CWP No.14171 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.14171 of 2009 Date of Decision: 21.12.2009 Ramesh Kumar Sharma ...Petitioner Vs. National Institute of Technology, Kurukshetra and others ...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.Chetan Mittal, Sr.Advocate, with Mr.Varun Gupta, Advocate, for respondent No.1. Mr.Brijeshwar Singh, Advocate, for respondent No.2. Mr.N.R.Dahiya, Advocate, for respondent No.3. Mr.B.S.Sewak, Advocate. --- Vinod K.Sharma, J. (Oral) The petitioner was appointed as Physical Training Officer on CWP No.14171 of 2009 2 ad-hoc basis on 4.8.1975 and thereafter on regular basis on 6.8.1976. The administrative and financial control of National Institute of Technology, Kurukshetra was taken over by the Central Government, under the Act of Parliament i.e. NIT Act, 2007. As per Section 5(d) of NIT Act, 2007 service conditions of the employees were protected. Section 5(d) of the NIT Act, 2007 reads as under:- “5(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.” The case of the petitioner is that after take over the service condition of the employees were governed by the statute, called the first statute of National Institute of Technology. Rule 24 of the statute reads as under:- “24. General Terms & Conditions of Service of Permanent Employees. Permanent employees of the institute shall be governed by the following terms and conditions:- (i) xx xx CWP No.14171 of 2009 3 (ii) The age of superannuation shall be specified for various classes and categories of the employees of the institute by the Central Government.” In exercise of powers under Rule 24 Central Government has prescribed the age of superannuation of the employees as under: “5. Age of Superannution: It has been decided that the age of superannuation for Assistant Librarian/College Librarians and Assistant Directors of Physical Education/College Directors of Physical Education would henceforth be 62 years.” Learned senior counsel for the petitioner contends, that in view of the notification of the Central Government the petitioner is entitled to continue in service till the age of 62 years. The respondents by ignoring the notification of the Central Government, the Director of the National Institute of Technology Kurukshetra has passed impugned order retiring the petitioner, from service on attaining the age of 60 years. The order impugned reads as under:- “ Sh.R.K. Director of Sports will be retiring from the services of the Institute on 31.10.2009 (A.N.) on attaining the age of superannuation i.e. 60 years to enable this office to settle his final accounts, you are requested to intimate whether there are any dues against his name, so far as your Department/Section is concerned within 15 days in case there CWP No.14171 of 2009 4 is nothing due against him, even a 'Nil' report may please be sent.” The writ petition is opposed by the Institute by relying upon Circular Annexure R.1/1, which prescribed the date of superannuation age of Physical Education personnel as 62 years, subject to their possessing qualification and experience, prescribed by University Grants Commission from time to time. The part of Circular on which reliance has been paced by respondent No.1 reads as under:- “ The age of superannuation of librarian, the cadre of physical education personnel of centrally funded technical institution (CFTIs); and Registrar and Finance Officer of IITs, IISERs, NITs, 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 qualification and experience as prescribed by UGC from time to time.” The contention of the learned senior counsel for the respondent is, that the petitioner does not possess the qualification of University Director of Physical Education, therefore, he is to retire on attaining the age of 60 years. The impugned order, thus, has been validly passed. Learned counsel appearing on behalf of respondent No.3, contends that the order Annexure P.1 is in consonance with Section 5 (d) of the Statute reproduced above, as while taking over the services of the petitioner it was stipulated that his service condition would be protected and therefore, the petitioner cannot claim to continue up to the age of 62 years CWP No.14171 of 2009 5 as at the time of taking over the age of retirement was 60 years. Learned counsel for the respondent No.2 also contends that there is no teaching staff of physical education and therefore, the petitioner cannot claim to continue in service up to the age of 62 years as the instructions relied upon are only applicable to teaching staff. In reply the petitioner has filed a short affidavit wherein it has been pleaded as under:- “3. That UGC has prescribed qualifications for various posts; the post on which the petitioner is working fulfilled the essential qualification prescribed for the post of College Director of Physical Education. The respondent No.1 in the written statement has tried to mislead this Hon'ble Court by alleging that the petitioner is not fulfilling the qualification prescribed for the post of University Director of Physical Education. It is necessary to mention here that the University Director of Physical Education is a post of Professor level and scale is also of the Professor level. The post occupied by the petitioner is of Lecturer level and pay scale is also Lecturer level. It is necessary to mention here that next higher post from the post of College Director of Physical Education is Deputy Director of Physical Education and hereafter next higher post is University Director of Physical Education. The qualifications prescribed by the UGC for the Post of University Director of physical Education, Deputy Director of Physical Education and CWP No.14171 of 2009 6 College Director of Physical Education is attached as Annexure P.15.” Annexure P.15 reads as under:- “ 4.6.0. MINIMUM QUALIFICATIONS FOR THE POSTS OF DIRECTOR OF PHYSICAL EDUCATION, DEPUTY DIRECTOR OF PHYSICAL EDUCATION AND ASSISTANT DIRECTOR OF PHYSICAL EDUCATION/COLLEGE DIRECTOR OF PHYSICAL EDUCATION. 4.6.1. UNIVERSITY DIRECTOR OF PHYSICAL EDUCATION (i) Ph.D in Physical Education or allied discipline. (ii) A minimum of 15 years of Physical education/Sports experience of which at lest 5 years as University Deputy Director of Physical Education or ten years as University Assistant DPE/College DPE. (iii) Evidence of organizing competitions and conducting a minimum of ten coaching camps. (iv) Evidence of having produced good performance teams/athletes at inter university/combined university and at higher level etc and of having guided Ph.D.M.Phil candidates for research. (v) Evidence of Published work with a minimum of 10 books and/or publications in indexed/ISBN/ISSN CWP No.14171 of 2009 7 numbered journals and/or ISBN/ISSN numbered list of journals hosted on the website of the concerned University. (vi) A minimum score in the Academic Performance Indicator (API) based a Performance Based Appraisal System (PBAS) developed by UGC in these Regulations. 4.6.2. UNIVERSITY DEPUTY DIRECTOR OF PHYSICAL EDUCATION (I) Ph.D in Physical Education/Sports Science. In addition, shall also possess at least 55% of the marks or an equivalent grade of the Master's Degree level wherever grading system is followed. (ii) A minimum of 10 years' teaching/Physical education/sports experience of which at least 5 years as University Assistant DPE/College DPE. (iii) Evidence of having organized competitions and conducted a minimum of FIVE coaching camps of at least two weeks' duration. (iv) Evidence of having produced good performance teams/athletes for competitions like state/ national/ inter0university / combined university, etc. (v) Passed the physical fitness test. (vi) Evidence of published work with a minimum of 5 CWP No.14171 of 2009 8 books and/ or publications in indexed ISBN/ISSN numbered journals and / or ISBN/ISSN numbered books and the University developed ISBN/ISSN numbered list of journals hosted on the website of the concerned University. (vii) A minimum score as stipulated in the academic Performance Indicator(API) based Performance Based Appraised System (PBAS) developed by UGC in these Regulations. 4.6.3. University Assistant Director of Physical Education / College Director of Physical Education (i) Master's degree in Physical Education or Master's degree in Sports Science with at least 55% of the marks or its equivalence in a grade point scale with a consistently good academic record. (ii) Record of having represented the university / college at the inter-university/ intercollegiate competitions or the State and / or national championships. (iii) Passed the physical fitness test. (iv) Qualifying in the National Eligibility Test (NET) or other accredited test like SLET/SET in Physical Education conducted for the purpose by the UGC or any other agency approved by the UGC. (v) Holders of Ph.D degree as on the date of Notification CWP No.14171 of 2009 9 of these Regulations, along with those candidates who are awarded a Ph.D. Degree through a process of admission, registration,course work and external evaluation as laid down in the UGC (Minimum Standards and Procedure for award of M.Phil/Ph.D Degree), Regulations, 2009 and so adopted by the university shall be exempted from NET/SLET/SET.” The contention of the learned senior counsel for the petitioner is that the petitioner was appointed as Physical Training Officer and was re- designated as Director without the Pay Scale attached to the post of Director of University. In fact the petitioner holds the post of College Director of Physical Education. It is not disputed that the petitioner is being paid the salary equivalent to the College Director of Physical Education in Colleges, which is equivalent to the post of Assistant University Director of Physical Education under 4.6.3. Faced with this situation, learned counsel for respondent No.1 states that in view of the stand taken by the petitioner the respondent No.1 would like to re-designate the petitioner as Physical Training Officer. The petitioner has no objection to this. Learned counsel appearing for the University Grants Commission contends that the post of Physical Training Officer, does not fall in University Grants Commission, therefore, instructions will not apply to the post held by the petitioner. CWP No.14171 of 2009 10 On consideration of mater, I find force in the contentions raised by the learned counsel for the petitioner. It is not in dispute that under the NIT Act, 2007 service condition of the petitioner was duly protected. The contention of the learned counsel for the University Grants Commission that he would not be covered under the instructions, cannot be accepted, as the contention raised is contrary to Section 5 (d) of the Act, as also the qualifications prescribed by the UGC reproduced above, vide which the post of Director/Assistant Director and College Director is duly recognized. It cannot, therefore, be said that the petitioner does not fall in teaching category so as to exclude him, from the benefit of Circular issued by the Central Government. The contention of the learned counsel for the respondent that the petitioner is to retire on the age of 60, years also cannot be accepted, for the reasons that the petitioner was never treated as University Director of Education, as pay scale attached to that post was never released to him. Merely by re-designating a post held in a lower pay scale cannot be a ground to deny the benefits which accrue to the employees under the circular. It is the admitted case of the parties that the petitioner was in the pay scale of Director Physical Education Colleges, which could be treated to be equivalent to Assistant Director of Education of University and therefore, his age of retirement is 62 years and not 60 years, in view of the statutory rules and the circular letter issued by the Central Government fixing the date of retirement as 62 years. CWP No.14171 of 2009 11 Needless to say here that in view of the admission made by the petitioner in this court, the respondents would be at liberty to re-designate the petitioner's post, which may be equivalent to Physical Training Officer. The writ petition is allowed in the above terms. No costs. (Vinod K.Sharma) 21.12.2009 Judge rp