GOVT. OF NCT OF DELHI AND ANR. vs. V. JEGANATHAN ARULMONI

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 02.07.2018
Pronounced on: 25.07.2018

+ W.P.(C) 3549/2016, C.M. APPL.22788/2018

GOVT. OF NCT OF DELHI AND ANR. ….Petitioners
Through: Sh. Naushad Ahmad Khan, ASC for
GNCTD.

Versus

V. JEGANATHAN ARULMONI …..Respondent
Through: Ms. Rashmi Chopra, Advocate for
R-1.
Ms. Avnish Ahlawat and Sh. N.K. Singh, Standing
Counsel, for DTU/R-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K. CHAWLA

S. RAVINDRA BHAT, J.
1. The Govt. of NCT of Delhi, in this writ petition, challenges an
order of the Central Administrative Tribunal (hereafter “CAT”),
which declared and directed that the respondent (hereafter
“Arulmoni”) had to be treated as holding a post equivalent to a
Lecturer and was therefore entitled to a higher age of retirement.
2. The facts necessary to decide this case are that Arulmoni joined
the Delhi College of Engineering (“DCE”) when it was directly
administered by the Govt. of NCT. He was appointed as a Foreman
Instructor on the recommendations of UPSC by office letter dated
17.02.1994. He holds a doctorate (Ph.D.) as he is a postgraduate in
engineering. Upon the enactment of the Delhi Technological
W.P.(C) 3549/2016 Page 1 of 14



University Act pursuant to its provisions, Arulmoni’s services were
placed at the disposal of the University (hereafter “DTU”) where he
continued to work. By a letter dated 10.03.2005, the Government of
NCT of Delhi recommended to the Principal Secretary (TTE),
Directorate of Training and Technical Education, Govt. of NCT of
Delhi that Foremen Instructors, including Arulmoni had been teaching
at UG level and were conducting workshop classes and laboratories
and that the posts of Foreman Instructor were created as follow up of
Madan Committee report with the purpose to strengthen the workshop
teaching and practice in Colleges of Engineering & Technology. In
terms of recommendations of the Madan Committee, Foreman
Instructors had been kept at the level of lecturers and they also assume
the responsibility for teaching workshop technology. It was felt that
therefore, they are entitled to career advancement Scheme and other
benefits available to teachers as per AICTE pay structure.
3. The request was acceded to by the Government of NCT of
Delhi and approval of the competent authority was conveyed for grant
of career advancement Scheme benefits to the Foreman Instructors of
Delhi College of Engineering at par with lecturers, through letter
dated 23.08.2006. This was followed up and an order was issued on
13.04.2007 granting senior scale and selection grade to Foreman
Instructors, including Arulmoni (at par with Lecturers). Later the
Board of Management of Delhi Technological University (erstwhile
DCE) in its second meeting approved the categorical proposal that the
four posts of Foreman Instructor (Mechanical Engineering/Production
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Engineering Department) should be re-designated as Lecturer in
Mechanical/Production Engineering.
4. Implementation of this decision was through an order by the
Delhi Technological University Office Order dated 15.12.2009, which
reads as:
“Sub:- Re-designation of Foreman Instructor as lecturer.
The Competent Authority is pleased to re-
designate 4 post of Foreman Instructor as lecturer in the
mechanical/Production Engg. Deptt. with immediate
effect. The terms & conditions of service remain the
same.
No extra remuneration/scale shall be paid by the DTU.
This issues with the approval of BOM in the second
meeting held on 21.11.2009.”
5. By an Office Order dated 29.07.2010, the Government of NCT
of Delhi (DTTE) issued an order enhancing the age of superannuation
for teachers in degree level technical institutions from 62 to 65 years
i.e. for those involved in classroom teaching in order to attract eligible
people to the teaching career and to retain teachers in service for a
longer period. Para 7 of the order reads as follows:
“ 7. AGE OF SUPERANNUATION :
(i) The age of superannuation for teachers in Degree
Level Technical Institutions has been enhanced
from 62 to 65 years for those involved in
classroom teaching in order to attract eligible
people to the teaching career and to retain
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teachers in service for a longer period. Whereas
there is no shortage in the category of librarians
who aren’t involved in classroom teaching, the
increase in the age of superannuation from present
62 years shall not be available to the category of
librarian.
(ii) Subject to the availability of vacant position and
fitness, teachers shall also be reemployed on
contract appointment beyond the age of 65 years
upto the age of 70 years. Reemployment beyond
the age of superannuation shall however, be done
selectively for a limited period of three years i.e.
the first instance and another further period of two
years purely on the basis of merit, experience, area
of specialization and peer group review and only
against available vacant positions without
affecting selection or promotion prospects of
eligible teachers.

(iii) Whereas the enhancement the age of
superannuation for teachers engaged in class
room teaching is intended to attract eligible
periods to a career in teaching and to meet the
shortage of teachers by retaining teachers in
service for a longer period.”

In terms of Corrigendum issued on 26.11.2010, Arulmoni’s pay was
fixed as Associate Professor along with Lecturer. In this background,
when the issue of date of Arulmoni’s superannuation arose, the Govt.
of NCT of Delhi took the position that as Foreman Instructor, under
the rules, he held no post that was assigned classroom teaching
responsibilities; it differed with the opinion and recommendations of
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the DTU. Consequently, it said that the lower age of retirement
applicable to non-teaching personnel applied to Arulmoni. Aggrieved,
he approached the CAT.
6. Before the CAT, Arulmoni relied on all the previous GNCTD
orders, including those re-designating him as an Associate Professor,
orders granting him career advancement in terms of norms applicable
to teaching staff and other documents evidencing equivalence of
Foreman Instructors with Lecturers. The Govt. of NCT of Delhi
argued that retirement age of Foreman Instructors in other institutes of
GNCTD was 60 years. Consequently, the DTU had to process
Arulmoni’s case for retirement at the age of 60 years. It was argued
that since Foreman Instructors had no promotional avenues and were
given only financial benefits they are treated at par with Lecturers for
such purpose alone. NCT argued that the post of Foreman Instructor
had not been changed to Lecturer by it. It was highlighted that Office
Order dated 29.07.2010 provided for revision of pay scale and other
service conditions of the teacher and other eligible staff of degree
level technical institutions and not of Foreman Instructor.
Tribunal’s findings in the impugned order
7. The CAT compared the recruitment rules applicable to both
Lecturers and Foremen Instructors and held that they did not contain
any difference with respect to pay scale, eligibility conditions,
including educational qualifications, experience, etc. and that the
terms and conditions applicable to both was similar. It then considered
pay parity, career advancement proposals and acceptance, re-
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designation of the posts and other material circumstances, including
the content of work assigned to Foremen Instructors. Particularly, the
CAT examined that Arulmoni was assigned regular teaching
responsibilities and was asked to set and correct examination papers.
It therefore, held that the DTU’s decision not to treat him as entitled to
the benefit of higher age of retirement was on account of the Govt. of
NCT’s decision (i.e. the competent authority) and that the
nomenclature difference in his case (i.e. Foreman Instructor as
opposed to Lecturer/Professor) was not material. He was directed to
be treated at par with such teaching staff, and also entitled to the
enhanced age of retirement.
8. Mr. Naushad, learned counsel for the Govt. of NCT argued that
Arulmoni is an employee of Govt. of NCT of Delhi and other
foreman-instructors employed with Govt. of NCT of Delhi retire at
the age of 60 years and not at 65 years. If he is given the benefit of
enhancement of age of retirement to 65 years from 62 years (62 years
done by DTU without approval of the Government) it will lead to
unsettling consequences and Recruitment Rules would be rendered
irrelevant. He argued that the CAT ignored the fact that Arulmoni
joined the erstwhile DCE, Government of NCT of Delhi and after his
services were taken over by DTU, he continued to be an employee of
Govt. of NCT of Delhi and only worked in DTU on deemed
deputation from the Government. Counsel submitted that the
recommendations of DTU cannot be treated as binding or final,
because they have to be approved by the Government of NCT/
Chancellor/ Lt. Governor of Delhi.
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9. It was argued that re-designation of foreman instructors by
DTU as lecturers for the foreman instructors to get the benefit of
service conditions applicable to lecturers will amount to change of
service conditions of foreman instructors. The All India Council for
Technical Education (AICTE), the apex body for technical education
in the country, which among other things decides the pay scales,
service conditions and qualification for the teachers and other
academic staff in technical institutions clearly stated in its letter dated
07.04.2015 that the cadre of Foreman Instructor is not an approved
cadre in AICTE regulation. Counsel also relied on Section 4(d) of
DTU Act,
“Every person employed by the Delhi College of
Engineering immediately before such commencement
shall hold his office or service in the University by the
same tenure, at the same remuneration and upon the
same terms and conditions and with the same rights and
privileges as to pension, leave, gratuity, provident fund
and other matters as he would have held the same if this
Act had not been passed, and shall continue to do so
unless and until his employment is terminated or he has
opted for the University’s terms and conditions of
employment.’

It was submitted that in regard to exercise of option in terms of
Section 4(d) of the Act to become employee of DTU and discontinue
as an employee of Govt. of NCT of Delhi, Arulmoni had not accepted
the terms and conditions.
10. Counsel also stated that the letter dated 21.07.2014 recorded
that Principal Secretary, TTE by order dated 21.07.2014 conveyed the
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decision of the Lt. Governor, Delhi that all the erstwhile DCE staff
will continue to work in DTU on deemed deputation from the
Government of NCT of Delhi without affecting their rights and
privileges as Govt. employees and at the same time protecting their
interest such as their service conditions, like remuneration, pension,
leave, gratuity, provident fund and other matters until they opt for the
University terms and conditions of employment. Since Arulmoni was
appointed as Foreman Instructor on the recommendations of UPSC by
office letter dated 17.02.1994, the government had not re-designated
his post as Lecturer and also not enhanced the age of his
superannuation and as on date he was working in DTU erstwhile DCE
on deemed deputation from the Government and as per CCS (CCA)
Rules, his retirement age is 60 years. It was highlighted that the post
of Foreman Instructor had no promotional avenues and therefore, only
to give financial benefits under Career Advancement Scheme, he was
treated at par with Lecturers and granted financial benefits under
CAS. Lastly it was emphasized that AICTE recommendations were
for faculty involved in class room teaching and other eligible staff and
not for Foreman Instructors as they are non-vocational posts and are
governed by rules and regulations applicable for other Government
employees. It was urged that AICTE’s clarification dated 07.04.2015
stated that cadre of Foreman Instructor was not an approved cadre in
its Regulations. Therefore, benefits applicable to lecturers could not
be extended to Foreman Instructors.


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Analysis and Findings

11. The factual narration shows that when recruited, Arulmoni was
appointed as Foreman Instructor. It would be useful to notice and
extract the comparative table setting out the conditions applicable to
teaching posts (Lecturers) and Foremen Instructors:

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12. While recommending career advancement at par with Lecturers,
for Foremen Instructors, it was noted that “These posts were created
as a follow-up of Madan Committee Report with the purpose to
strengthen the workshop teaching and practice in college of
engineering & technology. As per the recommendations of the Madan
Committee, foreman instructors have been kept at the level of
lecturers and it is clearly mentioned that foreman instructors also
assume the responsibilities “for teaching workshop technology”.
Therefore, they are entitled for Career Advancement Scheme and
other benefits currently available to the teachers as per AICTE pay
structure.” This recommendation was accepted on 23.08.2006. An
order was issued on 13.04.2007 granting senior scale and selection
grade to Foreman Instructors, including Arulmoni – this too was at par
with Lecturers. The order of 15-12-2009 stated that “The Competent
Authority is pleased to re-designate 4 posts of Foreman Instructor as
lecturer in the mechanical/Production Engg. Deptt. with immediate
effect. The terms & conditions of service remain the same.”
13. In addition to these salient facts, the CAT also noted that
functionally, there was complete identity distinction between the posts
of Foremen Instructors in the college, and teaching faculty in terms of
workload, classroom teaching, paper setting and examination. During
the hearing in this case, these materials, and in addition, the replies to
queries made under the Right to Information Act (RTI) with respect to
class room teaching workloads and the subjects assigned, were shown
to the court. These support the CAT’s conclusion; in fact, they show
that Arulmoni used to be involved in teaching subjects that Lecturers
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were routinely undertaking. Unsurprisingly, this aspect – which goes
into the heart of the issue- was not addressed by the Govt of NCT of
Delhi, which chose to argue that the ultimate power to say whether a
post corresponded with another was with it (i.e. the competent
authority) and that since it did not accept Arulmoni’s request, this
court should let matters alone, reversing the CAT’s decision.
14. This court finds the NCT’s position strange. It is one thing to say
that it has the power, and entirely another to say why it chose to
exercise it a particular manner- in this case, by denying the undeniable
parity. Mere iteration of a fact, i.e. existence of power and the
differentia, as it were, is insufficient. One rationale discernable from
the NCT’s argument is that there are other Foremen Instructors, and
that if CAT’s decision is allowed to stand, there will be a clamor for
parity in retirement age as in this case. That reason, again is
unpersuasive. There may arguably be other Foremen Instructors: yet,
whether they discharge workshop teaching and classroom teaching as
in the case of Arulmoni, a doctorate in engineering, is unknown. The
history of designation of Foremen Instructors in the erstwhile DCE
clearly shows that the posts were originally treated as part of the
Lecturer cadre; the Madan committee recommendations led to their
being carved out of that cadre and their creation as a separate teaching
steam. In a sense they are a sub-species of the same species, i.e.
Lecturers.
15. In this context, it would be useful to extract the minutes of the
DTU Board’s meeting dated 21 November, 2009, recommending
change in designation for the post of Foremen Instructors:
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“The designation of Foreman instructor confuses with
the position of Foreman in workshop which is a
Technical Staff post in a much lower grade. Further, as
the position of Foreman instructor does not exist in NSIT
and other leading institutions such as IIT Delhi etc., the
incumbents occupying the above positions in erstwhile
DOE / DTU have been facing hardship on account of the
designation relating to their posts. The pay scale of
Foreman instructor is Rs.8000-13500 (pre-revised)
which is at par with the pay scale applicable to the
Lecturers position. Further, the Foreman (Selection
Grade) is given the scale of Rs. 12000-18300 (pre-
revised) which is also at par with the Lecturer (Selection
Grade).”

There is no dispute that this recommendation was acted upon. It is also
useful to extract the Govt of NCT’s decision dated 29 July, 2010,
enhancing the age of superannuation of teaching staff, reads as
follows:

“7. (i) The age of superannuation for teachers in Degree
Level Institutions has been enhanced from 62 years for
those involved in classroom teaching in order to attract
eligible people to the teaching career and to retain
teachers in service for a longer period. Whereas there is
no shortage in the category of librarians who aren’t
involved in classroom teaching the increase in the age of
superannuation from present 62 years shall not be
available to the category of librarian.”

16. These materials point unequivocally to NCT’s resolution to
increase the age of retirement to members of its teaching staff; the
express exclusion in that regard was the class of librarians, who were
not involved in classroom teaching. In the present case, given the
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complete parity in regard to eligibility conditions of Arulmoni’s post
and those of Lecturers, the necessity for candidates to have possessed
teaching experience, pay scales, and, more crucially the
interchangeability of teaching responsibilities, it could not be
justifiably urged that the two class of employees were different, merely
on account of a different nomenclature for one or that there were
others with similar nomenclature. As far as this case was concerned,
the CAT, in this court’s opinion, correctly concluded that the applicant
before it, i.e. Arulmoni, was recruited for and did discharge teaching
responsibilities, for which he was entitled to be treated as a member of
the teaching staff, and eligible for the enhanced age of superannuation
(65). The NCT’s plea lacks merit; consequently, the directions of CAT
shall be implemented within 6 weeks. Arulmoni shall be entitled to
differential pay, and all benefits that a regularly placed official of his
equivalent rank would have been entitled to, till attainment of 65 years.
The pay fixation order along with consequential arrears, for the
relevant period shall be released within 10 weeks. The petition is
dismissed, but in these terms.

S. RAVINDRA BHAT
(JUDGE)


A.K. CHAWLA
(JUDGE)
JULY 25, 2018
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