Shakeel Ahmad v. Jamia Millia Islamia

1. This writ petition has been filed seeking the following reliefs: “a) ISSUE an appropriate writ, order or direction by quashing the impugned office order dated 4.09.2018 issued by the Respondent university in as much as it determines the date of retirement of the Petitioner to be on 31.12.2019; b) ISSUE an appropriate writ, order or direction by directing the respondent University to treat the petitioner as having continued in its service till he attained the age of 65 years by declaring the position of the Petitioner to be at par with that of a Teacher and consider the age of the petitioner superannuation accordingly to 65 years; c) ISSUE an appropriate writ, order or direction by directing the respondent University to pay the salary for the period with effect from 01.01.2020 till date along with all consequential benefits such as enhanced gratuity, provided fund, etc; d) ISSUE an appropriate writ, order or direction by directing the respondent University to grant promotion(s) to the petitioner at par with all other teachers including parity in the pay scale of Research Assistant with other research assistants in other department of the respondent university along with other Central Universities along with all consequential benefits.”

2. Factual matrix to the extent relevant is that Petitioner was appointed as Research Assistant, Department of Sociology with Jamia Millia Islamia/Respondent (hereinafter referred to as “Jamia”) w.e.f. 26.08.1986 and was regularized on the same post on 08.02.1989, pursuant to recommendations of a Selection Committee.

3. It is averred in the petition that Petitioner was assigned classroom teaching and research work in light of Regulation XI and Section 2(n) of Jamia Millia Islamia Act, 1988 (hereinafter referred to as “1988 Act”). Petitioner continuously performed the duties of a whole-time teacher such as classroom teaching to undergraduate and post-graduate students, worked as a student advisor, assistant Dean student welfare, Assistant Proctor, Assistant Superintendent of Examination, Warden, member of flying squad, coordinator of admissions, course designing etc. during 32 years of his service. Petitioner holds a Masters Degree in Sociology and has qualified UGC-NET.

4. It is further averred that Allotment Committee of Jamia in its meeting held on 20.07.1992, while deciding for allocation of staff quarter had observed that Petitioner being a Research Assistant falls in the category of “Teacher” and Petitioner was in fact allotted the staff quarter. Several other incidences and documents have been referred to in the petition in support of the claim that Petitioner falls in the category of “Teacher”, which I shall advert to in later part of the judgement.

5. Genesis of this writ petition lies in the impugned office order dated 04.09.2018, uploaded on Jamia’s website, indicating Petitioner’s age of superannuation as 31.12.2019 at the age of 60 years, which initially led to the Petitioner making several representations for correction of his age of superannuation to 65 years. Petitioner avers that the Establishment Committee and Sub-Committee of Jamia recommended that Petitioner be retired at 65 years, however, no action was taken to comply with the recommendations, constraining the Petitioner to file a writ petition in this Court being WP(C) 13058/2019, seeking directions to Jamia to treat the age of superannuation as 65 years. Writ petition was disposed of vide order dated 11.12.2019 with direction to Jamia to take a decision on the recommendations of Establishment Committee dated 17.07.2019 and Sub-Committee of the Establishment Committee dated 04.09.2019, at the earliest.

6. Thereafter Petitioner came across a Resolution dated 22.11.2019, when the same was uploaded on the website of Jamia on 20.09.2020, whereby a five-member Committee had been constituted pursuant to Executive Council’s Resolution No.2.[8] A(13) dated 22.11.2019. As per the Petitioner, the Committee recommended that he be treated as a teacher for limited purpose of superannuation. Despite this recommendation, no decision was taken by Jamia and as the Petitioner was to retire on 31.12.2019, he again represented to give effect to the various recommendations in his favour, but to no avail and thus the Petitioner retired at the age of 60 years and later filed the present writ petition.

7. Contentions on behalf of the Petitioner: (A). Petitioner joined Jamia on 26.08.1986 as a Research Assistant in the Department of Sociology on a temporary basis and was confirmed on 08.02.1989. Petitioner has over the last three decades, continuously performed the duties of a wholetime Teacher which included classroom teaching to undergraduate and post-graduate students, setting question papers for UG/PG students, evaluating answer scripts, supervising participatory research projects and functioning as student advisor, course designer, Assistant Dean Student Welfare, Assistant Proctor, Assistant Superintendent of Examination, Warden, member of flying squad, Co-ordinator of Admissions, etc. Additionally, Petitioner also designed various courses for Jamia such as Sociology theory, Research Methods, Sociology of Law and Quantitative Research Methods. Plethora of documents have been placed on record which would substantiate that Petitioner was involved in actual teaching. Petitioner also fulfils the criteria of educational qualification as a Teacher since he has a degree in B.Sc. (Biology), B.Ed. and Masters Degree in Sociology and has also qualified UGC-NET. None of these facts or documents are denied in the counter affidavit. (B). Regulation XI of the Bye-Laws of Jamia, which was in existence when the Petitioner joined in 1986, even prior to the 1988 Act, provides that “Teachers” of Jamia would include a Research Assistant. Regulation XI as relied on is as follows:- “Section 1 of Regulation XI of the Respondent University Bye-Laws states: “1. Teachers of the Jamia shall be in the following grades, that is to say, Professors, Readers, Lecturers, Assistant Lecturers, Junior Lecturers, Research Assistants, Instructors and other teachers in so far as they take part in the teaching of the Jamia and shall be paid salaries on such scales as the Majlis-i-Muntazimah may direct.” (C). The 1988 Act was notified on 08.10.1988 and Section 2(n) thereof includes persons appointed for imparting instruction or conducting research in Jamia and designated as Teachers by Ordinances in the definition of “Teachers of the University”. Section 4 provides that the Jamia Millia Islamia Society shall be dissolved and all properties including rights, powers, etc. shall be transferred to and vest in the Jamia and the terms and conditions of those employed prior to the commencement of the 1988 Act will be preserved. Section 25(2) provides that Regulations and Bye-Laws in force immediately before the commencement of the Act shall be the first Ordinances of the Jamia and may be repealed or amended at any time by the Executive Council (‘EC’). Therefore, a conjoint reading of Sections 2(n), 4(vi) and 25(2) and Regulation XI makes it clear that Petitioner is covered within the definition of “Teacher”. Relevant provisions are as follows:- “Section 2(n):- "Teachers of the University" means Professors, Readers, Lecturers and such other persons as may be appointed for imparting instruction or conducting research in the University and are designated as teachers by the Ordinances; Section 4. On and from the commencement of the this Act,-

(i) the society known as the Jamia Millia lslamia Society, Delhi, shall be dissolved, and all property, movable or immovable, and all rights, powers and privileges of the said Society shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is established; Dissolution of the Jamia Millia Islamia Society and transfer of all property to the University.

(ii) all debts, liabilities and obligations of the said Society shall be transferred to the University and shall there after be discharged and satisfied by it; xxxx xxxx xxxx xxxx

(vi) subject to the provision of this Act, every person employed immediately before the commencement of this Act in the Jamia Millia Islamia, Delhi, shall hold such employment in the University by the same tenure and on the same terms and condition and with the same rights and privileges as to pension and gratuity as he would have held under the Jamia Millia lslamia, Delhi, if this Act had not been passed.” Section 25 (2): The regulations and bye-laws in force immediately before the commencement of this Act shall be the first Ordinances of the University and may be repealed or amended at any time by the Majlis-i-Muntazimah (Executive Council).” (D). Ordinance 23 (XXIII) provides that academic staff of Jamia shall mean and include such categories of staff as are appointed to conduct research or to academically assist in teaching/research and this further strengthens the case of the Petitioner that he is a teaching faculty. Section 6 of Ordinance 10(X) enumerates the categories/classes pertaining to accommodation and delineates the entitlements on the basis of different Grade Pay. The Allotment Committee of Jamia in its meeting held on 20.07.1992, while deciding the case of the Petitioner for allocation of staff quarters in Teachers’ hostel observed that after verifying Regulation XI and Section 2(n) of the 1988 Act, there was merit in his representation that he was a Teacher. Petitioner was thus included in the list of seniority for allotment on the ground that as a Research Assistant he fell within the category of “Teachers” and was allotted a quarter. Relevant observations are as follows:- “The name of Janab Shakeel Ahmad Saheb, Research Assistant, Department of Sociology, had not been included in the list of seniority for the allotment of vacant houses presented in the meeting held on 20th July, 1992. On the representation of Janab Shakeel Ahmad that he falls within the category of teachers and to support this argument he quoted Regulation XI and Jamia Act 2 (n). After verifying Regulation XI and Jamia Act 2 (n), his representation was found to be valid about the fact that Research Assistants fall within the category of teachers.” (E). Petitioner has availed earned leaves and casual leaves from time to time as per entitlements of the Teachers as also leaves in view of the duties performed during vacations in accordance with Ordinance 5(V) and Section 5(i)(b), which are only available to Teachers. The Establishment Committee of the Jamia in its Meeting held on 17.07.2019 recommended that the age of superannuation of the Petitioner be taken as 65 years after examining his case under the relevant Statute, Ordinances and Regulations as well as the actual duties assigned to him and performed by him. The Sub-Committee of the Establishment Committee in its Meeting held on 04.09.2019 categorically recommended that Petitioner be considered as Assistant Professor at par with regular teaching faculty. This Court, in the earlier round of litigation, directed Jamia to take a decision on the recommendations of these Committees. A five-member Committee constituted by Jamia held a meeting on 23.12.2019 and recommended that Petitioner be treated as Teacher for limited purpose of superannuation, however, even these recommendations never took the form of a decision by the EC. Therefore, all positive recommendations by Jamia’s own Committees were given a go-by and Petitioner was made to retire illegally at the age of 60 years. Post his retirement, EC held a meeting on 26.06.2020 and referred the matter to UGC for consideration, which was unwarranted. (F). Several other documents placed on record are clear pointers to the fact that Petitioner was all-through treated as a Teacher by Jamia, which includes a letter dated 23.08.2004 from Jamia to HOD, Sociology stating that Research Assistant is an academic staff; time tables assigning full-time classroom teaching to the Petitioner; membership of Jamia Teachers Association which is open only for Teachers who pay monthly membership fee and official communication dated 05.08.2009 by HOD, Sociology to the Internal Audit Office of Jamia stating that status of Research Assistant is that of a Teacher. (G). Regulation XI was the governing Regulation in Jamia immediately before commencement of the 1988 Act and continues to be in operation by way of a deeming fiction created by Section 25(2) of the Act which saves the operation of Regulations existing before the commencement of the Act and is the First Ordinance of Jamia. Existence and operation of Regulation XI is admitted by Jamia in several paragraphs of the counter affidavit and is extracted and relied on in the judgment of this Court in S. Dildar Haider v. Jamia Milia Islamia and Ors., MANU/DE/8920/2006. (H). Case of the Petitioner is squarely covered by the judgments of the Supreme Court in P.S. Ramamohana Rao v. A.P. Agricultural University and Another, (1997) 8 SCC 350 and this Court in Krishan Gopal & Anr. v. Union of India & Ors., 2012 (130) DRJ 170(DB); Dr. Lakshmy Anantha Raman v. Union of India & Others, 2017 SCC OnLine Del 6913, S. Dildar Haider (supra), Shafiqul Ain Usmani v. Jamia Millia Islamia & Ors. in W.P.(C) 21367/2005 decided on 16.05.2008, and judgments of the other High Courts in Kamla Kant Roy And Ors. And Upendra v. The State of Bihar And Ors., 1984 (32) BLJR 495, Rajendra Prasad Thapliyal v. Union of India and others, 2016 SCC OnLine Utt 1996 and Dr. M.R. (Mohan Ramuji) Deshkmukh v. The State of Madhya Pradesh and others in W.P.(C) 2751/2017 decided on 28.04.2017.

8. Contentions on behalf of the Jamia: (A). Jamia Millia Islamia is a Central University, governed by 1988 Act and fully funded by University Grants Commission (UGC). All matters pertaining to Jamia including maintenance, expenditure, service conditions, mode of recruitment, scales of pay, age of superannuation, etc. are strictly governed by UGC Guidelines, issued from time to time and notified by UGC, in consonance with decisions taken by Department of Education, Ministry of Human Resource Development, Government of India (MHRD). MHRD, by its letter dated 23.03.2007, communicated to UGC its decision of enhancement of superannuation age from 62 to 65 years for teaching positions in the Centrally funded Institutions. The letter was communicated to the Registrars of all Central Universities for necessary action. Jamia gave effect to the UGC letter and adopted the decision in its EC meeting held on 30.04.2007. Pursuant to the letter dated 12.05.2017 sent by UGC, Jamia by its Resolution passed in the EC meeting held on 27.09.2017 approved the amendment in Regulation XXXVII pertaining to the age of retirement of the staff from 62 to 65 years. (B). Amendment to Regulation XXXVII and the UGC letter dated March, 2007 as well as MHRD letter dated 23.03.2007 cumulatively reflect that enhancement of superannuation age to 65 years was only in respect of ‘full-time teachers of the University’. Scheme of revision of pay of teachers and equivalent cadres in Universities and Colleges following the revision of Pay Scales under 7th CPC, issued on 02.11.2017 by MHRD provides that there are only three designations in respect of teachers in the University, namely, Assistant Professors, Associate Professors and Professors and Petitioner does not fall under any of the three categories. Relevant part of the scheme is as follows:- “There shall be only three designations in respect of teachers in universities and colleges, namely, Assistant Professors, Associate Professors and Professors. Also, there shall be no change in the present designations in respect of Library and Physical Education Personnel at various levels.” (C). By a letter dated 31.12.2008, MHRD communicated to UGC that there shall only be three designations in respect of teachers in Universities and Colleges i.e. Assistant Professors, Associate Professors and Professors and this was particularly in the context of superannuation age and EC of the Jamia adopted this position vide its Resolution No.8. Relevant paragraph of the letter is as follows:- “Subject:- Scheme of revision of pay of teachers and equivalent cadres in universities and colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission. Sir, I am directed to say that the Government of India have decide, after taking into consideration the recommendations made by the University Grants Commission (UGC) based on the decisions taken at the meeting of the Commission held on 7-8 October, 2008, to revise the pay scales of teachers in the Central Universities. The revision of pay scales of teachers shall be subject to various provisions of the Scheme of revision of pay scales as contained in this letter, and Regulations to be framed by the UGC in this behalf in accordance with the Scheme given below. The revised pay scales and other provisions of the Scheme are as under:-

1. General

(i) There shall be only three designations in respect of teachers in universities and colleges, namely, Assistant Professors, Associate Professors and Professors. However, there shall be no change in the present designation in respect of Library and Physical Education Personnel at various levels. xxxx xxxx xxxx xxxx

8. Other terms and conditions: (f) Age of Superannuation:

(i) In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation in Central Educational Institutions has already been enhanced to sixty five years, vide the Department of Higher Education letter No.F.No.1-19/2006-U.II dated 23.3.2007, for those involved in class room teaching in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O. letter No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of superannuation of Vice-Cancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (Visitor in the case of Central Universities). (ii)Subject to availability of vacant positions and fitness, teachers shall also be re-employed on contract appointment beyond the age of sixty five years up to the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers. (ii)Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education.” (D). Additionally, the EC of the University, which is the highest body, approved the age of superannuation for Research Assistants working in different Departments of the Jamia as 60 years by Notification dated 05.08.2021 as per clarification rendered by UGC vide its letter dated 16.03.2021 based on UGC Regulations, 2018 (hereinafter referred to as ‘UGC Regulations’). Jamia has strictly followed the decision of EC, which flows from UGC’s clarification. Statute 14 of Schedule of the 1988 Act stipulates that the EC, in addition to all other powers vested in it, has the power to create teaching and academic posts, define the emoluments as also the duties and conditions of service of Professors, Readers, Lecturers and other academic staff. Conditions of service of Jamia Teachers are governed by the Agreement of Service signed by them and no such agreement was ever executed between the Jamia and the Petitioner since he was appointed as a Research Assistant. (E). Every Statute, Regulation and Ordinance made under the Act is required to be published in Official Gazette as per Section 39(1) of the 1988 Act. Regulation XI on which reliance is placed by the Petitioner, was never published in the Official Gazette and has no force of law. Moreover, it was only for the purpose of conditions of service entered into by way of an agreement between the Teachers and the Jamia and can have no application to the Petitioner. Jamia in its Ordinance VI titled “Terms and Conditions of Service of Jamia Employees (other than Teachers, Registrar and Finance Officer)” notified on 09.11.2017 has clearly stipulated the age of retirement of its employees as 60 years and there is no challenge to the same. (F). In Dr. Meera Sood v. University of Delhi and Others, 2021 SCC OnLine Del 4939; Swarn Bhanot v. University of Delhi and Others, 2019 SCC OnLine Del 7780, Suresh Kumar Sud & Ors. v. UOI and Ors., 2011 (124) DRJ 756, and Jitendra Singh Naruka v. University of Delhi & Ors., 2016 SCC OnLine Del 5893, this Court has negatived the contentions of the Petitioners therein that posts outside the three categories, namely, Assistant Professors, Associate Professors and Professors can be treated as “Teachers” and upheld the stand of the University also holding that service conditions are a matter of policy and is best left to the employer. The judgments relied upon by the Petitioner are inapplicable being on different facts and the Courts were neither shown nor have considered the MHRD and UGC letters/Regulations in this context.