Madhya Pradesh High Court
Dr. Reena Basu vs Union Of India on 15 March, 2022
Author: Sanjay Dwivedi
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
Writ Petition No. 13965/2019
Dr. Reena Basu,
wife/daughter of Shri
Gautam Basu, aged
about 59 years, Asstt.
Director, Population
Research Center, Deptt.
of General and Applied
Geography Dr. Hari
Singh Gour University,
Sagar.
.....PETITIONER
Vs.
1. Union of India through
Secretary, Ministry of
Health and Family
Welfare, Department of
Family Welfare (Statistics
Division), Nirman
Bhawan, New Delhi.
2. Registrar, Dr. Hari
Singh Gour University,
Sagar.
3. Prof. R.P. Mishra,
Honorary Director,
Population Research
Center & Head, Deptt. of
General & Applied
Geography, Dr. Hari
Singh Gour University,
Sagar.
4. Director, Population
Research Center,
Department of General &
Applied Geography, Dr.
2
Hari Singh Gour
University, Sagar.
.....RESPONDENTS
Date of Judgment 15.03.2022
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for No
reporting
Names of counsel for For petitioner: Brian D'Silva, Senior
parties Advocate with Shri Ishan Soni, Advocate
For Resp. No.1 Union of India.: Shri J.K.
Jain, Assistant Solicitor General.
For Resp. No. 2 to 4.-Smt. Shobha Menon,
Senior Advocate with Shri Rahul
Choubey, Advocate.
Reserved on: 16.02.2022
Delivered on: 15.03.2022
ORDER
Petitioner has filed this petition under Article 226 of the
Constitution of India not challenging any specific order, but,
asking the following relief:
"(i) MANDAMUS directing the respondents
University to grant two advance increments for
Ph.D. to the petitioner from the date of
appointment i.e. 12.06.2000 and fix her salary at
appropriate stage of pay scale of Rs. 8000-275-
13500 and pay her arrears on account thereof
with 12% interest from the date of entitlement to
date of payment;
(ii) MANDAMUS directing the university to grant
the petitioner Senior Scale and Selection Grade
Pay Scale as provided for in the Career
Advancement Scheme, as applicable to the
Lecturers of the University and fix her salary in
the two scales and pay her arrears accordingly
with 12% interest from the date of entitlement to
date of payment:
(iii) MANDAMUS declaring that the age of
superannuation of the petitioner would be 65
years as for Lecturers of the University and she
cannot be retired at the age of 60 or 62 years;
(iv) CERTIORARI quashing the communication,
dated 02.01.2019 (Annexure P/37), addressed
by the Registrar of the respondent University to
the Director, Population Research Centre."
From the relief claimed and the averments made in the
petition, it is evident that the core question involved in the
petition is as to whether the petitioner should be treated to be
a Teacher or not and as such her age of superannuation
would be 65 years.
2. To resolve the controversy involved in the case and
before answering the question emerges out of the pleadings
and submission made by the learned counsel for the parties,
it is apt to mention the facts in brief, which are as follows:
3. The Ministry of Health and Family Welfare, Government
of India (for short 'Government of India') created a new
Population Research Center (For the sake of convenience
'PRC') in the Department of General and Applied Geography
under the overall responsibility of Registrar of Dr. Hari Singh
Gour University, Sagar (Hereinafter referred to as 'University')
w.e.f 31.08.1999. The Government of India issued a memo
dated 31.08.1999 (Annexure P/1) containing terms and
conditions under which PRC has to work. The important and
relevant part of Annexure P/1 is that the staff of the newly
created PRC at the Department of General and Applied
Geography of the University will be governed by the Rules and
Regulations of the University except pensionary benefits. The
staff will also enjoy the pay scales as admissible to the
similar/equivalent categories of the posts in the University
and those prevalent in the State Government, whichever is
applicable.
4. As per the averments made in the petition, the posts in
the establishment of PRC are equated with
Professor/Reader/Lecturer and the UGC Scales of Pay to the
Senior Staff of the PRCs attached to the Universities have
been sanctioned . The UGC Scales of Pay will be applicable to
the staff of those PRCs where the concerned University has
already adopted the UGC Pay Scales in respect of staff of
other departments of the University vide order dated
12.06.1985 (Annexure P/2) and as per the petitioner the post
of Research Officer was equated to Assistant Director as per
order dated 28.11.1999 (Annexure P/3).
5. As per the petitioner, there are 18 PRCs in the country
for which the Government of India releases grant-in-aid to the
respective Universities/Institutions hosting PRC. By letter
dated 25.04.2007 (Annexure P/4), the Government of India
instructed the host Universities to deal with the
administrative matters of the PRCs like Career Advancement
Scheme (for short 'CAS') at their level in accordance with
relevant rules and regulations without involving the
Government of India and without altering the basic sanction
strength/structure of the PRCs. As per the petitioner, the
basic structure is as follows"
(i) Director/Professor/Additional Director - Equivalent to
Professor;
(ii) Joint Director - equivalent to Associate Professor;
(iii) Assistant Director - equivalent to Asstt. Professor.
6. On 14th March, 2012 (Annexure P/5), the Government of
India issued the revised guidelines in respect of PRCs in
which the name of PRC Sagar was also included and the said
guidelines also contain the staffing pattern in which Research
Officer/Research Associate (equivalent to Lecturer)/Assistant
Professor was given the designation as Assistant
Professor/Assistant Director.
7. An advertisement was issued in the year 1999 (Annexure
P/6) inviting applications for various posts including the post
of Assistant Director in the Establishment of PRC,
Department of General and Applied Geography of the
University, Sagar. The petitioner applied for the said post. A
Selection Committee was constituted for selecting the persons
applied for the posts advertised through Annexure P/6. The
petitioner was selected and appointed vide order dated
01.06.2000 (Annexure P/7) on the post of Assistant Director
on a pay scale Rs. 8000-13500. The petitioner submitted her
joining on 12th June, 2000 (Annexure P/8).
8. As per the petitioner, the UGC Scales of Pay made
effective w.e.f. 01.01.1996 was introduced vide order dated
11.10.1999 (Annexure P/9) and revised, which for the sake of
convenience is reproduced as under:
(1) Assistant Professor: 2200-4000 revised to 8000-275-
13500.
(2) Assistant Professor (Senior Scale): 3000-5000 revised
to 10000-325-15200.
(3) Assistant Professor (Selection Grade): 3700-5700
revised to 12000-420-18300.
The UGC pay scales were further revised and intimated
to the Universities by the Government of India by letter dated
19th October, 2010 (Annexure P/10) in which the pay scale of
Research Officer/Assistant Director/Lecturer were given the
revised pay scale of Rs. 15600-39100+AGP 6000 and revised
category has been shown as Assistant Professor.
The UGC issued the guidelines vide Annexure P/11 in
which Clauses 7.2.0 and 7.3.0 provide as under:
"7.2.0 LECTURER (SENIOR SCALE)
A Lecturer will be eligible for placement in a
senior scale through a procedure of
selection, if she/he has:
(i) Completed 6 years of service after
regular appointment with relaxation of one
year and two years, respectively, for those
with M.Phil and Ph.D.
(ii) Participated in one orientation course
and one refresher course of approved
duration, or engaged in other appropriate
continuing education programmes of
comparable quality as may be specified or
approved by the University Grants
Commission. (Those with Ph.D. degree
would be exempted from one refresher
course).
(iii) Consistently satisfactory performance
appraisal reports.
7.3.0 LECTURER (SELECTION GRADE)
Lecturer in the Senior Scale who do not
have a Ph.D. degree or equivalent
published work and who do not meet the
scholarship and research standards, but
fulfill the other criteria given above for the
post of Reader, and have a good record in
teaching and, preferably, have contributed
in various ways such as to the corporate
life of the institution, examination work, or
through extension activities, will be placed
in the Selection Grade, subject to the
recommendation of the Selection
Committee which is the same as for
promotion to the post of Reader. They will
be designated as Lecturers in the Selection
Grade. They could offer themselves for
fresh assessment after obtaining Ph.D
and/or fulfilling other requirements for
promotion as Reader and, if found suitable,
could be given designation of Reader."
9. As has been submitted by the petitioner in the petition,
she became entitled to get the senior scale of pay on
12.06.2004, as on the date of her initial recruitment on the
post of Assistant Director (PRC) in 2000 she had already
completed four years of service and she held Ph.D. Degree
much before her initial appointment on the post of Assistant
Director (PRC) and as such she was entitled to get the senior
scale of pay. The petitioner has averred that she was
appointed in the year 2000 on the pay scale of Rs. 8000-275-
13500, but, she was entitled to get senior scale of pay of
Rs.10000-352-15200 on completion of four years of service in
the cadre. The petitioner was granted the revised scale of pay
of Rs. 15600-39100+AGP 6000 w.e.f. 01.01.2006 vide order
dated 07.01.2012 vide (Annexure P/14).
10. The petitioner submitted an application to the Registrar
for grant of two advance increment of Ph.D. (Accounts) as she
had been awarded degree of Ph.D. in the year1987. The
petitioner has submitted that UGC vide letter dated 7 th
December, 2018 (Annexure P/18) issued a clarification
putting an end to a long pending controversy clarifying that
the Ph.D. holders are entitled to two increments. Thereafter,
by memo dated 25.11.1999 (Annexure P/29), the Government
of India clarified that the age of superannuation of the staff of
PRC drawing their pay equivalent to the pay scale of UGC
Teacher would be 62 years. When the age of superannuation
was raised to 62 years, again the Registrar referred the matter
regarding age of superannuation of Dy. Director and the
Assistant Director and in response the Government of India
further clarified and instructed to extend the benefit of the
extended age of superannuation to Dy. Director and the
Assistant Director of PRC as applicable to University Teachers
vide memo dated 24.09.2004 (Annexure P/30) and again vide
memo dated 06.01.2005 (Annexure P/31) the Government of
India reiterating the same further clarified that the age of
superannuation of Dy. Director and the Asstt. Director of PRC
would be 62 years as per the retirement age of the University
and College Teachers existing in the State of Madhya Pradesh.
11. The respondent-University then put up the said issue
before the Executive Council met on 07.04.2005 and as per
the minutes of meeting dated 07.04.2005 (Annexure P/31A),
a decision was taken in respect of Dr. A.S. Day to retire him
at the age of 62 years because as per the letter dated 6 th
January, 2005 of Government of India it has been instructed
that the Deputy Director and the Assistant Director working
in PRC shall be superannuated as per the age of
superannuation of Teachers working in the University. The
Resolution No. 12 was passed accordingly and the respondent
No. 4 complied the said Resolution of the Executive council
taken in respect of Dr. Day, who was holding the post of
Assistant Director and got superannuated at the age of 62
years. The said approval in respect of superannuation of Dr.
Day has been filed by the petitioner as Annexure P/31B.
12. The petitioner has further contended that the
Government of India issued a letter on 4 th April, 2007
(Annexure P/31C) informing all Central/Deemed Universities
regarding enhancement of the age of superannuation from 62
years to 65 years as per the letter earlier issued by
Government of India, Ministry of Human Resource
Development Department of Higher Education, New Delhi to
the Secretary, University Grants Commission, according to
which, the age of superannuation of all persons who were
holding teaching positions on regular employment against
sanctioned posts in any of the centrally funded higher and
technical education shall be increased from 62 years to 65
years. Thereafter, the petitioner made a representation on
14.02.2019 (Annexure P/34) requesting University to enhance
the age of her superannuation from 62 years to 65 in view of
the instructions issued by the Government of India from time
to time, however, no response has been given by the
respondent-University till date. On the contrary, the
respondents issued a letter on 02.01.2019 (Annexure P/37)
informing the Director of PRC about the date of
superannuation of the petitioner and other employees
showing that the petitioner shall be retired after attaining the
age of 60 years.
13. The respondent Nos. 2 to 4 have filed their reply taking
standing therein that the petition suffers from non-joinder of
necessary party saying that the respondent-University has
been declared a Central University w.e.f. 15.01.2009 and is
under the control Ministry of Human Resource and
Development Department since then, but the said department
has not been made party. Accordingly the petition is liable to
be dismissed on this ground alone. The respondents have also
taken a stand that the PRC is a non-teaching department of
the University and is running on project basis. The
Government of India provides grant-in-aid to meet out the
expenditure of PRC including the salary of the employees and
the only job which has been assigned to the University was to
keep administrative control over the PRC. As per respondent
Nos. 2 to 4, the nature of work, which is performed by the
PRC, does not fall within the definition of 'teaching' and as
such the benefit of extended age of superannuation, which is
available for the teachers working in the University, is not
available to the employees working under the PRC. As per the
University, the services of the employees working in the PRC
are purely of temporary nature and benefit of age of
superannuation or extended age of superannuation is
available to the confirmed employees only, but not to the
temporary employees. The post, which the petitioner is
holding, is only a temporary post, and was never involved any
teaching component and, therefore, the benefit which is
available to the teachers of the University is not available to
the petitioner. The respondents have contended that the
Ordinance 14 deals with the service conditions of teachers
and Clause 6 of the Ordinance clearly provides that every
teacher confirmed in the services of the University shall
continue to serve until he/she attains the age of retirement.
As per the respondents, the UGC does not deal with the
affairs of the employee's working other than the teaching
cadre and if in their duties component of 'teaching' is not
available available then the norms of UGC would not be
applicable to them. In a nutshell, the stand of the
respondents is that petitioner is an employee of PRC, which is
a temporary project and object for forming the said project
and duties performed by the employees working therein do
not have any component of teaching and in fact they have
nothing to do with the teaching and, therefore, they cannot be
considered at par with the teachers working in the University.
The respondents have submitted that the petitioner from the
very inception of her appointment was appointed on
temporary basis whereas the benefit of extended age of
superannuation is available and can be extended to the
confirmed employees only. The claim of the petitioner was
accordingly sought to be rejected.
14. In support of her submission, learned counsel for the
respondent Nos. 2 to 4 has placed reliance upon a decision
reported in the case of A. Umarani vs. Registrar,
Cooperative Societies and others reported in (2004) 7 SCC
112 and also on a decision of Patna High Court in the case of
Ram Babu Mehta vs. The Patna University Through Vice-
Chancellor, Patna and others-Civil Writ Jurisdiction
Case No. 7123/2013 decided on 15th January, 2015.
15. As far as respondent No.1 is concerned, Shri Jain has
submitted that in fact the relief claimed by the petitioner is
especially against respondent Nos. 2 to 4. He submits that the
project, which is known as Population Research Center, is a
creation of respondent No.1 and the employees working under
the said project are handed over under the administrative
control of the respondent-University for maintaining their
service conditions and payments like salary and other
allowance as are being provided to the employees of
University and as such the project is hundred percent funded
project of the Government of India and the respondent-
University is under compulsion to follow the instructions as
and when issued by the respondent No.1 in respect of the
employees working under PRC. He submits that whatever
instructions have been issued in respect of the petitioner, who
is an employee of PRC, are available on record and
respondent-University is under obligation to follow the same.
He submits that whatever order is passed by this Court in
this petition, the same will be binding upon the respondent
No.1.
16. Learned counsel for the petitioner as well as respondent
Nos. 2 to 4 have submitted their written synopsis.
17. On analyzing the arguments advanced by the learned
counsel for the petitioner, it is evident that he has placed
emphasis upon Annexure P/1, especially upon the condition
Nos. 5 and 7, which reads thus:
"5. Sr. Chief Director, Statistics Division,
Department of Family Welfare, Ministry of
Health, Government of India (Telephone and
FAX No. 011-3018238 -e-mail number-
[email protected]) or Director,
Statistics Division, Department of Family
Welfare, Ministry of Health, Government of may
please be associated with the recruitment for
the posts of Lecturers/Research Officer and
above. These instructions hold good for any
future recruitment of staff in the PRC.
7. The Population Research Center should not
make any changes in the approved staff pattern
or scales of pay of the staff without the specific
approval/sanction from Government of India.
The aforesaid letter was issued by the respondent No.1
to the respondent No.2 i.e. Registrar of the University and
thereafter respondent No. 1 issued another letter dated
12.06.1985 (Annexure P/2) clarifying that the UGC norms
would be applicable to the employees of PRC in respect of pay
scales.
18. After creation of PRC, the Director of Population
Research Centre, Department of General and Applied
Geography of the University, issued an advertisement on 17 th
November, 1999 (Annexure P/6) inviting applications for
filling up of various posts in the PRC, Sagar including the
post of Assistant Director in the pay scale of Rs. 8000-275-
13500. After issuance of advertisement, on 28 th December,
1999 (Annexure P/3), Government of India issued a letter to
respondent- University clarifying staffing pattern of PRC in
which post of Research Officer has been equated with the
post of Assistant Director. The said letter also clarifies that
UGC guidelines and service conditions, if adopted by the
University/State Government, shall be applicable for the
posts of Research Officer and above. In response to the
advertisement, petitioner applied for the post of Assistant
Director. A Selection Committee was constituted for selection
of the persons applied for the posts concerned. The petitioner
was selected and appointed and consequently an order dated
01.06.2000 (Annexure P/7) was issued by the University,
Sagar appointing the petitioner on the post of Assistant
Director entitling her for the service benefits as per
rules/orders of the University/State Govt. except the
pensionary benefits. The University clarified in the order of
appointment that the terms and conditions of service of the
petitioner shall be governed by the University Rules and/or
the guidelines issued by the Government of India from time to
time.
19. From perusal of the letter dated 24th September, 2004
(Annexure P/30) issued by the Government of India to
respondent-University it reveals that on some communication
made by the Director of PRC regarding raising age of
superannuation of Dy. Director and Asstt. Director up to 62
years, the Government of India acceding to the said
communication extended the benefit of date of
superannuation to Deputy Director and Assistant Director of
the PRC as applicable to the University Teachers. Again, in
response to the letter of respondent-University, on 6 th
January, 2005 (Annexure P/31), the Government of India
issued intimating respondent-University that Dr. A.S. Day
working on the post of Dy. Director in PRC will retire at the
age of 62 years i.e. w.e.f. 31.12.2006 and then Executive
Council of the University in the meeting held on 07.04.2005
(Annexure P/31A) approved the instructions of the
Government of India and retired Dr. A.S. Day after attaining
the age of 62 years. Thereafter, a letter was issued by the
UGC on 4th April, 2007 (Annexure P/31-C) referring letter
dated 23rd March, 2007 issued by the Ministry of Human
Resource Development, Department of Higher Education
informing all the Registrars of the Central/Deemed
Universities informing that the age of superannuation of the
staff working in teaching cadre would be 65 years. The letter
dated 23rd March, 2007 was issued by the Government of
India addressing Secretary, University Grants Commission
that the age of superannuation of teaching position has been
enhanced from 62 years to 65 years.
20. On 19th July, 2010 (Annexure P/13), Government of
India issued a letter instructing respondent No.2-University
for implementation of Career Advancement Scheme (CAS) and
extending the benefit of the said scheme to the employees
working in PRC. As per the said letter, it is instructed that
UGC Rules regarding grant of CAS and other promotional
benefits would be available to the Research Officer (Assistant
Director), Senior Research Officer (Dy. Director) of PRC as
admissible to teaching staff of other departments of Dr. H.S.
Gour University. Thereafter, a letter dated 22.08.2014 was
written by the respondent No. 2 to Government of India in
reference to letter dated 20.05.2014 intimating that the
University has provided the service benefits to their staff as
well as the staff of PRC such as leave encashment, gratuity,
contribution to provident fund, house rent allowance, LTC,
mobile allowance, liveries, surrender leave, bonus, transport
allowance, medical reimbursement, children education
allowance, washing allowance and other benefits like modified
assured career promotion scheme, career advancement.
21. A letter dated 10.01.2019 (Annexure P/27) was issued
by Director, Population Research Centre, Sagar to the Head,
Department of Psychology of University clarifying that the
petitioner does not come under the 'teaching cadre' and she
comes under 'non-teaching cadre' and appointed temporarily
in the PRC, however, as per the petitioner, the said document
was issued by respondent No. 3 with mala-fide intention. To
override the aforesaid letter, the petitioner has pressed upon
the letter dated 07.10.2019 (Annexure P/38) in which it is
clarified by the Director of Ministry of Health & Family
Welfare Department that the faculty position of the PRC is
academic in nature and as such the service benefit as per the
UGC Rules except the pensionary benefit shall be provided to
them. Another letter dated 06.12.2019 was issued by the
Government of India further clarifying and instructing the
respondent No. 2 to follow the rules regarding the age of
retirement of staff of PRC, which are prevailing in the
University in respect of the equivalent posts. Neither
respondent No. 1 nor respondent Nos. 2 to 4 have denied the
contents of letters on which the petitioner has placed reliance
and are part of the record.
22. Thus, on examining the aforesaid facts, it is crystallized
that the Ministry of Health & Family Welfare Department,
Government of India, constantly giving status to the PRC
employees alike the status of teaching staff of the University
and persistently instructing the University to follow the rules
including the UGC Rules, which are applicable to the teaching
staff of the University. The service benefits, which are
applicable and available to the employees of the University
including their age of superannuation, has also been directed
to be followed in respect of employees of PRC. Thus, time and
again, the Government of India clarifying that the Staff of PRC
is also a teaching staff like the teaching staff of the University
and, therefore, they are equivalent and benefit should be
given to them as are being given to the employees of the
University. The respondent Nos. 2 to 4 have also not disputed
this aspect of the matter that the project i.e. Population
Research Center is a formation of Government of India and
depends upon funding of Ministry of Health and Family
Welfare Department. They have disputed that there is no
relationship of employee and employer between petitioner and
the respondent-University and, therefore, the claim of
extended age of superannuation cannot be claimed from the
respondent-University. As per the respondents, the
University/Registrar is only given the overall administrative
control of PRC.
23. After looking over the stand taken by the University, I
am surprised as to why they are disputing the claim of the
petitioner for extending the age of superannuation from 62
years to 65 years when her employer i.e. respondent No.1
Government of India is repeatedly asking the University to
give the benefit of age of superannuation to the employees of
PRC like teaching staff of the University. The letters have been
issued from time to time by the Government of India
addressing respondent No.2 asking them that the post, which
the petitioner is holding, is equivalent to the post of Assistant
Professor of the University and as such she should be given
the benefit of said post. It is pertinent to mention here that
following the instructions issued by the Government of India,
Dr. A.S. Day was granted the benefit of extended age of
superannuation i.e. from 60 years to 62 years. But, even on
asking a specific question by the Court that when the benefit
of extended age of superannuation has been granted to
Dr.Day then as to why the petitioner is being deprived and
discriminated, learned counsel for the respondent Nos. 2 to 4
was not able to answer anything and chose to remain silent
on this point. It is something surprising as to why the
University is objecting and retiring the petitioner at the age of
60 years when they are not the employer as per their own
showing and they have only administrative control over the
project of PRC and employees working therein. Indisputably
the Government of India is the employer of the petitioner. The
project is hundred percent funded by the Central Government
and the respondent-University in their reply and even during
the course of arguments the learned counsel appearing on
their behalf has not shown any document or disputed the fact
that if the age of superannuation of the petitioner is extended
up to 65 years, the Government of India will not provide any
aid or fund to them. There is nothing on record indicating
that the University has ever made any demand from the
Government of India that if the age of superannuation of the
petitioner is extended then they would have no fund to pay
salary to the petitioner and other benefits for which the
petitioner is otherwise entitled. In absence of any such
material, the role of the University in this matter appears very
limited and in fact the order issued by them i.e. Annexure
P/37 retiring the petitioner at the age of 60 years is also not
proper and contrary to the instructions issued by the
Government of India from time to time asking respondent
No.2 to provide the benefit of extended age of superannuation
to the petitioner alike the teaching staff of the University. It is
also apt to mention here that letter was issued by the
Government of India on 07.10.2019 (Annexure P/38) saying
that the faculty position of PRCs are academic in nature and
service benefit as per the UGC Rules except the pensionary
benefits shall be provided to them. Therefore, under such a
circumstance, when respondent No.1 is ready to accept their
employees or want to take their services till the age of 65
years, the University has nothing to do with the same. From
the reply as well as the arguments advanced by the learned
counsel for the respondents it is evident that they have
nowhere taken the ground that if petitioner is allowed to
continue up to the age of 65 years any financial burden would
occur upon the University.
24. As regards submission made by the learned counsel for
the respondents-University that the petition suffers from non-
joinder of necessary party i.e. Ministry of Human Resource
and Development Department under which the respondent-
University comes because, according to the respondents, the
University has been recognized to be a Central University, in
view of the discussion made hereinbelow by this Court, the
objection and submission made by the respondent-University
has no substance and as such the objection is hereby rejected
and this Court finds that this petition does not suffer from
non-joinder of necessary party.
25. Learned counsel for the respondent No.1 has already
submitted that the Government of India have issued
instructions from time to time and the University is under
obligation to follow the same. Thus, I have no hesitation to
say that the stand taken by the respondent-University that
the petitioner is not be entitled to the extended age of
superannuation as the UGC norms are available only to
"confirmed employees", but, the petitioner being a temporary
employee has no right to claim the said benefit is contrary to
the instructions/guidelines issued by the Government of
India from time to time. I have not seen any such provision
under the law that if employer allows its employees to
continue to perform their duty up to a particular age, the
other institution or the organization having only
administrative control can object the said intention of the
employer saying that it is not proper to grant them benefit as
the status of employee is temporary in nature. The judgment
relied by the learned counsel for the respondent Nos. 2 to 4 in
the case of A. Umarani (supra) is not applicable in the facts
and circumstances of the present case because that was a
claim in which the employee of the Cooperative Society
claimed regularization and it was found that if any
appointment is made de-hors the rules, the benefit of
regularization cannot be given. However, here it is not a case
of regularization and the Ordinance of University are not
applicable in the case of the petitioner because the employer
of the petitioner i.e. respondent No.1 is continuously
instructing the University that the petitioner's age of
superannuation would be the same as is available for
teaching staff of the University. Further, the case relied upon
by the learned counsel for the respondent Nos. 2 to 4 in the
case of Ram Babu (supra) is in fact giving strength to the
opinion of this Court saying that the employees of PRC have
no relation of employee and employer with the University and
they cannot claim any such benefit which puts financial
burden upon the University unless the University gives
consent for the same. In the said case, it is also clearly
observed by the Court that there is no relation of employee
and the employer between the employee of PRC and the
University and the PRC is found to be a centrally funded
project for which aid is provided to the University.
26. The University has placed reliance upon a decision of
Ram Babu (supra) in which the Patna High Court while
dealing with the dispute of employees of PRC with Patna
University has observed as under:
"6. The University has taken a stand that the
Population Research Centre, which was formerly
known as Demographic Research Centre, was
creation of the Ministry of Health and Family
Welfare, Statistics Division, Government of India
in terms of the letter dated 20.7.1965. The said
communication is Annexure- A to the counter
affidavit. The necessary grant for payment of
salary and other allowances of the employees
working under the Centre was being released by
the Ministry of Health and Family Welfare,
Government of India every financial year. The
directives issued by them from time to time was
being followed by the respondent University and
the Centre is basically a baby of the Ministry of
Health, Government of India. The said Centre was
only attached with Patna University for the
purposes of administrative control of the
University but at no point of time any master
servant relationship was established between
Patna University and the two petitioners. The
employees working under PRC worked under the
project Patna High Court CWJC No.7123 of 2013
dt.15-01-2015 independently and the University
was not empowered to take any decision on them
over and above the directives issued by the
Ministry.
7. Right from the beginning the terms and
conditions of such Centre and the object thereof
was governed by the Ministry of Health and Family
Welfare, Government of India and in terms of such
directive and scheme the employees working in
the said project were not entitled to any pension
because such service was not made pensionable.
The petitioners have been contributing towards
contributory provident funds since the date of
their joining and the settlement in terms of their
entitlement has already been made. Details of
payment made have also been indicated in
paragraph 12 of the counter affidavit of the
University.
8. The University also fairly takes a stand that the
University has no objection if the Ministry of
Health and Family Welfare, Government of India
sanctions money for pension to the petitioners and
the University will not come in the way. It is also
urged on behalf of Patna University that University
has no funds of its own to make provisions for
payment of pension to the petitioners or any such
employees of the Population Research Centre and
further since such Centre was working under the
scheme of the Central Government, the liability
cannot be fixed upon the State Government for
payment of their pension because they are not
University Patna High Court CWJC No.7123 of
2013 dt.15-01-2015 employees.
9. Rejoinders on behalf of the petitioners have
been filed and on the basis of some of the
communications and Annexures it is harped that
the complete administrative control of the
Demographic Research Centre was at the hands of
the University authorities. The decision with
regard to their promotion etc. was taken by the
authorities of the Patna University and whatever
directives have been issued by the University, the
petitioners have faithfully followed the same.
Effort has been made by learned Senior Counsel
for the petitioners to impress upon this Court that
for all practical purposes it was the Patna
University which was the employer and obligation
of Patna University to pay pension etc. remains.
10. On the stand taken by the Patna University
the Court also directed the Union of India to file a
counter affidavit and a counter affidavit on behalf
of respondents no.5 and 6 i.e. Ministry of Health
and Family Welfare, Statistics Division has been
filed. They have given the background, the object
behind setting up of such Population Research
Centre. 18 such Centres are functioning across
the country. 12 are located in the Universities and
others are located in institutes of repute. Details
scheme has also been annexed with the said
counter affidavit. They do not take any
responsibility for payment of pension etc. but they
do take a plea that Universities could Patna High
Court CWJC No.7123 of 2013 dt.15-01-2015
encourage them to opt for pension scheme but
that has to be done from their own funds and
arrangements. There was no commitment by
Government of India in this regard. The grant-in-
aid released to such Universities is limited to the
object and purpose for which such Centres were
set up decades ago.
11. After many adjournments an affidavit came to
be filed on behalf of the petitioners indicating
therein that in some other States provision for
pension has been provided for and in this regard
some documents relating to the arrangement
made in the State of Orissa and Gujarat has been
brought on record.
12. The Court has gone through the entire scheme
of things, the so-called decisions taken by the
Patna University and the communications made
right from the day of selection etc. in relation to
these petitioners. A careful look at those
communications does indicate that all the
communications does talk of Population Research
Centre as an independent entity and identity.
From a perusal of the scheme annexed in the
counter affidavit of the Union of India it is evident
that attachment of this Centre with the Patna
University was a decision of the Ministry of Health
and Family Welfare, Statistics Division,
Government of India. Grant-in-aid for such
employees was being provided and there is no
scheme for payment of pension to such employees.
Even by a broad and a liberal interpretation of the
Patna High Court CWJC No.7123 of 2013 dt.15-
01-2015 documents this Court cannot come to a
conclusion that these petitioners are employees of
Patna University in any manner. No doubt, for
coordination and control, administrative exercise
of power over the Centre and for proper utilization
of grant-in-aid was routed through Patna
University. But these petitioners are not
employees of Patna University and under the
scheme of things and statutory provision relating
to the Bihar Universities or Patna University Act,
the University does not have any provision for
generating resources of its own for meeting any
financial obligation of any person of the
University. Every penny or outlay is made by the
State of Bihar through grant-in-aid released in
favour of the Universities across the State
including Patna University.
13. If this is the position which emerges from the
pleadings then if the prayer of the petitioners are
allowed, the petitioners would virtually become
employees of Patna University and an obligation
would be created upon the State of Bihar to pay
them pension lifelong when they have in no
capacity either served the State of Bihar or the
Patna University directly. After the affidavit of the
Ministry of Health and Family Welfare, there
cannot be any iota of doubt that the Population
Research Centre is not part and parcel of Patna
University. It is a creation of Union of India and is
running through grant-in-aid released by the
Ministry. Patna High Court CWJC No.7123 of
2013 dt.15-01-2015.
14. If this is so, this Court is not impressed by the
interpretation sought to be given by the learned
Senior Counsel that a case is made out for
payment of post retiral benefit and pension to
them by Patna University. Writ application,
therefore, cannot be allowed. The petitioners will
be governed by the scheme of things and since the
Central Government has not provided for any
scheme for grant of pension and post retiral dues,
these petitioners cannot beget that benefit.
15. So far as such employees of Orissa and
Gujarat are concerned, it is clarified by Union of
India in its counter affidavit that it was left open
to the local Universities to make such
arrangements, if they could. But under the
scheme of things in the State of Bihar since no
University is financially capable of meeting any
obligation and all liability, if created of such kind,
will be required to be made by the State of Bihar,
it will be totally unfair as well as inequitable to
create a liability on the State of Bihar in favour of
employees, who have nothing to do with the State
of Bihar or the University set up by them under
statute."
(emphasis supplied)
From the above observation it is clear that the Patna
High Court has not found relationship of employee and
employer between the employees of PRC and the Patna
University and also observed that the PRC has been formed
by the Ministry of Health and Family Welfare Department,
Union of India and that PRC is not the part and parcel of the
Patna University. It is also observed by the Patna High Court
that under the scheme of things in the State of Bihar since no
University is financially capable of meeting any obligation and
all liability, if created of such kind, will be required to be
made by the State of Bihar.
27. Thus, it is clear that the University in the present case
has even no right to determine the age of superannuation of
the petitioner because the Government of India (respondent
No.1) issued instructions from time to time directing
University to treat the petitioner like a teacher of the
University and the benefits of the age of superannuation shall
be granted to her like other teachers of the University.
28. Conclusively, in view of the aforesaid analysis of the
facts of the case and the observations made by this Court, the
order dated 02.01.2019 (Annexure P/37) showing the age of
retirement of the petitioner at the age of 60 years is hereby set
aside and it is directed that the petitioner shall be allowed to
continue till she attains the age of 65 years unless it is
objected by the respondent No.1. The respondent No. 2 has
no authority to restrict the petitioner because her employer
i.e. respondent No. 1 has time and again issued instructions
to allow the petitioner to perform the duties treating her age
of superannuation alike the age of superannuation of the
teaching staff of the University. The consequence of this order
be implemented by the respondent-University within a period
of 15 days from the date of receipt of certified copy of the
same and benefits for which the petitioner is otherwise
entitled be also provided to her.
29. Accordingly, this petition is allowed to the extent
indicated hereinabove. However, there shall be no order as to
cost.
(Sanjay Dwivedi)
Judge
Raghvendra
RAGHVENDRA
SHARAN SHUKLA
2022.03.16
10:59:13 +05'30'
