Uttarakhand High Court
2 June vs State Of Uttarakhand & Others on 2 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:4473-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Service Bench No. 645 of 2018
02 June, 2025
Dr. Aruna Rani Mital --Petitioner
Versus
State of Uttarakhand & others --Respondents
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Presence:-
Mr. Shashank Pandey, Advocate for the petitioner.
Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand.
Mr. Rajendra Dobhal, Senior Advocate, assisted by Mr. Subhang
Dobhal, Advocate for respondent nos. 3 & 4.
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Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.
(Per: Hon'ble Manoj Kumar Tiwari, J.)
JUDGMENT
By means of this writ petition, filed in 2018, petitioner has sought the following reliefs:-
"a. To issue writ, order or direction in the nature of certiorari to call for records and quash the order dated 12.11.2018 of respondent no. 2, vide which the re-appointment has been refused to the petitioner, enclosed as Annexure 1 to the writ petition.
b. To issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to give the approval for re-appointment to the Petitioner as per Statute 17.15 of the First Statutes of the University of Hemwati Nandan Bahuguna, Garhwal, 1978 till the end of present academic session i.e. 30th June 2019."
2. As per the pleadings made in the writ petition, Sri Guru Ram Rai (Post Graduate) College, Dehradun is an 1 2025:UHC:4473-DB aided college managed by a society, which is affiliated with HNB Garhwal (Central) University. Petitioner was appointed as Assistant Professor (Political Science) in the said college on 15.11.1989; she was promoted as Associate Professor on 01.01.2006 in which capacity she served till she completed 65 years of age i.e. 09.10.2018. On 30.08.2018, petitioner made an application to the Secretary, Board of Management of the college seeking re-employment, till the end of Academic Session 2018-19 i.e. 30.06.2019. She relied upon Clause 17.15 of Chapter XVII Part-III of the First Statutes of HNB Garhwal University, which reads as under:-
"17.15. No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes:
[Section 49].
[Provided that a teacher whose date of superannuation does not fall on June 30 shall continue in service till the end of the academic session, that is, June 30 following, and will be treated as on re-employment from the date im- mediately following his superannuation till June 30, following:
Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two year, after June 30, following the date of their superannuation, as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension].
[Provided also that the teachers who were re- appointed in accordance with the second proviso as it existed prior to the commencement of the Garhwal University (Twenty-second Amendment) First Statute, 1988 and a period of one year has not elapsed after the expiry of the period of their re- employ-ment, may be considered for re-appointment for a further period of one year.]"2
2025:UHC:4473-DB
3. The application made by petitioner was forwarded by the Secretary, Board of Management of the college with his recommendation to the Director, Higher Education, vide letter dated 10.10.2018. The Director, Higher Education, turned down petitioner's prayer for re-employment, vide order dated 12.11.2018, on the ground that age of superannuation of teachers of affiliated colleges is now fixed as 65 years and in the absence of any provision for re-employment after 65 years in the Government Order, her request cannot be acceded to. Feeling aggrieved, petitioner approached this Court challenging Director's order dated 12.11.2018. She also sought direction to the Director to grant approval for her re-employment, as per Statute 17.15.
4. A short counter affidavit is filed by Dr. Ajay Kumar Mohanty, Joint Registrar, HNB Garhwal University, Srinagar stating that HNB Garhwal University was earlier a State University and was governed by provisions of U.P. State Universities Act, 1973, however, after upgradation as Central University w.e.f. 15.01.2009, the University is now governed by provisions of Central Universities Act, 2009. It is further stated that the colleges affiliated to erstwhile HNB Garhwal University remain affiliated to HNB Garhwal (Central) University, in view of provision contained in Section 4(f) of the Central Universities Act, 2009, however 3 2025:UHC:4473-DB the said Act do not confer the power to amend the Statute framed under Section 50 of the State Universities Act, 1973. It is further stated that age of superannuation of teachers of affiliated colleges was increased from 60 years to 65 years by an order issued by the State Government pursuant to UGC Regulations, however, there is no provision for extension of service till end of academic session, in the UGC Regulations or in the executive order issued by the State Government.
5. Mr. M.M. Semwal, Joint Secretary, Higher Education Department has filed separate counter affidavit on behalf of respondent no. 1, in which reference is made to the following three Government orders.
(i) Government Order dated 18.06.2005.
(ii) Government Order dated 15.10.2012.
(iii) Government Order dated 12.09.2017.
6. Learned State Counsel submits that before 2005, teachers of affiliated colleges who opted to retire at the age of 58 years were given certain retiral benefits, which were not available to teachers of such colleges who opted to retire at the age of 60 years, however, this difference was done away with by a Government Order dated 18.06.2005 and in para no. 4 of the said Government Order, it was provided that upon completing 60 years of service, such 4 2025:UHC:4473-DB teachers will be entitled to all retiral benefits, and further that no extension in service shall be given to them, however, in cases where the service of a retiring teacher is indispensible, then decision for his re-employment may be taken as per the laid down norms.
7. Learned State Counsel has also drawn attention to Government Order dated 15.10.2012 issued by Principal Secretary, Higher Education Department, whereby age of superannuation of teachers of State Universities and Colleges affiliated to such Universities was increased from 60 years to 65 years w.e.f. 04.09.2012. He submits that as per Statute 17.14, Part-III of Chapter XVII of the First Statutes of HNB Garhwal University, the age of superannuation of teacher of affiliated college is 60 years. He submits that upon upgradation of HNB Garhwal University as Central University, provision contained in the Statute could not be amended in the absence of enabling provision in the Central Universities Act, 2009. He submits that since the benefit of increase in age of superannuation was given to teachers of colleges affiliated to HNB Garhwal (Central) University by a Government Order, contrary to the Statute and in the Government Order, there is no provision for re-employment of or extension to such teachers till the end of academic session, therefore, the First Statutes of the HNB Garhwal University stood repealed 5 2025:UHC:4473-DB to the extent it is inconsistent to the policy decision taken by the State Government. He submits that as per the First Statute of the University, age of superannuation of a teacher is still 60 years, but such teachers have accepted the benefit of Government decision and they are now superannuating at the age of 65 years, which is contrary to the provision contained in Statute 17.14 Part-III of Chapter XVII of the First Statutes. Thus, he submits that reliance by petitioner upon first proviso to Statute 17.15 is misplaced. Learned State Counsel submits that petitioner could have sought re-employment till the end of academic session, only if she was retiring at the age of 60 years as per the Statute, and after increase in age of retirement to 65 years by a Government Order, she cannot claim benefit of extension till end of session merely because first proviso to Statute 17.15 permits so.
8. Learned State Counsel further submits that the provision for re-employment made in first proviso to Statute 17.15 is an enabling provision, which can be invoked by the Competent Authority in the interest of students. He submits that since petitioner enjoyed the benefit of enhanced age of superannuation pursuant to a decision taken by the State Government, which is contrary to the Statute, therefore, she cannot now contend that she may further be re-employed even after attaining 65 years 6 2025:UHC:4473-DB of age. Thus, he submits that the doctrine of desuetude would be attracted and petitioner cannot claim the benefit of first proviso to Statute 17.15 as of right.
9. Learned State Counsel has drawn attention of this Court to another Government Order dated 12.09.2017, in para no. 2 whereof, it is stated that except legal, technical or scientific posts for which special training, merit and the efficiency is required, re-employment shall not be permitted in any other post.
10. After having heard learned counsel for the parties and after going through the first Statute of HNB Garhwal University and the Government Orders issued by the State from time to time, we are of the considered opinion that after having accepted the benefit of Government Order dated 15.10.2012, whereby age of retirement of teachers of affiliated colleges was enhanced from 60 to 65 years, petitioner cannot rely on the Statute of the University for claiming extension in service till end of session.
11. As discussed above, the age of retirement of teachers of colleges affiliated to HNB Garhwal University is 60 years; while, petitioner continued in service upto 65 years of age due to the policy decision taken by State Government. The benefit available in first proviso to Article 17.15 would be available only to a teacher, who 7 2025:UHC:4473-DB superannuates at the age of 60 years, in terms of Article 17.14 of the First Statute of the University.
12. Since petitioner's continuance till 65 years of age is dehors the statutory provision, therefore, the first proviso to Article 17.15 would become inoperative by application of principle of desuetude.
13. State has issued Government Orders, which prohibit re-employment after attaining age of superannuation. As per the Statute, petitioner would have retired after completing 60 years of age, however, she served for five more years as Associate Professor on the Strength of Government Orders, therefore, the condition mentioned in Government Orders that re-employment shall not be given to a person once he/she attains age of superannuation would be attracted and reliance on the Statute for seeking re-employment is, therefore, untenable. Thus, this Court does not find any reason to interfere with the decision taken by the Director, Higher Education on 12.11.2018, whereby petitioner's request for re- employment was turned down.
14. Learned counsel for petitioner then submitted that petitioner served in the college even after completing 65 years of age, therefore, she is entitled to salary for the services rendered by her, after 09.10.2018.
15. Learned State Counsel, however, submits that 8 2025:UHC:4473-DB the State Government is not liable to pay any salary, as the Director, Higher Education had informed all concerned that petitioner is not entitled for re-employment.
16. Be that as it may, if petitioner has served after 09.10.2018, then she can approach the competent authority for salary.
17. The writ petition is, accordingly, disposed of by permitting the petitioner to make representation. The representation, if made within three weeks from today, the competent authority shall examine petitioner's claim for salary, as per law, within three months from the date of receipt of such representation.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 02.06.2025 Navin Digitally signed by NAVEEN CHANDRA NAVEEN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f 487df006da82a131bb4e4403d3c0a15, CHANDRA postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819 DA875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA Date: 2025.06.09 10:00:30 +05'30' 9