CW 8156/10 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.8156/2010 CKG Rajurkar Versus Union of India & Ors (& other cognate cases shown in Schedule) Date of Order ::: 05/08/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Mahendra Shah, Mr. Ashok Gaur, Mr. SS Hora & Mr. Sanjay Sharma, for petitioners Mr. NA Naqvi, Addl. Adv. Gen., for respondents State Mr. AK Sharma, for University of Rajasthan Mr. Bharat Vyas, for respondent UGC Instant bunch of writ petitions being filed by petitioners who have either served or are serving in the capacity of Teacher either in the Government or University of Rajasthan since involve common questions of law, at joint request, are being decided by present order. Their common prayer is that their age of superannuation hitherto being 60 years should be raised to 65 years in terms of clause (f) of para 8 of Recommendations made by Government of India vide notification No.1- 32/U-II/U.I(1) dt.31/12/2008 (Ann.1); and vide notification dt.27/10/09 impugned (Ann.2) State Government took decision to revise pay scales of Teaching staff (General Faculty/ Librarians and Director Physical Education) of various Universities but having kept age of superannuation of Teaching Staff of the Universities at par with the State Government employee, as referred to in para 4 (xiii) CW 8156/10 //2// thereof, which has been sought to be declared as bad in law not in conformity with recommendations of Central Government dt. 31/12/2008. Before examining the issues raised herein, this Court would like to observe that an identical issue came to be examined before co-ordinate Bench of this Court in Prof. Manoj Kumar Sharma Vs. Union of India & Ors (CWP- 8298/2010) and after hearing Counsel for the parties, contentions advanced on behalf of petitioners therein were repelled and writ petition was dismissed vide judgment dt. 29/06/2010.while observed in para 20 ad infra: “ 20. From the aforesaid discussion and the principle of law laid down by the Hon'ble Apex Court, it is clear that the petitioner is not entitled to be continued on the post with the respondent University till he attains the age of 65 years. It is also clear from circulars/orders of Ministry of Human Resources Development, Government of India as well as recommendations/ guidelines issued by the University Grants Commission, which has been relied upon by the petitioner, that it is not incumbent upon the respondent State and University of Rajasthan to enhance the age of superannuation of the teachers/ officers from 60 to 65 years. It is optional/discretionary on the part of the State Government to adopt the Scheme, in so far as increase of the age of superannuation is concerned. Further, it may be noted that, as on date, the service conditions of teachers of the University like the petitioner is still governed by the terms of the existing Ordinance 376F, according to which they would retire on attaining the age of 60 years. Undisputedly, no amendment has been made till date of the relevant ordinance governing the age of superannuation. Therefore, the relevant provision of law prescribes 60 CW 8156/10 //3// years of age of retirement and the same is being adhered to by the respondent University. Consequently, no rights of the petitioner can be said to have been infringed.” “In so far as the implementation of the Scheme is concerned, which is optional for the State Government, it cannot be said that whole of it is required to be implemented. It is only when the State Government/ University opts to adopt the Scheme that it has to follow the terms and conditions mentioned therein, which also includes that the Scheme should be adopted as a whole. Even otherwise, in case the respondent State does not adopt the Scheme as a whole then the only question which comes up is with regard to 80% grant by the Central Government, of the additional financial burden of the State Government on account of revision of pay scale. In such a situation, the question whether the grant is to be given by the Central Government or not, is a matter between the two governments. Above all, when there is no change/ amendment in the relevant law, namely the ordinance 376F of the respondent University then the question of the age of superannuation is to be governed by the existing Ordinance. In such view of the matter, this Court would not issue mandamus/ direction in respect of the age of superannuation which is not only a question of policy decision but also is a one of the area of the wisdom of the legislation of the State Government.” In the light of what has been observed (supra), Circulars/orders of Ministry of Human Resources Development, Government of India and recommendations/guidelines issued by the University Grants Commission, having been relied upon by petitioners, are not incumbent upon State Government & University of Rajasthan to enhance age of superannuation of Teachers/Officers from 60 to 65 years. CW 8156/10 //4// As regards increase in age of superannuation, State Government vide notification dt.27/10/2009 (Ann.1) impugned took decision not to enhance age of supperanuation of the Teaching Staff of the Universities and kept it at par with State employee; in regard whereof, Co-ordinate Bench observed that it is an option/discretionary on the part of State Govt. to adopt the Scheme dt.31/12/2008 in regard to increase of age of superannuation; and since no amendment has been made in existing Ord.376-F of the University of Rajasthan which clearly postulates age of superannuation as 60 years, which is being adhered to by respondent- University, petitioners' right cannot be said to have been infringed. However, despite there being judgment of co-ordinate Bench made available to present petitioners, their Counsel made request that certain points which they want to urge before this Court, could not be raised for consideration before Co-ordinate Bench and are sought to be examined. Taking note whereof, this Court granted indulgence to petitioner's Counsel to make submissions which were not raised/examined by Co-ordinate Bench in Prof. Manoj Sharma Vs. Union of India (supra). Counsel for petitioners submits that recommendations dt.31/12/2008 calling upon State Government to implement the Scheme is CW 8156/10 //5// the result of exercise of its executive powers U/Art.73 of the Constitution of India with respect to Entry 66 of List-I of Seventh Schedule, and therefore, such a decision of Central Government is binding upon State Government & University as the subject pertains to the Union List. Counsel for petitioners jointly submit that the University Education is a Higher education being covered by Entry 66 of List-I, and, therefore, recommendations made by the UGC were binding as against State Government and Universities. It has been further urged that recommendations made by Central Government dt. 31/12/2008 once accepted has to be implemented in totality and no discretion is left with State Government to adopt in part and the clause with regard to age of superannuation clearly postulates that age of retirement of teaching staff shall be 65 years and the University was under obligation to amend their respective statues or ordinance etc. and being in the nature of central legislation would be binding upon States and the Universities, the conflicting State statutes to that extent stood over-ruled. In support, Counsel placed reliance upon decisions of Apex Court in Annamalai University Vs. Secy. to Govt. Information & Tourism Department (2009(4) SCC 590); and so also of Division Bench of Andhra Pradesh High CW 8156/10 //6// Court in Osmania University Teachers Vs. The Union of India (2002 (4) ALT 682). Counsel for petitioners further submit that after Regulations, 2010 issued by UGC in exercise of powers conferred under Cl.(e) & (g) of sub-section (1) of S.26 of UGC Act became effective being statutory in character and binding effect upon State Government & Universities, as well and in terms of para 2.3.1 of Appendix to the Regulations, 2010, they are entitled to continue upto age of 65 years and provisions in respective statutes of respondents in the light thereof stands oitiose. The State has filed reply in CWP- 8347/2010 (Dr. Kailash Chand Sharma Vs. Union of India) wherein it has been inter-alia averred that Circulars or letters issued by Ministry of Human Resources Development (Department of Higher Education) in regard to enhancement in age of superannuation is in respect of the Teachers of Central University or funded by the UGC; and as per para 8(p)(v), the Scheme has been extended to Universities Colleges and other higher Educational institutions within the purview of State Legislatures provided State Governments wish to adopt and implement the Scheme; and thus it has been left within the domain of State Govt./Universities to adopt the Scheme/ recommendations made by Central Government; CW 8156/10 //7// and that being so, State Government partly accepted the Scheme vide notification dt. 27/10/2009 only with respect to revision of pay scales of Teaching Staff of Universities within the State, and took a decision not to enhance age of superannuation while having kept at par with State Government employee. Counsel for respondent University has separately filed reply and their bone of contention is also the same with respect to recommendations dt.31/12/2008 of Central Government. Respondents' Counsel jointly contended that the issue raised in bunch of petitions has already been examined by co-ordinate Bench of this Court in Prof. Manoj Sharma Vs. Union of India (supra) and now it is no more res integra which require further examination by this Court; however, further submit that there being no amendment in Ord.376-F of the University which clearly postulates 60 years as age of superannuation, and in absence of amendment being made in Ord.376-F in terms of Ss.29 & 30 of the University of Rajasthan Act, 1946, their service conditions are to be governed in terms of existing Ord.376-F prescribing 60 years age of superannuation. The UGC is also represented by Shri Bharat Vyas, who too submits that these are recommendations made by UGC & Central Government having no binding effect upon State CW 8156/10 //8// Government and it is open for the State/ Universities to take its own decision in terms of recommendations to implement. This Court has considered rival contentions of Counsel for the parties and with their assistance, examined the material on record. It is relevant to observe that while rendering judgment dt.29/06/2010 in earlier CWP-8298/2010 (Prof. Manoj Sharma Vs. Union of India) there was no Regulation, 2010 made available on record, obviously because notification dt.30/06/2010 was issued by the UGC in exercise of powers conferred under Cl. (e) & (g) of sub-section (1) of S.26 of UGC Act, 1956 framed the UGC (Minimum Qualifications for appointment of Teachers & other Academic Staff in Universities & Colleges and other Measures for the maintenance of Standards in Higher Education) Regulations, 2010 ("UGC Regulations, 2010") - on which Counsel for petitioners have laid much emphasis besides recommendations of Central Government dt.31/12/2008, while stressing that these Regulations, 2010 since have statutory force and binding upon State Government and Universities, and it also postulates age of retirement as 65 years for Teaching Staff of the Universities in the State and even after Regulations, 2010 having come into force, they are entitled to continue till 65 years age; and by virtue of CW 8156/10 //9// Regulations, 2010 having come into force, relevant statute being in contravention of recommendations, dt.31/12/08, according to them, stands over-ruled. This Court is not examining the arguments based on recommendations dt.31/12/08 since it having already been examined in details by Co-ordinate Bench in Prof. Manoj Sharma Vs. Union of India (supra) and this Court is in agreement with the views expressed therein. As regards, submission made on behalf of petitioners regarding Art.73 of the Constitution read with Entry 66 of List I of Seventh Schedule, it does not arise in present petitions; inasmuch as even if arguments with respect to Entry 66 are taken note of to its logical conclusion, that in no manner give any strength to submissions made by petitioners for the reason that from a plain reading of relevant provisions in regard to age of superannuation referred to in recommendations dt.31/12/2008 - reference whereof has been made by Co-ordinate Bench in its judgment at para 8, as well and so also letter dt. 11/05/2010, the State Government or University in the State has been left optional/ discretionary on their part as the case may be, to adopt/implement the Scheme. Para 8 (f) and 8(p)(v) pertaining to applicability of the Scheme read ad infra: CW 8156/10 //10// 8 (f) Age of Superannuation: In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years, vide the Department of Higher Education letter No.F.No.1-19/2006-U.II dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O. letter No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of superannuation of Vice-Cencellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (Visitor in the case of Central Universities). 8(p)- Applicability of the Scheme: (v) This Scheme may be extended to universities, Colleges and other higher educational institutions coming under the purview of State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions: ..” Thus, the Central Government/UGC did not introduce element of compulsion upon State Government or University. That apart, in the instant case, State CW 8156/10 //11// Government in its reply has averred that policy decision has been taken by State Government not to adopt recommendations of UGC in regard to age of superannuation, and in absence whereof, age of superannuation is still governed under Ord.376-F or R.56 of Rajasthan Service Rules, which indisputably postulates 60 years as age of superannuation; and no amendment so far has been made in the Rules/Ordinance governing superannuation age. In such circumstances, there appears to be no justification for this Court to examine Entry 66 of List I as to whether Scheme is binding or having statutory force and binding upon State Government or the University for being implemented as regards age of superannuation. However, this Court would like to observe that the UGC in exercise of its powers under Cls.(e) & (g) of sub-section (1) of S.26 of UGC Act has framed its Regulations, 2010, which will come into effect from the date of its publication in the Gazette of India. There is no information extended to this Court about UGC Regulations, 2010 being published in Gazette of India so far. I would like to observe that after these Regulations, 2010 comes into effect after being published in official gazette of India, that too will not help present petitioners for the reason that these Regulations, 2010 as per para 2.1.0 with regard to pay scale, pay fixation and age of CW 8156/10 //12// superannuation etc., are applicable upon central universities and other institutions maintained and/or funded by the UGC; however, as per para 2.3.1 it has been extended to Universities, colleges and other higher educational institution which may not have a binding force to implement. Para 2.1.0 & 2.3.1 of Appendix to the Regulations, 2010 being relevant is quoted ad infra: “2.1.0 The revised scales of pay and other service conditions including age of superannuation in central universities and other institutions maintained and/or funded by the University Grants Commission (UGC) shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education), as contained in Appendix-II.” 2.3.1. The revised scales of pay and age of superannuation as provided in clause 2.1.0 above may also be extended to Universities, colleges and other higher educational institutions coming under the purview of the State Legislature and maintained by the State Governments, subject to the implementation of the scheme as a composite one in adherence of the terms and conditions laid down in the MHRD notifications provided as Appendix I and in the MHRD letter CW 8156/10 //13// No.F.1-7/2010-U II dated 11 May, 2010 with all conditions specified by the UGC in these Regulations and other guidelines.” Even if as per terms relating age of superannuation, referred to in para 2.1.0, read with 2.3.1. Discretion being voluntary left for the State Government/Universities falling within purview of State legislation to accept and make appropriate amendment in their statutes; while recommendations under scheme dt.31/12/2008 being made part of Regulations, 2010 in the form of Appendix-I - its para 8(f) & (p) if read together clearly makes incumbent upon the State Government/University that it stands extended to the University, Colleges or other higher Education institution which are within purview of State legislature. As already observed (supra), even if Regulations, 2010 if being come into effect on being published in official gazette, that too will not improve case of present petitioners who are seeking mandamus from this Court for their continuance in the service upto 65 years in terms of Regulations, 2010 – in the absence of Ord.376-F/R.56 of RSR which governs their service conditions being amended by the competent authority; in the opinion of this Court, age of superannuation of Teaching Staff of the University/Colleges, it would be regulated in accordance with their service CW 8156/10 //14// Rules/Ordinance, as the case may be and will not stand over-ruled or become otiose as urged by petitioners in the light of recommendations dt.31/12/2008 or even after subsequent Regulations, 2010 if having come into effect on being published in official gazette of India unless amended by competent authority. Consequently, writ petitions and so also stay petitions as per Schedule annexed herewith fail and are hereby dismissed. No order as to costs. (Ajay Rastogi), J. K.Khatri/p14/ 8156CW2010Aug5RsrdUniv.doc CW 8156/10 //15// Schedule to Judgment dt.05/08/2010 in CWP-8156/2010 & Cognate cases *** S.No. CWP/Stay Pet.Nos. / Name of Petitioners/ Versus 1. 8156/2010 (1753/10) CKG Rajurkar Versus Union of India & Ors 2. 7194/2010 (1047/10) Prof. Gurbux S.Karaka & Ors Versus UOI & Ors 3. 7822/2010 (1504/10 & 3171/10) Prof. Gurbux S. Karaka & Ors Vs State & Ors 4. 7453/2010 (1244/10 ) Prof. SP Goyal & Ors Vs UOI & Ors 5. 8144/2010 (1742/10) Prof. SS Lal Vs. Union of India & Ors. 6. 8288/2010 (1877/10) Prof. VP Gupta Vs. Union of India & Ors. 7. 8661/2010 (2207/10) Prof. ML Chhipa Vs. Union of India & Ors. 8. 8294/2010 (1883/10) Dr. Rajendra Pd. Mathur Vs. Union of India & Ors. 9. 8295/2010 (1884/10) Dr. Mahendra Kr. Jain & Ors Vs. UOI & Ors. 10.8316/2010 (1904/10) Dr. Kishan Lal Soni Vs. UOI & Ors. 11.8595/2010 (2159/10) Prof. NC Jain & Ors. Vs. UOI & Ors. 12.8230/2010 (1819/10) Prof. Sushma Sood Vs. UOI & Ors. 13.7767/2010 (1459/10) Prof. Nagendra Bharwaj & Ors Vs. UOI & Ors. 14.8347/2010 (1937/10) Dr. Kailash Chand Sharma Vs. UOI & Ors. 15.8383/2010 (1972/10) Prof. Ms Usha Chandra Vs. UOI & Ors. 16.10230/2010(3627/10) Ram Swaroop Khandelwal Vs. UOI & Ors. 17.8291/2010 (1880/10) CR Bishnoi & Ors. Vs. UOI & Ors. 18.8292/2010 (1881/10) Dr. Sushma Sagar Vs. UOI & Ors. 19.8272/2010 (1862/10) Dr. MR Saini Vs. UOI & Ors. (Ajay Rastogi), J. K.Khatri/p15/ 8156CW2010Aug5RsrdUniv.doc