M.Murugan v. Government of India Ministry of Human Resources Development

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 12.06.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.A. NO.1132 OF 2008M.Murugan.. Appellant- Vs –1. Government of India Ministry of Human Resources Development rep. by Secretary to Government New Delhi.

The Indian Institute of Technology Madras, Chennai 600 036 rep. by its Registrar... RespondentsWrit Appeal filed against the order dated 17th July, 2008, passedby learned single Judge in W.P. No.26484 of 2007. Presented to this Court under Article 226 of the constitution of India to issue a writof Mandamus direct the respondents to permit the petitioner tocontinue in service till the petitioner completes the age of 62years. For Appellant: Mr. Chellaiah, SC, for M/s.C.Vasanthakumari For Respondents: Mr. K.M.Sukadev, SCGSC for R-1 Mr. Vijaynarayan, SC for Mr.Karthick for R-2JUDGMENTS.J.MUKHOPADHAYA, J.The Appellant (hereinafter referred to as the ‘petitioner’) filedthe writ petition for direction on the respondents to permit him tocontinue in the services of the Indian Institute of Technology, Madras (hereinafter referred to as ‘IIT, Madras’) till he completesthe age of 62 years. He was informed that he will retire w.e.f.

Subsequently, another letter in F. No.1-9/99-.N dated 22ndSept., 2006 was issued from the Ministry of Human ResourceDevelopment, Govt. of India. In the said letter, while matterrelating to creation of posts of professors of UGC recognized andautonomous colleges were informed, the revision of career advancementscheme for Asst. Librarian, College Librarian, etc., were referred. It was informed that the Government has decided that age ofsuperannuation of Asst. Librarian/College Librarian and some otherswould henceforth be 62 years. The said letter was addressed by the Government of India to the Secretary, UGC, New Delhi.

By its letter No.F.3.1/94 (PS) 7 dated 19th Oct., 2006, UGC,New Delhi, giving reference to letter of Ministry of Human ResourceDevelopment, Govt. of India, dated 22nd Sept., 2006, informed the Registrar, IIT, Madras, of the aforesaid decision and intimated thatthe UGC has decided that the age of superannuation for Asst. Librarian/College Librarian and some others would henceforth be 62years. It appears that the Board of Governors of IIT, Madras, did notdeliberate on the issue regarding enhancement of age ofsuperannuation of Librarian/Asst. Librarian, though the Board of Governors of some other IITs, namely, Kharagpur and Bombay, increasedsuch age of superannuation from 60 to 62 years. https://hcservices.ecourts.gov.in/hcservices/

As the petitioner, otherwise, would have retired from servicew.e.f. 30th June, 2007, on completion of 60 years, he wrote a letterto the Registrar, IIT, Madras on 5th Feb., 2007, bringing theaforesaid fact to the notice of the authorities and requested toallow him to continue for two more years in service, i.e., upto theage of 62 years. It followed by reminder dated 20th Feb., 2007. TheUGC, New Delhi, by letter No.F.3-1/94 (PS) – 7 dated March, 2007,informed the Registrars of different Central/State/DeemedUniversities that the age of superannuation of DeputyLibrarian/Deputy Director of education is 62 years. It furtherappears that the petitioner having received no positive reply fromIIT, Madras, also brought the matter to the notice of the Ministry of Human Resource Development, Government of India, New Delhi, who videtheir letter F.No.5-9/2006-TS.I dated 7th June, 2007, requested theIIT, Madras, to take appropriate action in the matter and send areply to the petitioner. The Registrar, IIT, Madras, vide letter No.F.Admn.1/A2/2007/927 dated 21st June, 2007, wrote a letter to the Ministry of Human Resource Development, Govt. of India and informedthat as IIT, Madras, does not come under the mandate of UGC, the Library and Physical Education staff have not been brought under theacademic staff and given nor given benefit of enhancement. The Boardof Governors, who met and discussed on 24th May, 2007, noted that someother IITs have extended the benefit to library staff and, therefore, asked for clarification as to whether the age of superannuation from60 to 62 years is applicable to Asst. Librarian/Deputy Librarian andphysical education staff of IITs. It was informed that since the Asst. Librarian of the Institute (petitioner herein) willsuperannuate on 30th June, 2007, an early reply is needed. Thepetitioner also was informed by IIT, Madras, vide letterNo.F.Admn.1/A2/2007/965 dated 29th June, 2007, that his matter hasbeen referred to the Ministry of Human Resource Development, Dept. of Higher Education, Govt. of India for clarification and that necessaryaction will be taken as and when the direction of the Government arereceived in the matter.

The 2nd respondent has taken plea that the IIT does not comeunder the purview of UGC and, therefore, any circular issued by UGCwith regard to enhancement of age of retirement would not beapplicable to employees of the institute. It has further taken pleathat the post of Asst. Librarian held by the appellant is a non-teaching post and, therefore, it cannot be treated on par withteachers. The service conditions of the employees of IIT, Madras, are governed by the statute framed in this regard and it is only the Board of Governors of IIT, Madras, who could amend, modify andrescind any of the conditions of service of its employees.

We have heard the learned counsel for the parties and noticedtheir rival contentions. https://hcservices.ecourts.gov.in/hcservices/

The IITs, including IIT, Madras, are institutions of nationalimportance and are governed by the ‘Institute of Technology Act,1961’ (hereinafter referred to as the ‘Act’). U/s 4 of the Act, eachof the institute shall be a body corporate having perpetualsuccession and common seal consisting of a Chairman, a Director andother members of the Board of Governors (hereinafter referred to asthe ‘Board’). Section 6 deals with the power of the institute underwhich every institute can exercise powers and perform duties to theextent of providing instruction and research, to hold examination andgrant degrees, etc. Section 10 deals with authorities of aninstitute, namely, Board of Governors, Senate and such authorities asmay be declared by the statute to be the authorities of theinstitute. Section 13 deals with the functions of the Board; u/s 13(2) (c), the Board has power to make statutes. The power ofappointment of persons, academic as well as other posts in theinstitute is vested with the Board u/s 13 (2) (d).Section 26 deals with statutes and matters, which may provide forthe terms of office and method of appointment of officers of theinstitute. U/s 26 (g), the statute may provide classification, method of appointment and determination of the terms and conditionsof service of teachers and other staffs of institute. (Emphasissupplied). U/s 27 (1), while first statute of each institute to beframed by the council with the previous approval of the Visitor, the Board is empowered to make new or additional statute or may amend orrepeal the statute from time to time in the manner prescribed underthe Act, as empowered u/s 27 (2).

From the aforesaid provisions of law, it will be evident thatthe terms and conditions of service of teachers or any other staffcan be provided only under u/s 26 (g) of the statute and it is the Board of Governors who can amend the terms and conditions of serviceby amending the statute u/s 27 (2) of the Act. Therefore, the powerto enhance the age of superannuation, one of the conditions ofservice, is vested with the Board of Governors and not with any otherauthority. The Government of India may frame a policy with regard to Institutions of Excellence and UGC may coordinate and determine thestandards of institutions for higher education, but so far asconditions of service, like age of superannuation of the teachers andother staff of IIT is concerned, they are governed by the statutewhich can be amended only by the Board of Governors.

In the present case, admittedly, the age of superannuation of Asst. Librarian as prescribed under the statute has not been amended, nor enhanced from 60 to 62. Therefore, the petitioner cannot claimto continue in the service of IIT upto the age of 62 years. However, it will be evident that in view of the recommendation of the Govt. of India and suggestion of UGC, the matter was deliberated and some ofthe IITs, such as IIT, Kharagpur and IIT, Bombay have enhanced the https://hcservices.ecourts.gov.in/hcservices/ age of superannuation of Asst. Librarian from 60 to 62 years. So faras IIT, Madras is concerned, it was for the Board of Governors todecide whether in view of the recommendation of the Govt. of India, Ministry of Human Resource Development and suggestion of UGC, theyshould also enhance the age of superannuation of Asst. Librarian from60 to 62 years. In the present case the Board of Governors of IIT,Madras, instead of taking such a decision, have referred the matterto the Govt. of India for clarification and, thereby, it abdicatedits powers.