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HIGH COURT OF DELHI
KANCHAN SAINI ..... Appellant/ Review Petitioner
Through: Mr. Ashwin Kumar DS and Mr. Ishan Roy Chowdhary, Advocates.
Through: Mr. Mohinder J S Rupal, Advocate for Delhi University.
Mr. Apoorv Kurup and Ms. Gauri Gobardhan, Advocates for UGC.
Mr. Anurag Dayal Mathur, Advocate for College of Vocational Studies.
DR KULDEEP AHUJA ..... Appellant/ Review Petitioner
Through: Mr. Meet Malhotra, Senior Advocate
Review Petitioner/Appellant
Through: Mr. Mohinder J S Rupal, Advocate for Delhi University.
Mr. Apoorv Kurup and Ms. Gauri Gobardhan, Advocates for UGC.
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
& REVIEW PET. 28/2021 in LPA No. 390/2019; CM APPL. 1733/2021
& REVIEW PET. 12/2021 in LPA 448 /2019 The Controversy before the Court
1. Given the similarity in the grounds of challenge and arguments advanced by the counsel in both the above-captioned review petitions [Review Pet. 28/2021 in LPA 390/2019 and Review Pet. 12/2021 in LPA 448/2019], the same are being disposed of through this common order. For the sake of convenience and contextual clarity, the facts from LPA 390/2019 are specifically referenced.
2. The Review Petitioner, Ms. Kanchan Saini, was appointed to the post of an Instructor in English Stenography at Motilal Nehru College [“Respondent No. 2”], a college affiliated with the University of Delhi [“Respondent No. 1”], on 29th August, 1997. She relies upon the terms of her appointment letter and Form of Agreement of Service for College Teachers to emphasise that her role as an instructor involves a range of teaching activities, including imparting instructions and conducting daily classes. Accordingly, she contends that her position qualifies under the definition of “Teachers” as per Section 2(g) of the Delhi University Act, 1922 [“DU Act”]. In support of this claim, reliance is also placed on the clarifications issued by the Respondent No. 1 on 16th May, 1994 and 24th January, 1995, which categorized the post of “Instructor in English Stenography” as a teaching position.
3. University Grants Commission (UGC) issued a notification dated 24th December, 1998, increasing the age of superannuation for teachers from 60 to 62 years [“UGC Notification, 1998”]. Paragraph 16.2.0 of the said notification specified that “Age of retirement of Registrars, Librarians, Physical Education personnel, Controllers of Examinations, Finance Officers and such other university employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years…”. Thereafter, on 24th October, 2002, the UGC issued a letter clarifying that the age of superannuation for Instructors in affiliated Colleges of Delhi University would be 60 years. By way of a letter dated 23rd March, 2007, the erstwhile Ministry of Human Resource Development (MHRD), renamed as the Ministry of Education, directed that the age of superannuation for teachers be increased from 62 years to 65 years. This was supplemented by a letter dated 19th April, 2007, clarifying that such increase would not be applicable to any other categories of employees, “notwithstanding the fact that the posts they hold may be considered as equivalent to teaching positions.” This enhancement was subsequently confirmed by the “UGC Regulations on Minimum Qualifications for Appointment of Teachers and other academic staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010” [“UGC Regulations, 2010”].
4. The Review Petitioner made a representation to Respondents No. 1 and 2 contending that on account of her holding a teaching position, her age of superannuation ought to be treated at par with teachers and she should be entitled to the enhanced age of superannuation of 65 years. Upon such representations being rejected, she instituted a writ petition[1] seeking enhancement of her age of superannuation. Although the Court issued notice in the writ petition, no stay was directed and thus, the Review Petitioner superannuated at the age of 60 years on 30th April, 2017.
5. The writ petition was dismissed by the learned Single Judge through judgment dated 26th March, 2019[2] [“Single Judge Order”]. This judgment was assailed by way of a letters patent appeal[3], however, the Division Bench affirmed the ruling of the Single Judge through judgment dated 16th December, 2019[4] [“Impugned Order”]. The Review Petitioners then escalated the matter by filing a Special Leave Petition (SLP) before the Supreme Court against the Division Bench’s Impugned Order[5]. The said SLP was dismissed as withdrawn on 11th September 2020, with the following observations: “Learned senior counsel appearing for the petitioner seeks and is granted permission to withdraw this Special Leave Petition with liberty to approach the High Court by filing review petition. The Special Leave Petition is, accordingly, dismissed as withdrawn with the aforesaid liberty.”
6. It is noted that similar liberty as noted above was also granted in the connected matter, viz. LPA 448/2019, through order dated 17th July, 2020 in SLP(C) 7247/2020. In such circumstances, in terms of the liberty granted by the Supreme Court, the instant review petitions have been filed. Submissions advanced by the parties
7. The contentions raised by the counsel for Review Petitioners are W.P.(C.) No. 3679/2017 Neutral Citation No. – 2019:DHC:1752 LPA 390/2019 Neutral Citation No. – 2019:DHC:7011-DB summarised as follows:
7.1. At Paragraph No. 2(i) of the Single Judge Order, an issue was framed to the effect: “Whether the petitioners can be regarded as ‘Teacher’?” However, no conclusive finding was rendered on the said issue. Likewise, even in the appeal proceedings, this issue was specifically raised but not considered or deliberated in the Impugned Order. The determination of this issue is fundamental and goes to the root of the present matter: if the Petitioner is held to be a Teacher, then she will retire at the age of 62 years as per Ordinance XII, Rule 3-A (i) of the University of Delhi Calendar, 2004, wherein it is mentioned that the age of retirement of College appointed Teachers shall be 62 years. In support of this contention, reliance is placed on the following judgments:
(i) P.S. Ramamohan Rao v. A.P. Agricultural University & Anr.;6
(ii) Narendra Dev University of Agriculture & Technology & Ors. v.
(iii) S. Dildar Haider v. Jamia Milia Islamia & Anr.8, as approved by a
7.2. There is crucial evidence on record to show that the Petitioner has been ‘engaged in teaching classes/ courses/ programme of study’, as required under the MHRD letter dated 19th April, 2007, which was not considered by the Single Judge. As a result, the Impugned Order erroneously SLP (Civil) No. 9770/2020
Judgment dated 18th August, 2006 in W.P.(C) No. 2829/2003; Neutral Citation No.– 2006:DHC:5702 Judgment dated 30th September, 2011 in W.P.(C) No. 6409/2000; Neutral Citation No.– 2011:DHC:5109holds that the Review Petitioner, appointed as an Instructor, may at best be considered equivalent to holding a teaching position. On this erroneous premise, the Impugned Order holds that for the enhancement effectuated by the MHRD letters to be applicable, it requires a person to “undertake classroom teaching in subjects in which the university grants under-graduate and post-graduate degrees”, which is beyond what is stipulated by the MHRD letters. The Review Petitioner satisfies the requirement of the term ‘Teachers’ as per the MHRD letter(s), thereby entitling her to enhanced age of superannuation. Reliance in this regard is placed on P.S. Ramamohan Rao (supra).
7.3. The UGC circular dated 15th February, 2019, stipulates that Instructors carrying out teaching assignments and other academic duties are to be considered as ‘other academic staff’. It follows that the Petitioner, not being a non-teaching employee, is in any event entitled to retire not at 60 years but something more.
8. Per Contra, the counsel for Respondent No. 1 has argued as follows:
8.1. The case put forth in the present review petitions was never a ground urged in the writ petition or in appeal, and is therefore beyond the scope of review.
8.2. The Impugned Order categorically holds that the Review Petitioners cannot be considered as Teachers and thus, are not entitled to the benefit of enhancement in age of superannuation. This finding cannot be challenged by way of a review petition as it is not an error apparent on the face of the record.
8.3. The reasoning is apparent from the Impugned Order for denying the benefit of enhancement of superannuation would be the same. If the Review Petitioners are not considered as a part of the teaching staff, then they cannot claim entitlement to take benefit of enhancement of the age of superannuation from 60 to 62 years, which was extended only to Teachers/ teaching staff. Analysis and Findings
9. We have considered the aforenoted contentions and carefully reviewed the documents on record. The Review Petitioners initially approached this Court seeking enhancement of age of superannuation of Instructors to 65 years, pursuant to the MHRD’s direction to enhance the superannuation age from 62 to 65 years for ‘Teachers’ who are actively engaged in teaching classes, courses, or programs of study in such institutions. The petitioners alleged discrimination, claiming that an arbitrary distinction had been drawn against them, as they were not recognized as such under the notifications despite fulfilling the roles and responsibilities of a teacher. Their argument hinged on Section 2(g) of the DU Act, which they claimed unequivocally includes ‘Instructors’ within scope of the expansively defined term ‘Teachers’. The relevant provision delineates that “teachers” shall include “Professors, Readers, Lecturers, and other persons imparting instruction in the University or in College or Hall.”
10. In both, the Single Judge Order and the Impugned Order, the Court considered the grievance raised in the original writ petition, which centred around the enhancement of the superannuation age of Instructors from 60 to 65 years. Upon deliberation, it has been concluded that the benefit of enhancement of the age of superannuation to 65 years would not be available to Instructors. This conclusion was founded on a reading of the relevant MHRD letters and the UGC circulars, which underscore that enhancement of superannuation age to 65 years was given effect to in order to address a specific need, being the shortage of teachers in universities and other teaching institutions, and thus, was categorically limited to three designations in respect of teachers in Universities and Colleges, i.e. Assistant Professor, Associate Professor and Professor.
11. In view of the aforenoted considerations, the Single Judge Order denied the enhancement of superannuation age for Instructors to 65 years. This decision was upheld by the Impugned Order, relevant portion whereof is reproduced hereunder:
not the generally understood meaning of the term “teacher”, or to the meaning ascribed to the term “teacher” in the Delhi University Act.”
12. From the foregoing, it is noticed that the Single Judge Order as well as the Impugned Order found it inappropriate to read the definition of “Teachers” under the DU Act into the letters issued by the MHRD. In such circumstances, there arose no necessity to delve into a detailed examination of whether ‘Instructors’ fell within the ambit of Section 2(g) of the DU Act for the purposes of determining their entitlement to the enhanced age of superannuation to 65 years. Nonetheless, we agree with the Review Petitioners that there is indeed no finding rendered as to whether ‘Instructors’ would qualify as ‘teachers’ under Section 2(g) of the DU Act.
13. At this juncture, it is pertinent to note that the Review Petitioners have specifically placed reliance on the judgment in S. Dildar Haider (supra), which we believe calls for closer scrutiny:
13.1. In S. Dildar Haider (supra), the writ petitioner, who was appointed as an Instructor in Leather Craft at Jamia Milia Islamia University, sought the benefit of the enhanced retirement age from 60 to 62 years, similar to that granted to teachers vide the aforenoted UGC Notification, 1998. The Single Judge ruled that the University’s decision to deny the petitioner’s request to superannuate 62 years was arbitrary.
13.2. Considering Paragraph 16.2.0 of the UGC Notification, 1998, the Single Judge in S. Dildar Haider (supra) noted that certain non-teaching staff, such as Registrars, Librarians, Physical Education personnel, etc. were also granted the benefit of enhanced age of superannuation at par with that of teachers.
13.3. The Single Judge in S. Dildar Haider (supra) further held that even if Instructors were considered to hold non-teaching posts, they did perform certain teaching/ academic duties. Thus, even if they are not equated with ‘teachers’, they should not be disadvantaged compared to employees performing purely administrative duties who had nonetheless been granted the benefit of enhanced retirement age similar to the teachers despite not being involved in academics/ teaching. On this issue, reliance was placed on the Supreme Court’s judgment in Sher Singh & Ors. v. Union of India & Ors.10.
13.4. Accordingly, in line with the Supreme Court’s observations in Osmania University v. V.S. Muthurangam & Ors.11, which held that conditions of service should be uniform “as far as possible”, the Single Judge in S. Dildar Haider (supra) held that Instructors should be, at the least, entitled to the same benefit of enhanced age of superannuation from 60 to 62 years granted to other ‘non-teaching staff’ such as Registrars, Librarians, and Finance Officers.
14. However, in the instant case, the Single Judge Order rejected the applicability of the judgment in S. Dildar Haider (supra), distinguishing it on factual grounds12. Specifically, it was noted that the said judgment considers the enhancement of the age of superannuation to 62 years, whereas the present case pertains to extension to 65 years. Consequently, the Single Judge Order observed that the while rendering the judgment in S. Dildar Haider (supra), the Court did not have the opportunity to consider the MHRD’s letters dated 23rd March, 2007, and 19th April, 2007, which enhanced the retirement age of teachers to 65 years, as they were issued
Refer to Paragraph No. 48 of the Single Judge Order (2019:DHC:1750) subsequent to the judgment being delivered. Similarly, it was noted that the Court in S. Dildar Haider (supra) was unable to consider the MHRD circular dated 31st December, 2008, which specified that the benefit of age enhancement to 65 years was confined only to the posts of Assistant Professor, Associate Professor, and Professor. Thus, both the Single Judge Order and the Impugned Order conclude that the benefit of extending the age of superannuation to 65 years would not be available to Instructors.
15. In our opinion, the Review Petitioners have presented a more nuanced argument in the present petitions, confining their relief to the enhancement of retirement age of Instructors to at least 62 years. In this context, they argue that they qualify as ‘teachers’ under the DU Act, and accordingly, relying on the judgment in S. Dildar Haider (supra), Instructors are entitled to enhancement of their superannuation age to 62 years, in terms of Paragraph 16.2.0 of the UGC Notification, 1998. Since neither the Single Judge Order nor the Impugned Order of the Division Bench addressed this crucial aspect, their status as ‘teachers’ under the DU Act remains undetermined. This omission, they argue, warrants reconsideration and a more favourable interpretation consistent with the precedent established in
16. Since the writ petition as originally filed pertained to enhancement of retirement age to 65 years, the Court confined their deliberation to the meaning of ‘teachers’ as per the government notifications and circulars. Thus, there is indeed no finding on the issue of whether Instructors fall within the scope of ‘teachers’ as defined in the DU Act, and consequently, the Review Petitioners’ contention regarding this issue not having been considered has merit. Further, there has also been no deliberation as to whether Instructors would be entitled to the benefit of 62 years in terms of the precedent set in S. Dildar Haider (supra), irrespective of whether they are to be equated to the post of teachers. The failure to deliberate on the aforenoted issues is a significant oversight. This determination is crucial as it directly impacts their eligibility for the enhanced retirement age. A comprehensive examination should include an analysis of the roles and responsibilities of Instructors, comparing them with those of recognized teachers, to ensure a fair and just application of the retirement policy.
17. In view of the above, we are inclined to review the Impugned Order. Accordingly, the matter should now be placed before the concerned Roster Bench for a limited examination of the following questions:
17.1. Whether, considering the material on record regarding the Review Petitioners’ engagement in teaching classes/ courses/ programmes of study, the Review Petitioners qualify as “teachers” under Section 2(g) of the DU Act.
17.2. Whether the Petitioners are entitled to benefit of enhanced age of superannuation in terms of the judgment in S. Dildar Haider (supra), which equates certain non-teaching staff with ‘Teachers’ for the purpose of enhancement of age superannuation to 62 years.
18. The review petitions are disposed of in the above terms.
19. List before the Roster bench on 5th August, 2024.
SANJEEV NARULA, J VIBHU BAKHRU, J JULY 18, 2024 Nk/dg