Delhi High Court
Krishan Gopal vs Union Of India And Ors. on 18 May, 2012
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 7130 OF 2011
Judgment Reserved on: 31.01.2012
% Judgment Delivered on: 18.05.2012
KRISHAN GOPAL . . . PETITIONER
Through : Dr. Sarabjit Sharma, Ms.Anu
Tyagi, Advocates
VERSUS
UNION OF INDIA AND ORS. ... RESPONDENTS
Through: Mr. Sumeet Pushkarna, Adv. for
UOI
Mr. Amitesh Kumar, Adv. for
UGC
Mr. S.C. Dhanda, Adv. for JNU
+ W.P.(C) 7939/2011
Reserved on: 14.02.2012
Pronounced on:18.05.2012
DAMAYANTI V.TAMBAY ..... Petitioner
Through: Mr. C. Mukund, Adv.
versus
UNION OF INDIA AND ORS. ... RESPONDENTS
Through: Ms. Manjusha Wadhwa, Adv. for
UOI
Mr. Amitesh Kumar, Adv. for
UGC
Mr. S.C. Dhanda, Adv. for JNU
WP(C) No.7130/2011 & 7939/2011 Page 1 of 32
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE:
1. In both the petitions, the petitioners are the employees of
Jawaharlal Nehru University working as Deputy Librarian and
Directors of Physical Education (DPE). They are seeking a
declaration that their status be treated as that of a „teacher‟ and,
therefore, the Notification dated 31.12.2008 vide which retirement
age of teachers is fixed at 65 years should be made applicable to
them also. Since this Notification specifically excludes library
staff as well as staff of physical education, prayers are also made
for declaring the exclusionary part of the Notification as
unconstitutional.
2. Vide impugned Notification dated 31.12.2008, the Ministry of
Human Resource Development (Department of Higher Education),
Government of India has decided to revise the pay scales and other
service conditions of the teachers in Central Universities. Since we
are not concerned with revision of pay scale or other service
conditions but the limited scope of these writ petitions is confined
to the re-fixation of the age of superannuation for teachers, we
hereby reproduce that part of the Notification:
"8. Other terms and conditions:
(a) to (e) xxx xxx xxx
(f) Age of Superannuation:
WP(C) No.7130/2011 & 7939/2011 Page 2 of 32
(i) In order to meet the situation arising out of shortage of
teachers in universities and other teaching institutions and
the consequent vacant positions therein, the age of
superannuation for teachers in Central Educational
Institutions has already been enhanced to sixty five years,
vide the Department of Higher Education letter No.F.No.1-
19/2006-U.II dated 23.3.2007, for those involved in class
room teaching in order to attract eligible persons to the
teaching career and to retain teachers in service for a
longer period. Consequent on upward revision of the age
of superannuation of teachers, the Central Government has
already authorized the Central Universities, vide
Department of Higher Education D.O. letter No.F.1-
24/2006-Desk(U) dated 30.3.2007 to enhance the age of
superannuation of Vice- Chancellors of Central
Universities from 65 years to 70 years, subject to
amendments in the respective statutes, with the approval of
the competent authority ( Visitor in the case of Central
Universities).
(ii) Subject to availability of vacant positions and fitness,
teachers shall also be reemployed on contract appointment
beyond the age of sixty five years up to the age of seventy
years. Re-employment beyond the age of superannuation
shall, however, be done selectively, for a limited period of
3 years in the first instance and then for another further
period of 2 years purely on the basis of merit, experience,
area of specialization and peer group review and only
against available vacant positions without affecting
selection or promotion prospects of eligible teachers.
(ii) 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."
WP(C) No.7130/2011 & 7939/2011 Page 3 of 32
3. A reading of the aforesaid extracted portion of the Notification
would clearly demonstrate that the age of superannuation for
teachers in the Central educational institutions has been increased
vide Notification dated 23.3.2007 "for those involved in class room
teaching". Rationale given is that the same is done "in order to
attract eligible persons to the teaching careers and to retain teachers
in service for a longer period". Further rationale stated in sub-para
(3) is that this enhancement in 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. This
very sub-para unambiguously and in no uncertain terms,
specifically excludes the categories of librarians and DPEs. It is
also mentioned in respect of these librarians and DPEs that their
present age of superannuation, namely, 62 years would remain and
no increase is permissible in these two categories.
4. Dr. Sarabjeet Sharma, learned counsel appearing for the petitioner
in WP(C) 7130/2011 (who is working as Deputy Librarian in JNU)
has submitted that librarians and DPEs have always been treated at
par with teachers and are in fact covered by the category of
„teacher‟ and, therefore, excluding them from the aforesaid benefit
amounts to invidious discrimination and violates the rights of the
petitioners under Article 14 of the Constitution of India. In order
to buttress his submission that the librarians and DPEs are to be
construed as „teachers‟, he has drawn our attention to the following
material:
WP(C) No.7130/2011 & 7939/2011 Page 4 of 32
(i) UGC‟s letter dated 18.1.1961 to the Registrar of University which
pertains to the revision of salary scales of librarians in Universities
and colleges under the 3rd Five Year Plan. This communication
mentions that the UGC had decided to upgrade the salary scales of
library staff in the universities and colleges and "Professionally
qualified library staff are for purposes of salary revision be treated
as academician staff". It is, thus, submitted that right from 1961,
library staff has been treated as academic staff, i.e. teachers.
(ii) Vice Chancellor, University of Delhi had constituted a Committee
known as P.C. Mukherji Committee to consider recognition of
Librarians as Teachers of the University. The said Committee
submitted its report recording its finding that definition of „teacher‟
as stated in the University of Delhi Act, 1922 can include librarians
as teachers under the category of „other persons‟ imparting
instructions in University or any College or Hall. The definition of
„teacher‟ and „Teachers of the University‟ as per Section 2(g) and
2(h) of the DU Act, 1922 is as under:
"(g) „Teachers‟ includes Professors, Readers,
Lecturers and other persons imparting instruction in
the University of in any College or Hall;
(h) „Teachers of the University‟ means persons
appointed or recognized by the University for the
purpose of imparting instruction in the University
or in any College."
The Committee had referred to various reference sources to
ascertain the broader definition of the term „instruction‟ and
was convinced that in view of the nature of the duties
WP(C) No.7130/2011 & 7939/2011 Page 5 of 32
performed by the librarians, they can rightly be recognized
as teachers imparting instructions through the media of
library and that imparting of instruction was being done by
them as part of their normal duties.
(iii) Letter No. F.2-1/82/4.1 dated 15.12.1982 of Ministry of
Education and Culture on the subject of upgradation in
salary scales of Librarians; Directors/Instructors of Physical
Education and Documentation Officers in universities and
colleges as per which representations from various quarters
suggesting acceptance of parity in their pay scales with those
of teachers was accepted and the scales of Librarians, DPEs,
etc. were also upgraded to make it equivalent to that of
teachers.
(iv) UGC‟s D.O. letter No. F.1-49/83/CP/MP dated 14th
December, 1983 to the Vice Chancellor, University of Delhi
examining the issue of extension of Merit Promotion
Scheme to the Directors/Instructors of Physical Education
and the Demonstrators and in the aforesaid letter, the
University of Delhi was communicated that the UGC had,
inter alia, agreed that the Merit Promotion Scheme be
extended to DPEs declaring them as teachers and it was also
agreed that same principle be made applicable to librarians
etc. as well without affecting the fact they are „non-vacation
academic staff".
It was pleaded by Mr. Sharma that librarians are treated as
academic staff though in the category of „non-vacation‟ as
WP(C) No.7130/2011 & 7939/2011 Page 6 of 32
they were not entitled to vacation which other teachers
teaching in class rooms. Except that, DPEs/Librarians were
treated as teachers and on the aforesaid communication of
UGC, the Executive Council of University of Delhi has also
decided on 30th January, 1984 recognizing librarians etc. as
teachers of the University. He also referred to letter dated
16th March, 1992 addressed by UGC to Registrar,
Pondicherry University as per which Assistant Librarians/
Documentation Officer, Deputy Librarians and Librarians
were given the status of teaching staff.
(v) Mr. Sharma, also relied upon the UGC‟s circular letter dated
3rd March, 2007 addressed to the Registrar of all
Central/State/Deemed Universities on the subject of Career
Advancement Scheme and as per this letter, Ministry of
Human Resource Development had approved the age of
superannuation of Deputy Librarians/DPEs as 62 years.
Predicated on this letter, submission of Mr. Sharma was that
when the age of superannuation of teachers was increased
from 60 to 62 years, the same benefit was also extended to
librarians as well as DPEs as well.
(vi) Reference was also made to orders dated 21st January, 2011
passed by the Directorate of Education, Government of NCT
of Delhi as per which the post of librarian has been declared
as teaching post for all purposes making librarians entitled to
avail all the benefits applicable to the teaching category in
prospective manner.
WP(C) No.7130/2011 & 7939/2011 Page 7 of 32
5. In order to bolster his submission that librarians are to be treated as
teachers, he argued that the post of librarian itself is a teaching post
as the very function of the librarian is teaching and aiding in
learning process of students, research scholars and even teachers.
The fact is that Librarian performs both teaching and research role
as they formally and informally instruct students, advice and assist
factually and are themselves involved in the research. The
librarians in the universities have always been treated at par with
the teachers in respect of scale of pay, career advancement/merit
promotion scheme and age of superannuation. That the
qualifications, eligibility and criteria for appointment, promotion,
Career Advance Scheme, Academic Perform Indicators (API) and
Weightage Point (WP) required to develop Performance Appraisal
Scoring System (PASS) and job requirements are the same for
Asstt. Professor/Associate Professor and Professor as per the UGC
Notification issued on 30 June 2010. The university librarian has
been organizing, coordinating and conducting UGC academic staff
college Refresher Course in the field of Library and Information
Science for lectures in the library and information science,
university assistant librarians and college librarians. The university
librarian is the member of academic council and the University
Court. The librarian of the university has been a member of
selection committee of University for selection of Lecturer,
Readers and Professors in library and information science. The
Senior Library Staff members guide/supervise and evaluate the
WP(C) No.7130/2011 & 7939/2011 Page 8 of 32
Ph.D. Research Scholar works in the field of Library and
Information Science as the Teachers in other discipline.
6. Mr. Sharma also attacked the rationale/justification given in the
impugned Notification for increasing the age of superannuation of
teachers but excluding therefrom Librarians and DPEs. He pointed
out that the main reason given by the respondents for increase in
the age of teachers was that good teachers were not available and
reason for not extending the benefit to the librarians and DPEs was
that in so far librarians and DPEs are concerned, they were in
abundance and surplus. He submitted that on both counts, the
Librarians and DPEs were entitled to the benefit as these conditions
applied in their cases with much more force. On the contrary,
argued the learned counsel, qualified eligible candidates for
lectureship were available in abundance. He referred to the UGC
Annual Report, 2008-09 available on its website as per which,
54456 qualified eligible candidates for lectureship were available.
Mr. Sharma argued that in contrast, a survey conducted by the
UGC itself showed that there was dearth of librarians and out of
165 universities, only 69 (that is 42%) universities had the
professional librarians occupying the seat of a librarian. He, thus,
argued that when the very basis of increasing the age for teachers
was applicable to these cases, there was no reason not to extend the
benefit thereof to librarians and DPEs.
7. Mr. Sharma summed up his arguments by making a passionate plea
that post of librarian had always been treated as that of a „teacher‟
and when the benefits accorded to the teachers, be it pay scale or
WP(C) No.7130/2011 & 7939/2011 Page 9 of 32
merit promotion or even increase of age on earlier occasions, had
been extended to the librarians, there was no reason for not putting
librarians at par with teachers on this occasion.
8. Mr. Sharma also referred to the judgment of the Supreme Court in
P.S. Ramamohana Rao v. A.P. Agricultural University & Anr.,
1997 (5) SLR 106 wherein the Court held as under:
"5. For the purpose of deciding the above issue arising
between the parties, it is necessary to refer to the relevant
provisions of the Act and the Regulations. Sub-clause (n)
of Section 2 defines 'teacher' as follows:
"teacher" includes a professor, reader, lecturer or other
person appointing or recognised by the University for
the purpose of imparting instruction or conducting and
guiding research or extension programmes, and any
person declared by the statutes to be a teacher.
xxx xxx xxx
9. Neither the Act nor the rules and regulations specify the
duties and functions of a Physical Director. We have,
therefore, to go by the material available in the affidavits
filed by the parties to decide that question. In the
additional counter affidavit filed on behalf of the
University in the High Court, it is stated in paragraph 7 as
follows:
I further submit that the duties of the Physical Directors
in this University. in brief, are as follows:
(a) to arrange Games and Sports daily in the evenings
for the students.
(b) to look after the procurement of sports material and
the maintenance of the sports grounds.
(c) to arrange Inter-class and inter-Collegiate
WP(C) No.7130/2011 & 7939/2011 Page 10 of 32
tournaments.
(d) to accompany the student Teams for the Inter-
University tournaments.
(e) to guide the students about the rules of the various
games and sports.
10. From the aforesaid affidavit it is clear that a Physical
Director has multifarious duties. He not only arranges
games and sports for the students every evening and looks
after the procurement of sports material and the
maintenance of the grounds but also arranges inter-class
and inter-college tournaments and accompanies the
students team when they go for the inter-University
tournaments. For that purpose it is one of his important
duties to guide them about the rules of the various games
and sports. It is well known that different games and sports
have different rules and practices and unless the students
are guided about the said rules and practices they will not
be able to play the games and participate in the sports in a
proper manner. Further, in our view, it is inherent in the
duties of a Physical Director that he imparts to the students
various skills and techniques of these games and sports.
There are large number of indoor and outdoor games in
which the students have to be trained. Therefore, he has to
teach them several skills and the techniques of these games
apart from the rules applicable to these games.
11. Having regard to the above-said material before us. we
are clearly of the view that the appellant comes within the
definition of a teacher in Sub-clause (n) of Section 2 of the
Act."
9. Another judgment on which he placed reliance was again a
decision of the Supreme Court in the case of State of Karnataka v.
C.K. Pattamashetty and Anr., (2004) 6 SCC 685 and particularly
on the following passage therefrom:
WP(C) No.7130/2011 & 7939/2011 Page 11 of 32
"4. The respondent filed a writ petition before the
Karnataka High Court, inter alia, for issuance of a writ of
or in the nature of mandamus directing the University to
treat him as a Lecturer contending, inter alia, that he had
been appointed as an Honorary Visiting Professor to
participate in the teaching work of the Department of
Library Science without any financial commitment by an
office order dated 20-9-1986 and as such he would be
deemed to be a "teacher of the University" within the
meaning of the provisions of Section 2(8) of the Karnataka
State Universities Act, 1976 (for short "the Act"). It was
further contended that in terms of the said appointment as
Honorary Visiting Professor he has been participating in
the teaching work.
xxx xxx xxx
8. Learned counsel appearing for the respondent, on the
other hand, would draw our attention to the definition of
"teacher" as contained in the statutes framed by the
University, to show that thereunder not only salaried
employees of the University appointed as Professor,
Reader or Lecturer or other teachers of the University, but
also the Professors, Readers or Lecturers or teachers of the
University appointed by the University to work on
honorary basis would come within the purview thereof.
xxx xxx xxx
13. The "statute" framed by the University in exercise of
its powers under Section 35 of the Act also defines
"appointed teachers" to mean:
"Appointed teachers of the University‟ shall be either:
(a) Salaried employees of the University appointed as
Professors, Readers or Lecturers or other teachers of
the University, or
(b) Professors, Readers or Lecturers or teachers of the
University appointed by the University to work on
WP(C) No.7130/2011 & 7939/2011 Page 12 of 32
honorary basis."
14. A bare perusal of the aforementioned definition would,
thus, clearly show that the appointed teachers with the
University have been categorised in two categories; one
who are salaried employees and the others who work on
honorary basis. Those who were appointed to work on
honorary basis, therefore, cannot be placed in the same
class as that of the salaried employees. In that view of the
matter, we are of the opinion that the respondent herein,
who was appointed to work as visiting Professor on
honorary basis, could not claim the financial benefits of
the salaried employee of the University as a Lecturer or
other teachers of the University."
10. Mr. C. Mukund, Advocate, appeared for the petitioner in W.P.(C)
No.7939 of 2011 who is also working in Jawahar Lal Nehru
University as Director of Physical Education. He advanced the
following propositions:
(i) DPEs falls in the same category as „teacher‟ and is not
different from a teacher. He, in fact, is treated as
teacher.
(ii) Even when the impugned notification include those
teachers who are involved in class room teaching,
DPEs satisfies this condition as well.
(iii) The rationale given by the respondents in increasing
the age of teachers was self-contradictory. On the one
hand, it is mentioned that it is done because of
shortage of teachers and on the other hand, the same
notification gives the reason that enhancement of age
would attract no talent. Submission was that if it was
WP(C) No.7130/2011 & 7939/2011 Page 13 of 32
to attract new talent, then there was no need to
enhance the age of teachers.
Mr. Mukund also submitted that if the reason of
shortage of teacher is to be accepted then the same
should be made applicable to the DPEs as well
inasmuch as University Grant Commission has itself
accepted that there was shortage of DPEs.
(iv) Once it is accepted that DPEs are also teachers, which
according to Mr. Mukund the impugned notification
impliedly accepts, then carving out another category
from that class of teacher was discriminatory as held
by the Supreme Court in P.S. Ramamohana Rao
(supra).
11. Mr. Mukund also referred to the reasons given by the learned
Single Judge while granting interim order in favour of the
petitioner allowing the petitioner to continue even beyond the age
of 62 years. His submission was that even when this interim order
was not binding, the petitioner could refer to the discussion
contained therein in support of his submission.
12. Dilating upon the aforesaid proposition, Mr. Mukund referred to
communication dated 23.3.2007 vide which Central Government
decided to enhance the age of superannuation from 62 to 65 years
in „teaching posts‟ in Central funded institutions in higher and
technical education. He submitted that this communication does
not exclude DPEs or librarians. According to him, mistake had
occurred while implementing this order. For this he referred to
WP(C) No.7130/2011 & 7939/2011 Page 14 of 32
communication dated 31.12.2008 of the Central Government,
which pertain to scheme of revision of pay of teachers, etc. on the
recommendations of VIth Central Pay Commission. He submitted
that when the UGC issued its regulation dated 28.6.2010. The
stipulation contained in the aforesaid communication dated
31.12.2008 were without any application of mind. With respect to
age of superannuation, following was stipulated:
"(f) Age of Superannuation:
(i) In order to meet the situation arising out of shortage
of teachers in universities and other teaching
institutions and the consequent vacant positions
therein, the age of superannuation for teachers in
Central Educational Institutions has already been
enhanced to sixty five years, vide the Department of
Higher Education letter No.F.No.119/2006-U.II
dated 23.3.2007 for those involved in class room
teaching in order to attract eligible persons to the
teaching career and to retain teachers in service for a
longer period. Consequent on upward revision of the
age of superannuation of teachers, the Central
Government has already authorized the Central
Universities, vide Department of Higher Education
D.O. letter No.F.1-24/2006-Desk(U) dated 30.3.2007
to enhance the age of superannuation of Vice-
Chancellors of Central Universities from sixty five to
seventy years, subject to amendments in the
respective statures, with the approval of the
competent authority (Visitor in the case of Central
Universities).
(ii) Subject to availability of vacant position and fitness,
teachers shall also be reemployed on contract
appointment beyond the age of sixty five years upto
the age of seventy years. Reemployment beyond the
age of superannuation shall, however, be done
selectively, for a limited period of three years in the
first instance and then for another further period of
WP(C) No.7130/2011 & 7939/2011 Page 15 of 32
two years purely on the basis of merit, experience,
area of specialization and peer group review and only
against available vacant positions without affecting
selection or promotion prospects of eligible teachers.
(iii) 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)
13. His submission was that though in the earlier order dated
23.3.2007, DPEs/Librarians were not excluded, however, in this
communication, the highlighted words were added thereby limiting
the benefit to those teachers who were involved in classroom
teaching and specifically excluding librarians and DPEs on the
purported ground that there was no shortage in this category.
He, thus, argued that once the benefit was confined to those
teachers involved in class room teaching, there was an implied
admission that librarians and DPEs were also teachers who were
denied the benefit under the wrong notion that they were not
involved in class room teaching. He also argued that by
mentioning that librarians and DPEs excluded because there was
no shortage of the said teaching staff who were not to be given the
benefit as there were no shortage in this category whereas there
WP(C) No.7130/2011 & 7939/2011 Page 16 of 32
were shortage of teachers. His further submission was that in any
case, both the grounds were factually incorrect inasmuch as DPEs
are involved in class room teaching, there is a shortage of such
persons.
14. In order to demonstrate the DPEs were involved in class room
teaching as well, Mr. Mukund submitted that the duties expressly
or otherwise, discharged by the petitioner are not different from
teachers of other disciples, which can be best appreciated when the
multifarious duties of the petitioner are perused.
15. According to Mr. Mukund, Jawaharlal Nehru University in its
affidavit had not denied the aforesaid duties discharged by the
petitioner.
16. Mr. Amitesh Kumar, learned counsel appearing for UGC, Mr. S.C.
Dhanda, learned counsel appearing for JNU and Mr. Sumeet
Pushkarna who appeared for Union of India, countered the
aforesaid submissions of Mr.Sharma. Leading the counter attack,
Mr. Amitesh Kumar opened his arguments by submitting that the
directions of the UGC, based on the decision taken by the Central
Government, were conveyed to all Central Universities for
increasing the age of superannuation of teachers and for this
purpose, all the universities were supposed to amend their
recruitment rules as well. In so far as JNU is concerned, his
submission was that the librarians and DPEs had always been
treated as classes different and separate from teachers. In the
counter affidavit filed on behalf of JNU, it was highlighted that the
WP(C) No.7130/2011 & 7939/2011 Page 17 of 32
nature of duties of teacher was altogether different from that of
non-teaching staff in which librarians and DPEs fell and simply by
giving them the status of academic non-vacation staff or giving
them the same salary or giving those other benefits similar to
teachers would not make them teachers. It was further stated in the
affidavit that a clear distinction was brought out in the impugned
Notification between those engaged in class room teaching and the
other staff, though treated as teachers in some respect. Their nature
of duties was different and the rationale stated in the notification,
namely, dearth of qualified teachers was based on the studies
which were factually correct and were wrongly disputed by the
petitioners.
17. In order to show that in JNU, teachers were in different class then
DPEs/Librarians, reference was drawn to the following provisions
of the statutes of the University:
(i) Statute 26 stipulates two classes of teachers only, namely,
appointed teachers of the University and recognized teachers
of University. Clause 9 of the statute 26 further provided
that no person shall be appointed or recognized as a teacher
of the University except on the recommendation of a
Selection Committee constituted for the purpose or except
when appointed by the Executive Council under Statute 28.
(ii) Selection Committee is provided in Statute 27 and as per the
table of the statute, there are different committees for
academic staff and non-academic staff
WP(C) No.7130/2011 & 7939/2011 Page 18 of 32
(iii) Statute 29 provided for different conditions of service for
teachers on the one hand and other staff on the other and
librarian was included in the category of „other officers‟.
Likewise, under Statue 29A, if any other class was to be
included in the category of teachers, special declaration for
this purpose was needed.
18. Referring to Statutes 30 and 31 and Section 5 (7) and Section 9
(8) of the Act, it was pointed out that the provision for removal of
teaching staff was different from that of other staff. He, thus,
argued that as per JNU Act, 1966 and statutes, teachers were
treated differently than the other staff not only in the matters of
appointment but also other service conditions and also in the matter
of their removal from service. Our attention was also drawn to the
UGC Regulations on Minimum Qualifications for Appointment of
Teachers and other Academic Staff in Universities and Colleges
and Measures for Maintenance of Standards in Higher Education,
2010. As per this document, pay scales, pay fixation formula and
age of superannuation etc. of teaching staff was separate and
distinct from the other class. He submitted that this distinction was
even maintained in the impugned Notification which is clear from
various provisions.
19. His submission, in the nutshell, was that the matter has to be
examined with respect to the provisions of the Jawaharlal Nehru
University Act, 1966 and the Statutes of the University as per
which there are two categories of teachers, viz., a person who is
appointed as a teacher or recognized as a teacher. In the present
WP(C) No.7130/2011 & 7939/2011 Page 19 of 32
case, librarians and DPEs were neither appointed as teacher nor
recognized or declared as teacher. There were separate promotion
scheme, viz., Assured Career Progression scheme for these staff.
20. His further argument was that the communication dated 23.3.2007
was misread that the benefit of age enhancement was confined only
to the teachers involved in class room teaching and the DPEs and
librarians were not excluded initially. For this purpose, he referred
to another communication dated 19.4.2007 which was issued
within one month of the aforesaid communication wherein it was
clearly mentioned that the enhancement of age of superannuation
from 62 to 65 applies to those who hold posts equivalent to
teaching positions, but are to actually engaged in teaching in the
centrally funded institutions in higher and technical education.
Following clarifications in this regard were issued:
"(i) The enhancement of the age of superannuation from
62 years to 65 years and the provisions for re-
employment a mentioned in this Ministry letter dated
23.3.2007 referred to above have been made in order
to overcome the shortage of teachers and is
applicable only to the teachers in centrally funded
institutions in higher and technical education under
Ministry of Human Resource Development; who are
actually engaged teaching
classes/courses/programmes of study in such
institution.
(ii) The provisions of the Ministry‟s letter of even
number dated 23.03.2007 mentioned above, shall not
be applicable to any other categories employees in
such institutions, notwithstanding the fact that the
posts they hold may be considered as equivalent to
teaching positions."
WP(C) No.7130/2011 & 7939/2011 Page 20 of 32
21. He, thus, submitted that even if DPEs and Librarians were treated
as equivalent to teachers, they were specifically denied the benefit
of enhancement of age of superannuation and it was the prerogative
of the employer to frame such a rule and no person has any vested
right to retire at a particular age. Learned counsel relied upon the
judgment of the Supreme Court in the case of State of M.P. Vs.
Ramesh Chandra Bajpai [(2009) 13 SCC 635] wherein the
Physical Training Instructors were denied the claim of pay parity
with teachers. He submitted that in the case, Court had
specifically distinguished the judgment of P.S. Ramamohana Rao
(supra) wherein the definition of teachers under Andhra Pradesh
Agricultural University Act, 1963 specifically included them as
teacher.
22. He also placed strong reliance of the Supreme Court judgment in
the case of D.S. Nakara and Ors. Vs. U.O.I. and Ors. [1983 (1)
SCC 305] in support of his submission that the class of DPEs and
Librarians was distinct and separate from that of teachers and
therefore, there was no question of discrimination. Following
paras of the judgment were specifically referred to, which are as
under:
"11. The decisions clearly lay down that though Art. 14
forbids class legislation, it does not forbid reasonable
classification for the purpose of legislation. In order,
however, to pass the test of permissible classification, two
conditions must be fulfilled, viz., (i) that the classification
must be founded on an intelligible differentia which
WP(C) No.7130/2011 & 7939/2011 Page 21 of 32
distinguishes persons or things that are grouped together
from those that are left out of the group; and (ii) that
differentia must have a rational relation to the objects
sought to be achieved by the statute in question. (see Shri
Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar &
Others.(1) The classification may be founded on differential
basis according to objects sought to be achieved but what is
implicit in it is that there ought to be a nexus i.e., causal
connection between the basis of classification and object of
the statute under consideration. It is equally well settled by
the decisions of this Court that Art. 14 condemns
discrimination not only by a substantive law but also by a
law of procedure.
12. After an exhaustive review of almost all decisions
bearing on the question of Art. 14, this Court speaking
through Chandrachud, C.J. in Re. Special Courts Bill (2)
restated the settled propositions which emerged from the
judgments of this Court undoubtedly insofar as they were
relevant to the decision on the points arising for
consideration in that matter. Four of them are apt and
relevant for the present purpose and may be extracted. They
are:
"3. The constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or
scientific exclusion or inclusion of persons or things. The
Courts should not insist on delusive exactness or apply
doctrinaire tests for determining the validity of
classification in any given case. Classification is justified if
it is not palpably arbitrary.
4. The principle underlying the guarantee of Article 14 is
not that the same rules of law should be applicable to all
WP(C) No.7130/2011 & 7939/2011 Page 22 of 32
persons within the Indian territory or that the same remedies
should be made available to them irrespective of differences
of circumstances. It only means that all persons similarly
circumstanced shall be treated alike both in privileges
conferred and liabilities imposed. Equal laws would have to
be applied to all in the same situation, and there should be
no discrimination between one person and another if as
regards the subject matter of the legislation their position is
substantially the same.
6. The law can make and set apart the classes according to
the needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the
classification should never be arbitrary, artificial or evasive.
7. The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left out
but those qualities or characteristics must have a reasonable
relation to the object of the legislation. In order to pass the
test, two conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from
others and (2) that differentia must have a rational relation
to the object sought to be achieved by the Act."
xxx xxx xxx
15. Thus the fundamental principle is that Art. 14 forbids
class legislation but permits reasonable classification for the
purpose of legislation which classification must satisfy the
twin tests of classification being founded on an intelligible
differntia which distinguishes persons or things that are
grouped together from those that are left out of the group
WP(C) No.7130/2011 & 7939/2011 Page 23 of 32
and that differentia must have a rational nexus to the object
sought to be achieved by the statute in question."
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 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.
WP(C) No.7130/2011 & 7939/2011 Page 24 of 32
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. As a fortiorari, 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
WP(C) No.7130/2011 & 7939/2011 Page 25 of 32
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.
25. In the instant case, Government has increased the age of
superannuation of teachers from 62 to 65 years but have not done
so for Librarians and DPEs.
26. First question would be as to whether DPEs and Librarians can be
treated as „teachers‟ for all purposes and are therefore at par?
Much material is placed by Mr. Mukund and Dr. Sarabjeet
Sharma, learned counsel who appeared for the two petitioners, on
the basis of which it is sought to be impressed upon that the
Librarians and DPEs also qualify as teachers and are not different
from other teachers. We are afraid such a conclusion cannot be
arrived at. UGC‟s letter dated 18.1.1991 to the Registrar of Delhi
University only extends the benefit, which was granted to teachers,
to the Library staff as well „for the purpose of salary revision‟.
When a particular benefit given to one class is extended to another,
that would not mean that same be treated as same class for all
purposes and in every respect. It becomes clear from the
pronouncements of the Supreme Court where the two classes,
namely, teachers on the one hand and Librarians/DPEs on the
other, came to be considered while deciding the pay parity. The
Supreme Court in the case of State of M.P. Vs. Ramesh Chandra
Bajpai (supra) refused to grant the claim of pay parity of DPEs
with that of teachers in the following words:
WP(C) No.7130/2011 & 7939/2011 Page 26 of 32
"15. ....It is well settled that the doctrine of equal pay
for equal work can be invoked only when the employees
are similarly situated. Similarly in the designation or
nature or quantum of work is not determinative of equality
in the matter of pay scales. The court has to consider the
factors like the source and mode of
recruitment/appointment, qualifications, the nature of
work, the value thereof, responsibilities, reliability,
experience, confidentiality, functional need, etc. In other
words, the equality clause can be invoked in the matter of
pay scales only when there is wholesale identity between
the holders of two posts."
27. Thus, the principle of „Equal Pay for Equal Work‟ was not made
applicable while comparing the two classes, categorically holding
that there was disparity. In this process, the Supreme Court also
distinguished the judgment of P.S. Ramamohana Rao (supra),
which is relied upon by the petitioner, on the ground that that
judgment was based on definition of „teacher‟ as defined in section
2(n) of the Andhra Pradesh Agricultural University Act.
Obviously, position would be different when legislature itself, by
definition, accords parity between those imparting educational
instructions and those imparting physical education. On this basis,
even Delhi University has taken this position taking note of the
definition of „teacher‟ as stated in the University of Delhi Act,
1922 as per which Librarians are „teachers‟ under the category of
„other persons‟ imparting instructions in universities or in college
or hall. Likewise in State of Karnataka v. C.K. Pattamashetty
(supra), the Supreme Court took into consideration the definition of
„teacher of the university‟ under Section 2(8) of the Karnataka
WP(C) No.7130/2011 & 7939/2011 Page 27 of 32
State University Act. Thus, if the legislature has equated the two
classes, then the status of teacher is granted to such DPEs and
Librarians by the Statute. De hors that, it would be difficult to say
that all such DPEs and Librarians are to be treated as teachers per
se.
28. Having regard to the position of the JNU Act and statutes, counsel
for JNU may be correct that the two classes are not treated as
identical in all respects.
Though, this may be the finding on issue No.1, the outcome would
depend upon the conclusion which we arrive at in respect of other
issues discussed below as we have to keep in mind that the
decision of UGC for enhancement of the retirement age is
applicable across the board and is not dependent upon the
definition of teacher in a particular university. It is because of the
reason that in those universities where the definition of „teacher‟
includes Librarians and DPEs and they are treated at par, such
universities have to give the benefit of enhancement of age to their
Librarians and DPEs. However, the decision of UGC enhancing
the retirement age of „teachers‟ is applicable in respect of all
universities.
29. Having clarified this, we need to address neat issues, viz., whether
DPEs and Librarians can fall in the same category as teachers, for
the purpose of according the benefit of increase in age of
superannuation?
WP(C) No.7130/2011 & 7939/2011 Page 28 of 32
At the outset, we would like to clarify that this issue is
addressed with limited scope in mind, namely, entitlement of DPEs
and Librarians to the enhanced age of superannuation as given to
teachers. Here, we find that the petitioners are able to make out an
arguable case. The events recorded above would show that
whenever age of superannuation of teachers has been enhanced, the
same benefit has always been extended to the Librarians and DPEs.
This has happened right from the 1960s, if not earlier. Further, it
has happened at the instance of UGC itself which means that such
benefit is extended in all universities coming within the umbrella
of UGC across the country. More importantly, while doing so, the
UGC as well as Universities themselves have given the
justification by stating that these Librarians and DPEs are to be
equated with teachers for extending the benefit of increase in age
of retirement. Based thereupon, even some other benefits have
been extended like merit promotion scheme in Delhi University
etc. Same thing happened when the superannuation age of teachers
was extended from 60 to 62 years.
30. It was highlighted by Mr. Mukund that DPEs perform multifarious
duties which are as under:
a. To teach students in theory about the norms and rules of various
games.
b. To guide and train students during practice of various physical
exercises and during play of particular games in the field or
indoor games.
WP(C) No.7130/2011 & 7939/2011 Page 29 of 32
c. To look after the procurement of sports material and
maintenance of the sports grounds.
d. To arrange inter-class and inter-college tournaments.
e. To arrange games and sports daily in the evening for students.
31. We may not be misunderstood to be saying that if such benefit was
given in the past, these Librarians and DPEs acquire any vested
right to seek such extension every time. However, what is
emphasized by this Court is that the justifications are offered by the
authorities themselves in extending the benefit of age of
superannuation and at least for this benefit treating Librarians and
DPEs as „teachers‟.
32. In this backdrop, the question that now falls for consideration is as
to whether the rationale given by the respondents in increasing the
age of teachers is applicable in the case of DPEs and Librarians as
well? Or, to put is otherwise, whether this is a valid justification in
excluding Librarians and DPEs from the benefit of age extension?
As already noticed above, the reasons given for enhancing
the age of superannuation of teachers are:
(i) To attract eligible persons to the teaching career and to retain
teachers in service for a longer period;
(ii) The enhancement is intended for teachers engaged in
classroom teaching to attract eligible persons to career in
teaching and to meet the shortage of teachers by retaining
teachers in service for a longer period.
WP(C) No.7130/2011 & 7939/2011 Page 30 of 32
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. 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 21 10 11 52
EDUCATION
DEPUTY DIRECTOR OF 11 10 1 9
PHYSICAL EDUCATION
ASSISTANT DIRECTOR OF 76 54 22 29
PHYSICAL EDUCATION
33. To conclude, we are of the opinion that the matter is not
appropriately examined by the respondent authorities while
WP(C) No.7130/2011 & 7939/2011 Page 31 of 32
excluding the categories of Librarians and DPEs from the benefit
of enhancement of superannuation age which is accorded to the
teachers. Various important aspects are left out which could not
have been ignored and that vitiates the decision making process. It
is, thus, imperative that the matter be examined afresh by the
respondent authorities in the light of the discussions contained in
this decision and an informed and rational decision be taken, as we
do not find any justification in the reasons given by the respondents
in denying the benefit of age enhancement to DPEs and Librarians.
34. These writs are disposed off with the direction that the matter shall
be considered and fresh decision shall be taken within a period of
two months from today. In the meantime, the petitioner in W.P.
No.7130/2011, who is continuing in service by virtue of interim
orders, shall be allowed to continue. Fate of the other petitioner in
W.P. No.7939/2011 shall depend upon the fresh decision taken.
35. The petitioners shall also be entitled to costs quantified at `10,000/-
each.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
MAY 18, 2012/pk WP(C) No.7130/2011 & 7939/2011 Page 32 of 32