HIGH COURT OF ANDHRA PRADESH

* * * *

WRIT PETITION No.404 OF 2023

Between:

M. R.K. Polytechnic, rep. by its Secretary and Correspondent.

…..Petitioner.

AND

J.J.S. Prasad and others

.....Respondents

DATE OF JUDGMENT PRONOUNCED: 16.10.2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_________________________

RAVI NATH TILHARI, J

_________________________________

DUPPALA VENKATA RAMANA,J

2

* THE HON’BLE SRI JUSTICE RAVI NATH TIL HARI

&

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ WRIT PETITION No.404 OF 2023

% 16.10.2023

Between:

# M. R.K. Polytechnic, rep. by its Secretary and

Correspondent.

……..Petitioner.

And

$ J.J.S. Prasad and others

.....Respondents

! Counsel for the Petitioner: Sri. P. Durga Prasad

^ Counsel for the respondents: Sri Gangaiah Naidu, Sr.

Advocate, assisted by Sri N.

Bharat Babu.

< Gist :

> Head Note:

? Cases Referred:

1

AIR 2016 SC 204

2. (2021) 4 KantLJ 330 : (2021) 4 SCT 555

3

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

WRIT APPEAL No.404 OF 2023

JUDGMENT :- (per Hon’ble Sri Justice Ravi Nath Tilhari)

Heard Sri P. Durga Prasad, learned counsel for the

appellant and Sri Gangaiah Naidu, learned Senior Advocate

through virtual mode, assisted by Sri N. Bharat Babu, learned

counsel for the respondent Nos.1 and 2, the writ petitioners in

physical mode.

2. This Writ Appeal has been filed challenging the

judgment/order dated 19.07.2022 passed by the learned Single

Judge in W.P.No.19447 of 2016.

3. The 1

st

writ petitioner was working as Lecturer in

Physics and the 2

nd

writ petitioner was working as Senior

Instructor in M.R.K. Polytechnic, the appellant herein, the

respondent No.4 in the writ petition. They were served with

notice of retirement on attaining the age of 58 years in the year

2016, challenging the same the writ petition was filed, inter alia

on the ground that the writ petitioners were entitled to continue

upto 65 years as per All India Council for Technical Edcuation

(in short, AICTE) Regulations. Alternatively, it was also pleaded

that writ petitioners would be entitled to continue upto 60 years

4

as per A. P. Education Act 1982 and Act 1 of 2015, which

amended Section 78-A of the A. P. Education Act, 1982, to

enhance the retirement age from 58 years to 60 years.

4. After contest, the learned Single Judge allowed the

writ petition directing the respondents to continue the writ

petitioners in service of the respondent No.4, the present

appellant Institution till superannuation i.e. 65 years of age.

5. Sri P. Durga Prasad, learned counsel for the

appellant submits that Section 78-A of the A. P. Education Act

is not applicable to the writ petitioners. His submission is that

the said provision applies to the private aided Educational

Institutions, whereas the appellant is a private unaided

institution.

6. However, we are not on the aspect as to whether the

age of superannuation of the writ petitioners would be governed

by Section 78-A of A.P. Education Act or not, in as much as the

appellant Institution is certainly governed by the regulations

framed by the All India Council for Technical Education.

7. The All India Council for Technical Education (Pay

Scales, Service conditions and Qualifications for the Teachers

and other Academic Staff in Technical Institutions (Diploma)

Regulations, 2010), apply to Technical Institutions conducting

5

technical education and such other courses/programmes and

areas as notified by the council from time to time.

8. The Regulations, 2010, inter alia prescribe the age

of superannuation. Such provision reads as under:-

“Age of Superannuation:-

i) In order to meet the situation arising out of the shortage

of teachers in Technical Institutions and the consequent

vacant positions therein, the age of superannuation for

teachers in Technical Institutions has been enhanced to

sixty five years, vide the Department of Higher Education

letter No.F.No.1-19/2006-U.II dated 23.3.2007, for those

involved in class room teaching in order to attract eligible

persons to the teaching career and to retain teachers in

service for a longer period.

(ii) Subject to availability of vacant positions and fitness,

teachers shall also be reemployed on contract appointment

beyond the age of sixty five years up to the age of seventy

years. Reemployment beyond the age of superannuation shall,

however, be done selectively, for a limited period of 3 years ie

the first instance and then for another further period of 2 years

purely on the basis of merit, experience, area of specialization

and peer group review and only against available vacant

positions without affecting selection or promotion prospects of

eligible teachers.

iii) Whereas the enhancement of the age of superannuation

for teachers engaged in class room teaching is intended to

attract eligible persons to a career in teaching and to meet the

shortage of teachers by retaining teachers in service for a longer

period, and whereas there is no shortage in the categories of

Librarians, the increase in the age of superannuation from the

6

present sixty two years shall not be available to the categories of

Librarians.”

9. A perusal of the aforesaid quoted provision clearly

shows that the age of superannuation for teachers in Technical

(Polytechnic) Institution was enhanced to 65 years. At that

time, the writ petitioners were in service. There is no dispute on

this aspect. There is also no dispute that these regulations are

statutory in nature, having been framed in the exercise of power

under Section 10 (i) and (v) r/w Section 23 (1) of the All India

Council for Teachers Education Act, 1987. The Regulations,

2010, therefore, are binding on the appellant Institution.

10. In Pramod v. State of Maharashtra and others

1

,

the Hon'ble Apex Cour t on consideration of the same

regulations, though the matter pertains to the State of

Maharashtra, we are mentioning so because it has been

submitted by the appellants’ counsel that the said judgment

related to the State of Maharashtra, but the regulations have

the all India applicability, held that the age of superannuation

for teachers of the polytechnic stand enhanced to 65 years with

sole exception of librarian whose age of superannua tion

continues to be 62 years.

1

AIR 2016 SC 204

7

11. Paras 15 and 16 of Pramod (supra) are reproduced

as under:-

“15. On the issue of age of superannuation, there was

no occasion for the High Court to consider the relevant

Rules or Notifications and before us there is a serious

controversy as to whether the age of superannuation on

the post of a teacher other than Principal ought to be 60,

62 or 65 years. According to respondent, the State

Government had issued a Notification through the Higher

and Technical Education Department dated 5th March,

2010 whereby the age of superannuation for non -

government polytechnic institutions has been increased

from 58 years to 60 years and it can be extended upto 62

years only after obtaining prior approval of the State

Government. Similarly, for the post of Principal the age of

superannuation has been increased to 65 years but with

the rider that State Government should grant approval for

any further extension beyond 62 years. On the other hand,

the stand of the appellant is that he has been arbitrarily

ignored and not considered for extension because of

pending litigation against the Management of the

respondent-society since several years. It is further case of

the appellant that: State Government has never differed

with the recommendation of the AICTE on the issue of age

of superannuation; in exercise of its statutory powers

under sub-section (1) of Section 23 read with Section 10(i)

and (v), of the All India Council for Technical Education

Act, 1987, the AICTE has issued the Regulations dated 5

th

March, 2010; and the Regulations, inter alia, provide for

age of superannuation and since they apply to technical

institutions conducting technical education and such other

courses/programmes and areas as notified by the Council

8

from time to time, the age of superannuation for

teachers of the Polytechnic stand enhanced to 65

years with sole exception of Librarian whose age of

superannuation continues to be 62 years.

16. From the materials and rival contentions noted

above, it is evident that even as a teacher the appellant’s

age of superannuation could have been considered for

extension upto 62 years if steps had been taken for the

same in due course. Morevoer, the Regulations of

AICTE being statutory, unless these have been

superseded or annulled by a competent authority,

the appellant’s age of superannuation stood

extended upto 65 years. Lastly and in any event, this

Court had directed for maintenance of status -quo in

respect of appellant’s service and such order has been

ignored by the concerned respondents by proceeding to

superannuate the appellant at the age of 60 years. Yet

another dimension requires special consideration in the

interest of justice. As per the statutory MEPS Rules, the

appellant should have been promoted as the Head of the

School or in other words Principal of the polytechnic long

back and in any case by the end of th e year 2012,

provided the respondent-Director had not passed an illegal

and erroneous order on 17.10.2012, when he wrongly

proceeded to apply the Government Rules 2012 to the

private respondent polytechnic. If a correct view had been

taken by the respondent-Director then by the end of 2012,

the appellant would have been occupying the post of

Principal in the respondent polytechnic and then he would

not have superannuated before 65 years or in any case

before 62 years of age.”

9

12. Learned Senior Counsel for the writ petitioners also

placed reliance in the case of G. R. Bharath Sai Kumar vs.

State of Karnataka

2

, of the Karnataka High court and in the

case of Dr.S.Kothandaraman of the Madras High Court to

contend that the age of retirement would be 65 years.

13. Learned single Judge in the judgment under appeal

placed reliance in the case of Pramod (supra) of the Hon’ble

Apex Court. From the Regulations, 2010 as also the judgment

in Pramod (supra), it is evidently clear that the age of

superannuation of the writ petitioners would be 65 years.

14. We do not find any illegality in the judgment of the

learned Single Judge.

15. The Writ Appeal is devoid of merits and is

accordingly dismissed.

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________

RAVI NATH TILHARI, J

__________________________________

DUPPALA VENKATA RAMANA , J

2

(2021) 4 KantLJ 330 : (2021) 4 SCT 555

10

Note:-

LR Copy to be marked

B/o:- SCS - 16.10.2023

11

172

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

WRIT APPEAL No.404 OF 2023

(per Hon’ble Sri Justice Ravi Nath Tilhari)

Date: 16.10.2023

Scs