CWP No.8025 of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CWP No.8025 of 2007 Date of decision: 31.10.2008 Dr. A.C. Julka & others ...Petitioners Versus Panjab University& others ...Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Rajiv Atma Ram, Senior Advocate, with Ms. Sunita Chauhan, Advocate and Mr. G.S. Mann, Advocate, for the petitioners. Mr. R.L. Batta, Senior Advocate with Mr. Parveen Moudgil, Advocate, Mr. A.K. Chopra, Senior Advocate with Mr. Ashish Chopra, Advocate, Mr. S.D. Sharma, Senior Advocate with Ms. Bindu Goyal, Advocate, Mr. Puneet Bali, Advocate, Mr. Sudarshan Goel, Advocate, Mr. D.S. Patwalia, Advocate, Mr. TPS Chawla, Advocate, Mr. S.D. Bansal, Advocate, Mr. N.P. Mittal, Advocate, Mr. M.L. Puri, Advocate, Mr. P.S. Bhangu, Advocate, Mr. D.S. Nalwa, Advocate, Mr. B.S. Walia, Advocate, Mr. Munish Kapila, Advocate, Mr. BNS Sharma, Advocate, Mr. Aman Chaudhary, Advocate, Ms. Anu Chatrath, Advocate, Mr. Akshay Bhan, Advocate, Mr. O.P. Kamboj, Advocate, Mr. Sunil Chadha, Advocate, Mr. Ashish Aggarwal, Advocate, Mr. Vishal Sharma, Advocate, Mr. Sanjay Tangri, Advocate, CWP No.8025 of 2007 2 Mr. H.R. Mittal, Advocate, Ms. Balwinder Kaur, Advocate, Mr. Rakesh Gupta, Advocate, Mr. Arun Aggarwal, Advocate, for the petitioners. Mr. Anupam Gupta, Advocate, for Panjab University. Ms. Charu Tuli, Senior DAG, Punjab for State of Punjab. Mr. Rajiv Sharma, Advocate, Senior Central Government Standing Counsel and Mr. Gurpreet Singh, Central Government Counsel for Union of India. Mr. N.R. Dahiya, Advocate for UGC. Mr. Rajiv Anand, Advocate for intervener. Rajan Gupta, J. This judgment will dispose of 72 writ petitions, i.e., CWP Nos. 8025 of 2007, 11949 & 19701 of 1998, 284, 934, 1043, 9217, 9765 & 17760 of 1999, 1907, 2170, 9692, 10864 & 10869 of 2000, 11465, 11712, 16962 & 17498 of 2002, 1720, 4000, 6580, 14759, 18007 & 19164 of 2003, 531, 1708, 3226, 8581, 11372, 14471 & 18980 of 2004, 1332, 4914, 8170, 9821, 13639 & 17234 of 2005, 1411, 7429, 10722, 12774, 13037, 15650, 16767 & 20096 of 2006, 2900, 4860, 7689, 12968, 13779, 15983, 17379, 17473, 19004, 19005 & 19111 of 2007, 3084, 4926, 5272, 6817, 7093, 7101, 7851, 13099, 13104, 13260, 15367, 15376, 16381, 17023, 17235 & 18589 of 2008. In these writ petitions, common question of increase in age of superannuation from 60 to 62 years and 62 to 65 years is involved. Since in all the writ petitions, the petitioners pray for the same relief, they are being disposed of by this common judgment. However, facts are being taken from CWP No.8025 of 2007 CWP No.8025 of 2007 3 for the purpose of deciding the issue in hand. The petitioners are serving in the Panjab University as Readers, Lecturers, Professors etc. Certain other petitioners are from the non-teaching faculty. However, all the petitioners have invoked the writ jurisdiction of this Court for increase in age of superannuation in terms of UGC recommendations and in terms of a Government of India, Ministry of Human Resource Development letter dated 27th July, 1998 and another letter from the same Ministry dated 6th November, 1998 wherein increase in age of superannuation of non-teaching staff has been recommended. The petitioners are aggrieved by the decision dated July 23, 2002, whereby proposal for increase in the age of superannuation was rejected by the Government of India observing that 40% of the financial burden/deficit arising as a result of increase in age in superannuation had to be borne by the Punjab Government and Punjab Government having already refused to bear the burden, Government of India was not in a position to agree to the proposal. It is this letter, Annexure P-13 which has been impugned by the petitioners. We have heard learned counsel for the parties at length. Mr. Rajiv Atma Ram, learned counsel for the petitioners has drawn our attention to the letter dated 27th July, 1998, Annexure P-1A and to para (vi) thereof wherein the age of superannuation of University teachers has been recommended as 62 years. It is contended that the said letter has been issued by the Ministry of Human Resource Development and a copy has been sent to Vice Chancellors of all the CWP No.8025 of 2007 4 Central Universities for implementation. He has further drawn our attention to letter dated 6th November, 1998, which is in continuation of the letter dated 27th July, 1998 in which the Ministry of Human Resource Development has recommended age of superannuation of non-teaching staff such as Registrars, Librarians, Physical Education Personnel, Controller of Examinations, Finance Officers and such other university employees who are treated at par with the teachers, to be 62 years rather than 60. Another letter which has been referred to, is a letter dated 24th December, 1998 by University Grants Commission addressed to the Vice Chancellors of all the Universities and Education Secretaries. Para 16.1.0 thereof prescribes the retirement age of teachers as 62 years. The counsel contends that recommendations of the UGC were adopted by the university in meeting of its Syndicate on 10.1.1999 and it was observed that recommendations contained in letter dated 24th December, 1998 be adopted. A resolution in this respect was also passed. Thereafter, the matter was again considered by the Syndicate of the University on 19.2.1999 and it was resolved to implement UGC letter No. F-3-1/94 (PS) dated 24th December, 1998. The counsel has referred to the operative part of the said resolution which reads thus: “After discussion, it was decided that the decision of the Syndicate under Para 2 (i) (arising out of) at page 17 of the proceedings be mentioned as under:- RESOLVED: That the U.G.C. Letter No.F.3-1/94 CWP No.8025 of 2007 5 (PS) dated 24th December, 1998 be adopted in toto: RESOLVED FURTHER; That steps be taken to change the conditions of service of teachers by amending rules and regulations of the University and put before the next meeting of the Senate, so that the age of retirement becomes 62. RESOLVED FURTHER; That in the interregnum and in view of the interim direction granted to similarly placed persons by the High Court, as also in view of the proposal being sent to the Senate for increase in age of retirement from 60 to 62 years, persons retiring during this period be permitted to continue at their own risk and responsibility subject to decision of the Senate and in anticipation of the approval of the Senate. Persons so retired after the age of 62 years shall not get the benefit of re- employment.” Thereafter, the matter was placed before the Senate of the University on 28th March, 1999 and it was resolved that steps be taken to change the condition of service of teachers by amending Regulations of the University and Colleges so that age of retirement becomes 62 years. Thus, the Senate passed the resolution more or less in the same terms as the decision of the Syndicate. It has been further contended that the Regulation Committee in its meetings held on 7th, 14th and 15th September, 1999, recommended amendment of Regulation 17.3 and CWP No.8025 of 2007 6 resolved that w.e.f. 6th November, 1998, the age of retirement of the teachers would be 62 instead of 60 years. The matter was thereafter approved by the Syndicate also in its meeting held on 18.9.1999. The recommendation of the Regulation Committee to amend Regulation 17.3 was accepted by the Syndicate. A meeting of the Senate was held thereafter on 18th October, 1999. Learned counsel has drawn our attention particularly to the relevant extract of the said Senate meeting. It reads thus: “XX. The recommendation of the Syndicate contained in item 21 of the agenda was read out, viz: 4. Amendment of Regulation 17.3 of Chapter VI (A) relating to conditions of Service of University Employees at Page 149 of PU Calendar, Volume 1, 1994. XXX XXX XXX XXX RESOLVED; That the above amendments, additions and deletions of the Regulations contained in letter No.S.T.8565-8654 dated 4.10.1999, be approved.” The matter was thereafter referred to the Government of India for approval. The Panjab University Teachers Association sent representation dated 7.5.2001, Annexure P-7 requesting therein that necessary approval be granted by the Government of India for enhancing the age of retirement of the University Teachers from 60 to 62 years. It was stated inter alia in the said letter that the Panjab CWP No.8025 of 2007 7 University was not a State University and was an Inter-State Body Corporate in terms of Punjab Reorganization Act, 1966 (hereinafter referred to be as “the Reorganization Act”) and thus, necessary approval be granted by the Government of India for enhancing the age of retirement. A reference was also made to the interim orders passed by this court directing the university not to retire the teachers at the age of 60 years. The counsel has, however, contended that the proposal was ultimately rejected by the Government of India vide letter dated July 23, 2002, annexed as Annexure P-13 to the writ petition. This letter is subject matter of challenge in the present writ petitions. Learned counsel has also referred to certain communications dated 12.6.2008, 25.6.2008 & 26.8.2008, annexed as Annexures A1, A2 and A3 respectively with the writ petition to contend that the Panjab University was funded to the extent of 60% by the Central Government and in view of the Reorganization Act, it was to be treated as creation of a Central Act. The counsel has further referred to the Panjab University Calendar Volume-I to contend that the Panjab University has to be treated as a Central University and, therefore, the recommendations of the UGC are totally applicable to the Panjab University. A reference has been made to Section 2 (b) of the Panjab University Act (hereinafter referred to as “the Act”), which is reproduced in the aforesaid University Calendar. It has been contended that for the purposes of the Act, the Government CWP No.8025 of 2007 8 means the Central Government as per Section 2 (b) thereof. Sections 4, 5, 6 & 8 have also been referred to to contend that the University is a body corporate. In order to buttress the argument that the Panjab University is in the nature of Central University, Section 9 of the Act has been referred to which provides that the Chancellor of the University would be appointed by the Central Government by Notification in the Gazette of India. Section 31 (1) has also been referred to, to contend that the Senate is to make regulations with the sanction of the Government and Government in view of Section 2 (b) means the Central Government. The counsel has further relied on Section 33 dealing with power of the Government to require that proceedings of the University would be in conformity with the Act and Government here means the Central Government in view of the definition contained in Section 2 (b). Particular emphasis has been laid by the counsel on Section 72 of the Reorganization Act. It has been contended that functioning and operation of the University would be governed by the Central Government after coming into force of the Reorganization Act. Not only this, in view of direct reference to Panjab University in Section 72 (4) of the said Act, there was no room for doubt that it was for the Central Government to decide how much grant would be met by the successor States to the Panjab University. According to the counsel, in view of these provisions it was clear that the Panjab University was a Central University for all intents and purposes and CWP No.8025 of 2007 9 thus, U.G.C. Notification was clearly applicable to it and needs to be implemented in letter and spirit. It has been further contended that Chancellor of the University was the Vice President of India which further shows that the character of the University was that of a Central University. The counsel has also contended that in the absence of a clear definition of Central University, it had to be inferred from various provisions of the Act whether the character of Panjab University was that of a Central University or not. Ultimately, the counsel has contended that in view of Section 72 (4), Panjab University was definitely a centrally funded university as it was for the Centre to decide how much grant would be given by the successor State to the University. The counsel thus submits that the U.G.C. recommendation dated 24th December, 1998, Annexure P-3 as well as the Ministry of Human Resource Development letter dated 27th July, 1998, Annexure P-1A were clearly applicable to the Panjab University and the mandate contained therein needs to be implemented. The counsel attacked the impugned decision of the Government of India, Annexure P-13 as against the Wednesbury principle as it had taken into consideration extraneous factors such as 40% financial burden in respect of Panjab University being met by the Punjab Government. According to the counsel, this could not be the basis for rejecting the proposal of the University Senate and Syndicate for enhancing the age of superannuation of the teachers from 60 to 62 years. CWP No.8025 of 2007 10 The counsel also referred to Entry 66 of the Union List i.e. List-I and Entry 25 of List-III to emphasize the primacy of the Central Legislation in respect of the matters falling within Entry 66 and any corresponding State Legislation. Thus, in view of the scheme of the U.G.C. and the mandate contained in the letter of the Government of India, Ministry of Human Resource Development, the age of superannuation was bound to be 62 instead of 60 years. According to the counsel, any directive to the contrary would have to be read as otiose. Mr. Anupam Gupta, Advocate, appearing for Panjab University, Chandigarh at the outset sought to rebut the contention of the learned counsel for the petitioners to the effect that the term Central University was not defined anywhere. He referred to the Article 371 (E) of the Constitution of India to state that setting up of a “Central University” in Andhra Pradesh was envisaged by the said Article. According to Mr. Gupta, apart from reference in the Constitution to the term “Central University”, there could be no dispute with the proposition that Central University is a university created by a Central Act or an Act of the Parliament. He referred to Section 3 (7) of the General Clauses Act to contend that the term “Central Act” was unanimous with the term “Act of Parliament”. The counsel contended that the General Clauses Act could be used for interpretation of the Constitution as well. For this purpose he referred to Article 367 (1) of CWP No.8025 of 2007 11 the Constitution. The counsel took us through various legislations through which certain central universities were established. He particularly referred to Vishva Bharti University at Shanti Niketan, Jamia Millia Islamia University, Assam University, Tezpur University, North Eastern Hill University and Nagaland University to cite certain examples of central universities created by virtue of central legislation. Learned counsel drew our attention to Section 10 of (The) Visva-Bharti Act, 1951, which reads thus: “10. The Paridarsaka (Visitor),- The President of India shall be the Paridarsaka (visitor) of the University”. According to the counsel, in all central legislations creating central universities, the President of India is a visitor. Learned counsel also referred to the history of the creation of the Panjab University. According to him, on enactment of the Panjab University Act, 1947, the East Panjab University Ordinance, 1947 was repealed whereafter the University has been governed by the said Act as amended from time to time. On creation of new States of Punjab, Haryana and Union Territory Chandigarh, the Panjab University acquired the status of Inter-State Body Corporate and continued to function and operate in those areas in respect of which it was functioning and operating immediately before the appointed day. However, it would not acquire the character of a central university. According to the counsel the Reorganization statutes are referable to Articles 2, 3 and 4 of the Constitution and not to any particular entry of the 7th Schedule to the Constitution. He further CWP No.8025 of 2007 12 contended that for removal of doubt Section 72 (3) clearly provides that the Section would apply to the Panjab University constituted under the Panjab University Act, 1947. Thus, Panjab University would at best be an Inter-State Body Corporate and not a Central University by any interpretation or inference. The counsel also referred to Section 72 (4) of Reorganization Act and contended that the said provision was only for the purposes of giving effect to the provisions of Section 72. It has been laid down therein that successor State would make such grants as the Central Government may from time to time determine. The definition of “successor State” is contained in Section 2 (m) of the Reorganization Act. Thus, learned counsel emphasized that in view of Section 72, the Panjab University was an Inter-State Body Corporate and by no stretch of imagination could be termed as a Central University. The counsel heavily relied upon a full bench judgment of this Court reported as D.A.V. College Trust and Management Society and others Vs. The Panjab University Chandigarh and another, 1986 (1) S.L.R. 596, to contend that there is no provision in the Reorganization Act on the strength of which it can be said that the Panjab University had become an institution established by an Act of the Parliament after enactment of the said Act. Another limb of argument of counsel for the University is that any recommendation of a body like UGC would not be ipso-facto applicable to an Inter-State Body Corporate like the Panjab University CWP No.8025 of 2007 13 unless the same was incorporated in the Act in the shape of an amendment or an amendment in the relevant regulation. Thus, according to the counsel, it is Regulation 17.3 which provides the age of superannuation of the teachers in the university as 60 years. As amendment to the said Regulation had not been approved till date, the same could not have come into force. Any regulation framed by the Senate requires prior sanction of the Government for all matters relating to the University in view of Section 31 of the Panjab University Act and Government for this purpose means the Central Government. However, vide Annexure P-13, the Central Government had refused to grant approval for amendment to Regulation 17.3 of Chapter 6-A relating to 'Condition Of Service' of the university employees. Thus, despite resolutions passed by the Syndicate and the Senate adopting the UGC recommendations, the proposed increase in age could not come into force. In order to submit that approval of the Government was absolutely necessary for carrying out any amendment in the Regulations, the counsel reiterated the provisions of Section 31 of the Panjab University Act and also referred to Regulation 24 of Chapter II (A) (i) of Panjab University Calendar Volume I 2005 which deals with the Senate. According to the counsel, Regulation 24 provides that the amendments and draft regulations as recommended by the Syndicate, shall be considered by the Senate. The decision of the Senate would, however, require sanction by the Government before publication in the CWP No.8025 of 2007 14 Government Gazette. On the question whether Panjab University was a centrally funded University, the counsel submitted that 40% of the grant being met by the Punjab Government, it could not be termed as a centrally funded University. The counsel heavily relied upon two judgments of the apex court i.e. T.P. George and others Vs. State of Kerala and others, 1992 Supp (3) Supreme Court Cases 191 and B. Bharat Kumar and others Vs. Osmania University and others, (2007) 11 Supreme Court Cases 58 and contended that the matter in hand had been considered in the said judgments in detail. The plea that the recommendations of the U.G.C. were bound to be implemented, had been found to be untenable. The counsel further contended that no mandamus could be issued to make any amendment in any legislation. In support, the counsel relied upon judgments reported as Union of India Vs. Prakash P. Hinduja and another, (2003) 6 Supreme Court Cases 195 and Suresh Seth Vs. Commr., Indore Municipal Corpn. and others, (2005) 13 Supreme Court Cases 287. Reference was also made to a Division Bench Judgment of this Court delivered in CWP No.17915 of 1999 decided on 11th January, 2000 wherein the question of increase in age of superannuation of teachers employed in the universities was involved. In the said decision, similar recommendation by the UGC for increase in age of CWP No.8025 of 2007 15 superannuation came up for consideration. However, the plea was dismissed by the Division Bench by a detailed judgment. We have given careful thought to rival contentions of the counsel for the parties. First and foremost the question whether Panjab University is a Central University has fallen for consideration of this Court. We find it necessary here to refer to Section 72 of the Reorganization Act which particularly takes into account the status of the Panjab University. The said Section reads thus:- “(B) Section 72 of the Punjab Reorganization Act, 1966. 72 (1) Save as otherwise expressly provided by the foregoing provision of this Part where any body corporate constituted under a Central Act,State Act or Provincial Act or has, by virtue of the provisions of Part II, become an Inter-State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may, from time to time, be issued by the Central Government, until other provision is made by law in respect of the said body corporate. (2) Any direction issued by the Central Government under Sub-Section (1) in respect of any body corporate may include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect, subject to such exceptions and modifications as may be specified in the CWP No.8025 of 2007 16 direction. (3) For the removal of doubt it is hereby declared that the provisions of this section shall apply also to the Panjab University constituted under the Panjab University Act, 1947, the Punjab Agricultural University constituted under the Punjab Agricultural University Act 1961, and the Board constituted under the provisions of Part III of the Sikh Gurdwaras Act, 1925. (4) For the purpose of giving effect to the provision of this section in so far as it relates to the Panjab University and the Punjab Agricultural University referred to in Sub-Section (3) the successor States shall make such grants as the Central Government may, from time to time, by order, determine”. A careful reading of the above section shows that it was envisaged that a body corporate established under a Central Act, State Act or Provincial Act would become an Inter-State Body Corporate on and from the date of enactment of the Act and it would continue to function in those areas as it was functioning and operating immediately before commencement of the Act. In the instant case Panjab University, which was a creation of the State Act, namely, Panjab University Act, 1947, would be squarely governed by Section 72 (1) of the Reorganization Act, 1966, and therefore, would be an Inter-State Body Corporate. Section 72 (3) further alleviates any doubt in this respect by declaring that provisions of this Section would apply to Panjab University constituted under the Panjab University Act, 1947. Sub CWP No.8025 of 2007 17 Section 4 of the above Section only gives a power to the Central Government to determine the grant to be met by the successor States in respect of Panjab University. However, merely the fact that this power has been granted to the Central Government, would not lead to an inference that the Panjab University is a Central