Dr. R.S. Sohane vs The State Of Madhya Pradesh

Civil Appeal Nos. 4675-4676 of 2019 (Arising out of SLP (C) Nos. 31968-31969 of 2017)

DR. R.S. SOHANE .... Appellant(s) Versus

THE STATE OF MADHYA PRADESH AND ORS. …. Respondent (s)

WITH Civil Appeal Nos.4687-4688 of 2019 (Arising out of SLP (C) Nos.31973-31974 of 2017)

Civil Appeal Nos. 4685-4686 of 2019 (Arising out of SLP (C) Nos.31996-31997 of 2017)

Civil Appeal No. 4684 of 2019 (Arising out of SLP (C) No.31972 of 2017)

Civil Appeal No. 4683 of 2019 (Arising out of SLP (C) No.31965 of 2017)

Civil Appeal No. 4682 of 2019 (Arising out of SLP (C) No.31980 of 2017)

Civil Appeal No. 4681 of 2019 (Arising out of SLP (C) No.31971 of 2017)

Civil Appeal No. 4680 of 2019 (Arising out of SLP (C) No.31962 of 2017)

Signature Not Verified Civil Appeal No. 4678 of 2019 Digitally signed by VISHAL ANAND (Arising out of SLP (C) No.31999 of 2017) Date: 2019.05.08 10:48:58 IST Reason:

Civil Appeal No. 4679 of 2019 (Arising out of SLP (C) No.32003 of 2017)

1 Civil Appeal Nos.4689-4690 of 2019 (Arising out of SLP (C) Nos.4822-4823 of 2018)

Civil Appeal No. 4677 of 2019 (Arising out of SLP (C) No.32005 of 2017)

Civil Appeal No. 4766 of 2019 (Arising out of SLP (C) No.28545 of 2017)

Civil Appeal No. 4693 of 2019 (Arising out of SLP (C) No.15810 of 2018)

Civil Appeal No. 4691 of 2019 (Arising out of SLP (C) No.18106 of 2018)

Civil Appeal No. 4692 of 2019 (Arising out of SLP (C) No18214 of 2018)

Civil Appeal No.4768 of 2019 (Arising out of SLP (C) No.12068 of 2019) (Arising out of Diary No.41221 of 2018)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The issue that arises in the above Appeals is

regarding the entitlement of Teachers working in private

aided educational institutions in the State of Madhya

Pradesh to the benefit of enhanced age of superannuation

of 65 years. For the sake of convenience, we refer to the

facts in SLP (C) Nos. 31968-31969 of 2017. The Appellant

was appointed as Lecturer in Commerce (later designated

2 as Assistant Professor) on 01.09.1979 pursuant

to the recommendations of the Selection Committee

constituted under the provisions of Statute No.28 (College

Code 28) of the then Indore University (now Devi Ahilya

Vishwavidyalay, Indore) to PMB, Gujarati College, Indore

which is an affiliated College. The said College was

receiving 100% grant-in-aid from the State Government.

2. On 02.09.1998, the Madhya Pradesh Shaskiya Sevak

(Adhivarshiki Ayu) Second Amendment Act, 1998 amended

the provisions of Madhya Pradesh Shaskiya Sevak

(Adhivarshiki Ayu) Adhiniyam, 1967 enhancing the age of

superannuation of the Government Teachers from 60 to 62

years. Teachers working in the private aided Colleges were

also given the benefit of enhancement of the age of

superannuation from 60 to 62 years. On 01.04.2003, the

Standing Committee recommended to the University

Coordination Committee that it would be appropriate to

keep the age of superannuation of Principals, Teachers and

employees of private Colleges at par with their

counterparts in Government Colleges. The said

recommendations of the Standing Committee were

3 approved by the Coordination Committee in its 72 nd

meeting held on 07.01.2004.

3. A scheme for revision of pay of Teachers and

equivalent cadres in Universities and Colleges was

introduced on 31.12.2008 by the Ministry of Human

Resources Development, Department of Higher Education,

Government of India (2008 Scheme) following the revision

of pay scales of the Central Government employees. The

2008 Scheme included enhancement of age of the

superannuation of Teachers engaged in class room

teaching from 62 to 65 years on the recommendations of

the 6th Central Pay Commission. The Government of

Madhya Pradesh accepted the recommendations contained

in the 2008 Scheme on 16.04.2010. It was resolved that

the benefit of the University Grants Commission (‘UGC’)

pay scales including the recommendations for

enhancement of the age of superannuation to 65 years

shall be extended to Principals, Teachers, Librarians and

Sports officers serving in Government Colleges and

Universities.

4. The University Grants Commission Regulations on

Minimum Qualifications for appointment of Teachers and

4 other Academic staff in Universities and Colleges and

measures for the maintenance of Standards in Higher

Education, 2010 (‘Regulations’) were framed by the UGC in

exercise of its powers conferred by Section 26 (1) (d) (e) of

the University Grants Commission Act, 1956 (‘UGC Act’).

The Appendix to the said Regulations contains the

conditions of service of Teachers including the age of

superannuation which was fixed at 65 years. The

Government of Madhya Pradesh amended the provisions of

Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu)

Adhiniyam, 1967 on 02.05.2011 providing the benefit of

enhanced age of superannuation to the Teachers working

in Government Colleges from 62 to 65 years.

5. Withdrawal of the grant-in-aid for the purpose of

payment of salaries to the Teachers working in 100 %

Government aided Private Institutes was the subject

matter of a dispute which was resolved by this Court in

Civil Appeal No.71 of 2004. By an order dated 07.01.2014,

this Court directed that the 6th Pay Commission scales

should be extended to the Teachers, Lecturers and non-

teaching staff working in the private aided educational

institutes. This Court clarified that the provisions of the

5 Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon

Tatha Anya Karamchariyon Ke Vetano ka Sandaya)

Sanshodan Adhiniyam, 2000 by which the grant-in-aid to

the Teachers serving in 100% Government aided private

institutes was sought to be withdrawn, would not be

applicable to those who were appointed prior to the

promulgation of the said amendment. Pursuant to a

direction given by this Court in Contempt Petition (Civil)

No.359 of 2014, the teaching staff in the private institutes

in the State of Madhya Pradesh who were working on aided

posts were given the UGC pay scales as per the

recommendations of the 6th Central Pay Commission at par

with the Government Teachers w.e.f. 01.01.2006.

6. Aggrieved by the order dated 06.07.2016 of the

Management retiring the Appellant w.e.f. 31.08.2016 on

completion of 62 years without being given the benefit of

continuance till 65 years, the Appellant filed a Writ Petition

in the High Court of Madhya Pradesh which was dismissed.

The Petitioner filed a Writ Appeal questioning the judgment

of the learned Single Judge. During the course of hearing,

the Division Bench referred the following two questions for

consideration by a Larger Bench of the High Court:

6

I. Whether in view of the provisions of Statute No.28 of the College Code as amended and brought into force w.e.f. 07.01.2004 and whether in view of the provisions of the UGC Regulations, 2010, the Teachers working in the aided private institutes are also entitled to the benefit of having their age of superannuation fixed at 65 years as is applicable in the case of Government Teachers?

II. Whether the Coordinate Bench of this Court while deciding the Writ Appeal in the case of Dr. Arun Kumar has laid down the principle correctly?

7. A Full Bench of the High Court of Madhya Pradesh

answered the reference as following:

(i) That Statute 28 of the College Code has not been amended with effect from 7.1.2004 as it was a recommendation, which has not been accepted either by the Executive Council of the respective Universities or by the State Government.

(ii) The UGC Regulations, 2010 are not applicable to the State Government per se but could be adopted by the State Government. The State Government has accepted the revised pay scales in respect of members of the teaching faculty in the Government Institutes alone. Therefore, the Teachers working in aided private institutes shall

7 not be entitled to claim that their age of superannuation shall be 65 years.

8. Writ Appeal No.343 of 2016 filed by the Appellant was

disposed of in terms of the judgment of the Full Bench.

The Appellant filed a petition seeking review of the

judgment of the Full Bench in Writ Appeal No. 950 of 2015

and the Division Bench in Writ Appeal No.343 of 2016,

which was dismissed by the High Court. The Appellant has

approached this Court assailing the legality of the said

judgments of the High Court.

9. It is not necessary to refer to the facts of the other

cases as they are similar. Mr. L.C.Patne, learned counsel

appearing for the Appellant in SLP (C) No.31968-31969 of

2017 submitted that the impugned judgments of the High

Court are on the basis of an erroneous interpretation of the

Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973

(hereinafter referred to as the ‘1973 Adhiniyam’). The

powers conferred on the Coordination Committee under

the 1973 Adhiniyam have not been properly appreciated

by the High Court. He relied upon the Resolution dated

07.01.2004 of the Standing Committee to argue that the

Teachers working in the private Colleges in aided posts 8 have to be treated at par with their counterparts in the

Government Colleges. The learned counsel found fault

with the conclusion of the Full Bench of the High Court that

the Resolution dated 07.01.2004 to enhance the age of

superannuation of the Teachers working in the aided

private Colleges was only a recommendation. He took us

through the 1973 Adhiniyam to show that the Coordination

Committee consists of the Chancellor, the Vice-Chancellor

and the Rectors of the Universities and several Senior

Officers of the Government. Referring to Section 34 of the

1973 Adhiniyam, the learned counsel submitted that the

first Statutes and Ordinances were to be drawn up by the

Coordination Committee. We were also shown Section 34

(4) of the 1973 Adhiniyam which deals with the powers

and the functions of the Coordination Committee which

includes the power to approve or reject the Statutes and

Ordinances submitted by the Executive Council of the

University. Apart from the other functions of the

Coordination Committee, he placed reliance on Section 36

of the 1973 Adhiniyam to submit that the Coordination

Committee can pass a Statute not only on the proposal of

the Executive Council of the University but it can do so on

9 its own motion. He further submitted that the

recommendation of the Standing Committee on

01.04.2003 was to keep the age of superannuation of

private Teachers and employees of private Colleges at par

with their counterparts working in the Government

Colleges which was approved by the Coordination

Committee it its 72nd meeting held on 07.01.2004. He

argued that the said decision of the Coordination

Committee is binding on the Government as well in view of

the representation of several Senior Officers of the

Government in the Coordination Committee. In view of the

amendment of the College Code 28, he submitted that

private College Teachers working in aided posts have a

right to continue in service till they attain the age of

superannuation of 65 years, by being treated at par with

the Teachers working in the Government Colleges.

10. Mr.Sunil Fernandes, learned Additional Advocate

General appearing for the State of Madhya Pradesh, stated

that the judgment of the High Court does not deserve to

be disturbed as it is in accordance with law. He argued

that Section 36 of the 1973 Adhiniyam has to be read in

such a manner that advice of the Executive Council has to

10 be taken by the Coordination Committee before passing a

Statute even if it is done on its own motion. The

acceptance of the recommendations made by the UGC is

the prerogative of the State Government and the State

Government accepted the payment of revised pay scales

and enhancement of the age of superannuation to 65

years only in respect of the Teachers working in

Government institutes, according to the learned Additional

Advocate General. He stated that the Teachers working in

private aided institutes are not entitled to claim

continuance in service till the age of superannuation of 65

years.

11. Mr. Gopal Sankarnarayanan, learned Senior Counsel

appearing for the Management of a private institute,

submitted that the salary to be paid to the Teachers for

working beyond 62 years till the age of attaining 65 years

has to be borne by the Government of Madhya Pradesh.

12. Section 36 of the 1973 Adhiniyam empowers the

Coordination Committee to prepare the First Statutes of

the Universities. Power is conferred on the Coordination

Committee to amend or repeal any Statute and to draft a

Statute proposed by the Executive Council of the

11 University. The Coordination Committee is competent to

frame Statutes on its own motion. In case a draft is

proposed by the Executive Council, the Coordination

Committee may approve such a draft and pass the Statute.

If the Coordination Committee is not satisfied with the

draft, it can reject or return the draft to the Executive

Council for reconsideration. The recommendations made

by the Executive Council shall, thereafter, be considered

by the Coordination Committee which has the power to

either approve or reject them. The Statute shall become

effective from the date specified by the Coordination

Committee after its approval.

13. Statute No.28 which is the College Code governs the

service conditions of teaching staff. ‘College’ is defined in

Clause I of the College Code which includes a College

receiving grant from the State Government or Madhya

Pradesh Uchcha Shiksha Anudan Ayog and Non-Grantee

College not receiving any aid. The College Code shall

apply to all Colleges admitted to the privileges of the

University except the Colleges maintained or managed by

the State Government or a Municipal Corporation or the

University. Clause 26 of the College Code provides that a

12 permanent Teacher shall be entitled to be in the service of

the College until he/she completes the age of 60 years.

The decision of the Coordination Committee dated

07.01.2004 was implemented by an amendment of the

Clause 26 of Statute No.28 (College Code) which is as

under:

“It was appropriate to maintain the age of superannuation of Principals, Teachers and employees of private Colleges at par with the age of superannuation of Principals, Teachers and employees of government Colleges.”

14. Section 36 of the 1973 Adhiniyam reads as:

36. Statutes How Made (1) The first Statutes of the University shall be prepared by the Co-ordination committee.

(2) The Co-ordination Committee may, from time to time make amend or repeal any Statutes by passing a Statute in the manner hereinafter appearing. (3) The Co-ordination committee may on receiving a proposal from the Executive Council of a University or on its own motion consider the draft of a Statute that is in the interest of either one or all the Universities; (4) Where a draft is proposed by the Executive Council, the Co-ordination Committee may approve of such draft and pass the Statute or reject it or return it to the Executive Council for reconsideration either in whole or

13 in part together with any amendment, which the Coordination Committee may suggest.

(5) After any draft returned under sub-section (4) has been further considered by the Executive Council together with any amendment suggested by the Co- ordination Committee it shall again be presented to the Co-ordination Committee with a report of the Executive Council thereon and the Co-ordination Committee may approve or reject the Statute.

(6) The Co-ordination Committee shall not take into consideration nor the Executive Council shall propose the draft of any Statutes or of any amendment of a Statute or of the repeal of any Statute:

(a) Affecting the Statutes, power or constitution of any authority of the University until such authority has been given an opportunity of expressing an opinion upon the proposal; or

(b) affecting the conditions of admission of Colleges to privileges of the University, until the Academic Council has been given an opportunity of expressing an opinion upon the proposal and such opinion shall be forwarded by the Executive Council to the Coordination Committee along with any draft it may propose.

(7) Where the Co-ordination Committee approves the Statutes, they shall become effective from such date as the Co-ordination Committee may specify.”

15. There is no manner of doubt that the Coordination

Committee has the power to prepare, amend and repeal

the Statutes. It can do so on its own motion or on

14 receiving a proposal from the Executive Council of a

University. The procedure to be followed in case there is a

proposal from the Executive Council of the University to

frame Statutes is prescribed thereunder. A plain reading of

Section 36 would make it clear that the views of the

Executive Council have to be obtained by the Coordination

Committee only in case the proposal has emanated from

the Executive Council of a University for preparing a

Statute. Such procedure is not applicable when the

Coordination Committee prepares a Statute on its own

motion. The High Court erroneously held that the

amendment made to Statute 28 of the College Code was

only a recommendation which was not accepted either by

the Executive Council of the respective Universities or by

the State Government.

16. Admittedly, the amendment to Statute 28 of the

College Code on 07.01.2004 was not based on any

proposal from the Executive Council of any University. It

was made by the Coordination Committee on its own

motion. The interpretation of Section 34 (4) of the 1973

Adhiniyam by the High Court that the Coordination

15 Committee can only suggest modifications of the said

Statutes in force is not correct.

17. The High Court has gone wrong in observing that any

proposal for amendment to a Statute made by the

Coordination Committee has to be sent to the Executive

Council of the University. The power to amend the Statute

is conferred on the Coordination Committee and not on the

Executive Council as has been understood by the High

Court. A further error committed by the High Court was to

hold that there is no recommendation of the Standing

Committee on the basis of which a Resolution was passed

on 07.01.2004. The High Court lost sight of the minutes of

meeting of the Standing Committee dated 01.04.2003 by

which recommendation was made to maintain the age of

superannuation of Teachers working in aided private

Colleges at par with those working in the Government

Colleges.

18. We are not in agreement with the conclusion of the

Full Bench of the High Court that the language of the

Resolution dated 07.01.2004 is in the nature of a

recommendation. It is clear from the facts narrated above

16 that the matter pertaining to the age of superannuation of

Teachers working in aided private Colleges was referred by

the Coordination Committee to the Standing Committee.

On the basis of the recommendations of the Standing

Committee, the Coordination Committee passed a

Resolution on 07.01.2004 which was given effect to by an

amendment to Clause 26 of the College Code. The second

point answered by the Full Bench is that the UGC

Regulations are not applicable to the State Government

per se but are to be adopted by the State Government.

The High Court was of the opinion that the Government

had accepted the payment of revised pay scales only in

respect of the Teachers working in the Government

Institutes. The Standing Committee and the Coordination

Committee of the University is represented by the Senior

Officers of the State Government and it is not for the State

Government to contend that they will not extend the

benefit of enhancement of the age of superannuation till

65 years to the Teachers working in the private aided

institutes in spite of the provisions in the College Code.

17

19. For the aforementioned reasons, we set aside the

judgment of the Full Bench of the High Court and the

consequential judgments of the Division Bench of the High

Court and direct the Government of Madhya Pradesh to

pay salaries to the Teachers in aided private Colleges who

are working and also those who have worked till they

attained the age of superannuation of 65 years.

20. Accordingly, the Appeals are allowed.

..…................................J. [L. NAGESWARA RAO]

..…................................J. [M.R. SHAH] New Delhi, May 07, 2019.

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