Y.N.Gupta & Ors. vs State & Ors.

Because the point involved is the same, this common judgment shall dispose of all the writ petitions abovementioned.

The petitioners in all the writ petitions are Teachers in various Government Colleges of the State. They have been serving as Lecturers/Selection

Grade Lecturers in the Higher Education Department of the State Govt. and imparting higher education at the grad nation leval to the students in

various Degree Colleges awned and run by the State Government. The age of super nation on retirement of all the State Government employees,

excluding the class IV employees, is 58 years, as prescribed by Rule 226 of the J&K Civil Service Regulations which is reproduced hereunder for

ready reference :

226 (I) An Officer shall retire compulsorily on his attaining the age of 55 years, unless the competent authority considers him efficient and permits

him to remain in service. He may, however, be retained in service after the date of compulsory retirement with the sanction of the Government on

public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances;

(2) Provided that the Government servants who were in service on 10. 10. 1966 and were treated inferior as per Schedule II, will retire on

attaining the age of 60 years.

(3) Provided further that a Government servant in service on 1. 1, 1987 or appointed on or after that date shall retire on his attaining the age of 58

years.

The petitioners have filed these petitions for seaking the relief of enhancement in their age of superannation/retirement from 58 years to 60 years.

The petitioners are claiming this relief on the basis of the recommendations of the University Grants Commission contained in the schemes,

formulated by it and sent to the State Government.

The Government of India Ministry of Human Resources Development, Department of Education, sent letter No. F. 121/87U1 dated 17.6.1987 to

the Education secretaries of all States and Union Territories in regard to revision of pay scales of Teachers in Universities and Colleges and other

measures for maintenance of standards in higher education, Alongwith this letter a copy of the Scheme formulated by the University Grants

Commission (UGC for short) was enclosed. The subject indicated in the Government of India's letter of 17th June 1987 can be reproduced for

better understanding :

'Subject : Revision of pay Scales of Teachers in Universities and Colleges and other measures for maintenance of standards in higher education.

(Emphasis supplied)

Para 4 of the letter reads as under:

The Scheme is being implemented in the Central Universities and other institutions fully financed by the Central Government. The Government of

India have also decided to assist the State Government who wish to adopt and implement the scheme of revision of pay scales; subject to the

following terms and codditions:

(Emphasis supplied)

(1) The Central Government will provide assistance to State Government to the extent of 8O % of the additional expenditure involved in giving

effect to the revision of scales of pay.

(Emphasis supplied)

(2) The central assistance to the extent indicated above will be available for the period 1. 1. 1936 to 31. 3. 1990.

(3) The State Governments will meat the remaining 20% of the expenditure from their own resources and wilt not pass on the liability or any

portion there of to the Universities or the managements of private colleges.

(4) The State Government will take over the entire responsibility or maintaining the revised scales of pay with effect form April 1, 1990.

Para 5 of Letter, as being important, is reproduced as under:

The payment of central assistance for implementation of the scheme is also subject to the condition that the entire scheme of revision of pay

scales, together with all the conditions attached to it, is implemented by the State Government as composite scheme without any modification

except to the date of implementation and the scales of pay as indicated above. In addition, it shall be necessary for the Universities and

Managements of Colleges to make necessary changes in their Statutes, Ordinances Rules. Regulations etc. to incorporate the provisions of this

scheme;

(Emphasis supplied)

The emphasis has been supplied by me while indicating various portions of the letter of Government of India to highlight the fact that the scheme

prepared by the UGC consisted of two parts : namely the one relating to the revisions of pay scales and the other relating to ""the Other conditions

of service"" The UGC scheme was itself forwarded alongwith the aforesaid letter and a perusal of this scheme reveals that the first 24 para dealt

exclusively and absolutely with the subject of revision of pay scales and paras 25 onwards upto the end (Para 31) dealt with the subject of ""Other

conditions of service"". It is in the first 24 Paras of the scheme that the higher pay scales to be granted to the Teachers were mentioned, as also

were mentioned the conditions and various stipulations required to be observed in the matter of grant of these higher pay scales. I am saying so

because the ""other conditions of service"" contained in paras 25 onwards of the scheme, including the age of superannuation' (contained in Para 26)

were distinct from the condition and stipulations attached to the subject of revision of pay scales as contained in first 24 paras of the Scheme.

Some of these conditions attached to the questions of revision of pay scales can be summarized as under:

(1) The revised pay scales will be effective from 1.1.1986. (Para

(2) The revised scales of pay are inclusive of basic pay, the dearness pay, the dearness allowance etc. etc.

(Para 4)

(3) The revised scales of pay of Tutors and Demonstrators were for the existing incumbents of these positions in the Universities and Colleges.

There shall be no fresh recruitment to this category. (Para 5)

(4) Prescription of the rigourous and detailed eligibility criteria for recruitment to the posts of Lecturers, Readers and Professors. (Paras 7 to 10)

(5) Career Advancement. (Paras11 to 12)

(6) Careers advancement including the eligibility for placement in Selection grade on certain terms and conditions.

(Paras 13 to 15)

(7) Continuing Education and appraisal of performance, including the participation at regular intervals in appropriately designed Refresher Courses/

Summer Institutions, (Paras 23 to 24)

Whereas the above quoted conditions and stipulations were directly or undirectly the conditions attached to the revision of pay scales, in lading

the grant of higher pay scales in selection grade etc. the ""other conditions of service"" included those relating to Probation (Para 25).

Superannuation and Reamployment (Para 26).In fact, paras 25 onwards of the Scheme were preceded by a heading under ""Other Conditions of

Service"". Para 26 is reproduced verbatim below:

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

University or College to reemploy a superannuated teacher according to the existing guidelines framed by the U. G. C., up to the age of 65 years.

It was in the month of April 1988 that the State Govt. issued Govt. Order No. 167HE of 1988 dt. 20.4.1988 according sanction to the

implementation of U.G.C. Schemes. For ready reference this Govt. Order is reproduced verbatim as under:

Government of Jammu and Kashmir Civil Secretarial Higher Education Deptt.

Subject : Implementation of U. G. C. recommendations.

Reference: Cabinet decision No. 46 dt. 19.4.1988. Govt. Order No. 167HE of 1988 dated: 20.4.1988.

Sanction is accorded to the implementation of the U.G.C. Scales for Government Degree College Teachers in the Jammu and Kashmir State w. e.

f. 1.1.1988 alongwith other conditions stipulated in the U. G. C. recommendations.

By the Govt. of Jammu & Kashmir.

SdCommr. Secy, to Government, Education Department.

This order was modified by a corrigendum issued on 26.2,1991, which reads as under ;

'Please read ""subject to the"" instead of ""alongwith other"" appearing after the words w. e. f. 1.1,1988 and before the word conditions in the above

quoted order. The above correction shall and shall always be deemed to the late of issue of the said order.

By order of the Govt: of Jammu & Kashmir.

If therefore one would read the order dt. 20.4,1988 after the corrigendum it would be read as under :

Sanction is accorded to the implementation of the U.G.C. scales for Government Degree College teachers in the Jammu & Kashmir State w. e. f.

1.1.1988 subject to the conditions stipulated in the U. G. C, recommendations.

The submission of the learned counsel appearing for the petitioners is that by issuance of the Government order dated 20.4.1988, the State

Government implemented the U. G. C. scheme in to including all the conditions and stipulations contained therein, including those relating to the

date of superannuation/retirement at the age of 60 years. The petitioners grievances in these petitions, therefore, according to their learned counsel

is that inspite of the fact that vide the Government Order dt. 20.4.1988, the State Government had raised the age of retirement of the college

teachers to 60 years on the anology of the stipulations in the U. G. C. scheme, the Government has been and had been retiring the college teachers

at the age of 58 years and accordingly therefore the petitioners had sought a prohibition from this Court against the State Government restraining it

from retiring them at the age of 58 and had also sougnt a Mandamus from the court to the State Government to the effect that it should retire them

at the age of 60 years. The petitioners' case is, as argued by their learned counsel, that nothing more was required to be done after the issuance of

the Government order dated 20.4.1988, no rule was required to be amended and that this Govt. order itself was in the nature of a Rule, a piece of

legislation, or in the alternative delegated legislation as contemplated in Section 124 of the State Constitution (corresponding to Art. 309 of the

Constitution of India) The petitioners have laid great stress on the words ""alongwith other conditions stipulated in the U. G, C. recommendations"",

which however later on stood substituted by the corrigendum dated 26.2.1991, as noticed above.

In support of their submissions the petitioners have relied upon Section 12 of the U. G. C. Act and have submitted that the recommendations made

by the U. G. C. have the force of law and are binding on a State Government. They have also submitted that in view of Rule 31 of the Rules of

Business of the State Government, the Governor had delegated the powers of subordinate legislation to the Chief Minister and in that light,

therefore, the Govt. order dt. 20.4.1988 issued on the authority of the Cabinet Decision No. 46 of 19.4.1988 should be construed as a case of

subordinbte legislation by the Chief Minister State Cabinet in ""the exercise of its powers delegated to it by the Governor The learned counsel has

also referred to and relied upon the judgements in I. N. Saksena Vs. State of Madya Pradesh (AIR 1967 SC 1264); E. V. Naidu Vs. Union of

India & Ors. (AIR 1973 SC 698); Registrar Cooperative Societies & Anr. Vs. K. Kunjabmu (AIR 1980 SC 350) and S. P. Dubey Vs. M.P.

SRTC & Anr. (AIR 1991 SC 276).

Mr. G. Ramaswamy, learned Attorney General of India, on the other hand has contended that the Scheme formulated by U. G. C. and sent to the

State Government by the Government of India vide its letter dated 1761987 was not binding at all upon the State Government and that it was open

to the State Government to accept or not to accept the Scheme as a whole or in part, with such modifications or alterations that it liked. His further

contention is that the State Government ultimately accpeted only that part of the Scheme which related to the revision of the pay scales because it

was permissible to accept a part of the Scheme and accordingly the Government Order dated 20.4.1988 was issued. According to Mr. G.

Ramaswamy the wording of the Government Order is explicit and quite clear in terms to the effect that it covered only the subject of the revision of

pay scales. The plain reading of the Government Order in question would leave no one in doubt, according to Mr. G. Ramaswamy that it could not

and did not cover the subject of the age of retirement of College teachers. According to Mr. G. Ramaswamy even if the Government order in

question was to be read in such a manner that it covered the subject of enhancement in the age of retirement to 60. years, yet in could at best be

construed to be an intention or a policy decision of the Government to enhance the age of retirement and that the actual enhancement of such age

of retirement could only be accomplished and given effect to by suitably amending Rule 226 of the J&K C. S. R., which provided for the age

retirement of Government employees at 58 years. Mr. Ramaswamy's contention is that under section 124 of the State Constitution, the Governor

alone is the authority to regulate the recruit merit and conditions of service of persons appointed to public services and posts in connection with the

affairs of the State. The respondents case is that by a mere administrative/executive order, the age of retirement of a Government servant could not

be increased as the petitioners want the Government Order dated 20.1.1988 to be interpreted and that this being squarely covered in the field of

legislative enactment, was possible only under Section 124 of the State Constitution, by way of an enactment in the exercise of the plenary

legislative powers of the State Governor Mr. G. Ramaswamy has relied upon and referered to the judgments of the Supreme Court in the case of

B. S. Vedera and Anr. Vs. Union of India & Ors. reported in AIR 1969. SC 118; State of Assam & Anr. Vs. Ajit Kumar Sarma & Ors.

reported in AIR 1965 SC 1196; Kumari Regina Vs. St. Aloysius Higher Elementry School and Anr. reported in AIR 1971 SC 1920; State of

Maharashtra Vs. Association of Maharashtra Education Service etc. reported in AIR 1974 SC 2184 and Shamsher Singh Vs. State of Punjab &

Anr. reported in AFR 1974 SC 2192.

I have beard learned counsel for the parties and perused the record.

Rule 226 of the J&K C. S. R. was framed by the State Government in exercise of the legislative powers of the State Government under

Section 124 of the of Constitution of Jammu and Kashmir. Section 124, which is parametria to Article 309 of the Constitution of India is

reproduced below :

Recrurtment and conditions of service of persons serving the State.

Subject to the provision of this Constitution, the Legislature may by law regulate the recruitment, and conditions of service of persons appointed, to

public service and posts in connection with the affairs of the State:

Provided that it shall be competent for the Governor or such person as he may direct, to make rules regulating the recruitment, and the conditions

of service of persons appointed, to such services and posts until provision in that behalf is made by under an Act of the Legislature under this

section and any rules so made shall have effect subject to the provisions of any such Act.

In the case of B. S, Vadera (Supra) the Apex Court while dealing with the extent of the powers under Article 309 of the Constitution of India

had clearly laid down that in the absence of an act of legislature, the Governor or his delegate had the power to make rules regulating the

recruitment and the conditions of service of persons appointed to services. It will be advantageous to reproduce the relevant extract of the

judgment in B, S. Vadera's case as under:

It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions

of any such Act. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless

hedgedin, by any limitations. The rules, which have to be subject to the provisions of the Constitution, shall have effect, subject to the provisions of

any such Act."" That is, if the appropriates Legislature has passed an Act, under Article 309, the rules, framed under the proviso, will have effect,

subject to that Act; out, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the president, or

by such person as he may direct, are to have full effced, both prospectively and retrospectively. Apart from the limitations, pointed out above,

there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they

can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate

authority.

In Shamsher Singh's case (supra) the Court while dealing with the powers of the Governor visavis his council of Ministers under the scheme of

the Constitution observed as under :

30, In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and

advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the

Government of State respectively or by allocation among his Ministers of the said business in accordance with Articles 77 (3) and 166 (3)

respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the

President or the Governor, as the case my be as for example in Articles 123, 213, 311 (2), Proviso (c). 317, 352(1), 356 and 360 the satisfaction

required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the

Governor in the constitutional sense under the Cabinet system of Govt. The reasons are these. It is the satisfaction of the Council of Ministers on

whose aid and advice the President or the Governor generally exercises all his powers and functions. Naither Article 77 (3) nor Articles 166 (3)

provides for any delegation of power. Both Articles 77 (3) and 166 (3) provide that the President under Article 77 (3) and the Governor under

Article 166 (3) shall make rules for the more convenient transactions of the business of the Government and the allocation of business among the

Ministers of the said business. The rules of business and the allocation among the Ministers of the said business all indicate that the decision of any

Minister or Officer under the rules of business make under these two Articles viz., Article 77 (3) in the case of the President and Article 166 (3) in

the case of the Governor of the State is the decision of the President or the Governor respectively.

In the light of the above observations of the Apex Court it cannot be said that in fact it is not the personal satisfaction of the Governor but the

Minister's concerned or the Council of Ministers, as the case may be, to have the powers to frame rules under Section 124 of the State

Constitution for regulating the recruitment and the conditions of service of the Government servants. The argument of Mr. Ramaswamy, therefore,

that the Governor alone under his personal signatures had the power under section 124 of the State, Constitution to legislate on the subjects

covered by this section, is untenable and cannot be accepted.

Age of retirement/superannuation is decidedly a condition of service and no one can contest or dispute this proposition of law. It was,

therefore, under Section 124 of the State Constitution for the State Legislature to regulate by law such a condition of service and until the State

Legislature enacted such an Act regulating such a condition of service, it was open to and competent for the Governor or his delegate to make

rules regulating such condition of service, A plain reading of Section 124, therefore as also in the light of the observations made in the case of B. S.

vadera (supra), would bring one to an irresistable conclusion that the power under section 124 of the State Constitution is one of planary legistalion

and not that of subordinate or delegated legislation. It is a different matter that the Governor himself is not required personally to exercise that

power in a democratic set up when a popular government is in existence. That is clearly stipulated by a combined reading of Sections 35, 43 and

44 of the State Constitution. The legal position which thus can be summerized is that enhancement in the retirement age of a government servant,

being a condition of service, cannot Be effected by a mere administrative/executive order of the government and has to be accomplished by a

legislative enactment under Section 124 of the State Constitution. The question to be seen and examined presently is whether the Government

Order dated 20.4.1988, which is the only instrument of the state having a bearing on the subject matter, referred to and relied upon by the

petitioners, has covered the subject of the enhancement in the retirement age of College teachers and if it has, can it be given effect to and

implemented and enforced, on being construed as an act of planary legislation under Section 124 of the State Constitution.

In the case of T. N. Saksena vs, State of M. P. reported in AIR 1967 SC 1264, the Supreme Court was dealing with the question whether the

memorandum issued on 28.2.1963 by Government of Madya Pradesh prescribing for the retirement of all Government employees at the age, of

58 years, had the force of law, even before the amendment in the statutory rules to the same effect. In this case the memorandum was issued by

the State Govt. on 28.2.1963 expressing State Government's intention to raise the retirement age of its employees to 58 years. As per the

memorandum itself it was to come into effect from 1.3.1963. It was only on 29.11.1963, however, that the relevant amendment for fundamental

Rule 56 was carried out and this amendment in the rule was published in the Govt. Gazette on 6.12.1963. The Supreme Court while dealing with

the question held that in view of the specific provision of Article 309 of the Constitution of India, this could not be done by issuance of a

memorandum and could be done only by amendment of the relevant rule. The Court observed as under:

It is one thing to issue rules and thereafter incorporate them in the Civil Service Regulations; it is quite another thing to issue a memorandum of (his

nature which is merely a letter from Government to alt the Collectors with the specific direction that necessary amendments to the State Civil

Service Regulations will be issued in due course. It is true that the letter says that the order will have effect from March 1, 1963, but that does not

make the memorandum of the State Government a rule issued under Art, 309, when it is said in the memorandum itself that necessary amendments

to the State Civil Service Regulations will be issued in due course. We have already set out the relevant parts of the memorandum and the very first

sentence shows that the memorandum is merely an executive direction and rot a rule, for we cannot understand how a rule could be in the

following words, namely ""The State Government have decided that the age of compulsory retirement of State Government's servants should be

raised to 58 years,"" The very form of these words shows that it is conveying an executive decision of the State Government to Collectors to be

followed by them and is not a rule issued under Art. 309. of the Constitution. The form in which a rule is issued under Art. 309 is clear from what

happened on November 29, 1963 when the amendment was actually made. We have set out that already, and the contrast in the language would

show that the latter was a rule while the former was merely an executive instruction by Government to its Collectors with a copy to the High Court,

the Finance Department and the AccountantGeneral.

This judgment was pronounced by the Court on 30.1.1967 by a Bench of two Judges, K. N. Wanchoo and V. Ramaswami JJ.

In a later judgment, however, in the case of E. V. Naidu vs. Union of India, reported in AIR 1973 SC 698, the Court held a similar

memorandum to be having force of law. In this case the Court was dealing with the question whether the memorandum dated 30.11.1962 issued

by the Govt. of India Ministry of Home Affairs, raising the retirement age of government employees to 58 years itself had the force of law, even

though the relevant Fundamental Rule was amended after almost three years i.e. on 21.7.1965. The Court observed as under in para 6 of the

judgment:

The first of the three points urged before us is that the notice retiring the appellant compulsorily is invalid as the office Memorandum on the

strength of which it was issued, did not have the force of a rule made under Article, 309 of the Constitution. This contention is based on Paragraph

8 of the Memo randum which provided that. 'The amendment of the relevant rules covering the All India Services so as to make these orders

applicable to the members of those services is being undertaken in consultation with the Slate Governments."" We see no merit in the contention.

Article 309 provides that subject to the provisions of the constitution, Acts of the appropriate Legislaturernay regulate the recruitment and

conditions of service of persons appointed to public services and posts to connection with the affairs of the Union or of any State. In regard to

services and posts in connection with the affairs of the Union, the proviso to Article 309 empowers the President to make rules regulating the

recruitment and conditions of servants appointed to such services and posts until provision in that behalf is made under an Act of the appropriate

Legislature. The rules so made by the President are effective subject to the provisions of any such Act. 2 of the Office Memorandum in terms

recites, that"" the President is pleased to direct that the age of compulsory retirement of Central Government servants should be 58 years"", subject

to certain exceptios, Paragraph 8 of the Memorandum merely restates with particularity the true legal position which obtains under the proviso to

Article 309. Nothing stated in that paragraph is capable of the construction that the Office Memorandum was not to be effective until Fundamental

Rules were consequently amended. In fact, by Paragraph 7 the provisions of the Memorandum were given express effect from December 1.

1962.

We have before us two contrary views and judgments of the Apex Court, one in I. K. Saksena's case and the other in E. V. Naidu' case. As

noticed above. L K, Saksena's judgmsnt was delivered in 1967 by a Bench of two Hon'ble Judges, whereas E. V. Niidu's judgment was delivered

much later on 9.1.1973 by a Bench of three Hon'ble Judges, H. R. Khanna. Y. V. Chandrachud and C. A. Vaidialingam JJ. The judgment in E. V,

Naidu's case will have precedence over that of I, X. Saksena and would, therefore, be the law of the land, The conclusion, therefore, is that the

office Memorandum by itself, if validly issued by the Government can stipulate and prescribe the raising in the retirement age of Government

servants, even without formally emending the relevant service rules in terms of Article 309 of the Constitution of India (Section 124 of the State

Constitution ) The contention of the learned Attorney General, therefore, that the raise in the retirement age of the government employees could be

effected only by suitably amending Rule 226 of the J&EC C. S. R. is negatived because of the judgment of the Apex Court in E. V. Naidu's case

(supra) and it is held on the force of the aforesaid judgment that if the Government Order Dated (20.4.1988 contains a stipulation and an

expression of intention of the government about the raising of the age of College Teachers from 58 to 60 years, this by itself will amount to a Rule

having the force of the law and would thus be enforceable by the petitioners against the respondentState.

The Government Order dated 20. 4. 1988 has been reproduced earlier in the judgment and its plain reading, on its very face talks about the

grant of U.G.C. scales to College Teachers. First of all it has to be seen whether the scheme formulated by the U.G.C. was binding upon the State

GjvirnnJit is its entirety and wether it was obligatory for the State Government to implement the scheme as a whole.

In the case of State of Assam & Anr. vs. Ajit Kumar Sarma & Ors. reported in AIR 1965 SC 1196, it has been cleanly held that it is for the

Colleges or the State Government, as the case may be, to accept or not to accept the recommendations or the Grantsinaid from the University

Grants Commission and that these in any event are not binding upon the Colleges or the State Governments. The Court has even gone to the extent

of holding that even after accepting the recommendations of the U.G.C. in their entirety, if a particular college does not implement the scheme and

commits any breach of the terms there of, a teacher by himself will have no cause, of action, against the College concerned and it will net be open

to such a teacher to agitate the matter or to enforce the Scheme or a part thereof. In such a case the Government would have the right to with hold

the grantinaid. The relevant extract from Para 11 of the judgment of the Court is reproduced below:

If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions the Government

will naturally have the right to withhold the grantinaid. That is however a matter between the Government and the private college concerned. Such

conditions arid instructions as to grantinaid confer no right on the teachers of the private colleges and they cannot ask that either a particular

instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry

out any direction contained in mere administrative instructions laying down conditions for grantinaid. Further it is open to the Governing Body not

to carry out any such instruction which is not based on rules having force, and it will then be naturally open to the State to consider what grant to

make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried under any threat.

It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grantinaid

beingas in this case merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus

asking for the enforcement or nonenforcement of the roles, even if indirectly there may be some effect on them because of the grantinaid being

withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and the

State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by a teacher.

The same view was expressed in a subsequent judgment of the Supreme Court in the case of Kumari Regina vs. St. Abysms Higher

Elementary School & Anr, reported in AIR 1971 SO 1920, where the Court held as under:

The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules, upon the

management. But the enforcement of such rules is a matter between the government and the management, and a third party, such as a teacher

aggrieved by fame order of the management can not derive from the rules any enforceable right against the management on the ground of a breach

or noncompliance of any of the rules. To illustrate the point, suppose the management of a school were to terminate the service of a teacher after

giving one month's notice, or one month's salary in lieu there of in accordance with the contract of employment between the teacher and the

management, such a termination would be valid. But the Government can insist that since its rules provide for three month's notice the management

cannot terminate the service of a teacher by giving only one month's notice. Though, in the absence of a statutory provision having the effect of

controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the

Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were

not complied with. But that does not mean that Part II Rules confer upon a third party, viz, an aggrieved employee of a school, any remedy

enforceable at law in the event of the management of an elementory school refusing to comply with these rules which, inter alia, enjoin upon a

school to abide by the directions given there under by the education officers of the Government named therein.

In fact still another judgment of the Supreme Court in the case of State of Maharashtra & Ors. Vs. Association of Maharashtra Education

Service etc. & Ors. reported in AIR 1974 SC 2184, started with the premises about serious doubts on the question whether the recommendation

of U. G. C. could give rise to cause of action. The question posed by the Court was reflected in the very opening part of the judgment which is

noticed as under:

It is open to grave doubt whether recommendations of a body like the University Grants Commission can give rise to rights and obligations

enforceable in a court of law but of that we shall say nothing as every one concerned approached the questions on the assumption that the petition

raised a justiciable issue.

Notwithstanding the aforesaid clear and unambiguous position of law, a look at the government order dated 20.4.1988 clearly stipulates that the

sanction was accorded to the implementation of U. G. C scales for teachers in Degree Colleges. In the opening paras of this judgment I have

reproduced certain extracts from the letter dated 17.6.1987, the Scheme of the U. G. C. and other documents and even supplied emphasis on

certain portions of these documents to show that the U. G. C. Scheme consisted primararily of two parts, one dealing with the grant of higher

scales to College Teachers and the other with other conditions of service, including the raising of the retirement age to 60 years. In fact, the

Government Order dated 20.4.1988 is based on the Cabinet Decision 46 of 19.4.1988. I have seen this cabinet Decision also in original and have

also perused the notings on the files of the Administrative Department, produced before me for my perusal ... perusal of the Cabinet Decision and

the notings on the file leaves me with no doubt whatsoever that the intention of the Government in issuing Government Order dated 20.4.1988 was

limited to the grant of U. G. C. scales to the teachers and the question of raising of the retirement age to 60 years could not be imported into the

ambit and scope of this Government Order and, therefore, that part of U. G. C. Scheme dealing with the raise in the retirement age could not be,

even by a fiction of law, read into this Government Order. It is, no doubt, true that the U. G. C. Scheme recommended to the State Governments

to raise the retirement age from 58 to 60 years but, as noticed above and in the light of the discussion about the entire law on the subject, it was

upto the State Government to have accepted or not accepted the recommendations of the U. G.C. with or without modifications. It is also held

that the question of the Central Government bearing 80% of the expenditure towards the grant inaid is also a moot question, notwithstanding Mr.

G. Rarnaswamy's assert on that the State Government did not receive any grantinaid from the Central Government. As I have noticed above, para

4 of the letter dated 17.6.1987 clearly stipulated that the Government of India was to Bassist the State Governments who wiched to adopt and

implement the scheme of revisions of pay scales. I have reproduced relevant extracts from this letter with emphasis and it clearly suggested that the

Central Government had promised to assist the State Governments to the extent of 80% of the additional expenditure involved in the matter of

revision of pay scales alone. The financial assistance by the Central government to the State Government was, therefore, promised, and assured

only in the matter of revision of pay scales, unconnected with other conditions of service. It was understandable also because the revision of pay

scales alone was 'to entail additional financial burden requiring central assistance. The argument of the learned counsel for the petitioners, therefore,

that because the State Government had accepted the central financial assistance, it was bound to raise the retirement age also, is totally fellacious

and misconceived and is accordingly rejected.

Learned counsel for the petitioners have laid a great stress on the interpretation of the Government Order dated 20.4.1988 in the light of the

expression ""alongwith other conditions stipulate in the U. G. C. recommendations which were later on substituted by the words subject to the"".

Their argument is that the sanction was accorded by the State Government in the Government Order dr. 20.4.1988 to the implementation of the U

G C. scales alongwith and subject to all the other conditions contained in the U. G. C. scheme. In other words, their argument is that the entire U.

G. C. Scheme, including the parts concering other conditions of service, was sought to be implemented in the afore said government orders. The

argument is quite attractive if one looks at the wording of the government order, but if one goes behind into the scope of the scheme and its

thorough analysis, one would understand the real intention behind the use of the expression ""alongwith other conditions stipulated in the U. G. C.

recommendations"" later substituted to read as subject to the conditions stiputlated in the U.GC. recommendations."" Conditiions and stipulations,

which the government order meent to convey were admittelly these which were required to be observed in the matter of grant of the pay scales

and which were directly or indirectly connected with that subject matter. No other meaning can be attached to that expression. As noticed in the

earlier part of this judgment, the U. G. C. Scheme itself had provided for certain very tough and stiff conditions and stipulation in the matter of grant

of U. G. C. Scales and it was therefore natural for the State Government to have insisted that the grant of U. G. C. scales, was subject to these

stiff and tough terms and conditions. As I have noticed earlier, these terms and conditions were contained in first 24 paras of the U. G. C. scheme

and in order to entitle the College teachers for the grant of higher pay scales naturally the Government would have insisted on certain conditions

being fulfiled on their part also. It was in this background therefore that the expression ""alongwith other conditions"" later on substituted by subject

to other conditions"" was used To insist that this expression meant that the U. G. C. Scales were given alongwith all other benefits in the scheme is

to import something into the Government Order which if never meant to convey. If any doubt was still left in somebody's mind, there would be no

better way of clearing it than having a cursory look at the J&K Degree College Teachers (Pay) Rules, 1988. These Rules, in fact, were framed by

the State Government in exercise of the powers conferred by proviso to Section 124 of the State Constitution and were decidedly the follow up

action to the Government Order ""dated 2041988, That becomes more clear because"" the Government Order dt. 20.4.89 way only an expression

of intention on the part of the Government to the grant of U. G. C. scales and that intention ultimately was given concrete shape in the form of the

aforesaid statutory rules. Rule 5 of these Rules gives concrete shape and structure to the intention of the Govt. in granting U.G.C. scales to college

teachers. As per Rule 5 the revised pay scales based on the pay Scales of U.G.C. were allowed to the College teachers of the J&K State. Rule 5

was followed by various other rules in which certain conditions and stipulations were prescribed for different pay scales, including the conditions

about the fixation of pay in the revised scale, the completion of 16 years of service by college teachers, the grant of increments, the placement by

promotion to the posts of Senior Scale Lecturers, Selection Scale Lecturers/Readers and Principals on certain terms and conditions including those

dealing with the prescription of conditions for possessing higher qualifications. A cursory look at all those rules, following Rule 5. would leave no

one in doubt that these were the conditions and stipulations contained in paras 1 to 24 of the U.G.C. scheme relating to the revision of pay scales

which were intended to be followed on the grant of revision of pay scales and which were thus mentioned in the Government Order dated 20.4.

1988 There is still another angle to this controversy which revolves around of the plain reading of the Government Order. Had the State

Government desired and intended to accept para 26 of the U.G.C. Scheme about the raising of the retirement age, nothing prevented it from

specifically saving so and mentioning about the same in the government order, To my mind, the raising in the retirement age was a more important

issue than to grant U.G.C. Scales and therefore if the government had intended in that direction, it would have surely said so in the Government

Order. As I have already noticed, recommendetions of the U.G.C. do not have any force of law and are not binding upon the State Government.

Reference to Section 12 of the U.G.C. Act was therefore, totally extraneous because, whereas Section 12 of the Act prescribed some laudable

objectives to be achieved by the U.G.C. it could not by even the wildest stretch of immagination be ever construed to mean that the

recommendations of the U.G.C. were binding on any State Government in any manner.

Mr. J. S. Kotwal during the course of arguments drew my attention to Letter No. EdColl/WP61/90 Dated 1. 11. 1990 written by the

Additional Secretary to Govt. Higher Education Department to the Deputy Secretary to Government of India Ministry of Human Respurces

Development and the Secretary University Grant Commission. In this letter the Stale Government has mentioned about the grant of U.G.C. scales

to the teachers w.e.f. 1.1.1990 and consequently the formulation of the relevant rules on the subject namely the J&K Degree College Teachers

(Pap) Rules 1988, A perusal of this letter does reveal that its author appeared to be under a feeling or, whatever one may call an apprehension,

that the grant of 80% financial assistance from the Cantral Government was dependant upon the implementation of the entire U.G.C. Scheme,

including the part dealing with the raising of the retirement age to 60 years. The relevant extracts from this letter are reproduced as under:

Now, in the process of implementation of the scheme State Government after taking local conditions into consideration is unable to implement the

condition of age of superannuation for teachers in the colleges. The age of superannuation earlier of State employees including college teachers was

55 years. The Government have very recently raised the age of superannuation of its employees including college teachers from 55 years to 58

years. The State Government feels that to raise the age of superannuation of a section of teacher of colleges leaving aside a huge chunk of teachers

and other employees working in the State will create good deal of resentment and an anomolas situation. In order, therefore, to keep the age of

superannuation at a uniform state of 58 years of all the employees of State it is or necessary to fix the age of superannuation of college teachers at

58 years instead of 60 years. This system is being followed by the State Government of Kerala, where the UGC pay Scale Scheme is being

implemented w. e. f. 1.1.1986 The age of superannuation of University teachers have been fixed at 60 years and that of teachers in affiliated

colleges the age is fixed at 55 years. As against this, the Jammu and Kashmir State has fixed the superannuation age for all of its employses at 58

years.

The letter went on to say further;

In order to process the demand of age of superannuation at 60 years some of the college teachers have filed a writ against the State Government

and the U.G.C. has also been arraigned party to it. To defend the said writ petition in the Court it becomes all the more necessary to modify the

order issued in regard to the implementation of UGC pay scale by the State Govt. to the extent, that the age of superannuation of college teachers

would be 58 years and not 60 years as envisaged in UGC scheme. This action, the State Government can take only with the approval of

Government of India, and University Grants Commission.

A great stress was laid by Mr. Kotwal on the last sentence referred above, namely, this action the State Government can take only with the

approval of Government of India and University Grants Commission.

I have quoted the relevant extracts of the aforesaid letter in order to appreciate the point raised by Mr. Kotwal in its true perspective. I must

say that the anther of the letter did not understand the true concept of the Scheme of the U.G.C. and all the implications and corresponding

obligations in the ""matter of the implementation of the scheme, particularly, whether the scheme was itself binding upon the State Government and

whether the State Government was at liberty to implement the scheme at all and even if so with modifications or alterations. It appears that the

author of the letter, entertained unnecessary apprehensions, possibly because of the pendency of writ petitions in this Court. The existence of a

letter therefore by a misguided and uniformed government official cannot change the complexion of a case, particularly in the light of the

unassailable position of law existing on the subject.

In the result, therefore, it is held in clear and unambiguous terms that"" the Government Order dt. 20.4.1988 dealt with the grant of sanction to

the implementation of the U.G.C. Scales to the teachers of Government Degree Colleges w. e. f. 1.1.1988 alone and did not deal with the question

of the raising of the retirement age of these teachers in any manner whatsoever. Because of the unambiguous wording of the Government Order, as

discussed above, the question of the raising of the retirement age of the teachers of Government Degree Colleges could not be at all imported into

the scope of the subject matter covered by the said Government Order. Consequently, therefore, it is held that the petitioners have not been able

to make out any case for the grant of reliefs prayed for by them.

These petitions are, therefore, dismissed alongwith all connected CMPs. and the interim directions issued shall stand vacated.

There shall be no order as to costs.

After the judgment was pronounced Mr. Kotwal submitted that it will be in the interest of justice if the interim directions already issued are

allowed to continue for one week from today, irrespective of the dismissal of the writ petitions, I order accordingly.