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Rajasthan High Court · body

2006 DIGILAW 3036 (RAJ)

Dhanpat Raj Bhandari v. Union of India

2006-11-15

BHAGWATI PRASAD

body2006
JUDGMENT 1. - The present writ petition has been filed by the petitioners in respect of the age of Superannuation. The case of the petitioners is that the respondent University is governed by the mandate of University Grants Commission and the University Grants Commission allocates the disburses 5 grant of the University for general and specific purposes. The Commission, according to the petitioners, have powers to make necessary recommendations for the reformation and improvement of the University Education and to advise the Central Government on problems connected with coordination of facilities and maintenance of standards in Universities. o The University Grants Commission acts under an Act known as the University Grants Commission Act, 1956 (hereinafter referred to as 'the Act of 1956'). 2. The petitioner submits that section 12 of the Act of 1956 prescribes the functions of the Commission. The petitioner has also submitted that Central Government has decided to implement a Scheme relating to pay 5 scales which has been placed on record by the petitioners. The petitioners' claim that the scheme unequivocally and unambiguously provides that payment of central assistance for implementation of the scheme is subject to the condition that the entire pay scales scheme together with all the conditions to be laid down in this regard by the University Grants Commission by way of regulations is to be implemented by the State Government as a composite scheme without any modification except to the date of implementation and scale of pay as indicated above. According to the petitioner there was a specific clause, clause no. (vi) which pertains to the age of Superannuation, as has been provided as such "(vi) Age of Superannuation,- The age of superannuation of University and college teachers would be 62 years and thereafter no extension in service should be given. However, it will be open to a University or college to re-employ a superannuated teacher according to the existing guidelines framed by the UGC up to the age of 65 years." 3. The claim of the petitioner is that the implementation of the revised scale is subject to the acceptance of all the conditions mentioned in this behalf. The respondent State is not accepting the condition of age of superannuation being 62 years. The petitioner claims that there is no justification of the respondent not to accept the age of superannuation being 62 years. The respondent State is not accepting the condition of age of superannuation being 62 years. The petitioner claims that there is no justification of the respondent not to accept the age of superannuation being 62 years. While the scheme of 05th Pay Commission was implemented by the respondent, it was incumbent upon them that they should have provided for the age of retirement to be 62 years and in this regard the petitioner placed reliance on the letter of the UGC Annx. 1, and placed reliance on condition 4 which is quoted below:- "4. The payment of Central assistance for implementation of the 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 in this regard by the UGC by way of Regulations, is implemented by the State Governments as a composite scheme without any modification except to the date of implementation and scales of pay as indicated above." 4. The respondent University has filed reply and has submitted as follows:- "The recommendations made by U.G.C. are not always binding on the universities as such recommendations are subject to approval by the State Government concerned." 5. The University has also submitted that the respondent University is neither a Central University nor it is maintained by the Central Government and in that regard the letter Annx. 1 is not enforceable. The University is bound by a memorandum of understanding with the State of Rajasthan. It has not agreed to implement the UGC regulation. 6. The State Government in its reply has stated that in the letter Annx. 1 in its paragraph 2 it has clearly been stated that the State Government has the option either to adopt or not to adopt the Scheme. Whether to adopt the scheme in part or not is the discretion of the State Government. The petitioners can have no interest or right in coming to this Court and seek writ of mandamus for implementing the Scheme. This Court in SBCW Petition No. 4354/2004, Hanuman Singh v. Maharana Pratap University, Udaipur has held as follows:- "It may be stated here that fixing of retirement age is a matter of policy largely dependent on the 'felt need of the administration'. A matter of policy decision or the executive must be left to the consideration of the State Government." 7. A matter of policy decision or the executive must be left to the consideration of the State Government." 7. This may also be noticed that in clause (iv) of Annx. 4 the Government of India has stated that UGC will frame regulations in this regard. As per the reply of the UGC no regulations has so far been framed and UGC has said in its reply in this case in the following terms : "9. That it is respectfully submitted that the University Grants Commission has not framed any Regulation specifying the age of superannuation of the teachers in the State Universities and the colleges affiliated, thereto. In the circumstances, it is open to the State Government to specify the 62 years or any other age as the age of superannuation of the teachers in the State Universities and the colleges affiliated thereto." 8. Thus the UGC which has been made the main source of authority to implement the regulations in favour of the petitioner has itself given a perfect leverage to the State Government that it may fix any age. Thus, also the petitioner has no case. 9. The State Government in this regard has passed a resolution which is on record. The letter dated 06.09.06 whereby it has declined specifically in relation to the respondent University that it is not possible to enhance the age of retirement from 60 to 62 years. This has been so resolved by the State Government keeping in view all the increasing unemployment and the availability of the Youth power for employment. A resolution of the respondent University Syndicate was sent specifically in this regard which was specifically declined by the State Government. Thus when the State Government has specifically taken a stand that it is not possible to raise the age of superannuation then the requirement of Annx. 1 stands answered and the State is not desirous of enhancing the age of superannuation. Reply of U.G.C. also concurs on the point that the State can fix any age of superannuation of the teachers of its Universities and colleges. Asking to enhance the age of superannuation by the Court's order is putting the court in legislative capacity which is not in accordance with law. 10. Reply of U.G.C. also concurs on the point that the State can fix any age of superannuation of the teachers of its Universities and colleges. Asking to enhance the age of superannuation by the Court's order is putting the court in legislative capacity which is not in accordance with law. 10. The respondents have relied on State of Assam v. Ajit Kumar Sarma, AIR 1965 SC 1196 wherein the Hon'ble Supreme Court has held as under : "There is no law to prevent the State from prescribing the conditions for giving grants-in-aid to educational institutions by mere executive instructions which have not the force of statutory rules. The Assam Aided College Employees Rules (1960) regarding Conduct and Discipline of Employees of Aided Educational Institutions admittedly have no statutory force and are framed in order to give revised grants to private colleges to enable them to give higher scales of pay etc. to their teachers in accordance with recommendations of University Grants Commission. Where such conditions of grants-in-aid are laid down by mere executive instructions it is open to a private college to accept those conditions or not to accept them. It is only for the governing body of the College to decide whether to carry out any directions contained in mere administrative instructions laying down conditions for grant-in-aid. Further it is open to the Government Body not to carry out any such instruction which is not based on rules having statutory force, and then it would naturally be open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it can hardly be said that the instruction is being carried out under any threat. It is not open to a teacher to insist that the Government Body should not carry out the instruction. The rules for the purpose of grant-in-aid being as in this case merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus against the State through the Director of Public Instruction for enforcement or non-enforcement of the rules, even if indirectly there may have been some effect on them because of the grant-in-aid being withheld by the State in whole or in part." 11. I have heard the learned counsel and have perused the record and have given my thoughtful consideration. 12. I have heard the learned counsel and have perused the record and have given my thoughtful consideration. 12. The petitioners are teachers of the University. They may have the interest of getting their age enhanced. But this has to be done as per the law governing the University. The University prescribes that they will retire at the age of 60. So there is no law that prescribe that an employee will retire at the age of 62. Unless there is a law authorising teachers to serve up to the age of 62, serving up to the age of 62 is not in consonance with the principles of law. The resolution of the Syndicate has not been approved by the State Government. There is no change in the statutes and ordinances of the University to prescribe any enhanced age. Thus case of the petitioner has no support of law governing the University. 13. Reply has been filed by the respondent State which has categorically stated that it is not in favour of enhancing the age of retirement. Once the State Government takes a stand then the conditions of service as existed would be made applicable and by a writ of mandamus no direction can be given to the respondent not to retire the petitioners at the age of 60. If the petitioners are permitted to continue beyond the age of 60 then they will be serving without the authority of law. There being no law to make the petitioners to serve beyond the age of 60, no direction can be given only on the basis of a recommendatory letter which is not accepted by the State Government. There is no discrimination because the State Government has rejected the plea of raising the age of enhancement of the age of superannuation. 14. The petitioners have tried to take shelter behind Annx. 1 a letter of Central Government. In this letter two conditions are clearly mentioned that State has the option for opting or not for the Scheme. State has declined to opt for the age part of the Scheme. It is for the Union of India to take up the matter with the State whether it wants its orders to be followed or flouted. It is not for this Court to take any action in the matter. 15. As regards Annx. State has declined to opt for the age part of the Scheme. It is for the Union of India to take up the matter with the State whether it wants its orders to be followed or flouted. It is not for this Court to take any action in the matter. 15. As regards Annx. 1 it may also be noticed that in clause 4 it has been mentioned that University Grant Commission will frame regulations in this regard. As per the U.G.C. no regulations have been framed in this regard. Thus also until regulations are framed Annx. 1 is not a complete instruction. 16. It may also be noticed that U.G.C. in its reply has left the question open for the State to fix the age of 62 or any other age of superannuation. As on to day, the age of superannuation prescribed for respondent University is 60. It is so in University Statutes and Ordinances. The State in its latest communication has specified that it is not possible to alter the age of superannuation from 60. Thus there is a clear mandate of law in this regard. 17. That being the position, the writ petition is not liable to be succeeded and in that view of the matter, the same is liable to be rejected, hence rejected.Writ Petition Dismissed. *******