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Thursday, July 25, 2013

the University Grants Commission Act, 1956, = whether certain regulations framed by the University Grants Commission had a binding effect on educational institutions being run by the different States and even under State enactments.= However, within this class of institutions there is a separate group where the State Governments themselves have taken a decision to adopt the scheme. In such cases, the consequences envisaged in the scheme itself would automatically follow. We, therefore, see no reason to interfere with the impugned judgment and order of the Division Bench of the High Court in all these matters in the light of the various submissions made on behalf of the respective parties. The several Appeals, Writ Petitions and the Transferred Case, which involve the same questions as considered in this batch of cases, are all dismissed. However, the Appeals filed by the State of Uttarakhand and Civil Appeals arising out of SLP(C) Nos. 6724, 13747 and 14676 of 2012 are allowed. As far as the Transfer Petition Nos. 1062-1068 OF 2012 are concerned, the same are allowed and the Transferred Cases are dismissed. The Contempt Petitions are disposed of by virtue of this judgment. However, persons who have continued to work on the basis of the interim orders passed by this Court or any other Court, shall not be denied the benefit of service during the said period. The Appeals and Petitions having been dismissed, both the State Authorities and the Central Authorities will be at liberty to work out their remedies in accordance with law.

                      reported in

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NOS.5527-5543 OF 2013
                      [@ SLP (C) Nos. 18766-18782/2010]

1 Jagdish Prasad Sharma etc. etc.    … Appellants


           2 State of Bihar & Ors.                    … Respondents


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                               J U D G M E N T


1.    Leave granted in the Special Leave  Petitions,  which  were  taken  up
along with the Writ Petitions and Transferred Cases,  as  they  all  involve
common questions of law and fact.

2.    The common thread running through all these  various  matters  is  the
question as to
whether certain regulations framed by the  University  Grants
Commission had a binding effect on educational  institutions  being  run  by the different States and even under State enactments.

3.    The University Grants Commission Act  was  enacted  by  Parliament  in
1956 inter alia with the object of making  provision  for  the  coordination
and determination of standards in Universities  and  for  that  purpose,  to
establish a University Grants Commission, hereinafter  referred  to  as  the
Under  the   University   Grants   Commission   Act,   1956,
hereinafter referred to as the “UGC Act”,
 the  Commission  is  required  to
take, in consultation with the Universities or other concerned  bodies,
such steps as it may  think  fit  for  the  promotion  and  coordination  of
University education and for the determination and maintenance of  standards
of teaching, examination and research in Universities.

4.    Section 12 of the UGC  Act  inter  alia  empowers  the  Commission  to
inquire into the financial needs of the Universities, allocate and  disburse
grants to Universities established or incorporated by  or  under  a  Central
Act, out of the Funds of the Commission for the maintenance and  development
of such Universities or for any other general  or  specified  purpose.
Commission was also empowered to allocate and disburse, out of  such  Funds,
such grants to other Universities, as it may deem necessary  or  appropriate
for  the  development  of  such  Universities  or  for  the  maintenance  or
development or for any other general or specified purpose.
 The  Commission
was further empowered to allocate and disburse, such grants to  institutions
deemed to be Universities, as it deemed necessary, for similar purposes.

5.    Section 25 of the UGC Act empowers  the  Central  Government  to  make
Rules to carry out the purposes of the Act by notification in  the  Official
Gazette,  with  regard  to  the  formation  and  the  functioning   of   the
Section  26  empowers  the  Commission  to  make   Regulations
consistent with the provisions of the Act and the Rules made thereunder,  by
notification in the Official Gazette inter alia in regard  to  defining  the
qualifications that should ordinarily  be  required  of  any  person  to  be
appointed to the teaching staff of  the  University  having  regard  to  the
branch of education in which he or she is required to give instructions  and
to define the minimum standards of instructions for the grant of any  degree
by any University.
In keeping with their  statutory  character,  the  Rules
and Regulations framed by the Central  Government  and  the  Commission  are
required to be placed before each  House  of  Parliament,  while  it  is  in
session, for a total period of 30 days.

6.    Section 20  of  the  UGC  Act,  particularly,  provides  that  in  the
discharge of its functions under the said  Act,  the  Commission  is  to  be
guided by such directions  on  questions  of  policy  relating  to  national
purposes, as may be given to it by the Central Government.

7.    On 24th December,  1998,  the  Commission  issued  a  Notification  on revision of pay scales, minimum qualification for  appointment  of  teachers in  Universities,  colleges  and  other  measures  for  the  maintenance  of standards. 
 In Clause 5 of the  Notification,  it  was  specified  that  the
Commission expected that the  entire  scheme  of  revision  of  pay  scales,
together with all conditions attached to it, would  be  implemented  by  the
State Governments, as a composite scheme without any  modifications,  except
for the date of implementation and the scales of pay, as  indicated  in  the
Government  of  India  Notifications   dated   27.7.1998,   22.9.1998,   and
Clause 16 of the Notification also indicated that  the  teachers
will retire at the age of 62 years, but it would be open to a University  or
a  college  to  re-employ  a  superannuated  teacher.  
 Subsequently,   the
Commission, in exercise of  the  powers  conferred  upon  it  under  Section
26(1)(e) and (f) of the UGC Act, framed  the  University  Grants  Commission
(Minimum Qualifications required for the appointment and career  advancement
of teachers in Universities and institutions affiliated to  it)  Regulation,
The said Regulation  does  not,  however,  provide  for  the  age  of

8.    On 23rd  March,  2007,  the  Government,  in  its  Ministry  of  Human
Resource  Development,  Department  of  Higher  Education,  wrote   to   the
Secretary of the Commission on the question of enhancement  of  the  age  of
superannuation  from  62  years  to  65  years  for  teaching  positions  in
Centrally funded institutions, in higher and technical  education.
In  the
said communication, it was mentioned that
at the time  of  revision  of  pay
scales of teachers in Universities and colleges, following the revision  of pay scales of Central Government employees, on the  recommendations  of  the
Fifth Central Pay Commission,  it  had  been  provided  inter  alia  in  the
Ministry’s letter dated 27th July, 1998 that the age  of  superannuation  of
teachers in University and schools would be 62  years  and,  thereafter,  no extension in service should be given.  
However, the power to  re-employ  the
superannuated teacher up to the age of 65  years  would  remain  open  to  a University or a college, according to the  existing  guidelines,  framed  by the Commission. 
 In the letter, it was also indicated that  the  matter  had
been reviewed by the Central  Government,  in  the  light  of  the  existing
shortage in teaching  positions  in  the  Centrally-funded  institutions  in
higher and technical education under the Ministry and, in that  context,  it
had been decided that the age of superannuation  of  all  persons  who  were
holding posts as on 15.3.2007, in any of the  Centrally  funded  higher  and
technical education under the Ministry, would stand increased from 62 to  65
 It was also decided  that  persons  holding  such  regular  teaching
positions, but had superannuated prior to 15.3.2007, on  attaining  the  age
of 62 years, but had not attained the age of 65 years, could be  re-employed
against vacant sanctioned teaching positions, till they attained the age  of
65 years, in accordance with the guidelines framed by  the  Commission.
was lastly  indicated  that  the  enhancement  of  retirement  age  and  the
provisions for  re-employment  would  only  apply  to  persons  in  teaching
positions against posts sanctioned in Centrally-funded higher and  technical
education institutions, in order to overcome the shortage of teachers.

9.    The most important development, at the  relevant  time,  however,  was
the issuance of a letter by the Central Government in its Ministry of  Human
Resource Development, Department of  Higher  Education,  to  the  Secretary,
University Grants Commission on 31st December, 2008, regarding a  scheme  of
revision of pay of teachers and other  equivalent cadres in all the  Central
universities and colleges and Deemed Universities,  following  the  revision
of pay scales of the Central Government employees on the  recommendation  of
the Sixth Central Pay Commission, subject to all  the  conditions  mentioned
in the letter and the Regulations.  The  State  Governments  were  given  an
option to adopt the scheme in its composite form.

10.   While generally dealing  with  matters  relating  to  appointment  and
promotion, it was reiterated that in order to  meet  the  situation  arising
out  of  shortage  of  teachers  in  Universities  and  in  other   teaching
institutions and the consequent vacant positions, age of  superannuation  of
teachers in Centrally-funded institutions had already been  enhanced  to  65
 It  was  mentioned  in  the  said  letter  that  after  taking  into
consideration the recommendations  made  by  the  Commission  based  on  the
decisions taken at its meeting, held on  7th  and  8th  October,  2006,  the
Government of India had decided to revise the pay scales of teachers in  the
Central Universities.  It was further stipulated that the  revision  of  pay
scales of teachers would be subject to various provisions of the  Scheme  of
revision of pay scales, as contained in the said letter and  Regulations  to
be framed by the Commission in this  behalf.   Paragraph  8  of  the  Scheme
deals with other terms and conditions, apart from  those  already  mentioned
and Clause (p)(i) thereof, which deals with the applicability of the  Scheme
and relevant for our purpose is extracted hereinbelow:
           “(p)  Applicability of the Scheme:

           (i)       This Scheme shall be applicable to teachers and  other
           equivalent cadres of Library and Physical Education in  all  the
           Central  Universities   and   Colleges   there-under   and   the
           Institutions  Deemed  to  be  Universities   whose   maintenance
           expenditure is met by the UGC. The implementation of the revised
           scales shall be subject to the acceptance of all the  conditions
           mentioned in this letter as well as Regulations to be framed  by
           the UGC in this behalf. Universities  implementing  this  Scheme
           shall be advised by the UGC to amend their relevant statutes and
           ordinances in line with the UGC Regulations within three  months
           from the date of issue of this letter.”

11.   Clause (p)(v) of the said paragraph, which  is  equally  relevant,  is
also extracted hereinbelow:
           “(p)(v) This Scheme may be extended  to  universities,  Colleges
           and other  higher  educational  institutions  coming  under  the
           purview of State legislatures, provided State  Governments  wish
           to adopt and implement the Scheme subject to the following terms
           and conditions:

           (a)   Financial assistance from the Central Government to  State
           Governments opting to revise pay scales of  teachers  and  other
           equivalent cadre covered under the Scheme shall  be  limited  to
           the extent of 80% (eighty percent) of the additional expenditure
           involved in the implementation of the revision.

           (b) The State Government opting for revision of pay  shall  meet
           the remaining 20% (twenty percent) of the additional expenditure
           from its own sources.

           (c) Financial assistance referred to  in  sub-clause  (a)  above
           shall be provided for the period from 1.01.2006 to 31.03.2010.

           (d)   The entire liability on account of revision of pay  scales
           etc. of university and college teachers shall be taken  over  by
           the State Government opting for  revision  of  pay  scales  with
           effect from 1.04.2010.

           (e) Financial assistance from the Central  Government  shall  be
           restricted to revision of pay scales in respect  of  only  those
           posts which were in existence and  had  been  filled  up  as  on

           (f) State Governments, taking  into  consideration  other  local
           conditions, may also decide in their  discretion,  to  introduce
           scales of pay higher than those mentioned in  this  Scheme,  and
           may give effect to the revised bands/ scales of pay from a  date
           on or after 1.01.2006; however, in such cases,  the  details  of
           modifications  proposed  shall  be  furnished  to  the   Central
           Government and Central assistance shall be restricted to the Pay
           Bands as approved by the  Central  Government  and  not  to  any
           higher scale of pay fixed by the State Government(s).

           (g) Payment of Central assistance for implementing  this  Scheme
           is also subject to the  condition  that  the  entire  Scheme  of
           revision of pay scales, together with all the conditions  to  be
           laid down by the UGC by way of Regulations and other  guidelines
           shall be implemented by State Governments and  Universities  and
           Colleges coming under their jurisdiction as a  composite  scheme
           without any  modification  except  in  regard  to  the  date  of
           implementation and scales of pay mentioned herein above.”

12.   Paragraph  8(f)  of  the  aforesaid  Scheme  deals  with  the  age  of
superannuation,  which  has  already  been  dealt  with  hereinbefore.    In
substance, it provides that in order to meet the situation  arising  out  of
shortage of teachers and also to attract people to the teaching  profession,
it had been decided to retain the services of teachers till the  age  of  65
years, as already intimated to all universities and colleges by  the  letter
dated 23.3.2007, issued by  the  Department  of  Higher  Education,  in  the
Ministry of Human Resource Development, Government of India.

13.   Following the recommendations of the Sixth Pay Commission,  the  Bihar
Legislature  passed  the   Bihar   State   Universities   (Amendment)   Act,
substituting Section 67 of the Bihar State Universities Act,  enhancing  the
age of superannuation to 62 years.  Since the  said  Amendment  also  has  a
definite bearing in the appeals filed by Prof. (Dr.) Jagdish Prasad  Sharma,
the amended provision, namely, Section 67(a) is extracted hereinbelow:

           “(a)  Notwithstanding anything to the contrary contained in  any
           Act, Rules, Statutes,  Regulation  or  Ordinance,  the  date  of
           retirement of a teaching employee of  the  University  or  of  a
           college shall be the date on which he attains the age  of  sixty
           two years.  The date of retirement of a teaching  employee  will
           be the same which would be  decided  by  the  University  grants

                 The date of retirement  of  non-teaching  employee  (other
           than the inferior servants)  shall  be  the  date  on  which  he
           attains the age of sixty two years:

                 Provided that the University shall, in no case, extend the
           period of  service  of  any  of  the  teaching  or  non-teaching
           employee after he attains the age of sixty two years as the case
           may be.

                 Provided further  also  that  re-appointment  of  teachers
           after retirement may be made in appropriate cases up to the  age
           of sixty five years in the manner laid down in the Statutes made
           in  this  behalf  in  accordance  with  the  guidelines  of  the
           University Grants Commission.”

14.   Similarly, Section 64(a) of the Patna University Act was also  amended
on similar basis.
Since the decision of  the  Ministry  of  Human  Resource
Development,  as  conveyed  in  its  letter  of  23.3.2007,  was  not  being
implemented, Writ Petitions, being CWJC Nos. 4823 and  5390  of  2008,  were
filed by some teachers seeking enhancement  of  the  age  of  superannuation
from 62 to 65 years, based upon the aforesaid decision of  the  Ministry  of
Human Resource Development.
 Both the Writ Petitions were dismissed  by  the
High Court on the ground that there was no conscious decision taken  by  UGC
with regard to teachers working in State Universities since the  enhancement
was confined to Centrally-funded Universities.

15.   On 3.10.2008, the Pay  Review  Committee  set  up  by  the  Commission
submitted its Report to the Commission  relating  to  the  revision  of  pay
scales of teachers,  qualification  for  appointment,  service  and  working
conditions  and  promotional  avenues  of  teachers  in   Universities   and
colleges,  and  at  clause  5.4.2,  it   recommended   that   the   age   of
superannuation throughout the country should  be  65  years,  whether  in  a
State or Central University, as also in a college or in  a  University.   In
its 452nd meeting, the Commission took a conscious decision and  recommended
the Report of the  Pay  Review  Committee  for  acceptance  by  the  Central
Government.  Pursuant  to  the  said  decision  and  recommendation  of  the
Commission, the Ministry of Human Resource Development  published  a  Scheme
on 31.12.2008, which has already been referred to hereinbefore.

16.   As no action was taken even  thereafter,  the  Appellants  filed  Writ
Petition, being CWJC No. 2330 of 2009, before the  Patna  High  Court.   The
said matter was heard along  with  several  other  similar  Writ  Petitions,
wherein claims were made by the Petitioners under the amended provisions  of
the Patna University Act and Bihar State Universities Act.

17.   On 6.10.2009, the learned Single Judge allowed the Writ Petitions  and
held that the State Government had no discretion as  they  were  statutorily
bound  by  the  decision  of  the  Commission  to   enhance   the   age   of
superannuation. Letters Patent Appeal No. 117 of 2010  and  other  connected
LPAs were filed by the State of Bihar challenging the aforesaid judgment  of
the learned Single Judge.  On 18.5.2010, a Division Bench of the Patna  High
Court allowed LPA No. 117 of 2010, filed by  the  State  of  Bihar.   It  is
against the said judgment of the Division  Bench  that  SLP(C)  Nos.  18766-
18782 were filed by the Appellants herein in June, 2010.  On 30.6.2010,  the
Commission framed the Regulations of 2010.

18.   This brings us to the substantial  challenge,  in  these  appeals  and
connected Writ Petitions and Transferred Cases,  as  has  been  set  out  in
paragraph 2 of the impugned judgment of the  Division  Bench  of  the  Patna
High Court, which is, whether in view  of  the  decision  contained  in  the
letter dated 31.12.2008  issued  by  the  Department  of  Higher  Education,
Ministry of Human Resource Development, Government of India, in the  context
of Section 64(a) of the Patna University Act, 1976 and Section 67(a) of  the
Bihar State Universities Act, the age of superannuation of teachers  working
in different Universities and  colleges  of  Bihar  would  automatically  be
enhanced to 65 years.  The focus is, therefore, on whether in  view  of  the
Scheme mentioned in  the  aforesaid  letter  of  31.12.2008,  not  only  the
Central Universities and colleges, which were bound by the UGC  Regulations,
but the different States and institutions situated therein  would  be  bound
to accept the Scheme, as set out in the said letter of 31.12.2008.   As  has
been mentioned hereinbefore, the  Scheme  envisaged  in  31.12.2008,  in  no
uncertain terms, indicates that in  case  the  State  Governments  opted  to
revise the pay scales of teachers and other equivalent cadres covered  under
the Scheme, financial assistance from the Central Government to  such  State
Governments would be to the extent of  80%  of  the  additional  expenditure
involved in the implementation of the revision.  The Scheme  also  indicates
that the State Government which opted for revision of pay scales would  have
to meet the remaining  20%  of  the  additional  expenditure  from  its  own
sources.  The third consideration is that such  financial  assistance  would
be  provided  for  the  period  from  1.1.2006  to  31.3.2010,   and   that,
thereafter, the entire liability on account of revision  of  pay  scales  of
the University and college teachers would have  to  be  taken  over  by  the
State Government with  effect  from  1.4.2010.   The  fourth  and  the  most
important condition  stipulated  by  the  Commission  was  that  payment  of
Central  assistance  for  implementing  the  Scheme  was  subject   to   the
conditions that the entire Scheme of revision of pay scales,  together  with
all the conditions to be laid down by the UGC, by  way  of  Regulations  and
other guidelines, would have to be implemented by the State  Government  and
Universities and Colleges coming under their jurisdiction,  as  a  composite
scheme, emphasis supplied, without any modification except in regard to  the
date of implementation  and  scales  of  pay  mentioned  hereinabove.   This
entailed and included the enhancement of age of such teachers to  65  years.
In other words, along with the enhancement of pay, of  which  80%  would  be
borne by the Commission, the other condition of the Commission was that  the
age of the teachers would be enhanced to 65 years, and that the balance  20%
of the expenditure would have  to  be  borne  by  the  State  from  its  own
resources till 31.3.2010, and, thereafter, the entire burden of  expenditure
would have to be borne by the State.

19.   It appears that the States of West  Bengal,  Uttar  Pradesh,  Haryana,
Punjab and Madhya Pradesh implemented the Scheme  without  waiting  for  the
UGC Regulations, which were framed  only  on  30.6.2010,  whereas  the  said
Scheme was implemented by the aforesaid States long before  the  said  date.
It is when the reimbursement of 80% of the expenses was sought for from  the
Central Government, that the problems  arose,  since  in  keeping  with  the
composite  scheme,  the  concerned  States  had  not  enhanced  the  age  of
superannuation simultaneously.  The Central Government took the  stand  that
since the Scheme in its composite form had not been given effect to  by  the
States concerned, the question of reimbursement of 80% of the  expenses  did
not arise.  This is one of the core issues, which has arisen in these  cases
for decision.

20.   The ripple effect of the stand taken by  the  Central  Government  was
felt all over the  country  and,  accordingly,  matters  were  moved  before
different High Courts which have  ultimately  come  up  to  this  Court  for
hearing on such common issues.

21.   The lead case, however, is that of Prof. (Dr.) Jagdish Prasad  Sharma,
who has moved against the judgment of the Division Bench of the  Patna  High
Court on several grounds, including the grounds indicated hereinabove.   One
of the other grounds taken as far as the Patna cases are  concerned,  is  in
regard to the interpretation of Section 64(a) of the Patna  University  Act,
1976, introduced by the Amendment Act of 2006,  and  Section  67(a)  of  the
Bihar  State  Universities  Act,  1976,  introduced  by  the   Bihar   State
Universities (Amendment) Act, 2006, which has been  reproduced  hereinabove.
Learned counsel for the Appellants has claimed that although  in  the  first
part of the two amended provisions, it has been indicated that the  date  of
retirement of a teaching employee of the University or college would be  the
date on which he attains the  age  of  62  years,  the  said  condition  was
purportedly watered down by the addition of the further condition  that  the
date of retirement of a teaching employee would be the same, which would  be
decided by  the  University  Grants  Commission  in  future.   It  has  been
contended that on a construction of the aforesaid  provision,  it  is  amply
clear that though when the amendment was effected it was  the  intention  of
the Legislature that the age  of  superannuation  should  be  62  years,  no
finality was attached to  the  same,  since  the  final  decision  regarding
superannuation lay with any decision that might be taken by  the  University
Grants Commission in future.  It has been contended that  since  a  decision
had been taken by the Ministry of Human Resource Development as far back  on
23.3.2007 to enhance the age of superannuation from 62 to  65  years,  which
was also subsequently recommended by the Commission in  its  452nd  meeting,
where a conscious decision was taken to implement  the  Report  of  the  Pay
Review  Committee  recommending  the  age  of  superannuation  to  65  years
throughout the country whether in a State or central University  or  whether
in a college or in a University, it was incumbent on  the  State  Government
to implement the said recommendation of the  University  Grants  Commission,
subsequently endorsed by the Department of  Higher  Education,  Ministry  of
Human Resource Development, Government of India.

22.   Appearing for the Appellants, Mr. Ajit  Kumar  Sinha,  learned  Senior
Advocate, submitted that Section 11 of the UGC Act provides that all  orders
and decisions of the Commission are to be authenticated by the signature  of
the Chairman.  It was submitted that Section 12 of the UGC Act made  further
provision that it would be the general duty of the Commission  to  take,  in
consultation with the University or other concerned bodies, all  such  steps
as it thought necessary for the promotion  and  coordination  of  University
education  and  for  the  determination  and  maintenance  of  standards  of
teaching,  examination  and  research  in  the  Universities.    Mr.   Sinha
submitted that it would thus be apparent  that  the  Commission  could  take
decisions which were independent of its power  to  frame  Regulations  under
Section 26 or to issue Notifications under Section 3 of the Act.  Mr.  Sinha
submitted that the State of Bihar was, therefore, bound to  acknowledge  the
age of superannuation as 65  years  with  effect  from  31.12.2010  for  the

23.   Mr. Ranjit Kumar, learned Senior Advocate, who  appeared  in  some  of
the matters, reiterated the submissions made by Mr. Sinha and  re-emphasized
the fact that  on  7.2.2011,  the  Government  of  Bihar  had  accepted  the
enhancement of age from 62 to 65 years for those  who  were  in  service  on
30.6.2010.  Mr. Ranjit Kumar submitted that the  judgment  of  the  Division
Bench impugned in these proceedings does not suffer from any infirmity  and,
therefore, did not warrant any interference.

24.   The next set of cases related to the State of  Kerala  with  Mr.  K.K.
Venugopal, learned Senior Advocate, appearing for the  Appellants  in  Civil
Appeals arising out of SLP(C) Nos. 12990-12992  of  2011.   Mr.  Venugopal’s
stand was different from those of  Mr.  Ajit  Kumar  Sinha  and  Mr.  Ranjit
Kumar,  learned  Senior  Advocates,  and  supported  the   action   of   the
Commission.  Mr. Venugopal submitted that the Kerala University  Act,  1974,
and the Mahatma Gandhi University Statutes, 1997, inter  alia  provided  for
the age of superannuation at 60 years.  In the affiliated colleges, the  age
of superannuation was fixed at 55 years.  Mr. Venugopal submitted  that  the
stand taken by the State of Kerala was a little  different  from  the  stand
taken by the other States, since there were a large number of qualified  and
eligible persons who were unemployed and were waiting  for  employment,  who
would ultimately fall prey to frustration if the services of those  who  had
superannuated at  the  age  of  62  years  were  to  be  continued,  thereby
depriving  eligible  candidates   waiting   to   be   employed.    In   such
circumstances, the State of Kerala was not interested in increasing the  age
of superannuation from 62 years to 65 years.  Referring  to  the  letter  of
the Ministry of Human  Resource  Development,  Government  of  India,  dated
31.12.2008,  Mr.  Venugopal   contended   that   in   all   Centrally-funded
institutions  a  general  direction  had  been  given  that   the   age   of
superannuation would be 65 years in place of 62 years.

25.    Mr.  Venugopal  further  urged  that  the  Regulations  made  by  the
Commission  were  applicable  to  Centrally-funded  institutions  and   also
included by reference the entirety of the Scheme of 31.12.2008, as  part  of
the  Regulations  and  made  it  applicable  to  State  institutions.    Mr.
Venugopal urged that the UGC Regulations  being  Central  legislation  under
Entry 66 List I of the Seventh Schedule  to  the  Constitution,  they  would
have primacy over the executive and State  laws  and  the  Government  Order
dated 10.12.2010 was liable to be struck down.

26.   While referring to the scope of  Entry  66,  List  I  of  the  Seventh
Schedule to the Constitution, Mr. Venugopal  referred  to  the  decision  of
this Court in the University of Delhi Vs. Raj  Singh  [(1994)  Suppl  3  SCC
516], wherein it was held that the Regulations  of  the  Commission  in  the
said  case  would  not  be  binding  on  the  University  of   Delhi   being
recommendatory and did not impinge upon the  University’s  power  to  select
its teachers.  However, if the  University  chose  not  to  accept  the  UGC
Regulations, it would lose its grant from the UGC.

27.   During the course of his submissions, Mr. Venugopal  referred  to  the
order issued by the  Government  of  Kerala  in  the  Higher  Education  (C)
Department on 10.12.2010 for implementation of the UGC Regulations  2010  on
minimum qualifications for appointment of teachers, other academic staff  in
Universities and colleges and measures for the maintenance of  standards  in
higher education.  The Government Order further  provided  that  the  matter
had been examined in detail and the Government was,  therefore,  pleased  to
approve  and  to  implement  the  Regulations  as  such.   The  Regulations,
therefore, were to come into force from  18.9.2010  on  the  date  of  their
publication in the Government of India Gazette.  All the  Universities  were
directed  to  incorporate  the  UGC  Regulations  in  their   Statutes   and
Regulations, within one month from the date of  the  Order.   Mr.  Venugopal
joined issue with the contents of paragraph  6  of  the  said  Order,  which
provides  that  where  there  were  any  provisions   in   the   Regulations
inconsistent with the provisions in the Government Order, read as the  first
paper, the said Government  Order  would  override  the  provisions  in  the
Regulations to the extent of such inconsistency.   Mr.  Venugopal  submitted
that executive directions cannot override the statutory  provisions  and  it
was the  statutory  provisions  which  would  prevail  over  such  executive
directions.  Consequently,  the  UGC  Regulations  would,  in  these  cases,
prevail over the Orders of the Executive government.   In  this  connection,
Mr.  Venugopal  referred  to  the  decision  of   this   Court   in   Paluru
Ramkrishnaiah Vs. Union of India [(1989) 2 SCC 541], wherein relying on  two
earlier decisions of this Court  in  B.N.  Nagarajan  Vs.  State  of  Mysore
[(1966) 3 SCR 682] and Sant Ram Sharma Vs. State of Rajasthan [(1968) 1  SCR
111], a Constitution Bench of this Court in Ramachandra Shankar Deodhar  Vs.
State of Maharashtra [(1974) 1  SCC  317],  held  that  in  the  absence  of
legislative Rules it was competent  for  the  State  Government  to  take  a
decision in the exercise of its executive power under  Article  162  of  the
Constitution.  Therefore, an  executive  instruction  could  make  provision
only for a matter which was not covered by  the  Rules  and  such  executive
instructions could  not  override  any  of  the  provisions  of  the  Rules.
Accordingly, the learned counsel submitted that the Government  Order  dated
10.12.2010 was liable to be struck down.

28.   Mr. Venugopal also referred to the decision of this Court in the  case
of the Gujarat University, Ahmedabad Vs. Krishna Ranganath  Mudholkar  [1963
Suppl 1 SCR 112], wherein it was inter alia observed as follows:
           “The State has the power to prescribe the syllabi and courses of
           study in the institutions named in Entry  66  (but  not  falling
           within entries 63 to 65) and as an incident thereof it  has  the
           power to indicate the medium  in  which  instruction  should  be
           imparted. But the Union Parliament has an overriding legislative
           power to ensure that the syllabi and courses of study prescribed
           and the medium selected do not impair standards of education  or
           render the co-ordination of such  standards  either  on  an  All
           India or other basis impossible or even difficult. Thus,  though
           the powers of the Union and of the State are  in  the  Exclusive
           Lists, a degree of overlapping is inevitable. It is not possible
           to lay down any general test which would afford a  solution  for
           every question which might arise on this head. On the' one hand,
           it is certainly within the province of the State Legislature  to
           prescribe syllabi and  courses  of  study  and,  of  course,  to
           indicate the medium or media of instruction. On the other  hand,
           it is also within the power of the Union to legislate in respect
           of media of  instruction  so  as  to  ensure  co-ordination  and
           determination of standards, that is  to  ensure  maintenance  or
           improvement of standards.  The  fact  that  the  Union  has  not
           legislated, or refrained from legislating to the full extent  of
           its powers does not invest the State with the power to legislate
           in respect of a matter  assigned  by  the  Constitution  to  the
           Union. It  does  not,  however,  follow  that  even  within  the
           permitted  relative  fields  there  might  not  be   legislative
           provisions in enactments made  each  in  pursuance  of  separate
           exclusive and distinct powers which  may  conflict.  Then  would
           arise the question of repugnancy and paramountcy which may  have
           to be resolved on the application of the "doctrine of  pith  and
           substance" of the impugned enactment. The validity of the  State
           legislation on University education and as regards the education
           in technical and  scientific  institutions  not  falling  within
           Entry 64 of List I would have to  be  judged  having  regard  to
           whether it impinges on the field reserved for  the  Union  under
           Entry 66. In other words,  the  validity  of  State  legislation
           would depend upon whether it prejudicially affects co-ordination
           and determination of standards, but not upon  the  existence  of
           some  definite  Union  legislation  directed  to  achieve   that
           purpose. If  there  be  Union  legislation  in  respect  of  co-
           ordination and  determination  of  standards,  that  would  have
           paramountcy over the State law by virtue of the  first  part  of
           Art. 254(1); even if that power be not exercised  by  the  Union
           Parliament  the  relevant  legislative  entries  being  in   the
           exclusive lists, a State law  trenching  upon  the  Union  field
           would still be invalid.”

      Mr. Venugopal, therefore, contended that  the  UGC  Regulations  would
have an overriding effect over the Government Order  dated  10.12.2010  and,
in any event, the U.G.C. could not abdicate its authority  regarding  higher
education to the States.

29.   Learned counsel appearing for the Appellants in Civil Appeals  arising
out of SLP (C) Nos. 10765-69  of  2011  and  learned  counsel  appearing  on
behalf of other Appellants, in relation  to  the  matters  relating  to  the
State of Kerala, adopted Mr. Venugopal’s submissions and it was pointed  out
by Mrs. V.P. Seemanthini that there was  a  marked  difference  between  the
2000 Regulations framed by the Commission and the subsequent Regulations  of
2010.  It was submitted by her that  while  the  2000  Regulations  did  not
provide for any age of superannuation, in the 2010 Regulations, there  is  a
mandate to the State Government to follow the same.

30.   However, appearing for the Appellants in Civil Appeal arising  out  of
SLP(C) No. 23275 of  2010,  Dr.  K.P.  Kylasanatha  Pillay,  learned  Senior
Advocate, took a different stand from that of  Mr.  Venugopal.   He  pointed
out that the Appellants were all Selection Grade Lecturers  and  Readers  of
Sree Narayana College, Kollam, an aided institution situated  in  the  State
of Kerala.  Referring to the Scheme formulated by  the  Central  Government,
which also included the question relating  to  age  of  superannuation,  Dr.
Pillay reiterated that in order to meet a situation arising out of  shortage
of teachers in Universities and other  teaching  institutions,  the  age  of
superannuation for teachers in Central educational institutions had  already
been enhanced to 65 years.  Dr.  Pillay  urged  that  the  benefits  of  the
package scheme which was implemented with effect from 1.1.2006, relating  to
enhancement of age of superannuation  to  65  years,  should  also  be  made
available to the Appellants.  Dr. Pillay  submitted  that  so  long  as  the
Appellants had been excluded from the Pay Revision of the State  Government,
as governed by the UGC Scheme, they had been  placed  in  a  disadvantageous

31.   Appearing  for  the  State  of  Kerala,  Ms.  Bina  Madhavan,  learned
Advocate, contended that under Article 309 of the  Constitution,  the  State
Government is empowered to frame its own Rules and Regulations in regard  to
service conditions of its employees.  Furthermore, Section 2 of  the  Kerala
Public Service Commission Act, 1968, empowers the State Government  to  make
Rules either prospectively or retrospectively to  regulate  the  recruitment
and conditions of service for persons appointed to the Public  Services  and
posts in connection with the affairs of the State of Kerala.   Ms.  Madhavan
submitted that under the Kerala Service Rules, 1958, enacted  by  the  State
Government under the proviso to Article 309 of the Constitution, the age  of
retirement  of  teachers  in  colleges  has  been  fixed  to  be  55  years.
Subsequently, however, by G.O.P. No.170/12/Fin. dated 22.3.2012, the age  of
compulsory  retirement  was  enhanced  to  56   years   and   the   age   of
superannuation has been enhanced to  60  years.   Ms.  Madhavan  urged  that
having regard to the UGC Regulations dated 30.6.2010, a decision  was  taken
to revise the scales of pay and other service conditions, including the  age
of superannuation in Central Universities and other institutions  maintained
and funded by the University Grants Commission, strictly in accordance  with
the decision of the Central Government.  However, the revised scales of  pay
and age of superannuation, as provided  under  paragraph  2.1.10  and  under
paragraph 2.3.1, will also be extended to Universities, colleges  and  other
higher educational institutions  coming  under  the  purview  of  the  State
legislature  and  maintained  by  the  State  Governments,  subject  to  the
implementation of the Scheme as a  composite  one  as  contemplated  in  the

32.   Ms. Madhavan contended that the State Governments were not  under  any
compulsion to adopt the UGC Scheme, but could do so if they wanted to.   Ms.
Madhavan  emphasized  that  neither  the  pay  scales   nor   the   age   of
superannuation  stood  revived  automatically,  without  the  Scheme   being
accepted by the State Government.  Ms. Madhavan also urged that  Section  26
of  the  University  Grants  Commission  Act,  1956,  which   empowers   the
Commission to make Regulations, does not authorize the  Commission  to  make
Regulations in regard  to  service  conditions  of  teaching  staff  in  the
Universities,  including  the  age  of  retirement.   According  to  learned
counsel, the role of the  UGC  is  only  to  prescribe  academic  standards,
qualifications required for the teaching staff,  facilities  required  in  a
higher education institutions, etc. Hence, it can  in  no  circumstances  be
contended that the rule making power  of  the  Commission  empowered  it  to
prescribe conditions of service in relation to State  Government  employees,
which is the prerogative of the State Government.

33.  Ms. Madhavan also  urged  that  in  its  affidavit  filed  in  SLP  (C)
No.10783 of 2011, the Commission had clearly stated that it  would  be  open
to the State Government or other competent authority to adopt  the  decision
or to take any decision as it  considered  appropriate  in  respect  of  the
superannuation  of  the  teachers  in   higher   and   technical   education
institutions under their purview,  with  the  approval  of  the  appropriate
competent authority.  As a result,  there  was  no  repugnancy  between  the
Regulations framed by the Commission and  the  Rules  framed  by  the  State
Government.  Referring to Section 20 of the UGC Act, Ms. Madhavan  contended
that the same provided that the Commission, in discharge  of  its  functions
under the Act, shall be guided by such directions  on  questions  of  policy
relating to national services,  as  may  be  given  to  it  by  the  Central
Government and if any dispute arose between the Central Government  and  the
Commission as to whether a question is or not a question of policy  relating
to national policy, the decision of the Central Government shall  be  final.
Ms. Madhavan also urged that the Central Government had by its letter  dated
14th August, 2012, clarified the position and had made  it  clear  that  the
question of enhancement of the age of retirement is exclusively  within  the
domain of the policy-making powers of the State  Governments  and  that  the
condition of enhancement of the  age  of  superannuation  to  65  years,  as
mentioned in the Ministry’s letter  dated  31.12.2008,  may  be  treated  as
withdrawn for the purpose of seeking reimbursement of the Central  share  of
arrears to be paid to the State University and College  teachers.  According
to Ms. Madhavan, the  Central  Government  had  itself  clarified  that  the
Scheme is not a composite one and the word ‘composite’  is  with  regard  to
financial  assistance  provided  by  the  Central  Government  and  was  not
connected with the  age  of  superannuation  which  was  incidental  to  the

34.   The other learned counsel appearing  for  the  different  Universities
and educational institutions generally adopted Mr. Venugopal’s  submissions,
but while doing so, added one or two points of their own.

35.   Mr.  S.R.  Singh,  learned  Senior  Advocate,  who  appeared  for  the
Appellants in Civil  Appeal  arising  out  of  SLP  (C)  No.16523  of  2011,
reiterated Mr. Venugopal’s submissions relating  to  Entry  66  List  I  and
Entry 25 in List III and urged that the powers under Entry 66  List  I  were
vested in the Central Government and  could  not  be  sub-delegated  to  the
States under Entry 25 in List III, which, in any event, was not  permissible
in law.  Mr. Singh contended that the same would be evident on a reading  of
Section 12(j)  and  Section  27  of  the  UGC  Act,  1956,  which  made  the
Commission the repository of  powers  for  advancing  the  cause  of  higher
education in India.

36.    Mr. S. Chandra  Shekhar,  learned  Advocate,  who  appeared  for  the
University in Civil Appeal arising out of SLP(C) No.16523 of 2011 and  other
batch matters, urged that the University Statutes provided 62 years  as  the
age of superannuation and there was no right  available  to  the  Appellants
which could be enforced by a writ of mandamus.   Mr.  Chandra  Shekhar  also
submitted  that  the  Commission  had  no  power  to  enhance  the  age   of
superannuation as a condition of service.

37.     Mr.  P.S.  Patwalia,  learned  Senior  Advocate,  who  appeared   in
SLP(C)Nos.9198-9221/2011 and other matters relating to the State  of  Punjab
and the Union  Territory  of  Chandigarh,  while  adopting  Mr.  Venugopal’s
submissions regarding the binding nature  of  the  UGC  Regulations,  relied
upon the Constitution Bench decision of  this  Court  in  the  case  of  Dr.
Preeti Srivastava Vs. State of M.P. [(1999)  7  SCC  120],  wherein  it  was
observed that when there was  an  existing  Central  legislation,  the  same
would be binding in the absence of any  other  legislation  by  the  States.
Mr. Patwalia also urged that the Scheme was a composite scheme and ought  to
have been accepted in its totality and  despite  the  fact  that  the  State
Government had accepted the grant of 80% of the expenses, which was part  of
the composite scheme, it ought to have also accepted the other part  of  the
Scheme relating to enhancement of the  age  of  teachers  in  the  different
Universities in Punjab, from 62 to 65 years.  By not  doing  so,  the  State
had caused severe prejudice to the teachers who would  have  otherwise  been
entitled to retire at the age of 65 years and not 62  years.   Mr.  Patwalia
submitted a copy of the Report of the Task Force  on  Faculty  Shortage  and
Design of Performance Appraisal System published by the  Ministry  of  Human
Resource Development, Government of India, in July, 2011,  and  pointed  out
that generally across the country on an average about 35% of  the  posts  of
teachers in the different  Universities  and  Colleges  were  lying  vacant,
which was  one  of  the  reasons  for  the  deterioration  of  standards  of
education  across  the  board.   Mr.  Patwalia  urged  that  the   aforesaid
vacancies would indicate that there was an urgent need  for  appointment  of
teachers  in  the  different  schools  and  colleges  across  the   country,
including the State of Punjab.

38.    The same sentiments were expressed by  Dr.  Aman  Hingorani,  learned
Advocate appearing in Civil Appeal arising out of SLP(C)  No.7392  of  2011.
Dr. Hingorani reiterated  Mr.  Patwalia’s  submissions  that  the  composite
scheme as offered by the University Grants Commission could not be split  in
two  by  the  States,  and  independent  of  the  control  of  the   Central
Government, the College in question has to abide by the UGC  Regulations  as
the same was funded by the Commission. Dr. Hingorani  also  urged  that  the
Appellant, Susan Anand, was made to retire at the age of 60  while  the  UGC
Notification provided that the age of  superannuation  would  be  62  years.
Dr. Hingorani urged that as was held by this Court in Pavai Ammal  Vaiyapuri
Education Trust Vs. Government of Tamil Nadu [(1994) 6 SCC 259],  since  the
institution accepted the UGC Regulations,  it  came  under  its  discipline,
which fact had not been taken into consideration in  B. Bharat Kumar &  Ors.
Vs Osmania University & Ors. [(2007) 11 SCC 58].  Dr. Hingorani  also  urged
that though  the  Appellant’s  SLP  was  dismissed  and  the  Appellant  had
attained the age of superannuation, under the orders of the High Court,  she
was allowed to rejoin her duties in the college. It was submitted  that  her
case was required to be treated separately from the  others  on  account  of
the special facts involved and that having continued in  service  by  virtue
of the Court’s orders, she was entitled to the benefits of  any  order  that
may be passed in favour of enhancement of the age of superannuation from  62
to 65 years.

39.   Appearing for  the  State  of  Haryana,  Dr.  Monika  Gosain,  learned
Advocate, restated what had been stated by the other  learned  counsel  that
the State of Haryana was not bound by the UGC scheme as it had not  accepted
the  “composite  scheme”  of  the  Commission.  Supplementing  Dr.  Gosain’s
submissions, Mr. P.S. Patwalia, learned Senior Advocate, appearing  for  the
State of Punjab, submitted that the letter from the Government of  India  to
all the States made it clear that unless the composite scheme as offered  by
the UGC was accepted, the payment of money under the  Scheme  would  not  be
forthcoming.  It was, however, submitted that in some cases, the  Government
of Haryana had voluntarily enhanced the age of superannuation  to  65  years
and notified to the colleges recognized under Section 2(f).

40.   As far as the Civil Appeal arising out of SLP(C)No.1631  of  2012  and
four  connected  matters  are  concerned,  Mr.  C.S.N.  Mohan  Rao,  learned
Advocate, appearing for the Appellants, adopted the submissions made by  Mr.
K.K. Venugopal and reiterated the position that despite having accepted  the
composite package, the State had not accepted the enhancement  of  age  from
62 to 65 years, causing  severe  prejudice  to  the  Appellants  and  others
similarly situated.

41.   Similarly, Ms. Aishwarya Bhati, learned Advocate,  appearing  for  the
Appellants in Civil Appeals arising out of  SLP(C)  Nos.6915-6923  of  2012,
adopted Mr. Venugopal’s submissions and also relied on the decision  in  the
case of B. Bharat Kumar (supra). Ms. Bhati submitted that on behalf  of  the
State of Rajasthan a letter had been written to the  Registrar  of  all  the
Universities in the State of  Rajasthan,  indicating  that  considering  the
huge problem of unemployment of youth in the State, the  State  had  decided
not to increase the age of superannuation of teachers beyond 60 years.   Ms.
Bhati  referred  to  the  Report  of  the  Chaddha  Committee,  wherein  the
aforesaid stand had been refuted and the  said  Committee  recommended  that
the age of superannuation of teachers should be 65 years on a uniform  basis
throughout the country, whether working in a State or Central University  or
College. Learned counsel urged that the benefits which  had  been  conferred
by  the  UGC  Regulations,  could  not  be  taken  away  by   a   subsequent
legislation.  In the other cases relating to the  State  of  Rajasthan,  the
Petitioner adopted not only Mr.  Venugopal’s  submissions,  but  also  those
made by Ms. Bhati.

42.   Learned counsel appearing in  Civil  Appeals  arising  out  of  SLP(C)
Nos.18218-18226 of 2012 and 21396 of 2012  from  Odisha,  also  adopted  the
submissions made by Mr. K.K. Venugopal and submitted  that  the  UGC  scheme
having been conceived under Entry 66, List I of the Seventh Schedule to  the
Constitution, would have an overriding effect over the State legislation.

43.   Mr. Dinesh Dwivedi, learned Senior  Advocate,  who  appeared  for  the
State of Uttrakhand, submitted that  the  conditions  of  service  in  State
universities could not be controlled by  the  University  Grants  Commission
and even on receipt of 80% of the expenses to be incurred  by  the  Colleges
the State’s powers under the statutes  were  not  taken  away.   Mr.  Dinesh
Dwivedi submitted in detail with regard to the  ramifications  of  Entry  66
List I as also Entry 11 of List II prior  to  the  42nd  Amendment  and  its
substitution by way of Entry 25 in List III.  The  ultimate  result  of  Mr.
Dwivedi's submission is that the statute does not use  two  different  words
to denote the same thing.  Besides the language in the Constitution  has  to
be understood in a common sense way and in common parlance, as was  observed
in the case of Synthetic and Chemicals Ltd. & Ors. Vs. State of U.P. &  Ors.
[(1990) 1 SCC 109].  Learned counsel also  submitted  that  in  the  present
case,  when  the  dominant  Legislature  has  legislated,   any   incidental
encroachment has to give way.  Moreover, no incidental or  ancillary  powers
could be read into Entry 66 as Entry 32 was  already  occupying  the  filed.
Mr. Dwivedi submitted that the 2000 Regulations framed by the UGC  were  not
applicable to  the  Pant  Nagar  University,  since  being  an  agricultural
institution, the standards and norms of the Indian Council  of  Agricultural
Research would apply.  Mr. Dwivedi lastly contended that in  regard  to  the
provisions of Secions 12, 14, 25 and 26 of the UGC Act, the said  provisions
could not be read so widely as to enable the Commission to ride  rough  shod
over the State laws.  Mr. Dwivedi submitted that the regulations, in so  far
as  they  seek  to  prescribe  conditions  of  service,  including  age   of
retirement, are illegal and beyond the legislative powers of  the  Union  or
the Commission, in the event they relate to the teachers and  staff  of  the
State university and institutions.  The 2010 Regulations as  framed  by  the
UGC could not, therefore, be enforced on unwilling States  in  view  of  the
federal structure of our Constitution.

44.   Mr. R. Venkataramani, learned Senior Counselm  who  appeared  for  the
Babajan Badesab Nandyal and others, the Appellants in Civil Appeals  arising
out of SLP(C) Nos.32748-762 of 2011, submitted  that  the    impugned  order
was contrary to the law as laid down by this Court in the case of  Annamalai
University Vs. Secretary to  Govt.  Information  and  Tourism  Department  &
Ors.[(2009) 4 SCC 590] and the University  of  Delhi  Vs.  Raj  Singh  [1994
Supp. 3 SCC 516], in which this Court had held that the  provisions  of  the
UGC Act were binding on all the Universities and the Regulations  framed  by
the UGC in terms of clauses (e), (f), (g) and  (h)  of  sub-section  (1)  of
Section 26 which were of wide amplitude and were mandatory  in  nature.   He
also urged that the Division Bench of the High Court had  failed  to  notice
that the Government of India letter dated 31.12.2008 had  been  included  as
'Appendix-I' to the UGC Regulations, 2010, which made  the  Scheme  provided
therein as statutory and binding.  It was also urged  that  the  High  Court
had not really considered the provisions of Section 26(g) of the  above  Act
which empowered the Commission to regulate the maintenance of standards  and
the coordination of work or facilities  in  Universities.   Learned  counsel
submitted  that  all  factors  relevant  for  the  purpose  of   nourishing,
sustaining and enhancing the quality of human resource have been duly  taken
note of by the Commission.  Mr. Venkataramani submitted  that  the  question
of fixing the date of retirement of a teacher  were  restricted  within  the
framework of University  legislation,  since  the  age  of  retirement   was
intrinsically related to establishment and realization  of  higher  standard
and quality of imparting eduction and could not  be  confined  to  parochial
aspirations.  Mr. Venkataramani submitted that the  UGC  Regulations,  2010,
are binding on the State Governments and the  Universities  to  enhance  the
age of superannuation of teachers to 65 years.  Relying on the  decision  of
this Court in the  Annamalai  University  case  (supra),  Mr.  Venkataramani
urged that the provisions of the UGC Act were binding on  all  Universities,
whether  conventional  or  open.   It's  powers  are  very  broad  and   the
Regulations framed by it under Section 26 were of wide  amplitude  and  even
as subordinate legislation they became part  of  the  UGC  Act  having  been
validly made.  Learned counsel also referred to the decision of  this  Court
in Prem Chand Jain Vs. R.K. Chhabra [(1984) 2 SCC 302], wherein  this  Court
held that it was  well  settled  that  entries  incorporated  in  the  Lists
covered by Schedule Seven are not powers  of  legislation,  but  “field”  of

45.   In Civil Appeal arising out of SLP(C) No.36126  of  2011,  Mr.  Jagjit
Singh Chhabra, learned Advocate appearing for the State of Punjab,  referred
to the letter dated 23.3.2007 written on behalf of the Government  of  India
to the Commission regarding enhancement of the age of the teachers  from  62
to 65 years and urged that the said Scheme was voluntary and not binding  on
the State and that when a sufficient number of teachers were  available,  it
would be counterproductive to insist that the State should be  compelled  to
accept the UGC’s option in its totality when the same has been left  to  the
discretion of the State by the Regulations themselves.   Mr.  Chhabra  urged
that the conditions of service  of  teachers  in  a  State  were  completely
within the jurisdiction of the State and  such  jurisdiction  could  not  be
overridden by the UGC Regulations, without the consent of the State.

46.   In reply to the submissions made on behalf of the Petitioners and  the
Appellants in these cases, Mr.  Rakesh  Dwivedi,  learned  Senior  Advocate,
appearing for the UGC, submitted  that  after  the  letter  written  by  the
Central  Government  on  27.7.1998,  informing  the  States  regarding   the
revision of pay scales and the provision  of  financial  assistance  to  the
extent of 80% of the additional  expenditure  for  the  period  1.1.1996  to
31.3.2000, whereafter the entire liability would have to be  taken  over  by
the State Governments, it was upto the State Governments  to  take  recourse
to the scheme as framed.  By another letter dated  27.7.1998,  the  UGC  was
informed that the Central Government had revised the pay scales of  teachers
in the Central Universities on the recommendations of UGC  that  the  scheme
was of a composite nature and all the conditions of the  scheme  would  have
to be fulfilled if the States were  to  avail  of  the  offer  of  financial
assistance to the extent of  80%  of  the  additional  expenditure  for  the
period indicated hereinabove.  However, although, the State  of  Kerala  had
issued an order dated 21.12.1999,  accepting  the  revised  pay  scales,  it
continued to adopt the existing Rules of the State Government,  wherein  the
age of retirement remained 55 years. Mr. Dwivedi reiterated  that  following
the  recommendations  of  the  5th  Central  Pay  Commission,  the   Central
Government  had,  by  its  order  dated  23.3.2007,  revised  the   age   of
superannuation of teachers to 65 years and even reemployment  was  permitted
upto the age of 70 years.  The only catch was that such change  would  apply
to centrally-funded higher and  technical  educational  institutions  coming
under the purview of the Ministry of  Human  Resource  Development  and  the
Notification would be issued by the Commission.

47.   While reiterating the submissions made on behalf  of  the  Petitioners
relating to the UGC Regulations,  2010  and  Clause  2.1  of  the  Annexures
thereto, Mr. Dwivedi urged that the provisions of the UGC Act,  particularly
Section 12 thereof, are not confined to coordination  and  determination  of
standards in institutions for higher education and  research  but  that  the
powers vested in the Commission contemplated a larger role in regard to  the
promotion  of  university  education.   It  was  further  urged   that   the
Commission was empowered to give grants,  as  it  might  deem  necessary  or
appropriate, for the development of Universities and  could  also  recommend
measures necessary for their improvement.  Mr. Dwivedi  contended  that  the
UGC Act is not entirely confined to Entry  66,  List  I,  but  it  was  also
entitled to act under Entry  25  of  the  Concurrent  List  of  the  Seventh
Schedule to the Constitution.  Mr. Dwivedi urged that since  Parliament  was
competent to legislate both in terms of Entry 66, List I and Entry 25,  List
III, it could invoke both the fields of legislation.  Mr. Dwivedi  submitted
that a competent legislature could draw sustenance from more than one  entry
while legislating.  However, the aforesaid question was not required  to  be
gone into since the Commission had made an offer in the  Scheme,  which  was
left to the State to adopt or not to adopt.  Mr. Dwivedi  further  submitted
that with regard to the Concurrent field, there was no compulsion either  on
the  Parliament  or  the  authority  created  under  Central   Statutes   to
exhaustively legislate or to exercise the enabling power with regard to  the
Concurrent field. It would be open  to  the  Parliament  or  the  Commission
either to enforce a particular scheme in the State  or  leave  it  open  for
them to adopt the scheme through their laws and executive  orders.  In  such
cases, the State Governments and State Legislatures exercise plenary  powers
to decide whether the  Scheme  was  to  be  adopted  or  not.   Mr.  Dwivedi
submitted that it is also settled law that  unless  the  enabling  power  is
completely expanded, the legislative field in the  Concurrent  List  remains
available to the States.

48.   Mr. Dwivedi further urged that  different  legislations  by  different
States are inherent  in  a  federal  exercise  of  power.   The  differences
arising as a result of federal distribution of  power  by  the  Constitution
and exercise of  such  power  by  States,  cannot  be  a  ground  to  allege
discrimination.  As was held in S.R. Bommai Vs. Union  of  India  [(1994)  3
SCC 1], federalism is a basic feature of the Constitution.  In  the  present
case, the UGC Act and the Regulations of 2010 and the Scheme of the  Central
Government have been made applicable to all the States uniformly.  In  fact,
no age of retirement has also  been  fixed  by  the  Commission.   Even  for
Central Universities, the pay  scales  have  been  revised  by  the  Central
Government and the age of superannuation has been revised  to  65  years  by
the  said  Government.   The  Scheme  was  also  finalized  by  the  Central
Government and it was also the decision of the Central Government  that  the
State should take their own decisions as to whether the Scheme  prepared  by
it should be adopted.  Mr. Dwivedi reiterated that the  UGC  Regulations  of
2010 have notified the Scheme of the Central  Government  and  it  has  been
left to the discretion of the State Governments to adopt  or  not  to  adopt
the same for its Universities, colleges and other  institutions.   The  only
challenge which had occurred is the order of the  Central  Government,  vide
its letter dated 14.8.2012, in its Ministry of Human  Resource  Development,
which delinked the financial assistance from the requirement  to  adopt  the
Central Scheme.  The Central Government took a decision that the  discretion
of the State Government should not be  fettered  by  the  extension  of  the
financial incentive.  Accordingly,  any  difference  which  might  arise  on
account of any decision of the State Government would be on account  of  the
federal scheme of the Constitution  and  not  on  account  of  any  decision
either of the Central Government or the Commission.

49.   Mr. Dwivedi submitted that the cases relied upon  by  the  Petitioners
and Appellants were all based on geographical discrimination, which  had  no
bearing with the facts of these cases  and  neither  the  UGC  Act  nor  the
Regulations of 2010, nor the Scheme of the Central Government, suffers  from
any such infirmity.  In this regard, Mr. Dwivedi  also  placed  reliance  on
the decision of this Court in T.P. George Vs State of Kerala [1992 Supp  (3)
SCC 191] and in the All India  Sainik  Schools  Employees’  Association  Vs.
Defence Minister-cum-Chairman Board of Governors,  Sainik  Schools  Society,
New Delhi [1989 Supp 1 SCC 205].  Learned counsel submitted that each  State
has its own sovereign plenary power with respect to its  territory  and  the
laws of one State could not be held to be discriminatory with  reference  to
laws of another State.  In this regard, Mr. Dwivedi referred to  and  relied
upon the decision of this Court in Javed Vs. State of Haryana [(2003) 8  SCC
369], where the  said  principle  was  considered  and  the  application  of
Article 14 of the Constitution was negated.

50.   Mr. Dwivedi concluded on the note  that  the  age  of  retirement  has
varied from State  to  State  in  respect  of  public  employment  in  State
services and this Court has always upheld the power of the State to fix  the
age of superannuation in the light of conditions  prevalent  in  the  States
and the  provision  of  jobs  to  youth  has  been  upheld  to  be  a  valid
consideration, as in the State of Kerala.

51.   On behalf of Govind Ballabh  Pant  University  in  SLP(C)  No.8153  of
2012, Mr. Vijay Hansaria, learned Senior Advocate,  submitted  that  Section
28(r) of the UGC Act permits the University to frame Rules  with  regard  to
service conditions of its staff, including the Rules for retirement.   Apart
from the above, it was also pointed out that the grants which  are  received
by the University are not from the UGC,  but  from  the  Indian  Council  of
Agricultural Research (ICAR).

52.    Lastly, coming to the submissions made on  behalf  of  the  State  of
Rajasthan and the State of U.P., on behalf of both the States it was  sought
to be urged that the UGC Regulations could not  control  the  power  of  the
State Governments and/or the service conditions  of  its  employees  as  the
same are to be exclusively decided by the Union or the  State,  as  provided
in Article 309 of the Constitution.  It was submitted that it had also  been
held in the Osmania University case (supra) that the fixation of the age  of
superannuation by the State Government is well within its  jurisdiction  and
neither the Scheme of the Central Government nor the  UGC  Regulations  have
any binding effect.

53.   Though, at first blush, the scope of the appeals seemed to be  limited
and confined to the question as to whether the  Regulations  framed  by  the
University Grants Commission under  Section  26  of  the  University  Grants
Commission Act, 1956, were binding on the States and State-funded and  other
Universities and colleges being run  therein,  as  the  hearing  progressed,
several other ancillary issues also came to be raised.

54.   As has been indicated hereinbefore,  the  Central  Government  enacted
the UGC Act in 1956 to coordinate and determine  standards  in  universities
and towards that end,  to  establish  a  University  Grants  Commission  for
taking all steps, as  it  thought  fit,  for  the  promotion  of  university
education and for determination and maintenance  of  standards  of  teaching
and research in  universities.   On  24th  December,  1998,  the  Commission
issued a Notification relating to revision of pay scales and  other  service
conditions.   Thereafter,  after  the  expressions  of  a  series  of  views
regarding the enhancement of the age of superannuation from  60  to  62  and
from 62 to 65 years, the Central Government  in  its  Department  of  Higher
Education, wrote to the Secretary, UGC, on 31st December, 2008, with  regard
to a scheme for revision of pay-scales  of  teachers  and  other  equivalent
cadres  in  all  the  Central   universities   and   Colleges   and   Deemed
Universities,  following  the  revision  of  pay  scales  of   the   Central
Government  employees  on  the  recommendation  of  the  Sixth  Central  Pay

55.   One of the common submissions made on behalf of  the  Respondents  was
whether the aforesaid scheme would automatically apply  to  centrally-funded
institutions, to State universities and educational  institutions  and  also
private institutions at the State level, on account of the stipulation  that
the scheme would  have  to  be  accepted  in  its  totality.   As  indicated
hereinbefore in this judgment, the purport of the scheme was to enhance  the
pay of the teachers and other connected staff in the State universities  and
educational institutions and also to increase their  age  of  superannuation
from 62 to 65 years.  The scheme provides that if it  was  accepted  by  the
concerned State, the UGC would bear 80% of the expenses on account  of  such
enhancement in the pay structure and the remaining  20%  would  have  to  be
borne by the State.  This would  be  for  the  period  commencing  from  1st
January, 2006, till 31st March, 2010, after which the  entire  liability  on
account of revision of pay-scales would have to be taken over by  the  State
Government.  Furthermore, financial assistance from the  Central  Government
would be restricted to revision of  pay-scales  in  respect  of  only  those
posts which were in existence and had been filled  up  as  on  1st  January,
2006.  While most of the States were willing to adopt the  scheme,  for  the
purpose of receiving 80% of the salary of the teachers and other staff  from
the UGC which would reduce their liability to 20% only, they were  unwilling
to accept  the  scheme  in  its  composite  form  which  not  only  entailed
acceptance of the increase in the retirement age from 62 to  65  years,  but
also shifted the total liability in regard  to  the  increase  in  the  pay-
scales to the States, after 1st April, 2010.

56.   Another anxiety which is special to certain States, such as the  State
of Uttar Pradesh and Kerala, has also come to light during the hearing.   In
both the States,  the  problem  is  one  of  surplus-age  and  providing  an
opportunity for others to enter into service.  On behalf  of  the  State  of
Kerala, it had been  urged  that  there  was  a  large  number  of  educated
unemployed youth,  who  are  waiting  to  be  appointed,  but  by  retaining
teachers  beyond  the  age  of  62  years,  they  were  being  denied   such
opportunity.  As far as the State of U.P. is concerned, it  is  one  of  job
expectancy, similar to that prevailing in Kerala.  The State Governments  of
the said two States were, therefore, opposed to  the  adoption  of  the  UGC
scheme, although, the same has not been made compulsorily applicable to  the
universities, colleges and other  institutions  under  the  control  of  the
State authorities.

57.   To some extent there is an air of redundancy in the  prayers  made  on
behalf  of  the  Respondents  in  the   submissions   made   regarding   the
applicability of the scheme to the State and its universities, colleges  and
other educational institutions.  The elaborate arguments advanced in  regard
to the powers of the UGC to frame such  Regulations  and/or  to  direct  the
increase in the age  of  teachers  from  62  to  65  years  as  a  condition
precedent for receiving aid from the UGC, appears to have  little  relevance
to the actual issue  involved  in  these  cases.   That  the  Commission  is
empowered to frame Regulations under Section 26 of the UGC  Act,  1956,  for
the  promotion  and  coordination  of  university  education  and  for   the
determination and maintenance of  standards  of  teaching,  examination  and
research, cannot  be  denied.   The  question  that  assumes  importance  is
whether in the process of framing such  Regulations,  the  Commission  could
alter the service conditions of the employees which were entirely under  the
control of the States in regard to State  institutions.   The  authority  of
the Commission to frame Regulations with regard to  the  service  conditions
of teachers in the centrally- funded  educational  institutions  is  equally
well established.  As has been very rightly done in the  instant  case,  the
acceptance of the scheme  in  its  composite  form  has  been  left  to  the
discretion of the State Governments.  The concern of the  State  Governments
and  their  authorities  that  the  UGC  has  no  authority  to  impose  any
conditions  with  regard  to  its  educational   institutions   is   clearly
unfounded.  There is no doubt that the Regulations framed by the UGC  relate
to Entry 66 List I of the  Constitution  in  the  Seventh  Schedule  to  the
Constitution, but it does not empower the Commission to  alter  any  of  the
terms and conditions of the enactments by the States under  Article  309  of
the Constitution.  Under Entry 25 of List III,  the  State  is  entitled  to
enact its own laws with regard to the service  conditions  of  the  teachers
and other staff of the universities and colleges within the  State  and  the
same will have effect unless they are repugnant to any central  legislation.

58.   However, in the  instant  case,  the  said  questions  do  not  arise,
inasmuch as, as mentioned hereinabove, the acceptance of the scheme  in  its
composite  form  was  made  discretionary  and,  therefore,  there  was   no
compulsion on the State and  its  authorities  to  adopt  the  scheme.   The
problem lies in the desire of the State and its Authorities  to  obtain  the
benefit of 80% of the salaries of the teachers and  other  staff  under  the
scheme, without increasing the age of retirement from 62  to  65  years,  or
the subsequent condition regarding the taking over of the  scheme  with  its
financial implications from 1st April, 2010.

59.   As far as the States of Kerala  and  U.P.  are  concerned,  they  have
their own problems which are localised and  stand  on  a  different  footing
from the other States, none of whom who appear to  have  the  same  problem.
Education now being a List III subject, the State Government is  at  liberty
to frame its own laws relating  to  education  in  the  State  and  is  not,
therefore, bound to accept or follow the Regulations framed by the UGC.   It
is only natural that if they wish to adopt the  Regulations  framed  by  the
Commission under Section 26 of the UGC Act, 1956, the States  will  have  to
abide by the conditions as laid down by the Commission.

60.   That leaves us with the question which is  special  to  the  State  of
Bihar, i.e., the effect of Section 67(a) introduced  into  the  Bihar  State
Universities Act, 1976, by the Bihar  State  Universities  (Amendment)  Act,
2006, and the corresponding amendments made in  the  Patna  University  Act,
1976.  Section 67(a)  has  been  extracted  hereinbefore  in  Paragraph  13.
While, on the one hand, it has been mentioned that notwithstanding  anything
to the contrary  contained  in  any  Act,  Rules,  Statutes,  Regulation  or
Ordinance, the date of retirement of a teaching employee of  the  university
or of a college shall be the date on which he attains the age of  62  years,
the confusion is created by the next sentence which  further  provides  that
the date of retirement of a teaching employee would be the same which  would
be decided by the UGC.  It has been urged that the  said  provision  clearly
contemplates that in the event of  an  alteration  resulting  in  an  upward
revision of the age of superannuation, the same  would  automatically  apply
to all such teachers and staff, without any further decision  of  the  State
and its authorities in that regard.  In other words, what  has  been  sought
to be urged  is  that  when  in  regard  to  Centrally-funded  universities,
colleges and educational institutions, the age of  superannuation  has  been
increased to 65 years by the University Grants Commission, the same  has  to
uniformly apply to all universities and  colleges  throughout  the  country,
without any discrimination.  The  same  did  not  necessitate  any  separate
decision to be  taken  by  the  State  and  its  authorities  regarding  the
applicability of the decision taken by the University Grants Commission.

61.   The said submission, in our view, is not acceptable on account of  the
fact  that  in  the  first  paragraph  of  the  said  Section  it  has  been
categorically stated that the age of superannuation would be 62 years.   The
second paragraph of the said section makes it even more  clearer,  since  it
reiterates that the date of  retirement  of  non-teaching  employees,  other
than the inferior servants, shall be the date on which he  attains  the  age
of 62 years.  The first proviso also indicates that  the  university  shall,
in no case, extend the period of service of any  of  the  teaching  or  non-
teaching employee after  he  attains  the  age  of  62  years.   The  second
proviso, however,  states  that  even  after  retirement,  teachers  may  be
reappointed in appropriate cases up to the age of 65  years  in  the  manner
laid down in the Statutes  made  in  this  behalf  in  accordance  with  the
guidelines of the Commission.

62.   As against the above, certain writ petitions have been  filed  in  the
Patna High Court  which rejected  the  contention  of  the  Petitioners  and
dismissed the writ petitions on the  ground  that  the  Commission  had  not
taken any conscious decision with regard to teachers and staff,  except  for
those which were  Centrally-funded.  Subsequently,  however,  since  in  its
452nd meeting the Commission took a conscious decision and recommended  that
the Report of the Pay Review Committee recommending the enhancement  of  age
of superannuation from 62 to 65 years  be  made  applicable  throughout  the
country,   fresh  writ  petitions  were  filed  in  the  Patna  High  Court,
including CWJC No.2330  of  2009,  filed  by  the  Appellants  herein.   The
learned Single Judge allowed the writ petitions upon holding that  once  the
Commission had recommended that the age of superannuation be accepted as  65
years, the State Governments had no discretion but to  enhance  the  age  of
superannuation in line with the  recommendations  made  by  the  Commission.
The Division Bench subsequently reversed the finding of the  learned  Single
Judge, resulting in these Special Leave Petitions (now Appeals).

63.   Learned Standing Counsel for the State of Bihar, Mr. Gopal Singh,  had
in his submissions reiterated the views of the High  Court,  i.e.,  that  on
mere communication, the revision of the pay of teachers and increase in  the
age of superannuation would not automatically become effective and that,  in
any event, the right to alter the terms and conditions  of  service  of  the
State universities  and  colleges  were  within  the  domain  of  the  State
Government and till such time as it decided to  adopt  the  same,  the  same
would have no application  to  the  teachers  and  staff  of  the  different
educational institutions in the State.

64.   We are inclined to agree with such submission mainly  because  of  the
fact  that  in  the  amended  provisions  of  Section  67(a)  it  has   been
categorically  stated  that  the  age  of  superannuation  of   non-teaching
employees would be 62 years and, in no case, should the  period  of  service
of such non-teaching employees be extended beyond 62  years.
A  difference
had been made in regard to the teaching  faculty  whose  services  could  be
extended up to 65 years in the manner laid down in the University  Statutes.
 There is no ambiguity that  the  final  decision  to  enhance  the  age  of
superannuation of teachers within a particular State would be  that  of  the
State itself.
The right of the Commission to frame Regulations  having  the
force of law is admitted.  However, the State Governments are also  entitled
to legislate with matters relating to education under Entry 25 of List  III.
 So long as the State legislation did not encroach upon the jurisdiction  of
Parliament, the State legislation would  obviously  have  primacy  over  any
other law.  If there was any legislation enacted by the  Central  Government
under Entry 25 List III, both would have to be treated on a  par  with  each
In the absence of any such legislation  by  the  Central  Government
under Entry  25  List  III,  the  Regulation  framed  by  way  of  delegated
legislation  has  to  yield  to  the  plenary  jurisdiction  of  the   State
Government under Entry 25 of List III.

65.   We are then faced with the situation
where  a  composite  scheme  has
been framed by the UGC, whereby the Commission agreed to  bear  80%  of  the
expenses incurred by the State if such scheme was to  be  accepted,  subject
to the condition that the remaining 20% of the expense would be met  by  the
State and that on and from 1st April, 2010, the State Government would  take
over  the  entire  burden  and  would  also  have  enhanced   the   age   of
superannuation of teachers and other staff  from  62  to  65  years.   
being no compulsion to accept and/or adopt the said scheme, the  States  are
free to decide as to whether the scheme would be adopted  by  them  or  not.
In our view, there can be no automatic application  of  the  recommendations
made by the Commission, without any conscious decision being  taken  by  the
State in this regard, on account of the  financial  implications  and  other
consequences attached to such a decision.  
The  case  of  those  Petitioners
who have claimed that they should be given the benefit of the scheme  dehors
the responsibility attached thereto, must, therefore, fail.

66.   However, within this class of institutions there is a  separate  group
where the State Governments themselves have taken a decision  to  adopt  the
scheme.  In such cases, the consequences  envisaged  in  the  scheme  itself
would automatically follow.

67.   We, therefore, see no reason to interfere with the  impugned  judgment
and order of the Division Bench of the High Court in all  these  matters  in
the light of the various  submissions  made  on  behalf  of  the  respective
The several Appeals, Writ  Petitions  and  the  Transferred  Case,
which involve the same questions as considered in this batch of  cases,  are
all dismissed.  
However, the Appeals filed by the State of  Uttarakhand  and
Civil Appeals arising out of SLP(C) Nos. 6724, 13747 and 14676 of  2012  are
As far as  the  Transfer  Petition  Nos.  1062-1068  OF  2012  are
concerned, the same are allowed and the  Transferred  Cases  are  dismissed.
The  Contempt  Petitions  are  disposed  of  by  virtue  of  this  judgment.
However, persons who have continued to work on  the  basis  of  the  interim
orders passed by this Court or any other Court,  shall  not  be  denied  the
benefit of service during  the  said  period.   
The  Appeals  and  Petitions
having  been  dismissed,  both  the  State  Authorities  and   the   Central
Authorities will be at liberty to work  out  their  remedies  in  accordance
with law.

68.   Having regard to the nature of  the  facts  involved  in  these  case,
parties shall bear their own costs.

                                                             (ALTAMAS KABIR)

                                                     (SURINDER SINGH NIJJAR)

                                                            (J. CHELAMESWAR)
New Delhi
Dated: July 17, 2013.

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