Dr Sheela Kumari. S vs. University Of Delhi & Anr.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on : 30 October, 2023
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Pronounced on: 23 January, 2024

+ W.P.(C) 13288/2023, CM APPL. 52443/2023 & 55680/2023
DR SHEELA KUMARI. S ..... Petitioner
Through: Mr. KC Mittal, Mr. Yugansh
Mittal and Mr. Vaibhav Yadav,
Advocates.

versus

UNIVERSITY OF DELHI & ANR. ..... Respondents
Through: Mr. Sudhir Nandrajog, Sr.
Advocate with Mr. Santosh
Kumar, Mr. Daksh Arora, Ms.
Akshita Singh and Mr. Kushagra
Aman, Advocates for R-2.
Mr. Mohinder JS Rupal, Mr.
Hardik Rupal and Ms. Sachpeet
Kaur, Advocates.
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

CHANDRA DHARI SINGH, J.
1. The instant writ petition has been filed under Article 226 of
Constitution of India, on behalf of the petitioner seeking the following
reliefs:
“ A. Issue a writ in the nature of certiorari and/or any
other appropriate writ/order/direction quashing:
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a. (1) The executive committee resolution no 20
dated 9.6.2023; and
b. (2) The Order dated 24.8.2023 bearing ref.
No. Gc/133-c/2023/25 being illegal and
contrary to article 14, 19 & 21 of the
Constitution of India; and
c. Direct the Respondents not to retire the
petitioner at the age of 62 and allow the
petitioner to discharge her duties and functions
till the petitioner attains the age of 65;
A. Pass any other writ/order/direction as this Hon'ble
court may deem appropriate.”

FACTUAL MATRIX
2. The petitioner was appointed at the post of „Director Physical
Education‟ (“DPE” hereinafter) in the Gargi College i.e., respondent no.2
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(“Respondent College” hereinafter) on 31 August, 1987 and
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accordingly, an Agreement dated 25 August, 1989 was executed
between the petitioner and Respondent college, whereby the petitioner
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was appointed as a member of the staff of the College w.e.f. 25 August,
1987. Thereafter, the petitioner was re-designated as a „Lecturer‟ in
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pursuance to the letter dated 11 January, 1991 issued by the respondent
no.1 i.e., University of Delhi (“Respondent University” hereinafter). By
virtue of the said letter, it was stated by the Respondent University that
the Directors of Physical Education in all colleges were being re-
designated as „Lecturers‟.
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3. Subsequently, vide letter dated 27 January, 1994 the petitioner
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was informed that her case would be put up for consideration on 1
February, 1994 before a Screening/Evaluation Committee for her
placement to the post of Lecturer (Senior Scale) in the slab of Rs. 3000 –
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5000, and was further directed to remain present in the college in case
the committee desired to interact with her. Consequent to the above, vide
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letter dated 6 June, 1994, the petitioner was promoted as a Lecturer
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(Senior Scale) with effect from (“w.e.f.” hereinafter) 16 June, 1993 in
accordance with Ordinance XVIII 7 (4-C) (a).

4. The petitioner then received a grant from the University Grants
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Commission (“UGC” hereinafter) vide letter dated 22 January, 1996 in
pursuance to her application seeking support for a research project titled
„Analysis of attitudes of administrators, lecturers, students and parents
towards national sports organization programmes in women colleges of
the University of Delhi‟.
5. Thereafter, the salary of the petitioner as a „Lecturer Senior Scale‟
was revised and fixed in the scale of Rs. 10000-325-15200 vide letter
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dated 10 December, 1998. The petitioner was further considered for
promotion to the post of a „Reader‟ by a Selection Committee constituted
in consonance with Ordinance XVIII 7 (4-C) (b) (ii). Further, vide letter
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dated 22 January, 2001 the respondent no.1 promoted the petitioner to
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the post of a „Reader‟ w.e.f. 27 July, 1998 and her salary as a „Reader‟
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was fixed in the scale of Rs. 12000-18300 w.e.f. 27 July, 1998. At the
time of promotion to the post of „Reader‟, on account of her obtaining a
PhD, the respondent no.1 intimated the petitioner regarding the approval
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of two advance increments vide letter dated 14 May, 2001.
6. The Department of Higher Education, Ministry of Human
Resource Development, Government of India (“DHE” hereinafter) vide
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letter dated 18 April, 2007 enhanced the age of superannuation of
teachers from 62 years to 65 years. Further, the UGC vide its notification
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dated 31 December, 2008 specified the age of superannuation
applicable to DPE‟s and stated the reasoning to its effect under Clause
8(f)(iii) of the said notification. The relevant portion of the above stated
notification is reproduced hereinbelow:
“(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.”
7. Thereafter, the Executive Committee (“EC” hereinafter) of
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Respondent University vide Resolution No. 142 dated 6 October, 2009,
amended the Ordinance XXVII of the Respondent University‟s Statute to
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put it in line with the aforementioned notification dated 31 December,
2008, wherein, the age of superannuation was fixed at 62 years for the
post of DPE. The relevant portion of the Resolution is reproduced
hereinbelow for clarity:
“142. Resolved the amendment with regard to the age of retirement
in respect of Director of Physical Education in consonance with
Government of India, Ministry of Human Resource Development
guidelines (Govt. of India, MHRD Circular No. 1-32/2006-
U.II/U.I.(ii) dated 31.12.2008, ratified by the Executive Council in
its meeting held on 16.01.2009 be accepted.

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8. The petitioner was then informed by the Respondent University
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vide letter dated 8 March, 2010, that she had been re-designated as an
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„Associate Professor‟ and her pay has been revised w.e.f. 1 January,
2006.
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9. Another Notification dated 30 June, 2010 was issued by the UGC
reiterating the age of superannuation to be fixed in consonance with the
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DHE notification dated 31 December, 2008. The relevant portion is
reproduced hereinafter for reference:
“2.0.0 PAY SCALES, PAY FIXATION FORMULA AND AGE OF
SUPERANNUATION, etc.
2.1.0 The revised scales of pay and other service conditions
including age of superannuation in central universities and other
institutions maintained and/or funded by the University Grants
Commission (UGC), shall be strictly in accordance with the decision
of the Central Government, Ministry of Human Resource
Development (Department of Education), as contained in Appendix-
I .”

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10. On 9 January, 2023 the Executive Committee passed the
Resolution No. 20, wherein, it stated that as per the decision of the
Division Bench of this Court in „L.P.A No. 142/2022 titled as Meera
Sood v. University of Delhi & Ors.‟ and „L.P.A No. 491/2019 title as
Sudhir Kumar Taneja v. University of Delhi & Ors.‟ the age of
superannuation of DPE‟s is 62 years. The relevant portion of the said EC
resolution is reproduced hereinbelow for reference:
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“E.C. Resolution No.20 (20-20)
Dated: 09.06.2023
20/- The following decision/ action taken by the Vice-Chancellor
in exercise of his powers/ delegated powers vested upon him other
than emergency powers were reported, recorded and confirmed:
20-20/- Accord of approval on 30.05.2023 to the Judgement of the
Hon‟ble court pronounced on 22.05.2023 passed in LPA142/2022
titled Meera Sood Vs University of Delhi & Ors. And LPA491/2019
titled Sudhir Kumar Taneja vs University of Delhi & Ors. regarding
the retirement age of Director in Physical Education. (Copy of the
Judgment is placed at Appendix-88 )
1. That the superannuation age of Director Physical Education is 62
Years.
2. That the recovery shall not be made on account of salary given to
Director Physical Education teachers for their services rendered
after 62 years, in the college. However, retirement benefits shall be
calculated for the period upto superannuation age of 62 years only.”

11. Pursuant to passing of the above said resolution, the Respondent
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College issued an order dated 24 August, 2023 to the petitioner,
thereby, intimating her that she shall be superannuating from the services
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of the Respondent College on attaining the age of 62 years on 31
October, 2023, and thus she was asked to obtain all the necessary
clearances. The relevant portion of the said order is reproduced
hereinbelow:
“Ref. No. GC/133-C/2023/25
Dated 24.08.2023
Dear Dr. Sheela Kumari S.
I write to inform you that as per service records, you will be
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superannuating from the service of Gargi College on 31 October
2023 on attaining the age of 62 years. You are requested to take
clearance from administration, accounts, library & respective
department, so that your dues can be cleared well in time.
Yours sincerely,
Prof. Sangeeta Bhatia
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Principal (Offg.)”

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12. Being aggrieved by the Resolution No. 20 dated 9 June, 2023
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and order dated 24 August, 2023 (“impugned orders” hereinafter), the
petitioner has preferred the instant petition seeking quashing of the said
impugned orders.
SUBMISSIONS
(on behalf of petitioner)
13. The learned counsel appearing on behalf of the petitioner
submitted that the respondents have infringed upon the petitioner‟s
fundamental and legal rights by passing the impugned orders and hence
the same are liable to be quashed.
14. It is submitted that the respondents have acted in contravention to
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the law by passing the impugned EC Resolution No. 20 dated 9 June,
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2023 and order dated 24 August, 2023 thereby, superannuating the
petitioner at the age of 62 years despite her holding the post of an
Associate Professor and therefore, the said decision is arbitrary, illegal
and contrary to Articles 14, 19 and 21 of the Constitution of India.
15. It is submitted that the petitioner was initially appointed to the
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post of Director Physical Education vide letter dated 31 August, 1987,
wherein she was entrusted to work in the research domain and in
teaching capacity as and when assigned by the university. In pursuance
of the same, the Respondent College and the petitioner signed an
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agreement 25 August, 1989, wherein the petitioner has been
categorically mentioned as a teacher.
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16. It is submitted that in the year 1991, the petitioner was designated
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as a Lecturer vide letter dated 11 January, 1991 issued by the
Respondent University and this letter not only applies to the petitioner
but was issued to designate all the other Directors of Physical Education
in all Colleges falling under the Respondent University.

17. It is submitted that as per the terms of Ordinance VIII-7(4-
C)(b)(ii), the petitioner was promoted to the post of a Reader vide letter
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dated 22 January, 2001 by a duly constituted Selection Committee and
accordingly, she received two advance increments as she had obtained a
PhD at the time of the said promotion.
18. It is submitted that the Respondent University re-designated the
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petitioner as an Associate Professor vide its letter dated 8 March, 2010,
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wherein, her pay scale was revised retrospectively w.e.f. 1 January,
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2006, and was further enhanced retrospectively vide letter dated 11
July, 2018.
19. It is submitted that when the petitioner requested an identity
certificate from the Respondent College for issuance of passport, the
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Respondent College issued a certificate dated 2 December, 2010,
wherein her designation was stated as an Associate Professor.
20. It is submitted that the respondents have concealed the actual
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position held by the petitioner as the impugned order dated 24 August,
2023 itself refers the petitioner as an Associate Professor and not a
Director Physical Education and pertinently, every other communication
issued to the petitioner by the respondents addressed her as an Associate
Professor and not a Director of Physical Education.
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21. It is further submitted that the petitioner being an Associate
Professor was nominated as a „Teachers Representative‟ in the governing
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body of the college from 1 August, 2022, for a year in the category of
more than 10 years of service which is apparent from the minutes of the
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meeting with respect to EC meeting no. 1262 dated 18 August, 2022.
Therefore, the petitioner‟s selection to the above stated body clearly
infers the position she held for 10 years, i.e. the Associate Professor.
22. It is submitted that as per the Ordinance XVIII, promotion to a
Lecturer in Senior Scale shall be carried out by a Screening/Evaluation
Committee whereas promotion to a Reader shall be done by a duly
constituted Selection Committee.
23. It is further submitted that the petitioner was not given any
promotion as a matter of routine, rather her records including the
interview, contributions of teaching, research, educational reforms,
sports activities, and other forms of academic work done by her in the
institution was considered and evaluated duly.
24. It is submitted that the Respondent University in its EC Resolution
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dated 10 April, 1974, and 29 May, 1995 noted that the post of
„Director in Physical Education‟ was recognized and re-designated as
„Lecturer‟ being recognized as Teachers under Section 2(g) of the
University of Delhi Act, 1922 (“the Act” hereinafter) in college.
25. It is further submitted that even after the above said decision was
duly noted by the Respondent University, the same was never made
applicable to the post of Director Physical Education and the Librarians
employed in the University.
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26. It is submitted that in the meeting of the Academic Council (“AC”
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hereinafter) dated 2 November, 1981, it was resolved to re-designate
the post of Director of Physical Education as Lecturers. Further, pursuant
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to the above stated AC resolution, the EC in its meeting dated 10
November, 1990, approved the above said AC resolution which is herein
below for reference:
“127. Resolved that the following executive council resolution no
516 dated 26.12.81 adopted in the light of the academic council
resolution no 178 dated 2.11.81 regarding directors of physical
education be implemented and accordingly the directors of physical
education in colleges be hereafter known as lecturers”.

27. It is further submitted that the petitioner was appointed as a
Lecturer pursuant to the decision of the Respondent University and no
more continued at the post of Director of Physical Education to which he
was initially appointed in the year 1987.
28. It is submitted that the powers and authority of the EC and AC are
provided under Section 6 of the Act, wherein, the councils have powers
to appoint Readers, Lecturers, etc. based on the recommendation of the
Selection Committee constituted for the said purpose.
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29. It is submitted that pursuant to the letter dated 11 January, 1991,
the above said resolutions of EC and AC were referred and it was
intimated that the Directors Physical Education in Colleges are being re-
designated as Lecturers.
30. It is submitted that a list of 15 Associate Professors in other
colleges who are identically placed and are treated at par with the
petitioner in terms of the aforementioned decisions of the Respondent
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University have retired at the age of 65 years. Therefore, the impugned
action of the respondents of superannuating the petitioner at the age of
62 years despite being an Associate Professor is arbitrary, discriminatory,
unfair and violative of Article 14 of the Constitution of India.
31. It is submitted that having been appointed and continued for many
years in accordance with the law and in compliance with the university‟s
ordinance and statute, the petitioner‟s claim is supported by the doctrine
of legitimate expectations, and therefore, the petitioner holding the post
of an Associate Professor ought to retire at the age of 65 years.
32. It is submitted that a former Associate Professor namely Dr. P.P.
Ranghanathan of PGDAV College was appointed as a Lecturer (Physical
Education) in the year 1991 and retired at the age of 65 years, and in
view of the same the petitioner is also entitled to be awarded parity as
she is identically placed to the person mentioned above.
33. It is submitted that the petitioner has been taking classes and
teaching two courses comprising of both theory and practical
components and the same can be proved with the help of the course
timetable placed on the record.
34. It is submitted that having been promoted from the post of DPE,
and continuing at the post and nomenclature of Associate professor for
many years, the respondents are, at this stage, estopped from claiming
that the petitioner is not an Associate Professor and that she continues at
the post of Director Physical Education.
35. It is submitted that the judgement passed by the Division Bench of
this Court in Jitendra Singh Naruka v. University of Delhi, 2016 SCC
OnLine Del 5893 is distinct from the facts of the instant petition as the
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petitioner therein being a DPE in the University was never re-designated
as a Lecturer and performed functions in the form of
administrative/ministerial/organizational only in the University and not a
college which is under the administrative control of the Respondent
University.

36. It is further submitted that there exists a distinction between a
DPE College and DPE University as the former imparts instructions to
the students enrolled in a particular college whereas, the latter performs
merely administrative functions solely within the domain of the
University. Thus, a DPE College is covered within the definition as
provided under Section 2(g) of the Act and the EC rightly noted in its
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Minutes of Meeting dated 29 May, 1995 wherein, the DPE University
has been excluded from the ambit of Section 2(g) of the Act.
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37. It is submitted that the UGC Regulation dated 30 June, 2010 also
draw a distinction between a DPE in a College and a DPE in the
University wherein the qualifications, pay-scales, eligibility, and nature
of job are distinct to one another. It is further submitted that Regulation
6.7.0 provides for promotion of a DPE College whereas no such
provision exists for a DPE University. Thus, the two posts are distinct
and cannot be used interchangeably.
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38. It is submitted that vide its letter dated 8 April, 2016, the UGC
provided for 65 years as the age of superannuation of Assistant Professor
in Physical Education and the petitioner is covered under the said
guidelines as she is fulfilling the conditions enshrined in the said letter.
39. It is submitted that the impugned orders are malicious, biased and
an abuse of power which has caused grave injuries to the petitioner‟s
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fundamental rights inasmuch as the petitioner who admittedly holds the
post of an Associate Professor is sought to be demoted three steps to the
post of Director Physical Education, a post to which the petitioner was
initially appointed and has been promoted subsequently after serving for
more than two decades.

40. Therefore, in light of the foregoing submissions, the learned
counsel appearing on behalf of the petitioner seeks that the instant
petition may be allowed, and the relief be granted, as prayed.

(on behalf of respondents)
41. Per Contra, the learned senior counsel appearing on behalf of
respondents vehemently opposed the instant petition submitting to the
effect that the impugned orders have been passed in accordance with law
and the same do not violate any of the petitioner‟s fundamental or legal
rights. Further, the present petition being devoid of any merits is liable to
be dismissed.
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42. It is submitted that the impugned Order dated 24 August, 2023
bearing ref. No. Gc/133-c/2023/25 and Executive Committee Resolution
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no. 20 dated 9 June, 2023 is well reasoned and is in consonance with
the Ordinance, Statute and the law as settled by this Court in numerous
petitions dealing with the superannuation of a Director Physical
Education.
43. It is submitted that the instant petition is bad for non-joinder of
necessary party as the petitioner has not impleaded University Grants
Commission which is a necessary and proper party for complete and
effective adjudication of the instant writ petition.
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44. It is submitted that the University of Delhi has been constituted
under the Delhi University Act, 1922, by an Act of the Parliament
therefore it is governed by the Act, Statute and Ordinances. Further, the
UGC from time to time formulates service conditions of employees of
the university and the affiliated colleges.

45. It is submitted that the issue raised by the petitioner in the instant
petition with respect to the age of superannuation for Director Physical
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Education has been settled in the judgment dated 22 September, 2022
passed by the Hon‟ble Supreme Court in the case of Jitender Singh
Naruka vs. University of Delhi & Ors. , SLP No. 7279/2017 . Hence, the
said issue has attained finality.
46. It is further submitted that the instant case is identical to the facts
and issues already dealt with by the Division Bench of this Court, in
Sudhir Kumar Taneja v. University of Delhi, 2023 SCC Online Del
2982 , and thus, the present petition is liable to be dismissed in light of
the same.
47. It is submitted that the relief as prayed by the petitioner cannot be
granted as the post of Director Physical Education and the Associate
Professor fall into two separate cadres thus, the purported promotion of
the petitioner from the post of DPE to Associate Professor is not in
consonance with the University Statute, Ordinances and UGC
guidelines.
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48. It is submitted that the DHE vide its letter dated 19 April, 2007
clearly stated that enhancement of age of superannuation from 62 to 65
years was not applicable to other categories of employees, except the
teachers who were actually engaged in teaching positions.
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49. It is submitted that Clause 8(f)(iii) of the UGC notification dated
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31 December, 2008, issued by the DHE states that enhancement in age
of superannuation was to meet the shortage of teachers and since no
shortage with respect to DPE exists, the increase in age of
superannuation cannot be made applicable to the post of DPE. Therefore,
the above stated enhancement does not extend to the category of the
petitioner who belongs to a different cadre altogether.
50. It is submitted that the UGC notified its Regulations of 2010 on
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30 June, 2010, wherein the age of superannuation of DPE and
Librarians was fixed at 62 years in Central Universities funded and
maintained by the UGC. Further the above said regulations were adopted
by the EC of the University of Delhi hence, would squarely apply to the
instant petitioner.
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51. It is submitted that a notification dated 30 June, 2010, was issued
by the UGC, wherein, it was expressly stated that the age of
superannuation shall be fixed in consonance with the notification dated
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31 December, 2008, issued by the DHE.
52. It is submitted that as per the UGC the age of superannuation is 62
years for DPE as their post is that of „academic non-vocation‟ and the
petitioner is confusing the nomenclature of the post with the teaching
post. As the Respondent College does not have a Bachelor‟s of Physical
Education as a subject and thus, the question of appointment of the
petitioner to the post of Associate Professor does not arise.
53. It is submitted that the UGC has time and again clarified that the
age of superannuation of Director Physical Education in Physical
Education is 62 years and therefore, DPE cannot be treated as Teachers
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in the college. Similarly, the UGC in its 2018 guidelines stated that an
Associate Professor must devote at least a minimum of 14 hours of
teaching whereas, the petitioner has never devoted such hours of
teaching in her career as the predominant duties assigned to her consist
of organising sports activities.

54. It is submitted that in the amended UGC regulation of 2010 and
2018, nowhere the nomenclature of the post of DPE to that of a Lecturer
has been used interchangeably. Further, no provision to promote the
DPEs to the post of an Associate Professors were inserted. The petitioner
has always been a DPE, who due to some exigencies was assigned and
tasked to perform various administrative duties and responsibilities.
Thus, the petitioner cannot claim to be holding a teaching position.
55. It is submitted that the petitioner claims to be taking classes in
some electives such as „Gym Operations and Health & Fitness Elective
Course‟, etc., and thus, she is a teacher within the definition as provided
under the Act. It is submitted that the said contention of the petitioner is
baseless as merely because the petitioner has been officiated in some
teaching capacity, the same would not tantamount to her being engaged
in an actual teaching position. Hence, it would not convert her
appointment into a teaching post when the Respondent College does not
have a Course in Bachelor‟s in Physical Education.
56. It is submitted that as highlighted by the petitioner that other
similarly placed Associate Professors in other Colleges affiliated with the
Respondent University have been granted enhancement in the age of
superannuation from 62 to 65 years, whereas the same alleged benefit
cannot be granted to the petitioner as the same mistake cannot be
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repeated when the law in this regards is well settled by this Court thus,
parity as sought by the petitioner cannot be extended.
57. It is submitted that the contention raised by the petitioner with
regard to addressing her as an Associate Professor in the official
communication, will have no bearing or create any legal right unless it is
derived from any Statute, Ordinance or Regulation.
58. Therefore, in light of the foregoing submissions, the learned
counsel appearing on behalf of the respondents prayed that the instant
petition, being devoid of merit, may be dismissed.
ANALYSIS AND FINDINGS
59. Heard the learned counsel for the parties at length and perused the
records.
60. It is the case of the petitioner that she was initially appointed by
the Respondent College at the post of DPE in the year 1987 and
subsequently an agreement of service to its effect was executed between
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the Respondent College and the petitioner on 25 August, 1989. Further
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in pursuance of the letter dated 11 January, 1991, the petitioner was re-
designated as „Lecturer‟ and was later on granted the „Lecturer Senior
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Scale‟ dated 6 June, 1994. Thereafter, the petitioner was designated as a
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„Reader‟ by way of promotion on 22 January, 2001, and subsequently
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re-designated as an „Associate Professor‟ on 8 March, 2010.
61. It is has been argued by the petitioner that she is a „Teacher‟ under
the definition of the Act, as she has been engaged in teaching electives
and has been taking classes like any other teacher. The petitioner has
assailed the impugned orders submitting to the effect that to
superannuate the petitioner on attaining the age of 62 years with effect
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from 31 October, 2023 is against the law since the petitioner has been
holding the post of Associate Professor. It has been contended that the
impugned orders are discriminatory, illegal, arbitrary and violative of the
fundamental rights of the petitioner. Lastly, the petitioner seeks parity
with the similarly placed Associate Professors who have not been
superannuated at the age of 62 years and have been allowed to continue
until the age of 65 years.
62. In rival submissions, it has been contended by the respondents that
the instant petition is bad for non-joinder as the UGC, which is a
necessary party has not been impleaded by the petitioner. It has been
further contended that the post of a DPE and an Associate Professor fall
under two separate classes as the latter are teachers and just because
some benefits in the form of nomenclature and pay scale are extended to
the DPE‟s, it cannot mean to classify them under the definition of a
„Teacher‟. The respondents have relied upon the notifications issued by
the DHE which have been implemented by the UGC, wherein, the age of
superannuation of DPE has been fixed at 62 years and a clear distinction
is drawn between Associate Professor/Assistant Professor/Professors on
one side and Librarians and DPE‟s on the other. Further, the age of
superannuation of DPE‟s which is 62 years is no more res-integra as has
been observed by the Hon‟ble Supreme Court and this Court, and hence
the instant petition is liable to be dismissed.
63. At this juncture, this Court finds it necessary to decide the instant
petition by adjudicating upon whether the impugned orders passed by
the respondents, by virtue of which the petitioner has been
superannuated at the age of 62 years, is liable to be quashed.
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64. Before delving into the merits of the instant case, this Court finds
it appropriate to highlight the settled law in the context of issuance of a
writ of certiorari under the extraordinary jurisdiction conferred upon this
Court under Article 226 of the Constitution of India.
65. The Hon‟ble Supreme Court in its recent judgment in Central
Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023
SCC OnLine SC 996 , observed two cardinal principles of law
governing exercise of extraordinary jurisdiction under Article 226 of the
Constitution, more particularly, when it comes to issuance of a writ of
certiorari. The relevant portion of the said judgment is reproduced
hereinbelow:
“50. Before we close this matter, we would like to observe
something important in the aforesaid context:
Two cardinal principles of law governing exercise of extraordinary
jurisdiction under Article 226 of the Constitution more particularly
when it comes to issue of writ of certiorari.
51. The first cardinal principle of law that governs the exercise of
extraordinary jurisdiction under Article 226 of the Constitution,
more particularly when it comes to the issue of a writ of certiorari is
that in granting such a writ, the High Court does not exercise the
powers of Appellate Tribunal. It does not review or reweigh the
evidence upon which the determination of the inferior tribunal
purports to be based. It demolishes the order which it considers to
be without jurisdiction or palpably erroneous but does not substitute
its own views for those of the inferior tribunal. The writ of certiorari
can be issued if an error of law is apparent on the face of the record.
A writ of certiorari, being a high prerogative writ, should not be
issued on mere asking.
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52. The second cardinal principle of exercise of extraordinary
jurisdiction under Article 226 of the Constitution is that in a given
case, even if some action or order challenged in the writ petition is
found to be illegal and invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can refuse to upset it with a
view to doing substantial justice between the parties. Article 226 of
the Constitution grants an extraordinary remedy, which is
essentially discretionary, although founded on legal injury. It is
perfectly open for the writ court, exercising this flexible power to
pass such orders as public interest dictates & equity projects. The
legal formulations cannot be enforced divorced from the realities of
the fact situation of the case. While administering law, it is to be
tempered with equity and if the equitable situation demands after
setting right the legal formulations, not to take it to the logical end,
the High Court would be failing in its duty if it does not notice
equitable consideration and mould the final order in exercise of its
extraordinary jurisdiction. Any other approach would render the
High Court a normal court of appeal which it is not.
X X X X
65. Thus, from the various decisions referred to above, we have no
hesitation in reaching to the conclusion that a writ of certiorari is a
high prerogative writ and should not be issued on mere asking. For
the issue of a writ of certiorari, the party concerned has to make out
a definite case for the same and is not a matter of course. To put it
pithily, certiorari shall issue Thus, from the various decisions
referred to above, we have no hesitation in reaching to the
conclusion that a writ of certiorari is a high prerogative writ and
should not be issued on mere asking. For the issue of a writ of
certiorari, the party concerned has to make out a definite case for
the same and is not a matter of course. To put it pithily, certiorari
shall issue to correct errors of jurisdiction, that is to say, absence,
excess or failure to exercise and also when in the exercise of
undoubted jurisdiction, there has been illegality. It shall also issue
to correct an error in the decision or determination itself, if it is an
error manifest on the face of the proceedings. By its exercise, only a
patent error can be corrected but not also a wrong decision. It
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should be well remembered at the cost of repetition that certiorari is
not appellate but only supervisory.”
66. Upon perusal of the above stated decision, the following can be
summed with respect to the position as to what must be observed by a
High Court while exercising an issuance of writ in the form of certiorari
and the same can be fairly narrated via two cardinal principles of law.
Firstly, the High Court does not exercise powers of an appellate
authority and it does not review or reweigh the evidence upon which the
consideration of the inferior Court purports to have based. The writ of
certiorari can be issued if an error of law is apparent on the face of the
record. Secondly , in such cases, the Court has to take into account the
circumstances and pass an order in equity and not as an appellate
authority. Simply put, certiorari is issued for correcting errors of
jurisdiction exercised by the inferior Courts, for Courts violating
principles of natural justice and for Courts acting illegally. Further, the
Court issuing such a writ shall act in supervision and not in appeal.
67. Now adverting to the facts of the instant petition.
68. The petitioner was promoted to various posts after the initial
appointment as DPE in pursuance of the Merit Promotion Scheme, 1987,
(“MPS” hereinafter). It can be noted from the letters issued to the
petitioner, that the said promotions were not through a properly
constituted Departmental Promotion Committee (“DPC” hereinafter)
instead the same were through the Screening-cum-Evaluation Committee
constituted for the purpose of considering the petitioner‟s promotion
under the MPS.
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69. The Division Bench of this Court in Sudhir Kumar Taneja v.
University of Delhi , 2023 SCC OnLine Del 2982 , highlighted the above
stated point of law and settled the law regarding which scheme and for
what purpose were the DPEs promoted. The relevant paragraphs of the
said judgment is reproduced herein below:
“34. Having regard to the aforesaid, one thing is clear, that the
promotions under the MPS was only in respect of financial
upgradation and certain other benefits and could not have been
considered as substantive promotions granted by a regularly
constituted DPC. As revealed from the records, there was no dearth
of DPE's in the Delhi University and as such to avoid stagnation in
such post, MPS was introduced whereby the incumbents were
provided financial upgradation. It is not the case of the appellants
that they have been promoted to the next higher post by a regular
DPC after consideration of their past regular service in a particular
grade. In other words, their substantive post remained the same all
throughout till now.
35. It is also clear from the MPS and the various correspondences
on record that the “promotions” under the MPS were primarily
financial upgradations with certain other benefits and the appellants
were unable to show even a single O.M., Notification or Circular
granting them regular promotion to the next higher post despite a
precise query by the Bench. All that the appellants have been
addressing and referring to, are the letters issued to them under the
MPS.”

70. The above stated judgement of Sudhir Kumar Jain (Supra) is
identical to the facts in the instant dispute. The petitioners in the said
case were also appointed as DPEs and subsequently were granted
promotions via the MPS and hence, a clear comparison can be drawn
with the instant petitioner as she too was promoted under the MPS.
71. Thus, from the above stated reasoning it can be summed up that
the promotion awarded to the DPEs in Delhi University was in
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consonance with the MPS which intended to grant financial upgradation
and avoid stagnation as there was no dearth of DPEs at that time in the
University. The Division Bench of this Court also highlighted that the
promotions were not carried out by a duly constituted DPC which
concludes that the substantive post remained the same all throughout.

72. Another aspect that has strongly been contended by the petitioner
in the instant case is that the post of the DPE was re-designated as
Lecturer and to substantiate the same reliance has been placed upon
th
letter dated 11 January, 1991, pursuant to which the same was
effectuated. Further, it has also been contended that due to re-designation
to the post of Lecturer, promotion to the post of a Reader and further re-
designation to the post of an Associate Professor makes it evident that
the petitioner shall be considered a „Teacher‟ under the Act, and thus, the
applicable age of superannuation should be 65 years.
th
73. The Division Bench of this Court in the judgment dated 18 May,
2012, passed in the case titled as Damayanti Tambay v. Union of India
& Ors. , W.P.(C) 7939/2011 , dealt with a similar issue, i.e., whether the
DPEs are „teacher‟ within the meaning of Section 2(g) of the Delhi
University Act, 1922. The relevant paragraphs of the judgement are
reproduced hereinafter:
“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.
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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:
"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
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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 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."
74. The Division Bench of this Court in Jitendra Singh Naruka
(Supra) , wherein the observations of the expert committee constituted
were reproduced, observed that there exists no parity between Library
and Physical Educational personnel on the one hand and Assistant
Professor/Associate Professor/Professor on the other, therefore, the
claim of enhancement of age of superannuation of Library and
Physical and Educational personnel from 62 to 65 years is not justified.
The relevant paragraphs of the judgement are reproduced hereinbelow:
“14. Pursuant to the judgment dated 18th May, 2012 in Damayanti
V. Tambay (Supra), an expert Committee was constituted
comprising of members of the University Grants Commission,
Ministry of Human Resource Development and different Universities
to examine the age of superannuation of Librarians and Directors of
Physical Education. The said Committee submitted a report dated
29th August, 2013, to the following effect:
• “No parity can be granted to Librarians/Deputy & Director of
Physical Education Personnel with that of Assistant Professors,
Associate Professors and Professors.
• There is no shortage of supply of Library and Physical education
staff in Universities system as that of the teachers.
• Hence, enhancement of age of superannuation of
Librarians/Deputy & Director of Physical Education Personnel
from 62 to 65 years is not justified.”
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15. This decision of the Committee and the consequent orders
passed were made the subject matter of challenge in Writ Petition
(C) No. 7375/2013 titled Krishan Gopal v. Union of India. Krishan
Gopal had earlier filed Writ Petition (C) No. 7130/2011 which was
disposed of by a common judgment dated 18th May, 2012 along with
the Writ Petition (C) No. 7939/2011 filed by Damayanti V. Tambay.
The Division Bench dismissed Writ Petition (C) No. 7375/2013 filed
by Krishan Gopal on 18th February, 2015 referring to the earlier
judgment dated 18th May, 2012 in the case of Damayanti V. Tambay
(supra) and held that the Division Bench had not agreed to the stand
that Librarians and the Directors of Physical Education were to be
treated as „teachers‟, notwithstanding that they were equated with
teachers for some benefits such as pay- scales, career advancement
scheme etc. The Division Bench in W.P. (C) No. 7375/2013 quoted
the data which had been relied upon by the Committee and also
extensively referred to the Expert Committee's opinion and their
findings. The relevant portion of the said judgment dated 18th
February, 2015 reads as under:
7. In compliance with the mandamus issued, a seven member
committee under Chairmanship of Prof. V.S. Chauhan comprising
six members being Prof. Furquan Qamar the Vice-Chancellor of
Central University of Himachal Pradesh, Dr. Akhilesh Gupta the
Secretary, UGC, Sh. Vikram Sahay the Director (Admn.), UGC,
Dr. Sandeep Chatterjee the Registrar, Jawaharlal Nehru
University, Sh. P. Sasikumar, the Under Secretary, MHRD and Sh.
Satish Kumar the Under Secretary, UGC was constituted which
gave a report that there was no reason to extend the benefit to the
librarians and DPEs of enhancing age of superannuation given to
teachers, and for which decision the Committee considered the
data pertaining to the librarian cadre and physical education
cadre at the level of the universities i.e. central universities and at
the level of colleges affiliated to or the constituent colleges of the
Central Universities. The data, put in a tabular form by the
Committee in its opinion dated August 29, 2013 which has been
challenged in the writ petitions, would be as under:-
Status of Staff in Library and Physical Education in Universities
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Vacancy positions of Librarians in Colleges

Vacancy position of DPEs in Colleges

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16. In para 9 of its opinion, the Committee concluded as under:-
“Having extracted the above, the Committee noted that% of
vacancies mentioned in the aforesaid 2 charts in the said paper
written by aforesaid authors does not lead to any conclusion of
shortage of the staff in Library and Physical Education in
Universities. The aforesaid chart merely (sic. nearly) gives
existing% of Vacancy of different posts in Library and Physical
Education Cadre in Universities which may be lying vacant for
various reasons such as procedural delay in filling up the
vacancies. Further, the Committee finds it difficult to accept that if
a post of Library and Physical Education Cadre in Department in
Universities is lying vacant, then that will lead to irresponsible
conclusion of shortage supply of Library and Physical Education
staff in Universities system in the country. In fact, the existing
vacancy if any cannot be the Indicator of shortage of supply of
manpower and in the present case it cannot be that if a post is
lying vacant, then by reason of such existing vacancies only, there
is a shortage of qualified Librarians and Physical Education
Personnel in the University System in India. The Committee also
deem it appropriate to note that so far as the issue of shortage of
qualified teachers is concerned i.e. in the backdrop of actually
qualified teachers for recruitment and also the consequential
impact of teacher-student ratio to be maintained in an expanding
Higher Education System. However, the said parameter is not
available in case of Librarians in particulars. The Committee is of
the view that there is no parity between Library and Physical
Educational Personnel on the one hand and Assistant
Professor/Associate Professor/Professor on the other hand, claim
of enhancement of age of superannuation of Library and Physical
and Educational Personnel from 62 to 65 years is not justified.
Accordingly, the Committee recommended that the existing age of
retirement of Library and Physical Education Personnel
Education should be maintained at 62 years only.:”
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75. Further, the Division Bench of this Court in Krishan Gopal vs.
Union of India , 2015 SCC OnLine Del 7385 , observed that extension
of certain benefits such as pay scales and career advancement would not
amount to DPEs to fall under the definition of a „Teacher‟ as the two are
a separate class altogether. The relevant paragraph of the judgement is
reproduced hereinbelow:
“5. The Division Bench did not agree with the stand taken by the
librarians and DPEs that in law they were required to be treated as
teachers. The Division Bench highlighted that if for some benefits,
such as pay scales, career advancement schemes etc. they were
equated with teachers would not mean that they would become
teachers. The Division Bench noted that merely because in the past
benefit given to one class was extended to the other would not make
the other a part of the former. The Division Bench held that teachers
formed a class separate from that of librarians and DPEs. The
Division Bench recognized that it was the prerogative of the
executive to determine the age of retirement, but lodged a caveat.
The caveat being that when the age of superannuation of a class of
employees was increased, it has to be made applicable to all
employees falling in the same category, as otherwise it would result
in invidious discrimination. It was held that if a reason existed for
two classes, given benefit to only one would be a case of in invidious
discrimination.”
76. This Court also deems it necessary to deal with another important
st
aspect which is the notification dated 31 December, 2008 issued by the
DHE, wherein, the age of superannuation for the post of teachers and
equivalent cadres was enhanced from 62 years to 65 years. The
notification under para 8(f)(iii) noted that since there exists no shortage
of Librarians and DPEs, the age of superannuation of both these
categories shall remain 62 years.
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77. The Division Bench of this Court in Kanchan Saini v. University
of Delhi , 2019 SCC OnLine Del 11984 , observed that the DHE had
already dealt with the aspects of „revision in pay‟ and „enhancement in
age of superannuation‟ separately and it consciously granted only
revision of pay to the DPEs. The relevant portion of the said judgement
is reproduced hereinbelow:
“16. ... 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 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 classroom 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.”
th
78. A Coordinate Bench of this Court in judgment dated 10
November, 2021, passed in Dr. Meera Sood vs. University of Delhi &
Ors. , W.P.(C) 5652/2019 , elucidated on the aspect discussed herein
above and stated that there exists no stipulation either in the Statutes or
in the Ordinances which contemplates that a DPE can be re-designated
as a Lecturer. A plane reading of the Ordinances clearly reveal that the
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appointment of Teachers and DPEs are governed by separate Ordinances,
without any provision of interchangeability. The relevant portion is
reproduced hereinbelow:
“39. It is a conceded case of the petitioner that she was appointed as
DPE in respondent No.2 / College on a permanent basis in the year
1983 and an agreement of service dated August 13, 1983, was
executed between the respondent No.2 / College and the petitioner.
The Resolution of the EC which has been forwarded to the College
by the University vide its letter dated January 11, 1991, reads as
under: -
“127. Resolved that the following Executive Council
Resolution No.516 dated 26-12-81 adopted in the light of the
Academic Council Resolution No.178 dated 2-11-81
regarding Directors of Physical Education be implemented
and accordingly the Directors of Physical Education in
Colleges be hereafter known as Lecturers.”
40. It appears that the subsequent Resolution of the EC dated
November 10, 1990 (at page 98 of the writ petition) has not been
sent to the College by the University. The same reads as under: -
“Ref. EC. Resolution No. 546 dated 26-12-81
xxx xxx xxx
The Council further resolved that the change of designation
of Directors of Physical Education to that of Lecturers in
Physical Education be processed according to the provisions
contained in the Statutes and Ordinances of the University.”
41. The aforesaid Resolution clearly states that the change of
designation of DPE to that of Lecturer in Physical Education has to
be processed in terms of the Provisions contained in Statute and
Ordinances of the respondent No.1 / University.
42. But Ordinance XII of the Ordinances of the respondent No.1 /
University refers to the appointment of „Teachers‟ in College.
Clause 1A thereof reads as under: -
“1-A. Every whole-time teacher shall be engaged by a
College as a member of its staff on salaries in the scales
prescribed by the University for the various categories of its
teachers.”
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43. Similarly, Clause 2A and 2B thereof reads as under: -
“2-A. Promotion of College Appointed teacher (including
Directors of Physical Education) under the Merit Promotion
Scheme of 1987 as accepted by the Executive Council, shall
be made in accordance with the eligibility conditions and in
the manner prescribed in this scheme in this behalf.
2-B. Promotion of College Appointed Lecturers as Lecturers
in Senior Scale / Reader‟s Grade (Selection Grade / Readers
/ Professors) shall be made under the Merit Promotion
Schemes as accepted by the Executive Council, in
accordance with the eligibility conditions under the relevant
scheme.”
44. Similarly, Ordinance XVIII 4(5) relates to the appointment of the
Librarian and the DPE in the College. The same reads as under: -
“(5) The appointment of the Librarian and the Director of
Physical Education in the College shall be made by the
Governing Body of the College by advertisement. The
Selection Committee for recommending appointment of the
Librarian and the Physical Director will be constituted as
follows:
Librarian:
1. Chairman of the Governing Body or his nominee.
(Chairman)
2. One University representative on the Governing Body.
3. University Librarian.
4.Head of the Department of Library and Information
Science.
5. Principal of the College / Principal (Evening Classes) in
case the Selection is for the evening classes.
Three members inclusive of the Chairman and University
Librarian or Head of the Department of Library and
Information Science of the University shall form a quorum.
Director of Physical Education:
1. Chairman of the Governing Body or his nominee.
(Chairman)
2. One University representative on the Governing Body.
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3. Director of Physical Education of the University.
4.Principal of the College - Principal (Evening Classes) in
case the selection is for the evening classes.
5. Two experts nominated by the Academic Council from out
of the panel of names approved by it.
6. Director of Physical Education in the College in case of
selection of additional post of Director of Physical
Education.
Three members inclusive of the Chairman and an expert
nominated by the Academic Council or the Director of
Physical Education of the University shall form a quorum.”
45. There is no stipulation either in the Statutes or in the Ordinances
at least nothing has been brought to my notice which contemplates a
DPE can be re-designated as Lecturer. A reading of the Ordinances
referred above, clearly reveal, the appointments of Teachers and
DPE are governed by separate Ordinances, without any Provision
of interchangeability. So, in the absence of any Provision in the
Statue or Ordinances in that regard, the petitioner could not have
been designated as Lecturer. Mr. Kumar is right in stating that the
Resolution of 1981, as relied upon by Mr. Dutta, was in place when
the petitioner was appointed as DPE in respondent No.2 / College,
but still was appointed as DPE and not Lecturer and no challenge
was made by the petitioner to her appointment as DPE. I may also
state here that no order has been shown to me after the receipt of the
communication dated January 11, 1991, re-designating the
petitioner, who was working as DPE, as Lecturer / Senior Lecturer.
Much reliance has been placed by Mr. Dutta on the communication
issued to the petitioner showing her designation as Reader. The
reliance is misplaced as the grant of designation is not permissible
under Statue / Ordinances and shall have no effect in law. Similarly,
all other communications on which reliance has been placed by Mr.
Dutta would not help the case of the petitioner to establish that the
petitioner is a teacher in the College and entitled to the benefit of
Regulations 2010 of the UGC specifying the retirement age of a
teacher is 65 years. Rather, there is a Resolution No.142 of the EC
of the University of Delhi dated October 06, 2009, wherein it is
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clearly stated that the age of retirement of the Registrar, Librarian,
and DPE shall be on attaining the age of 62 years.”
79. Further, the Division Bench of this Court in Jitendra Singh
Naruka (Supra) observed the following with respect to the guidelines
issued by the DHE and reiterated by the UGC. The relevant paragraphs
of the judgement are reproduced hereinbelow:
“24. A Single Judge had recorded the statement of the counsel for
the University of Delhi that the University had decided not to retire
the petitioner till necessary amendments were carried out in the
University Ordinance or the UGC would publish their notification
whichever was earlier. The Single Judge did not comment on the
merits and in view of the stand taken by the University of Delhi, the
writ petition was treated as infructuous.
25. Two events happened thereafter. Firstly, the amended UGC
th
Regulations 2010 were notified on 30 June, 2010. They had
stipulated that the age of superannuation in Central Universities
and other Universities maintained or funded by the UGC shall be in
st
accordance with the circular dated 31 December, 2008 issued by
Government of India, Ministry of Human Resource Development.
We have already quoted paragraph (ii) of the said circular. Apropos
the Librarians and Directors of physical education were to retire at
the age of 62 years. This notification by the UGC would be in
accordance with the statement made by the counsel for the
University of Delhi as recorded in paragraph 3 of the order dated
th
19 August, 2009.
26. Secondly, the University of Delhi also amended their Statute,
th
namely, Ordinance XXVII by EC Resolution No. 142 dated 6
October, 2009 in the following terms:
“ 142. Resolved the amendment with regard to the age of
retirement in respect of Director of Physical Education in
consonance with Government of India, Ministry of Human
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Resource Development guidelines (Govt. of India, MHRD
Circular No. 1- 32/2006-U.II/U.I.(ii) dated 31.12.2008,
ratified by the Executive Council in its meeting held on
16.01.2009 be accepted.
Ordinance XXVII: Age of retirement of staff
Existing
The age of retirement of the Registrar and Librarian and
Director of Physical Education shall be the completion of
the age of 62 years.”
Amended
The amended Ordinance specifically states that the age of
retirement of Director of Physical Education, as is the case
with the Registrar and Librarian, shall be 62 years.
27. It is in these circumstances that the University of Delhi had
issued the office order dated 22nd October, 2009 intimating that the
petitioner had retired as he had attained the age of 62 years.
28. The petitioner now contends that the University of Delhi had
amended Ordinance XXVII and consequentially the age of
retirement of the Director Physical Education was fixed at 62 years.
Albeit the petitioner would not be covered by the said Ordinance for
in terms of the letter dated 2nd October, 1985 quoted above the
petitioner has been recognized as a teacher and he would be,
therefore, governed and covered by Ordinance XI and the
Resolution of the Executive Council regarding enhancement of age
The age of retirement of the Registrar and Librarian shall be the
completion of the age of 62 years. of superannuation from 62 years
to 65 years for teaching positions. We have to only record the said
contention and reject the submission. The petitioner cannot be
allowed to raise this issue after he had relied upon the decision in
the case of Damayanti V. Tambay (Supra) and Writ Petition (C) No.
6242/2011 which was disposed of on the said basis. Damayanti V.
Tambay Thame (Supra) as quoted above makes a clear distinction
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between teachers and the Directors of Physical Education. The
difference between the two posts is also affirmed in the decision
dated 18th February, 2015 in Krishan Gopal (Supra). These
decisions hold that though Directors of Physical Education can be
equated to teachers for certain purposes and benefits, they would
not qualify and cannot be treated as teachers for the purpose of age
of superannuation. The orders relied upon by the petitioner passed
in LPA No. 347/2009 dated 30th July, 2009 and in Writ Petition No.
10375/2009 dated 19th August, 2009 were passed at an earlier point
of time and this contention and issue was not raised by the petitioner
when the writ petition (C) No. 6242/2011 filed by him was disposed
of vide decision dated 7th August, 2012.
29. Be that as it may, we would hold that the amended Ordinance
XXVII would be clearly applicable to the petitioner. The said
Ordinance specifically deals with the age of
superannuation/retirement of Registrars, Librarians and Directors
of Physical Education. The said amendment being specific to the
three categories would override the general references equating the
Directors of Physical Education with teachers or for that matter the
letter dated 2nd August, 1985. Referring to the teaching positions
stipulated in Ordinance XI, and by applying the principle of
harmonious construction and the precept that a special provision
would override a general clause, we are of the opinion that,
Ordinance XXVII would be applicable and Directors of Physical
Education cannot place reliance on Ordinance XI. The petitioner
cannot be singled out, and given the benefit by being treated as a
teacher.”
80. It can be concluded from the above stated decisions of the
Division Bench of this Court that the status of DPEs cannot be meant to
fall within the definition of a „Teacher‟. Further, the benefits which were
extended to one class of person i.e., Associate Professor/Assistant
Professor/Professors, cannot mean that the same must be extended to
another class, i.e., DPEs. Hence, both classes/cadres cannot be equated at
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a similar footing because a Teacher and a DPE form two separate
classes, therefore, the petitioner cannot claim parity qua the teachers.
81. Further, from the above stated amended Ordinance it can be
summed up that the EC deliberately went ahead to amend the said
resolution to include within its ambit the DPEs. Therefore, the
petitioner‟s contention that the post of DPE was re-designated as
„Lecturer‟ and thus, shall be equated at par and should fall within the
ambit of a „Teacher‟ cannot be accepted. Having said that, insofar as a
DPE is concerned, as noted under the „EC Resolution 142‟, the age of
superannuation shall be 62 years and the same shall be applicable to the
petitioner as duly observed above.
82. Therefore, this Court is of the considered view that although the
petitioner may have been promoted and given the nomenclature along
with increase in the pay scale, yet the substantive post of the petitioner
remained that of a DPE, since the promotions were carried out by a
Screening-cum-Evaluation Committee under the MPS and not by a duly
constituted DPC.
83. This Court also deems it necessary to state that the demarcation of
two separate cadres (i.e. teachers on one hand and DPEs on the other)
can be adduced from the reasoning stated by the Expert Committee
specifically constituted to consider, whether the benefit of enhancement
in age of superannuation shall be extended to the DPEs, and Librarians
as has been extended to the teachers. The committee inter alia reasoned
that since there is no shortage of supply of Physical Education staff in
Universities as compared to the teachers, the DPEs cannot be brought
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within the ambit where the age of superannuation has been enhanced
from 62 years to 65 years.
84. In this backdrop, this Court is of the considered view that since the
above stated executive decision is taken to cater to the abundance of
vacancies for teachers, the same cannot be extended to DPEs as no such
abundance exists. Thus, such decisions shall be left for the executive
body to consider and decide as per its requirements, since it is their
prerogative as they are better equipped to take such policy decisions.
85. Further, the petitioner had strongly contended that identically
placed people in other colleges falling under the Respondent University
have been granted enhancement in age from 62 years to 65 years for
superannuation. In this regard, this Court is of the view that the
petitioner cannot assert negative equality. To put it another way, if there
has been an incident of incorrect application of law or of actions that
are against the law, it would not give rise to a positive and assertive
cause of action for other people in identical circumstances, thereby,
seeking the same relief.
86. In light of the above, it is beyond cavil that the issue raised by the
petitioner is no more res integra and has been argued, tested and
considered in various judgments passed by the Division Bench of this
Court and thus, the same does not merit any intervention of this Court. A
bare perusal of the said judgments makes it clear that the impugned EC
th
Resolution No. 20 dated 9 June, 2023, and the impugned order dated
th
24 August, 2023, have been passed in consonance with the observations
made therein.
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87. Therefore, this Court is not inclined to grant to the petitioner a
writ in the nature of certiorari to quash the impugned orders, as the same
have been passed in consonance with the EC Resolution and also the
judgements passed by this Court in cases discussed above. Accordingly,
st
the petitioner having attained the age of superannuation on 31 October,
2023, has to be treated as superannuated.
CONCLUSION
88. In view of the discussions harboured hereinabove, the issue which
arose for consideration by way of the instant writ petition is decided by
holding that the petitioner was not promoted by a duly constituted
Departmental Promotion Committee rather, she received promotion
under the Merit Promotion Scheme which intended to extend financial
upgradation in pay and it catered to the issue of stagnation at a position.
The age of superannuation of DPE/petitioner is 62 years as provided by
the UGC guidelines and thus, the petitioner/DPE do not fall within the
meaning of a „Teacher‟ under the Act, since they form two distinct
cadres.
89. Therefore, this Court is of the opinion that the petitioner has not
been able to make out any case to invite interference of this Court under
its extraordinary writ jurisdiction.
90. In view of the above discussion on facts as well as on law, this
Court does not find any cogent reason to grant the reliefs as prayed by
the petitioner since there is no force in the propositions put forth before
this Court.
91. Accordingly, the instant petition is dismissed being devoid of
merits.
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92. Pending applications, if any, also stand dismissed.
93. The judgement be uploaded on the website forthwith.

(CHANDRA DHARI SINGH)
JUDGE
JANUARY 23, 2024
gs/db/ryp
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