Union of India and others vs Mohammad Yousuf Kuchai

By medium of this appeal under Clause 12 of the Letters Patent, the judgment dated 08.06.2016 passed in SWP No.569/2006, titled

Mohammad Yousuf Kuchai Vs. Union of India and others"" has been assailed.

Vide judgment impugned dated 08.06.2016, the said referred writ petition has been disposed of by providing that in terms of order dated 20th

February, 2006 passed in SWP No.1433/2004, the petitioner (respondent herein) has been retired from service on attaining the age of 62 years,

he shall be given all service benefits including payment of salary between 7thFebruary, 2006 to the date he retired from the services after attaining

the age of 62 years with a further direction that the intervening period between April, 2005 to 6th February, 2006 shall be decided.

The precise factual matrix shall be advantageous for the proper disposal of this appeal:

(I) The respondent (hereinafter referred to as the writ petitioner), admittedly, was working as Director, Physical Education, in

National Institute of Technology, Hazratbal Srinagar (hereinafter for short referred to as NIT). His date of birth is 13.04.1945, so

had to attain the age of 60 years on 30th April, 2005.

(II) Notice dated 29.09.2004, had been issued by the NIT notifying that the writ petitioner is attaining the age of superannuation (60

years) on 12.04.2005, so will retire from the service of NIT w.e.f.30.04.2005.

(III) writ petitioner challenged the said notice by medium of SWP No.1433/2004 with a prayer that the said notice be set aside, NIT

authorities shall be commanded to allow him to continue in service upto the age of 62 years with a further command to implement

Govt. order dated 14.01.1999 read with order dated 03.10.1998 and to give him the benefit of two years, i.e. beyond the age of 60

years.

(IV) During the pendency of the petition, notice dated 02.05.2005 was issued by the NIT, in terms whereof writ petitioner on

reaching superannuation was retired at the age of 60 years. The said development necessitated amendment of the writ petition which

has been allowed and the amended petition has been filed wherein relief for quashing the said notice dated 02.05.2005 retiring the

writ petitioner at the age of 60 years, has been prayed for.

(V) The said writ petition No.1433/2004 has been disposed of vide order dated 20.02.2006. In the said order learned Single Judge

has noticed that the age of retirement would be 62 years as approved by the Board of Governors at its meeting held on 24.01.2006

but the petitioner was retired at the age of 60 years. However, realizing the mistake the Dean of Administration requested the

Director to allow petitioner resume his duties w.e.f 07.02.2006 which he did and accordingly his grievance was rectified but

incidentally no order was passed regarding intervening period between 30/04/2005, when he was retired, and 02/2006, when he

resumed the duties. Finally, the learned Single Judge has observed as under:

I feel that before entertaining this litigation the respondents should be allowed time to settle the period aforesaid.

Accordingly, with agreement of Mr. Bazaz the petition is disposed of with a direction to respondents to settle all

questions relating to treatment of aforesaid intervening period within three months from now, whereafter the petitioner

would be at liberty to agitate whatever cause survives to him.

(VI) In compliance to the order dated 20.02.2006, NIT has considered the matter which has culminated in issue of order dated

03.04.2006, in terms whereof case of the writ petitioner has been rejected on the following grounds:

1) Upto 21-01-2006 the age of retirement of Senior Administrative Staff (which includes the post of Director Physical

Education) was sixty (60) years.

2) The date of birth of Mr. M.Y.Kochay, Ex-Director Physical Education is 13-04-1945 and he attained the age of

superannuation (viz 60 years) on 12-04-2005 and retired from the services of the Institute on 30-04- 2005(AN).

3) The Board of Governors of the Institute at its meeting held on 22-01-2006 approved age of retirement to 62 years in

respect of Registrar, Librarian and Director Physical Education.

This order has not been challenged.

(VII) NIT issued order No.17-BOG/71 dated 22.01.2006, in terms whereof age of superannuation at 62 years has been approved

by the Board of Governors in the light of the recommendations of 5th Pay Commission in terms of letter No.37-104/98-TS-III dated

14.01.1999 issued from the Ministry of Human Resources Development (MHRD).

(VIII) Again order No.08-BOG/72 dated 02.09.2006 has been issued wherein it is mentioned that the Board member from

MHRD/IIT Delhi informed the Board members that the age of superannuation in respect of all non-teaching staff including Registrar,

Librarian and Director Physical Education has been fixed as 60 years by the Government of India. The earlier Board order under

resolution No.44/71 dated 22.01.2006 is thus superseded.

(IX) The writ petitioner filed 2nd writ petition registered as SWP No.569/2006 praying therein for following reliefs:

i/ A writ of Mandamus be passed directing the respondents to issue formal orders of resumption of duties as Director

Physical Education in favour of the writ petitioner.

ii/ A writ of mandamus be passed directing the respondents to treat on duty the period from 2.5.2005 to 7.2.2006 as

Director Physical Education and he be accordingly paid his withheld salary for the said period in terms of this Hon''ble

Court''s order of 20.2.2006.

(X) In the counter filed by NIT, it has been stated that the writ petitioner is not in the services of the Institute as he retired from

service on attaining the age of 60 years on 30.04.2005 and thereafter he has never worked nor could have worked as his extension in

the age upto 62 years has not been approved by the Board of Governors of the Institute when Board approved the superannuation

age of the Senior Administrative Employees at the age of 62 years w.e.f January, 2006, no decision regarding the employees who

had already retired from the services of the Institute had been taken, therefore, writ petitioner cannot claim any benefit.

The core issue for determination is as to whether writ petitioner is entitled to be retired at the age of 62 years. While disposing of first writ

petition i.e. SWP No.1433/2004 vide order dated 20.02.2006, the matter has been left open because, as referred to above, it has been observed

that before entertaining this litigation, the respondents therein should be allowed time to settle the period. The petition was disposed of with a

direction to the appellants (respondents therein) to settle all the questions relating to treatment of intervening period whereafter writ petitioner was

given liberty to agitate whatever cause survives to him.

In the judgment impugned passed in SWP No.569/2006, learned Single Judge has opined that the position of writ petitioner having been retired

at the age of 62 years is not open to question because that has been settled vide order dated 20.02.2006 while disposing of SWP No.1433/2006.

Such a view taken is not correct because in the said order matter had been left open. While going through the pleadings, both memo of writ

petition No.1433/2004 and the reply filed by the respondents therein, all the factual and legal questions projected in the respective pleadings have

not been addressed, have been left free to be looked into after settlement of the period as referred to in the judgment.

In compliance of the order dated 20.02.2006, NIT issued order dated 03.04.2006 rejecting claim of the writ petitioner has not been

challenged. In addition thereto, as a matter of fact, vide order No.17-BOG/71 dated 22.01.2006, it was notified that the Board of Governors

have approved age of superannuation at 62 years but subsequently vide order No.08-BOG/72 dated 02.09.2006, said order dated 22.01.2006

has been superseded and the age has been fixed as 60 years for all non-teaching staff which include Director Physical Education. The order dated

02.09.2006 too has not been challenged.

Vide notification issued in the year 2003 by the Government of India, Ministry of Human Resources Development, Department of Secondary &

Higher Education, Central Government decided to take over total control of 14 National Institutes of Technology and 03 Regional Engineering

Colleges which include Regional Engineering College, Srinagar, figuring at serial No.(xvi). One more notification dated 14th January, 1999 has also

been issued by the said Ministry wherein age of superannuation of 62 years has been made applicable to Registrars, Librarians, Physical Education

personnel etc.

The Board of Governors of NIT, Srinagar, vide order No.17-BOG/71 dated 22.01.2006 approved the age of superannuation at 62 years, that

too in the light of letter dated 14.01.1999 of the Ministry of Human Resources Development. Then vide order No.08-BOG/72 dated 02.09.2006,

Board order under resolution dated 22.01.2006 has been superseded in view of later development i.e. superannuating age in respect of all non-

teaching staff including Director Physical Education has been fixed as 60 years by the Government of India. When earlier resolution is superseded

and the age of superannuation is fixed as 60 years and in absence of challenge to the said order No.08-BOG/72 dated 02.09.2006, the question

of superannuation at the age of 62 years does not survive. In addition thereto, even otherwise in absence of challenge to the consideration order

dated 03.04.2006 issued in compliance to the order dated 20.02.2006 passed in SWP No.1433/2004, the writ petition could not survive. The

prayer as had been made by the writ petitioner in the earlier filed writ petition SWP No. 1433/2004 had not been granted i.e. notice dated

29.09.2004 providing that the writ petitioner is to retire on superannuation at the age of 60 years, has not been set aside. Then the notice dated

02.05.2005 notifying that the writ petitioner has retired at the age of 60 years, has also not been set aside. All the aforesaid facts and

circumstances have not been looked into while disposing of SWP No.569/2006. The writ petitioner on reaching the age of superannuation i.e. 60

years has retired w.e.f 30th April, 2005. The age of superannuation though approved by the Board of Governors vide order No.17-BOG/71

dated 22.01.2006 as 62 years, whether could be retrospective i.e. from the date writ petitioner retired even does not survive because of

subsequent development i.e. order No.08-BOG/72 dated 02.09.2006 issued by the NIT, Srinagar, providing that the age of superannuation is 60

years in respect of all non-teaching staff including Director Physical Education.

For the stated reasons and circumstances, appeal succeeds. Impugned judgment is set aside, as a result whereof, writ petition shall stand

dismissed.