Madhya Pradesh High Court
Dr. Kumari Aruna Bhatt vs The State Of Madhya Pradesh on 29 March, 2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
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State of MP & others
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For the Petitioner : Shri Abhilash Dey, Shri Anoop Shrivastava,
Shri P. K. Asati, Shri Manoj Rajak, Shri
T. K. Khadka, Shri Sanjay Agrawal, Shri Dilip
Pandey, Shri V. K. Shukla, Shri Pranay
Verma, Advocates.
For the respondent/State: Shri K. S. Wadhwa, learned Addl.Advocate
General and Shri Piyush Dharmadhikari,
Govt. Advocate.
For the other respondents: Shri Manoj Sharma, Shri Praveen Dubey
and Smt. Nirmala Nayak, Advocates.
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PRESENT : Hon'ble Shri R.S. Jha, J.:
ORDER
(29-03-2016) This order shall govern the disposal of the aforesaid petitions as they involve similar issues and as such are being heard and decided analogously by this common order.
2. The petitioner has filed this petition claiming that the petitioner, who is working in the establishment of respondent No.3, which is aided private college, is entitled to continue in service up to the age of 65 years in view of the circular dated 14-9-2012 and, therefore, the impugned order passed by the respondent No.3 retiring the petitioner from service at the age of 62 years, dated 1-12-2015 deserves to be quashed. The petitioner has based his claim on the decision rendered by the Supreme Court in the case of Jagdish Prasad Sharma and others Vs. State of Bihar and others, (2013) 8 SCC
633.
3. The learned counsel appearing for the University Grant Commission, the respondent No.4, on advance copy, submits that similar issue has been considered in W.P.No. 5168/2012 and other connected matters by the Gwalior Bench of this Court and after extensively considering the issue from all 11 aspects of the matter, including the decision rendered by the Supreme Court in the case of Jagdish Prasad Sharma (supra) the petitions have been dismissed by order dated 13- 8-2015.
4. The learned counsel for the petitioner submits that there are certain aspects that have not been taken into consideration by the Gwalior Bench of this Court while dismissing the aforesaid writ petitions.
5. Learned counsel for the respondents points out that W.A. No.717/2014 filed by the similarly situated petitioners have already been dismissed by the Division Bench of this Court on 16.9.2014.
6. Be that as it may, as the issue has already been considered and decided by the Division bench and a coordinate Bench of this Court and as the principle of parity applies and it is undisputed that the issue raised by the petitioner has already been considered by the coordinate Bench of this Court in the aforesaid writ petition, therefore, the present petition is also decided in similar terms. The judgment of this Court in W.P.No. 5168/2012, dated 13-8- 2012 is as follows :
"In these batch of petitions, the petitioners/teachers of private aided institutions have challenged the action of the respondents in retiring them at the age of 62 years. They have further prayed that they have a right to continue up to 65 years of age. In view of commonality of issues involved, these matters were analogously heard on the joint request and are decided by this common order.
2. Facts are taken from Writ Petition No.5168/2012.
The petitioner is holding the post of Professor in the Department of Political Science in respondent No.4- college. The date of birth of the petitioner is 2.8.1950 and, accordingly, he completed 62 years of age on 1.8.2012. It is urged that the petitioner since beginning is 12 getting salary as per pay scales recommended by University Grant Commission (UGC). The said pay scale was always similar qua his counterparts working in governmental institutions. It is stated that respondent No.4 is a non-government aided institution, which is getting grant in aid by the State Government. Initially, the benefit of fifth pay commission/ UGC Scale was extended by the State Government to the petitioners. Lateron, pursuant to the order of Supreme Court, the Government has decided to pay six pay commission to the petitioners. On 16.4.2010 (Annexure P/2), the respondent No.1 issued the direction pursuant to UGC's letter dated 31.12.2008 to grant certain pay scales to the teachers. In addition, in clause 11 it is directed that the teachers engaged in class-room teaching shall continue up to 65 years of age. In other words, for the said teachers, the age of superannuation was enhanced up to 65 years. It is common ground that all the petitioners are engaged in class-room teaching. After issuance of order dated 16.4.2010 (Annexure P/2), the Government issued another letter dated 16.11.2010, whereby directed all aided educational institutions to submit detailed information in prescribed form regarding extension of benefit of extended age of superannuation.
3. S/Shri MPS Raghuvanshi, D.K.Agarwal and Alok Sharma, learned counsel for the petitioners, submit that impugned order dated 21.4.2011 came as a bolt from blue to the petitioner. As per this order, the Commissioner, Higher Education directed that the order dated 16.4.2010 (Annexure P/2) is not applicable to the teachers of aided private institutions. Criticizing this order, it is contended by the petitioner that the basic reason for issuing the order dated 21.4.2011 was the amendment in Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Vetno Ka Sandaya) Adhiniyam, 1978, which was amended in the year 2000. As per the amended provision, the teachers were getting reduced salary. The Government intended to withdraw from his responsibility to pay salary to the teachers of aided institutions. It is contended by learned counsel for the petitioner that the said amendment was set aside by a Division Bench of this Court in Dr. Sharique Ali and others vs. State of MP and others [2002 (1) MPHT 315] . This judgment was put to test by State Government in SLP (Civil Appeal No. 6362/2004 State of MP Vs. Dr. Sharique Ali). The Apex Court made it clear that said amendment cannot have any adverse impact on teachers, who were appointed prior to such amendment. Since all the petitioners in these matters were appointed prior to introduction of 13 such amendment, they are protected and are entitled to get the same benefits which their counterparts were getting in government institutions. The Government cannot shirk from its responsibility to pay salary. On the strength of this foundation, it is strenuously contended that the reason assigned in the order dated 21.4.2011 is bad in law because the ground relating to amendment in the Adhiniyam is no more available qua petitioners. Hence, the said order is bad in law.
4. The petitioner has also filed written submissions as per the liberty granted by this Court. Shri Agarwal relied on AIR 1990 SC 1305 (Miss Raj Soni v. Air Officer in charge Administration and another), to contend that once a composite scheme is introduced by UGC and it is accepted in relation to revision of pay scales, it is not open to the respondents to deny the benefit of enhancement of age of superannuation. For this argument, heavy reliance is placed on (2013) 8 SCC 633 (Jagdish Prasad Sharma and others vs. State of Bihar and others). It is argued that the UGC framed the scheme for revision of pay and enhancement of age on 31.12.2008. The same was implemented by State of Madhya Pradesh by issuing the order dated 16.4.2010 (Annexure P/2). This order is issued in the name of Governor of State. The UGC lateron issued the statutory UGC Regulations. However, before said regulation came into being, the Government of MP implemented the scheme in relation to pay scale. It is submitted that the scheme being composite in nature is applicable in its entirety. Once it is accepted by the State Government, it is no more open to the State Government to accept it in bits and pieces. It has to be accepted in toto. The petitioner contended that scheme was optional in nature. Once it is accepted, the Government cannot be permitted to say that it is not accepted in relation to age of retirement. Reliance is placed on the definition of "University", mentioned in the University Grant Commission Act, 1956 (for brevity, the "UGC Act"). By relying on (2004) 2 SCC 510 (Union of India vs. Navin Jindal), it is submitted that executive instructions made by competent authority are not "Law", whereas the regulations issued by UGC are statutory in nature and, therefore, fall within the ambit of "Law". (2006) 9 SCC 630 (U.P.Raghavendra Acharya and others vs. State of Karnataka and others) is relied upon to submit that persons similarly situated cannot be discriminated against. (2014) 8 SCC 682 (Subramanian Swamy vs. Director, Central Bureau of Investigation and another) , is also relied for the same purpose. (1988) 3 SCC 354 (Jaipal and others vs. State of Haryana) is relied to 14 contend that principle of equal pay for equal work must be made applicable for the persons discharging similar nature of work.
5. The State Government by filing return opposed the relief. It is contended that the petitioners are only entitled to continue up to 62 years of age. It is submitted that the circular dated 16.4.2010 is applicable to the teachers of State Government and Universities. The stand of the Government is that unless and until a specific circular or order is issued in respect of extension of benefit of enhanced age up to 65 years in respect of aided private institutions, it cannot be said that the teachers of those institutions are automatically entitled to continue up to 65 years of age. The respondents have contended that the petitioner is an employee of the institution, which is not receiving the grant from UGC. The services of petitioners are governed by M.P. Shaskiya Sevak Ardh Varshiki Ayu Seva Bharti Niyam, 1998 and, hence, the service conditions of petitioners are governed by different set of rules (page 3 of return in WP No.7066/2011). For this reason, it is urged that the UGC pay scale cannot be made applicable to employees of aided private institutions. It is also submitted that similar controversy cropped up in relation to teachers of unaided technical institutions. The judgment of Y.P.Singh vs. State of MP, reported in 2012 (1) MPLJ 503 , was put to test before the Apex Court. The said judgment is set aside by the Supreme Court in Jagdish Prasad Sharma (supra) . Hence, petitioners have no case. In the return filed in WP No. 5168/2012 also, the respondents have taken almost same stand.
6. Shri K.N.Gupta, learned senior counsel appeared in certain cases on behalf of the aided institutions. He contended that the petitioners have no right to continu up to 65 years of age. It is the prerogative of the respective college/employer to decide their service conditions. Heavy reliance is placed by him on the judgment of Supreme Court in the case, reported in 1992 Supp (3) SCC 191 (T.P.George vs. State of Kerala) . Interestingly, Mrs. Sangita Pachauri, learned Government counsel and Shri K.N.Gupta, learned senior counsel also relied on certain paragraphs of Jagdish Prasad Sharma (supra). They also relied on (2011) 7 SCC 172 (Khandesh College Education Society, Jalgaon and another vs. Arjun Hari Narkhede and others); (2000) 10 SCC 527 (State of Bihar and another vs. Teachers' Association of Govt. Engineering College and others); and, (2007) 11 SCC 58 (B.Bharat Kumar and others vs. Osmania University and others) . In this judgment, the Apex Court followed the ratio decidendi of earlier judgment rendered 15 in T.P.George (supra).
7. No other point is pressed by learned counsel for the parties.
8. I have heard learned counsel for the parties and perused the record.
9. In the order dated 16.4.2010, it was mentioned that the State Government decided to accept the UGC recommendation and revision of pay scale for the teachers and officials working in Government institutions w.e.f. 1.1.2006. This decision was taken in accordance with UGC's circular dated 27.2.2009. Para 11 of this circular reads as under:-
**11- Hkkjr ljdkj ekuo lalk/ku fodkl ea=ky; dh vf/klwpuk fnukad 31-12-2008 dh vuq'kalkvks ds vuq:i dafMdk&8 ,Q ¼iii½ ds vuqlkj Dykl:e Vhfpax esa layXu LVkQ dh vf/kokf"kZdh vk;q 62 ls c<+kdj 65 o"kZ dh tkrh gSA vr% vkns'k tkjh gksus ds fnukad ls Dykl:e Vhfpax esa layXu LVkQ dks lsokfuo`Rr u fd;k tk;sA ukWu&Vhfpax LVkQ&xzaFkikyks] dzhMk vf/kdkfj;ksa] vU; iz'kklfud inks ij dk;Zjr vf/kdkjh laoxZ vkfn gsrq vf/kokf"kZdh vk;q 62 o"kZ ;Fkkor jgsxhA bl laca/k esa i`Fkd ls vkns'k tkjh fd;s tk;saxsA** Petitioners placed heavy reliance on this paragraph. The bone of contention of petitioners is that whether or not this circular is issued in favour of present petitioners/teachers of aided private institutions, fact remains that this circular was implemented qua them in relation to grant of pay scale. The UGC Regulation on minimum qualification for appointment of teachers and any other academic staff in Universities and Colleges and measures for maintenance of standard in Higher Education, 2010 was introduced lateron, i.e., 30.6.2010.
However, before that the earlier scheme introduced by UGC, which contains the stipulation regarding enhancement of age of superannuation for the teachers, is accepted by State Government. Once such composite scheme is implemented, the Department cannot segregate or discriminate the teachers of aided institutions, more so, when basic reason for not doing the same is not available to the State. I find some substance in the said contention. In the order dated 21.4.2011, whereby the Commissioner opined that the order dated 16.4.2010 will not be applicable to present petitioners, it is stated that the State Government Teachers are getting pay scale as per fifth pay commission. The Government policy relating to grant and its amendment is subject matter of adjudication 16 before Supreme Court. Hence, the employees are getting fifty per cent pay as per interim order of Supreme Court. For this reason, it is held that present petitioners are not entitled to get the benefit of enhancement of age.
The relevant portion of this order reads as under :-
**;gkW ;g Hkh Li"V djuk t:jh gS fd izns'k ds vuqnku izkIr v'kkldh; egkfo|ky;ksa dks ikapos osrueku ds vUrxZr vuqnku fn;k tk jgk gSA 'kklu us o"kZ 2000 esa vuqnku uhfr cukbZ Fkh] ftuds vuqlkj o"kZ 2000 ls 20% izfro"kZ vuqnku jkf'k esa dVkSrh dj 5 o"kkZs esa vuqnku 'kwU; djus dk fu.kZ; fy;k Fkk ftlds fo:) izdj.k orZeku esa ekuuh; loksZPp U;k;ky; esa yfEcr gSA ekuuh; loksZPp U;k;ky; ds vUrfjr vkns'kkuqlkj 50% jkf'k dk Hkqxrku fd;k tk jgk gSA vr% funsZf'kr fd;k tkrk gS fd vkids {ks=kf/kdkj ds varxZr ,sls izdj.kksa ftuesa vuqnku izkIr v'kkldh; egkfo|ky; esa dk;Zjr f'k{kdksa us ekuuh; mPp U;k;ky; eas viuh vf/kokf"kZdh vk;q 62 o"kZ djus gsrq ;kfpdk,W izLrqr dh gS vkSj LFkxu izkIr fd;s gS] ,sls izdj.kksa esa mijksDrkuqlkj rRdky tokcnkos izLrqr dj 'kh?kz lquokbZ gsrq vkosnu izLrqr djsaA**
10. This is an admitted position between the parties that Civil Appeal No. 6362/2004 (State of Madhya Pradesh and another vs. Dr. Sharique A.Ali) is disposed of by the Supreme Court. As per the order of Supreme Court, the employees/teachers, who entered service before amendment in the Adhiniyam, are protected. The Apex Court on January 7, 2014 opined that the request for extending the Sixth Pay Commission Scale to the teacher/lecturers/employees working in private aided institutions should be accepted and granted. In para 5 of said order, the directions were also issued. Thus, it is clear that the petitioners became entitled to get benefit of Sixth Pay Commission.
11. So far rejection of petitioners' prayer on the ground of Sanshodhan Adhiniyam is concerned, I have no hesitation to hold that this ground is unsustainable. Accordingly, such reason mentioned in the order dated 21.4.2011 (Annexure P/4) is unsustainable. The said Sanshodhan Adhiniyam was struck down by this Court in Dr. Sharique Ali (supra). The Apex Court also protected the employees, who were on rolls before such amendment. However, this is not the only legal hurdle in the way of the petitioners.
12. Interestingly, both the parties have relied on the judgment of Supreme Court in Jagdish Prasad Sharma (supra). Before dealing with the contentions based on said judgment, it is apt to mention here that a batch of petitions were filed by teachers working in aided private technical institutions. Their claim was also to continue up 17 to 65 years of age. This Court in Y.P.Singh (supra) allowed the said petition. This Court in para 8 gave a specific finding that the State Government has already treated the petitioners therein at par with their counterparts in Government institutions and passed the order dated 19.10.2010 for the purpose of enhancing the age of superannuation up to 65 years. In para 9 also, this Court found that the order dated 19.10.2010 shows that State Government has followed and accepted the regulation and enhanced the age of teachers from 62 to 65 years. This judgment was put to test before the Division Bench. The Division Bench in its judgment, reported in 2012 (2) MPLJ 538, affirmed the order of the writ Court. The challenge was then made before the Apex Court. It appears that a batch of SLPs/Appeals arising out of different High Courts were clubbed together and decided by the judgment of Jagdish Prasad Sharma (supra) . It is seen that the judgment of this Court in Y.P.Singh was also subject matter of challenge in the batch of petitions decided by Jagdish Prasad Sharma (supra) .
13. Learned counsel for the petitioners have taken pains to submit that as per the finding given in para 21 of the judgment of Jagdish Prasad Sharma (supra) , it is clear that the State of Madhya Pradesh has implemented the Scheme (Central Government Notification dated 31.12.2008). Hence, heavy reliance is placed on para 79 of the judgment, which reads as under:-
"79. However, within this class of institutions there is a separate group where the State Government themselves have taken a decision to adopt the Scheme. In such cases, the consequences envisaged in the Scheme itself would automatically follow."
On the strength of this, it is contended that the petitioners are entitled to enjoy the benefit of age of retirement (65 years).
14. I am afraid, this contention cannot be accepted. No doubt, in para 21 of Jagdish Prasad Sharma (supra) , the Apex Court noted that it appears that the States of West Bengal, Uttar Pradesh, Haryana, Punjab and Madhya Pradesh implemented the scheme without waiting for UGC Regulation on 30.6.2010 and said Scheme was implemented by aforesaid States long before the said date. Fact remains that despite this finding and the finding mentioned in para 79, the SLPs challenging the order of this Court in Y.P.Singh (supra) 18 and other connected matters are allowed and the order of this Court is interfered with. These SLPs (C) are 6724, 13747 and 14676 of 2012. It is clear that the basic reason for finding of this Court in Y.P.Singh was that the State Government has accepted the Scheme. Even Regulations framed by AICTE were accepted thereby enhancing the age of teachers up to 65 years. To the extent of implementation of regulation, case of Y.P.Singh was on a better footing. In the present case, there is no material on record to show that UGC Regulation in relation to private aided institution is accepted by the State Government. In fact, there is no material even to show that scheme of UGC dated 31.12.2008 has been accepted by State Government in relation to private aided institutions. In cases of private aided technical education institutions, the Apex Court interfered with the judgment of this Court. Accordingly, I am unable to hold that for similar reasons, these petitioners can succeed. Putting it differently, in Y.P.Singh (supra), the claim was based on AICTE Scheme and Regulations whereas present claim is based on UGC Scheme and Regulation. The Apex Court set aside the judgments of this Court, which were passed on the similar contentions of the petitioners therein, which were advanced in the present matter. Learned senior counsel appearing for the institutions also apprised that Review Petition (C) No. 614/2014, filed by Y.P.Singh, is also dismissed by Supreme Court on 27.3.2014.
15. It is clear that despite finding in paras 21 and 79 of the judgment of Jagdish Prasad Sharma (supra), the fact remains that SLPs filed by State Government against the orders passed in Y.P.Singh and other connected matters are allowed. Hence, the present petitioners, who have almost advanced similar contentions, cannot succeed. So far the contention regarding salary for the services already rendered is concerned, in my view, the petitioners deserve this benefit. In para 80 of Jagdish Prasad Sharma (supra) , the Apex Court opined that "persons who have continued to work on the basis of interim orders of the Court, shall not be denied the benefit of services during the said period". Accordingly, those petitioners, who have worked because of interim order of this Court and retired, shall be entitled to get salary for the services rendered by them. This payment (if not already made) shall be made within ninety days from the date of production of this order.
16. In view of aforesaid foregoing analysis, I am unable to hold that the petitioners are entitled for a declaration that they are entitled to continue up to 65 years of age. Petitions to this extent are dismissed.
1917. Registry is directed to keep true copy of this order in all the connected matters."
7. In view of the decision of the Division Bench and the coordinate Bench of this Court the present petition is also dismissed in similar terms and the reasons mentioned in the order passed in W.P.No. 5168/2012, dated 13-8-2015 shall be read as part of this order. It goes without saying that the petitioner if so advised would be at liberty to take up all issues including the issue relating to the College code in the writ appeal if a writ appeal is filed by the petitioner.
8. The petition filed by the petitioner accordingly stands dismissed.
(R.S.Jha) Judge mct/bina