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2018 DIGILAW 282 (ALL)

CHANDRA MOHAN VERMA v. STATE OF Uttar Pradesh

2018-02-02

IRSHAD ALI, PANKAJ MITHAL

body2018
JUDGMENT By the Court.—The petitioner was appointed as Lecturer in Cardiology in G.S.V.M. Medical College, Kanpur and last served there as Professor and Head of the Department of Cardiology. 2. The dispute in this petition preferred by him is basically about the age at which he would retire i.e.60 years or 65 years. 3. The petitioner has been served with an office order dated 30.6.2015 stating that according to his date-of-birth 13.8.1954, he would be attaining the age of superannuation on 31.8.2014. He would accordingly retire on 30.6.2015 when the running academic session would end and his services would come to an end. 4. The petitioner has challenged the aforesaid office order and has prayed that he may be allowed to continue in service upto the age of 65 years on the basis of the Government Order dated 6.2.2015 which provides for substituting 65 years as the age of superannuation in place of 60 years. 5. We have heard Sri S.P. Gupta, Senior Advocate assisted by Sri Ram Krishna, learned counsel for the petitioner and Ms. Archana Singh, learned Standing Counsel for the respondents. 6. The sole contention of Sri S.P. Gupta, Senior Counsel is that under the Government Order dated 19.11.2012, the teachers working in the State Allopathic Medical Colleges have been given benefit similar to that of Education Department/Technical Education to continue in service till the end of the academic session in which they attain the age of superannuation i.e. till 30th June provided there is no departmental enquiry pending against them. The petitioner, who attained the age of superannuation of 60 years on 31.8.2014 as such became entitle to continue till the end of the session i.e 30.6.2015. The Director Medical Education and Training issued an order dated 6.8.2014 giving the benefit of the academic session to the petitioner. Before the petitioner could retire on 30.6.2015, a Government order was issued on 6.2.2015 which categorically provide that the age of superannuation of the faculty members of the State Medical Colleges shall stand substituted by 65 years in place of 60 years. Since the said Government order has come into force before the retirement of the petitioner, he became entitle to continue in service till the age of 65 years. 7. Since the said Government order has come into force before the retirement of the petitioner, he became entitle to continue in service till the age of 65 years. 7. In response to the above submission put-forth by Sri Gupta, learned Standing Counsel submitted that the petitioner attained the age of superannuation on 13.8.2014 and retired on the last date of that month i.e. 31.8.2014. His continuation in service till the end of the academic session is by way of re-employment/re-engagement and therefore, the Government Order dated 6.2.2015 which came after his retirement as aforesaid would not apply so as to extend his services till the age of 65 years. 8. The Court repeatedly put a query to the parties if the Service Rules or Uttar Pradesh Fundamental Rules which provides for the age of superannuation have been amended but the Court was unable to get any positive reply to it rather Sri Gupta, submitted that in view of the aforesaid Government Order dated 6.2.2015, the age of superannuation stood substituted to 65 years in place of 60 years. 9. Sri Gupta in support of his contention has relied upon a decision dated 24.1.2017 of the Division Bench of this Court in Special Appeal Defective No. 477 of 2013, State of Uttar Pradesh through Principal Secretary Secondary Education, Lucknow and others v. Smt. Hema Pathak and another. 10. The aforesaid decision lays down that under the Regulations framed under Uttar Pradesh Intermediate Education Act No. 1921 if a teacher attains the age of superannuation after the commencement of the academic session, he would be entitle to continue till the end of the running academic session and if any benefit including promotion becomes due during this extended period, the same would not be denied unless there is a specific provision to that effect in the Rules or the Regulations. 11. He has also placed a decision of the Supreme Court dated 4.6.2014 passed in Civil Appeal No. 2606 of 2009, Ram Vir Sharma v. State of Uttar Pradesh and others. This was also a case under the Uttar Pradesh Intermediate Education Act, 1921 and the controversy therein was whether a Principal having attained the age of superannuation would be entitle to continue to function on the said post upto the end of the academic session. 12. This was also a case under the Uttar Pradesh Intermediate Education Act, 1921 and the controversy therein was whether a Principal having attained the age of superannuation would be entitle to continue to function on the said post upto the end of the academic session. 12. The question was answered in favour of the Principal holding that Regulation 21 contained in Chapter III of the Regulations framed under the aforesaid Act in unequivocal terms provide that a Principal shall retire on attaining the age of 62 years but if the date of superannuation falls between 2nd July to 30th June than in that case the retirement of the Principal would be at the end of the running academic year. Therefore, the Principal would continue to function as Principal till the end of the academic year i.e. 30th June. 13. There is no issue on the above aspects of the matter. The petitioner on attaining the age of superannuation of 60 years is entitle to continue till the end of the academic session as is also indicated vide letter dated 6.8.2014 issued by the Director General Medical Education and Training, Uttar Pradesh Lucknow but the real issue is whether the age of superannuation of the petitioner stood altered or substituted to 65 years in place of 60 years. 14. Admittedly, the services of the petitioner are governed by the Uttar Pradesh State Medical College Teachers Service Rules, 1990. The said Rules fail to prescribe the age of the superannuation of the teachers of the medical colleges. It is accepted that in such a situation the Rules applicable to Government servants i.e. the Uttar Pradesh Fundamental Rules (hereinafter referred to as the Rules) would be applicable. 15. The relevant part of the aforesaid Rule 56 of the Rules is reproduced hereinbelow : “56(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided.................................” 16. Rule 56 of the Rules provided 60 years as the age of superannuation of the Government Servant and we do not find any change or amendment in the same. 17. Rule 56 of the Rules provided 60 years as the age of superannuation of the Government Servant and we do not find any change or amendment in the same. 17. It is well-settled that where the relevant service Rules or the Rules governing the conditions of services provides for a particular thing, a simple Government order is not sufficient to alter or modify the said thing or the Rules. 18. In other words, if the Rules applicable provide for a particular age for superannuation of the employees, they have to retire according to the age so prescribed. The age prescribed under the statutory Rules is not liable to be altered or changed by mere administrative directions or even by a Government notification which is in the nature of a subordinate legislation having no overriding power over the Rules. 19. The hierarchy of laws in the country provide that Rules to be subordinate to the Acts and Regulations to the Rules, Ordinances to the Regulations and then comes to notifications etc. 20. Thus, it is well recognised that Rules cannot override the Acts, the Regulations, the Rules and Ordinances and Notifications, the Regulations though the subordinate legislation may supplement the superior legislation. 21. A full bench of this Court in Vijay Singh and others v. State of Uttar Pradesh and others, 2004(4) ESC 2209 (All)(FB), in unequivocal terms laid down that the statutory rules cannot be set at naught by issuing executive instructions. 22. In Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others, (2013) 5 SCC 427 , it has been held that executive instructions which have no statutory force cannot override the law and any notice, circular, guidelines etc. which run contrary to the statutory laws cannot be enforced. 23. In view of the above legal position as Rule 56(a) of the Rules specifically provides for the age of retirement to be 60 years, the said age cannot be altered or changed by the Government Order dated 6.2.2015 so as to substitute 65 years in place of 60 years as the age of superannuation. The said Government Order has to be ignored rather than to be enforced. 24. The said Government Order has to be ignored rather than to be enforced. 24. Thus, even assuming that the aforesaid Government order had come during the service of the petitioner it would not have the effect of enhancing the age of superannuation prescribed under Rule 56(a) of the Rules which stands unamended. 25. In view of the aforesaid facts and circumstances, we find no merit in the petition and the same is dismissed.