Madhya Pradesh High Court
Dr. R.S. Sohane vs The State Of Madhya Pradesh on 19 January, 2017
1
W. A. Nos. 950/2015, 168/16, 343/16, 346/16, 492/16, 536/16,
557/16, 591/16, 667/16, 668/16, 669/16, 670/16, 671/16, 672/16,
673/16, 674/16, 675/16, 676/16, 885/16, 886/16, 887/16, 899/16,
908/16 & R. P. No. 859/16
19.01.2017
Shri L. C. Patne, learned counsel for the petitioners.
Shri Swapnil Ganguly, learned Govt. Adv. for respondent
nos. 1 and 2.
Seeking exception to an order dated 26 th August, 2016 passed by the Writ Court in W. P. No. 4842/16 (s) Dr. Suresh Chandra Jain Vs. State of M. P. & others, these appeals have been filed by the appellants under Section 2 (1) of the M. P. Uchcha Nyayalaya Khand Nyaypeeth Ko Appeal Adhiniyam, 2005.
The issue involved in these appeals which are listed today pertain to the benefit claimed by the Teachers working in the aided private institute in the matter of granting them the benefit of enhanced age of super-annuation i.e. 65 years as has been granted to the teachers working in the Government institutes.
Having heard learned counsel for the parties, we find that all the writ petitions were dismissed by the Writ Court based on a judgment rendered by the Single Bench at Gwalior being W. P. No. 5616/10 (s) decided on 29/03/16 whereby the benefit claimed was rejected. Challenging the same, all these writ appeals were filed.
However, while hearing the matter, it has come to our notice that claiming similar benefit and challenging the identical orders passed by Single Benches of this Court, Writ Appeals were filed under Section 2 (1) of the M. P. Uchcha Nyayalaya Khand Nyaypeeth Ko Appeal Adhiniyam and Co-ordinate Benches of this Court on 23/08/16 in W. A. No. 209/16 Dr. Arun Kumar Vs. State 2 of M. P. have dismissed the identical writ appeals and, therefore, Shri Swapnil Ganguly has stated that these appeals are also not maintainable in view of this order dated 23/08/16 in the case of Dr. Arun Kumar (supra).
However, Shri Patne points out that while deciding the writ petition i.e. W. P. No. 4842/16 (s) Dr. Suresh Chandra Jain (supra) and while dismissing the writ petition identical in nature, the Gwalior Bench on 29/03/16 in W. P. No. 5616/10 (s) has not taken note of the amendment to the College Code 28 which was brought into force by amendment in the year 2004 and inviting our attention to the following amendments made in the College Code ^^leUo; lfefr ds fu.kZ; fnukad 07-01-2004 esa ifjfu;e 28 dh dafMdk 26 esa fuEukuqlkj la'kks/ku fd;k x;k gS dh lwpuk xzg.k djus ij fopkj fd;k x;kA v'kkaldh; egkfo|ky;ksa ds izkpk;Z] f'k{kdksa vkSj deZpkfj;ksa dh lsokfuo`fRr vk;q 'kkldh; egkfo|ky;ksa ds izkpk;Z] f'k{kdksa vkSj deZpkfj;ksa ds leku j[kk tkuk mfpr gksxkA^^ Shri Patne argued that an error has been committed both by the Writ Court and the Writ Appellate Court. In the case of Dr. Arun Kumar (supra) while dismissing the earlier writ appeals, he submits that the import and implication of the College Code 28 has not been considered.
That apart, he invites our attention to the regulations formulated by the University Grant Commission on 30 th June, 2010 namely the University Grant Commission, Minimum Qualification and Appointment of Teachers Regulation 2010 and the provisions contained in the aforesaid statutory regulation of Clause 8 (f) in the matter of fixing the age of super-annuation for Teachers :-
8 (f). Age of Superannuation:3
(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. 119/2006-U.II dated 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) dated 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).
(ii). Subject to availability of vacant positions and fitness, teachers shall also be reemployed on contract appointment beyond the age of sixty five years up to the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers.
4(iii). Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education.
Shri Patne argues that while dismissing the writ petition, neither the Gwalior Bench in W. P. No. 5616/10 (s) nor in W. P. No. 4842/16 (s) and while dismissing the writ appeal in the case of Dr. Arun Kumar (supra), the question of effect of the statutory provision i.e. College Code 28 and the U. G. C. Regulation of 2010 were not taken note of.
That apart, it is pointed out to us that while dismissing the writ appeal in the case of Dr. Arun Kumar (supra), reliance was placed in the case of Jagdish Prasad Sharma & others Vs. State of Bihar & others (2013) 8 SCC 633 and it was held that this judgment will not apply. However, we observe that in the case of Dr. Arun Kumar (supra), the Bench did not take note of the statutory provision that was applicable namely the College Code and the U.G.C. regulation and, therefore, the writ appeal in the case of Dr. Arun Kumar (supra) was also dismissed without adverting to consider the relevant statutory provision.
We find that the contentions in this regard brought to our notice are correct. While dismissing the writ appeal in the case of 5 Dr. Arun Kumar (supra) and while upholding the view taken by the Gwalior Bench in W. P. No. 5616/10 (s) which was followed by the Co-ordinate Writ Courts, the Bench did not take note of the statutory provision namely the College Code 28 and the U. G. C. Regulation 2010 and, therefore, it is a fit case where the question involved in these writ appeals in the backdrop of the regulation should be referred to a Larger Bench.
Even though, we are conscious of the fact that if the statutory provisions i.e. Statute 28 of the College Code and the U. G. C. Regulation is not considered and the writ appeal of Dr. Arun Kumar (Supra) is dismissed, it is not necessary to refer the matter to a Larger Bench but we find that in the case of Dr. Arun Kumar (supra), it has been held that the law laid down in the case of Jagdish Prasad Sharma (supra) will not apply. If the statutory provisions are found to be applicable in that case, then this finding by the Division Bench in the case of Dr. Arun Kumar (supra) that the law laid down in the case of Jagdish Prasad Sharma (supra) may not apply would not be a correct finding and that being the position, we deem it appropriate to request for placing of the matter before the Larger Bench for consideration.
Accordingly, we direct for placing the matter before Hon'ble the Chief Justice to consider referring the following questions to a larger Bench :-
1. Whether in view of the provisions of statute 28 of the College Code as amended and brought into force w.e.f. 7th January, 2004 and whether in view of the provisions of U. G. C. Regulation 2010, teachers working in the aided private institutes are 6 also entitled to the benefit of having their age of super-annuation fixed at 65 as is applicable in the case of Government Teachers ?
2. Whether the Co-ordinate Bench of this Court while deciding the writ appeal in the case of Dr. Arun Kumar has laid down the principle correctly ?
Let the matter be placed for orders before the Larger Bench headed by Hon'ble the Chief Justice.
(Rajendra Menon) (H. P. Singh)
Acting Chief Justice Judge
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