Bharat Kumar & Ors
Ors  Insc 511 (7 May 2007)
H.K. Sema & V.S. Sirpurkar
CIVIL APPEAL NOs.6668-6671 OF 2003 Putla Chandra Paul, etc. etc. . Appellants
Versus The Human Resources Dept. Government of New Delhi & Ors. .
CIVIL APPEAL NOs.6672 OF 2003 Dr.Mrs. G. Shashikala . Appellant Versus The
Govt. of A.P. & Ors. . Respondents WITH
CIVIL APPEAL NOs.6673-6678 OF 2003 S. Kishan Rao & Ors. . Appellants Versus
Osmania University & Ors. . Respondents WITH
CIVIL APPEAL NOs.6679-6683 OF 2003 G. Sreedhara Reddy & etc. . Appellants
Versus Osmania University & Ors. . Respondents WITH
CIVIL APPEAL NO.6684 OF 2003 K. Narsing Rao . Appellant Versus Govt. of A.P.
Education Dept. & Ors. . Respondents WITH
CIVIL APPEAL NO.6685 OF 2003 A. Haranadha . Appellant Versus The Secretary
Higher Education Dept.
Govt. of A.P. & Ors. . Respondents WITH
CIVIL APPEAL NO.6690 OF 2003 V. Rami Reddy . Appellant Versus Sri Venkateshwara
University & Ors. . Respondents WITH
CIVIL APPEAL NO.6691 OF 2003 A. Venkateswara Rao . Appellant Versus The Human
Resources Dept., Govt. of India & Ors. . Respondents V.S. SIRPURKAR, J.
1. Several writ petitions came to be filed in the High Court raising a
common issue regarding the superannuation age. All the petitioners were serving
in different private colleges which were enjoying the grant-in-aid by the
Government. They were serving in the capacity as Lecturers, Professors,
Readers, Librarians, Physical Education Teachers, etc. Their common prayer in
the writ petitions was that their age of superannuation which was hitherto 58
or 60 years, as the case may, should be raised to 62 years. For this they all
commonly relied on a communication No.F.1.22/97-U.I dated 27.7.1998. The claim
made by the petitioners was that firstly the decision of the Government of
India was mandatory and binding vis- `-vis the colleges/universities. This was
all the more reiterated in the backdrop that the Central Government was
providing financial assistance to the State Government in implementing the
scheme of revision of pay scales. It will be better for us to quote the whole
letter dated 27.7.1998 since the same happens to be the main and by far the
only basis for the prayers made in the writ petitions (unfortunately, the
copies of the writ petitions have not been filed before us though there are
"Sub: Revision of pay scales of teachers in Universities and colleges
following the revision of pay scales of Central Government employees on the recommendations
of Fifth Central Pay Commission:
Madam/Sir, I am directed to say that in fulfillment of the constitutional
responsibility for consideration, determination and maintenance of standards in
higher education, the Central Government and the University Grants Commission
(UGC) have taken, from time to time, several measures. As a part of these
efforts, the Central Government has revised the pay scales of teachers in Central
Universities and Colleges thereunder in order to attract and retain talent in
the teaching profession. A copy of the letter addressed to the UGC giving
details of the revised scales of pay and other provisions of the scheme of
revision of pay scales is enclosed.
2. In discharging its constitutional responsibility, the Central Government
has decided to continue to provide financial assistance to the State
Governments who wish to adopt and implement the Scheme of revision of pay
scales subject to the following terms and conditions:
(a) The Central Government will provide financial assistance to the State
Governments which have opted for these revised pay scales to the extent of 80%
of the additional expenditure involved in the implementation of the revision.
(b) The State Government will meet the remaining 20% of the expenditure from
their own sources.
(d) The financial assistance, indicated above, would be provided for the
period from 1.1.1996 to 31.3.2000.
(e) The entire liability on account of revision of pay scales, etc., of
university and college teachers would be taken over by the State Governments
(f) The Central assistance would be restricted to revision of pay scales in
respect of only those posts which were in existence and filled up on 1.1.1996.
3. The State Governments, after taking local conditions into consideration,
may also decide in their discretion, to introduce scales of pay different from
those mentioned in the scheme, and may give effect to the revised scales of pay
from January 1, 1996, or a later date. In such cases, the details of the modifications
proposed either to the scales of pay or the date from which the scheme is to be
implemented, should be furnished to the Government of India for its approval
and, subject to the approval being accorded to the modifications, Central
assistance on the same terms and conditions as indicated above will be
available to the State Governments for implementation of the scheme with such
modifications, provided that the modified scales of pay are not higher than
those approved under the scheme.
4. The payment of Central assistance for implementation of the 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 in this regard by the UGC by
way of Regulations, is implemented by the State Governments as a composite
scheme without any modification except to the date of implementation and scales
of pay as indicated above.
5. It shall be necessary for the Universities and Managements of colleges to
make necessary changes in their statutes, ordinances, rules, regulations, etc.,
to incorporate the provisions of this scheme.
6. The detailed proposal for implementation of the scheme on the lines
indicated above, may kindly be formulated immediately and sent to the
Department of Education in the Ministry of Human Resources Development for
examination so that Central assistance to the extent indicated above can be
sanctioned for the implementation of revised scales of pay.
7. Anomalies, if any, in the implementation of the scheme may be brought to
the notice of the Department of Education in the Ministry of Human Resource
Development for clarification.
8. The scheme applies to teachers in all Universities (excluding
Agricultural Universities) and colleges (excluding Agricultural, Medical and Veterinary
Science Colleges) admitted to the privileges of the Universities."
2. The petitioners also relied on a UGC notification on revision of pay
scales bearing No.1-3-1494(PS) dated 24.12.1998. This was a communication from
the Secretary, University Grants Commission along with the whole scheme. Few
other letters like Letters dated 22.9.1998 and 6th November, 1998 were also
relied upon and lastly a consolidated statement sent by the Ministry based upon
the above mentioned three letters was also heavily relied upon. From that
consolidated statement our attention was invited to the following para No.(vi):
"(vi) Age of superannuation (Annexure I) The age of superannuation of
university and college teachers, Registrar, Librarians, Physical Education personnel,
Controller of examination, Finance Officers and such other university employees
who are being treated at par with the teachers and whose age of superannuation
was 60 years, would be 62 years and thereafter no extension in service should
However, it will be open to a university or college to re- employ a
superannuated teacher according to the existing guidelines framed by the UGC
upto the age of 65 years (Annexure I & III)."
3. In short initially the claim of some of the writ petitioners was entirely
based on this material for the extended age of superannuation upto 62 years.
The things did not stop here.
4. On 29.6.1999 the State of Andhra Pradesh passed the GOMS 208. This was
mainly for implementation of the UGC pay scales to the teachers and others
covered in the aforementioned consolidated statement and the letters mentioned
above. The State of Andra Pradesh agreed to implement the said scheme in so far
as the salaries were concerned. This position obviously was taken after
formation of a committee of five experts which is clear from para (iv) of the
GOMS 208. The committee submitted the report to the State Government after
making an indepth study of the issues relating to implementation and had made a
report to the Government on 30.4.1999. It is on the basis of this report that
the aforementioned GOMS 208 came to be issued. Para 5 of the GOMS is as under:
"5. After careful consideration of the Revised UGC scales and the
suggestions of Government of India, and the recommendations of the five member
committee, as mentioned in para 4 above, the State Government of A.P.
have decided to extend the Revised UGC Scales of pay, to the Teachers,
Librarians and Physical Education Personnel in the Universities and Colleges in
the State, as shown in the Schedule to this order."
The rest of GOMS is not material as it pertains to the other conditions
subject to which the revised pay-scales were awarded. However, para 14 of the
GOMS suggests that the service conditions like recruitment and qualifications,
selection procedure career advancement, teaching days, work load, code of
professional ethics, accountability, etc., shall be as indicated in the
Appendix to the order.
The Appendix however, to the chagrin of the petitioners, suggested the age
of superannuation also. The relevant para is as under:
"15. Superannuation and Re-employment of Teachers:
(1) The University Grants Commission has recommended superannuation age as
62 years uniformly for the teachers in Universities and colleges. At present,
in the State of Andhra Pradesh, the age of superannuation is 58 for the college
teachers and 60 for university teachers. After considering the issue at great
length and keeping in view that if this issue to enhance the age of
superannuation to 62 years is agreed to, it will have repercussions and adverse
implications regarding announcement of the age of retirement of the State
employees also, the Government have decided that there should be no change in
the age of superannuation as existing now and it shall be retained at 58 years
to the college teachers and 60 years for the university teachers.
(2) It is open to a university or a college to re-employ a superannuated
teacher according to the existing guidelines framed by the UGC upto the age of
(3) Age of retirement of Registrars, Librarians, Physical Education
Personnel, Controllers of Examinations, Finance Officers and such other
university employees who are being treated at par with the teachers and whose
age of superannuation was 60 years, would also continue to be 60 years. No
re-employment facility is provided for the Registrars, Librarians and Directors
of Physical Education."
It is this para which infuriated the petitioners. Though some of the
petitioners had rushed to the court prior to the passing of the GOMS, other
batch of writ petitions came to be filed where they also challenged the GOMS
208 and more particularly para 15 of the Appendix which has been quoted above.
The writ petitioners who had filed the writ petitions earlier to this date did
not even bother to amend the writ petitions and introduce a challenge to this
GOMS in their writ petitions. Strangely enough, however, while filing the
Special Leave Petitions challenging the impugned judgments, we find a challenge
having been made to the GOMs in the body of the SLPs.
However, at the High Court stage it was treated as if all the writ petitions
had challenged GOMS 208 because the same was an outcome of the aforementioned
three letters to which we have already referred to earlier.
5. The High Court took the view that this matter was squarely State of Kerala
[(1992) Suppl. 3 SCC 191] against the petitioners.
The High Court, more particularly relied on one paragraph in that judgment
which is as follows:
"However, the court viewed that age of retirement fixed at 55 years in
the case of teachers of affiliated colleges is too low. It is only after a
teacher acquires several years of teaching experience that he really becomes
adept at his job and it is unfortunate if the students have to lose the
benefits of his experience by reason of any unduly early age of retirement.
However, it is not for the court to prescribe the correct age of retirement but
that is a policy function requiring considerable expertise which can properly
be done by the State Government or the State Legislature of the Universities
concerned. It is hoped that some time in near future, the State Government will
be able to consider the question and determine the age of retirement as it best
In that judgment this Court had sealed a mark of approval on the
aforementioned observations of the impugned judgment of the Division Bench of
the Kerala High Court:
"Though clause 26 of the scheme provides that the age of superannuation
for teachers should be 60 years, and the scheme contemplates certain
improvements in providing for assistance in that behalf, it is not a scheme
which is statutorily binding either on the State Government or the different
universities functioning under the relevant statutes in the State of Kerala.
What the State Government has done by its order dated March 13, 1990 is to
implement the UGC scheme including revision of scales of pay in relation to
teachers in Universities including Kerala-Agricultural University, affiliated
colleges, Law Colleges, Engineering Colleges, and qualified Librarians and
qualified physical Education Teachers with effect from January 1, 1986, subject
however to the express condition that in so far as the age of retirement is
concerned, the present fixation of 55 years shall continue.
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 become
applicable. It is not possible to accede to this contention. Firstly, as
already stated the UGC scheme does not become 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 scheme.
Subject to the one condition, namely, in so far 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
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 one hand and the
University Grants Commission on the other. Teachers of the private institutions
concerned are governed by the statutes framed under the relevant statutory
enactment. As long as the 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."
In view of this all the writ petitions came to be dismissed by two separate
judgments. These judgments have now fallen for consideration in these appeals.
6. Shri Gururaja Rao, learned Senior Counsel appearing on behalf of the
appellants contends firstly that the High Court erred in relying upon the
judgment of this Court in T.P. George's case (supra).
According to the learned counsel, the judgment has ceased to apply in view
of the subsequent developments. Learned counsel secondly urged that the
language of the letter dated 27.7.1998 itself suggested that it was not open
for the State Government or as the case may, the other educational institutions
like Universities and Colleges to ignore the letter, especially the suggestion
therein that the retiring age should be 62 years. In this the learned counsel
laid a great stress on the term "wish" used in that letter and
suggested that the term should not be interpreted to suggest any discretion
being left with the State Government regarding the scheme to be implemented.
Learned counsel also claimed that the scheme, if at all chosen to be
implemented, had to be implemented as a composite scheme since the whole scheme
is contained in a single document which was plain and unambiguous. Relying on
the decision of O.P. Singla vs. Union of India [(1984) 4 SCC 450] it was urged
that when a rule or section is a part of an integral scheme, it should not be
considered or construed in isolation because doing so would result in some
inter- related provisions becoming otiose or devoid of meaning. Relying on
Maniklal Majumdar vs. Gouranga Chandra Dey [(2005) 2 SCC 400], the learned counsel
suggested that in order to ascertain the meaning of a clause, the court must
look at the whole statute as what precedes and what succeeds and not merely the
clause itself. There are number of other authorities referred to by the learned
counsel like Chandrika Prasad Yadav vs. State of Bihar [(2004) 6 SCC 331], Dove
Investments (P) Ltd. vs. Gujarat Industrial Investment Corporation [(2006) 2
SCC 619] which suggest that whether the statute would be directory or mandatory
would depend upon the scheme thereof.
7. Referring to the letter itself, the learned counsel further suggested
that considering the language therein, it was clear that it did not leave any
discretion with the State Government with in respect to the scheme as a whole.
Referring to paragraphs 4 and 5 of the letter, the learned counsel suggested
that there was a clear suggestion to the Universities and Managements of
Colleges to make necessary changes in their statutes, rules, regulations, etc.,
to incorporate the provisions of the scheme and these directions in para 5 were
mandatory in nature and, therefore, the Universities and the State Government
had no other option but to give effect to the scheme as a composite scheme.
Learned counsel laid a great stress on the terminology "shall be necessary"
and "to make necessary changes". Learned counsel took us through the
whole letter paragraph by paragraph and insisted that the scheme suggested by
the University Grants Commission (UGC) was not only mandatory but was also
binding vis-`-vis the Universities and the States and, therefore, it was
essential that the retirement age was bound to be increased to 62 or as the
case may be 60 years.
8. We were also taken through Entry No.66 of the Union List and it was tried
to suggest that the letter or the as case may be, the scheme was in the nature
of a legislation, a Central legislation that would be binding against the
States and the statutes of the State contrary to it to that extent would have
to be read as otiose. Learned counsel also made a reference to the subsequent
letter dated 6.11.1998 and more particularly the subsequent developments and
wanted to read therefrom that the superannuation age was bound to be 62 years
or as the case may be 60 years.
9. In so far as the decision in T.P. George's case (supra) is concerned, the
counsel very heavily relied on the judgment of this [(2005) 5 SCC 420] and for
that purpose also argued the scope of Entry 66 from List I as against Entry 25
of List III. It was the contention of the learned counsel that Yashpal's case
expressly overrules the law laid down in T.P. George's case (supra). For
impressing upon us the importance of Entry 66 of List I which was required to
be harmonized with Entry 25 of List III, the learned counsel took up through
the celebrated judgment of this Court in The Gujarat University, Ahmedabad vs.
Krishna Ranganath Mudholkar & Ors. [(1963 Supp. 1 SCR 112]. In that the
learned counsel further urged that the whole gamut of University which include
teaching, etc., will not come within the purview of the State Legislation on
account of the specific nature of determination of standards in institutions
for higher education being in the Union List for which Parliament alone is
competent to legislate. Learned counsel, therefore, taking the analogy further
suggests that the scheme which was being handed down by the Central Government
was binding as a Central legislation. Learned counsel also took us through
another celebrated decision of this Court in State of T.N. vs.
Abhiyaman Educational and Research Institute [(1995) 4 SCC 104]. Even the
other celebrated decision in Dr.Preeti Srivastava vs.
State of M.P. [(1999) 7 SCC 120] which was referred to in Yashpal's case was
heavily relied upon by the counsel. In short the main stay of the argument was
that the University Education which was higher education and shall be covered
by Entry 66 of List I, and therefore, the recommendations made by the UGC were
binding as against the State Government and the Universities and the
conflicting States statutes to that extent stood overruled. It was tried to be
suggested that the Government of India's letter calling upon the State
Governments in implementing the scheme is the result of the exercise of the
executive powers under Article 73 of the Constitution of India with respect to
Entry 66 of List I and, therefore, such a decision of the Central Government
was binding on the State Government and the Universities as the subject
pertains to the Union List. It was also suggested that the State Government in
GOMS 208 dated 26.6.1999 had accepted the partial implementation of the scheme
and such partial implementation was not permissible in view of the categorical
directions contained in paragraph 4 of the letter dated 27.7.1998. To the same
effect, more or less are the written submissions by other appellants in other
10. The State of Andhra Pradesh, however, took a clear stand that a mandamus
cannot be issued to the State Government on the basis of current letter written
by the Director of UGC. It is pointed out that the language of the letter was
clear enough to suggest that the scheme was voluntary in nature. It was pointed
out that it was nowhere suggested in the letter that the State Governments were
required to implement the contents of the letter. Learned counsel heavily
relied on the decision in T.P. George's case (supra) and pointed out that that
case clinched the issue against the appellants. It was also pointed out by the
learned counsel for the other respondents that the language of the letter or
for that matter subsequent letters and the scheme was clearly suggesting that
it would be voluntary on the part of the State Government to accept or not to
accept the scheme. There was no question of the scheme being in the nature of a
legislation or order or a policy decision.
Learned counsel further argued that even if it was a policy decision, the
scheme itself suggested that it was voluntary and dependent upon the
"wish" of the State Government to implement the scheme or not. It
was, therefore, impermissible to attribute different meanings and to read
something in the scheme which is not there. The other counsel also pointed out
that the appellant had utterly failed to show as to how the judgment in T.P.
George's case was not applicable to the present case or for that matter stood
overruled by Yashpal's case. It is in this background that we have to consider
11. The judgments of the High Court in appeal undoubtedly turn firstly on
the plain and simple language of the scheme and secondly on the reported
decision in T.P. George's case.
12. We would, therefore, first examine as to whether the two Division
Benches have rightly relied upon the said judgment held against the appellants.
We have examined the judgment in extenso.
This is also a case where the UGC had floated a scheme in 1986 which was
framed by the Central Government pursuant to the Mehrotra Committee Report. In
that scheme there was a Circular dated 17.6.1987 addressed by the Ministry of
Human Resource Development, Department of Education to the Education
Secretaries of all the States, UTs and it was clearly mentioned therein that
the adoption of the scheme was voluntary and the only result follow from the
State Government not adopting the scheme might be that the State Government may
not get the benefit of the offer of reimbursement from the Central 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. Therefore, the factual
situation was almost identical as in the present case. This Court approved
specifically a paragraph in the Kerala High Court judgment which we have
already quoted earlier in this judgment in para 5. In that the Kerala High
Court had specifically rejected the contention that the State Government having
accepted the UGC scheme and as the scheme provided for the higher age of 60
years, the clause of the scheme regarding age of retirement also would become
The Kerala High Court had specifically further observed that the UGC scheme
did not become applicable as it was not obligatory for the Government and the
Universities to follow the same. The Kerala High Court read a discretion in the
State Government to accept or not to accept the scheme.
13. The situation is no different in the present case also. The very
language of the letter dated 27.7.1998 suggests that the scheme is voluntary
and not binding at all. Further it is specified in the judgment of the Kerala
High Court that the teachers had no right to claim a specific age because it
suggested in the scheme which scheme was itself voluntary and not binding. The
Court clearly observed that "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".
The Court therein observed that it is a matter between the State Government on
the one hand and the University Grants Commission on the other and it would be
for the University Grants Commission to extend the benefit of the scheme or not
to extend the same depending upon its satisfaction about the attitude taken by
the State Government in the matter of implementing the scheme. It was lastly
clearly observed that as long as the State Government has not accepted the
UGC's recommendations to fix the age of superannuation at 60 years, teachers
cannot claim as a matter of right that they were entitled to retire on
attaining the age of 60 years.
14. Inspite of our best efforts, we have not been able to follow as to how
the judgment of the Kerala High Court, which has been approved by this Court
is, in any manner, different from the factual situation that prevails here in
this case. It is for that reason that we have extensively quoted not only the
aforementioned letter dated 27.7.1998 but also the subsequent letters and the
further policy statement. Plain reading of all these is clear enough to suggest
that the scheme was voluntary and it was upto the State Governments to accept
or not to accept the scheme. Again even if the State Government accepted a part
of the scheme, it was not necessary that all the scheme as it was, had to be
accepted by the State Government. In fact the subsequent developments suggest
that the State Government has not chosen to accept the scheme in full inasmuch
as it has not accepted the suggestions on the part of the UGC to increase the
age of superannuation.
15. Once we take this view on the plain reading of the scheme, it would be
necessary for us to take stock of the subsequent arguments of Mr.Rao regarding
Entry 66 in the List I vis-`-vis Entry 25 in List III.
In our opinion, the communications even if they could be heightened to the
pedestal of a legislation or as the case may be, a policy decision under
Article 73 of the Constitution, they would have to be read as they appear and a
plain reading is good enough to show that the Central Government or as the case
may be UGC also did not introduce the element of compulsion vis-`-vis the State
Government and the Universities. We, therefore, do not find any justification
in going to the Entries and in examining as to whether the scheme was binding,
particularly when the specific words of the scheme did not suggest it to be
binding and specifically suggest it to be voluntary.
16. Much debate was centered around the interpretation of the words
"wish" and "gamut". In our opinion it is wholly unnecessary
and we have merely mentioned the arguments for being rejected.
Once the scheme suggested that it was left to the "wish" of the
State Government, there will be no point in trying to assign the unnatural
meaning to the word "wish". Similarly, there would be no point in
going into the interpretation of the word "gamut" and to hold that
once the State Government accepted a part of the scheme, the whole scheme had
to be accepted by the same as such would, in our opinion, be an unnecessary
17. In view of the plain and ambiguous language of the scheme, there would
be no necessity on our part to attempt any interpretation.
For the same reasons we need not consider the argumets based on the
decisions in O.P. Singla, Maniklal Majudar, Chandrika Prasad Yadav & Dove
Investments as they all pertained to principles of interpretation which
exercise would have been necessary for us only if the language was ambiguous.
It is also not necessary for us to extensively consider Dove Investment's case
as from the plain language of the scheme itself we find that it is not a
mandatory scheme in the sense being binding against the State Governments.
18. For the similar reasons we do not see as to why the judgment in T.P.
George's case is not applicable to the present case. A very serious argument
was raised by the learned counsel that the judgment stood overruled by
Yashpal's case. We do not think so.
Yashpal's case was on entirely different issue. There the controversy was
relating to a legislation creating number of universities. The question there
was as to whether the State Government could create so many universities and
whether the legislation creating such universities was a valid legislation,
particularly in view of the fact that the subject of higher education was
covered under Entry 66 of List I. Such is not the subject in the present case.
Here is a case where there is no legislation. Even if we take the scheme to the
higher pedestal of policy statement under Article 73 of the Constitution, the
scheme itself suggests to be voluntary and not binding and the scheme itself
gives a discretion to the State Government to accept it or not to accept it. If
such is the case, we do not see the relevance of the Yashpal's case in the
present matter. Once this argument fails, the reference to the other cases
which we have referred to earlier also becomes unnecessary.
In our considered opinion all those cases relate to the legislative powers
on the subject of education on the part of the State Government and the Central
Government. In the present case we do not have any such legislation for being
considered. Where the scheme itself gives the discretion to the State
Government and where the State Government uses that discretion to accept a part
of the scheme and not the whole thereof, it would be perfectly within the
powers of the State Government not to accept the suggestion made by the scheme
to increase the age of superannuation.
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 into doing so.
20. When we see the writ petitions which were filed before the High Court,
number of them have not even challenged the subsequent Resolution GOMS 208
dated 26.9.1999. Therefore, all the challenges were made in a haphazard manner
without even bothering to put the proper challenge. Again nobody even
challenged the constitutionality of the said Resolution to suggest that there
was a conflict between the said GOMS and any Central legislation as covered by
Entry 66 of List I. What was being examined in Yashpal's case was regarding the
validity of the State Legislation particularly when it was in conflict with the
Central Legislation though it was purported to have been made in Entry 25 of
the Concurrent List which in effect encroaches upon legislation including the
supporting legislation made by the Centre under Entry 23 of the Concurrent List
to give effect to Entry 66 of the Union List. This Court had held the same to
be void and inoperative. Since there is no conflict in the present case
whatsoever either apparent or latent, as such there is no question of
invalidating the said GOMS which has been challenged only in few of the writ
petitions. Even after the said GOMS came on the anvil, the petitioners who had
filed the writ petitions earlier have never bothered to amend their writ
petitions so as to challenge the said GOMS. However, we leave it at that
particularly when we have taken the view that there has been no conflict between
any of the Central Legislation or for that matter its policy and the said GOMS
or the policy of the State Government displayed from the same. A great stress
was laid on para 33 in Yashpal's case. We have absolutely no quarrel with the
proposition laid therein. In that paragraph this Court expressed that the whole
gamut of the university which will include teaching, quality of education being
imparted, curriculum, standard of examination and evaluation and also research
activity being carried on will not come within the purview of the State
Legislature on account of the specific entry on coordination and determination
of standards in institutions for higher education or research and scientific
and technical education being in the Union List for which Parliament alone is
competent. There can be really no dispute with this proposition but in the
first place there is nothing here to suggest that the Parliament has legislated
over any such subject and that the State Government's any legislation is in
conflict with any such legislation made by the Parliament. Further it is clear
from the letter dated 27.7.1998 that it is expressly left to the discretion of
the State Government to implement or not to implement the policy. Once there is
no question of any conflict we do not think that would have the effect of
overruling the T.P. George's case. Further, merely because in Yashpal's case
the observation are about the gamut of the University it does not necessarily
mean that the State Government will not be able to decide the age of retirement
particularly where it has the discretion to do so as also the legislative
powers. We must hasten to add that no provision of any Act has been challenged
in these writ petitions. All that the plea of the appellants in the original writ
petitions was that the State Government must implement the UGC recommendations
of the scheme and it was rightly found to be untenable.
21. In short we are of the opinion that the appeals have no merit and must
be dismissed. They are accordingly dismissed. The parties to bear their own