Himachal Pradesh High Court
Between vs Union Of India on 10 August, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
ON THE 10th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No. 1923 of 2013 a/w
CIVIL WRIT PETITION No. 5404 of 2013
1. CIVIL WRIT PETITION No. 1923 of 2013
Between:-
DR. DEVENDER NATH KASHYAP, SON OF
SHRI RADHA KRISHAN SHARMA, RESIDENT
OF VILLAGE & POST OFFICE KOSERIAN,
TEHSIL JHANDUTTA, DISTRICT BILASPUR,
H.P.
....PETITIONER
(BY M/S BHUVNESH SHARMA & RAMAKANT SHARMA,
ADVOCATES)
AND
1. UNION OF INDIA, MINISTRY
OF HUMAN RESOURCE
DEVELOPMENT, DEPARTMENT
OF HIGHER EDUCATION, NEW
DELHI, THROUGH ITS
SECRETARY.
2. STATE OF HIMACHAL
PRADESH THROUGH ITS
SECRETARY (EDUCATION) TO
THE GOVT. OF HIMACHAL
PRADESH, SHIMLA-171002, H.P.
3.COMMISSIONER TEMPLES-
CUM-SECRETARY (LANGUAGE
& CULTURE) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-171002.
4. PRINCIPAL, BABA BALAK
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NATH DEGREE COLLEGE
CHAKMOH, TEHSIL BADSAR,
DISTRICT HAMIRPUR, H.P.
.
...RESPONDENTS
(SH. RAJENDER THAKUR, ADVOCATE, FOR R-1-UNION OF INDIA.
M/S SUMESH RAJ, ADARSH SHARMA & SANJEEV SOOD,
ADDITIONAL ADVOCATE GENERALS & MR. KAMAL KANT
CHANDEL, DEPUTY ADVOCATE GENERAL FOR R-2.
SH. K.D. SOOD, SENIOR ADVOCATE, WITH SH. HET RAM
THAKUR, ADVOCATE FOR R-3 & 4)
2. CIVIL WRIT PETITION No. 5404 of 2013
Between:
SHRI KAILASH CHAND
SHARMA, SON OF SHRI PARMA
NAND SHARMA, RESIDENT OF
VILLAGE & POST OFFICE
CHHATTARPUR, TEHSIL
NURPUR, DISTRICT KANGRA,
H.P., PRESENTLY WORKING AS
PRINCIPAL, GOVT. DEGREE
COLLEGE, INDORA, DISTRICT
KANGRA, H.P.
.......PETITIONER
(BY M/S BHUVNESH SHARMA & RAMAKANT SHARMA,
ADVOCATES)
AND
1. UNION OF INDIA, MINISTRY
OF HUMAN RESOURCE
DEVELOPMENT, DEPARTMENT
OF HIGHER EDUCATION, NEW
DELHI, THROUGH ITS
SECRETARY.
2. STATE OF HIMACHAL
PRADESH THROUGH ITS
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SECRETARY (EDUCATION) TO
THE GOVT. OF HIMACHAL
PRADESH, SHIMLA-171002, H.P.
........RESPONDENTS.
.
(SH. RAJENDER THAKUR, ADVOCATE, FOR R-1-UNION OF INDIA.
M/S SUMESH RAJ, ADARSH SHARMA & SANJEEV SOOD,
ADDITIONAL ADVOCATE GENERALS & MR. KAMAL KANT
CHANDEL, DEPUTY ADVOCATE GENERAL FOR R-2.
Whether approved for reporting?Yes.
__________________________________________________________
the following:
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These petitions coming on for orders this day, the Court passed
JUDGMENT
As similar issues of facts and law are involved in these
petitions, they are being disposed of by a common judgment.
2. Petitioner in CWP No. 5404 of 2013 was initially appointed as
a Lecturer (Economics) in W.R.S.M.P. Degree College, Dehri, Tehsil
Nurpur, District Kangra, H.P., which at the relevant time was 95% added
College. The same was taken over by the Government of Himachal Pradesh
in April, 1984 alongwith the services of the petitioner. In the year, 2002, the
petitioner was promoted to the College Cadre. Similarly, the petitioner in
CWP No. 1923 of 2013 was initially appointed as a Lecturer in the subject
of Hindi in Baba Balak Nath Degree College, Chakmoh, which College is
being run by Baba Balak Nath Temple Trust, Deothsidh, District Hamirpur,
H.P.
3. The petitions have been filed by the petitioners praying for
.
issuance of a writ to the effect that the petitioners be held entitled to
continue in service till the attainment of age of 65 years, in terms of the
Scheme circulated by the Government of India, Ministry of Human
Resource Development, Department of Higher Education, dated 31st
December, 2008 (Annexure P-1) in CWP No. 5404 of 2013. Further relief
sought for, is for restraining the respondents from retiring the petitioners at
the age of 58/60 years.
4. The contention of the petitioners is that vide Annexure P-1 in
CWP No. 5404 of 2013, the Ministry of Human Resource Development,
Department of Higher Education, Government of India has taken a Policy
decision on the basis of the recommendations of the Sixth Central Pay
Commission that the age of superannuation of Teachers like the petitioners,
be increased to 65 years. This decision has been communicated to all the
Education Secretaries of different States of the country. One of the
conditions mentioned in the Scheme is that the Central Government will
provide assistance to the State Governments, who opt for the revised Pay
Scales, up to 80% of the additional expenditure, which the State has to bear
on account of the implementation of the same. The Scheme categorically
provides that the age of the Lecturers (College Cadre) will be 65 years, yet
the respondents are going to retire the petitioners at the age of 58/60, i.e., the
.
age which is mentioned in the Rules governing the services of the petitioners
against the posts held by them. According to the petitioners, the Colleges, in
which they are imparting education, are affiliated to the Himachal Pradesh
University. The service conditions of the petitioners are governed by the
Himachal Pradesh University Ordinances as well as Instructions issued from
time to time by the University Grants Commission. Both Himachal Pradesh
University as well as the respondent-State have adopted the Scheme floated
by the Central Government vide Annexure P-1, in all respects, except the
age of superannuation, which despite being a mandatory condition, has not
been implemented till date. The act of the respondents of not enhancing the
age of superannuation up to 65 years is an arbitrary, as the petitioners are
being discriminated against and shall be denied wages for 7/5 years, in case
the respondents succeed in superannuating them at the age of 58/60 years.
According to the petitioners, the Scheme of the Central Government cannot
be implemented in piecemeal and has to be implemented as a composite
Scheme, one mandatory component of which, was the age of
superannuation. It is in this background that the petitions have been filed
with the prayers mentioned hereinabove.
5. The Union of India as well as the respondent-State have not
.
filed any reply to the petitions despite opportunity having been granted in
this regard. However, in terms of the directions passed by the Court, the
respondent-State has placed on record Instructions, dated 24 th July, 2021,
imparted to the office of learned Advocate General, which are ordered to be
taken on record. It is mentioned therein that the respondent-State has issued
Notification dated 15th October, 2009 in pursuance of the recommendations
of the University Grants Commission and has revised the Pay Scales of
Teachers and equivalent cadres in Himachal Pradesh University,
Government Degree Colleges, Government Sanskrit Colleges and
Directorate of Higher Education (Colleges) in the State w.e.f. 01.01.2006. It
is also mentioned therein that vide said Notification, the State Government
has decided that the age of superannuation of the teaching personnel and
other equivalent cadres shall remain unchanged.
6. I have heard learned counsel for the parties and also gone
through the pleadings as well as the Instructions referred to hereinabove.
7. It is not in dispute that the age of superannuation of a Lecturer,
in terms of the Rules in vogue pertaining to the petitioners is 58/60 years,
respectively. The relief prayed for by the petitioners is based on the
recommendations contained in the Scheme introduced by the Department of
Higher Education of the Central Government, dated 31 st December, 2008. A
.
perusal thereof demonstrates that it stands mentioned in Clause-8(f) of the
said Scheme, which deals with 'Age of Superannuation' that 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 65 years, 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 and further the Central Government has
authorized the Central Universities 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. In Sub-clause (ii) of Clause (f), it is mentioned that subject to
availability of vacant positions and fitness, teachers shall also be re-
employed on contract appointment. Similarly, in Clause-8(p)(v), it stands
mentioned that the claim 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 conditions mentioned therein.
8. Prima facie, the conclusions which can be drawn from the
.
contents of the Scheme is that the Scheme is only recommendatory and not
mandatory. In fact, the framers of the Scheme left the adoption of the
Scheme up to the Universities, Colleges and other higher educational
Institutions coming under the purview of the State legislatures of the State
in issue. It is evident from the Instructions, which have been placed on
record by the State that the Government has not adopted the Scheme, as far
as the enhancement of the age of superannuation is concerned. Not only this,
Annexure P-1 is dated 31st December, 2008, whereafter, a Notification has
been issued by the Higher Education Department of the Government of
Himachal Pradesh, pursuant to the recommendations of the University
Grants Commission, vide which, the pay scales of teachers and equivalent
cadres in the Himachal Pradesh University, Government Degree Colleges,
Government Sanskrit Colleges and Directorate of Higher Education
(Colleges) etc. have been revised. It is unambiguously mentioned in
Condition No. 13 of this Notification that the age of superannuation of
teaching personnel and other equivalent cadres shall remain unchanged.
Incidentally, this Notification has not been assailed by the petitioners by way
of these writ petitions, though the same was in fact in force at the time when
the petitions were filed.
9. Even otherwise, it is settled law that the recommendations of
.
the University Grants Commission or the Schemes of the Department of
Higher Education, Ministry of Human Resource Development, whereever
are recommendatory, ipso facto, are not applicable on the
Universities/Colleges etc. within the purview of the State Legislature until
and unless they are expressly adopted by incorporating necessary
amendments qua the same in the Statutes or Ordinances of the Universities
or the Recruitment and Promotion Rules of the Colleges concerned.
10. In other words, it is the prerogative of the State whether or not
to adopt the recommendations of the University Grants Commission,
keeping in view its financial resources as well as other aspects. Therefore, in
the considered view of this Court, the petitioners indeed have no right to
seek a declaration that the respondents be directed to allow the petitioners to
serve till the age of 65 years. The services of the petitioners being governed
by the Rules of the relevant post, the petitioners have to abide by the same
and the respondents have a right to superannuate them from service on
attaining the age of superannuation.
11. In view of the discussions held hereinabove, as this Court finds
no merit in the present petitions, the same are dismissed, so also pending
miscellaneous applications, if any.
.
(Ajay Mohan Goel)
Judge
August 10, 2021
(bhupender)
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