not be  continued till  he completed  60 years. There  was no  regular  curriculum  on  syllabus  for physical education  and merely  because he  was helping  the students in  sports  and  games  and  for  participating  in certain competitions, he could not be called a teacher.      For the  purpose of  deciding the  above issue  arising between the  parties,  it  is  necessary  to  refer  to  the relevant provisions  of the  Act and  the Regulations.  Sub- clause (n) of sector 2 defines ‘teacher’ as follows :      "teacher"  includes   a  professor,      reader, lecturer  or  other  person      appointed  or   recognised  by  the      University  for   the  purpose   of      imparting instruction or conducting      and guiding  research or  extension      programmes, and any person declared      by the statute to be a teacher"      The definition  does not  say what  the word  ‘teacher’ means but  includes certain categories within the meaning of the said word.      Regulation  33   (as  amended   on  27.4.1976)  of  the Regulations  deals  with  the  presumption  of  the  ape  of superannuation and,  in so  far as  it is material, reads as follows :      "(a) The  age   of  retirement  for      teachers shall be 60 years provided      that it  shall be competent for the      appointing authority  to review the      case of  any teacher  at  any  time      after he  attains  the  age  of  38      years  and   retire  him,   without      assigning any  reason, giving three      months prior notice or after paying      him three  months salary in lieu of      such notice.      (b) (i)  The age  of retirement  of      the  employees   other  than  those      mentioned in  Clause (a)  and Class      IV  employees  shall  be  38  years

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    provided   that    the   appointing      authority may  retire  an  employee      from service  in  public  interest,      after giving  him  at  least  three      month’s notice  or at  least  three      month ’s  salary in  lied  or  such      notice at any time after completing      twenty  five  years  of  qualifying      service or attaining fifty years of      age.      (b) (ii)  "The age of retirement of      the Class  IV employees shall be 60      years, provided that the appointing      authority may  retire  an  employee      from service  in  public  interest,      after giving  him atleast 3 month’s      notice  or  atleast  three  month’s      salary in  lied of  such notice  at      any time  after  completing  twenty      five years of qualifying service or      attaining fifty five years of age."      From the  above Regulation, it is clear that the age of retirement  for   ‘teachers’  is  60  years  and  for  other employees it is 58 years while the age of Class IV employees is 60  years. It  is, therefore, clear that if the appellant is a teacher, he will come under subclause (a) of Regulation 33 and  is entitled  to be  continued till  he completes  60 years. If  on the  other hand  he does  not come  within the definition of  teacher. He  has to  retire at  the ape of 58 years under clause b (i) of the above-said Regulation.      Neither the Act nor the rules & regulations specify the duties and  functions  of  a  Physical  Director.  We  have, therefore, to go by the material available in the affidavits filed by  the  parties  to  decide  that  question.  In  the additional <??>  affidavit filed on behalf of the University in the High Court, it is stated in paragraph 7 as follows :      "I further  submit that  the duties      of the  Physical Directors  in this      University,  in   brief,   are   as      follows:      a)  to  arrange  Games  and  Sports      daily  in   the  evenings  for  the      students.      b) to look after the procurement of      sports material and the maintenance      of the sports grounds.      c)  to   arrange  Inter-class   and      Inter-Collegiate tournaments.      d) to  accompany the  student Teams      for      the       Inter-University      tournaments.      e) to  guide the students about the      rules  of  the  various  games  and      sports."      From the  aforesaid  affidavit,  it  is  clear  that  a Physical Director  has  multifarious  duties.  He  not  only arranges game  and sports for the students every evening and looks after  the procurement  of  sports  material  and  the maintenance of the grounds out also arranges inter-class and inter-college tournaments  and accompany  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

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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 games  and sports. There are large  number of  indoor and  outdoor games in which the students have to be trained. Therefore, he has to teach them several skills  and the techniques of these games apart from the rules applicable to these games.      Having regard  to the above-said material before us, we are clearly  of the view that the appellant comes within the definition of  a teacher  in sub-clause  (n) of section 2 of the Act.      We may  also here  refer to  certain proceedings relied upon by the learned counsel for the appellant. The Secretary to the  University  Grants  Commission  in  a  letter  dated 7.1.1959 addressed  to the  Registrar  of  the  Agricultural University in connection with the upgrading of the scales of physical Directors  referred to  the minimum  qualifications required for  an appointment  of a  Physical Director and in the said  letter described Physical Directors as "teachers". The relevant portion cf. the said letter reads as follows :      "I am  directed to  state that  the      University    Grants     Commission      considered    the    question    of      upgrading  the   salary  scales  of      teachers of  Physical Education  in      Universities   and   Collapse   and      decided as follows :           The minimum qualifications for      appointment  as   a   Director   of      Physical Education  or  a  Physical      Instructor  in   Universities   and      colleges should be & Post-Graduated      Diploma  for   certificate)  a   or      Degree   in   Physical   Education.      Persons  with  much  qualifications      may be  appointed in the same scale      of   the    universities   may   be      appointed in  the scale  of pay  of      Readers  if   the  Universities  no      desire.    Persons    with    lower      qualifications may  be appointed on      the  same   terms  as   Tutors  and      Demonstrators.  These   teacher  of      Physical education  may be included      among the teaching staff of College      and Universities  for  purposes  of      revision of salary scales.      2.   I am to request you to furnish      the information  ink respect of the      existing Physical Instructors in he      Universities and  Colleges  in  the      enclosed    proformas,    with    a      commitment to  share the  increased      cost  at   20%  in   the  case   of      University teachers and 50%, 25% in      the  case   of   College   Teachers      consequent  upon  the  fixation  of      their  salaries   in  the   revised      grades. If  the scheme of upgrading      the salary  males  of  teachers  of      physical  Education   on   detailed      above,   is   acceptable   to   the      University/college. The date of the      implementation of  the scheme  will

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    be  the   same  as  for  the  other      teachers viz.  1.4.1956 in the case      of   Universities    teachers   and      1.4.1957  in   respect  of  College      teachers."      In  fact,  it  is  clear  from  the  above  that  while computing the percentages of teachers as mentioned in para 2 of the  said letter.  Physical Directors  have  also  to  be counted.      There is  a memorandum  of the  Joint Registrar  of the said University dated 29.7.1966 dealing with the case of one M. Hanumantha  Rao, Physical Director in connection with his retirement, it  is clearly  admitted that  Physical Director comes within  the category of teachers. The relevant part of the said letter reads as follows :      "With  reference   to  his   letter      cited, the  Principal  Agricultural      College. Bapatia  is informed  that      the physical  Directors working  in      the Colleges  under Andhra  Pradesh      Agricultural University  come under      the category  of teaching staff and      that the age of retirement for such      employees has  been  prescribed  in      the  Andhra   Pradesh  Agricultural      University (conditions  of Service)      Regulations, 1965."      In connection  with the  Physical Directors  working in Degree colleges and Junior colleges the Education department of the  Andhra Pradesh  Government  has  issued  proceedings dated  29.11.1976  and  in  the  said  proceedings  Physical Directors have  been described  as teachers, for the purpose of he  application of the Andhra Pradesh General Subordinate Service. In  regard to  the pay scales of Physical Directors in Degree  Colleges in  the State,  the Government of Andhra Pradesh had  issued proceedings  dated 20.4.1987 designating Physical  Education   Directors  as  Lecturers  in  Physical Education.      We are  of the  view that the above said communications of  the  University  Grants  Commission  and  of  the  Joint Registrar of  the respondent  University and  of  the  State Government support the view we have taken above.      In the  impugned judgment of the High Court it has been said that  merely because  Physical Directors  are paid  the same scales  of the  teaching staff  that does not confer on them  the   status  of   a  teacher.   There  is   also   no discrimination if  Physical Directors are retired at the age of 58  years and other teachers are allowed to retire at the age of  60 years and other teachers are allowed to retire at the age  of 60 years. The High Court further said that while it was  true that  section 2  (n) of  the Act  contained  an inclusive definition  of ‘teacher’,  the Physical  Directors did  not   come  within  the  categories  mentioned  in  the inclusive  definition.   They  are  neither  professors  nor readers nor  lecturers nor  were they  persons appointed  or recognised by  the University  for the  purpose of imparting instruction or  conducting and guiding research or extension programmes.      In our  view, the  learned Judges  did not  go into the meaning of the word "teacher" in the main part of the clause nor assess  correctly the effect of the material evidence on record. The  learned Judges  observed that assuming Physical Directors imparted  instructions to his students, unless the University recognised  them as teachers they could not claim the benefit  of section  2(n)  of  the  act.  Obviously  the

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learned Judges  were referring  to the  last part of section 2(n) which  includes persons  other than those enumerated in the inclusive part if so recognised by the University. As we have held  that the Physical Directions come within the main part of  the definition  of ‘teacher’,  it is in our opinion not necessary  that they  should be separately recognised as teachers by an order or statute of the University.      In the additional affidavit of the university, referred to earlier,  it is no doubt contended that a semester course in the  University means a unit of instruction and devotes a segment of subject matter to be covered in a semester. Under such a  system a  person has  to get  a specific  number  of credits. A  credit hour  "means one  hour lecture  or two to three hours of a laboratory of field work" in practicals. It is contended  that the  student undergoes  a course of study leading  to   various  under-graduate   programmes  in   the University and  has to pass courses and complete the minimum number of  credit hours  prescribed therefore  from time  to time. So  far the  games and  sports are  concerned,  it  is contended, that  there is  no weight age of credit hours and there  are   also  no   theoretical  and  practical  courses prescribed for  the students.  It is  contended that for the said  reasons   Physical  Director   cannot  be  treated  as teachers.      We are  unable to  agree. It  may be  that the Physical Director gives his guidance or teaching to the students only in the  evenings after  the regular classes are over. It may also be that he University has not prescribed in writing any theoretical and practical classes for the students so far as physical education  is  concerned.  But  as  pointed  by  us earlier, among  various duties  of  the  Physical  Director, expressly or  otherwise, are  included the duty to teach the skills  of   various  games  as  well  as  their  rules  and practices. The said duties bring him clearly within the main part of  the definition as a ‘teacher’. We therefore, do not accept the  contention  raised  in  the  additional  counter affidavit of the University.      For the  aforesaid reasons  the appeal  is allowed  and judgment of  High Court is set aside and it is declared that appellant was  entitled  to  continue  in  service  till  he completed 60  years of  age. Now  that he  has retired he is entitled to  the emoluments payable to him for the remaining period of  the service  upto  the  completion  of  60  years deducting  the  period  for  which  he  worked  as  Physical Director beyond  58 years pursuant to stay orders granted by the High  Court. His retiral benefits shall also be computed on the  basis that  his age  of retirement was 60 years. The appeal is allowed and disposed of accordingly.