Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Aly Mirza and Ms. Ankita Singh, Advs v. DR. T.R SRINIVASAN AND ORS

Judgment

1. The appellants in the present Letters Patent Appeal are the Indira Gandhi National Open University1, its Vice Chancellor2 and its Academic Coordination Division. The appeal is directed against Signature Not Verified 1 “IGNOU” hereinafter 2 “VC” hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 judgment dated 12 December 2023 passed by a learned Single Judge of this Court in WP (C) 3266/2012. In the writ petition, Respondents 1 to 43 in the present appeal were the petitioners.

2. Respondent 5 Union of India, through the Ministry of Education4 (earlier the Ministry of Human Resource Development5) in the present appeal, was impleaded as additional party respondent in the writ petition by order dated 31 May 2012.

3. Our view

3.1 The respondents seek a declaration that they were entitled to superannuate at 65, rather than 62, and that they were entitled to the benefit of the Career Advancement Scheme. Both these dispensations are, admittedly, available to “teachers”. The respondents’ case is that they are also “teachers”.

3.2 Without doubt, the learned Single Judge has penned a very well-reasoned, and systematically analyzed, judgment. We are, however, constrained to reverse it primarily because the learned Single Judge has primarily relied on an Ordinance assumed to have been promulgated by the IGNOU in 2007, redesignating the respondents as teachers, whereas, in fact, the Ordinance was never promulgated, and was withdrawn by IGNOU itself. Unfortunately, the reliance on the 2007 Ordinance was first made, by the respondents, in an affidavit filed 11 years after the writ petition was filed, in which several 3 “the respondents”, hereinafter, for ease of reference 4 “MOE” hereinafter 5 “MHRD” hereinafter Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 additional grounds were sought to be raised. The affidavit was not filed with the leave of the Court. Nor was it ever taken on record by any order passed by the Court. As a result, no response was sought, either from IGNOU or from the MHRD, to the averments in the affidavit. The averments in the affidavit were, therefore, taken by the learned Single Judge as correct. Before us, however, the MHRD – now the MOE – has placed written correspondence, between the VC of the IGNOU and the MHRD, clearly stating that the 2007 Ordinance was withdrawn by the IGNOU itself. Statute 2(4) of the Statutes governing the IGNOU, to our mind, empower the VC to do so.

3.3 De hors the 2007 Ordinance, the respondents, really speaking, have no case. Statute 17(9) of the Statutes governing the IGNOU, as amended in 2015, enhances the age of superannuation of teachers from 62 to 65. The respondents have advanced a residuary plea – which was never raised before the learned Single Judge – that Statute 17(9) was amended by the 65th Board of Management6 Meeting of the IGNOU to replace the word “teachers” with “teachers/academic staff”. However, it is clear from a communication dated 15 December 2017 infra from the MHRD to IGNOU, that, even till that date, Statute 17(9) referred to “teachers”, and not “teachers/academic staff”.

3.4 These, primarily, constitute our reasons for allowing IGNOU’s appeal. A prefatory note Signature Not Verified 6 “BOM” hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33

4. The respondents superannuated on 30 June 2012, 30 April 2014, 16 October 2023 and 16 October 2023 respectively, as Joint Director, Deputy Director, Addl. Director and Senior Regional Director in the Regional Services Division of the IGNOU.

5. The entire controversy in the present proceedings is as to whether the respondents can be regarded as “teachers”. Incidentally, however, the respondents have also claimed that, if not teachers, they were entitled to be treated as “other academic staff”, in which capacity, too, they would be entitled to the reliefs they seek.

6. At the outset, it is necessary to note that, based on their contention that they were “teachers” or, in the alternative, “other academic staff”, the respondents sought, in the writ petition, three distinct reliefs, i.e. the right to superannuate at the age of 65, the benefit of the Career Advancement Scheme7, which would entitle them to retrospective promotion, and antedated seniority.

7. Of these three prayers, however, the respondents could not legitimately seek antedated seniority, as no person, who would be adversely affected if such antedated seniority were granted, has been impleaded as a party either before the learned Single Judge or before us.

8. The learned Single Judge has also restricted the relief, granted in the impugned judgment, to the right to superannuate at 65 and the benefit of the CAS. Signature Not Verified 7 “the CAS” hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 A further prefatory note

9. We may also note, before proceeding further, that the matter has to be decided on the basis of the applicable statutes and administrative instructions. We say so because submissions were also advanced, before us, regarding the nature of the duties rendered by the respondents. It was sought to be contended that the IGNOU is an organization which imparts distance education and that, therefore, the concept of a “teacher” in the IGNOU would be qualitatively different from that of a teacher in a conventional university. It was pointed out that there is no classical concept of “classroom teaching” in the case of an institution imparting distance education.” The services provided by the respondents, which include preparation of study material, making the material available, to a certain extent evaluation of performance of students and the like, may not involve classical classroom teaching, but would be entitled, in the context of an organization providing distance education, to be regarded as teaching activity. Persons engaged in such activities, such as the respondents would, therefore, be ipso facto entitled to be regarded as “teachers”.

10. These arguments may have been substantial, had there not been, in place, a rigid statutory scheme. The IGNOU, however, is governed the Indira Gandhi National Open University Act, 19858, Ordinances and Statutes issued under the Act and administrative instructions notified from time to time. Signature Not Verified 8 “the Act” hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33

11. We find that these are self-contained regarding the controversy in issue, which has, therefore, to be decided on that basis, and not on the basis of any abstract understanding of the concept of a teacher in a distance education setting. Relevant Statutes and Administrative Instructions

12. The following statutory provisions, administrative instructions, communications, and other documents, must guide our analysis. I. Relevant provisions of the Act Sections 2(f) and (p) “2. Definitions. – In this Act, and the Statutes made hereunder, unless the context otherwise requires, ***** (f) “Employee" means any person appointed by the University, and includes teachers and other academic staff of the University; ***** (p) “Teachers” means Professors, Readers, Lecturers and such other persons as may be designated as such by the Ordinances for imparting instruction in the University or for giving guidance or rendering assistance to students for pursuing any course of study of the University; ***** Section 5(1)(vi)

5. Powers of the University. – Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 The University shall have the following (1) powers, namely: ***** professorships, institute (vi) readerships, lecturerships academic positions necessary for imparting instruction or for preparing educational material or for conducting other academic activities, including guidance, designing and delivery of course and evaluation of the work done by the students, and to appoint persons to such professorships, readerships, lecturerships and other academic positions; Section 24(d) “24. Power to make Statutes. – Subject provisions of this Act, the Statutes may provide for all or any of the following matters, namely: ***** the appointment of (d) teachers and other employees of the University, their emoluments and other conditions of service: Section 25

25. Statutes how made. – The first Statutes are those set out in the (1) Second Schedule. (2) The Board of Management may, from time to time, make new or additional Statutes or may amend or repeal the Statutes referred to in sub- section (1): Provided that the Board of Management shall not make, amend or repeal any Statute affecting the status, powers or constitution of any authority of the University until such authority has been given a reasonable opportunity to express its opinion in writing on the proposed changes and any opinion so expressed has been considered by the Board of Management. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (3) Every new Statute or addition to the Statutes or any amendment or repeal thereof shall require the approval of the Visitor, who may assent thereto or withhold assent or the Board of Management for re-consideration in the light of the observations, if any, made by him. (4) A new Statute or a Statute amending or repealing an existing Statute shall not be valid unless it has been assented to by the Visitor. (5) Notwithstanding anything contained in the foregoing sub-sections, the Visitor may make new or additional Statutes or amend or repeal the Statutes referred to in sub-section (1), during the period of commencement of this Act. immediately after three years (6) Notwithstanding anything contained in the foregoing sub-sections, the Visitor may direct the University to make provisions in the Statutes in respect of any matter specified by him and the Board of Management is unable to implement such a direction within sixty days of its receipt, the Visitor may, after considering the reasons, any, communicated by the Board of Management for its inability to comply with such direction, make or amend the Statutes suitably. Section 30(1)

30. Conditions of service of employees. – (1) Every employee of the University shall be appointed under a written contract and such contract shall not be inconsistent with the provisions of this Act, the Statutes and the Ordinances. Section 40

40. Statutes, Ordinances and Regulations to be published in the Official Gazette and to be laid before Parliament. – Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (1) Every Statute, Ordinance or Regulation made under this Act shall be published in the Official Gazette. (2) Every Statute, Ordinance or Regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or successive sessions aforesaid, both Houses agree in making any modification in the Statute, Ordinance or Regulation or both Houses agree that the Statute, Ordinance or Regulation should not be made, the Statute, Ordinance or Regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Statute, Ordinance or Regulation.” II. Statutes of the IGNOU

2. Powers and functions of the Vice-chancellor ***** (4) The Vice-Chancellor shall exercise control over the affairs of the University and shall give effect to the decisions of all the authorities of the University. ***** Powers and

7. Management functions of the Board of ***** Subject to the provisions of the Act, the (2) Statutes and the Board of the Ordinances, Management shall, in addition to the other powers vested in it under the Statutes have the following powers, namely: Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 create teaching (a) and other academic posts and to define the functions and conditions of service of Professors, Readers, Lecturers and other teachers and other academic staff employed by University; *****

12. Selection Committees recommendations (1) There shall be Selection Committees for the Board of making Management for appointment to the posts of Professors, Readers, Lecturers and other academic staff and heads of institutions maintained by the University. (2)(i) Each of the Selection Committees for appointment to the post of Professors, Readers, Lecturers and the academic staff shall consist of the following members, namely: (a) the Vice-Chancellor; (b) a Pro-Vice-Chancellor associated with the School/Division/Centre dominated by the Voice-Chancellor; (c) a person nominated by the Visitor; (d) three experts not in the service of the University to be nominated by the Vice- Chancellor in such manner as may be specified in the Ordinances. Director (e) School/Division/Centre concerned/Professor of the Discipline nominated by the Vice- Chancellor. ***** (4) The procedure to be followed by a Selection Committee in making recommendations shall be laid down in the Ordinances. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 *****

13. Special mode of appointment Notwithstanding anything contained (1) Statute 12, the Board of Management may invite a person academic professional attainments to accept the post of a Professor or a Reader or equivalent academic post in the University on such terms and conditions as it may deem fit, and appoint the person to such post. distinction (2) The Board of Management may appoint a teacher or any other academic staff working in any other university or organisation for teaching or for undertaking a project or any work on such terms and conditions as may be determined by the Board in accordance with the manner specified by the Ordinances.

17. Terms and conditions of service and code of conduct of the teachers and other academic staff of the University (1) All the teachers and other academic staff of the University shall in the absence of any contract to terms and the contrary, be governed by conditions of service and code of conduct as are specified in the Statutes and the Ordinances. ***** (5) Nature of duties – Every teacher shall take part in the activities of the University and perform such duties as may be required by, and accordance with the Act, Statutes and Ordinances framed thereunder and in particular his duties shall be: (a) Preparation of the course material, linguistic content editing and scrutiny, editing, etc, from the point of view of requirements of distance education and liaison of the work of outside experts associated; Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 practical (b) His academic duties shall be to give guidance, and instruction to, students in the form of counselling, conducting of tutorials, seminars, assessment/examination/evaluation and such other work assigned to him relevant to the academic activities of the University by its competent authority. He shall not ordinarily remain absent from work without prior permission or grant of leave; ***** (9) Age of retirement – (a) Save as otherwise provided in the Act, Statutes and Ordinances all teachers of the University shall retire from service on the afternoon of the last date of the month in which he/she attains the age of 65 years. ***** (10) Variation in terms and conditions of service – Every teacher of the University shall be bound by the Statutes, Ordinances for the time being in force in the University; Provided that no change in terms and conditions of service of a teacher shall be made after his appointment in regard to designation, scale increment, provident fund, retirement of pay, benefits, age of retirement, probation, confirmation, leave salary and removal from service so as to adversely affect him. ***** (12) Members of the teaching staff – The members of the teaching staff shall be designated as: Professor (1) (2) Reader (3) (4) (5) Lecturer (selection grade) Lecturer (senior scale) Lecturer Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 ***** (14) Career advancement - The manner and the terms under which a lecturer may be placed in the Lecturer (senior scale) and Lecturer (selection grade) and as Reader will be prescribed through Ordinances.

18. Terms and conditions of service and code of conduct of other employees of the University. - All the employees of the University, other than the teachers and other academic staff of the University, shall, in the absence of any contract to the contrary, be governed by the terms and conditions of service and code of conduct as are specified in the Statutes and the Ordinances.

26. Ordinances how made All ordinances, (1) commencement of this Statute, shall be made by the Board of Management. ***** Every Ordinance made by the Board of (3) Management shall come into effect immediately. (4) All Ordinances made by the Board of Management shall be submitted to the Visitor within three weeks from the date of its adoption. The Visitor may, within four weeks of the receipt of any Ordinance, inform the University about his objection, if any, to that Ordinance, and direct that its operation shall remain suspended until he has had an opportunity of exercising his power of disallowance. The Visitor may, after receiving the comments of the University, either withdraw his order of suspension or disallow the Ordinance, and his decision shall be final. III. Ordinances (i) 16. ORDINANCE ON DESIGNATING PERSONS HOLDING CERTAIN POSITIONS AS TEACHERS (Under Section 2(p) read with Section Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 5(l)(vi) of the IGNOU Act)9 The persons holding the positions indicated against each in the following divisions are declared as Teachers in the grade equivalent to that of Professors, Readers and Lecturers in terms of the provisions of section 2(p) and section 5(l)(vi) of the IGNOU Act. S.NO Division Name of the Position … …. … … … … 1-2.

3. Regional Services Division 4-13. … … … Director, Regional Director (in the Professor’s Scale), Joint Dy. Director, Director/Regional Director, Director/Asst. Assistant Regional Director … … … The terms and conditions of service of teachers laid 2. down in statutes and ordinances which include the scheme of pay scales, career advancement, retirement age etc. shall be applicable to the incumbents in these positions. Brief note of reasons for making the Ordinance on designating certain positions in the University as Teachers. Section 2(p) of the IGNOU Act states, “Teachers” means Professors. Readers, lecturers and such other persons as may be designated as such by the Ordinances for imparting instruction in the University or for giving guidance or rendering assistance to students for pursuing any course of study of the University. While defining the powers of the University, Section 5(l)(vi) of the Act lists the following: ‘to institute professorships, readerships, lectureships and imparting instruction or for preparing educational material or for conducting other academic activities, including guidance, designating and delivery of course and evaluation of the work done by the students, and to appoint persons to such academic positions necessary 9 as approved at the 90th Meeting of the Board of Management held on 22.05.2007 – but which, as would become apparent from the paragraphs which follow, was subsequently withdrawn and never notified or promulgated Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 professorships, academic positions’. readerships, lectureships and other that “teaching” These Sections assume in an Open University is different from that of a Conventional the pedagogy of distance education University, encompasses activities such as, delivery of content and services to students, evaluation of student’s performance, system development, programme evaluation, planning, preparation and production of audio/video programmes ans (sic) so on. Keeping this in view, the University has made no distinction in selection procedure of teachers and academics. Various committees appointed by the University, from time to time in the past have confirmed the same view. These committees are — (i) Prof. Rais Ahmed Committee (1990), (ii) Prof. R.G. Takwale Committee (1992), (iii) Dr. A.J. Kidwai Committee (1993), (iv) Sh. N.V.K. Murthy Committee (1995), (v) Sh. C.R. Pillai Committee (1996), (vi) Prof. Afzal Mohammad Committee (2001) and (vii) Dr. A.S. Guha Committee (2007). The Takwale Committee, appointed in 1992 has given a very clear and categorical opinion that IGNOU Act permits inclusion of all categories of persons participating in the process of guiding and assistance to students within the meaning of the term ‘teachers'. The Takwale Committee was also of the view that the role of an academic in the distance education system cannot be conceived only in the teaching associated with a class-room but he has to be a distance educator in the first place while also being a subject specialist or an experienced professional. This change in the role should get reflected progressively in the qualification, methods of recruitment and the professional development of the academics in the distance education system. The proposal to consider and approve the Ordinance on designating certain positions in the University as Teachers were placed before the Academic Council at its 40th meeting held on 17.5.2007. The Council agreed that certain positions other than professors, readers, lecturers and those engaged in guidance or rendering assistance to students performances should be designated as teachers as the activities of such academics falls in the preview (sic) of the term ’teachers’ as defined under Sections 2 and 5 of IGNOU Act referred to above. The Academic Council has further suggested that in future, positions with nature of duties such as giving guidance or rendering assistance to students in Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 pursuit of their study in the University including the activities related to designing, delivery of programmes, evolution (sic) of the students performance etc, may be considered for inclusion in the category of teachers. The recommendations of the Academic Council were placed before the Board of Management at its 90th meeting held on 22.5.2007 and were approved by the Board. The Board approved the modified draft Ordinance on designating the positions in the University as teachers as per Annexure-III and directed that the Ordinance be submitted to the Visitor as per rules. As per the provisions under Statute 26 (1) read with the provisions under Section 26 of the IGNOU Act, the Board of Management of the University has powers to make Ordinances from the date of commencement of the Statute ibid.” (ii) Following the recommendations of the 6th and 7th Central Pay Commissions and their acceptance, separate Ordinances were issued regarding Career Advancement of Teachers and of Academics, in December 2018 and on 18 September 2020 respectively. The posts covered by “teachers” were the posts of Assistant Professor, Associate Professor, Professor and Senior Professor, whereas the posts covered by “academic staff” were the posts held by the respondents, i.e. Assistant Director, Assistant Regional Director, Deputy Director, Deputy Regional Director, Senior Regional director and Additional Director. The nature of activity to be performed by persons in the said posts were separately defined, and separate and distinct academic qualifications and experience were prescribed for teachers and for academic staff, in each of the Ordinances. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 IV. Executive Instructions and other communications etc. (i) The IGNOU, by circular dated 2 June 1992, conveyed its decision to classify the posts of Director, Joint Director, Deputy Director and Assistant Director at Regional Services (Headquarter) and the posts of Regional Director and Assistant Regional Director at the Regional Centers as other academic staff. The circular also provided as under: “The major terms and conditions of service of other academic staff working in the Regional Services Division are as follows: ***** (ii) The Career Advancement Scheme presently applicable to teachers of the University would also the other academic staff. be applicable Promotion to and placement in the higher positions will be subject to the fulfilment of all the conditions prescribed in the existing ordinance on career advancement for teachers. A separate ordinance for this purpose will be framed in due course along with a separate performance appraisal system. The age of retirement of the other academic (iii) staff shall be the same as that of teachers.” (ii) The above dispensation was reiterated, verbatim, by a subsequent circular dated 7 June 1994 issued by the IGNOU, of which relevant clauses may be reproduced as under: “The following Group A positions with the Regional Services Division both at the Hqrs. and the Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 Regional Centres were constituted into as separate category designated as ‘other academic staff’ vide University’s notification No. TA/2/15/90/990 dt. 19- 08-93. (i) Regional Services (Head Quarters) Joint Director (a) Director (b) (c) Deputy Director (d) Assistant Director (ii) Regional Centres (a) Regional Director (b) Assistant Regional Director The condition of service of these officers of the Regional Services Division at the Head Quarters and the Regional Centers as approved by the Board of Management shall: ***** b) The Career Advancement Scheme presently applicable to teachers shall be extended to other academic staff. While the conditions for promotion to and placement in higher positions will remain the same in principal, a separate ordinance will be framed to make appropriate provisions for this purpose in the context of the nature of their functions. ***** The age of retirement of teacher and other d) academic staff shall be the same.” (iii) On 11 January 2005, the IGNOU wrote to the MHRD, informing it that the BOM had, in its 81st meeting held on 16 November 2004, considered a proposal for amendment to the Ordinance on Career Advancement for academic staff and had approved it. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 The approval of the Visitor was, therefore, sought to the said proposal. (iv) On 23 March 2007, the Department of Higher Education, MHRD, wrote to the University Grants Commission10, conveying, inter alia, the following decision: “2. … Accordingly, it has been decided that – (i) The age of superannuation of all persons who were holding teaching positions on regular employment against sanctioned posts as on 15.3.2007 in any of the centrally technical educations funded higher and under this Ministry shall be increased from present 62 years to 65 years, ***** It is further clarified that the enhancement of 3. retirement age as mentioned above and provision for re-employment, will apply only to persons teaching positions against posts sanctioned to Centrally funded higher and technical education institutions coming under the purview of this Ministry, in order to overcome the shortage of teachers.” (v) The above communication was purported to be clarified by a subsequent letter dated 19 April 2007 from the MHRD to UGC, thus: “… In this connection, it is clarified that – (i) The enhancement of the age of superannuation from 62 years to 65 years and the provisions for re-employment as Signature Not Verified 10 “UGC” hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 mentioned in this Ministry’s letter dated 23.3.2007 referred to above, have been made in order to overcome the shortage of teachers and is applicable only to the ‘Teachers' in centrally funded institutions in higher and technical education under the Ministry of Human Resource Development, who are actually engaged teaching classes/courses/programmes of study in such institutions. (ii) The provisions of the Ministry’s letter of even number dated 23.3.2007 mentioned above shall not be applicable to any other categories of employees in such institutions; notwithstanding the fact that the posts they hold may be considered as 'equivalent’ to teaching positions. (iii) As provided in this Ministry’s letter of even number dated 23.3.2007, those teachers who are occupying teaching positions on regular employment against sanctioned posts in centrally funded higher and technical education institutions as on 15.3.2007, would henceforth retire at the age of 65 years. Therefore, the retirement age of any such regular teacher, who was actually in position as on the crucial date of 15.3.2007, would be 65 years.” (vi) On 22 May 2007, the BOM of IGNOU approved Ordinance 1611, already reproduced earlier judgment. This approval along with the draft note justifying the ordinance, also reproduced supra, were communicated to the Visitor for consideration in terms of Statute 26(4) of the Act on the same day i.e. 20 June

2007. Signature Not Verified 11 “the 2007 Ordinance” hereinafter, as this Ordinance never came to be approved by the Visitor LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (vii) At the next 91st meeting of the BOM of the IGNOU, which took place on 2 July 2007, it was decided to re-endorse the ordinance and submit it once again for consideration of the Visitor. In pursuance of the said decision, IGNOU wrote to the MHRD on 20 July 2007, re-submitting the draft of the 2007 Ordinance for consideration of the Visitor. (viii) As no communication was received from the Visitor regarding the draft of the 2007 Ordinance, despite the expiry of the period of four weeks envisaged in that regard by Statute 26, it was decided, vide File Noting dated 26 July 2007, to notify the Ordinance, and have it published in the Gazette as required by Section 40(1) of the IGNOU Act. (ix) On 26 November 2008, the IGNOU once again wrote to the MHRD, pointing out that, after the decisions taken in the 90th and 91st meetings of BOM of the IGNOU, it was decided, in the 92nd meeting of the BOM on 29 August 2007, that the financial implications of the proposal to redesignate posts in the Regional Centers as "teachers” be worked out and considered in the Finance Committee of the IGNOU. It was further pointed out that the only financial implication would be a difference of pay-scale between ₹ 12000-₹ 18300/- and ₹ 16400-₹ 22400/-, which was accepted by the Finance Committee and thereafter by the BOM of the IGNOU in its 95th Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 meeting on 4 August 2008. The MHRD was, therefore, requested to look into these proposals and communicate their decisions at the earliest. (x) After the 2007 Ordinance has thus been notified, the MHRD wrote to the UGC on 31 December 2008, stating, iter alia, thus: “1. General teachers (i) There in respect of designations universities and colleges, namely, Assistant Professors, Associate Professors. However, there shall be no change in the present designation in respect of Library and Physical Education Personnel at various levels, Professors *****

8. Other terms and conditions ***** (f) Age of Superannuation teachers and other (i) In order to meet the situation arising out of shortage of teachers in teaching universities institutions consequent vacant positions therein, the age of superannuation 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, involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 age of authorized superannuation of teachers, the Central Government has the Central already 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-Cencellors 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). ***** superannuation (iii) Whereas the enhancement of the age of 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 the present superannuation sixty two years shall not be available to the categories of Librarians and Directors of Physical Education. (xi) On 28 January 2009, the IGNOU issued a further notification under the subject “adoption of revised pay- scales in respect of teachers and equivalent positions”. The notification revised the existing pay-scales of teachers, i.e. of Assistant Professors, Associate Professors and Professors and was expressly issued with the Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 approval of the VC. Para 6 of the notification dealt with the staff in the Regional Service Division12 and read thus: “6. The Assistant Regional Directors (ARD), the Regional Directors (RD) and the Senior Regional Directors in the Regional Services Division (RSD) and the corresponding levels of Academics/Other Academics in other Divisions will be governed by the same Recruitment Rules, Career Advancement Scheme and service conditions as those of Assistant Professors, Associate Professors and Professors. A Committee consisting of representatives from each of the different categories will be constituted by the Vice-Chancellor to finalize the recommendations on re-designation, revised Recruitment Rules, Career Advancement Scheme and the service conditions for Teachers.” (xii) On 1-2 April 2009, the MHRD belatedly responded to the communications dated 20 June 2007 supra and 26 November 2008 IGNOU regarding designation of certain positions in the RSD as teachers and opined thus: “Sir, I am directed to refer to IGNOU’s letters No. IG/Admn.(G)/Ord.16/2000/844 dated 20th June, 2007 and No. IG/TA/2/516/04/1444 dated 26th November, 2008 on the subject mentioned above and to say that the proposal of the University was examined in the Department and it was felt to advise provisions of this Ordinance as it may have wider financial as well as policy implications. the University not implement This issues with the approval of Minister of Human Resource Development. Yours faithfully, Signature Not Verified 12 “RSD” hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (D.K. Paliwal) Deputy Educational Adviser Telefax: 23385489” (xiii) This communication was taken up by the IGNOU in the 99th meeting of its BOM on 15 April 2009, as item no. 29, and the following decision was taken thereon: “ITEM NO.29 THE TO CONSIDER MHRD LETTERS DATED 30TH MARCH, 2009 AND 1ST/2ND APRIL, (I) THE 2009 ON PROPOSED AMENDMENTS TO THE CLAUSES V (6) (a) (b) (c) & V (9) OF ORDINANCE 3 ON CAREER ADVANCEMENT OF THE TEACHERS (II) UNIVERSITY ON ORDINANCE CERTAIN DESIGNATING POSITIONS THE UNIVERSITY AS TEACHERS IN AND IN BM 99.29.1 Sh. Harvinder Singh, Dy. Secretary, MHRD informed that the MHRD was seized with both the aforesaid proposals and therefore, the same be deferred pending final clearance given by the MHRD. The Chairman informed that both the issues were insofar as already well IGNOU was therefore, detailed necessary clarifications in this regard would be provided to the MHRD suitably. concerned settled BM 99.29.2 The Board noted & approved the action as proposed above.” (xiv) On 19 May 2009, the MHRD wrote to IGNOU with reference to letter dated 20 June 2007 supra from IGNOU, seeking information as to whether the 2007 Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 ordinance was, or was not, in operation. This query was reiterated vide letter dated 10 August 2009. (xv) The VC responded to the MHRD by the following communication dated 8 February 2010: “8th February, 2010 Dear Mr. Kurian, redesignating The proposal teachers and academics of IGNOU as Assistant Professors, Associate Professors and Professors in line with the recommendations of the 6th Pay Commission Panel which has been implemented by the Govt of India and adopted by IGNOU in its 98th meeting held on 14.01.2009 is with the concerned Bureau in MHRD for the Ministry’s, views on the-proposal. The Recruitment Rules, Career Advancement Scheme and service conditions also need to be revised end incorporated in the Statutes in line with the 6th Pay Commission Report which is essentially a package. The status of the proposal is that it is in the

2. Ministry for its views and concurrence.

3. Redesignation, recruitment rules and career advancement scheme can be implemented only after the appropriate statutory amendment, which needs the approval/assent of the Visitor. It is the Ministry which forwards the proposal for statute amendment to the Visitor.

4. What the BOM confirmed in its 103rd meeting is the Action taken on this item (103.24.1) which is "request to the Ministry for its views and concurrence." IGNOU’s further action on this issue will be 5. comments /views/concurrence. (Recommendations of Academic Council, Finance Committee, various expert committees, during the last one year) has been submitted to the Ministry. The University’s Ministry’s Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 "Ministry"

6. To sum up, what the University requests is "Views/Concurrence Redesignation as per the 6th Pay Commission Recommendations. This needs to be placed before the Statutory authorities of the University including BOM for any further action in this regard. Sending the considered opinion of the bodies to the Visitor for amendment of statutes is the prerogative of the MHRD, as per the existing conventions. I hope the above points clarify the issues raised. You may please advise the concerned Bureau to give its concrete view on this matter, which will help the University Management to take a final decision in this matter and settle this long-pending issue for ever. (Prof. V.N. Rajasekharan Pillai)” (xvi) On 31 March 2010, the MHRD wrote to IGNOU, conveying the decision that “matters regarding re- designation, revised recruitment rules, career advancement scheme and service conditions for teachers etc.”, could only be amended by Statutes, and not by Ordinances in terms of Section 24(d) of the Act, and advising the IGNOU to take up the matter in its next BOM meeting. This was immediately followed by the communication dated 11 June 2010 from the VC to the MHRD: “Prof. V. N. Rajasekharan Pillai Vice-Chancellor VC/IV-7/10/70 June 11, 2010 Sub: Redesignation of certain categories of academics as Teachers in IGNOU - reg. Dear & Respected Smt. Vibha Puri Das Ji, Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 It may be kindly recalled that the Board of Management of the IGNOU had passed a resolution to promulgate an ordinance by which some academic staff of the University could be declared as teachers under the IGNOU Act. But this proposal repercussions with similar having very wide demands coming from all Universities, ITT’s etc., was turned down by the Ministry. The proposal of issuing such an ordinance was withdrawn by the IGNOU under these conditions. the University. Because had There is however merit in the case of those academic staff, who were erstwhile teachers and took up the assignment of these positions in the interest of continued in the teaching line they would have retired only at the age of 65 years but they are now made to retire at 62 years. It is a fact that the enhancement of retirement age of teachers to 65 years could not have been foreseen at "the time the other non- classroom teaching academic positions. Effectively therefore, these people have been denied the opportunity of an "informed decision". they were deployed They should be, in all fairness, given the option of either continuing in the present position or of reverting back to their teaching line now, albeit belatedly. This however will be subject to the condition that they are still capable of discharging the teacher’s responsibilities effectively. In short, the conditions to be satisfied here are: These employees were

1. teaching cadre previously;

2. At the time of changing the cadre, the employee could not have been aware of his/her having to retire at 62 years whereas the teaching cadre people could continue upto 65 years; in his discipline/faculty and that on reversion will be able to discharge the duties of a teacher effectively. Towards this, an Expert Committee proposed to be constituted to assess each such candidate as regards his/her suitability to revert to line. Those persons who are teaching Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 recommended by such Expert Committee can then be considered for being taken back to the teaching line. If this proposal is accepted in principle by the Ministry, further necessary action will be initiated by the IGNOU. I look forward to the response from the Ministry in this regard. With regards, Yours sincerely, (V N Rajasekharan Pillai) Smt. Vibha Puri Das Secretary (Higher Education) MHRD, Shastri Bhawan New Delhi” (xvii) In its 104th meeting, held on 21 April 2010, the BOM of IGNOU approved the amendment to the existing statutes, thus: “ITEM NO.29 TO CONSIDER THE PROPOSAL FOR TO AMENDMENT CLAUSES (12) AND (13) OF STATUTE 17 OF IGNOU ACT (This item was discussed on priority basis as Dr. D. K. Paliwal had another meeting to attend) The Board considered BM 104.29.1 proposal for amendment to clause (12) and (13) of Statute 17 of IGNOU Act. The Registrar (Admn:) informed that the Board at its 98 meeting held on 14.01.2009 adopted letter dated 13.12.2008 regarding revised pay scales in respect of Teachers and other equivalent categories of academics and authorized the Vice-Chancellor to constitute the MHRD committee finalize a Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 recommendations of the revised recruitment rules, career advancement scheme and service conditions for Teachers. Accordingly, a committee was constituted under the Chairpersonship of Prof. Parvin Sinclair, PVC. The report of the committee was placed before the Board at its 102 meeting held on 14.10.2009. The Board had agreed to the recommendations made by the Committee. The Registrar (Admn.) informed that the MHRD letter dated 31.03.2010 however, informed that the matter was considered in the Ministry and the Ministry decided that the matters regarding re-designation, revised recruitment rules, career advancement scheme and service conditions for Teachers are required to be provided under Statutes and not under the Ordinances as per the provisions under Section 24 (d) of IGNOU Act. The MHRD has advised that the University may bring an agenda item in its next meeting on the subject. Dr. D.K. Paliwal, Dy. Educational Advisor clarified that as far as the teaching posts, namely, Lectures, Readers and Professors are concerned the necessary notification may be issued by the University in accordance with the UGC notifications in this regard. However, with regard to the equivalent academic positions in the University the MHRD has for appropriate its position amendments in the Statutes of the IGNOU Act and not under the Ordinances which may be considered by the University. reiterating The Board decided BM 104.29.2 notification re-designating the Lecturers, Readers, Professors in the University may be issued. As regards the other academic equivalent positions, the Board approved the amendments to the existing Statutes, consideration of the BOM. A copy of the MHRD letter No. F.5-67/2009-DL dated 31.03.2010 is placed as Appendix-12.” as desired by the Ministry Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (xviii) On 10 June 2010, the following note was issued by the VC to the MHRD: “Note to Secretary (HE), MHRD Sub: 6th Pay Commission Benefits to Academic Staff other than those who are designated as Professors, Associate Assistant Professors in IGNOU. Professors

1. The proposal in this regard, duly approved by all the statutory bodies of the University, had been forwarded to the MHRD for making the ordinances. This is strictly in compliance with the IGNOU Act, Paragraph2, Clause (p) The eligibility, the Recruitment and Career 2. Advancement procedures for Professors, Associate Professors and Assistant Professors and these other academic staff are exactly the same.

3. So far they have been enjoying the same benefits including the superannuation age on par with the Professors. All the clarifications sought by the Ministry

4. have been sent. The draft ordinance had also been approved

5. by the BoM and sent to MHRD.

6. However, for reasons of wider negative implications of the above proposal, as advised the MHRD, IGNOU withdrew this proposal.

7. The way out is now to give these benefits to the existing staff, with a due diligence process, and create a separate cadre of supporting staff other than teachers in future for such activities.” (xix) Following this on 29 June 2010, the VC of the IGNOU appointed a committee to suggest the action to be taken with reference to the MHRD letter dated 31 Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 March 2010. The Committee made the following recommendations: “Recommendations The following recommendations are made to sort out the issue: 1. The Academic Cadres University be re-designated as per approval of the BOM accorded at its 104th 21.04.2010 while Meeting considering amendments to Statute 17, as per the direction of the MHRD vide their letter dated 31.03.2010. A copy of the relevant decision of the Board of Management is enclosed (Annexure-1). This action does not involve any additional financial commitments and also it will not have any Conventional Universities in the Country as these Cadres are specific to IGNOU. A re- statement designation for academic Cadres on par with Teaching Cadres as per Resolution No. 104.29 of the BOM at its meeting held on 21.04.2010 is enclosed (Annexure-II). As seen from the list the re-designations of the incumbents of the Academic Cadres shall be in the Academic Functional Areas. implication on any of the Approved showing The future appointments against the 2. sanctioned positions these academic functional areas shall be made in teaching Cadres of Assistant Professor, Associate Professor and Professor.

3. The committee recommends that, a notification to re-designate Academics may be issued by the University with immediate effect, as per the provision of the University, holding analogous positions in various Divisions/Centres/Units/ Institutes to their equivalent counterpart Teacher designation.” Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (xx) The decisions taken by the BOM in its 104th meeting held on 21 April 2010 supra were forwarded by IGNOU to the MHRD, under cover of letter dated 31 December 2010. (xxi) On 11 May 2012, the following circular was issued by the Academic Coordination Division of the IGNOU: “IGNOU ACADEMIC COORDINATION DIVISION L.No.IG/IA//2/319/1553 Date 11th May, 2012 CIRCULAR As on date, the agreed appointment of teachers of the University is 65 years and that of academics is 62 years. It has been observed that in the reason teachers/ academic have passed one or continued to attend to their duties beyond their respective age of superannuation on the plea that no order was issued regarding their superannuation. is drawn this connection attention In provisions of Min. of Home Affairs OM No.33/6/56 Ests(A) dated 10.12.1965 which states "....a government servant cannot take advantage of the non-receipt of formal orders regarding his relief, etc. to say that he has been granted an extension of service. If the government servant desires to take any lebe preparatory to retirement he will naturally apply for it in good time. If not he should bring the fact he is attaining the age of superannuation of completing the period of service after which he has to retire, to the notice of the head of the office in which he is serving or if he is himself the head of the office to that of his immediate superior. Unless you receives specific order that he should continue in service he should make over charge on the due date to the head of the office (or such officer as may be nominated by the later), or if he is himself the head of the office to the next senior most officer in Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 the office who normally be placed incharge of the office in his absence" Therefore, under no circumstances should teacher / academic continue to attend their duties beyond their respective age of superannuation unless he / she receives specific orders regarding his /her continuation of service. Sd/- (M.S.SENAM RAJU) Director (ACD)” (xxii) The proposal forwarded by IGNOU to amend Statues 17(12) for re-designating certain academic positions in the IGNOU as teacher was, ultimately, not approved by the President, as Visitor of the IGNOU. The non-approval was communicated by the MHRD to IGNOU vide letter dated 23 July 2013. (xxiii) This decision was reiterated by the MHRD in its letter dated 25 April 2014 addressed to IGNOU, apparently in response to further representations from IGNOU to the MHRD on 3 April 2014. It was clearly stated, in the said communication, the issues raised by IGNOU in its representation had been already examined by the MHRD and, with the approval of the Visitor, the decision thereon communicated to the IGNOU vide letter dated 23 July 2013 supra. As such, it was clarified that there was “no scope and merit to reconsider the proposal of redesignation of certain academic positions in IGNOU as Teachers”. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (xxiv) On 15 December 2017, the MHRD wrote to the IGNOU, approving the amendments in Statutes 17(9) to the extent of enhancing the retirement age of teachers in the IGNOU from 62 to 65 years. The relevant portion of the said communication reads, thus: New Delhi, dated: 15.12.2017 To, Ms. Manjulika Srivastava, Director, Academic Coordination Division, Indira Gandhi National Open University, Maidan Garhi, New Delhi-110068 Subject: Amendment in the Statute 17(9) on the age of retirement of teachers under IGNOU Act, 1985-reg. Madam, I am directed to refer IGNOU’s letter No. AD/2/A/107089/1944 dated 26.09.2016 on the subject mentioned above and to state that the proposal of IGNOU for amendment in the Statute 17(9) on the age of retirement of teachers under IGNOU Act, 1985 was examined in the ministry and further taken up with the Visitor of the University for his approval. The President of India, in his capacity as the Visitor of IGNOU, has accordingly approved the amendment in the Statute 17(9) on the age of retirement of teachers under IGNOU Act, 1985 as under: teachers Existing provision under Statute 17(9) on the age of retirement IGNOU Act (1) (a) Save as otherwise provided the Act, Statutes and Ordinances teachers of University shall retire from service on afternoon of Approved 17(9) amendment] Statute [after (a) Save as otherwise the Act, provided Statutes Ordinances all teachers of the University shall retire from service on the afternoon of the last Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 date of the month in which he/she attains the age of 62 years. date of the month in which he/she attains the age of 65 years. (b) ***** (b) *****

2. In view of above, you are accordingly requested to take further necessary action as per the provisions of the IGNOU Act, 1985 in the matter. Yours faithfully, (B.K. Bhadri) Assistant Educational Adviser (DL)” Proceedings before the learned Single Judge

13. Relevant proceedings prior to passing of the impugned judgment

13.1 Before we advert to the impugned judgment of the learned Single Judge, it is necessary to refer to the prior trajectory of proceedings.

13.2 The writ petition, as originally filed by the respondents, was predicated solely on Sections 2(p) and 5(1)(v) of the Act, the letter dated 23 March 2007 from the MHRD to the UGC and 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 201013, dated 28 June 2010. Further, the prayer clause in the writ petition read thus: “It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to: Signature Not Verified 13 "the 2010 UGC Regulations" hereinafter LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (a) Summon the original records of the case; (b) Implement the UGC Guidelines dated 28.06.2010 No. F.3-1/2009 28 June, 2010 titled as 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 for the benefits of petitioners in respect of Age of Retirement, Career Advancement Scheme beyond the post of Dy. Director(PB IV with Grade Pay 9000/-) and principle of seniority. Implement (d) the order of Ministry of Human Resource Development, Department of Higher Education No. 1-19/2006-U.II dated 23.03.2007; and Implement (e) the resolution No EC.16.2.31 and circular no. IG/TA/2/40/92/2377 dt. 3rd September’ 2010 titled Principles of Determination of Seniority under Statute - 24 of IGNOU Act for fixing seniority of the petitioners as per the Cadres specified in the UGC regulatlios-2010 (sic). Pass such other further order(s), as this Hon’ble (e) Court may deem fit and proper the facts and circumstances of the present case and in the interest (sic) of justice.”

13.3 On 28 October 2022, Respondents 3 and 4, as Petitioners 3 and 4 in the writ petition, filed CM 46632/2022, to demonstrate that the said Respondents been carrying out duties which were classically carried out by teachers.

13.4 Thereafter, on 31 October 2022, 11 years after the writ petition had been instituted, the respondents moved CM 46825/2022, seeking to amend the writ petition by adding prayers (f) to (j). The prayer clause, as proposed to be amended, read thus: “It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to: Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 (a) Summon the original records of the case; (b) Implement the UGC Guidelines dated 28.06.2010 No. F.3-1/2009 28 June, 2010 titled as 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 for the benefits of petitioners in respect of Age of Retirement, Career Advancement Scheme beyond the post of Dy. Director(PB IV with Grade Pay 9000/-) and principle of seniority. Implement (d) the order of Ministry of Human Resource Development, Department of Higher Education No. 1-19/2006-U.II dated 23.03.2007; and Implement (e) the resolution No EC.16.2.31 and circular no. IG/TA/2/40/92/2377 dt. 3rd September’ 2010 titled Principles of Determination of Seniority under Statute - 24 of IGNOU Act for fixing seniority of the petitioners as per the Cadres specified in the UGC regulatlios-2010 (sic). Pass such other further order(s), as this Hon’ble (e) Court may deem fit and proper the facts and circumstances of the present case and in the interest (sic) of justice. (f) Declare that ‘teachers and other academic staff’ stipulated by Section 2(p) read with Section 24(d) of the IGNOU Act, Statute 17 of the Statutes of the University as well as Ordinance No. 16 dt. 20.06.2007, constitute one single class/cadre and it is not open to the University to differentiate or distinguish between teachers and other their conditions of service academic staff vis-(cid:224)-vis regarding the age of retirement [Statute 17(9)], promotions under career advancement scheme beyond the level of Deputy Director [Statute 17(14)] or seniority [Statute 24 read with Circular dt. 03.09.2010 at page 91 of the writ petition]; (g) Declare that the Petitioners are entitled to continue in service till they attain the age of superannuation of 65 years stipulated by Statute 17(9) of the Statutes of the University and the Circular dt. 11.05.2012 issued by the University is vitiated by manifest arbitrariness and is also ultra vires the IGNOU Act and Statutes and Ordinances of Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 the University and unconstitutional; and consequentially Petitioners No. 1 and 2 are entitled for all back wages and all consequential benefits on account of their illegal superannuation by Resp. No. 1 University w.e.f 30.06.2012 and 30.04.2014, respectively. (h) Declare that Petitioner No. 1 and 2 will be deemed to have continued in service till they attained the age of superannuation of 65 years stipulated by Statute 17(9) of the Statutes of the University, that is to say, till 30.06.2015 and 30.04.2017, respectively, and are entitled for back wages for the said period and consequent revision of pension and all other consequential benefits and consequently issue writ, order or direction in the nature of mandamus directing Respondent No. 1 to 3 to pay the arrears of pay/back wages, revised pension and all other consequent emoluments to Petitioner No. 1 and 2, within the time as may (sic, be) directed by this Hon’ble Court; (i) Issue writ, order or direction in the nature of mandamus directing Respondent No. 1 to 3 to allow Petitioner No. 3 and 4 to continue in service till they attain the age of superannuation of 65 years stipulated by Statute 17(9) of the Statutes of the University; (j) Issue writ, order or direction in the nature of mandamus directing Respondent No. 1 to 3 to promote Petitioner No. 1 and 2 to Stage - 5 w.e.f. October 2005 and December 2011, respectively, in pursuance of Statute 17(14) of the Statutes of the University and Clause III of the Ordinance on Career Advancement of Academics notified thereunder on 07.12.2018 and cause further promotions thereupon in accordance with law.”

13.5 Along with the aforesaid application seeking amendment of the prayer clause in the writ petition, the respondents also filed, under cover of index dated 31 October 2022, an additional affidavit, in which it sought to advance the following further submissions: (i) The respondents sought to place reliance on amendment of Statute 17(9) as well as the approval to the said Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 amendment, granted by the Visitor, on 15 December 201714. The respondents asserted, in their additional affidavit, that, in view of the amendment of Statute 17(9), whereby the age of superannuation of teachers in the IGNOU was enhanced to 65 years, they were entitled to continue in service till the age of 65. (ii) Additionally, reliance was placed on information stated to have been received under the Right to Information Act, 2005, to contend that, in 1999 itself, Statute 17(9) had been amended, in the 65th Meeting of the BOM, to include, within its purview, “academic staff” assessed the respondents. It was contended that Statute 17(9), as thus amended, read as under: “9) Age of retirement (a) Save as otherwise provided in the Act, Statutes and Ordinances all teachers/ academic staff of the University shall retire from service on the afternoon of the last date of the month in which he/she attains the age of 62 years.” (iii) Reliance was also placed, for the first time, on Circulars dated 2 June 1992 supra and 7 June 1994 supra, issued by the IGNOU, to contend that the said Circulars equated the age of retirement of other academic staff with that of teachers and extended, to other academic staff, the benefit of the CAS.

13.6 The orders that came to be passed by the learned Single Judge, apropos CM 46632/2022, CM 46825/2022 and the additional affidavit Signature Not Verified 14 Refer para 12(IV)(xxiv) supra LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 filed along with CM 46825/2022, are significant, and maybe thus noted: (i) On 3 November 2022, the following order came to be passed, apropos CM 46632/2022: “CM Appl 46632/2022 By way of this application under Section 151 of the Code of Civil Procedure, 1908, the petitioners no. 3 and 4 seek permission to place additional documents on record. There is no appearance on behalf of Respondents no. 1 to 3. On taking steps within a week, issue notice to Respondents no. 1 to 3 through all permissible modes, returnable on 25th January, 2023, i.e. date already fixed.” (ii) This order was, however, “corrected” by the following order passed on the very next date of hearing, i.e., 14 November 2022: “CM Appl. 48576/2022

1. correction of the order dated 3rd November, 2022. By way of this application, the petitioners pray for

2. Heard.

3. application is allowed. For the reason stated in the application, the The order dated 3rd November, 2022 stands

4. corrected and shall henceforth be read as under: “CM. Appl. 46825/2022 By way of this application under Section 151 of the Code of Civil Procedure, 1908, the Petitioners seek amendment of the writ petition. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 There is no appearance on behalf of Respondents no. 1 to 3. On taking steps within a week, issue notice to Respondents no. 1 to 3 through all permissible modes, returnable on 25th January, 2023 i.e., the date already fixed.” In view of the above, the instant application stands

5. disposed of.” Thus, the earlier order dated 3 November 2022, issuing notice in CM 46632/2022 was effectively cancelled by the order dated 14 November 2022. No formal notice, therefore, could be said to have been issued in CM 46632/2022, whereby additional documents were sought to be placed on record. (iii) Insofar as the additional affidavit which was filed by the respondents along with CM 46825/2022 is concerned, no order was ever passed, taking it on record. As a result, no occasion ever arose or the present petitioner, or for the Union of India, to traverse the assertions contained therein.

14. The impugned judgment

14.1 The impugned judgment adjudicates both CM 46825/2022 as well as the writ petition itself. The request for amendment of the prayer clause in the writ petition has been allowed, and the writ petition itself has also been allowed. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33

14.2 The learned Single Juge has, after a detailed and elaborately analyzed judgment, enumerated the reasons for his decision to allow the writ petition, thus, in para 58: “58. From a perusal of the foregoing tabulated summary and the discussion, the following inevitable conclusions arise:

58.1. The University has 03 kinds of employees: teachers, other academic staff and other employees.

58.2. The Board of Management of the University is empowered to make new or additional Statutes or to amend alteration, existing Statutes8. Addition, amendment or repeal of a Statute is not valid unless it receives the assent of the Visitor15. repeal

58.3. Furthermore, the Board of Management is also empowered to make Ordinances or to amend or repeal them16. Every Ordinance made by the Board of immediately17. All Management comes into effect Ordinances made by the Board of Management are to be submitted to the Visitor within 03 weeks from the date of adoption; and the Visitor may, within 04 weeks of receipt of an Ordinance, inform the University about any objection and direct that the operation of an Ordinance shall remain suspended until the Visitor has had the opportunity withdraw such order of suspension or disallow ordinance and the Visitor’s decision is final. The Visitor is required to inform the University about any such objection or direction within 04 weeks of receipt of the Ordinance18.

58.4. As far back as on 02.06.1992, in exercise of its powers under Statute 7(2)(a) the University issued a circular stating that the positions in Regional Services Division be classified as other academic staff and that the career advancement scheme and retirement age applicable to teachers would also be applicable to such other academic staff. Circular dated 02.06.1992 was further reiterated by a subsequent circular dated 07.06.1994 University with the approval of the Board of Management. At this time, the retirement age of teachers was 62 years, issued by 15 Section 25(4) 16 Section 26(1) and 26(2) 17 Section 26(3) 18 Section 26(4) Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 which therefore also became the retirement age for other academic staff, by reason of the aforesaid two circulars. letter dated 23.03.2007 from

58.5 Next came Ministry, which said that the retirement age of persons holding ‘teaching positions’ shall stand enhanced from 62 years to 65 years in all centrally funded institutions. To obviate some confusion that had arisen, by a subsequent letter dated 19.04.2007, the Ministry clarified that the enhancement of retirement age from 62 years to 65 years would apply only to teachers who are actually engaged in teaching classes, courses and programmes, but shall not be applicable to any other categories of employees in such institutions, notwithstanding the fact that the posts they hold may be considered equivalent to teaching positions.

58.6. Thereafter came Ordinance dated 22.05.2007 issued by the Board of Management of the University, which inter-alia specifically declared persons holding posts of Director, Regional Director, Joint Director, Deputy’ Director, Assistant Director and Assistant Regional Director in the Regional Services Division as teachers and thereby made the career advancement scheme and the retirement age of teachers applicable to the said persons. Notably, no objection was received from the Visitor nor was the operation of the Ordinance suspended or any disallowance thereto made by the Visitor under Statute 26(4); and therefore, the Ordinance, which came into effect immediately as per the mandate of Statute 26(3), has remained in-force ever since. Nothing to the contrary has been brought to the notice of this court in relation to Ordinance dated 22.05.2007. In fact, the brief note of reasons that accompanied the Ordinance gives a perfectly rational basis and justification for designating persons holding posts in the Regional Services Division as teachers namely that teaching at an open university is very different from that at a conventional university; that the pedagogy of distance education encompasses activities such as delivery of content and services to students, evaluation of student’s performance, system development, program evaluation, planning, preparation and production of audio/programmes and so on. The note drew upon the recommendations of the Takwale Committee appointed in 1992, to observe that the role of an academic in the distance education system cannot be conceived-of only in the sense of teaching within a classroom but as a distance educator in the first place, while also being a specialist and an experienced professional otherwise. Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33

58.7 Then came the amendment to Statute 17(9) issued by the Ministry on 15.12.2017 enhancing the retirement age of ‘all teachers’ from 62 years to 65 years. Since persons holding positions in the Regional Services Division, earlier as other academic staff, already stood referred to designated as teachers by Ordinance dated 22.05.2007, the amendment to Statute 17(9) made on 15.12.2017 referring to all teachers ipso-facto also applied to members of the Regional Services Division - which included the petitioners - who had been designated as teachers.

58.8 Section 2(p) of the Act permits the University, acting through its Board of Management, to re-designate persons as teachers. This is precisely what the University did vide Minutes of Meeting dated 22.05.2007 of the Board of Management, whereby, removing all ambiguity in this behalf, by Ordinance the University re-designated specified persons serving in the Regional Services Division as teachers. To re-emphasise, there was therefore no further requirement to seek equivalence between teachers and specified persons serving in the Regional Services Division, since the latter had already been specifically included within the definition of 'teachers’.

58.9 As for the subsequent proposal comprised in Minutes of Meeting dated 21.04.2010, seeking to amend Statute 17(12) and 17(13) purportedly to re-designate other academic staff as teachers, it can at best be said that the proposal was itself misconceived and contrary to the extant position, since other academic staff had already been included within the definition of teachers, as discussed above. Accordingly, communication dated 23.03.2017 received from the Visitor, declining to approve that proposal, is of no relevance in the present case, since the Board of Management of the University had already re- designated other academic staff as teachers by Ordinance dated 22.05.2007, as discussed above, which the Board of Management was empowered to do under Statute 7(2)(a) of the University. Also, on point of fact, there cannot be any cavil that 58.10 the petitioners were definitely engaged in teaching since they engaged in pedagogy - though in the format required in an open university.” Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33

15. Aggrieved thereby, the IGNOU has preferred the present appeal.

16. We have heard Mr. Sudhir Nandrajog, learned Senior Counsel for the petitioners and Dr. S. Gopakumaran Nair, learned Senior Counsel for Respondents 1, 3 and 4, instructed by Ms. Priya Balakrishnan. Rival submissions Submissions of Mr. Nandrajog for IGNOU

17. Opposing the impugned judgment, Mr. Nandrajog advances the following submissions: (i) The offer of appointment, dated 20 January 1997, pursuant to which Respondent 1 was appointed as Regional Director, stated that his major functions would be “academic, administrative and promotional including admission of students, promotion of the University’s programs and activities, establishment, maintenance and coordination of study centres, delivery of various student services, liaison with various authorities the Region such as State Government, Educational Institutions and other organisations, monitoring of services at study centres and sending regular feedback to the headquarters and such other functions as assigned by the University from time to time”. Similar duties were required to Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 be performed by the other Respondents. They were not, therefore, appointed for performing teaching duties. (ii) The MHRD letter dated 23 March 2007 supra increased the age of superannuation from 62 to 65 years for persons “who were holding teaching positions on regular employment against sanctioned posts”, specifically “in order to overcome the shortage of teachers”. To avoid confusion, this aspect was clarified by the MHRD in its subsequent communication dated 19 April 2007 supra, which made it clear, beyond doubt, that the enhancement of age of superannuation would not be applicable to employees in Centrally Funded Institutions, even if the posts that they held were considered as equivalent to teaching positions. It was further clarified that the increased age of superannuation was applicable only to persons “actually engaged in teaching classes/courses/programmes of study in such institutions”. (iii) The Ordinance which was proposed, in the BOM Meeting dated 22 May 2007, re-designating Directors, Regional Directors, Joint Directors, Deputy Directors, Assistant Directors and Asst Regional Directors in the RSD as “teachers” was never notified. The last Noting in that regard, on the file, dated 26 July 2007, by the VC, proposed that the IGNOU would wait for the comments of the MHRD till 20 August 2007 and that the proposal be resubmitted thereafter. Ultimately, the proposal was never notified. This fact was acknowledged by the respondents, Signature Not Verified LPA 118/2024 Digitally Signed By:AJIT KUMAR Signing Date:06.10.2025 11:25:33 in their rejoinder before the learned Single Judge, in which it was averred thus: “Even though the Administration Division put up notings several times in the year 2007 to adopt and notify the Ordinance 16 in accordance with the provision of Statute 26(3) and 26(4) but then the Vice-Chancellor, without any reason, disapproved the noting, draft Covering letter to Controller of Publications and Draft Notification put up by the Administration Division in complete violation of the statutory provisions and disregard to the decisions of Board of Management.” The decision of the VC has never been challenged by the respondents. It is also pointed out that, by virtue of Statute 2(4), the VC exercised control over the affairs of the IGNOU and gave effect to the decisions of all authorities of the IGNOU. (iv) Section 40(1) of the Act made it clear that the mere passing of a resolution to incorporate or add an Ordinance was not enough and that it had to be published in the Official Gazette and laid before each House of Parliament. This never happened in the case of the purported Ordinance 16. Reliance is placed, in this context, on paras 3 and 9 of Harla v State of Rajasthan19 and para 16 of Collector v Raja Ram Jaiswal20. (v) Vide communication dated 31 March 2010, the MHRD pointed out that re-designation of other academic posts as “teachers” could only be by amendment of the Statutes, and not by an Ordinance. The proposed re-designation included the Signature Not Verified