IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 598 of 2008 with CWP(T) Nos. 606 and 607 of 2008. Decided on 15.03.2010. _________________________________________________________ 1. Dr. Naresh Kumar Joolka. …Petitioner. -Versus- Union of India and Others. …Respondents. 2. Dr. Bodh Raj Sood. ….Petitioner. -Versus- Union of India and Others. ….Respondents. 3. Dr. Kewal Krishan Dogra. ….Petitioner. -Versus- Union of India and Others. ….Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. For the petitioner(s). : Mr. Ajay Mohan Goel, Advocate. For respondents No. 1to 3 : Mr. Sandeep Sharma, Assistant Solicitor General of India. For respondent No. 4. : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General in all the petitions. For respondent No. 5 : Mr. Rakesh Jaswal, Advocate. Rajiv Sharma, Judge: Since common questions of law and facts are involved in these petitions, the same are heard together and are being disposed of by this common judgment. 1 Whether the reporters of the local papers may be allowed to see the judgment?Yes. Material facts necessary for adjudication of these petitions are that petitioners were working as Professors and Director of Extension Education in respondent-Universities. The case of the petitioners, in nut-shell, is that respondent- Universities are not implementing the directions issued by respondents No. 1 to 3, whereby the age of superannuation has been increased from 60 to 62 years. The case of respondents, in nut-shell, is that the determination of age of superannuation is a policy matter and thereafter the necessary amendments are required to be carried out in the Universities’ statutes. Mr. Ajay Mohan Goel, learned counsel for the petitioner(s) has argued that on the basis of various communications issued by respondents No. 1 to 3, it was incumbent upon the respondent-Universities to increase the age of superannuation from 60 to 62 years. Learned Senior Additional Advocate General and Mr. Rakesh Jaswal, learned counsel have vehemently argued that in order to increase the age of superannuation, the amendments are required to be carried out in the respective statutes of the Universities. I have heard the learned counsel for the parties and gone through the pleadings carefully. The anchor-sheet of the petitioners’ submission is that the Ministry of Agriculture Department of Agricultural Research & Education has issued notification on 3rd March, 1999. Para -4 (vi) of the notification reads thus: “4 (vi) Age of Superannuation While concurring in the proposal of the Council for enhancement in the age of retirement of Teachers from 60 to 62 years, the competent authority has advised to place it before the Government. Accordingly necessary action has already been taken and after the final decision, separate order in this regard will be issued. Until such time, the age of superannuation will continue to be 60 years.” Respondent-State was pleased to revise the pay scale of the teaching personnels of Dr. Y.S. Parmar University of Horticulture and Forestry at Solan and Chaudhary Sarwan Kumar Himachal Pradesh Krishi Vishva Vidyalaya w.e.f. 1st January, 1996 on 25th May, 1999. In sequel to the notification dated 25th May, 1999, the Comptroller of respondent- Universities issued notification dated 31.5.1999, whereby the Universities were pleased to adopt the revision of pay scales in respect of teaching personnels of the Universities w.e.f. 1st January, 1996. The Government of India issued office memorandum on 31st October, 2003, which was circulated to all the Chief Secretaries of the States under the subject ‘enhancement of the age of superannuation of the teachers of State Agricultural Universities/Central Agricultural University, Imphal.’ In sequel to office memorandum dated 31st October, 2003, the competent authority was pleased to direct that as otherwise provided specifically, every teacher/Scientist in the State Agricultural Universities/Central Agricultural University, Imphal, who is governed by UGC pay scales and service matters, shall retire from service on the afternoon of last day of the month in which he/she attains the age of 62 years. Petitioners made representations for enhancing the age of superannuation from 60 to 62 years. Representation made by Shri Naresh Kumar Joolka was rejected on 1st March, 2008. Representations made by the petitioners, namely, Shri Bodh Raj Sood and Shri Kewal Krishan Dogra were not decided. It appears from the records of the case that a joint representation was also made by the teachers of the Dr. Yashwant Singh Parmar University of Horticulture and Forestry, Nauni to Hon’ble the Chief Minister and the State Government was informed by the Registrar of the respondent-Dr. Yashwant Singh Parmar University of Horticulture and Forestry, Nauni that in view of the earlier decision conveyed by the State Government on 25th May, 1999, the age limit for superannuation could not be increased from 60 to 62 years. Respondent-Universities have been incorporated under the Common Act, i.e. ‘Himachal Pradesh Universities of Agriculture, Horticulture & Forestry Act, 1986.’ A detailed procedure has been prescribed under Section 54, the manner in which statutes are to be made. Respondent-Universities have framed their own statutes. The age of superannuation prescribed under 7.2 (ii) is 60 years. It is evident from a combined reading of letters dated 25th May, 1999 and 31st May, 1999 that the Universities have only adopted the revision of pay scales and the age limit for superannuation was not increased from 60 to 62 years as per the decision of the State Government. It is true that the decision has been taken by the Government of India to increase the age of superannuation from 60 to 62 years, however, the same was required to be adopted in principle by the respondent (State) and thereafter the amendment was required to be carried out in the Universities’ statutes. In a similar case, reported in T.P.George and Others versus State of Kerla and others 1992 Supp.(3) Supreme Court Cases 191, their Lordships of the Hon’ble Supreme Court have held that the U.G.C. scheme was not binding on State Government or the Universities functioning under relevant statutes in the State and the State Government has discretion either to accept in full or in modified form or not to accept the scheme. Their Lordships have held as under: “4. We may clarify the scheme referred to as UGC (University Grants Commission) Scheme of 1986, framed by the Government pursuant to the Malhotra Committee’s Reports. We may further point out that it is clear from paragraph 4 of the circular dated June 17, 1987, addressed by the Ministry of Human Resources Development, Department of Education, to the Education Secretary of all States/UTs (Union Territories) that the adoption of the scheme was voluntary, and the only result which might follow from the State Government not adopting the scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80 percent of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the scheme. 5. We may further point out that the teachers in Universities are governed in respect of their conditions of service and the age of retirement by the separate statutes made by the Universities concerned. On the other hand the teachers in private colleges or affiliated colleges are governed in respect of their conditions of service by regulations or rules framed by the Government (separate state (sic set) of Statutes). In these circumstances, the two classes of Universities teachers and teachers in private colleges cannot be regarded as similar for purposes of conditions of service as to bring the case under Article 14 of the Constitution. The aforesaid judgment has been relied upon by their Lordships of the Hon’ble Supreme Court in B. Bharat Kumar and Others versus Osmania University and others (2007) 11 Supreme Court Cases 58. Their Lordships have held that the State Government was not bound to raise superannuation age as the UGC scheme was voluntary. Plea based on Entry 66 in List I and Entry 25 in List III of the Constitution was not accepted, because according to their Lordships there was no conflict between Central and State legislation in view of voluntary nature of the scheme. Their Lordships further held that determination of the retirement/superannuation age falls within the ambit of policy decision. Their Lordships have held as under: 12. We would, therefore, first examine as to whether the two Division Benches have rightly relied upon the said judgment held against the appellants. We have examined the judgment in extenso. This is also a case where the UGC had floated a scheme in 1986 which was framed by the Central Government pursuant to the Mehrotra Committee Report. In that scheme there was a Circular dated 17.6.1987 addressed by the Ministry of Human Resource Development, Department of Education to the Education Secretaries of all the States, UTs and it was clearly mentioned therein that the adoption of the scheme was voluntary and the only result follow from the State Government not adopting the scheme might be that the State Government may not get the benefit of the offer of reimbursement from the Central Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay-scales as recommended by the scheme. Therefore, the factual situation was almost identical as in the present case. This Court approved specifically a paragraph in the Kerala High Court judgment which we have already quoted earlier in this judgment in para 5. In that the Kerala High Court had specifically rejected the contention that the State Government having accepted the UGC scheme and as the scheme provided for the higher age of 60 years, the clause of the scheme regarding age of retirement also would become applicable. The Kerala High Court had specifically further observed that the UGC scheme did not become applicable as it was not obligatory for the Government and the Universities to follow the same. The Kerala High Court read a discretion in the State Government to accept or not to accept the scheme. 13. The situation is no different in the present case also. The very language of the letter dated 27.7.1998 suggests that the scheme is voluntary and not binding at all. Further it is specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it suggested in the scheme which scheme was itself voluntary and not binding. The Court clearly observed that "the appellant cannot claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation". The Court therein observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. It was lastly clearly observed that as long as the State Government has not accepted the UGC's recommendations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years. 14. Inspite of our best efforts, we have not been able to follow as to how the judgment of the Kerala High Court, which has been approved by this Court is, in any manner, different from the factual situation that prevails here in this case. It is for that reason that we have extensively quoted not only the aforementioned letter dated 27.7.1998 but also the subsequent letters and the further policy statement. Plain reading of all these is clear enough to suggest that the scheme was voluntary and it was upto the State Governments to accept or not to accept the scheme. Again even if the State Government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State Government. In fact the subsequent developments suggest that the State Government has not chosen to accept the scheme in full inasmuch as it has not accepted the suggestions on the part of the UGC to increase the age of superannuation. 15. Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the subsequent arguments of Mr.Rao regarding Entry 66 in the List I vis-`-vis Entry 25 in List III. In our opinion, the communications even if they could be heightened to the pedestal of a legislation or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-`-vis the State Government and the Universities. We, therefore, do not find any justification in going to the Entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and specifically suggest it to be voluntary. 18. For the similar reasons we do not see as to why the judgment in T.P. George's case is not applicable to the present case. A very serious argument was raised by the learned counsel that the judgment stood overruled by Yashpal's case. We do not think so. Yashpal's case was on entirely different issue. There the controversy was relating to a legislation creating number of universities. The question there was as to whether the State Government could create so many universities and whether the legislation creating such universities was a valid legislation, particularly in view of the fact that the subject of higher education was covered under Entry 66 of List I. Such is not the subject in the present case. Here is a case where there is no legislation. Even if we take the scheme to the higher pedestal of policy statement under Article 73 of the Constitution, the scheme itself suggests to be voluntary and not binding and the scheme itself gives a discretion to the State Government to accept it or not to accept it. If such is the case, we do not see the relevance of the Yashpal's case in the present matter. Once this argument fails, the reference to the other cases which we have referred to earlier also becomes unnecessary. In our considered opinion all those cases relate to the legislative powers on the subject of education on the part of the State Government and the Central Government. In the present case we do not have any such legislation for being considered. Where the scheme itself gives the discretion to the State Government and where the State Government uses that discretion to accept a part of the scheme and not the whole thereof, it would be perfectly within the powers of the State Government not to accept the suggestion made by the scheme to increase the age of superannuation. 19. Learned counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is not for this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the Legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified into doing so. The respondent-Universities are autonomous bodies and the conditions of service of the teaching and non-teaching staff are to be determined as per the statutes framed under the Act. The statutes prescribe the age of superannuation as 60 years. State Government though has accepted in principle the revision of pay scales of the teaching personnels, but has not accepted the communication dated 3rd March, 1999 in its entirety as far as the age of superannuation is concerned. It is a policy decision. The scope of judicial review is very limited. In case the age of superannuation has to be enhanced, in that eventuality, the Universities’ statutes are required to be amended in accordance with law. Till this is not done, the age of superannuation cannot be increased merely on the basis of communications dated 3.3.1999, 31.10.2003 and 5.11.2003. Accordingly, in view of the observations made hereinabove, there is no merit in these petitions and the same are dismissed. No costs. (Rajiv Sharma) Judge March 15, 2009. ( bhupender)