MATHAI M M Vs. ELIZABETH XAVIER AND ORS

JUDGEMENT

(1.) The question raised in the Review Petition and in the connected Writ Petitions is whether the petitioners who are members of the teaching staff namely, Lecturers, Assistant Professors, Professors and Principals of Government Colleges and Aided Colleges in Kerala, are entitled to get a direction from this Court to the Government to extend the retirement age of teaching staff in colleges in Kerala from 55 years to 65 years in terms of UGC Regulations dated 30/06/2010 and Central Government Orders annexed thereto. Issue came up before us in a batch of Writ Appeals filed against judgments of the learned Single Judges and in the batch cases we rejected the claim for the reason that retirement age is a policy decision of the State Government and the Court cannot interfere in it, much less to issue positive direction to the Government to increase the retirement age of teaching staff in colleges affiliated to Universities in Kerala. We have dismissed the Writ Appeals by taking into consideration the earlier Division Bench judgment of this Court in the same subject which was followed by the learned Single Judges while rejecting the claim. The appellants who lost the Writ Appeals before us filed SLPs against our judgment before the Supreme Court and the Honourable Supreme Court dismissed the SLPs vide common order dated 11/08/2010. However, the petitioners before the Supreme Court brought to the notice of the Court UGC Regulations dated 30/06/2010 which was issued subsequent to disposal of the Writ Appeals by this Court and contended that their claim should be considered based on the said Regulations of the UGC. Therefore, while dismissing the SLPs the Honourable Supreme Court observed as follows "dismissal of these SLPs will not come in the way of the petitioners seeking any remedy under the said UGC Regulation dated 30/06/2010, if available as per law". Based on this observation one of the appellants in the disposed of Writ Appeals filed the above Review Petition and in view of the filing of the Review Petition, several others filed fresh writ petitions before the Single Judges seeking same relief. Since Review Petition was pending before us, the connected writ petitions filed before the Single Judges were called by us and are heard along with the R.P. We have accordingly heard Senior counsel Smt. V.P. Seemanthini and the counsel appearing for various petitioners, separate Standing Counsel appearing for UGC and the Universities in the party array and also Special Government Pleader for the State. The issue raised by the petitioners stands squarely covered against them by a relatively new decision of the Supreme Court in a batch of cases in B. Bharat Kumar v. Osmania University, 2007 11 SCC 58. On going through the judgment what we find is that the issue got first decided in T.P. George's case wherein this Court declined to direct the Government to increase retirement age of college teachers based on UGC recommendations. The Honourable Supreme Court confirmed the judgment of this Court in the decision in T.P. George v. State of Kerala, 1992 Supp3 SCC 191. This judgment is followed by the Supreme Court in the abovereferred judgment and they have categorically stated that it is absolutely within the powers of the State Government to accept the UGC Scheme in part and reject the balance and the Government's decision not to increase the retirement age based on UGC recommendation will not go against any provision of the Constitution including Entry 66 of List I of Vllth Schedule or Article 245 of the Constitution of India. In view of these two binding decisions of the Supreme Court, we have to only consider whether the new Regulations issued by the UGC on 30/06/2010 introduces any drastic change in law to bind the State Government, which on their refusal could be enforced through Court orders.

(2.) Before proceeding to consider the case on merits, we have to refer to the submission of the Special Government Pleader on behalf of the State Government that the State Government continues to maintain the stand that retirement age cannot be increased based on UGC recommendation and the matter is still in the realm of policy and as of now, the Government does not want to increase the retirement age of teaching staff of colleges affiliated to Universities in Kerala alone which is presently maintained at par with the retirement age of State Government employees. Counsel appearing for the petitioners relied on unreported Single Bench judgment of the Patna High Court in CWJC No. 11348/2010, a copy of which is produced before us wherein the Single Judge has directed the State Government there to increase the retirement age of teaching staff in colleges from 62 to 65. The learned Single Judge noticed that the State Government while accepting the UGC package did not make any mention as to whether UGC Scheme is accepted in total or not. Taking note of the fact that the benefits under the UGC Scheme is a package of incentives including grant and the same is conditional on the State Government accepting the terms and conditions prescribed by the UGC, the learned Single Judge took the view that if the State decides not to increase the retirement age from 62 to 65, such decision of the State Government will be self-destructive in as much as the Government would not be entitled to other benefits under the UGC package and probably he may be meaning the UGC grant and the financial assistance by Central Government. The learned Single Judge clearly found that the Central Government's direction to the State Government is to accept the UGC package as a whole including the conditions for financial assistance which include increase in age of superannuation of members of the teaching faculty in colleges. The clear finding is that UGC Scheme is one basket of packages and the State Government has no option to reject part of it. However, what we find from the recent judgment of the Supreme Court abovereferred is that it is absolutely within the powers of the State Government to accept UGC package either in part or in full and it is on this basis the State Government Orders declining to follow the recommendation of UGC for increasing retirement age was upheld by the Supreme Court. The Special Government Pleader appearing for the State submitted that the Single Bench judgment is not accepted in Bihar and appeal is pending and besides this, he pointed out that the Bihar context where there may be acute shortage of teaching staff in Higher Education is not applicable in Kerala where large number of qualified young people are waiting for appointment as teaching staff of colleges to fill up vacancies arising on account of retirements. In any case if at all UGC incentives including grants and financial aid to the Universities in Kerala are conditional and increase in retirement age of teaching staff in the colleges affiliated to Universities is a condition for entitlement, we do not think the forfeiture of financial benefits by the State Government or the Universities on account of their refusal to increase the retirement age, should persuade us to direct the Government to increase the retirement age to become eligible for UGC aid and benefits. Here again, we feel it is for the State Government to consider whether they should accept conditional offer of package of incentives by UGC, and if the Government in their wisdom decide to reject such offers, it is not within our powers to interfere with it because it is essentially a policy decision which in our view, we cannot question. This Court would be justified in directing the Government to increase the retirement age only if we are convinced that the UGC Regulations are mandatory and binding on the State Government and the State has no option to reject it. We, therefore, proceed to examine only this aspect of the matter

(3.) In the first place, what we notice is the UGC Regulations dated 30/06/2010 which is the sole basis of petitioners' claim, is issued under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956. The said provisions are extracted hereunder for easy reference: