Hareramacharya vs The Union Of India
2023 Latest Caselaw 2807 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.305 of 2023
                                            In
                       Civil Writ Jurisdiction Case No.38 of 2022

     ======================================================

Hareramacharya Son of Late Ramchandra Sharma, Resident of Village- Sharwanichak, Police Station- Masaurhi, District- Patna (wrongly mentioned in the Aadhar Card, Son of Ramchandra Sharma, Village- Hulasganj, Police Station- Hulasganj, District- Jehanabad).

... ... Appellant/s

Versus

1. The Union of India through Secretary, Ministry of Human Resources Development, New Delhi.

2. The Vice-Chancellor, Central Sanskrit University, Janakpuri, New Delhi.

3. The Registrar, Central Sanskrit University, Janakpuri, New Delhi.

4. The Managing Committee through its Chairman, Sriswami Parankushacharya Adarsh Sanskrit Mahavidayalay, Hulasganj (Gaya), at present-Jehanabad, Bihar.

5. The Deputy Secretary, Ministry of Education, Senior Secondary, Education Department, Shastri Bhawan, New Delhi.

6. The Deputy Educational Advisor, Ministry of Human Resources Development (Department of Education), New Delhi.

7. Sri Venkatesh Sharma, Son of not known to the petitioner, Incharge Principal, Sriswami Parankushacharya Adarsh Sanskrit Mahavidyalaya, Hulasganj (Gaya), at present-Jehanabad, Bihar.

... ... Respondent/s

====================================================== Appearance :

For the Appellant/s : Mr. Manan Kumar Mishra, Senior Advocate Mr. Lakshmi Kant Sharma, Advocate For the Respondent nos. 1 to 3, 5&6 : Dr. K. N. Singh, Addl. Solicitor General For the respondent No. 4 & 7. : Mr. P.K.Shahi, Senior Advocate

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY

C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE PARTHA SARTHY) Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

Date : 05-07-2023

1. Heard learned counsel for the parties.

2. The instant appeal has been preferred by the appellant

against the judgment dated 11.1.2023 passed in C.W.J.C. No.38

of 2022 whereby the learned Single Judge while holding that the

appellant having moved an application for withdrawal of his

application for voluntary retirement, his application could not

have been accepted and approved and the same was bad in law.

The learned Single Judge proceeded to hold that in view of the

fact that the appellant did not possess Ph.D degree, he cannot be

allowed to continue after 62 years of age and is thus not entitled

to any relief as prayed for.

3. The relevant facts in brief are that the appellant was

appointed as the Principal of Sriswami Parankushacharya

Adarsh Sanskrit Mahavidayalay, Hulasganj, District Gaya (at

present District Jehanabad) ('the College' in short) on

22.2.1990. He started working in the capacity of the Principal.

By his application dated 12.11.2021 addressed to the Vice

Chancellor of the Central Sanskrit University, Janakpuri, New

Delhi ('the University' in short), the appellant expressed his Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

desire to retire voluntarily. As per the appellant's case, the said

application for voluntary retirement was withdrawn by his other

letter dated 14.11.2021 wherein the appellant expressed his

willingness to work till the age of 65 years. The Registrar-cum-

In charge of the University wrote a letter dated 16.11.2021 to

the Chairman of the Managing Committee forwarding the

application of the appellant date 14.11.2021 for withdrawal of

his application for voluntary retirement. However, the

respondents continued to sit over the mater and neither any

decision was taken nor communicated to him.

4. As such the petitioner filed C.W.J.C. No. 38 of 2022 in

this Court for the following reliefs:

"That, the petitioner is invoking writ jurisdiction of this Hon'ble Court for issuance of appropriate writ(s), order(s), direction(s) commanding the respondent authorities to accept the withdrawal of his earlier request for voluntary retirement. The petitioner further seeks relief that he should be allowed to function as Principal till date of his superannuation i.e. after completion of 65 years of age and any other relief/reliefs for which petitioner is found entitled too in the facts and circumstances of the case"

5. Counter affidavits were filed on behalf of the

respondents in the writ application. A counter affidavit on behalf Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

of the respondent no.7 was also filed in the appeal.

6. The case of the respondent- Managing Committee of

the College was to the effect that the appellant who was the

Principal of the College, of his own volition submitted his

application dated 12.11.2021 to the Vice Chancellor of the

University seeking voluntary retirement. The Vice Chancellor

forwarded the same to the Managing Committee of the College

stating that he had given his consent for accepting the

appellant's request. It was further directed that the senior most

teacher be appointed as Principal. As instructed, the Chairperson

of the Managing Committee accepted the appellant's request for

voluntary retirement on 12.11.2021, appointed respondent no.7

on the post of Principal and communicated the same to the

appellant who refused to acknowledge receipt of the same. The

respondent no.7 joined and took charge as Principal of the

College and informed the Chairperson of the Managing

Committee as also the Vice Chancellor, Central Sanskrit

University.

7. The learned Single Judge by his judgment dated

11.1.2023 was pleased to dispose of the writ application. It is

against this judgment that the appellant has preferred the instant Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

appeal.

8. No appeal has been preferred by the writ-respondents.

9. Heard Mr. Manan Kumar Mishra, learned Senior

counsel for the appellant, Dr. K.N. Singh, learned Senior

counsel for the respondent nos. 1 to 3, 5 and 6 and Mr. P.K.

Shahi, learned Senior counsel for the respondent no. 4 and 7.

10. The relevant facts in brief are that the appellant who

was working as the Principal of the College since long filed an

application on 12.11.2021 addressed to the Vice Chancellor of

the Central Sanskrit University expressing his desire to be

granted voluntary retirement. Soon thereafter on 14.11.2021 the

appellant wrote another letter to the Vice Chancellor requesting

withdrawal of his earlier letter praying for voluntary retirement

and expressing his desire to work till the age of 65 years on the

post of Principal. The letter of withdrawal of voluntary

retirement dated 14.11.2021 was received by email in the

university on 15.11.2021 and the same was forwarded to the In-

charge as also the Managing Committee of the College for

taking further action on the appellant's application seeking

withdrawal of his earlier prayer for voluntary retirement. It is

not in dispute that the prayer of voluntary retirement made by Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

the appellant was approved by the Managing Committee in its

meeting held on 30.11.2021 and the minutes of the said meeting

dated 30.11.2021 was approved by the Managing Committee in

its meeting held on 21.12.2021.

11. The learned Single Judge taking note of the various

judgments of the Hon'ble Supreme Court on the point of

voluntary retirement, withdrawal thereof, when the same

becomes effective etc., came to the conclusion that before the

date of acceptance of his prayer for voluntary retirement, the

appellant had already moved an application for withdrawal of

his VRS application and thus the appellant's VRS application

could not have been accepted and approved. The learned Single

Judge came to the conclusion that the action of the respondents

was bad in law and deserved to be set aside. It may be

mentioned here itself that so far as this part of the judgment of

the learned Single Judge is concerned, the appellant is not

aggrieved by the same. Further no appeal has been preferred by

the respondents.

12. Sri Manan Kumar Mishra, learned Senior counsel

appearing for the appellant submitted that the Principal is a

teaching staff and as per the UGC Regulation, age of Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

superannuation of a teaching staff is 65 years. It was further

submitted that no distinction has been made between teachers

working in the College, in the University and others and as per

the extant regulations of the UGC, which was applicable at the

relevant time also, no Ph.D is required to hold the post of

Principal. The appellant not having been allowed to assume his

duties in the capacity of a teacher in the College on the ground

of his having attained the age of 62 years is illegal and arbitrary.

It was further submitted that the Principal is a teaching staff and

as per UGC Regulation, the age of superannuation is 65 years

and the State Government has adopted the conditions off the

UGC and irrespective of qualification all teachers are continued

till 65 years. The learned Single Judge had travelled beyond the

prayer made in the writ application and thus the order impugned

was bad in law as also on facts.

13. Dr. K.N. Singh, learned Senior counsel appearing for

the Central Sanskrit University submitted that the University is

the nodal agency working for the Ministry of Education,

Government of India which supplies funds to such Adarsh

Mahavidyalays/Adarsh Shodh Sansthan. The revised Adarsh

Scheme, 2012 is at present applicable. The application of the Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

petitioner for voluntary retirement and letter for withdrawal of

his application for voluntary retirement were both received in

the office of the Registrar and forwarded to the Managing

Committee to take a decision in the matter. It was submitted that

the College in question is affiliated to the University and the age

of retirement as per bye laws of the College is 62 years. It was

finally submitted that there is no merit in the writ application

and the same be dismissed. It is also submitted that he has been

instructed to submit that as far as Adarsh Mahavidyalays/Adarsh

Shodh Sansthan, as per the Ayush scheme of 2012, the

continuance of teachers beyond 62 years, is confined to those

who have the qualifications as required by the UGC.

14. Mr. P.K. Shahi, learned Senior counsel appearing for

the respondent nos. 4 and 7 submitted that the petitioner who is

not a Ph.D holder, even after crossing the age of 62 years was

discharging his duty as a Principal. On 12.11.2021 he sent a

VRS through email to the university who forwarded the same to

the Managing Committee. The Managing Committee accepted

the application for voluntary retirement and notified the

appointment of respondent no.7 as Principal vide notification

dated 12.11.2021. Accordingly, the respondent no.7 joined as Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

Principal on 13.11.2021. It was further submitted that the

College in question gets affiliation from the Central Sanskrit

University and the UGC Regulations are also applicable. The

Regulations clearly provide that the non-Ph.D Principal of the

College shall retire at the age of 62 years. As such the appellant

was rightly retired. There being no merit in the appeal, the same

be dismissed.

15. Having heard learned counsels appearing for the

parties the facts to be noted here is that the College in question

is affiliated to the Central Sanskrit University which has the

administration, financial and over all control on it. The

conditions of employment in the College are as per the Adarsh

Scheme, 2012. Soon after the appellant's appointment as

Principal of the College in the year 2019 the Adarsh Scheme

1993 came into force and clause 7 thereof which deals with

retirement, is reproduced hereinbelow for ready reference:

"..................................Clause 7 of Adarsh Scheme-1993 Guidelines to Management Committee of Adarsh Mahavidyalaya/Shodha Sansthan regarding conditions governing the Sanskrit services of Teaching/non-teaching staff, the following provision is given in regard of Retirement:-

Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

7. Retirement:

The age of retirement for teaching and non-

teaching staff shall be such as is applicable to corresponding staff employed in Graduate/Post Graduate degree college run by respective State Government. The retirement will take effect from the afternoon of the last day of the month in which the employee attains the age of retirement."

16. Subsequently, the scheme was revised in the year

2012 and the service conditions of the regular employees are

governed by the provisions of the revised Adarsh Scheme, 2012.

Clause 62 of the revised scheme which deals with the age of the

retirement of the teaching staff is reproduced hereinbelow for

ready reference:-

Revised Adarsh Scheme, 2012.

62. "The age of retirement of teaching staff in Adarsh Sanskrit Mahavidyalaya and Academic staff in Adarsh Shodha Sansthan appointed following the UGC guideline and enjoying UGC Scales of pay will be as prescribed by the UGC. Those who do not fulfill the UGC qualification will retire as per provisions of the previous scheme. The age of the retirement of non-teaching staff will be as per UGC norms".

17. From perusal of the clause 62 of the Revised Adarsh

Scheme, 2012, it would clearly be evident that the same

provides that those who do not fulfill the UGC qualification will Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

retire as per the previous scheme. The relevant UGC

Regulations for superannuation and reemployment of teachers,

which has been quoted and relied upon by the learned Single

Judge, is also quoted hereinbelow for ready reference:-

"16.0.0 superannuation and re-employment of teachers 16.1.0. Teachers will retire at the age of 62. However, it is open to a University or a college to re-employ a superannuated teacher according to the existing guidelines framed by the UGC up to the age of 65 years.

16.2.0 Age of retirement of Registrars, Librarians, Physical Education personnel, Controllers of Examinations, Finance Officers and such other University employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years. No re-employment facility is recommended for the Registrars. Librarians and Directors of Physical Education. 17.0.0 Superannuation Benefits 17.1.0 The benefit in service, up to a maximum 3 years, should be provided for the teachers who have acquired Ph.D. degree at the time of entry, so that, almost all teachers get full retirement benefits which are available after 33 years of service, subject to the overall age of superannuation.

17.2.0 other conditions with respect to Superannuation Benefits may be given as per Central/State Government Rules."

Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

18. From perusal of the Regulations of the UGC with

respect to the superannuation and re-employment etc. it clearly

transpires that the age of retirement of teachers is 62 years and

the benefit of service of maximum of 3 years is to be provided

to the teachers who have acquired Ph.D degree at the time of

entry. There is thus a clear distinction in so far as teachers who

have a Ph.D qualification at the time of entry into service and

those who acquire such qualification when they are in service

and continuing thereat. Thus in case of a teacher who has

obtained Ph.D degree, his/her service period may be extended

for a further period of three years i.e. up to the age of 65 years.

Presumably this takes into account the period that would have

been spent in research and achieving a Doctorate and the care

taken to ensure that a full pension is not denied to those who

had pursued research and acquired a Doctorate degree, even

prior to their entry into service. It is only a normal incidence

that follows and corollary to a decision to insist for a Ph.D as an

essential qualification for Professors in Universities and

Colleges.

19. Learned Counsel for the appellant then produced

before us a subsequent guideline issued by the UGC, which Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

contained the following :

"(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.ll dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the leaching 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 DO. 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 sixty five to seventy 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. Re-

Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

employment beyond the age of superannuation shall, however, be done selectively, for a limited period of three years in the first instance and then for another further period of two 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."

20. According to the learned Senior Counsel this would

ensure the continuance of even teachers without a Ph.D till the

age of 65 years; which is the date of superannuation for all

teachers, even as followed by the State Government. We are

unable to countenance the argument especially noticing the

distinction we pointed out herein above; of those teachers who Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

acquired Ph.D while in service and before their entry in service.

Earlier only teachers who were Ph.D holders at the time of their

entry into service were permitted continuance in service upto 65

years; an additional three years to ensure that they are entitled to

full pension. By the above extract all teachers who had Ph.D

were entitled to be continued. While the earlier stipulation was

teacher centric, the present one was student centric or education

centric; to ensure better teaching facilities by experienced and

qualified teachers. We also cannot accept the argument

advanced based on the system followed by the State in its

Universities and the Colleges under them. Here the institution is

under the Central Government and regulated by the Adarsh

Scheme, which clearly stipulates retirement to be under the

UGC Scheme.

21. So far as the facts of the instant case are concerned,

it is not in dispute that the appellant has reached the age of 62

years and it is also not in dispute that he has not obtained Ph.D

degree. Thus as per the UGC Regulations, he could have

continued only up to the age of 62 years and not beyond, since

for Principals Ph.D is a mandatory qualification as per the UGC

Regulations of 2010 & 2018. Taking into consideration the Patna High Court L.P.A No.305 of 2023 dt.05-07-2023

material on record, the Revised Adarsh Scheme, the provisions

which governed the retirement age and qualification etc. of the

employees and the relevant UGC Regulations, the learned

Single Judge rightly came to the conclusion that the appellant

having attained the age of 62 years would be treated to have

superannuated and inspite of the finding of the Court that the

action of the respondents in accepting the application of the

appellant for voluntary retirement was bad in law, nevertheless

no relief can be granted to the appellant. The Court finds no

illegality in the order of the learned Single Judge.

22. There being no merit in the instant appeal, the same is

dismissed.

( Partha Sarthy, J)

I agree

K. Vinod Chandran, CJ

(K. Vinod Chandran, CJ)

Bibhash AFR/NAFR CAV DATE Uploading Date 6.7.2023 Transmission Date