M.K.Raina vs University of Kashmir

R.C. Gandhi, J.—Letter Patent Appeals (SW) Nos. 32/99, 34/99 and 33/99 are directed against the judgment and order dated February

26, 1999 delivered in SWP No. 104/99, SWP No. 2372/98, SWP No. 105/99. LPA (SW) No. 38/99 and LPA (SW) No. 39/99 are directed

against the order and judgment dated February 26, 1999, delivered in SWP No. 25/99 and SWP No. 300/99. These appeals are disposed of by

a common order as the facts and the law involved in these appeals is identical.

The appellants in LPA(SW) No. 32/99 are working as Professors in the Post Graduate Departments of Zoology and Chemistry in the

University of Kashmir. The appellants in LPA(SW) 34/99 are working as Senior Grade Lecturers in G.G.M. Science College (Camp), Jammu.

The appellants in LPA(SW) No. 33/99 working as Professors in the College of the State Government. Appellants in LPA(SW) No. 38/99 are

working as Associate Professors in SheriKashmir University of Agriculture, Sciences and Technology, Srinagar and appellant in LPA (SW) No.

39/99 is working as Director Resident Instructions, Sheri Kashmir University of Agriculture, Science & Technology, Srinagar. All the appellants

belong to the teaching cadre of the universities and Colleges of the State Government. Appellants are sought to be retired at the age of 60 years in

terms of the Service Conditions governing the appellants. They have challenged the action of their superannuation. Before the writ court, the

appellants have sought a direction to quash the action of the respondents to retire them and issue writ of mandamus, commanding the respondents

to enhance the age of retirement from 60 to 62 years alongwith consequential benefits in terms of 5th Pay Commission Report and Instructions of

the University Grants Commission.

Learned Single Judge dismissed the writ petitions placing reliance on the judgments of this Court 1998(3) SCT 722 (P&H) : reported in 1998

KLJ 248 titled Prof. A.R. Rahi v. State of Jammu and Kashmir ; 1991 KLJ 611 titled Y.N. Gupta and others v. State of Jammu and Kashmir and

others and judgment of the Hon'ble Supreme Court reported in 1992(3) SCT 140, T.P. George v. State of Kerala . Reliance is also placed on the

judgment delivered in Writ Petition No. 2022/99 by a Division Bench of the Punjab and Haryana High Court, comprising of R.S. Mongla and

V.M. Jain, JJ. The learned Single Judge while dismissing the writ petitions directed the respondentUniversity to consider the matter of enhancement

of age and take decision at the earliest. Aggrieved of the directions issued, the appellants have questioned the correctness and legality of the order

under appeals.

We have heard learned counsel for the parties and perused the memos of appeals, the orders under appeals and other relevant evidence and

record on the files.

Learned counsel for the appellants have reiterated the same submissions and grounds before us, seeking implementation of communication dated

July 27, 1998 for enhancement of the age of superannuation from 60 to 62 years. We have considered this communication which deals with the

revision of pay scales of teachers in Universities and colleges following the revision of pay scales of Central Government employees on the

recommendations of Fifth Central Pay Commission. This communication does not contain even a word with regard to enhancement of the

retirement age. However, para3 of this communication indicates that, ""It is for the State Government to take local conditions into consideration and

in their discretion, introduce scales of pay different from those mentioned in the scheme and may give effect of revised pay scales from January 1,

1996 or from later date"". The other evidence annexed with the appeals pertains to the revision of pay scales of teachers in Central Universities on

the recommendations of the 5th Central Pay Commission, which is not relevant and cannot be made applicable to the University of Jammu and

other colleges run by the State Government.

The communication dated July 27, 1998 (AnnexureA) issued by the Director, Ministry of Human Resource Development (Department of

Education) addressed to the Secretaries of all States/Union Territories, pertains to revision of pay scales of Central Government employees,

therefore, this communication also is not relevant.

Learned counsel for the appellants have argued that University Grants Commission has issued directions for enhancement of the age of teachers

from 60 to 62 years, as stated earlier, but there is no such evidence on record. Reliance is placed on communication dated July 27, 1998 issued by

the Director, Ministry of Human Resource Development. Department of Education, to the Education Secretaries of all States/Union territories for

revision of pay scales of Universities, Colleges following the revision of pay scales of Central Government employees on the recommendations of

the Fifth Central Pay Commission. The appellants are not Central Government employees, therefore, they cannot seek support from this

communication. Assuming that the scheme is framed, as contended by learned counsel for the appellants that University Grants Commission has

raised the age of superannuation of teachers of Universities and Colleges to 62, even in that case, the appellants are not entitled to this relief, for the

reason that the scheme framed by the University Grants Commission is not of binding nature and character upon the Universities run by the State

Government, such as the University of Jammu and Kashmir. It is only recommendatory in character.

The Apex Court while dealing with retirement age of teachers of private colleges visavis University Grants Commission's scheme, has agreed

with the observation of the Kerala High Court in Writ Appeal No. 223/91, which reads thus :

Though clause 26 of the Scheme provides that the age of superannuation for teachers should be 60 years, and the scheme contemplates certain

improvement in the revision of pay scales and providing for assistance in that behalf, it is not a scheme which is statutorily binding either on the

State Government or the different Universities functioning under the relevant statutes in the State of Kerala. What the State Government had done

by its order dated 13.3.1990 is to implement the UGC Scheme including revision of scales of pay in the relation to teachers in Universities

including Kerala Agricultural University affiliated colleges, Law Colleges, Engineering Colleges and Qualified Librarians and qualified Physical

Education Teachers with effect from 1.1.1986, subject however to the express condition that in so far as the age of retirement is concerned, the

present fixation of 55 years shall continue. The contention of the appellant is that the State Government having accepted the UGC Scheme, and as

the scheme provides for a higher age of 60 years, once the State Government accepted the scheme, all the clauses of the Scheme became

applicable. It is not possible to accede to this contention. Firstly, as already stated the UGC Scheme does not become applicable because of any

statutory mandate making it obligatory for the Government and the Universities to follow the same. Therefore, the State Government had the

discretion either to accept or not to accept the scheme. In its discretion it has decided to accept the scheme, subject to the one condition, namely,

in so far as the age of superannuation is concerned, they will not accept the fixation of higher age provided in the Scheme. The State Government

having thus accepted the Scheme in the modified form, the teachers can only get the benefit which flows from the scheme to the extent to which it

has been accepted by the State Government and the concerned Universities. The appellant cannot claim that major portion of the Scheme having

been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation. That is a matter

between the State Government on the one hand and the University Grants Commission on the other, which has provided certain benefits by the

Scheme. It is for the University Grants Commission to extend the benefit of the scheme, depending upon its satisfaction about the attitude taken by

the State Government in the matter of implementing the same. That is a matter entirely between the State Government on the one hand and the

University Grants Commission of the other. Teachers of the private institution concerned are governed by the Statutes framed under the relevant

statutory enactment. As long as the superannuation remains fixed at 55 years and as long as the State Government has not accepted in UGC's

recommendation to fix the age of superannuation at the 60 years, teachers cannot claim as a matter of right that they are entitled to retire on

attaining the age of 60 years.

The Apex Court, however, held that, it is not for the Courts to prescribe the correct age of retirement but that is policy function requiring

considerable expertise which can properly be done by the State Government or the University concerned.

It is admitted case of the parties that neither the State Government nor the University in their statutes have enhanced the age of superannuation

from 60 to 62 years. Unless it is prescribed and taken in the statutes book, the appellants are not entitled to seek the relief of enhancement of their

age of superannuation from 60 to 62 years. Learned Single Judge has rightly come to the conclusion by recording findings for dismissal of the writ

petitions. The appellants could not make out any case for interference. The appeals of the appellants being devoid of merit are dismissed,

upholding the order of the learned Single Judge.

Appeals dismissed.