Prof. Rajeeva Ranjan Sinha And 2 ... vs State Of U.P. And 2 Ors
2015 Latest Caselaw 2230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 10
 

 
Case :- WRIT - A No. - 60826 of 2014
 

 
Petitioner :- Prof. Rajeeva Ranjan Sinha And 2 Ors
 
Respondent :- State Of U.P. And 2 Ors
 
Counsel for Petitioner :- Durga Tiwari,Praveen Kumar Rai
 
Counsel for Respondent :- C.S.C.,V.B. Mishra
 
			AND
 
Case :- WRIT - A No. - 63907 of 2014
 

 
Petitioner :- Lok Nath Singh And 4 Ors
 
Respondent :- State Of U.P. And 2 Ors
 
Counsel for Petitioner :- Durga Tiwari
 
Counsel for Respondent :- C.S.C.,Vivek Verma
 
			AND
 
Case :- WRIT - A No. - 23184 of 2012
 

 
Petitioner :- Dr. Adya Prasad Mani Tripathi
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Manoj Kumar
 
Counsel for Respondent :- C.S.C.,A.S.G.I.2012/3484
 
			AND
 
Case :- WRIT - A No. - 23186 of 2012
 

 
Petitioner :- Dr. Ram Naresh Mishra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Manoj Kumar
 
Counsel for Respondent :- C.S.C.,A.S.G.I.2012/3485
 
			AND
 
Case :- WRIT - A No. - 23188 of 2012
 

 
Petitioner :- Dr. Janardan Prasad Shukla
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Manoj Kumar
 
Counsel for Respondent :- C.S.C.,A.S.G.I.2012/3483
 
			AND
 
Case :- WRIT - A No. - 25777 of 2012
 

 
Petitioner :- Dr. Vidyadhar Mishra
 
Respondent :- State Of U.P.Thru Secy. And Others
 
Counsel for Petitioner :- Manoj Kumar
 
Counsel for Respondent :- C.S.C.,A.S.G.I.(2012/3553),Ritvik Upadhya,S.C.
 
			AND
 
Case :- WRIT - A No. - 38802 of 2011
 

 
Petitioner :- Prof. Vinod Kumar Rastogi
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Vivek Prakash Mishra
 
Counsel for Respondent :- C.S.C.,A.Khanna
 

 

 
Hon'ble Arun Tandon,J.

Hon'ble Shashi Kant,J.

This bunch of eight writ petitions has been filed by the persons who are working as Assistant Professor and Associate Professor in various Universities and Degree Colleges in the State of Uttar Pradesh, affiliated to State such Universities.

It is not in dispute that service conditions of petitioners before this Court are regulated by the U.P. State Universities Act, 1973 (hereinafter referred to as 'Act, 1973'), and the First Statute of the respective Universities as well as the ordinances framed therein by the concerned Universities.

Petitioners before this Court, with reference to the Scheme floated by the University Grant Commission (hereinafter referred to as 'the UGC') and circulated under the letter of Ministry of Human Resource and Development (hereinafter referred to as 'the Ministry of HRD'), vide letter dated 31.12.2008, known as "Scheme of Revision of pay of teachers and equivalent cadres in Universities and colleges following the revision of pay scales of Central Government employees on the recommendation of the Sixth Central Pay Commission" (hereinafter referred to as 'the Scheme'), seek enhancement in the age of retirement up to 65 years.

It is not in dipsute that so far as teachers in Central Universities and affiliated Degree Colleges to Central Universities are concerned, the Scheme become applicable without any further steps being required to be taken by the concerned Central Universities, but sofar as State Universities are concerned, the Scheme comtemplates that the State Government would be free to take into consideration local conditions and may accordingly take a decision to adopt the Scheme with the rider that if they so decide to adopt the Scheme it would apply in toto as a composite Scheme. It would be desireable to reproduce paragraph no. (v) of Clause (p) of the Scheme which falls under the heading "Applicability of the Scheme" :-

"(v) This Scheme may be extended to universitites, Colleges and other higher educational institutions coming under the purview of State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions :

(a) Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implementation of the revision.

(b) The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure from its own sources.

(c) Financial assistane referred to in sub-clause (a) above shall be provided for the period from 1.01.2006 to 31.03.2010.

(d) The entire liability on account of revision of pay scales etc. of university and college teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1.04.2010.

(e) Financial assistane from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1.01.2006.

(f) State Governments, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme, and may give effect to the revised bands/scales of pay from a date on or after 1.01.2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and not to any higher scale of pay fixed by the State Government(s).

(g) Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above."

We may at the very outset record that Apex Court in the case of Jagdish Prasad Sharma and Others Vs. State of Bihar and Others [2013 (8) SCC 633], has specifically held that said Scheme is a composite Scheme and if the State decides to adopt the Scheme, then it has to abide by all the conditions as laid down by the UGC. Reference paragraph nos. 2, 9, 10, 11, 12, 13, 20, 21, 65, 67, 70, 71, 72, 78 and 79 of the judgment.

With reference to the same judgment, learned counsel for the petitioner states before this Court that Supreme Court in paragraph no. 21, has recorded that the Scheme has been implemented without waiting for UGC regulations by the State of Uttar Pradesh alongwith other States and that the States sought for reimbursment of 80% of the expenses under the terms of the Scheme without enhancing the age of retirement of the teachers concerned. The Central Government has taken the stand that since the Scheme is a composite one, it had to be given effect by the States concerned, as a whole, the question of reimbursement of 80% of the expenses did not arise in the case of State of U.P. and this was one of the core issues which has arisen in the case before the Apex Court.

Learned counsel for petitioners submits that once it has been held that State of Uttar Pradesh has adopted the Scheme and that the Scheme was a composite Scheme, the State Government has no other option but to issue necessary orders under Section 50 of State Universities Act for amendments being made in the statutes pertaining to age of retirement of the teachers of the State Universities and Degree Colleges to 65 years and even in in absence of such amendment, State Universities/Degree Colleges cannot be permitted to retire their teachers at the age of 62, in view of the fact that under the Scheme, age of retirement has been enhanced to 65 years. This according to petitioners follows from paragraph no. 79 of the judgment of the Apex Court in the case of Jagdish Prasad Sharma (supra).

We may reproduce paragraph no. 79 of the judgment as it has been so heavily relied upon by the learned counsel for the petitioners :

"79. However, within this class of institutions there is a separate group where the State Governments themselves have taken a decision to adopt the Scheme. In such cases, the consequences envisaged in the Scheme itself would automatically follow."

On behalf of respondent State of Uttar Pradesh it has been contended that the Scheme has not been adopted. It is contended that the letter dated 28th February, 2009, which is the basis for the allegation pertaining to adoption of the Scheme by the State of Uttar Pradesh, is only a decision to provide same payscale to the teachers as has of Universities/Degree Colleges been provided for under the Scheme of the UGC.

It is submitted that State Government has not taken any decision till date to enhance the age of retirement of the teachers of State Universities and that of Degree Colleges from 62 years to 65 years and there has been no direction by the State under Section 50 of the State Universities Act for any amendments being made in the statutues/rules which regulate the age of retirement of teachers of the concerned Universities and Degree Colleges.

It is explained to the Court that observations which have been made by the Apex Court in the case of Jagdish Prasad Sharma (supra), qua adoption of the Scheme by the State of U.P., has to be read alongwith letter dated 28th February, 2004. It will be seen that there has been no adoption of the Scheme as a whole by the State.

It is submitted that since the State has not adopted the Scheme and has not decided to enhance the age of retirement of teachers, then as a logical consequence, the State of Uttar Pradesh could not be entitled to the benefit of the Scheme in the matter of reimbursement of 80% of the expenditure incurred by it for the period mentioned in the Scheme and no other consequence will follow.

It is stated before us that so long as Ist statute of the University pertaining to age of superannuation of the teachers of Universities and Degree Colleges stand on record, the writ Court may not issue any mandamus for permitting the petitioners to continue beyond the age so prescribed.

Learned counsel for petitioner in support of his plea of adoption of the Scheme by the State of U.P., referred to a Division Bench judgment of this Court in the case of Dr. Hridaya Nath Tripathi Vs. The State of U.P. And Others being Writ-A No. 64068 of 2011, decided on 17.01.2013 and Writ-A No. 48192 of 2010 - Dr. V.K. Chauhan, Principal, Dr. B.R.A.G.D. College and Others Vs. State of U.P. and Others, decided on 31.01.2013, and it is submitted that the Division Bench judgment are binding upon this Court and if Court is not in agreement with what has been laid down in the said judgments, at best it can refer the matter to the Larger Bench. For the proposition reference has been made to the judgment of the Apex Court in the case of P. Suseela And Ors. Etc. Etc. Vs. University Grants Commission And Ors. Etc. Etc., being Civil Appeal No. of 2015 (arising out of SLP (Civil) Nos. 36023 - 36032 of 2010), decided on 16.03.2015.

Learned counsel for petitioner has also placed reliance upon the judgment in the case of Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation [(2009) 8 SCC 646], for the same proposition. In order to explain as to what is the binding ratio, reference has been made to judgment of Apex Court in the case of Indian Bank Vs. A.B.S. Mani Products Pvt. Ltd. [(2006) 5 SCC 72].

We may at the outset record that there cannot be any dispute with regard to the legal proposition qua the binding effect of the ratio of a judgment of a coordinate Bench and in the case of disagreement, this Court may be obliged to refer the matter to a Larger Bench.

We are in complete agreement with the legal position so explained in the judgment which has been referred to by the learned counsel for petitioners, nothing may be added by us.

But the crux of the matter before us is to examine as to whether in the facts of the case there has been adoption of the Scheme by the State as forwarded under the letter of Ministry of HRD dated 31st December, 2008 or not. In case the State has decided not to implement the Scheme as a whole, how could it ask for reimbursement of 80% of the expenses incurred after revision of payscale at par the scales formulated under the Scheme. Will enhancement of pay scales only will tantamount to a decision of adoption of the Scheme and therefore the State so enhance the age of retirement of its teachers will follow automatically or not?

Other question to be examined by this Court is as to whether Apex Court in the case of Jagdish Prasad Sharma (supra), in paragraph no. 21 has laid down as a finding of fact that the Scheme of 2008, of UGC has been adopted by the State of Uttar Pradesh in toto or not.

We may at the very outset refer to the letter which has been issued by the State Government while considering revision of pay scale of the teacher of the Universities and Degree Colleges affiliated under the State Universities Act, dated 28th February, 2009, which according to petitioners is the adoption of the Scheme, 2008 floated by the UGC. From simple reading of the aforesaid letter of the State Government, it is apparently clear that subject of the letter provides for revision of payscale to the teachers of the Universities and Degree Colleges. The subject is not for adoption of the Scheme, 2008 of the UGC. The other striking feature of the letter is that in paragraph no. 1, (which only refers to the letter of the Ministry of HRD dated 31st December, 2008), teachers of State Universities and Degree colleges have been provided same payscale as has been determined under the letter of Ministry of HRD dated 31st December, 2008 and nothing beyond that.

We may record that said letter of the State Government no where proposes enhancement of the age of retirement of the teachers of the State Universities and Degree Colleges from 62 to 65 years. As a matter of fact, issue of adoption of the Scheme of 2008 and the issue of age of retirement of teachers of Universities and Degree Colleges has not been even addressed in the said letter.

We are of the opinion that this letter of the State Government by no stretch of imagination can be said to be adoption of the entire Scheme of the UGC as floated in the year 2008.

Having arrived at the said finding, we must address ourselves as to what has been recorded by the Apex Cort in the case of Jagdish Prasad Sharma (supra), in paragraph no. 21 of the said judgment which is also heavily relied upon by the petitioners, reads as under :

"21. It appears that the States of West Bengal, Uttar Pradesh, Haryana, Punjab and Madhya Pradesh implemented the Scheme without waiting for the UGC regulations, which were framed only on 30.06.2010, whereas the said Scheme was implemented by the aforesaid States long before the said date. It is when the reimbursement of 80% of the expenses was sought for from the Central Government, that the problems arose, since in keeping with the composite Scheme, the States concerned had not enhanced the age of superannuation simultaneously. The Central Government took the stand that since the Scheme in its composite form had not been given effect to by the States concerned, the question of reimbursement of 80% of the expenses did not arise. This is one of the core issues, which has arisen in these cases for decision."

From careful reading of the paragraph no. 21 of the judgment in the case of Jagdish Prasad Sharma (supra), it is apparently clear that Apex Court has only recorded that it appears that State of Uttar Pradesh and other names States have implemented the Scheme without waiting for the UGC regulation which were framed only on 30th June, 2010, meaning thereby that Apex Court itself is consious of the fact that resolution was clearly not in force at the time when State of Uttar Pradesh is said to have implemented the Scheme. Even otherwise, from the bare reading of paragraph 21 it is clear that Central Government had objected to reimbursement of 80% of the expenses by the State of U.P. on the ground that it has not adopted the Scheme in its entirety. The Apex Court has further recorded in the same paragraph that core issue up before the Supreme Court is as to whether the State can ask for reimbursement of 80% expenses when it had not adopted the Scheme in toto. The judgment of the Apex Court in the case of Jagdish Prasad Sharma (supra), has to be read in that background.

We may also refer to the Section 50 of the State Universities Act which confers power on the State Government to require various Universities established under the State Universities Act to amend their statutes in conformity with the directions to be issued by the State Government and in case State Universities fail to do so a power is confered upon the State Government to amend the statutes itself.

It is not the case of the petitioners that at any point of time any direction was issued by the State Government to the Universities to amend its statutes regulating age of retirement of its teachers and teachers of Degree Colleges or that State Government ever exercised its power under Section 50(1) of the State Universities Act to amend the existing statutes in the matter of enhancement of the age of retirement of the teachers of the Universities and Degree Colleges .

Such being the situtation, we have no hasitation in recording that what is prescribed under the law with regard to age of retirement of teachers of Universities and Degree Colleges, as on date is the age of 62 years, on attaining of which the teacher must retire, so long as any statute stands on record. As on date, petitioners before this Court cannot be granted any mandamus so that they may be permitted to continue till the age of 65 years and not being retired at the age of 62 years.

So far as judgments of the Divison Bench of this Court in the case of V.K. Chauhan is concerned, we may record that the finding qua the Scheme having been adopted in toto by the State of Uttar Pradesh, has been recorded without any reference to the language of the aleged letter dated 28th February, 2009 and the simple meaning to be attached to the words used therein. We are of the considered opinion that the judgment proceeds on non consideration of the intent of the letter datd 28th February, 2009 as well as upon non consideration of the statutory provisions which regulate the date of retirement of teachers as well s statutory provisions conferring the power upon the State Government to make amendments and therefore said judgment in our opinion is per incurium as explained by the Apex Court in the case of Jagdish Prasad Sharma (Supra).

Other judgments which have been relied upon is of the case of Dr. Hridaya Nath Tripathi (supra), also proceeds on non consideration of the language of the Government Order dated 28.02.2009 and it records as follows :

"It is also not in dispute that the State Government had accepted the terms and conditions of the Scheme and as such, we are of the view that once the scheme has been accepted by the State Government, it is bounded duty of the State to act thereupon........."

The finding that it is also not disputed that the State Government has accepted the terms and conditions of the Scheme is not correct, as a matter of fact the State Government has all along contending that it had not adopted the Scheme in toto and that it had only resolved to provide same payscale to the teachers of State Universities and Degree Colleges which was at par with what has been provided for the Central Universities under the Scheme of the Central Government, referred to above and nothing beyond it.

For the aforesaid reasons, we find that no case is made out for any mandamus being issued in the facts and circumstances of the cases.

Writ petitions lack merit.

Dismissed. Interim orders, if any are vacated.

(Shashi Kant, J.)                                  (Arun Tandon, J.)

Order Date :- 9.9.2015

A. Verma