W.P.(C). Nos. 17442 of 2022 & 17769 of 2022, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 WP(C) NO. 17442 OF 2022** ## **PETITIONERS:** 1 PROF.(DR) SUNNY KURIAKOSE AGED 56 YEARS, PROFESSOR OF CHEMISTRY, VICE PRINCIPAL & HEAD OF THE DEPARTMENT ST. THOMAS COLLEGE, PALAI, ARUNAPURAM.P.O. PALAI, KOTTAYAM - 686 574 2 PROF.(DR) ANIL KUMAR S PROFESSOR & HEAD OF THE DEPARTMENT, NSS HINDU COLLEGE, PERUNNAI.P.O., CHANGANACHERRY - 686 102 3 PROF.(DR) E.KRISHNAN NAMBOODIRI VICE PRINCIPAL, PROFESSOR & HEAD RESEARCH & P.G. DEPARTMENT OF ENGLISH, SANATANA DHARMA COLLEGE, ALAPPUZHA-688 003 4 PROF. (DR) TESSYMOL MATHEW PROFESSOR OF CHEMISTRY, RESEARCH & P.G. DEPARTMENT OF CHEMISTRY, ST. GEORGES COLLEGE, ARUVITHURA KOTTAYAM - 686 122 5 PROF. (DR) SHINY PALATY PROFESSOR OF CHEMISTRY & PRINCIPAL, BHARATA MATA COLLEGE, SEAPORT-AIRPORT ROAD, THRIKKAKARA, KOCHI - 682 021 6 PROF. (DR) LIZZY MATHEW PROFESSOR AND PRINCIPAL-IN-CHARGE, ST.TERESA'S COLLEGE (AUTONOMOUS) ERNAKULAM, PARK AVENUE, KOCHI - 682 011 7 PROF.(DR) V.L.PUSHPA PROFESSOR AND HEAD OF THE DEPARTMENT, DEPARTMENT OF CHEMISTRY, SREE NARAYANA COLLEGE, KOLLAM-691 001 8 PROF. (DR) B.BEENA, PRINCIPAL & PROFESSOR K.S.M.D.B COLLEGE, SASTHAMKOTTA - 690 521 BY ADVS. SREEDHAR RAVINDRAN M.R.SABU LAKSHMI RAMADAS APARNA RAJAN W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 2 : ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 696 001 2 MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM, - 686 560 REPRESENTED BY ITS REGISTRAR 3 UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM - 695 034, REPRESENTED BY THE REGISTRAR 4 UNIVERSITY GRANTS COMMISSION, BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002 REPRESENTED BY ITS SECRETARY BY ADVS. SRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL SRI.SURIN GEORGE IPE, SC, MAHATMA GANDHI UNIVERSITY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI.S.KRISHNAMOORTHY, SC, UGC SRI.K.B.RAMANAND-SPL.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2022, ALONG WITH WP(C).17769/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 3 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944** **WP(C) NO. 17769 OF 2022** ## **PETITIONERS:** 1 THE COUNCIL OF PRINCIPALS OF COLLEGES IN KERALA REGISTRATION NO.21/71/CALICUT), REPRESENTED BY ITS GENERAL SECRETARY DR.GIREESH KUMAR G.S PRINCIPAL, HENRY BAKER COLLEGE, MELUKAVU, KOTTAYAM - 686 652 2 DR.A.BIJU, PRESIDENT, COUNCIL OF PRINCIPALS OF COLLEGES IN KERALA (REGISTRATION NO.21/71/CALICUT) PRINCIPAL, MES COLLEGE, MARAMPILLY, ALUVA, ERNAKULAM - 683 107 BY ADVS. SREEDHAR RAVINDRAN M.R.SABU LAKSHMI RAMADAS APARNA RAJAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 696 001 2 UNIVERSITY GRANTS COMMISSION, BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002 REPRESENTED BY ITS SECRETARY 3 MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM, - 686 560 REPRESENTED BY ITS REGISTRAR 4 UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM - 695 034, REPRESENTED BY THE REGISTRAR 5 UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635 REPRESENTED BY ITS REGISTRAR 6 KANNUR UNIVERSITY, MANGATTUPARAMBU CAMPUS,KANNUR-670567, REPRESENTED BY ITS REGISTRAR. W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 4 : BY ADVS. SRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL SRI.S.KRISHNAMOORTHY, SC, UGC SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY SRI.K.B.RAMANAND – SPL.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2022, ALONG WITH WP(C).17442/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 5 : ## **C.R.** ## **DEVAN RAMACHANDRAN, J.** ## **========================= W.P.(C).Nos. 17442 of 2022 & 17769 of 2022 ========================== Dated this the 8th November, 2022** ## **JUDGMENT** Once again, an attempt is made by the petitioners in these cases to obtain a declaration that the age of superannuation for members of Faculty of various affiliated Colleges in Kerala in the Private Sector, is 62 years and not 56, as is presently stipulated, relying upon the provisions of the applicable Regulations of the University Grants Commission (“UGC” for short). 2. Before I proceed to detail the essential facts involved in these cases, I must record that most of the issues − within the gamut of the contentions as reflected in the pleadings − have been considered by the Hon'ble Supreme Court in **Dr.J. Vijayan & others vs. The State of Kerala & others (Civil Appeal No. 5037 of 2022 arising out of S.L.P.(C) No. 24287 of 2018).** I will state presently the importance of this judgment, after the essential facts are noticed. 3. Among the two writ petitions above − which have been heard together − W.P.(C).No.17769 of 2022 has been filed by an Association of Principals of Colleges in Kerala, along with its W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 6 : President; while W.P.(C).No.17442 of 2022 has been filed by certain individuals, who are working as Professors and Principals in Private Colleges, affiliated the various Universities. 4. The common case of all the petitioners in these cases is that the applicable Regulations of the UGC, namely, “Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010”, ('UGC Regulations 2010' hereinafter for brevity) mandates that the scales of pay and other service conditions − including the age of superannuation − in Universities, Colleges and other Higher Educational Institutions, coming under the purview of the State Legislature and maintained by the State Governments, will be as per Clause 2.1.0 of it, which in turn, refers to Appendix I thereof. They point out that, as per Clause (f) of the said Appendix, the age of superannuation is 65; and thus, assert that, when the Government of Kerala concededly adopted the said Regulations, they were obligated to do so compositely, and not in “bits and pieces”, as has been done by them, while they issued their Order, bearing No.G.O.(P) No.58/2010/H.Edn dated 27.03.2010 − a copy of which is on record as Ext.P3 in W.P(C).No. 17769 of 2022. W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 7 : 5. The petitioners contend that the aforementioned Order − which specifies that the age of superannuation of Teachers in Kerala shall “continue as at present” (sic) − is in conflict with the “UGC Regulations, 2010”; and hence liable to be declared as void by this Court. As a corollary, they pray that the Government of Kerala be directed to implement the “UGC Regulations, 2010”, in its full and thus modify the age of superannuation as being at least 62 years, if not 65 years, as per the aforesaid Regulations. 6. I have heard Sri.P.Ravindran − learned Senior Counsel, instructed by Smt.Lakshmi Ramdas − learned counsel appearing for the petitioners in these two cases; Sri.S.Krishnamoorthy − learned Standing Counsel for the UGC; Sri.P.C.Sasidharan − learned Standing Counsel for the Calicut University and Sri.K.B.Ramanand − learned Special Government Pleader appearing for the official respondents.. 7. It is inevitable that there can be any cause for the petitioners only if they are able to show that the facts projected by them in these cases are distinguishable or at variance with the one noticed by the Hon'ble Supreme Court in **Dr.J.Vijayan (supra)** . This is because, even in the said case, a contention was raised that the age of retirement in Universities or other Educational W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 8 : Institutions in a State, cannot be different from that stipulated under the “UGC Regulations, 2010”; but it was concluded therein that the said Regulations had been modified, through a subsequent letter / proceedings issued by the Government of India, within the ambit of Section 20 of the University Grants Commission Act, 1956 ('the UGC Act' for short), thus leaving the age of superannuation to be decided by the Governments of the State as they may please. 8. Sri.P.Ravindran - learned Senior Counsel, began his submissions, pointing out that the aforementioned order / proceedings of the Government of India has been produced as Ext.P4 along with W.P.(C).No.17769 of 2020; and asserted that it was not a statutory direction issued by them to the UGC within the purlieus of Section 20 of the “UGC Act”, but only a letter addressed to the Secretaries of Education of the Governments in various States. He argued that, therefore, this “letter” can never be construed as operating to amend Appendix I of the “UGC Regulations, 2010”; and therefore, that the original stipulations in the said Regulations relating to superannuation, will certainly came to play. 9. Sri.P.Ravindran then made an alternative argument that, even assuming that Ext.P4 can be found to be of some worth, the W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 9 : stipulation therein by the Government of India to the effect that: _“the condition of enhancement of the 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”_ (sic), only means that the payment of their share is not linked to the age of superannuation. He thus contended that, even conceding for argument that the contents of this letter are taken to be the directions under Section 20 of the “UGC Act”, it would not affect the case of the petitioners, because they are only asking that their age of superannuation be declared to be 62, as it was prior to this letter being issued by the Government of India. 10. As his final argument, Sri.P.Ravindran – learned Senior Counsel, submitted that, when the “UGC Regulations” thus stipulates the age of retirement as being 62, the impugned order of the Government of Kerala is in flagrantly in conflict with its prescriptions and therefore, liable to be declared void to such extent. 11. In response, however, Sri.S.Krishnamoorthy- learned Standing Counsel for the UGC, submitted that **Dr.J.Vijayan (supra)** , has already found and declared that the “UGC W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 10 : Regulations, 2010”, had been modified by the letter / proceedings of the Government of India, bearing No.F.1-7/2010-U.II dated 14.08.2012 (Ext.P4 in W.P.(C).No.17769 of 2022), and hence that the stipulation of the age of superannuation therein has been withdrawn. He argued that this is manifest because, said letter perspicuously says that this condition has been withdrawn, bearing in mind _“that the question of issue of age of retirement has been left to the State Governments to decide at their level”_ (sic). He then proceeded to say that thus, when there is no age of superannuation stipulated in the “UGC Regulations, 2010” after 14.08.2012, the impugned order of the Government of Kerala, cannot be found fault with, because it only states that they have taken a policy decision to continue the same at the present level namely, as governed by the provisions of the Kerala Service Rules (KSR) - which is the result of an exercise under Article 309 of the Constitution of India. He concluded, reiterating that the age of superannuation is within the policy making realm of individual State Governments; and therefore, that the UGC has no role _qua_ it, nor any comment to make on it. 12. Sri.P.C.Sasidharan - learned Standing Counsel for the Calicut University, took me extensively through **Dr.J.Vijayan** W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 11 : **(supra)** , to argue that none of the issues raised in these writ petitions are _res integra_ and that they have been fully covered by the holdings of the Hon'ble Supreme Court. He pointed out that the question whether there is any conflict between the impugned order of the Government of Kerala and the “UGC Regulations, 2010”, has already been affirmatively found to the negative by the Hon’ble Supreme Court; and therefore, that the contention of the petitioners, that the age of superannuation must be as per the said Regulations − when it stipulates no such − can only be found to be untenable and without any legs to stand on. 13. Sri.K.B.Ramanand − learned Special Government Pleader, adopted the afore submissions of Sri.P.C.Sasidharan and Sri.S.Krishnamoorthy; however, adding that, in **Jagdish Prasad Sharma & Others Vs. State of Bihar & Others [(2013) 8 SCC** **633],** the Hon’ble Supreme Court has found that a state like Kerala has its own problems, which are localized and stand on a different footing. He submitted that when the levels of unemployment in Kerala are still very high, the enhancement of the age of superannuation is not one that can be acceded to, and that no such decision has ever been taken by the Government; consequently, that the impugned order is irreproachable. He reaffirmed that the W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 12 : order of the Government of Kerala, is not in conflict with the “UGC Regulations, 2010”, because the latter Regulations do not now contain any stipulations relating to the age of superannuation - it being left to be decided by the State Governments, within their decision making competence. 14. The afore narrative of the syllogistic arguments of the rival parties render it apodictic that the real question in this case is whether there is an age of superannuation prescribed in the “UGC Regulations, 2010”; and if so, whether there is divergence in the manner in which it is provided in the impugned Government of Kerala order, adopting the same. 15. I do not think that there could be any case against the contention of the petitioner, that the law is now well settled that when the “UGC Regulations” are adopted by a State, it has to be done compositely and not in “bits and pieces”. But the crucial question is whether there has been any such, while the impugned order of the Government of Kerala had been issued. 16. An answer to this would become possible only if the contention regarding the “UGC Regulations, 2010”, is properly understood. 17. There is no doubt that the Regulations of the UGC are W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 13 : guided − at least with respect to the questions of policy − by the directions to be issued to it by the Central Government, under Section 20 of the UGC Act. It is precisely within this power that the Government of India issued their letter, bearing No.1-32/2006U.II/U.I (i) dated 31.12.2008, which the UGC then adopted as part of its Regulations, including it as Appendix I. Obviously, therefore, when Clause 2.1.0 of “UGC Regulations, 2010”, provided that the scales of pay and other service conditions, including the age of superannuation, in Central Universities and other Institutions maintained and / or funded by the UGC, shall be strictly in accordance with the decision of the Central Government, as contained in Appendix I, the stipulations therein certainly apply to such institutions. This provision was then extended to Universities, Colleges and other Higher Educational Institutions, within the purview of the State Legislature and maintained by the State Governments, as per Clause 2.3.1 thereof. 18. Up to this level, there can be no controversy. 19. The crucial question is whether, Appendix I of “UGC Regulations, 2010”, had undergone a change, consequent to the decision of the Government of India reflected in their proceedings, which has been produced as Ext.P4 in W.P.(C).No.17769 of 2022. W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 14 : 20. In this regard, I notice from **Dr.J.Vijayan (supra)** , that the Hon’ble Supreme Court has already found that the “UGC Regulations” had undergone a change, consequent to the decision of the Government of India mentioned above and therefore, an argument on the contrary is tenuous. 21. Interestingly, in the judgment of this Court in W.A.Nos.734 and 854 of 2016, from which **Dr.J.Vijayan (supra)** arose, a learned Division Bench answered an analogous argument impelled before it saying: _“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 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”._ This view of the learned Division Bench has been upheld in **Dr.J.Vijayan (supra)** , and therefore, I cannot answer to the contrary, it being completely binding on me; and in any case, since I am in full agreement with the same. 22. That being said, it is obvious that “UGC Regulations, 2010”, had undergone a change and therefore, the surviving W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 15 : question is whether the impugned order of the Government of Kerala runs variance to the same. 23. It is needless to say that, on the deletion of the stipulation of the age of superannuation from “UGC Regulations, 2010”, as seen above, it then came to be left to the State Governments concerned, to fix it as per their policy decisions; and the Government of Kerala took the conscious view to maintain it at the present level, which is governed by the provisions of the “KSR”. 24. In such view of the matter, inbubitably, there is no conflict between the impugned order of the Government of Kerala, vis-a-vis the “UGC Regulations, 2010”; and axiomatically, therefore, the contentions of the petitioner to the contrary deserve only be repelled. 25. As a cascading effect to the afore finding, the further contention, that the impugned order of the Government of Kerala implements “UGC Regulations, 2010”, in “bits and pieces”, would also fail. In the afore circumstances, I dismiss these writ petitions; however, without making any order as to costs. ## **Sd/DEVAN RAMACHANDRAN JUDGE** anm W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 16 : ## **APPENDIX OF WP(C) 17769/2022** ## PETITIONERS' EXHIBITS |Exhibit P1|TRUE COPY OF THE RELEVANT EXTRACT OF UGC| |---|---| ||REGULATION, 2010| |Exhibit P2|TRUE COPY OF THE COMMUNICATION OF THE| ||HUMAN RESOURCES DEVELOPMENT DEPARTMENT TO| ||THE SECRETARY UGC DATED 23.03.2007| |Exhibit P3|TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)| ||NO.58/2010/H.EDN DATED 27.03.2010| |Exhibit P4|TRUE COPY OF THE LETTER DATED 14.08.2012| ||NO.F.1-7/2010-U.H ISSUED BY THE| ||GOVERNMENT OF INDIA, MINISTRY OF HUMAN| ||RESOURCES DEVELOPMENT| |Exhibit P5|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.10257/2016 DATED 28.3.2016| |Exhibit P6|TRUE COPY OF THE JUDGMENT IN W.A.| ||NO.734/2016 DATED 13.12.2017| |Exhibit P7|TRUE COPY OF THE REPRESENTATION SUBMITTED| ||BY THE PETITIONERS BEFORE THE HON'BLE| ||MINISTER FOR HIGHER EDUCATION DATED| ||8.11.21| |Exhibit P8|TRUE COPY OF THE REPRESENTATION SUBMITTED| ||BY THE PETITIONERS BEFORE THE GOVERNOR| ||DATED 28.1.11| |Exhibit P9|TRUE COPY OF THE REPRESENTATION SUBMITTED| ||BY THE PETITIONERS BEFORE THE HON'BLE| ||CHIEF MINISTER DATED 11.3.2022| |Exhibit P10|TRUE COPY OF THE RELEVANT EXTRACT OF THE| ||UGC REGULATIONS, 2018 DATED 18.07.2018| |Exhibit P11|TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)| ||NO.18/2019/HEDN DATED 29.06.2019| |RESPONDENTS' EXHIBITS|| |Exhibit R2(a)|TRUE COPY OF THE MHRD LETTER NO.F.1-| ||7/2010-U.II DT. 14-8-2012.| W.P.(C) Nos. 17442 of 2022 & 17769 of 2022 : 17 : ## **APPENDIX OF WP(C) 17442/2022** |PETITIONERS'|EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF THE RELEVANT EXTRACT OF UGC| ||REGULATION, 2010| |Exhibit P2|TRUE COPY OF THE COMMUNICATION OF THE| ||HUMAN RESOURCES DEVELOPMENT DEPARTMENT TO| ||THE SECRETARY UGC DATED 23.03.2007| |Exhibit P3|TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)| ||NO.58/2010/H.EDN DATED 27.03.2010| |Exhibit P4|TRUE COPY OF THE LETTER DATED 14.08.201| ||NO.F.1-7/2010-U.H ISSUED BY THE| ||GOVERNMENT OF INDIA, MINISTRY OF HUMAN| ||RESOURCES DEVELOPMENT| |Exhibit P5|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.10257/2016 DATED 28.3.2016| |Exhibit P6|TRUE COPY OF THE JUDGMENT IN W.A.| ||NO.734/2016 DATED 13.12.2017| |Exhibit P7|TRUE COPY OF THE REPRESENTATION SUBMITTED| ||BY THE PETITIONERS 1, 2, 4 TO 6 & 8| ||BEFORE THE GOVERNMENT DATED 07.05.2022| |Exhibit P8|TRUE COPY OF THE RELEVANT EXTRACT OF THE| ||UGC REGULATIONS, 2018 DATED 18.07.2018| |Exhibit P9|TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)| ||NO.18/2019/HEDN DATED 29.06.2019|