Dr. Prem Chandra Mishra vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 21584 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 

 
Court No. - 03
 

 
Case :- WRIT - A No. - 4440 of 2022
 

 
Petitioner :- Dr. Prem Chandra Mishra
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Prin. Secy. (Higher Education) Lko. And 2 Others
 
Counsel for Petitioner :- Raj Kumar Upadhyaya (R.K.Upadhyaya),Ajeet Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 2853 of 2022
 

 
Petitioner :- Dr. Kanchan Saxena
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 

 
&
 
Case :- WRIT - A No. - 2982 of 2022
 

 
Petitioner :- Dr. Balak Das
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Rahul Kumar,Dhruv Mathur
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 2988 of 2022
 

 
Petitioner :- Dr. Kishori Lal
 
Respondent :- State Of U.P. Thru. The Prin. Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 2990 of 2022
 

 
Petitioner :- Dr. Ram Ganesh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 3009 of 2022
 

 
Petitioner :- Dr. Shashi Shukla
 
Respondent :- State Of U.P. Thru. Prin, Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Rahul Kumar,Dhruv Mathur
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 3179 of 2022
 

 
Petitioner :- Dr. Surendra Pal Singh
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Higher Edu. Lko. And 7 Others
 
Counsel for Petitioner :- Pt. S. Chandra
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Shailesh Kumar
 
&
 

 
Case :- WRIT - A No. - 3287 of 2022
 

 
Petitioner :- Dr. Abha Singh
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Agriculture Education And Research Lko. And 2 Others
 
Counsel for Petitioner :- Brijesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Dr. Surendra Singh
 
&
 
Case :- WRIT - A No. - 3325 of 2022
 

 
Petitioner :- Dr. Desh Deepak
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Uma Shankar Sahai,Beena Kishor
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 3397 of 2022
 

 
Petitioner :- Dr. Purnima Srivastava
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. And 4 Others
 
Counsel for Petitioner :- Uma Shankar Sahai,Beena Kishor
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 3542 of 2022
 

 
Petitioner :- Professor Omkar And Another
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education, Govt. Up Lko. And 4 Others
 
Counsel for Petitioner :- Sharad Pathak
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 3550 of 2022
 

 
Petitioner :- Dr. Protima Puri
 
Respondent :- State Of U.P. Thru. The Prin. Secy. Higher Edu. Govt Of U.P. Lucknow. And Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Shailesh Kumar
 
&
 
Case :- WRIT - A No. - 3604 of 2022
 

 
Petitioner :- Dr. Sunil Prakash Trivedi And 2 Others
 
Respondent :- State Of U.P. Thru. Its Addl. Chief Secy. Higher Education Lko. And 3 Others
 
Counsel for Petitioner :- Vijay Dixit
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 
Case :- WRIT - A No. - 3723 of 2022
 

 
Petitioner :- Dr. Ashok Shukla
 
Respondent :- State Of U.P. Thru. Its Prin. Secy. Higher Edu. Lko. And 2 Others
 
Counsel for Petitioner :- Dilip Mani
 
Counsel for Respondent :- C.S.C.,Jogendra Nath Verma
 
&
 
Case :- WRIT - A No. - 3754 of 2022
 

 
Petitioner :- Dr. Reena Khare
 
Respondent :- State Of U.P. Thru. Its Prin. Secy. Higher Education Lko. And 6 Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Shailesh Kumar
 
&
 
Case :- WRIT - A No. - 3756 of 2022
 

 
Petitioner :- Krishna Yadav
 
Respondent :- State Of U.P. Thru. The Prin. Secy. Higher Education Lko. And 6 Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Shailesh Kumar
 
&
 
Case :- WRIT - A No. - 3761 of 2022
 

 
Petitioner :- Dr. Sandhya Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education And 6 Others
 
Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 
&
 

 
Case :- WRIT - A No. - 3762 of 2022
 

 
Petitioner :- Dr. Mirza Mohammad Abid Ali Khan
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education And 6 Others
 
Counsel for Petitioner :- Rahul Kumar,Dhruv Mathur
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Shailesh Kumar
 
&
 

 
Case :- WRIT - A No. - 3797 of 2022
 

 
Petitioner :- Dr. Akbal Bahadur Singh
 
Respondent :- State Of U.P. Thru. Its Prin. Secy. Deptt. Of Higher Education Lko. And 5 Others
 
Counsel for Petitioner :- Aashish Srivastava,Rajendra Prasad Yadav
 
Counsel for Respondent :- C.S.C.,Hari Om Singh,Prashant Kumar Tripathi
 
&
 
Case :- WRIT - A No. - 3803 of 2022
 

 
Petitioner :- Dr. Anjani Kumar Mishra
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. And 6 Others
 
Counsel for Petitioner :- Rahul Kumar,Dhruv Mathur
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Shailesh Kumar
 
                                                        &
 
Case :- WRIT - A No. - 3805 of 2022
 

 
Petitioner :- Dr. Anita Shukla
 
Respondent :- State Of U.P. Thru. Prin. Secy. Highier Education Lko. And Others
 
Counsel for Petitioner :- Rohit Kumar Verma
 
Counsel for Respondent :- C.S.C.,Savitra Vardhan Singh,Shailesh Kumar
 
&
 
Case :- WRIT - A No. - 3862 of 2022
 

 
Petitioner :- Dr. Krishna Nand Pandey And Another
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Higher Education Lko. 5 Others
 
Counsel for Petitioner :- Aashish Srivastava,Aashish Srivastava,Rajendra Prasad Yadav
 
Counsel for Respondent :- C.S.C.,Dharmendra Gupta,Jogendra Nath Verma,Shailesh Kumar
 
&
 
Case :- WRIT - A No. - 3944 of 2022
 

 
Petitioner :- Sanjay Agarwal
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Higher Education Lko. And 5 Others
 
Counsel for Petitioner :- Dhirendra Singh
 
Counsel for Respondent :- C.S.C.,Jogendra Nath Verma,Shailesh Kumar
 
&
 
Case :- WRIT - A No. - 3950 of 2022
 

 
Petitioner :- Dr. Arun Kumar Mishra And Another
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Higher Education Lko. And 5 Others
 
Counsel for Petitioner :- Alok Singh Chauhan
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Jogendra Nath Verma
 

 
Hon'ble Om Prakash Shukla,J.

1. These bunch of writ petitions involve common questions of law and fact. It is the case of the petitioners that they were entitled to be allowed to continue their services as teachers in the university concerned till the age of 65 years and relies on three identical orders passed by a coordinate bench of this Court in similar situation in the following cases:

(i) Order dated 19.04.2022 passed in Writ A No. 3433 of 2022 titled as Dr. Devendra Narain Mishra V/s State of Uttar Pradesh & Ors;

(ii) Order dated 11.05.2022 passed in Writ A No. 7085 of 2022 titled as Chandra Mohan Ojha & 19 others V/s State of Uttar Pradesh & Ors;

(iii) Order dated 27.05.2022 passed in Writ A No. 3369 of 2022 titled as Dr. Anil Kumar Singh V/s State of Uttar Pradesh & Ors;

2. All the petitioners have common ground, that in all these cases, it was directed to the state Government to incorporate the necessary amendments in the respective university statues, so as to raise/increase the age of superannuation from the existing 62 years to 65 years. Since, common ground is engaging the attention of this court in all these bunch of writ petitions, these petitions are being disposed of by a common order and for the sake of convenience, the facts of leading petition being Writ-A No. 4440 of 2022 (Dr. Prem Chandra Mishra V/s State of U.P & Others ) is being considered for disposal of these writ petition. The petitioner, in the said writ petition claims to have been working as a Professor (Psychology) in the University of Lucknow, wherein he superannuated on attaining the age of 62 years on 08.07.2020. However, since the petitioner was extended the session benefit, he actually retired on 30.06.2021. Thus, the petitioner has filed the present writ petition for the following relief:

"(i) to issue a writ, order or direction in the nature of Certiorari quashing the impugned letter dated 27.01.2020 issued on behalf of respondent University of Lucknow contained as Annexure - 12 to the writ petition, to the extent that it prescribe superannuation of the petitioner on attainment of 62 years of age.

(ii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties state to alter and modify the statutes of the Lucknow University providing for increase in age of superannuation of teachers in Universities and its affiliate Colleges from 62 years to 65 years in terms of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and other Measures for Maintenance of Standards in Higher Education) Regulations, 2010 and allow the petitioner to perform his duties of the post of Professor (Psychology), with consequential benefits of pay and allowances."

(iii) to issue a writ, order or direction in the appropriate nature declaring the condition of point no. 2.3 of said Government Order dated 28.06.2019 as ultra vires and the age of superannuation of teachers including petitioner may be directed to be corrected as 65 years and extension of 2 years of service after attaining the age of superannuation may be given after completing the age of 65 years."

3. This court finds that similar prayers have been made by the other writ petitioners in their respective petition. Counter have been invited by this court, wherein although counter has been filed in the lead matter, the same is not the fate of other connected matters. This court does not wish to deal with the pleadings of each & every writ petition separately as the court is deciding the common issue raised by the writ petitioner in these bunch of petition. It is made clear that only the counter filed in the lead matter Prem Chandra Mishra case is being dealt with this court and any pleadings not commensurate & not in conformity to the pleadings of the lead matter stands rejected /allowed as per the findings arrived by this court hereinafter.

4. This court has patiently heard Shri Dhruv Mathur, Ld. counsel for petitioner in Writ A No. 3803 of 2022, Shri Sharad Pathak, ld. counsel for the petitioner in Writ A No. 3542 of 2022, Shri Rajesh Tiwari, Additional C.S.C. assisted by Shri Akash Mishra and Ms. Shagun Srivastava, learned State Law Officer's for the State of Uttar Pradesh and Shri Anurag Kumar Singh, Advocate assisted by Shri Akhilendra Singh, learned Counsel for the Lucknow University.

5. It is the common submission of the counsels for the petitioners that the Government of India through the Ministry of Human Resources Development, department of Higher Education had decided to increase the age of superannuation for all persons holding teaching positions on regular employment against sanctioned posts as on 15.03.2017 in any of the centrally funded higher and technical education institute under the said Ministry. In the said chronology, the Government of India, on the recommendation of the University Grant Commission has also decided to revise the pay scale of teachers in Central Universitates subject to the various provisions of "Scheme of pay scales as contained in Government Order dated 31.12.2008"

6. In order to buttress their further submission, the Ld. Counsels for the petitioners have brought to the notice of this court, clause 8(f) of the scheme notified vide the aforesaid government order dated 31.12.2008, which also provides for the age of superannuation and acknowledges the age thereof to be 65 years. He has also submitted that in pursuance of the government order dated 31.12.2008, the UGC in exercise of its power under Clause (e) and (g) of sub section (1) of section 26 of the University Grant Commission Act, 1956 has also framed the university Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic staff in universities and colleges and other Measures for Maintenance of Standards in Higher education) Regulations, 2010 dated 30.06.2010.

7. It has been submitted that Clause 1.1.2 of the aforesaid Regulations of 2010 provides for its application to every University established or incorporated by or under a Central Act, Provincial Act or State Act and included every institution including a constituent or affiliated college recognized by the commission. It is submitted that the annexure appended to the said regulations at clause 2.0.0 contained the provisions for pay scales, pay fixation and age of superannuation etc. and clause 2.1.0 says that the revised scales of pay and other service conditions including age of superannuation in central universities and other institutions maintained and/or funded by the University Grants Commission (UGC), shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education), as contained in Appendix-I.

8. This court finds that Appendix-1 which is a government of India letter dated 31.12.2008 is addressed to the UGC relating to the scheme of revision of pay of teachers etc. and clause 8 of the said appendix, contains the heading "other terms & conditions", wherein clause 8(f), contained inter-alia:

(f) Age of Superannuation:

(i) In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years, vide the Department of Higher Education letter No.F.No.119/2006-U.II dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O. letter No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of superannuation of Vice- Chancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (Visitor in the case of Central Universities).

(ii) Subject to availability of vacant positions and fitness, teachers shall also be reemployed on contract appointment beyond the age of sixty-five years up to the age of seventy years. Reemployment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers. (ii) Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education.

9. Moreover, relating to the applicability of the said scheme, it is contained at clause 8 (p) (v) of Appendix-1, as follows:

(v) This Scheme may be extended to universities, 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 assistance 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 assistance 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 Central assistance shall be restricted to the Pay Bands as approved by 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.

10. It has been claimed by the petitioners that the sate of U.P has availed the financial assistance from the central Government to the extent of 80% for revising the pay scale of Teachers and others under the scheme and the regulations of 2010 has sought to be adopted by the state of U.P vide various government orders dated 31.12.2010, 28.05.2015, 22.11.2016 and 08.04.2017. Thus, it is the grievance of the petitioner that the provisions related to increase in the age of superannuation of teachers working in the universities college and institutions of higher education under the state legislature were never implemented by the state of Uttar Pradesh, while exercising its powers under section 50(6) of the U.P State Universities Act, 1973, although the State of U.P has availed all the financial assistance as made available to them by the Central Government.

11. It is the case of the petitioners that although the salaries of the teachers in the state universities including the Lucknow university were revised under the scheme, however the Lucknow university failed to modify its statutes so as to bring the age of superannuation of teaching staff in conformity with the said scheme/regulations. The petitioner further submits that as late as on 13.09.2018, the state of UP while implementing the central government order dated 02.11.2017 has sought to avail the 50% grant of the financial burden relating to recommendation of the 7th central pay commission, which as per clause 12 provides for existing provisions on superannuation and re-employment, however the state of Uttar Pradesh has failed to implement the said regulations in letter & spirit. It has also been submitted that these grant of financial burden of the central government was subject to implementation of the regulations by the state government and universities and colleges concerned as the scheme was a composite scheme and cannot be implemented in piece-meal.

12. Thus, the Ld. Counsels have tried to bring home the point that since section 26(1)(e) and 26(1)(g) of the UGC act, 1956 provides to define and prescribe qualifications that should be ordinarily be required of any persons to be appointed to the teaching staff of the university, having regard to the branch of education in which he is expected to give instruction and further UGC may regulate the maintenance of standards and the co-ordination of work of facilities in universities, it can be safely concluded that the word "qualification" used in section 26(1) (e ) would also mean to include age, qualification and therefore it was within the competence of UGC to prescribe age of superannuation. It has been thus argued that by operation of law the age of superannuation of teachers in the Lucknow university stands increased to 65 years and the failure on the part of the university and state of UP to make necessary changes in the statute cannot deprive the petitioner of his right to continue in service till the age of 65 years in terms of the UGC regulations of 2010, which have a binding effect on the University.

13. Separate Counter-Affidavit have been filed by the Respondent No. 1 / State of Uttar Pradesh and Respondent No.2/ University of Lucknow in the lead matter. The respondents having filed their counter-affidavit, have also taken common grounds and have relied on the Judgment of the Hon'ble Apex Court in Jagdish Prasad Sharma & Ors V/s State of Bihar & Ors.; (2013) 8 SCC 633, to contend that the decision of the State Government for non-accepting increase of the age of superannuation to 65 years in terms of composite character of the scheme of central Government dated 31.12.2008 and regulation 2010, through different writ petitions stands settled in the said judgment, in as much as it was held by the Hon'ble Apex court that the state of U.P had discretion and they were statutorily not bound by the decision of the commission to enhance the age of superannuation. The Ld. Counsel has also relied on the judgment of B. Uharat Kumar Vs Osmania University (2007 (11) SCC 58 ), wherein the Hon'ble Apex court has held that even if the state Government accepts a part of the scheme of UGC, it is not necessary that all the scheme has to be accepted by the state Government. Further, it has been submitted that the regulation of the commission would not be binding on the university of Delhi and did not impinge upon the university's power to select its teacher.

14. The Ld. Counsels for the respondent has also submitted that the role of the UGC is only to prescribe academic standards and the question of enhancement of the age of retirement is exclusively within the domain of the policy making part of the state government. Thus, it has been contended that the petitioner has no right available to be enforced under the writ. The regulations, 2010 as framed by the commission could not, therefore, be enforced on unwilling states in view of the federal stature of our constitution. In any case, it has been argued by the Ld. Counsels that the conditions of service in state universities could not be controlled by the UGC and even on receipt of 80% of the expenses to be incurred by the colleges the state's power under the statute could not be taken away.

15. Towards the end, the Ld. Counsels has argued that although a similar writ petition being No. 7085 of 2022 (Chandra Mohan Ojha and Ors. Vs State of U.P & Ors.) had been decided vide order dated 11.05.2022, whereby certain direction had been given to the state government to alter the age of superannuation of the members of the teaching state from 62 to 65 years in respect wherein state Government has control, however the said order of the Single Bench has been stayed by the Division Bench of this court vide order dated 28.06.2022 passed in Special Appeal No. 486 of 2022. To the similar effect is another identical matter being Dr. Devender Narain Mishra V/s State of U.P & Ors. (Writ A No. 3433 of 2022), wherein order dated 19.04.2022 of the Single Bench has been stayed vide interim order dated 07.07.2022 by a Division bench of this Court.

16. Having heard the learned counsels for the parties at length, this court finds that the issue relating to the present case is no longer res integra, as it already stands decided by at least three judgment/order of this court, which has been referred by the counsels for the petitioner. Further, this court finds that the judgment of this court was based on a finding returned by the Uttarakhand High Court, which has considered the issue in the correct perspective, wherein it was held that the members of the teaching staff of the university of the state of Uttarakhand have acquired a right in their favour to have their age of superannuation increased to 65 years and such right can be enforced through a mandamus under Article 226 of the constitution of India. The judgment passed by this court or the Hon'ble Uttarakhand High court is squarely applicable to the facts of the present case.

17. The reliance of the Ld. Counsels for the Respondents in the case of Jagdish prasad case is misplaced, in as much as the issue before the Apex Court in the said bunch of matter as has been indicated in paragraph 19 was;

"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 30.6.2010, 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 concerned States 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."

And the Hon'ble Apex Court concluded at paragraph 65 as herein below:

"We are then faced with the situation where a composite scheme has been framed by the UGC, whereby the Commission agreed to bear 80% of the expenses incurred by the State if such scheme was to be accepted, subject to the condition that the remaining 20% of the expense would be met by the State and that on and from 1st April, 2010, the State Government would take over the entire burden and would also have enhanced the age of superannuation of teachers and other staff from 62 to 65 years. There being no compulsion to accept and/or adopt the said scheme, the States are free to decide as to whether the scheme would be adopted by them or not. In our view, there can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. The case of those Petitioners who have claimed that they should be given the benefit of the scheme dehors the responsibility attached thereto, must, therefore, fail."

(emphasis supplied)

This court finds the Hon'ble Apex court has dealt with the issue in a very lucid and crystal-clear manner, wherein it has certainly clarified that the states are free to decide as to whether the scheme would be adopted by them or not and there was no automatic application of recommendation made by the UGC. However, it also clarified that if any petitioner, who claims any benefit under the scheme without the responsibility attached thereto, should also fail, which also meant that the scheme has to be implemented in a composite manner and not in a piece-meal manner as is being suggested by the Respondents.

18. Thus, in the opinion of this court, the state cannot pick and choose a part of the scheme to its liking and not implement the other part of the scheme. Both the responsibility and the benefit have to go side-by-side and has to be dealt in a composite & together manner as has been held by the Apex Court, provided always that the state is free to decide to whether implement the scheme or not. This court finds that the state of Uttar Pradesh has already taken the benefit of the scheme of UGC and is now refusing the responsibility of increasing the age of superannuation.

19. In any case, on a query to the counsels for the Respondents as to whether any appeal has been filed or pending against the order/judgment passed by the Single Bench on identical issues, the respondents have stated that special appeals have been filed against the single bench order and an interim order of stay has been also granted in their favour in those special appeals.

20. Having recorded the submission of the Ld. Counsel for the respondents and as to the effect of stay granted by the Division Bench of this Court on the relied upon order of the Single Judge, this Court finds that the Apex Court in the case of Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, reported as (1992) 3 SCC 1 has held at paragraph 11 of the said judgment as follows:

"10. ............ While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order result in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it dose not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending....."

21. The said judgment of the Apex Court has been consistently followed by the High Courts and the Apex Court. Thus, to borrow the phraseology of the Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (supra), it cannot be said that merely because there is a stay granted by the DB of this Court that the order of the Ld. Single Judge has been "wiped out from existence." Thus, stay of operation of an order cannot be considered as quashing of an order. In any case, this Court finds that the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach.

22. Thus, this court finds it appropriate to extend the benefit to the petitioner as has been granted to other similarly situated parties in (i) Writ A No. 3433 of 2022 titled as Dr. Devendra Narain Mishra V/s State of Uttar Pradesh & Ors; (ii) Writ A No. 7085 of 2022 titled as Chandra Mohan Ojha & 19 others V/s State of Uttar Pradesh & Ors, (iii) Writ A No. 3369 of 2022 titled as Dr. Anil Kumar Singh V/s State of Uttar Pradesh & Ors. Moreover, this court cannot be oblivious of the law of precedents, which forms the foundation of administration of Justice and it has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of his Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law. The Hon'ble Supreme court in the case of Sant Lal Gupta and Ors. vs. Modern Co-operative Group Housing Society Ltd. and Ors., (2010) 13 SCC 336, held that it was neither desirable nor permissible by the coordinate Bench to disapprove the earlier judgment and take view contrary to it. A coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. A bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the proper course is for it to refer the matter to a larger bench.

23. To the same effect is the judgment of the Apex Court reported in the State of Punjab and another versus Devans Modern Breweries ltd. and another, (2004) 11 SCC 26, wherein paragraph 339 laid down the following: -

"339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a Larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1 followed in Union of India Vs. Hansoli Devi, (2002) 7 SCC 273. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores (supra) and K.K. Narula (supra) both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority."

24. In view of the facts & circumstances, it is hereby directed that the Respondent state of Uttar Pradesh will get the statutes of University of Lucknow altered providing for increase of age of superannuation of the members of teaching staff from 62 years to 65 years, preferably within a period of three months. The petitioner shall continue to work on his post, if they are working, till the appropriate decision is taken by the state Government as indicated above. The impugned letters issued on behalf of the university or the state Government shall abide by the direction of this court passed in other identical matter of Dr. Devendra Narain Mishra case, Chandra Mohan Ojha case and Dr. Anil Kumar Singh case as mentioned supra.

25. As an upshot to the aforesaid observation, these writ petitions are accordingly allowed in the above terms. In the facts of the case, there shall be no order as to costs.

Order Date:- 19.12.2022

Lokesh Kumar