Madrasdated High Court · 2012

4.The State of Tamil Nadu,Rep. by its Secretary to Government,Agriculture Department,Fort St.George, Chennai-600 009.5.The Board of Management,Tamil Nadu Agricultural University,Coimbatore-641 003.6.The Vice-Chancellor,Tamil Nadu Agricultural University,Coimbatore-641 003.7.The Registrar,Tamil Nadu Agricultural University,Coimbatore-641 003.... Respondents.Prayer: Writ petition is filed under Article 226 of Constitution ofIndia for issuance of a Writ in the nature of Certiorari, calling forthe records relating to the order of the 4th respondent in G.O.Ms.No.39,Agriculture (AU) Department dated 01.03.2010 and to quash the sameinsofar as retaining age of 60 years for superannuation in respect ofthe petitioners are concerned and consequently direct the respondents 4to 7 to fix the age of superannuation of the petitioners at 65 yearswith effect from 30.06.2010.For Petitioners: Mr.R.Gandhi, S.C.,For Mr.R.G.NarendhiranFor R1 & R2: Mr.Haja Mohideen Ghisthi, CGSC, For R3:Mr.P.R.GopinathanFor R4:Mr.A.Navaneetha KrishnanAdvocate General,Assisted by Mr.R.Ravichandran, AGP, and Mr.P.Karthikeyan, G.A.For R5 to R7:Mr.Abdul Saleem andMr.Vijaya Mehanth*****O R D E RThe petitioners have invoked equitable jurisdiction of this courtunder Article 226 of the Constitution of India to challenge theimpugned G.O.Ms.No.39, Agriculture (AU) Department dated 01.03.2010fixing the age of retirement of the professors as 60 years, with afurther direction that they shall not be reemployed. https://hcservices.ecourts.gov.in/hcservices/

2. The impugned part of G.O is challenged by the petitioners onthe ground that it is contrary to the Statutory Regulations of theUniversity Grants Commission, which are binding on the StateGovernment.3. In support of his contention learned Senior counsel appearingon behalf of the petitioners placed reliance on the letter No.1-32/2006-U.II/U.I(!) dated 31.12.2008 of the Central Governmentstipulating there in as under:"(f) Age of superannuation:(i) In order to meet the situation arising out ofshortage of teachers in universities and other teachinginstitutions and the consequent vacant positions therein, theage of superannuation for teachers in Central EducationalInstitutions has already been enhanced to sixty five years,vide the Department of Higher Education letter No.F.No.1-19/2006-U.II dated 23.3.2007, for those involved in classroom teaching in order to attract eligible persons to theteaching career and to retain teachers in service for alonger period. Consequent on upward revision of the age ofsuperannuation of teachers the Central Government has alreadyauthorized the Central Universities, vide Department ofHigher Education D.O.Letter No.F.1-24/2006-Desk(U) dated30.3.2007 to enhance the age of superannuation of Vice-Cencellors of Central Universities from 65 years to 70 years,subject to amendments in the respective statutes, with theapproval of the competent authority (visitor in the case ofCentral Universities). (ii) Subject to availability of vacant positions andfitness, teachers shall also be re-employed on contractappointment beyond the age of sixty five years up to the ageof seventy years. Re-employment beyond the age ofsuperannuation shall, however, be done selectively, for alimited period of 3 years in the first instance and then foranother further period of 2 years purely on the basis ofmerit, experience, are of specialization and peer groupreview and only against available vacant positions withoutaffecting selection or promotion prospects of eligibleteachers.(iii) Whereas the enhancement of the age ofsuperannuation for teachers engaged in class room teaching isintended to attract eligible persons to a career in teachingand to meet the shortage of teachers by retaining teachers inservice for a longer period, and whereas there is no shortagein the categories of Librarians and Directors of PhysicalEducation, the increase in the age of superannuation from thepresent sixty two years shall not be available to the https://hcservices.ecourts.gov.in/hcservices/ categories of Librarians and Directors of PhysicalEducation."This was issued in pursuance to the regulations of the UniversityGrants Commission. 4.Learned Senior counsel further contended that any doubtregarding implementation of the scheme for enhancing the age from 60 to65 years stood removed by framing of statutory regulation called theUniversity Grants Commission (Minimum qualifications for appointment ofteachers and other Academic staff in Universities and Colleges andother measures for the maintenance of standards in Higher Education)Regulations 2010. The regulation with regard to age of superannuationreads as under: "(f) Age of superannuation(i) In order to meet the situation arising out ofshortage of teachers in universities and other teachinginstitutions and the consequent vacant positions therein, theage of superannuation for teachers in Central EducationalInstitutions has already been enhanced to sixty five years,vide the Department of Higher Education letterNo.F.No.119/2006-U.II dated 23.3.2007, for those involved inclass room teaching in order to attract eligible persons tothe teaching career and to retain teachers in service for alonger period. Consequent on upward revision of the age ofsuperannuation of teachers, the Central Government hasalready authorized the Central Universities, vide Departmentof Higher Education D.O. Letter No.F.1-24/2006-Desk(U) dated30.3.2007 to enhance the age of superannuation of ViceChancellors of Central Universities from 65 years to 70years, subject to amendments in the respective statutes, withthe approval of the competent authority (visitor in the caseof Central Universities)(ii) Subject to availability of vacant positions andfitness, teachers shall also be reemployed on contractappointment beyond the age of sixty five years up to the ageof seventy years. Re-employment beyond the age ofsuperannuation shall, however, be done selectively, for alimited period of 3 years in the first instance and then foranother further period of 2 years purely on the bais ofmerit, experience, area of specialization and peer groupreview and only against available vacant positions withoutaffecting selection or promotion prospects of eligibleteachers.(iii) Whereas the enhancement of the age ofsuperannuation for teachers engaged in classroom teaching isintended to attract eligible persons to a career in teachingand to meet the shortage of teachers by retaining teachers in https://hcservices.ecourts.gov.in/hcservices/ service for a longer period and whereas there is no shortagein the categories of Librarians and Directors of PhysicalEducation, the increase in the age of superannuation from thepresent sixty two years shall not be available to thecategories of Librarians and Directors of Physical Education."5.Learned Senior Counsel placed reliance on the judgment ofHon'ble High court of Patna in CWJC No.11348 of 2010 Dr. Sunity Pandeyvs. The State of Biar & Amp. Ors decided on 20.08.2010. The judgment ofKarnataka High Court in W.P.Nos.13449-453 of 2011 in Dr. R.Halesha andOrs vs. State of Karnataka and Ors, wherein it has been held asfollows:"7.16 It is evident from the above that the Schemeframed by the Government of India vide letter dated31.12.2008 provides for a common revision of pay scales ofteachers of Universities and Colleges (affiliated orconstituent) established under the Central, State orProvincial Acts, with enhancement of age of Superannuation to65 years. The said Scheme has been incorporated as part andparcel of the UGC Regulations 2010. The said Regulations areframed in exercise of power under the UGC Act and would henceover-ride any executive government orders issued contrary tothe same. In other words the denial by the State Governmentof the enhancement of the age of superannuation to teachersworking the Government and Aided, affiliated colleges drawingthe UGC Scales of pay is repugnant to the UGC Act and the UGCRegulations, 2010 and is hence void.7.17 In the result, the impugned Orders/Annexures, inthe respective petitions, which have the effect of denyingthe enhancement of the age of superannuation to 65 years, asprovided under the UGC Regulations 2010, are hereby quashed.The Petitioners shall be continued in service in the postsheld by them as on the date of the petitions, or immediatelyprior thereto, till they attain the age of superannuation at65, in accordance with the UGC Regulations 2010, with allconsequential benefits.7.18 Notice having been issued to the Respondents insome of the petitions, but however, since the Respondentswere represented in other petitions and the severalcontentions raised having been heard, the learned GovernmentPleader is permitted to file his memo of appearance on behalfof the State in those petitions, within a period of fourweeks."6.The reliance is placed on judgment of Hon'ble High court ofJharkand in W.P.(s) No.363/2010 and other connected petitions(Dr.Maheshwar Tiwary and Ors vs. The State of Jharkand and ors) decidedon 10.01.2011, whereas it was held as under: https://hcservices.ecourts.gov.in/hcservices/ ....Coming to the first point relating to the schemebeing voluntary or mandatory or that it is to be accepted inpart or be accepted as whole, reference may be made again toClause 8(p)(v) which certainly speaks that it is upto theState Government to adopt and implement the scheme but takinginto account the terms and conditions attached to the saidClause 8(p)(v) it would appear that if the State Governmentwishes to adopt and implement this scheme, it has to adoptthe scheme accepting the terms and conditions as laid down inClause (a) to (g). One of the conditions as laid down inClause (g) of Clause 8(p)(v) is that if the scheme is to beadopted by the State Government, it has to be adopted ascomposite one. That stand of the Central Government wasreiterated further in Clause (iv) of the letter dated11.5.2010 and ultimately, those schemes relating to revisionof pay and enhancement of age was formulated as regulationswhich were framed in exercise of power conferred under Clause(e) and (g) of Sub-section (1) of Section 26 of theUniversity Grants Commissioner Act, 1956 and the schemeformulated under the aforesaid two letters form part of theregulation. As per Clause 2.1.0, the revised scales of payand other service conditions including age of superannuationin central universities is to be implemented strictly inaccordance with the decision of the Central Government.Further Clause 2.3.1 does stipulate that the said schemerelating to revision of pay and other service conditionsincluding enhancement of age would be applicable to theuniversities of the State and the scheme is to be adopted ascomposite one. Thus, op option is left with the State toaccept one part of the scheme, i.e. revision of pay as is thecase here and not to accept the directive relating toenhancement of age from 62 to 65 years. It is not open forthe State Universities/State Government to accept therecommendation relating to revision of pay and to have 80%grant on account of additional burden without accepting otherdirectives as on account of failure to accept allrecommendation of U.G.C the University/State Government interms of the Clause 3 of the regulation would reapconsequences whereby it would be debarred from gettingCentral Government.So far decision rendered in a case of B. Bharat Kumarand Ors. v. Usmania University is concerned, the Hon'bleSupreme Court having considered the language of the letterdated 27.7.1998 did hold that the scheme is voluntary and assuch, it is not binding on the State. It also held that it isthe matter between the State Government on one hand and theU.G.C on the other and it would be for the U.G.C to extendthe benefit of the scheme or not to extend the same dependingupon the satisfaction about the attitude taken by the State https://hcservices.ecourts.gov.in/hcservices/ Government in the matter of implementing the scheme. Whileholding so, the Court also took notice of the fact that thesaid letter did not have any legislative impact, obviouslyfor the reason that no such regulation as is there in thepresent case had been formulated at that time. Theformulation of the scheme now makes hail of difference as theregulation framed becomes part of the University GrantsCommission Act which has been legislated by the Parliament interms of the Entry 66 of the List I of Schedule 7 of theConstitution of India whereas Jharkhand State University Acthas been legislated under Entry 25 of List III. Entry 66 ofList I and Entry 25 of List III of the 7"' Schedule of theConstitution of India reads as follows:Entry 66 List I:66. Coordination and determination of standards ininstitutions for higher education or research and scientificand technical institution25. Education including the technical education, medicaleducation and University, subject to the provisions of Entry63, 64, 65 and 66 of List I; Vocational and Technicaltraining and Labour Training:On conjoint reading of both the entries there cannot beany doubt whatsoever that although the State has a widelegislative field to cover, the same is subject to Entries63, 64, 65 and 66 of List I. Once, thus, it is found that anyState Legislation does entrench upon the legislative field ofentry 66 of List I of 7th Schedule of the Constitution ofIndia that piece of legislation in view of Article 254(1) ofthe Constitution of India can be held to be invalid. Nowtherefore, it has become necessary to examine as to whetherany legislation with respect to service condition of theuniversity teachers particularly with respect to age ofsuperannuation can be subject matter of legislation by theParliament under Entry 66 of List I of 7th Schedule of theConstitution of India.18. The Hon'ble Supreme Court at various occasion hasoccasioned to deal with this kind of issue. One such case isof State of Tamil Nadu v. Adhiyaman Educational & ResearchInstitute (1995) 4 SCC 104 wherein the Court has laid downthe law in following terms:41. What emerges from the above discussion is asfollows:(i) The expression 'coordination' used in Entry 66 of theUnion List of the Seventh Schedule to the Constitution doesnot merely mean education. It means harmonization with a view https://hcservices.ecourts.gov.in/hcservices/ to forge a uniform pattern for a concerted action accordingto a certain design, scheme or plan of development. It,therefore, includes action not only for removal ofdisparities in standards but also for preventing theoccurrence of such disparities. It would, therefore, alsoinclude power to do all things which are necessary to preventwhat would make 'coordination' either impossible ordifficult. This power is absolute and unconditional and inthe absence of any valid compelling reasons, it must be givenits full effect according to its plain and express intention.19. The interplay of Entry 66 List I and Entry 25 List IIIwas again examined by a Constitution Bench in a case ofPreeti Srivastavs (Dr.) v. State of M.P (1999) 7 SCC 120 inthe context of lowering of standard by the State foradmission to a post graduate course in a medical college andit was held that the State cannot while controlling educationin the State impinge on standards in institutions for highereducation, because this is exclusively within the purview ofthe Union Government. While considering the question whethernorms for admission have any connection with the standard ofeducation and that they are only covered by Entry 25 of ListIII, it was observed that any lowering of the norms foradmission does have an adverse effect on the standard ofeducation in the institution of higher education. Thestandard of education in institution depend on variousfactors like (i) caliber of teaching staff (ii) propersyllabus various factors like (i) caliber of teaching staff(ii) proper syllabus design to achieve high level ofeducation in a given span of time (iii) student- teacherratio (iv) equipment and laboratory facilities (v) caliber ofstudent admitted (vi) adequate accomodation in theinstitution (vii) standard of examination held including themanner in which paper are set and examined and evaluation ofthe practical examination done.It was pointed out that education involves a continuousinteraction between the teachers and the students. The baseof teaching, the level to which teaching can rise and thebenefit which the students ultimately receive depend as muchon caliber of the students as on the caliber of the teachersand the availability of the adequate infrastructurefacilities.Apart from the aforesaid proposition laid down by theHon'ble Supreme Court in the case of Preeti Srivastavs (Dr.)vs. State of M.P. (supra) the Hon'ble Supreme Court again ina case of Prof. Yashpal and another vs.State of Chahattisgarhand others [(2005) 5 SCC 420] has observed: " The consistentand settled view of this Court, therefore, is that in spiteof incorporation of Universities as a legislative head being https://hcservices.ecourts.gov.in/hcservices/ in the State List, the whole gamut of the University whichwill include teaching, quality of education being imparted,curriculum, standard of examination and evaluation and alsoresearch activity being carried on will not come within thepurview of the State legislature on account of a specificEntry on co-ordination and determination of standards ininstitutions for higher education or research and scientificand technical education being in the Union List for which theParliament alone is competent. It is the responsibility ofthe Parliament to ensure that proper standards are maintainedin institutions for higher education or research throughoutthe country and also uniformity in standards is maintained. Once the proposition as has been laid clown by the Hon'bleSupreme Court in the aforesaid two decisions, there would behardly any substance in the objection raised on behalf of theState and the Universities that any legislation with respectto enhancement of age of the teachers from 62 to 65 yearswould be beyond the competence of the Central Government tomake any legislation under Entry 66 of List I as the ageseems to have been enhanced to attract eligible person tohave teaching career and thereby the students would begetting more experienced teachers which would certainly raisethe standard of teching which proposition can fairly andreasonably be comprehended. At this stage, I may refer to acase of Check Post Officer v. K.P. Abdulla and Bros (1970) 3SCC 355 wherein it has been held that entry confers powerupon the legislature to legislate for matters ancillary orincidental, including provision for avoiding the law. As longas the legislation is within the permissible field in pithand substance, objection would not be entertained merely onthe ground that while enacting legislation, provision hasbeen made for a matter which though germane for the purposefor which competent legislation is made it covers an areabeyond. Thus, in view of the proposition laid down by the Hon'bleSupreme Court as referred to above, stipulation made underthe regulation regarding enhancement of the age from 62 to 65years cannot be said to be an encroachment of the field ofthe State Legislature. That being the situation, age ofsuperannuation prescribed under Section 67 of the JharkhandUniversity Act framed under Entry 25 of List III of theConstitution of India being in conflict with the regulationso far it relates enhancement of the age from 62 to 65 wouldbe void and inoperative in terms of Article 254(1) of theConstitution of India. Accordingly, order as contained inMemo No. 1188 dated 20.11.2010 refusing to extend the agefrom 62 to 65 is hereby set aside.22. Thus, in view of the conclusion arrived at justhereinabove and also conclusion that scheme formulated by way https://hcservices.ecourts.gov.in/hcservices/ of regulation is to be adopted as composite one, the age ofsuperannuation of the Petitioners would stand extended to 65years. As a consequence whereof the Petitioners who was inservice was made to retire on 30.6.2010 or thereafter onattaining the age of 62 years would be entitled to thebenefit of extended age of superannuation as a result ofwhich they are to be taken back in service with continuityand all consequential benefits."7.Learned Senior Counsel for the petitioners referred to theRegulations, called the University Grants Commission Regulations onMinimum Qualifications for Appointment of Teachers and Other AcademicStaff in Universities and Colleges and Measures for the Maintenance ofStandards in Higher Education, 2010 (hereinafter referred to as 'theRegulations 2010), to contend, that these are applicable to everyuniversity established or incorporated by or under a central Act,Provincial Act or a State Act, every institution including aconstituent or an affiliated college recognised by the Commission, inconsultation with the University concerned under Clause (f) of Section2 of the University Grants Commission Act, 1956, and every institutionsdeemed to be a University under Section 3 of the said Act. TheRegulations dealing with the age of superannuation, therefore, arebinding on the State Government. That the impugned notification, beingcontrary to the statutory regulations, deserves to be set aside, onthis ground alone.8.Learned Senior Counsel for the petitioners also referred tothe judgment of the Hon'ble Division Bench of this Court, inN.Priyadarshini and others vs. The Secretary to Government, EducationDepartment, Chennai and another, (2005) 3 MLJ 97, wherein this Courtwas pleased to quash the Government Order, being contrary to theRegulations framed under the Indian Medical Council Act, 1956. ThisCourt held as under:"19. The 1997 Regulations (quoted above) make it clearthat in States having only one Medical College and oneUniversity board/ examining body conducting the qualifyingexamination, the marks obtained at such qualifyingexamination may be taken into consideration for grantingadmissions in M.B.B.S. Course. However, in States having morethan one university/board/examining body, an entranceexamination is mandatory. This is because, as pointed out inthe aforesaid decisions of the Supreme Court, differentexamining bodies have different standards of marking,different syllabus, etc., and hence a student who appears forthe examination conducted by an examining body which isstringent in granting marks will be discriminated againstvis--vis a student who appears for the examination conductedby an examining body which is liberal in granting marks. Thiswill be violative of Article 14 of the Constitution as heldin the aforesaid decisions. https://hcservices.ecourts.gov.in/hcservices/

20. Thus, the 1997 Regulation is, in our opinion, reallyin furtherance of Article 14 of the Constitution which aimsat equality. As already mentioned above, the 1997 Regulationshas statutory force as under Section 33 of the Indian MedicalCouncil Act, 1956 it will amount to delegated legislation. InAndhra Bank v. B.Satyanarayan, (2004) 2 SCC 657 (videparagraph 10) it was held by the Supreme Court that a validregulation once framed would be part of the Statute.Similarly in St.Johns Teachers Training Institute v. RegionalDirector,(2003) 3 SCC 321 (vide paragraph 10), the SupremeCourt observed: -"The regulations made under power conferred bythe statute are supporting legislation and have theforce and effect, if validly made, as an Act passedby the competent legislature (see Sukhdev Singh v.Bhagatram, AIR 1975 SC 1331)"It is not disputed by the respondents that the Regulations inquestion have been validly made under power conferred by thestatute. Hence they have to be treated as part of therelevant Act itself.21. Mr.P.P.Rao, learned senior counsel appearing for therespondents, has relied on the decision of the Supreme Courtin State of M.P v. Kumari Nivedita Jain, (1981) 4 SCC 296 inwhich it was held that while Regulation I of the IndianMedical Council Regulations has mandatory force, RegulationII of the said Regulations (which include Regulationsrelating to admission in the Medical Colleges) is onlydirectory and not mandatory. A similar view was taken by theSupreme Court in Ajay Kumar Singh v. State of Bihar, (1994) 4SCC 401. However, in Dr.Preeti Srivastava v. State of M.P(1999) 7 SCC 120) a Constitution Bench of the Supreme Courttook a view contrary to the decisions of the Supreme Court inAjay Kumar Singh v. State of Bihar (supra) and State of M.Pv. Kumari Nivedita Jain (supra), and hence the latter twodecisions cannot be said to have laid down the correct law.22. Thus, in paragraphs 56 and 57 of Dr.PreetiSrivastava's case ( supra), the Supreme Court observed: -"In State of M.P v. Kumari Nivedita Jain (1981)4 SCC 296 the provisions of the Indian MedicalCouncil Act and the regulations framed forundergraduate medical courses were considered by theCourt. The Court said that while Regulation I wasmandatory, Regulation II was only recommendatory andneed not be followed. We do not agree with this lineof reasoning for the reasons which we have set out https://hcservices.ecourts.gov.in/hcservices/ above.In the case of Medical Council of India v. State ofKarnataka, (1998 ) 6 SCC 131, a Bench of threejudges of this Court has distinguished theobservations made in Nivedita Jain (1981) 4 SCC 296.It has also disagreed with Ajay Kumar Singh v. Stateof Bihar, (1994) 4 SCC 401 and has come to theconclusion that the Medical Council regulations havea statutory force and are mandatory. The Court wasconcerned with admissions to the MBBS Course and theregulations framed by the Indian Medical Councilrelating to admission to the MBBS course. The Courttook note of the observations in State of Kerala v.T.P.Roshana, (19 79) 1 SCC 572 (SCC at p.580) to theeffect that under the Indian Medical Council Act,1956, the Medical Council of India has been set upas an expert body to control the minimum standardsof medical education and to regulate theirobservance. It has implicit power to supervise thequalifications or eligibility standards foradmission into medical institutions. There is, underthe Act an overall vigilance by the Medical Councilto prevent sub-standard entrance qualifications formedical courses. These observations would applyequally to postgraduate medical courses. We are inrespectful agreement with this reasoning."23. Thus, in view of the Constitution Bench decision ofthe Supreme Court in Dr.Preeti Srivastava's case it has to beheld that all the Medical Council Regulations, includingthose relating to admissions in medical colleges, aremandatory and not directory.24. As already stated above, the 1997 Medical CouncilRegulations ( quoted above) amount to delegated legislation,and are hence to be treated as part of the Medical CouncilAct. On the other hand, the impugned G.O.Ms.No. 184 HigherEducation (J2) Department, dated 09.06.2005 is a purelyexecutive order. It is well settled that an executive ordercannot over ride the statutory rules or regulations.25. It is no doubt true that ordinarily this Court doesnot interfere with policy decisions of the State Governmentvide Union of India v. International Trading Company, (JT2003 (4) SC 549), Tamil Nadu Electricity Board v. Tamil NaduElectricity Board Engineers Association, 2005 (1) MLJ 507,Chairman and MD, BPL Ltd. v. S.P.Gururaja and others, (2003)8 SCC 567, Indian Charge Chrome Ltd v. Union of India, (2003) 2 SCC 533, Union of India v. Kannadapara SanghatanegalaOkkuta & Kannadigara, (2002) 10 SCC 226, Federation ofRailway Officers Association v. Union of India, (2003) 4 SCC289, etc. However as observed by the Supreme Court in State https://hcservices.ecourts.gov.in/hcservices/ of N.C.T of Delhi v. Sanjeev, AIR 2005 SC 2080 (videparagraph 16), there can be judicial review of administrativeaction on three grounds namely: -(i)Illegality(ii) Irrationality(iii) Procedural improprietyThus, the policy decision of the State Government willhave to be quashed if it is illegal or unconstitutional, orshockingly arbitrary in the Wednesbury sense."9.The contention of learned Senior Counsel for petitioners was,that the impugned Government Order, being contrary to the "Regulations2010" cannot be sustained. Reliance was also placed on the judgment ofthis Court in D.Ganesan vs. State of Tamil Nadu and others, 2012 (2)CTC 177, wherein this Court has laid down as under:"21. The present writ petition is not a public interestlitigation. It is filed for the issue of a Writ of QuoWarranto. The appointment of the third respondent is contraryto the UGC Regulations 2010, which has been adopted by theTamil Nadu Dr. Ambedkar Law University and accepted by theBar Council of India in the Rules of Legal Education, 2008.The adhoc rules framed by the Government should only be readin tune with UGC Regulations 2010. Therefore, the writpetition is maintainable and the appointment of the thirdrespondent is liable to be set aside."10.The writ petition is opposed by the learned Advocate Generalby contending, that the Government implemented the revision of UGCscales of pay in respect of the Colleges and University Teachers in theTamil Nadu Agricultural University vide G.O.Ms.No.39, Agriculture (AU)Department dated 01.03.2010, but decided to retain the presentretirement age, i.e. 60 years for the University Teachers. Further, ithas also been decided, that there shall be no-reemployment beyond theage of superannuation.11.It is stand of the State, that while issuing the GovernmentOrder, revising pay scales, based on Government of India Lr.No.1-32/2006-U.II/U.I(i) dated 31.12.2008, the Government of India has alsonot revised the age of superannuation of the Teachers of Tamil NaduAgriculture University. It is submitted, that the letter of theMinistry of Human Resources Development Department, on which relianceis placed by petitioners for increase of age of superannuation, isapplicable to the Teachers, working under Central EducationalInstitutions and not to the State universities.12.It is also stand of the State, that UGC "Regulations 2010"are applicable to the University and College Teachers, Librarians,Director of Physical Education and Sports, excluding the Teachers in https://hcservices.ecourts.gov.in/hcservices/ the faculties of Agriculture and Veterinary Science for which the norms/ regulations of Indian Council of Agricultural Research applies, asthere is no shortage of Teachers in Tamil Nadu.13.It is also submissions of respondents, that out of 45 StateAgricultural Universities, spread over the country, only 14 StateAgricultural Universities have enhanced the age of superannuation,based on the UGC's guidelines, whereas all the other universities haveretained the age of superannuation as per existing rules.14.Reliance in support of the contention, that Regulations 2010are not applicable to universities, reliance is placed on the judgmentof the Hon'ble High Court of Punjab and Haryana in Prof.S.S.Bindra andothers vs. The State of Punjab and Others, [C.W.P.No.9665 of 2010]decided on 04.03.2011, holding therein that the Punjab University isnot Central or Centrally funded university under any law, therefore, inabsence of adoption, these would not apply automatically.15.It is also stand of State, that the letter of the Governmentof India only related to conditions for grant of financial assistance,which is a matter between the State and the Central Government. TheCentral Government is not to give any financial assistance after01.04.2010. The "Regulations 2010" are only applicable to the CentralUniversities, or to State universities, if so adopted and nototherwise.16.It is the submission, that the "Regulations 2010", on whichreliance has been placed, are not applicable to the faculties ofAgriculture and Veterinary Science.17.The stand, with regard to age of superannuation in thecounter, reads as under:"17. With regard to the averments made in paragraph 6and Ground (a) of the affidavit, it is respectfully submittedthat, as admitted by the petitioners that in pursuance of therecommendation, the Government of India, the 1st respondentherein by letter dated 31.12.2008 accorded sanction forrevision of pay scales of Universities and Colleges in thecountry and communicated to all the State Governments toadopt the scheme of University Grants CommissionRegulations, on Minimum Qualifications for Appointment ofTeachers and other Academic Staff in Universities andColleges and Measures for the maintenance of Standards inHigher Education, 2010 (hereinafter referred to as UniversityGrants Commission Regulation, 2010) framed under Section 26(1) of University Grants Commission Act, 1956 in terms ofEntry 66 List I of VII Schedule to the Constitution of India.Accordingly, after careful consideration of the aboverecommendations, the Government issued orders inG.O.Ms.No.39, Agriculture (AU) Department, dated 1.3.2010 https://hcservices.ecourts.gov.in/hcservices/ duly adopting the University Grants Commission Regulations,2010 retaining the age of superannuation to 60 years. Asalready stated the enhancement of age of superannuation ofteachers is well within the powers and policy decision of theGovernment of Tamil Nadu and there is no violation / directconflict with the Central Legislation.18. It is submitted that mere possession of 35 years ofservice in the University does not deserve the petitioners tointerfere with the policy decision of the State Government inrespect of retirement age of superannuation. Thus, there isno contrary stand in violation of the University GrantsCommission Regulation, 2010 taken by the State Government,the petitioners have no right to profession and to carry onany occupation till the age of 65 years." 18.Learned Advocate General / Additional Government Pleadervehemently contended, that the letter of the Central Government wasissued in exercise of powers under Section 21 of the UGC Act, 1956,which authorizes the Central Government to issue directions on thequestion of policy relating to the national purpose for discharge offunctions by the Commission. It also provides that the decision of theCentral Government in this regard is to be final, but the directionsdeal with only Central Universities and the Universities funded by theCentral Government, and are not applicable to the State Government orState universities.19.It was vehemently contended by learned Advocate General /Additional Government Pleader, that the "Regulations 2010" regardingrevision of age will be applicable only to Centrally funded TechnicalHigher Educational Institutions, under the purview of Human ResourcesDevelopment department, and not to the employees of the colleges anduniversities, which are not funded and maintained by the UGC. It wasleft open to the State Government to adopt decision for refixing theage of superannuation, therefore, this cannot be binding on the StateGovernment.20.It was also contended that the judgment of the Hon'bleJharkand High Court and the Hon'ble Patna High Court, cannot be said tobe laying down correct law, in view of the judgment of the Hon'bleSupreme Court in the case of B.Bharat Kumar and others vs. OsmaniaUniversity and others, (2007) 11 SCC 58, wherein the Hon'ble SupremeCourt was pleased to lay down as under:"12. We would, therefore, first examine as to whetherthe two Division Benches have rightly relied upon the saidjudgment held against the appellants. We have examined thejudgment in extenso. This is also a case where the UGC hadfloated a scheme in 1986 which was framed by the CentralGovernment pursuant to the Mehrotra Committee Report. In thatscheme there was a Circular dated 17.6.1987 addressed by the https://hcservices.ecourts.gov.in/hcservices/ Ministry of Human Resource Development, Department ofEducation to the Education Secretaries of all the States, UTsand it was clearly mentioned therein that the adoption of thescheme was voluntary and the only result follow from theState Government not adopting the scheme might be that theState Government may not get the benefit of the offer ofreimbursement from the Central Government to the extent of80% of the additional expenditure involved in giving effectto the revision of pay-scales as recommended by the scheme.Therefore, the factual situation was almost identical as inthe present case. This Court approved specifically aparagraph in the Kerala High Court judgment which we havealready quoted earlier in this judgment in para 5. In thatthe Kerala High Court had specifically rejected thecontention that the State Government having accepted the UGCscheme and as the scheme provided for the higher age of 60years, the clause of the scheme regarding age of retirementalso would become applicable. The Kerala High Court hadspecifically further observed that the UGC scheme did notbecome applicable as it was not obligatory for the Governmentand the Universities to follow the same. The Kerala HighCourt read a discretion in the State Government to accept ornot to accept the scheme.13. The situation is no different in the present casealso. The very language of the letter dated 27.7.1998suggests that the scheme is voluntary and not binding at all.Further it is specified in the judgment of the Kerala HighCourt that the teachers had no right to claim a specific agebecause it suggested in the scheme which scheme was itselfvoluntary and not binding. The Court clearly observed that"the appellant cannot claim that major portion of the schemehaving been accepted by the Government, they have no rightnot to accept the clause relating to fixation of higher ageof superannuation". The Court therein observed that it is amatter between the State Government on the one hand and theUniversity Grants Commission on the other and it would be forthe University Grants Commission to extend the benefit of thescheme or not to extend the same depending upon itssatisfaction about the attitude taken by the State Governmentin the matter of implementing the scheme. It was lastlyclearly observed that as long as the State Government has notaccepted the UGC's recommendations to fix the age ofsuperannuation at 60 years, teachers cannot claim as a matterof right that they were entitled to retire on attaining theage of 60 years.14. Inspite of our best efforts, we have not been ableto 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 https://hcservices.ecourts.gov.in/hcservices/ this case. It is for that reason that we have extensivelyquoted not only the aforementioned letter dated 27.7.1998 butalso the subsequent letters and the further policy statement.Plain reading of all these is clear enough to suggest thatthe scheme was voluntary and it was upto the StateGovernments to accept or not to accept the scheme. Again evenif the State Government accepted a part of the scheme, it wasnot necessary that all the scheme as it was, had to beaccepted by the State Government. In fact the subsequentdevelopments suggest that the State Government has not chosento accept the scheme in full inasmuch as it has not acceptedthe suggestions on the part of the UGC to increase the age ofsuperannuation.15. Once we take this view on the plain reading of thescheme, it would be necessary for us to take stock of thesubsequent arguments of Mr.Rao regarding Entry 66 in the ListI vis-`-vis Entry 25 in List III. In our opinion, thecommunications even if they could be heightened to thepedestal of a legislation or as the case may be, a policydecision under Article 73 of the Constitution, they wouldhave to be read as they appear and a plain reading is goodenough to show that the Central Government or as the case maybe 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 theEntries and in examining as to whether the scheme wasbinding, particularly when the specific words of the schemedid not suggest it to be binding and specifically suggest itto be voluntary.16. Much debate was centered around the interpretationof the words "wish" and "gamut". In our opinion it is whollyunnecessary and we have merely mentioned the arguments forbeing rejected. Once the scheme suggested that it was left tothe "wish" of the State Government, there will be no point intrying to assign the unnatural meaning to the word "wish".Similarly, there would be no point in going into theinterpretation of the word "gamut" and to hold that once theState Government accepted a part of the scheme, the wholescheme had to be accepted by the same as such would, in ouropinion, be an unnecessary exercise.17. In view of the plain and ambiguous language of thescheme, there would be no necessity on our part to attemptany interpretation. For the same reasons we need not considerthe argumets based on the decisions in O.P. Singla, ManiklalMajudar, Chandrika Prasad Yadav & Dove Investments as theyall pertained to principles of interpretation which exercisewould have been necessary for us only if the language wasambiguous. It is also not necessary for us to extensivelyconsider Dove Investment's case as from the plain language of https://hcservices.ecourts.gov.in/hcservices/ the scheme itself we find that it is not a mandatory schemein the sense being binding against the State Governments."21.Reliance was also placed on the judgment of the Hon'blePunjab and Haryana High Court in the case of Prof.S.S.Bindra and othersvs. The State of Punjab and Others, (supra), wherein the Hon'ble HighCourt of Punjab and Haryana, was pleased to lay down as under:"19. As observed in the above judgment, the schemeitself having given discretion for its acceptance even if thesame was statutory, there was no conflict in the scheme andthe decision of the State Government. In view of judgment ofthe Hon'ble Supreme Court, we respectfully dissent from theview taken by the Jharkhand and Patna High Courts as the sameis contrary to the judgment of the Hon'ble Supreme Court. Thejudgment of the Hon'ble Supreme Court could not bedistinguished on the ground that earlier the scheme was nonstatutory while now it was statutory. The Hon'ble SupremeCourt clearly observed that even if the same was taken to bestatutory, the same being voluntary and gave discretion tothe State Governments to accept it or not, there was noquestion of conflict so as to invoke Entry 66 of List I andto hold primacy of the scheme over the decision of the StateGovernment. Giving of reimbursement was a different matterbetween the UGC and the State Government and conditionreferred to in para 8(p)(v) (g) did not have the effect ofrevision of age of superannuation by itself. Affidavit beforethe Madhya Pradesh High Court does not state that age ofsuperannuation in all institutions stands revisedautomatically.20. Accordingly, the question has to be decided in thenegative to the effect that the service conditions regardingage of retirement prescribed in statutory service rules underProviso to Article 309 of the Constitution or under a statutecannot be deemed to have been amended by virtue of schemedated 31.12.2008 except with regard to "Centrally fundedhigher and technical education institutions coming under thepurview of this ministry in order to overcome the shortage ofteachers."22.In rebuttal, learned counsel for the petitioners vehementlycontended that the judgment of the Hon'ble Punjab and Haryana HighCourt is under challenge before the Hon'ble Supreme Court in SLP CC12612 of 2011, wherein the following orders have been passed:"Permission to file the special leave petition is granted.Delay condoned. Issue notice, returnable six weeks hence. Inthe meantime, the parties are directed to maintain status quowith regard to the petitioner's post." https://hcservices.ecourts.gov.in/hcservices/

23.On consideration of the respective contentions, the questionto be decided in this case will be,"whether the "Regulations 2010" are applicableautomatically to petitioners or it is left to the discretionof the State Government to accept or not to accept".24.The reading of Clause 1.2 of the "Regulations 2010" leaves nomanner of doubt, that these regulations apply to every universityestablished or incorporated by or under the Central Act, Provincial Actor a State Act, every institution including a constituent or anaffiliated college recognised by the Commission, in consultation withthe University concerned under Clause (f) of Section 2 of theUniversity Grants Commission Act, 1956 and every institutions deemed tobe a University under Section 3 of the said Act. The regulations,therefore, would apply to every university constituted under the StateAct. It is also not disputed that the regulations framed by the UGChave overriding effect over the Government Orders. However, inspite ofthis, answer to question will be against the petitioners for thereasons hereinafter stated.25.The scheme reads as under:"(i) This Scheme shall be applicable to teachers andother equivalent cadres of Library and Physical Education inall the Central Universities and Colleges there-under and theInstitutions Deemed to be Universities whose maintenanceexpenditure is met by the UGC. The implementation of therevised scales shall be subject to the acceptance of all theconditions mentioned in this letter as well as Regulations tobe framed by the UGC in this behalf. Universitiesimplementing this Scheme shall be advised by the UGC to amendtheir relevant statutes and ordinances in line with the UGCRegulations within three months from the date of issue ofthis letter.(ii) This Scheme does not extend to the cadres ofRegistrar, Finance Offier and Controller of Examinations forwhich a separate Scheme is being issued separately.(iii) This Scheme does not extend to the Accompanists,Coaches, Tutors and Demonstrators. Pay and Grade Pay of thesaid categories of employees shall be fixed in theappropriate Pay Bands relative to their existing Pay in eachuniversity / institution corresponding to such fixation inrespect of Central Government employees as approved by theCentral Government on the basis of the recommendations of 6thCentral Pay Commission.(iv) This Scheme does not extend to the posts ofprofessions like System Analysts, Senior Analysts, ResearchOfficers etc., who shall be treated at par with similarly https://hcservices.ecourts.gov.in/hcservices/ qualified personnel in research / scientific organizations ofthe Central Government.(v) This Scheme may extended to universities, Collegesand other higher educational institutions coming under thepurview of State legislatures, provided State Governmentswish to adopt and implement the Scheme subject to thefollowing terms and conditions:(a) Financial assistance from the Central Government toState Governments opting to revise pay scales of teachers andother equivalent cadre covered under the Scheme shall belimited to the extent of 80% (eighty percent) of theadditional expenditure involved in the implementation of therevision.(b) The State Government opting for revision of payshall meet the remaining 20% (twenty percent) of theadditional expenditure from its own sources.(c) Financial assistance referred to in sub-clause (a)above shall be provided for the period from 1.01.2006 to31.03.2010(d) The entire liability on account of revision of payscales etc. of university and college teachers shall be takenover by the State Government opting for revision of payscales with effect from 1.04.2010.(e) Financial assistance from the Central Governmentshall be restricted to revision of pay scales in respect ofonly those posts which were in existence and had been filledup as on 1.01.2006.(f) State Government, taking into consideration otherlocal conditions, may also decide in their discretion, tointroduce scales of pay higher than those mentioned in thisScheme, and may give effect to the revised bands / scales ofpay from a date on or after 1.01.2006; however, in suchcases, the details of modifications proposed shall befurnished to the Central Government and Central assistanceshall be restricted to the Pay Bands as approved by theCentral Government and not to any higher scale of pay fixedby the State Government(s).(g) Payment of Central assistance for implementing thisScheme is also subject to the condition that the entireScheme of revision of pay scales, together with all theconditions to be laid down by the UGC by way of Regulationsand other guidelines shall be implemented by StateGovernments and Universities and Colleges coming under their https://hcservices.ecourts.gov.in/hcservices/ jurisdiction as a composite scheme without any modificationexcept in regard to the date of implementation and scales ofpay mentioned herein above." 26.The Regulation making authority, while framing the"Regulations 2010", has left it to the discretion of the StateGovernment to adopt or not to adopt the scheme.27.The only condition in the scheme is, that the payment ofcentral assistance on adoption of scheme is subject to the conditionthat the scheme has to be adopted without any modification.28.Once the regulation making authority left it to the option ofthe State Government, either to implement or not to implement theregulations, these cannot be automatically binding on the StateGovernment. The impugned Government Order, therefore, cannot be said tobe contrary to the "Regulations 2010".29.The contention of learned Senior Counsel for the petitionerswas, that the Hon'ble High Court of Jharkhand and the High Court ofPatna considered the judgment of the Hon'ble Supreme Court in B.BharatKumar and others vs. Osmania University and others (supra) to hold thatit does not apply to the statutory regulations, with respect to theHon'ble Judges of those Courts. This view cannot be accepted, as theHon'ble Supreme Court specifically held as under:"15. Once we take this view on the plain reading of thescheme, it would be necessary for us to take stock of thesubsequent arguments of Mr.Rao regarding Entry 66 in the ListI vis-`-vis Entry 25 in List III. In our opinion, thecommunications even if they could be heightened to thepedestal of a legislation or as the case may be, a policydecision under Article 73 of the Constitution, they wouldhave to be read as they appear and a plain reading is goodenough to show that the Central Government or as the case maybe 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 theEntries and in examining as to whether the scheme wasbinding, particularly when the specific words of the schemedid not suggest it to be binding and specifically suggest itto be voluntary."30.Once the Regulations 2010, which forms part of the UGCregulations, itself gave option to the State Government either toaccept or not to accept, it cannot be said that the impugned Governmentorder is in violation of the Regulations 2010, having exercised theright under the Regulations 2010 in not accepting it.31.The reading of the regulations shows that failure to acceptthe scheme in totality may disentitle reimbursement of 80% of the https://hcservices.ecourts.gov.in/hcservices/ revived pay for the specified period. It is therefore for the CentralGovernment to consider whether not to reimburse to the State Governmentthe financial burden for specified period for not adopting theregulations in totality, but it cannot give any legal right to thepetitioners to challenge the impugned notification, by claiming it tobe violative of the Regulations 2010, for having accepted therecommendation only partly.32.For the reasons stated herein-above, there is no merits inthis writ petition. It is accordingly ordered to be dismissed. 33.No costs. Connected miscellaneous petitions are closed. arSd/-Asst. Registrar(CO)//True Copy//Sub Asst. RegistrarTo,1.The Secretary, Government of India,Ministry of Human Resource Development of Higher Education, New Delhi2.The SecretaryGovernment of India,Ministry of Agriculture,Department of Agricultural Research and Education(Indian Council of Agricultural Research)-I CARKrishi Bhavan, New Delhi3.The SecretaryUniversity Grants Commission (UGC)Bahadur Shah Zafar Marg,New Delhi – 110 002.4.The Secretary to Government,State of Tamil Nadu,Agriculture Department,Fort St.George, Chennai-600 009.5.The Board of Management,Tamil Nadu Agricultural University,Coimbatore-641 003. https://hcservices.ecourts.gov.in/hcservices/

6.The Vice-Chancellor,Tamil Nadu Agricultural University,Coimbatore-641 003.7.The Registrar,Tamil Nadu Agricultural University,Coimbatore-641 003.+ 1 cc to Government Pleader, SR No.26051+ 1 cc to Mr. R.G. Narendharan, Advocate SR No.25825+ 1 cc to Mr. S. Haja Mohideen Gisthi, Advocate SR No.26282+ 1 cc to Mr. Abdulsaleem, Advocate SR No.25723+ 1 cc to Mr. P.R. Gopinathan, Advocate SR No.26612TRM(CO)SR/26.4.2012. Order inW.P.No.24931 of 2011