Full Judgment Text
$~4 to 6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 16.12.2019
% LPA 390/2019
KANCHAN SAINI ..... Appellant
Through: Dr. Aurobindo Ghose, Advocate.
versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through: Mr. Santosh Kumar and Mr. Bibin
Kurian, Advocates for respondent
No.1/ DU.
Mr. Ankur Chhibber and Mr. Nikunj
Arora, Advocates for respondent
No.2/ MLNC.
Mr. Apoorv Kurup, Ms. Nidhi Mittal
and Ms. Upama Bhattacharjee,
Advocates for respondent No. 3/
UGC.
Mr. Gaurav Varma and Mr. R.M.
Tripathi, Advocates for respondent
No. 4/ UOI.
% LPA 434/2019
SWARN BHANOT ..... Appellant
Through: Dr. Aurobindo Ghose, Advocate.
versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through: Mr. Yashraj Singh Deora, Mr. Shyam
Agarwal and Ms. Shivangi Sud,
Advocates for respondent No. 1/ DU.
Ms. B. N. Soni, Advocate for
respondent No. 2/ BC.
Mr. Ravinder Agarwal and Mr. Girish
Pande, Advocates for respondent
No.3/ UGC.
Mr. Arun Bhardwaj, Mr. Nikhil
Bhardwaj and Mr. Abhinav Kaushik,
LPA Nos.390/2019, 434/2019 & 448/2019 Page 1 of 13
Advocates for respondent No.4/ UOI.
% LPA 448/2019
DR KULDEEP AHUJA ..... Appellant
Through: Mr. Meet Malhotra, Senior Advocate
along with Mr. Ravi S.S. Chauhan &
Ms. Palak Singh, Advocates.
versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Mr. Kousik
Ghosh and Ms. Manisha Relia,
Advocates for respondent No. 1/ DU.
Mr. Anurag Mathur, Advocate for
respondent No. 2/ CVS.
Mr. Apoorv Kurup, Ms. Nidhi Mittal
and Ms. Upama Bhattacharjee,
Advocates for respondent No. 3/
UGC.
Mr. Arun Bhardwaj, Mr. Nikhil
Bhardwaj and Mr. Abhinav Kaushik,
Advocates for respondent No.4/ UOI.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE SANJEEV NARULA
VIPIN SANGHI, J. (ORAL)
C.M. Nos. 27272/2019 & 30170/2019
1. Exemptions allowed, subject to all just exceptions.
2. The applications stand disposed of.
C.M. Nos.27271/2019 & 30169/2019
LPA Nos.390/2019, 434/2019 & 448/2019 Page 2 of 13
3. By these applications, the applicants seek to place on record
additional documents. Learned counsel for the respondents does not oppose
these applications.
4. Accordingly, both the applications are allowed and additional
documents along with these applications, are taken on record. The
applications stand disposed of.
LPA Nos. 390/2019, 434/2019 & 448/2019
5. We have heard learned counsels at substantial length and proceed to
dispose of the present appeals.
6. LPA Nos.390/2019 & LPA 434/2019 are directed against the common
judgment dated 26.03.2019 passed by the learned Single Judge dismissing
W.P.(C.) Nos. 3679/2017 & 8597/2009. LPA No. 434/2019 has been
preferred to assail the order dated 01.05.2019 passed in W.P.(C.) No.
11141/2018, whereby the learned Single Judge has followed his earlier
decision dated 26.03.2019 passed in W.P.(C.) No. 3679/2017 and other
connected petitions.
7. The appellants responded to the advertisement issued by the
respondent University for recruitment of “Instructors” (and not teachers) in
Stenography. They were selected and joined their respective posts and have
been serving as Instructors in Stenography. The appellants, it appears,
qualify as “teachers” as defined in the Delhi University Act, 1922, in
Section 2(g). Section 2(g) reads:
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“2. In this Act and in the Statutes, unless there is anything
repugnant in the subject or context:
x x x x x x x x x
(g) „Teachers‟ include Professors, Readers, Lecturers and other
persons imparting instructions in the University or in any‟
College or Hall;” .
8. The definition contained in Section 2(g) of the Delhi University Act
defines the expression “teacher” for the purpose of the Act and the statutes
framed thereunder. The appellants would like that the meaning of the
expression “teacher”, defined in Section 2(g) of the Delhi University Act, be
adopted while construing the communications issued by the Government
conveying its policy decision to enhance the age of superannuation of
teachers.
9. The dispute raised by the appellants before the learned Single Judge
in the writ petitions was in relation to their claim for enhancement of the age
of retirement to 65 years. The retirement age of teachers was raised from 62
to 65 years on account of the policy decision taken by the Government of
India in the Ministry of Human Resource Development.
10. Our attention has been drawn by learned counsel for the appellants to
the communication dated 15.02.2019 issued by the UGC, wherein the UGC
communicated that the Standing Committee on Anomaly Cases, after due
examination has recommended that the post of Instructors in Stenography &
Typewriting be considered “ under other academic staff since they carry out
the teaching assignments and other academic duties. As regards to
enhancement of age of retirement etc., it would be decided in due course of
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time ”. (emphasis supplied)
11. Learned counsel for the respondents have countered the reliance
placed on the communication dated 15.02.2019 by submitting that the
scheme for enhancement of age of retirement of teachers from 62 to 65 years
is formulated by the Government of India and, therefore, it is the
communications issued by the Government of India, which would need
examination. According to learned counsel for the respondents, the decision
of the Government of India to raise the retirement age does not relate to all
“teachers”, as generically understood. Thus, “Instructors” in Stenography
cannot claim the benefit of enhanced age of superannuation, though,
generically understood in the context of the Delhi University Act, they may
be “teachers”.
12. Our attention has been drawn to the communications issued by the
Government of India in this regard which throw light on the “teachers” in
respect of whom the enhancement in age was granted. In this regard, we
may, firstly, take note of the communication dated 23.03.2007 issued by the
Ministry of Human Resource Development addressed to the Secretary,
UGC. The subject of this communication reads “ Enhancement in the age of
superannuation from 62 to 65 years for teaching positions in centrally
funded institutions in higher and technical education ” (emphasis supplied).
This communication reads as follows:
“Sir,
I am directed to say that at the time of revision of pay
scales of teachers in universities and colleges, following the
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revision of pay scales of Central Government employees on the
recommendations of the Fifth Central Pay Commission, it was
provided, Inter alia, in this Ministry‟s letter No.1-22/97-U.I
dated 27th July, 1998 that “the age of superannuation of
university and college teachers would be 62 years and
thereafter no extension in service should be given. However, it
will be open to a university or college to re-employ a
superannuated teacher according to the existing guidelines
framed by the UGC up to the age of 65 years”.
2. The matter has been reviewed by the Central Government in
the light of the existing shortage in teaching positions in the
centrally funded institutions in higher and technical
education under this Ministry , and in the context of
„Government‟s decision to expand the capacities of such
Institutions for increasing access to higher education and for
implementing the policy of reservations for the weaker sections
without affecting the number of seats in the unreserved
category available through general merit. Accordingly, it has
been decided that –
(i) The age of superannuation of all persons who were
holding teaching positions on regular employment
against sanctioned posts as on 15.3.2007 in any of the
centrally funded higher and technical educations under
this Ministry shall be increased from present 62 years to
65 years.
(ii) Persons holding such regular teaching positions who
have superannuated prior to 15.3.2007 on attaining the
age of 62 years but have not attained the age of 65 years
may be re-employed against vacant sanctioned teaching
positions till they attain the age of 65 years, in
accordance with the guidelines framed by the University
Grants Commission.
(iii) All persons holding teaching positions against
sanctioned posts may also be considered for re-
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employment beyond 65 years and up to the age of 70
years, against sanctioned vacant posts, if such posts are
not filled up by regular candidates. However, such re-
employments beyond the age of 65 years shall be done
only after screening at the age of 65 years, under the
extant guidelines of the University Grants Commission.
3. It is further clarified that the enhancement of retirement age
as mentioned above and the provision for re-employment , will
apply only to persons in teaching positions against posts
sanctioned in centrally funded higher and technical education
institutions coming under the purview of this Ministry, in order
to overcome the shortage of teachers.
4. Necessary Notification in this regard may be issued by the
University Grants Commission.” (emphasis supplied)
13. A further communication was issued by the Ministry of Human
Resource Development on 19.04.2007 which sought to clarify the contents
of the earlier communication dated 23.03.2007. The clarification was, inter
alia, sought and granted on the issue: “ whether the enhancement of age of
superannuation from 62 years to 65 years applies to those who hold posts,
equivalent to teaching positions, but are not actually engaged in teaching
in the centrally funded institutions in higher and technical education
under this Ministry ”. The clarification granted by the Government in this
communication reads as follows:
“i) The enhancement of the age of superannuation from 62
years to 65 years and the provisions for re-employment as
mentioned in this Ministry's letter dated 23.3.2007 referred to
above have been made in order to the shortage of teacher and
is applicable only to the Teachers in centrally- funded
institutions in higher and technical education under the
Ministry of Human Resource Development who are actually
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engaged in teaching classes/courses/programmes of study in
such institutions .
ii) The provisions of the Ministry's letter of even number
dated 23.3.2007 Mentioned above shall not be applicable to any
other categories to employees in such institutions,
notwithstanding the fact that the posts they hold may be
considered as equivalent to teaching positions .”
(emphasis supplied)
14. The Government of India issued yet another communication dated
31.12.2008 addressed to the Secretary, UGC on the subject “ Scheme of
revision of pay of teachers and equivalent cadres in universities and
colleges following the revision of pay scales of Central Government
employees on the recommendations of the Sixth Central Pay Commission ”.
We may note that this communication concerns the scheme of revision of
pay of teachers and equivalent cadres in universities and colleges. However,
what is of relevance is that this communication stipulated that there shall be
only three designations in respect of teachers in universities and colleges,
namely, Assistant Professors, Associate Professors and Professors. The
appellants – who were recruited as “Instructors”, fall in neither of these
categories. On the aspect of age of superannuation, this communication
provided as follows:
“(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
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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 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 .”
(emphasis supplied)
15. The applicability of the scheme contained in the communication dated
31.12.2008, inter alia, stipulated as follows:
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“(p) Applicability of the Scheme:
(i) This Scheme shall be applicable to teachers and other
equivalent cadres of Library and Physical Education in all the
Central Universities and Colleges there-under and the
Institutions Deemed to be Universities whose maintenance
expenditure is met by the UGC. The implementation of the
revised scales shall be subject to the acceptance of all the
conditions mentioned in this letter as well as Regulations to be
framed by the UGC in this behalf. Universities implementing
this Scheme shall be advised by the UGC to amend their
relevant statutes and ordinances in line with the UGC
Regulations within three months from the date of issue of this
letter.
(ii) This Scheme does not extend to the cadres of Registrar,
Finance Officer and Controller of Examinations for which a
separate Scheme is being issued separately.
(iii) This Scheme does not extend to the Accompanists,
Coaches, Tutors and Demonstrators. Pay and Grade Pay of the
said categories of employees shall be fixed in the appropriate
Pay Bands relative to their existing Pay in each university/
institution corresponding to such fixation in respect of Central
Government employees as approved by the Central Government
on the basis of the recommendations of 6th Central Pay
Commission.
(iv) This Scheme does not extend to the posts of professionals
like System Analysts, Senior Analysts, Research Officers etc.
who shall be treated at par with similarly qualified personnel in
research/ scientific organizations of the Central Government.”
16. The communication dated 23.03.2007 shows that the decision to raise
the age of superannuation from 62 years to 65 years in respect of university
and college teachers was taken, inter alia, in the context of Government of
India’s decision to expand the capacity of centrally funded institutions in
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higher and technical education under the Ministry of HRD, for increasing
the access to higher education. The vocational training in the subject of
Stenography is not a subject of “higher education”. The communication
dated 23.03.2007, by itself, really left no manner of doubt in respect of
which teachers serving in universities and college, the said scheme was
applicable. In any event, the further communication dated 19.04.2007
further clarified the position by stating that the said decision to raise the age
of superannuation from 62 years to 65 years of teachers had been made with
a view to deal with the shortage of teachers in centrally funded institutions
in higher and technical education under the Ministry of HRD “ who are
actually engaged in teaching classes/ courses/ programmes of study in such
institutions ”. It went on to exclude other categories of employees
“ notwithstanding the fact that the posts they hold may be considered as
equivalent to teaching posts ”. “Instructors” in stenography can certainly not
be described as “ engaged in teaching classes/ courses/ programmes of study
in such situations ”, since a course in Stenography cannot be categorized as a
course of study in higher and technical education institution. Consciously,
the Government of India excluded other categories of employees,
notwithstanding the fact that the posts that they hold may be considered as
equivalent to teaching positions, such as, “Instructors” in Stenography. The
further communication issued by the Government dated 31.12.2008 is in
tune with the earlier two communications taken note of hereinabove. Even
this communication clarifies that the age of superannuation was not raised in
respect of Librarians and Directors of Physical Education, thereby excluding
those who may be holding posts considered as equivalent to teaching
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positions, but not undertaking class-room teaching in respect of the subject
of higher learning, in the centrally funded institutions for higher learning
and technical education. The clause relating to “applicability of the scheme”
contained in the communication dated 31.12.2008 shows that the
Government consciously granted revision of pay even to Librarians and
Directors of Physical Education, as granted to teachers engaged in class-
room teaching in respect of subjects of higher learning and technical
education, even though the age of superannuation of Librarians and
Directors of Physical Education was not raised from 62 years to 65 years.
Thus, the aspect of age enhancement for superannuation, and pay revision
were treated separately.
17. From the above scheme, what emerges is that the enhancement in the
age of superannuation was granted in respect of teachers who undertake
class-room teaching in subjects in which the university grants under-
graduate and post-graduate degrees. Stenography may be one of the
subjects taught in the prescribed curriculum of a particular under-graduate or
post-graduate course. However, by itself, it is not a subject of study in
which the university grants a degree – undergraduate, or post graduate. It is
a vocational training subject and the clear purport of the aforesaid
communications issued by the Government of India, is to limit the extension
of the superannuation age of teachers, who could alone be Assistant
Professors, Associate Professors and Professors, to 65 years. The expression
“teacher” used by the Central Government in its aforesaid communication –
in respect of whom the age of superannuation has been raised to 65 years,
cannot be understood as a “teacher”, as defined in the Delhi University Act
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or generically understood.
18. As noticed above, the expression “teacher” as defined in the Delhi
University Act is for the purpose of the said Act, whereas, the Government
of India formulates its policies not within the four corners of the language
used, and expressions defined in the Delhi University Act or, for that matter,
in any other enactment, whereby any other university or institution may be
constituted. Eventually, it is for the Government of India to provide the
budget and meet the fund requirements in respect of teachers serving in
centrally funded institutions of higher learning and technical education,
whose age of retirement is enhanced from 62 to 65 years. Therefore, while
examining the issue – whether the age of superannuation of “Instructors” in
Stenography also stands increased to 65 years, or not, one has to look to the
meaning ascribed to the word “teacher” by the Government of India, and not
the generally understood meaning of the term “teacher”, or to the meaning
ascribed to the term “teacher” in the Delhi University Act.
19. Thus, we find no reason to interfere with the impugned judgment.
20. The appeals are, accordingly, dismissed.
VIPIN SANGHI, J
SANJEEV NARULA, J
DECEMBER 16, 2019
B.S.Rohella
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