All India Central Universities ... vs Union Of India & Anr.
2015 Latest Caselaw 1791 Del

*             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-

                              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?





 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

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

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

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,

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

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

(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,


                 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.

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

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

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