Subhash Gupta vs State of H.P. and Another

Rajiv Sharma, J.—Petitioner was working as a Principal in Government College at Bilaspur at the time of filing of the present petition on 23.11.2010. He was to superannuate after attaining the age of 58 years on 30.11.2010. Case of the petitioner, in a nut-shell, is that the respondent-State is not implementing Annexures P-2, dated 31.12.2008 and P-3, dated 11.05.2010, whereby the age of superannuation has been increased to 65 years. Case of the respondent-State, in a nut-shell, is that determination of age of superannuation is a policy matter and the State Government has not adopted these letters for the purpose of superannuation.

Mr. Adarsh K. Vashishta, learned counsel for the petitioner, on the basis of Annexures P-2, dated 31.12.2008 and P-3, dated 11.05.2010, has vehemently argued that it was incumbent upon the respondent-State to increase the age of superannuation from 58 to 65 years.

Ms. Meenakshi Sharma, learned Additional Advocate General has vehemently argued that in order to increase the age of superannuation, the scheme is required to be adopted in its entirety and an amendment is also required to be made in the Recruitment and Promotion Rules for increasing the age from 58 years to 65 years.

Mr. Adarsh K. Vashishta, learned counsel for the petitioner has drawn the attention of the Court to Annexure P-2, dated 31.12.2008, whereby the age of superannuation for teachers in Central Educational Institutions has been increased to 65 years. He has also drawn the attention of the Court to Annexure P-3, dated 11.05.2010. He has referred to paragraph No. 4, according to which, the scheme, dated 31.12.2008, is to be implemented as a composite one including the age of superannuation. The petitioner has not placed on record the complete set of Scheme, dated 31.12.2008. However, the same has been made available by the State.

According to Clause (v) of sub para (p) of para 8 of the Scheme, it could be extended to Universities, Colleges and other higher educational institutions coming under the purview of State legislatures, provided State Governments wished to adopt and implement the Scheme subject to the terms and conditions contained therein. The State Government has not adopted the Scheme in its entirety. It was for the State whether to adopt the Scheme or not. The State Government as per its reply has only adopted the Scheme for the release of pay scales.

In a similar case, reported in T.P. George and Others Vs. State of Kerala and Others, their Lordships of the Hon''ble Supreme Court have held that the U.G.C. scheme was not binding on State Government or the Universities functioning under relevant statutes in the State and the State Government has discretion either to accept in full or in modified form or not to accept the scheme. Their Lordships have held as under:

We may clarify the scheme referred to as UGC (University Grants Commission) Scheme of 1986, framed by the Government pursuant to the Malhotra Committee''s Reports. We may further point out that it is clear from paragraph 4 of the circular dated June 17, 1987, addressed by the Ministry of Human Resources Development, Department of Education, to the Education Secretary of all States/UTs (Union Territories) that the adoption of the scheme was voluntary, and the only result which might follow from the State Government not adopting the scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80 percent of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the scheme.

We may further point out that the teachers in Universities are governed in respect of their conditions of service and the age of retirement by the separate statutes made by the Universities concerned. On the other hand the teachers in private colleges or affiliated colleges are governed in respect of their conditions of service by regulations or rules framed by the Government (separate state (sic set) of Statutes). In these circumstances, the two classes of Universities teachers and teachers in private colleges cannot be regarded as similar for purposes of conditions of service as to bring the case under Article 14 of the Constitution.

The aforesaid judgment has been relied upon by their Lordships of the Hon''ble Supreme Court in B. Bharat Kumar and Others Vs. Osmania University and Others, . Their Lordships have held that the State Government was not bound to raise superannuation age as the UGC scheme was voluntary. Plea based on Entry 66 in List I and Entry 25 in List III of the Constitution was not accepted, because according to their Lordships there was no conflict between Central and State legislation in view of voluntary nature of the scheme. Their Lordships further held that determination of the retirement/superannuation age falls within the ambit of policy decision. Their Lordships have held as under:

We would, therefore, first examine as to whether the two Division Benches have rightly relied upon the said judgment held against the appellants. We have examined the judgment in extenso. This is also a case where the UGC had floated a scheme in 1986 which was framed by the Central Government pursuant to the Mehrotra Committee Report. In that scheme there was a Circular dated 17.6.1987 addressed by the Ministry of Human Resource Development, Department of Education to the Education Secretaries of all the States, UTs and it was clearly mentioned therein that the adoption of the scheme was voluntary and the only result follow from the State Government not adopting the scheme might be that the State Government may not get the benefit of the offer of reimbursement from the Central Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay-scales as recommended by the scheme. Therefore, the factual situation was almost identical as in the present case. This Court approved specifically a paragraph in the Kerala High Court judgment which we have already quoted earlier in this judgment in para 5. In that the Kerala High Court had specifically rejected the contention that the State Government having accepted the UGC scheme and as the scheme provided for the higher age of 60 years, the clause of the scheme regarding age of retirement also would become applicable. The Kerala High Court had specifically further observed that the UGC scheme did not become applicable as it was not obligatory for the Government and the Universities to follow the same. The Kerala High Court read a discretion in the State Government to accept or not to accept the scheme.

The situation is no different in the present case also. The very language of the letter dated 27.7.1998 suggests that the scheme is voluntary and not binding at all. Further it is specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it suggested in the scheme which scheme was itself voluntary and not binding. The Court clearly observed that "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". The Court therein observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. It was lastly clearly observed that as long as the State Government has not accepted the UGC''s recommendations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years.

Inspite of our best efforts, we have not been able to follow as to how the judgment of the Kerala High Court, which has been approved by this Court is, in any manner, different from the factual situation that prevails here in this case. It is for that reason that we have extensively quoted not only the aforementioned letter dated 27.7.1998 but also the subsequent letters and the further policy statement. Plain reading of all these is clear enough to suggest that the scheme was voluntary and it was upto the State Governments to accept or not to accept the scheme. Again even if the State Government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State Government. In fact the subsequent developments suggest that the State Government has not chosen to accept the scheme in full inasmuch as it has not accepted the suggestions on the part of the UGC to increase the age of superannuation.

Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the subsequent arguments of Mr. Rao regarding Entry 66 in the List I vis-�-vis Entry 25 in List III. In our opinion, the communications even if they could be heightened to the pedestal of a legislation or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-�-vis the State Government and the Universities. We, therefore, do not find any justification in going to the Entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and specifically suggest it to be voluntary.

For the similar reasons we do not see as to why the judgment in T.P. George''s case is not applicable to the present case. A very serious argument was raised by the learned counsel that the judgment stood overruled by Yashpal''s case. We do not think so. Yashpal''s case was on entirely different issue. There the controversy was relating to a legislation creating number of universities. The question there was as to whether the State Government could create so many universities and whether the legislation creating such universities was a valid legislation, particularly in view of the fact that the subject of higher education was covered under Entry 66 of List I. Such is not the subject in the present case. Here is a case where there is no legislation. Even if we take the scheme to the higher pedestal of policy statement under Article 73 of the Constitution, the scheme itself suggests to be voluntary and not binding and the scheme itself gives a discretion to the State Government to accept it or not to accept it. If such is the case, we do not see the relevance of the Yashpal''s case in the present matter. Once this argument fails, the reference to the other cases which we have referred to earlier also becomes unnecessary. In our considered opinion all those cases relate to the legislative powers on the subject of education on the part of the State Government and the Central Government. In the present case we do not have any such legislation for being considered. Where the scheme itself gives the discretion to the State Government and where the State Government uses that discretion to accept a part of the scheme and not the whole thereof, it would be perfectly within the powers of the State Government not to accept the suggestion made by the scheme to increase the age of superannuation.

Learned counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is not for this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the Legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified into doing so.

Since the Scheme has not been adopted by the State in its entirety, no mandamus can be issued to the State Government to increase the age from 58 years to 65 years on the basis of Annexures P-2, dated 31.12.2008 and P-3, dated 11.05.2010. Moreover, it is a policy matter and the scope of judicial review in these matters is very limited. The age cannot be increased merely on the basis of Annexures P-2, dated 31.12.2008 and P-3, dated 11.05.2010. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.