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2012 DIGILAW 504 (GAU)

Kamalakant Sharma v. Union of India

2012-04-25

ADARSH KUMAR GOEL, N.KOTISWAR SINGH

body2012
JUDGMENT N. Kotiswar Singh, J. 1. This writ appeal has been preferred at the instance of one Professor of the Tripura University whose claim for serving up to 65 years had been disallowed by the University and after having failed to persuade the Learned Single Judge to direct the University to allow him to do so. Heard Sri K.N. Bhattacharjee, Id. Senior Counsel assisted by Sri Kohinoor Bhattacharjee, Sri S. Acharjee and Sri D. Bhattacharjee, Advocates for the appellant and Sri A. Lodh learned counsel appearing for the Respondents. 2. The writ petitioner, the appellant herein, filed the writ petition, being W.P. (C) No. 303 of 2010, in which the petitioner had sought for a direction to the Tripura University to allow him to continue to serve as Professor in Mathematics in Tripura University till 65 years on the basis of a letter dated 23.3.2007 of the Government of India enhancing the age of retirement in the centrally funded institutions in higher and technical education and the related notifications issued by the University Grants Commission to 65 years. 3. The petitioner initially joined service as a Reader in the then Calcutta University Post Graduate Centre at Agartala, Tripura in the year 1984. After the aforesaid Post Graduate Centre became a full-fledged state university under the name and style of Tripura University, the service of the petitioner was absorbed and was continued in the said University. The University was subsequently converted to a Central University in accordance with Tripura University Act, 2006 passed by the Parliament, with effect from 2.7.2007. The petitioner was serving as a Professor when he was informed by the University vide memorandum No. F.3(14-32)/TU/87 dated 21.3.2007 that he would retire as a Professor on attaining 60 years on 16.3.2007. 4. The University was subsequently converted to a Central University in accordance with Tripura University Act, 2006 passed by the Parliament, with effect from 2.7.2007. The petitioner was serving as a Professor when he was informed by the University vide memorandum No. F.3(14-32)/TU/87 dated 21.3.2007 that he would retire as a Professor on attaining 60 years on 16.3.2007. 4. Upon receipt of the aforesaid memorandum, the petitioner submitted representations to the University authorities claiming that he was entitled to continue in service till the age of 65 years on the basis of the decision taken by the Ministry of Human Resources Development, Government of India vide notification No. I-19/2006-U-2 dated 23.3.2007 which provided that on further review of the earlier decision of the Government of India to revise the pay scales of Central Government employees on the recommendation of the Fifth Central Pay Commission and raising the age of superannuation of university and college teachers to 62 years (as provided under the earlier Ministry's letter No. 1-22/97-U.I. dated 27.7.1998), the age of superannuation for teaching positions in centrally funded institutions in higher and technical education would be increased to 65 years. 5. The genesis of the claim of the petitioner is to be found at the aforesaid letter written by the Ministry of Human Resource Development, Government of India to the Secretary, University Grants Commission, under letter No. 1-22/97-U.I dated 27.7.1998, by which the Government of India conveyed its decision to revise the pay scales of teachers in Central universities following the revision of pay scales of Central government employees on the recommendations of the Fifth Central Pay Commission. It also provided for enhancement of the age of superannuation of teachers in the Central universities to 62 years. The aforesaid letter also provided that the Scheme contained in the letter will be applicable to the teachers of all the Central universities and colleges there- under and Deemed to be universities whose maintenance expenditure is met by the UGC. It further provided that the implementation of the revised scales will be subject to acceptance of all the conditions mentioned in the letter as well as the regulations to be framed by the UGC in this behalf. Accordingly, the UGC was advised to inform the universities to amend statutes and ordinances in line with the regulations within three months from the date of issue of the letter. 6. Accordingly, the UGC was advised to inform the universities to amend statutes and ordinances in line with the regulations within three months from the date of issue of the letter. 6. The Ministry of Human Resources Development, Government of India also circulated copies of the aforesaid letter to the Education Secretaries of all the States and the Union Territories vide their letter No. F1-22/97-UI, dated 27.7.1998. Paragraphs 3 and 4 of the aforesaid letter are of vital importance for deciding the issue involved in this appeal and accordingly are reproduced as below : 3. The State Governments, after taking local conditions into consideration, may also decide in their discretion, to introduce scales of pay different from those mentioned in the Scheme, and may give effect to the revised scales or pay from January 1, 19% or a later date. In such cases, the details of the modifications proposed either to the scales of pay or the date from which the Scheme is to be implemented should be furnished to the Government of India for its approval and, subject to the approval being accorded to the modifications, Central assistance on the same terms and conditions as indicated above will be available to the State Government for implementation of the Scheme with such modifications, provided that the modified scales of pay are not higher than those approved under the Scheme. 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. 7. In may be also stated that in terms of the aforesaid Government of India's letter, the UGC framed Regulations in exercise of conferred under Clause (e) & (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956. 7. In may be also stated that in terms of the aforesaid Government of India's letter, the UGC framed Regulations in exercise of conferred under Clause (e) & (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956. 8 Subsequently, the matter was reviewed by the Central Government in the light of shortages in teaching positions in the Centrally funded institutions in higher and technical education under the Ministry of Human Resource Development and in the context of Government's decision to expand the capacities of such institutions for increasing access to higher education and for implementing the policy of reservations for the weaker sections without affecting the number of seats in the unreserved category available through general merit. On the basis of the aforesaid review undertaken by the Central Government, age of superannuation of all persons who were holding teaching positions on regular employment against sanctioned posts as on 15.3.2007 in any of the centrally funded higher and technical education under the Ministry was increased from the existing 62 years to 65 years. In other words, the said Scheme was reviewed by the Central Government only in respect of the enhancement of the age of superannuation. 9. The Tripura University authorities rejected the request of the petitioner on the ground that the Tripura University was converted to a Central University with effect from 2.7.2007 and since the petitioner had retired on 16.3.2007 on attaining the age of 60 years, the request of the petitioner for reinstatement to the post of Professor is not tenable. Further, the petitioner was also informed that the recommendation of the UGC for raising the age of superannuation from 60 to 65 years is applicable to teaching position in Centrally funded institutions in higher technical education and since Tripura University was not a centrally funded university in March 2007, the said UGC letter would not be applicable in his case. 10. It is to be noted that according to Ordinance No. 17 of the Tripura University First Ordinances/1989, a full-time teacher of the University enjoying University Grants Commission scale of pay shall retire on the compensation of 60 years of age. It seems it seems that before Tripura University was converted to a Central University, the State of Tripura had adopted the revised pay scale with necessary modifications. It seems it seems that before Tripura University was converted to a Central University, the State of Tripura had adopted the revised pay scale with necessary modifications. However, no decision was taken by the State Government to raise the age of superannuation to 62 years as provided under the letters of the UGC but decided that the age of superannuation of University teachers would continue to be 60 years. 11. Accordingly, being aggrieved by the decision of the Tripura University by not extending his service beyond 60 years, the petitioner filed the above referred writ the petition challenging the decision of the Tripura University. 12. The main pleas of the petitioner may be stated as follows. (i) The Scheme prepared by Central Government regarding the revision of pay scales and enhancement of the age of retirement is a composite one and no modifications are permissible except to the date of implementation and scales of pay as indicated therein. (ii) Thus according to the petitioner, while certain modifications are allowed in the pay scales taking into consideration local conditions, no such discretion has been provided to the State Governments as regards other conditions stipulated in the letter of the Central Government including the provision for enhancement of the age of retirement. The implementation of the revised scales will be subject to the acceptance of all the conditions mentioned in the scheme as well as the Regulations framed by the UGC in this behalf, and the stipulation regarding the age of superannuation featured in the age to 62 years cannot be ignored by the State government. It was submitted that as provided in the letter of the Government of India, the Scheme is a composite one and no modifications can be made except to the date of implementation and scale of pay. (iii) The State of Tripura while adopting the Scheme declared by the Ministry of Human Resources Development, Government of India made a distinct departure from the provision for age of superannuation as incorporated in the Government of India's Scheme and the UGC Regulation, 1998 by not adopting it but deciding to continue with the existing age of superannuation at 60 years, which is not permissible. (iv) Even though the letters circulated by the Government of India instructed the Universities to amend the statutes and ordinances in line with the Regulation within three months from the date of issue of the letter dated 27.7.1998, the Tripura University while implementing the scheme did not amend Ordinance No. 17 of the First Ordinances, 1989 and First Regulations, 1999, which is required under the Scheme. 13. Tripura University contested the claim of the petitioner primarily on the ground that the Notification dated 23.3.2007 issued by the Ministry of Human Resource Development, Government of India was applicable only in the case of Central Universities and Centrally funded institutes. Since the Tripura University was a State University during the relevant period of time, the said Notification was not applicable in case of Tripura University and the petitioner. It was stated that at that time, the age of retirement of teachers of Tripura University was governed by Clause 17 of the First Ordinances, 1989 and the petitioner having retired before Tripura University became a Central University, the said letter and Notification of the UGC would be of no help to the petitioner. It was also contended by the Tripura University that on the basis of Notification dated 23.3.2007 issued by the Ministry of Human Resources Development, Government of India, no decision was taken by Government of Tripura for the enhancement of superannuation from 62 to 65 years. 14. The learned Single Judge after considering the rival contentions of the parties and the materials on record rejected the claim of the petitioner and dismissed the writ petition vide judgment and order dated 22.12.2011 passed in the aforesaid W.P. (C) No. 303 of 2010 which is now under challenge in this writ appeal. The learned Single Judge held that at the relevant time when the petitioner retired from service, Tripura University was a State University and there is nothing to show that it was a Centrally funded university. The letter dated 23.3.2007 of the Central Government enhancing the age of superannuation to 62 years was not an enactment made by the legislature making it applicable to all the states and they can not be made applicable automatically to the state universities unless a conscious decision is taken by the concerned State government. 15. The letter dated 23.3.2007 of the Central Government enhancing the age of superannuation to 62 years was not an enactment made by the legislature making it applicable to all the states and they can not be made applicable automatically to the state universities unless a conscious decision is taken by the concerned State government. 15. Against the aforesaid decision of the learned Single Judge, the petitioner has preferred this writ appeal and the reiterated the pleas taken before the Learned Single Judge and emphasizing the plea that at the relevant time, even though Tripura University was not a Central University, it was a Centrally funded university as it received funds from the Central Government, at least from 1.1.1996 upto 31.3.2000 and thereafter from 1.1.2006 upto the conversion as Central University and as such claimed the benefit of the enhancement of the age of superannuation. 16. Having heard arguments on both sides and having gone through the judgment under challenge, we do not find any reason to differ from the reasons given and the conclusion arrived at by the Learned Single Judge. However, we do wish to supplement the decision with the following observations. 17. The core contention of the appellant is that the Scheme of the Government of India for revision of pay scale of teachers and the UGC Regulations is a composite one inasmuch as the provisions regarding enhancement of the age of superannuation cannot be jettisoned from the other provisions for revision of pay scale while adopting and implementing the provisions regarding the revision of pay. The State government and the Tripura University which was at the relevant time a State University, having decided to adopt the revision of the scale as proposed by the Government of India and the UGC with the permissible modifications, had to adopt the provisions regarding the enhancement of the age of superannuation also. Therefore, the separate and independent decision of the Government of Tripura to retain the age of superannuation to 60 years after adopting the revision of the scale is not permissible as the State government could not deviate from the composite Scheme, which also provided for enhancement of the age of superannuation. 18. Therefore, the separate and independent decision of the Government of Tripura to retain the age of superannuation to 60 years after adopting the revision of the scale is not permissible as the State government could not deviate from the composite Scheme, which also provided for enhancement of the age of superannuation. 18. The issue regarding the scope and implication of the Scheme, more particularly with reference to the letter dated 27.7.1998 of the Government of India ad- dressed to all the State Government had been already considered exhaustively by the Supreme Court in B, Bharat Kumar v. Osmania University, reported in (2007) 11 SCC 58 . In the aforesaid case, the Hon'ble Supreme Court after examining the aforesaid letter along with other sub- sequent letter/clarifications held that the said Scheme is a voluntary one and not binding on the State Governments and it is left to the discretion of the State government to implement or not to implement the scheme. It was also held that if the State government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State government. The Supreme Court therefore, held that if the State Government in its discretion, which is permissible under the Scheme, decides to restrict the age and not increase to 62 years as the case may be, it was perfectly justified in doing so. It may be profitable to refer to the relevant paragraphs in the aforesaid judgment of the Hon'ble Supreme Court in B. Bharat Kumar's case (supra): 13. The situation is no different in the present case also. The very language of the letter dated 27-7-1998 suggests that the scheme is voluntary and not binding at all. Further it is specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it suggested in the scheme which scheme was itself voluntary and not binding. The Court clearly observed that "the appellant cannot claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation". The Court clearly observed that "the appellant cannot claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation". The Court therein observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. It was lastly clearly observed that as long as the State Government has not accepted UGC's recommendations to fix the age of superannuation at 60 years, teachers can not claim as a matter of right that they were entitled to retire on attaining the age of 60 years. 14. In spite of our best efforts, we have not been able to follow as to how the judgment of the Kerala High Court, which has been approved by this Court is, in any manner, different from the factual situation that prevails here in this case. It is for that reason that we have extensively quoted not only the aforementioned letter dated 27-7-1998 but also the subsequent letters and the further policy statement. Plain reading of all these is clear enough to suggest that the scheme was voluntary and it was up to the State Governments to accept or not to accept the scheme. Again even if the State Government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State Government. In fact the subsequent developments suggest that the State Government has not chosen to accept the scheme in full inasmuch as it has not accepted the suggestions on the part of UGC to increase the age of superannuation. 15. Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the sub- sequent arguments of Mr. Rao regarding Entry 66 in List I vis-a-vis Entry 25 in List III. 15. Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the sub- sequent arguments of Mr. Rao regarding Entry 66 in List I vis-a-vis Entry 25 in List III. In our opinion, the communications, even if they could be heightened to the pedestal of a legislation, or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-a-vis the State Government and the universities. We, therefore, do not find any justification in going to the entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and specifically suggest it to be voluntary. 19. In the present case, the State Government had adopted the revised pay scale in terms of the Government of India's letter dated 27.7.1998 and conveyed their decision to the Tripura University vide their letter dated 26.3.1999. However, as regards age of superannuation, State Government informed the Tripura University that the age of superannuation of University teachers would continue to be 60 years. The aforesaid decision of the State Government is consistent with the decision of the Supreme Court in B. Bharat Kumar's case (supra) and as such the their decision can not be faulted with. Since the aforesaid scheme was of a voluntary nature and not binding upon the States, it was not mandatory on the part of the Tripura University, then a State University to change Ordinance 17 which governed the age of superannuation. Therefore, if the Tripura University had declined to extend the age of superannuation of the petitioner based on the aforesaid Ordinance 17, the same also cannot be also faulted with. Because of the voluntary nature of the Scheme, the argument that the Scheme is a composite one without any scope for modification except to the date of implementation and scales of pay, no more holds water. The said provisions, in view of the above, will be merely directory rather than mandatory. 20. Because of the voluntary nature of the Scheme, the argument that the Scheme is a composite one without any scope for modification except to the date of implementation and scales of pay, no more holds water. The said provisions, in view of the above, will be merely directory rather than mandatory. 20. In course of the hearing, a reference has been made to a decision of a Division Bench of the Punjab and Haryana High Court where similar issues had arisen. In the aforesaid case, some of the teachers serving in various colleges/universities which were not central universities or Centrally funded institutes had claimed, inter-alia, that upon adoption of revision of pay scale by the respective States and universities in terms of the aforesaid scheme of the Government of India and the UGC Regulations, they were entitled to the enhanced age of superannuation in terms of the aforesaid scheme and were not bound by the provincial service rules/regulations/rules framed under Proviso to Article 309 which according to them stand superseded by the aforesaid Scheme of the Government of India and the UGC Regulations. The Punjab and Haryana High Court by a judgment and order dated 4.3.2011 rendered by a Division Bench (speaking through Adarsh Kumar Goel. J, as he was then) in Prof. S.S. Bindra and Others v. The State of Punjab and Others, CWP No. 9665 of 2010 relying upon the judgment of the Supreme Court in B. Bharat Kumar's case (supra) held that service conditions regarding the age of retirement provided under Proviso to Article 309 or under any statute cannot be deemed to have been amended by virtue of the Scheme dated 31.12.2008 (which was by following the earlier Scheme under Government of India's letter dated 27.7.1998) except with regard to "Centrally funded higher technical education institutions coming under the purview of this Ministry in order to overcome shortages of teachers". It was also held that giving of reimbursement was a different matter between the UGC and State government and it will have no effect on the revision of age of superannuation. We respectfully agree with the decision of the Punjab and Haryana High Court in the above case, ratio of which is applicable to the present case also. It was also held that giving of reimbursement was a different matter between the UGC and State government and it will have no effect on the revision of age of superannuation. We respectfully agree with the decision of the Punjab and Haryana High Court in the above case, ratio of which is applicable to the present case also. Therefore, Ordinance No. 17 of the Tripura University First Ordinances, 1989 will remain effective till such modification is made by the University and cannot be superseded by the provisions of the Scheme. 21. In the aforesaid decision of the Punjab and Haryana High Court, it was also observed by the High Court that if the Central government accepts the Punjab. University to be centrally funded, the scheme for revision of the age of superannuation may become applicable and still such a decision is taken, the Scheme can not be held to have become applicable. Sri K. N. Bhattacharjee, Id. Counsel for the appellant, referring to the aforesaid observation, had urged that since Tripura University had been Centrally funded at least since 1.1.2006, i.e., before the petitioner retired from service, the said provision relating to age of superannuation provided under the Scheme would be applicable and hence the appellant would be entitled to continue in service till the age of 65 years in terms of the Scheme of the Government of India. 22. This contention, however, does not carry much weight for the following reason. Apart from the financial assistance rendered by the Central Government for a particular period mentioned by the petitioner, there is nothing to show that Tripura University before it became a Central University was a centrally funded university. The appellant seems to have identified Central financial assistance with Central funding. It is to be noted that the expression "Centrally funded higher technical education institutions" does not find place in the initial Scheme of the Government of India as communicated in their letter dated 27.7.1998 or the UGC Regulation of 1998. Para viii of the letter No. F.1-22/97-U.I. dated 27.7.1998 of the Government of India addressed to the UGC provided that "the Scheme will be applicable to the teachers of all Central Universities and Colleges thereunder and the Deemed to be Universities whose maintenance expenditure is met by the UGC". Para viii of the letter No. F.1-22/97-U.I. dated 27.7.1998 of the Government of India addressed to the UGC provided that "the Scheme will be applicable to the teachers of all Central Universities and Colleges thereunder and the Deemed to be Universities whose maintenance expenditure is met by the UGC". Since, the said Scheme came to be applied to other Centrally funded institutions like Indian Institute of Technology, Indian Institute of Management, Indian Institute of Science and other such Centrally funded institutes, but which are not Central universities or colleges thereunder, the applicability of the said scheme was extended to cover not only the Central Universities but to all other Centrally funded institutes as mentioned above. This is evident from the letter dt. 23.3.2007 which uses this phrase "Centrally funded higher technical education institutions", copies of which were Circulated to all such Centrally funded higher technical education institutions. These are the institutions which are run on the basis of regular funding by the Central Government. It may be noted that in the first Government of India's letter dated 27.7.1998, the scheme is also made applicable to "deemed to be Universities whose maintenance expenditure is met by the UGC". Therefore, the expression "Centrally funded higher technical education institutions" would indicate those institutions which are not Central universities or colleges thereunder, but whose maintenance expenditure is met by the UGC/Central government. It is not the case of the petitioner that the maintenance expenditure of the Tripura University was borne by the UGC or the Central government at the relevant time. The Central funding began with the conversion of it to a Central University w.e.f. 2.7.2007. Prior to it, it was the State Government which was mainly responsible for funding the University. Occasional financial assistance from the Central Government would not render it a "Centrally funded institution". The contention of the appellant that since Tripura University received financial assistance from the Central government to the extent of 80% for meeting the expenditure arising out of the implementation of the scheme as regards the revision of the pay scale with effect from 1.1.1996 to 313.2000 or from 1.1.2006 would render it a centrally funded institute is mentioned to be rejected only. The Central Government had sought to provide 80% of the funds required for the implementation of the scheme to all the non Centrally funded institutions. The Central Government had sought to provide 80% of the funds required for the implementation of the scheme to all the non Centrally funded institutions. Thus, the very purpose of providing 80% of the funds was because of the reason that these institutions are not centrally funded institutions. Therefore, had Tripura University's been a centrally funded University as contended by the appellant, there was no need to provide 80% of the Central fund to the Tripura University for implementing the Scheme. In other words, the very fact of giving 80% of the funds required for implementing the Scheme clearly shows that the Tripura University was not a centrally funded Institution at the relevant time. These, in our opinion would be sufficient to dispel the contention of the petitioner appellant that Tripura University was a Centrally funded educational institution at the relevant time. In view of the observations and reasons as stated above, we find no merit in this appeal and accordingly the same stands dismissed. No order as to costs. Appeal dismissed