CWP No. 16798 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 16798 of 2009 (O&M) Date of decision: 23.12.2009 Raj Pal Singh Lohchab ....Petitioner Versus National Institute of Technology, Kurukshetra and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.K. Malik, Sr. Advocate, with Mr. Jitender Bedwal, Advocate, for the petitioner. Mr. B.S. Sewak, Advocate, for respondent No.1. Mr. Brijeshwar Singh, Advocate, for respondent No.2. Mr. V.B. Aggarwal, Advocate, for the applicants in CMs No. 20271 & 20272 of 2009. ***** VINOD K. SHARMA, J (ORAL) CM No. 20271 of 2009 Allowed. The applicants are exempted from filing the certified copies of Annexures R-3/1 and R-3/2. CM No. 20272 of 2009 This application under Order 1 Rule 10(2) of the Code of Civil Procedure has been moved for impleading the applicants as respondents No.3 and 4 to this writ petition. The applicants, have no locus standi to be impleaded as party to the present writ petition. The question raised in writ petition is as to, whether the petitioner is to retire from service at the age of 60 years or CWP No. 16798 of 2009 (O&M) -2- 62 years. The applicants being residents of Kurukshetra can hardly be said to have any interest or locus standi to contest the relief claimed. There being no merit in this application, it is ordered to be dismissed. CM No. 20238 of 2009 CM allowed. Written statement filed on behalf of respondents No.1 and 2 is taken on record. CM No. 20239 of 2009 Allowed. The applicant is exempted form filing the certified copies of Annexures R-1 and R-4. CM No. 20549 of 2009 CM allowed. Replication filed on behalf of the petitioner is taken on record. CWP No. 16798 of 2009 The petitioner joined as Deputy Registrar, on 14.5.1982 with the Regional Engineering College, Kurukshetra, which after take over by the Act of Parliament is re-named as National Institute of Technology, Kurukshetra. The notification to take over of the institution was issued on 14.5.2003. Section 5(d) of the National Institutes of Technology Act, 2007 (hereinafter referred to as 'the Act'), protected the services of the employees, who were working in the Regional Engineering College, Kurukshetra, at the time of take over, which reads as under: - “5. On and from the commencement of this Act, - (a) x x x x CWP No. 16798 of 2009 (O&M) -3- (b) x x x x (c) x x x x (d) every person employed by 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 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: Provided that if the alteration so made is not acceptable to such employee, his employment may be terminated by the Institute in accordance with the terms of contract with the employee or, if no provision is made therein in this behalf, on payment to him by the Institute, of compensation equivalent to three months' remuneration in the case of permanent employee and one month's remuneration in the case of other employee.” After take over, the service conditions of the employees are governed by the first statute of the National Institute of Technology. As per Section 24(ii), age of superannuation of the employees was to be specified by Central Government. The Central Government issued notification on 16.9.2009 fixing the age of superannuation of Registrar as 62 years. The petitioner is working as Registrar, since the year 1993, in the revised pay scale of Rs.10,000-16,300, which was further revised to CWP No. 16798 of 2009 (O&M) -4- Rs.12,000-16,500. The notification issued by the Central Government fixing the age of superannuation reads as under: - “(5) The age of superannuation of Librarians, the cadre of Physical Education Personnel of Centrally Funded Technical Institutions (CFTIs); and Registrar and Finance Officer of IITs, IISC, Bangalore and Deemed to be Universities, will be on par with UGC, and hence be fixed at 62 years, subject to their possessing the qualifications and experience as prescribed by UGC from time to time. The enhanced age of superannuation of 62 years will take effect from the date of issue of this order.” The petitioner being Registrar working in the Deemed University, therefore, claims that he is entitled to continue in service till the age of 62 years. The writ petition is opposed on the ground, that as per notification referred to above the teaching staff, in order to avail benefit of serving upto the age of 62 years, is required to possess the qualification and experience as prescribed by the UGC from time to time, and the employees not possessing requisite qualification are to retire on attaining age of 60 years. The contention of the learned counsel for respondent No.1 is, that as the petitioner did not have the qualification, and experience of working as Deputy Registrar in relevant pay scale, therefore, is not entitled to continue upto the age of 62 years. The learned counsel for respondent No.1 also contends, that after due consideration the case of the petitioner for grant of regular pay CWP No. 16798 of 2009 (O&M) -5- scale stood rejected by the competent authority. The order rejecting the claim of higher scale by the petitioner reads as under: - “Item No. 15.24 – Regarding grant of higher pay scale to existing Registrar, it was further mentioned by Director (Fin.) that even though Recruitment Rules provided for eligibility of a person to the post of Registrar based on his experience in the post of Deputy Registrar, the incumbent Registrar does not possess requisite experience in the DR post in scale of Rs.12000-18500 and hence he is not eligible. It was informed that the Director, NIT, Kurukshetra should support his proposal with valid justification. This was not done by the Director.” Mr. R.K. Malik, learned senior counsel, appearing on behalf of the petitioner, contends that the petitioner possesses the qualification prescribed for appointment to the post of Registrar. He referred to the Rules governing the service conditions of the Registrar. The qualifications prescribed for the post of Registrar under the rules read as under: - “Essential 1. Master's degree with at least 55% marks or its equivalent. 2. Atleast 15 years of experience as Lecturer/Asstt. Professor of which eight years should be as Assistant Professor grade, with experience in Educational Administration. OR 15 years administrative experience out of which eight years as Deputy Registrar or an equivalent post. The minimum requirement of 55% marks CWP No. 16798 of 2009 (O&M) -6- shall not be insisted upon in the case of existing incumbents who are already in the NIT system. OR Comparable experience in research establishments, institutions of technical education, or in Government. Desirable: 1. A postgraduate degree in Engineering with at least 60% marks or its equivalent grade. 2. A Degree in law/Management 3. Considerable experience in educational administration, financial and accounts management and capacity to lead the administration in a residential institution and knowledge of computer and web based administration. 4. Proven experience in excellent human relations and successful personal management, industrial relations, campus management and other aspects of administration, preferably in a large educational or R&D institution. All round ability to co-ordinate and lead a team of officers with varied experience.” The stand of the learned counsel for respondent No.1, however, is that these are merely proposed Rules and not the actual Rules, meaning thereby that there are no rules fixing the qualification for the post of Registrar, therefore, it cannot be said that petitioner does not fulfil the qualification. The contention of the learned counsel for respondent No.1, therefore, is that as the petitioner is not getting the grade fixed by UGC for the post of Registrar, he has to be considered ineligible to continue in CWP No. 16798 of 2009 (O&M) -7- service upto the age of 62 years. Though as per the proposed Rules, the petitioner fulfils the qualifications, as the petitioner has experience of 11 years as Deputy Registrar and thereafter 16 years as Registrar. Needless to notice, that the service conditions of the petitioner are duly protected under Section 5(d) of the Act. Merely because a particular grade is not given to an incumbent holding the post of Registrar, it cannot be treated to be a lack of qualification. It may be noticed that the authorities have merely sent back the proposal to Director, NIT, Kurukshetra University, for sending it back with valid justification. Once, the petitioner was appointed as Registrar and is continuing on the post, his claim to continue upto the age of 62 years, in pursuance to the Government notification issued under statutory rules, cannot be rejected. The respondents are unable to disclose the basis, to hold that the petitioner does not have the qualification to continue in service upto the age of 62 years. The disqualification pointed out by respondent No.1, cannot be said to be lack of qualification to hold the post. The grade given to employee cannot be a qualification but a perk attached to the post. The learned counsel for respondent No.1 relied upon the judgments of the Hon'ble Supreme Court in K. Jagadeesan Vs. Union of India and others, (1990) 2 Supreme Court Cases 228 and O.P. Lather and others Vs. Satish Kumar Kakkar and others, (2001) 3 Supreme Court Cases 110, in support of his contention that the petitioner cannot CWP No. 16798 of 2009 (O&M) -8- be allowed to continue upto age of 62 years. The Hon'ble Supreme Court in K. Jagadeesan Vs. Union of India and others (supra) has laid down, that specification of qualifications is the function of the Government, and the rules framed under Article 309 of the Constitution of India are not subject to judicial scrutiny. Similarly, in O.P. Lather and others Vs. Satish Kumar Kakkar and others (supra), the Hon'ble Supreme Court has laid down, that laying down of qualification is not subject to judicial scrutiny. Reliance on these judgments by learned counsel is mis-placed, as this Court is not laying down any qualification for the post, but is interpreting the rules and notification vide which the petitioner has claimed to continue in service upto the age of 62 years, i.e. age of superannuation of Registrar. The post held by the petitioner in the University. In view of reasons stated above, this writ petition is allowed, the order rejecting the claim of the petitioner to continue in service upto the age of 62 years, is quashed and writ in nature of mandamus is issued commanding the respondents to allow the petitioner to continue in service upto the age of 62 years in terms of the Government notification, fixing the date of superannuation of Registrar as 62 years (Annexure P-7). No costs. (Vinod K. Sharma) Judge December 23, 2009 R.S.