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Allahabad High Court · body

2019 DIGILAW 810 (ALL)

Razia Bano Rizvi v. Union of India

2019-04-01

ASHWANI KUMAR MISHRA

body2019
ORDER : Ashwani Kumar Mishra, J. 1. The short question that arises for consideration in this petition is as to what would be the age of superannuation for the incumbent holding the post of Deputy Director of Physical Education & Sports, Women College, Aligarh Muslim University, Aligarh. An incidental issue also arises as to whether the incumbent holding such post would be treated to be a member of the teaching staff or non-teaching staff? 2. Perusal of the record would go to show that University authorities have taken a decision to superannuate the petitioner, who holds the post of Deputy Director of Physical Education & Sports, at the age of 62 years, by treating her to be a member of the non-teaching staff. This decision is assailed by the petitioner on following two grounds:- (i) That under the UGC Regulations 2010, the post in question has been treated as a non-vocational teacher and, therefore, in the matter of superannuation, petitioner is to be treated as a member of teaching staff. (ii) Petitioner claims parity with the judgment of the Delhi High Court in Writ Petition No. 7130 of 2011 decided on 18.5.2012, pertaining to a similar employee of the Jawahar Lal Nehru University, New Delhi. 3. Learned counsel for the petitioner submits that decision of the authorities in treating the petitioner to be a member of non-teaching staff is, therefore, arbitrary. 4. Learned counsel, representing the University, on the other hand places reliance upon the provision of the UGC Regulations as well as specific orders passed by the appropriate Government, which is Central Government in the present case relating to the determination of age of superannuation of such employees. Learned counsel with vehemence submits that it is the appropriate Government which alone has the competence to determine the age of superannuation and University is bound by those directions. 5. I have heard learned counsel for the parties and perused the materials brought on record. 6. It is not in issue that Aligarh Muslim University is a Central University and being an Institute of higher education would be regulated by the appropriate legislation made by the Parliament by virtue of Entry 66 List 1 of the Seventh Schedule to the Constitution of India. University Grants Commission Act, 1956 has been enacted by the Parliament and its provisions would be applicable. University Grants Commission Act, 1956 has been enacted by the Parliament and its provisions would be applicable. Regulations have been framed by the University Grants Commission in the year 2010, which also contains an Appendix, dated 31st December, 2008. This Appendix contains directions of the Central Government in the matter of revision of pay of teachers and equivalent cadres in Universities and Colleges following the revision of pay-scales of Central Government on the recommendation of the sixth pay-commission. Clause 8 of this Circular contains other terms and conditions which include age of superannuation in Clause (f). Sub-clause (iii) of Clause (f) is relevant for the present purposes and is reproduced hereinafter:- "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." (Emphasis supplied by me) 7. Learned counsel for the University has also placed before the Court, a subsequent Circular of the Central Government, dated 2nd November, 2017, issued consequent upon introduction of the recommendation of seventh pay-commission for the University concerned. Clause 12 of this Circular deals with superannuation and re-employment. Existing provisions regarding superannuation and reemployment of teachers are continued even after introduction of the seventh pay-commission. Submission is that the age of superannuation determined at 62 years in respect of the post in question, therefore, continues even after the introduction of seventh pay-commission. 8. Learned counsel for the petitioner has also placed reliance upon the UGC Regulations of 2010 and an Office Memo dated 19th August, 2016, as per which a Committee was constituted for resolving cadre dispute which included the post in question. This Committee has submitted its report which is heavily relied upon by the petitioner. 8. Learned counsel for the petitioner has also placed reliance upon the UGC Regulations of 2010 and an Office Memo dated 19th August, 2016, as per which a Committee was constituted for resolving cadre dispute which included the post in question. This Committee has submitted its report which is heavily relied upon by the petitioner. Clause 3 of the report dated 12.5.2017 is reproduced hereinafter:- "The above Committee submitted its report on 17.02.2017 with following recommendations: (1) UGC has re-designated Assistant Director of Physical Education/Director of Physical Education as Non vocational Teacher of the University as per 'UGC regulations 2010' already adopted by the University, therefore, the Committee recommends that ADPE/Deputy Director/Director of Physical Education be re-designated as Non-vocational Teachers in the Department of Physical Education, University Games Committee and Women's College (2) However, the post of Assistant Director of Physical Education/Deputy Director of Physical Education/Director of Physical Education will not be converted under any circumstances into Assistant Professor/Associate Professor/Professor respectively and neither they will be at par with them as they as they have not been selected as per procedure laid down under Statute 27 of the Statutes of the University." 9. Learned counsel for the petitioner placed reliance upon the first part of the recommendation, as per which, the post of Deputy Director of Physical Education is to be re-designated as non-vocational teacher in the Department of Physical Education. What is sought to be urged, as a consequence thereof, is that on account of aforesaid recommendation the post is to be treated as a post falling in the teaching cadre so as to extend the age of superannuation for such class of employees to 65 years. This argument proceeds upon complete ignorance of the second part of the same report which says that post of Assistant Director of Physical Education/Deputy Director of Physical Education would not be converted under any circumstances into Assistant Professor/Associate Professor/Professor respectively and would not be at par with them as they have not been selected as per procedure laid down under Statute 27 of the Statutes of the University. 10. The obvious conclusion from the aforesaid recommendation would be that though post is to be treated in the category of non-vocational teacher but they are not to be treated as Assistant Professor/Associate Professor/Professor respectively for the reason that they are not recruited as per Statute 27 which deals with recruitment of teaching staff. 10. The obvious conclusion from the aforesaid recommendation would be that though post is to be treated in the category of non-vocational teacher but they are not to be treated as Assistant Professor/Associate Professor/Professor respectively for the reason that they are not recruited as per Statute 27 which deals with recruitment of teaching staff. 11. It transpires that certain privileges as are provided for in the UGC Regulations 2010 alone are extended to the persons holding post of Deputy Director of Physical Education and that entire benefits which are otherwise available to the teaching staff have not been extended to the Deputy Director of Physical Education. The appropriate government has already issued specific directions regarding age of superannuation for the Deputy Director on 31.8.2008 which is an appendix to the UGC Regulations of 2010. Being a part of the same UGC Regulations of 2010 a harmonious contention of the two aspects would be desirable. 12. The mere fact that the Deputy Director of Physical Education & Sports is to be treated as non-vocational teacher would not mean that incumbent would be treated as teacher or member of teaching staff so as to extend its age of superannuation to 65 years. The argument advanced on behalf of the petitioner, therefore, cannot be accepted. It is otherwise settled that determination of age of superannuation of a class of employee is the prerogative of the employer. Such right is ordinarily not to be interfered with unless the employer is shown to be acting in an arbitrary manner. The grant of privileges of non-vocational teachers upon members of non-teaching staff including Deputy Director would have the effect of creating a distinct class of employee who would hold the status of non-vocational teachers in the University. Such employees, therefore, form a separate category and in the matter of determination of age of superannuation they cannot claim parity with the members of the teaching staffs, particularly when in respect of the post in question there is otherwise a specific order by the competent authority holding their age to be 62 years. It would be worth reiterating that the Government Notification dated 31st December, 2008 is also a part of the UGC Regulations of 2010 and would have to be given due respect. It would be worth reiterating that the Government Notification dated 31st December, 2008 is also a part of the UGC Regulations of 2010 and would have to be given due respect. Moreover, this decision clearly states that there is shortage of members of teaching staff and, therefore, the appropriate government has taken a decision to extend the age of teaching staff from 62 year to 65 years. However, there does not exist any such shortage of Librarians and Director of Physical Education nor any plea is set up in that regard. This observation contained in the letter of the Central Government dated 31st December, 2008 is otherwise not shown to be perverse or arbitrary. The direction of the Central Government contained in notification dated 31st December, 2008 as reinforced on 2nd November, 2017 are otherwise not under challenge. In that view of the matter, the petitioner's contention that an arbitrary treatment is being extended to the Deputy Director of Physical Education & Sports in the matter of determining its age of superannuation cannot be accepted. 13. Turning to the second part of the submission advanced by learned counsel for the petitioner, on the strength of the judgment delivered by Delhi High Court, this Court finds that the Division Bench of the Delhi High Court had observed as under in paragraphs 23 and 24 of the judgment:- "23. We have considered the submissions of learned counsel on both sides. At the outset, we would like to point out that fixing of retirement age of an employee is the prerogative of the Government. Thus, it is for the Government, as employer, to decide what is the appropriate age of superannuation of different classes of employees. Since this is the Executive's function in which Courts have no role, Courts would be loath to interfere with such a decision of the Executive fixing age of retirement. In State of U.P. & Ors. v. Hirendra Pal Singh (2011) 5 SCC 305 , Supreme Court had explained this principle in the following manner: "8. ...So far as the issue of reduction of age from 62 to 60 years is concerned, it has not been brought to the notice of the High Court that it is within the exclusive domain of the State Government to reduce the age even in Government services. ...So far as the issue of reduction of age from 62 to 60 years is concerned, it has not been brought to the notice of the High Court that it is within the exclusive domain of the State Government to reduce the age even in Government services. So in case of purely professional engagement, the age could validly be reduced by the State Government unilaterally. 9. A Constitution Bench of this Court in Bishun Narain Misra v. The State of Uttar Pradesh and Ors., AIR 1965 SC 1567 held that new rule reducing the age of retirement from 58 to 55 years could neither be invalid nor could be held to be retrospective as the said rule was a method adopted to tide over the difficult situation which could arise in public services if the new rule was applied at once and also to meet any financial objection arising in enforcement of the new rule. 10. In Roshan Lal Tandon v. Union of India and Ors., AIR 1967 SC 1889 , a similar view has been reiterated by this Court observing that emoluments of the Government servant and his terms of service could be altered by the employer unilaterally for the reason that conditions of service are governed by statutory rules which can be unilaterally altered by the Government without the consent of the employee. (See also B.S. Vadera v. Union of India and Ors., AIR 1969 SC 118 ; The State of Jammu and Kashmir v. Triloki Nath Khosa and Ors., AIR 1974 SC 1 ; B.S. Yadav and Ors. v. State of Haryana and Ors., AIR 1981 SC 561 ; and State of Jammu and Kashmir v. Shiv Ram Sharma, AIR 1999 SC 2012 . 11. In K. Nagaraj and Ors. v. State of Andhra Pradesh, AIR 1985 SC 551 , this Court examined the amended provisions of Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance, 1983 by which the age of retirement was reduced from 58 to 55 years and this Court upheld the amended provisions being neither arbitrary nor irrational. The court further rejected the submission of the Appellants therein that the said amended provisions would have retrospective application taking away their accrued rights. (See also State of Andhra Pradesh etc. etc. v. S.K. Mohinuddin, AIR 1994 SC 1474 )." 24. The court further rejected the submission of the Appellants therein that the said amended provisions would have retrospective application taking away their accrued rights. (See also State of Andhra Pradesh etc. etc. v. S.K. Mohinuddin, AIR 1994 SC 1474 )." 24. As a fortiori, it also becomes the prerogative of the Government to enhance the age of superannuation. Furthermore, while doing so, it is again the prerogative of the Government/employer to increase the age of superannuation in respect of certain categories of employees only. However, it would be with one caveat. When age of superannuation is increased in respect of a particular class of employees, then it has to be made applicable to all employees falling in the same category as otherwise it would result in invidious discrimination. Thus, if certain categories of employees who belong to same class are left out, they can legitimately make grievance and question the decision of the Government on the ground that it amounts to hostile discrimination and is thus violative of Article 14 of the Constitution." 14. Having said so, the Court proceeded to examine the facts of the particular case in question and it was found as a matter of fact that there existed shortage of Deputy Directors of Physical Education and Librarians also in the University, inasmuch as, about 52% vacancies had not been filled so far. The observation of the Delhi High Court in that regard is reproduced hereinafter: "At the same time, reason for denying this benefit to Librarians and DPEs is that there is no shortage in their categories. However, the UGC's own website shows that there is dearth of DPEs and Librarians. The contention of the petitioners appears to be correct when they argue that no survey has been conducted by any of the entities before coming to the aforesaid conclusion that there is no shortage of DPEs and Librarians. The petitioners have filed the data from the UGC's own website which recognizes the fact that nearly 52% of vacancies of DPEs are not filled and same is the position of Librarians and this fact was not disputed by the respondents. The petitioners have filed the data from the UGC's own website which recognizes the fact that nearly 52% of vacancies of DPEs are not filled and same is the position of Librarians and this fact was not disputed by the respondents. This website shows the following status of staff in library and physical education of the Ministry: Status of Staff in Library and Physical Education in Universities Sanctioned Filled Vacant Vacant % LIBRARIAN 38 19 19 50 DEPUTY LIBRARIAN 45 28 17 38 ASSISTANT LIBRARIAN 187 130 57 30 DIRECTOR OF PHYSICAL EDUCATION 21 10 11 52 DEPUTY DIRECTOR OF PHYSICAL EDUCATION 11 10 1 9 ASSISTANT DIRECTOR OF PHYSICAL EDUCATION 76 54 22 29 15. It was in that context that the Division Bench directed the age of Deputy Director to be reconsidered by the University concerned. The determination by the Delhi High Court is an adjudication on the factual aspects of the particular case and the distinguishing characteristics noticed therein do not arise in the facts of the present case. The Division Bench, therefore, is clearly distinguishable. 16. In view of the specific determination of the age of superannuation for the Deputy Director of Physical Education under the Government Order/Circular of the Central Government dated 31st December, 2008 as well as the subsequent determination made in the Circular dated 2.11.2017 this Court has no hesitation in holding that merely for the reason that post of Deputy Director of Physical Education is to be treated as a post in non-vocational teacher category, the incumbent of the post would not be entitled to parity in the determination of age of superannuation viz-a-viz a member of the teaching staff. The determination of age of superannuation by the Central Government stands for the Deputy Director concerned at 62 years and, therefore, this Court finds no good ground to interfere in the matter. The writ petition is, accordingly, dismissed. 17. Dismissal of this petition, however, would not deny the petitioner to grant of other privileges extended under the UGC Regulations to member of non-vocational teaching staff.