* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3034/1999
% 2nd March, 2015
ALL INDIA CENTRAL UNIVERSITIES OFFICERS CONFEDERATION
& ORS. ..... Petitioners
Through: Mr.Sanjay Kr. Pathak with Mr.Ashish
Kumar Sinah, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr.Kirtiman Singh, CGSC with
Ms.Prerna Shah Deo, Advocate for R-
1.
W.P.(C) No. 5752/2003
MS.SATISH KUMARI ..... Petitioner
Through: Mr.Sanjay Kr. Pathak with Mr.Ashish
Kumar Sinah, Advocate.
versus
UNIVERSITY GRANTS COMMISSION & ORS. ..... Respondents
Through: Mr.Manoj R.Sinha, Advocate for
UGC.
Mr.Mohinder J.S.Rupal, Advocate for
R-4/College
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
W.P.(C) Nos.3034/1999 & 5752/2003 Page 1 of 12
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No. 3034/1999
1. By this writ petition filed under Article 226 of the Constitution of India, the petitioners who are in the cadres of Assistant Registrars, Deputy Registrars, Registrars and other equivalent posts seek the relief that they should have the same monetary benefits as the monetary benefits which are granted to the teaching/academic staff of the Centrally funded Universities.
2. It is not disputed, and it is an admitted position as per the writ petition, that the respondent no.1/Union of India has come out with a notification dated 24.12.1998 called as "UGC Notification on Revision of Pay Scales, Minimum Qualifications for Appointment of Teachers in Universities & Colleges and other measures for the Maintenance of Standards, 1998." Petitioners claim that this notification gives various service benefits and monetary benefits to the teachers/academic staff of the Centrally funded Universities while denying those benefits to the non-academic Group A staff which has been historically treated as equivalent to the academic staff of the Centrally funded Universities. It is argued that the petitioners who are Group A officers, though not academic staff, have been discriminated against, and this discrimination being totally illegal and arbitrary in view of the historical equivalence between teachers of the Centrally funded W.P.(C) Nos.3034/1999 & 5752/2003 Page 2 of 12 Universities with other Group A staff of the Centrally funded Universities, the petitioners should be granted all the monetary benefits which have been granted to the academic staff/teachers of the Centrally funded Universities. Accordingly, the following reliefs have been claimed in the writ petition:-
" [a] issue an appropriate writ, order or direction directing the respondents extend to the Deputy Registrars and the incumbents of similar grade of posts [including those who have been substantively appointed in the same] the fitment formula applicable to Lecturers [Selection Grade]/Readers whereunder, persons in this grade will get a minimum of Rs.14,940/- if they are in this grade as on 1.1.1996 and have or will complete 5 years of service in the same; [b] issue an appropriate writ, order or direction directing the respondents to extend the benefit of enhanced age of retirement of 62 years to all the officers mentioned in Annexure-1 herein, irrespective of their date of appointment;
[c] issue an appropriate writ, order or direction directing the respondents to extend the career advancement scheme as applicable to the Lecturers/Readers of the Central Universities;"
3. Whatever the petitioners may argue, the fact of the matter is that the petitioners are in sum and substance claiming rights in terms of the doctrine of equal pay for equal work. No other doctrine will entitle the petitioners to get equal monetary benefits than those granted to the academic staff of the Centrally funded Universities. An entitlement of equal monetary emoluments or other equal service benefits to the employees can only and only be based on the doctrine of equal pay for equal work and which is founded on the principle of non-discrimination contained in Article 14 of the W.P.(C) Nos.3034/1999 & 5752/2003 Page 3 of 12 Constitution of India that equally situated persons must be treated equally. In this regard, the petitioners have made the following averments in the writ petition and which are essentially the averments for applying the doctrine of equal pay for equal work:-
"In the aforesaid letter, the qualifications required for appointment to the posts of Registrars, Deputy Registrars and Assistant Registrars [including other employees at equivalent posts] were revised and were stipulated to be the same as required for appointment to the posts of Professor, Reader and Lecturer respectively.
Therefore, the Group-A Officers of the Central Universities were now placed on an equal footing with the Teachers of the Central Universities as far as scales of pay and qualifications for appointment were concerned.
A True copy of the letter dated 2.11.1988 is annexed herewith and marked as ANNEXURE-3."
4(i). For the application of the doctrine of equal pay for equal work or for claiming equivalence of monetary scale of one group of employees to other group of employees, it is necessary that in the writ petition it must be pleaded and shown as to how the two groups of employees are equally placed, so that there should not be discrimination between the two groups of employees, i.e the requisite ingredients as per the doctrine of equal pay for equal work. The doctrine of equal pay for equal work requires equivalence of qualifications and eligibility criteria for appointment of both the groups, the scope and nature of the work of the employees falling in two different W.P.(C) Nos.3034/1999 & 5752/2003 Page 4 of 12 categories being more or less the same, what are the hierarchy of promotions in the two different categories of employees etc etc, and only if all these aspects are same or more or less similar, can the employees of one group claim equivalence of service benefits or monetary emoluments etc as given to the other group.
(ii) However, there are no averments in the writ petition to show equivalence of qualifications and eligibility criteria of appointment between the two groups i.e the group in which the petitioners are situated and the academic staff/teachers of the Centrally funded Universities with whom equivalence is claimed, what is the nature and scope of work of the two groups to show their similarity, hierarchy of promotions in the two groups etc etc. Once the requirements for claiming parity of monetary emoluments between the class in which the petitioners fall and the other class being the teachers/academic staff of the Centrally funded Universities are concerned is not shown, the petitioners would not be entitled to the monetary benefits and other service benefits giving monetary benefits, as those of the academic staff of the Centrally funded Universities.
5. No doubt, courts do interfere by giving one group of employees similar monetary benefits as another group of employees, provided the equivalence is shown as stated above, but unless equivalence is shown, W.P.(C) Nos.3034/1999 & 5752/2003 Page 5 of 12 courts cannot step in by giving monetary emoluments to one group of employees simply because they on their self-serving averments claim entitlement. Further, merely because historical parity existed and which the employer or the parent Ministry decides to deny in future, cannot mean that courts can step in and start fixing the pay scales. In this regard, it is relevant to refer to the observations of the Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd. 2007 (1) SCC 408 wherein the Supreme Court has cautioned that courts should not substitute itself for the legislature and the executive by fixing the service conditions including monetary emoluments/pay which has to be given to the employees. The relevant observations of the Supreme Court in this judgment are contained in paras 16, 37 & 40, and which read as under:-
"16. We are afraid that the Labour Court and the High Court have passed their orders on the basis of emotions and sympathies, but cases in court have to be decided on legal principles and not on the basis of emotions and sympathies.
xxxxx xxxxx
37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the W.P.(C) Nos.3034/1999 & 5752/2003 Page 6 of 12 executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, to, must know its limits.
xxxxx xxxxx
40. The Courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment or these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improver for Judges to step into this sphere, except in a rare and exceptional cases. The relevant case-law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. Of Police and we fully agree with the views expressed therein."
(emphasis added)
6. Learned counsel for the petitioners sought to place reliance upon the judgment of the Supreme Court in the case of K.T.Veerappa & Ors. Vs. State of Karnataka & Ors. 2006 (9) SCC 406, however, there is no dispute to the proposition that courts can step in to remove inequality and discrimination, but, before the doctrine of inequality and discrimination is applied for, on facts, equality must be shown in terms of the ingredients of the doctrine of equal pay for equal work, and which has not been shown by the petitioners in the present case.
7(i) The other issue which remains in this case is the issue with respect to the relief of entitlement of increase of age of Group A employees upto the age of 62 years. Reliance for this purpose for increase of age has been placed upon the circular of the Ministry of Human Resource Development W.P.(C) Nos.3034/1999 & 5752/2003 Page 7 of 12 (HRD) dated 06.11.1998 and the UGC Notification of 1998, which respectively read as under:-
" CIRCULAR DATED 06.11.1998
4. AGE OF SUPERANNUATION:
The age of superannuation of 62 years indicated in para 1[vi] of our letter under reference shall also be applicable to Registrars, Librarians, Physical Education Personnel, Controllers of Examinations, Finance Officers and such other University employees who are being treated at par with the teachers and whose age of superannuation was 60 years.
UGC NOTIFICATION DATED 24.12.1998 16.2.0 Age of retirement of Registrars, Librarians, Physical Education personnel, Controllers of Examination, Finance Officers and such other university employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years. No re- employment facility is recommended for the Registrars, Librarians and Directors of Physical Education."
(ii) The argument of the petitioners in this regard is further sought to be buttressed by reference to the circular of the Ministry of Human Resource Development dated 24.3.1999 with respect to enhancement of age upto 62 years, and which reads as under:-
"
7. Whether the benefit of The benefit of enhancement in enhancement in the age the age of retirement is of superannuation available only to Teachers and allowed in the case of Registrars/Librarians/Physical Readers/Professors is Education Personnel Controllers available to non- of Examination, Finance teaching employees Officers only. In the case of with comparable other non-teaching employees designations such as the age of retirement will be 60.
System Analyst,
W.P.(C) Nos.3034/1999 & 5752/2003 Page 8 of 12
Scientific Officer,
Engineering, etc.
"
8. The argument urged on behalf of the petitioners appeared to have merit at the first blush, however it transpires that the increase of age upto 62 years for the non-academic staff was withdrawn in terms of the Ministry's letter dated 24.6.2000, and once that is so, the petitioners cannot claim benefit of increase of age upto 62 years for the non-academic staff of the Centrally funded Universities, and which aspect of entitlement of an employer to fix the age of retirement has now achieved finality in view of the judgment of the Division Bench of this Court in the case of Krishan Gopal Vs. Union of India & Ors. 2012 (130) DRJ 170, and which holds that it is the exclusive prerogative of the employer to fix a retirement age.
This Division Bench judgment of 2012 has been recently referred to similar ratio laid in the case of Krishan Gopal Vs. Union of India & Ors. in W.P.(C) No.7375/2013 decided on 18.2.2015. This later judgment of Krishan Gopal (supra) decided on 18.2.2015 decides the issue finally that employees cannot keep on re-agitating with respect to their age of superannuation once the government has otherwise decided the age of superannuation.
W.P.(C) Nos.3034/1999 & 5752/2003 Page 9 of 12 9 (i). That takes us to the only limited issue as to whether the petitioners are entitled to the age of superannuation upto 62 years in view of the applicable extant circular of the Government/Ministry of Human Resource Development (HRD) dated 22.9.2006. This letter of the Ministry dated 22.9.2006 dealt with the Career Advancement Scheme for Assistant Librarians/College Librarians and Assistant Directors of Physical Education/College Directors of Physical Education, and which inter alia provided that the retirement age of such persons would 'henceforth' be 62 years. The issue is that whether the benefit of advancement of age upto 62 years would be granted retrospectively to the persons who have already retired before the circular dated 22.9.2006 came into force.
(ii) In my opinion, once para 5 of the letter of the Ministry dated 22.9.2006 makes it clear that the age of retirement for Assistant Librarians/College Librarians and Assistant Directors of Physical Education/College Directors of Physical Education would only henceforth be 62 years, the said benefit will only apply to personnel who retire after the issuance of the letter of the Ministry dated 22.9.2006 and its benefit cannot apply to personnel who have already retired before the issuance of the letter of the Ministry dated 22.9.2006. Once again, it bears reiteration that ordinarily it is the exclusive prerogative of the employer/government to decide when and from which date, a particular age would be taken as the age W.P.(C) Nos.3034/1999 & 5752/2003 Page 10 of 12 of superannuation, and this Court cannot interfere with the discretion exercised by the Government in this regard. Discretion can only be interfered with in a case of gross discrimination and malafides, however, I do not find any such aspects averred or pleaded in this writ petition for this Court to hold that there should be retrospective application of the age of retirement upto 62 years even prior to the issuance of the letter of the Ministry dated 22.9.2006.
10. This writ petition is filed the year 1999, and since we are dealing with the circular dated 22.9.2006 and it is not a case pleaded in the writ petition that some of the petitioners would be covered by the circular dated 22.9.2006, the writ petition in this regard is also dismissed, of course with the caveat and observation that if in the category of the employees covered under the letter of the Ministry dated 22.9.2006, have retired after 22.9.2006, they would retire at the age of 62 years in terms of para 5 of the letter of the Ministry dated 22.9.2006.
11. The writ petition is accordingly dismissed and disposed of with the aforesaid observations including of applicability of age of retirement of 62 years on and after the letter of the Ministry dated 22.9.2006. W.P.(C) No.5752/2003
1. This writ petition will also stand dismissed in terms of the discussion given while disposing of W.P.(C) No.3034/1999 inasmuch as the petitioner W.P.(C) Nos.3034/1999 & 5752/2003 Page 11 of 12 retired in November 2000 and by which date, the Ministry of HRD had already issued its letter dated 24.6.2000 clarifying that the age of retirement of non-academic staff will be 60 years and not 62 years.
2. Though counsel for the petitioner argues by placing reliance upon the letter of University of Delhi dated 22.11.2000 of giving benefit to continue beyond 60 years of personnel till 31.1.2001, however, this very letter itself shows that the benefit can be given to employees subject to concurrence of Ministry of HRD and no concurrence is shown to this court. Therefore Article 14 of the Constitution of India being a positive concept, the same cannot be invoked to enforce an illegality in granting benefit to the petitioner of retirement up to 31.1.2001 merely because other persons have been given such benefit and which benefit is ex facie illegal in view of the letter of the Ministry of HRD dated 24.6.2000 which did not give the benefit of age of superannuation up to 62 years to non-academic staff of the University.
3. Dismissed.
MARCH 02, 2015 VALMIKI J. MEHTA, J
KA
W.P.(C) Nos.3034/1999 & 5752/2003 Page 12 of 12