Delhi High Court
Swarn Bhanot vs University Of Delhi & Ors. on 26 March, 2019
$~1 to 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.02.2019
Pronounced on: 26.03.2019
+ W.P.(C) 8597/2009 & CM APPLN. 5681/2009
SWARN BHANOT ..... Petitioner
Through Dr.Aurobindo Ghose, Adv. with
Mr.Prem Bhushan Dewan &
Ms.Gurjeet Kaur, Advs.
versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through Mr.Arun Bhardwaj, Adv. for UOI.
Mr.Yashraj Singh Deora, Adv. with
Mr.Shyam Agarwal, Adv. for R-1.
Mr.Kirtiman Singh, CGSC with
Mr.Waize Ali Noor & Mr.Parth
Semwal, Advs. for UGC.
Ms.Beenashaw N. Soni, Adv. with
Mr.Aakash Yadav, Adv. for R-2.
+ W.P.(C) 12712/2009 & CM APPLN. 13404/2009 & 21945/2010
R C BHATIA ..... Petitioner
Through Dr.Aurobindo Ghose, Adv. with
Mr.Prem Bhushan Dewan &
Ms.Gurjeet Kaur, Advs.
versus
SHYAM LAL COLLEGE(EVENING)
THROUGH ITS PRINCIPAL AND ORS ..... Respondents
Through Mr.Yashraj Singh Deora, Adv. with
Mr.Shyam Agarwal, Adv. for R-1.
W.P.(C) 8597/2009, 12712/2009 & 3679/2017 Page 1 of 30
+ W.P.(C) 3679/2017
KANCHAN SAINI ..... Petitioner
Through Mr.P.P. Malhotra, Sr. Adv. with
Mr.Prem Bhushan Dewan, Dr.
Aurobindo Ghose, Ms.Gurjeet Kaur,
Advs. with petitioner in person.
versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through Mr.Ankur Chhibber, Adv. with
Mr.Bhanu Gupta, Adv. for DoE.
Mr.Pradeep Kr. Jha, G.P. for R-4.
Mr.Ravinder Agarwal, Adv. for R-3.
Mr.Santosh Kumar, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide these petitions, the petitioners have challenged their respective
termination orders by way of alleged retirement at the age of 60 years being
arbitrary, illegal, unconstitutional and contrary to the terms and conditions
of the employment. Further seek directions thereby declaring that the
petitioners are entitled to continue in the employment of the respondents
college till they attain the age of retirement of 65 years. Consequently,
restrained the respondents and particularly respondent college not to give
effect to their impugned contemplated action of terminating the services of
the petitioners.
2. In all the petitions, two following questions arises:
(i) Whether the petitioners can be regarded as „Teacher‟?
(ii) What is the retirement age of the petitioners?
3. Accordingly, the events and facts of the writ petition in W.P.(C)
3679/2017 shall be discussed inter alia and the facts and issues of other
petitions shall not be discussed for the reasons that the issue in all the
petitions are same and this court has decided to dispose of these petitions by
this common judgment.
4. The brief facts of the case are that the petitioner was initially
appointed as an Instructor. For Instructor in Shorthand and Stenography,
the required qualification is mentioned as under:
i. " Degree of a recognized university.
ii. Certificate of higher or lower grade in English
shorthand and Typewriting of an examining body
other than UPSC.
iii. Teaching experience in (a) English shorthand through
common words (b) vertical horizontal or higher
frequency words, pattern of teaching, typewriting and
(c) General English.
iv. Aptitude for teaching English Shorthand and
Typewriting.
v. Minimum of 10 years service as English
Stenographer."
5. Admittedly, the petitioner was called for interview and selected.
Appointment letter dated 29.08.1997 says that the petitioner was appointed
as an Instructor to teach English Stenography in the College and
appointment was subject to the approval of the University of Delhi. The
petitioner was recognized as a teacher by the University.
6. Paragraph 5 of the appointment letter is as under:-
"5. You will be expected to do teaching and research
work as may be assigned to you from time to time".
7. Accordingly, an agreement was signed between the petitioner and the
respondent college on 03.09.1997 which is annexed as Annexure D (Colly).
As per the agreement, the petitioner was appointed as a teacher as member
of the staff. Paragraphs 1 to 11 of this Agreement talk of the petitioner as a
„Teacher‟. The petitioner was included in the Teaching Staff as a Lecturer
as per office order dated 10.09.1998. The Petitioner was shown in the
Teaching Staff of the College in the Staff Council Meeting dated
23.02.2017. The college prospectus annexed to the petition shows members
of the faculty of college which includes the petitioner and the Department of
OMSP, the petitioner is shown as a Teacher incharge which is at page 64 of
the petition. In the Admission Committee for B.A. (Programme), the
petitioner is shown as a Member of the Admission Committee for B.A.
(Programme) which is evident from pages 66 and 67 of the petition.
8. Mr. P. P. Malhotra, learned senior counsel appearing on behalf of the
petitioner submits that the petitioner was always shown and treated as a
Teacher and he was placed in the higher grade of 8000-13500, which was
the grade payable to teachers. The University of Delhi vide its letter dated
16.05.1994 mentioned that the post of instructor was a teaching post and it
invited attention to clause 7(4)(A) of the Ordinance XVIII and Ordinance
XX of the Ordinance. Again the University of Delhi in its letter dated
24.01.1995 written to the Principal of Satyavati College mentioned that the
post of Instructor in English Stenography was a teaching post. The
petitioner also attended the Area Committee Meeting held on 09.12.2003 for
the course of office management and 2nd year 100 marks paper was to be
set-up by the petitioner.
9. Learned senior counsel further submitted that the petitioner all along
was treated as a teacher and the University of Delhi in its letter dated
04.05.2003 to the University Grants Commission stated as under:-
"Instructor in English Stenography has been imparting
instructions at the undergraduate level in some of the
colleges of the University of Delhi like other Teachers.
They are vacation staffs. They are appointed as a paper
setter and as examiner in evaluation of answer sheets as
per University Act, they are Teachers".
10. University referred to the appointment letter which stated as under:
"You will be expected to do teaching work as may be
assigned to you from time to time".
11. It is further submitted that they have been working as teachers for
long period and should get benefit available to the teachers including the age
of retirement. The instructors in English Stenography were functioning as
teacher for all purposes and have been treated as teachers since the creation
of these posts.
12. Mr. Malhotra further submitted that even the Delhi University Act,
paragraph 2(g) defines „teacher‟ as under:-
"2(g) Teacher includes professor, readers, lecturer and
other persons imparting instructions in the University or
in any college or hall".
13. He further submitted that there is no manner of doubt that the
petitioner was a teacher for all intents and purposes and was performing the
duties of teacher. The petitioner was holding class room teaching and was
taking attendance, which is evident from pages 157 to 175 and 176 to 181 of
the petition. There was a proper time table which is evident from pages 140
to 153.
14. Mr. Malhotra further submitted that earlier the retirement age of
teachers was 60 years. Their retirement age was enhanced to 62 years. One
of the instructors of Jamia Milia approached this Court for retirement age to
be treated as retirement age of teacher of Central University as 62 years and
this Court held that the retirement age of S. Dildar Hussain was to be 62
years and not 60 years in W.P.(C) 2820/2003 decided on 18.08.2006.
15. The petitioner in the above mentioned petition had joined as an
Instructor in Leather Craft. However, the age of superannuation was
increased from 60 years to 62 years vide letter dated 27.07.1998 and on the
said basis, he claimed that he was also a teacher and his retirement age
would be 62 years, whereas the stand of UGC was that he was appointed on
a non-teaching post. However, this Court considered the law and held that
he was entitled to be retired at the age of 62 years at par with the teachers.
16. It is further submitted that the age of retirement of teachers has been
increased from 62 years to 65 years vide letter dated 23.03.2007. The said
letter states in its para 2(i) that the age of superannuation of all persons who
were holding teaching positions on regular employment against sanctioned
posts as on 15.03.2007 in any of the Centrally Funded Higher and Technical
Education under the Ministry shall be increased from 62 to 65 years.
17. Vide letter dated 19.04.2007, the position was clarified in paragraph
1 (iii) as provided in the Ministry‟s letter even dated 23.03.2007 that those
teachers who were occupying teaching positions on regular employment
against sanctioned post in Centrally Funded Higher and Technical
Educational Institution on 15.03.2007 would henceforth retire at the age of
65 years.
18. However, the said letter in paragraph 1(ii) has clarified that the letter
dated 23.03.2007 will not apply to posts that will be considered equivalent
to teaching position. The case of the petitioner is that the petitioner was in a
teaching post. The petitioner was teacher and paragraph 1(ii) of the letter
dated 19.04.2007 is not applicable to the petitioner.
19. He further submitted that in paragraph 1(i) of letter dated 19.04.2007
which is at pages 270-274 states that the letter dated 23.03.2007 was
applicable only to teachers in Centrally Funded Institutions who are actually
engaged in teaching in Class Room courses and programs of study in such
institutions. Therefore, looking from the evidence on record, it is clear that
the petitioner was recruited as a teacher. Moreover, the petitioner was a
teacher as per the Delhi University Act. The petitioner was engaged in a
classroom teaching, therefore, is entitled for the increase in age from 62 to
65 years and, therefore, could not be retired at the age of 60 years. It is
further submitted that even as per the judgment of S. Dildar Hussain
(supra), the petitioner could retire only at the age of 62 years at that time,
which has now been increased to 65 years.
20. He further submitted that the age of retirement was enhanced by
respondent no. 4 (HRD) vide its letter dated 23.03.2007. Therefore,
respondent no. 3/UGC has no role and cannot fix the age of retirement.
Even otherwise, the respondent no.3/UGC has admitted in its letter No. F.1-
198/2006(RIA) of July, 2007 that it has not laid down any norms regarding
retirement age of instructor. Therefore, reliance on what the UGC now
claims is irrelevant.
21. Mr.Malhotra further submitted that the respondent/University has
not given parawise reply to this effect and has completely taken a
summersault from its stand reflected in its letter written to the UGC dated
04/05-03-2003 wherein it is clearly stated that the petitioner was a teacher
and was entitled to the benefits of a teacher including the age of retirement
of a teacher. Now, the respondent/University has now relied upon a letter
dated 19.04.2010 written by the Ministry of Human Resources Development
which is annexed along with its reply as R-1/5 (Pages 520-542). These are
the regulations issued in the year 2010 whereas the petitioner was appointed
in the year 1997. These regulations deal with minimum qualification for the
appointment of teachers and other academic staff in Universities and
Colleges. Paragraph 2 of the said regulation states that the minimum
qualification for appointment and other service conditions of university and
other college teachers, librarian and director of physical education and sports
as a measure of maintenance of standard of higher education shall be as
provided in the Annexures to the Regulations. Even in these regulations, the
Instructors are treated as teachers because it refers to teachers and librarians
and Director of Physical Education and Sports. As far as pay fixation is
concerned, the pay of teachers and librarian and Director of Physical
Education and Sports is the same. In paragraph 3.2 again, it refers to
Assistant Professors, Associate Professors, Professors, Principals, Assistant
Director of Physical Education and Sports, Assistant Librarian, Dy.
Librarian, Librarian, etc. but the Instructors, who are teachers are not
included therein. Appendix I dated 31.12.2008 clearly mentions that there
will be no change in the present designation of Library and Physical
Education personnel at various levels and the pay of teachers and equivalent
positions shall be fixed according to the designation of two pay bands, etc.
22. Learned senior counsel further submitted that it separately deals with
the pay scales and career advancement scheme for librarian, assistant
librarian and college librarian. In the same manner, it deals with physical
education personnel. Thus, these categories of librarian, sports and physical
education personnel who are not doing any classroom teaching have been
separated and are different class. Their age of retirement is different. As
far as age of superannuation of petitioner is concerned, it has been clearly
specified in paragraph (f) (internal page 418) that the age of teachers was
enhanced to 65 years and will apply to those who are involved in classroom
teaching and the enhancement of age will not be applicable to librarian and
director of physical education, etc. Thus the present petition deserves to be
allowed.
23. Learned counsel appearing on behalf of respondent no.1 submits that
respondent no. 1 is abiding by the guidelines received from the respondent
No.3 /UGC from time to time. The respondent no.1 had earlier taken up the
matter regarding retirement age of Instructors in Stenography with the UGC
and the UGC vide its letter dated 24.10.2002 specifically stated and
informed that the age of superannuation for the Instructors in affiliated
colleges of Delhi University is 60 years. The petitioner has not challenged
any of the communication, rules / service conditions, guidelines / norms of
the UGC, etc. regarding the age of superannuation. The aforesaid
communication of the UGC dated 24.10.2002 was reported and recorded in
the Executive Council vide Resolution no. 114(13) dated 13.11.2002.
24. It is further submitted that the Department of Higher Education,
Ministry of Human Resources Development, Government of India vide its
letter dated 23.03.2007 enhanced the age of superannuation of teachers from
62 years to 65 years. The very fact that at the time of the aforesaid decision,
the age of superannuation of instructors was 60 years as is evident from the
UGC‟s letter dated 24.10.2002, is itself evidence of the fact that the
Instructors have never been considered as teachers.
25. Learned counsel for the respondent no.1 further submitted that the
Department of Higher Education, Ministry of Human Resources
Development, Government of India received queries from various
universities on the issue as to "whether enhancement age of superannuation
from 62 years to 65 years applied to those who hold posts equivalent to
teaching positions, but are not actually engaged in teaching? The aforesaid
query was answered by the said Ministry vide its letter dated 19.04.2007 and
the same is reproduced as below:-
i) "The enhancement of the age of superannuation from
62 years to 65 and the provisions for re-employment as
mentioned in this Ministry‟s letter dated 23.3.2007
referred to above, have been made in order to overcome
the shortage of teachers and is applicable only to the
„Teachers‟ in centrally funded institutions in higher and
technical education under the Ministry of Human
Resource Development, who are actually engaged in
teaching classes/courses/programmes of study in such
institutions.
ii) The provisions of the Ministry‟s letter of even number
dated 23.03.2007 mentioned above shall not be
applicable to any other categories of employees in such
institutions, notwithstanding the fact that the posts they
hold may be considered as „equivalent‟ to teaching
positions."
26. Learned counsel submits that it is evident from the above that the
enhancement of age of superannuation from 62 years to 65 years was not to
be applicable to any other categories of employees. Moreover, the
respondent no.3/UGC has framed the regulations on minimum qualifications
for appointment of teachers and other academic staff in universities and
colleges and measures for the maintenance of standards in higher education,
2010. The instructors of Stenography do not come under the purview of the
aforesaid 2010 regulations and thus the post of Stenography Instructor is a
non-teaching post. It is further submitted that the enhancement of the age of
superannuation to 65 years is applicable only to the holders of Group A
posts i.e. Assistant Professor, Associate Professor and Professor. Moreover,
the clause 8(f)(iii) of the Notification dated 31.12.2008 of the Department of
Higher Education, Ministry of Human Resources Development states as
under:-
"ii) 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 and Directors of Physical Education, the
increase in the age of superannuation from the present
sixty two years shall not be available to the categories of
Librarians and Directors of Physical Education."
27. Thus, it is evident that enhancement of age of superannuation was to
meet the shortage of teachers and without prejudice to the other averments
made in this affidavit. Since there is no shortage of instructors, increase in
the age of superannuation was not applicable to the Instructors in
Stenography. The instructors were always liable to superannuate at the age
of 60 years. Therefore, there was no question of enhancement of age of
superannuation from 62 to 65 years.
28. It is further submitted that the qualification of Assistant Professor and
Instructor in Stenography is totally different, therefore, the petitioners being
instructor in Stenography cannot be treated at par with the teachers for any
of the benefit including the superannuation age upto 65 years.
29. Learned counsel for respondent no.2 submitted that the petitioner had
entered into an agreement of service with respondent no.2 on 03.09.1997, as
an instructor and the said agreement clearly stated that she has been
appointed as an instructor. Thus, all applicable rules of University of Delhi
to her cadre of instructor in OMSP has been complied with including the
date of retirement at the age of 60 years. Furthermore, respondent no.2 /
colleges affiliated to the University of Delhi, only appoints instructors in
Office Management and Secretarial Practice (English Stenography and
Typewriting) with specific qualifications in a particular pay scale. Till date
the petitioner has never applied for the post of lecturer in the college.
Therefore, as per the rules and regulations of the colleges affiliated to
University of Delhi, the superannuation age of Instructor is 60 years.
30. Learned counsel has fairly conceded with an office order dated
10.09.1998 which was issued in respect of 4 teachers including the petitioner
in which all of them were treated as Lecturer but in respect of the petitioner,
it was a typographical error as till date her designation is that of an
Instructor only which she herself clarifies by writing all the correspondence
to the College in the capacity i.e. Instructor in OMSP.
31. Learned counsel appearing on behalf of respondent no.3 /UGC
submitted that the UGC Act, 1956 was enacted to make provisions for the
coordination and determination of standards in universities. The commission
is also authorized to perform such other functions as may be prescribed or
may be deemed necessary for advancing the cause of higher education or as
may be incidental or conducive to the discharge of its functions. Section 26
of the Act which gives power to the commission to make regulations
consistent with the Act. In exercise of its powers, the University Grants
Commission has framed the UGC Regulations on Minimum Qualifications
for Appointment of Teachers and Other Academic Staff in Universities and
Measures for the Maintenance of Standards in Higher Education, 2010 inter
alia prescribing the service conditions of the University and College
Teachers.
32. The Regulation 1.2 deals with the applicability and provides as
under:-
"1.2. They shall apply to every university established or
incorporated by or under a Central Act, Provincial Act or
a State Act, every institution including a constituent or an
affiliated college recognized by the Commission, in
consultation with the university concerned under clause
(f) of Section 2 by the University Grants Commission Act,
1956 and every institution deemed to be a university
under Section 3 of the said Act.
Further Regulation 2 provides as under:-
2. The Minimum Qualifications for appointment and
other service conditions of University and College
teachers, Librarians and Directors of Physical Education
and Sports as a measure for the maintenance of
standards on higher education, shall be as provided in
the Annexure to these Regulations."
6. That further Clause 1.1.1 of the annexure to the
Regulation deals with coverage provides as under:-
"1.1.1 For teachers in the Faculties of Agriculture and
Veterinary Science, the norms/Regulations of Indian
Council of Agricultural Research; for Faculty of
Medicine, Dentistry, Nursing and AYUSH, the
norms/Regulations of Ministry of Health and Family
Welfare, Government of India; for Faculty of Education,
the norms/Regulations formulated in consultations with
National Council of Teacher Education; for Engineering
and Technology, Pharmacy and Management/Business
Administration, the norms/Regulations formulated in
consultations with All India Council for Technical
Education; and the qualifications in the field of
rehabilitation and special education at Degree, PG
Diploma and Masters level, the norms/Regulations
Council of India, shall apply."
7. That it is respectfully submitted that Clause 2.1.0 of the
Annexure to the Regulation Provides as under:-
2.1.0 The revised scales of pay and other service
conditions including age of superannuation in central
universities and other institutions maintained and /or
funded by the University accordance with the decision of
the Central Government, Ministry of Human Resource
Development (Department of Education), as contained in
Appendix-I."
33. Learned counsel submitted that so far as Appendix-I is concerned,
clause 1 (i) of the said Appendix specifically provides that there shall be
only three designations in respect of teachers in universities and colleges,
namely, Assistant Professors, Associate Professors and Professor. However,
there shall be no change in the present designations in respect of Library and
Physical Education Personnel at various levels. Clause 8 of the Appendix-I
deals with other terms and conditions and sub-clause(f) of Clause 8 thereof
dealing with age of superannuation provides as under:-
"8(f) age of Superannuation:
i) In order to meet the situation arising out of shortage of
teachers in universities and other teaching institutions
and the consequent vacant positions therein, the age of
superannuation for teachers in Central Educational
Institutions has already been enhanced to sixty five years;
vide the Department of High Education letter No. F.No.
119/2206-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. Consequent on upward revision of the age
of superannuation of teachers, the Central Government
has already authorized the Central Universities, Vide
Department of Higher Education D.O. letter No.F.1-
24/2006-Desk (U) dated 30.3.2007 to enhance the age of
superannuation of Vice-Chancellors of Central
Universities from 65 years to 70 years, subject to
amendment sin the respective statutes, with the approval
of the competent authority (Visitor in the case of Central
Universities).
ii) Subject to availability of vacant positions and fitness,
teacher shall also be reemployed on contract
appointment beyond the age of sixty five years up to the
age of seventy years. Re-employment beyond the age of
superannuation shall, however, be done selectively, for a
limited period of 3 years on 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 and Directors of Physical Education, the
increase in the age of superannuation from the present
sixty two years shall not be available to the categories of
Librarians and Directors of Physical Education."
34. Thus it is evident that 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 and Directors of Physical
Education, the increase in the age of superannuation from the present 62
years shall not be available to the categories of Librarians and Directors of
Physical Education. Thus, it is apparent that the enhancement of age of
superannuation to 65 years is with the particular objective i.e. to meet the
shortage of teachers and the said enhancement of the age of superannuation
is confined to a specific class of employee i.e. "teachers involved in class
room teaching". Therefore, the benefit of enhancement of age of
superannuation to 65 years cannot be extended to any other unless they
qualify and fall within the classification/expression "teachers involved in
class room teaching."
35. Learned counsel further submitted that Stenography instructors do not
come under the purview of UGC (Minimum qualification for appointment of
teachers and other academic staff in universities and colleges and other
measures for maintenance of standards in higher education) Regulations,
2010 as the post of „Stenography Instructor‟ is a non-teaching post as well
as a non-academic post. Thus the instructors cannot be said to have ever
been considered by UGC at par with a "teacher" much less at par with
"teachers involved in class room teaching ". So far as minimum
qualification, nature of duty, selection committee, process of recruitment of
a teacher and instructor are concerned, they are also different. A teacher has
to be involved in the classroom teaching whereas an instructor is hardly
involved in class room teaching. Thus, the nature of duty and degree of
responsibility of a teacher and instructor is entirely different and therefore
cannot be any parity and equation in relation to a instructor vis-a-vis a
Teacher in the university or college.
36. To strengthen his argument, learned counsel has relied upon the case
of University of Mysore vs. C.D. Govinda Rao: AIR 1965 SC 491 which
has been referred in Tariq Islam vs. Aligarh Muslim University & Ors:
(2001) 8 SCC 546 that "normally it is wise and safe for the Courts to leave
the decision of academic matters to experts who are more familiar with the
problems they face than the courts generally are."
37. A similar view has been expressed thereafter in several decisions by
the Hon‟ble Supreme Court, thus the regulations have been framed by the
UGC in exercise of its powers conferred under section 27 of the UGC Act,
1956 in due discharge of its duties to maintain standards of higher education.
38. It is further submitted that the age of superannuation of the academic
staff of the centrally funded universities and colleges affiliated thereto was
increased to 65 years 0by way of statutory regulations to meet the situation
arising out of shortage of teachers in universities and other teaching
institutions. This benefit was extended to only those teachers who were
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. Further,
there is no shortage in the categories of instructors, therefore, the increase in
the age of superannuation to 65 years shall not be available to the categories
of instructors.
39. Respondent no.4/UOI has adopted the counter affidavit filed by
respondent no.3, therefore, they are adopting the stand taken by respondent
no.3.
40. I have heard learned counsel for the parties in length and perused the
material on record.
41. In case of Union of India vs. TVLN Malli Karjuna Rao: (2015) 3
SCC 653, the Hon‟ble Supreme Court has held that merely because the
duties and functions of employees are of similar nature would not lead to the
employees claiming parity for other benefits. Similarly, in Steel Authority
of India Ltd. & Ors. Vs. Dibyendu Bhattacharya: (2011) 11 SCC 122, the
Supreme Court has held as under:-
21. In Mewa Ram Kanojia v. AIIMS [(1989) 2 SCC 235 :
1989 SCC (L&S) 329 : (1989) 10 ATC 51], this Court
dealt with an issue of pay parity between Speech
Therapists and Audiologists and held that merely because
Speech Therapists who perform similar duties and
functions in other institutions, are paid higher pay scales
is no good ground to accept the petitioner‟s claim for
equal pay. There may be difference in educational
qualifications, quality and volume of work required to
be performed by the hearing therapists in other
institutions. The person claiming parity must
sufficiently produce material before the Court to
adjudicate upon such a complicated issue of factual
determination. More so, if the employer is not the same,
the principle of equal pay for equal work would not be
applicable.
22. .................. The court must consider the factors like
the source and mode of recruitment/ appointment, the
qualifications, the nature of work, the value thereof,
responsibilities, reliability, experience, confidentiality,
functional need, etc. In other words, the equality clause
can be invoked in the matter of pay scales only when
there is wholesome/wholesale identity between the
holders of two posts. The burden of establishing right
and parity in employment is only on the person claiming
such right. (Vide U.P. State Sugar Corpn. Ltd. v. Sant
Raj Singh [(2006) 9 SCC 82 : 2006 SCC (L&S) 1610 :
AIR 2006 SC 2296] , Union of India v. Mahajabeen
Akhtar [(2008) 1 SCC 368 : (2008) 1 SCC (L&S) 183 :
AIR 2008 SC 435] , Union of India v. Dineshan K.K.
[(2008) 1 SCC 586 : (2008) 1 SCC (L&S) 248 : AIR 2008
SC 1026], Union of India v. Hiranmoy Sen [(2008) 1 SCC
630 : (2008) 1 SCC (L&S) 271], Official Liquidator v.
Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943],
U.P. SEB v. Aziz Ahmad [(2009) 2 SCC 606 : (2009) 1
SCC (L&S) 418] and State of M.P. v. Ramesh Chandra
Bajpai [(2009) 13 SCC 635 : (2010) 1 SCC (L&S)
287].)" (emphasis supplied)
42. Accordingly, unless all criterion are fulfilled the employee cannot
claim parity with another class. In the present petitions, the petitioners are
seeking parity with "teachers", whereas, in law there is no such parity as is
evident from the minimum qualifications prescribed for the entry level to
teachers post, namely lecturer/ assistant professor as opposed to instructor.
Moreover, the pay scale as well as educational qualification is completely
different and distinct between the two posts and there can be no equality as
is claimed.
43. On perusal of the HRD‟s Circulars dated 27.07.1998 (Page 85-87) and
06.11.1998 read with 19.06.1999 (pages 108 to 109) make it evident that for
the benefit of the age of superannuation to be extended to 62 years, the
following criteria had to be satisfied to claim parity with "teachers":-
"(i) Whether the level and method of recruitment
including the qualifications prescribed are comparable
to those of teachers or not (emphasis supplied).
(ii) Whether the function, nature of duty and
responsibilities are comparable or not.
(iii) Whether similar pay scales which are available
to the teachers have been given with the due approval of
the Govt. or not.
(iv) Whether the other terms and conditions of
service, including age of superannuation, as applicable
to the teachers have been given with the approval of the
Govt. or not.
The decision to extend the enhanced age of
superannuation to various categories of University and
college employees should be taken by the University
concerned in consultation with the UGC with approval of
the Commission."
44. Similarly, to obtain the benefit of the HRD Circular dated 31.12.2008
( Pages 180 to 195) whereby the age of superannuation for "teachers" was
extended from 62 years to 65 years, thus, a person had to fall within the
designation of "teacher". The said Circular under Para 1(i) specifically
provides that there would be only three designations in respect of teachers in
Universities and Colleges namely, Assistant Professor, Associate Professor
and Professor. Admittedly, the petitioners do not fall within any three of the
designations.
45. Para 8(f) (page 191) of the said Circular dated 31.12.2008 specifically
provides that the age of superannuation is being increased to meet the
situation of shortage of teachers in University and other teaching institution
which has created vacant positions therein. As is evident the said benefit
has not been extended to other categories [Para 8(f) (ii) page 191] r/w [HRD
Clarification dated 19.4.2007 page 177/para (ii)]. Therefore, it is evident
that the benefit under the said circular was only for the persons appointed in
the posts of Assistant Professors, Associate Professors and Professors and no
one else.
46. It is settled law that where a particular term has been understood in a
particular manner, no separate meaning can be assigned to the same term for
the purposes of interpretation when used in other places in the same rules.
In the present petitions, the circular/letter dated 31.12.2008 itself defines
who would fall within the definition of teachers and thereafter provides the
age of superannuation of teachers. Therefore, the petitioner being an
„Instructor‟ and not an Assistant Professor, Associate Professor or Professor
cannot seek to avail of the benefit of the said circular.
47. In addition to above, with regard to seeking extension of the age of
superannuation is no longer res integra and is covered by the decision of this
Hon‟ble Court in Krishnan Gopal Vs. UOI: Writ Petition (Civil) No.7375
of 2013, dated 18.02.2015 whereby this Court has rejected the contention of
persons claiming parity with teachers for extension of the age of
superannuation to 65 years.
48. It is pertinent to mention here that the judgment in S. Dildar Haider
(supra) delivered on 18.08.2006 is firstly not applicable in the present case
as this Court had no opportunity to consider the letters of Ministry of HRD
dated 23.03.2007 (page 35) and 19.04.2007 (page 177) which came
subsequently, by which the age of superannuation of teachers has been
increased to 65 years, but was rather dealing with the extension of the age of
superannuation to 62 years only. Secondly, this Court had no opportunity to
consider the circular dated 31.12.2008 issued by the Ministry whereby
benefit of age not granted to other categories except Assistant Professor,
Associate Professor and Professor. Therefore, the said judgment is of no
avail to the petitioner for seeking relief of extension of age of
superannuation to 65 years.
49. In case of Dibyendu Bhattacharya (supra), it has been held that the
scope of judicial review in cases where someone claims parity is limited and
that the equation of posts or not was purely within the executive
domain. In the present petitions, the Ministry of HRD vide letter dated
23.03.2007 in paras 2-3 has clarified that the extension in the age of
superannuation was being granted only to meet the shortage in teachers.
The said Ministry vide letter dated 19.04.2007 has further clarified that the
said benefit would not be applicable to any other posts even if considered
equivalent to „teaching post‟ and the same has been reiterated in the Circular
dated 31.12.2008. In the present petitions, the petitioners have not made out
any case that there is shortage of Instructors and, therefore, there is parity
with teachers.
50. The respondents have also considered the issue and come to the
conclusion that the benefit of extension of age of superannuation should not
be made available to Instructors and that there is no shortage of Instructors.
In addition to above, the petitioners have not challenged the letter dated
24.10.2002 by which UGC has specifically instructed the University that
Instructors would retire at the age of 60 years. Similarly, the petitioners
have not challenged the decision of UGC dated 27.5.2003 reiterating its
decision dated 24.10.2002 or the letters and direction dated 11.5.2007 or
7.4.2008 by which it was specifically stated that Instructors cannot be
treated at par with Lecturers. In the absence of challenge, the said letters as
well as HRD clarification Circulars dated 19.6.1999, 19.4.2007 and scheme
of 31.12.2008 are binding and have to be implemented. Moreover, the UGC
Regulations, 1991 are statutory Rules as held by the Hon‟ble Supreme Court
in Union of India vs. S.K. Saigal: (2007) 14 SCC 556 that in the absence of
challenge to the Rules, the same were binding on the parties and the Court
cannot brush them aside. Similarly, in Union of India vs. EID Parry
(India): (2000) 2 SCC 223 para 4, the Hon‟ble Supreme Court has held that
the Court should not decide a question which has not been raised.
51. In view of above discussion and the settled question of law, I find no
merit in these petitions.
52. Accordingly, the petitions are dismissed with no order as to costs.
CM APPL. No.5681/2009 in W.P.(C) 8597/2009
CM APPLN. 13404/2009 & 21945/2010 in W.P.(C) 8597/2009
In view of the order passed in the present writ petitions, these
applications have been rendered infructuous and are accordingly, disposed
of.
(SURESH KUMAR KAIT)
JUDGE
MARCH 26, 2019/ab
