I.I.T.
Kanpur Vs. Umesh Chandra & Ors [2006] Insc 267 (2 May 2006)
S.B.
Sinha & P.K. Balasubramanyan
[Arising
out of S.L.P. (Civil) No.4078 of 2006] S.B. SINHA, J :
Leave
granted.
The
First Respondent was appointed as a Junior Pilot Instructor (Glider) pursuant
to an advertisement issued in the year 1979 being Advertisement No.14/1979. The
Indian Institute of Technology, Kanpur, (hereinafter referred to as 'the Institute') is a body corporate in
terms of the provisions of the Institutes of Technology Act, 1961 (hereinafter
referred to as 'the Act'). It is an institute of national importance. It has
its own Board of Directors. Its functions are laid down in Section 13 of the
Act. The Board of Governors is responsible for general superintendence,
directions and control of the affairs of the Institute. It is also entitled to
take decisions on questions of policy relating to administration and working of
the Institute.
Section
27 of the Act contemplates framing of statutes providing for the matters
enumerated in Section 26 thereof, providing for classification, method of
employment and determination of the terms and conditions of service of teachers
and other staff of the Institute. In terms of Statute 11 of the Indian
Institute of Technology, Kanpur Statutes (for short, 'the Statutes'), members
of the staff are classified in three categories, namely, Academic, Technical
and Administrative.
The
First Respondent herein applied for his appointment as Junior Pilot Instructor
in response to the advertisement No.14/1979 and was called for an interview
before a Selection Committee constituted under Statute 12(3)(e) of the
Statutes. He was appointed on contract basis. It is not in dispute that later
on also an advertisement was issued for the post of Junior Pilot Instructor on
regular basis wherefor also the First Respondent applied for and was selected
by a Selection Committee constituted under Statute 2(3)(e) of the Statute. He
later on was appointed to the post of Senior Pilot Instructor by a Selection
Committee similarly constituted. While the First Respondent was appointed as a
Senior Pilot Instructor (Glider) in terms of an offer of appointment made on
24.06.1986, it was, inter alia, stated that the age of superannuation would be
60 years. According to the appellant, the post of Senior Pilot Instructor was
classified as technical. Sl. Nos. 18, 19 and 20 of the Recruitment
Qualification for Group-A Officers (Academic, Administrative and Technical) of
the Institute read as under :
"
Sl. No.
Designation
and Pay Scale Qualifications Classification Selection Committee as per Statute
18 Chief Pilot Instructor (Rs.1500-2000) Appropriate DGCA Licence Technical
12(3)(e) 19. Sr. Pilot Instructor (Rs.1100-1600) -do- -do- 12(3)(e) 20. Pilot
Instructor (Rs.700-1300) -do- -do- 12(3)(e) " A Selection Committee was
constituted in terms of the Statute 12 (3) (e) of the said Statutes for
interview in the post of Chief Pilot Instructor and one Shri H.S. Agnihotri was
recommended therefor.
It is
not in dispute that the First Respondent made a representation for up-gradation
of his scale of pay from Rs.14,300-400-18300 to Rs.16,400- 450-20,000 which was
approved by the Board having regard to the unique post held by him. A
clarification was also issued by the Ministry of Human Resources Development on
12.06.2000 stating that the categories of employees should be classified as
academic as per the Statutes and treated at par with teachers having the age of
retirement on attaining the age of superannuation with effect from 31.08.1998.
Whereas the age of superannuation of the academic staff was fixed at 62 years,
the age of superannuation of technical, administrative and other staff in terms
of the Statutes was specified as 60 years.
The
First Respondent by a letter dated 05.05.2005 was informed by the appellant
herein that he would reach the age of superannuation on the expiry of
31.01.2006, pursuant whereto he submitted a representation on 08.06.2005
asserting that as the post of Senior Pilot Instructor held by him was an
academic post, his age of superannuation should be treated as 62 years. The
Director of the Institute with a view to go into the said question, constituted
a committee on 21.11.2005. However, before a decision on the said issue could
be taken, a writ petition was filed by him before the Allahabad High Court.
During the pendency of the said petition, the Committee opined that since the
First Respondent did not belong to the academic category, his age of
superannuation would be 60 years, and not 62 years . The said writ petition in
view of the said order was suitably amended by the First Respondent.
By
reason of the impugned judgment, the High Court allowed the said writ petition
holding that the First Respondent belonged to the academic category. The
appellant is, thus, before us.
Mr. Gopal
Subramanium, the learned Additional Solicitor General appearing on behalf of
the appellant, would urge that having regard to the fact that the appellant and
for that matter other persons holding the post of Senior Pilot Instructor had
all along been treated to be a technical staff, and having been selected by a
Selection Committee in terms of Statute 12(3)(e) of the Statute, the High Court
had committed a serious error in arriving at its decision. It was further
submitted that the First Respondent was appointed mainly in the Gliding and
Soaring Centre at IIT, which was established to provide for an informal
recreational avenue to the members thereof in adventure sports and other
aviation sports like Aero-modeling club. Glider flying, according to the
learned counsel, is in no manner connected with the academic activities of the
Department of Aeronautical Engineering or any other department of the
Institute. The High Court, it was urged, committed a serious error in arriving
at a finding that the First Respondent belonged to the academic category, inter
alia, on the basis of :
-
application
form;
-
fitment of
scale;
-
brochure used by
the IIT; and
-
a decision of
the House Allotment Committee.
It was
further contended that the resolution of the Board dated 23/24.05.1988, in
terms whereof the post of Senior Pilot Instructor was classified as technical
having not been challenged, the impugned judgment of the High Court cannot be
sustained. It was furthermore urged that the conclusion of the High Court that
gliding cannot be considered distinct from the academic course or learning
under Aerospace Engineering was not correct having regard to the fact that as
per Statute 4(2)(a), it was within the exclusive domain of the Senate of IIT to
frame and revise curricula and syllabi for the courses of studies for the
various departments of the Institute.
Mr.
P.N. Mishra, the learned Senior Counsel appearing on behalf of the Respondent,
on the other hand, submitted that the Selection Committees are not strictly constituted
for the purpose of selection of academic or technical category of staff.
Different Selection Committees are constituted for selection to different
categories of posts which in effect and substance does not relate to the
selection of academic or technical staff.
Our
attention in this behalf has been drawn to various documents whereupon the High
Court placed strong reliance.
The
general educational qualifications of the First Respondent is said to be
intermediate. In the advertisement No.DE-9/85, the qualifications and
experience for holding the post of Senior Pilot Instructor were stated as under
:
"SENIOR
PILOT INSTRUCTOR
(1
Post) : PAY SCLAE : Rs.1100-50-1600
QUALIFICATIONS
:
Candidate
should hold Glider Pilot's License with open rating upto 600 kg.; and
Instructors rating; should hold an Aerotow rating; should have minimum of 6000
launches of gliding with 300 hrs.; of flight time and out of which at least 200
hrs. should be instructional flying. Age limit below 42 years on 1.1.1985. Desirable
that the applicant has done at least 1000 launches in the proceeding year and
should have sent at least 5 trainees solo.
EXPERIENCE
:
Candidates
should have ability to conduct flights for academic programme of the
department; to hold ab initio and advanced instructional flying to the members
of the Gliding Soaring Centre; to carry out test flights of proto-type glides
and to discharge various related administrative duties for running the Centre.
Persons with higher category of flying licensees and experience will be given
preference." From a perusal of the said advertisement, it would appear
that no general qualification was fixed therefor. A person having no
educational qualification as such but having the requisite certificate could
have been appointed as Senior Pilot Instructor. We have noticed hereinbefore
that there exists a dispute as to whether gliding is a part of the curriculum
and syllabus of the Institute or not. The experience of the candidate requisite
for holding the post of Senior Pilot Instructor no doubt provides that the
candidate should have ability to conduct flights for academic programme but the
same also provides that he should be able to discharge various related
administrative duties for running the centre. The term "academic programme"
does not, in our opinion, necessarily mean that he should be able to take part
in the academic activities of the institute.
From
the said advertisement itself no inference can be drawn that the said post was
for appointment in the academic category or for technical category of the
staff. We have, however, noticed that what was emphasized was the flying licence
and experience.
So far
as the courses of studies are concerned, we may notice that under the hading
'AE-422' (Experiments in Flight Mechanics), it is stated :
"AE
422 : EXPERIMENTS IN FLIGHT MECHANICS L-T-P-D(C) Prereq. AE 321, AE 322
1-0-3/2-0(2)Introduction to flight testing, instrumentation, techniques and
data reduction methods, calibration of flight and special flight test
instrument.
Evaluation
of glider drag polar. Evaluation of cruise and climb performance of a small
airplane.
Determination
of static and maneuver stability and control characteristics. Observations of
airplane dynamic modes and stall characteristics.
Introduction
to GPS based navigation.
Introduction
to auto-pilot." It has, however, not been placed before us as to whether
the First Respondent was entrusted with any such academic duties.
Statute
11 of the Statutes provides for classification of the members of the staff of
the Institute. Those employees who were to be classified within the academic
category included : Director, Deputy Director, Professor, Associate Professor,
Assistant Professor, Lecturer, Workshop Superintendent, Associate Lecturer,
Assistant Lecturer/Instructor, Scientific Officer, Research Assistant,
Librarian, Deputy Librarian and such other academic posts as may be decided by
the Board; whereas the technical staff included Farm Superintendent, Foreman,
Supervisor (Workshop), Mechanic, Farm Overseer, Horticultural Assistant,
Technical Assistant, Draftsman, Physical Training Instructor and such other
technical posts as may be decided by the Board.
For
appointment to a post, a Selection Committee indisputably is required to be
constituted. The First Respondent before the High Court, inter alia, contended
that the Selection Committee was constituted in terms of Statute 12(3)(b) of
the Statutes for the posts of Assistant Professor, Senior Scientific Officer
and Lecturer. However, before us, the learned counsel agreed that Statute 12(3)(e)
shall apply in the instant case.
The
First Respondent in his writ petition asserted :
"That
in pursuance to aforesaid interview letter the petitioner appeared in the
interview held on 21.02.1986. the said interview was conducted by a selection
committee constituted in accordance with Statute 12(3)(b) of the Statute. The
said selection committee was headed by the Director as its Chairman and also
included the Head of the Department as a member. Apart from the aforesaid there
also included an expert." Mr. Mishra, however, submitted that Statute 12
of the Statutes does not provide for constitution of the Selection Committee
separately for the academic staff and technical staff. Our attention in this
behalf was drawn to Statute 12(3)(c ) of the Statutes in terms whereof a
Selection Committee is to be constituted for the posts of Librarian and
Workshop Superintendent etc.; whereas in terms of Statute 12(3)(b) a Selection
Committee is to be constituted for the posts of Registrar and Assistant
Registrar etc.
It was
urged that it is only the posts which are not covered by the provisions
contained in Statutes 12(3)(a) to 12(3)(d), would be covered by Statute
12(3)(e) and not the posts of technical staff exclusively.
Apart
from the fact that the said contention has not been advanced before the High
Court, we may notice that academic staff having been defined, normally, the
appointment of academic staff is covered by sub- clauses (a), (b), (bb) and (c)
. Clause (d) of Statute 12(3) applies only to the administrative staff, namely,
Registrar or Assistant Registrar etc who do not fall in the category of either
academic staff or technical staff. Thus, sub- clauses (a) to (e) of Statute
12(3) being applicable to the academic staff and clause (d) thereof being
applicable to the administrative staff, clause (e), therefore, ordinarily would
apply only to the technical staff. It is only from that angle that the fact
that for all the posts which the appellant had been holding as also for the
post of Chief Pilot Instructor, constitution of the Selection Committee is in
terms of sub-clause (e), assumes significance.
A
distinction which may be noticed is that even for the selection for the posts
of Workshop Superintendent or Librarian, an expert on the subject is to be a
member of the Selection Committee, whereas in the case falling under sub-clause
(e), even a Registrar who belongs to the administrative category, can be a
member of the Selection Committee. It is not expected that for selecting a
member of the academic staff, the Registrar would be included in the Selection
Committee.
It is
worth-mentioning that for selection of the academic staff, an expert nominated
by the Senate is a member of the Selection Committee.
Such
requirement does not exist for selection of a member of the technical staff.
So far
as the representation of the First Respondent as regards pay scale is
concerned, we may notice the resolution of the Committee constituted for
consideration of the request of the First Respondent dated 29.03.2000 which
reads as under :- "The Committee was advised that "Capt. Umesh
Chandra, Senior Pilot Instructor, Department of Aerospace Engineering has made
a requested dated March 29, 2000 (placed at AP 18 of BSC agenda) for upgradation
of his pay scale from existing scale from existing scale of Rs.14300-400-18300
to the scale of Rs.16400-450-20000." The Committee noted that Capt.
Chandra had joined the Institute service on 18.1.1980 as a Junior Pilot
Instructor. He was selected to the post of Senior Pilot Instructor with effect
from May 22, 1986. Since then he had had no
opportunity for assessment/upgradation though he has completed more than 8
years on the post like other Group 'A' Officers especially non-academic
officers for whom a career advancement scheme has been approved by the Board in
its 1996/3rd meeting held on 26.09.1996.
The
Committee was further advised that the position of Senior Pilot Instructor was
unique to IIT Kanpur and such a post was not available in any other IIT. The
Committee also noted that there is no ladder of promotion for him although he
has been working as Senior Pilot Instructor with effect from May 22, 1986.
The
committee also noted that there is no assessment/upgradation scheme available
to academic staff of the kind.
In
view of the above facts, the Committee recommended that Capt. Umesh Chandra be
given one time personal assessment to move from the existing scale to the scale
of Rs.16400-450-20000 as a special case.
The
Committee further recommended that since the Board had approved a one time
Personal Promotion scheme for non academic staff with effect from 26.9.1996, he
could at the most be considered for assessment promotion with effect from the
said date and the assessment exercise be carried out by constituting
appropriate statutory selection committee." [Emphasis supplied] Our
attention has also been drawn to an Office Order dated 19.04.1999, in terms
whereof the pay scale of the Senior Pilot Instructor was revised from
Rs.4100-125-4650-150-56300 to Rs.14300-400-18300.
Emphasis
has been laid on two factors by Mr. Mishra. Firstly, in the second paragraph of
the recommendation, the Committee noticed that whereas the other non-academic
officers had an avenue for assessment/upgradation, the First Respondent did not
have the same. Such assessment/upgradation was available also for the
non-academic staff. The very fact that the Committee took into consideration
that the case of the appellant was an unique one and as there was no ladder for
promotion for him which facilities were otherwise available to the academic
staff and non- academic staff, the representation as regard scale of pay having
regard to the unique position was considered on the premise that no such post
was available. The same, in our opinion cannot be said to have any bearing
whatsoever for determination of the question as to whether the respondent
belonged to the academic category or not.
Our
attention has also been drawn to the fact that the name of the respondent
appears in the scale of pay issued by the officers of the faculty.
Again,
the same, in our opinion, is not decisive. It is one thing to say that the
matter relating to scale of pay etc. had been considered by one department
having regard to the administrative exigency, but the same would not
necessarily lead to a conclusion that the First Respondent belonged to the
academic category.
Emphasis
has again been laid on the issuance of the application form for use of the
candidate which was meant for academic appointment. The said form was issued in
1985, i.e., much before different superannuation age was prescribed for the
academic and non-academic staff. As indicated hereinbefore, for administrative
convenience, the matter might have been dealt with by the academic department
but unless a person comes within the purview of the definition of 'academic
member' in terms of the statute, he would not be entitled to the benefit
thereof.
The
High Court in its judgment observed :
"(vi)
It is also worthwhile to note that in the list prepared by the Chairman, House
Allotment Committee as can be seen from notices (Annexures 15, 16 & 17) to
the writ petition), his name finds place amongst those who belong to Academic
Category. Even in Brochure, Annexure-22 and websites for the year 2005, Annexures
23 and 24 to the writ petition, his name is included in the list of Academic
Staff." As regard the functions of the First Respondent, the appellant has
categorically stated :
"The
services of the petitioner were utilized mainly in the Gliding and Soaring
Centre at the respondent Institute which is established to provide an informal
recreational avenue to the members of the Gliding and Soaring Centre in
adventure sports and other aviation sports like Aero-modeling club etc. The
membership of the Centre aforementioned is available not only to the students
and staff of the respondent Institute but also to the public at large subject
to their fulfilling certain conditions in this regard.
-
That it is
specifically stated and clarified that gliding or for that matter glider flying
is in no manner connected with academic activities of the department of
Aerospace Engineering or any other department of the Institute.
-
That after
joining the centre aforementioned the petitioner was designated as Secretary of
the Gliding and Soaring Centre since 1981 for overseeing the activities of the
Centre. In this connection, he was also paid the special allowance of Rs.100/-
per month w.e.f. 01.04.1981. A copy of the letter of the respondent Institute
dated 21.08.1982 is being filed herewith and is marked as Annexure CA 1 to this
affidavit. Subsequently, the petitioner was appointed as Junior Pilot
Instructor (Gliding) w.e.f. 05.01.1983 after being selected by the selection
committee constituted under the provisions of the Institute of Technology Act, 1961.
-
That,
thereafter, the petitioner upon selection was appointed as Senior Pilot
Instructor w.e.f. 24.06.1986. This order of appointment (Annexure 4 to the writ
petition) itself mentioned the age of retirement of the petitioner as 60 years.
It is
pertinent to state here that post of Senior Pilot Instructor was not classified
either by the Statutes or the Board of Governors until the year 1988.
Statute
11 of the Statutes of the respondent Institute sets out the various posts in the
Institute which are categorized as academic, technical and administrative. It
further empowers the Board of the Institute to classify such other posts as
academic, technical, administrative as may be decided by it. The Board of
Governors in its 1988/3rd meeting held on 23/24 May, 1988 is being filed
herewith and is marked as Annexure CA- II to this affidavit." Thus, the
main function of the First Respondent was for providing an informal
recreational avenue to the members of the Gliding and Soaring Centre in
adventure sports and other aviation sport like Aero-modeling.
The
classification in terms of the provisions of the Act was required to be done in
terms of the provisions of the Statutes. The Selection Committee constituted
under Statute 12(3)(e) for appointing the appellant and other persons in the
same department would clearly go to show that the First Respondent was covered
under the category of technical staff. He furthermore, according to the
appellant, was appointed mainly in the Gliding and Soaring Centre at IIT, Kanpur, to provide an informal
recreational avenue to the members of the Gliding and Soaring Centre in
adventure sports and other aviation sports in Aero-modeling club.
The
High Court failed to consider the specific stand taken by the appellant in this
behalf. The High Court has further failed to notice that the post of Instructor
specified in Statute 11 is compared to the post of Assistant Lecturer; whereas
the post of Senior Pilot Instructor is comparable to the post of Senior Physical
Instructor as mentioned in Statute 11(b). In terms of Statute 4(2)(a) it was
within the exclusive domain of the Senate of IIT to frame and revise curricula
and syllabi for the courses of studies for the various departments of the
Institute. Thus, in this behalf the conclusion arrived at by the High Court
that the gliding cannot be separated or kept aloof from the academic course or
learning under Aerospace Engineering may not be entirely correct. The High
Court furthermore failed to notice that in terms of Resolution dated
23/24.05.1988, the post of Senior Pilot Instructor was classified as a
technical post.
For
the reasons aforementioned, we are of the opinion that the impugned judgment
cannot be sustained. It is set aside accordingly. The appeal is allowed. The
writ petition filed by the respondent in the High Court is dismissed. No costs.
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