* THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI + W.P.NOs. 12726,16519 of 2009; 807, 6346, 9488, 9873, 9975, 10431, 10445, 10648, 10678, 10714, 10737, 10758, 10764,10767, 10770, 11119, 11235, 11316, 11335, 11338, 11507, 11518, 11525, 11531, 11534, 11567, 11581, 11582, 11583, 11617, 11647, 11726, 11853, 11938, 11939, 12124, 12126, 12168, 12173, 12180, 12282, 12530, 12548, 12557, 12591, 12604, 12605, 12612, 12614, 12655, 12742, 12748, 12758, 12810, 12822, 12824, 12827, 12836, 12883, 12908, 12914, 12927, 12935, 12942, 13138, 13290, 13303, 13386, 13398, 13421, 13535, 13581, 13718, 13771, 13788, 13847, 13880, 13898, 13907, 13914, 13941, 14109, 14117, 14393, 14591, 14657, 14673, 14679, 14685, 14843, 14992, 15000, 15009, 15035, 15180, 15208, 15273, 15287, 15428 of 2010. % THURDAY, the 20th DAY OF JANUARY TWO THOUSAND AND ELEVEN # Prof. B.Surya Prakash Rao s/o B.Appa Rao, Geo Engineering Department, A.U. Engineering College, Visakhapatnam and Others … Petitioners versus $ The Union of India, Ministry of HRD, rep by its Secretary, New Delhi and Others … Respondents ! Counsel for the Petitioners: Mr. S. Sudeep Reddy and Others ^ Counsel for the Respondents: Additional Advocate General assisted by Government Pleader for Higher Education and Others < Gist : >Head Note: ? 1. (2007) 11 SCC 58 2. AIR 1963 SC 703 3. AIR 1962 SC 1406 4. (1969) 2 SCC 348 5. (1999) 7 SCC 120 6. (1976) 1 SCC 466 7. 1992 (1) ALT 252 8. AIR 1995 SC 336 9. (2004) 11 SCC 755 10. (1995) 4 SCC 104 11. (2009) 4 SCC 590 12. (2005) 5 SCC 420 13. (1991) 4 SCC 139 14. 2002 (4) ALT 682 15. (1970) 1 SCC 613 16. (1995) 6 SCC 614 17. AIR 1963 SC 703 THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI WRIT PETITION Nos. 12726,16519 of 2009; 807, 6346, 9488, 9873, 9975, 10431, 10445, 10648, 10678, 10714, 10737, 10758, 10764,10767, 10770, 11119, 11235, 11316, 11335, 11338, 11507, 11518, 11525, 11531, 11534, 11567, 11581, 11582, 11583, 11617, 11647, 11726, 11853, 11938, 11939, 12124, 12126, 12168, 12173, 12180, 12282, 12530, 12548, 12557, 12591, 12604, 12605, 12612, 12614, 12655, 12742, 12748, 12758, 12810, 12822, 12824, 12827, 12836, 12883, 12908, 12914, 12927, 12935, 12942, 13138, 13290, 13303, 13386, 13398, 13421, 13535, 13581, 13718, 13771, 13788, 13847, 13880, 13898, 13907, 13914, 13941, 14109, 14117, 14393, 14591, 14657, 14673, 14679, 14685, 14843, 14992, 15000, 15009, 15035, 15180, 15208, 15273, 15287, 15428 of 2010. W.P.NO. 12726 OF 2009: Between: Prof. B.Surya Prakash Rao s/o B.Appa Rao, Geo Engineering Department, A.U. Engineering College, Visakhapatnam and Others … Petitioners And: The Union of India, Ministry of HRD, rep by its Secretary, New Delhi and Others … Respondents Counsel for the Petitioners: Mr. S. Sudeep Reddy and Others Counsel for the Respondents: Additional Advocate General assisted by Government Pleader for Higher Education and Others THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI WRIT PETITION Nos. 12726,16519 of 2009; 807, 6346, 9488, 9873, 9975, 10431, 10445, 10648, 10678, 10714, 10737, 10758, 10764,10767, 10770, 11119, 11235, 11316, 11335, 11338, 11507, 11518, 11525, 11531, 11534, 11567, 11581, 11582, 11583, 11617, 11647, 11726, 11853, 11938, 11939, 12124, 12126, 12168, 12173, 12180, 12282, 12530, 12548, 12557, 12591, 12604, 12605, 12612, 12614, 12655, 12742, 12748, 12758, 12810, 12822, 12824, 12827, 12836, 12883, 12908, 12914, 12927, 12935, 12942, 13138, 13290, 13303, 13386, 13398, 13421, 13535, 13581, 13718, 13771, 13788, 13847, 13880, 13898, 13907, 13914, 13941, 14109, 14117, 14393, 14591, 14657, 14673, 14679, 14685, 14843, 14992, 15000, 15009, 15035, 15180, 15208, 15273, 15287, 15428 of 2010. ORDER: (Per Hon’ble Sri Justice Goda Raghuram) The substantive relief sought in these writ petitions is of a declaration that the petitioners are entitled to continue in service (as teachers) till they attain the age of 65 years, which they claim is the permitted and mandated age of superannuation. The petitioners in the several writ petitions are employed as teachers either in Universities, University or affiliated Colleges. Though the above is the common purpose and relief sought by the petitioners, the reliefs sought are differently structured. Suffice to record for the purpose of illustration, four broad categories of reliefs sought: i) In W.P.No. 12726 of 2009, the relief sought is: “…an appropriate order or direction more particularly, one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in not implementing the recommendations made by the 1st and 2nd respondents for payment of University Grants Commission revised pay scales and enhancement of age of superannuation of 65 years to the petitioners herein as illegal and arbitrary, and consequently direct the respondents to consider the representation submitted by the petitioners for enhancement of age of superannuation up to 65 years and pay the revised pay scales to the petitioners and declare that the petitioners are entitled to the benefit of the scheme of the respondents” ii) In W.P.No. 6346 of 2010 relief sought is: “….Direction declaring Section 2 of Act XVII of 1973 in so far as it deals with the age of superannuation of teaching staff employed in aided and private educational institutions in the State of Andhra Pradesh as beyond the legislative competence of the State legislature and violative of Art. 256, 14 & 19(1) (g) of the Constitution of India and to consequently declare G.O.Ms.No. 208 dt. 29.6.1999 and G.O.Ms.No. 14 dt. 20.2.2010 on the file of the 2nd respondent, in so far as they deal with the age of superannuation and reemployment of superannuated teachers, as illegal and unconstitutional by directing the 2nd respondent to implement the Notification No. 3.1/2009 (PS) dt. 23.9.2009 issued by third respondent in its totality.” iii) In W.P.No. 13398 of 2010 relief sought is also: “….a declaration of invalidity of Section 3 of the A.P. Public Employment (Regulation of Age of Superannuation) Act, 1984”; iv) In some of the writ petitions, the validity of orders of the State Government in G.O.Ms.No. 208, Higher Education (UE.II.1) Department dt. 29.6.1999 and G.O.Ms.No. 14 Higher Education (UE.II) Department dt. 20.2.2010 in so far as by these orders, the State has stipulated the age of superannuation to be 58 years for college teachers and 60 years for University teachers without conforming to the age of superannuation stipulated in UGC Notifications, is challenged. A brief account of facts and assertions in W.P.No. 6346 of 2010 are recorded as representative of the generality of the writ petitions: W.P.No. 6346 of 2010:- The petitioner after initial entry as a part-time lecturer since July 1988 in Jawahar Bharati Decree College (R.5), affiliated to Sri Venkateswara University, Tirupati (R-4) was regularized as a Lecturer in Chemistry. He was also granted the UGC Revised Pay Scales 1996. These were further revised by the orders of the State Government (R-2) in G.O.Ms.No. 14, Higher Education (UE.II) Department dt. 20.2.2010. The petitioner is scheduled to retire on 31.3.2010 on completion of 58 years of age. The petitioner contends that the UGC (R-3) vide its notification F.3-1/2009 (PS), dt. 23.9.2009 revised the pay scales of several categories of teachers on the recommendation of the VI Central Pay Commission. These recommendations were effectuated by the State Government through G.O.Ms.No. 14 dt. 20.2.2010. The Andhra Pradesh Education Act 1982 was amended by the Andhra Pradesh Act XVII of 1993. Section 78-A was introduced thereby. Under this amendment the age of superannuation is 58 years for members of the teaching and non- teaching staff, working in the private educational institutions in the State. Heard Dr.P.V.Vijay Kumar, Mr.P.Srinivasulu, Mr.N.V.Sumanth, Mr.S.Sudeep Reddy, Mr.P.Govind Reddy, Mrs.A.V.S.Laxmi, Mr.P.Sridhar Rao, Mr.Sreeramulu Naidu, Mr.Bhaskar Rao Bandarupalli, Mr.T.Ramchander Rao, Mr.A.Nagendra Rao, Mr.S.R.Sanku, Mr.B.Ramakrishna, Mr.N.Siva Reddy, Mr.B.Narayana Reddy, Mr.Devaravi Kumar, Mr.Rama Rao Mamidi, Dr.K.Satyanarayana Rao, Mr.Venkateshwarlu Posani, Mr.M.Prasad Rao, Mr.B.S.V.Siva Rama Prasad, Mr.N.Parameshwar Reddy, Mr. M.V.Praveen Kumar, Mr.K.Venkat Reddy, Mr.Pilli Nagaraju, Mr.T.Bheemsen, Mr.B.Adinarayana Rao, Mr.Ch. Ravindra Babu, Mr.R.V.Nagabhushanam Rao, Mr.P.Venkanna, Mr.Mothupalli Vijay Kumar, Mr.T.Ramchander Rao, Mr.D.Sheshadri Naidu, Mr.V.Shanthibhushan Rao, Mr.P.Gangi Rami Reddy, Mr.K.Shanthi Kumar and G.Vidya Sagar for the several writ petitioners and the learned Additional Advocate General, Mr.P.Ashok Goud, the learned Assistant Solicitor General for India, the G.P. for Higher Education, Mr.Deepak Bhattacharjee, Mr.Srinivas Mantha, Mr.Adi Venkateshwar Rao, Mr.Nimmanagoti Srinivas, Ms.Padma, Mr.K.Sudhakar Reddy, Mr.N.V.Ramanujam, Ms.Bharathi Devi and Mr.Kasa Jagan Mohan Reddy for the several respondents in the several writ petitions. In G.O.Ms.No. 520 Education (UE) Department dt. 15.12.1988, the State Government extended the Revised UGC Scales of pay, 1986 to Teachers, Librarians and Physical Education personnel in the universities and colleges in the State. These were called the A.P. Revised UGC Scales of Pay, 1986. As per Para-4 of this order, the revised scales were made applicable to all the teachers in the Universities and affiliated degree and post- graduate colleges, whether Government or private colleges, and to Physical Educational personnel and Librarians in the Universities and to employees who were drawing pay in the revised pay scales 1986 which are analogous to the UGC scales of pay. These scales were also applied to teachers drawing pay in the State pay scales of 1978/86. The revised pay scales came into effect from 1.1.1986. Para-6 of this order permitted an option to existing employees to continue in the 1976 UGC scales of pay; to draw pay in the revised 1986 UGC scales; or to draw pay under the A.P. Revised Scales of Pay 1986; either from 1.1.1986 or from the date on which increment is earned in the existing scale of pay after 1.1.1986, but not beyond 31.12.1986. In the Appendix to G.O. 520 in para-23 it is specified that for all the teachers in affiliated post-graduate, under-graduate colleges, the age of superannuation is 58 years whereas for those working in the Universities it will be as per the Regulations of the University concerned. From the generality of the pleadings in the several writ petitions, the petitioners are seen to contend that they are entitled to continue in service till they attain the age of 65 years in view of the stipulation by the UGC in its Notification Nos. F 3-1/94 (PS) dt. 24.12.1998 and F 3-1/09 (PS) dt. 23.9.2009. The petitioners contend that specification of the age of superannuation by the State Government whether under legislation or Rules is impermissible as the State has no legislative competence in view of the dominant role of the UGC in coordinating and determining standards of higher education which authority includes stipulation of age of superannuation for teachers employed in institutions of higher education. The UGC has filed a counter affidavit wherein it is pleaded: a) That the UGC is constituted under the provisions of the UGC Act 1956 (Central Act 3 of 1956) (for short ‘the 1956 Act’), which has come into force on 5.11.1956. The Act is intended to make provisions for the co-ordination and determination of standards in Universities and the Commission has been entrusted the duty of taking such steps as it may think fit for the promotion and co-ordination of University education and for determination and maintenance of standards of teaching, examination and research in Universities. The Commission is vested the power to recommend to any University the measures necessary for the improvement of University education and to issue advisories to Universities on the action to be taken for the purpose of implementation of its recommendations. The UGC is also authorized to perform such other functions as may be prescribed or as may be deemed necessary for advancement of higher education in India or as may be incidental or conducive to the discharge of its functions; b) Section 26 of the 1956 Act empowers the UGC to make regulations consistent with the Act and permits the Commission to define qualities that are ordinarily required by any person to be appointed to the teaching staff of a University, having regard to the branch of education in which the applicant is expected to give instruction; c) By a letter dt. 27.7.1998, the Government of India in the Ministry of Human Resources Development (Department of Education) informed Education Secretaries of all the States/Union Territories regarding revision of pay scales of teachers in Universities and colleges, following revision of pay scales of Central Government employees on the recommendations of the V Central Pay Commission. In a subsequent letter dt. 27.7.1998, the Government of India in the Ministry of HRD addressed the UGC inter alia specifying that the age of superannuation of University and college teachers would be 62 years and thereafter no extension in service should be given and that it is however open to a University or a college to reemploy a superannuated teacher according to the existing guidelines framed by the UGC, up to 65 years. This letter however clearly specified that the above scheme will be applicable to teachers in all Central Universities and the colleges thereunder and the deemed to be Universities, whose maintenance expenditure is met by the UGC; d) On 24.12.1998, the UGC issued a Notification on Revision of pay scales, minimum qualifications for Appointment of Teachers in Universities, Colleges and Other measures for the maintenance of standards, 1998. Clause 16.1.0 of the Notification provides that Teachers will retire at the age of 62 years. However, it is open to a University or a college to re- employ a superannuated teacher according to the existing guidelines framed by the UGC, up to the age of 65 years. Subsequently, in exercise of its powers under Section 26(1) (e) (f) r/w Section 14 of the 1956 Act, the UGC framed the (Minimum Qualifications required for appointment and career advancement of teachers in Universities and institutions affiliated to it) Regulation 2000. This Regulation did not provide for any age of superannuation; e) Earlier, the Ministry of HRD (Higher Education), Government of India in its letter dt. 23.3.2007 informed the UGC that in the view of existing shortage in teaching positions in the centrally funded institutions in higher and technical education, under the MHRD and in the context of the (Central) Government’s decision to expand the capacities of such institutions for increasing access to higher education and for implementing policy of reservations for the weaker sections without effecting the number of seats in the unreserved category available through general merit, the matter was reviewed by the Central Government and decided inter alia that the age of superannuation of all persons holding teaching positions on regular employment against sanctioned posts on 15.3.2007 in any of the centrally funded higher and technical education institutions under the Ministry shall be increased from the present age of 62 to 65 years. In para-3 of the said letter, it was clarified that the enhancement of retirement age as directed will apply only to persons in teaching positions and against the posts sanctioned to centrally funded in higher and technical education institutions coming under the purview of the MHRD; f) In a letter dt. 19.4.2007, the Department of Higher Education, MHRD, Government of India reiterated that the enhancement of age of superannuation from 62 to 65 years and the provisions for reemployment as mentioned in the letter dt. 23.3.2007 is applicable to only teachers in centrally funded higher and technical education institutions, under the MHRD; g) In case of an employee of a college or an institution not funded and maintained by the UGC, the age of superannuation as informed by the MHRD in its letter dt. 23.3.2007 is not applicable. It is however open to the State Government or an institution concerned to adopt the same position or take any other decision as considered appropriate in respect of the age of superannuation of teachers in higher and technical education institutions under their purview, with the approval of the appropriate competent authority; h) The letter dt. 31.12.2008 issued by the Department of Higher Education, MHRD, Government of India addressed to the Secretary, UGC is regarding scheme of revision of pay of teachers and equivalent cadres in the Universities and colleges, following the revision of pay scale of the Central Government employees on the recommendations of the VI Central Pay Commission. Para-8 (f) of this letter dealing with the age of superannuation states that the Central Government had already authorized central Universities vide its letter dt. 30.3.2007 to enhance the age of superannuation of Vice- Chancellors of the Central Universities from 65 to 70 years subject to amendments in the respective statutes, with the approval of the competent authority and subject to availability of vacant position and convenience. Teachers shall also be reemployed on contract appointment from 65 years up to the age of 70 years. Para-8 (p) of the said letter clearly specifies that this scheme is applicable to teachers and other equivalent cadres of Librarian and Physical Education in all the central Universities and colleges thereunder and the institutions deemed to be Universities whose maintenance expenditure is met by the UGC. Thus, enhancement of the age of superannuation from 62 to 65 years is for teachers of the central Universities and colleges affiliated thereto and not to Universities or colleges under the administration of a State or a Union Territory. It is however open to the State Universities and to colleges affiliated to them and the concerned State Governments to adopt the Central scheme. Appended to the counter affidavit of the UGC (dt. 25.5.2010) is a copy of the letter of the UGC bearing No. F.3-1/94 (PS) dt. 30.3.2007 (addressed to the Registrars of all the Central/deemed Universities; a letter dt. 4.4.2007 also of the UGC and similarly addressed to the Registrars of the Central and deemed Universities; a letter dt. 23.3.2007 of the Government of India addressed to the UGC; and another letter dt. 19.4.2007 of the Government of India, MHRD (Department of Higher Education), addressed to the UGC clearly indicating that the enhancement of the age of superannuation from 62 to 65 years is applicable to meet the shortage of teachers in centrally funded institutions in higher and technical education under the MHRD. This correspondence is also addressed only to Central Universities, Directors of All India Institutions of Management, Science, Information and Technology, Industrial Engineering, National Institute of Forge Technology and the like. These are neither addressed nor directed to State institutions. In 1999, the State Government issued orders in G.O.Ms.No. 208 dt. 29.9.1999 to implement the revised pay scales 1996 pursuant to the recommendations of the UGC. In the appendix to G.O.Ms.No. 208, pursuant to the 1996 revision of pay scales, the State indicated inter alia, the service conditions of University and College teachers. Para- 16 of this appendix reads as under: 15 SUPERANNUATION AND RE-EMPLOYMENT OF TEACHERS; (1) The University Grants Commission has recommended superannuation age as 62 years uniformly for the teachers in Universities and Colleges. At present, in the State of Andhra Pradesh, the age of superannuation is 58 for the College teachers and 60 for University teachers. After considering the issue at great length and keeping in view that if this issue to enhance the age of superannuation to 62 years is agreed to, it will have repercussions and adverse implications regarding announcement of the age of retirement of the State employees also, the Government have decided that there should be no change in the age of superannuation as existing now and it shall be retained at 58 years to the College teachers and 60 years for the University teachers. (2) It is open to a university or a College to re-employ a superannuated teacher according to the existing guidelines framed by the UGC upto the age of 65 years. (3) Age of retirement of Registrars, Librarians, Physical Education personnel, Controllers of Examinations, Finance Officers and such other University employees who are being treated at par with the teachers and whose age of superannuation was 60years, would also continue to be 60 years. No re-employment facility is provided for the Registrars, Librarians and Directors of Physical Education. In G.O.Ms.No. 14 dt. 20.2.2010, pursuant to recommendations of a committee (constituted in G.O.Ms.No. 106 Higher Education (UE.II) Department, dt. 1.8.2009), the State Government considered the 2006 revised UGC pay scales, the recommendations of the committee aforestated and decided to implement the 2006 UGC Revised Pay Scales in favour of University and College teachers in the State w.e.f. 1.1.2006, as indicated in the schedule to this order (G.O.). Appendix-I to G.O.Ms.No. 14, dt. 20.2.2010 sets out provisions for ‘superannuation and re-employment’ as under: Superannuation & Re-employment of Teachers: a) The existing age of superannuation of teachers in the State Universities and colleges, shall apply from time to time. b) The Government examine the enhancement of age of superannuation of the teaches separately. c) The existing guidelines on the re-employment of the superannuated teachers may be reviewed in the light of the UGC Regulations. The Principal Secretary to the Government in the Higher Education Department of the State has filed a counter affidavit dated 31.05.2010, contending: A) That the relief sought by the petitioners are squarely covered by the judgment of the Supreme Court in Bharat Kumar and Ors vs Osmania University ([1]) wherein the several contentions urged by the petitioners herein were negatived; B) That Section 78-A of the Andhra Pradesh Education Act 1982 (‘the 1982 Act’) [amended by the A.P Act XVII of 1993] is within the legislative competence of the State vide Entry-25 of the List- III of the Seventh Schedule of the Constitution of India. In Bharat Kumar the Supreme Court negatived a similar contention as urged herein, that the prescription of age of superannuation falls within the contours of co-ordination and determination of standards in institutions of Higher Education or Research and Scientific and Technical Institutions, enumerated in Entry-66 of List-I; C) That there is no conflict apparent, substantive or latent between the provisions of Sec. 78-A of the 1982 Act and any notification, regulation or policy issued either by the UGC or the Central Government in purported exercise of the legislative power under Entry-66 of List-I or in exercise by the UGC of its powers under the UGC Act, 1956; D) That State Government educational administered, controlled or funded higher education institutions whose staff both teaching and non-teaching, are drawing State scales do not come within the ambit of purview of either the Central Government or the UGC; E) That increase in the age of superannuation would put a heavy financial burden on the State and further non-gazetted employees working in various Government departments in the State may seek a similar benefit and enhancement of the age of superannuation. For a plurality of reasons the State has taken a policy decision to restrict the age of superannuation to its current level; F) That there is no material to indicate that the UGC had accepted any recommendation of the pay Review committee chaired by Prof. G.K.Chadha with respect to the age of superannuation of teaching staff of State universities and colleges; G) That the UGC in its Regulation dated 23.09.2009 vide Para 12.0(i) dealt with enhancement of superannuation age for teachers in the Central education institutions alone and there is no discussion about enhancement of age of superannuation of teachers working in the State Universities and colleges drawing UGC scales of pay; H) That even under the Central Government’s notification No. 1- 32/2006-U.II/U.I(1) dated 31.12.2008 financial assistance will be provided only up to 31.03.2010 and thereafter the entire liability on account of revision of pay scales etc., of Universities and college teachers, would have to be borne by the State Government i.e., with effect from 01.04.2010. Thus the very scheme contemplates implementation subject to viability, feasibility and financial status of the State Government; I) That even the letter dated 23.3.2007 of the Central Government bearing reference letter No. 1-19/2006 U(II) stipulates that the enhancement of retirement age from 62 to 65 years and the provision for reemployment provided therein is applicable only to persons in teaching positions against posts sanctioned to centrally funded higher and technical educational institutions coming under the Ministry of HRD. In the same letter the Central Government has clarified that the enhancement of retirement age and the provisions for reemployment will apply only to persons in teaching positions against posts sanctioned to centrally