Case: CHANDRA MOHAN VARMA Vs. STATE OF UTTAR PRADESH

2. On 1 April 1992, the UP Fundamental Rules (Fundamental Rules) were notified under Section 241(2)(b) of the Government of India Act 1935. Rule 56 provides that:Except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:3. On 21 December 1990, the Uttar Pradesh State Medical Colleges Teachers, Service Rules 1990 (the Rules of 1990) were notified by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution. Rule 9 prescribed a maximum age for recruitment in medical colleges, by direct recruitment. For Professors, it was 45 years. Among other things, the Rules made a provision for constitution of cadres in Part II, recruitment in Part III, quantifications for appointment in Part IV, procedure for recruitment in Part V and provisions for pay related matters in Part VII. The Rules did not prescribe the age of retirement. But, Rule 26 contained the following stipulation:26. Regulation of other matters. – In regard to the matters not specifically provided in these rules or in special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants in connection with the affairs of the StateBy virtue of Rule 26, the age of retirement of professors in medical colleges was governed by Rule 56 of the Fundamental Rules which stipulated it as 60 years4. On 16 March 2005, the Medical Council of India Minimum Qualifications for Teachers in Medical Institutions Regulations 1998 (the MCI Regulations 1998) were amended in pursuance of powers conferred by the Indian Medical Council Act 1956 to incorporate an enabling provision in the following terms:The maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Teachers or Dean or Principal or Director, as the case may be, which are required to be filled up as per the norms of the Medical Council of India in any Medical College or Teaching Institution for imparting Graduate and Post-Graduate medical education, shall be 65 yearsThis provision was made in view of the shortage of medical teachers. It was amended on 17 September 2010 so as to substitute 70 years for 65 years5. By a decision notified on 19 November 2012, the State of Uttar Pradesh provided that Assistant Professors, Professors and Principals of Government Medical Colleges who were to retire after reaching the age of superannuation during the midst of an academic session would be granted an extension of service till the end of the session namely 30 June of the following year. This has been described as an end of session benefit6. On 6 February 2015, a notification was issued by the State of Uttar Pradesh by which a decision was taken that in order to meet the continuous shortage of medical teachers in Government Medical Colleges, the age of superannuation for serving faculty members would stand enhanced from 60 to 65 years and the upper age limit prescribed for recruitment of medical teachers through the Uttar Pradesh Public Service Commission (UPPSC) would stand abolished7. The appellant whose date of birth is 13 August 1954 joined as an ad-hoc lecturer at GSVM Medical College, Kanpur on 17 April 1986. Over time he received promotions in service. In August 2014, he was working as a Professor in Cardiology and as Head of Department. In terms of Rule 56, he was due to retire on attaining the age of 60 years on 13 August 20148. On 6 August 2014, an order was issued by the Director General, Medical Education & Training, on an application moved by the appellant on 31 May 2014 granting the benefit of an extension of service until the end of the session subject to the fulfillment of the conditions stipulated in the GO dated 19 November 2012. Apprehending that his services would be discontinued on 30 June 2015 at the conclusion of the academic session, the appellant instituted a Writ Petition before the Allahabad High Court seeking to interdict his retirement before he attained the age of 659. On 30 June 2015, an Office Memorandum (OM) was issued by the Chief Secretary to the State Government stating that upon the end of the session, the appellant would be demitting office on 30 June 2015. The OM is extracted below :The undersigned has been directed to inform that after your completing the age of superannuation i.e. 60 years on the date mentioned against the name, the period of session ending benefit for the below named Medical Teacher will expire on 30.6.2015:2. In view of above, the services of above-named Medical Teacher, working under session ending benefit, will expire on 30.06.201510. On 1 July 2015, the appellant addressed a communication to the Principal Secretary, Medical Education seeking re-appointment stating that he was doing so in pursuance of the telephonic instructions of the DGME but without prejudice to his right to claim continuance in service until the age of 65 years for which he had instituted a Writ Petition before the High Court11. On 2 July 2015, the appellant was re-appointed to the post of Professor of Cardiology until further orders or until the attainment of the age of 65 years whichever was earlier. The appellant initially furnished a letter of joining service on re-appointment without prejudice to his rights and contentions in the pending petition but subsequently withdrew it and submitted a fresh joining letter. He then proceeded to amend the Writ Petition in order to challenge the OM dated 30 June 2015. The State Government in its counter affidavit opposed the Petition stating that the appellant was not entitled to the benefit of the notification dated 6 February 2015 since he had already attained the age of superannuation on 13 August 2014 and retired on 31 August 2014. According to the State Government, the continuance of the appellant until 30 June 2015 was on the basis of the grant of the end of session benefit since the date of his retirement was in the midst of the session. The Division Bench of the High Court by its judgment dated 2 February 2018 dismissed the Writ Petition on the ground that the notification dated 6 February 2015 increasing the age of superannuation from 60 to 65 years has to be ignored rather than to be enforced. The reasoning which weighed with the High Court indicates(i) The petitioner is governed by the UP State Medical College Teachers Service Rules 1990. These rules do not provide for the age of superannuation of teachers of medical colleges. In such a situation, the Rules applicable to government servants, namely the UP Fundamental Rules would be applicable;(ii) Rule 56(a) of the Fundamental Rules prescribes the age of superannuation as 60 years. This Rule has not been amended by the State. Therefore, the notification dated 6 February 2015 increasing the age of superannuation to 65 years was contrary to Rule 56(a) of the Fundamental Rules; and(iii) The GO (simple order) was subordinate to the Fundamental Rules (superior legislation) and therefore, being contrary to it, would not have effectThe appellant filed a petition seeking review of the judgment on the ground that (i) it was without considering and was contrary to a prior judgment of a coordinate bench of the High Court in Dr Juhi Singhal v State of UP WP (S/B) No. 4292/2016; and (ii) it had erroneously applied the Fundamental Rules when under Rule 26 of the Rules of 1990, the notification dated 06 February 2015 being a special order would become applicable with effect from 6 February 2015. The review was dismissed by a judgment dated 14 March 2019.

Reasoning:
14. While considering the rival submissions, it is necessary to clear the ground in regard to Rule 56 of the Fundamental Rules. Rule 56(a) stipulates that (except as otherwise provided in it) every government servant shall retire from service on the afternoon of the last day of the month in which the age of 60 years is attained. The High Court, while placing reliance on Rule 56(a), held that a simple GO extending the age of retirement to 65 years would not alter or modify the age of retirement contained in the Fundamental Rules. Hence, the High Court held that the age of retirement of 60 years which was prescribed in Rule 56(a) could not be altered by the notification dated 6 February 2015. The High Court therefore held that:Thus, even assuming that the aforesaid government order had come during the service of the petitioner it would not have the effect of enhancing the age of superannuation prescribed under Rule 56(a) of the Rules which stands unamendedThe above extract indicates that the High Court noticed(i) The order extending the age of retirement had not come during the service of the petitioner; and(ii) Even if it had, it would not have the effect of enhancing the age of superannuation prescribed in Rule 56(a) which stands unamended15. Rule 26 of the Rules of 1990 makes applicable the rules, regulations and orders applicable generally to government servants serving in connection with the affairs of the state in regard to matters which are not specifically provided in those Rules or in special orders. The notification dated 6 February 2015 enhancing the age of retirement to 65 years for serving members of the faculty working in Government Medical Colleges is a special order within the meaning of Rule 26. That being the position and in terms of the Rules of 1990 which have been framed under the proviso to Article 309, the increased age of superannuation as prescribed in the notification dated 6 February 2015 cannot be regarded as being ultra viresIndeed, as we have noticed, the regulations framed by the MCI contain an enabling provision in pursuance of which it was open to the State Government to provide for an increase in the age of superannuation for faculty working in the Government Medical Colleges. The view of the High Court that the notification dated 6 February 2015 is ultra vires Fundamental Rule 56 is hence erroneousThe above communication shows that the grant of a session ending benefit is for medical teachers working in the State Medical Colleges after retirement on attaining the age of superannuation. The effect is that a person who has retired on attaining the age of superannuation, may continue until the end of the academic session. In the case of the Education department, it was envisaged that a teacher who retired in the midst of the session (1 July to 30 June of the following year) would continue up to the end of the academic session (30 June). While extending this facility to the faculty of Government Medical Colleges, the communication dated 19 November 2012 made it abundantly clear that the extension of service was not automatic but was subject to the fulfillment of stipulated conditions. These were(i) The teacher should be teaching a subject regularly;(ii) The teacher should have been working on the post continuously for the period of three years;(iii) The work and conduct of the teacher should have been satisfactory; and(iv) No departmental or vigilance enquiry should be pending against the teacher. The end of session benefit would not flow as a matter of right but only on fulfilling the above conditions18. The date on which the employee attains the age of superannuation is prescribed by the Fundamental Rules. The decision which was communicated by the State Government on 19 November 2012 does not alter the date of superannuation or retirement. However, what the decision effectuates is to allow the continuance of the employee, after retirement, upon the attainment of the age of superannuation with the salient purpose of preventing a disruption in education instruction prior to the end of the academic session. This view is fortified by the fact that the continuance of the employee until the end of the session is subject to the fulfillment of conditions stipulated, as noticed above19. The notification dated 6 February 2015 provided(i) Enhancing the age of superannuation from 60 to 65 years; and(ii) Abolition of the maximum age limit for appointment of medical teachers through the UPPSC. The increase in the age of superannuation from 60 to 65 years was prospective and would apply to those medical teachers in Government Medical Colleges who had not attained the age of superannuation under the prevailing rules. The State Government, in its counter affidavit, has clarified that it has consistently adopted the position that the notification dated 6 February 2015 increasing the age of retirement for medical teachers from 60 to 65 years is prospective and would not apply to teachers, such as the appellant, who had already crossed the age of superannuation as it then stood prior to the notification dated 6 February 2015. A person who had crossed the age of 60 before the issuance of the notification and attained the age of superannuation but was on an extension until the end of the session would not be entitlement to benefit from the increase in the age of retirement. Moreover, the State Government has specifically stated in its counter affidavit that :…there is no medical teacher who had attained the age of 60 years prior to the issuance of G.O. on 6.2.2015, who has been given the benefit of increase in retirement age of 65 years,The determination of the age of retirement is a matter of executive policy. The appellant attained the age of superannuation prior to the notification dated 6 February 2015 and was not entitled to the benefit of the enhancement of the age of retirement20. The appellant has pleaded a case of discrimination, relying upon the instances of Dr A K Mehrotra, Dr Mangal Singh and Dr Pradeep Bharti. However, it is evident from the details disclosed by the appellant in the Special Leave Petition that each of the three doctors attained the age of 60 years after the date of the notification dated 6 February 2015This Court held that in terms of Regulation 21, a person who was in service at the beginning of the academic session on 2 July was entitled to continue to serve until the end of the academic session (30 June) of the following year. In that context, dealing with the case of Ram Vir Sharma, this Court held:Thus, his age of superannuation under Regulation 21, would be deemed to have been extended till 30.06.2008. It is, therefore, clear that the appellant must not be deemed to have been superannuated on 6.8.2007, but he would be deemed to have been superannuated only on 30.06.2008, under Regulation 21, (extracted above). If he was to superannuate on 30.06.2008, naturally, his tenure of Principal would be co-terminus with the date of his superannuationThe above observations of this Court were made specifically in the context of Regulation 21 which envisaged that where the date of superannuation of a principal or a teacher falls between 2 July and 30 June of the following year, the incumbent shall retire at the end of the academic year and the extension shall be deemed to have been granted. The exception, in the nature of an opt-out provision, is where an employee does not desire to continue and issues a notice of two months prior to the date of retirement. The provisions contained in Regulation 21 are materially different from the conditions subject to which the session ending benefit was granted by the GO dated 19 November 2012 to the medical teachers in Government Medical Colleges. A comparison between the two provisions would indicate that Regulation 21 provided for an opt-out provision: in the absence of the exercise of the option, the teacher shall retire at the end of the academic year and an extension would be deemed to be have been… granted. In contrast, the notification dated 6 February 2015 postulates that the grant of a session ending benefit is subject to the fulfillment of stipulated conditions including of the work and conduct of the employee being satisfactory. There is no deeming provision extending the age of retirement. The decision in Ram Vir Sharma is hence distinguishable22. The decision of the Division Bench of the Allahabad High Court in Hema Pathak considered whether the teacher was rightly promoted by the Committee of Management on 18 May 2013. The DIOS held that the teacher had already attained the age of superannuation before the date on which a resolution for promotion was passed and was continuing till the end of the session and was hence not entitled to promotion. Dealing with the issue the Division Bench of the High Court held that the extension of service was for all purposes a part of service and the incumbent is treated to have retired at the end of the session. Hence, if before such retirement any benefit including promotion became due, it could not be denied in the absence of a provision to the contrary. The decision in the case of Hema Pathak is distinguishable and has no bearing on the construction of the GO dated 19 November 2012. Similarly, the decision of this Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of the upper age limit for direct recruitment under the notification dated 6 February 2015. Dealing with this aspect, Mr Justice Nageswara Rao, speaking for this Court in the judgment dated 28 August 2019 observed:12…The High Court rejected the challenge to the enhancement of upper age limit for direct recruitment to the post of Professor in Dr. Juhi Singhal (supra) by holding that the Regulations framed by the MCI would prevail over the Service Rules. In the said judgment, the High Court was of the view that the Government Order dated 06.02.2015 only supplements the Rules and does not supplant them. The High Court further observed that the relaxation was done in view of the shortage of teachers in Medical Institutions who are qualified for appointment to the posts of Professors. The relaxation of the upper age limit was applicable only to those departments where 25 per cent or more posts were vacant and in respect of other departments, the State Government decided not to fill them up. In Navyug Abhiyan Samiti (supra), the Division Bench of the High Court followed the same logic and reasoning while considering the increase of upper age limit to the post of Principals in Government Medical Colleges. We see no reason to disagree with the said findings recorded by the High court. There can be no manner of doubt that the Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over the Service Rules framed by the State of Uttar Pradesh. The Government Order dated 06.02.2015 has not been challenged by the Appellants for which reason they cannot make any grievance about the same23. The issue in Dr Rajendra Chaudharys case was distinct from the central point in this case. In the present case the issue is whether the appellant who had already attained the age of superannuation under the prevailing rules and was continuing until the end of the session would be entitled to the benefit of the enhancement of the age of retirement under the notification dated 6 February 2015. The decision in Dr Rajendra Chaudhary is hence distinguishable24. For the reasons that we have indicated, we hold that the appellant who attained the age of 60 years – the age of retirement which prevailed at the relevant time – was not entitled to the benefit of the notification dated 6 February 2015. The appellant was continuing until the end of the session (30 June 2015) after retirement, in terms of the decision dated 19 November 2012. He was not entitled to the enhanced age of retirement of 65 years.