Hon'ble Manoj Misra,J.
We have heard Shri G.K. Singh assisted by Shri J.P. Singh, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Pradeep Upadhyay appears for respondent No.4.
The petitoner retired as a Lecturer, teaching Civil Engineering from the State Government aided polytechnic-Handia Polytechnic Handia, Allahabad on attaining the age of 62 years on 30.6.2010. By this writ petition he has prayed for following reliefs:-
"(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 to consider the issue of enhancement of age of superannuation of teachers including petitioner serving in Technical Institutions (Polytechnic) run and controlled by State Government.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to ensure that All India Council for Technical Education {Pay Scales, Service Condition and Qualification for the Teachers and Other Academic Staff in Technical Institutions (Diploma)} Regulations, 2010 are adopted and implemented in its true spirit and the age of retirement as well as age of re-employment are enhanced from 62 to 65 and 65 to 70 years respectively.
(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to issue necessary orders for implementation of recommendations of All India Council for Technical Education."
It is submitted by Shri G.K. Singh, learned counsel appearing for the petitoner that All India Council for Technical Education Act, 1987 provides for establishment of All India Technical Education Council, to take all such steps as it may think fit for ensuring coordinated and integrated development of technical and management education and maintenance of standards. The powers and functions of the Council under Section 10 is quoted as below:-
"10. Functions of the Council-
(1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical and management education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may....
(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations:"
It is submitted that AICTE has issued a notification dated 22nd January, 2010 regarding pay scales, service conditions and qualifications for teachers and other academic staff in teaching institution (diploma) Regulation 10, which also provides for retirement age. The age of superannuation as provided in the notification is as follows:-
"Age of Superannuation:
(i) In order to meet the situation arising out of shortage of teachers in Technical Institutions and the consequent vacant positions therein, the age of superannuation for teachers in Technical Institutions has been enhanced to sixty five years, vide the Department of Higher Education letter No.F.No.1-19/2006-U.II dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period.
(ii) Subject to availability of vacant positions and fitness, teachers shall also be reemployed on contract appointment beyond the age of sixty five years upto the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years i.e. the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers.
(iii) Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians."
Shri G.K. Singh submits that recommendations of the AICTE are binding upon the State Government. The State Government must adopt them to increase the age of superannuation of all teachers of the Polytechnic from 62 to 65 years. He also submits that in case of all aided degree colleges in the State of U.P. other than Polytechnic the State Government has increased the age from 62 years to 65 years causing discrimination between the teachers of the Degree Colleges and the Polytechnics.
The question with regard to staffing pattern of the Polytechnics in pursuance of the recommendations of the AICTE came up for consideration in Writ Petition No.13727 of 1991, Federation of Indian Polytechnic Teachers Organisation, Allahabad & Anr. v. Director, Technical Education U.P. Kanpur & Anr. After considering the judgments of the Supreme Court in State of Tamil Nadu & Anr. v. Adhiyaman Educational & Research Institute & Ors., JT 1995 (3) SC 136 and Jaya Gokul Educational Trust v. The Commissioner & Secretary to Government Higher Education, Department, Thiruvananthapuram, Kerala State and another, JT 2000 (5) SC 118, this Court held that the State Government cannot ignore the recommendations of the AICTE, with regard to the norms and standards relating to staffing pattern laid down in para 6 to 6.6.
In the present case we are concerned with the recommendations made by Notification dated 22nd January, 2010 relating to the age of superannuation.
In the counter affidavit of Shri Om Hari Singh, Lecturer, Agricultural Engineering, Government Women Polytechnic, Allahabad it is stated in para 7 that the Regulations of AICTE dated 22.1.2010 making recommendations are not binding upon the State aided Polytechnics in the State of U.P. The petitioner's age of superannuation was 60 years with an option that if he leaves benefit of gratuity, he can continue upto 62 years. The petitoner gave up gratuity and attained the age of superannuation on 31.7.2009. He was given the sessions benefit extending his services to 30.6.2010. The recommendations dated 22.1.2010 came into force after the petitoner attained the age of superannuation on 31.7.2009 and thus recommendations are not applicable to the petitioner's services.
We have considered the respective submissions and find that in Special Appeal No.63 of 2003, State of U.P. v. Federation of Indian Polytechnic Teachers Organisation & Anr. this Court held that the AICTE is established with the object of standardising technical education. Its recommendations have binding effect in view of the judgment of the Supreme Court in Adhiyaman Education & Research Institute and Jaya Gokul Educational Trust (Supra) in so far as the qualifications of the teachers are concerned. So far as the pay scales are concerned, this Court observed as follows:-
"From the arguments of learned counsel for the petitioner, we find that main objections to the enforcement of the recommendation, is the financial implications involved in enforcement of the pay structure.
The letter of the Chairman addressed to the Central Government raising concern of the State of U.P. has amply clarified that the notifications issued by the AICTE gave adequate powers to the State Government to formulate their own pay scales, which may be lower than the prescribed ones and implement them with the approval of AICTE.
For the aforesaid reasons, we do not find any good ground to interfere with the judgment of learned Single Judge.
The special appeal is dismissed."
In our opinion this writ petition is liable to be dismissed on the grounds that the petitioner had attained age of superannuation prior to the enforcement of the recommendations by the AICTE. We are also of the opinion that the age of superannuation is related to the requirement of the staff and has financial implications. The question of pay scales, and the retirement age being financial matters, the recommendations of AICTE, unless polytechnics are given the grants by the Central Government, are recommendatory and not binding upon it.
In Suresh Chandra Singh & Ors. v. Fertilizer Corpn. of India Ltd. & Ors., Appeal (Civil) No.717-719 of 1999 decided on 16.12.2003 the Supreme Court in the matter of recommendations of the Fifth Central Pay Commission, Government of India issued an Office Memorandum dated 13th May, 1998 for enhancing the retirement age of Central Government employee to 60 years from 58 years. The Department of Public Enterprises, Ministry of Industry, Governmetn of India issued Office Memorandum on 19th May, 1998 for increasing the age of retirement from the date the relevant Rules and Regulations of the Public Sector Enterprises are amended. The Fertilizer Corporation of India passed a resolution that in view of its financial condition and its dependent on the government support for critical capital expenditure, the enhancement of the age involving financial implications will jeopardise the revival proposals pending before BIFR. The Supreme Court held that each public sector undertaking is an independent body/ entity, and is free to have its own service conditions as per law. Since the employees of different Corporations could not be treated alike as they have different circumstances, there is no discrimination, if some public sector enterprises have accepted the increased retirement age.
In Hans Raj Tripathi & Anr. v. State of U.P. & Ors., this Court deciding Writ Petition No.37244 of 2010 on 3rd July, 2010 held that the question of enhancement of the age of retirement is exclusively within the domain of policy making powers of the State Government, having cascading effect on the cadre of service and financial implications. The High Court followed B. Bharat Kumar & Ors. v. Osmania University & Ors., (2007) 11 SCC 58 in which the Supreme Court held that fixing age of retirement is a matter of policy, with which the Courts do not ordinarily interfere. The Courts do not trail into the areas left to the wisdom of legislation.
The polytechnics fall in different class by themselves, and thus it cannot be said that by extending the age of superannuation of the degree colleges the State Government has discriminated between the teachers in the polytechnics and the teachers of the aided colleges.
The writ petition is dismissed.
Order Date :- 28.11.2011 SP/