Sri V. Lakshminarayana, for Petitioner/s in W.P Nos. 13449–453/2011 and W.P No. 13454/2011, W.P 17726/2011, W.P 17862–863/2011,

W.P 17874–876/2011, W.P 15005–15/2011, W.P 15777–785/2011, W.P 16004–009/2011, W.P 19074/2011, W.P 19072–073/2011, W.P 17605/2011, W.P 17604/2011, W.P 16690–91/2011, W.P 17458–17463/2011, W.P 17593/2011, W.P 20021/2011, W.P 21110/2011.

Shri K.M Nataraj, Additional Advocate General for Respondents 1 to 3, Shri K. Hiriyanna, Advocate for Respondent 9, Respondents 5 & 8 are served in W.P 13449–453/2011 and W.P 13454/2011

Shri K.R Bhavani Shankar, Advocate for Petitioner/s in W.P 19712–718/2011, W.P 8850/2011, W.P 11910–911/2011, W.P 15422–423/2011

Government Advocate served in W.P 19712–718/2011, W.P 8850/2011, W.P 11910–911 of 2011, W.P 15531–538/2011, W.P 19072–073/2011, W.P 17604/2011, W.P 17605/2011,

Shri S.M Chandra Shekar, Advocate for Petitioner in W.P 20777/2011 Shri Raghavendra G Gayatri, High Court Government pleader for Respondents 1 & 2 in W.P 20777/2011, W.P 16467/2011

Shri S.B Hebballi and Shri V. Muniraj, Advocates for Petitioner/s in W.P 17650–652/2011., Respondents 3, 4, 5 and 6 are served, Respondents 1, 2 and 7 service awaited in W.P 17650–652/2011.

Shri K.R Bhavani Shankar and Co., Advocates for Petitioner/s in W.P 17661 -665/2011, W.P 17667/2011.

Notice issued to Respondents 1 to 4 - Service awaited in W.P 17661–665/2011, W.P 18003–004/2011, W.P 18364–366/2011, W.P 18834/2011, W.P 17918–920/2011

Shri C.R Gopalaswamy, Advocate for Petitioner/s in W.P 14269–270/2011, W.P 12299–300/2011, W.P 15052/2011, W.P 15530/2011, W.P 15531–538/2011

Notice issued to Respondents 1 & 2 on 26-04-2011, Service awaited Respondent No. 3 served in W.P 14269–270/2011.

Notice issued to Respondents 1 & 2, Service awaited in W.P 17667/2011,

Notice issued to Respondents 1 to 3 and 5, Service awaited Respondent 4 served in W.P 17726/2011, W.P 17862–863/2011

Notice issued to Respondents 1 to 3 & 5 to 9 Service awaited, Respondent 4 served in W.P 17874–876/2011

Shri K.M Nataraj, Additional Advocate General for Respondents 1 & 2, Shri Srinivas and Badri Associates, for Respondent 4, Respondent 3

Acknowledgement not yet received in W.P 12299–300/2011 Respondent 1 served in W.P 11910–911/2011

Shri K. Hiriyanna, Advocate for Respondents 8 & 13, Respondents 4, 6, 9, 11 & 14 are served in 15005–15/2011 Respondent 1 served, Notice issued to Respondent 2 service awaited in W.P 15052/2011, W.P 15530/2011

Respondents 1 & 2 service awaited, Notice issued to Respondents 3, 4, 5 & 6 are served in W.P 15777–785/2011

Shri Dayananda S. Patil, Advocate for Petitioner/s in W.P 15906/2011, W.P 17302/2011 Respondent 1 served, Respondents 2 to 4 service awaited in W.P 15906/2011

Respondents 2, 3 & 4 - served, Respondents 1 & 5 service awaited in W.P 16004–009/2011

Shri K.M Somashekara, Advocate for Petitioner/s in W.P 18003–004/2011, W.P 18364–366/2011, W.P 16467/2011

Shri M.H Sawakar and Smt. Thejaswini Sawkar, Advocates for Petitioner in W.P 18834/2011

Notice issued to Respondents 1 to 6 service awaited in W.P 19074/2011

Shri K.B Muralidhar, Advocate for Petitioner/s in W.P 16312–316/2011, W.P 17918–920/2011 Respondents 2 & 3 served, Respondent 1 - Service awaited in W.P 16312–316/2011

Shri Sanath Kumar Shetty, Advocate for Respondent 2, Respondent 1 service awaited in W.P 15422–423/2011

Shri Subramanya R., Advocate for Petitioner/s in W.P 16326–332/2011, W.P 16464/2011

Shri Sunil S. Desai, Advocate for Respondent 8, Respondents 2, 3, 6, 9 & 10 served, Respondent 1 Acknowledgement not yet received,

Shri N.P Singri, Advocate for Respondent 7 in W.P 16326–332/2011 Respondents 2, 3 and 5 are served, Respondents 1 and 4 service awaited in W.P 16464/2011, W.P 16626/2011

A.H Law Firm and Shri S.C Bellakki, Advocate for Petitioner in W.P 16626/2011

Shri Rajashekar Seeri, Advocate for Petitioners in W.P 16683 & 16685/2011, W.P 16684/2011

Notice issued to Respondents 1 to 3 service awaited in W.P 16683 & 16685/2011 W.P 16684/2011, W.P 16705/2011,

Notice issued to Respondents 1 to 7 service awaited in W.P 16690–91/2011

Shri Asamad Khan and Shri. Naraeed Ahmed, Advocates for Petitioner in W.P 16705/2011

Notice issued to Respondents 1 to 4 in W.P 17302/2011 Respondents 2, 3, 4, 5, 7, are served, Respondents 1 & 6 service awaited in W.P 17458–17463/2011

Notice issued to Respondents 1 to 5 - Service awaited, Respondent 6 served in W.P 17593/2011

Shri S.G Pandit, Advocate for Petitioner in W.P 19211/2011

Notice issued to Respondents 1 to 5 - Service awaited in W.P 19211/2011

A.C Balaraj, Advocate for Petitioner in W.P 18302/2009

Shri C. Shashikantha, Advocate for Respondent 3, Shri Raghavendra G. Gayatri, Advocate for Respondent 1, Shri P.S Dinesh Kumar, Advocate for Respondent 2 in WP 18302/2009

Shri Raghavendra G. Gayatri, High Court Government pleader for Respondents in WP 20021/2011, W.P 21110/2011

Smt. Revathy Adinath Narde, High Court Government pleader directed to take notice to Respondent in W.P 21548–21549/2011

Anand Byrareddy, J.:—

These petitions are heard together and are disposed of by this common order as the petitioners are all seeking identical reliefs, in the same set of circumstances.

2. The circumstances leading up to the presentation of these petitions are as follows:

It is highlighted by the petitioners that in order to provide for co-ordination and determination of standards in Universities, the Union Parliament had, in the year 1956, enacted the University Grants Commission Act, 1956 and established the University Grants Commission (hereinafter referred to as ‘the UGC’ for brevity) with the object of promotion and co-ordination of University Education and for the determination and maintenance of standards of teaching, examination and research in Universities and in order to achieve the said objects, to disburse grants through the Commission.

2.1 It is submitted that prior to 1966, the teaching staff in the State were governed by the pay scales fixed by the State Government. Whereas, the UGC pay scales were applied from 01.04.1966 The said UGC pay scales were also made applicable to the Department of Collegiate Education and Aided Colleges, but the option was given to the concerned State Government in the adoption of the UGC Pay scales. The anomaly was created on account of a higher pay scale recommended by the Tukol Pay Commission and the State Pay Scales being revised. In view of higher pay scales fixed by the UGC in the year 1986, on the recommendation made by the M.C Mehrothra Commission, the said benefit was extended to the teachers working in Universities with effect from 01.01.1986

2.2 It is stated that certain incentives were given by the UGC in the event of adopting the UGC Scheme, such as contributing 80% of the additional expenditure in giving effect to the revision of pay scales and the balance 20% of the expenditure was to be borne by the State Governments. Being influenced by the said incentive, the Department of Collegiate Education had adopted the revision of pay scales as per the UGC guidelines with effect from 01.01.1986 On acceptance of the UGC pay scales, the designation of the teaching staff namely, Lecturers, Readers and Professors were re-designated as Lecturers, Lecturers (Senior Scale) and Lecturers (Selection Grade) in the pay scale of Rs. 2200-75-2800-100-4000, Rs. 3000-100-3500-125-5000 and Rs. 3700-125-4950-150-5700, respectively. Insofar as it relates to the decision with regard to the fixation of the age of superannuation is concerned, various State Governments had prescribed varying age of superannuation.

2.3 Based on the recommendations and Financial Assistance of the UGC, in order to maintain uniform pay scales for all the teaching staff, the State Government of Karnataka had, during the year 1999, extended the UGC pay scales to Teachers, Librarians and Physical Education Directors of Universities, Government and Aided Colleges, with effect from 1.1.1996, in consultation with the Government of India.

2.4 More recently, in his foreword to the XI Five-Year Plan of India (2007-2012) document, the Prime Minister of India indicated that the Plan envisages a massive thrust on access to education and hence the Plan will spend more than double of what was spent in the Tenth Plan, on education. That in higher education the Plan will work towards increasing enrolment rates from 11 to 21 percent over a ten year period and that this will require a massive expansion in our University system. The Prime Minister added that given the special focus on education in the Plan-it could rightly be called a “National Education Plan”.

2.5 In September 2007, the UGC, keeping in view the above objective under the XI Five-Year Plan, appointed and constituted a eight member Committee of experts headed by Prof. GK. Chadda, Member, Economic Advisory Council to the Prime Minister of India, inter alia, to review the implementation of previous revision of pay scales, to examine the structure of emoluments and conditions of service of University and College Teachers and other academic staff in Universities and Colleges and to make its recommendations. The Committee submitted its report in the year 2008. With particular reference to the age of superannuation of teachers, the recommendation read as follows:

“5.4.2 The age of superannuation

Keeping in mind the fact that the field of higher education is currently facing an acute shortage of teachers at all levels and also being aware of the decision of the Central Government to expand the base of College and University Education significantly throughout the country during the XI Five Year Plan which has been declared as the Plan of Education, The Pay Review Committee recommends that the age of superannuation of teachers should be 65 years throughout the Country whether working in a State or Central University as also whether in a College or in a University.

The Pay Review Committee also believes that the fears expressed by certain quarters that raising the age of superannuation to sixty five years would have an adverse impact on the recruitment of young teachers at the entry level is both misconstrued and misplaced. According to the understanding of the Pay Review Committee, the demand and supply situation of teachers for higher education is such that even after this provision of sixty five years as the age of superannuation of teachers is put in place, there would still be a significant shortfall in the availability of qualified teachers. Moreover the Academic Institutions will continue to derive the benefits of availability of Senior Academics both in teaching and research. This would indeed be a big factor towards the improvement in quality of teaching and research.

The Pay Review Committee is of the considered opinion that while allowing the institutions to continue to derive the benefits of participation by Senior Academics in both teaching and research; it will also attract talented young academics to the profession.

The committee also recommends that to safeguard the interests of the students, a teacher should however be engaged on contract basis on terms as discussed elsewhere in this report for a period upto the completion of the academic session.

5.4.3 Pension.

As stated above, the shortage of teachers is likely to continue even after the age of superannuation is raised to 65 years and mass drives of recruitment are undertaken.

The Pay Review Committee, therefore recommends that teachers may be re-employed selectively after superannuation on contract basis, up to the age of 70, in two slots of 3 years in the first instance and then further for 2 years on the basis of their merit, experience, area of specialization and peer group review.

2.6 It is pursuant to the said recommendation by the UGC that the Government of India by a letter dated 31.12.2008 accorded sanction for revision of pay scales of Universities and Colleges in the country and communicated this to all the State Governments - proposing a new Scheme stipulating a revised pay structure, service conditions and educational qualifications in respect of all teachers and other academic staff of all Universities, Government and Aided Colleges. In the said letter, it is categorically stated, at paragraph 8(f) thereof, that the age of superannuation of teachers has been extended to 65 years. It is also emphasized in more than one place, that the implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in the letter. It is also specified that the payment of central assistance for implementing the above 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 other guidelines shall be implemented by the State Governments, Universities and Colleges, as a composite Scheme without modification, except with regard to date of implementation and scales of pay.

The State Government of Karnataka while citing the above letter of the Government of India and seeking to implement the same, by its order dated 15.10.2009 sought to enhance the age of superannuation of the teaching community of Universities alone.

2.7 The petitioners are Professors, Associate Professors, and others working in different Private Institutions Aided by the Government and Government Degree Colleges. The petitioners are aggrieved by the denial by the State Government to extend the benefit of enhancement of age of superannuation, from 60 to 62, which has been extended to teachers of University Colleges. It is contended that the same is opposed to the direction of the Government of India, apart from being discriminatory vis-a-vis the petitioners.

2.8 It is not in dispute that based on the recommendations of the UGC, the Government of India in its letter dated 31.12.2008 accorded sanction for revision of Pay Scales of Universities and Colleges in the Country and communicated to all the State Governments the Scheme stipulating a revised pay structure, service conditions and educational qualifications in respect of Teachers, Librarians and Physical Education Directors of Universities, Government and Aided Colleges. This was subject to the provisions of the Scheme detailed in the above letter and Regulations required to be framed by the UGC.

2.9 The State Government of Karnataka, in order to implement the above said Scheme, passed an order dated 15.10.2009, the very Order clarified that it would not be applicable to other members of the teaching community.

Incidentally, the State Government had issued a Corrigendum dated 21.12.2009 modifying its earlier Order dated 15.10.2009, giving effect to the same, retrospectively, from 25.9.2009

2.10 In so far as the revision of pay scales sanctioned under the above Scheme, the State Government passed an Order dated 24.12.2009 revising the UGC pay scales of Teachers, Librarians and Physical Education Personnel of Universities, Government and Aided Degree Colleges in the State of Karnataka. This included all teachers of both Universities and Colleges - they were commonly categorized as Assistant Professors, Associate Professors and Professors. The revision of pay was uniform, there was no difference between the “teaching community of the Universities” and other “teaching community”.

2.11 The Government of India, Ministry of Human Resource Development, Department of Higher Education, New Delhi issued another letter dated 11.5.2010 to all the State Governments, emphasizing that the State Governments were required to implement the Scheme in entirety, adhering to all the provisions and terms enumerated in its earlier letter dated 31.12.2008

2.12 The UGC then framed the “UGC Regulations On Minimum Qualifications For Appointment Of Teachers And Other Academic Staff in Universities And Colleges And Measures for the Maintenance Of Standards In Higher Education 2010” (hereinafter referred to as ‘the 2010 UGC Regulations’ for brevity), which laid down that the Minimum Qualifications for appointment and other service conditions of University and College Teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education shall be as provided in the Annexures to the Regulations. The letter of the Government of India dated 31.12.2008 was annexed to the Regulations and was thus made a part of the Regulations.

2.13 It is stated that the Federation of University and College Teachers Association in Karnataka had made a representation to the State Government, dated 23.7.2010, pointing out that there were similar pay scales, service conditions, promotional avenues etc., among all the teachers of Universities and Colleges in the State of Karnataka, except the enhanced age of superannuation conferred on the teaching community of the Universities, which was inexplicably denied to other teachers. As the State Government did not respond, several teachers had petitioned this Court seeking relief. The said petitions were all disposed of with directions to the State Government to consider the grievance of each of the petitioners therein, in the light of the letters of the Government of India dated 31.12.2008 and 11.5.2010, respectively, referred to hereinabove.

The State Government having refused to extend the benefit of such enhancement of the age of superannuation the petitioners are before this Court.

3. It is contended that by a communication dated 14.12.2009 the State Government has extended the benefit of enhancement of age of superannuation from 60 to 62 to teachers of “Constituent Colleges” of Universities. These are said to be Colleges which are either Aided Institutions or Government Institutions, taken over by Universities. But they are also Degree Colleges such as that of the Petitioners. It is pointed out that there is no difference between the teachers in such Institutions and the petitioners. Further, that the Universities would prepare common gradation list of teachers of Constituent Colleges, Private Aided Colleges and Government Colleges for the purpose of framing Board of Examination and Board of Studies. It is contended that the pay scales, promotional avenue and other service conditions being similar to all the teaching community, there is no rationale behind the discrimination in so far as the age of superannuation is concerned.

It is contended that the endorsements issued by the State Government rejecting the claim of many of the petitioners, are on the basis of an incorrect understanding of the legal position, with reference to authorities which would not be applicable in the present circumstances.

3.1 It is submitted that Entry 66 of List-I of VTI Schedule of the Constitution of India empowers the Union of India to make any enactment pertaining to co-ordination and determination of standards in Institutions for higher education or Research and Scientific and Technical Institutions in the Country. Accordingly, the Indian Parliament has enacted the University Grants Commission Act, 1956. Exercising the powers conferred under Clause (e) and (g) of sub-section (1) of Section 26 of the said UGC Act, 1956, the University Grants Commission has framed the UGC Regulations, 2010, by Notification dated 30.6.2010, published in the Gazette of India dated 18.9.2010 Regulation 1.2 stipulates as under:—

“1.2 They shall apply to every University established or incorporated by or under a Central Act, Provincial Act or a State Act, every Institution including a constituent or an affiliated College recognized by the Commission, in consultation with the University concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every Institution deemed to be a University under Section 3 of the said Act.”

Further, Regulation 2 stipulates as under:—

“2. The Minimum Qualifications for appointment and other service conditions of University and College Teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education, shall be as provided in the Annexure to these Regulations.”

Paras 2.1.0 and 2.3.1 stipulates as under:—

“2.1.0 The revised scales of pay and other service conditions including age of superannuation in Central Universities and other Institutions maintained and/or funded by the University Grants Commission (UGC), shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Development of Education) as contained in Appendix-1.”

(emphasis supplied)

(Appendix-1 is the Government of India Letter dated 31.12.2008).

“2.3.1 The revised scales of pay and age of superannuation as provided in Clause 2.1.0 above, may 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 in adherence of the terms and conditions laid down in the MHRD Notifications provided as Appendix-I and in the MHRD letter No. F. 1-7/2010-U II, dated 11th May, 2010 with all conditions specified by the UGC in these Regulations and other Guidelines.”

3.2 It is contended that a perusal of the provisions of law cited above would make it clear that, Firstly, the Scheme framed by the Government of India vide its Letter dated 31.12.2008, provides for common revision of pay scales of teachers of Universities and Colleges (affiliated or constituent) established under Central, State or Provincial Acts with enhancement of the age of superannuation to 65 years. Secondly, the said Scheme has been made part and parcel of the UGC Regulations, 2010 as Appendix-I. Thirdly, the UGC has framed the common Regulations for teaching personnel of Universities and Colleges (affiliated or constituent) established under Central or Provincial or State Acts. Fourthly, the UGC Regulations, 2010 has been framed under the UGC Act, 1956 and is therefore mandatory and binding and would override any Government Order or Circular passed by the Executive of the State Governments. It follows that the State Government of Karnataka, in denying the enhancement of age of superannuation of teachers working in the Government and Aided Affiliated Colleges drawing UGC scales of pay, has acted in contravention of the UGC Act. 1956 and UGC Regulations, 2010. Hence, the impugned Government Order dated 15.10.2009, in so far as it denies the enhancement of age of superannuation to the petitioners who have worked in Private Aided Degree College and have drawn UGC Scales of Pay and consequent endorsements issued to the petitioners are liable to be quashed as the same are highly discriminatory, baseless, violative of Articles 14 and 16 of the Constitution of India.

3.3 It is contended that in the case of Dr. Sunity Pandey v. State of Bihar . CWJC No. 11348/2010 and connected matters, wherein the teachers of B.R Ambedkar Bihar University had also prayed for enhancement of age of superannuation to 65 years, the Patna High Court has passed an order dated 20.08.2010 that the said UGC Regulations, 2010 are mandatory and binding and hence the age of superannuation of teaching employees of Universities in the State of Bihar has to be extended to 65 years with effect from 30.06.2010 and as a consequence whereof, any teacher, who was in service then would be entitled to the benefit of extended age of superannuation and any one, who was forced to retire on or after that date prior to attaining the age of 65 years has to be taken back in service with full continuity and all consequences. Therefore, the petitioners pray that this Court be pleased to grant similar reliefs to them.

4. On the other hand, it is contended on behalf of the State as follows:

That the petitioners were appointed at a time when the State scales of pay were in force. The State Government had, vide order dated 30.3.1990, sanctioned the UGC scales of pay with retrospective effect from 1.1.1986 It is sought to be clarified that the State Government had accepted only that part of the UGC recommendation with regard to revision of UGC pay scales to the teaching community who were working in various Government and Private Aided Colleges coming under the purview of the Department of Collegiate Education with retrospective effect from 1.1.1986 Other recommendations of the UGC regarding enhancement of the age of superannuation from 58 to 60 was not accepted. It is therefore, contended that the variance with the guidelines prescribed, dependant on local conditions, which discretion has always been left to the State Government is a practice which has been evidently accepted both by the teaching community and the UGC, in the past decades. It is hence asserted that though the petitioners were granted UGC pay scales with effect from 1.1.1986, service conditions - such as the age of superannuation, probation, pension and so forth, were governed by State Government Rules as the UGC guidelines were either silent or were not mandatory. It is asserted that the petitioners having exercised their option to receive the UGC pay scales - the same is applied. The UGC pay scales having been revised during the year 1996 and again in the year 2006, the State Government had accepted only the revision of pay and various other guidelines and recommendations pertaining to academic matters. It is the State Government rules that govern all other service conditions of the petitioners. It is contended that though the State Government has, by its order dated 15.10.2009, enhanced the age of superannuation of the teaching community of Universities, but in respect of others such as the petitioners retained the same at 60. This was with the concurrence of the State Cabinet and is clearly a policy decision and hence beyond the pale of any challenge before this Court. Reliance is placed on the decision of the Apex Court in the case of Bharath Kumar v. Osmania University . 2007 11 SCC 58, wherein the Apex Court has in this context, observed as follows:

“19. Learned Counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62, as the case may be. We again reiterate that it is not for this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60, or as the case may be, 62, it was perfectly justified in doing so.”

4.1 It is contended that the teachers such as the petitioners having opted for the UGC scales of pay have, however, accepted the State Government's prescription of the age of superannuation, in variance with the UGC guidelines over the decades, without demur and therefore cannot claim parity decrying any alleged arbitrary treatment. It is contended that as early as in the year 1993, one Gurumurthy, an employee of an Aided Educational Institution had claimed that in terms of the recommendation of the UGC for revision of pay scales and service conditions, the Central Government had furnished a Scheme of revision of pay scales and other measures and informed the State Governments, which wished to adopt and implement the Scheme, that they would be assisted by the Central Government in providing the additional expenditure in giving effect to the Scheme, subject to the condition that the State Governments implement the entire Scheme as a composite Scheme without any modification. One of the recommendations was that the age of superannuation of teachers should be 60. It was the grievance of the said Gurumurthy that the State Government of Karnataka had failed to comply in not adopting the proposal of enhancing the age of superannuation to 60. In a Writ Petition before this Court, it was contended that the State Government having accepted the Scheme is bound to accept the same as a whole and hence was required to enhance the age of superannuation. This Court dismissed the petition as being fully covered by the decision of the Supreme Court in TP George v. State of Kerala . 1992 Supp 3 SCC 191. The Supreme Court, in the said case, was considering appeals by teachers against a decision of the Kerala High Court rejecting a similar contention. This Court had referred to the observations of the Apex Court in this regard, which are as hereunder:

“The contention of the appellant is that the State Government having accepted the UGC Scheme, and as the Scheme provides for a higher age of 60 years, once the State Government accepted the Scheme, all the Clauses of the Scheme became applicable. It is not possible to accede to this contention. Firstly, as already stated the UGC Scheme does not became applicable because of any statutory mandate making it obligatory for the Government and the Universities to follow the same. Therefore the State Government had the discretion either to accept or not to accept the Scheme. In its discretion it has decided to accept the same, subject to the one condition, namely, insofar as the age of superannuation is concerned, they will not accept the fixation of higher age provided in the Scheme. The State Government having thus accepted the Scheme in the modified form, the teachers can only get the benefit which flows from the Scheme to the extent to which it has been accepted by the State Government and the concerned Universities. The appellant cannot claim that major portion of the Scheme having been accepted by the Government, they have no right not to accept the Clause relating to fixation of higher age of superannuation. That is a matter between the State Government on the one hand and the University Grants Commission on the other, which was provided certain benefits by the Scheme. It is for the University Grants Commission to extend the benefit of the Scheme or not to extend the benefit of the Scheme, depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the same. That is a matter entirely between the State Government on the one hand and the University Grants Commission on the other. Teachers of the Private Institution concerned are governed by the statutes framed under the relevant statutory enactment. As long as the State Government has not accepted the UGC ‘s recommendation to fix the age of superannuation remains fixed at 55 years and as long as the State Government has not accepted the UGC's recommendation to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they are entitled to retire on attaining the age of 60 years.”

4.2 The Supreme Court further clarified that adoption of the Scheme was voluntary and the only result which may follow from the State Government not adopting the Scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the Scheme.

4.3 It is contended that the implementation of the UGC norms and Regulations by the State Government is mandatory only in so far as the pay scales and academic standards are concerned, but as regards service conditions including the age of superannuation to be prescribed at 62 or 65, is entirely left to be decided and adopted by the State Governments as a matter of policy and depending on the local conditions and other exigencies. It is hence contended that this legal position is firmly established as laid down in Bharat Kumar's case supra.

4.4 It is further contended that the Government Order dated 15.10.2009 produced at Annexure-D has been issued retaining the age of superannuation of those teaching staff working in Colleges coming, under the jurisdiction of the State and its instrumentalities at 60 years, which was taken as per the concurrence of State Cabinet given on 25.9.2009 Hence, non-enhancement of age of teaching staff working in Colleges coming under the State Government and its instrumentalities is a matter of policy and as the Supreme Court in the case of B. Bharath Kumar, supra, has clearly held that the State is empowered to fix the age of retirement, the said Government Order is legal and valid. Further, it is contended that the petitioners cannot claim parity with teachers falling under the control of Universities. If such parity is granted then it would create a situation of considering unequals as equals for the simple reason that at no point of time was the age of superannuation of teachers in Colleges under the State, on par with that of teachers working in Universities. Further, it is also submitted that the service conditions of those working in Universities are regulated by Statutes passed by the Syndicate under the provisions of Karnataka State Universities Act. Whereas in the case of teachers working in Colleges under the State Government, their service conditions are regulated by the Karnataka Educational Institutions (Collegiate Education) Rules, 2003 and wherever there is no Rule regulating the service conditions, the same is regulated by provisions of the Karnataka State Civil Services Rules, 1958. In view of the above, it is contended that the Government has for a long time not granted parity with regard to service conditions among teachers working in Colleges and Universities. The action of the Government in not extending the age of superannuation as applicable to teachers working in Universities to the petitioners does not amount to discrimination. But instead the State, as a matter of policy, resorted to reasonable classification of teaching community per se, by fixing a differential age of superannuation for teachers working in Colleges and Universities. This decision is based on sound reasoning, with an aim, not only to address unemployment, but also to stem the possible demand that would arise from teachers working in Primary, Secondary Schools and Pre-University Colleges. It is contended that since a favourable consideration of the petitioners claim would result in additional financial burden to the State exchequer, the State Cabinet has appropriately decided not to enhance the age of retirement.

4.5 It is contended that the UGC Regulations, 2010, dated 30.06.2010, and the directions contained therein are mandatory only insofar as pay and academic related matters, but with regard to other service conditions including age of superannuation, the State Government is given liberty to prescribe the same depending upon local conditions. Hence, the actions of the State Government in not enhancing the-age of superannuation to 62 or 65, for teaching staff working in Colleges under the jurisdiction of State and its instrumentalities, is just and valid.

4.6 Further, with regard to making of regulations, it is contended that the UGC is empowered to make the same as per Section 26 of UGC Act. Clause (a) to (c) of the said Section are Commission specific, whereas Clause (d) to (j) pertain to recognition of Institutions. Section 2(f) provides for qualifications for appointment in Universities, minimum standards of instruction for grant of degrees, regulating and maintenance of standards and co-ordination of work in Universities, regulating the establishments of Institutions. Section 12(ccc) provides for fees. Section 12A(2) regulates enquiries. Hence, it is contended that the UGC is not empowered to make regulations regulating service conditions of teaching staff in Colleges under the control of the State Government. As such, the claim of the petitioners that the prescription of age of superannuation as being mandatory cannot be accepted and is liable to be rejected.

4.7 It is submitted that in para-3 of the Regulations dated 30.06.2010, it is stated that the consequence of failure of the Universities to comply with the recommendations of the Commission, may result in the grants payable to the said University being withheld in terms of Section 14 of the UGC Act. The said paragraph does not apply to the instant case since the petitioners are not working in Universities or in the Colleges run by the Universities. In Appendix-I of the said Regulations, the following directions are given regarding fixing of age of superannuation:

“i) In order to meet the situation arising out of shortage of teachers in Universities and other Teaching Institutions and other consequent vacant positions therein, the age of superannuation for teachers in Central Education Institutions has already been enhanced to sixty five years, vide the Department of Higher Education Letter No. ENO. 119/2006-U.II, dated 23.03.2007 for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O Letter No. F.1-24/2006 Desk(U), dated: 30.03.2007 to enhance the age of superannuation of Vice-Chancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes with the approval of the competent authority (Visitor in the case of Central Universities).”

4.8 It is contended that the tenor of the above does not provide any direction to enhance the age of superannuation of teachers working in Colleges under the concerned State Governments to 62 years. Hence, the age of superannuation of teachers working in Colleges coming under the State Governments has to be determined as per prevailing age of superannuation applicable to State Government employees. Since the age of superannuation of the State Government employees is 60, the same yardstick has to be applied to teachers working in Colleges coming under the concerned State Governments.

4.9 It is further brought to the attention of this Court that a Writ Petition in WP 81643- 81644/2011 was filed by two lecturers of a Private Aided Institution before the Circuit Bench of this Court, at Gulbarga, raising similar contentions as in the present petition. The same has been dismissed by an order dated 25.5.2011 A copy of the order is made available.

4.10 It is also brought to the attention of this Court, when the matters were reserved for Orders, by a memo dated 17.6.2011, that an appeal having been filed against the above order in WA10095-96/2011, there was an interim order of stay of operation of the said order by the Learned Single Judge - but the same stands vacated by a further considered order dated 15.6.2011 - whereby a Division Bench of this Court has, prima facie, expressed that the decision of the Apex Court in Bharat Kumar'a case holds the field and hence “wisdom would prevail not to extend the date of retirement of persons.” The Division Bench has, hence vacated the interim order and has set down the case for final hearing in the usual course. It is therefore contended that the petitions be dismissed.

5. By way of reply, it is contended that the UGC may by Notification in the Official Gazette frame Regulations and any such Regulations gain statutory force and would be binding on the State Governments and Universities. The fallacy, in the reasoning of the State Government's stand, is that it proceeds on the footing that the present 2010 Regulations framed by the UGC and the recommendations or guidelines issued earlier from time to time, albeit with a rider that it was for the State Governments to adopt and implement the same, are being construed with reference to pronouncements of the Courts - which did not have occasion to address the effect of binding Regulations which are now in place.

5.1 It is contended that with the framing of the 2010 Regulations which have made the directions issued by the Government of India in its letter dated 31.12.2008 and further correspondence, as part of the same, the legislation that has come into force shall occupy the field in terms of Entry 66 List I of the Seventh Schedule to the Constitution of India and it shall prevail over all State Legislation.

5.2 It is further contended that a more recent decision of the Apex Court in the case of Annamalai University v. Secretary to Government Information and Tourism Department . 2009 4 SCC 590, covers the issue on all fours, as it is laid down that any law made by the UGC would prevail over State Legislation.

5.3 It is contended that on similar questions having been raised before the Punjab and Haryana High Court, the Rajasthan High Court and the Madhya Pradesh High Court have consistently upheld the requirement of enhancing the age of superannuation as directed by the Government of India.

5.4 It is contended that a plain reading of the provisions of the Karnataka Universities Act, 2000, the benefit of the Government Order dated 15.10.2009 should be made applicable to all teachers drawing the UGC scales of pay and the denial of the same to the petitioners is per se arbitrary and illegal.

6. In the light of the above contentions the points that arise for consideration are:

a) Whether there is an express direction to the State Government, by the Government of India, Ministry of Human Resource Development, Department of Higher Education, to enhance the age of superannuation of teachers in Government and Private Aided Institutions as per the communication dated 31-12-2008 and 11-5-2010, respectively?

b) Whether such direction is merely recommendatory, to be implemented at the convenience of the State Government, or whether the same was mandatory and binding on the State Government, having the force of law?

c) Whether the State Government is justified in implementing the direction of the Government of India to enhance the age of superannuation, restricting the application to teachers in Universities, while excluding teachers such as the petitioners, and others similarly placed for the extension of such benefit?

d) Whether this bench ought to abide by the opinion expressed by a Learned Single Judge of this Court, by an order dated 25.05.2011, in Writ Petition Nos. 81643–81644/2011. Before the Circuit Bench at Gulbarga; or in the event of forming a different opinion, whether the matters ought to be referred to a larger bench?

7. The background in which the need for enhancement of the age of superannuation of teachers in Colleges and Universities came into the reckoning is apparently based on the recommendations of the Chadda Committee Report of the year 2008. An extract of the text has been reproduced hereinabove. It is pursuant to the same and recommendations made by the UGC to the Government of India that the terms of the Scheme for revision of pay of teachers among other conditions was proposed and directed to be implemented. It was specified as to the applicability of the Scheme as follows:

“(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 expenditures 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.

(v) This Schememay 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 revision of pay scales with effect from 01.04.2010

(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 01.01.2006

(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 01.01.2006; 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 Bonds as approved by the Central Government and not to any higher scale of pay fixed by the State Governments).”

Further, the direction in so far as the age of superannuation is concerned, the same reads as follows:

“(f) Age of Superannuation:

(i) in order to meet the situation arising out of shortage of teachers in Universities and other teaching Institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years, vide the Department of Higher Education letter No. E No. 1-19/2006-U.II, dated 23.03.2007, for those involved in Class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent to upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O Letter No. F. 1-24/2006-Desk (U) dated 30.03.2007 to enhance the age of superannuation of Vice-Chancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (Visitor in the case of Central Universities).

(ii) Subject to availability of vacant positions and fitness, teachers shall also be re-employed on contract appointment beyond the age of sixty five years upto the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection of promotion prospects of eligible teachers.

(iii) Whereas the enhancement of the age of superannuation for teachers engaged in Class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education.”

7.1 It is clear from the tenor of the above that the enhancement of the age of superannuation of teachers to 65 was already implemented in Central Educational Institutions as on date of the said Communication. It is hence implied that if the Scheme for revision of pay is to be accepted by the State Governments, the enhancement of age was a condition precedent. Apart from acceptance of all the conditions mentioned in the letter as well as Regulations to be framed by the UGC in that behalf. This has been reiterated in the further communication of the Government of India dated 11.5.2010

7.2 The Scheme, in so far as the revision of pay scales is concerned, having been extended to all teachers in Universities and Colleges in the State, including the petitioners, the claim that the State Government is not bound to implement the condition as regards the enhancement of age in so far as the petitioners and others similarly placed, is clearly without any basis. It could be extended to all Universities, Colleges and other Higher Educational Institutions, or none, at the option of the State Government. The classification sought to be made, of teachers in the Universities and teachers elsewhere, is illusory. The contention as to the two sections being governed by different Rules and other statutory provisions in so far as their service conditions are concerned is not tenable. The incongruity in this regard on the other hand, should be cured by recourse to Legislative measures, in respect of any inconsistent State Legislation, vis-a-vis the UGC Regulations 2010 read with the Scheme proposed vide communication dated 31.12.2008

7.3 The contention on behalf of the State Government that there is no express direction to enhance the age of superannuation in respect of teachers such as the petitioners and further that the directions may be binding only in so far as the revision of pay scales and other academic standards alone, in so far as the scope and effect of the Regulations framed by the UGC is concerned, is not tenable. Firstly, there is no indication that the State Government was given an option to read into the Scheme any such artificial classification. It is also not clear as to how the State Government has thought it fit to peg the age of superannuation only at 62, when the intention of the Government of India and the UGC was to uniformly enhance the age of superannuation of all teachers engaged in higher education, every, where in the Country to 65. And to boot, deny the benefit of enhancement of the age of superannuation, even at 62, to the petitioners.

7.4 In so far as the further justification sought to be canvassed by the State Government that any such enhancement of the age of superannuation would have an adverse impact on the recruitment of young teachers at the entry level has been taken into consideration by the Chadda Committee Report in the following words:

“The Pay Review Committee also believes that the fears expressed by certain quarters that raising the age of superannuation to sixty five years would have an adverse impact on the recruitment of young teachers at the entry level is both misconstrued and misplaced. According to the understanding of the Pay Review Committee, the demand and supply situation of teachers for higher education is such that even after this provision of sixty five years as the age of superannuation of teachers is put in place, there would still be a significant shortfall in the availability of qualified teachers. Moreover, the Academic Institutions will continue to derive the benefits of availability of senior academics both in teaching and research. This would indeed be a big factor towards the improvement in quality of teaching and research.

The Pay Review Committee is of the considered opinion that while allowing the Institutions to continue to derive the benefits of participation by Senior Academics in both teaching and research; it will also attract talented young academics to the profession.”

7.5 It is further apparent that the recommendations of the Chadda Committee Report, the UGC and the Scheme of the Government of India as spelt out in its letter of 31.12.2008, is on a broad study of conditions prevailing across the Country. There is no material placed before the Court by the State Government to demonstrate, that the Scheme being formulated with the particular terms and conditions, while keeping in view certain facts and figures, could not be held to be relevant in so far as the conditions and circumstances prevalent in the State of Karnataka. It is pertinent to note that in this regard the Scheme specifically indicated as follows:

“12. Anomalies, if any, in the implementation of this Scheme may be brought to the notice of the Department of Higher Education, Ministry of Human Resource Development, for clarification/decision of the Central Government.”

7.6 It was therefore possible for the State Government to seek exemption from any and all conditions imposed, under the Scheme, if the State Government was in a position to demonstrate to the Central Government that it is indeed entitled to such exemption from the mandatory rigour of the conditions. In the absence of any such exchange of correspondence in this regard, it may be said that the State Government has unilaterally proceeded to act at its convenience. Whether any alleged financial constraints could be a ground for such exemption is again a matter which ought to have been taken up with the Central Government.

7.7 The vehement contention as regards the action of the State Government being prompted by a policy decision, and therefore being outside the pale of judicial review, would require this Court to overlook the circumstance that the need and requirement for the enhancement of the age of superannuation was a step towards implementation of the declared objectives of the XI Five Year Plan and as a National Policy, encompassing all the States in the Country. Any policy decision of the State Government could not be expected to run counter to the same. As already stated, there is nothing on record to indicate that the State Government of Karnataka stood on a different footing, in terms of the strength of its teachers in higher education, or other conditions, which were relevant to implement the Scheme proposed by the Government of India, that stood duly incorporated in the UGC Regulations 2010.

7.8 In so far as the view taken by another Single Judge of this Court, in a petition filed on identical grounds, is concerned. It is seen that the reasoning in dismissing the petition reads as follows:—

“11. The subject education is of course enumerated in the concurrent list of Eighth Schedule of the Constitution. The Union and the State Government both have jurisdiction to legislate. However, the State Legislation cannot be in conflict with the Central Legislation, unless a presidential assent is obtained. Under Article 245 of the Constitution of India, the University Grants Commission Act is a Central Legislation. The regulations framed under the Act do have a statutory for by virtue of Section 28 of the Act. However, the reading of the University Grants Commission Act does not disclose that the regulations framed have a binding force on the State Government. The provisions of Section 14 of the Act makes it very clear as to consequence of non-compliance of the recommendation of the Commission. Even the Clause 3 of UGC Regulation virtually in consonance with S. 14 of UGC Act. There is nothing for provisions of University Grants Commission Act to make the recommendation of the commission mandatory and inviolable on the part of the universities and State Government to comply.

12. In the letter at Annexure-G of the Ministry of Human Resource Development, it is stated that the Scheme is composite package and cannot be adopted by State Government partially. The regulations however does not declare so. The decision of Supreme Court cited above makes it clear that it is in the discretion of the Government to accept or to reject the Scheme partially. The said decision also makes it clear that the refusal on the part of Government of Kerala top increase the superannuation age from 55 years to 60 years was also held not violative of the Article 14 of the Constitution. The fact that UGC Regulations are made subsequent to the decision of Supreme Court makes no deference in the position of law because in the provisions of Universities Grants Commission Act there is nothing to suggest that the recommendation of the UGC have binding force on the State Government. The State Government pursuant to the recommendation in the Regulation has enhanced the superannuation age from 60 years to 62 years with regard to teaching faculty in the Universities and has not extended the benefit to other teaching staff. The teaching faculty in the Universities would constitute a separate Clause. The Universities are the centres of higher learning. Therefore, the policy of the Government to extend the superannuation age from 60 years to 62 years for the teaching faculty in the University cannot be considered as hostile discrimination.”

7.9 It is evident that reliance was placed on the decision of the Apex Court in T.P George's case, supra, in adopting the above reasoning. As already noticed, while recording the rival contentions, what was involved in T.P George's case was a Scheme of the UGC and therefore it was found not applicable because of the absence of any statutory mandate making it obligatory for the Government and the Universities to follow. It was thus held that the State Government had the discretion either to accept or not to accept the Scheme. The further opinion, that in so far as the present position in the circumstances on hand, that the framing of the UGC Regulations 2010, does not make any difference to the legal position, is a point on which this bench would differ, while drawing attention to the case of Annamalal University, Supra, which does not appear to have been brought to the attention of the Court, before the said Order was pronounced.

7.10 The background to Annamalai University case is as follows:

One R and one G were candidates for appointment to the post of Principal in the Film and Television Institute of Tamil Nadu. G was appointed temporarily as a Lecturer-in-acting. His services were regularized with retrospective effect from the date of joining by an order dated 20.2.1992 He was subsequently promoted as the Head of Section. The next avenue of promotion from the post of Head of Section was the post of Principal in the Institute. In the year 2000, R was given the additional charge to the post of Principal. G, approached the Tamitaadu Administrative Tribunal, questioning the legality of the appointment on the ground that R did not have the requisite essential educational qualification. The Tribunal disposed of the application, directing the State Government to consider whether R possessed the requisite qualification, since admittedly R who did not possess a basic graduation degree could still be said to qualify on the basis of a post graduation degree conferred on him by the Annamalai University.

7.11 There were several incidental proceedings but ultimately, a Division Bench of the High Court held that R was not eligible to be considered for the post of Principal as the M.A Degree obtained by him through the Open University System, without a basic degree in the first instance was not a valid one. It is in that background that the University as well as R, were before the Apex Court. The Court had to consider the interpretation and application of Regulations framed by the UGC in exercise of power conferred under Clause (f) of Section 26(1) of the UGC Act, vis-a-vis the provisions of the Indira Gandhi National Open University Act, 1985.

7.12 On a close examination of the relevant provisions, it was held as follows:

“44. It has not been denied or disputed before us that in the matter of laying down qualification of the teachers, running of the University and the matters provided for under the UGC Act (sic the Regulations) are applicable and binding on all concerned. The Regulations framed, as noticed hereinbefore, clearly aimed at the open Universities. When the regulations are part of the statute, it is difficult to comprehend as to how the same which operate in a different field would be ultra vires the parliamentary Act. IGNOU has not made any regulation; it has not made any ordinance. It is guided by the Regulations framed by UGC. The validity of the provisions of the Regulations has not been questioned either by IGNOU or by the appellant University. From a letter dated 05.05.2004 issued by Mr. H.P Dikshit, who was not only the Vice-Chancellor but also the Chairman of DEC of IGNOU it is evident that the appellant University has violated the mandatory provisions of the Regulations.

45. The amplitude of the provisions of the UGC Act vis-a-vis the Universities constituted under the State Universities Acts which would include within its purview a University made by parliament also is now no longer res Integra.

46. In Prem Chand Jain v. R.K Chhabra, Court held: (SCC pp. 308–09, para 8)

“8. … The legal position is well settled that the entries incorporated in the lists covered by Schedule VII are not powers of legislation but fields' of legislation. (Harakchand Ratanchand Banthia v. Union of India SCR at p. 489.) In State of Bihar v. Kameshwar Singh this Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court has clearly ruled that the language of the entries should be given the widest scope or amplitude. (Navinchandra Mafatlal v. CIT SCR at p. 836.) Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. (See State Of Madras v. Gannon Dunkerley & Co., (Madras) Ltd at p. 391). It has also been held by this Court in Check Post Officer v. K.P Abdulla and Bros, that an entry confers power upon the legislature to legislate for matters ancillary or incidental, including provisions for avoiding the law. As long as the legislation is within the permissible filed in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature.”

47. In University of Delhi v. Raj Singh, this Court held: (SCC pp. 526–27, para 13)

“13. …By reason of Entry 66, Parliament was invested with the power to legislate on ‘co-ordination and determination of standards in Institutions for higher education, or research and scientific and Technical Institutions’. Item 25 of List III conferred power upon Parliament and the State Legislatures to enact legislation with respect to ‘vocational and technical training of labour’. A Six-Judge Bench of this Court observed that the validity of the State legislation on the subjects of University Education and Education in Technical and Scientific Institutions falling outside Entry 64 of List I as it then read (that is to say, Institutions for scientific or technical education other than those financed by the Government of India wholly or in part and declared by Parliament by law to be Institutions of national importance) had to be judged having regard to whether it impinged on the field reserved for the Union under Entry 66. In other words, the validity of the State Legislation depended upon whether it prejudicially affected the coordination and determination of standards. It did not depend upon the actual existence of the Union Legislation in respect of co-ordination and determination of standards which had, in any event, paramount importance by virtue of the first part of Article 254(1).”

48. In State of T.N v. Adhiyaman Educational and Research Institute this Court laid down law in the following terms: (SCC pp. 134–35, para 41)

“41. What emerges from the above discussions is as follows:

(i) The expression ‘co-ordination’ used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make ‘co-ordination’ either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its fall effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If there is a conflict between the two Legislations, unless the State Legislation is saved by the provisions of the main part of Clause (2) of Articles 254, the State Legislation being repugnant to the Central Legislation, the same would be inoperative.

(iv) Whether the State law ‘encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to shortlist the applicants. When the State authority does so, it does not encroach upto Entry 66 of the Union List or make a law which is repugnant to the Central law.

(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to it standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally.”

49. In State of A.P v. K. Purushotham Reddy this Court held: (SCC p. 572, para 19)

“19. The conflict in legislative competence of Parliament and the State Legislatures having regard to Article 246 of the Constitution of India must be viewed in the light of the decisions of this Court which in no uncertain terms state that each entry has to be interpreted in a broad manner. Both the Parliamentary Legislation as also the State Legislation must be considered in such a manner so as to uphold both of them and only in a case where it is found that both cannot coexist, the State Act may be declared ultra vires. Clause (1) of Article 246 of the Constitution of India does not provide for the competence of parliament or the State Legislatures as is ordinarily understood but merely provides for the respective Legislative fields. Furthermore, the Courts should proceed to construe a statute with a view to uphold its constitutionality.”

It was observed: (Purushotham Reddy case, SCC p. 573, para 20)

“20. Entry 66 of List I provides for coordination and determination of standards inter alia for higher education. Entry 25 of List III deals with broader subject, namely, education, on a conjoint reading of both the entries there cannot be any doubt whatsoever that although the State has a wide Legislative field to cover the same is subject to Entries 63, 64, 65 and 66 of List I. Once, thus, it is found that any State Legislation does not entrench upon the legislative field set apart by Entry 66, List I of the Seventh Schedule of the Constitution of India the State Act cannot be invalidated.

50. The UGC Act, thus, having been enacted by Parliament in terms of Entry 66 of List of the Seventh Schedule to the Constitution of India would prevail over the Open University Act.”

7.13 In the hght of the above judgment, it wouldnotbepossible to contend that the ftaming of the UGC Regulations 2010 would have no effect on the State Government's option to partially accept the conditions of a Scheme which stood incorporated in the Regulations, and not to comply with other conditions.

7.14 Incidentally, the decision of the Apex Court in B. Bharat Kumar, supra is found on the basic premise that the very language of a letter which proposed a Scheme itself suggested that the Scheme was voluntary and not binding at all. Unlike in the present case on hand, there was no statutory mandate in the form of Regulations by the UGC, in order to compulsorily impose the conditions prescribed therein. Curiously, the above decision was not brought to the attention of the Division Bench, which was dealing with the appeal as well.

7.15 Regulation 1.2.2 of the UGC Regulations 2010 and Paragraphs 2.1.0 and 2.3.1, are extracted hereunder for ready reference:

“1.2 They shall apply to every University established or incorporated by or under a Central Act. Provincial Act or a State Act, every Institution including a constituent or an affiliated College recognised by the Commission, in consultation with the University concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every Institution deemed to be a University under Section 3 of the said Act.

(emphasis supplied)

2. The minimum qualifications for appointment and other service conditions of University and College teachers. Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education, shall be as provided in the Annexure to these Regulations.

(emphasis supplied)

2.1.0 The revised scales of pay and other service condition including age of superannuation in Central Universities and other Institutions maintained and/or funded by the University Grants Commission (UGC), shall be strictly in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education) as contained in Appendix-1.

(emphasis supplied)

2.3.1 The revised scales of pay and age of superannuation as provided in Clause 2.1.0 above, may 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 in adherence of the terms and conditions laid down in the MHRD Notifications provided as Appendix-I and in the MHRD letter No. E1-7/2010-UII dated in 11th May, 2010 with all conditions specified by the UGC in these Regulations and other Guidelines.”

(emphasis supplied)

7.16 It is evident from the above that the Scheme framed by the Government of India vide letter dated 31.12.2008 provides for a common revision of pay scales of teachers of Universities and Colleges (affiliated or constituent) established under the Central, State or Provincial Acts, with enhancement of age of Superannuation to 65 years. The said Scheme has been incorporated as part and parcel of the UGC Regulations 2010. The said Regulations are framed in exercise of power under the UGC Act and would hence over-ride any executive Government orders issued contrary to the same. In other words the denial by the State Government of the enhancement of the age of superannuation to teachers working in the Government and Aided, Affiliated Colleges drawing the UGC Scales of pay is repugnant to the UGC Act and the UGC Regulations, 2010 and is hence void.

7.17 In the result, the impugned Orders/Annexures, in the respective petitions, which have the effect of denying the enhancement of the age of superannuation to 65 years, as provided under the UGC Regulations 2010, are hereby quashed. The petitioners shall be continued in service in the posts held by them as on the date of the petitions, or immediately prior thereto, till they attain the age of superannuation at 65, in accordance with the UGC Regulations 2010, with all consequential benefits.

7.18 Notice having been issued to the respondents in some of the petitions, but however, since the respondents were represented in other petitions and the several contentions raised having been heard, the Learned Government Pleader is permitted to file his memo of appearance on behalf of the State in those petitions, within a period of four weeks.