PROF.(DR.)JAGDISH PD.SHARMA v. THE STATE OF BIHAR

Mr. Raghav Prasad, counsel for the petitioners in some of the writ applications, has drawn my attention towards the different executive instructions, issued by the State Government in the matters of revision of pay scales of University/ College teachers on the basis of the request letter issued by the Government of India as recommended by the UGC. The UGC recommendation issued at the relevant time, related to revision of pay scales as well as enhancement of age of retirement were adopted/implemented by the State Government through executive instructions. Such executive instructions are contained in letter no.185 dated 24.1.1976, letter no.1044 dated 7.8.1989 and letter no.1300 dated 10.7.2001. The State Government had revised the pay scale and also enhanced the age of retirement, on the basis of Government of India letters, whereby a request was made to the State Government to consider the question of implementation of revision of pay scales of the University/ College teachers of the State as recommended by the UGC as a composite scheme. In the past the State Government has implemented the UGC 12 recommendations as a composite scheme on the basis of letters issued by the Government of India, department of Higher Education, as such there is no reason to say that the letter dated 31.12.2008 and

28.2.2009 are not sufficient for enhancement of age from 62 years to 65 years under the provisions of Section 64 of Patna University Act, 1976 and Section 67 (a) of State Universities Act, since these letters are mere communications. The State has filed supplementary counter affidavit and second supplementary counter affidavit. In the second supplementary counter affidavit, a letter of the UGC bearing letter no.F.1.6/2009/PRC dated 27.2.2009 has been annexed in which reference of letter issued by the Government of India, Human Resources Development dated 31.12.2008 has been made. In this letter it has also been mentioned that commission is in the process of finalizing the regulation in consultation with the Stake holders. In course of argument, Counsel fro the State has stressed upon the formulation of regulation and submitted that unless a regulation is framed, mere communication is not enough to implement the recommendation of the UGC under the statutory provisions of the Universities Act. Section 26 of the UGC Act relates to power to make regulation. Subjects on which the regulation can be framed, do not include enhancement or reduction in the age of retirement. The UGC in its counter affidavit has also not stated that on any earlier occasion, a regulation has been framed by the 13 UGC relating to age of retirement of University/College teachers. Mr. Lalit Kishore, has raised a preliminary objection regarding maintainability of these writ applications stating that these are pre-mature, in view of clause 8(p) (v) (g) of Annexure 6 i.e. letter dated 31.12.2008. Sub-Clause (v) indicates that State Govt. will have to adopt the scheme as a composite scheme, with all conditions laid down by the U.G. C. It is not possible to simply enhance the age of retirement, without adopting all recommendations. Counsels for petitioners, in reply have submitted that, they are claiming enhancement of retirement age not only because U.G.C. has taken a decision to enhance age, which is one of the items of the composite Scheme, but for the reason that on account of such decision, under Section 64 of Patna University Act and Section 67(a) of State University Act, State is bound to enhance age of retirement. Petitioners‟ prayer is not pre-mature, rather State Govt. is deliberately denying fulfillment of petitioners‟ vested statutory right. In support of this submission, reliance has been placed on a decision reported in, A.I.R. 2006 S.C. 365( Harvindra Kumar Vs. Chief Engineer, Karmik and others). In this case Regulations were framed by the Jal Nigam specifically enunciating in Regulation 31 thereof that the Rules governing the service conditions of Government Servants shall equally apply to the employees of the Nigam. State Govt. enhanced age of retirement of its employee from 58 to 60 years. It was held, that amendment made in R.56 (a) of Fundamental Rules enhancing age of superannuation of State employees, would be applicable to 14 employees of Nigam. Similarly in the reported decision 2006(1) PLJR 507 (Balsharan Ojha Vs. B.R.A. Bihar University and analogous cases), it was held that, once by a statute it has been held out that the employees of the University shall be entitled to gratuity at the same rate as applicable to the State Government employees, whenever there is a change, by reason of statute itself the employees of University became entitled to enhance gratuity, w.e.f. the date the gratuity payable to the employees of the State Government stood changed. Benefit given by the legislature, can not be curbed by the executive orders/directions. Similar view has been taken in 2005(4) P.L.J.R. 691 ( Smt. Clara Ainda Vrs. State of Bihar and others). In this case the Board of Governors of the I.G.I.M.S., took a decision u/s 24 of the I.G.I.M.S. Act that rules of AIIMS with regard to appointment, promotion, pay scale and other service conditions would be applicable to employees of I.G.I.M.S. Age of retirement in All India Institute of Medical Sciences enhanced to 58 years, it was held that it would be similar in the case of employees of I.G.I.M.S., as retirement age is also one of the service conditions of employees. I find substance in the submission of petitioners‟ counsels. Since there is statutory provision that age of retirement of teaching employees in future will be same as decided by U.G.C. and U.G.C. has already taken a conscious decision to enhance age of retirement from 62 to 65, it will have to be same in case of teachers‟ 15 working in different universities/colleges of Bihar State. The subject “Education” is in the concurrent list of the constitution. “Education” was kept in the concurrent list for maintaining co-ordination in the standards of teaching in all Universities of India. To fulfill this object, an institution like UGC was established by the Government of India, through the enactment of Parliament and UGC Act 1956 came into force. Section 12 of the UGC Act deals with the University and other concerned bodies, with regard to which UGC can take steps as it may think fit for promotion and co-ordination of University Education and also for maintenance of standard of teaching, examination and research in the University. The power and function of UGC, as envisaged under the Act, makes it clear that it is a supreme central authority for determination of standard of teaching and co-ordination of higher education in all Universities of India. Since the education is a subject which has been placed in the concurrent list as such policy decision of government of India, for improvement in standard of teaching is to be followed by the Universities of the State. It is an admitted fact that UGC never makes any recommendation to the State Government and always recommendation is made the Central Government. Recommendation of the UGC has never been different for Central and State Universities as its object is to maintain conformity in the standard of teaching and research and all matters relating to enhancement of the standard of education in the University, all over India. UGC, considering scarcity of teachers in Central Universities 16 and to improve the standard of teaching in the Universities, made recommendation to revise pay scales and to enhance age of superannuation. Recommendation was made to attract more qualified persons to teaching profession. Age of superannuation was enhanced, so that experienced teachers may continue in service for longer time. Even provision was made for their re-employment up to 70 years of age, in case of existing vacancies. Mr. B.P.Pandey, Counsel for petitioners has submitted that so far shortage of teachers is concerned, it is more prevalent in the Universities of Bihar than any other University of India. Once a teacher superannuates, it takes very long time to fill up that vacancy by making regular appointment. Scarcity of teachers in all Universities of Bihar is a common feature and its direct effect is reflected in maintaining standard of education. It is also an admitted fact that a teacher who continues in his post for a longer time has more experience and such experience can be beneficial for the purpose of research, maintaining standard of education and maintaining academic environment in the University especially in the field of higher education. This fact is important and cannot be ignored by the State Government and the University. I find that ground for which age of superannuation is recommended to be enhanced by U.G.C. is prevalent here in State Universities and its‟ application is there in cases of these Universities. Counsel appearing for the petitioners making their submissions in support of the enhancement of age, have submitted 17 that Section 64 of Patna University Act and Section 67 of Bihar State Universities Act has made statutory provision for enhancement in the age of retirement in conformity with the recommendation of the UGC. The language of amended provisions under Section 64 of Patna University Act and Section 67(a) of Bihar Universities Act is mandatory in nature. The teaching employees of these universities have a legitimate expectation for enhancement of age of superannuation under statutory provision in case of recommendation by the UGC. Once statutory provision is there legitimacy of an expectation can be inferred. Mr. Chitranjan Sinha, counsel for the petitioners has placed reliance on a decision in the case of Ram Pravesh Singh and ors- Vrs- State of Bihar and ors (2006(4) P.L.J.R. 222) wherein it has been held that the doctrine of legitimate expectation, is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice which refers to a regular, consistent, predictable and certain conduct, process or activity of the decision making authority. Counsel for the petitioners has also contended that the statutory provision was made in the University Act for enhancement of retirement age in the light of UGC recommendation, the past on the basis of such recommendation, implementation used to be delayed for decision of the State. Just to over ride this situation amendment was brought in the Act itself so that in future whenever any such recommendation regarding 18 enhancement of retirement age is made by UGC, the teaching employees can claim it as a matter of right. On account of this statutory provision, a legitimate expectation has arisen among the teaching employees and the University; the State can not deny or take away this right from the petitioners. Mr. Lalit Kishore, Counsel for the State, on the other hand has submitted that, while interpreting any statutory provision under an Act, intention of the legislature has to be looked into. The word used in Section 64 of Patna University Act and Section 67A of State Universities Act is, “ as decided by the U.G.C.”. This „decision‟ word can not be taken lightly. It means proper guideline, on Regulation framed by U.G.C. The Counsel for State, has placed reliance on the decision reported in 1969 III All England Report 257, ( Pineer Vrs. Everett), where it is held that in determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of the word or phrase in its‟ context in the statute? It is only when that meaning leads to some result which can not reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word and phrase”. In this very decision it has been held:, “We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the Statute”. In this context, considering the submission of Counsel for State, the question which arises for consideration, whether 19 „Regulation‟ can be substituted for word “decision” since legislature in its wisdom did not think it proper to use term „Regulation‟, it would be erroneous to incorporate this word in Section 64 and 67(a) of Patna University Act and State Universities Act. Intention of legislature was to take into consideration the decision of U.G.C., in future, for changing the age of retirement. In my view, there is no reason for which the State has to wait for enhancing the age of retirement of Teachers, working in Universities & Colleges of Bihar, once decision of the U.G.C. is there and statutory provision under Section 64 and 67(a) of Patna University Act- State University Act is present, which has mandatory effect. Petitioner in C.W.J.C.No.7706 of 2009 has made specific prayer in his writ application which relates to re-employment on reaching the age of superannuation, for which there is specific provision under Section 64 of Patna University Act and 67(a) of Bihar Universities Act. These two facts provide that the age of retirement of teaching employees would be 62 years and thereafter no extension in service should be given. However, it will be open to the University or Colleges to re-employ a superannuated teacher up to 65 years of age. In the present recommendation of the UGC, the age of re-employment has been extended up to 70 years as the age of superannuation has been recommended to be enhanced to 65 years. A model guideline for re-employment of superannuated teachers have also been framed by the UGC. 20 Mr. Sujit Kumar Sinha, counsel for the petitioner submits that Section 12 of UGC Act deals with functions of the commission. One of the functions of the commission is to take steps for promotion and co-ordination of the University Education and for determination and maintenance of standard of teaching, examination research in University, College, where petitioners of C.W.J.C.No.7706 of 2009 are working in different departments. They have been directed by notification dated 17.1.2009 to superannuate from service on completion of 62 years. All the petitioners vide this notification have been informed that they are going to superannuate. This has been challenged by the petitioners claiming enhancement of their age of superannuation up to 65 years. Further prayer is to implement the scheme of re-employment up to 70 years. Alternative prayer of the petitioners is that in case as per the recommendation of the UGC the date of superannuation is not enhanced, they should be re-employed up to the age of 65 years. Mr. Lalit Kishore, A.A.G.III has further submitted that the letter dated 31.12.2008, issued by the Ministry of Human Resources Development Department, Government of India, Department of Higher Education has no binding effect on the State Universities as the Education is the State subject. This letter may have binding effect on the Central Universities, but unless there is any conscious decision of the UGC in this regard so far the State Universities are concerned. Even under Section 64 of Patna University Act or Section 67(a) of Bihar Universities Act, it cannot 21 be considered to have any effect. In view of letter dated 31.12.2008 of Human Resources Development Departm,ent and letter dated

28.2.2009 of UGC, I do not find force in this submission. Counsel for the petitioners have submitted that Section 20 of the UGC Act indicates that the UGC is an implementing agency of the Central Government and while discharging its function, commission shall be guided by such direction of the Central Government on the question of policy relating to national purpose. In case of any dispute arising in between the Central Government and Commission, in the matter of policy relating to national purpose, the decision of the Central Government shall be final. In this view of the matter, the Central Government has power to issue directions on the question of policy relating to national purpose. Improving standard of education in all Universities in the country is a matter of policy decision relating to national interest. This decision has to be implemented by the UGC under Section 20 of the UGC Act by taking decision and making recommendation to all concerned. The stand taken by the State Government that it is not a conscious decision of the UGC is incorrect. UGC cannot go against it as it is a policy matters relating to national interest. Since the UGC has already requested the State Authorities to implement it and there is provision under the Universities Act, the State has no other option but to implement it. Counsels appearing the petitioners have produced the notification issued by the State of West Bengal and State of Uttar Pradesh in this regard. These two States have already 22 implemented the recommendation of the UGC on the basis of letter issued by the Central Government dated 31.12.2008 and the letters sent by the Secretary, UGC dated 28.2.2009. These notifications have been produced to show that if other States are treating it as recommendation by the UGC and being implemented, there is no reason for the State of Bihar to interpret in other ways than a recommendation of the UGC. On consideration of the pleadings and submissions of the parties, I find that when by legislative mandate a benefit has been prescribed, and by virtue of such prescription a right has already accrued on account of decision of U.G.C. then as provided under Section 64 of Patna University Act and Section 67 (a) of Bihar State Universities Act, there cannot be any denial, in its implementation. The recommendation of the U.G.C. has to be given effect by the State and it has no discretion, even to decide its date of implementation. It will be same as made applicable by the U.G.C. However, since there is recommendation of the UGC made to the Central Government, as it is usually done and there being provision under the Universities Act that in case of any recommendation by UGC in future, if the age of retirement is recommended by the UGC, the State Government has no other option but to implement it. Effect of a beneficial legislation cannot be changed by executive directions. It is also made clear that circumstances in which the earlier two writ applications were decided by this Court and affirmed by L.P.A. Bench, has now been changed. The change 23 circumstances is on account of letter dated 31.12.2008 and the letter dated 28.2.2009. These two letters were not under consideration either before the Single Judge or before the L.P.A. Bench. The counter affidavit filed by the UGC has not made any statement on these two letters. These two letters, taken together, indicate that UGC has asked the State and its authority implement recommendation within the scheduled time. The time and manner in which it is to be implemented has also been mentioned in the letter dated 28.2.2009. In the facts and circumstances, since there is conscious decision of the UGC as such the statutory provision under the Universities act will be deemed to be implemented at least w.e.f. from the date of issuance of letter dated 31.12.2008. Teachers, working on their posts till that date will be deemed to be continuing on their posts, and will continue till age of retirement i.e. 65 years of age. All these writ applications are accordingly allowed. Sss/- (Mridula Mishra, J)