Karnataka High Court
Dr. P.V. Kenchanagoudar vs The Principal Secretary on 22 June, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.103868 OF 2018 (S-RES)
BETWEEN
DR. P.V. KENCHANAGOUDAR,
AGE:62 YEARS,
OCC:PROFESSOR,
DEPARTMENT OF GENETICS &
PLANT BREEDING,
UNIVERSITY OF AGRICULTURAL
SCIENCES, U.A.S.,
DHARWAD. ...PETITIONER
(BY SRI. S.M. KALWAD, ADVOCATE)
AND
1. THE PRINCIPAL SECRETARY,
GOVT OF KARNATAKA,
DEPARTMENT OF AGRICULTURAL
& HORTICULTURAL SCIENCES,
M. S. BUILDING,
BANGALORE-01.
2. THE ADMINSITRATIVE OFFICER
UNIVERSITY OF AGRICULTURAL
SCIENCES, U.A.S.,
DHARWAD.
3. THE DIRECTORATE OF EDUCATION,
UNIVERSITY OF AGRICULTURAL
SCIENCES, U.A.S.,
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DHARWAD.
4. THE PRINCIPAL SECRETARY,
DEP. OF HIGER EDUCATION,
GOVT OF KARNATAKA,
M. S. BUILDING,
BANGALORE-560001. ...RESPONDENTS
(BY SRI. A.R. RODRIGUES, AGA FOR R1 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE RESPONDENTS TO EXTEND THE AGE OF RETIREMENT OF
THE PETITIONER UPTO 65 YEARS IN TERMS OF CLAUSE 2.3.1
OF U.G.C (MINIMUM QUALIFICATIONS FOR APPOINTMENT OF
TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES
AND COLLEGES AND OTHER MEASURES FOR THE
MAINTENANCE OF STANDARDS IN HIGHER EDUCATION)
REGULATIONS OF 2010 DATED 30.06.2010 READ WITH
APPENDIX I TO THE SAID REGULATIONS (VIDE ANNEXURE-"D")
AND ALSO LETTER OF MINISTRY OF HUMAN RESOURCES
DATED:11.05.2010, VIDE ANNEXURE-"E") PRODUCED AT
ANNEXURES-D, E AND F RESPECTIVELY; AND ETC. DIRECT THE
RESPONDENTS TO CONSIDER THE REPRESENTATION
DATED:25.05.2017 PRODUCED AT ANNEXURE-M AND ALSO THE
REPRESENTATION DATED:20.06.2018 PRODUCED AT
ANNEXURE-P; TO THE WRIT PETITION, THEREBY PERMIT THE
PETITIONER TO CONTINUE IN THE SERVICE BY EXTENDING
DATE OF SUPERANNUATION FROM 62 TO 65 YEARS; AND
DECLARE THAT THE REGULATIONS FRAMED BY THE
UNIVERSITY GRANT COMMISSIONER ACT, 1996 WOULD
PREVAIL OVER THE STATE LEGISLATION IN VIEW OF DECISION
REPORTED IN (2009) 4 SCC 590, PARAGRAPHS 42, 50 AND 54
AND FORBEAR THE RESPONDNETS FROM RELIEVING THE
SERVICE OF THE PETITONER WITHOUT CONSIDERING THE
CASE OF THE PETITIONER IN TERMS OF 2010 U.G.C
REGULATIONS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Petitioner has sought for a direction to the respondents to extend his age of retirement from 62 to 65 years in terms of clause 2.3.1 of U.G.C (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter referred to as 'the UGC Regulations', for the sake of brevity), dated 30.06.2010 read with appendix I to the said Regulations, vide Annexure-"D", and also letter of Ministry of Human Resources, dated 11.05.2010, vide Annexure-E and F. Petitioner has also sought for a direction to the respondents to consider the representation dated 25.05.2017 (Annexure-M) and also the representation dated 20.06.2018 (Annexure-P). Petitioner has also sought for a declaration that the Regulations framed by the University Grant Commission Act, 1996 would prevail over the State legislation in view of decision reported in (2009) 4 SCC 590.
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2. I have heard learned counsel for the petitioner and learned Additional Government Advocate for respondent Nos.1 and 4 on advance notice, and perused the material on record.
3. Learned counsel for the petitioner drew my attention to Annexure-D, being UGC Regulations, the said UGC Regulations apply to every University established or incorporated by or under a Central Act, Provincial Act or a State Act and every institution including a constituent or an affiliated college recognized by the Commission. He also drew my attention to the UGC Regulations. The said UGC Regulations are Index to communication dated 30.06.2010 by the Secretary, addressed to the Assistant Controller, Publication Division, Government of India, for its publication. Learned counsel for the petitioner drew my attention to Annexure-G, which is communication dated 31.12.2008 issued by the Government of India, Ministry of Human Resource Development, Department of Higher Education, to the Secretary, University Grants Commission, New Delhi, with regard to the scheme of 5 revision of pay of teachers and equivalent cadres in universities and colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission. Learned counsel for the petitioner, next, drew my attention to the Gazette Publication dated 18.09.2010 whereby the aforesaid UGC Regulations have been published. Learned counsel for the petitioner has drawn my attention to the Scheme of revision of pay of teachers and equivalent cadres in universities and colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission, issued by Government of India, Ministry of Human Resource Development, Department of Higher Education, to the Secretary, University Grants Commission, New Delhi, with regard to the age of superannuation Clause 8(f)(ii) of the said communication, which reads as under:
"(f) Age of Superannuation:
(i) x x x x x x x
(ii) Subject to availability of vacant positions and fitness, teachers shall also be re-employed on 6 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 position without affecting selection or promotion prospects of eligible teachers."
4. Further learned counsel for the petitioner also drew my attention to Annexure-L which is a communication dated 23.03.2007 issued by the Government of India, Ministry of Human Resource Development, Department of High Education, to the Secretary, University Grants Commission, stating that with regard to enhancement of the age of superannuation from 62 years to 65 years for teaching position in centrally funded institutions in higher and technical education. The said communication reads as under:
"2. The matter has been reviewed by the Central Government in the light of the existing shortage in teaching positions in the centrally funded 7 institutions in higher and technical education under this Ministry, and in the context of Government's decision to expand the capacities of such institutions for increasing access to higher education and for implementing the policy of reservations for the weaker sections without affecting the number of seats in the unreserved category available through general merit. Accordingly, it has been decided that -
(i) The age of superannuation of all persons who were holding teaching positions on regular employment against sanctioned posts as on 15.3.2007 in any of the centrally funded higher and technical educations under this Ministry shall be increased from present 62 years to 65 years.
(ii) Persons holding such regular teaching positions who have superannuated prior to 15.03.2007 on attaining the age of 62 years but have not attained the age of 65 years may be re-employed against vacant sanctioned teaching positions till they attain the age of 65 years, in accordance with the guideline framed by the University Grants Commission.
(iii) All persons holding teaching positions against sanctioned posts may also be considered for re-employment beyond 65 years and up to the age of 70 years against sanctioned vacant posts, if such posts are not filled up by regular candidates. However, such re-
employments beyond the age of 65 years shall be done only after screening at the age of 65 years, under the extant guidelines of the University Grants Commission.
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3. It is further clarified that the enhancement of retirement age as mentioned above and the provision for re-employment will apply only to persons in teaching positions against posts sanctioned to Centrally funded higher and technical education institutions coming under the purview of this Ministry, in order to overcome the shortage of teachers.
4. Necessary Notification in this regard may be issued by the University Grants Commission."
5. On the basis of the aforesaid documents, learned counsel for the petitioner submits that, in view of the aforesaid communications enclosing the scheme of the University Grants Commission, the age of superannuation of the petitioner ought to be 65 years instead of 62 years and therefore, his services may be extended upto 65 years. He submits that petitioner is due to retire on 30th June 2018 on attaining the age of superannuation and pending dispose of the writ petition, his services may be continued by way of an interim order.
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6. Learned Additional Government Advocate appearing for respondent Nos.1 and 4 submits that though the University Grants Commission may have incorporated the scheme as referred to above, but sofar as the State Government is concerned, the age of superannuation is 62 years with regard to lecturer, professors and others in University. He submits that the 2nd respondent-University i.e., the University of Agricultural Sciences, Dharwad, is not a Central University, but an University which has ben established pursuant to the University of Agricultural Sciences Act, 2009 passed by the Karnataka State Legislature, therefore, the age of retirement prescribed by the Central Government would not apply to the teaching staff of second respondent-University. He further submits that the State Government has not enhanced the age of retirement of the teaching staff of the Universities in the State to 65 years and therefore, the petitioner cannot seek continuation of his services by extension of his age of superannuation from 62 years to 65 years. 10
7. Having heard learned counsel for the respective parties and perused the material on record, it is noted that the aforesaid documents referred to by learned counsel for the petitioner are all communications issued by the Government of India to the University Grants Commission. Those communications would not straight- away apply to the teaching staff of the colleges which are within the scope and ambit of Karnataka Universities Act or special legislation such as University of Agricultural Sciences Act, 2009, which has been established pursuant to an enactment of Karnataka legislation. Until the State Government takes a policy decision to enhance the age of superannuation from 62 to 65 years and in the absence of the State Government taking such a policy decision in the matter, the aforesaid communications cannot be relied upon as a basis to seek a direction to extend the age of superannuation of the petitioner from 62 years to 65 years and to continue his services.
8. Further, the age of retirement of teaching staff of University whether coming under the purview of the 11 Karnataka Universities Act, 2000, or the University of Agricultural Sciences Act, 2009, is a matter of a policy decision which has to be taken by the State Government. Presently, the policy is to superannuate the teaching staff at 62 years. This Court while exercising jurisdiction under Article 226 of the Constitution of India, cannot issue a direction to the respondents to continue the services of teacher beyond the age of superannuation. In this regard, reliance can be placed on a judgment of the Division Bench of this Court in the case of State of Karnataka represented by the Principal Secretary, Department of Education and Others vs. Dr. R.Halesha and Others [ILR 2012 KAR 545], wherein, at paragraphs 18 and 19, it has been observed as under:
" 18. The Division Bench of the High Court of Judicature at Patna has in STATE OF BIHAR vs. PROF.DR.JAGDISH PRASAD SHARMA, similarly opined that the "UGC has also made it clear that there is no guideline, no notification or Regulation which relates to the age of superannuation of the University teachers other than those of the centrally funded educational institutions and, thus, 12 to read something else into the same would not be appropriate". Since we have also arrived at the same conclusion, the result is that five Division Benches of High Courts of the same number, share a similar understanding. It seems to us that it was essential for the Central Government to clarify that in the event that any State Government were to decide to increase the age of superannuation to 65 years effective for all College Teachers, the financial burden of the faculty already in harness would be shared by the Central Government to the extent of eighty percent of the additional expenses on salaries. This is indeed an incentive of no mean dimensions and should have been readily welcomed by the State of Karnataka. Especially so keeping in perspective the recommendation of the Chadha Commission that the age increase would not adversely impact employment avenues; and that this measure would be favourable to harmonizing and improving educational standards. Even though we unreservedly share this persuasion, it is not for us to issue directions for its adherence when the State Governments possess the ultimate call. Courts must function within the parameters delineated for them by the Constitution. Courts neither legislate nor prescribe policy.
19. In this analysis, we cannot subscribe to the view taken by the Learned Single Judge in the 13 impugned Judgment, which we hereby set-aside. We affirm the arguments of the Learned Additional Advocate General that whilst adherence to the revised pay-scales prescribed by the University Grant Commission is mandatory on all State Governments, increase of age of superannuation was intendedly optional and only recommendatory. Therefore, whatever be the wisdom behind the reluctance of the Government of Karnataka for adherence to the suggested age of superannuation, it is beyond our province to issue a writ for its observance. The Appeals are allowed, but we abjure from imposing costs."
In the circumstances, I find no merit in the writ petition. Writ petition is dismissed.
Sd/-
JUDGE Kms