CHANDRA MOHAN VARMA versus STATE OF UTTAR PRADESH & ORS. on 21 January 2020

1. A Division Bench of the High Court of Judicature at Allahabaddismissed, by its judgment dated 2 February 2018, a Writ Petition institutedby the appellant under Article 226 of the Constitution. By his petition, theappellant sought a mandamus for his continuance in service as Professorand Head of the Department of Cardiology of the LPS Institute ofCardiology in GSVM Medical College, Kanpur until he attained the ageof 65. He claimed this relief on the basis of a notification dated 6 February2015 of the Government of Uttar Pradesh extending the age of retirementfrom 60 to 65 years. The appellant had before the issuance of the abovegovernment notification attained the age of superannuation of 60 yearson 13 August 2014. But, in terms of a Government decision[1] dated 19November 2012, he had been granted a ‘session benefit’ of anextension of service up to 30 June 2015. Based on this extension, theappellant’s case is that he is entitled to the extension in the age ofretirement which has been brought about by the notification dated 6February 2015. This claim has been repelled by the judgment and orderof the Allahabad High Court which is questioned in appeal.

2. On 1 April 1992, the UP Fundamental Rules[2] were notifiedunder Section 241(2)(b) of the Government of India Act 1935. Rule 56provides that:

1 “GO”

2 “Fundamental Rules”

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A“Except as otherwise provided in this Rule, every Governmentservant shall retire from service on the afternoon of the last dayof the month in which he attains the age of sixty years:

Provided …”

3. On 21 December 1990, the Uttar Pradesh State MedicalBColleges Teachers, Service Rules 1990[3] were notified by the Governorin exercise of powers conferred by the proviso to Article 309 of theConstitution. Rule 9 prescribed a maximum age for recruitment in medicalcolleges, by direct recruitment. For Professors, it was 45 years. Amongother things, the Rules made a provision for constitution of cadres inCPart II, recruitment in Part III, quantifications for appointment in PartIV, procedure for recruitment in Part V and provisions for pay relatedmatters in Part VII. The Rules did not prescribe the age of retirement.But, Rule 26 contained the following stipulation:

“26. Regulation of other matters. – In regard to the matters notDspecifically provided in these rules or in special orders, personsappointed to the service shall be governed by the rules, regulationsand orders applicable generally to Government servants inconnection with the affairs of the State.”

By virtue of Rule 26, the age of retirement of professors in medicalEcolleges was governed by Rule 56 of the Fundamental Rules whichstipulated it as 60 years.

4. On 16 March 2005, the Medical Council of India MinimumQualifications for Teachers in Medical Institutions Regulations 1998[4]were amended in pursuance of powers conferred by the Indian MedicalFCouncil Act 1956 to incorporate an enabling provision in the followingterms:

“The maximum age limit upto which a person can be appointed orgranted extension or re-employed in service against the posts ofTeachers or Dean or Principal or Director, as the case may be,which are required to be filled up as per the norms of the MedicalGCouncil of India in any Medical College or Teaching Institutionfor imparting Graduate and Post-Graduate medical education, shallbe 65 years.”

3 “the Rules of 1990"

H4 “the MCI Regulations 1998"

This provision was made in view of the shortage of medicalteachers. It was amended on 17 September 2010 so as to substitute 70years for 65 years.

5. By a decision notified on 19 November 2012, the State of UttarPradesh provided that Assistant Professors, Professors and Principalsof Government Medical Colleges who were to retire after reaching theage of superannuation during the midst of an academic session would begranted an extension of service till the end of the session namely 30June of the following year. This has been described as an ‘end of sessionbenefit’.

6. On 6 February 2015, a notification was issued by the State ofUttar Pradesh by which a decision was taken that in order to meet thecontinuous shortage of medical teachers in Government Medical Colleges,the age of superannuation for serving faculty members would standenhanced from 60 to 65 years and the upper age limit prescribed forrecruitment of medical teachers through the Uttar Pradesh Public ServiceCommission[5] would stand abolished.

7. The appellant whose date of birth is 13 August 1954 joined asan ad-hoc lecturer at GSVM Medical College, Kanpur on 17 April 1986.Over time he received promotions in service. In August 2014, he wasworking as a Professor in Cardiology and as Head of Department. Interms of Rule 56, he was due to retire on attaining the age of 60 years on13 August 2014.

8. On 6 August 2014, an order was issued by the Director General,Medical Education & Training, on an application moved by the appellanton 31 May 2014 granting the benefit of an extension of service until theend of the session subject to the fulfillment of the conditions stipulated inthe GO dated 19 November 2012. Apprehending that his services wouldbe discontinued on 30 June 2015 at the conclusion of the academic session,the appellant instituted a Writ Petition before the Allahabad High Courtseeking to interdict his retirement before he attained the age of 65.

9. On 30 June 2015, an Office Memorandum[6] was issued by theChief Secretary to the State Government stating that upon the end ofthe session, the appellant would be demitting office on 30 June 2015.The OM is extracted below :

5 “UPPSC”6 OM

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A“OFFICE MEMORANDUM

The undersigned has been directed to inform that after yourcompleting the age of superannuation i.e. 60 years on thedate mentioned against the name, the period of sessionending benefit for the below named Medical Teacher willexpire on 30.6.2015:- B

Sl Medical Date of Date of Present place Date of No. Teacher Birth Retirement of posting expiry of session ending benefit C1. Dr. 13.06.1954 31.08.2014 Professor and 30.06.2015 C.M. Head of Verma Department, Cardiology, Institute of DCardiology, Kanpur

2. In view of above, the services of above-named Medical Teacher,working under session ending benefit, will expire on 30.06.2015"

10. On 1 July 2015, the appellant addressed a communication tothe Principal Secretary, Medical Education seeking re-appointment statingthat he was doing so in pursuance of the telephonic instructions of theDGME but without prejudice to his right to claim continuance in serviceuntil the age of 65 years for which he had instituted a Writ Petitionbefore the High Court.

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11. On 2 July 2015, the appellant was re-appointed to the post ofProfessor of Cardiology until further orders or until the attainment of theage of 65 years whichever was earlier. The appellant initially furnisheda letter of joining service on re-appointment without prejudice to hisrights and contentions in the pending petition but subsequently withdrewGit and submitted a fresh joining letter. He then proceeded to amend the Writ Petition in order to challenge the OM dated 30 June 2015. TheState Government in its counter affidavit opposed the Petition statingthat the appellant was not entitled to the benefit of the notification dated6 February 2015 since he had already attained the age of superannuationon 13 August 2014 and retired on 31 August 2014. According to the H

State Government, the continuance of the appellant until 30 June 2015was on the basis of the grant of the end of session benefit since the dateof his retirement was in the midst of the session. The Division Bench ofthe High Court by its judgment dated 2 February 2018 dismissed theWrit Petition on the ground that the notification dated 6 February 2015increasing the age of superannuation from 60 to 65 years “has to beignored rather than to be enforced”. The reasoning which weighed withthe High Court indicates that:

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(i) The petitioner is governed by the UP State Medical CollegeTeachers Service Rules 1990. These rules do not providefor the age of superannuation of teachers of medicalCcolleges. In such a situation, the Rules applicable togovernment servants, namely the UP Fundamental Ruleswould be applicable;

(ii) Rule 56(a) of the Fundamental Rules prescribes the age ofsuperannuation as 60 years. This Rule has not beenamended by the State. Therefore, the notification dated 6February 2015 increasing the age of superannuation to 65years was contrary to Rule 56(a) of the Fundamental Rules;and D

(iii) The GO (‘simple order’) was subordinate to theFundamental Rules (‘superior legislation’) and therefore,being contrary to it, would not have effect.

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The appellant filed a petition seeking review of the judgment onthe ground that (i) it was without considering and was contrary to a priorjudgment of a coordinate bench of the High Court in Dr Juhi Singhal vState of UP[7]; and (ii) it had erroneously applied the Fundamental Ruleswhen under Rule 26 of the Rules of 1990, the notification dated 06February 2015 being a ‘special order’ would become applicable witheffect from 6 February 2015.

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The review was dismissed by a judgment dated 14 March 2019.

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12. Assailing the judgment of the High Court, Mr PS Patwalia,learned Senior Counsel submitted that :

(i) Though the appellant attained the age of superannuationstipulated in Rule 56 of the Fundamental Rules on 13 August 7 WP (S/B) No. 4292/2016

1164SUPREME COURT REPORTS

A2014 and would have retired from service on 31 August 2014,he was granted the benefit of the GO dated 19 November2012 in terms of which his services were extended until theend of the session on 30 June 2015;

(ii) During the extended tenure of service, the State GovernmentBdecided to increase the age of retirement on 6 February 2015.The benefit of the increase in the age of retirement must begranted to the appellant who was in service on the date onwhich the State Government decided to increase the age ofsuperannuation to 65 years; C(iii) The High Court was in error in coming to the conclusion thatthe notification dated 6 February 2015 enhancing the age ofretirement to 65 years is ultra vires the provisions of Rule56 of the Fundamental Rules. In terms of Rule 26 of theRules of 1990, matters which are not specifically provided inthe rules or in special orders would be governed by the rules,Dregulations and orders generally applicable to StateGovernment servants. The notification dated 6 February 2015enhancing the age of superannuation to 65 years is a specialorder within the meaning of Rule 26. The MCI Regulations1998 contain an enabling provision in terms of which the StateEGovernment was entitled to enhance the age ofsuperannuation to 65 years;

(iv) The appellant is entitled to the benefit of the notification dated6 February 2015 issued during the pendency of his extendedservice on account of the end of session benefit given up to30 June 2015. As a result of the end of sessional benefit theFsuperannuation gets postponed and would be deemed to havetaken place only at the end of the session namely on 30 June2015. Hence, the appellant would be entitled to all benefitsarising before that date including the enhancement in the ageof superannuation to 65 years;G

(v) The GO dated 19 November 2012 equally extended the endof session benefit to medical teachers like the teachers in theeducation department. In Ram Vir Sharma v State of UP[8](“Ram Vir Sharma”), this Court held, while construing the H8 Civil Appeal No. 2606 of 2009 , decided on 4 June 2014

provisions of Regulation 21 of Chapter III of the RegulationsAunder the Uttar Pradesh Intermediate Education Act 1921[9],that the employee must not be deemed to have beensuperannuated on the date of attaining the age of 60 yearsbut would be deemed to have been superannuated only on30 June following the date on which the age of 60 years wasBattained; and

Statutes

(vi) Besides the decision in Ram Vir Sharma rendered by thisCourt, the High Court has had occasion to deal with a similarissue in Dr Juhi Singhal v State of UP through PrincipalSecretary Department of Medical Education andCTraining[10] (“Juhi Singhal”); State of UttarPradeshthrough Principal Secretary, SecondaryEducation Lucknow v Smt Hema Pathak[11] (“HemaPathak”);and Dr Professor Rajendra Chaudhary v Stateof UP[12](“Rajendra Chaudhary”). The decision inRajendra Chaudhary, though in the context of the abrogationDof the upper age limit for retirement has been affirmed bythis Court in its decision dated 28 August 2019[13].

13. On the other hand, Mr Gaurav Singh, learned Counselappearing on behalf of the respondents submitted that:

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(i) The appellant attained the age of superannuation, which atthe relevant time was 60 years on 13 August 2014 and wouldhave demitted office on 31 August 2014;

(ii) His continuance until 30 June 2015 in terms of the GO dated19 November 2012 until the end of the session (30 June 2015)did not alter the date of superannuation; F

(iii) The continuance of the appellant until 30 June 2015 was onlyto obviate a dislocation being caused as a result of theretirement fallingin the midst of the session; 9 “the Intermediate Education Act 1921"

10 Service Bench No 4292 of 2016, decided on 11 November 2016

11 Special Appeal Defective No 477 of 2013, decided on 24 January 2017

12 Writ-A. No. 17078 of 2016, decided on 6 April 2018

13 Dr Professor Rajendra Chaudhary v State of Uttar Pradesh, Civil Appeal Nos.6667-6668 of 2019

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A(iv) The notification dated 6 February 2015 extending the age ofsuperannuation will not apply to the appellant who attainedthe age of retirement on 13 August 2014;

(v) There is a distinction between the provisions of Regulation21 contained in the regulations made under Chapter III ofBthe Intermediate Education Act 1921 and the GO dated 19November 2012. Under Regulation 21, there is a deemingprovision for an extension of service as a result of which theretirement would take place at the end of the academic yearfollowing. Regulation 21 contains an opt-out provision. Onthe other hand in terms of the GO dated 19 November 2012,Cthe extension of the end of session benefit in GovernmentMedical Colleges is conditional on satisfactory performancein service. Consequently there is no deeming extension ofthe age of superannuation by the GO dated 19 November2012; and D(vi) The date of superannuation does not stand postponed. Thedecision of this Court in Ram Vir Sharma as well as of theHigh Court in Hema Pathak is distinguishable. The decisionin Juhi Singhal dealt with the abolition of the maximum ageof recruitment and has no application. Similar is the caseEwith the decision in Dr Rajendra Chaudhary[14 ]which cameup for decision before this Court on 28 August 2019.

14. While considering the rival submissions, it is necessary to clearthe ground in regard to Rule 56 of the Fundamental Rules. Rule 56(a)stipulates that (except as otherwise provided in it) every governmentFservant shall retire from service on the afternoon of the last day of themonth in which the age of 60 years is attained. The High Court, whileplacing reliance on Rule 56(a), held that a ‘simple’ GO extending theage of retirement to 65 years would not alter or modify the age ofretirement contained in the Fundamental Rules. Hence, the High Courtheld that the age of retirement of 60 years which was prescribed in RuleG56(a) could not be altered by the notification dated 6 February 2015.The High Court therefore held that:

“Thus, even assuming that the aforesaid government order hadcome during the service of the petitioner it would not have the H14 Civil Appeal Nos. 6667-6668 of 2019

effect of enhancing the age of superannuation prescribed underRule 56(a) of the Rules which stands unamended.”

The above extract indicates that the High Court noticed that:

(i) The order extending the age of retirement had not come duringthe service of the petitioner; and

(ii) Even if it had, it would not have the effect of enhancing theage of superannuation prescribed in Rule 56(a) which standsunamended.

15. Rule 26 of the Rules of 1990 makes applicable the rules,regulations and orders applicable generally to government servants servingin connection with the affairs of the state in regard to matters which arenot specifically provided in those Rules “or in special orders”. Thenotification dated 6 February 2015 enhancing the age of retirement to 65years for serving members of the faculty working in Government MedicalColleges is a special order within the meaning of Rule 26. That being theposition and in terms of the Rules of 1990 which have been framedunder the proviso to Article 309, the increased age of superannuation asprescribed in the notification dated 6 February 2015 cannot be regardedas being ultra vires.

Indeed, as we have noticed, the regulations framed by the MCIcontain an enabling provision in pursuance of which it was open to theState Government to provide for an increase in the age of superannuationfor faculty working in the Government Medical Colleges. The view ofthe High Court that the notification dated 6 February 2015 is ultra viresFundamental Rule 56 is hence erroneous.

16. The issue however is whether the appellant was entitled tothe benefit of the increase in the age of retirement from 60 to 65 yearsas a consequence of the notification dated 6 February 2015. Mr PSPatwalia’s arguments proceed on the basis of two hypotheses:

(i) The GO dated 19 November 2012 by which a facility of anextension of service is granted until the end of the sessionplaces the faculty of medical colleges on the same basis asteachers of the Education department; and

(ii) A member of the faculty who was on an extension of servicetill the end of the academic session as on 6 February 2015

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Awould be entitled to an extension of the age of superannuationbrought about by the notification dated 6 February 2015.

17. In order to appreciate the submission, it is necessary to considerthe terms on which it was decided by the Government on 19 November2012 to grant a session ending benefit to medical teachers. The subjectBof the communication of the Chief Secretary to the Director General,Medical Education & Training is extracted below:

“Regarding grant of session ending benefit to the MedicalTeachers working in the State Allopathic Medical Colleges afterretirement on attaining the age of superannuation.”

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(Emphasis supplied)

The communication then states :

“I am directed to say on the above-mentioned subject that as perEducation Section -1’s Govt. Order No. 7022/15 (1)/83/83-31 (16)/D77 dated 21.03.1984 facility of extension of service upto the endof session (i.e. 30[th] June) has been granted to the Teachers/HeadMasters and Principals working in Govt. Schools and Colleges.Similarly, as per Technical Education Section -2’s Govt. OrderNo 934/TE-2-7 (E) ED-78 dated 27.06.1988, the facility ofextension of service upto the end of academic session (i.e. 30[th]EJune) has been granted to the Instructors, Lectures Head ofDepartments and principals working on teaching posts in the Govt.Technical Education Department, who retire on attaining the ageof superannuation in the middle of session i.e. from 01[st] July to30[th ]June.

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2. Facility of extension of service upto the end of academicsession (i.e. upto 30[th ]June), by approving the benefit ofsession ending, is granted to the Lectures, Assistant Professors,Jr. Professors, Professors and Principals of Govt. AllopathicMedical Colleges like Education Department and TechnicalEducation Department, subject to the following conditions:- G

(1) He is teaching any subject regularly according to therecommendations of Medical Council of India.

(2) He is working on the post continuously for minimum 03years and his work & conduct is satisfactory.

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(3) No departmental proceeding or vigilance enquiry ispending against him.

3. I am also directed to say that such officers, who are not doingteaching work, be not deputed for teaching work in the last yearof their service without any specific reason, which may give themthe benefit of retention in service upto 30[th] June unnecessarily.”

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(Emphasis supplied)

The above communication shows that the grant of a session endingbenefit is for medical teachers working in the State Medical Colleges“after retirement on attaining the age of superannuation”. Theeffect is that a person who has retired on attaining the age ofsuperannuation, may continue until the end of the academic session. Inthe case of the Education department, it was envisaged that a teacherwho retired in the midst of the session (1 July to 30 June of the followingyear) would continue up to the end of the academic session (30 June).While extending this facility to the faculty of Government MedicalColleges, the communication dated 19 November 2012 made it abundantlyclear that the extension of service was not automatic but was subject tothe fulfillment of stipulated conditions. These were that:

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(i) The teacher should be teaching a subject regularly;

(ii) The teacher should have been working on the post continuouslyEfor the period of three years;

(iii) The work and conduct of the teacher should have beensatisfactory; and

(iv) No departmental or vigilance enquiry should be pendingagainst the teacher.

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The end of session benefit would not flow as a matter of right butonly on fulfilling the above conditions.

18. The date on which the employee attains the age ofsuperannuation is prescribed by the Fundamental Rules. The decisionwhich was communicated by the State Government on 19 November2012 does not alter the date of superannuation or retirement. However,what the decision effectuates is to allow the continuance of the employee,after retirement, upon the attainment of the age of superannuation withthe salient purpose of preventing a disruption in education instruction G

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Aprior to the end of the academic session. This view is fortified by thefact that the continuance of the employee until the end of the session issubject to the fulfillment of conditions stipulated, as noticed above.

19. The notification dated 6 February 2015 provided for:

(i) Enhancing the age of superannuation from 60 to 65 years;Band

(ii) Abolition of the maximum age limit for appointment of medicalteachers through the UPPSC. The increase in the age ofsuperannuation from 60 to 65 years was prospective andwould apply to those medical teachers in Government MedicalCColleges who had not attained the age of superannuationunder the prevailing rules. The State Government, in itscounter affidavit, has clarified that it has consistently adoptedthe position that the notification dated 6 February 2015increasing the age of retirement for medical teachers fromD60 to 65 years is prospective and would not apply to teachers,such as the appellant, who had already crossed the age ofsuperannuation as it then stood prior to the notification dated6 February 2015. A person who had crossed the age of 60before the issuance of the notification and attained the ageof superannuation but was on an extension until the end ofEthe session would not be entitlement to benefit from theincrease in the age of retirement. Moreover, the StateGovernment has specifically stated in its counter affidavitthat :

“…there is no medical teacher who had attained the age ofF60 years prior to the issuance of G.O. on 6.2.2015, who hasbeen given the benefit of increase in retirement age of 65years,”

The determination of the age of retirement is a matter of executivepolicy. The appellant attained the age of superannuation prior to theGnotification dated 6 February 2015 and was not entitled to the benefit ofthe enhancement of the age of retirement.

20. The appellant has pleaded a case of discrimination, relyingupon the instances of Dr A K Mehrotra, Dr Mangal Singh and Dr PradeepBharti. However, it is evident from the details disclosed by the appellantHin the Special Leave Petition that each of the three doctors attained the

age of 60 years after the date of the notification dated 6 February 2015.The details which have been disclosed by the appellant in the SLP are asfollows:

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1. Dr A K Mehrotra (Prof in S P M, Medical College, Jhansi)

- DOB 1.4.55 / 60 years completed on 31.3.15

2. Dr Mangal Singh (Prof in ENT, Medical College, Allahabad)

- DOB 5.6.1955/ 60 years completed on 30.6.15

3. Dr Pradeep Bharti (Prof in Surgery, Meerut Medical College)

- DOB 26.3.55 / 60 years completed on 31.3.15.”

21. The appellant has placed reliance on a decision of this Courtdated 4 June 2014 in the case of Ram Vir Sharma v State of UP[15]. Inthat case, the appellant was appointed as an ad-hoc Principal with effectfrom 1 July 2006 on a vacancy created by the retirement of the incumbent.He retired on attaining the age of superannuation on 6 August 2007.While he was permitted to discharge his duties until the end of theacademic session on 30 June 2008, he was not allowed to discharge theduties of a Principal after 6 August 2007 nor was he granted hisemoluments. The issue before this Court was whether upon attainingthe age of superannuation on 6 August 2007, the appellant was disentitledto discharge the duties of the post of Principal or whether he couldcontinue up to the end of the academic session. This Court, in that case,construed the provisions of Regulation 21 contained in Chapter III underthe Intermediate Education Act 1921 which provided as follows:

“21 Principal, Head Master, Teacher shall retire on attaining theage of sixty two years. .... In case date of superannuation of aPrincipal, Head Master, or teacher falls between 2nd July and30th June, then in that case retirement date of Principal, HeadMaster or Teacher falls in the midst of academic year, except insuch cases in which the person concerned do not desires to continueand issues a notice two month prior to date of retirement, shallretire at the end of the academic year and said extension shall bedeemed to have been self-granted. Further extension in serviceshall only be granted in those special circumstances which arerecommended by the State Government…”

15 Civil Appeal No 2606 of 2009

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AThis Court held that in terms of Regulation 21, a person who wasin service at the beginning of the academic session on 2 July was entitledto continue to serve until the end of the academic session (30 June) ofthe following year. In that context, dealing with the case of Ram VirSharma, this Court held:B“Thus, his age of superannuation under Regulation 21, would bedeemed to have been extended till 30.06.2008. It is, therefore,clear that the appellant must not be deemed to have beensuperannuated on 6.8.2007, but he would be deemed to have beensuperannuated only on 30.06.2008, under Regulation 21, (extractedabove). If he was to superannuate on 30.06.2008, naturally, hisCtenure of Principal would be co-terminus with the date of hissuperannuation.”

The above observations of this Court were made specifically inthe context of Regulation 21 which envisaged that where the date ofsuperannuation of a principal or a teacher falls between 2 July and 30DJune of the following year, the incumbent shall retire at the end of theacademic year and the extension shall be deemed to have been granted.The exception, in the nature of an opt-out provision, is where an employeedoes not desire to continue and issues a notice of two months prior to thedate of retirement. The provisions contained in Regulation 21 areEmaterially different from the conditions subject to which the session endingbenefit was granted by the GO dated 19 November 2012 to the medicalteachers in Government Medical Colleges. A comparison between thetwo provisions would indicate that Regulation 21 provided for an opt-outprovision: in the absence of the exercise of the option, the teacher “shallretire at the end of the academic year” and an “extension would beFdeemed to be have been… granted”. In contrast, the notification dated6 February 2015 postulates that the grant of a session ending benefit issubject to the fulfillment of stipulated conditions including of the workand conduct of the employee being satisfactory. There is no deemingprovision extending the age of retirement. The decision in Ram VirGSharma is hence distinguishable.

22. The decision of the Division Bench of the Allahabad HighCourt in Hema Pathak considered whether the teacher was rightlypromoted by the Committee of Management on 18 May 2013. The DIOSheld that the teacher had already attained the age of superannuationHbefore the date on which a resolution for promotion was passed and was continuing till the end of the session and was hence not entitled topromotion. Dealing with the issue the Division Bench of the High Courtheld that the extension of service was for all purposes a part of serviceand the incumbent is treated to have retired at the end of the session.Hence, if before such retirement any benefit including promotion becamedue, it could not be denied in the absence of a provision to the contrary.The decision in the case of Hema Pathak is distinguishable and has nobearing on the construction of the GO dated 19 November 2012. Similarly,the decision of this Court in Dr Rajendra Chaudhary (supra) dealtwith the validity of the deletion of the upper age limit for direct recruitmentunder the notification dated 6 February 2015. Dealing with this aspect,Mr Justice Nageswara Rao, speaking for this Court in the judgmentdated 28 August 2019 observed:

“12…The High Court rejected the challenge to the enhancementof upper age limit for direct recruitment to the post of Professorin Dr. Juhi Singhal (supra) by holding that the Regulations framedby the MCI would prevail over the Service Rules. In the saidjudgment, the High Court was of the view that the GovernmentOrder dated 06.02.2015 only supplements the Rules and does notsupplant them. The High Court further observed that the relaxationwas done in view of the shortage of teachers in Medical Institutionswho are qualified for appointment to the posts of Professors. Therelaxation of the upper age limit was applicable only to thosedepartments where 25 per cent or more posts were vacant and inrespect of other departments, the State Government decided notto fill them up. In Navyug Abhiyan Samiti (supra), the DivisionBench of the High Court followed the same logic and reasoningwhile considering the increase of upper age limit to the post ofPrincipals in Government Medical Colleges. We see no reason todisagree with the said findings recorded by the High court. Therecan be no manner of doubt that the Regulations framed by theMCI relating to the conditions of service of Professors in MedicalColleges shall prevail over the Service Rules framed by the Stateof Uttar Pradesh. The Government Order dated 06.02.2015 hasnot been challenged by the Appellants for which reason they cannotmake any grievance about the same.”

23. The issue in Dr Rajendra Chaudhary’s case was distinctfrom the central point in this case. In the present case the issue is whether A

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Athe appellant who had already attained the age of superannuation underthe prevailing rules and was continuing until the end of the session wouldbe entitled to the benefit of the enhancement of the age of retirementunder the notification dated 6 February 2015. The decision inDr. Rajendra Chaudhary is hence distinguishable.

B24. For the reasons that we have indicated, we hold that theappellant who attained the age of 60 years – the age of retirement whichprevailed at the relevant time – was not entitled to the benefit of thenotification dated 6 February 2015. The appellant was continuing untilthe end of the session (30 June 2015) after retirement, in terms of thedecision dated 19 November 2012. He was not entitled to the enhancedCage of retirement of 65 years. The terminal benefits which are due tothe appellant shall be accordingly computed and released within a periodof two months from the date of receipt of a certified copy of this order.For the reasons which we have indicated, we have come to the conclusionthat there is no merit in the appeals. The appeals shall stand dismissed.DThere shall be no order as to costs.

Pending application(s), if any, stands disposed of.

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Ankit Gyan

Appeals dismissed.

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