DR. J. VIJAYAN & OTHERS VERSUS THE STATE OF KERALA & OTHERS

DR. J. VIJAYAN & OTHERS VERSUS THE STATE OF KERALA & OTHERS


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5037 OF 2022
(ARISING OUT OF S.L.P. (C) NO. 24287 OF 2018)
DR. J. VIJAYAN & OTHERS .... APPELLANT (S)
VERSUS
THE STATE OF KERALA & OTHERS .... RESPONDENT (S)
J U D G M E N T
INDIRA BANERJEE J.
Leave granted.
2. The University Grants Commission Act, 1956, hereinafter referred to as
“the UGC Act”, was enacted to make provisions for the coordination and
determination of standards in universities and for that purpose to establish a
University Grants Commission, hereinafter referred to as “UGC”.
3. Section 20 of the UGC Act provides:
“20. Directions by the Central Government –
(1) In the discharge of its functions under this Act, the
Commission shall be guided by such directions on questions of
policy relating to national purposes as may be given to it by the
Central Government.
(2) If any dispute arises between the Central Government and the
Commission as to whether a question is or is not a question of policy
relating to national purposes, the decision of the Central Government
shall be final.”
4. In exercise of the powers conferred under Clauses (e) and (g) of subsection (1) of Section 26 of the UGC Act 1956, the Ministry of Human Resource
Development of the Government of India framed the University Grants
Commission (Minimum Qualifications for Appointment of Teachers and
Academic Staff in Universities and Colleges and Other Measures for the
Maintenance of Standards in Higher Education) Regulations, 2010, hereinafter
referred to as the “UGC Regulations”.
5. Regulation 2.0.0 of the UGC Regulations is reproduced hereinbelow :-
“2.0.0 PAY SCALES, PAY FIXATION FORMULA AND AGE OF
SUPERANNUATION, ETC.
2.1.0 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.
2.2.0 The pay scale shall, in the central universities and other institutions
maintained and/or funded by the UGC, be fixed in accordance with the pay
“fixation formula” developed by the UGC and approved by the Ministry of
Human Resource Development (MHRD), as contained in Appendix-II.
2.3.0 The pay fixation formula for teachers shall apply for other positions
in the Library and Physical Education and Sports cadres in the Central
Universities and Colleges thereunder and Institutions Deemed to be
Universities whose maintenance expenditure is met by the UGC.2.3.1. The
revised scales of pay and age of superannuation as provided in Clause
2.1.0 above, may also be extended to Universities, colleges and other
higher educational institutions coming under the purview of the State
Legislature and maintained by the State Governments, subject to the
implementation of the scheme as a composite one in adherence of the
terms and conditions laid down in the MHRD notifications provided as
Appendix I and in the MHRD letter No.F.1-7/2010-U II dated 11 May, 2010
with all conditions specified by the UGC in these Regulations and other
Guidelines.
2.3.2. Subject to the availability of vacant positions and fitness,
teachers such as Assistant Professor, Associate Professor and
Professor only, may be re-employed on contract appointment beyond
the age of superannuation, as applicable to the concerned University,
college and Institution, up to the age of seventy years.
Provided further that all such re-employment shall be strictly in
accordance with the guidelines prescribed by the UGC, from time to
time.
2.3.3. All other aspects which are not covered in these Regulations,
on applicability, financial assistance, date of implementation of
revised pay and allowances and payment of arrears, etc. shall be as
laid down in the MHRD Notifications provided as Appendix-I of these
Regulations and the MHRD letter No.F.1-7/2010-U II dated 11 May,
2010. “
6. The UGC Regulations provided that the revised scale of pay and other
service conditions shall be in accordance with Appendix-I, the relevant extract
whereof is reproduced hereinbelow :-
“APPENDIX I
8. Other terms and conditions :
(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.I-24/2006-Desk(U) dated 30.03.2007 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).
(p) Applicability of the Scheme:
(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 per cent) 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 per cent) 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.
(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.”
7. The Government of India through the Ministry of Human Resource
Development brought out a circular bearing No. F.1-7/2010-U.II dated 14th
August 2012 under Section 20 of the UGC Act, paragraphs 4 and 5 whereof
read :-
“4. After taking into consideration the views expressed by several State
Education Ministers during the Conference held in 2010 the Central
Government has now decided to de-link the condition of enhancement of
age of superannuation from the payment of Central share of 80% arrears
to the States.
5. Bearing in mind that the question of enhancement of age of
retirement is exclusively within the domain of the policy making power of
the State Governments, the issue of age of retirement has been left to the
State Governments to decide at their level. The condition of enhancement
age of superannuation to 65 years as mentioned in this Ministry’s letter
dated 31.12.2008 may be treated as withdrawn, for the purpose of seeking
reimbursement of central share of arrears to be paid to State University
and College teachers. However, the other conditions as mentioned in the
letters cited above shall continue to apply.”
8. The UGC Regulations have to be consistent with the directions on
questions of policy relating to national purposes, as may be given by the
Central Government as per Section 20 of the UGC Act, 1956. In the case of any
dispute between UGC and the Central Government, as to whether a question is
a question of policy relating to national purpose, the decision of the Central
Government prevails over that of UGC.
9. In P. Suseela & Ors. v. University Grants Commission & Ors.
1
, this
Court held that directions in exercise of powers under Section 20 of the UGC
Act are made to provide for coordination and determination of standards, which
lies at the core of the UGC Act. It is, therefore, clear that any regulation made
under Section 26 of the UGC Act must conform to the directions issued by the
Central Government under Section 20 of the UGC Act.
10. By a Government Order dated 10th December 2010, the Government of
Kerala adopted and implemented the UGC Regulations, 2010. Counsel
appearing for the Appellants submitted that the State Government had
accepted the enhancement of salary grant from the Central Government, but
failed to comply with the condition of enhancement of the retirement age of
the teachers.
11. Aggrieved by the failure of the State of Kerala to enhance the
retirement age of the Appellants, the Appellants filed a writ petition being Writ
Petition (C) No. 10257/2016(F) in the High Court of Kerala. By a judgment and
order dated 28th March 2016, the Single Bench of the High Court dismissed the
writ petition. The Appellants filed a writ appeal being Writ Appeal No. 734 of
1 (2015) 8 SCC 129
2016. The Writ Appeal has been dismissed by the Division Bench of the High
Court, by the impugned judgment and norder.
12. Learned Counsel appearing on behalf of the Appellants argued that the
UGC Act and the UGC Regulations are enacted by the Parliament under Entry
66 of the Union List under the Seventh Schedule of the Constitution of India,
which pertains to coordination and determination of standards for higher
education, research, etc.
13. Counsel further argued that the Pay Revision Commission appointed by
the UGC, regarding the pay-scale of teachers, eligibility of appointment, service
and working conditions and promotional avenues of teachers in Universities
and Colleges recommended that the age of superannuation throughout the
country should be 65 years. Pursuant to the aforesaid recommendation, the
UGC Regulations, were enacted.
14. Counsel further submitted that, as per the UGC Regulations, the salary of
the teachers was proposed to be enhanced and in case of such enhancement,
80% of the enhanced salary was to be paid by the Central Government and the
remaining 20% by the State Government. The Regulations also recommended
that the age of superannuation of the teachers should be enhanced to 65
years. The scheme was a composite scheme which could not be altered or
varied in terms.
15. It appears that after the State of Kerala adopted the UGC Regulations, the
teachers of affiliated colleges claimed right of superannuation as per the UGC
Regulations. However, the contention was rejected by the Supreme Court in
Jagdish Prasad Sharma & Others v. State of Bihar & Others
2
.
16. The Appellants relied upon a judgment and order dated 23rd February
2016, passed by a Full Bench of the High Court of Kerala in Writ Petition (C) No.
29253 of 2012 (Dr. Radha Krishnan Pillai v. State of Kerala & Others).
The Full Bench of the High Court of Kerala held that irrespective of whether the
Kerala University Act or the Mahatama Gandhi University Act were enacted
under Entry 25 of List III of Seventh Schedule to the Constitution of India and
irrespective of the fact that statutes framed thereunder had been amended in
line with the UGC Regulations, the universities and affiliated colleges in the
State of Kerala were bound to comply with the UGC Regulations in view of its
adoption by the State of Kerala with effect from 18th September 2010.
17. Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the
State of Kerala argued that the UGC Regulations issued on 30th June 2010
relate to minimum qualifications for appointment of teachers and other
academic staff in Universities and Colleges and other measures for
maintenance of standards in higher education. Regulation 2.0.0 deals with the
pay-scale, the pay-fixation formula and age of superannuation etc. Regulation
2.0.0 lays down the revised scale of pay and other service conditions including
the age of superannuation in Central Universities and other institutions
maintained and/or founded by the University Grants Commission.
2 (2013) 8 SCC 633
18. Mr. Gupta argued that Clause 2.3.1 made it clear that the revised pay
scale and the age of superannuation may also be extended to universities,
colleges and other higher educational institutions coming under the purview of
the State Legislature and maintained by the State Government, subject to the
implementation of the scheme as a composite one in adherence to the terms
and conditions laid down in notification issued by the Ministry of Human
Resource Development provided in Appendix-1 and in the Ministry of Human
Resource Development Letter No.F.1-7/2010-U.II dated 11th May 2010.
19. On 10th December 2010, the Government of Kerala implemented and
adopted the pay scale with effect from 18th September 2010. Clause 6 of the
Order of the Government of Kerala, expressly stated that where there were any
provisions in the Regulations, inconsistent with the provisions of the
Government Order dated 27th March 2010, the provisions of the Government
Order would over-ride the provisions of the UGC Regulations to the extent of
such inconsistency.
20. In any case, the UGC Regulations were modified by an order of Ministry of
Human Resource Development dated 14th August 2012, whereby the regulation
enhancing the age of superannuation to 65 years was treated as withdrawn.
21. Mr. Gupta pointed out that the age of superannuation of academic and
other staff in the institutions in the State of Kerala was governed by the Rules
issued under Article 309 of the Constitution of India and such Rules could not
be overridden by the Government Order dated 10th December 2010.
22. In the context of the contention of the Appellants that the State of Kerala
could not have given effect to the pay scales recommended by the UGC
Regulations, without enhancing the age of superannuation, Mr. Jaideep Gupta,
learned Senior Counsel argued that the adoption of pay scale by the State
Government is not by itself exclusively referable to the UGC Regulations. The
State Government was in any case free to adopt the pay scales, even otherwise
and without reference to the UGC Regulations.
23. Refuting the contentions of the Appellants that the State Government
was bound to accept the age of superannuation recommended by the UGC
Regulation since it had to accept the contribution from the Central Government
under the UGC Regulations for enhancement of salary. Mr. Gupta argued that
Central Government had itself made it clear that the age of superannuation
was not to be linked to the benefits conferred by the UGC Regulations.
24. Mr. Jaideep Gupta finally argued that the issue is covered against the
Appellants by the judgment of this Court in Jagdish Prasad Sharma (supra)
clearly laying down that the age of superannuation fixed by the Rules under
Article 309 of the Constitution of India could not be modified by the Regulations
under the UGC Act. Mr. Jaideep Gupta stated that the argument that the State
Government had availed contributions from the Central Government under the
2010 Scheme was not correct as recorded in the impugned judgment and order
passed by the High Court. The Government does not receive any aid from the
Central Government for the UGC Scheme. The expenses for salary of the
college teachers are met by the State Government itself.
25. The Single Bench found, and in our view rightly, that there was no
change in the law after the judgment of this Court in Jagdish Prasad Sharma
(supra).
26. The Single Bench rightly noted that what was in issue before the Full
Bench was Section 26 of the University Grants Commission Act and the
Regulations framed under Clause (g) of Section 26, which dealt with regulation
and maintenance of standards and the regulation of facilities in the
Universities. The Single Bench was of the view that the decision could have no
application in the case of statutory age of retirement as determined by the
State of Kerala under Article 309 of the Constitution of India. The prescription
of the age of superannuation of a faculty member could not affect the
standards.
27. As found by the Single Bench of the High Court, the decision to issue the
Circular dated 14th August 2012, withdrawing the regulation regarding
enhancement of the age of superannuation, was taken by the Central
Government, in consultation with the States and in deference to the powers
given to the States to prescribe the service conditions of its employees, which
would fall within the ambit of policy decision, undisputedly within the exclusive
domain of the respective State Governments. The Single Bench held that the
Policy of the State Government, which is evidenced by the statutory provisions
mandating teachers of aided affiliated colleges to retire at the age of 56 years,
and that of the Universities at the age of 60 years, has been crystalized by
enactments under Article 309 of the Constitution of India.
28. The Division Bench of the High Court, after hearing the respective parties
found, and rightly, that most of the issues raised in the appeals were concluded
against the Appellants by the judgment and order of this Court in Jagdish
Prasad Sharma (supra). The Division Bench observed that this Court had
held that it was mandatory for the UGC to be guided by the directions issued
by the Central Government on questions of policy relating to national purposes
by discharging its functions under the UGC Act. The Division Bench found that
the UGC was bound to follow the directions issued by the Central Government
in view of Section 20 of the UGC Act.
29. The Division Bench of the High Court also found that the State
Governments had the discretion to accept the scheme proposed under the UGC
Regulations relying on the judgment in Jagdish Prasad Sharma (supra) and
in particular Paragraph 72, thereof. The Division Bench held:-
“14. It is in the light of the above authoritative pronouncement of the
Apex Court, that the present contentions of the counsel for the appellants
are required to be considered. The contention that the UGC Regulations
were made in exercise of the power under Entry 66 List I Schedule VII of
the Constitution, while the State enactments are made under Entry 25 List
III Schedule VII and for the said reason, in the event of repugnancy, the
Central enactment would prevail, has to fail for more reasons than one. In
the first place, the State Laws prescribing the age of retirement of teachers
are made in exercise of the power under Article 309 of the Constitution.
The Apex Court has found Jagdish Prasad Sharma (supra) that such
enactments would remain unaffected by the stipulations contained in the
UGC Regulations. Secondly, it has been further held by the Court in the
said decision that the UGC does not have any power to stipulate the
service conditions of teachers. Therefore, such power is vested entirely in
the State. Thirdly, obviously in recognition of the above position of law the
UGC Regulations have conferred a discretion on the State Governments to
decide whether to implement the Regulations or not. In view of the
conferment of the discretion as noted above, no question of repugnancy
arises in these cases. Therefore, we do not think it necessary to consider
the above contention in any further detail.
15. On the next contention that the Scheme under the UGC Regulations,
2010 has to be accepted in full as a composite one and that adoption of
the Scheme without enhancing the retirement age of teachers was bad, we
find that the said issue has been concluded by the Supreme Court.
Though a similar contention was put forward in Jagdish Prasad Sharma
(supra) with respect to the Government Order dated 10.12.2010, the same
did not find favour with the Court. The said Government Order evidenced
herein as Ext. P10 in W.A. No. 854 of 2016 provides at paragraph 6 as
follows “-
6. Government are also pleased to order that where there are any
provision in the Regulations inconsistent with the provisions in the
G.O. read as 1
st
 paper above, those provisions in the G.P. would
override the provisions in the Regulations to the extent of such
inconsistency.
Reference No. 1 in the said Government Order is to G.O.(P) NO.
58/2010/H.Edn. Dated 27.3.2010 (Ext.P8 in W.A. No. 854 of 2016). It
is the said Government Order that is directed to prevail as per Clause
6 extracted above. It has been ordered by the said Government
Order that the age of superannuation shall continue as at present. In
the above context, it is necessary to notice that as per letter No. F.1-
7/2010-U.II dated 14.08.2012 of the MHRD (a copy of which has been
handed over to us by the Counsel in the Court), it has been clarified
that the issue regarding age of retirement has been left to the
decision of the State Governments. Paragraph 5 that deals with the
above aspect is extracted hereunder for convenience of reference :
5. Bearing in mind that the question of enhancement of age of
retirement is exclusively within the domain of the policy making
power of the State Governments, the issue of age of retirement has
been left to the State Governments to decide at their level. The
condition of enhancement of age of superannuation to 65 years as
mentioned in this Ministry’s letter dated 31.12.2008 may be treated
as withdrawn, for the purpose of seeking reimbursement of central
share of arrears to be paid to State University and College teachers.
However, the other conditions as mentioned in the letter cited above
shall continue to apply.
Though a contention has been put forward by the counsel for the
Appellants that, the condition has been withdrawn for the purpose of
seeking reimbursement of the central share of arrears alone, we are
not prepared to accept the same in view of the opening sentence in
the said clause which declares in unambiguous terms that
enhancement of age of retirement is exclusively within the domain of
the powers of the State Government and that for the said reason, the
issue of age of retirement has been left to the State Governments to
decide at their level.
***
17. In the view that we have taken above, we do not consider it
necessary to refer to or discuss the other decisions on which reliance has
been placed. The question of fixing the retirement age of teachers is
essentially a matter of policy. The said policy would have to be adopted by
the State Government taking into account a number of factors. As
contended before us by the learned Additional Advocate General, the State
of Kerala does not suffer from a dearth of qualified candidates to be
appointed as teachers. There are a large number of qualified teachers,
including Ph.D. Holders who are waiting for employment. They are persons
trained in advanced methods of instruction and teaching techniques. At
the same time, teachers like the appellants who are approaching
retirement age are not persons who could be described as aged or infirm.
They are in their prime of life, endowed with the rich experience both in
teaching as well as in guiding research projects. The wisdom of the
decision to superannuate them at such a prime point of time in their lives
is also questionable. A decision can be taken only by balancing both the
above aspects as well as other relevant factors that may require to be
taken into account. Such an informed decision would have to be taken by
the law makers and not by courts. As at present, the UGC Regulations,
2010 cannot affect the State laws governing the age of superannuation.
UGC Regulations have in recognition of the above position granted a
discretion to the State to take a decision with respect to the manner of
implementation of the Regulations. Accordingly, the State Government
has decided not to enhance the age of retirement. We notice that, a
similar claim for enhancement in retirement age has been considered by
another Division Bench of this Court and rejected in Mathai M.M. vs.
Elizabeth Xavier (2011) 2 K.L.T. 468. The said decision is also binding on
us.”
30. Learned counsel appearing on behalf of the Appellants referred to
paragraphs 68 and 72 of the judgment of this Court in Jagdish Prasad
Sharma (supra) set out hereinbelow :-
“68. Another anxiety which is special to certain States, such as the States
of Uttar Pradesh and Kerala, has also come to light during the hearing. In
both the States, the problem is one of surplusage and providing an
opportunity for others to enter into service. On behalf of the State of
Kerala, it had been urged that there were a large number of educated
unemployed youth, who are waiting to be appointed, but by retaining
teachers beyond the age of 62 years, they were being denied such
opportunity. As far as the State of U.P. is concerned, it is one of job
expectancy, similar to that prevailing in Kerala. The State Governments of
the said two States were, therefore, opposed to the adoption of the UGC
Scheme, although, the same has not been made compulsorily applicable to
the universities, colleges and other institutions under the control of the
State authorities.
***
72. As far as the States of Kerala and U.P. are concerned, they have their
own problems which are localised and stand on a different footing from the
other States, none of whom who appear to have the same problem.
Education now being a List III subject, the State Government is at liberty to
frame its own laws relating to education in the State and is not, therefore,
bound to accept or follow the Regulations framed by UGC. It is only natural
that if they wish to adopt the Regulations framed by the Commission under
Section 26 of the UGC Act, 1956, the States will have to abide by the
conditions as laid down by the Commission.”
31. It is not understood how those paragraphs are of assistance to the
Appellant. There is no finding in paragraph 68, but only discussion of facts,
which led to the decision, and paragraph 72 is clearly against the Appellants.
This Court unequivocally held that the State was not bound to accept or follow
the UGC Regulations.
32. It is well settled that a judgment is a precedent for the issue of law, which
is raised and decided. Discussions in a judgment cannot be read out of
context, and interpreted as the dictum of the Court.
33. For the reasons discussed above, we find absolutely no grounds to
interfere with the concurrent findings of the Division Bench and the Single
Bench of the High Court of Kerala.
34. The appeal is, therefore, dismissed.
.………………………………….J.
 [ INDIRA BANERJEE ]
…………………………………..J.
 [ J. K. MAHESHWARI ]
NEW DELHI;
AUGUST 02, 2022

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