Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Punjab-Haryana High Court
Jogender Pal Singh And Others vs Union Of India And Others on 1 March, 2021 CWP-20447-2020 1
IN THE HIGH COURT OF PUNJAB AND HARAYANA AT CHANDIGARH
213 (PROCEEDINGS THROUGH V.C.)
CWP-20447-2020
Date of decision:01.03.2021
DR. JOGENDER PAL SINGH AND OTHERS
…PETITIONERS
Vs.
UNION OF INDIA AND OTHERS
…RESPONDENTS
CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: Mr. Rajiv Atma Ram, Senior Advocate,
with Mr. Arjun Partap Atma Ram, Advocate,
for the petitioners.
Mr. Arun Gosain, Senior Standing Counsel,
for respondents No. 1 and 2-Union of India.
Mr. Ravi Sharma, Advocate,
for respondent No. 3.
Mr. Suman Jain, Senior Standing Counsel and
Mr. Aditya Pal Singla, Advocate,
for respondents No. 4 to 7.
***
AUGUSTINE GEORGE MASIH, J.
This writ petition has been filed by the Assistant Professors
working in the Government College of Arts and Government College of
Architecture, Chandigarh, challenging the judgment passed by the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh, dated 27.10.2020
(Annexure P-8), vide which the original application preferred by them
seeking issuance of an appropriate order restraining the respondents from
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
1 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 2
retiring/superannuating the petitioners till they attain the age of 65 years and
to consider them for extension in service till the age of 70 years, stands
dismissed.
2. The primary contention of the petitioners before the Central
Administrative Tribunal as well as this Court is that the regulations framed
under the All India Council for Technical Education Act, 1987 (hereinafter
referred to as ‘AICTE Act, 1987’) i.e. All India Council for Technical
Education (Pay Scales, Service Conditions and Qualifications for the
Teachers and other Academic Staff in Technical Institutions (Degree)
Regulations, 2010 (hereinafter referred to as ‘AICTE Regulations, 2010’)
(Annexure A-10) and thereafter, AICTE Regulations on Pay Scales, Service
Conditions and Minimum Qualifications for the Appointment of Teachers
and other Academic Staff such as Library, Physical Education and Training
and Placement Personnel in Technical Institutions and Measures for the
Maintenance of Standards in Technical Education (Degree) Regulations,
2019 (hereinafter referred to as ‘AICTE Regulations, 2019’) (Annexure A-
11) would apply, according to which, the petitioners are entitled to continue
in service till 65 years of age with further extension up to 70 years
instead of The Conditions of Service of Union Territory of Chandigarh
Employees Rules, 1992, notified on 13.01.1992 (Annexure A-3) (hereinafter
referred to as ‘1992 Rules’), according to which, the age of superannuation
is 58 years.
Similar would be the position with regard to petitioner No. 2-
Sh. Bheem Sain Malhotra, who is working in the Government College of
Architecture and his services would be governed by the UGC Minimum
Qualifications for Appointment of Teachers and other Academic Staff in
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
2 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 3
Universities and Colleges and other Measures for the Maintenance of
Standards in Higher Education Regulations, 2010 (hereinafter referred to as
‘UGC Regulations, 2010’) and the Minimum Standards of Architectural
Education Regulations, 2017 (hereinafter referred to as ‘Architecture
Regulations, 2017’), which have been promulgated by the Council of
Architecture in accordance with the provisions of the Architects Act, 1972,
according to which, again the age of superannuation would be 65 years with
a provision for re-employment after superannuation up to the age of 70
years.
3. Learned Senior counsel for the petitioners asserts that the
respondents are wrongly retiring the petitioners from service by giving
effect to the 1992 Rules which came into effect vide the Notification dated
13.01.1992 (Annexure A-3) issued by the President in exercise of the
powers conferred by the proviso to Article 309 of the Constitution.
He asserts that these rules i.e. the 1992 Rules issued under
Article 309 of the Constitution would hold the field till the appropriate
Legislature passes an Act for regulating the recruitment and conditions of
service of persons appointed to public services. Once the provisions are
made by the appropriate Legislature, the said provisions/regulations would
hold the field and the rules framed under proviso to Article 309 shall cease
to operate. He asserts that the Rules framed by Notification dated
13.01.1992 would cease to operate with the coming into force of AICTE
Regulations, 2010 followed by the AICTE Regulations, 2019 (Annexures
A-10 and A-11 respectively). Similarly, he asserts that with the coming into
force of the UGC Regulations, 2010 and the Council of Architecture
Regulations, 2017 qua petitioner No. 2, the above-mentioned notification
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
3 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 4
would not apply. He, therefore, submits that the age of superannuation of
the petitioners would be now 65 years with a further provision of extension
up to 70 years in the light of these regulations and not 58 years which is
being pressed into service by the respondents. The action of the respondent,
thus, is not sustainable.
4. On the other hand, the stand of the All India Council for
Technical Education-respondent No. 3 is that the said respondent has been
issuing notifications from time to time laying down the pay scales, service
conditions and qualifications for teachers and other academic staff in
technical institutions at both degree and diploma level. It has also been
asserted that the provisions are extendable to AICTE approved institutions.
The centrally funded institutions, which are under the direct administrative
control of Ministry of Human Resource Development/Education, are
outside the purview of the notification issued by the AICTE and their age of
retirement will be the same which has been prescribed for centrally funded
institutions by the aforesaid Ministry.
5. The stand of the Chandigarh Administration and its colleges is
that the services of the petitioners are covered by the Rules framed under
Notification dated 13.01.1992. It is asserted that the Notification dated
31.12.2008 (Annexure A-13) issued by the Government of India, which is
being sought to be enforced by the petitioners working with the
Administration, relates to the Central Educational Institutes/Centrally
Funded Institutions/Central Universities and, therefore, cannot be made
applicable qua the employees working under the Chandigarh
Administration.
As per the Notification dated 13.01.1992, the rules framed by
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
4 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 5
the Punjab Government are ipso facto applicable to the corresponding posts
of Chandigarh Administration. Since they have their own set of rules,
which govern the service conditions which includes the age of retirement,
any notification issued by the Government of India will not ipso facto be
applicable without it being adopted by the competent authority.
In the State of Punjab, the age of super-annuation of the college
teachers is 58 years in terms of Rule 3.26 of the Punjab Civil Services
Rules, Volume I, Part-I, which was subsequently amended and the age has
now been increased to 60 years by granting benefit of two years of
extension, which was also allowed in favour of the employees working in
the Chandigarh Administration. There has been no decision by the Punjab
Government to increase the age of superannuation for its employees
working in colleges to 65 years as per the Notification dated 31.12.2008
issued by the Government of India. The said notification, therefore, would
not be applicable qua the employees working with the Chandigarh
Administration including the petitioners. The colleges under the
Chandigarh Administration neither fall within the definition of “Central
Educational Institutions” nor “Centrally Funded Institutions” and,
therefore, would not be covered by the provisions of the AICTE Act, 1987
or the Architects Act, 1972 and the regulations framed thereunder. The
employees of the colleges would not be covered, thus, by the regulations,
which are being pressed into service by the petitioners. It has further been
sought to be clarified that the colleges under the Chandigarh Administration
are not governed by the Government of India and moreover, the Chandigarh
Administration itself is a Union Territory and is competent to take its own
decisions. Petitioners, who admittedly are working in the Technical
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
5 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 6
Institutions/Colleges of the Chandigarh Administration, will be governed by
the 1992 Rules read with the Punjab Civil Service Rules and, therefore,
their age of superannuation would also be regulated by the said rules.
6. Counsel for the parties have referred to various judgments in
support of their respective contentions. Counsel for the petitioners has
relied upon the judgment of the Orissa High Court in Rajendra Patra vs.
All India Council for Technical Education and others, 2019 LIC 1841, a
judgment of the Gujarat High Court in H.G.Modi and others vs. State of
Gujarat and another, 2006 (10) SCT 159, the judgments of the Hon’ble
Supreme Court in Parshavanath Charitable Trust and others vs.
A.I.C.T.E. and others, 2013 (3) SCT 163 and Foundation for
Organizational Research and Education Fore School of Management
through its Director vs. A.I.C.T.E., 2019 (3) SCT 307.
Mr. Suman Jain, learned counsel for the Chandigarh
Administration and Union Territory of Chandigarh has placed reliance upon
a judgment of the Hon’ble Supreme Court in Jagdish Prasad Sharma and
others vs. State of Bihar and others, 2013 (8) SCC 633 and Pharmacy
Council of India vs. Dr. S.K. Toshniwal Educational Trusts Vidarbha
Institute of Pharmacy and others, 2020 (5) SCALE 439.
7. We have heard the counsel for the parties and with their
assistance, have gone through the pleadings.
8. The basic issue, which falls for consideration in the present writ
petition, is “whether the Notification dated 13.01.1992 (Annexure A-3)
issued under proviso to Article 309 of the Constitution i.e. the Conditions of
Services of Union Territory of Chandigarh Employees Rules, 1992 (the
1992 Rules) would still hold the field even where it is in conflict with the
provisions of the AICTE Regulations, 2010 and 2019, which have been
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
6 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 7
promulgated under the powers conferred under sub-section (1) of Section 23
read with Section 10 (g) (h) (i) of the AICTE Act, 1987 and in the case of
petitioner No. 2, the UGC Regulations, 2010 and the Council of
Architecture Regulations, 2017 framed under the Architecture Act, 1972 ?”
9. Notification dated 13.01.1992 (Annexure A-3), which has been
issued are the 1992 Rules framed under proviso to Article 309 of the
Constitution of India governing the conditions of service of the employees
of the Union Territory of Chandigarh, where it has been acknowledged that
the persons appointed to the Central Civil Services and posts under the
administrative control of the Administrator i.e. Groups A, B, C and D shall
be subject to any other provisions made by the President in this behalf such
as the conditions of service of persons appointed to the corresponding posts
in the Punjab Civil Services. They shall be governed by the same rules and
orders as are for the time being applicable to the respective category of
persons in the Punjab Government. Similar was the position with regard to
the pay scales subject, however, in this regard to the approval of the
Administrator with regard to such revision of pay scales. The Punjab Civil
Services Rules and the pay scales of the corresponding posts were,
therefore, made applicable to the employees of the Chandigarh
Administration by virtue of these rules.
Conditions of Service of Union Territory of Chandigarh
Employees Rules, 1992 (i.e. ‘the 1992 Rules’) were notified and they came
into effect from 01.04.1991. According to Rule 2 of the said Rules, the
Conditions of Service of persons appointed to the Central Civil Services and
posts under the administrative control of the Administrator of Union
Territory of Chandigarh shall be subject to any other provision made by the
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
7 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 8
President in this behalf. These would be the same as the conditions of
service of persons appointed to the corresponding posts in Punjab Civil
Services and shall be governed by the same rules and orders as are for the
time being applicable to the latter category of persons. The employees were
also granted the corresponding pay scales of the posts of the employees of
the Government of Punjab. The Administrator was the competent authority
to revise their pay scales from time to time so as to bring them at par with
the scales of pay which may be sanctioned by the Government of Punjab
from time to time to the corresponding categories of employees.
10. The acknowledged fact and not denied by the respondents is
that these rules would hold the field as per the provisions of Article 309 of
the Constitution. Chandigarh Administration has asserted that the 1992
Rules still hold the field qua the petitioners whereas the petitioners, on the
other hand, press into service the respective regulations framed under the
AICTE Act, 1987 and the Architects Act, 1972 to assert that these
Regulations would apply from the date of coming into force of these
Regulations resulting in the 1992 Rules becoming non-operational from
such date.
11. To settle the above issue as projected by the parties in their
respective submissions, the scope, ambit and operationality of Article 309
of the Constitution will have to be gone into at the first instance and
thereafter to ascertain the applicability or otherwise the respective
Regulations viz-a-viz the Rules.
Article 309 of the Constitution of India reads as follows:-
“309. Recruitment and conditions of service of persons
serving the Union or a State.- Subject to the provisions of this
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
8 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 9
Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of
persons appointed, to public services and posts in
connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such
person as he may direct in the case of services and posts in
connection with the affairs of the Union, and for the Governor
of a State or such person as he may direct in the case of
services and posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the conditions of
service of persons appointed, to such services and posts until
provision in that behalf is made by or under an Act of the
appropriate Legislature under this article, and any rules so
made shall have effect subject to the provisions of any such
Act.” (emphasis applied)
12. A perusal of the above would show that the recruitment and
conditions of service of the persons is first of all subject to the other
provisions of the Constitution and the Acts of the appropriate Legislature
which may regulate the recruitment and the conditions of service of the
persons appointed to the public services.
Proviso to Article 309 is only a temporary or stop-gap
arrangement which is pressed into service or brought about to hold the field
for a limited period i.e. until provision is made by or under an Act of the
appropriate Legislature regulating the recruitment and the conditions of
service of the persons. In case of such an Act covering the field which was
erstwhile being occupied by the rules framed under proviso to Article 309,
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
9 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 10
the said Act of the appropriate legislature would come into effect from the
date of its enforcement and the rules framed under proviso to Article 309
will have to give way to the statutory provisions wherever found
inconsistent to the statutory provisions of the Act and the regulations/rules
framed thereunder. It can be said that life of the Rules framed under the
proviso to Article 309 is limited and govern the service conditions of the
employees till the relevant statutory provisions of the Act and/or the Rules
or Regulations framed thereunder come into force.
In other words, Article 309 is a transitional and an enabling
provision conferring the power on the executive to make Rules with regard
to conditions of service of the civil servants having a limited life span until
the appropriate Legislature legislates on the subject. This is apparent from
the language of the Article where the power to make provisions for
regulating the services is left to the Legislature. Proviso to this Article thus,
operates to fill the vacuum until appropriate legislation comes into force.
Once any Act made by the appropriate Legislature, which is relatable to
Article 309 comes into force, the Rules made under proviso to this Article
must and would give way. The source of power which flows from the
proviso to make Rules dries up the moment appropriate legislation covering
the scope and ambit of the Rules so framed under Article 309 becomes
operational. It requires to be pointed out here that the Rule making power
under Article 309 cannot be exercised if the Legislature has already made a
law occupying the field. If there is a conflict between the Rules framed
under Article 309 and the law made by the Legislature, the law made by the
Legislature will prevail.
13. In the case of the Union Territories, the rule-making power, no
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
10 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 11
doubt, belongs to the President. Therefore, in the case of Chandigarh,
which is a Union Territory, this power to make Rules under Article 309 is in
the President. This power has been exercised by the President while
framing the 1992 Rules. This power under Article 309 and the rules framed
under proviso thereto will operate and hold the field, having the force of
law, unless and until Parliament chooses to legislate on the subject. Once
the Parliament legislates, such Act and the Rules/Regulations framed
thereunder, would take over the field resulting in the Rules framed by the
President under proviso to Article 309 seizing to operate forthwith.
14. Article 246 of the Constitution of India deals with the subject
matter of laws made by the Parliament and by the Legislatures of States.
The Lists are contained in Schedule-VII of the Constitution. Entry 66 of
List-I i.e. the Union List would be relevant for the present case, which reads
as follows:-
“Entry 66. Co-ordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions.”
15. In terms of Entry 66 of the List-I of the Constitution, the Union
of India has promulgated and notified the All India Council for Technical
Education Act, 1987 (hereinafter referred to as the AICTE Act). Relevant
provisions of the AICTE Act read as under:-
2. Definitions.-In this Act, unless the context otherwise
requires,-
(a) to (e) xxx
(f) “Regulations” means regulations made under this Act.
(g) “Technical Education” means programmes of education,
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
11 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 12
research and training in engineering technology, architecture,
town planning, management, pharmacy and applied arts and
crafts and such other programme or areas as the Central
Government may, in consultation with the Council, by
notification in the Official Gazette, declare;
2(h) “Technical Institution” means an institution, not being a
University, which offers courses or programmes of technical
education, and shall include such other institutions as the
Central Government may, in consultation with the Council, by
notification in the Official Gazette, declare as technical
institutions;
(i) xxx
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 education and maintenance of
standards and for the purposes of performing its functions
under this Act, the Council may-
(a) to (h) xxx;
(i) Lay down norms and standards for courses,
curricula, physical and instructional facilities, staff pattern,
staff qualifications, quality instructions, assessment and
examinations;
(j) xxx
(k) Grant approval for starting new technical institutions and
for introduction of new courses or programmes in consultation
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
12 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 13
with the agencies concerned;
(l) to (o) xxx
(p) Inspect or cause to inspect any technical institution;
(q) to (v) xxx
23. Power to make regulations-
(1) The Council may, by notification in the Official Gazette,
make regulations not inconsistent with the provisions of this
Act, and the rules generally to carry out the purposes of this
Act.
(2) xxx” (emphasis applied)
16. The above Section 23 gives the power to the Council to issue
regulations. Exercising this power, AICTE Regulations, 2010 were notified
on 22.01.2010 (Annexure A-10) initially by the Ministry of Human
Resource Development, Department of Higher Education, Government of
India. The age of super-annuation, which was provided therein, was 65
years with a provision for re-employment on contract appointment beyond
the age of 65 years up to the age of 70 years.
Subsequently, AICTE Regulations, 2019 were issued by
Ministry of Human Resource Development, Department of Higher
Education, Government of India vide Notification dated 01.03.2019
(Annexure A-11).
Regulation 2.12 of these AICTE Regulations, 2019, deals with
the age of superannuation, according to which, the age of superannuation of
all faculty members and Principals/Directors of institutions was fixed at 65
years with a provision for extension of 5 years till the attainment of 70 years
of age with certain other riders. This makes it clear that the age of
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
13 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 14
superannuation for the faculty members of the Technical Institutions shall
be 65 years.
17. As regards petitioner No. 2 is concerned, who worked as an
Associate Professor in Fine Arts of Chandigarh College of Architecture, the
University Grants Commission under Section 26 of the University Grants
Commission Act promulgated regulations for the UGC Minimum
Qualifications for Appointment of Teachers and other Academic Staff in
Universities and Colleges and other measures for the Maintenance of
Standards in Higher Education Regulations, 2010, according to which, the
age of super-annuation was 65 years and with re-employment option on
contract basis, up to the age of 70 years.
Similarly, under the Architects Act, 1972, Council of
Architecture exercising the powers under Section 45 of the said Act had
promulgated the Minimum Standards of Architectural Education
Regulations, 2017.
Regulation 2.9 thereof reads as follows:-
“2.9 The Retirement Age including Superannuation for
Teaching posts of Assistant Professor, Associate Professors
and Professors, including professor (Design Chair) shall be 65
years or as stipulated by the Central/State Government from
time to time. Re-employment after superannuation shall be
permissible against sanctioned vacancies and the faculty may
continue to serve until the age of 70 but shall not hold an
administrative position.”
A perusal of the above would show that the age of
superannuation under these regulations also is 65 years extendable to 70
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
14 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 15
years.
18. It cannot be disputed that the regulations issued by the AICTE,
the UGC and the Council of Architecture are binding upon the colleges and
institutions covered under these Acts, as has been held by the Supreme
Court in the case of Parshavanath Charitable Trust vs. All India Council for
Technical Education, 2013 (2) SCT 163 and in the Foundation for ORE
Fore School of Management vs. AICTE, 2019 (3) SCT 307. Thus, it can
clearly be said that the regulations issued under the Statute, which have
come into force under the Central Act, would be operative qua the
colleges/institutions which would fall within the said regulations and the
rules framed under the proviso to Article 309 would, therefore, have to give
way to the regulations in case of there being any conflict.
In view of the above, the answer to the above posed question in
para 8 would be that AICTE Regulations 2010/2019 and Architecture
Regulations 2017 shall apply in case of conflict with the 1992 Rules.
19. Now the question would be “As to whether the colleges, in
which the petitioners served/are serving, are governed by the provisions of
the above-referred to Acts and Regulations or not ?”
20. The definitions as far as the AICTE Act, 1987 is concerned, as
reproduced above, would show that Section 2 (g) defines ‘Technical
Education’, which means programmes of education, research and training
followed by various fields and trades which includes ‘architecture’ as well as
‘applied arts and crafts’. Section 2 (h) defines ‘Technical Institution’, which
means an institution which offers courses or programmes of technical
education but not being a University.
There is no denial to the aspect that the two colleges, where the
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
15 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 16
petitioners are/were working, are being run by the Chandigarh
Administration and are imparting education in the field of ‘applied arts and
crafts’ and ‘architecture’ and, therefore, would fall within the definition of
‘Technical Institution’.
21. If that be so, the AICTE Regulations qua petitioners No. 1, 3 to
5 and Architecture Regulations, 2017 qua petitioner No. 2 would be
applicable to the faculty members of these colleges. The age of
superannuation, as per these regulations, shall be 65 years with a provision
for extension of 5 years subject to fulfilment of the further requirements of
the regulations as laid down therein.
22. The stand of the respondents primarily is that these regulations
are not applicable which appears to be without any basis. The respondents
have tried to assert that the colleges, which are being run by the Chandigarh
Administration, do not fall within the ambit of Central Government
Institutions or centrally funded institutions. It has further been asserted that
these colleges are not funded by the Central Government but are funded by
the Chandigarh Administration.
However, the aspect that all the funds are provided by the
Central Government could not be disputed by the counsel for the
Chandigarh Administration. Once the funds have been provided by the
Central Government, merely because the same were being distributed and
utilized by the Chandigarh Administration for running the colleges would
not bring it outside the ambit of the centrally funded institutions and in any
case, that would not be a requirement per se for the applicability of the
AICTE and/or Architecture Regulations.
23. The respondents have pressed into service and highlighted the
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
16 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 17
aspect of enhancement of age of super-annuation to 65 years for teaching
positions in the centrally funded institutions in higher and technical
education on the basis of the Letter dated 23.03.2007 (Annexure A-5)
issued by the Ministry of Human Resource Development, Department of
Higher Education, which would cease to operate with the coming into force
of the AICTE Regulations, 2010 and then, AICTE Regulations, 2019
(Annexures A-10 and A-11 respectively) and the Architecture Regulations,
2017, which do not qualify the applicability of these regulations to the
centrally funded educational institutions.
24. That apart, the Government of India, Ministry of Human
Resource Development, Department of Higher Education issued
instructions/guidelines regarding revision of pay of teachers in the degree
level Engineering Colleges and other degree level technical institutions
including Architecture, Town Planning, Pharmacy and Applied Arts and
Crafts Institutions etc., dated 07.10.2009 (Annexure A-6) followed by a
Letter dated 12.10.2009 (Annexure A-7), which dealt with the enhancement
of the age of superannuation to 65 years for teaching positions in
educational institutions in higher and technical education. The said letter
with regard to the revision of pay of teachers in the degree level
Engineering Colleges and other degree level technical institutions including
Architecture, Town Planning, Pharmacy and Applied Arts and Crafts
Institutions etc. following the revision of pay scales of Central Government
employees on the recommendations of the 7th Central Pay Commission was
accepted by the Chandigarh Administration, however, with a rider that the
age of retirement would continue as 58 years.
It would not be out of way to point out here that on 09.07.2018
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
17 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 18
(Annexure A-15), a letter was addressed by the Government of India,
Ministry of Human Resource Development, Department of Higher
Education, Technical Section-II/TC to The Secretary, Technical Education,
Chandigarh Administration (Home Department), Chandigarh, where in para
No. 3, it was stated as follows:-
“3. The Ministry of Home Affair’s Gazette Notification
issued on 13.1.1992 was a stop gap arrangement during that
time for following the service conditions and Pay Scales of
Punjab State Government. The AICTE norms are now being
followed by all UTs, except Chandigarh UT, in the country.
Hence, it is once again reiterated that AICTE norms for service
conditions and pay scales needs to be followed by all technical
institutes in the UTs. However, as the proposal of up-gradation
of the posts of Librarian have financial implications to be borne
by Ministry of Home Affairs, Government of India, Chandigarh
UT Administration may take a final call on matter in
concurrence with Ministry of Home Affairs.”
25. Vide decision dated 20.12.2019 (Annexure A-19), the
recommendation made by the 7th Central Pay Commission relatable to the
revision of pay of teachers and other academic staff in degree level
Engineering Colleges and other degree level technical institutions including
Architecture, Town Planning, Pharmacy and Applied Arts and Crafts
institutions etc. which fall under the purview of AICTE, was accepted. This
clearly shows that the Government of India, Ministry of Human Resource
Development, Department of Higher Education had all through been
acknowledging and asserting the correct legal position with regard to the
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
18 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 19
applicability of the AICTE regulations viz-a-viz the 1992 Rules.
It would not be out of way to mention here that all the Union
Territories of India have made applicable the regulations which have been
framed after the passing of the Acts relatable to the respective spheres of
applicability except for the Union Territory of Chandigarh. The stand,
which has been taken by the Chandigarh Administration and the Union
Territory of Chandigarh, is unsustainable and not in accordance with law
26. The judgments, which have been relied upon by the learned
counsel for the respondents, would not be applicable to the case in hand as
the same were rendered by the Hon’ble Supreme Court in the light of the
relevant and applicable facts and circumstances of the said cases.
In Jagdish Prasad Sharma’s case (supra), the Hon’ble Supreme
Court proceeded to hold in the light of the statutory provisions that the final
decision to enhance the age of superannuation of teachers within a
particular State would be of that State itself as the Scheme of UGC in its
composite form was made discretionary by the Commission and there was
no compulsion on the States to accept or adopt the said scheme which is not
the position in the present case.
In Pharmacy Council of India’s case (supra), the Hon’ble
Supreme Court concluded that the Pharmacy Act is a complete code in itself
in subject of Pharmacy and enacted to make better provision for regulation
of profession and practice of pharmacy and for that purpose to constitute
Pharmacy councils. Since the subject of Pharmacy is a special subject and
not a general subject, AICTE Act could not be applicable as the same is a
general law applicable to the technical institutions and technical education.
The said judgment, therefore, would not be applicable to the case in hand.
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
19 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 20
27. In the impugned order dated 29.09.2020/27.10.2020 (Annexure
P-8) passed by the Central Administrative Tribunal, Chandigarh Bench in
O.A. No. 60/392/2020, the learned Tribunal has failed to take into
consideration the applicability, effect and ambit of operation of the Rules
framed under proviso to Article 309 of the Constitution. It has proceeded to
hold that the 1992 Rules will prevail as the regulations framed under the Act
have not been adopted by the Union Territory of Chandigarh. The Tribunal
has proceeded on a wrong tangent and assumption with regard to the
applicability of the regulations viz-a-viz the 1992 Rules. The said
impugned order passed by the Central Administrative Tribunal, thus, cannot
sustain and deserves to be set aside.
28. In view of the above, we are of the considered view that the
services of the petitioners are governed by the AICTE Regulations,
2010/2019, according to which, the age of superannuation of the petitioners
would be 65 years with provision for extension of 5 years subject to the
requirements of the Regulations. and, therefore, the action of the
respondents in declining the representations/claim of the petitioners for
continuing them in service till the age of 65 years as per the AICTE
Regulations/Architecture Regulations is unsustainable.
29. As held above, the Conditions of Service of Union Territory of
Chandigarh Employees Rules, 1992 issued vide Notification dated
13.01.1992 (Annexure A-3) would not be applicable to the petitioners so far
as they are inconsistent with the Architecture Regulations, 2017 qua
petitioner No. 2 and AICTE Regulations qua other petitioners as they cease
to operate from the date the above Regulations came into effect
respectively. The action of respondents No. 4 to 7 retiring the petitioners at
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
20 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
CWP-20447-2020 21
the age of 60 years i.e. 58 years with 2 years extension by applying the
Conditions of Service of Union Territory of Chandigarh Employees Rules,
1992 as notified on 13.01.1992 (Annexure A-3) is illegal and thus set aside.
30. The writ petition stands allowed by setting aside the order
dated 29.09.2020/27.10.2020 (Annexure P-8) passed by the Central
Administrative Tribunal, Chandigarh Bench.
A direction is issued to the respondents to take back the
petitioners who have been forcibly superannuated by them by giving effect
to the 1992 Rules. They shall also be entitled to the all consequential
benefits. The consequential benefits be released to the said petitioners
within a period of two months from the date of receipt of certified copy of
the order.
(AUGUSTINE GEORGE MASIH)
JUDGE
( ASHOK KUMAR VERMA )
JUDGE
March 01, 2021
pj
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
For Subsequent orders see RA-CW-127-2021 Decided by HON’BLE MR. JUSTICE AUGUSTINE
GEORGE MASIH; HON’BLE MR. JUSTICE ASHOK KUMAR VERMA
21 of 21
::: Downloaded on – 24-08-2021 07:46:48 :::
Comments