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Jharkhand High Court · body

2014 DIGILAW 30 (JHR)

Shambhu Sharan Shrivastava v. Union of India

2014-01-06

APARESH KUMAR SINGH

body2014
JUDGMENT By Court––Heard learned counsel for the parties. 2. The first two writ petitions are preferred by individual petitioners three and one respectively. The third writ petition has been preferred by the Staff Association, National Institute of Technology, Jamshedpur. 3. In the first two writ petitions, the individual petitioners are aggrieved by the notices issued upon them informing that they are going to superannuate on reaching the age of 60 years. Apart from the above notices of retirement, the petitioners in the first two writ petitions, have also challenged the order dated 19th April, 200,4 whereunder the decision of the Board of Governors in its 4th meeting held on 14th January, 2004, was conveyed to all such Demonstrators of N.I.T., Jamshedpur, whereunder it was decided that the age of retirement for non-teaching staff including the Demonstrators of the Institute would be 60 years subject to fulfilling the terms and conditions laid down in letter of Government of India, Ministry of Human Resources Development, Department of Secondary and Higher Education dated 12th November, 2003. 4. In the third writ petition, the Staff Association, National Institute of Technology, Jamshedpur along with one individual petitioner have challenged the Order no. 572/2004 dated 4th March, 2004, whereunder the employees of N.I.T. were asked to subject themselves to screening process to be undertaken by a committee to assess the suitability of such employees for their further continuation in services beyond 58 years of age i.e. upto 60 years of age. 5. During the course of hearing, it is contended by learned counsel for the Respondents-N.I.T and not refuted by the learned counsel for the petitioner in W.P.(S) No. 2503 of 2004 that the said prayer has been rendered infructuous as the members of the Staff Association and the non-teaching employees of the N.I.T have been continued upto 60 years of age irrespective of the resolution of the screening committee. At the same time, that resolution has been superseded by new Act i.e. National Institute of Technology Act, 2007 and statutes framed thereunder which governs the service conditions of the non-teaching employees. The said writ petition therefore is declared to be infructuous. At the same time, that resolution has been superseded by new Act i.e. National Institute of Technology Act, 2007 and statutes framed thereunder which governs the service conditions of the non-teaching employees. The said writ petition therefore is declared to be infructuous. 6.The focus now is on the prayer made by the individual petitioners in the first two writ petitions i.e. W.P.(S) No. 3388 of 2004 and W. P. (S) No. 2549/04, wherunder the individual petitioners were aggrieved by their notices of superannuation and their consequence superannuation upon attaining the age of 60 years. The contention of the learned senior counsel for the petitioner in both the cases is that the said decision to retire them is based upon the understanding that the petitioners belonged to the category of non-teaching employees as reflected in the letter dated 19th April, 2004 issued under the signature of Dear (Administration), N.I.T. It is submitted that neither of the two other office memorandum of the same date of the Ministry of Human Resources Development, Department of Secondary and Higher Education being Annexures 9 & 10/A in W.P.(S) No. 3388 of 2004 shows that demonstrators are to be included in the category of non-teaching staff of N.I.T to be made to retire at the age of 60 years. It is submitted on the part of the learned counsel for the petitioners that the petitioners' form the category of teaching faculty of N.I.T which was taken over in the year 2003 by the Central Government and the age of the superannuation of the teaching faculty of all such N.I.Ts were increased upto 62 years. It is submitted that N.I.T as such was established as Regional Institute of Technology, Jamshedpur at the town of Jamshedpur and was an autonomous organization registered under the Societies Registration Act. It is contended that the State Government was in control of the Institute and the service condition applicable to the employees of the State Government were also applicable to the employees of the said Institute. 7. Learned senior counsel in order to compare the status of the petitioners as coming within the definition of teaching faculty have relied upon the provisions of Section 2(v) of the Jharkhand State Universities Act, 2000. As per which “Teacher” includes Principal, University Professor, College Professor, Reader, Lecturer as also Demonstrator and other person imparting instruction in department, college or institute maintained by the University. As per which “Teacher” includes Principal, University Professor, College Professor, Reader, Lecturer as also Demonstrator and other person imparting instruction in department, college or institute maintained by the University. It is further submitted that in the year 1968 vide notification dated 12th October, 1968, which contain resolution of the Board of Governors of R.I.T, Jamshedpur, the Laboratory Assistants were re-designated as Demonstrators and the revised U.G.C scale were also granted to them and continued thereafter relying also upon subsequent resolutions/notifications of the State Government dated 16th May, 1981 and 13th September, 1991 issued by the erstwhile, Government of Bihar, which are Annexures 17 & 18 to the first writ petition i.e. W.P.(S) No. 3388 of 2004. It has been submitted that in line with the grant of scale to such teaching faculty, the U.G.C scale have also been extended to the cadre of the Demonstrators treating them to be as non-teaching faculty. 8. Learned senior counsel has also relied upon the decision of the State Government, under which U.G.C scale has been extended to the various categories of University's employees (Annexure19), whereunder the demonstrators have been shown to be coming into the category of teachers in the University and Colleges. It has been contended on behalf of learned senior counsel that these petitioners and other Demonstrators working in the N.I.T, Jamshedpur all along have been considered as teaching faculty, but at the time of decision to enhance the age of superannuation they have been treated differentially from the teaching faculty by the impugned orders, which is arbitrary and unreasonable. 9. Learned senior counsel has relied upon the judgment of this Court rendered in the case of Samresh Singh Etc. Vs. Syed Azmat Hussain Etc. reported in (2002) 2 JCR 306 (Jhr.), wherunder it has also been held that the Chairman of the Board of N.I.T is an appointee of the State Government. Learned senior counsel has also relied upon Annexure6 which is once again a proceedings of the committee constituted for revision of pay scales of staff of R.I.T, Jamshedpur, whereunder also the Demonstrators have been granted the benefit of U.G.C. scale upon the completion of certain number of years of service treating them to be equivalent to that of a Lecturer, however, without any change in their designation and duty. It is submitted therefore that the petitioners have been unfairly discriminated at the end of their service career and have been denied the benefit of enhanced superannuation age. 10. Learned counsel for the Respondents-N.I.T has strongly opposed the submission of the petitioners. It is contended that so far as existing terms and conditions of service of all employees of N.I.T is concerned, at the time of taking over by the Central Government, it is not in dispute that both the teaching and non-teaching employees enjoyed the superannuation age of 60 years. However, it has been submitted on their part that the petitioners' case that they belong to teaching faculty is not based upon any existing services rule regulating their services in the N.I.T nor do they have the required qualification are prescribed for the teaching faculty of the members of N.I.T. He has sought to distinguish the reliance upon the provisions of Jharkhand State Universities Act, 2000, by referring to the provisions of Section 2(v) with respect to “Teacher” and 2(i) with respect to “Constituent College” as also 2(c) with respect to “affiliated College”. It is submitted that the definition of 'teacher' under Section 2(v) is intended to cover those teachers prescribed therein who are imparting instruction in department, college or institute maintained by the University. Referring to the definition of a “Constituent College” under section 2(i), it has been stated that only a constituent college can be said to be maintained or controlled by the University. The R.I.T which was taken over and re-designated as N.I.T was only an affiliated college earlier which is defined under Section 2(c) to mean educational institution having received privileges of the University according to the provisions of the Act and University Statutes relating thereto. It is therefore submitted that the definition of 'teacher' as contained in section 2(v) as including that of Demonstrators would not apply to the N.I.T and to the petitioners. 11. Learned counsel for the respondents has also argued that the Regional Institute of Technology was an autonomous organization and as per the petitioners themselves at para 11 of the first writ petition, it was controlled by the Central Government and Government of Bihar through the Governing Body. 11. Learned counsel for the respondents has also argued that the Regional Institute of Technology was an autonomous organization and as per the petitioners themselves at para 11 of the first writ petition, it was controlled by the Central Government and Government of Bihar through the Governing Body. During the course of submission, learned counsel has orally denied the contention made by the petitioners that the service condition of R.I.T employees were similar to the service condition applicable to the employees of the State Government, but in the counter affidavit such specific denial is not there. 12. Learned counsel has referred to Annexure-A to their counter affidavit which is dated 9th June, 1973. It is extract of proceedings of 32nd meeting of the Board of Governors of the Regional Institute of Technology, Jamshedpur held on 28th April, 1973. As per Item no. 4, it was resolved that privileges of Teachers cannot be given to Demonstrators in view of the recommendations of All India Council of Technical Education since the Lecturers form the lowest category of the teaching staff. 13. Learned counsel for the respondents has drawn the attention of the court to the qualification laid down by All India Council of Technical Education (AICTE) for different levels of teachers. The same have been incorporated at para 6 of the counter affidavit, as per which the minimum qualification required for the post of Lecturer is 1st Class Bachelor's Degree in appropriate branch of Engineering/Technology or 1st class Master's degree in appropriate branch in the cases of Humanities and Science. It is also submitted that the teaching staff is categorized as Vacational staff, while non-teaching staff are categorized as non-vacational staff of the College. Non-teaching staff/non-vacational staff of the college are entitled to get 33 days Earned Leave annually but they are not entitled to leave when the college is closed and there are no students attending classes. On the other hand, the teaching staff of the college are entitled to holidays when the class is closed and there are no classes, but they are not entitled to 33 days earned leave. The petitioners and other demonstrators have always availed of the benefits of 33 days earned leave and many of them encashed the same as well. On the other hand, the teaching staff of the college are entitled to holidays when the class is closed and there are no classes, but they are not entitled to 33 days earned leave. The petitioners and other demonstrators have always availed of the benefits of 33 days earned leave and many of them encashed the same as well. It is submitted that A.I.C.T.E. Act, 1987 is a Central Legislation which falls within the scope of Entry66 of ListI and Entry25 of List-III under the said Act. The A.I.C.T.E. is empowered to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern and also staff qualification. It is submitted that the qualification laid down by the AICTE are binding upon the Technology Institute like the N.I.T. and in case of repugnance in the qualification laid down under any State Universities Act in respect of such employees of such Technology Institute it is AICTE Act which will prevail. 14. Learned counsel for the respondents has relied upon the judgment rendered in the case of State of T.N. and others Vs. Adhiyaman Educational & Research Institute and others reported in (1995) 4 SCC 10, paras 9 to 12, 20, 30 and 41, on the aforesaid issue. It is submitted that the said judgment has been followed in the subsequent judgment as well. It is submitted on his part that even though the State Universities Act, may have included the demonstrators within the meaning of teachers under the colleges and departments maintained by the University, but demonstrators functioning in a National Institute of Technology which are governed by the qualification laid down under A.I.C.T.E. Act have to confirm to the defined qualification which is essentially 1st Class Degree in Bachelor of Engineering. None of these petitioners have the said qualification and they cannot be expected to be performing the job of teaching the students, who are themselves studying the B.Tech. courses for obtaining the Bachelor in engineering degree. 15. Learned counsel for the Respondents submits that none of these petitioners are degree holders, rather they are diploma holder at the best. None of these petitioners have the said qualification and they cannot be expected to be performing the job of teaching the students, who are themselves studying the B.Tech. courses for obtaining the Bachelor in engineering degree. 15. Learned counsel for the Respondents submits that none of these petitioners are degree holders, rather they are diploma holder at the best. Therefore, neither the service condition of the petitioners before RIT was taken over in 2003 recognized them as belonging to teaching faculty nor by the qualification prescribed in respect of teaching faculty by the A.I.C.T.E. norms they can claim to be so for being for being treated to be coming into that category to avail the benefit of enhance superannuation age. 16. I have heard learned counsel for the parties and gone through the relevant materials on record including the impugned letters. The issues raised in the present writ application can be said to be two fold. Firstly, what was the superannuation age prescribed in respect of such persons, like Demonstrators before N.I.T. was taken over. Secondly, whether the petitioners being Demonstrators come within the meaning of teaching faculty under the National Institute of Technology under which they are working to claim enhanced age of retirement. 17. Regarding the first issue, since learned counsel for the respondents has himself stated that all teaching and non-teaching employees of RIT which were taken over as NIT by the Central Government continued to avail the age of 60 years irrespective of whether they belong to teaching and non-teaching faculty, the Court is not required to delve in the question as to whether there were distinction in the age of retirement of the petitioners, who were Demonstrators compared to that of the members of the teaching faculty. Though, it appears that an order was issued to undertake the process of screening in respect of non-teaching employees as also the Demonstrators after the Institute was taken over as N.I.T., but it is also not disputed that all such non-teaching staff continued till the age of 60 years irrespective of the result of the screening process. In effect, it can be said that the existing terms and conditions of their services so far as age of superannuation is concerned, permitted them to continue till the age of 60 years irrespective of fact whether they are teaching faculty or non-teaching faculty. In effect, it can be said that the existing terms and conditions of their services so far as age of superannuation is concerned, permitted them to continue till the age of 60 years irrespective of fact whether they are teaching faculty or non-teaching faculty. In that sense, it can also be said that vested right of the petitioners to retire at a particular age as per the existing terms and conditions of the service were not taken away in the impugned exercise, as their tenure of service was not curtailed in any manner. 18. However, regarding the second issue, the petitioners have a grievance that the benefit of enhanced age to the teaching employees was not being granted to them pursuant to the decision of the NIT contained in the communication dated 19th April, 2004, which was also the basis for issuance of individual notices of superannuation. Therefore, in order to determine whether the benefits of the enhance age were available to the petitioners being in the category of demonstrators, it is required to be ascertained as to whether the demonstrators of NIT fell in the category of teaching faculty. In this respect, it appears from perusal of Annexure-A dated 9th June, 1973 to the counter affidavit that in spite of demand of demonstrators of the Institute for being given the facilities of teachers, the Board of R.I.T. resolved that privileges of teachers cannot be given to demonstrators in view of the recommendation of All India Institute of Technology Education since the Lectures form the lowest category of teaching staff. 19. It therefore appears that though the petitioners being in the category of demonstrators were granted the benefit of U.G.C. scale implemented by the Board of RIT from time to time and also undertaken by the State Government vide resolution dated 16th May, 1981 and 13th September, 1991, the said resolution could not be meant to confer the status of teaching faculty to the category of demonstrators working in the NIT, Jamshedpur. 20. 20. The reliance of the petitioner upon the provisions of the Jharkhand Universities Act, Section 2(v) which defines 'teachers' has rightly been repelled by the learned counsel for the respondents by referring to definition of constituent college at section 2(i) which are also quoted hereunder: “2(v) Teacher: “Teacher” includes Principal, University Professor, College Professor, Reader, Lecturer as also Demonstrator and other person imparting instruction in department, college or institute maintained by the University, 2(i) “Constituent College” means a teaching institution maintained or controlled by the University.” 21. Apparently the definition of teachers which includes demonstrators is meant for such department, college or Institute which are maintained by the University. Admittedly the RIT was an autonomous body being a society under the Society Registration Act. Even as per the averments of the petitioners, the Central and the State Government both had share in its governing before it was taken over by the Central Government in 2003. Therefore reliance upon the provisions of Jharkhand Universities Act, 2000, to submit that the petitioners came in the category of demonstrators is misconceived. 22. In this context, it is relevant to refer the provisions of AICTE Act, 1987 which under section 10(i) of Chapter III of the Act enumerates the powers and functions of the Council enabling it to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examination. In exercise of such power conferred upon the AICTE it has laid down the qualification necessary for appointment of the teaching faculty of the Technology Institute like NIT which are also referred to at paragraph 6 of the counter affidavit filed by the respondents. Reference to the same would indicate that for the basic level post of Lecturer, the qualification as laid down by the AICTE are 1st Class Bachelor's Degree in appropriate branch of Engineering/Technology. The petitioners admittedly are at best Diploma-holder and none of them are having the Bachelors' Degree. The aforesaid consideration is an important factor in appreciating the contention of the petitioners as to whether the petitioners can be treated to come within the category of teaching faculty. These qualifications laid down by AICTE therefore leaves no iota of doubt that the demonstrators did not come within the meaning of teachers. They do not have basic qualification of Lecturers, who are in lowest category of Teachers. These qualifications laid down by AICTE therefore leaves no iota of doubt that the demonstrators did not come within the meaning of teachers. They do not have basic qualification of Lecturers, who are in lowest category of Teachers. The resolution contained in Annexure-A dated 9th January, 1973 also reinforce the position based upon the consideration of Board of Governors that the Lecturers form the lowest category of teaching staff as per the recommendation of AICTE. 23. The petitioners have contended that the office memorandum dated November, 12, 2003, issued by the Ministry of Human Resources Development Department as Annexures: 9 & 10 did not specifically include the expression of demonstrators within the non-teaching staff of NIT while the impugned letter dated 19th April, 2004 issued by the Respondents-Institute has chosen to do so while taking the decision to retire the non-teaching staff including the demonstrators at the age of 60 years. However, the main question which needs consideration on the aforesaid submission is whether the demonstrators actually fall within the category of teaching staffs or not. The discussion made hereinabove, without any iota of doubt leads to the conclusion that these petitioners did not come into the category of teaching faculty in the Respondents-NIT at any point of time either before it was taken over or thereafter. 24. In the aforesaid facts and circumstances and the reasons as also discussions made hereinabove, therefore, the writ petitioners have failed to make out a case for interference in the instant writ petitions. The writ petitions therefore devoid of any merit, are accordingly dismissed.