Uttarakhand High Court
2 June vs State Of Uttarakhand & Others on 2 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Service Bench No. 645 of 2018
02 June, 2025
Dr. Aruna Rani Mital --Petitioner
Versus
State of Uttarakhand & others --Respondents
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Presence:-
Mr. Shashank Pandey, Advocate for the petitioner.
Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand.
Mr. Rajendra Dobhal, Senior Advocate, assisted by Mr. Subhang
Dobhal, Advocate for respondent nos. 3 & 4.
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[
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.
(Per: Hon'ble Manoj Kumar Tiwari, J.)
JUDGMENT
By means of this writ petition, filed in 2018,
petitioner has sought the following reliefs:-
"a. To issue writ, order or direction in the nature of
certiorari to call for records and quash the order
dated 12.11.2018 of respondent no. 2, vide which
the re-appointment has been refused to the
petitioner, enclosed as Annexure 1 to the writ
petition.
b. To issue a writ, order or direction in the nature of
mandamus directing the respondent no. 2 to give the
approval for re-appointment to the Petitioner as per
Statute 17.15 of the First Statutes of the University
of Hemwati Nandan Bahuguna, Garhwal, 1978 till the
end of present academic session i.e. 30th June 2019."
2. As per the pleadings made in the writ petition,
Sri Guru Ram Rai (Post Graduate) College, Dehradun is an
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aided college managed by a society, which is affiliated with
HNB Garhwal (Central) University. Petitioner was appointed
as Assistant Professor (Political Science) in the said college
on 15.11.1989; she was promoted as Associate Professor
on 01.01.2006 in which capacity she served till she
completed 65 years of age i.e. 09.10.2018. On 30.08.2018,
petitioner made an application to the Secretary, Board of
Management of the college seeking re-employment, till the
end of Academic Session 2018-19 i.e. 30.06.2019. She
relied upon Clause 17.15 of Chapter XVII Part-III of the
First Statutes of HNB Garhwal University, which reads as
under:-
"17.15. No extension in service beyond the age of
superannuation shall be granted to any teacher after
the date of commencement of these Statutes:
[Section 49].
[Provided that a teacher whose date of
superannuation does not fall on June 30 shall
continue in service till the end of the academic
session, that is, June 30 following, and will be
treated as on re-employment from the date im-
mediately following his superannuation till June 30,
following:
Provided further that such physically and mentally fit
teachers shall be reappointed for a further period of
two year, after June 30, following the date of their
superannuation, as were imprisoned for taking part
in freedom struggle of 1942 and are getting freedom
fighters pension].
[Provided also that the teachers who were re-
appointed in accordance with the second proviso as it
existed prior to the commencement of the Garhwal
University (Twenty-second Amendment) First
Statute, 1988 and a period of one year has not
elapsed after the expiry of the period of their re-
employ-ment, may be considered for re-appointment
for a further period of one year.]"
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3. The application made by petitioner was
forwarded by the Secretary, Board of Management of the
college with his recommendation to the Director, Higher
Education, vide letter dated 10.10.2018. The Director,
Higher Education, turned down petitioner's prayer for
re-employment, vide order dated 12.11.2018, on the
ground that age of superannuation of teachers of affiliated
colleges is now fixed as 65 years and in the absence of any
provision for re-employment after 65 years in the
Government Order, her request cannot be acceded to.
Feeling aggrieved, petitioner approached this Court
challenging Director's order dated 12.11.2018. She also
sought direction to the Director to grant approval for her
re-employment, as per Statute 17.15.
4. A short counter affidavit is filed by Dr. Ajay
Kumar Mohanty, Joint Registrar, HNB Garhwal University,
Srinagar stating that HNB Garhwal University was earlier a
State University and was governed by provisions of U.P.
State Universities Act, 1973, however, after upgradation as
Central University w.e.f. 15.01.2009, the University is now
governed by provisions of Central Universities Act, 2009. It
is further stated that the colleges affiliated to erstwhile HNB
Garhwal University remain affiliated to HNB Garhwal
(Central) University, in view of provision contained in
Section 4(f) of the Central Universities Act, 2009, however
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the said Act do not confer the power to amend the Statute
framed under Section 50 of the State Universities Act,
1973. It is further stated that age of superannuation of
teachers of affiliated colleges was increased from 60 years
to 65 years by an order issued by the State Government
pursuant to UGC Regulations, however, there is no
provision for extension of service till end of academic
session, in the UGC Regulations or in the executive order
issued by the State Government.
5. Mr. M.M. Semwal, Joint Secretary, Higher
Education Department has filed separate counter affidavit
on behalf of respondent no. 1, in which reference is made
to the following three Government orders.
(i) Government Order dated 18.06.2005.
(ii) Government Order dated 15.10.2012.
(iii) Government Order dated 12.09.2017.
6. Learned State Counsel submits that before 2005,
teachers of affiliated colleges who opted to retire at the age
of 58 years were given certain retiral benefits, which were
not available to teachers of such colleges who opted to
retire at the age of 60 years, however, this difference was
done away with by a Government Order dated 18.06.2005
and in para no. 4 of the said Government Order, it was
provided that upon completing 60 years of service, such
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teachers will be entitled to all retiral benefits, and further
that no extension in service shall be given to them,
however, in cases where the service of a retiring teacher is
indispensible, then decision for his re-employment may be
taken as per the laid down norms.
7. Learned State Counsel has also drawn attention
to Government Order dated 15.10.2012 issued by Principal
Secretary, Higher Education Department, whereby age of
superannuation of teachers of State Universities and
Colleges affiliated to such Universities was increased from
60 years to 65 years w.e.f. 04.09.2012. He submits that as
per Statute 17.14, Part-III of Chapter XVII of the First
Statutes of HNB Garhwal University, the age of
superannuation of teacher of affiliated college is 60 years.
He submits that upon upgradation of HNB Garhwal
University as Central University, provision contained in the
Statute could not be amended in the absence of enabling
provision in the Central Universities Act, 2009. He submits
that since the benefit of increase in age of superannuation
was given to teachers of colleges affiliated to HNB Garhwal
(Central) University by a Government Order, contrary to
the Statute and in the Government Order, there is no
provision for re-employment of or extension to such
teachers till the end of academic session, therefore, the
First Statutes of the HNB Garhwal University stood repealed
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to the extent it is inconsistent to the policy decision taken
by the State Government. He submits that as per the First
Statute of the University, age of superannuation of a
teacher is still 60 years, but such teachers have accepted
the benefit of Government decision and they are now
superannuating at the age of 65 years, which is contrary to
the provision contained in Statute 17.14 Part-III of Chapter
XVII of the First Statutes. Thus, he submits that reliance by
petitioner upon first proviso to Statute 17.15 is misplaced.
Learned State Counsel submits that petitioner could have
sought re-employment till the end of academic session, only
if she was retiring at the age of 60 years as per the Statute,
and after increase in age of retirement to 65 years by a
Government Order, she cannot claim benefit of extension
till end of session merely because first proviso to Statute
17.15 permits so.
8. Learned State Counsel further submits that the
provision for re-employment made in first proviso to
Statute 17.15 is an enabling provision, which can be
invoked by the Competent Authority in the interest of
students. He submits that since petitioner enjoyed the
benefit of enhanced age of superannuation pursuant to a
decision taken by the State Government, which is contrary
to the Statute, therefore, she cannot now contend that she
may further be re-employed even after attaining 65 years
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of age. Thus, he submits that the doctrine of desuetude
would be attracted and petitioner cannot claim the benefit
of first proviso to Statute 17.15 as of right.
9. Learned State Counsel has drawn attention of
this Court to another Government Order dated 12.09.2017,
in para no. 2 whereof, it is stated that except legal,
technical or scientific posts for which special training, merit
and the efficiency is required, re-employment shall not be
permitted in any other post.
10. After having heard learned counsel for the
parties and after going through the first Statute of HNB
Garhwal University and the Government Orders issued by
the State from time to time, we are of the considered
opinion that after having accepted the benefit of
Government Order dated 15.10.2012, whereby age of
retirement of teachers of affiliated colleges was enhanced
from 60 to 65 years, petitioner cannot rely on the Statute
of the University for claiming extension in service till end of
session.
11. As discussed above, the age of retirement of
teachers of colleges affiliated to HNB Garhwal University is
60 years; while, petitioner continued in service upto 65
years of age due to the policy decision taken by State
Government. The benefit available in first proviso to Article
17.15 would be available only to a teacher, who
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superannuates at the age of 60 years, in terms of Article
17.14 of the First Statute of the University.
12. Since petitioner's continuance till 65 years of age
is dehors the statutory provision, therefore, the first proviso
to Article 17.15 would become inoperative by application of
principle of desuetude.
13. State has issued Government Orders, which
prohibit re-employment after attaining age of
superannuation. As per the Statute, petitioner would have
retired after completing 60 years of age, however, she
served for five more years as Associate Professor on the
Strength of Government Orders, therefore, the condition
mentioned in Government Orders that re-employment shall
not be given to a person once he/she attains age of
superannuation would be attracted and reliance on the
Statute for seeking re-employment is, therefore, untenable.
Thus, this Court does not find any reason to interfere with
the decision taken by the Director, Higher Education on
12.11.2018, whereby petitioner's request for re-
employment was turned down.
14. Learned counsel for petitioner then submitted
that petitioner served in the college even after completing
65 years of age, therefore, she is entitled to salary for the
services rendered by her, after 09.10.2018.
15. Learned State Counsel, however, submits that
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the State Government is not liable to pay any salary, as the
Director, Higher Education had informed all concerned that
petitioner is not entitled for re-employment.
16. Be that as it may, if petitioner has served after
09.10.2018, then she can approach the competent
authority for salary.
17. The writ petition is, accordingly, disposed of by
permitting the petitioner to make representation. The
representation, if made within three weeks from today, the
competent authority shall examine petitioner's claim for
salary, as per law, within three months from the date of
receipt of such representation.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.)
02.06.2025
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Date: 2025.06.09 10:00:30 +05'30'
