High Court · 2025

First St at ut es of HNB Garhwal Universit y, w hich reads as under : - “ 17.15. No ext ension in service beyond t he age of superannuat ion shall be grant ed t o any t eacher aft er t he dat e of com m encem ent of t hese St at ut es: [ Sect ion 49] . a t hat t eacher whose [ Provided superannuat ion does not fall on June 30 shall cont inue in service t ill t he end of t he academ ic session, following, and w ill be t reat ed as on re- em ploym ent from t he dat e im - m ediat ely following his superannuat ion t ill June 30, following: is, June 30 dat e t hat Provided furt her t hat such physically and m ent ally fit t eachers shall be reappoint ed for a furt her period of t wo year, aft er June 30, following t he dat e of t heir superannuat ion, as were im prisoned for t aking part in freedom st ruggle of 1942 and are get t ing freedom fight ers pension] . t he t hat [ Provided also t eachers who were re- appoint ed in accordance wit h t he second proviso as it exist ed prior t o t he com m encem ent of t he Garhwal Universit y First St at ut e, 1988 and a period of one year has not elapsed aft er t he expiry of t he period of t heir re- em ploy- m ent , m ay be considered for re- appoint m ent for a furt her period of one year.] ” ( Twent y- second Am endm ent ) 2

3. The applicat ion m ade pet it ioner was forwar ded by t he Secret ary , Boar d of Managem ent of t he college wit h his recom m endat ion t o t he Direct or, Higher Educat ion, vide let t er dat ed 10.10.2018. The Dir ect or, Higher Educat ion, t urned down pet it ioner’s pray er re- em ploym ent , vide or der dat ed 12.11.2018, on t he ground t hat age of superannuat ion of t eachers of affiliat ed colleges is now fix ed as 65 year s and in t he absence of any provision re- em ploym ent aft er 65 year s t he Governm ent Or der, her r equest cannot be acceded t o. Feeling aggrieved, pet it ioner approached t his Court challenging Dir ect or’s order dat ed 12.11.2018. She also sought dir ect ion t o t he Dir ect or t o grant approval for her re- em ploym ent , as per St at ut e 17.15.

4. A short count er affidavit is filed by Dr. Aj ay Kum ar Mohant y , Joint Regist rar , HNB Garhwal Univ ersit y, Srinagar st at ing t hat HNB Gar hwal Univer sit y was earlier a St at e Universit y and was governed by provisions of U.P. St at e Univ ersit ies Act , 1973, how ev er, aft er upgradat ion as Cent ral Univer sit y w .e.f. 15.01.2009, t he Univer sit y is now gover ned by provisions of Cent ral Univer sit ies Act , 2009. I t is furt her st at ed t hat t he colleges affiliat ed t o er st w hile HNB Garhwal Universit y rem ain affiliat ed t o HNB Garhw al ( Cent ral) Univ ersit y, in view of provision cont ained Sect ion 4( f) of t he Cent ral Univer sit ies Act , 2009, howev er 3 t he said Act do not confer t he pow er t o am end t he St at ut e fram ed under Sect ion 50 of t he St at e Univer sit ies Act ,

1973. I t is furt her st at ed t hat age of superannuat ion of t eacher s of affiliat ed colleges was incr eased from 60 years t o 65 years by an order issued by t he St at e Gover nm ent pur suant t o UGC Regulat ions, how ever , t her e is no provision for ext ension of ser vice t ill end of academ ic session, in t he UGC Regulat ions or in t he ex ecut ive order issued by t he St at e Gover nm ent .

5. Mr. M.M. Sem w al, Joint Secr et ary, Higher Educat ion Depart m ent has filed separat e count er affidavit on behalf of r espondent no. 1, in which r eference is m ade t o t he following t hree Gov er nm ent orders. ( i) Governm ent Order dat ed 18.06.2005. ( ii) Governm ent Order dat ed 15.10.2012. ( iii) Governm ent Order dat ed 12.09.2017.

6. Lear ned St at e Counsel subm it s t hat befor e 2005, t eacher s of affiliat ed colleges w ho opt ed t o ret ire at t he age of 58 years wer e given cert ain ret ir al benefit s, w hich wer e not available t o t eacher s of such colleges who opt ed t o ret ire at t he age of 60 years, however, t his differ ence was done away wit h by a Governm ent Order dat ed 18.06.2005 and in para no. 4 of t he said Governm ent Order, it was provided t hat upon com plet ing 60 year s of ser vice, such 4 t eacher s will be ent it led t o all ret iral benefit s, and furt her t hat no ext ension in service shall be given t o t hem , how ever , in cases wher e t he service of a r et iring t eacher is indispensible, t hen decision for his re- em ploym ent m ay be t aken as per t he laid dow n norm s.

7. Lear ned St at e Counsel has also dr awn at t ent ion t o Governm ent Or der dat ed 15.10.2012 issued by Principal Secr et ary, Higher Educat ion Depar t m ent , w her eby age of superannuat ion of t eacher s of St at e Univer sit ies and Colleges affiliat ed t o such Univ ersit ies was incr eased from 60 years t o 65 y ears w.e.f. 04.09.2012. He subm it s t hat as per St at ut e 17.14, Part - I I I of Chapt er XVI I of t he First St at ut es of HNB Garhwal Universit y, t he age of superannuat ion of t eacher of affiliat ed college is 60 y ears. He subm it s t hat upon upgradat ion of HNB Garhwal Univer sit y as Cent ral Univ ersit y, provision cont ained in t he St at ut e could not be am ended in t he absence of enabling provision in t he Cent ral Univer sit ies Act , 2009. He subm it s t hat since t he benefit of increase in age of super annuat ion was giv en t o t eacher s of colleges affiliat ed t o HNB Garhw al ( Cent ral) Univ ersit y by a Governm ent Order, cont rary t o t he St at ut e and in t he Gover nm ent Order, t her e is no provision re- em ploym ent of or ext ension t o such t eacher s t ill t he end of academ ic session, t her efor e, t he First St at ut es of t he HNB Gar hwal Univer sit y st ood repealed 5 t o t he ext ent it is inconsist ent t o t he policy decision t aken by t he St at e Governm ent . He subm it s t hat as per t he First St at ut e of t he Univer sit y, age of superannuat ion of a t eacher is st ill 60 years, but such t eacher s hav e accept ed t he benefit of Governm ent decision and t hey ar e now superannuat ing at t he age of 65 y ears, w hich is cont r ary t o t he provision cont ained in St at ut e 17.14 Part - I I I of Chapt er XVI I of t he Fir st St at ut es. Thus, he subm it s t hat reliance by pet it ioner upon fir st proviso t o St at ut e 17.15 is m isplaced. Lear ned St at e Counsel subm it s t hat pet it ioner could have sought re- em ploy m ent t ill t he end of academ ic session, only if she w as r et iring at t he age of 60 years as per t he St at ut e, and aft er increase in age of ret irem ent t o 65 years by a Governm ent Or der, she cannot claim benefit of ext ension t ill end of session m er ely because first proviso t o St at ut e

17.15 per m it s so.

8. Lear ned St at e Counsel furt her subm it s t hat t he provision for r e- em ploym ent m ade first proviso t o St at ut e 17.15 is an enabling pr ovision, w hich can be invoked by t he Com pet ent Aut horit y in t he int er est of st udent s. He subm it s t hat since pet it ioner enj oy ed t he benefit of enhanced age of superannuat ion pur suant t o a decision t aken by t he St at e Gov ernm ent , w hich is cont rary t o t he St at ut e, t herefor e, she cannot now cont end t hat she m ay furt her be re- em ployed even aft er at t aining 65 year s 6 of age. Thus, he subm it s t hat t he doct rine of desuet ude would be at t ract ed and pet it ioner cannot claim t he benefit of first proviso t o St at ut e 17.15 as of right .

9. Lear ned St at e Counsel has draw n at t ent ion of t his Court t o anot her Gov ernm ent Order dat ed 12.09.2017, in para no. 2 w her eof, it is st at ed t hat ex cept legal, t echnical or scient ific post s for w hich special t raining, m erit and t he efficiency is r equired, r e- em ploym ent shall not be per m it t ed in any ot her post .

10. Aft er having heard learned counsel t he part ies and aft er going t hrough t he fir st St at ut e of HNB Garhwal Univ er sit y and t he Governm ent Order s issued by t he St at e from t im e t o t im e, w e are of t he consider ed opinion t hat aft er having accept ed t he benefit of Governm ent Order dat ed 15.10.2012, whereby age of ret irem ent of t eachers of affiliat ed colleges was enhanced from 60 t o 65 years, pet it ioner cannot rely on t he St at ut e of t he Univer sit y for claim ing ext ension in service t ill end of session.

11. As discussed above, t he age of r et irem ent of t eacher s of colleges affiliat ed t o HNB Garhwal Univ er sit y is 60 year s; while, pet it ioner cont inued in ser vice upt o 65 years of age due t o t he policy decision t ak en by St at e Governm ent . The benefit available in first proviso t o Art icle

17.15 would be available only t o a t eacher , who 7 superannuat es at t he age of 60 years, in t er m s of Art icle

17.14 of t he Fir st St at ut e of t he Universit y.

12. Since pet it ioner’s cont inuance t ill 65 years of age is dehor s t he st at ut ory provision, t herefor e, t he first proviso t o Art icle 17.15 would becom e inoperat ive by applicat ion of principle of desuet ude.

13. St at e has issued Governm ent Or der s, which prohibit r e- em ploym ent aft er at t aining superannuat ion. As per t he St at ut e, pet it ioner would have ret ired aft er com plet ing 60 years of age, how ever, she serv ed for five m ore year s as Associat e Professor on t he St rengt h of Governm ent Or der s, t her efore, t he condit ion m ent ioned in Gov ernm ent Or ders t hat re- em ploym ent shall not be given t o a person once he/ she at t ains age of superannuat ion w ould be at t ract ed and r eliance on t he St at ut e for seeking re- em ploym ent is, t herefor e, unt enable. Thus, t his Court does not find any r eason t o int erfere wit h t he decision t aken by t he Direct or, Higher Educat ion on

12.11.2018, whereby pet it ioner ’s request re- em ploym ent was t urned dow n.

14. Lear ned counsel for pet it ioner t hen subm it t ed t hat pet it ioner ser ved in t he college ev en aft er com plet ing 65 years of age, t her efore, she is ent it led t o salary for t he services render ed by her, aft er 09.10.2018.

15. Lear ned St at e Counsel, howev er , subm it s t hat 8 t he St at e Gover nm ent is not liable t o pay any salary, as t he Direct or , Higher Educat ion had infor m ed all concerned t hat pet it ioner is not ent it led for re- em ploym ent .

16. Be t hat as it m ay, if pet it ioner has serv ed aft er

09.10.2018, t hen she can approach t he com pet ent aut horit y for salar y.

17. The w rit pet it ion is, accordingly, disposed of by per m it t ing t he pet it ioner t o m ake represent at ion. The represent at ion, if m ade wit hin t hr ee weeks from t oday, t he com pet ent aut hor it y shall exam ine pet it ioner’s claim for salary, as per law, wit hin t hr ee m ont hs from t he dat e of receipt of such r epresent at ion. ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.) 02.06.2025 Navin NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f 487df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819 DA875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA 9