Karnataka High Court
Gurumurthy S/O. Rudrappa P K vs Union Of India Represented Through Its ... on 4 July, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.102633/2021 (S-RES)
BETWEEN:
SRI GURUMURTHY
S/O. RUDRAPPA P K
AGED ABOUT 62 YEARS,
WORKING AS PROFESSOR,
O/o. UNIVERSITY OF AGRICULTURAL SCIENCE,
GKVK, DHARWAD-580 004,
R/AT NO.88, SHAKTINAGAR,
2ND MAIN, GANDHINAGAR,
DHARWAD - 580 004.
... PETITIONER
(BY SMT: ANUSHA L., ADVOCATE)
AND
1. UNION OF INDIA
REPRESENTED THROUGH ITS SECRETARY
GOVERNMENT OF INDIA
DEPARTMENT OF HUMAN RESOURCE
AND DEVELOPMENT, SHASTRI BHAVAN,
NEW DELHI-110 001.
2. STATE OF KARNATAKA
REPRESENTED BY CHIEF SECRETARY,
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560001
KARNATAKA.
2
3. STATE OF KARNATAKA
REPRESENTED BY PRINCIPAL SECRETARY
HIGHER EDUCATION DEPARTMENT
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560 001
KARNATAKA.
4. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
AGRICULTURE AND HORTICULTURE DEPARTMENT,
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560 001,
KARNATAKA.
5. INDIAN COUNCIL OF
AGRICULTURAL RESEARCH
KRISHI BHAVAN,
DR. RAJENDRA PRASAD ROAD,
NEW DELHI-110 001
REPRESENTED BY ITS SECRETARY.
6. THE SECRETARY UNIVERSITY
GRANTS COMMISSION (UGC)
BAHADURSHAH ZAFAR MARG,
NEW DELHI - 110 002.
7. CHAIRMAN,
ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION,
HEAD OFFICE: NELSON MANDELA MARG,
VASANT KUNJ,
NEW DELHI - 110 067.
8. REGIONAL OFFICER AND ASST. DIRECTOR,
ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION,
REGIONAL OFFICE-
SOUTH HEALTH CENTRE BUILDING,
BANGALORE UNIVERSITY CAMPUS,
BENGALURU-560 009.
9. UNIVERSITY OF AGRICULTURAL SCIENCE
GKVK, DHARWAD-580 004
3
REPRESENTED BY ITS VICE CHANCELLOR.
10. THE REGISTRAR
UNIVERSITY OF AGRICULTURAL SCIENCE,
GKVK, DHARWAD - 580 004.
... RESPONDENTS
(BY SRI VINAYAK KULKARNI, AGA FOR R2 TO R4;
SRI B.A. CHANDRSHEKHAR & SRI H.M. DHARIGOND,
ADVOCATE, ADVOCATES FOR R-5;
SRI MRUTHYUNJAYA TATA BANGI, ADVOCATE FOR
R6;
SRI ANOOP G. DESHPANDE, ADVOCATE FOR R7 & R8
AND SRI RAMACHANDRA A. MALLI, ADVOCATE FOR
R9 & R10.)
***
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF MANDAMUS DIRECTING THE RESPONDENTS TO
CONTINUE THE SERVICES OF THE PETITIONER TILL THE
PETITIONER ATTENDS THE AGE OF 65 YEARS AS PER THE
DECISION OF UNIVERSITY FORWARDED TO THE GOVT. IN
ITS LETTER DT.09.02.2018 & 09.01.2019 AS PER
ANNEXURE AND FURTHER DIRECTIONS THAT THE AGE OF
RETIREMENT OF THE PETITIONER SHALL BE 65 YEARS AS
PER THE LETTER DT.23.03.2017 (ANNEXURE-D),
04.04.2007 (ANNEXURE-C), 02.11.2017 (ANNEXURE-J),
09.02.2018 (ANNEXURE-M) & 09.01.2019 (ANNEXURE-P)
AND AS PER UGC REGULATIONS DT.10.06.2019
(ANNEXURE-H) AND REGULATIONS DT.18.07.2018
(ANNEXURE-N) & ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The instant writ petition is filed for a writ of mandamus directing the respondents to continue the services of the petitioner and to fix the age of superannuation of the petitioner as 65 years prescribed by 4 the extant UGC Regulations and has sought to declare the Government order dated 15.10.2009 to be inconsistent with the recommendations made by the Pay Review Committee and accepted by the Ministry of HRD and to declare the said GO as void ab initio and inoperative to the extent of Regulation framed by UGC and for other consequential reliefs.
2. It is the case of the petitioner that he was appointed as an Instructor in respondent - Institution on 13.05.1985 and was subsequently promoted as Assistant Professor on 12.05.1990 and as a Professor on 13.05.2005. On 30.06.2021, he would retire on attaining the age of 60 years and was posted as Dean of Post Graduate Studies in respondent No.9 - University. It is pleaded that petitioner has completed 36 years of service and is entitled to continue up to the age of 65 years.
3. The grievance of the petitioner is that though he was eligible in September 2020, he was given the post of Dean of Post Graduate Studies in respondent No.9 - University on 31.05.2021. The post of Dean of Post Graduate Studies is the tenure post for a period of three years as per the University Statute and until a direct 5 recruitee reports to the said post the petitioner is entitled to continue in the said post. It is further stated that the petitioner is entitled to continue in the said post till he is relieved.
4. Petitioner is aggrieved against the prescription of 62 years by the State Government and the respondent - University as regards the age of superannuation. It is further stated that before the State Government passed on order on 15.10.2009, the UGC issued an order dated 04.04.2007 based on the Government of India, Ministry of HRD, Department of High Education letter dated 23.03.2007 enhancing the age of superannuation to 65 years from 60 years.
5. Thereafter, Ministry of HRD by letter dated 31.12.2008 intimated to the Secretary, UGC with regard to direction of the Government of India to revise the pay scale of teachers in Central Universities based on the decision taken at Commission meeting on 07-08/10/2008 along with scheme of revision of pay of teachers and equivalent cadres in universities and colleges following the revision of pay scale of Central Government employees on 6 recommendation of 6th Pay Commission, wherein the age of superannuation of teachers was fixed as 65 years.
6. It is further stated that the State Government constituted a Committee for implementation of scheme of revision of UGC called Implementation Committee, which also recommended the age of retirement to be 65 years from 60 years. Under these circumstances, the petitioner cannot be relieved by the University as he is working as Dean of Post Graduate Studies.
7. Petitioner is also seeking revision of his pay scale in terms of the pay scale of the Central Government employees in the recommendation of 7th Central Pay Commission. Therefore, petitioner is seeking entitlement of revision of pay scale along with the age of superannuation from 60 years to 65 years and that petitioner is to be relieved only on attaining the age of superannuation, ie., the age of 65 years.
8. Heard learned counsel for petitioner as well as learned counsel for the respondents.
9. It is the vehement contention of learned counsel for petitioner that the Pay Review Committee recommended 7 that the age of superannuation to be uniform throughout the Country, which has been accepted by the Government, UGC based on which, Regulations are framed vide letter dated 23.03.2007 and 04.04.2007. In view of the same, he contends that he is entitled to continue until the age of 65 years. He vehemently contends that clause-7.6 of Uniform Implementation Chapter-VII of the Pay Review Committee of UGC of 2017 wherein the VII Central Pay Commission has clearly recommended uniform pay throughout the Country. Hence, he contends that the Government cannot accept one part of the Regulation and reject other part of AICTE Regulations.
9.1. Learned counsel further contends that as per the recommendation, the Universities shall not accept one clause and reject the other clause, thereby the UGC regulations should be implemented uniformly through the country, not only in the Central but in the State Universities with grants given to the Institutions. He further contends that while dealing with right to education in terms of Article 21A of the Constitution of India, financial constraints upon the State cannot be a ground to deny the fundamental rights as laid down by the Hon'ble Apex Court in the case of 8 Brij Mohan Lal v. Union of India reported in (2016)6 SCC 502.
9.2. Learned counsel further contends that apart from the AICTE Regulations and National Medical Council Regulation, all the Institutions are run by the Scheme that has been formulated by the Hon'ble Supreme Court while fixing the fee Committee constituted by it. Hence, he draws paramateria that there can be no distinction while applying the regulations of AICTE to a teacher/professor whether they are employed in Government, aided or private and unaided Institutions.
9.3. It is further contention of learned counsel that when AICTE pay scales are being extended to private Institution be it aid or unaided, there is no reason to deny the age of superannuation under clause-2.12 of AICTE notification dated 01.03.2019. He further contends that the petitioner is not governed by K.C.S.R. pertaining to the age of superannuation as the Rule framed by the State Government to that extent is inconsistent with AICTE Regulation. Hence the same is void ab initio as per the judgment of the Hon'ble Apex Court in a case reported in (1995) 4 SCC 104.
9
9.4. Learned counsel further contends that the Rule framed by the State Government is totally inconsistent with the Central Legislation and the same is void ab initio. He also contends that the State Government cannot have any objection when there is major contribution by AICTE and that only a fraction of the contribution is by the State Government. Hence, the revision of pay scale should be uniformly followed throughout the country. Under these circumstances, learned counsel contends that the petitioner is entitled for age of superannuation in terms of clause 2.12 of AICTE notification dated 01.03.2019 and so also for the benefit of decision of this Court in W.P.No.15421/2020.
9.5. Learned counsel for the petitioner further contends that on these grounds urged, the service of the petitioner deserve to be extended upto the age of 65 years by granting all consequential benefits and the respondents would not have the powers to relieve the petitioner until attaining the age of 65 years. Hence, he seeks to allow the petition.
10. It is the vehement contention of learned counsel for respondents that contention raised by the learned 10 counsel for petitioner would not be applicable to the present facts and circumstances of the case. However, it is not disputed the Government Order dated 23.03.2007 age of superannuation has been extended from 62 years to 65 years. But it is seriously contended that whether UGC regulations could be strictly made applicable with regard to enhancement of the age of superannuation, applicable to the petitioner herein and the State Government and the State Universities. It is contended that the UGC regulations framed with regard to matter of service conditions of teachers in centrally funded education institutions are well established and not in dispute. However, they contend that the acceptance of said scheme of UGC in its composite form has been rightly left to the discretion of the respective State Governments. They further contend that regulations framed by the UGC related to Entry-66 of List-I of Schedule VII of the Constitution which is also held that it does not empower the commission to alter any other terms and conditions of enactment of the State under Article 309 of the Constitution.
10.1. Learned counsel appearing for the respondents vehemently contends that the petitioner would not come 11 within the purview of definition of 'public servant', who would fall under the 'State Public Services'. Admittedly, the petitioner is a Dean of Post Graduate Studies in the respondent-University of Agricultural Sciences and is bound by the provisions of University of Agricultural Sciences Act, 2009. It is also admitted that the petitioner has retired. The University of Agricultural Sciences is established by the State Government under the law of State Legislature. Hence, the question of petitioner seeking the benefits of UGC regulation or scheme for the purpose of implementation of increase of age of superannuation would not hold water and on this ground, the petition deserves to be dismissed.
10.2. Learned counsel appearing for respondents, in unison, contend that the petitioner obtained an interim order at the hands of this Court on 28.07.2021 on the basis of an identical matters in WP.Nos.10638/2021 a/w 10628/2021 where similarly placed petitioner had approached this Court was provided an interim order, wherein it held the petitioner 'shall not be relieved on attaining the age of 62 years'. Based on the said interim order, the petitioner has continued to work in the 12 respondent-University as a Dean. Learned counsel for respondents submit that the aforesaid WP.Nos.10638/2021 a/w 10628/2021, on the strength of which the petitioner herein secured an interim order has been dismissed vide order dated 28.04.2022, wherein the entire facts and circumstances, the legal propositions and the precedents were agitated and argued before the said Court at length were similar in nature. Learned counsel for respondents contend that in view of dismissal of the aforestated writ petition, which is similar to the one that is canvassed by the petitioner herein, this petition also would not survive for consideration. Learned counsel further submit that the aforestated WP.Nos.10638/2021 a/w 10628/2021 were challenged before the Hon'ble Division Bench of this Court in WA.No.100198/2022 C/w. WP.No.101937/2022, which also are dismissed. Hence, the question of considering this petition in detail would not arise and this petition also would meet the same fate as the aforestated writ petition.
11. In the circumstances of the contentions urged by both the learned counsel for petitioner as well as the respondents, the points that would arise for consideration are;
13
"i) Whether the petitioner would be entitled to the benefits of the implementation of scheme of UGC regulations, more specifically, the age of superannuation to be at 65 years?
ii) Whether the Government Order dated 15.10.2009 is to be declared as void ab initio?"
12. It would not detain this Court much to discuss above two points, in view of the fact that the very same issue was subject matter of consideration in the aforestated WP Nos.10638/2021 a/w 10628/2021. It is the case of the petitioner that his services is bound to be considered till he attains the age of 65 years in terms of UGC Regulations, 2018. His grievance is against the age of prescription of 62 years by the State Government and the respondent- University as the age of superannuation. The respondents have very clearly stated that the age of retirement is a condition of service, which is regulated by the provisions of the University Statutes promulgated under the State Legislature and therefore, the question of repugnancy between the Central Law and State Law does not conflict and there is no remote chance of contradictions. In the present case, the State Government and the University have prescribed the age of superannuation of the petitioner and the like employees to be 62 years.
14
13. These aforementioned facts on point of law have been elaborately held, discussed and has reached finality in the aforestated WP.Nos.10638/2021 a/w 10628/2021. It would be relevant to draw certain extracts from the said judgment, which read as follows:
"5. However, when it was pointed out that similar question came up for consideration before the Hon'ble Apex Court in the case of Jagdish Prasad Sharma And Others Vs. State of Bihar And Others, (2013) 8 SCC 633 and during the course of the proceedings the Central Government had by its letter dated
14.08.2012, clarified the position and had made it clear that the question of enhancement of the age of superannuation is exclusively within the domain of policy making powers of the State Government and that 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 Universities and College teachers, learned Senior Counsel submitted that no such clarification has been issued insofar as the 2018 Regulations are concerned.
6. xxxxxxxxxxxx 15
8. Insofar as the State of Karnataka is concerned, it is submitted that having accepted the recommendation of the 6th Central Pay Commission and following the enhancement of the age of superannuation by the Government of India, the State Government issued a Government Order dated 15.10.2009, enhancing the age of superannuation of the teachers of Universities drawing UGC scales from the existing 60 years to 62 years with immediate effect. However, the said Government Order clarifies that the age of superannuation of other teachers shall continue to be 60 years only.
9. Insofar as the respondent university is concerned, it is submitted that the Syndicate, after collecting and collating information from all the agricultural universities and colleges, decided and recommended to the Government of Karnataka seeking enhancement of the age of superannuation of all its teachers from 62 to 65 years and that of the Vice-Chancellor from 65 to 70 years. Attention of this Court was drawn to such communication dated 09.02.2018 made by the University to the Principal Secretary, Department of Agriculture and Horticulture.
10. xxxxxxxx
11. However, when it was pointed out to the learned Senior Counsel that in Jagdish 16 Prasad Sharma (supra), the Hon'ble Supreme Court although held that there is no doubt that the Regulations framed by the UGC relate to Entry 66 of List I of Schedule VII of the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments of the States under Article 309 of the Constitution, learned Senior Counsel seeks to contend that the Constitution, in Article 254 provides that if any provision of law made by the State Legislature is repugnant to any provision of law made by Parliament, then the law made by the Parliament, whether passed before or after the law made by the Legislature of such State, shall prevail and the law made by the Legislature of the State, shall, to the extent of the repugnancy, be void. In this regard, the learned Senior Counsel seeks to place reliance on several judgments of the Hon'ble Supreme Court, including:
i) Gambhirdan K Gadhvi Vs. The State of Gujarat and Others, W.P.(Civil) No. 1525/2019 dated 03.03.2022,
ii) Kalyani Mathivanan Vs. K.V. Jeyaraj and Others, (2015) 6 SCC 363,
iii) Annamalai University Vs. Secretary to Govt., Information and Tourism Department And Others (2009) 4 SCC 590.
17
12. Learned Senior Counsel submits that the Hon'ble Supreme Court has held that it cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of Powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act shall be laid before each House of the Parliament. Therefore, being a subordinate legislation UGC regulations become part of the Act. In case of any conflict between State Legislation and Central Legislation, Central Legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject "education" is in the concurrent list (List-III) of the VII Schedule. In Kalyani (supra) it was held that the UGC Regulations being passed by both the Houses of Parliament, though a subordinate Legislation it has binding effect on the Universities to which it applies. The UGC Regulations are mandatory to Teachers and other Academic staff in all the Central Universities and Colleges thereunder and Institutions, deemed to be Universities whose maintenance expenditure is met by UGC.
13. xxxxxxxxx
20. In the considered opinion of this Court, the issue as to whether the mandate contained in the UGC Regulations could be 18 made strictly applicable in the matter of enhancement of the age of superannuation of the teachers under the services of the State Government, State Universities and other teachers has been directly dealt with in Jagdish Prasad Sharma (supra), albeit, qua Regulations, 2010. It has been clearly held that there is no doubt that the Regulations framed by the UGC in the matter of service conditions of teachers in the Centrally-funded Educational Institutions are well established. However, the acceptance of the Scheme in its composite form has rightly been left to the discretion of the State Governments. There is no doubt that the Regulations framed by the UGC relate to Entry 66 of List-I of Schedule VII of the Constitution, but it was held that it does not empower the commission to alter any of the terms and conditions of the enactments of the States under Article 309 of the Constitution.
21. xxxxxxxxx
26. This Court is also not inclined to accept the submission of the learned Senior Counsel who had pointed out to proviso 1 of Clause 1.1 of the Regulations and submitted that until appropriate Regulations are framed by the competent authority, the provisions of the Regulations of the UGC should be made applicable to the respondent-Institution. The 19 Hon'ble Apex Court in the case of B.Bharat Kumar and Others Vs. Osmania University and Others, (2007) 11 SCC 58, has clearly held that the courts do not formulate a policy as to what the age of superannuation should be as by doing so, the court would be trailing into the dangerous area of the wisdom of the legislation.
27. Having regard to the catena of cases cited by the learned Counsels at the Bar, it is also evident that the Regulations of the UGC can only be enforced on the Centrally- funded Universities and Colleges, more so because, the Central Government has accepted the recommendations of the Pay Commission and the Scheme formulated by the UGC under the Regulations, in its entirety. It is also evident that many of the States, including the State of Karnataka declined to enhance the age of superannuation, but implemented the other provisions of the Scheme. The UGC has relented and the Central Government funds are released to all such States, ignoring the fact that the Scheme was not implemented in its entirety. A careful reading of the Regulations also shows that the UGC seeks implementation of its Scheme in all the Colleges and Universities of the State through the State Government. The UGC has no direct control over the private unaided institutions. 20
28. Viewed from any angle, the contentions raised by the petitioners cannot be accepted and the prayer made cannot be granted. Consequently, the writ petitions stand dismissed. Ordered accordingly."
14. As stated earlier, the facts and circumstances, the Government Order and the provisions of law involved and canvassed in this case is similar to that of the aforestated writ petition. Hence, when a Coordinate Bench of this Court has already taken an opinion that similarly placed person as that of the petitioner herein in the aforestated writ petition has not been successful and his petition having been dismissed, same fate will befall the petitioner herein.
15. It is also relevant to note that the aforestated writ petition was put in challenge in WA.No.100198/2022 C/w. WP.No.101937/2022 and the same subject matter was taken up in petition by a non-party to the writ petitions in WP.Nos.10638/2021 a/w 10628/2021, wherein the Hon'ble Division Bench of this Court has held in para-5(g) as under:
"g) The learned Single Judge (Hon'ble Justice R.Devdas) having bestowed consideration to all the material aspects of the case in the right perspective has rendered the 21 impugned judgment, which cannot be faltered on the grounds urged before us. The appellant/petitioner has miserably failed to show that this judgment is wrong in any way and much less is otherwise unsustainable. We have not adverted to the decisions treated by the learned Single Judge inasmuch as we are in complete agreement with the way he has construed the ratio thereof."
16. The Hon'ble Division Bench of this Court has upheld the decision of the Coordinate Bench of this in WP.Nos.10638/2021 a/w 10628/2021 and dismissed the appeal filed by the non-party challenging the aforesaid judgment. The present case on hand which is similar to the above said case has reached finality in the form of dismissal of the claim of the petitioner seeking for superannuation of age to be at 65 years. The other grounds urged by the petitioners herein were also the subject matter of the aforestated writ petition, which was argued in detail and the same has been considered and negatived by the Coordinate Bench of this Court which was challenged before the Hon'ble Division Bench and the same has been negatived and rejected, thereby confirming the order of the 22 Coordinate Bench of this Court, dismissing the case of the petitioner therein.
17. In view of the above, I do not find any merit in the present writ petition as no new facts and question of law has been raised in this present writ petition other than what is canvassed and urged in the aforestated writ petitions in WP.Nos.10638/2021 a/w 10628/2021. Accordingly, answering the above points the fate of this petition cannot be different from the aforestated writ petition. Writ petition is dismissed.
Sd/-
JUDGE VK/LB