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CASE NO.: Appeal (civil)  2414 of 2006

PETITIONER: I.I.T. Kanpur

RESPONDENT: Umesh Chandra & Ors.

DATE OF JUDGMENT: 02/05/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [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

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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

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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 \026 (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

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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.  

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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

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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.

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       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  \026 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

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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.