SUPREME COURT OF INDIA
I.I.T. Kanpur
Vs
Umesh Chandra and Others
Appeal (Civil) 2414 of 2006 (Arising Out of S.L.P. (Civil) No.4078 of 2006)
(S. B. Sinha and P. K. Balasubramanyan, JJ)
02.05.2006
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 : (i) application form; (ii) fitment of scale; (iii)
brochure used by the IIT; and (iv) 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.
5. 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.
6. 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.
7. 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.