The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2763 of 2024 Dr. Tushar Ranjan Pattnaik …. Petitioner Mr. S.K. Das, Advocate Govt. of India & Others -versus- …. Opposite Parties Mr. B. Maharana, Sr. Panel Counsel Adv. for O.P.1 Mr. S. Sahu, Adv. along with Mr. N.K. Sahu, Adv. for O.P.2 & 3 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 03.02.2025 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed by the Petitioner inter alia challenging the notice dtd.15.09.2023 so issued by Opposite Party No.2 under Annexure-10. Vide the said notice, Petitioner was intimated about his date of superannuation as 30.04.2024, on his completing 62 years of age. 4. It is contended by the learned counsel appearing for the Petitioner that Petitioner was initially appointed as against the post of Physical Training Instructor by the // 2 // then Registrar, Regional Engineering College, Rourkela vide order dtd.09/15.4.1997. 4.1. It is contended that service condition of such employee appointed in Regional Engineering College was governed by the Regional Engineering College, Rourkela, Service Rules, 1973. Placing reliance on Rule-26 of the said Rules, it is contended that the post of Physical Training Instructor comes within the definition of Academic Staff. Rule-26 of the said Rules reads as follows:- “26. Academic staff means the teaching staff of the College and will include Principal, Heads of departments, Professors, Associate Professors, Asst. Professors, Lecturers in senior and Junior scales, Teaching Assistant, Librarian, Physical Training Officer, Physical Training Instructors Workshop Superintendent and any other category of staff as may be declared by the Board as Academic Staff from time to time”. 4.2. It is contended that while so continuing in REC, Rourkela, the Institution was re-named as National Institute of Technology, Rourkela (in short ‘NIT’). As provided under Section-5(d) of the National Institute of Technology Act, 2007 (in short ‘Act’), every person employed by a society, REC being a society, immediately before such commencement, shall hold his office or service in the corresponding Institute for the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters Page 2 of 14 // 3 // as he would have held if this Act had not been passed, and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes. 43. It is contended that in view of the provisions contained under Section-5(d) of the Act, since the Petitioner was earlier continuing under the REC on his becoming an employee under NIT, the same service condition is required to be followed. 4.4. It is further contended that as provided under the 1st Statute of NIT vide Clause-24(ii), the age of superannuation shall be as specified for various classes and categories of employees of the Institute by the Central Government.
Legal Reasoning
4.5. It is contended that in view of the Notification issued by the Government of India, Ministry of Human Resources Development, Department of Higher Education dtd.23.03.2007 under Annexure-3, the age of superannuation of teaching staff in centrally funded Institution in Higher and Technical Education was enhanced from 62 to 65 years. 4.6. It is contended that since Petitioner was appointed as a Physical Training Instructor, which comes under the category of teaching staff, in view of the Notification Page 3 of 14 // 4 // issued by the Government of India under Annexure-3, coupled with the provisions contained under Rule-26 of the 1973 Rules, Petitioner became eligible to continue till he attain age of 65 years. But since vide the impugned notice dtd.15.09.2023 under Annexure-10, Petitioner was made to retire at the age of 62 years and the notice was accordingly issued for making him to retire on 30.04.2024, the Writ Petition was filed challenging such action of Opposite Party No.2. 4.7. It is contended that initially while issuing notice of the matter though this Court vide order dtd.23.04.2024 passed an order of status quo, but the same was challenged by the authorities of NIT by filing Writ Appeal No.866 of 2024. The Writ Appellate Court vide order dtd. 30.04.2024 while disposing the Writ Appeal held that if the Petitioner succeeds in the Writ Petition, he shall be entitled to all consequential benefits. 4.8. It is accordingly contended that since Petitioner in view of the provisions contained under Rule-26 of the 1973 Rule was an Academic Staff, in view of the Notification issued under Annexure-3 and the provisions contained under Section-5(d) of the Act, Petitioner was eligible to continue till he attain the age of 65 years. But in terms of the impugned notice and further order passed by the writ appellate court in W.A. No.866 of 2024 on 30.04.2024, Petitioner was superannuated w.e.f. Page 4 of 14 // 5 // 30.04.2024. However, it is contended that in view of Annexure-3 coupled with the fact that Petitioner is a teaching staff, Petitioner is eligible to continue till he attain the age of 65 years with all consequential service and financial benefits. 4.9. It is also contended that in view of the documents available under Annexures-5-Series and 6-Series, it is quite apparent that Petitioner comes under the category of teaching staff and accordingly he was eligible to continue till he attain the age of 65 years. It is accordingly contended that the impugned notice dtd.15.09.2023 so issued by Opposite Party No.2 under Annexure-10, is not sustainable in the eye of law. 5. Mr. Sidhartha Sahu, learned counsel appearing on behalf of Mr. N.K. Sahu, learned counsel for Opposite Party Nos.2 and 3, on the other hand made his submission basing on the stand taken in the counter affidavit. 5.1. It is contended that though Petitioner by the time he was appointed by the then REC, Rourkela as Physical Training Instructor, the post was a teaching post and comes within the definition of Academic Staff under Rule- 26 of the 1973 Rules, but the said post was re-designated by the authorities of NIT by treating the same as a non- teaching post. In support of such submission, learned Page 5 of 14 // 6 // counsel for the Opposite Party Nos.2 & 3 relied on the communication issued by the Government of India Ministry of Human Resources Development on 22.10.2009 under Annexure-C/2. 5.2. It is contended that in the said communication 30 posts were treated as non-teaching post which includes the post of Physical Training Instructor, so indicated at SL. No.9. 5.3. It is also contended that the communication issued under Annexure-C/2 was never assailed by the Petitioner, wherein the post of Physical Training Instructor was shown as a non-teaching post. A further reliance was also placed with regard to the communication dtd.04.07.2011 so available under Annexure-I/2 issued by Opposite Party No.2. Placing reliance on the said communication, it is contended that post of Professor, Associate Professor and Asst. Professor was declared as Faculty Post and post of Officer along with other posts were declared as Non- Faculty Post. Placing reliance on the said document, it is contended that the post of Physical Training Instructor under NIT, was re-designated as SAS Officer as reflected in the communication dtd.23.05.2011 under Annexure- H/2. 5.4. It is contended that since Petitioner was re- designated as a SAS Officer, which comes under the Page 6 of 14 // 7 // category of Non-Faculty Post in terms of Annexure-I/2, the contention raised by the learned counsel for the Petitioner that under NIT, Petitioner continues to be a teaching staff holding a Faculty Post is not true and correct. 5.5. It is further contended that the communications issued under Annexures-C/2, H/2 and I/2, wherein the post of Physical Training Instructor was shown as a non- teaching post and / or Non -Faculty post, was never assailed by the Petitioner by filling appropriate application in that regard. 5.6. It is contended that from the year 2009, post of Physical Training Instructor having been declared and re- designated as SAS Officer, which is a non-teaching post, Petitioner was issued with the impugned notice under Annexure-10 making him to retire on his attaining the age of 62 years. 5.7. It is also contended that such decision to re- designate the post as SAS Officer was approved by the Board of NIT. 5.8. It is also contended that as per the communication issued by the Government of India on 29.01.2016 under Annexure-M/2, the retirement age of SAS Officer working in NIT, Rourkela was fixed at 62 years. Placing reliance on the communications issued under Annexures-G/2, Page 7 of 14 // 8 // I/2 and M/2, it is contented that since Petitioner under NIT was treated as a non-teaching staff, he was rightly issued with the impugned notice making him to retire at the age of 62 years. 5.9. It is also contended that in terms of the impugned notice and further order passed by this Court in Writ Appeal, Petitioner has been made to retire on attaining the age of 62 years on 30.04.2024. 5.10. Reliance was also placed to the communication dtd.16.09.2009 issued under Annexure-B/2 wherein the age of superannuation of Librarian in the cadre of Physical Education Personnel was fixed at 62 years. Reliance was also placed to Clause-22 of the 1st Statute of the University, wherein the post to Physical Training Instructor was not included in the category of Academic Staff. Clause-22 of the 1st Statute reads as follows:- “Classification of the members of the Staff:- 1. Except in the case of employees paid from contingencies the members of staff of the Institute shall be classified as under:- (i) (ii) Academic Staff: Director, Deputy Director, Professor, Associate Professor Assistant Professor, Lecturer, Professor Training and Placement, and such other academic posts as may be decided by the Board from time to time; Technical Staff: System Manager, System Analyst, Programmer, Librarian, Workshop, Superintendent, Laboratory Foreman, Assistant, Mechanic, Overseer, Technical Assistant, Technician, Instructor, Page 8 of 14 // 9 // Draftsman and such other technical posts as may be decided by the Board from time to time and (iii) Administrative and others staff: Registrar, Deputy Registrar and Assistant Registrar, Accounts Officer, Audit Officer, Estate Officer, Executive Engineer Assistant and Junior Engineer, Medical Officer, Medical Assistant, Horticultural Assistant/Officer, Officer Superintendent, Security Officer, Stores Officer, Store Keeper, Office Assistants, Data Entry Operators and such other Administrative and other staff as may be decided by the Board from time to time. 2. Posts classified as Academic staff shall be vacation posts only. 5.11. It is accordingly contended that the prayer as made
Decision
in the Writ Petition is completely mis-conceived and Writ Petition is liable for dismissal. 6. Taking into account the stand taken in the counter affidavit and the submissions made, learned counsel appearing for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. Placing reliance on Clause-5 of the 1st Statute of the University, it is contended that Board of Governors is not competent to take the post of Physical Training Instructor as a non-teaching post. 6.1. Reliance was also placed to Section-30 of the 2007 Act. It is contended that in terms of Section-30 of 2007 Act, a Council is required to be established for all the Institutes specified in column (iii) of the Schedule. As provided under Section-32(2)(b) of the Act, it is the Page 9 of 14 // 10 // Council only who is competent to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest. 6.2. It is contended that the decisions taken by Opposite Party Nos.2 & 3 to re-designate the post as SAS Officer in terms of the Board’s decision and the Board in terms of Clause-5 of the 1st Statute is not competent to take any such decision without the approval of the Council. It is also contended that in view of the provisions contained under Section-30 read with Section-32(2)(b) of the Act, it is only the Council who is competent to lay down the policy with regard to change of service condition of the employees. Hence, basing on such decision of the Board, the post of Physical Training Instructor could not have been re-designated as a non-teaching post as well as a Non-Faculty post by fixing the age of retirement at 62 years. 6.3. It is also contended that since on the face of the communications issued under Annexures-C/2, G/2 and I/2, Petitioner was allowed with the grade pay, which is not the grade pay applicable to the post of SAS Officer, Petitioner remained under the bona fide impression that Petitioner is holding a teaching post and accordingly no Page 10 of 14 // 11 // challenge was made to the decisions taken under Annexures-C/2, G/2 & I/2. 6.4. Reliance was also placed to the communication available under Annexure-5-Series and 6 Series, wherein the Petitioner was shown as a Faculty Member. 6.5. It is accordingly contended by the learned counsel for the Petitioner that since the decision to re-designate the post as SAS Officer was taken in terms of the Board Decision and since the Board of NIT, Rourkela is not competent to change the service condition of the Petitioner, save and except with the approval of the Council in terms of Section-30 read with Section-32(2)(b) of the Act, basing on such wrong decision taken by the Board, Petitioner could not have been made to retire on his attaining the age of 62 years. Since Petitioner is the holder of a teaching post, in view of the materials available in the writ petition, Petitioner is eligible and entitled to continue till he attain the age of 65 years, with all consequential service and financial benefits in view of the nature of order passed in the Writ Appeal No.866 of 2024. 7. Having heard learned counsel appearing for the Parties and considering the submissions made and the material placed before this Court, it is the found that Petitioner was initially appointed as against the post of Page 11 of 14 // 12 // Physical Training Instructor by the then REC, Rourkela vide order dtd.09/15.04.1997 under Annexure-1. As provided under Rule-26 of the REC Rules, 1973, the post of Physical Training Instructor comes within the definition of Academic Staff. It is not disputed by the learned counsel appearing for the Petitioner that REC was re- named as National Institute of Technology, Rourkela. 7.1. Though in terms of the provisions contained under Section-5(d) of the Act, the service condition of erstwhile REC employee was required to be maintained by NIT and Clause-24 (ii) of the 1st Statute prescribe the age of superannuation of such teaching staff, but this Court finds that in terms of the decision taken by the Board, post of Physical Training Instructor was re-designated as SAS Officer. As further found in terms of the communications issued Annexures-C/2, G/2 and R/2 as well as B/2, the post of Physical Training Instructor has been taken as a non-teaching post and the age of superannuation for such non-teaching staff / SAS Officer is 62 years. 7.2. However, placing reliance on the provisions contained under Section-30 read with Section-32 (2)(b) of the Act, this Court finds that it is the only Council of NIT Institution, who is competent to change the service condition of the employees of NIT. Since no document has been filed by Opposite Party Nos.2 and 3 showing Page 12 of 14 // 13 // that such decision to re-designate the post of Physical Training Instructor as a non-teaching post has been taken with due approval of the decision taken by the Board by the Council, this Court is of the view that the matter requires an adjudication by the council. 7.3. Since the council re-presented by the Ministry of Higher Education, Government of India, Shastri Bhawan, New Delhi is not a party to the Writ Petition on the prayer made by the learned counsel for the Petitioner he is permitted to implead Ministry of Higher Education, Government of India, Shastri Bhawan, New Delhi represented by its Secretary as Opposite Party No.4 in Court today. In view of the provisions contained under Section-30 read with Section-32(2)(b) of the Act, this Court permits the Petitioner to move an appropriate application before the Council-Opposite Party No.4 with regard to the entitlement of the Petitioner to continue till he attain the age of 65 years. 7.4. It is observed that if any such application is moved within a period of three (3) weeks from today, Opp. Party No. 4 shall do well to take a lawful decision on the same within a period of three (3) months from the date of receipt of such application. The order so passed by Opp. Party No.4 be communicated to the Petitioner. Opposite Party No.4 is directed to look into the provisions contained under the then REC, Rules, 1973 and the Page 13 of 14 // 14 // provisions contained under the NIT Act, 2007 as well as the 1st Statute of NIT, Rourkela in its proper perspective. If on such consideration, it will be held that Petitioner is otherwise eligible to continue till he attain the age of 65 years, appropriate orders be passed in terms of the order passed in W.A. No.866 of 2024. 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Jul-2025 14:55:34 Page 14 of 14