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Manipur High Court · body

2015 DIGILAW 92 (MAN)

K. Devananda Sharma v. State of Manipur and Ors.

2015-06-08

KH.NOBIN SINGH

body2015
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri H.S. Paonam, learned Sr. Advocate appearing for the petitioner and Smt. Th. Sobhana, learned Government Advocate appearing for the respondents. 2. Both the writ petitions arise out of similar set of facts and therefore, the same are being disposed of by this common judgment and order. W.P. (C) No. 501 of 2014 3.1 According to the petitioner, he joined his service as Librarian in the erstwhile private Ideal Girls' College which was subsequently taken over by the State Government vide order dated 20-12-1979 along with all eligible teaching and non-teaching staff of the said College against the posts created vide Government order dated 03-05-1980. 3.2 The petitioner had enjoyed all the facilities afforded to the Librarian working under the State Government in the form of incentives following the UGC Guidelines and Regulations issued in this regard and accordingly, the petitioner was given senior scale with effect from 01-01-1986 and the Selection Grade of pay with effect from 23-11-1989 after completing qualifying period of service as well as fulfilling the eligibility criteria for placement in the said Grades. 3.3 While the petitioner was serving as Librarian in the said College, the University Grants Commission issued various rules and regulations which are followed in the State of Manipur including the letter dated 19-10-2006 intimating to all the Education Secretaries of all the State Governments and Union Territories as regards Career Advancement Scheme of Assistant Librarians/ College Librarians/Assistant Directors of Physical Education/ College Directors of Physical Education with the age of their superannuation being raised upto 62 years. In continuation of the said letter, the Joint Secretary, UGC communicated about the approval conveyed by the Ministry of Human Resource Development as regards the revised Career Advancement Scheme as well as raising the age of superannuation of the College Librarian and Director of Physical Education upto 62 years. Thereafter, the Ministry of Human Resource Development, Department of Higher Education vide its letter dated 31-12-2008 informed that the Government of India had decided to revise the pay scale of teachers of the Central Universities subject to various provisions of the scheme wherein it is mentioned that in order to meet the situation arising out of the shortage of teachers in universities, the age of superannuation of teachers in Central Educational Institutions who are involved in class-room teaching, had been enhanced to 65 years. Since there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in respect thereof in the age of superannuation was not available and had remained unchanged at 62 years. 3.4 In the year 2010, a new regulation called the University Grants Commission (Minimum Qualification Required for the Appointment and Career Advancement of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 came to be framed vide Regulation dated 30-06-2010 wherein the age of superannuation of Librarians and Directors of Physical Education remained unchanged at 62 years. In consonance with the said regulations, the Department of Higher Education, Government of Manipur vide its letter dated 24-10-2013 addressed to the Accountant General, Manipur, the Addl. Chief Secretary (Finance) and the Principal Secretary (DP), Govt. of Manipur made necessary clarification regarding the retirement age of College teachers wherein it is also clearly mentioned at para 5 thereof that the Government College Librarians, posted in Colleges and not involved in class-room teaching, are to retire on attaining the age of 62 years. Accordingly, the petitioner who was to retire on attaining the age of superannuation on 30-04-2013 was allowed to continue by operation of the Government's letter/order dated 24-10-2013 and the petitioner's pay slip was prepared by the Accountant General, Manipur clearly mentioning the date of retirement of the petitioner as 30-04-2015. 3.5 To the shock and surprise of the petitioner, the Deputy Secretary (Hr. & Tech. Edn.), Government of Manipur addressed to the Accountant General, Manipur a letter dated 08-05-2014, impugned herein, stating therein that the raising of the age of retirement on superannuation in respect of the Government College/Polytechnic Teachers who are involved in class-room teaching, shall not cover the Government College/Polytechnic Librarians and that the age of retirement of the Government College/Polytechnic Librarians as mentioned in para 5 of the letter dated 24-10-2013 was a bonafide mistake. Being aggrieved by the said letter dated 08-05-2014, the petitioner has questioned it by way of the present writ petition. Being aggrieved by the said letter dated 08-05-2014, the petitioner has questioned it by way of the present writ petition. W.P. (C) No. 540 of 2014 4.1 Being aggrieved by the issuance of the letter dated 08-05-2014, the petitioner has questioned the validity and correctness of it by filing a writ petition being W.P. (C) No. 501 of 2014 wherein this Hon'ble Court was pleased to pass an order dated 18-07-2014 granting status-quo as regards the petitioner's status as on that date. On 23-07-2014, when the said writ petition being W.P. (C) No. 501 of 2014 was listed for further consideration, the learned Government Advocate produced a copy of the Government's order dated 16-07-2014 by which the service of the petitioner was terminated retrospectively with effect from 30-04-2013 on attaining the age of 60 years. On the same day, the petitioner approached the Principal of the Ideal Girls' College requesting him to furnish a copy of the pension and pay related orders and in response thereto, the Principal of the Ideal Girls' College furnished a copy of the said letter dated 16-07-2014 along with its letter dated 24-07-2014. 4.2 According to the petitioner, the said letter dated 16-07-2014 was issued backdated just to frustrate the court's order dated 18-07-2014 as is evident from the letter dated 24-07-2014 of the Principal, Ideal Girls' College. Being aggrieved by the said Government order dated 16-07-2014, the petitioner has questioned it by way of the present writ petition being W.P. (C) No. 540 of 2014. 5. It is submitted by Shri H.S. Paonam, learned Senior Advocate for the petitioner that the regulations of the UGC, issued from time to time, are being followed by the State of Manipur; that the letter dated 08-05-2014, impugned herein, is unjust, unreasonable and malafide. It is further submitted that since the petitioner had been allowed to continue in service in terms of the regulations of the UGC determining the age of superannuation as 62 years, the discontinuance of the petitioner's service as Librarian by merely saying that the letter dated 24-10-2013 was issued by the State Government by mistake and the Government order dated 16-07-2014 terminating the petitioner from service retrospectively, by way of backdated, is quite unjust, arbitrary and illegal. On the other hand, the learned Government Advocate, relying upon the affidavit filed on behalf of the respondents in W.P. (C) No. 540 of 2014, has submitted that in pursuance of the O.M. dated 30-11-2010 raising the age of superannuation of the teachers of Government Colleges only from 60 to 62 years, the State Government issued the order dated 04-06-2014 to the effect that the age of superannuation in respect of College Librarians shall be 60 years instead of 62 years and accordingly, the Deputy Secretary (Hr. Edn.) issued the order dated 16-07-2014 retiring the petitioner on attaining the age of 60 years on superannuation as on 30-04-2013. It is further submitted that the State Government had not adopted the UGC regulations, 2010 in toto like effective date of implementation, actual payment and age of superannuation of College Librarians, etc. 6. The fixation of the age of retirement is a matter of policy decision but it shall be done well in advance, normally, at the time of creation of a particular post so that a government servant, appointed against the said post, will have an idea when he will retire from service and it cannot be determined by way of interpretation of the provisions of a rule or a letter issued by the State Government in that regard. The age of retirement shall be specific and unambiguous. It may be noted that as regards the post of Librarian in Government Colleges, the State Government appears to have not issued any order fixing the age of retirement prior to the scheme of the University Grants Commission informed vide its letter dated 19-10-2006. It is not in dispute that as per the scheme of the University Grants Commission informed vide its letter dated 19-10-2006, the age of retirement of the College Librarian is 62 and the relevant para is under: "2. It is not in dispute that as per the scheme of the University Grants Commission informed vide its letter dated 19-10-2006, the age of retirement of the College Librarian is 62 and the relevant para is under: "2. It has been decided that the age of superannuation for Assistant Librarians/ College Librarians and Assistant Directors of Physical Education/College Directors of Physical Education would henceforth be 62 years." Similarly, para 8(f)(ii) of the University Grants Commission Regulations, 2010 provides as under: "(ii) Whereas the enhancement of the age of superannuation for teachers engaged in class-room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from present sixty-two years shall not be available to the categories of Librarians and Directors of Physical Education". In a letter dated 24-10-2013 of the Deputy Secretary (Hr. & Tech. Education) addressed to the Accountant General, Addl. Secretary (Finance) and Principal Secretary (DP) clarifying as regards retirement age of College teachers as 65 years, it is specifically stated that the Government College Librarians are to retire on attaining the age of 62 years. 7. In the present case, the whole controversy erupted on 08-05-2014 when the Deputy Secretary (Hr & Tech. Education), Government of Manipur issued a letter clarifying that the retirement age on superannuation in respect of the Librarians of Government Colleges/Polytechnic shall be 60 years and not 62 years. Being aggrieved by this letter, the present writ petition has been filed by the petitioner questioning the correctness and validity thereof on the ground that the said letter dated 08-05-2014, impugned herein, is unjust, unreasonable and malafide. The other grievance of the petitioner is that although he was allowed to continue in service even after 60 years, may be, in terms of the regulations of the UGC, he has suddenly been discontinued from service merely saying that the letter dated 24-10-2013 was issued by the State Government by mistake and the petitioner ought to retire at the age of 60 years. The learned Senior Counsel has submitted that the issues involved herein are covered by the decision rendered by this court on 07-04-2015 in the case of W.P. (C) No. 453 of 2014, Smt. Okram Pramodini Devi & anr. v. State of Manipur & ors. 8. The stand of the State Government is that the age of retirement on superannuation of the Librarians working in Government Colleges and the Polytechnic is, in fact, 60 years. But by mistake, the letter dated 24-10-2013 has been addressed to the Accountant General, Manipur and other departments stating that Government College Librarians are to retire on attaining the age of 62 years. The State Government has endeavoured to justify it by saying that it was by mistake by referring to the earlier O.M. dated 30-11-2010 wherein it is stated that the age of retirement of the teachers of the State Government Colleges, Manipur on superannuation shall be 62 years with immediate effect. Since there is no mention about the enhancement of the age of retirement in respect of the Librarians, it shall be presumed that its retirement age ought to continue to be 60 years. The further stand of the State Government is that the UGC regulations have not been adopted in toto and therefore, an order dated 04-06-2014 has already been issued clarifying the details in respect of other Librarians who have retired in similar circumstances. 9. As has been stated in the preceding para, the age of retirement cannot be determined by way of explanation and it ought to be specific and unambiguous which requires no interpretation. The State Government is unable to produce a copy of any order which specifically prescribes the age of retirement in respect of Librarians. 9. As has been stated in the preceding para, the age of retirement cannot be determined by way of explanation and it ought to be specific and unambiguous which requires no interpretation. The State Government is unable to produce a copy of any order which specifically prescribes the age of retirement in respect of Librarians. As regards the question as to whether the UGC regulations have been adopted in toto or not, the learned Senior Counsel has submitted that the State Government does not come before this court with clean hands for the reason that while in the present case, the State Government has, in their affidavit, stated that the UGC regulations have not been adopted in toto, it has filed an affidavit in W.P. (C) No. 787 of 2013, R.K. Yaishkul Singh v. State of Manipur stating therein that "the provisions of UGC Regulations, 2010 which has been adopted by the State Government cannot be subject to pick and choose policy of the writ petitioners whereby they pick those provisions that are beneficial to them or reject those provisions that they don't want. Obviously, the UGC Regulations have to be adopted as package in toto or rejected in toto." The conduct of the State Government is unfair and unreasonable attracting penal actions against the officials who make such contradictory statements before the court. 10. There is substance in the submission of the learned senior counsel appearing for the petitioner that the issues involved herein are covered by the said decision of this court. Two contentions raised by the respondents in the present case are that by O.M. dated 30-11-2010, the age of superannuation of the teachers of Government Colleges only was raised from 60 to 62 years and that of the Librarians was not raised at all and therefore, the age of superannuation in respect of College Librarians shall be 60 years and that the State Government had not adopted the UGC regulations, 2010 in toto, particularly, in respect of effective date of implementation, actual payment and age of superannuation of College Librarians, etc. These contentions were also raised in the earlier case and after the same having been considered, this court had rendered a decision, the relevant portions of which are as under: "8 As regards the merit of the case, it has been submitted by the learned counsel for the petitioner that as per the provisions of the University Grants Commission Regulation, 2006 and 2010, the age of superannuation of the Librarians is 62 years which is evident from the letter dated 24-10-2013 of the Deputy Secretary (Hr. & Tech. Education) addressed to the Accountant General, Addl. Secretary (Finance) and Principal Secretary (DP) clarifying that Govt. College Librarians were to retire on attaining the age of 62 years and the letter dated 30-10-2013 wherein the Jt. Director of Univ. & Hr. Education) had mentioned that the petitioners were due for retirement on attaining the age of 62 years. The said submission of the learned counsel for the petitioner was not denied by the learned counsel for the State respondents and all that she submitted was that the regulations of the University Grants Commission had not been adopted in toto; that the age of superannuation of the Librarians is 60 years and that it was due to bonafide mistake that the Deputy Secretary (Hr. Education) had mentioned in his letter dated 24-10-2013 that Govt. College Librarians were to retire on attaining the age of 62 years. There is no material on record to substantiate her submission except relying upon the O.M. dated 30-10-2013 to contend that the age of superannuation was enhanced to 62 years only in respect of teachers and not of Librarians. In the original file being No. 7(2)/12/2008-S/HE(pt) placed before this court as aforesaid, there is nothing about the decision being taken by the State Government that the regulations of the University Grants Commission would be partly adopted except effective date of implementation, actual payment, age of superannuation for College Librarians etc. (9) Since the State respondents have not produced the relevant file wherein the decision is taken by the State Government in regard to adoption of the Regulations of the University Grants Commission, it may not be right on the part of this court to accept the submission of the counsel for the State respondents. (9) Since the State respondents have not produced the relevant file wherein the decision is taken by the State Government in regard to adoption of the Regulations of the University Grants Commission, it may not be right on the part of this court to accept the submission of the counsel for the State respondents. At this juncture, the submission of the learned counsel for the petitioner that the decision rendered by the Hon'ble Supreme Court in the case of Kailash Singh v. State of Bihar & ors, reported in (2005) 13 SCC 576 would apply to the facts and circumstances of the present case, has some force. In Kailash Singh case (Supra), the Hon'ble Supreme Court held: "6. So far as post-retiral benefits are concerned it is submitted that they may not be admissible to him. We fail to appreciate the submission made on behalf of the respondents in the background of the facts indicated in the earlier paragraph. The respondents took work from the appellant without any dispute. He would obviously be entitled to his salary and there is no reason as to why he should be denied the post-retiral benefits. His total service comes to 32 years. We have already adverted to the fact that the medical report has not been placed on the record, nor as to what is meant by the term "average age", has been explained to us. In the totality of the facts and the circumstances of this case, we find no good reason to deny those benefits to the appellant". The facts of the present case are not exactly the same as that of the above case but the circumstances in which the above decision was rendered by the Hon'ble Supreme Court are similar. In the present case, the petitioners were allowed to continue in service till the age of 62 and having served till 62 years, they were given their full salary and were allowed to retire vide Government order dated 28-01-2014. Before the said order dated 28-01-2014 was issued, there was no any document placed on record to show specifically that the age of retirement for the Librarians would be 60 years whereas the Regulations of the University Grants Commission, 2006 and 2010, relied upon by the petitioners, clearly state that the age of retirement for the Librarians would be 62 years. Even assuming that allowing the petitioners to retire at the age of 62 was a mistake, it could not be attributed to the petitioners because the State respondents had admitted that the mistake was theirs. Moreover, the State respondents have failed to produce the relevant file showing the policy decision that the Regulations of the University Grants Commission were partly adopted except effective date of implementation, actual payment, age of superannuation for College Librarians, etc. Therefore, relying upon the above decision of the Hon'ble Supreme Court, there is no reason why the petitioners be denied the post-retiral benefits and the Government order dated 04-06-2014 is liable to be quashed and set aside. In view of the above observations, the writ petitions being W.P. (C) No. 392 of 2014; W.P. (C) No. 393 of 2014 and W.P. (C) No. 453 of 2014 are allowed and consequently the impugned orders dated 25-04-2014 and 04-06-2014 issued by the Deputy Secretary (Hr. Education) and the Commissioner (HTE), Government of Manipur respectively are quashed and set aside with no order as to costs." 11. On 29-05-2015 when the hearing stood concluded and judgement and order reserved, this court granted one week time to the parties for filing additional documents and accordingly, both the parties have filed additional documents along with supporting affidavits. The State Government has relied upon a Notification dated 29-11-2010 to contend that the age of retirement of State Government employees on superannuation has been raised from 59 to 60 years. It may be noted that the said notification is quite general and does not mention specifically anything about the retirement age of Librarians and College teachers whose age of retirement has already been fixed in the regulations of the UGC adopted by the State Government. Therefore, this court is of the view that the said notification shall not apply to the case of the petitioner. 12. With the above observations, the present writ petitions being W.P. (C) No. 501 of 2014 and W.P. (C) No. 540 of 2014 are allowed and accordingly, the letter dated 08-05-2014 and Government order dated 16-07-2014 issued by the Deputy Secretary (Hr. & Tech. Education), Government of Manipur are quashed and set aside with no order as to costs.