CHANDRA MOHAN VARMA versus STATE OF UTTAR PRADESH & ORS.
[2020] 1 S.C.R. 1158, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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CHANDRA MOHAN VARMA
v.
STATE OF UTTAR PRADESH & ORS.
(Civil Appeal Nos. 350-351 of 2020)
JANUARY 21, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
AJAY RASTOGI, JJ.]
Uttar Pradesh State Medical Colleges Teachers, Service Rules
1990 – r.26 – UP Fundamental Rules notified u/s.241 (2) (b) of the
Government of India Act, 1935 – Benefit of the increase in the age
of retirement from 60 to 65 years as a consequence of the notification
dated 6 February 2015 – Entitlement to, sought by the appellant
who retired on 13 August 2014 but was continuing in service in
view of the ‘session benefit’ granted by the G.O dated 19 November
2012 – Held: The Notification enhancing the age of retirement is a
special order within the meaning of Rule 26 – Notification dated 6
February 2015 not ultra vires Fundamental Rule 56 – ‘Session
ending benefit’ granted to teachers ‘after retirement’ according to
the G.O – Grant of deeming provision not automatic but conditional
– 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 – It was clarified by the
State that the said notification would not apply to teachers, such as
appellant, who had already crossed the age of superannuation as it
then stood prior to the notification dated 6 February 2015 – In the
instant case, the appellant was
continuing until the end of the session
(30 June 2015) after retirement, in terms of the G.O. dated 19
November 2012 – 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
retirement – Ram Vir Sharma v. State of UP distinguished –
Regulation 21 of the Intermediate Education Act 1921 extended
service after the attaining superannuation in view of a deeming
provision – In contrast the 6 February 2015 notification
   [2020] 1 S.C.R. 1158
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conditionally grants session ending benefit – Therefore, appeals
dismissed – Service Law – Superannuation.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 350-
351 of 2020.
From the Judgment and Order dated 02.02.2018 of the High Court
of Judicature at Allahabad in Writ-A No. 35714 of 2015 and order dated
14.03.2019 in C.M. Review Petition No. 5 of 2018.
P.S. Patwalia, Sunil Gupta, Sr. Advs., M. Shoeb Alam, Siddharth
Buxy, Mojahid Karim Khan, Advs. for the Appellant.
Ankit Goel, Gaurav Singh,  Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. A Division Bench of the High Court of Judicature at Allahabad
dismissed, by its judgment dated 2 February 2018, a Writ Petition instituted
by the appellant under Article 226 of the Constitution. By his petition, the
appellant sought a mandamus for his continuance in service as Professor
and Head of the Department of Cardiology of the LPS Institute of
Cardiology in GSVM Medical College, Kanpur until he attained the age
of 65. He claimed this relief on the basis of a notification dated 6 February
2015 of the Government of Uttar Pradesh extending the age of retirement
from 60 to 65 years. The appellant had before the issuance of the above
government notification attained the age of superannuation of 60 years
on 13 August 2014. But, in terms of a Government decision1 dated 19
November 2012, he had been granted a ‘session benefit’ of an
extension of service up to 30
June 2015. Based on this extension, the
appellant’s case is that he is entitled to the extension in the age of
retirement which has been brought about by the notification dated 6
February 2015. This claim has been repelled by the judgment and order
of the Allahabad High Court which is questioned in appeal.
2. On 1 April 1992, the UP Fundamental Rules2 were notified
under Section 241(2)(b) of the Government of India Act 1935. Rule 56
provides that:
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS.
1 “GO”
2 “Fundamental Rules”
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“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:
Provided …”
3. On 21 December 1990, the Uttar Pradesh State Medical
Colleges Teachers, Service Rules 19903 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 State.”
By 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 years.
4. On 16 March 2005, the Medical Council of India Minimum
Qualifications for Teachers in Medical
Institutions Regulations 19984
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 years.”
3 “the Rules of 1990"
4 “the MCI Regulations 1998"
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This 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 years.
5. 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
benefit’.
6. 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
Commission5 would stand abolished.
7. 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 2014.
8. 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 65.
9. On 30 June 2015, an Office Memorandum6 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 :
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
5 “UPPSC”
6 OM
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“OFFICE MEMORANDUM
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:-
Sl 
No. 
Medical 
Teacher 
Date of 
Birth  
Date of 
Retirement  
Present place 
of posting 
Date of 
expiry of 
session 
ending 
benefit  
1. 
Dr. 
C.M. 
Verma 
13.06.1954 
31.08.2014 
Professor and 
Head 
of 
Department, 
Cardiology, 
Institute 
of 
Cardiology, 
Kanpur  
30.06.2015 
2. In view of above, the services of above-named Medical Teacher,
working under session ending benefit, will expire on 30.06.2015"
10. 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 Court.
11. 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
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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 that:
(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 effect.
The 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 UP7; 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.
12. Assailing the judgment of the High Court, Mr PS Patwalia,
learned Senior Counsel submitted that :
(i)
Though the appellant attained the age of superannuation
stipulated in Rule  56 of the Fundamental Rules on 13 August
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
7 WP (S/B) No. 4292/2016
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2014 and would have retired from service on 31 August 2014,
he was granted the benefit of the GO dated 19 November
2012 in terms of which his services were extended until the
end of the  session on 30 June 2015;
(ii)
During the extended tenure of service, the State Government
decided to increase the age of retirement on 6 February 2015.
The benefit of the increase in the age of retirement must be
granted to the appellant who was in service on the date on
which the State Government decided to increase the age of
superannuation to 65 years;
(iii) The High Court was in error in coming to the conclusion that
the notification dated 6 February 2015 enhancing the age of
retirement to 65 years is ultra vires the provisions of Rule
56 of the Fundamental Rules. In terms of Rule 26 of the
Rules of 1990, matters which are not specifically provided in
the rules or in special orders would be governed by the rules,
regulations and orders generally applicable to State
Government servants. The notification dated 6 February 2015
enhancing the age of superannuation to 65 years is a special
order within the meaning of Rule 26. The MCI Regulations
1998 contain an enabling provision in terms of which the State
Government was entitled to enhance the age of
superannuation to 65 years;
(iv) The appellant is entitled to the benefit of the notification dated
6 February 2015 issued during the pendency of his extended
service on account of the
end of session benefit given up to
30 June 2015. As a result of the end of sessional benefit the
superannuation gets postponed and would be deemed to have
taken place only at the end of the session namely on 30 June
2015. Hence, the appellant would be entitled to all benefits
arising before that date including the enhancement in the age
of superannuation to 65 years;
(v) The GO dated 19 November 2012 equally extended the end
of session benefit to medical teachers like the teachers in the
education department. In Ram Vir Sharma v State of UP8
(“Ram Vir Sharma”), this Court held, while construing the
8 Civil Appeal No. 2606 of 2009 , decided on 4 June 2014
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provisions of Regulation 21 of Chapter III of the Regulations
under the Uttar Pradesh Intermediate Education Act 19219,
that the employee must not be deemed to have been
superannuated on the date of attaining the age of 60 years
but would be deemed to have been superannuated only on
30 June following the date on which the age of 60 years was
attained; and
(vi) Besides the decision in Ram Vir Sharma rendered by this
Court, the High Court has had occasion to deal with a similar
issue in Dr Juhi Singhal v State of UP through Principal
Secretary Department of Medical Education and
Training10 (“Juhi Singhal”); State of Uttar
Pradeshthrough Principal Secretary, Secondary
Education Lucknow v Smt Hema Pathak11 (“Hema
Pathak”);and Dr Professor  Rajendra Chaudhary v State
of UP12(“Rajendra Chaudhary”). The decision in
Rajendra Chaudhary, though in the context of the abrogation
of the upper age limit for retirement has been affirmed by
this Court in its decision dated 28 August 201913.
13. On the other hand, Mr Gaurav Singh, learned Counsel
appearing on behalf of the respondents submitted that:
(i)
The appellant attained the age of superannuation, which at
the relevant time was 60 years on 13 August 2014 and would
have demitted office on 31 August 2014;
(ii)
His continuance until 30 June 2015 in terms of the GO dated
19 November 2012 until the end of the session (30 June 2015)
did not alter the date of superannuation;
(iii) The continuance of the appellant until 30
June 2015 was only
to obviate a dislocation being caused as a result of the
retirement fallingin the midst of the session;
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
9  “the Intermediate Education Act 1921"
10 Service Bench No 4292 of 2016, decided on 11 November 2016
11 Special Appeal Defective No 477 of 2013, decided on 24 January 2017
12 Writ-A. No. 17078 of 2016, decided on 6 April 2018
13 Dr Professor Rajendra Chaudhary v State of Uttar Pradesh,  Civil Appeal Nos.
6667-6668 of 2019
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(iv) The notification dated 6 February 2015 extending the age of
superannuation will not apply to the appellant who attained
the age of retirement on 13 August 2014;
(v) There is a distinction between the provisions of Regulation
21 contained in the regulations made under Chapter III of
the Intermediate Education Act 1921 and the GO dated 19
November 2012. Under Regulation 21, there is a deeming
provision for an extension of service as a result of which the
retirement would take place at the end of the academic year
following. Regulation 21 contains an opt-out provision. On
the other hand in terms of the GO dated 19 November 2012,
the extension of the end of session benefit in Government
Medical Colleges is conditional on satisfactory performance
in service. Consequently there is no deeming extension of
the age of superannuation by the GO dated 19 November
2012; and
(vi) The date of superannuation does not stand postponed. The
decision of this Court in Ram Vir Sharma as well as of the
High Court in Hema Pathak is distinguishable. The decision
in Juhi Singhal dealt with the abolition of the maximum age
of recruitment and has no application. Similar is the case
with the decision in Dr Rajendra Chaudhary14 which came
up for decision before this Court on 28 August 2019.
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
14 Civil Appeal Nos. 6667-6668 of 2019
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effect of enhancing the age of superannuation prescribed under
Rule 56(a) of the Rules which stands unamended.”
The above extract indicates that the High Court noticed that:
(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
unamended.
15. 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 vires.
Indeed, 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 erroneous.
16. The issue however is whether the appellant was entitled to
the benefit of the increase in the age of retirement from 60 to 65 years
as a consequence of the notification dated 6 February 2015. Mr PS
Patwalia’s arguments proceed on the basis of two hypotheses:
(i)
The GO dated 19 November 2012 by which a facility of an
extension of service is granted until the end of the session
places the faculty of medical colleges on the same basis as
teachers of the Education department; and
(ii) A member of the faculty who was on an extension of service
till the end of the academic session as on 6 February 2015
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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would be entitled to an extension of the age of superannuation
brought about by the notification dated 6 February 2015.
17. In order to appreciate the submission, it is necessary to consider
the terms on which it was decided by the Government on 19 November
2012 to grant a session ending benefit to medical teachers. The subject
of the communication of the Chief Secretary to the Director General,
Medical Education & Training is extracted below:
“Regarding grant of session ending benefit to the Medical
Teachers working in the State Allopathic Medical Colleges after
retirement on attaining the age of superannuation.”
(Emphasis supplied)
The communication then states :
“I am directed to say on the above-mentioned subject that as per
Education Section -1’s Govt. Order No. 7022/15 (1)/83/83-31 (16)/
77 dated 21.03.1984 facility of extension of service upto the end
of session (i.e. 30th June) has been granted to the Teachers/Head
Masters and Principals working in Govt. Schools and Colleges.
Similarly, as per Technical Education Section -2’s Govt. Order
No 934/TE-2-7 (E) ED-78 dated 27.06.1988, the facility of
extension of service upto the end of academic session (i.e. 30th
June) has been granted to the Instructors, Lectures Head of
Departments and principals working on teaching posts in the Govt.
Technical Education Department, who retire on attaining the age
of superannuation in the middle of session i.e. from 01st July to
30th June.
2. Facility of extension of service upto the end of academic
session (i.e. upto 30th June), by approving the benefit of
session ending, is granted to the Lectures, Assistant Professors,
Jr. Professors, Professors and Principals of Govt. Allopathic
Medical Colleges like Education Department and Technical
Education Department, subject to the following conditions:-
(1) He is teaching any subject regularly according to the
recommendations of Medical Council of India.
(2) He is working on the post continuously for minimum 03
years and his work & conduct is satisfactory.
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(3) No departmental proceeding or vigilance enquiry is
pending against him.
3. I am also directed to say that such officers, who are not doing
teaching work, be not deputed for teaching work in the last year
of their service without any specific reason, which may give them
the benefit of retention in service upto 30th June unnecessarily.”
(Emphasis supplied)
The 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 that:
(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 conditions.
18. 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
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 above.
19. The notification dated 6 February 2015 provided for:
(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 retirement.
20. 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
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age of 60 years after the date of the notification dated 6 February 2015.
The details which have been disclosed by the appellant in the SLP are as
follows:
“
1. Dr A K Mehrotra (Prof in S P M, Medical College, Jhansi)
-  DOB 1.4.55 / 60 years completed on 31.3.15
2. Dr Mangal Singh (Prof in ENT, Medical College, Allahabad)
-  DOB 5.6.1955/ 60 years completed on 30.6.15
3. Dr Pradeep Bharti (Prof in Surgery, Meerut Medical College)
-  DOB 26.3.55 / 60 years completed on 31.3.15.”
21. The appellant has placed reliance on a decision of this Court
dated 4 June 2014 in the case of Ram Vir Sharma v State of UP15. In
that case, the appellant was appointed as an ad-hoc Principal with effect
from 1 July 2006 on a vacancy created by the retirement of the incumbent.
He retired on attaining the age of superannuation on 6 August 2007.
While he was permitted to discharge his duties until the end of the
academic session on 30 June 2008, he was not allowed to discharge the
duties of a Principal after 6 August 2007 nor was he granted his
emoluments. The issue before this Court was whether upon attaining
the age of superannuation on 6 August 2007, the appellant was disentitled
to discharge the duties of the post of Principal or whether he could
continue up to the end of the academic session. This Court, in that case,
construed the provisions of Regulation 21 contained in Chapter III under
the Intermediate Education Act 1921 which provided as follows:
“21 Principal, Head
Master, Teacher shall retire on attaining the
age of sixty two years. .... In case date of superannuation of a
Principal, Head Master, or teacher falls between 2nd July and
30th June, then in that case retirement date of Principal, Head
Master or Teacher falls in the midst of academic year, except in
such cases in which the person concerned do not desires to continue
and issues a notice two month prior to date of retirement, shall
retire at the end of the academic year and said extension shall be
deemed to have been self-granted. Further extension in service
shall only be granted in those special circumstances which are
recommended by the State Government…”
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
15 Civil Appeal No 2606 of 2009
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This 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
superannuation.”
The 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 distinguishable.
22. 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
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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 same.”
23. The issue in Dr Rajendra Chaudhary’s case was distinct
from the central point in this case. In the present case the issue is whether
CHANDRA MOHAN VARMA v. STATE OF UTTAR PRADESH
& ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 distinguishable.
24. 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. The terminal benefits which are due to
the appellant shall be accordingly computed and released within a period
of two months from the date of receipt of a certified copy of this order.
For the reasons which we have indicated, we have come to the conclusion
that there is no merit in the appeals. The appeals shall stand dismissed.
There shall be no order as to costs.
Pending application(s), if any, stands disposed of.
Ankit Gyan
Appeals dismissed.