Rajasthan High Court - Jodhpur
Dr. B. S. Rajpurohit vs State & Ors on 20 December, 2011
Author: Arun Mishra
Bench: Arun Mishra
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
Dr.R.M.Sharma Vs. State of Rajasthan & ors
(1) D.B.CIVIL SPECIAL APPEAL NO.774/2010
Dr.Bhajan Lal Vs. State of Rajasthan & ors
(2) D.B.CIVIL SPECIAL APPEAL NO.775/2010
Dr(Mrs)Aruna Swaroop Vs. State of Rajasthan & ors
(3) D.B.CIVIL SPECIAL APPEAL NO.776/2010
Dr.R.L.Tamboli Vs. State of Rajasthan & ors
(4) D.B.CIVIL SPECIAL APPEAL NO.779/2010
Dr.Rajendra Prasad Vs. State of Rajasthan & ors
(5) D.B.CIVIL SPECIAL APPEAL NO.935/2010
Dr.Fateh Singh Poonia Vs. State of Rajasthan & ors
(6) D.B.CIVIL SPECIAL APPEAL NO.85/2011
Dr.Lokendra Singh Vs. State of Rajasthan & ors
(7) D.B.CIVIL SPECIAL APPEAL NO.89/2011
Dr.B.L.Vaishnav Vs. State of Rajasthan & ors
(8) D.B.CIVIL SPECIAL APPEAL NO.90/2011
Dr.B.S.Rajpurohit Vs. State of Rajasthan & ors
(9) D.B.CIVIL SPECIAL APPEAL NO.92/2011
Prof.Mrs Raka Kamal Vs. State of Rajasthan & ors
(10) D.B.CIVIL SPECIAL APPEAL NO.99/2011
Shareef Ahmad Vs. State of Rajasthan & ors
(11) D.B.CIVIL SPECIAL APPEAL NO.100/2011
Dr.Zabar Singh Solanki Vs. State of Rajasthan & ors
(12) D.B.CIVIL SPECIAL APPEAL NO.101/2011
Dr.Ved Sharma Vs. State of Rajasthan & ors
(13) D.B.CIVIL SPECIAL APPEAL NO.102/2011
Damodar Prasad Jain Vs. State of Rajasthan & ors
(14) D.B.CIVIL SPECIAL APPEAL NO.212/2011
Dr.B.L.Hiran Vs. State of Rajasthan & ors
(15) D.B.CIVIL SPECIAL APPEAL NO.490/2011
Dr(Mrs) Kirti Rajimwale Vs. State of Rajasthan & ors
(16) D.B.CIVIL SPECIAL APPEAL NO.798/2011
2
UNDER SECTION 18 OF
THE RAJASTHAN HIGH COURT ORDINANCE, 1949.
Date of Judgment: 20t h Dec., 2011
P R E S E N T
HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA
HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI
Dr.P.S.Bhati )
Mr.Dhirendra Singh )
Mr.Manoj Bhandari )
Mr.J.L.Purohit )
Mr.Mukesh Rajpurohit ) for the respective appellants.
Mr.G.R.Punia, AAG )
Mr.Kuldeep Mathur )
Mr.Girish Joshi )
Mr.Sanjay Mathur )
Mr.Sanjit Purohit ) for the respective respondents.
BY THE COURT :
The appellants in the appeals are claiming that the age of superannuation for University Teachers should be sixty five, instead of 60 years, as prescribed by the University Grant Commission in the Regulations called "UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for Maintenance of Standards in Higher Education 2010, hereinafter referred-to as "the Regulations of 2010". The Single Bench has dismissed the writ application by the impugned order dated 5/8/2010.
The Regulations of 2010 have been framed in exercise of the powers conferred under Clauses (e) and
(g) of sub-section (1) of Section 26 of University Grants 3 Commission Act, 1956, hereinafter referred-to as "the UGC Act" and in pursuance of the MHRD O.M.No.F.23- 7/2008-IFD dated 23 r d October, 2008 read with Ministry of Finance (Department of Expenditure) O.M.No.F.1- 1/2008-IC dated 30 t h August, 2008 and in terms of the MHRD Notification dated 31.12.2008. The Regulations of 2010 have been framed in supersession of the University Grants Commission (minimum qualifications required for the appointment and career advancement of teachers in Universities and Institutions affiliated to it) Regulations, 2000 issued by University Grants Commission vide Regulation No.F.3-1/2000 (PS) dated 4 t h April, 2000, together with all amendments made therein from time to time. It has been provided in Regulation 1.2 of the Regulations of 2010 that they shall apply to every university established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission. The applicability of the Regulations of 2010 is not in question in the instant case. Regulation 2 of the Regulations of 2010 provides that the minimum qualifications for appointment and other service conditions of University and College teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education, shall be as provided in the Annexure to 4 these Regulations. The Annexure is part of the Regulation of 2010. The Regulation 2.1.0 provides that the revised scales of pay and other service conditions including age of superannuation in central universities and other institutions maintained and funded by the University Grants Commission, shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education), as contained in Appendix-I. Further in Regulation 2.3.1 with respect to revised scales of pay and age of superannuation as provided in Clause 2.1.0, it has been observed that it may 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 in adherence of the terms and conditions laid down in the MHRD notifications provided as Appendix I and in the MHRD letter dated 11 t h May, 2010. Regulation 3 of the Annexure deals with the recruitment and qualifications, according to which appointment is to be made on the basis of merit through all India advertisement; minimum qualification required for the post has been provided; minimum requirements of a good academic record at the master's level and qualifying in the National Eligibility Test has also been provided; and minimum marks with relaxation 5 has also been provided. Regulation 4 of the Annexure takes care of the direct recruitment as necessary and such other matters for issuing standard publication have also been provided under the Annexure. However, what has not been provided in the Regulations of 2010, has been mentioned in the Communication of the Director, Govt. of India, Ministry of Human Resource Development, Department of Higher Education, dated 11 t h May, 2010, which is addressed to the Education Secretaries of all State Governments, wherein it has been specifically mentioned that the State Governments are required to implement the scheme. Certain terms and conditions have been specified in the letter. One of the terms and conditions mentioned in para 4 of the said letter is that as per the terms and conditions of the Ministry's letter dated 31.12.2008, the State Governments are required to implement the scheme as a composite one, including the age of superannuation, mentioned in para 8(f) of the Ministry's letter dt.31.12.2008, together with all the conditions specified or to be specified by University Grants Commission by regulations and other guidelines. Para 8 of the said letter also insists that the scheme has to be adopted and implemented as a composite one, including adoption of the age of superannuation for those engaged in `inclass' teaching and have been disbursed the salary based on revised pay scales and after 6 scrutiny of the detailed proposal as may be received from the State Government.
The Communication of the Government of India, Ministry of Human Resource Development, Department of Higher Education dated 31.12.2008, which has been referred-to in the aforesaid Communication, lays down in para 8(f) that in order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide the Department of Higher Education letter dt.23.3.2007 for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities vide Communication dt.30.3.2007 to enhance the age of superannuation of Vice Chancellors of Central Universities from 65 to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority. Para 8(p)(v) deals with the applicability of the scheme, which provides that it may be extended to universities, colleges and other higher educational institutions coming under the purview of the State legislatures, 7 provided State Governments wish to adopt and implement the Scheme subject to certain terms and conditions. In the terms and conditions, it has been mentioned in para 8(p)(v)(g) that the 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.
The appellants have, thus, submitted that by virtue of provision contained in Section 12(j) of the UGC Act, the UGC has power to perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions, enumerated in different clauses of Section 12 of the UGC Act.
It was also submitted by the appellants that by virtue of provision of Section 26(e) and (g) of the UGC Act, it is open to the UGC to lay down the qualification required of any person to be appointed to the teaching staff of the University and also to regulate the maintenance of standards and the co-ordination of work or facilities in Universities. Section 26(2) lays down that minimum standards of instructions and regulations 8 have to be made with the previous approval of the Central Government. Thus, it was not open to the State Government to take the benefit of the age extended under the Scheme and on the other hand, not to enhance the age of the Teachers in the Universities from sixty to 65 years. The Regulations are mandatory in nature and they are binding as specified in the Communication dt.31.12.2008 issued by the Department of Higher Education, MHRD.
The stand of the U.G.C. is that it has decided to increase the age of superannuation of all persons, who were holding teaching positions on regular employment against sanctioned posts as on 15.3.2007 in any of the centrally funded higher and technical educations under the Ministry from 62 to 65 years. The enhancement of the age will apply only to persons in teaching positions against posts sanctioned to centrally funded higher and technical education institutions coming under the purview of M.H.R.D. It is further submitted by the U.G.C. that in case of an employee of a University/College, which is not funded by the U.G.C., the age of superannuation as notified by the M.H.R.D. Vide their letter dated 23.3.2007 is not applicable. However, it shall be open to the State Government or other competent authority to adopt the decision or to take any other decision, as considered appropriate in respect of the age of superannuation of teachers in 9 higher and technical education institutions under their purview, with the approval of the competent authority. The Communication dated 31.12.2008 has also been explained. Ultimately, it is submitted by the U.G.C. in the return filed in CWP No.6933/2010 that the enhancement of age of superannuation from 62 to 65 years is for the teachers of the Central Universities and the Colleges affiliated thereto, which are being funded and maintained by the University Grants Commission/MHRD, Govt. of India. In case of teachers of other Universities, it is open to the concerned State Governments to adopt the same.
The State Government has submitted alongwith its return the decision taken by it not to increase the age of superannuation from 60 to 65 years. The Communication in this regard dt.27.10.2009 has been placed on record. It is further contended in the return that Jaipur Bench of this Court has dismissed the similar writ petition. The State Government vide notification dt.27.10.2009 took a decision not to enhance the age of superannuation of the teaching staff of the Universities and kept it at part with the State employees. It has been left to the domain of the State Government to adopt the Scheme made by the U.G.C./Higher Education Department of the MHRD.
The stand of the University is that recommendations made by UGC with respect to age of 10 superannuation are not binding and it has to be as per the provisions of the Act/Ordinances, which are prevailing in the Universities.
It was submitted by Dr.P.S.Bhati, Mr.Dhirendra Singh, Mr.Manoj Bhandari, Ms Nupur Bhati, Mr.R.S.Shekhawat, Mr.J.L.Purohit and Mr.Mukesh Rajpurohit, learned counsel appearing on behalf of the appellants, that the Regulations of 2010 framed by the University Grants Commission are statutory in nature and are binding. The benefit of the Scheme cannot be bifurcated and it was incumbent upon the University and the State Government to adopt and implement the Scheme as a whole. It is open to the University Grants Commission under the provisions of Section 12(j) and 26 (e) and (g) of the UGC Act to frame the regulation with respect to age also. They have relied upon the decisions of the Apex Court in Prof.Yashpal vs. State of Chhattisgarh, (2005) 5 SCC 420 and Annamalai University vs. Secretary to Government, Information & Tourism Department, (2009) 4 SCC 590 and a decision of the Uttarakhand High Court in Pant University Teachers' Association vs. Chancellor, Govind Ballabh Pant University of Agriculture & Technology "Writ Petition No.52/2010 decided on 8.12.2011 in which a mandamus has been issued to the State Government to alter the Statutes pertaining to Govind Ballabh Pant University by prescribing the age of 11 65 years. The Regulations framed by the UGC have been held to be binding with respect to age. It was also submitted on behalf of the appellants that in the List-I, which is the Union List, appended to Seventh Schedule of the Constitution of India, certain aspects have been reserved under Union Entries 63, 64, 65 & 66 of List-I. Entry 25 contained in the List III of Seventh Schedule of the Constitution of India gives right to the State to legislate with respect to education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I in regard to vocational and technical training of labour, thus, it is submitted that the recommendations are having statutory force and are Constitutionally envisaged. As per the UGC Act, the State Government is bound to implement them. It was also submitted that as per Section 28 of the UGC Act, the recommendations are required to be placed on the table of the Parliament, as such, the recommendations are binding upon the State Government and the State Government should comply with them.
Mr.M.S.Singhvi, Sr.Advocate, Mr.G.R.Punia, AAG cum Sr.Advocate, Mr.Girish Joshi and Mr.Sanjay Mathur, learned counsel appearing on behalf of the respective respondents, have submitted that in the Regulations of the UGC, differentiation has been made with respect to the age. Determination of the age of retirement has 12 been left at the discretion of the State Government in the case of Central Universities and other institutions funded by the University Grants Commission, the word used is "shall" with respect to age of superannuation to be 65 years, whereas it is not so in the case of other Universities governed by the State Act in which the word used is "may" in the Annexure to the Regulations, which is part of the Regulations. The stand of the U.G.C. is also that the recommendation made in the Regulations of 2010 is not binding upon the State Government with respect to age. It is for the State Government/Universities to determine the age of superannuation. Scheme is with respect to various other matters, which are mandatory to be observed, it is not mandatory with respect to age. They have relied upon the decision of the Apex Court in B.Bharat Kumar vs. Osmania University, (2007) 11 SCC 58.
Before adverting to the rival submissions, we deem it proper to refer to the provisions under the U.G.C.Act.
The statement of objects and reasons of the UGC Act is to make the provision for co-ordination and determination of standards in the Universities and for this purpose, to establish the U.G.C. It has been mentioned that the Constitution of India vests Parliament with exclusive authority in regard to co- ordination and determination of standards in institutions for higher education or research and scientific and 13 technical institutions. The Central Government should have some voice in determination of the standards of teaching and examination in Universities, therefore, the U.G.C. has been established as a corporate body to enquire into the financial needs of the Universities and allocate and disburse grants to Universities for any general or specified purpose. The Commission will also have the power to recommend to any University the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such recommendation. The Commission is to act as an expert body to advise the Central Government on problems connected with the co- ordination of facilities and maintenance of standards in Universities. The Commission has also the power of inspection and as to render advice on establishment of the Universities. The Bill, which was introduced, also contained a provision that it aims to restrict the use of the word `University' or the power to confer degrees etc. Section 2(f) defines a "University" to mean a University established or incorporated by or under a Central Act, a Provincial Act, or a State Act and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under the Act. The University in question is admittedly 14 such as defined in Section 2(f) of the UGC Act. Section 3 of the UGC Act is applicable to the institutions for higher studies other than Universities, is also not disputed.
The powers and functions of the Commission are enumerated in Chapter III of the UGC Act. The general duty of the Commission is to take all steps it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities and for the purpose of performing its functions under the Act, the Commission may enquire into the financial needs of Universities; allocate and disburse, out of the Fund of the Commission, grants to Universities established under a Central Act; allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem necessary; allocate and disburse out of the Fund of the Commission, such grants to institutions deemed to be Universities in pursuance of a declaration made by the Central Government under Section 3, as it may deem necessary for maintenance in special cases, for development and for any other general or specified purpose; establish, in accordance with the regulations made under the Act, institutions for providing common facilities, services and programmes for a group of Universities as provided under Section 12(ccc). Under 15 Section 12(d), it may recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation. Under Section 12(e), it may advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose and other similar purposes enumerated under different clauses of Section 12 of the UGC Act. Learned counsel for the appellants has pressed into service Clause (j) of Section 12, which provides that the Commission may perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions. Section 12(j) is quoted below:
"(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions."
Reliance has also been placed by the learned counsel for the appellants on the provisions contained in Section 26 (e) and (g) of the UGC Act. Section 26 deals with the power of the Commission to make regulations, which have to be published in the official gazette consistent with the provisions of the Act and the rules made thereunder. The Commission is given the power under Section 26(c) of specifying the terms and 16 conditions of service of the employees appointed by the Commission. Under Section 26(e), the Commission can define 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 is expected to give instruction. Section 26(f) empowers the Commission to provide in the Regulations the minimum standards of instruction for the grant of any degree by any University. Section 26(g) deals with the power of the Commission to regulate the maintenance of the standards and the co-ordination of work or facilities in Universities.
Section 26 of the UGC Act is quoted below:
26.(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder-
(a) regulating the meetings of the Commission and the procedure for conducting business thereat;
(b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9;
(c) specifying the terms and conditions of service of the employees appointed by the Commission;
(d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of sub-section 2;
(e) 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 is expected to give instruction;
(f) defining the minimum standards of instruction for the grant of any degree by any University;
(g) regulating the maintenance of standards and the co-
ordination of work or facilities in Universities. 17
(h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;
(i) specifying the matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) of section 12A;
(j) specifying the manner in which an inquiry may be conducted under sub-section (4) of section 12A; (2) No regulation shall be made under clause (a) or clause
(b) or clause (c) or clause (d) 2[or clause (h) or clause (j) or clause (j)] of sub-section (1) except with the previous approval of the Central Government.
(3) The power to make regulations conferred by this section [except clause (i) and clause (j) of subsection (1)] shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable."
When we come to the Regulations of 2010, which have been framed by the U.G.C., Regulation 1.2 deals with the application of the Regulations to every university established or incorporated by or under a Central Act, Provincial Act or a State Act. The Regulations are dealing with the minimum qualifications for appointment of teachers and other academic staff in universities and colleges and measures for maintenance of standards in higher education. As the name of the Regulations itself contain the aforesaid aspects as per Regulation 1.1, they shall come into force with immediate effect on publication in the official gazette. Regulation 2 deals with the minimum qualifications for appointment and other service conditions of University 18 and College teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education and the same is to be provided as per Annexure to these Regulations.
Regulation 2 of the Regulations of 2010 is quoted below:
2. The minimum qualifications for appointment and other service conditions of University and College teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education, shall be as provided in the Annexure to these Regulations.
The Annexure, which is part of the Regulations of 2010 provides that these Regulations are issued for minimum qualifications for appointment and other service conditions of University and College Teachers, Librarians, Directors of Physical Education and Sports for the maintenance of standards in higher education and revision of pay scales. Regulation 2.0.0 of the Annexure deals with the pay scales, pay fixation formula and age of superannuation etc. Regulation 2.1.0 provides the revised scales of pay and other service conditions including age of superannuation in Central Universities and other institutions maintained and funded by the University Grants Commission. Regulation 2.3.1 provides with respect to revised scales of pay and age of superannuation as provided in Clause 2.1.0, which may also be extended to Universities, 19 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 in adherence of the terms and conditions laid down in the MHRD notifications provided as Appendix I and in the MHRD letter dated 11 t h May, 2010. The word "shall" has been used in Regulation 2.1.0 with respect to Central Universities as contained in Annexure to the Regulations of 2010, whereas the word "may" has been used with respect to the State Universities in Regulation 2.1.0 and Regulation 2.3.1 as contained in Annexure to the Regulations of 2010 are quoted below:
"2.1.0 The revised scales of pay and other service conditions including age of superannuation in central universities and other institutions maintained and/or funded by the University Grants Commission UGC), shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education), as contained in Appendix-I. 2.3.1 The revised scales of pay and age of superannuation as provided in Clause 2.1.0 above, may 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 in adherence of the terms and conditions laid down in the MHRD notifications provided as Appendix I and in the MHRD letter No.F.1-7/2010- U II dated 11 t h May, 2010 with all conditions specified by the UGC in these Regulations and other Guidelines."
The Annexure to the Regulations of 2010 also deals with the Recruitment and Qualifications in 20 Regulations 3.0.0 to 3.9.0 Direct recruitment has been dealt with in Regulation 4.0.0 onwards. No doubt about it that the Annexure deals with the age of superannuation of the teachers. However, age which has been prescribed, is to be found in Appendix-I, which has been referred-to in Regulation 2.1.0. When we come to Appendix-I dt.31.12.2008 letter addressed by the Government of India, Ministry of Human Resource Development, Department of Higher Education to the Secretary, University Grants Commissions, Bahadur Shah Zafar Marg, New Delhi, it deals with the age of superannuation and various aspects viz; revised pay scales, service conditions, career advancement scheme for teachers and equivalent positions i.e. Assistant Professor/Associate Professors/ Professors in Colleges & Universities, pay scales of Pro-Vice Chancellor/Vice Chancellor of Universities, pay scales of Principals in Colleges and other staff and incentives for Ph.D./M.Phil. & other higher qualifications. Other terms and conditions are contained in para 8. Para 8(f) deals with the age of superannuation in which it has been mentioned as a fact that in order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide the Department 21 of Higher Education letter dt.23.3.2007. The Central Government has authorized the Central Universities also vide letter dt.30.3.2007 to enhance the age of superannuation of Vice Chancellors of Central Universities from 65 years to 70 years. However, the same is subject to amendments in the respective statutes with the approval of the competent authority. Para 8(f)(i), which has been relied upon by the appellants, is quoted below:
(f) Age of Superannuation:
(i) in order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide the Department of Higher Education letter No.F.No.1-
19/2006-U.II dt.23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities vide Department of Higher Education D.O.letter No.F.1- 24/2006-Desk (U) dt.30.3.2007 to enhance the age of superannuation of Vice Chancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority(Visitor in the case of Central Universities)."
Para 8(p) deals with the applicability of the Scheme. Para 8(p)(v) provides that the Scheme may be extended to universities, colleges and other higher educational institutions coming under the purview of the State legislatures, provided the State Governments wish 22 to adopt and implement the Scheme subject to certain terms and conditions. One of the essential terms and conditions is with regard to payment of Central assistance for implementing the Scheme, which is contained in para 8(p)(v)(g). It provides that the Scheme is to be implemented as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above. The provisions of para 8(p)v) and 8(p)(v)(g) are quoted below:
"8(p) Applicability of the Scheme:
(v) the Scheme may be extended to universities, colleges and other higher educational institutions coming under the purview of the State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions:
xxx 8(p)(v)(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."
Besides, the reliance has also been placed on a letter dated 11 t h May, 2010 issued by the Director, MHRD, Department of Higher Education to the Education Secretaries of all State Government. In para 4 thereof, it has been mentioned that as per the terms and 23 conditions of the Ministry's letter dated 31.12.2008, the State Governments are required to implement the scheme as a composite one, including the age of superannuation, mentioned in para 8(f) of this Ministry's letter dt.31.12.2008, together with all the conditions specified or to be specified by University Grants Commission by regulations and other guidelines.
Para 8 of the said letter also emphasized that the scheme has to be adopted and implemented as a composite scheme, including adoption of the age of superannuation for those engaged in `inclass' teaching.
Para 4 and 8 of the Communication are quoted below:
"4. Thus as per the terms and conditions of the Ministry's letter dated 31.12.2008, the State Governments are required to implement the scheme as a composite one, including the age of superannuation (mentioned in para 8(f) of this Ministry's letter dt.31.12.2008), together with all the conditions specified or to be specified by University Grants Commission (UGC) by regulations and other guidelines.
8. Release of the Central assistance shall be considered by this Ministry in accordance with the provisions of the Scheme only after the State Government have adopted and implemented the scheme as a composite scheme, including adoption of the age of superannuation for those engaged in `inclass' teaching and have disbursed the salary based on revised pay scales and after scrutiny of the detailed proposal as may be received from the State Government."
A conjoint reading of the provisions contained in Sections 12(j) and 26(c), (e), (f) and (g) of the UGC Act makes it clear that under Section 12(j), the Com- mission is authorized to perform such other functions as may be prescribed or as may be deemed necessary by 24 the Commission for advancing the cause of higher edu- cation in India but that, in our considered opinion, does not include to mandatorily prescribe the age for the State Government employees or of Universities estab- lished under State Act, as that cannot be said to be covered within the ambit of the expression "for advanc- ing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions". The functions which are enumerated in Sec- tion 12 of the UGC Act are mainly to enquire into the fi- nancial needs of the Universities; allocate & disburse out of the funds of the Commission grants to Universi- ties established; recommend to any University the measures necessary for the improvement of University education and ad- vise the University upon the action to be taken for the purpose of implementing such recommendation; advise the Central Govern- ment or any State Government on the allocation of any grants to Universities for any general or specified purpose; advise any au- thority on the establishment of a new University; advise the Cen- tral Government or any State Government or University upon any question which may be referred to the Commission by the Central Government or the State Govt. or the University, as the case may be; and collect information on all such matters relating to university education in India & to make them available to the Universities. The functions are mainly to secure the standards of education; to meet the financial needs of the Universities; to take steps for promotion & coordination of University education; 25 to maintain standards of teaching; and also to lay down the min- imum qualification etc. for the faculty members to be appointed. To prescribe the age of superannuation of its employees, is es- sentially the function of the State Government and that has not been given to the Commission under the UGC Act. Section 26(1)
(c) of the UGC Act empowers the Commission to specify the terms and conditions of service of the employees appointed by the Commission but it does not have the power to specify the terms and conditions of the service of the employees of the Uni- versities or the State Government. Had the intendment of the legislature been to confer that power upon the University Grants Commission, the parliament would have made such a provision but its power is confined to specify the terms and conditions of the service of the employees appointed the Commission. No doubt about it that it can make certain recommendations but what is the effect of such recommendations and whether they are binding, has to be considered in the light of sphere covered by it. The provisions of Section 26(e) and (g) of the UGC Act, un- der which the Regulations of 2010 have been framed, indicate that the Commission is empowered to define the qualifications, that should ordinarily be required of any person to be appointed to the teaching staff of the University but the term "qualification" would not mean the prescription of age. Section 26(g) of the UGC Act deals with regulating the maintenance of standards and the co-ordination of work or facilities in Universities. Under the expression "the maintenance of standards and the co-ordination of work or facilities in Universities", in our considered opinion, 26 prescription of age of superannuation does not fall and that is beyond the purview of "the maintenance of standards and co-or- dination of work or facilities in Universities". The matter as to prescription of age of superannuation lies in the domain of the State Government and power has, infact, not been conferred upon the Commission under the UGC Act, that is why, the Uni- versity Grants Commission has rightly taken the stand in its re- turn that the prescription of age in the aforesaid Regulation to be 65 years has been left open to the State Governments to adopt it or not to adopt it. It is not necessary that they should adopt it. Rather, enhancement of age of superannuation has been left at option of the concerned State Government to consider and take a decision on its own in accordance with law.
When we come to question of encroachment made by State Legislature, there is none. The State Government has not in fact legislated. The Scheme has been floated by the UGC and the Scheme itself is optional as to age of superannuation, hence no question arises of any conflict in the Regulations with State Acts etc. and between the fields reserved for the Union and the State Govt. under the respective entries in the Lists I, II and III of Seventh Schedule to the Constitution of India, which have been referred.
When we come to the Regulations of 2010, Regulation 2 provides that the minimum qualifications for appointment and other service conditions of University and College teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of 27 standards in higher education, shall be as provided in the Annexure to these Regulations. When we come to Annexure, Regulation 2.1.0 and Regulation 2.3.1 clearly makes a distinction with respect to age of superannuation. In Regulation 2.1.0, the word "shall" with respect to Central Universities and other institutions maintained and funded by the University Grants Commission, is mandatorily couched with reference to Appendix-I, whereas Regulation 2.3.1 does not have the reference of Appendix-I and word used is "may" with respect to age of superannuation regarding Universities, Colleges and other higher educational institutions coming under the purview of the State legislature and maintained by the State Government. Thus, the distinction has been made in the Annexure itself, attached to the Regulations of 2010, by the University Grants Commission. On a bare reading of the aforesaid Regulations viz; Regulations 2.1.0 and 2.3.1 of the Annexure, it is crystal clear that it is discretionary and optional with the State Government to increase the age of superannuation to 65 years, as the State legislature has infact not been denuded of the power by the University Grants Commission under the aforesaid Annexure to take its own decision.
When we come to Annendix-I the Communication dt.31.12.2008, the same is dealing with the Scheme of revision of pay of teachers and equivalent cadres in 28 universities and colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission. After prescribing the qualifications and pay scales etc., para 8(f) deals with the age of superannuation. Para 8
(f)(i) mentioned as a fact that the Central Government has enhanced the age of superannuation for teachers in Central Educational Institutions to sixty five years vide the Department of Higher Education Letter dt.23.3.2007 and of Vice Chancellors from 65 years to 70 years vide letter dt.30.3.2007. However, the same is also subject to the amendments in the respective Statutes with the approval of the competent authority. The same cannot be said to be applicable to the State Universities nor the provision of the Appendix has been applied as per the Annexure to the Regulations of 2010 to the Universities and Colleges framed under the State Act. Merely by the fact mentioned in para 8(p)(v) that certain terms and conditions have to be followed by the State Government, if they wish to adopt and implement the Scheme. Para 8(p)(v)(g) provides that the 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 29 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. The aforesaid provision in the letter Appendix-I dated 31.12.2008, which is in the form of appendix to the Annexure to the Regulations. The Regulations and Annexures do not provide for enhancement of the age of superannuation. Thus, merely the mention in Appendix that the Scheme has to be implemented as a whole, has to be read binding with respect to the provisions mandatorily couched and not where the matter is left at the discretion of the State, such as in the matter of enhancement of age of superannuation. The effect of the phrase composite Scheme cannot be so as to make the provision, which has been left under the Regulations at the discretion of the State Government to be mandatory one. That interpretation would violate the Regulations.
Yet another Communication has been relied upon, which is written by the Director, MHRD, Department of Higher Education dated 11 t h May, 2010. In our considered opinion, the Director has travelled beyond the scope of the Regulations of 2010, while emphasizing in para 4 that the State Governments are bound to implement the Scheme as a composite one, including the age of superannuation (mentioned in para 8(f) of this Ministry's letter dated 31.12.2008). This is mis- 30 construction of the Communication in the form of Appendix as well as the Regulations of 2010 and its Annexure, framed by the University Grants Commission, which nowhere provides the enhancement of age of superannuation to be mandatorily couched by Universities established under the State Act, rather it is left open to the discretion of the State Governments. Thus, the Director of Higher Education, MHRD has unnecessarily ventured in impermissible area in para 4 and 8 while requiring the State Governments to adopt and implement the Scheme as a composite Scheme including adoption of the age of superannuation for those engaged in class teaching. We are in agreement with the stand of the University Grants Commission that it is simplicitor advisory in nature with respect to enhancement of age of superannuation with which we are concerned.
Reliance has been placed on a decision of the Apex Court in Prof.Yashpal's case (supra) in which the Apex Court has laid down that the State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also enactments generally for universities under Entry 25 of List III. However, the UGC Act has been made with reference to List I Entry 66, which deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Items 31 63 to 66 of List I are carved out of the subject of education and in respect of these items, the power to legislate is vested exclusively in Parliament. The Apex Court has laid down that under Entry 32 of the State List inspite of incorporation of universities as a legislative head being in the State List under Entry 32 thereof, the whole gamut of the university, which will include teaching quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on, will not come within the purview of the State Legislature on account of a specific entry, that is List I Entry 66, being in the Union List for which the Parliament alone is competent. Thus, it has been laid down by the Apex Court that teaching quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on, are within the purview of the Parliament to legislate. It is for the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country. It has been further observed by the Apex Court that the interplay of Entry 66 List I and Entry 25 List III shows that norms for admission do have a connection with the standards of education and that they are not covered only by Entry 25 of List III. Any lowering of the norms of admission does have an adverse effect on the standards of 32 education in the institutions of higher education. The standard of education in an institution depends on various factors like (i) the caliber of teaching staff; (ii) a proper syllabus designed to achieve high level of education in a given span of time; (iii) the student- teacher ratio; (iv) equipment and laboratory facilities;
(v) caliber of the students admitted; (vi) adequate accommodation in the institution; (vii) the standard of examinations held including the manner in which the papers are set and examined; and (viii) the evaluation of practical examinations done. For these matters, the recommendations of the University Grants Commission have the binding effect. The Apex Court in Prof. Yashpal (supra) has laid down thus:
31. In Osmania University Teachers Association v. State of Andhra Pradesh & Anr. 1987 (4) SCC 671, the Court reiterated that it was the exclusive responsibility of the Central Government to determine the standards for higher education and the same should not be lowered at the hands of any particular State as it was of great importance to national progress. After referring to the Constitution Bench decision in Kerala State Electricity Board v. Indian Aluminium Co. 1976 (1) SCC 466, where it was held that when an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II, the Court held as under in para 14 of the reports : (SCC p.676) "14. Entry 25 List III relating to education including technical education, medical education and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher 33 education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a co-ordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education' has been distributed between List I and List III of the Seventh Schedule."
32. The interplay of Entry 66 List I and Entry 25 List III was again examined by a Constitution Bench in Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors. 1999 (7) SCC 120 in the context of lowering of standards by the State for admission to a Post Graduate course in a Medical College and it was held that the State cannot while controlling education in the State impinge on standards in institutions for higher education because this is exclusively within the purview of the Union Government. While considering the question whether norms for admission have any connection with the standards of education and that they are only covered by Entry 25 of List III, it was observed that any lowering of the norms of admission does have an adverse effect on the standards of education in the institutions of higher education. The standard of education in an institution depends on various factors like, (i) the caliber of teaching staff; (ii) a proper syllabus designed to achieve high level of education in a given span of time; (iii) the student-teacher ratio; (iv) equipment and laboratory facilities; (v) caliber of the students admitted; (vi) adequate accommodation in the institution; (vii) the standard of examinations held including the manner in which the papers are set and examined; and (viii) the evaluation of practical examinations done. It was pointed out that education involves a continuous interaction between the teachers and the students. The base of teaching, the level to which teaching can rise and the benefit which the students ultimately receive depends as much on the caliber of the students as on the caliber of the teachers and the availability of adequate infrastructural facilities.
33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co-
ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained 34 in institutions for higher education or research throughout the country and also uniformity in standards is maintained.
34. In order to achieve the aforesaid purpose, the Parliament has enacted the University Grants Commission Act. First para of the Statement of Objects and Reasons of the University Grants Commission Act, 1956 (for short "UGC Act") is illustrative and consequently it is being reproduced below:
"The Constitution of India vests Parliament with exclusive authority in regard to 'co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'. It is obvious that neither co-ordination nor determination of standards is possible unless the Central Government has some voice in the determination of standards of teaching and examination in Universities, both old and new. It is also necessary to ensure that the available resources are utilized to the best possible effect. The problem has become more acute recently on account of the tendency to multiply Universities. The need for a properly constituted Commission for determining and allocating to Universities funds made available by the Central Government has also become more urgent on this account."
There is no dispute with the aforesaid proposition. However, the Apex Court has neither dealt with the aspect of prescription of age of superannuation in the State Universities nor upon the nature of any recommendation, made by the University Grants Commission with respect to age of superannuation. The Apex Court, in general, has laid down what are the matters reserved to the Parliament with respect to education. There are certain matters, which are in the competence of the State Legislature. It is in the domain of the State Legislature to frame enactments and prescription of age of superannuation is the wisdom of the State legislature, which has not been taken away by Entry 66 of List I of Seventh Schedule of the Constitution of India. Under the aforesaid Entry, the State is 35 not denuded of its powers under Entry 22 of List III. The Regulations framed by the University Grants Commission are also not mandatorily couched. The University Grants Commission has not been given power to prescribe age with respect to employees of Universities under the State Act. Under the UGC Act, Section 26 gives specific power to UGC to determine terms and conditions of service of its employees, not of employees/teachers of the Universities under the State Act. The Apex Court has not dealt with the question of age of superannuation in the aforesaid decision. There is no dispute to the principles laid down by the Apex Court as to field, which has been reserved for the Parliament and what is out of its purview & is conferred on the State Legislature.
We have a direct decision of the Apex Court on the point in B.Bharat Kumar's case (supra) in which the Apex Court has considered the decision in Prof.Yashpal's case (supra) and has affirmed the decision in T.P.George vs. State of Kerala, 1992 Supp(3) SCC 191 in which one of the conditions mentioned in the letter of Central Ministry of Human Resource Development was that the payment of Central assistance for implementation of the Scheme is subject to the condition that the entire scheme of revision of pay scales, together with all the conditions to be laid down in this regard by UGC by way of regulations, is implemented by the State Government as a composite scheme without any modification except to the date of implementation and scales of pay. Another condition in the letter of the UGC was that it was necessary for the Universities and managements of 36 colleges to make necessary changes in their statutes, ordinances, rules, regulations etc. to incorporate the provisions of this scheme. There were three other letters. Based on these letters, the Ministry of Human Resource Development issued a "consolidated statement" wherein the age of superannuation was changed from 60 to 62 years for the University and College Teachers, Registrar, Librarians, Physical Education Personnel, Controller of Examination etc. The State of Andhra Pradesh adopted the UGC pay scales based on the above communications but did not increase the superannuation age to 62 years on the ground that the similar demand would come from the State Government employees also. The Andhra Pradesh High Court held that the case was covered by the judgment of the Apex Court in T.P.George's case (supra), where the Apex Court had approved the opinion of the Kerala High Court that the State Government was not bound to implement all clauses of the UGC scheme and, therefore, it was not bound to enhance superannuation age as provided in the UGC Scheme. The Apex Court has laid down that the factual situation was almost identical with that in T.P.George's case (supra), wherein the issue was whether the retirement age stood raised to 60 years. The very language of the letter dated 27.7.1998 suggests that the scheme is voluntary and is not binding at all. It was specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it was suggested in the scheme which itself was voluntary and not binding. The Court clearly observed that the appellant cannot 37 claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation. The Court observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. Once the State Government has not accepted the UGC's recommendations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years. Even if the Scheme in question is taken as composite one, we find that there is no prescription that the State Governments are bound to enhance the age of superannuation from 60 to 65 years. The Apex Court has also considered various communications and observed in that regard that even if they could be heightened to the pedestal of a legislation or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-a-vis the State Government and the Universities. We, therefore, do not find any justification in going to the Entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and 38 specifically suggest it to be voluntary. The Apex Court has also laid down that it is not for that Court to formulate a policy as to what the age of retirement should be, as by doing so, it would be trailing into the dangerous area of the wisdom of the Legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified into doing so. The Apex Court in B.Bharat Kumar (supra) has laid down thus:
"12. We would, therefore, first examine as to whether the two Division Benches have rightly relied upon the said judgment held against the appellants. We have examined the judgment in extenso. This is also a case where the UGC had floated a scheme in 1986 which was framed by the Central Government pursuant to the Mehrotra Committee Report. In that scheme there was a Circular dated 17.6.1987 addressed by the Ministry of Human Resource Development, Department of Education to the Education Secretaries of all the States, UTs and it was clearly mentioned therein that the adoption of the scheme was voluntary and the only result follow from the State Government not adopting the scheme might be that the State Government may not get the benefit of the offer of reimbursement from the Central Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay-scales as recommended by the scheme. Therefore, the factual situation was almost identical as in the present case. This Court approved specifically a paragraph in the Kerala High Court judgment which we have already quoted earlier in this judgment in para 5. In that the Kerala High Court had specifically rejected the contention that the State Government having accepted the UGC scheme and as the scheme provided for the higher age of 60 years, the clause of the scheme regarding age of retirement also would become applicable. The Kerala High Court had specifically further observed that the UGC scheme did not become applicable as it was not obligatory for the Government and the Universities to follow the same. The Kerala High Court read a discretion in the State Government to accept or not to accept the scheme.
13. The situation is no different in the present case also. The very language of the letter dated 27.7.1998 suggests that the scheme is voluntary and not binding at all.39
Further it is specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it suggested in the scheme which scheme was itself voluntary and not binding. The Court clearly observed that "the appellant cannot claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation". The Court therein observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. It was lastly clearly observed that as long as the State Government has not accepted the UGC's recommendations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years.
15. Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the subsequent arguments of Mr.Rao regarding Entry 66 in the List I vis-`-vis Entry 25 in List III. In our opinion, the communications even if they could be heightened to the pedestal of a legislation or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-a-vis the State Government and the Universities. We, therefore, do not find any justification in going to the Entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and specifically suggest it to be voluntary.
19. Learned counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is not for this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the Legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified in doing so.
23. Further it is clear from the letter dated 27.7.1998 that it is expressly left to the discretion of the State Government to implement or not to implement the policy. Once there is no question of any conflict we do not think that would have the effect of overruling the T.P. George's 40 case. Further, merely because in Yashpal's case the observation are about the gamut of the University it does not necessarily mean that the State Government will not be able to decide the age of retirement particularly where it has the discretion to do so as also the legislative powers. We must hasten to add that no provision of any Act has been challenged in these writ petitions. All that the plea of the appellants in the original writ petitions was that the State Government must implement the UGC recommendations of the scheme and it was rightly found to be untenable."
The language in which the Regulations of 2010, Annexure and its Appendix have been couched, leaves no room to entertain any doubt that it is not mandatory and even if the Scheme is taken as composite one, we find that they nowhere prescribes that the State Governments are bound to enhance the age of superannuation. Rather, it is open to adopt the Scheme without increasing the age of superannuation to 65 years. We find our conclusion to be enforced by the decision of the Apex Court in B.Bharat Kumar (supra).
Reliance has also been placed by the learned counsel for the appellants on a decision of the Apex Court in Annamalai University's case (supra) in which the Apex Court has laid down that the provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by UGC in terms of Section 26(1)(e), (f), (g) and (h) of the UGC Act are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instruction. Such minimum standards of instruction are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be 41 maintained and for that purpose, required to be regulated. Subordinate legislation when validly made becomes part of the Act. When we take the Regulation to be part of the Act as per the dictum of the Apex Court in Annamalai University's case (supra), it does not advance the case of the appellants. The Apex Court has laid down thus:
"42. the provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by UGC in terms of Section 26(1)(e), (f), (g) and (h) of the UGC Act are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instruction. Such minimum standards of instruction are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose, required to be regulated. Subordination legislation when validly made becomes part of the Act. The functions of UGC are all-pervasive in respect of the matters specified in Sections 12-A(1)(d) and 12-A(2)(a) & (c) of the UGC Act."
A bare reading of the aforesaid decision makes it clear that the Regulations have statutory force under the UGC Act and are binding in nature but when the UGC itself has decided not to prescribe the age mandatorily and has left it at the option of the State Government. We cannot modify the Scheme framed by the UGC and to hold that on the basis of the parity, the age should be the same throughout India of the teachers, various other factors are there, which are to be taken into consideration by the concerned State Government; while prescribing the age of superannuation of the teachers, it has to do with the other State employees also and a decision has to be taken as a whole. Thus, no assistance can be derived from the decision in Annamalai University's case (supra).
42
The decision of Uttarakhand High Court in Pant University Teachers' Association's case (supra) has been relied upon by the appellants in which it has been laid down that in exercise of the power conferred by Clauses (e) and (g) of Section 26(1) of the UGC Act, the Commission has deemed it necessary to enhance the age of superannuation of teaching staff of the Universities for advancing the cause of higher education in India. We are unable to subscribe to the view taken by the Uttarakhand High Court in the aforesaid decision. The provisions of the Regulations, Appendix and Annexure have not been properly construed in the aforesaid decision. Beside, the UGC has also taken the right stand in the return that it is at the option of the State Government to adopt the superannuation age. The recommendation made is not binding as apparent from the language of the Regulations of 2010, Annexure and the Appendix to the Regulations. Thus, we respectfully disagree with the conclusions reached in the case of Pant University Teachers' Association's case (supra) by the Uttarakhand High Court.
By way of preposterous submission, it was urged by Mr.P.S.Bhati, learned counsel appearing on behalf of the appellants, that the Apex Court in B.Bharat Kumar's case (supra) did not deal with the effect of Regulations. We have considered the Regulations of 2010 also and we do not find in the Regulations of 2010 any room for the submission that the State Government was bound to enhance the age as peremptorily, which is not so provided in the Regulations of 2010, Annexure and Appendix attached thereto.
43
Hence, we find no merit in these Special Appeals. The action of the State Government not to enhance the age from 60 years to 65 years cannot be said to be illegal or arbitrary or violative of the Regulations of 2010 framed under the UGC Act nor there is any violation of the Communication dated 31.12.2008 of the Govt. of India, Ministry of Human Resource Development, Department of Higher Education and the Communication dt.11.5.2010, issued by the Director, Govt. of India, MHRD, Department of Higher Education, to the Education Secretaries of all State Governments, travels beyond the Regulations cannot be said to be binding.
Resultantly, the appeals, being bereft of any merit, are hereby dismissed. However, the parties are left to bear their own costs.
(KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), CJ RANKAWAT JK, PS