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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5527-5543 OF 2013

[@ SLP (C) Nos. 18766-18782/2010]

Jagdish Prasad Sharma etc. etc. … Appellants

Vs.

State of Bihar & Ors. … Respondents

WITH

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C.A. NO.5818 OF 2013 @ SLP(C) NO.22628 OF 2013

(8248/2013)

J U D G M E N T

ALTAMAS KABIR, CJI.

1. Leave granted in the Special Leave Petitions,

which were taken up along with the Writ Petitions

and Transferred Cases, as they all involve common

questions of law and fact.

2.The common thread running through all these

various matters is the question as to whether

certain regulations framed by the University Grants

Commission had a binding effect on educational

institutions being run by the different States and

even under State enactments.

3.The University Grants Commission Act was

enacted by Parliament in 1956 inter alia with the

Page 7 7

object of making provision for the coordination and

determination of standards in Universities and for

that purpose, to establish a University Grants

Commission, hereinafter referred to as the

“Commission”. Under the University Grants

Commission Act, 1956, hereinafter referred to as

the “UGC Act”, the Commission is required to take,

in consultation with the Universities or other

concerned bodies, all such steps as it may think

fit for the promotion and coordination of

University education and for the determination and

maintenance of standards of teaching, examination

and research in Universities.

4.Section 12 of the UGC Act inter alia empowers

the Commission to inquire into the financial needs

of the Universities, allocate and disburse grants

to Universities established or incorporated by or

under a Central Act, out of the Funds of the

Page 8 8

Commission for the maintenance and development of

such Universities or for any other general or

specified purpose. The Commission was also

empowered to allocate and disburse, out of such

Funds, such grants to other Universities, as it may

deem necessary or appropriate for the development

of such Universities or for the maintenance or

development or for any other general or specified

purpose. The Commission was further empowered to

allocate and disburse, such grants to institutions

deemed to be Universities, as it deemed necessary,

for similar purposes.

5.Section 25 of the UGC Act empowers the Central

Government to make Rules to carry out the purposes

of the Act by notification in the Official Gazette,

with regard to the formation and the functioning of

the Commission. Section 26 empowers the Commission

to make Regulations consistent with the provisions

Page 9 9

of the Act and the Rules made thereunder, by

notification in the Official Gazette inter alia in

regard to defining the qualifications that should

ordinarily be required of any person to be

appointed to the teaching staff of the University

having regard to the branch of education in which

he or she is required to give instructions and to

define the minimum standards of instructions for

the grant of any degree by any University. In

keeping with their statutory character, the Rules

and Regulations framed by the Central Government

and the Commission are required to be placed before

each House of Parliament, while it is in session,

for a total period of 30 days.

6.Section 20 of the UGC Act, particularly,

provides that in the discharge of its functions

under the said Act, the Commission is to be guided

by such directions on questions of policy relating

Page 10 10

to national purposes, as may be given to it by the

Central Government.

7.On 24

th

December, 1998, the Commission issued a

Notification on revision of pay scales, minimum

qualification for appointment of teachers in

Universities, colleges and other measures for the

maintenance of standards. In Clause 5 of the

Notification, it was specified that the Commission

expected that the entire scheme of revision of pay

scales, together with all conditions attached to

it, would be implemented by the State Governments,

as a composite scheme without any modifications,

except for the date of implementation and the

scales of pay, as indicated in the Government of

India Notifications dated 27.7.1998, 22.9.1998, and

6.11.1998. Clause 16 of the Notification also

indicated that the teachers will retire at the age

of 62 years, but it would be open to a University

Page 11 11

or a college to re-employ a superannuated teacher.

Subsequently, the Commission, in exercise of the

powers conferred upon it under Section 26(1)(e) and

(f) of the UGC Act, framed the University Grants

Commission (Minimum Qualifications required for the

appointment and career advancement of teachers in

Universities and institutions affiliated to it)

Regulation, 2000. The said Regulation does not,

however, provide for the age of superannuation.

8.On 23

rd

March, 2007, the Government, in its

Ministry of Human Resource Development, Department

of Higher Education, wrote to the Secretary of the

Commission on the question of enhancement of the

age of superannuation from 62 years to 65 years for

teaching positions in Centrally funded

institutions, in higher and technical education.

In the said communication, it was mentioned that at

the time of revision of pay scales of teachers in

Page 12 12

Universities and colleges, following the revision

of pay scales of Central Government employees, on

the recommendations of the Fifth Central Pay

Commission, it had been provided inter alia in the

Ministry’s letter dated 27

th

July, 1998 that the age

of superannuation of teachers in University and

schools would be 62 years and, thereafter, no

extension in service should be given. However, the

power to re-employ the superannuated teacher up to

the age of 65 years would remain open to a

University or a college, according to the existing

guidelines, framed by the Commission. In the

letter, it was also indicated that the matter had

been reviewed by the Central Government, in the

light of the existing shortage in teaching

positions in the Centrally-funded institutions in

higher and technical education under the Ministry

and, in that context, it had been decided that the

Page 13 13

age of superannuation of all persons who were

holding posts as on 15.3.2007, in any of the

Centrally funded higher and technical education

under the Ministry, would stand increased from 62

to 65 years. It was also decided that persons

holding such regular teaching positions, but had

superannuated prior to 15.3.2007, on attaining the

age of 62 years, but had not attained the age of 65

years, could be re-employed against vacant

sanctioned teaching positions, till they attained

the age of 65 years, in accordance with the

guidelines framed by the Commission. It was lastly

indicated that the enhancement of retirement age

and the provisions for re-employment would only

apply to persons in teaching positions against

posts sanctioned in Centrally-funded higher and

technical education institutions, in order to

overcome the shortage of teachers.

Page 14 14

9.The most important development, at the relevant

time, however, was the issuance of a letter by the

Central Government in its Ministry of Human

Resource Development, Department of Higher

Education, to the Secretary, University Grants

Commission on 31

st

December, 2008, regarding a

scheme of revision of pay of teachers and other

equivalent cadres in all the Central universities

and colleges and Deemed Universities, following the

revision of pay scales of the Central Government

employees on the recommendation of the Sixth

Central Pay Commission, subject to all the

conditions mentioned in the letter and the

Regulations. The State Governments were given an

option to adopt the scheme in its composite form.

10.While generally dealing with matters relating

to appointment and promotion, it was reiterated

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that in order to meet the situation arising out of

shortage of teachers in Universities and in other

teaching institutions and the consequent vacant

positions, age of superannuation of teachers in

Centrally-funded institutions had already been

enhanced to 65 years. It was mentioned in the said

letter that after taking into consideration the

recommendations made by the Commission based on the

decisions taken at its meeting, held on 7

th

and 8

th

October, 2006, the Government of India had decided

to revise the pay scales of teachers in the Central

Universities. It was further stipulated that the

revision of pay scales of teachers would be subject

to various provisions of the Scheme of revision of

pay scales, as contained in the said letter and

Regulations to be framed by the Commission in this

behalf. Paragraph 8 of the Scheme deals with other

terms and conditions, apart from those already

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mentioned and Clause (p)(i) thereof, which deals

with the applicability of the Scheme and relevant

for our purpose is extracted hereinbelow:

“(p) Applicability of the Scheme:

(i) This Scheme shall be

applicable to teachers and other

equivalent cadres of Library and

Physical Education in all the

Central Universities and Colleges

there-under and the Institutions

Deemed to be Universities whose

maintenance expenditure is met by

the UGC. The implementation of the

revised scales shall be subject to

the acceptance of all the

conditions mentioned in this

letter as well as Regulations to

be framed by the UGC in this

behalf. Universities implementing

this Scheme shall be advised by

the UGC to amend their relevant

statutes and ordinances in line

with the UGC Regulations within

three months from the date of

issue of this letter.”

11. Clause (p)(v) of the said paragraph, which is

equally relevant, is also extracted hereinbelow:

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“(p)(v) This Scheme may be

extended to universities, Colleges

and other higher educational

institutions coming under the

purview of State legislatures,

provided State Governments wish to

adopt and implement the Scheme

subject to the following terms and

conditions:

(a)Financial assistance from the

Central Government to State

Governments opting to revise pay

scales of teachers and other

equivalent cadre covered under the

Scheme shall be limited to the

extent of 80% (eighty percent) of

the additional expenditure

involved in the implementation of

the revision.

(b) The State Government opting

for revision of pay shall meet the

remaining 20% (twenty percent) of

the additional expenditure from

its own sources.

(c) Financial assistance referred

to in sub-clause (a) above shall

be provided for the period from

1.01.2006 to 31.03.2010.

(d)The entire liability on

account of revision of pay scales

etc. of university and college

teachers shall be taken over by

the State Government opting for

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revision of pay scales with effect

from 1.04.2010.

(e) Financial assistance from the

Central Government shall be

restricted to revision of pay

scales in respect of only those

posts which were in existence and

had been filled up as on

1.01.2006.

(f) State Governments, taking into

consideration other local

conditions, may also decide in

their discretion, to introduce

scales of pay higher than those

mentioned in this Scheme, and may

give effect to the revised bands/

scales of pay from a date on or

after 1.01.2006; however, in such

cases, the details of

modifications proposed shall be

furnished to the Central

Government and Central assistance

shall be restricted to the Pay

Bands as approved by the Central

Government and not to any higher

scale of pay fixed by the State

Government(s).

(g) Payment of Central assistance

for implementing this Scheme is

also subject to the condition that

the entire Scheme of revision of

pay scales, together with all the

conditions to be laid down by the

UGC by way of Regulations and

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other guidelines shall be

implemented by State Governments

and Universities and Colleges

coming under their jurisdiction as

a composite scheme without any

modification except in regard to

the date of implementation and

scales of pay mentioned herein

above.”

12. Paragraph 8(f) of the aforesaid Scheme deals

with the age of superannuation, which has already

been dealt with hereinbefore. In substance, it

provides that in order to meet the situation

arising out of shortage of teachers and also to

attract people to the teaching profession, it had

been decided to retain the services of teachers

till the age of 65 years, as already intimated to

all universities and colleges by the letter dated

23.3.2007, issued by the Department of Higher

Education, in the Ministry of Human Resource

Development, Government of India.

Page 20 20

13. Following the recommendations of the Sixth Pay

Commission, the Bihar Legislature passed the Bihar

State Universities (Amendment) Act, substituting

Section 67 of the Bihar State Universities Act,

enhancing the age of superannuation to 62 years.

Since the said Amendment also has a definite

bearing in the appeals filed by Prof. (Dr.) Jagdish

Prasad Sharma, the amended provision, namely,

Section 67(a) is extracted hereinbelow:

“(a)Notwithstanding anything to

the contrary contained in any Act,

Rules, Statutes, Regulation or

Ordinance, the date of retirement

of a teaching employee of the

University or of a college shall

be the date on which he attains

the age of sixty two years. The

date of retirement of a teaching

employee will be the same which

would be decided by the University

grants Commission.

The date of retirement of non-

teaching employee (other than the

inferior servants) shall be the

Page 21 21

date on which he attains the age

of sixty two years:

Provided that the University

shall, in no case, extend the

period of service of any of the

teaching or non-teaching employee

after he attains the age of sixty

two years as the case may be.

Provided further also that re-

appointment of teachers after

retirement may be made in

appropriate cases up to the age of

sixty five years in the manner

laid down in the Statutes made in

this behalf in accordance with the

guidelines of the University

Grants Commission.”

14. Similarly, Section 64(a) of the Patna

University Act was also amended on similar basis.

Since the decision of the Ministry of Human

Resource Development, as conveyed in its letter of

23.3.2007, was not being implemented, Writ

Petitions, being CWJC Nos. 4823 and 5390 of 2008,

were filed by some teachers seeking enhancement of

the age of superannuation from 62 to 65 years,

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based upon the aforesaid decision of the Ministry

of Human Resource Development. Both the Writ

Petitions were dismissed by the High Court on the

ground that there was no conscious decision taken

by UGC with regard to teachers working in State

Universities since the enhancement was confined to

Centrally-funded Universities.

15. On 3.10.2008, the Pay Review Committee set up

by the Commission submitted its Report to the

Commission relating to the revision of pay scales

of teachers, qualification for appointment, service

and working conditions and promotional avenues of

teachers in Universities and colleges, and at

clause 5.4.2, it recommended that the age of

superannuation throughout the country should be 65

years, whether in a State or Central University, as

also in a college or in a University. In its 452

nd

meeting, the Commission took a conscious decision

Page 23 23

and recommended the Report of the Pay Review

Committee for acceptance by the Central Government.

Pursuant to the said decision and recommendation of

the Commission, the Ministry of Human Resource

Development published a Scheme on 31.12.2008, which

has already been referred to hereinbefore.

16. As no action was taken even thereafter, the

Appellants filed Writ Petition, being CWJC No. 2330

of 2009, before the Patna High Court. The said

matter was heard along with several other similar

Writ Petitions, wherein claims were made by the

Petitioners under the amended provisions of the

Patna University Act and Bihar State Universities

Act.

17. On 6.10.2009, the learned Single Judge allowed

the Writ Petitions and held that the State

Government had no discretion as they were

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statutorily bound by the decision of the Commission

to enhance the age of superannuation. Letters

Patent Appeal No. 117 of 2010 and other connected

LPAs were filed by the State of Bihar challenging

the aforesaid judgment of the learned Single Judge.

On 18.5.2010, a Division Bench of the Patna High

Court allowed LPA No. 117 of 2010, filed by the

State of Bihar. It is against the said judgment of

the Division Bench that SLP(C) Nos. 18766-18782

were filed by the Appellants herein in June, 2010.

On 30.6.2010, the Commission framed the Regulations

of 2010.

18. This brings us to the substantial challenge, in

these appeals and connected Writ Petitions and

Transferred Cases, as has been set out in paragraph

2 of the impugned judgment of the Division Bench of

the Patna High Court, which is, whether in view of

the decision contained in the letter dated

Page 25 25

31.12.2008 issued by the Department of Higher

Education, Ministry of Human Resource Development,

Government of India, in the context of Section

64(a) of the Patna University Act, 1976 and Section

67(a) of the Bihar State Universities Act, the age

of superannuation of teachers working in different

Universities and colleges of Bihar would

automatically be enhanced to 65 years. The focus

is, therefore, on whether in view of the Scheme

mentioned in the aforesaid letter of 31.12.2008,

not only the Central Universities and colleges,

which were bound by the UGC Regulations, but the

different States and institutions situated therein

would be bound to accept the Scheme, as set out in

the said letter of 31.12.2008. As has been

mentioned hereinbefore, the Scheme envisaged in

31.12.2008, in no uncertain terms, indicates that

in case the State Governments opted to revise the

Page 26 26

pay scales of teachers and other equivalent cadres

covered under the Scheme, financial assistance from

the Central Government to such State Governments

would be to the extent of 80% of the additional

expenditure involved in the implementation of the

revision. The Scheme also indicates that the State

Government which opted for revision of pay scales

would have to meet the remaining 20% of the

additional expenditure from its own sources. The

third consideration is that such financial

assistance would be provided for the period from

1.1.2006 to 31.3.2010, and that, thereafter, the

entire liability on account of revision of pay

scales of the University and college teachers would

have to be taken over by the State Government with

effect from 1.4.2010. The fourth and the most

important condition stipulated by the Commission

was that payment of Central assistance for

Page 27 27

implementing the Scheme was subject to the

conditions that the entire Scheme of revision of

pay scales, together with all the conditions to be

laid down by the UGC, by way of Regulations and

other guidelines, would have to be implemented by

the State Government and Universities and Colleges

coming under their jurisdiction, as a composite

scheme, emphasis supplied, without any modification

except in regard to the date of implementation and

scales of pay mentioned hereinabove. This entailed

and included the enhancement of age of such

teachers to 65 years. In other words, along with

the enhancement of pay, of which 80% would be borne

by the Commission, the other condition of the

Commission was that the age of the teachers would

be enhanced to 65 years, and that the balance 20%

of the expenditure would have to be borne by the

State from its own resources till 31.3.2010, and,

Page 28 28

thereafter, the entire burden of expenditure would

have to be borne by the State.

19. It appears that the States of West Bengal,

Uttar Pradesh, Haryana, Punjab and Madhya Pradesh

implemented the Scheme without waiting for the UGC

Regulations, which were framed only on 30.6.2010,

whereas the said Scheme was implemented by the

aforesaid States long before the said date. It is

when the reimbursement of 80% of the expenses was

sought for from the Central Government, that the

problems arose, since in keeping with the composite

scheme, the concerned States had not enhanced the

age of superannuation simultaneously. The Central

Government took the stand that since the Scheme in

its composite form had not been given effect to by

the States concerned, the question of reimbursement

of 80% of the expenses did not arise. This is one

Page 29 29

of the core issues, which has arisen in these cases

for decision.

20. The ripple effect of the stand taken by the

Central Government was felt all over the country

and, accordingly, matters were moved before

different High Courts which have ultimately come up

to this Court for hearing on such common issues.

21. The lead case, however, is that of Prof. (Dr.)

Jagdish Prasad Sharma, who has moved against the

judgment of the Division Bench of the Patna High

Court on several grounds, including the grounds

indicated hereinabove. One of the other grounds

taken as far as the Patna cases are concerned, is

in regard to the interpretation of Section 64(a) of

the Patna University Act, 1976, introduced by the

Amendment Act of 2006, and Section 67(a) of the

Bihar State Universities Act, 1976, introduced by

Page 30 30

the Bihar State Universities (Amendment) Act, 2006,

which has been reproduced hereinabove. Learned

counsel for the Appellants has claimed that

although in the first part of the two amended

provisions, it has been indicated that the date of

retirement of a teaching employee of the University

or college would be the date on which he attains

the age of 62 years, the said condition was

purportedly watered down by the addition of the

further condition that the date of retirement of a

teaching employee would be the same, which would be

decided by the University Grants Commission in

future. It has been contended that on a

construction of the aforesaid provision, it is

amply clear that though when the amendment was

effected it was the intention of the Legislature

that the age of superannuation should be 62 years,

no finality was attached to the same, since the

Page 31 31

final decision regarding superannuation lay with

any decision that might be taken by the University

Grants Commission in future. It has been contended

that since a decision had been taken by the

Ministry of Human Resource Development as far back

on 23.3.2007 to enhance the age of superannuation

from 62 to 65 years, which was also subsequently

recommended by the Commission in its 452

nd

meeting,

where a conscious decision was taken to implement

the Report of the Pay Review Committee recommending

the age of superannuation to 65 years throughout

the country whether in a State or central

University or whether in a college or in a

University, it was incumbent on the State

Government to implement the said recommendation of

the University Grants Commission, subsequently

endorsed by the Department of Higher Education,

Page 32 32

Ministry of Human Resource Development, Government

of India.

22.Appearing for the Appellants, Mr. Ajit Kumar

Sinha, learned Senior Advocate, submitted that

Section 11 of the UGC Act provides that all orders

and decisions of the Commission are to be

authenticated by the signature of the Chairman. It

was submitted that Section 12 of the UGC Act made

further provision that it would be the general duty

of the Commission to take, in consultation with the

University or other concerned bodies, all such

steps as it thought necessary for the promotion and

coordination of University education and for the

determination and maintenance of standards of

teaching, examination and research in the

Universities. Mr. Sinha submitted that it would

thus be apparent that the Commission could take

decisions which were independent of its power to

Page 33 33

frame Regulations under Section 26 or to issue

Notifications under Section 3 of the Act. Mr.

Sinha submitted that the State of Bihar was,

therefore, bound to acknowledge the age of

superannuation as 65 years with effect from

31.12.2010 for the Appellants.

23.Mr. Ranjit Kumar, learned Senior Advocate, who

appeared in some of the matters, reiterated the

submissions made by Mr. Sinha and re-emphasized the

fact that on 7.2.2011, the Government of Bihar had

accepted the enhancement of age from 62 to 65 years

for those who were in service on 30.6.2010. Mr.

Ranjit Kumar submitted that the judgment of the

Division Bench impugned in these proceedings does

not suffer from any infirmity and, therefore, did

not warrant any interference.

Page 34 34

24.The next set of cases related to the State of

Kerala with Mr. K.K. Venugopal, learned Senior

Advocate, appearing for the Appellants in Civil

Appeals arising out of SLP(C) Nos. 12990-12992 of

2011. Mr. Venugopal’s stand was different from

those of Mr. Ajit Kumar Sinha and Mr. Ranjit Kumar,

learned Senior Advocates, and supported the action

of the Commission. Mr. Venugopal submitted that

the Kerala University Act, 1974, and the Mahatma

Gandhi University Statutes, 1997, inter alia

provided for the age of superannuation at 60 years.

In the affiliated colleges, the age of

superannuation was fixed at 55 years. Mr.

Venugopal submitted that the stand taken by the

State of Kerala was a little different from the

stand taken by the other States, since there were a

large number of qualified and eligible persons who

were unemployed and were waiting for employment,

Page 35 35

who would ultimately fall prey to frustration if

the services of those who had superannuated at the

age of 62 years were to be continued, thereby

depriving eligible candidates waiting to be

employed. In such circumstances, the State of

Kerala was not interested in increasing the age of

superannuation from 62 years to 65 years.

Referring to the letter of the Ministry of Human

Resource Development, Government of India, dated

31.12.2008, Mr. Venugopal contended that in all

Centrally-funded institutions a general direction

had been given that the age of superannuation would

be 65 years in place of 62 years.

25.Mr. Venugopal further urged that the

Regulations made by the Commission were applicable

to Centrally-funded institutions and also included

by reference the entirety of the Scheme of

31.12.2008, as part of the Regulations and made it

Page 36 36

applicable to State institutions. Mr. Venugopal

urged that the UGC Regulations being Central

legislation under Entry 66 List I of the Seventh

Schedule to the Constitution, they would have

primacy over the executive and State laws and the

Government Order dated 10.12.2010 was liable to be

struck down.

26.While referring to the scope of Entry 66, List

I of the Seventh Schedule to the Constitution, Mr.

Venugopal referred to the decision of this Court in

the University of Delhi Vs. Raj Singh [(1994) Suppl

3 SCC 516], wherein it was held that the

Regulations of the Commission in the said case

would not be binding on the University of Delhi

being recommendatory and did not impinge upon the

University’s power to select its teachers.

However, if the University chose not to accept the

Page 37 37

UGC Regulations, it would lose its grant from the

UGC.

27.During the course of his submissions, Mr.

Venugopal referred to the order issued by the

Government of Kerala in the Higher Education (C)

Department on 10.12.2010 for implementation of the

UGC Regulations 2010 on minimum qualifications for

appointment of teachers, other academic staff in

Universities and colleges and measures for the

maintenance of standards in higher education. The

Government Order further provided that the matter

had been examined in detail and the Government was,

therefore, pleased to approve and to implement the

Regulations as such. The Regulations, therefore,

were to come into force from 18.9.2010 on the date

of their publication in the Government of India

Gazette. All the Universities were directed to

incorporate the UGC Regulations in their Statutes

Page 38 38

and Regulations, within one month from the date of

the Order. Mr. Venugopal joined issue with the

contents of paragraph 6 of the said Order, which

provides that where there were any provisions in

the Regulations inconsistent with the provisions in

the Government Order, read as the first paper, the

said Government Order would override the provisions

in the Regulations to the extent of such

inconsistency. Mr. Venugopal submitted that

executive directions cannot override the statutory

provisions and it was the statutory provisions

which would prevail over such executive directions.

Consequently, the UGC Regulations would, in these

cases, prevail over the Orders of the Executive

government. In this connection, Mr. Venugopal

referred to the decision of this Court in Paluru

Ramkrishnaiah Vs. Union of India [(1989) 2 SCC

541], wherein relying on two earlier decisions of

Page 39 39

this Court in B.N. Nagarajan Vs. State of Mysore

[(1966) 3 SCR 682] and Sant Ram Sharma Vs. State of

Rajasthan [(1968) 1 SCR 111], a Constitution Bench

of this Court in Ramachandra Shankar Deodhar Vs.

State of Maharashtra [(1974) 1 SCC 317], held that

in the absence of legislative Rules it was

competent for the State Government to take a

decision in the exercise of its executive power

under Article 162 of the Constitution. Therefore,

an executive instruction could make provision only

for a matter which was not covered by the Rules and

such executive instructions could not override any

of the provisions of the Rules. Accordingly, the

learned counsel submitted that the Government Order

dated 10.12.2010 was liable to be struck down.

28.Mr. Venugopal also referred to the decision of

this Court in the case of the Gujarat University,

Ahmedabad Vs. Krishna Ranganath Mudholkar [1963

Page 40 40

Suppl 1 SCR 112], wherein it was inter alia

observed as follows:

“The State has the power to

prescribe the syllabi and courses

of study in the institutions named

in Entry 66 (but not falling

within entries 63 to 65) and as an

incident thereof it has the power

to indicate the medium in which

instruction should be imparted.

But the Union Parliament has an

overriding legislative power to

ensure that the syllabi and

courses of study prescribed and

the medium selected do not impair

standards of education or render

the co-ordination of such

standards either on an All India

or other basis impossible or even

difficult. Thus, though the powers

of the Union and of the State are

in the Exclusive Lists, a degree

of overlapping is inevitable. It

is not possible to lay down any

general test which would afford a

solution for every question which

might arise on this head. On the'

one hand, it is certainly within

the province of the State

Legislature to prescribe syllabi

and courses of study and, of

course, to indicate the medium or

media of instruction. On the other

hand, it is also within the power

Page 41 41

of the Union to legislate in

respect of media of instruction so

as to ensure co-ordination and

determination of standards, that

is to ensure maintenance or

improvement of standards. The fact

that the Union has not legislated,

or refrained from legislating to

the full extent of its powers does

not invest the State with the

power to legislate in respect of a

matter assigned by the

Constitution to the Union. It does

not, however, follow that even

within the permitted relative

fields there might not be

legislative provisions in

enactments made each in pursuance

of separate exclusive and distinct

powers which may conflict. Then

would arise the question of

repugnancy and paramountcy which

may have to be resolved on the

application of the "doctrine of

pith and substance" of the

impugned enactment. The validity

of the State legislation on

University education and as

regards the education in technical

and scientific institutions not

falling within Entry 64 of List I

would have to be judged having

regard to whether it impinges on

the field reserved for the Union

under Entry 66. In other words,

the validity of State legislation

Page 42 42

would depend upon whether it

prejudicially affects co-

ordination and determination of

standards, but not upon the

existence of some definite Union

legislation directed to achieve

that purpose. If there be Union

legislation in respect of co-

ordination and determination of

standards, that would have

paramountcy over the State law by

virtue of the first part of Art.

254(1); even if that power be not

exercised by the Union Parliament

the relevant legislative entries

being in the exclusive lists, a

State law trenching upon the Union

field would still be invalid.”

Mr. Venugopal, therefore, contended that the

UGC Regulations would have an overriding effect

over the Government Order dated 10.12.2010 and, in

any event, the U.G.C. could not abdicate its

authority regarding higher education to the States.

29.Learned counsel appearing for the Appellants in

Civil Appeals arising out of SLP (C) Nos. 10765-69

of 2011 and learned counsel appearing on behalf of

Page 43 43

other Appellants, in relation to the matters

relating to the State of Kerala, adopted Mr.

Venugopal’s submissions and it was pointed out by

Mrs. V.P. Seemanthini that there was a marked

difference between the 2000 Regulations framed by

the Commission and the subsequent Regulations of

2010. It was submitted by her that while the 2000

Regulations did not provide for any age of

superannuation, in the 2010 Regulations, there is a

mandate to the State Government to follow the same.

30.However, appearing for the Appellants in Civil

Appeal arising out of SLP(C) No. 23275 of 2010, Dr.

K.P. Kylasanatha Pillay, learned Senior Advocate,

took a different stand from that of Mr. Venugopal.

He pointed out that the Appellants were all

Selection Grade Lecturers and Readers of Sree

Narayana College, Kollam, an aided institution

situated in the State of Kerala. Referring to the

Page 44 44

Scheme formulated by the Central Government, which

also included the question relating to age of

superannuation, Dr. Pillay reiterated that in order

to meet a situation arising out of shortage of

teachers in Universities and other teaching

institutions, the age of superannuation for

teachers in Central educational institutions had

already been enhanced to 65 years. Dr. Pillay

urged that the benefits of the package scheme which

was implemented with effect from 1.1.2006, relating

to enhancement of age of superannuation to 65

years, should also be made available to the

Appellants. Dr. Pillay submitted that so long as

the Appellants had been excluded from the Pay

Revision of the State Government, as governed by

the UGC Scheme, they had been placed in a

disadvantageous position.

Page 45 45

31.Appearing for the State of Kerala, Ms. Bina

Madhavan, learned Advocate, contended that under

Article 309 of the Constitution, the State

Government is empowered to frame its own Rules and

Regulations in regard to service conditions of its

employees. Furthermore, Section 2 of the Kerala

Public Service Commission Act, 1968, empowers the

State Government to make Rules either prospectively

or retrospectively to regulate the recruitment and

conditions of service for persons appointed to the

Public Services and posts in connection with the

affairs of the State of Kerala. Ms. Madhavan

submitted that under the Kerala Service Rules,

1958, enacted by the State Government under the

proviso to Article 309 of the Constitution, the age

of retirement of teachers in colleges has been

fixed to be 55 years. Subsequently, however, by

G.O.P. No.170/12/Fin. dated 22.3.2012, the age of

Page 46 46

compulsory retirement was enhanced to 56 years and

the age of superannuation has been enhanced to 60

years. Ms. Madhavan urged that having regard to

the UGC Regulations dated 30.6.2010, a decision was

taken to revise the scales of pay and other service

conditions, including the age of superannuation in

Central Universities and other institutions

maintained and funded by the University Grants

Commission, strictly in accordance with the

decision of the Central Government. However, the

revised scales of pay and age of superannuation, as

provided under paragraph 2.1.10 and under paragraph

2.3.1, will also be extended to Universities,

colleges and other higher educational institutions

coming under the purview of the State legislature

and maintained by the State Governments, subject to

the implementation of the Scheme as a composite one

as contemplated in the Regulations.

Page 47 47

32.Ms. Madhavan contended that the State

Governments were not under any compulsion to adopt

the UGC Scheme, but could do so if they wanted to.

Ms. Madhavan emphasized that neither the pay scales

nor the age of superannuation stood revived

automatically, without the Scheme being accepted by

the State Government. Ms. Madhavan also urged that

Section 26 of the University Grants Commission Act,

1956, which empowers the Commission to make

Regulations, does not authorize the Commission to

make Regulations in regard to service conditions of

teaching staff in the Universities, including the

age of retirement. According to learned counsel,

the role of the UGC is only to prescribe academic

standards, qualifications required for the teaching

staff, facilities required in a higher education

institutions, etc. Hence, it can in no

circumstances be contended that the rule making

Page 48 48

power of the Commission empowered it to prescribe

conditions of service in relation to State

Government employees, which is the prerogative of

the State Government.

33. Ms. Madhavan also urged that in its affidavit

filed in SLP (C) No.10783 of 2011, the Commission

had clearly stated that it would be open to the

State Government or other competent authority to

adopt the decision or to take any decision as it

considered appropriate in respect of the

superannuation of the teachers in higher and

technical education institutions under their

purview, with the approval of the appropriate

competent authority. As a result, there was no

repugnancy between the Regulations framed by the

Commission and the Rules framed by the State

Government. Referring to Section 20 of the UGC

Act, Ms. Madhavan contended that the same provided

Page 49 49

that the Commission, in discharge of its functions

under the Act, shall be guided by such directions

on questions of policy relating to national

services, as may be given to it by the Central

Government and if any dispute arose between the

Central Government and the Commission as to whether

a question is or not a question of policy relating

to national policy, the decision of the Central

Government shall be final. Ms. Madhavan also urged

that the Central Government had by its letter dated

14

th

August, 2012, clarified the position and had

made it clear that the question of enhancement of

the age of retirement is exclusively within the

domain of the policy-making powers of the State

Governments and that the condition of enhancement

of the age of superannuation to 65 years, as

mentioned in the Ministry’s letter dated

31.12.2008, may be treated as withdrawn for the

Page 50 50

purpose of seeking reimbursement of the Central

share of arrears to be paid to the State University

and College teachers. According to Ms. Madhavan,

the Central Government had itself clarified that

the Scheme is not a composite one and the word

‘composite’ is with regard to financial assistance

provided by the Central Government and was not

connected with the age of superannuation which was

incidental to the Scheme.

34.The other learned counsel appearing for the

different Universities and educational institutions

generally adopted Mr. Venugopal’s submissions, but

while doing so, added one or two points of their

own.

35.Mr. S.R. Singh, learned Senior Advocate, who

appeared for the Appellants in Civil Appeal arising

out of SLP (C) No.16523 of 2011, reiterated Mr.

Page 51 51

Venugopal’s submissions relating to Entry 66 List I

and Entry 25 in List III and urged that the powers

under Entry 66 List I were vested in the Central

Government and could not be sub-delegated to the

States under Entry 25 in List III, which, in any

event, was not permissible in law. Mr. Singh

contended that the same would be evident on a

reading of Section 12(j) and Section 27 of the UGC

Act, 1956, which made the Commission the repository

of powers for advancing the cause of higher

education in India.

36. Mr. S. Chandra Shekhar, learned Advocate, who

appeared for the University in Civil Appeal arising

out of SLP(C) No.16523 of 2011 and other batch

matters, urged that the University Statutes

provided 62 years as the age of superannuation and

there was no right available to the Appellants

which could be enforced by a writ of mandamus. Mr.

Page 52 52

Chandra Shekhar also submitted that the Commission

had no power to enhance the age of superannuation

as a condition of service.

37. Mr. P.S. Patwalia, learned Senior Advocate,

who appeared in SLP(C)Nos.9198-9221/2011 and other

matters relating to the State of Punjab and the

Union Territory of Chandigarh, while adopting Mr.

Venugopal’s submissions regarding the binding

nature of the UGC Regulations, relied upon the

Constitution Bench decision of this Court in the

case of Dr. Preeti Srivastava Vs. State of M.P.

[(1999) 7 SCC 120], wherein it was observed that

when there was an existing Central legislation, the

same would be binding in the absence of any other

legislation by the States. Mr. Patwalia also urged

that the Scheme was a composite scheme and ought to

have been accepted in its totality and despite the

fact that the State Government had accepted the

Page 53 53

grant of 80% of the expenses, which was part of the

composite scheme, it ought to have also accepted

the other part of the Scheme relating to

enhancement of the age of teachers in the different

Universities in Punjab, from 62 to 65 years. By

not doing so, the State had caused severe prejudice

to the teachers who would have otherwise been

entitled to retire at the age of 65 years and not

62 years. Mr. Patwalia submitted a copy of the

Report of the Task Force on Faculty Shortage and

Design of Performance Appraisal System published by

the Ministry of Human Resource Development,

Government of India, in July, 2011, and pointed out

that generally across the country on an average

about 35% of the posts of teachers in the different

Universities and Colleges were lying vacant, which

was one of the reasons for the deterioration of

standards of education across the board. Mr.

Page 54 54

Patwalia urged that the aforesaid vacancies would

indicate that there was an urgent need for

appointment of teachers in the different schools

and colleges across the country, including the

State of Punjab.

38. The same sentiments were expressed by Dr. Aman

Hingorani, learned Advocate appearing in Civil

Appeal arising out of SLP(C) No.7392 of 2011. Dr.

Hingorani reiterated Mr. Patwalia’s submissions

that the composite scheme as offered by the

University Grants Commission could not be split in

two by the States, and independent of the control

of the Central Government, the College in question

has to abide by the UGC Regulations as the same was

funded by the Commission. Dr. Hingorani also urged

that the Appellant, Susan Anand, was made to retire

at the age of 60 while the UGC Notification

provided that the age of superannuation would be 62

Page 55 55

years. Dr. Hingorani urged that as was held by

this Court in Pavai Ammal Vaiyapuri Education Trust

Vs. Government of Tamil Nadu [(1994) 6 SCC 259],

since the institution accepted the UGC Regulations,

it came under its discipline, which fact had not

been taken into consideration in B. Bharat Kumar &

Ors. Vs Osmania University & Ors. [(2007) 11 SCC

58]. Dr. Hingorani also urged that though the

Appellant’s SLP was dismissed and the Appellant had

attained the age of superannuation, under the

orders of the High Court, she was allowed to rejoin

her duties in the college. It was submitted that

her case was required to be treated separately from

the others on account of the special facts involved

and that having continued in service by virtue of

the Court’s orders, she was entitled to the

benefits of any order that may be passed in favour

Page 56 56

of enhancement of the age of superannuation from 62

to 65 years.

39.Appearing for the State of Haryana, Dr. Monika

Gosain, learned Advocate, restated what had been

stated by the other learned counsel that the State

of Haryana was not bound by the UGC scheme as it

had not accepted the “composite scheme” of the

Commission. Supplementing Dr. Gosain’s submissions,

Mr. P.S. Patwalia, learned Senior Advocate,

appearing for the State of Punjab, submitted that

the letter from the Government of India to all the

States made it clear that unless the composite

scheme as offered by the UGC was accepted, the

payment of money under the Scheme would not be

forthcoming. It was, however, submitted that in

some cases, the Government of Haryana had

voluntarily enhanced the age of superannuation to

Page 57 57

65 years and notified to the colleges recognized

under Section 2(f).

40.As far as the Civil Appeal arising out of

SLP(C)No.1631 of 2012 and four connected matters

are concerned, Mr. C.S.N. Mohan Rao, learned

Advocate, appearing for the Appellants, adopted the

submissions made by Mr. K.K. Venugopal and

reiterated the position that despite having

accepted the composite package, the State had not

accepted the enhancement of age from 62 to 65

years, causing severe prejudice to the Appellants

and others similarly situated.

41.Similarly, Ms. Aishwarya Bhati, learned

Advocate, appearing for the Appellants in Civil

Appeals arising out of SLP(C) Nos.6915-6923 of

2012, adopted Mr. Venugopal’s submissions and also

relied on the decision in the case of B. Bharat

Page 58 58

Kumar (supra). Ms. Bhati submitted that on behalf

of the State of Rajasthan a letter had been written

to the Registrar of all the Universities in the

State of Rajasthan, indicating that considering the

huge problem of unemployment of youth in the State,

the State had decided not to increase the age of

superannuation of teachers beyond 60 years. Ms.

Bhati referred to the Report of the Chaddha

Committee, wherein the aforesaid stand had been

refuted and the said Committee recommended that the

age of superannuation of teachers should be 65

years on a uniform basis throughout the country,

whether working in a State or Central University or

College. Learned counsel urged that the benefits

which had been conferred by the UGC Regulations,

could not be taken away by a subsequent

legislation. In the other cases relating to the

State of Rajasthan, the Petitioner adopted not only

Page 59 59

Mr. Venugopal’s submissions, but also those made by

Ms. Bhati.

42.Learned counsel appearing in Civil Appeals

arising out of SLP(C) Nos.18218-18226 of 2012 and

21396 of 2012 from Odisha, also adopted the

submissions made by Mr. K.K. Venugopal and

submitted that the UGC scheme having been conceived

under Entry 66, List I of the Seventh Schedule to

the Constitution, would have an overriding effect

over the State legislation.

43.Mr. Dinesh Dwivedi, learned Senior Advocate,

who appeared for the State of Uttrakhand, submitted

that the conditions of service in State

universities could not be controlled by the

University Grants Commission and even on receipt of

80% of the expenses to be incurred by the Colleges

the State’s powers under the statutes were not

Page 60 60

taken away. Mr. Dinesh Dwivedi submitted in detail

with regard to the ramifications of Entry 66 List I

as also Entry 11 of List II prior to the 42nd

Amendment and its substitution by way of Entry 25

in List III. The ultimate result of Mr. Dwivedi's

submission is that the statute does not use two

different words to denote the same thing. Besides

the language in the Constitution has to be

understood in a common sense way and in common

parlance, as was observed in the case of Synthetic

and Chemicals Ltd. & Ors. Vs. State of U.P. & Ors.

[(1990) 1 SCC 109]. Learned counsel also submitted

that in the present case, when the dominant

Legislature has legislated, any incidental

encroachment has to give way. Moreover, no

incidental or ancillary powers could be read into

Entry 66 as Entry 32 was already occupying the

filed. Mr. Dwivedi submitted that the 2000

Page 61 61

Regulations framed by the UGC were not applicable

to the Pant Nagar University, since being an

agricultural institution, the standards and norms

of the Indian Council of Agricultural Research

would apply. Mr. Dwivedi lastly contended that in

regard to the provisions of Secions 12, 14, 25 and

26 of the UGC Act, the said provisions could not be

read so widely as to enable the Commission to ride

rough shod over the State laws. Mr. Dwivedi

submitted that the regulations, in so far as they

seek to prescribe conditions of service, including

age of retirement, are illegal and beyond the

legislative powers of the Union or the Commission,

in the event they relate to the teachers and staff

of the State university and institutions. The 2010

Regulations as framed by the UGC could not,

therefore, be enforced on unwilling States in view

of the federal structure of our Constitution.

Page 62 62

44.Mr. R. Venkataramani, learned Senior Counselm

who appeared for the Babajan Badesab Nandyal and

others, the Appellants in Civil Appeals arising out

of SLP(C) Nos.32748-762 of 2011, submitted that the

impugned order was contrary to the law as laid down

by this Court in the case of Annamalai University

Vs. Secretary to Govt. Information and Tourism

Department & Ors. [(2009) 4 SCC 590] and the

University of Delhi Vs. Raj Singh [1994 Supp. 3 SCC

516], in which this Court had held that the

provisions of the UGC Act were binding on all the

Universities and the Regulations framed by the UGC

in terms of clauses (e), (f), (g) and (h) of sub-

section (1) of Section 26 which were of wide

amplitude and were mandatory in nature. He also

urged that the Division Bench of the High Court had

failed to notice that the Government of India

letter dated 31.12.2008 had been included as

Page 63 63

'Appendix-I' to the UGC Regulations, 2010, which

made the Scheme provided therein as statutory and

binding. It was also urged that the High Court had

not really considered the provisions of Section

26(g) of the above Act which empowered the

Commission to regulate the maintenance of standards

and the coordination of work or facilities in

Universities. Learned counsel submitted that all

factors relevant for the purpose of nourishing,

sustaining and enhancing the quality of human

resource have been duly taken note of by the

Commission. Mr. Venkataramani submitted that the

question of fixing the date of retirement of a

teacher were restricted within the framework of

University legislation, since the age of retirement

was intrinsically related to establishment and

realization of higher standard and quality of

imparting eduction and could not be confined to

Page 64 64

parochial aspirations. Mr. Venkataramani submitted

that the UGC Regulations, 2010, are binding on the

State Governments and the Universities to enhance

the age of superannuation of teachers to 65 years.

Relying on the decision of this Court in the

Annamalai University case (supra), Mr.

Venkataramani urged that the provisions of the UGC

Act were binding on all Universities, whether

conventional or open. It's powers are very broad

and the Regulations framed by it under Section 26

were of wide amplitude and even as subordinate

legislation they became part of the UGC Act having

been validly made. Learned counsel also referred

to the decision of this Court in Prem Chand Jain

Vs. R.K. Chhabra [(1984) 2 SCC 302], wherein this

Court held that it was well settled that entries

incorporated in the Lists covered by Schedule Seven

Page 65 65

are not powers of legislation, but “field” of

legislation.

45.In Civil Appeal arising out of SLP(C) No.36126

of 2011, Mr. Jagjit Singh Chhabra, learned Advocate

appearing for the State of Punjab, referred to the

letter dated 23.3.2007 written on behalf of the

Government of India to the Commission regarding

enhancement of the age of the teachers from 62 to

65 years and urged that the said Scheme was

voluntary and not binding on the State and that

when a sufficient number of teachers were

available, it would be counterproductive to insist

that the State should be compelled to accept the

UGC’s option in its totality when the same has been

left to the discretion of the State by the

Regulations themselves. Mr. Chhabra urged that the

conditions of service of teachers in a State were

completely within the jurisdiction of the State and

Page 66 66

such jurisdiction could not be overridden by the

UGC Regulations, without the consent of the State.

46.In reply to the submissions made on behalf of

the Petitioners and the Appellants in these cases,

Mr. Rakesh Dwivedi, learned Senior Advocate,

appearing for the UGC, submitted that after the

letter written by the Central Government on

27.7.1998, informing the States regarding the

revision of pay scales and the provision of

financial assistance to the extent of 80% of the

additional expenditure for the period 1.1.1996 to

31.3.2000, whereafter the entire liability would

have to be taken over by the State Governments, it

was upto the State Governments to take recourse to

the scheme as framed. By another letter dated

27.7.1998, the UGC was informed that the Central

Government had revised the pay scales of teachers

in the Central Universities on the recommendations

Page 67 67

of UGC that the scheme was of a composite nature

and all the conditions of the scheme would have to

be fulfilled if the States were to avail of the

offer of financial assistance to the extent of 80%

of the additional expenditure for the period

indicated hereinabove. However, although, the

State of Kerala had issued an order dated

21.12.1999, accepting the revised pay scales, it

continued to adopt the existing Rules of the State

Government, wherein the age of retirement remained

55 years. Mr. Dwivedi reiterated that following the

recommendations of the 5

th

Central Pay Commission,

the Central Government had, by its order dated

23.3.2007, revised the age of superannuation of

teachers to 65 years and even reemployment was

permitted upto the age of 70 years. The only catch

was that such change would apply to centrally-

funded higher and technical educational

Page 68 68

institutions coming under the purview of the

Ministry of Human Resource Development and the

Notification would be issued by the Commission.

47.While reiterating the submissions made on

behalf of the Petitioners relating to the UGC

Regulations, 2010 and Clause 2.1 of the Annexures

thereto, Mr. Dwivedi urged that the provisions of

the UGC Act, particularly Section 12 thereof, are

not confined to coordination and determination of

standards in institutions for higher education and

research but that the powers vested in the

Commission contemplated a larger role in regard to

the promotion of university education. It was

further urged that the Commission was empowered to

give grants, as it might deem necessary or

appropriate, for the development of Universities

and could also recommend measures necessary for

their improvement. Mr. Dwivedi contended that the

Page 69 69

UGC Act is not entirely confined to Entry 66, List

I, but it was also entitled to act under Entry 25

of the Concurrent List of the Seventh Schedule to

the Constitution. Mr. Dwivedi urged that since

Parliament was competent to legislate both in terms

of Entry 66, List I and Entry 25, List III, it

could invoke both the fields of legislation. Mr.

Dwivedi submitted that a competent legislature

could draw sustenance from more than one entry

while legislating. However, the aforesaid question

was not required to be gone into since the

Commission had made an offer in the Scheme, which

was left to the State to adopt or not to adopt.

Mr. Dwivedi further submitted that with regard to

the Concurrent field, there was no compulsion

either on the Parliament or the authority created

under Central Statutes to exhaustively legislate or

to exercise the enabling power with regard to the

Page 70 70

Concurrent field. It would be open to the

Parliament or the Commission either to enforce a

particular scheme in the State or leave it open for

them to adopt the scheme through their laws and

executive orders. In such cases, the State

Governments and State Legislatures exercise plenary

powers to decide whether the Scheme was to be

adopted or not. Mr. Dwivedi submitted that it is

also settled law that unless the enabling power is

completely expanded, the legislative field in the

Concurrent List remains available to the States.

48.Mr. Dwivedi further urged that different

legislations by different States are inherent in a

federal exercise of power. The differences arising

as a result of federal distribution of power by the

Constitution and exercise of such power by States,

cannot be a ground to allege discrimination. As

was held in S.R. Bommai Vs. Union of India [(1994)

Page 71 71

3 SCC 1], federalism is a basic feature of the

Constitution. In the present case, the UGC Act and

the Regulations of 2010 and the Scheme of the

Central Government have been made applicable to all

the States uniformly. In fact, no age of retirement

has also been fixed by the Commission. Even for

Central Universities, the pay scales have been

revised by the Central Government and the age of

superannuation has been revised to 65 years by the

said Government. The Scheme was also finalized by

the Central Government and it was also the decision

of the Central Government that the State should

take their own decisions as to whether the Scheme

prepared by it should be adopted. Mr. Dwivedi

reiterated that the UGC Regulations of 2010 have

notified the Scheme of the Central Government and

it has been left to the discretion of the State

Governments to adopt or not to adopt the same for

Page 72 72

its Universities, colleges and other institutions.

The only challenge which had occurred is the order

of the Central Government, vide its letter dated

14.8.2012, in its Ministry of Human Resource

Development, which delinked the financial

assistance from the requirement to adopt the

Central Scheme. The Central Government took a

decision that the discretion of the State

Government should not be fettered by the extension

of the financial incentive. Accordingly, any

difference which might arise on account of any

decision of the State Government would be on

account of the federal scheme of the Constitution

and not on account of any decision either of the

Central Government or the Commission.

49.Mr. Dwivedi submitted that the cases relied

upon by the Petitioners and Appellants were all

based on geographical discrimination, which had no

Page 73 73

bearing with the facts of these cases and neither

the UGC Act nor the Regulations of 2010, nor the

Scheme of the Central Government, suffers from any

such infirmity. In this regard, Mr. Dwivedi also

placed reliance on the decision of this Court in

T.P. George Vs State of Kerala [1992 Supp (3) SCC

191] and in the All India Sainik Schools Employees’

Association Vs. Defence Minister-cum-Chairman Board

of Governors, Sainik Schools Society, New Delhi

[1989 Supp 1 SCC 205]. Learned counsel submitted

that each State has its own sovereign plenary power

with respect to its territory and the laws of one

State could not be held to be discriminatory with

reference to laws of another State. In this

regard, Mr. Dwivedi referred to and relied upon the

decision of this Court in Javed Vs. State of

Haryana [(2003) 8 SCC 369], where the said

Page 74 74

principle was considered and the application of

Article 14 of the Constitution was negated.

50.Mr. Dwivedi concluded on the note that the age

of retirement has varied from State to State in

respect of public employment in State services and

this Court has always upheld the power of the State

to fix the age of superannuation in the light of

conditions prevalent in the States and the

provision of jobs to youth has been upheld to be a

valid consideration, as in the State of Kerala.

51.On behalf of Govind Ballabh Pant University in

SLP(C) No.8153 of 2012, Mr. Vijay Hansaria, learned

Senior Advocate, submitted that Section 28(r) of

the UGC Act permits the University to frame Rules

with regard to service conditions of its staff,

including the Rules for retirement. Apart from the

above, it was also pointed out that the grants

Page 75 75

which are received by the University are not from

the UGC, but from the Indian Council of

Agricultural Research (ICAR).

52. Lastly, coming to the submissions made on

behalf of the State of Rajasthan and the State of

U.P., on behalf of both the States it was sought to

be urged that the UGC Regulations could not control

the power of the State Governments and/or the

service conditions of its employees as the same are

to be exclusively decided by the Union or the

State, as provided in Article 309 of the

Constitution. It was submitted that it had also

been held in the Osmania University case (supra)

that the fixation of the age of superannuation by

the State Government is well within its

jurisdiction and neither the Scheme of the Central

Government nor the UGC Regulations have any binding

effect.

Page 76 76

53.Though, at first blush, the scope of the

appeals seemed to be limited and confined to the

question as to whether the Regulations framed by

the University Grants Commission under Section 26

of the University Grants Commission Act, 1956, were

binding on the States and State-funded and other

Universities and colleges being run therein, as the

hearing progressed, several other ancillary issues

also came to be raised.

54.As has been indicated hereinbefore, the Central

Government enacted the UGC Act in 1956 to

coordinate and determine standards in universities

and towards that end, to establish a University

Grants Commission for taking all steps, as it

thought fit, for the promotion of university

education and for determination and maintenance of

standards of teaching and research in universities.

Page 77 77

On 24th December, 1998, the Commission issued a

Notification relating to revision of pay scales and

other service conditions. Thereafter, after the

expressions of a series of views regarding the

enhancement of the age of superannuation from 60 to

62 and from 62 to 65 years, the Central Government

in its Department of Higher Education, wrote to the

Secretary, UGC, on 31st December, 2008, with regard

to a scheme for revision of pay-scales of teachers

and other equivalent cadres in all the Central

universities and Colleges and Deemed Universities,

following the revision of pay scales of the Central

Government employees on the recommendation of the

Sixth Central Pay Commission.

55.One of the common submissions made on behalf of

the Respondents was whether the aforesaid scheme

would automatically apply to centrally-funded

institutions, to State universities and educational

Page 78 78

institutions and also private institutions at the

State level, on account of the stipulation that the

scheme would have to be accepted in its totality.

As indicated hereinbefore in this judgment, the

purport of the scheme was to enhance the pay of the

teachers and other connected staff in the State

universities and educational institutions and also

to increase their age of superannuation from 62 to

65 years. The scheme provides that if it was

accepted by the concerned State, the UGC would bear

80% of the expenses on account of such enhancement

in the pay structure and the remaining 20% would

have to be borne by the State. This would be for

the period commencing from 1st January, 2006, till

31st March, 2010, after which the entire liability

on account of revision of pay-scales would have to

be taken over by the State Government.

Furthermore, financial assistance from the Central

Page 79 79

Government would be restricted to revision of pay-

scales in respect of only those posts which were in

existence and had been filled up as on 1st January,

2006. While most of the States were willing to

adopt the scheme, for the purpose of receiving 80%

of the salary of the teachers and other staff from

the UGC which would reduce their liability to 20%

only, they were unwilling to accept the scheme in

its composite form which not only entailed

acceptance of the increase in the retirement age

from 62 to 65 years, but also shifted the total

liability in regard to the increase in the pay-

scales to the States, after 1st April, 2010.

56.Another anxiety which is special to certain

States, such as the State of Uttar Pradesh and

Kerala, has also come to light during the hearing.

In both the States, the problem is one of surplus-

age and providing an opportunity for others to

Page 80 80

enter into service. On behalf of the State of

Kerala, it had been urged that there was a large

number of educated unemployed youth, who are

waiting to be appointed, but by retaining teachers

beyond the age of 62 years, they were being denied

such opportunity. As far as the State of U.P. is

concerned, it is one of job expectancy, similar to

that prevailing in Kerala. The State Governments

of the said two States were, therefore, opposed to

the adoption of the UGC scheme, although, the same

has not been made compulsorily applicable to the

universities, colleges and other institutions under

the control of the State authorities.

57.To some extent there is an air of redundancy in

the prayers made on behalf of the Respondents in

the submissions made regarding the applicability of

the scheme to the State and its universities,

colleges and other educational institutions. The

Page 81 81

elaborate arguments advanced in regard to the

powers of the UGC to frame such Regulations and/or

to direct the increase in the age of teachers from

62 to 65 years as a condition precedent for

receiving aid from the UGC, appears to have little

relevance to the actual issue involved in these

cases. That the Commission is empowered to frame

Regulations under Section 26 of the UGC Act, 1956,

for the promotion and coordination of university

education and for the determination and maintenance

of standards of teaching, examination and research,

cannot be denied. The question that assumes

importance is whether in the process of framing

such Regulations, the Commission could alter the

service conditions of the employees which were

entirely under the control of the States in regard

to State institutions. The authority of the

Commission to frame Regulations with regard to the

Page 82 82

service conditions of teachers in the centrally-

funded educational institutions is equally well

established. As has been very rightly done in the

instant case, the acceptance of the scheme in its

composite form has been left to the discretion of

the State Governments. The concern of the State

Governments and their authorities that the UGC has

no authority to impose any conditions with regard

to its educational institutions is clearly

unfounded. There is no doubt that the Regulations

framed by the UGC relate to Entry 66 List I of the

Constitution in the Seventh Schedule to the

Constitution, but it does not empower the

Commission to alter any of the terms and conditions

of the enactments by the States under Article 309

of the Constitution. Under Entry 25 of List III,

the State is entitled to enact its own laws with

regard to the service conditions of the teachers

Page 83 83

and other staff of the universities and colleges

within the State and the same will have effect

unless they are repugnant to any central

legislation.

58.However, in the instant case, the said

questions do not arise, inasmuch as, as mentioned

hereinabove, the acceptance of the scheme in its

composite form was made discretionary and,

therefore, there was no compulsion on the State and

its authorities to adopt the scheme. The problem

lies in the desire of the State and its Authorities

to obtain the benefit of 80% of the salaries of the

teachers and other staff under the scheme, without

increasing the age of retirement from 62 to 65

years, or the subsequent condition regarding the

taking over of the scheme with its financial

implications from 1st April, 2010.

Page 84 84

59.As far as the States of Kerala and U.P. are

concerned, they have their own problems which are

localised and stand on a different footing from the

other States, none of whom who appear to have the

same problem. Education now being a List III

subject, the State Government is at liberty to

frame its own laws relating to education in the

State and is not, therefore, bound to accept or

follow the Regulations framed by the UGC. It is

only natural that if they wish to adopt the

Regulations framed by the Commission under Section

26 of the UGC Act, 1956, the States will have to

abide by the conditions as laid down by the

Commission.

60.That leaves us with the question which is

special to the State of Bihar, i.e., the effect of

Section 67(a) introduced into the Bihar State

Page 85 85

Universities Act, 1976, by the Bihar State

Universities (Amendment) Act, 2006, and the

corresponding amendments made in the Patna

University Act, 1976. Section 67(a) has been

extracted hereinbefore in Paragraph 13. While, on

the one hand, it has been mentioned that

notwithstanding anything to the contrary contained

in any Act, Rules, Statutes, Regulation or

Ordinance, the date of retirement of a teaching

employee of the university or of a college shall be

the date on which he attains the age of 62 years,

the confusion is created by the next sentence which

further provides that the date of retirement of a

teaching employee would be the same which would be

decided by the UGC. It has been urged that the

said provision clearly contemplates that in the

event of an alteration resulting in an upward

revision of the age of superannuation, the same

Page 86 86

would automatically apply to all such teachers and

staff, without any further decision of the State

and its authorities in that regard. In other

words, what has been sought to be urged is that

when in regard to Centrally-funded universities,

colleges and educational institutions, the age of

superannuation has been increased to 65 years by

the University Grants Commission, the same has to

uniformly apply to all universities and colleges

throughout the country, without any discrimination.

The same did not necessitate any separate decision

to be taken by the State and its authorities

regarding the applicability of the decision taken

by the University Grants Commission.

61.The said submission, in our view, is not

acceptable on account of the fact that in the first

paragraph of the said Section it has been

categorically stated that the age of superannuation

Page 87 87

would be 62 years. The second paragraph of the

said section makes it even more clearer, since it

reiterates that the date of retirement of non-

teaching employees, other than the inferior

servants, shall be the date on which he attains the

age of 62 years. The first proviso also indicates

that the university shall, in no case, extend the

period of service of any of the teaching or non-

teaching employee after he attains the age of 62

years. The second proviso, however, states that

even after retirement, teachers may be reappointed

in appropriate cases up to the age of 65 years in

the manner laid down in the Statutes made in this

behalf in accordance with the guidelines of the

Commission.

62.As against the above, certain writ petitions

have been filed in the Patna High Court which

rejected the contention of the Petitioners and

Page 88 88

dismissed the writ petitions on the ground that the

Commission had not taken any conscious decision

with regard to teachers and staff, except for those

which were Centrally-funded. Subsequently, however,

since in its 452

nd

meeting the Commission took a

conscious decision and recommended that the Report

of the Pay Review Committee recommending the

enhancement of age of superannuation from 62 to 65

years be made applicable throughout the country,

fresh writ petitions were filed in the Patna High

Court, including CWJC No.2330 of 2009, filed by the

Appellants herein. The learned Single Judge

allowed the writ petitions upon holding that once

the Commission had recommended that the age of

superannuation be accepted as 65 years, the State

Governments had no discretion but to enhance the

age of superannuation in line with the

recommendations made by the Commission. The

Page 89 89

Division Bench subsequently reversed the finding of

the learned Single Judge, resulting in these

Special Leave Petitions (now Appeals).

63.Learned Standing Counsel for the State of

Bihar, Mr. Gopal Singh, had in his submissions

reiterated the views of the High Court, i.e., that

on mere communication, the revision of the pay of

teachers and increase in the age of superannuation

would not automatically become effective and that,

in any event, the right to alter the terms and

conditions of service of the State universities and

colleges were within the domain of the State

Government and till such time as it decided to

adopt the same, the same would have no application

to the teachers and staff of the different

educational institutions in the State.

Page 90 90

64.We are inclined to agree with such submission

mainly because of the fact that in the amended

provisions of Section 67(a) it has been

categorically stated that the age of superannuation

of non-teaching employees would be 62 years and, in

no case, should the period of service of such non-

teaching employees be extended beyond 62 years. A

difference had been made in regard to the teaching

faculty whose services could be extended up to 65

years in the manner laid down in the University

Statutes. There is no ambiguity that the final

decision to enhance the age of superannuation of

teachers within a particular State would be that of

the State itself. The right of the Commission to

frame Regulations having the force of law is

admitted. However, the State Governments are also

entitled to legislate with matters relating to

education under Entry 25 of List III. So long as

Page 91 91

the State legislation did not encroach upon the

jurisdiction of Parliament, the State legislation

would obviously have primacy over any other law.

If there was any legislation enacted by the Central

Government under Entry 25 List III, both would have

to be treated on a par with each other. In the

absence of any such legislation by the Central

Government under Entry 25 List III, the Regulation

framed by way of delegated legislation has to yield

to the plenary jurisdiction of the State Government

under Entry 25 of List III.

65.We are then faced with the situation where a

composite scheme has been framed by the UGC,

whereby the Commission agreed to bear 80% of the

expenses incurred by the State if such scheme was

to be accepted, subject to the condition that the

remaining 20% of the expense would be met by the

State and that on and from 1st April, 2010, the

Page 92 92

State Government would take over the entire burden

and would also have enhanced the age of

superannuation of teachers and other staff from 62

to 65 years. There being no compulsion to accept

and/or adopt the said scheme, the States are free

to decide as to whether the scheme would be adopted

by them or not. In our view, there can be no

automatic application of the recommendations made

by the Commission, without any conscious decision

being taken by the State in this regard, on account

of the financial implications and other

consequences attached to such a decision. The case

of those Petitioners who have claimed that they

should be given the benefit of the scheme dehors

the responsibility attached thereto, must,

therefore, fail.

66.However, within this class of institutions

there is a separate group where the State

Page 93 93

Governments themselves have taken a decision to

adopt the scheme. In such cases, the consequences

envisaged in the scheme itself would automatically

follow.

67.We, therefore, see no reason to interfere with

the impugned judgment and order of the Division

Bench of the High Court in all these matters in the

light of the various submissions made on behalf of

the respective parties. The several Appeals, Writ

Petitions and the Transferred Case, which involve

the same questions as considered in this batch of

cases, are all dismissed. However, the Appeals

filed by the State of Uttarakhand and Civil Appeals

arising out of SLP(C) Nos. 6724, 13747 and 14676 of

2012 are allowed. As far as the Transfer Petition

Nos. 1062-1068 OF 2012 are concerned, the same are

allowed and the Transferred Cases are dismissed.

The Contempt Petitions are disposed of by virtue of

Page 94 94

this judgment. However, persons who have continued

to work on the basis of the interim orders passed

by this Court or any other Court, shall not be

denied the benefit of service during the said

period. The Appeals and Petitions having been

dismissed, both the State Authorities and the

Central Authorities will be at liberty to work out

their remedies in accordance with law.

68.Having regard to the nature of the facts

involved in these case, parties shall bear their

own costs.

...................CJI.

(ALTAMAS KABIR)

..................... J.

(SURINDER SINGH NIJJAR)

..................... J.

(J. CHELAMESWAR)

New Delhi

Dated: July 17, 2013.