DR. J. VIJAYAN & OTHERS versus THE STATE OF KERALA & OTHERS on 2 August 2022

1. Leave granted.

2. The University Grants Commission Act, 1956, hereinafterFreferred to as “the UGC Act”, was enacted to make provisions for thecoordination and determination of standards in universities and for thatpurpose to establish a University Grants Commission, hereinafter referredto as “UGC”.

3. Section 20 of the UGC Act provides:G“20. Directions by the Central Government –

(1) In the discharge of its functions under this Act, theCommission shall be guided by such directions onquestions of policy relating to national purposes as maybe given to it by the Central Government.

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(2) If any dispute arises between the Central Governmentand the Commission as to whether a question is or is not aquestion of policy relating to national purposes, the decisionof the Central Government shall be final.”

4. In exercise of the powers conferred under Clauses (e) and (g)of sub- section (1) of Section 26 of the UGC Act 1956, the Ministry ofHuman Resource Development of the Government of India framed theUniversity Grants Commission (Minimum Qualifications for Appointmentof Teachers and Academic Staff in Universities and Colleges and OtherMeasures 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 reproducedhereinbelow :- “2.0.0 PAY SCALES, PAY FIXATION FORMULA ANDAGE OF SUPERANNUATION, ETC.

2.1.0 The revised scales of pay and other service conditionsincluding age of superannuation in central universities and otherinstitutions maintained and/or funded by the University GrantsCommission (UGC), shall be strictly in accordance with thedecision of the Central Government, Ministry of Human ResourceDevelopment (Department of Education), as contained inAppendix-I.

2.2.0 The pay scale shall, in the central universities and otherinstitutions maintained and/or funded by the UGC, be fixed inaccordance with the pay “fixation formula” developed by the UGCand 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 otherpositions in the Library and Physical Education and Sports cadresin the Central Universities and Colleges thereunder and InstitutionsDeemed to be Universities whose maintenance expenditure is metby the UGC.2.3.1. The revised scales of pay and age ofsuperannuation as provided in Clause 2.1.0 above, may also beextended to Universities, colleges and other higher educationalinstitutions coming under the purview of the State Legislature andmaintained by the State Governments, subject to the implementationof the scheme as a composite one in adherence of the terms and A

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conditions laid down in the MHRD notifications provided asAppendix I and in the MHRD letter No.F.1-7/2010-U II dated 11May, 2010 with all conditions specified by the UGC in theseRegulations and other Guidelines.

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2.3.2. Subject to the availability of vacant positions andfitness, teachers such as Assistant Professor, AssociateProfessor and Professor only, may be re-employed oncontract appointment beyond the age of superannuation,as applicable to the concerned University, college andInstitution, up to the age of seventy years.

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Provided further that all such re-employment shall be strictly inaccordance with the guidelines prescribed by the UGC, fromtime to time.

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2.3.3. All other aspects which are not covered in theseRegulations, on applicability, financial assistance, date ofimplementation of revised pay and allowances and paymentof arrears, etc. shall be as laid down in the MHRDNotifications provided as Appendix-I of these Regulationsand the MHRD letter No.F.1-7/2010-U II dated 11 May,2010.’’

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6. The UGC Regulations provided that the revised scale of payand other service conditions shall be in accordance with Appendix-I, therelevant extract whereof is reproduced hereinbelow :- E

“APPENDIX I

8. Other terms and conditions :

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(f) Age of Superannuation:

(i) In order to meet the situation arising out of shortage of teachersin universities and other teaching institutions and the consequentvacant positions therein, the age of superannuation for teachersin Central Educational Institutions has already been enhanced toGsixty five years, vide the Department of Higher Education letterNo.F.No.119/2006/U.II dated 23.3.2007, for those involved in classroom teaching in order to attract eligible persons to the teachingcareer and to retain teachers in service for a longer period.Consequent on upward revision of the age of superannuation ofHteachers, the Central Government has already authorized the H

Central Universities, vide Department of Higher Education D.O.letter No. F.I-24/2006-Desk(U) dated 30.03.2007 to enhance theage of superannuation of Vice-Chancellors of Central Universitiesfrom 65 years to 70 years, subject to amendments in the respectivestatutes, with the approval of the competent authority (Visitor inthe case of Central Universities).

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(p) Applicability of the Scheme:

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(v) This Scheme may be extended to universities, Colleges andother higher educational institutions coming under the purview ofState legislatures, provided State Governments wish to adopt andimplement the Scheme subject to the following terms andconditions:

(a) Financial assistance from the Central Government to StateGovernments opting to revise pay scales of teachers and otherequivalent cadre covered under the Scheme shall be limitedto the extent of 80% (eighty per cent) of the additionalexpenditure involved in the implementation of the revision.

(b) The State Government opting for revision of pay shall meetthe remaining 20% (twenty per cent) of the additionalexpenditure from its own sources.

(c) Financial assistance referred to in sub-clause (a) aboveshall be provided for the period from 1.01.2006 to 31.03.2010.

(d) The entire liability on account of revision of pay scalesetc. of university and college teachers shall be taken over bythe State Government opting for revision of pay scales witheffect from 1.04.2010.

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(f) State Governments, taking into consideration other localconditions, may also decide in their discretion, to introducescales of pay higher than those mentioned in this Scheme,and may give effect to the revised bands/scales of pay from adate on or after 1.01.2006; however, in such cases, the detailsof modifications proposed shall be furnished to the Central A

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Government and Central assistance shall be restricted to thePay Bands as approved by the Central Government and notto any higher scale of pay fixed by the State Government(s).

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(g) Payment of Central assistance for implementing this Schemeis also subject to the condition that the entire Scheme ofBrevision of pay scales, together with all the conditions to belaid down by the UGC by way of Regulations and otherguidelines shall be implemented by State Governments andUniversities and Colleges coming under their jurisdiction asa composite scheme without any modification except in regardto the date of implementation and scales of pay mentionedCherein above.”

7. The Government of India through the Ministry of HumanResource 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 :-D

“4. After taking into consideration the views expressed by severalState Education Ministers during the Conference held in 2010 theCentral Government has now decided to de-link the condition ofenhancement of age of superannuation from the payment ofCentral share of 80% arrears to the States.

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5. Bearing in mind that the question of enhancement of age ofretirement is exclusively within the domain of the policy makingpower of the State Governments, the issue of age of retirementhas been left to the State Governments to decide at their level.The condition of enhancement age of superannuation to 65 yearsFas mentioned in this Ministry’s letter dated 31.12.2008 may betreated as withdrawn, for the purpose of seeking reimbursementof central share of arrears to be paid to State University andCollege teachers. However, the other conditions as mentioned inthe letters cited above shall continue to apply.”

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G8. The UGC Regulations have to be consistent with the directionson questions of policy relating to national purposes, as may be given bythe Central Government as per Section 20 of the UGC Act, 1956. In thecase of any dispute between UGC and the Central Government, as towhether a question is a question of policy relating to national purpose,the decision of the Central Government prevails over that of UGC.H

9. In P. Suseela & Ors. v. University Grants Commission &Ors.[1], this Court held that directions in exercise of powers under Section20 of the UGC Act are made to provide for coordination and determinationof 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 mustconform to the directions issued by the Central Government under Section20 of the UGC Act.

10. By a Government Order dated 10th December 2010, theGovernment of Kerala adopted and implemented the UGC Regulations,2010. Counsel appearing for the Appellants submitted that the StateGovernment had accepted the enhancement of salary grant from theCentral Government, but failed to comply with the condition ofenhancement of the retirement age of the teachers.

11. Aggrieved by the failure of the State of Kerala to enhance theretirement age of the Appellants, the Appellants filed a writ petition beingWrit Petition (C) No. 10257/2016(F) in the High Court of Kerala. By ajudgment and order dated 28th March 2016, the Single Bench of theHigh Court dismissed the writ petition. The Appellants filed a writ appealbeing Writ Appeal No. 734 of 2016. The Writ Appeal has been dismissedby the Division Bench of the High Court, by the impugned judgment andnorder.

12. Learned Counsel appearing on behalf of the Appellants arguedthat the UGC Act and the UGC Regulations are enacted by the Parliamentunder Entry 66 of the Union List under the Seventh Schedule of theConstitution of India, which pertains to coordination and determinationof standards for higher education, research, etc.

13. Counsel further argued that the Pay Revision Commissionappointed by the UGC, regarding the pay-scale of teachers, eligibility ofappointment, service and working conditions and promotional avenuesof teachers in Universities and Colleges recommended that the age ofsuperannuation throughout the country should be 65 years. Pursuant tothe aforesaid recommendation, the UGC Regulations, were enacted.

14. Counsel further submitted that, as per the UGC Regulations, thesalary of the teachers was proposed to be enhanced and in case of suchenhancement, 80% of the enhanced salary was to be paid by the CentralGovernment and the remaining 20% by the State Government. The1 (2015) 8 SCC 129

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ARegulations also recommended that the age of superannuation of theteachers should be enhanced to 65 years. The scheme was a compositescheme which could not be altered or varied in terms.

15. It appears that after the State of Kerala adopted the UGCRegulations, the teachers of affiliated colleges claimed right ofBsuperannuation as per the UGC Regulations. However, the contentionwas 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 23rdFebruary 2016, passed by a Full Bench of the High Court of Kerala inCWrit Petition (C) No. 29253 of 2012 (Dr. Radha Krishnan Pillai v.State of Kerala & Others). The Full Bench of the High Court of Keralaheld that irrespective of whether the Kerala University Act or theMahatama Gandhi University Act were enacted under Entry 25 of ListIII of Seventh Schedule to the Constitution of India and irrespective ofthe fact that statutes framed thereunder had been amended in line withDthe UGC Regulations, the universities and affiliated colleges in the Stateof Kerala were bound to comply with the UGC Regulations in view ofits adoption by the State of Kerala with effect from 18th September2010.

17. Mr. Jaideep Gupta, learned Senior Counsel appearing on behalfEof the State of Kerala argued that the UGC Regulations issued on 30thJune 2010 relate to minimum qualifications for appointment of teachersand other academic staff in Universities and Colleges and other measuresfor maintenance of standards in higher education. Regulation 2.0.0 dealswith the pay-scale, the pay-fixation formula and age of superannuationFetc. Regulation 2.0.0 lays down the revised scale of pay and other serviceconditions including the age of superannuation in Central Universitiesand other institutions maintained and/or founded by the University GrantsCommission.

18. Mr. Gupta argued that Clause 2.3.1 made it clear that theGrevised pay scale and the age of superannuation may also be extendedto universities, colleges and other higher educational institutions comingunder the purview of the State Legislature and maintained by the StateGovernment, subject to the implementation of the scheme as a compositeone in adherence to the terms and conditions laid down in notification issued by the Ministry of Human Resource Development provided inAppendix-1 and in the Ministry of Human Resource Development LetterNo.F.1-7/2010-U.II dated 11th May 2010.

19. On 10th December 2010, the Government of Keralaimplemented and adopted the pay scale with effect from 18th September2010. Clause 6 of the Order of the Government of Kerala, expresslystated that where there were any provisions in the Regulations,inconsistent with the provisions of the Government Order dated 27thMarch 2010, the provisions of the Government Order would over-ridethe provisions of the UGC Regulations to the extent of such inconsistency.

20. In any case, the UGC Regulations were modified by an order ofMinistry of Human Resource Development dated 14th August 2012,whereby the regulation enhancing the age of superannuation to 65 yearswas treated as withdrawn.

21. Mr. Gupta pointed out that the age of superannuation ofacademic and other staff in the institutions in the State of Kerala wasgoverned by the Rules issued under Article 309 of the Constitution ofIndia and such Rules could not be overridden by the Government Orderdated 10th December 2010.

22. In the context of the contention of the Appellants that theState of Kerala could not have given effect to the pay scales recommendedby the UGC Regulations, without enhancing the age of superannuation,Mr. Jaideep Gupta, learned Senior Counsel argued that the adoption ofpay scale by the State Government is not by itself exclusively referableto the UGC Regulations. The State Government was in any case free toadopt the pay scales, even otherwise and without reference to the UGCRegulations.

23. Refuting the contentions of the Appellants that the StateGovernment was bound to accept the age of superannuationrecommended by the UGC Regulation since it had to accept thecontribution from the Central Government under the UGC Regulationsfor enhancement of salary. Mr. Gupta argued that Central Governmenthad itself made it clear that the age of superannuation was not to belinked to the benefits conferred by the UGC Regulations.

24. Mr. Jaideep Gupta finally argued that the issue is coveredagainst the Appellants by the judgment of this Court in Jagdish PrasadSharma (supra) clearly laying down that the age of superannuation fixed A

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Aby the Rules under Article 309 of the Constitution of India could not bemodified by the Regulations under the UGC Act. Mr. Jaideep Guptastated that the argument that the State Government had availedcontributions from the Central Government under the 2010 Scheme wasnot correct as recorded in the impugned judgment and order passed bythe High Court. The Government does not receive any aid from theBCentral Government for the UGC Scheme. The expenses for salary ofthe college teachers are met by the State Government itself.

25. The Single Bench found, and in our view rightly, that therewas no change in the law after the judgment of this Court in JagdishPrasad Sharma (supra).C

26. The Single Bench rightly noted that what was in issue beforethe Full Bench was Section 26 of the University Grants Commission Actand the Regulations framed under Clause (g) of Section 26, which dealtwith regulation and maintenance of standards and the regulation of facilitiesin the Universities. The Single Bench was of the view that the decisionDcould have no application in the case of statutory age of retirement asdetermined by the State of Kerala under Article 309 of the Constitutionof India. The prescription of the age of superannuation of a facultymember could not affect the standards.

27. As found by the Single Bench of the High Court, the decisionEto issue the Circular dated 14th August 2012, withdrawing the regulationregarding enhancement of the age of superannuation, was taken by theCentral Government, in consultation with the States and in deference tothe powers given to the States to prescribe the service conditions of itsemployees, which would fall within the ambit of policy decision,Fundisputedly within the exclusive domain of the respective StateGovernments. The Single Bench held that the Policy of the StateGovernment, which is evidenced by the statutory provisions mandatingteachers of aided affiliated colleges to retire at the age of 56 years, andthat of the Universities at the age of 60 years, has been crystalized byenactments under Article 309 of the Constitution of India.G

28. The Division Bench of the High Court, after hearing therespective parties found, and rightly, that most of the issues raised in theappeals were concluded against the Appellants by the judgment andorder of this Court in Jagdish Prasad Sharma (supra). The DivisionBench observed that this Court had held that it was mandatory for theHUGC to be guided by the directions issued by the Central Government

on questions of policy relating to national purposes by discharging itsfunctions under the UGC Act. The Division Bench found that the UGCwas bound to follow the directions issued by the Central Government inview of Section 20 of the UGC Act.

29. The Division Bench of the High Court also found that the StateGovernments had the discretion to accept the scheme proposed under theUGC 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 ofthe Apex Court, that the present contentions of the counsel forthe appellants are required to be considered. The contention thatthe UGC Regulations were made in exercise of the power underEntry 66 List I Schedule VII of the Constitution, while the Stateenactments are made under Entry 25 List III Schedule VII andfor the said reason, in the event of repugnancy, the Centralenactment would prevail, has to fail for more reasons than one. Inthe first place, the State Laws prescribing the age of retirement ofteachers are made in exercise of the power under Article 309 ofthe Constitution. The Apex Court has found Jagdish PrasadSharma (supra) that such enactments would remain unaffectedby the stipulations contained in the UGC Regulations. Secondly, ithas been further held by the Court in the said decision that theUGC does not have any power to stipulate the service conditionsof teachers. Therefore, such power is vested entirely in the State.Thirdly, obviously in recognition of the above position of law theUGC Regulations have conferred a discretion on the StateGovernments to decide whether to implement the Regulations ornot. In view of the conferment of the discretion as noted above,no question of repugnancy arises in these cases. Therefore, wedo not think it necessary to consider the above contention in anyfurther detail.

15. On the next contention that the Scheme under the UGCRegulations, 2010 has to be accepted in full as a composite oneand that adoption of the Scheme without enhancing the retirementage of teachers was bad, we find that the said issue has beenconcluded by the Supreme Court. Though a similar contention wasput forward in Jagdish Prasad Sharma (supra) with respect to theGovernment Order dated 10.12.2010, the same did not find favour A

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with the Court. The said Government Order evidenced herein asExt. P10 in W.A. No. 854 of 2016 provides at paragraph 6 asfollows’’-

6. Government are also pleased to order that where there areany provision in the Regulations inconsistent with the provisionsin the G.O. read as 1[st]paper above, those provisions in theG.P. would override the provisions in the Regulations to theextent 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 directedto prevail as per Clause 6 extracted above. It has been orderedby the said Government Order that the age of superannuationshall continue as at present. In the above context, it is necessaryto notice that as per letter No. F.1- 7/2010-U.II dated14.08.2012 of the MHRD (a copy of which has been handedover to us by the Counsel in the Court), it has been clarifiedthat the issue regarding age of retirement has been left to thedecision of the State Governments. Paragraph 5 that dealswith the above aspect is extracted hereunder for convenienceof reference :

5. Bearing in mind that the question of enhancement of age ofretirement is exclusively within the domain of the policy makingpower of the State Governments, the issue of age of retirementhas been left to the State Governments to decide at their level.The condition of enhancement of age of superannuation to 65years as mentioned in this Ministry’s letter dated 31.12.2008may be treated as withdrawn, for the purpose of seekingreimbursement of central share of arrears to be paid to StateUniversity and College teachers. However, the other conditionsas mentioned in the letter cited above shall continue to apply.

Though a contention has been put forward by the counsel forthe Appellants that, the condition has been withdrawn for thepurpose of seeking reimbursement of the central share ofarrears alone, we are not prepared to accept the same in viewof the opening sentence in the said clause which declares inunambiguous terms that enhancement of age of retirement isexclusively within the domain of the powers of the State Government and that for the said reason, the issue of age ofretirement has been left to the State Governments to decide attheir level.

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17. In the view that we have taken above, we do not consider itnecessary to refer to or discuss the other decisions on whichreliance has been placed. The question of fixing the retirementage of teachers is essentially a matter of policy. The said policywould have to be adopted by the State Government taking intoaccount a number of factors. As contended before us by thelearned Additional Advocate General, the State of Kerala doesnot suffer from a dearth of qualified candidates to be appointed asteachers. There are a large number of qualified teachers, includingPh.D. Holders who are waiting for employment. They are personstrained in advanced methods of instruction and teachingtechniques. At the same time, teachers like the appellants whoare approaching retirement age are not persons who could bedescribed as aged or infirm. They are in their prime of life, endowedwith the rich experience both in teaching as well as in guidingresearch projects. The wisdom of the decision to superannuatethem at such a prime point of time in their lives is also questionable.A decision can be taken only by balancing both the above aspectsas well as other relevant factors that may require to be taken intoaccount. Such an informed decision would have to be taken bythe law makers and not by courts. As at present, the UGCRegulations, 2010 cannot affect the State laws governing the ageof superannuation. UGC Regulations have in recognition of theabove position granted a discretion to the State to take a decisionwith respect to the manner of implementation of the Regulations.Accordingly, the State Government has decided not to enhancethe age of retirement. We notice that, a similar claim forenhancement in retirement age has been considered by anotherDivision Bench of this Court and rejected in Mathai M.M. vs.Elizabeth Xavier (2011) 2 K.L.T. 468. The said decision is alsobinding on us.”

30. Learned counsel appearing on behalf of the Appellants referredto paragraphs 68 and 72 of the judgment of this Court in Jagdish PrasadSharma (supra) set out hereinbelow :- A

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A“68. Another anxiety which is special to certain States, such asthe States of Uttar Pradesh and Kerala, has also come to lightduring the hearing. In both the States, the problem is one ofsurplusage and providing an opportunity for others to enter intoservice. On behalf of the State of Kerala, it had been urged thatthere were a large number of educated unemployed youth, whoBare waiting to be appointed, but by retaining teachers beyond theage of 62 years, they were being denied such opportunity. As faras the State of U.P. is concerned, it is one of job expectancy,similar to that prevailing in Kerala. The State Governments of thesaid two States were, therefore, opposed to the adoption of theCUGC Scheme, although, the same has not been made compulsorilyapplicable to the universities, colleges and other institutions underthe control of the State authorities.

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72. As far as the States of Kerala and U.P. are concerned, theyDhave their own problems which are localised and stand on adifferent footing from the other States, none of whom who appearto have the same problem. Education now being a List III subject,the State Government is at liberty to frame its own laws relatingto education in the State and is not, therefore, bound to accept orfollow the Regulations framed by UGC. It is only natural that ifEthey wish to adopt the Regulations framed by the Commissionunder Section 26 of the UGC Act, 1956, the States will have toabide by the conditions as laid down by the Commission.”

31. It is not understood how those paragraphs are of assistance tothe Appellant. There is no finding in paragraph 68, but only discussion ofFfacts, which led to the decision, and paragraph 72 is clearly against theAppellants. This Court unequivocally held that the State was not boundto accept or follow the UGC Regulations.

32. It is well settled that a judgment is a precedent for the issue oflaw, which is raised and decided. Discussions in a judgment cannot beGread out of context, and interpreted as the dictum of the Court.

33. For the reasons discussed above, we find absolutely no groundsto interfere with the concurrent findings of the Division Bench and theSingle Bench of the High Court of Kerala.

34. The appeal is, therefore, dismissed.

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Ankit Gyan