IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12.06.2009 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.A. NO.1132 OF 2008 M.Murugan .. Appellant - Vs – 1. Government of India Ministry of Human Resources Development rep. by Secretary to Government New Delhi. 2. The Indian Institute of Technology Madras, Chennai 600 036 rep. by its Registrar. .. Respondents Writ Appeal filed against the order dated 17th July, 2008, passed by 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 writ of Mandamus direct the respondents to permit the petitioner to continue in service till the petitioner completes the age of 62 years. 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-2 JUDGMENT S.J.MUKHOPADHAYA, J. The Appellant (hereinafter referred to as the ‘petitioner’) filed the writ petition for direction on the respondents to permit him to continue in the services of the Indian Institute of Technology, Madras (hereinafter referred to as ‘IIT, Madras’) till he completes the age of 62 years. He was informed that he will retire w.e.f. 30th June, 2007, on attaining the age of superannuation, namely, 60 years. Having moved https://hcservices.ecourts.gov.in/hcservices/ against the said order, learned single Judge, by impugned judgment, observed that unless the statute of IIT, Madras is amended by the Board of Governors, enhancing the retirement age of Asst. Librarian to 62 years, the petitioner cannot have a case to say that his retirement age is 62 years. 2. According to the petitioner, the Government of India upgraded the scale of pay of Librarians, Asst. Librarians and others and fixed minimum qualifications as per UGC recommendation, which was accepted by IITs. The Ministry of Human Resources Development, Department of Higher Education, Govt. of India, vide letter No.23-8/98-TSI dated 30th March, 1999, informed the IIT, Bombay, Ahmedabad and Indian Institute of Science, Bangalore that age of superannuation of teachers of Universities and Colleges is increased from 60 to 62 years w.e.f. 31st July, 1998. Subsequently, Indian Institute of Technologies, Indian Institute of Managements and Indian Institute of Science were also requested by Ministry’s letter dated 31st Aug., 1998 to increase the age of superannuation of academic staffs of Registry, Library and Physical Education from 60 to 62 years w.e.f. 31st Aug., 1998. Thereafter, attention of the Ministry was drawn for clarification of the aforesaid letter and, accordingly, it was clarified that the increase in the age of superannuation from 60 to 62 years could be applicable only to six categories of employees of IITs, IIMs and IISC, who are being treated at par with teachers. 3. Subsequently, another letter in F. No.1-9/99-.N dated 22nd Sept., 2006 was issued from the Ministry of Human Resource Development, Govt. of India. In the said letter, while matter relating to creation of posts of professors of UGC recognized and autonomous colleges were informed, the revision of career advancement scheme for Asst. Librarian, College Librarian, etc., were referred. It was informed that the Government has decided that age of superannuation of Asst. Librarian/College Librarian and some others would henceforth be 62 years. The said letter was addressed by the Government of India to the Secretary, UGC, New Delhi. 4. 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 Resource Development, Govt. of India, dated 22nd Sept., 2006, informed the Registrar, IIT, Madras, of the aforesaid decision and intimated that the UGC has decided that the age of superannuation for Asst. Librarian/College Librarian and some others would henceforth be 62 years. It appears that the Board of Governors of IIT, Madras, did not deliberate on the issue regarding enhancement of age of superannuation of Librarian/Asst. Librarian, though the Board of Governors of some other IITs, namely, Kharagpur and Bombay, increased such age of superannuation from 60 to 62 years. https://hcservices.ecourts.gov.in/hcservices/ 5. As the petitioner, otherwise, would have retired from service w.e.f. 30th June, 2007, on completion of 60 years, he wrote a letter to the Registrar, IIT, Madras on 5th Feb., 2007, bringing the aforesaid fact to the notice of the authorities and requested to allow him to continue for two more years in service, i.e., upto the age of 62 years. It followed by reminder dated 20th Feb., 2007. The UGC, New Delhi, by letter No.F.3-1/94 (PS) – 7 dated March, 2007, informed the Registrars of different Central/State/Deemed Universities that the age of superannuation of Deputy Librarian/Deputy Director of education is 62 years. It further appears that the petitioner having received no positive reply from IIT, Madras, also brought the matter to the notice of the Ministry of Human Resource Development, Government of India, New Delhi, who vide their letter F.No.5-9/2006-TS.I dated 7th June, 2007, requested the IIT, Madras, to take appropriate action in the matter and send a reply 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 informed that as IIT, Madras, does not come under the mandate of UGC, the Library and Physical Education staff have not been brought under the academic staff and given nor given benefit of enhancement. The Board of Governors, who met and discussed on 24th May, 2007, noted that some other IITs have extended the benefit to library staff and, therefore, asked for clarification as to whether the age of superannuation from 60 to 62 years is applicable to Asst. Librarian/Deputy Librarian and physical education staff of IITs. It was informed that since the Asst. Librarian of the Institute (petitioner herein) will superannuate on 30th June, 2007, an early reply is needed. The petitioner also was informed by IIT, Madras, vide letter No.F.Admn.1/A2/2007/965 dated 29th June, 2007, that his matter has been referred to the Ministry of Human Resource Development, Dept. of Higher Education, Govt. of India for clarification and that necessary action will be taken as and when the direction of the Government are received in the matter. 6. The 2nd respondent has taken plea that the IIT does not come under the purview of UGC and, therefore, any circular issued by UGC with regard to enhancement of age of retirement would not be applicable to employees of the institute. It has further taken plea that the post of Asst. Librarian held by the appellant is a non- teaching post and, therefore, it cannot be treated on par with teachers. 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 and rescind any of the conditions of service of its employees. 7. We have heard the learned counsel for the parties and noticed their rival contentions. https://hcservices.ecourts.gov.in/hcservices/ 8. The IITs, including IIT, Madras, are institutions of national importance and are governed by the ‘Institute of Technology Act, 1961’ (hereinafter referred to as the ‘Act’). U/s 4 of the Act, each of the institute shall be a body corporate having perpetual succession and common seal consisting of a Chairman, a Director and other members of the Board of Governors (hereinafter referred to as the ‘Board’). Section 6 deals with the power of the institute under which every institute can exercise powers and perform duties to the extent of providing instruction and research, to hold examination and grant degrees, etc. Section 10 deals with authorities of an institute, namely, Board of Governors, Senate and such authorities as may be declared by the statute to be the authorities of the institute. Section 13 deals with the functions of the Board; u/s 13 (2) (c), the Board has power to make statutes. The power of appointment of persons, academic as well as other posts in the institute is vested with the Board u/s 13 (2) (d). Section 26 deals with statutes and matters, which may provide for the terms of office and method of appointment of officers of the institute. U/s 26 (g), the statute may provide classification, method of appointment and determination of the terms and conditions of service of teachers and other staffs of institute. (Emphasis supplied). U/s 27 (1), while first statute of each institute to be framed by the council with the previous approval of the Visitor, the Board is empowered to make new or additional statute or may amend or repeal the statute from time to time in the manner prescribed under the Act, as empowered u/s 27 (2). 9. From the aforesaid provisions of law, it will be evident that the terms and conditions of service of teachers or any other staff can 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 service by amending the statute u/s 27 (2) of the Act. Therefore, the power to enhance the age of superannuation, one of the conditions of service, is vested with the Board of Governors and not with any other authority. The Government of India may frame a policy with regard to Institutions of Excellence and UGC may coordinate and determine the standards of institutions for higher education, but so far as conditions of service, like age of superannuation of the teachers and other staff of IIT is concerned, they are governed by the statute which can be amended only by the Board of Governors. 10. 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 claim to 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 of the 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 far as IIT, Madras is concerned, it was for the Board of Governors to decide whether in view of the recommendation of the Govt. of India, Ministry of Human Resource Development and suggestion of UGC, they should also enhance the age of superannuation of Asst. Librarian from 60 to 62 years. In the present case the Board of Governors of IIT, Madras, instead of taking such a decision, have referred the matter to the Govt. of India for clarification and, thereby, it abdicated its powers. 11. In the circumstances, while no specific relief is granted in favour of the petitioner, taking into consideration that the matter relates to determination of enhancement of age of superannuation, we remit the matter to the 2nd respondent, IIT, Madras, to reconsider the question of enhancement of age of superannuation of the existing Asst. Librarian, etc., in the light of the recommendation made by Govt. of India and suggested by UGC. It is expected that the Board of Governors will deliberate on the issue and take a decision on an early date. The order passed by learned single Judge stands modified to the extent above. The writ appeal stands disposed of. But there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. GLN To 1. The Secretary to Government Ministry of Human Resources Development Government of India New Delhi. 2. The Registrar Indian Institute of Technology Madras, Chennai 600 036. + 1 CC To M/s.C.Vasanthakumari Chelliah, Advocate SR NO.22844 JUDGMENT IN W.A. NO.1132 OF 2008 KG {CO} TP/15.6.2009. https://hcservices.ecourts.gov.in/hcservices/