NAVIN CHANDRA DHOUNDIYAL versus STATE OF UTTARAKHAND AND ORS. on 16 October 2020

1. Leave granted. The parties were heard finally in these appeals.The common question which arises for decision is as to the correctinterpretation of a condition in the respondent-University’s statutesBregarding the date of superannuation of its teachers.

2. All the appellants are working as Professors in variousdisciplines, in the respondent Kumaun University (hereafter “theUniversity”). They are aggrieved by an office order dated 21.12.2019which set out their respective dates of retirement (which were the lastCdates in the months they attained the age of superannuation, i.e. 65 years).The appellants relied on Statute No. 16.24 of the University, applicableto them, contending that they were entitled to continue beyond the lastdate of the month in which each of them attained the age ofsuperannuation, till the “30[th] of June following” in terms of thatDprovision. That statute reads as follows:

“16.24 (1) The age of superannuation of a teacher of theUniversity, whether governed by the new scale of pay or notshall be sixty-five years.

(2) No extension in service beyond the age of superannuationEshall be granted to any teacher after the date ofcommencement of these statutes.

provided that a teacher whose date of superannuation doesnot fall on June 30, shall continue on service till the end ofthe academic session, that is June 30, following and will beFtreated as on re-employment from the date immediatelyfollowing his superannuation till June, 30, following.

(Provided further that such physically and mentally fitteachers shall be reappointed for a further period of two years,after June, 30, following the date of their superannuation asGwere imprisoned for taking part in freedom struggle of 1942and are getting freedom fighters pension)

Provided also that the teachers who were re-appointed inaccordance with the second proviso as it existed prior to thecommencement to the Kumaun University (Twenty-thirdamendment) First Statute, 1988 and a period of one year has H

not elapsed after the expiry of the period of theirreemployment, may be considered for re-appointment for afurther period of one year.”

3. The appellants were aggrieved by the office order dated21.12.2019 and approached the Uttarakhand High Court in writproceedings. They argued that they were entitled to continue in service,on extension up to the end of June, 2021. They had relied on a previousjudgment of the Division Bench of the High Court - Dr. Indu Singh vState of Uttarakhand[1]. In that judgment, the Division Bench had, on aninterpretation of the relevant provisions (which were worded identicallyto Statute No. 16.24 as in this case) held that those who retire after 30thJune are “entitled to continue till the end of the academic year”.The Division Bench placed emphasis and importance on the legislativeintent “to cater to the supreme need to not adversely affect theacademic activities of the institution and to safeguard the interestof the students.”

4. The impugned judgment rejected the appellants’ writ petition,holding that Indu Singh[2 ]could not be considered as a binding authority.It was also held that Statute No. 16.24 applies to the teachers of theuniversity. The Division Bench said that Statute No. 16.24 (2) specificallyplaces an embargo on extension in service beyond the age ofsuperannuation. Statute No. 16.24 (2.1) – according to the Division Bench,merely provided that if the superannuation were not to fall on June, 30th,the teacher shall continue in the service till end of the academic sessioni.e. June, 30th and the same will be treated as re-employment. TheDivision Bench was of the opinion that whenever the superannuation ofan employee falls within the month of June, in that event, his or herretirement would stand extended till the end of June of that particularmonth. The words used “of the end of the academic session”, was heldto be “misleading”. Further, according to the Division Bench, the endof an academic session was not “fixated as on June, even though,most of the universities end their academic session in June, 30th. Itis not a matter of rule that the same happens everywhere. Therefore,the said concession has been granted only for the month of June.”In other words, the impugned judgment considered Indu Singh[3]to belimited to holding that the service of an employee or teacher retiring in a 1 2017 SCC Online 1527

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Agiven month; would be “extendable only till the end of the month andnot more.” The impugned judgment stated that if the appellants wereright, every officer would get an extension for a year or so, which couldnever be the intention of the university or of the government.

5. It is argued by Mr. Gaurav Gupta, learned counsel for theBappellants, that the impugned judgment erred in holding that the provisoto Statute No. 16.24 only enables teachers to continue till the end of themonth and that to understand it to say that it assures re-employment to asuperannuated teacher till the end of June of the academic session ismisleading. It is submitted that the purport of the proviso has to begathered from the circumstance - that it caters to a specific eventuality,Cwhere the teacher/official superannuates on a particular day of any month,after June 30[th], of an academic year. Superannuation would normallymean that the retirement date would be in accordance with the rules. Inthis particular case, since the provision applied only to teachers, theintention of the statute clearly was the continuance of status quo, toDavoid disturbance, caused by the retirement, and the likely time to betaken by the University to make alternative arrangements to fill thevacancy. This was conceived in the larger interest for the students, whowould have faced difficulties in completing their syllabi in the absence ofthe teacher, and likely time taken for the new teacher to adjust to thesubject and the students.E

6. It was next submitted that the High Court should not, havingregard to the precedential value of Indu Singh[4], held that it wasincorrectly reasoned, or that its facts were different, because the provisiondealing with retirement was in pari materia with Statute No. 16.24. Herelied on the provision which was considered in Indu Singh[5 ]in supportFof this contention[6]. Further, Mr. Gupta submitted that a bench of co-equal strength could not have refused to follow an earlier decision; if itdoubted it or wished to depart from it, the proper course would have 4 Supra n.1

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G6 Para 17.15 of the First Statutes of the University of Hemavati Nandan Bahuguna,Garhwal, 1978, which read as follows:

“17.15 No extension in service beyond the age of superannuation shall begranted to any teacher after the date of commencement of these Statutes:Provided that a teacher whose date of superannuation does not fall on June 30, shallcontinue in service till the end of the academic session, that is, June 30 following, andH

been to refer the issue to a larger, or full bench. Counsel relied on certaindecisions of this court, in this regard.[7] Counsel also relied on the decisionof this court in S.K. Rathi v Prem Hari Sharma[8] and submitted that theimpugned judgment was again in error in holding that the decision of thiscourt was not binding, as the observations were obiter. It was lastlyurged that the consistent view of the High Court, expressed by twoother Benches [in Professor Sri Krishna Khandelwal v State ofUttarakhand {WP (S/B) No. 601/2017}, decided on 10.01.2018 andBinod Kumar Singh v State of Uttarakhand {WP (S/B) No. 328/2019, decided on 25.07.2019}] in relation to the concerned statute, i.e.proviso to Statute No. 16.24, that the teacher whose age ofsuperannuation was after the 30[th] of June of any given year, was to becontinued as a re-employed officer, till the end of the academic session,i.e. 30[th] June of the following year.

7. Ms. Vanshaja Shukla, learned counsel for the University andthe State, urged this court not to interfere with the impugned judgment.She argued that the Division Bench had good reasons to differ from thereasoning in Indu Singh[9]. She emphasized that the impugned judgmenttook note of the submissions on behalf of the state that according to ageneral order, whenever an employee attained the age of superannuation(regardless of the date), he/she was entitled to continue till the end ofthat particular month. It was submitted that the Division Bench tooknote of this argument, and correctly surmised that the proviso to StatuteNo. 16.24 merely embodied the principle underlying that government will be treated as on re-employment from the date immediately following hissuperannuation till June 30, following:

Provided further that such physically and mentally fit teachers shall be re-appointed fora further period of two years, after June 30, following the date of their superannuation,as were imprisoned for taking part in freedom struggle of 1942 and are getting freedomfighters pension.

Provided also that the teachers who were re-appointed in accordance with the secondproviso as it existed prior to the commencement of the Garhwal University (Twenty-second Amendment) First Stututes, 1988 and a period of one year has not elapsed afterthe expiry of the period of their re-employment, may be considered for re-appointmentfor a further period of one year.”

7 S. Kasi v State through Inspector of Police 2020 SCCOnline 529; Nahar IndustrialEnterprises Ltd v Hongkong and Shanghai Banking Corporation (2009) 8 SCC 646;Central Board of Dawoodi Bohra Community v State of Maharastra (2005) 2 673;8 (2001) 9 SCC 377

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Aorder, ensuring that teachers retired only at the end of the month duringwhich they attained the age of superannuation.

8. Ms. Shukla submitted that one could not read too much into theexpression “the 30[th] June following” beyond the fact that it was meantto illustrate that if a teacher were to attain the age of superannuationBduring June of any year, she or he could be re-employed till the end ofthat month. Ms. Shukla submitted that surely that did not imply that theteacher, a superannuated employee had a right to insist that he shouldbe re-employed till the end of June of the next year. Learned counselunderlined the intent of the main provision, which enacts the essentialprinciple, which is that every teacher attains the age of superannuationCwhen she turns 65; in these circumstances, he/she cannot claimentitlement to re-employment.

9. This court is of the opinion that on a plain interpretation ofStatute No. 16.24, including the proviso in question, it is clearly apparentthat firstly each teacher attains the age of superannuation onDcompleting 65 years {Statute No. 16.24 (1)}. Secondly, no teacher whoattains the age of superannuation has a right or entitlement to re-employment; in fact, the opening expression “No teacher” appears torule out re-employment of superannuated teachers {Statute No. 16.24(2)}. Thirdly, and importantly the proviso {to Statute 16.24 (2)} carvesEout an exception to the main provision, inasmuch as it provides that ateacher whose “date of superannuation does not fall on June 30,shall continue in service till the end of the academic session, that isJune 30, following and will be treated as on re-employment fromthe date immediately following his superannuation till June, 30,following.”F

10. It appears that in S.K. Rathi[10], a resolution, perhaps aforerunner to Statute No. 16.24 was in issue. No doubt, the petitionerthere was officiating as principal. His contention was that by virtue ofthe resolution, he was entitled to continue beyond the age ofsuperannuation, as acting principal. This court negatived his claimGto continue as principal. However, crucially, the court underlined that ateacher had a right to continue till the 30[th] June following:

“3. It is not in dispute that respondent No. 1, who was ateacher, had been appointed as an acting Principal. Heattained the age of 60 years sometime in December, 1999.H10 Supra n. 8

With an effort to continue in office, he filed a writ petition(CM. Writ Petition No. 54640 of 1999) and in the impugnedorder dated 5th January, 2000, the Division Bench of theHigh Court observed that in view of the decision of anotherDivision Bench in Udai Narain Pandey’s case, respondentNo. 1 could continue to function as Principal of the Institutiontill 30th June 2000. Hence this appeal.

4. On a query raised by us, learned Counsel for therespondent drew our attention to a decision of the Governmentcontained in document dated 16th February, 1999, in whichit was, inter alia, stated that for teachers like respondent No.1 the age of superannuation was 60 years. The said decisionfurther states that no extension in service shall be grantedbut “if the date of superannuation of a teacher does not fallon June 30, the teacher shall continue in service till the endof the academic session i.e. June 30, following”. This is theclause on which reliance is placed by the learned Counsel insupport of the decision of the High Court.

5. There is no doubt that the said decision would enablerespondent No. 1 to continue as a teacher, which is hissubstantive appointment, up to 30th June, following the daywhen he attained the age of 60 years, but this clause cannotallow him to continue as an acting Principal which is adifferent post altogether. It cannot be disputed that the postof Principal and of the teacher is not the same. It is a teacheron promotion who is appointed as a Principal and there is nodecision of the Government giving extension beyond the ageof 60 years to a Principal. This being so, the appeal is allowedand the decision of the High Court permitting respondent No.1 to function as Principal of the Institution till 30th June,2000 is set aside.”

11. This court no doubt held that a teacher could not continue asprincipal; yet, it decisively ruled that “There is no doubt that the saiddecision would enable respondent No. 1 to continue as a teacher,which is his substantive appointment, up to 30th June, followingthe day when he attained the age of 60 years.” In this court’s opinion,such a categorical expression about a pari materia norm was decisiveenough for the court to have found itself compelled to follow. Yet, the AB

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Aimpugned judgment- with respect, characterized the expression inS.K.Rath[11 ]as obiter. The Division Bench, in this court’s view, erred onthis score.

12. The issue appears to have lingered and different benches ofthe Allahabad High Court, in view of the differences in phraseology ofBrules and statutes of various institutions, seem to have expressed divergentviews in the State of Uttar Pradesh. Ultimately, this led to a referencewhich was answered by a Full Bench, authored by Justice D.Y.Chandrachud[12] by the judgment reported as State Of U.P. v RameshChandra Tiwari[13].C“Primary schools are governed by the provisions of the UttarPradesh Basic Education Act, 1972 and the service conditionsof the teachers are governed by the Rules framed under theAct. Rule 29 lays down (i) the age of superannuation whichis 62 years; (ii) the principle that a teacher who attains theage of 62 years will retire from service on the last day of theDmonth in which the age of superannuation is attained; and(iii) the principle that a teacher who has retired during anacademic session, shall continue to work till the end of theacademic session and that such period of service will bedeemed to be an extended period of employment. The provisoEto Rule 29 enacts a legal fiction through the subordinatelegislation, the effect of which is that though a teacher hasattained the age of superannuation, the teacher,notwithstanding the fact that he or she had retired during theacademic session, will continue to work until the end of theacademic session and that such period of service will beFdeemed to be an extended period of employment. Rule 29refers to the academic session as being 1 July to 30 June,since this was the academic session which prevailed right untilacademic session 2013-14. The reason why a special provisionis made in the proviso to Rule 29 is to ensure that theGeducational needs of students are not disrupted by theretirement of a teacher in the midst of an academic session.In other words, the benefit is extended not so much for teachers 11 Supra n.8

12 At that time, the Chief Justice of the courtH13 (2015 (6) ADJ 579)

(though the teachers would obviously also receive the benefitof an extended period of employment) but primarily to protectthe students whose education would be disturbed by theabsence of a teacher for the academic session.”

13. The above analysis would show that the view of theUttarakhand High Court, as also the Allahabad High Court (now settledby the full bench decision) consistently have been that teacherssuperannuating are to be treated as re-employed or allowed to continue,in the larger interest of the pupils, has prevailed. If the view that foundacceptance with the impugned judgment were to prevail, there would beavoidable disruption in teaching; the likely delay in filling vacancies causedmid-session cannot but be to the detriment of the students. That apart,this court is also of the opinion that if the state or the university wishedto depart from the prevailing understanding, appropriate measures couldhave been taken, putting all the concerned parties to notice, throughamendments. In the absence of any such move, the departure from theprevailing understanding through a discordant judgment, as the impugnedjudgment is, injects uncertainty. Long ago, this court had underlined thisaspect while ruling that long standing or established status quo broughtabout by judgments interpreting local or state laws, should not be lightlydeparted from, even by this Court, in Raj Narain Pandey v Sant PrasadTewari & Ors[14 ]in the following words:

“In the matter of the interpretation of a local statute, the viewtaken by the High Court over a number of years shouldnormally be adhered to and not disturbed. A different viewwould not only introduce an element of uncertainty andconfusion, it would also have the effect of unsettlingtransactions which might have been entered into on the faithof those decisions. The doctrine of stare decisis can be aptlyinvoked in such a situation. As observed by Lord EvershedM.R. in the case of Brownsea Haven Properties v. PooleCorpn.(1958 [Ch] 574), there is well-established authorityfor the view that a decision of long standing on the basis ofwhich many persons will in the course of time have arrangedtheir affairs should not lightly be disturbed by a superiorcourt not strictly bound itself by the decision.”

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A14. This court is consequently of the opinion that the impugnedjudgment is in error. The very object and intent of the proviso to StatuteNo.16.24 is to avoid the disruption caused by discontinuity of service ofa teaching staff employee or official mid-session. Therefore, the view inIndu Singh[15], dealing with an identical statute, was correctly interpreted;the other decisions which dealt with Statute No.16.24 [Professor SriBKrishna Khandelwal and Binod Kumar Singh (supra)] too werecorrectly decided.

15. For the foregoing reasons, the impugned judgment and ordersof the High Court are set aside. The appellants are entitled, consequently,to continue till the end of the following June on re-employment. If any ofCthem has been superannuated, he or she shall be issued with orders ofreinstatement, with full salary for the period they were out of employment,and allowed to continue till the following June, on re-employment basis.The appeals are allowed without any order as to costs.

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Devika Gujral

Appeals allowed.

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