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1999 DIGILAW 422 (KER)

Joseph v. State of Kerala

1999-09-15

C.S.RAJAN, P.K.BALASUBRAMANYAN

body1999
Judgment :- C.S. Rajan, J. In all these cases a common question arises as to whether the teachers in private colleges who had opted for retirement at the age of 60 under the relevant University Statutes but who had completed 55 years are eligible to come under the U.G.C. Scheme. The Government in Ext. P-7 (OP. 9624/911 has taken the view that the petitioners who come under the above category are not eligible to come under the U.G.C. Scheme. 2. A brief back-ground of the case will be advantageous to adjudicate the issues involved in these cases. In 1972 the Government introduced direct payment of salaries in private colleges. The Kerala University issued its First Statute in respect of pension, provident fund, gratuity, insurance and age of retirement covering all the teachers in the private colleges. Other Universities in Kerala also issued similar Statutes or adopted the Statutes issued by the Kerala University. According to the above Statutes, compulsory retirement on superannuation will be 55 years. But a provision was made for giving option to the teachers of private colleges who had entered service prior to 1.4.1958 to retire at the age of 60 years. Private college teachers who entered service on or after 1.4.1958 were given pensionary benefits contemplated in the Statutes. Under the Statutes the service after 55 years would not be counted for the purpose of calculating the retirement benefits. There is considerable disparity between the retirement benefits of those who retired at the age of 55 and who opted to continue till the age of 60 years. In 1987 U.G.C. Scheme was sought to be introduced in the State. Under the above scheme the age of superannuation is 60 years. The Universities are also ordered to re-employ them till 60 years. U.G.C. Scheme was implemented in the State with effect from 1.1.1986. But there was a clause in the above order implementing the U.G.C. Scheme to the effect that the retirement age would continue as at present. 3. According to Ext P-4 Government Order (OP. 9624/91) introducing the U.G.C. Scheme senior most 52% of the teachers were included in the U.G.C. Scheme. Persons who come within the 48% can aspire to be included in the U.G.C. Scheme as and when vacancies arise. 4. 3. According to Ext P-4 Government Order (OP. 9624/91) introducing the U.G.C. Scheme senior most 52% of the teachers were included in the U.G.C. Scheme. Persons who come within the 48% can aspire to be included in the U.G.C. Scheme as and when vacancies arise. 4. Persons like the petitioners approached this Court on an earlier occasion and this Court directed the Government to take a decision as to whether the group represented by the petitioners is entitled to get the benefit of U.G.C. Scheme. Thus Ext. P-7 in O.P. No. 9624 of 1991 happened to be passed. 5. According to the petitioners, the exclusion of the group of the petitioners from the U.G.C. Scheme is arbitrary, discriminatory and violative of Arts.14 and 16 of the Constitution of India. The above discrimination was further elucidated and explained by learned counsel for the petitioners as follows: The impugned order makes a classification between teachers in Private Colleges who retired at the age of 55 and who retired at the age of 60. The remuneration and other emoluments payable to these two groups of teachers were not different in material particulars. It is clearly on account of historical reasons that these classes of teachers came into existence. As a matter of fact the U.G.C. Scheme evisages that all teachers need retire only at the age of 60 years. It was further argued that the classification of these teachers as those who retire at the age of 55 and those who retire at the age of 60 has no nexus at all with the objects sought to be achieved by the implementation of the U.G.C. Scheme. 6. Learned counsel for the petitioners argued on the basis of various rulings of the Supreme Court that the classification founded on the age of retirement is arbitrary and discriminatory. All the cases cited by learned counsel for the petitioners relate to granting of pensionary benefits. It is also pertinent to point out that the basic decision either relied on or explained in these decisions is D.S. Nakara v. Union of India (AIR 1983 SC 130). All the cases cited by learned counsel for the petitioners relate to granting of pensionary benefits. It is also pertinent to point out that the basic decision either relied on or explained in these decisions is D.S. Nakara v. Union of India (AIR 1983 SC 130). In the ruling reported in Krishna Kumar v. Union of India (AIR 1990 SC 1782) the Supreme Court had occasion to consider the question whether the option given to the Railway employees covered by Provident Fund Scheme to switch over to pension scheme with effect from a specified cut-off date would be violative of Art.14 of the Constitution. Dealing with the above question the Supreme Court upheld the above provision in the Provident Fund Scheme of the Railway employees holding that there was no discrimination and there was no question of striking down or reading down clause relating to the specified cut-off date in the scheme. While discussing the dictum in Nakara 's case (AIR 1983 SC 130) the Supreme Court also observed that in Nakara'a Case it was never required to be decided that all the retirees formed a class and no further classification was permissible. In the ruling reported in Union of India v. P.N. Menon (AIR 1994 SC 2221) the Supreme Court had occasion to consider again the impact of the dictum laid down in Nakara's case. In the above case also the Supreme Court upheld the action of the Central Government in extending the benefit of treating the portion of Dearness Allowance as part of the pay to Government Servants who retired on or before 30th September, 1977. Yet another ruling cited by learned counsel for the petitioners is State of W.B, v. Ratan Behari Dey ((1993) 4 SCC 62). In the above case also the Supreme Court upheld the classification of the retired employees into two categories with reference to the cut-off date of 1.4.1977 for giving effect to the retirement benefits to the employees of the Corporation of Calcutta. A Division Bench of this Court (to which one of us is a party (Rajan, J)) had occasion to consider the matter in Ananthasubramanian v. State of Kerala (1996(2) KLT 69). A Division Bench of this Court (to which one of us is a party (Rajan, J)) had occasion to consider the matter in Ananthasubramanian v. State of Kerala (1996(2) KLT 69). In the above case this Court held that the dictum laid down in D.S. Nakara's case is not an eternal answer to all the questions relating to the validity of classification of pensioners and each case had to be decided on the facts of that case. It was further held that D, S. Nakara's case cannot be applied blindly without looking into the facts of each case to hold that the classification of pensioners with reference to date of retirement is arbitrary, unreasonable and discriminatory in all types of pension cases. 7. The learned counsel also cited another ruling of the Supreme Court reported in University of Delhi v. Raj Singh and Ors. (1994 Supp.(3) SCC 516). In that case the question decided was whether the regulations prescribed by the University Grants Commission prescribing certain qualifications were beyond the competence of the University Grants Commission and as to whether they were directory and not mandatory. The Delhi University contested that the U.G.C cannot impose any conditions of eligibility on the University, While dealing with the above question the Supreme Court held that the University Grants Regulations are made applicable to -the University established or incorporated by or under a Central Act, Provincial Act or a State Act and ever}' institution or affiliated College recognised by the Commission and they are intended to ensure that all the appointees to the post of Lecturers must have proficiency required for Lecturers in all the Universities in the country. We do not think that the above ruling has any impact on the issues involved in this case. 8. In this connection it is pertinent to refer to another decision of the Supreme Court reported in George v. State of Kerala (1992 (1) KLT 793). In the above case the Supreme Court considered the claim of the teachers working in private colleges in Kerala to continue till they attain 60 years of age in accordance with the U. G. C. Scheme. Rejecting the above claim of the teachers the Supreme Court held as follows: "5. In the above case the Supreme Court considered the claim of the teachers working in private colleges in Kerala to continue till they attain 60 years of age in accordance with the U. G. C. Scheme. Rejecting the above claim of the teachers the Supreme Court held as follows: "5. We may further point out that the teachers in Universities are governed in respect of their conditions of service and the age of retirement by the separate statutes made by the Universities concerned. On the other hand the teachers in private colleges or affiliated colleges are governed in respect of their conditions of service by regulations or rules framed by the Government (separate state of statutes). In these circumstances, the two classes of Universities teachers and teachers in private colleges cannot be regarded as similar for purposes of conditions of service as to bring the case under Art.14 of the Constitution." Thus, it is very clear that as long as the superannuation remains fixed at 55 years, and as the State Government has not accepted the U.G.C. 's recommendation to fix age of superannuation at 60 years, private college teachers cannot claim as a matter of right that they are entitled to retire on attaining the age of 60 years. 9. Whether the enhancement of age of superannuation under the U.G.C. Scheme is applicable to the Librarians of the University came up for consideration before a Division Bench of this Court (to which one of us (Balasubramanyan, J. was a party) in O.P. No. 8812 of 1994. The Division Bench considered the above question as follows: "Thus on a consideration of the relevant aspects we are inclined to agree with the learned Single Judge that so long as the adoption of the scheme is subject to the existing statute enacted under the Kerala University Act regarding the age of superannuation, it cannot be held that the age of superannuation should be considered as 60 years as envisaged by the U.G.C. Scheme even in the teeth of the statute in that regard. We have already noticed that there is no challenge as such to the adoption of the scheme subject to the age of superannuation as prescribed for in the First Statute of the University. We have already noticed that there is no challenge as such to the adoption of the scheme subject to the age of superannuation as prescribed for in the First Statute of the University. So long as we are not able to hold that it is incompetent for the State Government to retain the age of superannuation as provided for in the First Statutes even while adopting the U.G.C. Scheme". 10. In W. A. No. 1070 of 1998 the Government assails the reasoning of the learned Single Judge that the Government have no authority to say that those private college teachers who completed 55 years and allowed to continue up to 60 years of age are not eligible to come under the U. G.C. Scheme. In view of rejection of the contention of the petitioner with regard to their right to come under the U.G.C. Scheme even after attaining 55 years of age we have to hold that the learned judge who allowed O.P. No.;. 8939 of 1991 proceeded on wrong premises. Therefore, the above Writ Appeal is allowed and the Original Petitions stand dismissed.