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2018 DIGILAW 544 (JK)

Mohammad Farooq Mir v. Union of India

2018-07-20

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. The petitioner claims to have been appointed as Assistant Librarian in the then Regional Engineering College, Srinagar (subsequently, in the year 2003, renamed as the ‘National Institute of Technology, Srinagar, Hazratbal’) vide order No. 160 of 1989 dated 5th of August, 1989. Thereafter, the petitioner, while working as Assistant Librarian, moved a representation before the competent authority seeking benefit of enhancement of the age of retirement from 60 years to 62 years, as has been done in the case of similarly situated Assistant Librarians working in various institutes of the technologies, universities, etc. It is stated that the case of the petitioner was placed before the Committee who recommended to fix the age of superannuation of the petitioner from 60 years to 62 years. These recommendations of the Committee aforesaid were placed before the Board of Governors, wherein it was resolved that the petitioner is entitled to the benefit of superannuation at the age of 62 years as per the Ministry of Human Resource Development (MHRD) order. However, the respondents in terms of notice issued vide endorsement No. NIT/PD/2017/4856-85 dated 6th of December, 2017, that is impugned herein this petition, have notified the age of superannuation of the petitioner as 30th of April, 2018, being 60 years. Faced with this fascicule of facts/ eventuality, the petitioner has, by medium of this writ petition, approached this Court in granting him the following reliefs: “A) Writ in the nature of Certiorari for quashing the impugned order bearing No. NIT/PD/2017/4856-85 dated 06th of December, 2017 as it relates to the petitioner. (B) Writ in the nature of Mandamus commanding upon the respondents to allow the petitioner to complete his tenure of service i.e., upto age of 62 years as ordered by UGC and the Board of Governors in their 92nd and 93rd meetings. (C) Writ in the nature of Mandamus commanding upon the respondents not to give effect to the order impugned by treating the petitioner at par with the Assistant Librarians of various NITs in India as far as the age of superannuation is concerned i.e., 62 years and further not to cause any impediment in the smooth functioning of the petitioner as Assistant Librarian till he reaches the age of superannuation i.e., 62 years which shall be inconsonance with the order/s of UGC and the Board of Governors. (D) Writ in the nature of Mandamus commanding upo0n the respondents to allow the petitioner to complete his tenure at his present place of posting i.e. Radio Kashmir, Srinagar. (E) Writ in the nature of Mandamus commanding upon the respondents to regularly pay the salary of the petitioner.” 2. The respondent Nos. 3 to 5 have filed their objections, wherein they have stated that the National Institute of Technology (NIT), Srinagar, is an autonomous Institute of the Ministry of Human Resource Development and all the National Institutes of Technology (NITs) are governed by the National Institute of Technology Act, 2007 and the statutes framed under the Act. It is stated that the University Grants Commission Act is not applicable to the NITs. The respondent Nos. 3 to 5 have also stated that the representation of the petitioner was forwarded to a Committee for its examination and, thereafter, the recommendations of the said Committee were placed before the Board of Governors (BOGs). The Board of Governors, in its meeting held on 3rd of June, 2016, while discussing the subject/ agenda, noted as under: a. “The BOG in its 91st meeting dated 11-04-2016 after considering the report of the constituted committee decided to refer the matter to MHRD for their opinion. b. However, MHRD order [F.No.5-3/2012.TS-III dated 31.01.2013 and F.No. 03-4/2013-TS dated 12.07.2013 (Copies Enclosed)] allows granting the benefit of age of superannuation as 62 years in favour of Asstt. Librarians subject to fulfilment of qualifications as prescribed by the UGC. c. As per UGC notifications issued vide its order No. F.3-1/94(PS)-7 dated 22.09.2006 candidates having M.Phil and Ph.D are except from NET. Since Mr. Mohammad Farooq Mir has M. Phil Qualification and as such he is exempted from the NET qualification. In view of this, no relaxation in qualification is required in case of the candidate as he possess M. Phil qualification. d. Mr Farooq is therefore entitled to the benefit of superannuation of at the age of 62 years as per the mentioned MHRD order. e. MHRD may be informed of the above and necessary orders for giving the benefit of Mr. d. Mr Farooq is therefore entitled to the benefit of superannuation of at the age of 62 years as per the mentioned MHRD order. e. MHRD may be informed of the above and necessary orders for giving the benefit of Mr. Farooq be issued thereafter.” Thereafter, these recommendations of the Board of Governors(BOGs) were sent to the competent authority, i.e. the Union of India through Ministry of Human Resource Development, New Delhi/ respondent No.1, who, in terms of communication dated 8th of January, 2018 (placed on record alongwith the objections as Annexure-R), did not accept the request made therein and communicated that the age of superannuation of the petitioner has to be 60 years. The respondents have further proceeded to state that in determining the age of superannuation of an employee of the Institute, the Board of Governors is only a recommendary authority and not the competent authority, therefore, the Board of Governors had sought approval from the competent authority, i.e. the respondent No.1, who, as stated hereinabove, did not accept the recommendations made by the Board of Governors and, in fact, notified the age of superannuation of the petitioner as 60 years. In the end, it has been prayed that the petition of the petitioner does not have any merit and, as such, same may be dismissed. 3. Heard the learned counsel for the parties, perused the record and considered the matter. 4. The claim of the petitioner to fix his age of superannuation from 60 to 62 years is mainly based on the recommendations of the Committee so constituted and the Board of Governors, which recommendations, however, have not been accepted by the Government of India, Ministry of Human Resource Development (MHRD), being the competent authority, as is brought to the fore from the perusal of the communication dated 8th of January, 2018 (placed on record as ‘Annexure R’ with the objections). 5. At the outset, what requires to be stated is that mere recommendations in favour of the petitioner in fixing his age of superannuation from 60 to 62 years does not vest him with any indefeasible right to claim continuation in the respondent Institute beyond the already fixed age of retirement by the competent authority. The Court has no power to enhance the age of retirement of an employee beyond the one fixed by the competent authority. The Court has no power to enhance the age of retirement of an employee beyond the one fixed by the competent authority. In the present case, though there are recommendations of the Committee as well as the Board of Governors for enhancement of the age of superannuation of the petitioner from 60 to 62 years, but same are only on paper as they have not been accepted by the competent authority, i.e. the Government of India, Ministry of Human Resource Development and no notification has been issued to that effect. Therefore, the claim of the petitioner has no substance, as such, is liable to be rejected. 6. Besides, the claim of the petitioner as regards the alleged discrimination meted out to him when compared with similar employees of various other similar Institutes in the country, on examination, is also found without any merit as the service conditions of the employees of the various Institutes are governed by the respective service rules notified by each Institute separately. The petitioner cannot claim application of the rules of some other Institutes, NIT Durgapur, etc. to be precise, to his case as the same is not permissible under service jurisprudence, therefore, there is no question of the petitioner being subjected to any discriminated, which may amount to violation of Articles 14 and 16 of the Constitution of India. 7. For all that has been said and done above, the petition of the petitioner is found to be meritless, as a corollary to which, same is dismissed alongwith all connected MPs. Interim directions, if any, subsisting as on date, shall stand vacated.