Sudhir Kumar Taneja v. University of Delhi; Dr. Meera Sood v. University of Delhi

9. NO LEGAL/STATUTORY EMBARGO AGAINST ENHANCEMENT OF AGE OF SUPERANNUATION 9.[1] Learned counsel finally argues that Physical Education is being treated as an academic/teaching subject in the University as per MHRD Letter dated 24.03.2005 and also the fact Appellants had spent their lives in the service of the University wherein they also undertook the same duties as that of the other Associate Professors in the same subject who climbed up the regime while starting as teachers coupled with the fact that the EC Resolutions still being in force, do not fall foul of the Act, Statutes, and Ordinances, the same can actually be a guiding light and paves the way for the University to grant the relief as sought by the Appellant. 9.[2] Learned counsel further submits that the issue of recovery of salary on the basis that the age of superannuation being 62 years and the Appellant having continued till the age of 65 years would be unjust and onerous upon the Appellant. This is for the reason that the continuation of the Appellant upto the age of 65 years was under the orders of the Division Bench of this Court in LPA No. 411-2019. Though, it was fairly submitted by the counsel that the Appellant had given an undertaking to this Court that in case she does not succeed in the writ petition, then the salary/allowances paid to her in the interregnum would be returned by her to the University or else may be deducted by the University from her retiral benefits. The learned counsel submits that a lenient view may be taken.

10. Per Contra, Learned counsel for the Respondent at the very outset denied the assertion that EC Resolutions in question which were the basis of the claim of the Appellants, were duly approved and notified by the Visitor and had submitted that the although same were resolved by RESPONDENT CONTENTIONS the Executive Committee, but were not approved by the Visitor and therefore, was not in the statute book.

11. Learned Counsel for the Respondent College further submits that earlier prior to the year 2000 and just immediately thereafter, there was an acute shortage of faculties and therefore, just to make these jobs attractive and also to retain these faculty, it was specifically designed in such manner to the extent of increasing the age of superannuation. He submits that, however, the same did not impact the post of the Director of Physical Education in any manner whatsoever.

12. Learned counsel invites the attention of this Court to MHRD Scheme dated 31.12.2008, annexed as Annexure A - 23, specifically to page 285 of the paperbook to support the aforesaid contention and to further submit that by that time, there was no shortage of Librarians and DPE professionals, and therefore, the age of their superannuation was maintained at 62 years.

13. Learned Counsel further submits that, however, there was an amendment in the Ordinance XXVII vide EC Resolution No. 142 dated 06.10.2009, whereby the above said MHRD Scheme dated 31.12.2008 was duly accepted by the Executive Committee in Meeting held on 16.01.2009 approving the resolution to include Director of Physical Education within its ambit. Learned Counsel submits that prior to the amendment, the age of superannuation of such DPE’s was 60 years only, which was then increased to 62 years.

14. Learned counsel for the Respondent College further emphasizes on the entire process for an incumbent being appointed as teacher, to submit that, appointment or promotion in a specific cadre are governed by different legal regimes with stark differences.

15. He argues that when the cadre of professors is entirely different from that of Director of Physical Education, the mere redesignation of the DPE’s as Lecturer/Reader for the purposes of re-fixation of pay to mitigate stagnancy, would not mean that the cadre itself was changed. He submits that it would be fallacious to apply the regime of one cadre to that of the other.

16. Learned counsel further argues that the substantive post of the Appellants still remains the same (DPE) even after such re-designation and thus the further consequential benefits as claimed to be entailing by such re-designation, as sought by the appellants, does not arise in their favour and is misplaced.

17. Learned Counsel for the Respondent submits that the issue in the present appeals are no more res integra and were already considered by the various Learned Division Benches of this Court which had passed judgements after due deliberation and consideration of the similar issues as urged by the Appellants herein. In that, he submits that the law is aptly settled after the detailed examination of each and every aspect of the issue and thus same was duly considered by the Learned Single Judge while passing the impugned order. He submits that the impugned order passed by the learned Single Judge does not suffer from legal infirmity of any nature whatsoever, as the same was passed while placing reliance upon various judgements passed by various learned Division Benches of this Court.

18. Learned Counsel also submits that the only issue relating to appointment and promotion of the professionals in colleges, in the DPE Cadre vis-a-vis Readers/Associate Professors duly appointed in the initial cadre as a Teacher as the substantive sanctioned post, coupled with the fact of redesignation and its consequences, which arises and may need clarification. Learned counsel submits this was never argued before the Learned Single Judge.

19. Learned Counsel further placed reliance upon the following judgements Krishan Gopal v. Union of India reported in 2012 SCC OnLine Del 2930, Krishan Gopal and Ors vs. Union of India and Ors reported in 2015 SCC OnLine Del 7385, Jitendra Singh Naruka vs. Delhi University and Ors reported in 2016 SCC OnLine Del 5893.

20. In rebuttal, Learned Counsel for the Appellants, draws attention of this Court to Page 155 of the paperbook in LPA - 491-2019, which is the internal letter dated 06.07.2011 of correspondence, issued by the P.G. Evening College, alongwith such similar letters issued for several other DPEs appointed in various colleges of University of Delhi to submit that the when the age of superannuation of such DPE in the said colleges was increased from 62 to 65 and the DPEs were superannuating at the age of 65 in a routine manner there is no rationale or reason as to why the Appellants are being denied the same benefit. According to the counsel, it is well settled that similarly situated persons ought to be treated similarly, whereas, the Appellants are being discriminated against. PETITIONER’s REBUTTAL

21. This Court has considered the submissions as well as the documents placed on record by the parties.

ANALYSIS AND CONCLUSIONS:

22. At the outset it is relevant to peruse the Appointment Letter dated 09.09.1983 of the Appellant, wherein it is specifically mentioned that the Appellant was appointed as DPE against the original substantive post. The relevant extract is reproduced hereunder: “With reference to your application dated 13.7.1983 and subsequently the interview held on 27.8.1983. I am pleased to inform you that you have been appointed as D.P.E. with effect from 30th August, 1983 in this college on the following terms and conditions, subject to the approval of the Governing Body of the College and subject to the University of Delhi recognizing you as a Teacher of the University: You will be on probation for a period of one year with effect from the date of your joining the appointment and this probationary period may further be extended by not more than 12 months by the Governing Body.

2. You will receive an initial pay of Rs. 700/- P.M. in the pay scale of Rs. 700-40-1100-50-1600. In addition to pay, you will receive dearness, city compensatory and house rent allowances at the rate and according to the rules in force in Delhi University from time to time.”

23. It is also relevant to note that the promotions of the Appellants to various posts after the initial appointment as DPE was under the Merit Promotion Scheme, 1987. It is also of relevance to note that such promotion was not through a properly constituted Departmental Promotion Committee (hereinafter referred to as “the DPC”) but through the Screening cum Evaluation Committee constituted for the purposes of consideration of promotion under the MPS.

24. 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.

25. 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.

26. Another aspect which needs consideration is the argument that the post of DPE was redesignated as Lecturer and by way of promotions the appellants were promoted to the post of Associate Professor and Reader etc. On that basis, their contention is that the Delhi University once having redesignated the appellants as Lecturers from DPE considering them as equivalent to “Teachers” and granted promotions till the post of Associate Professor, the age of superannuation applicable to them would be 65 years as in the case of other Associate Professors of the DU and not 62 years.

27. The aforesaid argument is fallacious for many reasons. As observed above, under the MPS the appellants were only granted financial upgradation and coupled with certain other benefits, however were not considered as “Teachers” for the purpose of superannuation. That apart, the governing provision as applicable to the DPE’s was Ordinance XXVII which was amended by the DU vide the EC Resolution No.142 dated 06/10/2009 which specified the age of superannuation of Registrar and Librarian as 62 years. After such amendment, the said ordinance also included the DPE within its ambit. For the purposes of convenience, the unamended and amended Ordinance XXVII is extracted hereunder:

It is clear from the aforesaid amendment that the EC of the DU had consciously added the post of DPE to the said Ordinance despite the redesignation of DPE’s as Lecturers. In other words, the EC of DU consciously did not equate the post of DPE with that of a “Teacher” and categorized the DPE’s alongwith the Registrar and Librarian which are clearly not “Teachers”.

28. That so far as the reliance upon the EC Resolution No.127 dated 10.11.1990 is concerned, the same was never approved by the Visitor, which is mandatory for such resolution for having the force of law as per Section 29(3) of the Delhi University Act, 1922 which is reproduced hereunder:-

29. Yet another relevant aspect which is of significance is that the Ministry of Human Resources vide its Notification dated 31/12/2008, had revised the post of teachers and equivalent cadres in the Universities and Colleges and had also enhanced the age of superannuation of teachers to 65 years. However, in respect of DPE’s, in para (f) of the para “Age of Superannuation” and clause (iii), specified that, as there is no shortage of Librarians and DPE, the age of superannuation of these categories shall remain at 62 years. For clarity the same is extracted hereunder: “(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.”

30. That apart from the above, the learned single Judge has correctly relied upon the judgement of the learned Division Bench of this Court in Jitendra Singh Naruka vs. Delhi University and Ors reported in 2016 SCC OnLine Del 5893 whereby in para 24 to 29 it was held as under:

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 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.”

31. Thus, we reiterate the law as settled above and the case of the appellants is squarely covered by the aforesaid judgement. It is also relevant to note that the judgement in Naruka’s Case(supra) was challenged by way of SLP(C) No. 7279/2017 titled as Jitendra Singh Naruka vs. University of Delhi & Ors. which was dismissed vide the order dated 22.09.2022. Thus, the said judgement has attained finality. The ratio laid down by the learned Division bench of this Court in Krishan Gopal and Ors vs. Union of India and Ors. reported in 2015 SCC OnLine Del 7385 in an identical factual situation, had dismissed a similar plea of the DPE after considering the report of the Committee which was constituted after the 1st round of litigation initiated by Krishan Gopal v. Union of India reported in 2012 SCC OnLine Del 2930 and referred to in Para 8 of its judgement. Paras 8 as also the penultimate para 17 of Krishan Gopal and Ors vs. Union of India and Ors reported in 2015 SCC OnLine Del 7385 are extracted hereunder:

17. The data at the level of the university may show a multiplicity of reasons why similar posts are lying vacant at the level of the university, but in a matter of policy the Court cannot indulge in a micro analysis. As long as at the macro level the decision maker has applied the mind, the Court has to adopt the hands of approach, because as recognized by the Division Bench of this Court in its judgment dated May 18, 2012, age of superannuation of employees is within the discretion of the executive.

32. Further, learned Division Bench of this Court vide its judgement dated 16.12.2019 passed in LPA No.390/2019, titled as ‘Kanchan Saini vs. University of Delhi & Ors., reported in 2019 SCC OnLine Del 11984, held that:-

33. From the above, it is beyond cavil that the issue raised by the appellants is no more res integra and has been argued, tested and considered by the learned Division Benches of this Court and thus need not detain us any longer.

34. The learned counsel for the appellants also submitted that in the case of a DPE employed with Zakir Hussain Evening College, Delhi University, he was permitted to superannuate at the age of 65 years. On that basis, learned counsel submits that the same standard may be applied to the cases of the appellants as well. The said arguments is noted only to be rejected, inasmuch as, there cannot be any application of negative equality. In other words, if an instance of wrong application of law or action contrary to and violative of law has occurred, it would not give rise to any positive and assertive cause of action to other similarly situated persons. Thus, the argument being fallacious, is held to be untenable.

35. Considering the fact that the Appellant Dr. Meera Sood had already rendered her services in the College in the same capacity in pursuance of the order dated 31.05.2019 passed in LPA No. 411-2019 titled as “Dr. Meera Sood vs. University of Delhi & Ors.”, wherein although a specific undertaking to the effect that the salary/allowances may be refunded was duly made by the Appellant Dr. Meera Sood. Similarly, citing the said order dated 31.05.2019, Appellant Sudhir Kumar Taneja was also granted a similar interim relief vide the Order 30.07.2019 passed in LPA – 491-2019, which was later dismissed in default on 26.09.2019, restored thereafter and the interim relief so granted to him from 02.12.2019 was restored till it got suspended on 16.12.2019.

36. Thus considering the aforesaid facts, in the interests of justice, it would be prudent to direct the respondents not to recover the said amount from the Appellants for the service so rendered by them, although the consequential benefits accruing post superannuation shall be reckoned uptill the age of superannuation of 62 years only.

37. In that view of the matter, the appeals of the appellants fail, and as such are dismissed, though without any order as to costs.

38. Pending applications also stand disposed of.

SATISH CHANDRA SHARMA, C.J. TUSHAR RAO GEDELA, J. MAY 22, 2023