Madhya Pradesh High Court
Dr. Reena Basu vs Union Of India on 15 March, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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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.
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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:
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(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 4 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 5 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 6 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. 7
(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 8 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 9 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 10 (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 11 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 12 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 13 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 14 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.15
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 16 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 17 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 18 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.
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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 20 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 21 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 22 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.
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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 24 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 25 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.26
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 27 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 28 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 29 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'