Gauhati High Court
Dr. Anil Kumar Saikia vs The State Of Assam And 8 Ors on 20 January, 2020
Author: Ajai Lamba
Bench: Ajai Lamba
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GAHC010118892018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 251/2018
1:DR. ANIL KUMAR SAIKIA
ASSOCIATE PROFESSOR, DEPTT. OF PHARM SCIENCE, DIBRUGARH
UNIVERSITY, DIBRUGARH, R/O WEST MILAN NAGAR, BYE LANE N, P.O.
C.R. BUILDING, DIST. DIBRUGARH, PIN 786003
VERSUS
1:THE STATE OF ASSAM AND 8 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM, HIGHER EDUCATION DEPTT., DISPUR, GUWAHATI-6
2:THE COMMISSIONER AND SECY.
GOVT. OF ASSAM
HIGHER EDUCATION DEPTT.
DISPUR
GUWAHATI-6
3:THE DEPUTY SECY. TO THE GOVT. OF ASSAM
POLITICAL CABINET CELL DEPTT.
DISPUR
GUWAHATI-6
4:THE DIBRUGARH UNIVERSITY
REP. BY THE VICE-CHANCELLOR
DIBRUGARH UNIVERSITY
DIBRUGARH
PIN 786004
5:THE VICE CHANCELLOR
DIBRUGARH UNIVERSITY
DIBRUGARH
PIN 786004
6:THE REGISTRAR
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VICE CHANCELLOR
DIBRUGARH UNIVERSITY
DIBRUGARH
PIN 786004
7:THE JOINT SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI-6
8:THE UNIVERSITY GRANTS COMMISSION
BAHADUR SAHA ZAFAR MARG
NEW DELHI 110002
REPRESENTED BY ITS SECY.
9:THE SECY.
THE UNIVERSITY GRANTS COMMISSION
BAHADUR SAHA ZAFAR MARG
NEW DELHI 11000
Counsel for the appellant : Mr. K.N. Choudhury, Senior Advocate
Mr. S. Borthakur
Counsel for the respondents : Mr. R. Mazumdar,
Standing Counsel,
Higher Education Department for
Respondents No. 1, 2 and 3.
Mr. N.C. Das, Senior Advocate for
Respondents No.4, 5 and 6.
Mr. A. Chaliha, Standing Counsel,
Finance Department for Respondent No.7.
Mr. A. Chamua,
Standing Counsel, UGC for Respondent No.8
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
20-01-2020
(Ajai Lamba, CJ )
1. The issue raised by Shri K.N. Choudhury, learned Senior Advocate appearing
on behalf of the writ appellant is that Government of Assam in the Higher
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Education Department has raised the age of superannuation of Professors upto 65
years, however, the same benefit has not been given to other members of the
teaching faculty. It has been pleaded on behalf of the appellant, in the light of the
decision of the Supreme Court in Osmania University Vs. V.S. Muthurangam
and others, (1997) 10 SCC 741 (Paragraph-8), that it is undesirable and
impracticable to have different ages of superannuation.
2. Paragraph 8 of the judgment rendered in Osmania University (supra) case
reads as under :
"8. After giving our careful consideration to the facts and circumstances
of the case and the submissions made by the learned Solicitor General
and also the learned counsel appearing for the respondents, it appears
to us that teaching and non-teaching staff of the University are distinct
and separate categories. The nature of duties to be performed by the
teaching and non-teaching staff of the University are also different.
Therefore, apart from different scales of pay in the hierarchy of the
service in both teaching and non-teaching departments, it may be held
that the nature of service of the two distinct and different departments
namely the teaching and non-teaching departments, is inherently
different. The Solicitor General is justified in his contention that Section
38(1) of the Act recognises flexibility and the expression "as far as
possible" inheres in it an inbuilt flexibility. There was impelling necessity
for the University to change the age of superannuation of the teaching
staff in order to give effect to the recommendations of the University
Grants Commission. The University, in our view, will be justified within
the ambit of Section 38(1) to introduce different conditions of service for
different categories of employees if such different conditions become
necessary for the exigency of the administration and if it is otherwise
impracticable to bring uniformity in the conditions of service of different
categories of its employees. For the same reason, it is permissible for
the University to introduce the age of superannuation differently for
different categories of the employees, if introduction of such different
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age of superannuation can be justified on the anvil of felt need of the
administration. But if uniform conditions of service for teaching and non-
teaching staff of the University is not otherwise impracticable, the
University is under an obligation to maintain such uniformity because of
the mandate of Section 38(1) of the Act. In the instant case, we do not
find that it is not at all practicable for the University to maintain the
parity in the age of superannuation of both teaching and non-teaching
staff. There is no compulsion under the law that the University is bound
to maintain the same age of superannuation of its teaching and non-
teaching staff as is available to the employees of the State Government.
Because there is no such statutory compulsion to maintain the age of
superannuation of the teaching staff on a par with government
employees, the University has increased the age of superannuation of its
teaching staff. Hence, the University can easily raise the age of
superannuation of the non-teaching staff for bringing a parity in the
service conditions of the salaried staff of the University by fulfilling the
mandate under Section 38(1) of the Act. The age of superannuation of
the employees of some of the universities in the State of Andhra
Pradesh is different to that of the employees of the State Government of
Andhra Pradesh. It has been rightly contended by Mr Subba Rao that
although the State Government itself has authority to regulate the
conditions of service of the employees of the Andhra Pradesh University,
the State Government has fixed the age of superannuation of the
employees of the said University differently. Therefore, it cannot be
contended that it is either undesirable or impracticable to bring
uniformity in the age of superannuation of the teaching and non-
teaching staff of the Osmania University. Hence, the decision of the High
Court that when the age of the teaching staff of the University has been
increased to 60 years the age of superannuation of the non-teaching
staff should also be changed in a similar manner in order to bring parity
in the service conditions of the salaried staff of the University in
obedience of the mandate under Section 38(1) of the Act, is justified.
We, therefore, do not find any reason to interfere with the impugned
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decision of the High Court. These appeals, therefore, fail and are
dismissed without any order as to costs."
3. Learned counsel for the appellant has also referred to paragraphs 34 and 37
of the judgment rendered by the Hon'ble Supreme Court of India in Dr. Jagadish
Saran and others -Vs.- Union of India, (1980) 2 SCC 768 to contend that
mere assertion on a part of the State would not be sufficient to justify
discrimination. Different ages of superannuation have been provided without any
data, which has caused injustice.
4. Paras 34 and 37 of judgment rendered in Dr. Jagadish Saran's case (supra)
read as under :-
"34. Thus the constitutional principles and limitations are clear and
the norms are belighted by the precedents but their application to the
specific situation is an exacting task. The burden, when protective
discrimination promotional of equalisation is pleaded, is on the party
who seeks to justify the ex facie deviation from equality. What has the
Delhi University stated here ? The learned Attorney General frankly
admitted that student agitation, without more, could not validate
'reservation' and the excessive reservation was an obvious inequality.
Nor, indeed, is it a good plea that illegal reservation is being practiced
by other universities and the Delhi University is forced to act illegally in
self-defence. Lawlessness, under our system, is corrected by the law,
not by counter-lawlessness. So it is strange for the Delhi University to
say our disorderly behaviour is orderly because other universities
behave similarly. Once these misguided defences of direct action by
students or reprisals against other universities are brushed aside, we
come to grips with the real issues. Is there circumstantial justification
for constitutionalising the reservation strategy, especially of 70 % plus ?
.....
37. The argument urged in answer is that the doors for admission to Page No.# 6/6 post-graduate medical courses are almost completely closed for Delhi graduates by all other universities. So, protective reservation becomes necessary as the only hope of Delhi students for post-graduate studies. Those real-life factors which show that Delhi graduates are denied de facto equality on a national scale by the exclusionism of other universities and that, therefore, they deserve sheltered equal opportunity in actuality by barriers of reservation of a high percentage of seats - such being the University's defence - must be made out and not merely asserted. This contention deserves close examination, not summary rejection."
5. Learned counsel for the respondent State seeks time.
6. We further direct learned counsel for the respondents to seek instructions in the light of the law cited (relevant portion of which has been extracted above) on behalf of the writ appellant.
7. List on 27th February, 2020.
JUDGE CHIEF JUSTICE Comparing Assistant