Central Administrative Tribunal - Delhi
Dr. B.K. Kapoor vs Govt. Of Nct Of Delhi on 15 April, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-598/2013
Reserved on : 08.04.2013.
Pronounced on :15.04.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Dr. B.K. Kapoor,
S/o Sh. Manohar Lal Kapoor,
R/o House No. 1055, Gandhi Gali,
Fatehpuri,
Delhi-6. . Applicant
(through Sh. K.P. Gupta, Advocate)
Versus
1. Govt. of NCT of Delhi,
Delhi Secretariat,
I.P. Estate,
New Delhi-2,
Through its : Chief Secretary.
2. The Secretary (Education),
Ex. Officio Chairman (SCERT),
Old Secretariat,
Delhi.
3. State Council of Educational Research
& Training (SCERT),
Varun Marg, Defence Colony,
New Delhi,
Through its Director. . Respondents
(through Sh. N.K. Singh for Mrs. Avnish Ahlawat, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(i) Appropriate directions to the respondents to extend the services of the applicant for a period of two years as Sr. Lecturer since the next day of his retirement i.e. with effect from 01.04.2013 to 31.03.2015 with all benefits attached to the said post;
OR IN ALTERNATIVE
(ii) Direct the respondents to grant re-employment for two years in accordance with notification No. F.30-3[28]/Co-Ord/2006/1689-703 dated 29.01.2007 read with order bearing No. F.30-3[28]/Co-Ord/2006/4637 72 dated 28.02.2007 and Order No. F.32(8)/2011/SB/E.dn./136 155 dated 27.01.2012 (Annexure-A5(Colly));
(iii) Award the cost for the present petition;
(iv) Any other or further relief, which this Honble Tribunal deems fit and proper in the circumstances of the case, in favour of the applicant and against the respondent.
2. Brief facts of the case are that the applicant was working as Senior Lecturer in SCERT and was apprehending that the respondents will retire him on 31.03.2013 on his attaining the age of 60 years (he has since been retired). According to the applicant, the SCERT was established in 1980-81 as a part of Directorate of Education, Delhi with a view to improve the quality of education. In the year 1986 the National Policy of Education came into existence and it envisaged SCERT as an autonomous body registered as a Society under the Societies Registration Act, 1860 with the object of assisting and advising the Govt. of National Capital Territory of Delhi (GNCTD) in the implementation of its policies and major programs in the field of Education, Women and Child Development, National Integration and other related affairs. The SCERT was registered as a society on 27.05.1988. It has its own Memorandum of Association and it functions according to its Rules and Regulations. Respondent No.1., i.e. Chief Secretary, Delhi, GNCTD is its President while respondent No. 2, Secretary, Education is the Ex-Officio Chairman. The terms and conditions of academic staff are governed by Regulation-67, which reads as under:-
Terms and tenure of service of Academic Staff:
The terms and tenure of service of Academic Staff at the council shall remain the same as available for the Academic Staff of the National Council of Educational Research & Training. The applicant has further stated that the academic staff of NCERT superannuates at the age of 62 years as is clear from their Circular dated 11.11.1998 read with Circular dated 27.07.1998 given at Annexure-A3 of the OA. The contention of the applicant is that in terms of Regulation-67 mentioned above, he should also be extended benefit of enhanced age of retirement from 60 to 62 years as has been done in the case of his counterparts in NCERT. He has quoted the case of one of his colleagues Dr. T.C. Sharma, who had approached the Honble High Court of Delhi in Writ Petition (C) No. 48/1999 when he was informed by the respondents that he (Dr. Sharma) would stand superannuated at the age of 60 years. The said Petition was allowed by the Honble High Court. SLP No. 1620/2000 preferred by the respondents against the aforesaid judgment of the Honble High Court was also dismissed vide order dated 04.02.2000. Dr. Sharma was allowed the benefit of enhanced age of retirement. Similarly, one other colleague, namely, Dr. D.K. Roy was also allowed this benefit. The applicant has admitted that after the aforesaid judgment, the respondents amended Regulation-67 vide Notification dated 07.12.1999, which reads as under:-
The terms and tenure of service of Academic and other staff of the Council should remain the same as available for the Academic and other Staff of the Directorate of Education, GNCT of Delhi with such modifications that may be specifically adopted by the Executive Committee from time to time. However, the Governing Body of NCERT Council in its meeting held on 19.08.2008 again replaced the Notification dated 07.12.1999 with aforesaid Regulation-67 with immediate effect vide Notification dated 13.10.2009. In accordance with the said Notification, the position as it existed at the time of granting benefit to Dr. T.C. Sharma and Dr. D.K. Roy has been restored and therefore the applicant claims that this benefit should also be extended to him.
3. The applicant claims that as per Rule-26 of the aforesaid Rules of SCERT, Councils affairs are conducted by the Executive Committee which includes besides various Government servants, Director, NCERT, Director SCERT, Director NIEPA etc. Rule-42 provides that Executive Committee shall have control over the Management of the affairs of the Council which have the authority to exercise all the powers as delegated from the Council from time to time. Regulation-63 empowers the Executive Committee to frame and amend Regulations. Regulation-45 empowers the Executive Committee to enter into arrangement with the administration for furtherance of its objectives. The applicant contends that all these rules prove that SCERT enjoins full autonomy and Govt. of NCT of Delhi has no pervasive control over it since it is not a department of Govt. of NCT of Delhi. Further, the Governing Body of SCERT in its meeting held on 19.08.2008 passed a Resolution as follows:-
a. Autonomy of SCERT shall be maintained in letter and spirit and Governing Body is supreme body of SCERT and its decisions are final.
b. The Governing Body of SCERT shall have absolute power to frame policies, rule and regulation and Rule for SCERT and its Staff while EC takes decision on implementation approved by Governing Body.
c. The Executive Committee shall carry out the object of the Council and shall have under its control the Management of all affairs and funds of the Council and shall have authority to exercise all the powers as delegated by the Council from time to time. On the basis of above, the applicant has claimed that SCERT is fully empowered to restore Regulation-67 and the respondents are duty bound to act in terms of this Regulation and grant the benefit of enhanced age to the applicant. The Honble Supreme Court in its judgment dated 14.08.2007 in the case of Lt. Governor of Delhi & Ors. Vs. V.K. Sodhi & Ors. (Appeal (Civil) No. 3272/2003) also held that the Executive Committee of the Council is its main Authority. Honble Supreme court observed as under:-
The Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control.
4. The applicant has further stated that in case this Tribunal arrives at a conclusion that the tenure of service of academic staff of SCERT should remain the same as available to the academic and other staff of Directorate of Education of Govt. of NCT of Delhi in accordance with Notification dated 29.01.2007 read with orders dated 28.02.2007 and 27.01.2012. The applicant has quoted the cases of four senior Lecturers, namely, Dr. R.K. Dabas, Sh. S.K. Kapoor, Mrs. Shyama Ranjan and Mrs. Rakesh Arora who have been re-employed by the Directorate of Education after they had attained 60 years of age.
5. The respondents in their reply have stated that NCERT and SCERT are governed by their separate Rules and Regulations and there is no connection between the two as regards service conditions of the employees, after amendment of Regulation-67 of the Memorandum of Association of SCERT. They have admitted that Dr. T.C. Sharma had been allowed to superannuate at the age of 62 years in view of the Regulation-67 which was in existence at that time. However, the same was amended by Notification dated 07.12.1999 after which the terms and tenure of service of staff of SCERT were changed and made at par with the Directorate of Education. Further, the Planning Department of Education revised the Pattern of Assistance for release of grant-in-aid to SCERT vide letter dated 23.03.2005. As per Clause-17 (ii) of this Pattern of Assistance, the Recruitment Rules, Welfare Schemes of the employees and other service related matter will be decided by the EC of SCERT only with the prior permission of Govt. of Delhi. Thus, SCERT has all the authority and control to amend its Regulations but as far as service conditions of employees are concerned, it can be done with the prior approval of the Govt. of Delhi. The respondents have emphasized that SCERT is 100% Grantee institution of Govt. of Delhi who has to abide by the instructions of that Government. According to them SCERT enjoins full functional autonomy but not financial autonomy because it is a Grantee Institution of Govt. of Delhi. The respondents have further stated that SCERT took no prior permission of Govt. of Delhi, as per available records before passing a Resolution to restore Regulation-67 dealing with the service conditions of the employees. Since this is contrary to the condition prescribed under Clause-17(ii) of Pattern of Assistance, its restoration is not binding at all. Further, the Finance Department has categorically rejected the re-employment of retired Lecturers of SCERT with the specific observation that the Notification of Department of Education on this subject, which was issued in pursuance of Cabinet decision in case of government Lecturers is not applicable to SCERT. The respondents have gone on to say that as per Fundamental Rule-56(a) provides as follows:-
Except as otherwise provided in this rule, every Govt. Servant shall retire from the service on the afternoon of the last day of the month in which he attains the age of sixty years;
6. We have heard both sides and perused the material on record.
7. The main issue for our determination is whether restoration of Regulation-67 done by the Executive Committee of SCERT vide its Resolution dated 13.10.2008 was in order or not and if so whether it was binding on the Govt. of NCT of Delhi. It is not disputed that SCERT is an autonomous Society registered under the Societies Legislation Act. It has a Governing Council and an Executive Committee. The Chairman of the Council is the Lt. Governor and government officers including a representative of Finance Department are its Members. The Executive Committee is chaired by Secretary, Education of Delhi Administration and Secretary, Finance or his representative is also a Member of the Executive Committee besides other government officials of Department of Education. As per Regulation-43(d), the Executive Committee has powers to frame and amend regulations dealing with the terms and tenure of appointment, emoluments, allowances, rules, discipline and other service conditions of the officer and the staff of the Council. Thus, it would appear that the Executive Council was empowered to pass a Resolution restoring Regulation-67 by which the age of retirement of the academic staff would have become same as that of the academic staff of SCERT.
8. However, it is also not denied that SCERT is a 100% Grantee institution of Govt. of Delhi. To that extent, it cannot claim to have full financial autonomy and is bound to follow the conditions imposed by the grantor while giving grant to grantee. Under the Pattern of Assistance issued vide Govt. of NCT of Delhi letter No. F.DE 18-14(6)/2002/Plg./17627-635 dated 23.03.2005 (Annexure-2) certain restrictions have been imposed. As per Clause-17(ii) of this Pattern of Assistance, it is laid down that the recruitment rules, terms and conditions of service, welfare schemes of the employee and other service related matters will be decided by the EC only with the prior permission of the Government of Delhi. The rationale behind this provision is clear. SCERT gets both recurring and non-recurring grant from Government of Delhi. Recurring grant covers amongst other things, expenditure on salaries and allowances of the staff. Further, the quantum of grant is on net deficit basis which would imply that the Government of Delhi is duty bound to meet the budgetary deficit of SCERT calculated by deducting all expected income of SCERT from its anticipated expenditure. If SCERT were fully autonomous to decide the service conditions of their employees then the Govt. of NCT would lose control over the expenditure of SCERT and will be liable to increase the quantum of grant as and when salary expenditure goes up. This would put burden on the finances of Govt. of Delhi, the quantum of which would not be in their control. This is clearly not an acceptable position. In the case of V.K. Sodhi & Ors. (supra), the Honble Supreme Court dealt with this issue and observed as follows:-
16. It appears to us that in the base of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does no, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation.
9. On the basis of the above analysis, we come to the conclusion that the Executive Council of SCERT was duty bound to obtain prior permission of the Govt. of NCT of Delhi before passing a Resolution amending the terms and service conditions of its employees. In the instant case, the Govt. of NCT of Delhi has stated that such permission was not taken. As such this Resolution cannot be binding on it and therefore, the claim of the applicant that he should be allowed to retire at the age of 62 years cannot be acceded to.
10. The applicant has also made an alternative prayer to grant him re-employment for two years on contractual basis as is done for academic staff of Directorate of Education of Govt. of NCT of Delhi. However, from the notings of Finance Department file produced by the respondents, we find that even this claim of the applicant has been rejected by the Finance Department on the ground that government decision dealing with providing re-employment to retired teachers on contract basis would not be applicable to SCERT. The cases of four Senior Lecturers quoted by the applicant in his O.A. were Lecturers of the Directorate of Education and since the applicant belonged to a different organization, he cannot claim that Govt. of NCT of Delhi is bound to extend the same facilities to him as have been done in Lecturers of Directorate of Education. Since the applicant is not similarly placed, he cannot claim that he has been discriminated against.
11. Accordingly, we find that there is no merit in this O.A. The same is dismissed. There shall be no order as to costs.
(Shekhar Agarwal) (G. Geoerge Paracken) Member (A) Member (J) /Vinita/