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2002 DIGILAW 170 (KER)

T. K. Balachandran v. State of Kerala

2002-03-11

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2002
Judgment :- Radhakrishnan, J. Writ petitioners seek a declaration that they are entitled to continue in service upto 60 years of age in accordance with Clause 26 of the U.G.C. Scheme 1987. Petitioners are teachers of affiliated colleges under the University of Kerala. The question raised in these cases is no more res integra. The question is as to whether the petitioners could continue upto 60 years of age was considered by this court as well as the apex court I several decisions. In George v. State of Kerala 1992 (1) KLT 793 the apex court examined identical claim with particular reference to U.G.C. Scheme 1986 and held as follows: " We may clarify the scheme referred to UGC (University Grants Commission) Scheme of 1986 framed by the Government pursuant to the Malhothra Committee's Report. We may further point out that it is clear from paragraph 4 of the circular dated 17th June 1987, addressed by the Ministry of Human Resources Development, Department of Education, to the Education Secretary of all States/Uts (Union Territories) that the adoption of the scheme was voluntary, and the only result which might follow from the State Government not adopting the scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80 per cent of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the Scheme. 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 purpose of conditions of service as to bring the case under Act. In these circumstances, the two classes of Universities teachers and teachers in private colleges cannot be regarded as similar for purpose of conditions of service as to bring the case under Act. 14 of the Constitution." Teachers of private colleges under the Kerala University agitated the matter again before this court placing reliance on the decision of the apex court in D.S.Nakara v. Union of India (AIR 1983 SC 130), Krishena Kumar v. Union of India (AIR 1990 S.C. 1782), Union of India v. P.N. Menon (AIR 1994 S.C. 2221) State of West Bengal v. Retan Behari Dey (1993 (4) SCC 62) A bench of this court in Joseph v. State of Kerala (1999 (3) KLT 764 ) relying on the decision of the apex court in University of Delhi v. Raj Singh and others (1994 (3) Supp SCC 516) and also the earlier decision of the apex court in George v. State of Kerala (1992 (1) KLT 793 ) held as follows: "It is very clear that as long as superannuation remain fixed 55 years, and as the State Government has not accepted UGC recommendation to fix the age of superannuation of 60 years, private college teachers cannot claim as a matter of right that they are entitled to retire at the age of 60 years." Undaunted by the failure, private college teachers again came up before this court with identical prayers. The matter was again considered by a bench of this court to which one of us (Radhakrishnan,J.) was a party in Joykutty v. State of Kerala (2000(3) KLT Sh. Notes page 32). The court rejected such a prayer and held as follows : "The U.G.C. Scheme does not become applicable because of any statutory mandate making it obligatory for the Government and the University to follow the same. Therefore the State Government has a discretion either to accept or not to accept the Scheme. Where the State Government in its discretion decides to accept the Scheme subject to a condition, namely in so far as the age of superannuation is concerned, they are free not to accept the other stipulations like fixation of higher pay provided in the Scheme. Where the State Government in its discretion decides to accept the Scheme subject to a condition, namely in so far as the age of superannuation is concerned, they are free not to accept the other stipulations like fixation of higher pay provided in the Scheme. When the State Government accepts the Scheme in the modified form the teachers can only get benefits which flows from the Scheme to the extent to which it has been accepted by the State Government and concerned Universities." 2. Counsel appearing for the appellants in W.A. No. 1651 of 2000 Sri. V. Jayaprasad submitted that the apex court as well as this court had omitted to consider some vital questions of law. Consequently those decisions require re-consideration. Counsel submitted that University Grants Commission Act, 1956 is an Act enacted by the Parliament under Entry 66 of List I of VII Schedule to the Constitution of India. Counsel submitted that the Act was intended to make provision for the co-ordination and determination of standards in Universities and consequently University Grants Commission was established. On 17.6.1987 Ministry of Human Resource Development, Department of Education issued a Circular to all Education Secretaries of all the States and Uts regarding implementation of U.G.C. Scheme in fulfillment of the constitutional responsibility for co-ordination, determination and maintenance of standards in higher education. The National Policy on education, 1986 envisages efforts to reach the desirable objective of uniform emoluments, service conditions and grievance removal mechanism for teachers throughout the country. The policy also visualises the creation of an open participation and data based system of teacher evolution. Clause 26 states that the age of superannuation for teachers should be 60 years and thereafter no extension in service should be given. However, it would be open to the University or College to re-employ a superannuated teacher according to the existing guidelines framed by the U.G.C. upto the age of 65 years. Clause 5 of the Scheme stipulates that State Government will have discretion to introduce scale of pay different from those mentioned in the Scheme. The U.G.C. Scheme was later modified by letter dated 22.7.1988. Clause 24 of the modified Scheme deals with age of superannuation of teachers fixed as 60 years. Counsel submitted that on the basis of the above U.G.C. Scheme appellants are entitled to continue upto 60 years of age. 3. The U.G.C. Scheme was later modified by letter dated 22.7.1988. Clause 24 of the modified Scheme deals with age of superannuation of teachers fixed as 60 years. Counsel submitted that on the basis of the above U.G.C. Scheme appellants are entitled to continue upto 60 years of age. 3. The State Government by order dated 13.3.1990 implemented the U.G.C. Scheme including revision of pay scales for teachers of Universities including Kerala Agricultural University, Affiliated colleges, Law Colleges, Engineering Colleges and qualified Librarians and qualified Physical Education Teachers with effect from 1.1.1986. It was however provided in the said order that the retirement age will continue as at present. Counsel submitted that the Kerala University First Statutes 1972 had prescribed the age of retirement as 60 years and there is no reason to reduce it to 55 years by the 1976 Statutes. Counsel submitted that in such a situation Statutes would go against the U.G.C. Act as well as the Scheme. 4. Counsel submitted that law made by the legislature by virtue of entry II List II of VII Schedule to the Constitution would encroach upon entry 66 of Union List and therefore held to be bad. Counsel submitted that the provisions in the U.G.C. Act would prevail throughout the country. Counsel also made reference to the decision of the apex court in Osmania University Teachers Association v. State of A.P. (1987 (4) SCC 671). Counsel also made reference to the decisions of the apex court in University of Delhi v. Raj Singh and others (1994 Supp.(3)S.C.C. 516), State pf Tamil Nadu v. Adhiyamen Education and Research Institute and others (1995(4) SCC 104), State of W.B. v. Tropical School Employees Union (1996(8) SCC 294) and University Grants Commission v. Sadhana Chaudhary and others (1996 (10) S.C.C. 536). Counsel submitted that as per Sec. 20 of the U.G.C. Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. It is also pointed out that if any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final. Counsel submitted that the National Policy envisaged age of superannuation for teachers as 60 years. It is also pointed out that if any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final. Counsel submitted that the National Policy envisaged age of superannuation for teachers as 60 years. Counsel submitted that the State policy that the teachers should retire at the age of 55 years would go contrary to the National Policy. 5. State Government has filed a detailed counter affidavit in O.P. No. 1077 of 1997, Reasons for fixing the age of superannuation as 55 were elaborately dealt with by the State Government. In this connection we will deal with in brief some of the aspects which led to the fixation of retirement at the age of 55 for teachers of affiliated colleges. Before the introduction of the Scheme of direct payment of salaries to the staff working in private colleges, there was no security of job as well as there was no uniformity in the salaries of private college staff. Teachers of private colleges were claiming the same benefits which their counter-parts get in government colleges and they were agitating for the same. Considering the importance of private colleges in the realm of Higher Education in Kerala, Government took the policy decision to take up the responsibility in the matter of payment of salaries to private college staff etc. Accordingly an agreement was entered into by the private college management and the State Government. Therefore for providing security of service and uniformity in the service conditions, Government framed the Kerala University First Statute in 1972. Teachers of private colleges were also not entitled to get pensionary benefits like their counter parts in the government colleges. It is pointed out that the staff working in government colleges are government employees and they are entitled to all service benefits admissible to government Employees. For parity in service of private college staff with that of their counter part in Government Colleges, Government desires to extent pensionary benefits to private college staff as well. Accordingly Government issued First Statutes in respect of pension, provident fund, gratuity, insurance and age of retirement of private college staff. For parity in service of private college staff with that of their counter part in Government Colleges, Government desires to extent pensionary benefits to private college staff as well. Accordingly Government issued First Statutes in respect of pension, provident fund, gratuity, insurance and age of retirement of private college staff. According to the said statute while allowing retirement benefits admissible to government employees, age of retirement was also fixed as 55 years as in the case of government employees. We may indicate in this connection that the service conditions of University Teachers are entirely different from that of Government Employees. Service conditions of government college teachers, method of recruitment of teachers in the departments in University as well as in private colleges are also different. Even prior to the introduction of the U.G.C. Scheme, age of retirement of University teachers was fixed as 60 years. Retirement age of government college teachers and private college teachers was the same. We find lot of differences in the service conditions of University teachers and teachers of government colleges as well as private colleges affiliated to University. Fixation of age of superannuation would depend upon a variety of factors. The qualification fixed for the post, the job requirement, standard of education, financial capacity etc. would go into the decision making process which is essentially a policy decision. It is not the function of this court to encroach upon such policy decisions. 6. When the Kerala University Act 1969 and the Amendment Act 1971 were enacted Education including Universities was the State subject in Entry 63-66 of List I and Entry 25 of List III. Power of State Legislature to Legislate in respect of education including Universities might to the extent to which it was entrusted to the Union Parliament deemed to be restricted. This led to controversy in the scope and ambit of University Act and Entry 66 List I (See : Gujarat University v. Shri Krishna (AIR 1963 S.C. 703), R. Chitralekha v. State of Mysore (AIR 1964 S.C. 1823), State of A.P. v. L. Narendra Naik (AIR 1971 S.C. 2560) and Ambeshkumar v. Principal, LLRM Medical college (AIR 1987 S.C. 400. 42nd amendment Act 1976 consequently amended Entry 2 of List II and entry 25 of List III. Consequently no part of the subject of education belongs to the exclusive State List. 42nd amendment Act 1976 consequently amended Entry 2 of List II and entry 25 of List III. Consequently no part of the subject of education belongs to the exclusive State List. New Entry in the concurrent list reads as follows : "25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." We have already indicated Entry 66 gives power to Union to co-ordinate and determine standards in Institutions for higher education or research and scientific and technical institutions. We are not prepared to say there was any conflict in the various provisions of the Kerala University and that the Statutes provided thereunder with the U.G.C. Act and the Scheme framed thereunder. University Act and Statutes and the provisions contained therein would not become void since the Parliament legislates with the same subject. In this connection it is relevant to refer to the decision of the apex court in State of Tamil Nadu v. Adhiyamen Educational and Research Institute (1995 (4) SCC 104), wherein apex court considered the question whether some of the provisions of the All India council for Technical Education Act 1987 are in conflict or inconsistent with the provisions with the Tamil Nadu Private Colleges (Regulation) Act and Rules and the Madras University Act and therefore to the extent of such inconsistency provisions of the said Acts void. Though apex court found some of the provisions of the Central Statute were inconsistent with that of the State Act falling under Entry 25 of List III, the apex court held as follows : "What emerges from the above discussion is as follows : (i) The expression 'co-ordination' used in Entry 66 of the Union List of the 7th Schedule to the Constitution does not merely mean evaluation. It means harmonization with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'co-ordination; either impossible or difficult. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'co-ordination; either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. (ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the concurrent list but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. (iii) If there is an conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. (iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. (v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. (vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards of qualifications laid down by the Central law, they act unconstitutionally. (vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards of qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally." What emerges from the above discussion is that whether the State legislation encroaches upon entry 66 of the Union list or is repugnant to the law made by the Centre under Entry 25 of the concurrent list will have to be determined by the examination of two laws and will depend upon the facts of each case. Nothing prevents the State legislature from laying different standards or qualifications from those laid down by the Centre. When State legislature does so it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. We therefore hold that the University statute fixing age limit of 55 for superannuation for private college teachers by the State Legislature would not encroach upon Entry 66 of Union List. On examining the Kerala University Act and the statutes made thereunder and taking note of the fact that there is uniformity in the matter of age of retirement of private college teachers as well as government colleges in the State and the difference in the matter of appointment in various colleges with that of the University teachers, we are not prepared to say that fixation of age of superannuation as 55 as far as private college teachers is in any way inconsistent with or would go contrary to the U.G.C. Act and the Scheme. We therefore reject the contention raised by the petitioners and hold that their date of superannuation age is 55. We therefore dismiss all these cases.