IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 52 of 2010 (S/B) Pant University Teachers Association, Pant Nagar ….…… Petitioner. Versus Chancellor, Govind Ballabh Pant University Of Agriculture & Technology, Pant Nagar and others ……. Respondents Mr. L.P. Naithani, Senior Advocate with Mr. Anurag Bisaria and Mr. Pankaj Purohit, Advocates for the petitioner. Mr. Rajendra Dobhal, Senior Advocate with Mr. Manoj Sah, Advocate for respondent Nos. 1 to 3. Ms. Anjali Bhargava, Standing Counsel for the Union of India / respondent Nos. 4 and 5. Mr. Vinay Kumar, Standing Counsel for the State / respondent No. 6. Date of Judgment: 08.12.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (ORAL) Item 66 of the Union List, contained in Seventh Schedule of the Constitution of India, authorizes the Union of India to bring in laws for coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. In exercise of legislative power, thus conferred, the Parliament enacted the University Grants Commission Act, 1956 (hereinafter referred to as, ‘the Act’). The preamble of the Act specifies that the Act is to make provisions for the coordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission. After having had established the Commission as a body corporate having perpetual succession and a common seal, the Act prescribes the functions of the Commission. Section 12 of the Act makes the Commission duty-bound to take all such steps as it may think fit for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research in Universities. Therefore, the function of the Commission, enumerated in Section 12 of the Act, is an omnibus function without any restriction, but directed towards promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research in 2 Universities. Various relative functions in that regard have been enumerated in Section 12 of the Act, but none of them authorized the Commission to set down conditions of service of teaching members of the Universities. However, Clause (j) of Section 12 of the Act enumerates performance by the Commission of such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions. It goes without saying, in terms of Clause (e) of Section 2 of the Act, “prescribed” means prescribed by rules made under the Act. It is nobody’s case that by rules made by the Central Government, in exercise of its power under Section 25 of the Act, the Commission has been authorized to prescribe service conditions of the teaching staff of the Universities. Section 26 of the Act, grants regulation making power to the Commission, inter alia, in respect of defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions and regulating the maintenance of standards and the coordination of work or facilities in Universities. In exercise of such powers, University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations, 2000, were made, which came into force on 4th April, 2000. In that, since the Commission was not competent to decide the service conditions of the teaching employees of the Universities, the Commission did not incorporate the age of superannuation of teaching employees of the Universities. Until before 23rd March, 2007, the age of superannuation in centrally funded institutions in higher and technical education was 62 years. On 23rd March, 2007, the same was enhanced from 62 to 65 years, on the terms and conditions, mentioned in the letter of Government of India, Ministry of Human Resources Development, Department of Higher Education dated 23rd March, 2007, addressed to Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi. On 31st December, 2008, Government of India decided to revise the pay scales of teachers in central Universities. At the same time, it was decided to reaffirm its decision dated 23rd March, 2007 pertaining to 3 enhancement of age of superannuation from 62 to 65 years, referred to above. The said decision dated 31st December, 2008, authorized extension of the proposals contained in the said decision, propounded in the form of a scheme, to universities, colleges and other higher educational institutions coming under the purview of State legislatures, provided the State Governments wished to adopt and implement the scheme, subject to the terms and conditions set forth therein. One of the terms and conditions set forth thereunder, entitled the State Government to obtain financial assistance from the Central Government to the extent of 80% of the additional expenditure involved in the implementation of the revision, provided that payment of central assistance for implementation of the scheme is subject to the condition that the entire scheme of revision of pay scales, together with all the conditions to be laid down by the University Grants Commission by way of regulations and other guidelines, shall be implemented by the State Governments and Universities and Colleges coming under their jurisdiction under a composite scheme without any modification, except in regard to the date of implementation and scales of pay mentioned in the said scheme. On 11th May, 2010, the Central Government requested the Education Secretaries of all State Governments to take advantage of the said scheme with a condition that reimbursement of 80% of the additional requirement would be available only when the State Governments implement the said scheme of the Central Government in accordance with the said decision of the Central Government dated 31st December, 2008 as a composite package. On 30th June, 2010, University Grants Commission, in exercise of its power under Clauses (e) and (g) of Section 26 (1) of the Act, while superseded the regulations of 2000, referred to above, made the University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. In that, it provided that the revised scales of pay and other service conditions, including age of superannuation in central universities and other institutions maintained and funded by the University Grants Commission, shall be strictly in accordance with the decision of the Central Government as contained in appendix 1 thereto, which, in turn, is the scheme propounded by 4 the Central Government in accordance with its decision dated 31st December, 2008, referred to above. 2. There is no dispute that the State Government has implemented the scheme and has already obtained 80% of the additional finance from the Central Government for the purpose of implementing revision in the pay scales of the teachers of the Universities. While doing so, it, however, did not amend the Statute governing the service conditions of the teaching members of the Universities by increasing their age of superannuation to 65. Instead, the State Government appointed a committee to look into the matter. The committee looked into the matter and made a recommendation for enhancing the age of superannuation of teaching members of the Universities. The State Government, thereupon, pondering over the said recommendation, but did not take any step to implement the recommendation thus made. At that stage, the present writ petition was filed by the Pant University Teachers Association, Pant Nagar. On the writ petition, an order was passed requesting the State Government to take a decision on the recommendation made by the committee, so constituted by it, and to consider enhancement of age of superannuation to 65 years. While the said order was passed, an interim order was also passed, whereby the teaching members of Govind Ballabh Pant University, Pant Nagar, having reached the age of superannuation after presentation of the writ petition, were permitted to continue to work, but not to draw remuneration until such time a decision is taken by the State Government to enhance the age of superannuation or until such time the Court finally decides the matter. The said interim order is still continuing. 3. In the counter affidavit filed, the State has brought on record that it has considered the recommendation of the committee and has decided not to accept the recommendation thus made by the committee. In other words, the State has contended that it is not agreeable to increase the age of superannuation of the teaching members of Govind Ballabh Pant University, Pant Nagar or for that matter, any other University. In the circumstances, it has become necessary to decide the writ petition finally, one way or the other. 5 4. The object and purpose of the present writ petition is to obtain a mandamus to compel the State Government to increase the age of superannuation of teaching members of Govind Ballabh Pant University, Pant Nagar upto 65 years. The question is, whether the teaching members of Govind Ballabh Pant University, Pant Nagar have a right to have their age of superannuation increased to 65 years and if so, whether they can compel the State Government or Govind Ballabh Pant University, Pant Nagar to give them such increase by obtaining a mandamus from this Court? 5. The learned counsel, appearing in support of the writ petition, contended that since the Regulations of 2010 are statutory in nature, they are enforceable. We do not think that ordinarily Regulations made under Clause (e) or Clause (g) of Section 26(1) of the Act, dealing with the service conditions of teaching members of Universities, are enforceable, in as much as neither Clause (e) nor Clause (g) of Section 26(1) of the Act empowers the Commission to do anything with regard to service conditions of the teaching members of Universities. Fixation of age of superannuation is laying down one of the conditions of service. Clause (g) of Section 26(1) of the Act empowers the Commission to regulate the maintenance of standards and the coordination of work or facilities in Universities, which is not remotely connected, in the ordinary parlance, with service conditions of teaching members of Universities. Clause (e) of Section 26(1) of the Act empowers the Commission to define qualifications that should ordinarily be required of any person to be appointed to the teaching staff of Universities having regard to the branch of education in which he is expected to give instructions. The word “qualifications” used in Clause (e) of Section 26(1) of the Act encompasses age qualification. Therefore, it is well within the competence of the Commission to prescribe the minimum and the maximum age, but while there cannot be any compromise with the prescribed minimum or maximum age, there is no hard and fast rule that in between the minimum and the maximum permissible age is not compromisable. 6. We, accordingly, think that the matter has to be looked at from a slightly different angle. It is to be seen that the Central Government 6 increased the age of superannuation of the teaching members of the central Universities, noting the fact that there is a scarcity of such members in the market. That appears to be the specific reason given in the original decision of the Government dated 23rd March, 2007. The other reason was that the Central Government has decided to expand the capacity 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. Therefore, the basic reason for enhancement was to supplement the expanding horizon of the institutions by continuing existing teachers upto 65 years. If, in this background, one looks at Section 12(j) of the Act, it would appear that in terms thereof, the Commission is entitled to perform such other functions as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the same. Apropos that, the 2010 Regulations have been made, in exercise of power conferred by Clauses (e) and (g) of Section 26(1) of the Act, and while doing so, applying the function of the Commission under Clause (j) of Section 12 of the Act, the Commission has deemed it necessary to enhance the age of superannuation of teaching staff of the Universities for advancing the cause of higher education in India and, accordingly, has named the 2010 Regulations as “University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010”, giving special emphasis to Clause (g) of Section 26(1) of the Act while incorporating age qualification under Clause (e) of Section 26(1) of the Act. In the event, for the maintenance of standards in higher education, the University Grants Commission has asked the Universities to do certain things, since establishment of the Commission has been on the basis of power exercised under Item 66 of the Union List of the Constitution of India, it goes without saying that the same is binding on the State Government. The State Government has no other option but to implement such direction contained in the regulation thus made by the Commission in exercise of its statutory powers. 7 7. However, while making the regulation, the Commission did not ask the State Governments to revise in the same line the pay scales and other service conditions, including age of superannuation applicable to central Universities, but directed that such revised scales of pay and other service conditions, including age of superannuation, in institutions maintained and funded by University Grants Commission, shall be strictly in accordance with the decision of the Central Government dated 31st December, 2008, where it has been provided that the State Government may adopt the said decision in terms of the scheme, as has been propounded on the basis of the said decision, but as a composite package and not in truncated manner. It was, therefore, well within the competence of the State Government either to implement the said decision of the Government or not to do so. In the event the State Government deciding to implement the said decision of the Central Government, it was obligatory on the part of the State Government to implement the said decision of the Central Government in toto and not in truncated manner. While, therefore, implementing the said scheme and revising the pay scales, in the manner prescribed in the said scheme, made pursuant to the decision of the Central Government dated 31st December, 2008 and obtaining financial assistance from the Central Government / University Grants Commission to the extent of 80% of the additional expenditure for meeting the expenses of the pay revision, the State Government, in law, was not entitled to ignore that part of the package under which the State Government was directed to implement the proposal of increasing the age of superannuation upto 65 years, which proposal was founded on the basis of basic concept that in the expanding horizon of higher education, there is a dearth of availability of the teaching members. 8. Furthermore, having had implemented the scheme and thereby revising the pay scales in accordance therewith and obtaining financial assistance from the Central Government / University Grants Commission to meet the additional burden of the pay revision, the State Government clearly held out and made a representation to the members of the teaching staff of Govind Ballabh Pant University, Pant Nagar as well as to the members of teaching staff of all other Universities of the State to the effect that it is also 8 implementing the recommendation of increasing the age of superannuation to 65 years, which is part of the composite package for pay revision and, accordingly, is estopped by conduct / representation to act contrary thereto. 9. Therefore, the conclusion would be that in the facts and circumstances of the case as highlighted above, the members of teaching staff of Govind Ballabh Pant University, Pant Nagar and other Universities of the State have acquired a right in their favour to have their age of superannuation increased to 65 years and such right can be enforced through a mandamus to be issued by this Court under Article 226 of the Constitution of India. 10. We, accordingly, issue a mandamus, directing the State Government to alter the Statutes pertaining to Govind Ballabh Pant University, Pant Nagar and all other Universities and thereby, to increase the age of superannuation of the members of teaching staff of Govind Ballabh Pant University, Pant Nagar and all other Universities, in respect whereof the State Government has administrative / otherwise control, with effect from the date of presentation of the writ petition. The above exercise must be completed as quickly as possible, but not later that one month from today. It is declared that whoever was in service as on the date of presentation of the writ petition in Govind Ballabh Pant University, Pant Nagar and all other Universities under the administrative / otherwise control of the State Government, shall continue to serve the said University / Universities until they attain the age of 65 years. 11. With the directions as above, the writ petition is disposed of. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 08.12.2011 08.12.2011 Amit