WP(C) No.6588/07 Page 1 Reportable IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) No.6588/2007 Date of Decision: 28.03.2008 #The Chief Secretary, Govt. of NCT of Delhi and Others …..Petitioner s ! Through: Mr.Amiet Andley with Mr.Arun Sharma Versus $Shri K.R. Mann and Others …..Respondents ^ Through Mr.G.D. Gupta, Senior Advocate with Mr.Arun Bharadwaj for respondent No.1. Mr.Nasir Ahmad for respondent No.2 CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR. JUSTICE VIPIN SANGHI 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? A.K. SIKRI, J. : 1. By this writ petition the Government of NCT of Delhi seeks judicial review of judgment dated 30.4.2007 rendered by the Central Administrative Tribunal (in short ‘the Tribunal’) in OA No.2464/2006 filed by the respondent No.1 herein under Section 19 of the WP(C) No.6588/07 Page 2 Administrative Tribunals Act (in short ‘the Act’). By that judgment, the said OA of the respondent No.1 has been allowed giving him the benefit of enhancement of age of superannuation from 60 to 62 years. This benefit is bestowed upon the respondent No.1 holding that the age of superannuation of 62 years, as notified in All India Council for Technical Education (AICTE) Notification dated 30.12.1999, shall be applicable in the case of the respondent No.1 as well, who was working as a Librarian. The petitioners, on the other hand, contend that the recommendation of the AICTE was accepted qua teachers only and not other employees, including Librarians, in which category the respondent No.1 falls and thus, as per the decision of the Department of Education, Ministry of Human Resource Development, Government of India (in short the ‘MHRD’), the benefit of enhancement of age from 60 to 62 years does not enure for the benefit of Librarians. 2. In order to have proper appreciation of the dispute involved, the relevant facts may be taken note of at this stage. The respondent No.1 was appointed as a Librarian under the Directorate of Training and Technical Education (DTTE) in the year 1970. In that capacity he was posted in the Arya Bhatt Polytechnic under DTTE of the GNCT of Delhi in November, 1988. As per the service conditions applicable to WP(C) No.6588/07 Page 3 such Librarians at that time, concededly the age of superannuation of Librarians was 60 years. 3. On 30.12.1999, the AICTE issued a notification relating to revision of pay scales and service conditions of various posts in diploma level technical institutions. Within the sweep of this notification the Librarians were also covered. That portion of the recommendations with which we are concerned is reproduced below:- “AICTE NOTIFICATION ON REVISION OF PAY-SCALES AND ASSOCIATED TERMS AND CONDITIONS OF SERVICE OF TEACHERS, LIBRARIANS AND PHYSICAL EDUCATION PERSONNEL FOR DIPLOMA LEVEL TECHNICAL INSTITUTIONS 1.0 PREAMBLE “The Government of India, Ministry of Human Resource Development, Department of Education has issued orders vide letter No.37-104/95-TS-II, dated October 9, 1998 and of even No. dated January 14, 1999 implementing a scheme of revision of pay scales of teachers of degree level Technical Institutions, following revision of pay scales of Central Government employees on the recommendation of Fifth Central Pay Commission. The Government orders require that AICTE notify other terms and conditions of service of such teachers with the approval of Ministry of Human Resource Development. “In line with the revised pay-scales of teachers of degree level technical institutions and the associated service conditions, AICTE has now revised the pay-scales and associated service conditions of teachers, librarians and physical education personnel in diploma level technical institutions, with the concurrence of Ministry of Human Resource Development. These revised pay scales and WP(C) No.6588/07 Page 4 associated service conditions are given in this notification. “2.1 Scope The provisions of this notification apply to teachers, librarians and physical education personnel in diploma level technical institutions covered under the AICTE Act. “2.2 Date of Effect: The revised pay-scales, Career Advancement Scheme and incentives for higher qualification given in this notification shall be effective from January 1, 1996. All other terms and conditions come into force with effect from the date of this notification. “2.3 State Government Institutions and Private Aided Institutions: Taking into account the local conditions, a State Government may implement the revised pay- scales from a date later than January 1, 1996 and/or implement pay-scales other than those given in this notification, but which are not higher than the pay- scales given in Tables (Appendix A-1, 2 and 3). In such cases, the details of the modification proposed either to the scales of pay or the date from which the Scheme is to be implemented, should be furnished to the All India Council for Technical Education for its approval. xxxxx xxxxx xxxxx xxxxxx xxxxx “12.0 SUPERANNUATION AND RE-EMPLOYMENT The age of superannuation of teachers in diploma level technical institutions would be 62 years and thereafter no extension of service shall be given. However, an Institute may re-employ a superannuated teacher upto 62 years of age in accordance with the existing provision(s) in the States/Memorandum of Association and WP(C) No.6588/07 Page 5 Rules/Schemes, Regulations and Bye-laws of the Institute, as the case may be. The age of superannuation of Librarians, Physical Education Personnel and such other employees of technical institutions who are treated at par with the teachers and whose age of superannuation was 60 years, will not be 62 years. However, there is no provision of re-employment of such category of staff.” 4. Vide its orders dated 20.12.2005, the GNCT of Delhi (the petitioner) approved the proposal for enhancement of the age of superannuation from 60 to 62 years in respect of teaching staff of the Polytechnics. The benefit, however, was not extended to the Librarians and Physical Education Teachers (PETs). The respondent No.1 treated this action of the petitioners as discriminatory and made a representation. However, as it had no impact on the petitioners, the respondent No.1 filed OA No.2464/2006 before the Tribunal, inter alia, praying for fixation of the age of superannuation of the Librarians also at 62 years as notified in the AICTE notification dated 30.12.1999 and as admissible to all such similarly situated persons elsewhere. 5. The case of the petitioner before the Tribunal as well as before us in this petition is that the AICTE notification would indicate that it was only recommendatory in nature and it was not mandatory for the WP(C) No.6588/07 Page 6 Government to implement the same. It was also stated that though in the notification recommendation has been made for enhancement of the age of superannuation of the Librarians and the PTEs, who are at par with the teachers from 60 to 62 years, still the said notification nowhere states that the Librarians are to be treated at par with teachers. Even as per that notification, the nature of duties and the service conditions of teachers are entirely different with that of Librarians, and Librarians were never treated at par with the teachers. It is further explained that the GNCT of Delhi, on the recommendations of the AICTE vide cabinet decision No.841 dated 23.9.2003 has approved the grant of revised pay scales of teachers of degree level and diploma level institutions under DTTE. As regards to the grant of revised pay scales to Librarians of colleges and polytechnics as recommended by the AICTE, it is mentioned in note that the present scale of Librarian in DCE is of Rs.8000-13500/- but in the college of Pharmacy and the Polytechnics the posts of Librarian carries the scale of Rs.5000-8000/-. So, when the post exists in the lower pay scale, the incumbents cannot straightaway be placed in the higher scale of Rs.8000-13500/-. This issue was required to be examined in consultation with the Finance Department separately before implementing the recommendations of AICTE. The matter was WP(C) No.6588/07 Page 7 examined in the DTTE and it was recommended that all the existing sanctioned posts of Librarians, i.e. 23 posts under group ‘C’ be upgraded in the pay scale of Rs.8000-13500/-. While making such recommendation, the department suggested that such officials, who fulfilled the prescribed educational qualification, may be promoted in consultation of the UPSC whereas in the case of others, they shall be given a period of five years to obtain the prescribed qualifications. The Finance Department turned down the above proposal on the ground that when there exists four scales in between Rs.5000-8000/- and Rs.8000-13500/-, i.e. Rs.5500-9000/-, Rs.6500-10500/-, Rs.7450- 11500/- and Rs.7500-12000/-, there was no justification for upgrading group ‘C’ to group ‘A’ by level jumping. 6. It is further explained that GNCT of Delhi vide its cabinet decision No.1024 dated 16.12.2005 has accepted the AICTE recommendation and enhancement of age of superannuation from 60 to 62 years for teachers of the degree level technical institutions and the polytechnics under the department of T&T, GNCT of Delhi. The said committee considered the notification dated 30.12.1999 in para 5.2 of the said report. In para 7.0 the said report, it is stated that the recommendations regarding the age of superannuation from 60 to 62 years are applicable to teachers and not for technical supporting staff. WP(C) No.6588/07 Page 8 Para 7.0 of the report, states as under:- “7.0. The Government of NCT of Delhi has already accepted the AICTE recommendations in respect of Degree level technical institutions and Polytechnics except the age of superannuation and so the present proposal is for enhancing the age of superannuation from 60 to 62 years for the above categories of institutions and further re- employment upto the age of 65 years as recommended by AICTE on the recommendations of the screening committee set up for the purpose. These recommendations are applicable to teachers and not for technical supporting staff.” 7. It is also explained that the age of superannuation has been enhanced only in the case of teachers on the ground of experience and non- availability of well trained technical education teachers. Since the Librarians were never treated at par with the teachers as such the enhancement of age could not be applied in respect of Librarians. The petitioner issued the office order dated 27.12.2005 and conveyed the cabinet decision dated 16.12.2005. 8. The case set up by the respondent No.1, on the other hand, was that various documents produced by him would prove that the AICTE recommendations are mandatory and other States had applied them uniformly not only for their teachers but Librarians as well. It was further argued that the cabinet of the Government of NCT of Delhi had approved paras 9(1), 9(6) and 9(8) of the AICTE WP(C) No.6588/07 Page 9 recommendations, which would clearly prove that the committee had accepted the pay scales, as recommended by the AICTE/MHRD dated 9.1.1998 and 14.1.1998, be implemented for ‘eligible category of employees of NSIT, DCE, College of Art and College of Pharmacy.’ The fact was that the DTTE, thus, would grant the higher pay scales to its librarians in its Technical Degree Colleges as compared to Polytechnics even though the post is transferable from Polytechnic to College and vice versa. The respondent No.1 was posted in College of Pharmacy earlier and then transferred to Polytechnic. The GNCT of Delhi, DTTE cannot have two different service conditions of pay scale and age of superannuation for its employees under the same department and having the same RRS and same duties. 9. The learned Tribunal in its impugned judgment accepted the plea of the respondent No.1 that recommendations of the AICTE were mandatory in nature. To arrive at this conclusion, the Tribunal pointed out that AICTE is a statutory body under the Act which comes under the administrative control of the MHRD, Government of India. The Tribunal referred to the judgment of the Supreme Court in the case of Jaya Gokul Educational Trust v. Commissioner & Secy. to Govt. Higher Education Deptt., Thiruvanthapuram and another, AIR 2000 SC 1614, wherein the Supreme Court emphasized that AICTE is entrusted WP(C) No.6588/07 Page 10 with the responsibility of maintenance of standards of technical education in the country. The Government, besides laying down norms and standards for infrastructure of such institutions, recommended from time to time, with regard to the pay scales, conditions of service and qualifications of teachers and other categories of staff of such technical institutions. 10. In the aforesaid case the question of approval for setting up of a polytechnic in the State of Kerala came up for consideration as even after the approval of the AICTE, the State Government had refused to give its concurrence. The Supreme Court denounced this action of the State Government with the following remarks:- “The State could not have any “policy” outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regn. 8(4) and the Central Task Force had also given its favourable recommendations, there was no scope for any other objection or approval by the State Government. xxxxxx The Central Act of 1987, i.e., the AICTE Act, and in particular, S.10(K) occupied the field relating to the ‘grant of approvals’ for establishing technical institutions and the provisions of the Central Act alone were to be complied with.” WP(C) No.6588/07 Page 11 11. From the preamble to the notification dated 30.12.1999 of the AICTE, the Tribunal deduced that the AICTE was mandated by the MHRD to notify other terms and conditions of service of teachers of degree level technical institutions for whom revision of pay had been implemented following revision of pay scales of the Central Government employees on the recommendations of the 5th Pay Commission. Para 2 of the preamble categorically mentioned that AICTE was proceeding to revise the pay scales and associated service conditions not only of teachers but librarians and physical education personnel in diploma level technical institutions as well, with the concurrence of the MHRD. Therefore, the exercise undertaken by the AICTE covers the librarians as well. In these circumstances, the expression in the notification “who are treated at par with the teachers” included librarians and physical education personnel treating them at par with teachers. For these and other reasons the Tribunal held that the benefit of enhancement of age of superannuation from 60 to 62 years had to be given to librarians as well in conformity with the AICTE notification dated 30.12.1999. Before us, arguments of the petitioners as well as the respondent can be summarized in the following manner:- WP(C) No.6588/07 Page 12 (a) Notification dated 30.12.1999 of the AICTE is recommendatory and not mandatory in nature. Therefore, it was for the GNCT of Delhi to consider those recommendations. After considering the matter at cabinet level if the Government ultimately took the decision to increase the age of superannuation from 60 to 62 years only in case of teachers and not for technical supporting staff, no right accrued in favour of the respondent on the basis of notification of the AICTE. It was submitted that the learned Tribunal failed to appreciate that the recommendations given by the AICTE are optional and do not have fall within the categories of statutory powers and functions as described in Section 10 of the AICTE Act, which intention is clearly apparent from a bare reading of the notification itself. The recommendations itself gives option to the Government to take decision with regard to the implementation of the recommendations after taking the local conditions into consideration. The learned Tribunal has wrongly relied upon the decision of Jaya Gokul Educational Trust (supra), which judgment has no application to the facts of the present case and pertains to WP(C) No.6588/07 Page 13 the case of setting up of technical education institution and not with the parity of pay scale or the age of superannuation. (b) The decision of the Tribunal in treating librarians in the same category as teachers on the interpretation of the words “who are treated at par with teachers” was clearly erroneous as the Tribunal failed to appreciate that as per clause 12 of the notification, in the absence of reference to staff other than teachers, such staff could not be treated at par with teachers. (c) It was further argued that the Tribunal failed to appreciate that the recommendations of the AICTE were duly considered by the cabinet in its decision No.1024 dated 16.12.2005 whereby it was categorically decided that proposal regarding enhancement of age was applicable only to teachers and not technical supporting staff. Learned counsel also placed strong reliance upon the judgment of the Apex Court in Govt. of A.P. & Anr. v. J.B. Educational Society & Ors., (2005) 3 SCC 212. He also sought to demonstrate that librarians could not be treated at par with teachers as the qualifications and the nature of work etc. of WP(C) No.6588/07 Page 14 the two are totally different. For this purpose he referred to clause 6.2.7 of the AICTE Staff Norms dealing with Teaching staff cadre which stipulates as under:- “6.2.7 Teaching staff cadre The cadre structure should be as follows: i. Lecturer ii. Senior Lecturer iii. Head of Department/Lecturer (selection grade)/Workshop iv. Principal” 12. Learned counsel also produced copy of cabinet decision No.841 dated 23.9.2003 whereby conscious decision was taken to enhance the age of teachers only and not other supporting staff like librarians and physical education teachers. 13. Learned counsel for the respondent, on the other hand, emphasized the reasoning given by the Tribunal in support of the impugned order. It was further argued that except GNCT of Delhi, all other State Governments had implemented the directions of the AICTE with regard to the prescribed qualifications for recruitment of librarians, pay scales and retirement age etc. It was also pointed out that even the University of Delhi had fixed the age of superannuation of librarians at 62 years with effect from 27.7.1998. The UGC had also taken the same decision on 19.10.2006, which was reiterated in WP(C) No.6588/07 Page 15 March 2007. The decision of the petitioners not extending such benefit, therefore, would create conflicting situation between the State and the Central law and could not be allowed as subject of education was in the Concurrent List to the Constitution of India whereby the Central law had to prevail. It was also argued that the GNCT of Delhi was not even a State and therefore, decision of the MHRD, Central Government, had to prevail. 14. We have given our due consideration to the respective submission of the learned counsel appearing for the parties and gone through the judgment of the Tribunal minutely along with other records placed before us. 15. We may first discuss the impact of the AICTE notification dated 30.12.1999 and also note what it lays down. It will not be out of place to make these remarks at the outset that if the provision contained in the notification dated 30.12.1999 of the AICTE is only recommendatory in nature, it was not necessary for the petitioner to accept the same. It is well-established principle of law that such recommendations are not binding and ultimately decision is of the Government to accept those recommendations or not. Therefore, there would not be any difficulty in accepting the submission of the learned counsel for the petitioners to the effect that cabinet of Delhi WP(C) No.6588/07 Page 16 Government could have arrived at its own decision, provided the notification in question of the AICTE was only recommendatory and not mandatory. 16. On the other hand, if the AICTE notification dated 30.12.1999 is mandatory and binds the Government of NCT of Delhi, in that case the petitioner had no choice but to follow the said mandate and implement the same. Therefore, the validity of the judgment of the Tribunal and outcome of this petition rests on the sole issue, namely, upon the nature of the notification dated 30.12.1999 of the AICTE and that is whether it has the binding effect or every State Government or other authorities running such technical institutions were given freedom to accept or not to accept the provisions of the said notification and had their own final say in the matter. 17. We have already reproduced the relevant portion of the AICTE notification dated 30.12.1999. The heading of the notification exemplifies that it is ‘on revision of pay scales and associated terms and conditions of service of teachers, librarians and physical education personnel for diploma level technical institutions.’ The exercise of AICTE was concerned with (a) revision of pay scales and associated terms and conditions of service; (b) of teachers, librarians and physical education personnel and (c) in respect of diploma level WP(C) No.6588/07 Page 17 technical institutions. The exercise, thus, clearly included librarians of such institutions in respect of revision in their pay scale as well as other service conditions. 18. This exercise was necessitated because of revision of pay scales of Central Government employees on the recommendations of 5th Pay Commission. After the said revision, MHRD had issued orders dated 9.10.1998 and 4.1.1999 for implementing a scheme of revision of pay scales of teachers of degree level technical education. Preamble clarifies this in no uncertain terms and further stipulates that the Government orders require that AICTE, in addition to revision of pay scales, also notify other terms and conditions of service. Preamble also stipulates that pursuant thereto, AICTE had revised the pay scales and associated service conditions of “teachers, librarians and physical education personnel” in diploma level technical institutions, with the concurrence of the MHRD. In para 2.1 under the heading ‘Scope’, it is mentioned that provisions of the said notification apply to teachers, librarians and physical education personnel in diploma level technical institutions covered under the AICTE Act. Thus, such teachers, librarians and PETs working in such technical institutions are those which are covered under the AICTE Act. Para 12 deals with age of superannuation. First part thereof mentions that age of WP(C) No.6588/07 Page 18 superannuation in these institutions would be 62 years. Sub-para (2) specifically and in no uncertain terms extend this benefit to librarians and PETs with following provision: “The age of superannuation of librarians, physical education personnel and such other employees of technical institutions who are treated at par with the teachers and see age of superannuation was 60 years will now be 62 years.” 19. The argument of the learned counsel for the petitioner that the Tribunal was wrong in considering the librarians at par with the teachers is clearly hollow inasmuch as the Tribunal simply mentioned what is stated by the AICTE itself in the aforesaid notification. It is clear from the reading of clause 12 that as far as AICTE is concerned, it had increased the age of superannuation of librarians and physical education personnel as well. As per the aforesaid clause in the notification, age of superannuation of librarians, physical education personnel and “such other employees of technical institutions who are at par with the teachers and whose age of superannuation was 60 years” is increased to 62 years. It is clear from the above that apart from increasing the age of superannuation of teachers from 60 to 62 years in the first sub-para of clause 12, similar enhancement is given to the following categories of employees under second sub-para, WP(C) No.6588/07 Page 19 namely, (i) librarian, (ii) physical education personnel and (iii) such other employees of technical institutions who are treated at par with the teachers. It is obvious that in so far as the librarians and physical education personnel are concerned, they are given the benefit of enhancement of age of superannuation from 60 to 62 years. It is also extended to those employees who can be treated at par with teachers. Therefore, in the present case, the question of equivalence does not even arise as we are dealing with the case of a librarian. Librarians are enlisted as a particular category which is extended the benefit