Baburao Yadavrao Nareddiwar vs State Of Maharashtra And Ors.
2002 Latest Caselaw 63 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition, the petitioner has raised two questions for adjudication by this Court. They are -- (1). That, the age of superannuation of teachers in affiliated colleges after acceptance of Vth Pay Commission Report is 62 years and not 60 years? and (2). Even if the age of superannuation is considered to be 60 years, in view of the previous agreement

and initial Statutes of the University, a teacher retiring in the midst of any academic session, is liable to be continued till the end of academic session?

2. There are hundred more such petitions raising identical questions. All of them can be conveniently disposed of by one order. Schedule A* annexed to this judgment enumerates those petitions. This judgment covers all those petitions.

3. We heard all the learned counsel appearing for several petitioners in ail those petitions and learned counsel representing the Universities and the Government of Maharashtra. The submissions made on behalf of the petitioners-teachers can be summarised in brief as under.

4. Taking the first question regarding the age of superannuation being 62 years, it is contended on behalf of the petitioner that the recommendations of the Vth Pay Commission having been accepted by the Universities and the University Grants Commission as also the Government of India and the State Governments, the recommendations were liable to be accepted in toto and consequently, the superannuation age is required to be raised to 62 years as recommended by the Vth Pay Commission. Learned counsel took us through various provisions of the University Grants Commission Act, the Nagpur University Act, the Statutes framed thereunder and the various rules and regulations governing the field of superannuation and other retiral benefits. In nutshell, the contention is that by reason of the provisions of the UGC Act, directions issued by the University Grants Commission are binding on the Universities and, therefore, when the University Grants Commission issued a direction to accept the Vth Pay Commission in toto, the respondents were bound to so accept it and the age of superannuation will have to be considered as 62 years.

5. In relation to the second submission, reliance was heavily placed on agreement that the affiliated college or the University, as the case may be, was to enter with the concerned teacher as required by the original Statute No. 24. Even though several different Statutes have been framed by the different Universities thereafter while accepting the 3rd, 4th and 5th Pay Commission Reports that requirement of entering into agreement was always there and, therefore, the contention that a person retiring in the midst of an academic session, is liable to be continued till the end of that academic session, remained operative and applicable and, therefore, even if the retiring age is 60 years, a person completing 60 years in the midst of session is liable to be continued till the end of that academic session.

6. These submissions were countered on behalf of the State Government and the University. It was contended that what is binding under the UGC Act on all the Universities and the affiliated Colleges are directions issued by the University Grants Commission in relation to educational requirements. Every direction is not binding nor does the directions have the force of law so as to be binding. It is always open for the University to accept part of recommendations of the University Grants Commission and not accept some other conditions. The University cannot be compelled to accept the entire 5th Pay Commission Report with each recommendation made by the Commission. That was not the intention of the University Grants Commission nor the Government of Maharashtra or the Government of India and, therefore, the Universities have accepted the Vth Pay

Commission insofar as pay revision is concerned, but has chosen not to raise the retirement age from 60 to 62 years. There is no illegality committed by the Universities in so doing and, therefore, the contentions of the petitioner are liable to be rejected. Insofar as the retirement at the end of academic session is concerned, it was pointed out that the requirement stands obliterated by necessary implication when several other Statutes were passed while implementing the recommendations of the 3rd, 4th and 5th Pay Commissions. The petitioner having taken advantage of pay revision each time as also revision in age from 58 years to 60 years cannot now complain about change in service conditions. In fact, on superannuation man must retire. When he shall retire factually is not a service condition, but is an adjustment by the University or the affiliated college, as the case may be and it is not a matter of right, therefore, that a person on completion of sixty years in midst of session can claim continuance till the end of that academic session.

7. We have to consider these rival contentions in the light of various provisions, circulars etc. issued by the Government and other Agencies as relied upon by the respective parties.

8. After the 5th Pay Commission was accepted by the Government of India, it issued a communication (letter) to the Secretary of the University Grants Commission, New Delhi on the subject of revision of pay scales of teachers following the revision of pay scales of Central Government employees on the recommendations of the Fifth Central Pay Commission. This letter communicates to the University Grants Commission the acceptance of its recommendations by the Government of India. It informs the University Grants Commission that the revision of pay-scales of teachers will be subject to various provisions of scheme of revision of pay scale as contained in that letter. The letter then proceeds to give the details in relation to the age of superannuation. It is provided that the superannuation age of University and College teachers would be 62 years. This letter of the Government of India was dated 27th July 1998. After this letter was received by the University Grants Commission, it in its own turn issued a letter to the Vice-Chancellors of all the Universities and Educational Secretaries of the States and the Union Territories communicating its own decision in relation to acceptance of the Fifth Pay Commission by the Government of India and the University Grants Commission. Para 5 of this communication is the controlling direction as issued by the University Grants Commission. It would be better for us to reproduce this provision or direction of the University Grants Commission in extenso.

"5.0. The University Grants Commission expects that the entire scheme of revision of pay scales, together with all the conditions attached to it, would be implemented by the State Governments as a composite scheme without any modifications, except the date of implementation and the scale of pay as indicated in Government of India notification No. F 1-22/97- U.I. dated 27-7-1998, 22-9-1998 and 6-11-1998. It shall be necessary for the Universities and the management of Colleges to make the necessary changes in their statutes, ordinances, rules, regulations etc. to incorporate the provisions of this scheme"

9. From the direction of the University Grants Commission as quoted above, it will be seen that the University Grants Commission itself does not direct or mandate the Universities or the States to implement the Scheme in toto. It expects the States to accept the Scheme as a whole, it will be seen from the above quotation that it is a mere expectation of the University Grants Commission and it expects that the Universities and the managements of the Colleges will make necessary changes in their statutes, ordinances, rules, regulations to incorporate the provisions of this scheme. It is, therefore, obvious that even according to the University Grants Commission, even though the Scheme as it is accepted by the Commission, it shall be necessary for the Universities and the managements to make necessary changes in their statutes etc. Therefore, there will have to be positive change in the Statutes of the Universities or the managements of Colleges raising the age of superannuation from 60 to 62 years. In the absence of any Statute being made by the concerned University or the management, merely because the University Grants Commission expects the raising of age of superannuation, it cannot be claimed as a matter of right. A right of a teacher shall always flow from the Statute framed by the university or the management subject to which he is working. From this communication dated 24th December 1998, it is obvious that University Grants Commission only expected complete acceptance of the entire Scheme by the respective Universities and the States.

10. The recommendations of the University Grants Commission, Government of India's resolutions etc. were considered by the Government of Maharashtra and on 11th December 1999 it passed a resolution accepting to a great extent all the recommendations made by the Fifth Pay Commission as accepted by the Government of India and the University Grants Commission. However, it specifically provided by Clause 22 of its resolution that the age of superannuation of teacher shall be sixty years and thereafter no extension in service shall be given. It will thus be seen that the Government of Maharashtra accepted all other conditions or recommendations of the University Grants Commission or the Government of India or the Fifth Pay Commission except that in relation to raising the age of superannuation. The Government of Maharashtra has, therefore, exercised its discretion against raising the age of superannuation. It cannot be said that in so doing any illegality is committed by the Government of Maharashtra.

11. Heavy reliance was placed on behalf of the petitioner on the existence of an alleged agreement entered into between the employer and the employee at the time of initial appointment of the teacher the form of which earlier prescribed was under the University Statute. Relying on a decision of this Court in Premlata Sudhakar Sathe v. Governing Body of G.S. Temple College, 1981 Mh.LJ. 332. It was contended that non-execution of written contract as required by Article 38(2) of College Code does not vitiate the appointment or rob the teacher of rights prescribed in Schedule A nor can it affect the binding nature of the contract itself. Ordinance 24 is framed by the Nagpur University provided first for the agreement of service between the employer and the employee i.e. the affiliated college through its management and the teacher concerned. At the time when the Ordinance 24 and the form was prescribed the retirement age was 58 years. It

was raised to 60 years after the 2nd Pay Commission Report was accepted as recommended by the University Grants Commission. It will be necessary to note that after it was decided by the University to accept the recommendations of the University Grants Commission as also the Government of Maharashtra had framed Statute No. 9 of 1979, called the Implementation of U.G.C. Revised Pay Scales for University Teachers Statute, 1979 and it was in accordance with this Statute that it was provided that what terms and conditions of service shall be applicable to the University teachers after such acceptance. So, the form of Agreement which existed prior to promulgation of Statute 9 of 1979 and which, it is alleged, is deemed to have been executed between the parties, stood obliterated and there was no fresh agreement or fresh form prescribed for that purpose. The Full Bench decision of this Court in Premlata Sudhakar Sathe v. Governing Body of G. S. Temple College (supra) does not lay down that there shall always be deemed to be an agreement between the parties regarding terms and conditions of service. That judgment was delivered prior to acceptance of Fourth and Fifth Pay Commission. Several conditions of service were materially altered particularly in relation to pay-scales etc. thereafter and it cannot, therefore, be said that favourable alterations in the agreement can be done, but other parts of the agreement like the condition that teacher who retires at the end of academic session even if superannuates in the midst of it shall remain, is a submission which is unsustainable in law.

12. The question as to whether change in the date of retirement affects prospectively or retrospectively and whether persons recruited prior to the date of change in the date of retirement are affected by that change, had come up for consideration before the Supreme Court of India way back in 1965. In Bishun Narain Misra v. The State of UP and Ors., , the Government had raised the age of superannuation for the members in service from 55 to 58 years by a Notification. Thereafter another Notification was issued and the date of superannuation was reduced to 55 years and, therefore, the question arose, as to whether the Notification relating to the superannuation age from 58 to 60 years was retrospectively in operation. The Supreme Court observed thus --

"The next contention on behalf of the appellant is that the Rule is prospective and that no retrospective Rule can be made. As we read the Rule we do not find any retrospectivity in it. All that the Rule provides is that retirement would be 55 years. It would, therefore, apply from that date to all Government Servants, even though they have been recruited before May 25, 1961 in the same way as the Rule of 1957 which increased the age from 55 years to 58 years apply to all Government servants even though they were recruited before 1967."

13. From the above, it will be seen that whenever there is a change in the age of superannuation, all that has been provided is from the date on which the change comes into force, the retirement age would change. There is, therefore, no question of its acting retrospectively without being so made.

14. Later on this judgment of the Supreme Court quoted above, was again taken up by the Supreme Court in State of Andhra Pradesh etc. etc. v. S. K. Mohinuddin etc., while it was considering the correctness of the judgment of the High Court of Andhra Pradesh which held that such change

either by Statute or Notification would be retrospective in nature. The Supreme Court had this to observe :--

"It is, therefore, obvious from the decision of the Constitution Bench that the view of the High Court that the Government Order reducing the age of superannuation from 60 years to 55 years has retrospective operation is misconceived. There is no retrospectivity whatsoever. Rule applies to all uniformly notwithstanding whether they entered service prior to the date of order or subsequent thereto. The decision of the High Court which held that the Rule had only prospective application and did not apply retrospectively whereby its application was not extended to those employees who had joined service prior to the date of its issue cannot be sustained."

It will thus be seen from the judgments of the Supreme Court quoted above that there is no question of retrospectivity involved in this case and the age of superannuation shall be 60 years as the same has not been change either by any Enactment Statute, Rule, Notification etc. As we have seen, the University Grants Commission also expected the Universities and the Affiliated Colleges' managements to make suitable changes in their regulations and conditions of service to raise the pay-scales and effect pay revision as recommended by the Fifth Pay Commission. It is consequently necessary in law that unless such statutory change is brought about, it is not possible to impliedly carve out the extension of age limit of retirement. It has to be specific. In view of the factual position that none of the Universities in the State of Maharashtra have by amending their Statute raised the age of superannuation to 62 years, the question of reading that as the superannuation for the purposes of service conditions of the University and Affiliated College teachers cannot be done.

15. This Court also had an occasion to consider aspect of age of superannuation being raised from 58 years to 60 years in relation to Agricultural University teachers and it was held by this Court in Arjun Ganpatrao Mahajan v. The Punjabrao Krishi Vidyapeeth and Anr., there is no automatic enhancement in the age of retirement unless statutory corrections are made by the concerned University. The observations of this Court read as under:--

"19. Two things are clear from the above narration of facts. One is that the recommendations of the U.G.C. in relation to the pay-scales and other conditions of service of the University and College teachers are not proprio-vigore applicable to them but they have to be implemented by the State Government and the Universities concerned by taking recourse to relevant rules and regulations in this regard. It is for this reason that the State Government has issued necessary Government Resolutions to implement them and the Universities have taken action under the relevant University Acts to implement the said Government Resolutions incorporating the recommendations of the U.G.C. The other thing which is clear is that the recommendations of the U.G.C. are in respect of the University and College teachers in the faculties of Arts, Science, Commerce and Education and the above Government resolution

incorporating them are, therefore, not applicable to the teachers in the Agricultural Universities and the Colleges affiliated to them." We are in respectful agreement with what has been held by this Court earlier. There is, in the instant case, no such amendment changing the age of retirement from 60 years to 62 years and in the absence of it, merely because one of the recommendations of the Pay Commission was to raise the age of superannuation, it cannot be presumed or deemed to have been raised to that effect. For all these reasons, we are of the opinion that the age of superannuation will have to be considered as 60 years. The contention raised to that effect by the petitioner thus fails.

16. That takes us to second contention of the date of retirement being extended to the academic session by reason of an agreement between the teachers and the managements. In support of this contention, heavy reliance has been placed on Ordinance No. 24 which prescribes execution of agreement between teacher and an affiliated college management or the University, as the case may be. The contention is that his requirement of agreement not having been abrogated, there shall be always deemed to have been an agreement between the parties and the conditions therein would apply till they are varied. This argument, in our opinion, is not sustainable for the reason that Ordinance No. 24 in Chapter V spells out selection and appointment. By Clause 46 conditions of service of teachers are defined and certain pay-scales are stated. For example, a Professor shall be given salary not less than the scale of Rs. 400-25-700. This Ordinance has not been amended, but has been replaced insofar as conditions of service and payment is concerned thrice at least by fresh Ordinances whenever recommendations of new Pay Commissions were accepted. Whenever therefore, a new Ordinance promulgating pay revision was brought into existence, the conditions of the agreement executed under Ordinance 24, as it then stood, cannot by necessary implication be said to exist for the benefit of the employee. It cannot be contended that whenever there is change in the pay-scale, any revision in the pay-scale irrespective of the agreement mentioning the scale in which the employee was employed years ago can change by subsequent Ordinances raising pay-scales. The change cannot apply, however, to this condition in the Agreement. The argument or contention is fallacious.

17. There is yet another reason to reject this argument. The Agreement is an intra-party agreement or contract of service which may or may not be executed between the parties. Reliance placed on the judgment of the Full Bench in The Principal, King George's Medical College v. Dr. Vishan Kumar Agarwal and Anr., is misconceived for the reason that what has been held to be always deemed is Agreement between the affiliated college and the teacher and not the conditions in the Agreement. They can always vary. The ratio of the Full Bench judgment is not that there shall be deemed to have been executed between teacher and the affiliated college an agreement as stipulated in Schedule A of the Ordinance 24 even after fresh Ordinances were issued implementing pay revisions accepting Third, Fourth and Fifth Pay Commission Reports.

18. The concept of superannuation, in our opinion, is very clear. A man superannuates or retires on completion of a particular age. In the instant case that

is prescribed as 60 years. The date of completion of 60 years is, therefore, the date of superannuation. That it is so, is accepted by everybody. However, for certain conveniences of the University, affiliated colleges and the students, it was stipulated that even wherever the date of retirement comes in midst of academic session, the teacher will have to continue working till the end of that academic session. This condition in the agreement was made to enable the University to require the teacher to continue even after attaining the age of superannuation age, but for such condition in the agreement, the employee/teacher would have been entitled to refuse. That condition in the Agreement is an enabling condition for the University to require more working from the teacher. It cannot be used as a condition of service for extension of the age of superannuation. The condition accepts the age of superannuation as 60 years. It stipulates continuation of only working period of an employee. Condition cannot, in our opinion, create a right in the teacher to continue till the end of academic session. It is an arrangement of convenience and not Rule of law enacted by the University by proper Ordinance. That can be done only by Ordinance so enacted by the University. In the absence thereof, a condition cannot be used as a provision of law. There is yet another reason for us to hold so. Take a case where a teacher desires to retire or resigns from service prior to the date of superannuation. He can do so and under the agreement with the University or the affiliated College, the University or the affiliated college cannot, in that case, compel a teacher to continue till the end of academic session by taking recourse to this Clause in the Agreement when the agreement itself provides for termination thereof on three months' notice. Similarly, a teacher cannot be compelled to work till he attains the age of superannuation. Liberty is given to him to resign. From all this, it is obvious that the Agreement -- whether executed between the parties or not; whether deemed to have been executed or not, as held by the Full Bench in The Principal, King George's Medical College v. Dr. Vishan (supra), the agreement is an intra-party agreement breach of which may give cause of action for breach of agreement, but existence of it cannot give rise to the cause of action to claim infringement of statutory right. Even the second contention is necessarily to be answered in the negative. The date of retirement must be on attaining the age of 60 years and it cannot be extended as a matter of right by reason of any Clause in the Agreement which may or may not have been executed intra-parties.

19. Both the contentions having been negated petition is liable to be dismissed. However, certain aspects will have to be considered while making the final order. These petitions are pending over a year. Several interim orders have been made in most of the petitions preventing retirement of a teacher on completion of 60 years and directing his continuance till the end of academic session. Some of the petitioners in the petitions mentioned in Schedule "A" have completed the academic session and have superannuated. Some are in the process of so doing. All have been paid for work done and we will have, therefore, to consider the consequence of our dismissing the petitions on negativating both the contentions. Normally, those who have completed 60 years of age and are continuing in employment under the orders of this Court, will have to go out immediately and all of them who are continued by virtue of the order of this Court, may be exposed to an action for refund or recovery by the University or

affiliated college, for they have continued under the orders of this Court. However, all of them worked for the period during which they took advantage of the interim orders and they must be paid for the work done. A direction is, therefore, liable to be issued directing the respective affiliated colleges and the Universities in each petition not to effect any recoveries from any of the petitioners who continued in pursuance of the interim orders of this Court. With this direction and the findings given above, the petitions are disposed of.