Madhya Pradesh High Court
Dr. K.G.Choubey vs Jawaharlal Nehru Krishi Vishwa ... on 17 December, 2013
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
1. W.P. No.8646/2010(s)
Dr. K.G. Choubey.................................. Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya and others............................ Respondents
2. W.P. No.5523/2010(s)
Dr. K.K.Saxena............................... Petitioner
Vs.
Union of India...................................... Respondents
3. W.P. No.6950/2010(s)
Dr.R.P.Bajpai...................................... Petitioner
Vs.
Union of India.................................... Respondents
4. W.P. No.9758/2011
Dr.O.P.Veda....................................... Petitioner
Vs.
Registrar Jawaharlal Nehru Krishi
Vishwa Vidyalaya.............................. Respondents
5. W.P. No.12108/2011
Dr.S.M.Singh.................................... Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya............................... Respondents
6. W.P. No.14144/2011
Vipin Thukral..................................... Petitioner
Vs.
Rajmata Vijay Raje Scindia Krishi
Vishwavidyalaya........................... Respondents
7. W.P. No.14306/2011
Dr.V.S.Gautam................................... Petitioner
Vs.
Rajmata Vijay Raje Scindia Krishi
Vishwavidyalaya................................ Respondents
8. W.P. No.16912/2011
Shri T.P.Tembe.................................... Petitioner
Vs.
Jawaharlal Nehru Krishi
Vishwa Vidyalaya....................... Respondents
9. W.P. No.16985/2011
Dr. R.V.Singh................................... Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya............................... Respondents
10. W.P. No.17698/2011
Prof.Nand Kishore Tiwari.................... Petitioner
Vs.
Union of India................................... Respondents
11. W.P. No.21738/2011
Dr. Mrigendra Singh Baghel................. Petitioner
Vs.
The State of Madhya Pradesh....... Respondents
12. W.P. No.96/2012
A.S.Patel...................................... Petitioner
Vs.
Union of India................. Respondents
13. W.P. No.606/2012
D.K.Khare........................................ Petitioner
Vs.
Union of India................................ Respondents
14. W.P. No.2421/2012
Dr. A.G.Nema........................... Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya................................... Respondents
15. W.P. No.6369/2012
Dr.Mrigendra Singh Baghel..................... Petitioner
Vs.
Union of India............................. Respondents
16. W.P. No.6962/2012
R.K.Mukker................................ Petitioner
Vs.
Union of India.................................. Respondents
17. W.P. No.11742/2012
Sahib Singh Tomar............................ Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya................................... Respondents
18. W.P. No.12985/2012
Dr.R.K.Pathak.................................. Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya............................... Respondents
19. W.P. No.16381/2012
Dr. R.S.Liddar........................... Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya...................................... Respondents
20. W.P. No.17716/2012
Dr. Smt.Sathrupa Rao.............................. Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya.................................. Respondents
21. W.P. No.17992/2012
Dr. Dev Kant..................................... Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya...................................... Respondents
22. W.P. No.20882/2012
Dr. B.S.Kahloan.............................. Petitioner
Vs.
M.P.Pasu Chikitsa Vigyan
Vishwavidyalaya...................................... Respondents
23. W.P. No.802/2012
Dr. R.K.Verma.............................. Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya...................................... Respondents
24. W.P. No.6974/2013
Sharad Kumar Jain.......................... Petitioner
Vs.
Jawaharlal Nehru Krishi Vishwa
Vidyalaya................................. Respondents
=====================================
For the Petitioners:Mr.Rajendra Tiwari and Mrs. Shobha Menon, Senior Advocates with Mr.P.N.Pathak, Mr.A.S.Raizada, Mr.Sanjay K.Agrwal, Mr.T.K. Khadka, Mr.C.A.Thomas and Mr.Ghanshyam Barman, Advocates For the Respondent: Mr.Vikram Singh, Advocate Union of India For the Respondent: Ms. Sharda Dubey, Panel Lawyer State of M.P. For the Respondent: Mr.Dharmendra Sharma, Advocate University Grants Commission For the Respondent: Mr.Praveen Dubey, Advocate J.N.K.V.V. =============== Present: HON'BLE MR. JUSTICE ALOK ARADHE
---------------------------------------------------------------------------------------------
O R DER (17/12/2013) In this bunch of writ petitions, since similar issue arises for consideration, therefore, the same was heard analogously and is being decided by this common order. For the facility of reference, facts from Writ Petition No.8646/2010(S) [Dr.K.G.Choubey vs. Jawaharlal Nehru Krishsi Vishwa Vidyalaya and others] are being referred to.
2. In this writ petition, the petitioner, inter-alia, seeks quashment of order dated 22.4.2010 (Annexure P/5) as well as order dated 22.4.2013 (Annexure P/11). The petitioner has also prayed for a direction to the respondents to implement the scheme dated 31.12.2008 in case of Agriculture Universities as well, without any modification and to permit the petitioner to continue in service till the age of 65 years. In order to appreciate the petitioner's grievance, relevant facts need mention, which are stated infra.
3. The petitioner is a Professor in the Department of Agriculture, Economics & Farm Management and is posted in the College of Agriculture which functions under the Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur, (hereinafter referred to as 'the University'), which has been constituted under the Jawaharlal Nehru Krishi Vishwa Vidyalaya Adhiniyam, 1963. The University Grants Commission (hereinafter referred to as 'the Commission') is a body established under the University Grants Commission Act, 1956, which is responsible for the maintenance of standard and coordination of higher education in the country. On the recommendations made by the Commission, the Ministry of Human Resources Development, Department of Higher Education formulated a scheme dated 31.12.2008 for revision of pay of teachers and equivalent cadres in the Universities and Colleges on the basis of recommendations of the Sixth Pay Commission. Clause 8(f) of the Scheme provides that in order to meet the situation arising out of shortage of teachers in Universities and other teaching institutions as also the consequent vacant positions therein, a decision has been taken by the Department of Higher Education vide order dated 23.3.2007 to enhance the age of superannuation of the teachers in Central Educational Institutions upto 65 years. Clause 8(p) deals with applicability of the Scheme. Clause 8(p)(i) reads as under:-
"8(p)(i) This Scheme shall be applicable to teachers and other equivalent cadres of Library and Physical Education in all the Central Universities and Colleges thereunder and the institutions deemed to be Universities whose maintenance expenditure is met by the UGC. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Regulations to be framed by the UGC in this behalf. Universities implementing this Scheme shall be advised by the UGC to amend their relevant statutes and ordinances in line with the UGC Regulations within three months from the date of issue of this letter."
Clause 8(p)(v) of the Scheme reads as under:-
"8(p)(v) This Scheme may be extended to Universities, Colleges and other higher educational institutions coming under the
purview of State Legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions:-
(a) Financial assistance from the Central Government to State Governments opting to revise pay scale of teachers and others equivalent cadre covered under the Scheme shall be limited to that extent of 80% (eighty per cent) of the additional expenditure involved in the implementation of the revision.
(b) The State Government opting for revision of pay shall meet the remaining 20% (twenty per cent) of the additional expenditure from its own sources.
(c) Financial assistance referred to in sub-clause (a) above shall be provided for the period from 1.1.2006 to 31.3.2010.
(d) The entire liability on account of revision of pay-scales etc., of University and College teachers shall be taken over by the State Government opting for revision of pay-scale with effect from 1.4.2010.
(e) Financial assistance from the Central Government shall be restricted to revision of pay-scales in respect of only those posts which were in existence and had been filled up as on 1.1.2006.
(f) State Governments, taking into consideration other local conditions, may also decide in their discretion to introduce scales of pay higher than those mentioned in this Scheme, and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Government(s).
(g) Payment of Central assistance for implementing this Scheme is also subject to the condition 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 Government 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 herein above."
4. The Department of Agricultural Research and Education, Ministry of Agriculture, Government of India, by a communication dated 13th March, 2009, informed the State Governments that they may take a decision to adopt the Scheme in respect of State Agricultural Universities in accordance with the letter of the Commission dated 28.2.2009. The petitioner by a communication dated 19.3.2010 was informed that he would retire on attaining the superannuation i.e 62 years on 31.5.2011.
5. A meeting of Council of Ministers was held on 6.4.2010 to consider the implementation of the provisions of the Scheme dated 31.12.2008. The Council of Ministers decided to accord the benefit of revision of pay-scale to the employees of Government colleges and the teachers/officers of the University w.e.f. 1.1.2006 and to enhance the age of superannuation of the teachers engaged in class-room teaching, from 62 to 65 years. The Farmer Welfare and Agricultural Development Department of Government of Madhya Pradesh by an order dated 9.4.2010 directed that Scheme dated 31.12.2008 be made applicable to the employees of agricultural universities as well, so that the grant-in-aid to be paid by the Central Government, may be received by the State Government. The Higher Education Department of Government of Madhya Pradesh by an order dated 16.4.2010 accorded the benefit of revised pay-scale as well as the benefit of enhanced age of superannuation to the teaching staff employed in class-room of the Government colleges and the Universities.
6. However, the Farmer Welfare and Agricultural Development Department of the Government of Madhya Pradesh by an order dated 22.4.2010 issued a clarification in respect of order dated 9.4.2010 and it was clarified that by order dated 9.4.2010, only the benefit of revision of pay-scale as per recommendations of Sixth Pay Commission has been extended and other benefits have not been extended to the teachers. The State Government thereafter issued an order dated 22.4.2013 by which the age of superannuation of teachers in Agricultural Universities has been enhanced from 62 to 65 years w.e.f. 1.5.2013. In the aforesaid factual background, the petitioner has approached this Court.
7. Learned senior counsel for the petitioner as well as counsel for petitioners in other writ petitions submitted that Council of Ministers in its meeting held on 6.4.2010 had taken a conscious decision to enhance the age of superannuation of the teaching staff in respect of the Universities from 62 to 65 years. Thereafter, the Farmer Welfare and Agricultural Development Department of Government of Madhya Pradesh by an order dated 9.4.2010 had also directed that the Scheme framed by the Commission should be implemented without any modification in respect of agricultural universities as well. It is further submitted that the State Government had no authority to pass the order dated 22.4.2010 as the Scheme was already adopted in entirety. It was further submitted that the Scheme in question is a composite Scheme which, infact, was adopted by the State Government without any modification w.e.f. 1.1.2006, therefore, now it is not open to the State Government to contend that the Scheme of the Commission does not apply to the agricultural universities of the State of Madhya Pradesh. It is further submitted that in exercise of power under Section 26 of the University Grants Commission Act, the Regulations, namely University Grants Commission (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 Regulations') have been framed and the Scheme dated 31.12.2008 has become a part of the Regulations as Appendix I. Therefore, the Scheme has attained statutory flavour and has become inviolable. It is also submitted that there is no provision in the Madhya Pradesh Acts under which the Universities have been constituted, that prescribes the age of superannuation of the teaching staff. It is also urged that in case of any repugnancy, in view of provisions of Article 245(2) of the Constitution, the Regulations framed by the University Grants Commission shall prevail. Attention of this Court has also been invited to note-sheet of the minutes of meeting in which the matter relating to adoption of the Scheme framed by the State Government has been deliberated. In the return, the respondents have not pointed out that order dated 6.4.2010, at any point of time, has been withdrawn. It is further urged that paragraph 3 of the order dated 22.4.2013 has been incorporated unauthorisedly and fixation of cut-off date in the order dated 22.4.2013 is arbitrary as no reason has been assigned for fixation of the aforesaid cut-off date. In support of their submissions, reliance has been placed on decisions of Supreme Court in D.S. Nakara and others Vs. Union of India, A.I.R. 1983 SC 130, and Jagdish Prasad Sharma and others Vs. State of Bihar and others, (2013) 8 SCC 633, decision of High Court of Jharkhand at Ranchi in WP(s) No.363/2010 and analogous cases decided on 10.1.2011 (Dr. Maheshwar Tiwary and others Vs. The State of Jharkhand and others), decision of High Court of Uttarkhand at Nainital in WP No.52/2010 dated 8.12.2011 (Pant University Teachers Association, Pant Nagar Vs. Chancellor, Govind Ballabh Pant University of Agriculture & Technology, Pant Nagar and others) as well as a decision of High Court of Judicature at Patna in CWJC No.13450/2010 and analogous case decided on 15.9.2011 (Dr. Nawal Kishore Choudhary Vs. Rajendra Agricultural University, Bihar, Pusa (Samastipur) and others).
8. On the other hand, learned counsel for Union of India as well as University Grants Commission have invited the attention of this Court to Clause 8(p) of the Scheme and have submitted that in order to get the central assistance for implementation of the Scheme, the State Government has to adopt the Scheme as a whole without any modification. However, the State Governments have been given the discretion with regard to date of implementation of the Scheme. Learned counsel for the University has submitted that in exercise of power under Section 36 of the Jawaharlal Nehru Krishi Vishwa Vidyalaya Act, 1963, statutes have been framed and Statute No.11(4)(d) of the Statutes prescribes the age of superannuation of the teaching staff to be 62 years. It is further submitted that the Scheme enables the State Government to prescribe the date for its implementation and a policy decision has been taken in this regard. It is also urged that there is no provision either under the Act or the Statutes framed under the Act for continuance of teaching staff beyond the age of 62 years.
9. On the other hand, learned Panel Lawyer for the State submitted that Agricultural Universities situate in the State of Madhya Pradesh, which have been constituted under the Act framed by the State Legislature, do not receive any grant-in-aid from the University Grants Commission and the State Government is entitled to decide the cut-off date of superannuation of the employees working in the Agricultural Universities. It is further submitted that the petitioner is not entitled to benefit of terms and conditions contained in the Scheme dated 31.12.2008. It is also urged that fixation of cut-off date of superannuation of the employees is an executive fiat/function and even if no reason is assigned for fixation of a particular date, it should not be interfered with by the Court, unless the cut-off is blatantly capricious. In support of her submissions, learned Panel Lawyer has placed reliance on a decision in the case of Government of Andhra Pradesh and others Vs. N.Subbarayudu and others, (2008) 14 SCC 702.
10. I have considered the submissions made on both sides. From perusal of the Scheme dated 31.12.2008 it is evident that discretion has been conferred on the State Government with regard to adoption of the scheme. The scheme provides that in case the State Government opts to revise the pay scale of Teachers and other equivalent cadres covered under the Scheme, the financial assistance from the Central Government to the State Government would be provided to the extent of 80% of the additional expenditure involved for the implementation of the scheme and the State Government would have to meet the remaining 20% of the additional expenditure from its own sources. However, such financial assistance would be provided for a period from 01.1.2006 to 31.3.2010 and thereafter the entire liability on account of revision of pay scales of the teachers of the University and College, would be borne by the State Government with effect from 01.4.2010. Clause8(p) of the Scheme provides that payment of central assistance for implementing the scheme is subject to the condition that entire scheme of revision of pay scales together with all the conditions laid down by the UGC, by way of regulations and other guidelines, shall be implemented by the State Government and the Universities and the Colleges coming under their jurisdiction as composite scheme without any modification except with regard to date of implementation of scale of pay mentioned hereinabove. Thus, it is evident that if the State Government takes a decision to implement the scheme, it has to implement the same as a whole.
11. It appears that the State Government by order dated 06.4.2010 took a decision to implement the scheme in respect of Government Colleges and Universities in the State of Madhya Pradesh under M.P. Vishwa Vidyalaya Adhiniyam, 1973. Thereafter, the State Government by order dated 09.4.2010 issued in accordance with Article 166 of the Constitution of India in the name of and on behalf of the Governor, took a decision to accord benefit of recommendations of VIth Pay Commission to the Vice Chancellors, Registrars, Teachers, Scientists, Librarians and Sports Officers with effect from 01.1.2006. From perusal of the order it is evident that the State Government after taking into account the fact that in order to avail the financial assistance under the scheme it is necessary to adopt the same without any modification, directed its adoption as such without any modification in respect of other recommendations, namely, with regard to age of superannuation, etc. in its entirety. The order further states that it has been issued after obtaining the approval from the Finance Department vide order dated 05.4.2010. From perusal of note-sheet filed as Annexure-P-9 in the writ petition it is evident that after due deliberation and after consultation with the Finance Department as well as concerned Agriculture Universities, namely, Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur and Rajmata Vijya Raje Scindia Krishi Vishwavidyalaya, Gwalior, a conscious decision was taken, inter alia, on the following terms:-
(i) After approval from the General Adminstration Department as well Finance Department an order dated 09.4.2010 was issued by which the benefit of recommendations of VIth Pay Commission was given to the Teachers and the age of superannuation was enhanced from 62 to 65 years. However, the aforesaid order was withdrawn without seeking the approval of the General Administraton Department and Finance Department.
(ii) In case the age of superannuation of the Teachers of Agricultural Universsity is enhanced from 62 years to 65 years the State Government would not incur any extra financial burden and the benefit of experience of Senior Teachers would be available to the Universities.
12. From perusal of note-sheet (Annexure-P-9) it is also evident that the issue with regard to financial burden has also been considered consciously and it has been found that for implementing the recommendations of VIth Pay Commission for the period from 01.1.2006 to 31.3.2010 in respect of employees of JNKVV the State Government will have to incur additional financial expenditure of Rs.52.52 crores, out of which Rs.41.72 crores shall be paid by the Indian Council of Agricultural Research and Rs.10.48 crores shall be paid by the State Government. Similarly, in respect of Rajmata Vijya Raje Scindia Krishi Vishwavidyalaya, Gwalior the State Government would incur the financial burden of Rs.40.42 crores out of which Rs.32.65 crores shall be paid by the Indian Council of Agricultural Research whereas the remaining Rs.8.16 crores shall be paid by the State Government. Thus, in respect of both the Universities the State Government shall be required to pay 20% of the amount of additional expenditure for the period 01.1.2006 to 31.3.2010 to the tune of Rs.18.59 crores whereas Indian Council of Agricultural Research shall make available 80% of the said amount i.e. Rs.74.37 crores. It is pertinent to mention here that there is neither rebuttal of averments made in the writ petition referred to supra in the return filed on behalf of the State Government nor any stand has been taken by the State Government that order dated 09/04/2010 does not bind it. It is well settled in law that if an allegation of fact is not denied the same is taken to be accepted. [See:Naseem Bano (Smt.) vs. State of U.P. & others, (1993) Suppl. 4 SCC 46 and Sushil Kumar Vs. Rakesh Kumar, AIR 2004 SC 230 ] and an executive action may be exercised not only through Council of Ministers but also through an individual Minister. See : State of Karnataka Vs. Union of India, AIR 1998 SC 68.
13. However, thereafter, once again by order dated 22.4.2013 the State Government directed for enhancement of age of superannuation of the employees in Agriculture Universities from 62 years to 65 years with effect from 01.5.2013. The said order has been made subject to the order which may be passed by this Court in this bunch of writ petitions. It was further directed that the Agriculture Universities shall take requisite steps for amendment of the statutes. Therefore, in the facts of the case, this Court need not adjudicate the issue with regard to effect of prescription of age of superannuation in the statutes framed by the Universities and the effect of prescription of age of teaching staff in the regulations of University Grants Commission as well as the issue of repugnancy as the State Government itself by order dated 22.4.2013 had directed the Universities to amend the statutes accordingly.
14. From the facts narrated in the preceding paragraphs, it is evident that the State Government took a conscious decision to accord benefit of recommendations of VIth Pay Commission and to enhance the age of superannuation to the Teachers of Agriculture Universities by order dated 09.4.2010. The aforesaid order was passed after taking into account the provisions of clause 8(p)(v) of the Scheme which provides that in order to avail the financial assistance from the State Government the entire scheme has to be adopted as a whole without any modification. There is no material on record to show that the State Government has not availed any financial assistance from the Central Government after implementation of the Scheme. In other words after having availed the financial assistance from the Central Government for implementation of the scheme and after accepting the recommendations vide order dated 09.4.2010, the State Government had no authority to pass orders dated 22.4.2010 and 22.4.2013 modifying the order dated 09.4.2010. Since the State Government has taken a decision to adopt the scheme on 09.4.2010, therefore, the consequences envisaged in the scheme itself would automatically follow as has been held by the Supreme Court in case of Jagdish Prasad Sharma (supra).]
15. Accordingly, the order dated 22.4.2010 is quashed. The order dated 22.4.2013 in so far as it fixes the cut off date as 01.5.2013 for availing the benefit of enhancement of age of superannuation from 62 years to 65 years in respect of petitioners is also quashed. The petitioners shall be entitled to the benefit of recommendations of VIth Pay Commission as well as the age of superannuation as directed by the State Government vide order dated 09.4.2010. Needless to state, the concerned Universities, namely, Jawaharlal Nehru Krishi Vishwavidyalayay, Jabalpur and Rajmata Vijya Raje Scindia Krishi Vishwavidyalaya, Gwalior shall take necessary steps for amendment in the statute for enhancement of age of superannuation in respect of age of teachers as directed by the State Government vide order dated 22.4.2013.
16. Accordingly, the writ petitions are allowed to the extent indicated above. However, There shall be no order as to costs.
(Alok Aradhe Judge a/RM