W.A. Nos. 734 and 854 of 2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939 WA.No. 734 of 2016 () IN WP(C).10257/2016 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 10257/2016 of HIGH COURT OF KERALA APPELLANT(S)/PETITIONERS: ------------------------ 1. DR.J.VIJAYAN ASSOCIATE PROFESSOR OF COMMERCE, BJM GOVT. COLLEGE, CHAVARA. 2. DR. JAMES T.J., ASSOCIATE PROFESSOR OF ZOOLOGY, S.H.COLLEGE, THEVARA, KOCHI-13. 3. DR.BIJI JAMES, HEAD AND ASSOCIATE PROFESSOR, DEPARTMENT OF COMMERCE, MAR IVANIES COLLEGE, THIRUVANANTHAPURAM-15 4. DR. LAILA BEEVI, PRINCIPAL, BJM GOVT. COLLEGE, CHAVARA, KOLLAM. 5. M. RATHI AMMAL, ASSOCIATE PROFESSOR IN BOTANY, BJM GOVT. COLLEGE, CHAVARA, KOLLAM DISTRICT-691 583. 6. DR. BENZIDAR V. ASSOCIATE PROFESSOR OF MATHEMATICS, BJM GOVT. COLLEGE, CHAVARA, KOLLAM DISTRICT-691 583. 7. ABDUL AYUB A., ASSOCIATE PROFESSOR & HOD DEPARTMENT OF BOTANY, IQBAL COLLEGE, PERINGAMMALA, TRIVANDRUM, PIN-695 563. 8. DR.P.K. ABOOBACKER, VICE PRINCIPAL AND HEAD OF DEPARTMENT OF URBAN GOVT. COLLEGE, MALAPPURAM, PO MUNDUPARAMBA-676 509. W.A. NO. 734 OF 2016 2. 9. DR.P.V. SASI, DEPUTY DIRECTOR, O/O THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION ZONAL OFFICE, THRISSUR. 10. P.K. BABU, ASSOCIATE PROFESSOR IN CHEMISTRY, GOVERNMENT POLYTECHNIC COLLEGE, NEDUMKANDOM, IDUKKI DISTRICT. 11. GEETHA M.S HEAD OF THE DEPARTMENT HINDI, ST.PAUL'S COLLEGE, KALAMASSERY, MG.UNIVERSITY. 12. DR. SARASU T.N., PRINCIPAL, GOVT. VICTORIA COLLEGE, PALAKKAD, CALICUT UNIVERSITY. 13. DR. JOSE AUGUSTINE, HEAD OF THE DEPARTMENT OF ENGLISH, NEWMAN COLLEGE, THODUPUZHA. BY ADVS.SMT.INDU SUSAN JACOB SRI.LIJU.V.STEPHEN RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 3. THE SECRETARY, DEPARTMENT OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM, KERALA-695 033. 4. THE UNIVERSITY GRANTS COMMISSION (UGC) BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002, REPRESENTED BY ITS SECRETARY. 5. THE KERALA UNIVERSITY, REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE, PALAYAM, THIRUVANANTHAPURAM. W.A. NO. 734 OF 2016 3. 6. THE MAHATMA GANDHI UNIVERSITY, UNIVERSITY REPRESENTED BY ITS REGISTRAR, P.D. HILLS PO, ATHIRAMPUZHA, KOTTAYAM. 7. THE CALICUT UNIVERSITY, REPRESENTED BY ITS REGISTRAR, THENHIPALAM, MALAPPURAM DISTRICT, KERALA-673 635. R1 to R3 BY ADDL. A.G. SRI.K.K.RAVEENDRANATH R4 BY SRI.S.KRISHNAMOORTHY, CGC R5 BY ADV. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R6 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R6 BY ADV. V.N. RAJPPAN, SC FOR MG UNIVERSITY R7 BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSITY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2017, ALONG WITH WA. 854/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 734 OF 2016 ## APPENDIX APPELLANT'S ANNEXURES: ## NIL RESPONDENTS' ANNEXURES: ANNEXURE A1 : A TRUE COPY OF THE LIST OF TEASCHERS IN SANATANA DHARMA COLLEGE, ALAPPUZHA RECEIED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A2 : A TRUE COPY OF THE LIST OF TEASCHERS NIRMALA COLLEGE MUVATTUPUZHA RECEIVED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A3 : A TRUE COPY OF THE LIST OF TEACHERS ST. JOSEPH'S COLLEGE FOR WOMEN, ALAPPUZHA RECEIVED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A4 : A TRUE COPY OF THE LIST OF TEACHERS ST. PAUL'S COLLEGE KALAMASSERY RECEIVED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A5 : A TRUE COPY OF THE LIST OF TESACHERS IN COCHIN COLLEGE, COCHIN RECEIVED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A6 : A TRUE COPY OF THE LIST OF TEACHERS IN ST. THOMAS COLLEGE, THRISSUR RECEIVED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A7 : A TRUE COPY OF THE LIST OF TEACHERS IIN AQUINAS COLLEGE, EDACOCHIN RECEIVED UNDER RIGHT TO INFORMATION ACT. ANNEXURE A8 : A TRUE COPY OF INFORMATION REGARDING GOVERNMENT ARTS AND SCIENCE COLLEGES RECEIVED UNDER RIGHT TO INFORMATION ACT. C.R. ## K. SURENDRA MOHAN & MARY JOSEPH, JJ. - - - - - - - - - - - - - - - - - W.A. Nos. 734 & 854 of 2016 - - - - - - - - - - - - - - - - - Dated this the 13[th] day of December, 2017 ## JUDGMENT ## Surendra Mohan, J. W.A. No. 734 of 2016 is filed against the judgment of the learned Single Judge dated 28.3.2016 in W.P.(C) No. 10257 of 2016. W.A. No. 854 of 2016 is filed against a separate judgment dated 6.4.2016 dismissing W.P.(C) No. 13779 of 2016, for the reasons stated in the judgment dated 28.3.2016 referred to above. Since the issues involved are common, both appeals are considered and disposed of together. The appellants in both the appeals had approached this Court contending that they were entitled to continue in service until they attained the age of 65 years as stipulated by the UGC Regulations On Minimum Qualifications For Appointment of Teachers And Other Academic Staff In W.As.734 & 854/2016 2 Universities And Colleges And Measures For The Maintenance Of Standards In Higher Education, 2010 (hereinafter referred to as 'UGC Regulations' for short). As per the Kerala Service Rules ('KSR' for short) applicable to the appellants, the retirement age is 56 years. 2. The appellants are Professors, Associate or Assistant Professors working in affiliated aided and Government Colleges in the State of Kerala. They were all approaching the age of superannuation which is 56 years as per the KSR. According to them, they are entitled to the benefit of the UGC Regulations under which, the retirement age of teachers has been enhanced and fixed at 65 years. The learned Single Judge has negatived the said contention. They are therefore in appeal challenging the said judgment. 3. According to Adv. P.V. Jayachandran, who appears for the appellants in W.A. No. 854 of 2016, Regulation 8(f) of the UGC Regulations, 2008 (evidenced by Ext.P6 in W.P. 3 W.As.734 & 854/2016 (C) No. 13779 of 2016) has enhanced and fixed the age of superannuation of all teachers at 65 years. Regulation 8(p) provides that the Scheme shall be applicable to teachers and other equivalent cadres of Library and Physical Education. Universities implementing the Scheme are to amend the relevant Statutes and Ordinances in line with the UGC Regulations within three months. The said provision further goes on to provide that the Scheme should be extended to Universities, Colleges and Higher Educational Institutions coming under the purview of State Legislatures, provided the State Government wishes to adopt and implement the Scheme. Ext.P9, the UGC Regulations, 2010 has provided that the revised scales of pay and age of superannuation as provided therein are to be extended to Universities, Colleges and other Higher Educational Institutions coming under the purview of the State Legislature and maintained by the State Government, subject to implementation of the Scheme as a composite one. W.As.734 & 854/2016 4 Therefore, according to the counsel, it was incumbent on the State Government to have implemented the Scheme as a composite one, enhancing the age of superannuation also. For the above reason, it is contended that, a direction to enhance the age of superannuation of the petitioners also is necessary to be issued by this Court. Reliance is placed on Ext.P11 judgment of the Full Bench of this Court dated 23.2.2016 particularly paragraphs 14 and 16 wherein it has been held that once implemented, the UGC Regulations are mandatorily to be complied with by the Universities in the State. Reliance is placed on paragraph 17 of the said judgment to contend that, irrespective of whether the University Acts or the Statutes framed thereunder are suitably amended or not, the UGC Regulations would apply. 4. According to Adv. Indu Susan Jacob, at present there is a disparity in the age of retirement of College Teachers as well as University Teachers in the State of Kerala. W.As.734 & 854/2016 5 While University Teachers retire only at the age of 60, College Teachers retire at the age of 56. The said disparity results in discrimination and is required to be suitably remedied. It is further contended that, the enactments prescribing the age of retirement of teachers are made in exercise of the power under Entry 25 List III, Schedule VII of the Constitution. The UGC Regulations are framed under the UGC Act. The UGC Regulations are laid before the Parliament and therefore have the status of a Statute. Being a law made by the Centre, it is contended that, the UGC Regulations would prevail over the State enactments. Reliance is placed on the judgment of the Full Bench of this Court dated 23.2.2016 already referred to above to contend that, since the UGC Regulations have been adopted, they would bind. Reference is made to the UGC Regulations produced as Ext.P1 in W.P.(C). No. 10257 of 2016 and Ext.P9 in W.P.(C). No. 13779 of 2016 to contend that a piecemeal implementation of the Scheme as done by the State W.As.734 & 854/2016 6 Government is impermissible and that, the Scheme has to be adopted as a composite one. The counsel has placed reliance on the decision of the Apex Court in Himachal Pradesh State Electricity Board v. Somdutt Uppal ((1993 Supp. (2) SCC 415), particularly paragraph 3 thereof to contend that, letters cannot override the provisions of statutory enactments. The above decision is cited in the context of the contention of the learned Additional Advocate General that as per letter dated 14.8.2012 of the Ministry of Human Resources Development (MHRD), the regulation enhancing the age of superannuation to 65 years could be treated as withdrawn. Counsel also places reliance on the decision in P. Suseela v. University Grants Commission ((2015) 8 SCC 129) in support of her contention regarding the supremacy of the UGC Regulations. On the basis of the above contentions, the counsel for the petitioners seek the issue of appropriate directions for their continuance in service until the attainment of 65 years, after setting aside the judgment W.As.734 & 854/2016 7 appealed against. 5. The contentions of the counsel for the petitioner are stoutly opposed by the learned Additional Advocate General, who represents the State. The Addl. Advocate General has taken us through the provisions of the UGC Regulations to point out that a discretion has been conferred on the State Government by the provisions thereof, to decide whether to implement them or not. The said discretion was conceded to the State Governments, recognizing the fact that implementation of the provisions of the UGC Regulations involved heavy financial burden. Such financial burden could be taken up only after taking stock of the financial condition of the State. The fact that the financial commitments would be permanent and recurring, required a proper evaluation of various facts and circumstances peculiar to the State of Kerala. Since enhancement in retirement age was proposed taking into account the scarcity of qualified teachers in many of the other W.As.734 & 854/2016 8 States in India, it was not necessary for the State of Kerala to have adopted the same considering the availability of well qualified teachers in abundance. Taking into account all the above aspects, the State had, while issuing Ext.P10 Government Order, stipulated that the age of retirement of teachers shall continue to remain unaltered. It is contended that the said stand cannot be found fault with on any count. 6. The Standing Counsel for the University has adopted the contentions of the learned Additional Advocate General and has placed reliance on the decision in George v. State of Kerala (1992 Supp (3) SCC 191) to contend that, it was not open to the teachers to claim a right to continue in service beyond the age of superannuation stipulated by the State Government. The learned counsel has also placed reliance on the judgment of another Division Bench of this Court in Mathai M.M. v. Elizabeth Xavier (2011 (2) K.L.T. 468) to contend that, the UGC does not have any power to enhance W.As.734 & 854/2016 9 the retirement age of the teaching staff of colleges affiliated to Universities. 7. Adv.S.Krishnamoorthy, who appears for the UGC, points out that in view of Section 20 of the UGC Act, the UGC was bound to follow the directions issued by the Central Government. Though the UGC has while framing the Regulations of 2010 stipulated that the age of retirement of teachers be raised to 65 years, as per the letter of MHRD dated 14.12.2010, the condition regarding implementation of the said stipulation has been withdrawn. In view of the binding nature of the directions issued by the Central Government, UGC is not in a position to insist on implementation of the condition regarding enhancement of the retirement age. It is therefore contended that, the writ petition has been rightly dismissed by the learned Judge. 8. In reply, counsel for the appellants points out that even going by the MHRD letter dated 14.8.2012 the W.As.734 & 854/2016 10 condition regarding enhancement of retirement age of teachers has been withdrawn only for the limited purpose of seeking reimbursement of the enhanced salary paid to the teachers under the UGC Scheme. All other stipulations are to continue without change. Therefore, it is contended that, the UGC Scheme continues to apply, as a composite one. 9. Heard. We have been taken through the judgment of the Apex Court in Jagdish Prasad Sharma v. State of Bihar ((2013) 8 SCC 633). Having gone through the said judgment in extenso, we are of the opinion that most of the issues raised in these cases are concluded against the appellants by the said judgment. We shall therefore examine the said judgment in some detail. Paragraph 2 of the said judgment shows that the question there was whether the Regulations framed by the UGC had a binding effect on educational institutions run by the different States and even under State enactments. Speaking for the Court, Altamas W.As.734 & 854/2016 11 Kabir, C.J. has considered the various provisions of the UGC Act and has noted that in keeping with their statutory character, the Rules and Regulations framed by the Central Government and the UGC are required to be placed before each house of the Parliament, while in session, for a total period of 30 days. The judgment further takes note of the fact that Section 20 of the UGC Act makes it mandatory for the UGC to be guided by the directions issued by the Central Government on questions of policy relating to national purposes while discharging its functions under the Act. Therefore, it cannot be disputed that the UGC Regulations are clothed with statutory character and that the UGC is bound to follow the directions issued by the Central Government in view Section 20 of the UGC Act. The Special Leave Petitions, writ petitions and Transfer Cases disposed of by the Supreme Court were cases filed by Professors and Teachers of Colleges seeking implementation of the enhancement of retirement W.As.734 & 854/2016 12 age recommended by the UGC. In some of the cases before the Supreme Court, the State Governments had brought in amendments to the University Acts enhancing the age of superannuation. The contentions that arose for consideration of the Supreme Court in the said cases have been set out in paragraph 19 of the judgment which reads as under: “19. ....The focus is, therefore, on whether in view of the Scheme mentioned in the aforesaid letter of 31.12.2008, not only the Central Universities and Colleges, which were bound by the UGC Regulations, but the different States and institutions situated therein would be bound to accept the Scheme, as set out in the said letter of 31.12.2008. 20. As has been mentioned hereinbefore, the Scheme envisaged in the letter dated 31.12.2008, in no uncertain terms, indicates that in case the State Governments opted to revise the pay scales of teachers and other equivalent cadres covered under the Scheme, financial assistance from the Central Government to such State Governments would be to the extent of 80% of the additional expenditure involved in the implementation of the revision. The Scheme also indicates that the State W.As.734 & 854/2016 13 Government which opted for revision of pay scales would have to meet the remaining 20% of the additional expenditure from its own sources. The third consideration is that such financial assistance would be provided for the period from 01/01/2006 to 31/03/2010, and that, thereafter, the entire liability on account of revision of pay scales of the University and college teachers would have to be taken over by the State Government with effect from 01/04/2010. The fourth and the most important condition stipulated by the Commission was that payment of Central assistance for implementing the Scheme was subject to the conditions that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the UGC, by way of Regulations and other guidelines, would have to be implemented by the State Government and Universities and Colleges coming under their jurisdiction, as a composite scheme without any modification (emphasis supplied) except in regard to the date of implementation and scales of pay mentioned hereinabove. This entailed and included the enhancement of age of such teachers to 65 years. In other words, along with the enhancement of pay, of which 80% would be borne by the Commission, the other W.As.734 & 854/2016 14 condition of the Commission was that the age of the teachers would be enhanced to 65 years, and that the balance 20% of the expenditure would have to be borne by the State from its own resources till 31/03/2010, and, thereafter, the entire burden of expenditure would have to be borne by the State.” The disputes had arisen when the States sought reimbursement of 80% of the expenses incurred by them in implementing the pay revision that was recommended, without enhancing the age of superannuation. The Central Government took the stand that since the Scheme was not given effect to in its composite form, it was not possible to reimburse 80% of the expenses involved. We notice from paragraph 24 of the said judgment that, a set of cases before the Supreme Court related to the State of Kerala. The State of Kerala had implemented the pay scales recommended by the UGC without enhancing the age of superannuation. It was contended that, the situation in the State of Kerala was W.As.734 & 854/2016 15 different from other States since there were a large number of qualified and eligible persons who were unemployed. If the retirement ages of those who are in service were enhanced to 62 years or 65 years, the people who were waiting for employment would become frustrated. Eligible Candidates would also be denied employment indefinitely. 10. We further notice that, reference was made in the said judgment to the Government Orders evidenced herein by Exts. P9 and P10 in W.P.(C) No. 13779 of 2016 and the contentions advanced against them. It is profitable to extract the said portion, which reads as under : “29. During the course of his submissions, Mr. Venugopal referred to the order issued by the Government of Kerala in the Higher Education © Department on 10/12/2010 for implementation of the UGC Regulations 2010 on minimum qualifications for appointment of teachers, other academic staff in Universities and colleges and measures for the maintenance of standards in higher education. The Government Order further provided that the matter had W.As.734 & 854/2016 16 been examined in detail and the Government was, therefore, pleased to approve and to implement the Regulations as such. The Regulations, therefore, were to come into force from 18/09/2010 on the date of their publication in the Government of India Gazette. All the Universities were directed to incorporate the UGC Regulations in their Statutes and Regulations, within one month from the date of the Order. 30. Mr. Venugopal joined issue with the contents of paragraph 6 of the said Order, which provides that where there were any provisions in the Regulations inconsistent with the provisions in the Government Order, read as the first paper, the said Government Order would override the provisions in the Regulations to the extent of such inconsistency. Mr. Venugopal submitted that executive directions cannot override the statutory provisions and it was the statutory provisions which would prevail over such executive directions. Consequently, the UGC Regulations would, in these cases, prevail over the Orders of the Executive government. In this connection, Mr. Venugopal referred to the decision of this Court in Paluru Ramkrishnaiah v. Union of India, wherein relying on two earlier decisions of this Court in B.N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan, a W.As.734 & 854/2016 17 Constitution Bench of this Court in Ramachandra Shankar Deodhar v. State of Maharashtra, held that: (Ramachandra Shankar Deodhar case, ((1974 (1) SCC 317), SCC p.330, para 17) “17. ..... in the absence of legislative rules, it was competent to the State Government to take a decision in the exercise of its executive power under Article 162 of the Constitution.” Therefore, an executive instruction could make provision only for a matter which was not covered by the Rules and such executive instructions could not override any of the provisions of the Rules. Accordingly, the learned counsel submitted that the Government Order dated 10.12.2010 was liable to be struck down.” (Emphasis supplied) 11. In the context of the above contentions, it was contended on behalf of the State of Kerala that the State Governments were not under any compulsion to adopt the UGC Scheme. Therefore, it was up to the State Governments to adopt the scheme either in its entirety or subject to suitable modifications. Since a discretion to implement the UGC W.As.734 & 854/2016 18 Scheme was conferred on the State Government, there is no infirmity in the manner in which the Scheme was implemented, without enhancing the retirement age. A contention was put forward relying on Section 20 of the UGC Act that the UGC was bound by the directions issued by the Central Government under the said provision on a question of policy relating to national purpose. Whether a question is or not a question of policy relating to national purpose, the decision of the Central Government was final. The Central Government itself had by its letter dated 14.8.2012 clarified the position that the age of superannuation was exclusively within the domain of the policy making powers of the State Government and that the condition regarding enhancement of age of superannuation may be treated as withdrawn. In view of the above, the contention was that the Scheme itself was not a composite one. The Court has noticed that, though the State of Kerala had implemented the revised pay scales, it had not adopted W.As.734 & 854/2016 19 ## the enhancement in retirement age that was proposed. 12. In the above context, paragraphs 67 and 68 of the said judgment being relevant are also extracted below: “67. One of the common submissions made on behalf of the Respondents was whether the aforesaid scheme would automatically apply to centrally-funded institutions, to State universities and educational institutions and also private institutions at the State level, on account of the stipulation that the scheme would have to be accepted in its totality. As indicated hereinbefore in this judgment, the purport of the scheme was to enhance the pay of the teachers and other connected staff in the State universities and educational institutions and also to increase their age of superannuation from 62 to 65 years. The scheme provides that if it was accepted by the concerned State, the UGC would bear 80% of the expenses on account of such enhancement in the pay structure and the remaining 20% would have to be borne by the State. This would be for the period commencing from 1[st] January, 2006, till 31[st] March, 2010, after which the entire liability on account of revision of pay-scales would have to be taken over by the State Government. Furthermore, financial assistance from the Central Government would W.As.734 & 854/2016 20 be restricted to revision of pay-scales in respect of only those posts which were in existence and had been filled up as on 1[st] January, 2006. While most of the States were willing to adopt the Scheme, for the purpose of receiving 80% of the salary of the teachers and other staff from the UGC which would reduce their liability to 20% only, they were unwilling to accept the scheme in its composite form which not only entailed acceptance of the increase in the retirement age from 62 to 65 years, but also shifted the total liability in regard to the increase in the pay-scales to the States, after 1[st] April, 2010. 68. Another anxiety which is special to certain States, such as the State of Uttar Pradesh and Kerala, has also come to light during the hearing. In both the States, the problem is one of surplusage and providing an opportunity for others to enter into service. On behalf of the State of Kerala, it had been urged that there was a large number of educated unemployed youth, who are waiting to be appointed, but by retaining teachers beyond the age of 62 years, they were being denied such opportunity. As far as the State of U.P. is concerned, it is one of job expectancy, similar to that prevailing in Kerala. The State Governments of the said two States were, therefore, opposed to the adoption of the UGC Scheme, W.As.734 & 854/2016 21 although, the same has not been made compulsorily applicable to the universities, colleges and other institutions under the control of the State authorities.” The Apex Court considered the issues in the light of the contentions noted above and has held that though the power of the UGC to frame Regulations cannot be disputed, such Regulations cannot alter any of the State enactments made in exercise of the power under Article 309 of the Constitution. The relevant portion of the judgment where the above finding has been arrived at, is extracted hereunder: “69. ..... The question that assumes importance is whether in the process of framing such Regulations, the Commission could alter the service conditions of the employees which were entirely under the control of the States in regard to State institutions? 70. The authority of the Commission to frame Regulations with regard to the service conditions of teachers in the centrally-funded educational institutions is equally well established. As has been very rightly done in the instant case, the acceptance of the scheme in its composite form has been left to the discretion of the State W.As.734 & 854/2016 22 Governments. The concern of the State Governments and their authorities that the UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by the UGC relate to Entry 66 List I of the Constitution in the Seventh Schedule to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under Entry 25 of List III, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any central legislation.” (Emphasis supplied) The Court has thereafter gone on to observe that, in the case of the present Regulations, discretion has been conferred on the State Governments to accept the Scheme. It is in exercise of the said discretion that the Scheme has been implemented by the States. Referring to the contentions peculiar to the State of Kerala, the Court has in paragraph 72 of its judgment W.As.734 & 854/2016 23 ## held as follows: “72. As far as the States of Kerala and U.P. are concerned, they have their own problems which are localised and stand on a different footing from the other states, none of whom who appear to have the same problem. Education, now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by the UGC. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission.” (Emphasis supplied) 13. The Court has thereafter considered the further question as to whether the action of the State Government in implementing the Scheme only in part, without enhancing the age of superannuation was proper or not. Paragraph 78 which deals with the above aspect reads as under: “78. We are then faced with the situation where a composite scheme has been framed by the UGC, whereby W.As.734 & 854/2016 24 the Commission agreed to bear 80% of the expenses incurred by the State if such scheme was to be accepted, subject to the condition that the remaining 20% of the expense would be met by the State and that on and from 1[st] April, 2010, the State Government would take over the entire burden and would also have enhanced the age of superannuation of teachers and other staff from 62 to 65 years. There being no compulsion to accept and/or adopt the said scheme, the States are free to decide as to whether the scheme would be adopted by them or not. In our view, there can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. The case of those petitioners who have claimed that they should be given the benefit of the scheme dehors the responsibility attached thereto, must, therefore, fail.” (Emphasis supplied) On the basis of the above findings, all the petitions were dismissed by the Supreme Court negativing the contentions of the teachers. W.As.734 & 854/2016 25 14. It is in the light of the above authoritative pronouncement of the Apex Court, that the present contentions of the counsel for the appellants are required to be considered. The contention that the UGC Regulations were made in exercise of the power under Entry 66 List I Schedule VII of the Constitution, while the State enactments are made under Entry 25 List III Schedule VII and for the said reason, in the event of repugnancy, the Central enactment would prevail, has to fail for more reasons than one. In the first place, the State Laws prescribing the age of retirement of teachers are made in exercise of the power under Article 309 of the Constitution. The Apex Court has found in Jagdish Prasad Sharma (supra) that such enactments would remain unaffected by the stipulations contained in the UGC Regulations. Secondly, it has been further held by the Court in the said decision that the UGC does not have any power to stipulate the service conditions of teachers. Therefore, such power is W.As.734 & 854/2016 26 vested entirely in the State. Thirdly, obviously in recognition of the above position of law the UGC Regulations have conferred a discretion on the State Governments to decide whether to implement the Regulations or not. In view of the conferment of the discretion as noted above, no question of repugnancy arises in these cases. Therefore, we do not think it necessary to consider the above contention in any further detail. 15. On the next contention that the Scheme under the UGC Regulations, 2010 has to be accepted in full as a composite one and that adoption of the Scheme without enhancing the retirement age of teachers was bad, we find that the said issue has been concluded by the Supreme Court. Though a similar contention was put forward in Jagdish Prasad Sharma (supra) with respect to the Government Order dated 10.12.2010, the same did not find favour with the court. The said Government Order evidenced herein by Ext.P10 in W.A. W.As.734 & 854/2016 27 ## No. 854 of 2016 provides at paragraph 6 as follows: “6. Government are also pleased to order that where there are any provision in the Regulations inconsistent with the provisions in the G.O. read as 1[st] paper above, those provisions in the G.O. would override the provisions in the Regulations to the extent of such inconsistency.” Reference No.1 in the said Government Order is to G.O.(P) No.58/2010/H.Edn. dated 27.3.2010 (Ext.P8 in W.A. No. 854 of 2016). It is the said Government Order that is directed to prevail as per Clause 6 extracted above. It has been ordered by the said Government Order that the age of superannuation shall continue as at present. In the above context, it is necessary to notice that as per letter No. F.I-7/2010-U.II dated 14.8.2012 of the MHRD (a copy of which has been handed over to us by the counsel in Court), it has been clarified that the issue regarding age of retirement has been left to the decision of the State Governments. Paragraph 5 that deals with the above aspect is extracted hereunder for convenience W.As.734 & 854/2016 28 ## of reference: “5. Bearing in mind that the question of enhancement of age of retirement is exclusively within the domain of the policy making power of the State Governments, the issue of age of retirement has been left to the State Governments to decide at their level. The condition of enhancement of age of superannuation to 65 years as mentioned in this Ministry's letter dated 31.12.2008 may be treated as withdrawn, for the purpose of seeking reimbursement of central share of arrears to be paid to State University and College teachers. However, the other conditions as mentioned in the letters cited above shall continue to apply.” (emphasis supplied). Though a contention has been put forward by the counsel for the appellants that, the condition has been withdrawn for the purpose of seeking reimbursement of the central share of arrears alone, we are not prepared to accept the same in view of the opening sentence in the said clause which declares in unambiguous terms that enhancement of age of retirement is exclusively within the domain of the powers of the State W.As.734 & 854/2016 29 Government and that for the said reason, the issue of age of retirement has been left to the State Governments to decide at their level. 16. The other contention that remains to be addressed is whether the disparity in the retirement age of University teachers and teachers of affiliated Colleges offend the principle of equality enshrined in Article 14 of the Constitution of India. We find no substance in the said contention for the reason that the service conditions of teachers of Government Colleges and affiliated Colleges are governed by the provisions of Regulations or Rules framed by the Government. The retirement age of University teachers are fixed under the provisions of the University Act applicable and the Statutes framed under the provisions thereof. Therefore, the disparity in the retirement age of the said two classes of teachers would not offend the principle of equality. We are supported in this view by the judgment of the Apex W.As.734 & 854/2016 30 Court in George v. State of Kerala (1992 Supp (3) SCC 191 = 1992 KHC 57) The qualifications, method of appointment, nature of duties as well as other service conditions of the two classes of teachers are different. In view of the above, the said contention is rejected. 17. In the view that we have taken above, we do not consider it necessary to refer to or discuss the other decisions on which reliance has been placed. The question of fixing the retirement age of teachers is essentially a matter of policy. The said policy would have to be adopted by the State Government taking into account a number of factors. As contended before us by the learned Additional Advocate General, the State of Kerala does not suffer from a dearth of qualified candidates to be appointed as teachers. There are a large number of qualified teachers, including Ph.D. Holders who are waiting for employment. They are persons trained in advanced methods of instruction and teaching techniques. At W.As.734 & 854/2016 31 the same time, teachers like the appellants who are approaching retirement are not persons who could be described as aged or infirm. They are in their prime of life, endowed with rich experience both in teaching as well as in guiding research projects. The wisdom of the decision to superannuate them at such a prime point of time in their lives is also questionable. A decision can be taken only by balancing both the above aspects as well as other relevant factors that may require to be taken into account. Such an informed decision would have to be taken by the law makers and not by courts. As at present, the UGC Regulations, 2010 cannot affect the State laws governing the age of superannuation. UGC Regulations have in recognition of the above position granted a discretion to the State to take a decision with respect to the manner of implementation of the Regulations. Accordingly, the State Government has decided not to enhance the age of retirement. We notice that, a similar W.As.734 & 854/2016 32 claim for enhancement in retirement age has been considered by another Division Bench of this Court and rejected in Mathai M.M. v. Elizabeth Xavier (2011(2) K.L.T. 468). The said decision is also binding on us. For the foregoing reasons, we are in agreement with the view adopted by the learned Single Judge in dismissing the writ petitions. The appeals fail and are accordingly dismissed. Sd/JUDGE K. SURENDRA MOHAN Sd/MARY JOSEPH JUDGE sb