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Delhi High CourtIndian Cases

S. Dildar Haider vs Jamia Milia Islamia And Anr. on 18 August 2006

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Delhi High Court
S. Dildar Haider vs Jamia Milia Islamia And Anr. on 18 August, 2006
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT

S. Ravindra Bhat, J.

1. The writ petitioner here calls into question the decision of the first respondent, Jamia Milia Islamia (hereafter called the ‘Jamia’) to retire him from its services upon his completing 60 years age; he seeks a quashing order in respect of the letter dated 16.9.2002 and a direction that he is entitled to be continued in service till he completes 62 years.

1. The petitioner had applied for appointment to the post of Instructor in Leather Craft in the Jamia in 1972. He was declared successful and appointed to the post on 26.4.1980. The appointment letter expressed that the petitioner’s services were governed by the Rules and Regulations of the Jamia.

2. On 27.7.1998 the Central Government wrote to the second respondent (hereafter called ‘UGC’) regarding service conditions of teachers in all Central Universities and their Colleges as well as deemed Universities which were funded by the UGC, stating that it had decided to revise them. The Central Government also conveyed its decision to enhance the age of retirement of teachers from 60 to 62 years. The UGC was to formulate Regulations and the concerned Universities were to amend their Statutes/ Regulations. Consequently, on 24.12.1998 UGC issued a Notification containing Regulations which were to come into operation with immediate effect.

4. The relevant part of the letter dated 27.7.1998 dealing with the age of superannuation reads as follows:

(vi) Age of Superannuation The age of superannuation of university and college teachers would be 62 years and thereafter no extension in service should be given. However, it will be open to a university or college to re-employ a superannuated teacher according to the existing guidelines framed by the UGC up to the age of 65 years.
The Notification of the UGC, issued on 24th December, 1998 for revision of pay scales etc. dealing with superannuation of teachers and certain other employees, reads as follows:

16.0.0 SUPERANNUATION AND REMPLOYMENT OF TEACHERS 16.1.0 Teachers will retire at the age of 62. However, it is open to a University or a college to re-employ a superannuated teacher according to the existing guidelines framed by the UGC up to the age of 65 years.
16.2.0 Age of retirement of Registrars, Librarians, Physical Education personnel, Controllers of Examinations, Finance Officers and such other university employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years. No re-employment facility is recommended for the Registrars, Librarians and Directors of Physical Education.
5. On 16.9.2002 the Jamia issued the impugned order intimating that the petitioner would retire from its services on 31.10.2002. That order reads as follows:

Office Order:
On attaining the age of superannuation, Mr. Dildar Haider, Instructor, Dept. of I.A.S.E. Shall retire from Jamia’s services on 31.10.2002. The personal records, service book, P.F. Account, retirement benefits in respect of Mr. Dildar Haider may be kept in readiness so that the retiring employee may get his dues well in time.
Sd/-
(MOHD MOINUDDIN) ASSTT. REGISTRAR (R.B. CELL)
6. After the issuance of the letter the petitioner represented for its recall and claimed that he ought to be continued in services till he attained age of 62 years. However, the Jamia declined his request. He therefore superannuated, in terms of the letter, on 30th October, 2002.

7. It is averred that both in terms of the decision of the Central Government and the UGC as well as the Ordinances and Regulations of the Jamia, the petitioner has to be considered as a Member of the teaching staff, entitled to the benefit of retirement age of 62 years. Reliance had been placed on the provisions of the Regulations and Ordinances governing the Jamia. It is also averred that the petitioner’s qualification as B.Ed degree holder, bears out his claim to be a teacher; he has also relied upon the time tables issued by Jamia, academic content of the courses dealing with his job and the fact that he was a member of the Board of Studies, constituted by the Jamia. It is also averred that the petitioner is a member of the Jamia Teachers Association. It was also claimed that the petitioner’s nature of work is essentially academic or teaching and that he was often nominated by the Vice Chancellor as Member of the Flying Squad to monitor annual examination and was also appointed as an Invigilator. The petitioner has further placed reliance on an advertisement issued in 2002 inviting applications for Instructor under the Head/Title ‘Teaching/Academic post’

8. It is averred that the Jamia’s decision to deny the request of the petitioner to be continued till he attained 62 years is arbitrary. The materials on record overwhelmingly show that the post of Instructor held by him always was and continues to be treated as a teaching post and, therefore, the decision to retire him upon is attaining 60 years is illegal.

9. The Jamia in its counter affidavit avers that in 1998 revision of Pay Scales of teachers in Universities/ Colleges took place upon recommendations of the 5th Pay Commission. It has relied upon the extract of the UGC Notification of July, 1998 which has been quoted above.

10. The Jamia further avers that it sought a clarification from the UGC as to whether other categories of staff, including Instructors could be given the benefit of enhanced superannuation following directives of the Central Government that decision to enhance age to various categories ought to be taken by the University concerned. It is claimed that on 6.9.2002 the UGC responded, stating, inter alia, that the post of Instructor was a technical and non- teaching post and that persons holding such posts should invariably be given benefits as applicable to other non-teaching posts in the University.

11. The UGC in its counter affidavit also refers to the decision taken in 1998 as well as its advise to the Jamia. In addition reliance has been placed upon a letter of the UGC written to the Delhi University stating that retirement age of non-teaching employees was 60 years and not 62 years.

12. The Jamia had filed an additional counter affidavit on 18.11.2004 producing certain documents, including an Office Order dated 7.1.2002. This order had granted the benefit of Assured Career Progression (ACP) Scheme and placed certain employees in the higher pay scale, in the non-teaching category. The petitioner had received that benefit. It has also relied upon the full text of the Annexure to the UGC Notification of 1998, in regard to revision of pay scales of teachers in Universities. As per the Annexure filed later with affidavit on 30.9.2005, several categories of employees were given the benefit of pay revision in Universities and colleges.

13. The respondents, therefore, allege that the petitioner cannot rely upon provisions of the Ordinances and Regulations of the Jamia and certain other documents to contend that he is a teacher and engaged in academic and teaching work in the Jaima. Therefore, he would not be entitled to the enhanced age of retirement of 62 years.

14. Mr. Reetesh Singh, learned Counsel submitted that the petitioner’s appointment clearly stipulated that he was governed by the terms and conditions applicable to the Jamia. As per the relevant conditions, namely Regulation/ Ordinances LXII(1) and (3), he fell into the category of staff appointed to academically assist in teaching and therefore was a member of the academic staff. Counsel also placed reliance on Regulation (xi) which included Instructions in the class of teaching staff.

15. Counsel placed considerable reliance on the Minutes of Meetings of the Board of Studies as well as the time table produced along with the petition to support the claim that the petitioner was a member of the academic staff. It was contended that as a member of the Board of Studies, the petitioner was directly engaged in defining the course content; which was ordinarily a teaching function. He also placed much emphasis on the time tables to establish that the petitioner’s job was that of a teacher. Likewise, the other documents produced along with the petition such as the deployment of the various personnel in examinations, Invigilator’s duties etc disclosed that the job of Instructor was to teach the students.

16. Counsel contended that the respondents themselves consistently treated the post of Instructor as an academic one; as late as in 2002 by virtue of the advertisement issued, Instructors were treated as members of the teaching staff.

17. It was contended that even after Jaima became a University governed by Statute, no change was effected in the Regulations and Ordinances, which continued to treat Instructors as teachers. It was, therefore, submitted that the Jamia was estopped from contending that the teacher was not a teacher.

18. Counsel lastly contended that nothing in the terms of the UGC’s instructions, circulars or the directions of the Central Government inhibited extending the benefit of enhanced/higher age of retirement to Instructors.

19. Learned Counsel for the respondents stated that even though the Ordinances and Regulations classified Instructors as Members of Academic Staff, that alone was not determinative of the issues. It was contended that the benefit of UGC’s Circulars changing the service conditions, including enhancement of superannuation age, were only in respect of teachers. Only those non-teaching staff who were expressly granted identical benefits could be entitled to it. The Notification of the Central Government dated 27.7.1998 and Regulations framed by the UGC and communicated on 24.12.1998, were relied upon.

20. It was next contended that the pay structure and other conditions of service of Instructors on the one hand and the other teachers were always different. Likewise, the teaching staff such as Lecturers, Readers and Professors, re- categorized under the UGC’s Guidelines, were to have higher pay scale, and possess qualifications unlike in the case of Instructors whose academic qualifications were lower. Under these circumstances, the petitioner’s claim to be a part of the academic staff, solely premised upon the description in the Regulations and Ordinances and based upon some other documents, could not be upheld.

21. Counsel lastly stated that the petitioner had been given the ACP benefits on the premise of his being a member of the non-teaching staff, by order dated 7.1.2002. For this purpose, he relied upon on that order. It was contended that the Scheme for revision of pay scales and service conditions of University and College teachers were entirely different in respect of teaching staff as compared with non-teaching staff to which the petitioner belonged. The Annexure to the statement based on the letter dated 6.11.1998 only mentioned demonstrators/ tutors as eligible to the revised pay scale of Rs. 5500-9000, provided they worked in Colleges. As far as those working in Universities were concerned they were not even entitled to such revision and specific head of ‘University and College teachers’ contained only five categories which did not include Instructors. The basic entry level in the revised scale of lecturers was Rs. 8,000 to 13,500 whereas the pay scale of Demonstrators/ Tutors was Rs. 5500-9000.

22.The relevant portions of the Ordinances relied upon, which indisputably govern Jamia Milia are as follows:

ORDINANCE LXII ACADEMIC STAFF
1. The Academic Staff of the University shall mean and include such Categories of Staff as are appointed to conduct research or to academically assist in teaching/research, or preparation of books and reading material, or in other allied activities of academic nature.
2. …
3. Such other categories of the University employees, as may be assigned as Academic Staff by the Majlis-I-Muntazimah (Executive Council) from time to time.
23. Regulation XI which governs Jamia Milia reads as follows:

THE TEACHING STAFF
1. Teachers of the Jamia shall be in the following grades, that is to say, Professors, Readers, Lecturers, Assistant Lecturers, Junior Lecturers, Research Assistants, Instructors and other teachers in so far as they take part in the teaching of the Jamia and shall be paid salaries on such scales as the Majlis-I- Muntazimah may direct.
24. The above factual narration discloses the following:

[a] In terms of the existing ordinances and regulations of Jamia, instructors have been included in the description of academic/teaching staff;
[b] The Jamia has been assigning some teaching functions or duties to the petitioner;
[c] The Petitioner was appointed to the Board of studies, an academic body;
[d] On occasions, the petitioner was assigned invigilation duties.
[e] The age of retirement of categories admitted to belong to academic posts (professor, reader and Lecturer) as well as instructors, before The 1998 Policy, was the same, i.e. 60 years, as in the case of instructors;
[f] The UGC guidelines of 27.07.1998, 06.11.1998 and notification dated 24.12.1998 increased the age of retirement for teaching and certain non-teaching posts from 60 years to 62 years.
[g] UGC guidelines differentiate between teaching and non-teaching categories of posts in respect of educational qualifications, career advancement and pay-scales.
25. The Jamia does not deny that as per the ordinances and Regulations (which remain unchanged, after the 1998 UGC guidelines) instructors fall within the category of academic and teaching staff. Its main defense however is that ‘teaching’ staff is restricted in its connotation, and comprehends only those engaged in, and entitled to engage in imparting education, and though instructors may be ‘teachers’ in a loose, generic sense, they at best engage in peripheral or supporting teaching activities, and are not entitled to be in the same class as professors, readers or lecturers.

26. The Jamia also relies on the circumstance that the revision in pay-scale, career advancement and other terms and conditions of teaching staff were structured differently from non-teaching staff. The qualifications prescribed for the two categories are different. The other factor relied on is that the petitioner is a beneficiary to the ACP-granted to Jamia’s non-teaching staff by the order dated 7.1.2002.

27. The above analysis shows that as per existing ‘unamended’ Regulations instructors are part of academic/teaching staff. Functionally too, the petitioner was given some teaching work. He was included in the board of studies. Equally, he does not hold the qualifications prescribed for academic staff involved only in teaching (lecturers, readers and professor). His pay- scale is different, as also other service conditions.

28. The first notification of UGC of 1998 prescribed that age of superannuation of teachers would be 62 years. The regulations, notified later, by para 16.2.0 states that the age of retirement of certain non-teaching staff and others treated ‘at par’ with such teachers would be 62 years. The letter of 06.11.1998 by which UGC clarified the age of retirement of instructors, stated that Registrar, Controllers of examination, Finance Officers and ‘such other university employees who are being treated at par with the teachers and whose age of superannuation was 60 years’ would henceforth superannuate on attaining 62 years. The letter dated 06.09.2002 issued on the specific request of Jamia, on the other hand, reads as follows:

Sir, With reference to your letter No. Gen ‘312(RBC)/RO/2002/DR-862 dated 5th August 2002, on the subject mentioned above, I am directed to say as under:
The posts of 1. Instructor 2. Research Assistant 3. Workshop Superintendent 4. Head of Section and 5. Training and placement officer are technical and non-teaching posts. It is therefore for compliance that the persons holding these posts should invariably be given the benefits as applicable to other non-teaching posts in the University.
29. It is apparent, therefore that some distinction was sought to be made initially between teaching and non-teaching staff, as seen from the two circulars/letters dated 27.07.1998 and 06.11.1998. These were later treated in a somewhat different fashion, by the Notification of UGC issued on 24.12.1998. Para 16.1.0 admittedly talks of teachers. Para 16.2.0 mandates that Registrars, Librarians, Physical Educational Personnel, Controllers of Examination, Finance Officers and ‘such other University employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years’. This, latter provision indisputably applies to non-teaching personnel, such as Registrars, Librarians, Finance Officers, etc. They do not perform any teaching activity, and their job content is purely non-academic. Yet, their age of retirement was at par with teachers, and therefore, enhanced to 62 years.

30. If the contextual setting of the ‘clarificatory’ letter of 06.09.2002 were to be seen, it would be apparent that instructors, even if assumed to be manning non-teaching posts, cannot be worse off than staff members who have nothing to do with academics and teaching, but perform administrative duties. Therefore the reference to instructors being entitled to benefits applicable to other non- teaching staff has, in the very least, to be understood as an equation with such personnel (Registrars, Librarians, Finance Officer, etc). This gathers support from the decision of the Supreme Court in Sher Singh v. Union of India where it was held that Librarians/Library Staff cannot be equated with teaching staff. However, in this case, the Jamia has proceeded to equate them, for purpose of age of superannuation. In these circumstances, the Petitioner’s submission that having regard to the ordinances and regulations, and other materials which disclose that he was treated as a teacher, assigned teaching work, and has been described as such, it cannot be said that he falls outside the category of University Employees, who are being treated at par with teachers, for purpose of age of superannuation, is of some merit. It is also not denied that his age of retirement was 60 years, like in the case of the ‘admitted’ category of teachers.

31. The above conclusion is supported by the circumstance that a pre-existing parity (vis-a-vis age of superannuation) existed between instructors and other teachers. The UGC guidelines, particularly para 16.2.0 expressly granted circumstantial flexibility to the individual institutions, such as Jamia, to preserve that parity by referring to an entire class of University ’employees’ being treated on par with teachers, on that issue.

32. The Jamia had relied heavily on the points of difference in regard to qualifications, career advancement structure, and pay-scales as between instructors and other teachers. Had the claim for parity been laid by the instructors, (in regard to one or the other conditions of service) for the first time, these points of difference could have been determinative. However, these points of difference always existed, even before the 1998 Scheme of UGC. But, the singular feature was that parity as regards the age of superannuation existed. No attempt was made to show how that parity has been departed from, much less its rationale, if indeed there is a departure. The UGC guidelines, and the clarificatory letter of 06.09.2002 do not per se state that Instructors are non-teaching posts who were not ‘treated at par’ under para 16.2.0 and were not previously enjoying the same age of retirement as other teachers. Therefore, the argument of Jamia, based pre-existing differentia, pales into insignificance.

33. The Supreme Court, in its decision reported as Osmania University v. V.S. Muthurangam had held that in regard to parity between teaching and non-teaching staff in respect of age of superannuation, though the two categories could not be equated, yet, having regard to the statutory mandate to grant parity ‘as far as possible’ the University ought to prescribe the same age of retirement, in the absence of any statutory prohibition. In this case too, the notification which prescribed the age of 62 years, stipulated, by para 16.2.0 that other University employees, with superannuation age of 60 years (like teachers) and treated ‘at par’ with them ‘in that regard’ must also receive the benefit of enhanced age of retirement. The object of naming a few posts (Registrars, Librarians, etc) and extending coverage of the benefit, ‘others’ therefore was to be expansive the others necessarily had to be like teachers, (or Registrars/ Librarians) but could never be intended to be only teachers. If the intendment was not to grant benefit of enhanced age of retirement to employees who were at par with teachers -in that respect, like Instructor, the Jamia has not clarified as to who would fall within its sweep. Besides, the reference to ‘others’ has to be given meaning and content- as indeed would be case if it is held to cover instructors; any other interpretation would render the latter part of para 16.2.0 a surplusage.

34. For the above reasons, I find that the petitioner was entitled to the enhanced age of superannuation. Consequently, the impugned letter is hereby quashed. The first respondent is directed to treat the petitioner as having continued in its service till he attained the age of 62 years. The said respondent shall pay the salary for the said period of two years, after adjusting the amount of pension disbursed. Consequential benefits such as enhanced gratuity, provident fund, and higher pension shall be re-fixed, and the differential amounts paid, to the petitioner. All payments directed to be made shall be released/paid to the Petitioner within 8 weeks, along with Rs. 15,000/- as costs, which too shall be paid within the same period.

35. The writ Petition is allowed in terms of the above directions.