Writ Petition No. 363 of 1995

26th March, 1996

Petitioner Counsel: Shri M.S. USGAONKAR, Sr. Advocate, with Shri S.S.KANTAK
Respondent Counsel: Shri G.U. BHOBE, Government Advocate, with Shri A.C.NAVELKAR

Cases Cited:
AIR 1958 SC 538 [Para 8]
1990 Mah L.J.161 [Para 8]
AIR 1993 SC 2493 [Para 9]
1991 II CLR 370 [Para 10]
1988 (65) Cut. LT 253 [Para 10]
AIR 1984 SC 356 [Para 11]
1976(2) SLR 705 [Para 12]
AIR 1981 SC 1829 [Para 15]
AIR 1987 SC 1527 [Para 15]
AIR 1980 SC 379 [Para 15]
JT 1996(2) SC 393 [Para 16]

JUDGMENT

PATANKAR, J.- The short question that arises in this Petition under article 226 of the Constitution of India is what should be the age of retirement for a teacher working in Goa Medical College. According to petitioner, the age of retirement or superannuation should be 60 years, while according to respondents Nos. 1 and 2, i.e. State of Goa, it should be 58 years.

2. At the outset, it is to be noted that respondent No.3, i.e. the Dean, Goa Medical College, has sent a representation dated 10-11-1995 along with Draft Goa State Medical Education Service Rules, 1995, inter alia, providing that the age of retirement for a Medical College teacher should be 60 years. We asked the learned Government Advocate to take instructions in the matter. He stated that the Government is not inclined to consider the said representation and those Draft Rules. However, this makes the stand of respondent No.3 clear that the age of retirement for a teacher in Goa Medical College should be 60.

3. We may state a few facts before considering the submissions. The petitioner is the Professor and Head of the Department of Pathology in Goa Medical College run by respondent No.1. She was promoted to the said post on 16-1-1988. She completes her 58 years of age on 31-3-1996. The petitioner teaches the subject of Pathology to Undergraduate and Post-graduate students in Goa Medical College. She is also a member of the Faculty of Medicine of Goa University. She is also a guide for Post-graduate Degree Courses in the Faculty of Medicine of Goa University in the subject of Pathology for the last 16 years and is also Ph.D. guide in Goa University. The Petitioner is also member of Board of Studies for the Medical Technology Course conducted by the Goa College of Pharmacy and for Vocational Courses under the Department of Science and Technology.

4. The Medical College in which the petitioner teaches is an affiliated College of Goa University. There are other Government Colleges affiliated to Goa University. The respondent No.1 gave sanction to raise the age of superannuation for teachers in Government Polytechnic, Goa College of Engineering, Goa College of Pharmacy, Goa College of Architecture and Goa College of Arts by Order dated 22-10-1990. The age of superannuation was increased from 58 to 60 years. The age of retirement under Statute 77(1) of the Statutes of the University framed under Section 23(1) of Goa University Act, 1984 provides that the retirement age of a teacher, in College including Principal, shall be 60 years. Even the Registrar of Goa University has written letter dated 19-4-1994 to respondent No.2 in respect of the pay-scales and age of superannuation regarding Medical and Dental Colleges teachers and to revise the same as per the teachers in other Colleges. This was with a view to have uniformity in pay-scales and other conditions of service. The Medical Council of India which is a body created under the Medical Council of India Act, 1956, to control and regulate medical service in the country, has also recommended the age of superannuation for a teacher of Medical College as 60. Even respondent No.1 by Order dated 31-12-1992 raised the age of superannuation to 60 years of all the teachers in Polytechnic offering diploma in Engineering and Technology.

5. It is the case of the petitioner that the nature of duties performed by the teachers of all the Faculties of the University Colleges and the teachers in all the Government Colleges as mentioned above is the same. Inspite of that there is a disparity in respect of the pay-scales and the age of superannuation (here we are not concerned with pay-scales). It has been further mentioned that the hierarchy for teaching posts in the Goa Medical College is :

1. Professor

2. Associate Professor

3. Assistant Professor

4. Lecturer and

5. Demonstrator(Assistant Lecturer).

In the Department of Pathology, the sanctioned posts are: 1 Professor and Head, 1 Associate Professor, 1 Assistant Professor, 3 Lecturers and 8 Demonstrators. Out of 8, 4 posts of Demonstrators are vacant. It has been averred that the Department of Pathology is under-staffed and there is shortage of teachers. There is shortage of Medical teachers all over the country. Therefore, according to petitioner, there is absolutely no reason why there should be discrimination in the case of age of retirement for a teacher from Medical College and a teacher who is teaching in other Government Colleges, such as Goa College of Art, Goa College of Engineering, Goa College of Pharmacy, etc. The discrimination is violative of a fundamental right enshrined in Article 14 of the Constitution. It makes hostile discrimination without any basis whatsoever, as it is arbitrary.

6. Reply has been filed on behalf of respondent No.1. It is dated 11th of March, 1996 and is sworn by E.A. Cardozo, Under Secretary (Health) of respondent No.1. He has given three reasons for making the difference in age of retirement. In paras 3 and 4 he has denied that the action of the Government was violative of Article 14 of the Constitution of India. He has further stated that it was a decision of Government and a policy decision in the case of Medical College and Dental College teachers. The Government has exercised the discretion and revised the age of superannuation in the case of teaching staff in other Government Colleges such as College of Engineering, Pharmacy, etc. But in its wisdom decided not to exercise the same in the case of teaching staff in Medical College and Dental College. He has then tried to state that the conditions of service of teachers working in Engineering College or Pharmacy College etc. are different from the conditions of service of teachers working in Medical College or in Dental College. In that respect he has made reference to two aspects. In para 13 he has pointed out that the age of recruitment for the teachers in Goa Medical College is as follows :

In the case of Demonstrator - 35 years;

In the case of Lecturer - 45 years;

In the case of Associate Professor - 45 years;

In the case of Professor - 50 years.

In Para 21 he has stated that the teachers in Medical College and Dental College receive non-practising allowance as condition of their service and 50% of the same is added to their pensionary benefits. This is not available in the case of teachers of other Colleges. He has further mentioned in Paras 9, 11 and 15 that there are enough teachers available for serving in Medical and Dental Colleges. They are waiting in a queue. There is no dearth of teaching staff. If the age of retirement is increased to 60 years, then it will not be possible for the new staff to come in and those who are presently serving shall stagnate and lose their promotional chances. In addition he has stated that the recommendations made by the Medical Council of India and by the University are not binding upon the State Government. In the rejoinder filed on behalf of the petitioner dated 9th of March, 1996, inter alia, it is pointed out that there can be no discrimination made as all those teachers are governed by Fundamental Rule 56(a). It is reiterated that Goa Medical College is grossly understaffed and there is requirement of additional staff. Properly qualified persons are not available. It is denied that if the age of superannuation is increased, then it will not be possible for the new persons to come in or the promotional chances of those who are presently working shall be affected. It is also pointed out that the Government College of Pharmacy until recently was under the overall control and administration of respondent No.2, i.e. Health Department, and recently it has been put under the Department of Technical Education. The conditions of service of teachers in the Medical College are the same as those of Technical and other Government teachers. Non-practising allowance is paid to those teachers who are having medical qualifications, i.e. Doctors, in lieu of his/her not being able to have private practice. The non-practising allowance is hardly Rs.900/- per month and it cannot be said to be a distinguishing factor.

7. In the light of the above mentioned facts we have to consider whether respondent No.1 is right in not raising the age of superannuation of the Medical College teachers to 60 years or whether action of respondent No.1 was discriminatory and violative of fundamental right of the petitioner contained in Article 14 of the Constitution of India.

8. In order to claim protection of Article 14, it is necessary to show that persons who are differently treated are similarly situated and the discrimination is made with an uneven hand. The right pre-supposes equal treatment in similar circumstances. There should be intelligible differentia to distinguish them and the said differentia should have reasonable nexus to the object that is to be achieved. In Ram Krishna Dalmia v. Justice Tendolkar (AIR 1958 SC 538) it is observed:

" In determining the validity or otherwise of such a statute the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things."

In this respect the learned counsel for the petitioner has submitted that the petitioner and other teachers working in Government Colleges of Art, Engineering, Nursing, Pharmacy, etc. are all similarly situated. They are all governed by Fundamental Rule 56(a) and there is absolutely no reason to discriminate. They are all governed by rules framed under proviso to Article 309 of the Constitution of India. The learned counsel first relied upon the Division Bench judgment of this Court in Association of Maharashtra Education Service Class II Officers and others v. State of Maharashtra and others (1990 Mah. L.J. 161). In the said case the age of superannuation for College and University teachers was 60 years. But in the case of teachers working in Government Colleges was 58 years. The Government tried to support it on the ground that Government College teachers are governed by Rule 161 of B.C.S. Rules. But that was not accepted. It was held to be discriminatory and a direction was given to increase the age of superannuation to 60 in case of teachers of all Government Colleges. We may not be strictly in agreement with the said view, but the position in our case is different and similar direction can be given in this case. In our case, the age of superannuation for the College and University teachers teaching in private Colleges and those who are University teachers is 60. Further, the age of superannuation of College teacher teaching in Government College of Engineering, Government College of Art, Government College of Architecture, Government College of Pharmacy and Government College of Home Science is 60. They are all governed by Fundamental Rule 56(a). Similar is the case of the petitioner who is governed by Fundamental Rule 56(a). Rule 56 (a) is as follows :-

" Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior services, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must not be retained after the age of 60 years except in very special circumstances."

Therefore, we have to find out whether there is any valid reason or basis for this mini classification.

9. The learned counsel for the petitioner then relied upon the judgment of the Apex Court in All India Judges Association & others V. Union of India & others (AIR 1993 SC 2493). He has relied on this judgment for a limited purpose. The Apex Court in Para 7(iii) was considering the position that longer period is required for acquiring the necessary academic qualification and further minimum practice is required for entering the lower judicial service. The Judicial Officer enters the service at a relatively high age. Therefore, the Apex Court held that in order to have experience and real talent available, the age of retirement should be 60. The learned counsel pointed out that to hold teaching post in Medical College, one is required to pass Masters Degree in Medicine or Masters Degree in Surgery. That takes about 9 years after the High School Secondary Examination. So it is not possible to acquire the said Degree before he reaches the age of about 27 years. He has pointed out that this is not in case of teachers in other Colleges and even then the age of superannuation is 60. Therefore, there is all the more reason why the age of retirement in the case of Medical College teachers should be 60. In the reply filed on behalf of respondent No.1, it is stated that the maximum age of recruitment in case of Demonstrator, Lecturer, Associate Professor and Professor is 35, 45, 45 and 50, respectively. The precise reason for extension of the recruitment age in case of Medical teachers is because of the longer duration of training required to be undergone by a candidate for obtaining the qualifications to teach in the Medical College. In our opinion, the learned counsel for the petitioner is right in making the said submission and respondent No.1 is not right in relying upon this factor as a distinguishing one. On the contrary, this speaks against respondent No.1 and supports the case of petitioner why the age of retirement should be 60.

10. The learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in Nand Kishore Nayak v. State of Orissa (1991 II CLR 370). The facts are not discussed by the Apex Court. However, the Apex Court accepted the view taken by the Full Bench of Orissa High Court in Rama Chandra Das v. State of Orissa (1988 65 Cut. LT 253) in which it was held that it is discriminatory to fix the age of superannuation of some teachers at 58 and some other at 60 and this is violative of Article 14 of the Constitution.

11. Then the learned counsel for petitioner relied upon the decision in Workmen of Bharat Petroleum Corporation v. M/s. Bharat Petroleum Corporation Ltd. (AIR 1984 SC 356). In our opinion, this may not help the petitioner, except in one respect. In that case clerical cadre of Bharat Petroleum Corporation Ltd. was one. But those who were working in the Refinery Division were superannuated at the age of 58. The said discrimination was sought to be supported on the ground that those who were working in the Marketing Division had added benefit of pension scheme. However, this was not accepted by the Apex Court and it was held that the retirement age of all clerical staff in Refinery Division should be 60 years, and the discrimination was violative of Article 14.

12. In the present case, one of the contentions raised on behalf of respondent No.1 is that the petitioner is paid non-practising allowance and this benefit is not available to the teachers who are working in Government Colleges of Art, Engineering, etc. and hence the age of superannuation fixed in case of Medical teachers at 58 is right. However, why non-practising allowance is paid to a Doctor came to be considered by the Gujarat High Court in Natverlal Prabhashankar Trivedi and another v. Secretary to Govt. of Gujarat, Education and Labour Deptt. and ors. (1976(2) SLR 705). Mr. Justice M.P. Thakkar, J. (as he then was) held that Medical Officers should not, during the tenure of their Office, indulge in private practice and should devote their faculties faithfully, loyally, sincerely and efficiently in the discharge of their duties. Non-practising allowance is paid so as to avoid the danger of giving rise to some mal-practices to be done by the incumbents of the Office. It was treated as a sort of compensatory allowance to those who are holding medical degrees - professional degrees and so can otherwise practise. We accept this and hold that payment of non-practising allowance cannot be treated as a distinguishing factor. In addition it has been pointed out that even in Medical College there are teachers in Epidermatology, Statistics, Lecturer in Demography, Lecturer in Health Education. All these are working in Preventive and Social Medicine Department. They do not get non-practising allowance. Even their age of retirement is 58. Therefore, in our opinion the case made out by respondent No.1 cannot be accepted at all that payment of non-practising allowance validly differentiates the case of teachers in Medical College from other teachers in Government Colleges.

13. It is also not possible for us to accept the contention raised on behalf of respondent No.1 that candidates or Doctors are waiting in the queue and if the age of retirement is increased then it will not be possible to recruit new staff or promotional prospectus of some shall be affected. First of all it is the case of petitioner that Goa Medical College is understaffed. How her own Department is understaffed is given. In rejoinder it has been pointed out how the posts are vacant and it has been specifically denied that people are waiting in queue. It has been pointed out that posts are lying vacant as qualified staff is not available. Even according to Medical Council of India there is shortage of qualified Medical teachers all over the country. We are told at the Bar that if the recommendations of the Medical Council of India are taken into consideration, then there are 39 posts required to be filled in over and above the sanctioned strength. Even the sanctioned strength is not completely filled in. There are 13 posts vacant. In addition, in our opinion, this cannot be a ground to discriminate and to prescribe different age of superannuation in the case of those teachers who are employed in Medical College.

14. We are of the opinion that taking into consideration (i) the nature of duties of teachers teaching in the Colleges; (ii) their mode and the manner of recruitment; (iii) the terms and conditions of service, i.e. all are governed under Fundamental Rule 56(a) and other rules framed under Article 309 proviso and (iv) the nature and character of the posts and the promotional avenues (i.e. Demonstrator (Assistant Lecturer), Lecturer, Assistant Professor, Associate Professor and Professor) we are of the view that the teachers in Medical College are similarly situated as those teachers who are working in Government Colleges of Art, Engineering, Architecture, Pharmacy, Home Science and there is absolutely no basis for making any discrimination in case of age of superannuation of that fraternity. In fact, it is brought to our notice that some of the subjects which are taught in the Medical College, i.e. Pharmacy, Microbiology, Biochemistry and Statistics are also taught in Pharmacy College. Those who are teaching those subjects in Pharmacy College retire at the age of 60, while those who teach in Medical College retire at the age of 58. This is, on the face of it, discriminatory in nature. We find no intelligible differentia to distinguish between the teachers in Government Medical College and the teachers employed in Government Art, Engineering, Architecture, Pharmacy etc. Colleges as far as the age of superannuation is concerned.

15. The learned counsel for respondents Nos. 1 and 2 has relied upon some judgments in support of his submission. They generally lay down when it can be said that fundamental right under Article 14 is violated. He first relied upon Air India V. Nergesh Meerza and others (AIR 1981 SC 1829). He invited our attention to the principles laid down in it and particularly Paras 26, 27 and 37(1), (3), (5) and (6):

" 26. In order to appreciate the arguments of the parties on this point it may be necessary to refer to the law on the subject which is now well settled by a long course of decisions of this Court. It is undisputed that what Art. 14 prohibits is hostile discrimination and not reasonable classification. In other words, if equals and unequals are differently treated, no discrimination at all occurs so as to amount to an infraction of Art. 14 of the Constitution. A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attract the provisions of Art.14.

" 27. In our opinion, therefore, the inescapable conclusion that follows is that if there are two separate and different classes having different conditions of service and different incidents, the question of discrimination does not arise. On the other hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Art. 14 is doubtless attracted.

.... ..... .... ....

37. Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge:-

(1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts.

Thus, where the class or categories of service are essentially different in purport and spirit, Art.14 cannot be attracted.

(2) ..............

(3) Article 14 certainly applied where equals are treated differently without any reasonable basis.

(4) ............

(5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity.

(6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:-

(a) the nature, the mode and the manner of recruitment of a particular category from the very start.

(b) the classifications of the particular category,

(c) the terms and conditions of service of the members of the category,

(d) the nature and character of the posts and promotional avenues,

(e) the special attributes that the particular category possess which are not to be found in other classes, and the like."

There can be no dispute regarding the principles laid down. But the question that we have to consider is whether Article 14 is attracted or not or whether there is valid ground or differentia to create two classes. Then he sought to rely upon the decision in Life Insurance Corporation of India and another V. S.S.Srivastava and others (AIR 1987 SC 1527). Again this can have no application as the Apex Court was concerned with the age of superannuation in the case of Class I and II of L.I.C. on one hand and Class III and IV on the other. The Apex Court held that in the case of Class I and II employees age of superannuation can be 58 and in the case of Class III and IV it can be 60 as the classification is not violative of Article 14. Then he relied upon the decision of The Tamil Nadu Education Department Ministerial and General Subordinate Services Association etc. V. State of Tamil Nadu and others (AIR 1980 SC 379). The Apex Court was concerned with the integration of services of the employees in Government Schools and the District Boards. This is not applicable.

16. Then he relied upon the Judgment in State of Uttar Pradesh V. Dr. Ramesh Prasad (JT 1996(2) SC 393). In the said case the question arose whether the teachers who were governed under the Rules of U.P.State University Act, 1973 and those governed under Regulation 459 of U.P. Civil Service Regulation were forming different classes. In the case of University teachers the age of superannuation was 60. However, in the case of teachers governed by the Regulation 459 of U.P. Civil Services Regulation it was 58. The Statutes were framed under Section 49(d) of the U.P. State University Act, 1973. Statute 17.01 specifically provided that inter alia the provision which prescribed the age of superannuation as 60 in the case of University teachers shall not apply to teachers of any College exclusively maintained by State Government or Local Authority. In view of those facts it was observed as follows :-

"8. It would thus be clear that the University teachers are governed by the Act and the statutes made thereunder. By operation of Statute 16.24, the superannuation of a University teacher has been prescribed at 60 years. The teacher of any college exclusively maintained by the State Government or a Local Authority is a Government servant governed by the Regulations referred to hereinbefore. The statutes made under the Act envisage that the University teachers are a class for whom specific age of superannuation has been prescribed under the statute governed by the provisions of the act, whereas the teachers, though are working in the Medical Colleges maintained by the State Government, are governed by the State Government Service Rules prescribed in the Regulations which prescribes the Superannuation on attaining the age of 58 years. Thus the doctor -teachers working in the Medical Colleges maintained by the State Government are not entitled to remain in employment on attaining the age of 58 years, unless there is an express order made by Government covered by the Regulation 520 of the U.P.Civil Services Regulations."

Considering this, the Apex Court held that the Government teachers were not entitled for declaration that they were entitled to continue till the age of 60 years. In our opinion, this judgment helps the petitioner more than the respondents Nos.1 and 2. In the present case we have already pointed out that not only those teachers working in University and private Colleges retire at 60, but even those working in Government Colleges i.e. Art College, Engineering, Architecture, Pharmacy, etc. retire at 60. The teachers working in all Government Colleges are governed by Fundamental Rule 56(a) and other Rules framed under proviso to Article 309. Similarly, the teachers employed in Goa Medical College. The reasons given for discriminating them or treating them differently do not appeal to us at all. The reasons given are lame. We find that there is no reason to make this mini classification. It is without any intelligible differentia and violative of fundamental right of the petitioner enshrined in Article 14 of the Constitution.

17. Therefore, we pass the following Order :

Rule absolute in terms of prayer (a). The respondents are directed to treat the age of superannuation in the case of petitioner as 60 and to retire her on attaining the said age, i.e. not before 31st March, 1988. In the facts and circumstances of the case there shall be no order as to costs.

18. The learned Advocate for the respondents prays for stay of this Order. Stay refused as this Petition was expedited because the petitioner would attain 58 on 31-3-1996 and stand retired.

Order accordingly.