Suresh Kumar Sud & Ors vs Uoi & Ors
2011 Latest Caselaw 3460 Del

                                                              REPORTABLE


*         IN THE HIGH COURT OF DELHI AT NEW DELHI


                               WP (C) No.3129/2008


                                           Reserved on: March 21, 2011
                                           Date of Decision: July 21, 2011


          SURESH KUMAR SUD & ORS                 ..... Petitioners
                        through Mr. G.S.Raghav, Advocate with
                        Mr. Pankaj Kumar, Advocate

                          versus


          UOI & ORS                                    ..... Respondents
                               through Mr. Anuj Aggarwal, Advocate for
                               respondent No.1.
                               Mr. Arjun Mitra, Advocate for respondent
                               No.3.

          CORAM:
          HON'BLE MISS JUSTICE REKHA SHARMA
`


1.        Whether the reporters of local papers may be allowed to see
          the judgment? Yes
2.        To be referred to the reporter or not? Yes
3.        Whether the judgment should be reported in the „Digest‟? Yes

REKHA SHARMA, J.

This is the second round of battle for the petitioners who

happen to be in the Research Faculty as Scientific & Design staff

with respondent No.3, namely, the Indian Institute of Technology,

Delhi (hereinafter referred to as the "IIT, Delhi"). Admittedly, there

are two well-defined services; one is the „teaching cadre‟ and, the

WP (C) No.3129/2008 Page 1 other the „scientific cadre‟, though both the „teaching staff‟ and the

„scientific & design staff‟ get inducted into the service under one

common codified Act, Statutes, Rules and Regulations. The main

job of the petitioners who are in the scientific cadre is to conduct

research and promote development activities. In contradistinction to

the above, the teaching cadre is primarily devoted to teaching and

Professors are selected for their knowledge and ability to be

effective teachers and for them, research is an ancillary activity.

It appears that the IIT, Delhi was facing shortage of teaching

staff and so it started engaging the members of the scientific &

design staff to take to teaching assignments, though not on regular

basis. This, however, created a problem. The problem first arose

when the pay scales of the teaching staff were increased but not of

the research and design staff. Aggrieved by that, they filed a

writ-petition in the High Court, titled Dr. Bej Nath Gupta and

others Versus Government of India & others , reported in 1996 III AD

(Delhi) 167. The High Court feeling that since the services of the

research and design staff were being utilized for teaching purposes,

invoked the principle of "equal pay for equal work" and accordingly

held that they, too, should be equated with the teaching staff in the

matter of salary. That was the first round.

It so happened that respondent No.1, namely, the

Government of India, Ministry of Human Resource Development

decided to raise the retirement age of the teaching staff from 62 to

WP (C) No.3129/2008 Page 2 65 years. Hence, vide communication dated March 23, 2007, it

inter-alia informed the Secretary, University Grants Commission,

that in the light of existing shortage in teaching positions in the

centrally funded institutions in higher and technical education, and

in the context of Government‟s decision to expand the capacities of

such Institutions for increasing access to higher education, it had

been decided that the age of superannuation of all persons who are

holding teaching positions on regular employment against

sanctioned posts as on March 15, 2007 in any of the centrally

funded institutions in higher and technical educations shall be

increased from 62 to 65 years. It was made clear in paragraph-3 of

the said communication that the enhancement of retirement age

was to apply only to persons in teaching positions against posts

sanctioned to Centrally funded higher and technical education

institutions coming under the purview of the Ministry, in order to

overcome the shortage of teachers. It appears that on receipt of

the aforementioned communication, clarifications were sought by

some Universities whether the enhancement of age of

superannuation from 62 to 65 years also applied to those who were

holding posts equivalent to teaching posts but were not actually

engaged in teaching in the centrally funded institutions in higher

and technical education. The Government of India vide its letter

dated April 19, 2007 to the Secretary, University Grants

Commission, clarified that decision to enhance the age had been

WP (C) No.3129/2008 Page 3 made in order to overcome the shortage of teachers and was

applicable only to the "teachers in centrally funded institutions in

higher and technical education, who are actually engaged in

teaching classes/courses/programmes of study in such institutions."

It further clarified that the provisions of the Ministry‟s letter dated

March 23, 2007 were not applicable to any other categories of

employees, notwithstanding the fact that the posts they held might

be considered as equivalent to the teaching positions. In the

meanwhile, the IIT, Delhi basing itself on the letter dated

March 23, 2007, issued notification dated March 30, 2007 and

thereby enhanced the age of retirement of its scientific and design

staff from 62 to 65 years. This was objected to by the Government

of India and in response thereto, the IIT, Delhi vide letter dated

September 17, 2007 addressed to the Joint Secretary, Ministry of

Human Resource Development tried to justify its decision on the

ground that the situation at IIT, Delhi was very different from that at

other IITs, as the members of its scientific and design staff were

engaged in teaching courses at UG and PG levels and guiding

PhD research. The Government of India remained unconvinced. On

February 29, 2008 it wrote to the Director, IIT, Delhi once again

clarifying that the Government‟s approval for the enhanced age of

superannuation from 62 to 65 years was applicable only to the

teaching staff and to none other category of employees though

considered to be equivalent to teachers. The letter went on to say

WP (C) No.3129/2008 Page 4 that the enhancement of age of superannuation from 62 to 65 years

could not be extended to any category of employees other than

Assistant Professors, Associate Professors and Professors, and that

the spirit of the Government‟s decision was based on the basic

premise of shortage of faculty. Faced with this letter of

February 29, 2008, the IIT, Delhi on April 02, 2008 withdrew its

earlier order enhancing the age of superannuation of scientific and

design staff from 62 to 65 years. Hence, this writ-petition by the

petitioners seeking quashing of order dated April 02, 2008 and a

direction to respondent No.1 not to interfere in the management

and affairs of IIT, Delhi.

I need not go into great details. The main contentions raised

by the petitioners were as under:-

(i) Since the services of the petitioners are also being

utilized in holding teaching classes, therefore, there ought to

have been no discrimination in respect of their retirement age.

(ii) The IIT, Delhi itself had felt that there ought to have

been parity in the matter of retirement age and on that basis,

the age of retirement was actually raised from 62 to 65 years

thereby bringing it at par with the teaching staff.

(iii) Despite having agreed to raise the retirement age and

even having implemented the order, the IIT, Delhi was not

justified in withdrawing the same at the instance of the

WP (C) No.3129/2008 Page 5 Government of India and that by doing so, the IIT, Delhi had

abdicated its authority.

(iv) The Government of India has no authority to interfere in

the matter of appointment and service conditions of the staff,

as the IIT, Delhi is autonomous in character and is governed

by the Institutes of Technology Act, 1961, the Statutes and

the Ordinances framed thereunder.

I think it is necessary to keep in mind that the service

conditions and making changes therein are a matter of policy.

Of-course, it should not suffer from the vice of arbitrariness. In the

present case, as I have observed at almost the initial stage of this

order, there are two distinct classes of employees, as far as the

present writ-petition is concerned, and they are the „teaching staff‟

as distinct from the „scientific and design staff‟. The mere fact that

they are appointed through the same open selection as the teaching

staff with professional designations would not blur the distinction.

Similarly, to my mind, the mere fact that due to exigencies of the

situation created by paucity of teaching staff, the services of

scientific and design staff were availed of for teaching, would not

erase the distinction. Such an act would not amount to merger of

two distinct services, nor would it do away with the clear distinction

between the two. The judgment of this Court in Dr. Bej Nath

Gupta‟s case (supra) was on its own facts. It simply granted the

WP (C) No.3129/2008 Page 6 same pay-scale to the scientific & design staff on the principle of

"equal pay for equal work".

True, the IIT, Delhi in its wisdom decided to give the same

benefit with regard to the retirement age to the scientific and

design Staff as had been given to teaching staff by the Government,

but this benefit was withdrawn for the obvious reason that the IIT,

Delhi could not under the Act alter the service conditions. The

power to do so lies with the Council under sub-section (1) of

Section 31 of the said Act, of which the Minister in charge of

Technical Education in the Central Government is the ex officio

Chairman besides other members. Section 33(2)(b) of the said Act

empowers the Council to lay down policy regarding cadres, methods

of recruitment and conditions of service of employees, institution of

scholarships and freeships, levying of fees and other matters of

common interest. In view of this provision, it is well within the

jurisdiction of respondents No.1 & 2, i.e. the Ministry of Human

Resource Development and the Council of IITs, to lay down the

policy regarding service conditions of the employees of IITs

including the petitioners. It is paradoxical that the petitioners who

are contending that respondent No.1 has no authority to lay down

the policy regarding service conditions of the employees of the IITs

or to tinker with the same, have not sought quashing of order dated

March 23, 2007. On the contrary, relying upon this very order, they

are seeking parity with the teaching staff. This goes to show that in

WP (C) No.3129/2008 Page 7 a way, they accept the authority of respondents No.1 & 2 to lay

down service conditions of the employees of the IITs, or to alter the

same. If that be so and it being so, the petitioners cannot derive

any benefit from order dated March 23, 2007, for it is confined only

to the teaching staff with the sole purpose of overcoming the

paucity in the teaching staff.

The IITs are facing shortage of teaching staff. If more

teaching staff is not available and their paucity is throttling the very

existence of the IITs, then the best way-out would be to keep the

existing experienced staff for little more time to give breathing

space to the authorities to wrestle with the situation and look out for

lasting solution.

It may also be noted that the IIT, Delhi is not the only IIT.

There are 6 more. And I was told, and this was not challenged, that

in none of those IITs the scientific and design staff was ever asked

to take teaching classes on regular or irregular basis. If IIT, Delhi

makes a change, it affects the other IITs also. It cannot, thus, be

said that the decision which was taken by the Government of India

as a national level policy to give the benefit of enhancement of age

of superannuation from 62 to 65 years to "all persons who were

holding regular teaching positions on regular employment against

sanctioned posts as on 15.03.2007 in any of the centrally funded

higher and technical educations under this Ministry ", was contrary

to the prevailing situation.

WP (C) No.3129/2008 Page 8 It will not be out of place to refer to Section 21 of the

Institutes of Technology Act, 1961 which empowers the Central

Government to grant financial aid to the IITs after due appropriation

made by Parliament by law in this behalf. It is not disputed that the

IITs are receiving grants in each financial year to the extent of more

than 50% to meet their expenditure. In this view of the matter, the

order of the IIT, Delhi enhancing the age of superannuation of the

scientific & design staff from 62 to 65 years, though that order was

later withdrawn, but if implemented it would have had the effect of

putting extra financial burden on the Government without its

approval to which it rightly did not agree.

Before concluding, let me refer to Statute 11 of the Statutes

framed under Section 3(k) of the Institutes of Technology Act, 1961,

for an argument was sought to be raised by the learned counsel for

the petitioners basing himself on the said Statute. The Statute

classifies the members of the staff of the Institute into three

different classes, namely, Academic, Technical, & Administrative

and others. In the Academic class is included Director, Deputy

Director, Professor, Associate Professor, Assistant Professor,

Lecturer, Workshop Superintendent, Associate Lecturer, Assistant

Lecturer/Instructor, Scientific Officer, Research Assistant, Librarian,

Deputy Librarian and such other academic posts as may be decided

by the Board. Relying upon the fact that the Scientific staff is

included in the Academic class along with the teaching staff, such

WP (C) No.3129/2008 Page 9 as, Professor, Director, Lecturer etc., it was contended that the

petitioners could not be treated different from the teaching staff.

If this argument is to be accepted, then the Librarian and Deputy

Librarian can also not be left out, as they too are included in the

Academic class. It is true that the Scientific Officer, Research

Assistant, Librarian and Deputy Librarian are included in the

Academic class, but the policy decision taken by the Government of

India enhancing the age of the teaching staff from 62 to 65 years

has been confined only to the said class on account of shortage in

the teaching staff and not for any other purpose. It is nobody‟s case

that there is any shortage in the other categories of the Academic

class.

For what has been noticed above, I find no merit in the

writ-petition. The same is dismissed.

REKHA SHARMA, J.

JULY 21, 2011
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