Karnataka High Court
Dr A M Shailaja vs Union Of India on 28 April, 2022
Author: R. Devdas
Bench: R. Devdas
-1- R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL, 2022
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.10638/2021 (S-RES)
A/W
WRIT PETITION NO.10628 /2021 (S-RES)
IN WP NO.10638/2021
BETWEEN
DR R N BHASKAR
S/O LATE R N NANJUNDAIAH
AGED ABOUT 61 YEARS
WORKING AS DEAN OF POST
GRADUATE STUDIES
O/O UNIVERSITY OF AGRICULTURAL SCIENCE
GKVK, BENGALURU - 560 065
R/A NO.5 POORNACHANDRA, 1ST A CROSS
BHUVANESHWARI NAGAR
DASARAHALLI MAIN ROAD
BENGALURU - 560 024
...PETITIONER
(BY SRI. V. LAKSHMINARAYANA, SENIOR COUNSEL FOR
SMT ANUSHA L, ADVOCATE)
AND
1. UNION OF INDIA
REPRESENTED THROUGH ITS SECRETARY
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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
KARNATAKA - 560 001
3. STATE OF KARNATAKA
REP BY PRINCIPAL SECRETARY
HIGHER EDUCATION DEPARTMENT
VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU
KARNATAKA - 560 001
4. STATE OF KARNATAKA
REP BY ITS SECRETARY
AGRICULTURE AND
HORTICULTURE DEPARTMENT
VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU KARNATAKA - 560 001
5. INDIAN COUNCIL OF
AGRICULTURAL RESEARCH
KRISHI BHAVAN
DR. RAJENDRA PRASAD ROAD
NEW DELHI - 110 001
REP BY ITS SECRETARY
6. THE SECRETARY
UNIVERSITY GRANTS COMMISSION (UGC)
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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 SCINECE
GKVK, BENGALURU - 560 065
REP BY ITS VICE CHANCELLOR
10. THE REGISTRAR
UNIVERSITY OF AGRICULTURAL SCIENCE
GKVK, BENGALURU - 560 065
...RESPONDENTS
(BY SRI. R. SUBRAMANYA, AAG, ALONG WITH
SRI. D.C. PARAMESHWARAIAH, HCGP FOR R2 TO R4;
SRI. VENKATANARAYANA B.S, ASG FOR R1
SRI. B.A. CHANDRASHEKAR, ADVOCATE FOR R5;
SRI. H.R. SHOWRI, ADVOCATE FOR R6 TO R8;
SRI. M. SREENIVASA, ADVOCATE FOR R9 & R10)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO CONTINUE THE SERVICES OF THE PETITIONERS
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TILL THE PETITIONER ATTENDS THE AGE OF 65 YEARS AS PER THE
DECISION OF UNIVERSITY, FORWARDED TO THE GOVERNMENT IN
ITS LETTER DATED 09.02.2018 AND 09.01.2019 AS PER
ANNEXURE-AND ETC.
IN WP NO.10628/2021
BETWEEN
1. DR A M SHAILAJA
W/O R SRINIVASAN
AGED ABOUT 59 YEARS
WORKING AS PROFESSOR
V. S. DENTAL COLLEGE
O/O V S DENTAL COLLEGE
K R ROAD, V V PURAM
BENGALURU - 560 004
R/AT NO.30, SHANKARI
CHINAPPA NAIDU LAYOUT
BANASHANKARI, 3RD STAGE
BENGALURU - 560 085
2. DR. ARUNA D R
W/O VASU A M
AGED BOUT 59 YEARS
WORKING AS PROFESSOR
V S DENTAL COLLEGE
O/O V.S. DENTAL COLLEGE
K R ROAD, V V PURAM
BENGALURU - 560 004
R/AT NO.32/29
4TH CROSS, K V LAYOUT
4TH BLOCK, JAYANAGAR
BENGALURU - 560 041
...PETITIONERS
(BY SRI. V. LAKSHMINARAYANA, SENIOR COUNSEL
FOR SMT. ANUSHA.L, ADVOCATE)
-5-
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
REP BY CHIEF SECRETARY
VIDHANA SOUHDA
AMBEDKAR VEEDHI
BENGALURU
KARNATAKA -560 001
3. STATE OF KARNATAKA
REPRESENTED BY
PRINCIPAL SECRETARY
HIGHER EDUCATION DEPARTMENT
VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU
KARNATAKA - 560 001
4. THE DIRECTOR
DIRECTORATE OF MEDICAL
EDUCATION (DME)
ANAND RAO CIRCLE
NEAR CITY RAILWAY STATION
BENGALURU - 560 009
5. CHAIRMAN
ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION
HEAD OFFICE: NELSON MANDELA MARG
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VASANT KUNJ
NEW DELHI - 110 067
6. REGIONAL OFFICER AND ASST. DIRECTOR
ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION
REGIONAL OFFICE
SOUTH HEALTH CENTRE BUILDING
BANGALORE UNIVERSITY CAMPUS
BENGALURU - 560 009
7. THE SECRETARY
DENTAL COUNCIL OF INDIA
AIWAN-E-GALIB MARG
KOTLA ROAD, TEMPLE LANE
OPP MATA SUNDARI COLLEGE OF WOMEN
NEW DELHI - 110 002
8. VICE CHANCELLOR
RAJIV GANDHI UNIVERSITY OF
HEALTH SCIENCES
4TH T BLOCK EAST, JAYANAGAR
BENGALURU - 560041
9. VISVESHVARAIAHA TECHNOLOGICAL
UNIVERSITY
REP BY ITS REGISTRAR
JNANA SANGAMA VTU MAIN ROAD
VISVESVARAIAHA TECHNOLOGICAL
UNIVERSITY
MACHHE BELGAUM
KARNATAKA - 590 018
10. THE SECRETARY
UNIVERSITY GRANTS COMMISSION (UGC)
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BAHADURSHAH ZAFAR MARG
NEW DELHI - 110 002
11. THE ADMINISTRATOR
RAJYA VOKKALIGARA SANGHA
RAJYA VAKKALIGARA BHAVANA
K R ROAD, V V PURAM
BENGALURU - 560 004
12. THE PRINCIPAL
VOKKALIGARA SANGHA DENTAL
COLLEGE AND HOSPITAL
K R ROAD, V V PURAM
BENGALURU - 560 004
...RESPONDENTS
(BY SRI. VENKATANARAYANA B.S, ADVOCATE FOR R1;
SRI. R. SUBRAMANYA, AAG, A/W
SRI. D.C. PARAMESHWARAIAH, HCGP FOR R2 TO R4;
SRI. H.R. SHOWRI, ADVOCATE FOR R5, R6 & R10;
SRI. S.S. HAVERI, ADVOCATE FOR R7;
SRI. SANTHOSH S. NAGARALE, ADVOCATE FOR R9;
SRI. N.K. RAMESH, ADVOCATE FOR R8;
SRI. A.S. PONNANNA, SR. COUNSEL FOR
SRI. R. ANILKUMAR, ADVOCATE FOR R11 & R12)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO EXTEND THE AGE OF RETIREMENT OF THE
PETITIONERS TO 65 YEARS IN TERMS OF THE CLAUSE 2.12 OF THE
AICTE NOTIFICATION DATED 01.03.2019 AS PER ANNEXURE-K
AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 20.04.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE
FOLLOWING:
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COMMON ORDER
Issue a writ of mandamus directing the respondents to continue the services of the petitioners till they attain the age of 65 years, in terms of the UGC Regulations dated 30.06.2010 and 18.07.2018 - is the prayer in both these writ petitions. Therefore, these writ petitions are clubbed, heard and disposed of by this common order.
2. Writ Petition No. 10638/2021 is filed by Dr.R.N.Bhaskar, who is working as the Dean of Post Graduate studies at the University of Agricultural Sciences, Bengaluru (for short, hereinafter referred to as 'the University'). The other writ petition is filed by Dr.A.M.Shailaja and Dr.Aruna.D.R, who are working as Professors at V.S.Dental College, Bengaluru. It is not disputed that V.S.Dental College is affiliated to the Rajiv Gandhi University of Health Sciences, Bengaluru, but it is contended that the Regulations of the Dental Council of India and the University Grants Commission are binding on the institution. Initially, it was contended that -9- the Regulations of the AICTE are applicable and binding to the institution. However, subsequently, the grounds and prayer were amended stating that the Regulations of the Dental Council of India and the University Grants Commission are binding on the institution, along with the Regulations of the AICTE.
3. Learned Senior Counsel Sri.V.Lakshminarayana, appearing for the petitioners in both the matters contended that the Government of India, Ministry of Human Resource Development and the Department of Higher Education, New Delhi, wrote to the Education Secretaries of all State Governments, on 11.05.2010, that in order to implement the recommendations of the 6th Pay Commission and the financial burden befalling the State Governments, the Union of India has decided to reimburse 80% of the additional requirements of the State Governments, subject to condition that the scheme may be extended to Universities, Colleges and other higher Educational Institutions coming under the purview of -10- the State Governments receiving substantial financial assistance for its maintenance and operations from the State Governments, provided State Governments 'wish' to adopt and implement the scheme, subject to the terms and conditions prescribed therein. One of the conditions was that the entire scheme of revision of pay scales, together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by the State Governments and Universities and colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned therein. Following the directions of the Government of India, the UGC proceeded to issue the UGC Regulations dated 30.06.2010.
4. Drawing the attention of this Court to Clause 1.2 of the UGC Regulations, 2010, learned Senior Counsel submits that the Regulations apply to every university established or incorporated by or under a Central Act, Provincial Act or a -11- State Act, every institution including a constituent or an affiliated college recognized by the UGC, in consultation with the university concerned under Clause (f) of Section 2 of the UGC Act, 1956 and every institution deemed to be a University under Section 3 of the UGC Act.
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 -12- 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. Learned Senior Counsel draws the attention of this Court to a communication dated 02.11.2017 made by the Director, Department of Higher Education, Ministry of Human Resource Development, Government of India to the Secretary, UGC. It is stated therein that consequent to the acceptance of the recommendations of the Pay Review Committee constituted by the UGC and the decision taken by the UGC to revise the pay scales of the teachers, the Government of India directed that the revision of pay scales of teachers shall be subject to various provisions of the scheme as contained in the Regulations of the UGC. It is pointed out that at clause 12 of the communication, it is provided that the existing provisions on superannuation and re-employment of teachers shall continue. Clause 16 therein contains the scope of applicability of the scheme. Here again, in sub-clause (iv) of Clause 16, it -13- is provided that the Scheme may be extended to the universities, colleges and other higher educational institutions coming under the purview of the State Legislatures, if State Governments 'wish' to adopt and implement the scheme, subject to the terms and conditions prescribed therein. It is also pointed out from sub-clause (h) of Clause 16(iv) that payment of Central assistance shall be subject to the condition that the entire scheme together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by the State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification. Thereafter, the UGC Regulations, 2018 were notified on 18.07.2018. Similar provisions as contained in the Regulations, 2010 in the matter of coverage and applicability of the Regulations are provided in Clause 1.2 of the new Regulations. On facts, it is sought to be contended by the learned Senior Counsel that since clause 12 of the communication dated 02.11.2017 made -14- by the Central Government to the UGC provides that the existing provisions on superannuation and reemployment of teachers shall continue, the provisions contained in Regulations 2010 in the matter of enhancement of age of superannuation not being recalled, the same is deemed to be continued without any change.
7. Attention of this Court is also drawn to Clause 7.6 of the report of the UGC Pay Review Committee, which provides that the recommendations and the regulations to be formulated by the UGC on pay and allowance should be implemented uniformly throughout the country in Central and State Universities, with grants to be given to the institutions being linked to the implementation of the UGC Regulations. It is therefore contended that there has to be uniformity throughout the country in respect of the age of superannuation of all the teaching faculty. It is submitted that the Regulations of the UGC are mandatory and binding on all the universities and colleges in the country and therefore in -15- order to maintain uniformity, the age of superannuation should be maintained at 65, as provided in the Regulations.
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 -16- 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. Insofar as the respondent-Dental College is concerned, learned Senior Counsel submits that the Dental Council of India has enacted the 'Dental Council of India, Master of Dental Surgery Course Regulations, 2017' and the said Regulations have prescribed the age, educational qualifications and teaching experience. In the 'Note' following Regulation 17, the Council prescribes the maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Dental Teachers or Dean or Principal, as 65 years. Similarly, the National Medical Commission has also prescribes the maximum age limit of a Teacher or Dean or Principal as 70 years in Regulation 3.2 of the Teachers Eligibility Qualifications In Medical Institutions Regulations, 2022.
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11. However, when it was pointed out to the learned Senior Counsel that in Jagdish 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:
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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.
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 -19- 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. The learned Senior Counsel has furnished some information during the course of the proceedings to support his contention that the respondent-University has been receiving grants from the UGC and therefore, in terms of the judgments cited above, the University is bound by the Regulations of the UGC. Since it was argued on behalf of the respondent-University that the University is regulated by the ICAR (Indian Council for Agriculture and Research), learned Senior Counsel submitted that ICAR is not a statutory body -20- and it cannot have precedence over the Regulations of the UGC, in respect of the respondent-Agriculture University.
14. Learned Counsel Sri. M.Sreenivasa, appearing for the respondent-University submits that the University was established under State enactment known as 'University of Agricultural Sciences Act, 1963'. However, the 1963 Act, is replaced by the Universities of Agricultural Sciences Act, 2009. As per the Act, the Board of the University is empowered to create Teaching and Non-Teaching posts with approval of the State Government. The Board is empowered to approve the recommendations for appointment of the Teaching and Non- Teaching staff, in the prescribed manner. Section 30(8) of the Act provides that no teacher shall be entitled to be in the service of the University after he reaches the age of 60 years. However, it is not disputed that in terms of the Government Order dated 28.10.2009, the age of superannuation has been extended from 60 years to 62 years. In respect of the recommendation made by the respondent- University to the -21- State Government in the matter of enhancement of the age of superannuation, learned Counsel points out to a communication dated 30.11.2017 at Annexure-R1, filed along with the statement of objections and submits that similar such recommendation was not approved.
15. Further, in order to support his contentions that ICAR is the Apex and Regulatory Body so far as the standards to be maintained by the Institutions/Universities running courses in Agricultural Sciences and allied subjects are concerned, learned Counsel seeks to place reliance on a decision of a Hon'ble Division Bench of the High Court of Gujarat in the case of R. K. University Vs. Anand Agricultural University, in R/Letters Patent Appeal No.1254 of 2018 and connected matters, decided on 30.10.2018. The learned Counsel would also draw the attention of this Court to a decision of a Hon'ble Division Bench of this Court in State of Karnataka And Others Vs. Dr.R.Halesha and Others, ILR 2012 KAR 545, where a decision of a learned Single Judge who had directed -22- the age of superannuation of Professors/Teachers should be increased to 65 years was reversed and held that court must function within parameter delineated for them by the Constitution. Courts neither legislate nor prescribe policy.
16. Learned Senior Counsel Sri.A.S.Ponnanna, appearing for the respondent-Institution submits that the institution is a private unaided institution and it does not receive grants from the UGC. The institution is affiliated to the RGUHS, Bengaluru and it is bound by the Regulations of the Dental Council of India. It is submitted that the Dental Council of India, Master of Dental Surgery Course Regulations, 2017 or any other regulations of the Council do not prescribe the age of superannuation. Although it is not disputed that in the 'note' appended to Regulation 17 of the Regulations, 2017 prescribes the maximum age limit of 65 years to a Dental Teacher/Dean/ Principal, nevertheless, it is only a prescription of the upper limit and does not mandate the fixation of the age of superannuation. Moreover, it is submitted that the -23- respondent- Institution being a private unaided institution, is not a State for the purpose of Article 12 of the Constitution and therefore a mandamus directing the institution to enhance the age of superannuation cannot be issued.
17. Learned Counsel Sri.H.R.Showri, appearing for the respondent-UGC submits that factually, insofar as the coverage and applicability of the Regulations of 2010 and 2018 are concerned, there is no difference. In the matter of implementation of the provisions, both the Regulations use the same expression that the entire scheme has to be implemented as a composite scheme without any modification, if payment of central assistance is sought. However, learned Counsel points out to Clause 1.1.1 of Annexure-1 appended to the Regulations 2010. It provides - for teachers in the Faculties of Agriculture and Veterinary Science, the norms/Regulations of Indian Council of Agricultural Research (ICAR) shall apply. Similarly, for Faculty of Medicine, Dentistry, Nursing and AYUSH, the norms/Regulations of -24- Ministry of Health and Family Welfare, Government of India, shall apply. Clause 2.1.0 makes it clear that the revised scales of pay and other service conditions including age of superannuation in central universities and other institutions maintained and/or funded by the UGC, shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education) as contained in Appendix-I. Similarly, in the 2018 Regulations, in Clause 1.1 it is clearly stated that for the purposes of direct recruitment to teaching posts in disciplines relating to University and Collegiate Education, interalia in the fields of agriculture, veterinary and allied fields, norms or standards laid down by authorities established by the relevant Act of Parliament under Article 246 of the Constitution for the purpose of co-ordination and determination of standards in institutions for higher education or research, shall prevail.
18. At this juncture, the learned Senior Counsel Sri.V.Lakshminarayana, draws the attention of this Court to -25- proviso 1 of Clause 1.1, which provides that where no such norms and standards are laid down by any regulatory authority, UGC regulations shall be applicable till such time as any norms or standards are prescribed by the appropriate regulatory authority.
19. Heard learned Senior Counsel Sri.V.Lakshminarayana for the petitioners, learned Senior Counsel Sri.A.S.Ponnanna for respondent-Institution, learned Counsel Sri.M.Sreenivasa for respondent-University and learned Counsel Sri.H.R.Showri for respondent-UGC and perused the petition papers.
20. In the considered opinion of this Court, the issue as to whether the mandate contained in the UGC Regulations could be 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 -26- 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. The contentions of the learned Senior Counsel for the petitioners that the rule of repugnancy as contained in Article 254 of the Constitution is required to be applied to the present situation, is required to be dealt with. There is no doubt, in terms of the catena of decisions cited by the learned Senior Counsel that when both the Parliament and the State Legislatures are empowered to make law in respect of matters enumerated in the Concurrent List (List-III), by application of -27- the rule of repugnancy, the law made by the Parliament shall prevail and the law made by the State Legislature to the extent of repugnancy will be void.
22. However, it is required to be noticed that in Entry 41 of List-II, "State Public Services; State Public Service Commission" is provided for. Similarly, in Entry 70 of List-I, "Union Public Services; All India Services; Union Public Service Commission" finds place. Having regard to the specific Entries in List-I and List-II, pertaining to the Public Services, each word employed in Article 309 take their colour. Article 309 therefore provides that Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. It cannot be disputed that provision of age of superannuation is a condition of service.
23. In I.N.Saksena Vs. State of Madhya Pradesh, (1976) 4 SCC 750, adverting to Entry 41, List-II, it was held -28- that within its allotted sphere, the State Legislature has, by virtue of Article 246 (3), exclusive, plenary powers of legislation in the matter of regulating recruitment and conditions of service of persons appointed to such service and posts in connection wit the affairs of the State. Therefore, the question of applying the rule of repugnancy in the matter of conditions of service of a State Public Servant, clearly falling under the State List, would become untenable.
24. The next contention that naturally follows is that the petitioners are not public servants, who fall under the "State Public Services", and therefore, they come directly under the control of the UGC. Insofar as one of the petitioners, who is a Dean in the respondent-University, he is clearly bound by the provisions contained in the Universities of Agricultural Sciences Act, 2009, which has fixed the age of superannuation in respect of the teachers of the University. The University has been established by the State Government by enacting a law in the State Legislature. Therefore, any contention that -29- the petitioner is not a public servant and therefore he could seek implementation of the UGC Regulations, more particularly, the age of superannuation, will not hold any water.
25. Insofar as the other two petitioners, who are teachers in the respondent, private unaided institution is concerned, it is required to be noticed that the institution is affiliated to RGUHS, which is a statutory body enacted by the State Legislature. The institution is regulated by another statutory body, namely, Dental Council of India. Neither the University nor the Council has fixed the age of superannuation of the teachers. The institution is on record stating that it does not receive any grants from the UGC. The Regulations of the UGC specifies the consequences of failure of the Universities to comply with the recommendations of the Commission. The consequences befall only such of the institutions which receive University Grants Affiliation, by withholding the grants.
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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 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 -31- 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.
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.
29. Pending I.As, if any, stand disposed of.
Sd/-
JUDGE KLY/DL