A.R.Rahi vs State of Jammu & Kashmir

The original Writ Petition No. 902/96 was filed on 2561996. The same was for grant of a Writ in the form of Mandamus, directing the

respondents to allow the petitioner to continue in service till he attains the age of 60 years. In addition to this, a further prayer for grant of Writ of

Prohibition was also made, whereby, respondents were sought to be restrained from superannuating the petitioner at the age of 50 years. The

petitioner is a College Teacher and the question raised through the medium of this writ petition is as to at what age shall be retire? At 60 years of

58 years?

The Petition came up before the court on 2861996. On that date, this Court passed the following order:

Issue notice.Issue notice in CMP also. At this stage Mr. S. Shukla, present in the court appears and accepts notice for the respondents. Copy of

petition furnished to him in the open court. Objections be filed till next date. This case of the petitioner is that he is a College Teacher and as such

governed by the U.G.C.norms for purposes of age of superannuation. This claims he makes on the basis of Government Order No. 167HM of

1988 dated 2041988.I direct this case be listed in the week following next week leaving the parties free to make a mention on the next date of

hearing. Till then, the petitioner shall be allowed to continue at his own risk and responsibility.

The matter was not listed in accordance with the schedule laid down by the court order dated 2861996, not did the court work with the same

enthusiasm with which the initial order liked it to. However, on 2771997 when this case was listed, Mr. M.I. Qadiri, Sr. AAG, referred to a

judgment returned by a Single Bench of this Court, (Hon'ble Shri V.K. Gupta, J, as his Lordship then was) in SWP No. 498/91, titled Y.N. Gupta

& Ors Vs. State and others (Reported in Kashmir Law Journal 1991 page 611). Therefore, on that date this court passed a straight jacketed

order calling upon the parties to appear and arnue the case by the next date positively. The matter was subsequently heard at length on 181997

and 481997.

I am told that an appeal against the order passed by this court on July 23,1997 was filed which was dismissed. Subsequently, the petitioner filed

a CMP for amendment of the writ petition, wherein, it was contended that, owing to some developments having taken place after the judgment

delivered by the Court in SWP 498/91, a need for amendment version in of the writ petition was also filed on 2871997. Objections to the CMP

and also to the amended writ petition have also been filed. Wherein, it has been vehemently contended that no occasion for amendment arises and

the motion for amendment is made only to protect the proceedings and also stand in the way of the court to vacate the adinterim direction issued

on 2861996 under which the petitioner is still continuing.

It will be pertinent to place on record here that age of superannuation in terms of Rule 226 of C.S.R. for State Government employees including

College teachers is 58 years. On 1761987. The Government of India, Ministry of Human Resources Development, (Department of Education)

sent communication No, F.121/87U.I. to the Education Secretary of All the States and Union Territories for consideration of revision of pay scales

to teachers in the Universities and Colleges and for adopting other measures for ensuring a high standard in education. Recommendations of

University Grants Commission in this behalf were annexed along with the letter. The recommendation comprised of two parts. Part one related to

scales of pay of University and College teachers and rest of the scheme related to other conditions of service including age of superannuation,

Govt. of J&K accepted the recommendations in so far as they related to the scales of pay and did not accept the other conditions of service

contemplated in the scheme. In this behalf, the Government order is reproduced as under:""Govemment of Jammu & Kashmir Civil Secretariat

Higher Edu. Deptt. Sub: Implementation of UGC recommendations. Ref: Cabinet Decision Ni. 46 dt. 19041988. Sanction is accorded to the

implementation of the UGC. scales for Government Degree College Teachers in the Jammu & Kashmir State with effect from 1.1.1988, along with

other conditions stipulated in the UGC recommendations.

By order of the Government of Jammu & Kashmir.

Sd/

ComrnVSecry. to Govt., Education Department.

Be it placed on record here that consequent upon adopting the UGC. Pay scales and passing the above quoted government order, the State

Government also promulgated J&K Degree College (Pay) Rules of 1988 issued vide SRO 314 of 1988dated 2991988.

UGC scheme carried a clause with regard to age of superannuation also. Clause 24 of the UGC scheme related to age of superannuation. It

reads as under:

Superannuation and reemployment.

The age of superannuation for teachers should be 60 years and thereafter no extension in service should be given. However, it will be open to

a university or College to reemployee a superannuated teacher according to the existing guidelines framed by the UGC, upto the age of 65 years.

As is evident from the Government Order dated 2041988, the recommendation for enhancement of age of superannuation was not accepted by

the Government and what was accpeted and adopted were the recommendation made in respect of pay scales only.

I have gone through the contemperancous record by way of correspondence which is produced in the matter. In these communications the State

Government has in categoric terms shown its inability to adopt the recommendations of the UGC with respect to an enhancement in the age of

superannuation of college Teachers. As the same had the effect of changing the law relating to age of superannuation of College Teachers prevalent

in the state.

Some of the College Teachers felt aggrieved of the omission of the State to accept clause 24 of the University Grants Commission scheme

reproduced above. A bunch of the writ petitons came to be filed before the Court by different College Teachers. These petitions were disposed of

along with SWP No. 498/91 on 2281991 by a learned Judge of this Court in case Y.N. Gupta & Ors. Vs. State and ors supra. His Lordship has

held a threadbare discussion on various aspects of the case and has relied upon the following case law from the Apex Court of the country:

1967SC:1264 1973SC:698 1969SC:118 1974SC:2192 1980SC:350 1965SC:1196 1991SC:276 1971SC:1920

The Court in this case has while answering certain questions which came up for discussion answered them in the following manner

i. Recommendation of the University Grants Commission has no binding force and are not binding on the State Government. The State

Government has power to accept or not to accept such recommendations. The Government was justified in adopting such recommendations in

part and non acceptance of a part of such recommendations does not provide any cause of action to the Writ petitons.

ii. Government Order No. 167HM of 1988 dated 2041988 related only to the pay scales of the College Teachers and would not apply to raising

their age of superannuation from 58 years to 60 years.

Thus the court in the abovementioned case did not find a case for the petitioners for continuance in service beyond the age of 58 years and as

such the petitions were dismissed. An appeal against this order was taken in LPA No. 120 of 1991.

The appellate Bench upheld the order, however, it was observed by the appellate Bench that recovery against those of the writ petitioners who

had worked beyond 58 years of age under Court orders should not be made and the period of over stay should be deemed as extension in their

service. The State has gone in appeal against the latter part of the order passed by the LPA Bench which treated the period of overstay as

extension in service. The SLP is pending before the Apex Court. However, as far the ratio of law laid down by the writ court in Writ Petition titled

Y.P. Gupta as case as reproduced above, has assumed finality. Therefore, the same has a binding force.

That being the position, the question raised in the petition stands squarly answered and no longer stands resintegra. Any exercise to reagitate

those questions of law can by no stretch of law be permitted.

Mr. Qayoom, appearing for the petitioner tried to reintroduce some fresh communications made by the Ministry of Human Resource

Development (Department of Education), Government of India in July 1988. The fresh correspondence reveals that the letter dated 791987 did

not make any mention of Selection grade lecturers, Librarians and Physical Education Personnel. Besides clearing certain points relating to release

of Financial Assistance from the Central Government. Some clarifications were sought from State Government.

According to Mr. Qayoom, learned counsel appearing for the petitioner, this is a fresh material, which has not been considered by the Writ

Court in Y.P. Gupta's case. Hence a scope for amendment and reagitation of the matter.

I have very minutely gone through the amended writ petition, the motion for seeking amendment and the objections filed. In my opinion no

fresh material of such nature has come up which would be necessary for just decision of the case afresh. Even, assuming and not admitting, that the

University Grants Commission would have made fresh recommendations (which is not the case here). Those recommendations again were sheer

recommendations and would not be binding for the State government, because of the clear ratio of law laid down by the Apex Court and followed

by this Court in Y.P. Gupta's case.

In any case whether we allow amendment or disallow the same, Rule 226 of the J&K Civil Service Regulations holds the field and College

Teachers like other Government servants will have to retire at the age on attaining 58 years of age. Thus the amendment is otiose and uncalled for.

This exercise I feel, has been made to exploit the possibility of lending further lease of life to the interiocatory direction issued by this court on

2861996. The petition for amendment is accordingly dismissed.

The Judgement passed by Gupta J in Y.N. Gupta's case is based upon law laid down by Supreme Court, which under Art. 141 of the

Constitution is binding upon this Court. Therefore, this Court is bound to follow that law.

Even the finding returned by a Division Bench of this Court on 29.8.1991 confirming the Single Benches finding has a binding force for me.

Rule 2 to Rule 20 of the J&K High Court Rules reads as under:

Rule 20(2).A decision of a Division Bench on a point of law or usage having the force of law shall be binding on a Single Bench.

On the analogy of Article 141 of the Indian Constitution and Rule 20(2) of High Court Rules, a Single Bench can not allow the parties to

reagitate a point of law which has been clinched either by a Division Bench of this Court or the Supreme Court of India.

That being the position, I find that the questions which are tried to be raised through this petition have already been decided. Thus, there is no

substance in the petition and the same is dismissed without there being any order as to costs. Interim direction issued by thisCourt on 2861986 is

vacated. The decision with respect to the period of overstay of the petitioner shall betaken by the respondents in terms of the finding to be returned

by the apex court while disposing of the SLP pending against the Division Bench Judgment in LPA 120/91 titled Y.N. Gupta & Ors. Vs. State.