Uttarakhand High Court
Navin Chandra Dhoundiyal vs State Of Uttarakhand And Others on 24 August, 2020
Equivalent citations: AIRONLINE 2020 UTR 477
Bench: Ravi Malimath, Narayan Singh Dhanik
AFR
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (S/B) 211 of 2020
Navin Chandra Dhoundiyal ...................Petitioner
Versus.
State of Uttarakhand and others ...............Respondents
Present:
Shri Vikas Bahuguna, learned counsel for the petitioner.
Shri K.N.Joshi, learned deputy advocate general for the
State/respondent no.1.
Shri B. D. Upadhyaya, learned senior counsel appearing for the
University/respondents no. 2 & 3's counsel Ms. Mamta Bisht.
Coram: Hon'ble Ravi Malimath, ACJ.
Hon'ble Narayan Singh Dhanik, J.
Hon'ble Ravi Malimath, ACJ. (Oral) The case of the petitioner is that he was initially appointed as a lecturer in the department of education on 12.11.1979 with the respondent-university. He took charge on 03.12.1979. He was thereafter promoted as a reader on 28.12.1993. Presently, he is working as a professor, department of Education, Kumaun University, SSJ Campus, Almora, since 29.11.2005. The respondent no. 2 passed the impugned order dated 21.12.2019 seeking to retire the petitioner from the end of the month along with the other employees of the University. Questioning the same, the instant writ petition is filed.
22. Learned counsel for the petitioner relied on statute no. 16.24 of the University, which reads as follows:
"16.24 (1) The age of superannuation of a teacher of the University, whether governed by the new scale of pay or not shall be sixty five years.
(2) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these statutes.
[provided that a teacher:-
a teacher whose date of superannuation does not fall on June 30, shall continue on service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.
(Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two years, after June, 30, following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension) Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement to the Kumaun University (Twenty-third amendment). First Statute, 1988 and a period of one year has not elapsed after the expiry of the period of their reemployment, may be considered for re-appointment for a further period of one year."
3. He, therefore, contends that the petitioner is entitled for an extension up to June, 2021. In support of his case, he relies on the judgment of the Division Bench of this Court dated 15.12.2017, passed in Dr. Indu Singh vs. State of Uttarakhand and others. He places reliance on paragraph 22 of the said judgment which reads as follows:
3"Turning to the context and the purpose of para 17.15, we would think that the purpose would appear to be to prevent creation of a sudden vacuum by the superannuation of a person, who is actually carrying out teaching activities. A person, who retires after 30th June, is entitled to continue till the end of the academic year. Apparently, the intention is to cater to the supreme need to not adversely affect the academic activities of the institution and to safeguard the interest of the students."
4. We have considered the said judgment. Nowhere does it indicate that the person should be continued for the next academic year up to the end of the next year June. What is stated therein is that the intention is to cater to the need of the school that the students are not adversely affected by the retirement of the teachers.
5. Further reliance is placed on the judgment of Hon'ble Supreme Court in (2001) 9 SCC 377 in the case of S.K.Rathi vs. Prem Hari Sharma and others. Learned counsel relies on para 5 of the order of the Hon'ble Supreme Court, which reads as follows:
"There is no doubt that the said decision would enable respondent 1 to continue as a Teacher, which is his substantive appointment, up to 30th June following the day when he attained the age of 60 years, but this clause cannot allow him to continue as an active Principal which is a different post altogether. It cannot be disputed that the post of Principal and of the Teacher is not the same. It is a Teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so, the appeal is allowed and the decision of the High Court permitting respondent 1 to function as Principal of the institution till 30.06.2000 is set aside."4
6. However, we are of the view that the said judgment would not be applicable to the case in hand. The question for consideration before the Hon'ble Supreme Court is as narrated in para 2 of its judgment, which reads as follows:
"The short question involved in the present case is whether respondent 1 is entitled to continue as an acting Principal of the college till 30.06.2000 as has been ordered by the High Court."
7. Therefore, what is stated in para 5 of the order of the Hon'ble Supreme Court is only an obiter dicta. The question for consideration before the Hon'ble Supreme Court is quite different. The observations made in para 5 would not be applicable, since that is not the question for consideration but a mere reference being made. Hence, the said judgment is not applicable.
8. Reliance is also placed on the unreported judgment of this Court produced along with the writ petition. The order of the Division Bench dated 10th January, 2018, passed in WPSB No. 601 of 2017, wherein the Hon'ble Division Bench held in para 3 as follows:
"Under Statute no. 16.24 of the First Statute of the Kumaun University, 1977, there appears to be a statuary right conferred on teachers attaining the age of superannuation at the age of 65 years to continue till the end of the academic year, namely, 30.06.2018."
9. Here too, we are of the view that there is no declaration of law, as such. Hence, we do not find compelled to follow the said order.
510. So far as the instant case is concerned, we like to reiterate that the statute 16.24 applies to the teachers of the university. Sub-clause (2) specifically narrates that there shall be no extension in service beyond of age of superannuation. Sub-clause 2.1 indicates that if the superannuation does not fall on June, 30th, he shall continue in the service till end of the academic session i.e. June, 30th and the same will be treated as reemployment. The reading of the sub-clause would clearly indicate that whenever the superannuation of an employee falls within the month of June, in that event, the retirement of that person will stand extended till the end of June of that particular month. The words used "of the end of the academic session", in our considered view, is misleading. The end of an academic session is not fixated as on June, even though, most of the universities end their academic session in June, 30th. It is not a matter of rule that the same happens everywhere. Therefore, the said concession has been granted only for the month of June.
11. Learned deputy advocate general submits that undisputedly there is an order issued by the government indicating that whenever a government employee is due for superannuation during the course of the month, in that event, even though he reaches the age of superannuation on that date, his superannuation by law shall be extended till the end of that particular month. It is on the basis of this principle that statute 16.24 has been created. The Division Bench of this Court in Indu's case (supra), have stated in para 22 that in the considered view of the court, the purpose of the statute is to prevent creation of a sudden 6 vacuum due to the superannuation of a person, who is actually carrying out teaching activities.
12. Even if the reasoning, as suggested by the Hon'ble Division Bench is to be considered, the same can be extendable only till the end of the month and not more. In order to test the contentions of the learned counsel for the petitioner, if the same were to be accepted, then every employee of the university will get a deemed extension of about a year of service. He does not require an argument to hold that this can never be the intention of the university or of the government. The extension of service can only be for a very limited period and not extendable for a period of about a year. The same would be in conflict with clause (2) of statute 16.24, which indicates that no extension of service is possible beyond the age of superannuation. However, as stated earlier, the principle by which the government has extended the superannuation till the end of the month, is on the same basis on which, clause 16.24 has been promulgated.
13. It is to be further seen that the 2nd proviso to 16.24 indicates that in case of physically and mentally fit teachers, they shall be reappointed for a further period of two years, who took part in the freedom struggle of 1942 and are getting freedom fighters pension. Therefore, the intention of the university was extremely clear. Those, who have fought for the freedom struggle, will get an extension of two years. That is the logic of the 2nd proviso. If the contention of the learned counsel for the petitioner is accepted, then one year extension is granted for no reason at all. Therefore, the person whose tenure is to be extended for no reason at all, cannot be compared with a tenure of a 7 person, who participated in the freedom struggle. Therefore, there being a conflict between the 2nd proviso and the 1st proviso, the contention of the learned counsel for the petitioner on this account, cannot be accepted. Under these circumstances, the plea of the petitioner for extension of one more year is misconceived.
14. For all the aforesaid reasons, the petition being devoid of merit, is dismissed.
(N.S.Dhanik, J.) (Ravi Malimath, ACJ.)
24.08.2020
KKS