STATE OF MADHYA PRADESHversusHARI DATT SHARMA

A                     STATE OF MADHYA PRADESH
                                  v.
                          HARi DATT SHARMA

                              NOVEMBER 4, 1992

B               [LAUT MOHAN SHARMA, S. MOHAN AND
                       N. VENKATACHALA, JJ.]

         Civil Services :

C        Madhya Pradesh State Fundamental Rules.

          F.R.56, Sub-Rule (1-a) and M.P. Shaskiya (Adhiwarshkiya Adhi-
    niyam) 1987 -Retirement age-Superintendent Deaf Mute and Blind
    School--Whether 'teaching post'-{)uties of supervisory nature-Held respon-
    dent rightly retired at 58 years as post was non-teaching post.
D
          The respondent in the appeal after due selection by the State Public
    Service Commission was appointed in 1965 as a Superintendent in a Deaf
    Mute and Blind School. He was thereafter promoted and posted as Deputy
    Director, and in 1989 be was further promoted to the rank of Joint
    Director in the Social Welfare Department. He eompleted the age of 58
E   years in January, 1991 when according to the decision of the appellant be
    had to retire. According to the Rules - FR 56, Sub-Rule (1-a) - the age of
    retirement in the department was 58 years excepting for teachers who were
    to continue in service till 60.

          The respondent assailed the order of retirement before the State
F
    Administrative Tribunal relying upon the Explanation to the Rule which
    allowed bis claim to continue in service upto the age of 60 years and held
    that be cannot be retired at 58 years.

          In the State's appeal to this Court, it was contended that the post of
G Superintendent in Deaf Mute and Blind School to which the respondent
    was initially appointed in 1965 was not a 'teaching post' and he could not
    therefore claim the benefit of the Explanation to the Rule.

          Allowing the appeal, this Court,

H         HELD: l. The parties to the appeal have referred to and relied upon
                                        352
              STATE OF M.P. v. HARi DATT SHARMA[SHARMA, J.]                 353

     the advertisement No. 9/1965 issued by the State Public Service Commis-       A
     sion inviting applications for appointment to the posts of Superintendent
     Deaf Mute and Blind School. Paragraph 3 thereof mentions the duties
     attached to the post, and when examined closely, indicate that they were
     supervisory in nature and not teaching. The Explanation to the Rule
     therefore does not come to the aid of the respondent and be was therefore
     rightly retired on 31.1.1992. [354-G; 355-DJ
                                                                                   B

           2. The Original Application filed by the respondent before the State
     Administrative Tribunal is therefore dismissed. In case the respondent
     was paid for performing any duty after the date ~f his retirement, be shall
     not be asked to refund the same. [355-E, Fl                                   c
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4733 of
     1992.

          From the Judgment and Order dated 28.2.19"2 of the Madhya
     Pradesh State Administrative Tribunal, Gwalior in Original Application        D
t.
     No. 2932 of 1991.

             Sakesh Kumar and S.K. Agnihotri for the Appellant.

             Vivek Gambhir and S.K. Gambhir for the Respondent.
                                                                                   E
             The Judgment of the Court was delivered by

           SHARMA, J. 1. By the impugned order the Madhya Pradesh State
     Administrative Tribunal has allowed the claim of the respondent to con-
     tinue in service up to the age of 60 years and has held that· he cannot be
     retired at 58 only. We have heard the learned counsel for the parties.        F
     Special leave is gr3nted.

            2. The respondent was holding the post of Deputy Director when he
     was promoted as Joint Director, Social Welfare Department in 1989. He
     completed the age of 58 years in January, 1991 when according to the
     decision of the appellant he had to retire. According to the Rules the age G
     of retirement in the department is 58 years excepting for teachers who are
     to continue in service till 60. It is not disputed that the posts of Deputy
     Director and Joint Director are not teaching posts and the respondent
     cannot take advantage of the higher age of retirement on that account.
     However, the respondent relies upon the Explanation to the Rule which is H
    354                 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A in the following terms :-
                                                                                    .
                "Explanation : For purpose of this sub-Rule "Teacher"
            means a Government Servant, by whatever designation
            called, appointed for the purpose of teaching in an educa-
            tional institution run by the Government including tech-
B           nical or medical educational institution in accordance with
            the recruitment rules applicable in such appointment and
            shall also include the teacher who is appointed to an
            administrative post by promotion or otherwise and who
            has been engaged in teaching for not less than 20 years
c           provided he holds a lien Collegiate{fechnical/Medical
            Educational Service".

    His case is that since initially he was appointed for the purpose of teaching
    in an educational institution run by the Government, he is entitled to
    continue in service upto the age of 60 although later he was holding a
D   non-teaching post. At this stage it will be relevant to mention that the
    condition that a person claiming the benefit of the Explanation had to be
    engaged in a teaching post for not less than 20 years, has been struck down
    as ultra 'vires and this part of the Explanation, therefore, does not come in
    the way of the respondent.
E
          3. On behalf of the appellant it has been contended that post of the
    Superintendent in a Deaf Mute and Blind School in which the respondent
    was initially appointed in 1965 was not a teaching post and he, therefore,
    cannot claim any benefit of this Explanation. The result of the case is thus
    dependent upon the issue as to whether the post of Superintendent in Deaf
F   Mute and Blind School is a teaching post or not.

        4. The relevant document which has been referred to and relied upon
  by both sides is the advertisement No. 9/1965 issued by the Public Service
  Commission, Madhya Pradesh inviting applications for appointment to the
G posts of Superintendent Deaf Mute and Blind School. The duties are
  mentioned in paragraph 3 of the advertisement to the following effect :-

            "Duties - (i) To undertake planning and organisation of the
            institution for education, vocational training, rehabilitation
            and recreation of children) (ii) To undertake case-wise in
H           respect of every child of the institution with a view to
         STATE OF M.P. v. HARi DATT SHARMA [SHARMA l.J                  355

         ascertaining the personality make-up, aptitudes and inter-            A
         est, socio-economic background and intelligence, (iii) To
         apply educational tests, prepare syllabus, organise
         specialised methods of education and vocational training
         of children and to organise examination, (iv) To take steps
                                                                               B
         for the after care and rehabilitation of children, (v) To
         supervise the general maintenance of the children includ-
         ing the general health, recreation, discipline etc. and to
         meet the special needs of the children, (vi) To supervise
         and control staff and undertake other administrative duties           c
         and (vii) Any other work that may be assigned to him by
         Government or his superior officers."

      5. We have examined the provisions closely and are of the view that D
the duties were supervisory in nature and not teaching. Accordingly, we
hold that the Explanation referred to above does not come to the aid of
the respondent and he was, therefore, rightly retired on 31.1.1992.

      6. In the result the appeal is allowed, the impug.1ed judgment is set    E
aside and the Original Application filed by the respondent before the State
Administrative Tribunal is dismissed. The parties will bear their own costs.
We, however, make it clear that in case the respondent was paid for
performing any duty after the dated of his retirement in pursuance of the      F
impugned order he shall not be asked to refund the same.

N.V.K.                                                      Appeal allowed.