Document Fragment View

Matching Fragments

{ 8th May, 2017} Per Hemant Gupta, Chief Justice:

A Division Bench of this Court on 19.1.2017 referred the following two questions for decision by the Larger Bench in a petition filed by the Teachers working in the aided private institutes in the State, seeking the benefit of enhanced age of superannuation i.e. 65 years, as has been granted to the Teachers working in the Government Institutes. The questions are:-
"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 also entitled to the benefit of having their age of superannuation fixed at 65 as is applicable in the case of Government Teachers?

27- Reliance is also placed upon a judgment reported as 1965 (2) SCR 173, [Prabhakar Ramakrishna Jodh Vs. A.L. Pande and another] wherein in the case of an appellant - Lecturer in an affiliated college to the University of Saugar and managed by a Governing Body of an aided private institution, held that the College Code similar to Statute 28 has been framed by the University and is intra vires to the powers of the University contained in section 32 read with Section 6(6) of the University of Saugar Act, 1946. It was held that the College Code does not merely regulate relationship between the University and the College alone, and that the power to fix pay scale falls within the statutory power of affiliation granted to the University under the Act. Thus, it was held that the College Code creates legal right in favour of the affiliated colleges.

28- Reference is also made to another Supreme Court judgment reported as AIR 1989 SC 341 [Vidya Dhar Pande Vs. Vidyut Grih Siksha Samiti and others], wherein the regulations framed by Board of Secondary Education, Madhya Pradesh under the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1955 has statutory force and that a Higher Secondary School receiving 100% grant from the Government is amenable to writ jurisdiction.

29- It is thus argued that the College Code as framed by the Coordination Committee has the force of law and fixation of age of superannuation is part of the qualification required to be determined by the statute in terms of Section 35(j) of the University Act. It is further contended that the said clause of age of superannuation was provided in 1974, but the State Government never challenged the power of the Coordination Committee to prescribe the age of superannuation, therefore, at this stage the State cannot contend that the fixation of age of superannuation does not fall within the scope of powers conferred on the Coordination Committee. It is also contended that age of 60 years fixed in the initial statute framed by the Coordination Committee, has been admittedly increased to 62 years by the State Government in the year 1998, therefore, it cannot be said that Clause 26 of Statute 28 is beyond the competence of the Coordination Committee. It is contended that the qualification prescribed under section 35(j) of the Act, will include disqualifications to hold post which would include the age of superannuation which would make the incumbent disqualified to hold the post thereafter. It is also contended that once the State Government has decided to extend the age of superannuation of the Government teachers from 62 to 65 years, in terms of the UGC Regulations, by Circular dated 16.4.2010 which was modified vide Circular dated 14.9.2012. The teachers of the aided private institutions are entitled to the same benefit as has been conferred on the members of the teaching faculty of Government Institutes.

30- It is contended that Statute 28 (College Code) and, the Regulations of the UGC were not brought to the notice of the earlier Benches of this Court, therefore, appellants/petitioners are entitled to serve the colleges till they attain the age of 65 years.

31- On the other hand, the stand of the State as per the affidavit filed in Writ Appeal No.950/2015, which has been adopted as reply in all the writ appeals, is as under:-

"8. That it is also relevant to mention that a bare perusal of the resolution dated 7.1.2004 also goes to show that the aforesaid discussion took place in the year 2004 wherein there was no iota of recommendation of 6th Pay Commission. That an amendment was made in the year 2004 in College Code 28 and after the implementation of recommendation of 6th Pay Commission, no further deliberation in this regard was made by the Executive Council/ Coordination Committee. Hence the resolution dated 7.1.2004 cannot be relied upon by the appellant at this juncture. The recommendation of UGC, its applicability to the State Government, wisdom of the State Government to implement the recommendation of UGC etc, has been considered by the Hon'ble Apex Court in the case of T.P. George Vs. State of Kerala, 1992 SCR (2) 311. So far as the applicability of the resolution dated 7.1.2004 is concerned, it is respectfully submitted that the amendment has been incorporated as per decision of the Coordination Committee dated 7.1.2004, and the following amendment has been incorporated: