reported in http://judis.nic.in/supremecourt/filename=40584
REPORTABLE
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
Vs.
2 State of Bihar & Ors. … Respondents
WITH
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J U D G M E N T
ALTAMAS KABIR, CJI.
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
“Commission”.
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,
all
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.
The
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
Commission.
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
6.11.1998.
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,
2000.
The said Regulation does not, however, provide for the age of
superannuation.
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
years.
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.
It
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
years.
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
1.01.2006.
(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
Commission.
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
Appellants.
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
position.
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
Regulations.
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
Scheme.
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
legislation.
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
Commission.
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
other.
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.
There
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
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.
68. Having regard to the nature of the facts involved in these case,
parties shall bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(SURINDER SINGH NIJJAR)
.....................J.
(J. CHELAMESWAR)
New Delhi
Dated: July 17, 2013.
REPORTABLE
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
Vs.
2 State of Bihar & Ors. … Respondents
WITH
C.A. NO.5544 OF 2013 @ SLP(C) NO.29332 OF 2010
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C.A. NOS.5802-5803 OF 2013 @ SLP(C) NOS.37947-37948 OF 2012
C.A. NOS.5804-5805 OF 2013 @ SLP(C) NOS.37949-37950 OF 2012
C.A. NOS.5806-5809 OF 2013 @ SLP(C) NOS.8301-8304 OF 2012
T.C.(C) NO.27 OF 2013
C.A. NO.5810 OF 2013 @ SLP(C) NO.6724 OF 2012
C.A. NO.5811 OF 2013 @ SLP(C) NO.13747 OF 2012
C.A. NO.5812 OF 2013 @ SLP(C) NO.14676 OF 2012
W.P(C) NO.83 OF 2013
C.A. NO.5813 OF 2013 @ SLP(C) NO.36955 OF 2012
C.A. NO.5814 OF 2013 @ SLP(C) NO.28326 OF 2012
W.P.(C) NO.53 OF 2013
C.A. NO.5815 OF 2013 @ SLP(C) NO.8147 OF 2013
C.A. NO.5816 OF 2013 @ SLP(C) NO.22626 OF 2013 (CC 5514/2013)
C.A. NO.5817 OF 2013 @ SLP(C) NO.22627 OF 2013 (CC 5518/2013
C.A. NO.5818 OF 2013 @ SLP(C) NO.22628 OF 2013 (8248/2013)
J U D G M E N T
ALTAMAS KABIR, CJI.
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
“Commission”.
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,
all
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.
The
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
Commission.
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
6.11.1998.
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,
2000.
The said Regulation does not, however, provide for the age of
superannuation.
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
years.
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.
It
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
years.
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
1.01.2006.
(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
Commission.
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
Appellants.
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
position.
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
Regulations.
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
Scheme.
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
legislation.
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
Commission.
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
other.
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.
There
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
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.
68. Having regard to the nature of the facts involved in these case,
parties shall bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(SURINDER SINGH NIJJAR)
.....................J.
(J. CHELAMESWAR)
New Delhi
Dated: July 17, 2013.
