KRM DAV College vs State of Punjab and Another

Hemant Gupta, J.—This order shall dispose of aforementioned writ petition along with other writ petitions as mentioned at the foot of this order involving either of three questions:-

that the age of superannuation of teaching faculty of the colleges and universities situated in the State of Punjab and Haryana stands enhanced to 65 years in terms of UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010 (for Short the Regulations);

that the State Government is bound to pay salary as per the UGC scale to the unaided staff of the aided colleges; and

that the State Government is bound to provide financial assistance to the teaching faculty of the unaided Colleges so as to comply with the requirement of pay scales as per the UGC Regulations.

Brief back ground leading to the said contentions is as under:

The Government of India, Ministry of Human Resource Development, Department of Education issued a letter dated 27th July, 1998 to Secretary University Grants Commission regarding revision of pay scale of teachers in Central Universities following the revision of pay scales of Central Government employees on the recommendations of Fifth Central Pay Commission. In para 1 (vi), the age of superannuation of college teachers was contemplated to be 62 years. However, liberty was given to the Universities/Colleges to re-employ a superannuated teacher according to existing guidelines framed by University Grants Commission up to 65 years. Such provision was to be applicable to the teachers in all Central Universities and Colleges there under and deemed to be universities whose maintenance expenditure is met by UGC.

On 24th December, 1998, the University Grants Commission notified the "UGC 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 of such Regulations provides that the 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 up to the age of 65 years. On 23rd March 2007, the Ministry of Human Resource Development wrote to the Commission on the question of enhancement of the age of superannuation from 62 years to 65 years for teaching positions in Centrally Funded institutions and technical education.

Subsequently, on 31.12.2008, the University Grants Commission framed the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. The Regulations contemplated the enhancement of age of superannuation of the teachers in terms of the earlier decision of the Central Government to 65 years is in terms of letter dated 23rd March, 2007 of Department of Higher Education. The Ministry of Human Resource Development, Department of Higher Education in the communication dated 31st December, 2008 to the University Grants Commission circulated that equivalent cadre in universities and colleges followed by revision of pay scales on the recommendation of 6th Central Pay Commission. The scheme was applicable in all Central Universities, Colleges, Institutions and Deemed to be Universities, whose maintenance expenditure is met by UGC. The implementation of the revised scales was subject to acceptance of all the conditions mentioned in the letter as well as Regulations to be framed by University Grants Commission. Thus the Regulations mentioned therein have been framed in the year 2010 as mentioned above.

Earlier, this Court in a judgment reported as Dr. A.C. Julka and others Vs. Panjab University and others, 2009(1) ILR (Punjab) 735 found that the circular issued by the University Grants Commission in respect of age of superannuation would have no effect and teaching staff of Panjab University would continue to retire at the age of 60 years in terms of Regulations framed by the University u/s 31 of the Panjab University Act, 1947. The Court further found that it is not necessary to examine the relevance of letters dated 27.07.1998 and 24.12.1998 mentioned above in the light of Entry 66 in List I and Entry 25 in List III as these communications cannot be said to be legislative in nature or for that matter issued pursuant to any statutory provision. The Court did not issue a writ of mandamus to direct the respondents to allow the petitioners to continue up to the age of 62 years. Consequently, the writ petitions were dismissed whereby a mandamus was sought to direct the respondents to allow the petitioners to continue up to the age of 62 years.

Subsequently, another Division Bench judgment in CWP No. 9665 of 2010 titled Prof. S.S. Bindra and others Vs. The State of Punjab and others, examined the Regulations mentioned above, as well as the letter of Government of India dated 31st December, 2008 and held that the Regulation limits the applicability of the revised age to Centrally funded higher and technical education institutions coming under the purview of the Ministry in order to overcome the shortage of teachers leaving the issue of extension to other institutions open. The Court held as under:-

Accordingly, the question has to be decided in the negative to the effect that the service conditions regarding age of retirement prescribed in statutory service rules under Proviso to Article 309 of the Constitution or under a statute cannot be deemed to have been amended by virtue of scheme dated 31.12.2008 except with regard to "Centrally funded higher and technical institutions coming under the purview of this ministry in order to overcome the shortage of teachers.

The Hon''ble Supreme Court examined the issues arising from different High Courts, including from this Court in Civil Appeal Nos. 5527-5543 of 2013 titled Jagdish Prasad Sharma and others Vs. State of Bihar and others, decided on 17 July, 2013. The Court, inter alia, examined the question whether the Regulations framed by the University Grants Commission u/s 26 of the University Grants Commission Act, 1956 were binding on the States and the State funded other universities and colleges being run therein. It was held that the Regulations framed by UGC relate to Entry 66 List I of the Constitution in the Seventh Schedule but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under Entry 25 of the List III, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any central legislation. It was also held that the State Government is at liberty to frame its own laws relating to education in the State and is, therefore, not bound to accept or follow the Regulations framed by the Commission. Subsequently examining Section 67(a) of Bihar State Universities Act, 1976, the Court observed as under:-

We are inclined to agree with such submission mainly because of the fact that in the amended provisions of Section 67(a) it has been categorically stated that the age of superannuation of non-teaching employees would be 62 years and, in no case, should the period of service of such non-teaching employees be extended beyond 62 years. A difference had been made in regard to the teaching faculty whose services could be extended up to 65 years in the manner laid down in the University Statutes. There is no ambiguity that the final decision to enhance the age of superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame Regulations having the force of law is admitted. However, the State Government are also entitled to legislate with matters relating to education under Entry 25 of List III. So long as the State legislation did not encroach upon the jurisdiction or Parliament, the State legislation would obviously have primacy over any other law. If there was any legislation enacted by the Central Government under Entry 25 List III, both would have to be treated on a par with each other. In the absence of any such legislation by the Central Government under Entry 25 List III, the Regulation framed by way of delegated legislation has to yield to the plenary jurisdiction of the State Government under Entry 25 of List III.

The Hon''ble Supreme Court also held that there can be no automatic application of the recommendations made by the Commission without any conscious decision being taken by the State in respect of a composite scheme framed by the Commission whereby the Commission agreed to bear 80% of the expenses subject to enhancement of the age of superannuation of teachers and other staff from 62 to 65 years. As such decision has financial implication and other consequences attached to such decision. The Court held to the following effect:-

65...in our view, there can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. The case of those Petitioners who have claimed that they should be given the benefit of the scheme dehors the responsibility attached thereto, must, therefore, fail.

In view of the aforesaid decision, the cases falling in the first category i.e. the members of the teaching faculty claiming enhancement in the age of superannuation on the basis of the Regulations framed by the Commission are without any merit.

The second and third set of cases is to seek financial assistance either in respect of unaided staff of the aided colleges or the teaching faculty of unaided colleges. The State Government in reply asserted that grant-in-aid under 95% Deficit grant-in-aid scheme is given to the colleges, who were in existence on 1.9.1978 and in respect of posts in existence in the colleges on 1.11.1977 on the condition that these posts have been created in accordance with the norms prescribed by the University or the Government and incumbents are not paid salaries out of the students funds.

The grant-in-aid is granted for the purpose of encouraging and extending enterprise in education and such grant is to be given on satisfaction of the conditions of the grant-in-aid instructions framed by the State. The entitlement of grant-in-aid and its disbursement is in terms of the policy of the State Government. Thus, the petitioners cannot seek a mandamus to seek financial assistance to comply with the condition of pay-scales fixed by the University Grants Commission. The Colleges are entitled to grant in aid in terms of the scheme framed only. In Jagdish Prasad Sharma''s case (supra), the Hon''ble Supreme Court has held, in para 65 of the order reproduced above, that there cannot be automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. Since, the claim of the petitioner has financial implication on the State, therefore, there cannot be any direction to the State Government to provide financial assistance to the unaided colleges or to unaided staff of the aided colleges. In view of the aforesaid discussion, all the writ petitions are dismissed.