IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17.07.2008 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.26484 of 2007 and M.P.No.1 of 2008 M.Murugan .. Petitioner Versus 1. The Government of India Ministry of Human Resources Development, Rep. by the Secretary to Government New Delhi. 2. The Indian Institute of Technology, Madras, Chennai 600 036 rep. by its Registrar. .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of mandamus to direct the respondents to permit the petitioner to continue in service till the petitioner completes the age of 62 years. For petitioner : Mr.K.Venkataramani Senior Counsel for Mr.V.Selvaraj For R1 : Mr.S.Raja Sekar,(ACGSC) For R2 : Mr.Karthick Rajan O R D E R Though miscellaneous petition is listed, by consent, the writ petition itself is taken up for disposal. 2. The petitioner is a retired Assistant Librarian in the second respondent Institute of Technology, Madras. On attaining the age of superannuation, namely 60 years, he was allowed to retire on 30.06.2007. Claiming that the age of superannuation for the post of Assistant Librarian is 62 years, the petitioner has come forward with this writ petition seeking for a direction to the respondents to permit him to continue in service till he completes 62 years of age. 3. The learned Senior Counsel appearing for the petitioner would submit that the Government of India, Ministry of Human Resource Development, Department of Education, in letter in P.No.23-8/98-TS.I dated 30.03.1999, has clarified that in respect of the employees of the Indian Institute of Management, Ahmedabad, Bangalore, Calcutta, Lucknow, Indore and Calicut and the Indian Institute of Technology at Bombay, Kanpur, Kharagpur, Madras, Guwahati and Bangalore the age of superannuation from 60 to 62 years indicated in the Ministry's letter of even number dated 31.08.1998 would be applicable to the Assistant Librarians also. 4. But, the learned counsel appearing for the second respondent would submit that the said letter from the Ministry of Human Resource Development, Department of Education is applicable only to teaching staff and not to Assistant Librarians. The learned counsel would rely on the clarification issued by the Government in the above said letter which reads as follows: "5.0. Attention of this Ministry has, however, been drawn to the fact that the position situated in para 4 above requires clarification. Accordingly it is clarified that the increase in the age of superannuation from 60 to 62 years indicated in this Ministry's letter of even number dt. 31st August, 1998 as stated above would be applicable only to those categories of employees of IITs, IIms and IISc. who are being treated at par with with the teachers and whose age of superannuation was 60 years." Therefore, according to the learned counsel, the petitioner is not eligible for continuing in service up to the age of 62. 5. I have considered the rival submissions. 6. The Indian Institute of Technology Madras was established as per the Institutes of Technology Act, 1961. Section 6(1)(b)of the Act states that every Institute, namely Indian Institutes of Technology shall exercise, among others, the power to hold examinations and grant degrees, diplomas and other academic distinctions or titles. Thus it is clear that the Indian Institute of Technology is not affiliated to any University and therefore, what is applicable to the other Universities who are governed by the University Grants Commission is not applicable to the Indian Institutes of Technology. 6. As per Section 4 of the said Act, each of the Institute shall be a body corporate having perpetual succession and a common seal and shall, by its name, sue and be sued. Section 13(1) of the Act empowers the Board to create Statutes and Ordinances for the Institute. Section 26(g) states that such Statutes may provide for the classification, the method of appointment and the determination of the terms and conditions of service of teachers and other staff of the Institute. In exercise of the said power conferred under Section 13 of the Act, the Board of Governors of the Indian Institute of Technology Madras has adopted a Statute for the said Institute. According to clause 11 of the Statutes, the members of staff have been classified as Academic, Technical, Administrative and others. So far as the Academic staff are concerned, the Librarians have been sub classified as Academic and Non-vacation staff. According to the Statutes, retirement age of any staff member is only 60 years. In view of the directions issued by the Government of India, Ministry of Human Resource Development, Department of Education, by letter in even number dated 31st August 1988, the age of superannuation of teaching staff was increased by two years. When doubt arose as to whether the said benefit could be extended to the Librarians and Assistant Librarians, the Government of India, Ministry of Human Resource Development, Department of Education by letter in P.No.23-8/98-TS.I has clarified that the said enhancement of retirement age would be applicable only to those categories of employees of IITs who are being treated at par with the teachers and whose age of superannuation was 60 years. 7. The term 'teacher' means the one who teaches some subject to the students. Admittedly, the Assistant Librarians, in so far as the Indian Institute of Technology Madras are concerned, are not allowed to teach the students. Their nature of job is only to maintain the library. So, as rightly pointed out by the learned counsel for the second respondent, Librarians and Assistant Librarians cannot be treated on par with the teachers who are teaching the students. Therefore, in my considered opinion, the clarification issued by the Government of India, Ministry of Human Resource Development, Department of Education in P.No.23-8/98-TS.I clarifies it correctly thereby removing the doubt. Thus, as per the said letter, the benefit of enhancement of retirement age by two years cannot be made applicable to Assistant Librarians. Thus the argument advanced by the learned Senior Counsel that the petitioner should be given the benefit of the said letter of the Ministry of Human Resource Development, Department of Education which enhances the retirement age of teaching staff has to be rejected. 8. The learned Senior Counsel, would rely on a letter from the Government of India, Ministry of Human Resource Development, Department of Higher Education in T.No.1-9/99-U.N. dated 22.09.2006 addressed to the Secretary, University Grants Commission, New Delhi. In the said letter, the Government has informed the University Grants Commission that it had been decided that the age of superannuation for the Assistant Librarian/College Librarians/Assistant Director of Physical Education/College Director of Physical Education would uniformly be 62 years. The learned Senior Counsel would submit that this order would bind the second respondent Institute also. But, the learned counsel appearing for the second respondent would point out that this letter has been addressed to the University Grants Commission and so this letter would govern those Institutes and Colleges who are coming within the purview of the University Grants Commission. 9. I find every force in the said argument of the learned counsel appearing for the second respondent. As I have already stated in the previous paragraphs of this judgment, the Indian Institute of Technology is a body corporate established as per the Institutes of Technology Act, 1961 and it has been empowered to conduct examinations and to grant degrees. As already pointed out, this Institute is not affiliated to any University which are coming under the purview of the University Grants Commission and hence, University Grants Commission cannot have any say in the matter of administration of IIT's and also in the matter of service conditions of the members of staff working in IIT's. As stated above, it is only the Board of Governors which has got the power to create a Statute, which may provide for the terms and conditions of the service of the employees. The Board of Governors of IIT's of Madras has adopted a Statute which pescribes that the age of superannuation of Librarians and other Librarians who are academic staff, but falling within the sub classification of Non-vacation staff is only 60 years. Therefore, the letter of the Government of Indian, Ministry of Human Resource Development addressed to the Secretary to University Grants Commission informing that the age of the Librarian shall be 62 years is not applicable to the IIT's. 10. The learned Senior counsel would rely yet another letter from the University Grants Commission, New Delhi to the Registrar, Indian Institute of Technology Madras in No.F.3.1/94(PS)-7 wherein, the University Grants Commission has informed the Registrar of the second respondent that henceforth, the retirement age of the Assistant Librarian/College Librarians/Assistant Director of Physical Education/College Director of Physical Education would be 62 years. The learned Senior Counsel would submit that this letter would bind the second respondent. But I am not able to accept the said argument for the simple reason that the second respondent Institute is not governed by the Regulations of the University Grants Commission. Though it is true that University Grants Commission has sent such a letter addressed to the Registrar of the second respondent, it does not bind the second respondent Institute. To put it in simple terms, I am of the view that unless the Statutes of Indian Institute of Technology Madras is so amended by the Board of Governors, thereby enhancing the retirement age of the Assistant Librarians to 62, the petitioner cannot have a case to say that his retirement age is 62 years. 11. For all these reasons, I am not in a position to grant the relief as prayed for in this writ petition. The writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed. gms To 1. The Secretary to Government Government of India Ministry of Human Resources Development, New Delhi. 2. The Registrar Indian Institute of Technology, Madras, Chennai 600 036