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ANTARYAMI ACHARYA & OTHERS V/S ODISHA UNIVERSITY OF AGRICULTURE & TECHNOLOGY & OTHERS, decided on Thursday, April 12, 2012.
[ In the High Court of Orissa, W.P.(C) NO.16742 of 2011. ] 12/04/2012
Judge(s) : L. MOHAPATRA & B. K. PATEL
Advocate(s) : G.A.R. Dora, G. Rani Dora, J.K. Lenka, Pratyusha, N.P. Parija, M.S. Rizvi & S.K. Rout. Opposite P. Acharya, S. Rath, B. Bhadra, B.K. Jena, Ashok Mohanty, A.G., J.K. Mishra, Saktidhar Das, Asst. Solicitor General of India, S.K. Purohit, A.K. Dash & R.C. Pattnaik, Ashok Mishra & S.C.Rath.
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    L.MOHAPATRA J:1. This batch of writ applications has been filed by the teachers working in different Universities and aided Colleges functioning within the State and the common question involved for adjudication is as to whether the Scheme prepared on recommendation made by UGC for revision of pay of teachers and equivalent cadres in Universities and Colleges following the revision of pay sctales of Central Government employees on the recommendation of the 6 h Central Pay Commission on fulfillment of terms and conditions mentioned therein can be modified and accepted by the State in part thereby declining to enhance the age of superannuation of such teachers from 60 to 65 as suggested in the Scheme.2. Consequent upon revision of pay scale of the Central Government employees on the recommendation of the 6th Central Pay Commission the Ministry of Human Recourses Development Department of Higher Education Government of India on the recommendation of the University Grants Commission formulated a Scheme under which pay of the teachers and equivalent cadres of the Central Universities and Colleges was revised with effect from 1.1.2006 with a stipulation that Central Government would bear the additional expenses to the extent of 80% whereas 20% expenses shall be borne by the State Government. This decision of the Ministry was communicated to the University Grants Commission on 31.12.2008.The UGC after receipt of the Scheme forwarded the same to the Education Secretaries of all the States requesting the respective State Governments to initiate immediate action so that implementation of the said Scheme may be in a time bound manner. This letter was written by the Secretary UGC on 28.2.2009. The Government of Orissa in the Agriculture Department vide resolution dated 5.2.2010 decided to implement the Scheme of revision of pay scales for the teachers of Orissa University of Agriculture and Technology (OUAT) with certain modifications. Similarly in respect of other Universities and aided Colleges decision was taken by the State Government to implement the Scheme with certain modifications. According to the petitioners though the State Government accepted the pay scales recommended it did not agree to enhance the age of superannuation from 60 to 65 as suggested in the Scheme. Therefore the question for adjudication is as to whether the Scheme has to be accepted as a composite one by the State Government without any modification or it can be accepted in part with modifications.3. In order to adjudicate the above dispute it is necessary to refer to certain provisions contained in the Scheme. Clause 8 (p) of the Scheme provides for applicability of the same. It is provided in the said Clause that the Scheme shall be applicable to teachers and other equivalent cadres of Library and Physical Education in all the Central Universities and Colleges thereunder and the Institutions Deemed to be Universities whose maintenance expenditure is met by the UGC. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in the said letter as well as Regulations to be framed by the UGC in that behalf. Universities implementing the Scheme shall be advised by the UGC to amend their relevant statutes and ordinances in line with the UGC Regulations within three months from the date of issue of the letter. Clause 8 (p) (v) further provides that the Scheme may be extended to Universities Colleges and other higher educational institutions coming under the purview of State legislatures provided State Governments wish to adopt and implement the Scheme subject to the terms and conditions such as the State Government opting for revision of pay shall meet the remaining 20% of the additional expenditure from its own sources and the financial assistance shall be provided for the period from 1.1.2006 to 31.3.2010. It also provides that the entire liability on account of revised of pay scales etc. of the University and College teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1.4.2010. Clause 8 (g) is the relevant clause on the basis of which all the writ petitions have been filed and therefore for convenience the said clause is quoted below:“Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above.”4. Undisputedly the said Scheme prepared by the Government of India Ministry of Human Resources Development Department of Higher Education was communicated by UGC to all the State Governments on 28.2.2009 and so far as State of Orissa is concerned the said Scheme was accepted and implemented. Though the State implemented the Scheme so far as it relates to the scale of pay as per the recommendation of the 6th Central Pay Commission it did not enhance the age of superannuation from 60 to 65 as provided in the Scheme on the ground that the service conditions of such teachers working in the Universities and the aided educational institutions are regulated by the State legislations.The State legislations governing the service conditions of the teachers working in the Universities and aided educational institutions provide for superannuation at the age of 60 whereas the Scheme provides the age of superannuation as 65. The relevant clause of the Scheme providing for the age of superannuation is quoted below:“(f) Age of Superannuation:(i) In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide the Department of Higher Education letter No.F.No.119/2006-U.II dated 23.3.2007 for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers the Central Government has already authorized the Central Universities vide Department of Higher Education D.O. letter No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of superannuation of Vice-Chancellors of Central Universities from 65 years to 70 years subject to amendments in the respective statutes with the approval of the competent authority (Visitor in the case of Central Universities).(ii) Subject to availability of vacant positions and fitness teachers shall also be re-employed on contract appointment beyond the age of sixty five years up to the age of seventy years. Re-employment beyond the age of superannuation shall however be done selectively for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit experience area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers.(iii) Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period and whereas there is no shortage in the categories of Librarians and Directors of physical Education the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education.”5. After the Scheme was prepared by the Government of India Ministry of Human Resources Development Department of Higher Education in December 2008 the UGC came forward with a Regulation on 30.6.2010 called “University Grants Commission (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 (hereinafter called the 2010 Regulations). The said Regulations cover the following category of teachers as provided under Regulation 1.1.1:“1.1.1 For teachers in the Faculties of Agriculture and Veterinary Science the norms/Regulations of Indian Council of Agriculture Research; for Faculty of Medicine Dentistry Nursing and AYUSH the norms/Regulations of Ministry of Health and Family Welfare Government of India; for Faculty of Education the norms/Regulations formulated in consultations with National Council of Teacher Education; for Engineering and Technology Pharmacy and Management/Business Administration the norms/Regulations formulated in consultations with All India Council for Technical Education; and the qualifications in the field of rehabilitation and special education at Degree PG Diploma and Masters level the norms/Regulations formulated in consultations with Rehabilitation Council of India shall apply.”Regulation 2.3.1 provides that the revised scales of pay and age of superannuation as provided in Clause 2.1.0 may also be extended to Universities Colleges and other higher educational institutions coming under the purview of the State Legislature and maintained by the State Governments subject to the implementation of the scheme as a composite one in adherence of the terms and conditions laid down in the MHRD notifications provided as Appendix I to the Regulation with all conditions specified by the UGC in the Regulations and other Guidelines. The age of superannuation is provided in Clause (f) of Regulation 4.1.0 which has already been quoted from the Scheme in the earlier paragraph.6. Shri G.A.R. Dora Shri R.K. Rath Shri S.P. Mishra and Shri B. Routray the learned Senior Counsel appearing on behalf of the petitioners submitted that the 2010 Regulations have been framed in exercise of power conferred under Clause (e) and (g) of sub-Section (1) of Section 26 of the University Grants Commission Act 1956. The Scheme prepared by the Government of India on recommendation of the UGC forms a part of the 2010 Regulations. Since the 2010 Regulations provide that the Scheme has to be accepted as a composite one without any modification therein it is not open for the State Government to accept the same in part. It was further contended by the learned Senior Counsel appearing for the petitioners that the Scheme not only provides for payment of salary in terms of the recommendation made by the 6th Central Pay Commission but also provides for enhancement of the age of superannuation up to the age of 65 years. Since the Scheme and the Regulations provide that it has to be accepted as a composite one the State Government cannot accept the shame in part by allowing the revised scales of pay in terms of the 6t Central Pay Commission recommendation and refuse to enhance the age of superannuation to 65 years on the ground that the teachers working under different Universities and aided Colleges are governed by the respective State legislations which provide the age of superannuation at 60 years. According to the learned Senior Counsel appearing for the petitioners the 2010 Regulations have been framed in terms of Entry 66 of the Union List of Seventh Schedule whereas the State legislations are framed under Entry 25 of the Concurrent List of Seventh Schedule. Article 254 of the Constitution takes care of a situation when there is inconsistency between laws made by Parliament and laws made by the Legislatures of States. It clearly provides that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List then subject to the provisions of clause (2) the law made by Parliament whether passed before or after the law made by the Legislature of such State or as the case may be the existing law shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy be void. In view of the above provision in the Constitution the 2010 Regulations having been framed in exercise of power under Section 26 of the University Grants Commission Act 1956 which is a Union subject any legislation made by the State under Entry 25 of the Concurrent List to the extent it is repugnant to the Legislation of the Parliament shall be treated to be void and therefore the age of superannuation prescribed in the State Legislation for these category of teachers at 60 years has to be treated as void and the State Government has no other option except enhancing the age of superannuation to 65 years having accepted the Scheme and implemented it in part. Reliance was placed by the learned counsel for the petitioners on some decisions on this issue with which we shall deal later on.7. The learned Advocate General Shri Pitambar Acharya appearing for the Orissa University of Agriculture & Technology and Shri B.S. Mishra appearing on behalf of the Berhampur University in reply submitted that the Scheme prepared by the Government of India in the Ministry of Human Resources Development Department of Higher Education is only a Scheme and the same can be accepted in part by the State Government. It was further contended by the learned Advocate General and other Counsel appearing for the Universities that even if the said Scheme has been made a part of the 2010 Regulations the State legislation provides that superannuation of these category of teachers shall be at the age of 60 and their service conditions are governed by those State legislations. Therefore they cannot claim for enhancement of the age of superannuation from 60 to 65 as provided in the Regulations of 2010. Referring to the Scheme it was also contended on behalf of the State and the Universities that under the Scheme and the 2010 Regulations the State Government has a discretion to either accept the Scheme as a composite one without modification or in part with modifications and accordingly while implementing the Scheme the State Government has rightly decided not to enhance the age of superannuation from 60 to 65. It was also contended that legislations enacted by the State governing the service conditions of the petitioners are under Entry 41 of List II of Seventh Schedule. Therefore the decisions relied upon by the petitioners have no application the Courts having not taken note of the same in the judgments.8. Undisputedly the Parliament is competent to enact law for coordination and determination of standards in institutions for higher education research and scientific and technical institutions under Entry 66 of the Union List of Seventh Schedule. Accordingly the Government of India have enacted the University Grants Commission Act 1956. Similarly the State Government can enact laws in relation to education including technical education medical education and Universities subject to the provisions of Entries 63 64 65 and 66 of the List I vocational and technical training of labour under Entry 25 of the Concurrent List and accordingly State have made legislations governing the conditions of service of teachers working in different Universities and aided Colleges.The 2010 Regulations have been framed in exercise of power conferred under Clause (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act 1956 and accordingly it can be said to be a legislation under Entry 66 of the Union List. The Scheme prepared by the Government of India referred to above forms a part of the 2010 Regulations. The 2010 Regulations provhide not only for payment of salary in terms of the recommendation of the 6t Central Pay Commission but also provide for enhancement of the age of superannuation to 65 years. The State legislations governing the service conditions of the teachers working in the Universities and the aided Colleges provide for superannuation at the age of 60 years. It was therefore contended by the learned Senior Counsel appearing on behalf of the petitioners that the age of superannuation provided by the State legislations are repugnant to the age of superannuation provided in the 2010 Regulations and under Article 254 of the Constitution of India the legislation made by the Parliament shall prevail over the State legislations to the extent the State legislation is repugnant.Similar cases came up for consideration before the Patna High Court Uttarakhand High Court Jharkhand High Court and the High Court of Karnataka. The learned Single Judges of Uttarakhand High Court Jharkhand High Court and the High Court of Karnataka accepted such argument advanced by the learned counsel appearing for the petitioners therein and held that since the 2010 Regulations provide the entire scheme to be accepted as a composite one the age of superannuation as provided in the Regulations has to be extended up to 65 years and accordingly amendments should be brought in the State legislations providing a lesser age of superannuation. However the judgment of the Hon’ble Single Judge of Karnataka High Court was reversed in the Writ Appeal and now the matter is pending before the Hon’ble Supreme Court for consideration.In the light of the above decisions relied upon by the learned counsel appearing for the petitioners the submissions of the learned Advocate General and the learned counsel appearing for different Universities have to be examined. It was contended by the learned Advocate General and the learned counsel appearing for different Universities that the Scheme can be accepted in part with modification as compliance of all the provisions contained in the Scheme or the Regulation is not mandatory. The learned Advocate General referred to the 2010 Regulation published in the gazette on 30.6.2010. Clause 3 of the said Regulation provides that if any University grants affiliation in respect of any course of study to any college referred to in sub-section (5) of Section 12-A in contravention of the provisions of the sub-section or fails within a reasonable time to comply with any recommendations made by the Commission under Section 12 or Section 13 or contravenes the provisions of any rule made under clause (f) of sub- section (2) of Section 25 or of any regulations made under clause (e) or clause (f) or clause (g) of sub-section (1) of Section 26 the Commission after taking into consideration the cause if any shown by the University for such failure or contravention may withhold from the University the grants proposed to be made out of the fund of the Commission. Referring to the said paragraph it was contended by the learned Advocate General that if the State contravenes the Regulations the only option left to the University Grants Commission is to withhold the grants proposed to be made out of the Commission funds. Therefore the provisions contained in the Regulations need not to be accepted in its entirety and an option is available to the State to accept the same in part with modifications. Reference was also made to clause 4.1.0 (p) (v) and it was contended that the Scheme may be extended to Universities Colleges and other higher educational institutions coming under the purview of State legislatures provided State Governments wish to adopt and implement the Scheme subject to the conditions enumerated in sub-clauses (a) to (g) of the said provision. The entire provision referred to is quoted below for convenience:“Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implementation of the revision.The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure from its own sources.Financial assistance referred to in sub-clause (a) above shall be provided for the period from 1.01.2006 to 31.03.2010.The entire liability on account of revision of pay scales etc. of university and college teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1.04.2010.Financial assistance from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1.01.2006.State Governments taking into consideration other local conditions may also decide in their discretion to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.01.2006; however in such cases the details of modifications proposed shall be furnished to the Central Government and Central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Government(s).Payment of Central assistance for implementing 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 by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above.”As is evident from clause (v) (g) payment of Central assistance for implementing 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 by the UGC by way of Regulations and other guidelines shall be implemented by the State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned therein. Referring to this clause it was contended by the learned Senior Counsel appearing for the petitioners that it was open for the State Government to either ignore the Scheme or implement the Scheme in its entirety as a composite one. It was not open to the State Government to implement the Scheme in part. The learned Advocate General and the learned other Counsels appearing for different Universities submitted that even on the face of the above provision the option is still left to the State Government to implement the Scheme in part.9. We would now refer to the judgments relied upon by the learned counsel appearing for both the parties deciding the issue involved. The first decision relied upon by the learned counsel appearing for the petitioners is the case of Annamalai University represented by Registrar v. Secretary to Government Information & Tourism Department and others reported in 2009 STPL (LE) 41562 SC. The question to be determined before the Hon’ble Supreme Court in the said case was interpretation and application of the University Grants Commission (the minimum standards of instructions for the grant of the first degree through non-formal/distance education in the faculties of Arts Humanities Fine Arts Music Social Sciences Commerce and Sciences) Regulation 1985 framed by the University Grants Commission in exercise of power under Section 26 of the University Grants Commission Act 1956 vis--vis the provisions of the Indira Gandhi National Open University Act 1985. On Examination of the 1985 Regulations framed by the University Grants Commission and the provisions contained in the Open University Act the Hon’ble Supreme Court came to hold that to the extent the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List it would be void and inoperative. Reliance was also placed on another decision of the Hon’ble Supreme Court in the case of Professor Yashpal and another v. State of Chhattisgarh and others reported in (2005) 5 Supreme Court Cases 420. In the said judgment the Hon’ble Supreme Court was examining the provisions of the University Grants Commission Act 1956 and the provisions contained in Chhattisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Adhiniyam 2002. A public interest litigation had been filed under Article 32 of the Constitution for declaring certain provisions of the said Adhiniyam 2002 as ultra vires and also for quashing of the notifications issued by the State of Chhattisgarh in exercise of power conferred by Section 5 of the said Adhiniyam for establishing various Universities. The Hon’ble Supreme Court referring to an earlier decision of the same Court observed that education including universities was a State subject until by the Forty-second Amendment of the Constitution in 1976 that entry was omitted from the State List and was taken into Entry 25 of the Concurrent List. But as already pointed out the Act essentially intended to make provisions for the coordination and determination of standards in universities and is squarely covered under Entry 66 of List I. While legislating for a purpose germane to the subject covered by that entry and establishing a University Grants Commission Parliament considered it necessary as a regulatory measure to prohibit unauthorized conferment of degrees and diplomas as also use of the word ‘university’ by institution which had not been either established or incorporated by special legislation. The Hon’ble Supreme Court ultimately held Sections 5 and 6 of the Adhiniyam as ultra vires and consequently quashed the notifications notifying the Universities and further directed that all such universities shall cease to exist. The Patna High Court in the case of Dr. Nawal Kishore Choudhury v. Rajendra Agricultural University & others vide CWJC No.13450 of 2010 and in the case of Dr. Brij Bihari Singh and others v. Rajendra Agricultural University and others vide CWJC No.13455 of 2010 held in paragraph-19 of the judgment that the selective or piecemeal implementation of the directives is not permissible since those directions are composite whole and have to be implemented as a package. If there is reluctance on the part of the State on this count then intervention will be required by the Court. After holding as above the Court issued a direction directing the State of Bihar as well as the University to take immediate steps to ensure enhancement of the age of superannuation of the employees like the petitioners therein of the Agricultural University to 65 years. While deciding thus reference was also made by the Court to the decision of the Jharkhand High Court as well as the decision rendered by the Hon’ble Single Judge of Karnataka High Court. Similar view was expressed by Jharkhand High Court by Hon’ble Single Judge in the case of Dr. Maheshwar Tiwary and Mr. Shashi Kishore Narayan Vs. The State of Jharkhand in W.P. (S) No.363 of 2010 and a Division Bench of the Uttarakhand High Court at Nainital in the case of Pant University Teachers Association v. Chancellor Govind Ballabh Pant University of Agriculture & Technology in Writ Petition No.52 of 2010. Undisputedly the decision of the Hon’ble Single Judge of the Karnataka High Court was reversed in appeal.When on one hand the above High Courts decided the case in favour of the petitioners therein holding that the State Government has no other option except accepting the 2010 Regulation as a composite one a Division Bench of Karnataka High Court and some other High Courts took a different view.10. A Division Bench of the Karnataka High Court at Bangalore in a batch of Writ Appeals reversing the judgment of the Hon’ble Single Judge held in paragraph-19 of the judgment that while adherence to the revised pay scales prescribed by the University Grant Commission is mandatory on all State Governments increase of age of superannuation was intendedly optional and only recommendatory. Therefore whatever be the wisdom behind the reluctance of the Government of Karnataka for adherence to the suggested age of superannuation it is beyond the province of the Court to issue a writ for its observance. A Division Bench of the Kerala High Court in a similar case also did not accept the contention raised by the learned counsel appearing for the petitioners in this batch of cases and held that when the Central assistance is conditional it is for the State Government to decide as a matter of policy which is best for the State i.e. whether to adopt the recommendation as a package in full and complete or to take the consequence for non-compliance with part of the recommendations. This is within the realm of the Government policy and it is not for this court to recommend to the Government which course it should adopt. Regulation of the UGC and package of incentives by the Central Government are only recommendatory or advisory in nature. It is not within the powers of the Court to direct the State Government to increase the retirement age in line with the recommendation of the UGC to 65. In a similar batch of cases a Division Bench of the Punjab and Haryana High Court at Chandigarh also took a similar view while relying upon a decision of the Hon’ble Supreme Court in the case of B. Bharat Kumar and others v. Osmania University and others reported in (2007) 11 Supreme Court Cases 58. In paragraph- 20 of the judgment it was held that the service conditions regarding age of retirement prescribed in statutory service rules under Proviso to Article 309 of the Constitution or under a statute cannot be deemed to have been amended by virtue of Scheme dated 31.12.2008 except with regard to “Centrally funded higher and technical education institutions coming under the purview of the ministry in order to overcome the shortage of teachers”. A Division Bench of High Court of Andhra Pradesh in a batch of similar writ applications also declined to grant the relief of enhancement of superannuation to 65 not only relying on the case of the Hon’ble Supreme Court in B. Bharat Kumar and others v. Osmania University and others but also some other decisions of the Hon’ble Supreme Court. In the case of B. Bharat Kumar v. Osmania University all the petitioners therein 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. and their common prayer was that their age of superannuation which had been fixed either at 58 or 60 years as the case may be should be raised to 62 years and such claim was made on the basis of a communication dated 27.7.1998 prescribing revision of pay scales of teachers in Universities and Colleges following the revision of pay scales of Central Government employees on the recommendations of the Fifth Central Pay Commission. The said letter while providing for pay revision also provided for enhancement of age of superannuation to 65 years under a Scheme. It was contended before the Hon’ble Supreme Court that the decision of the Government of India introducing the Scheme was mandatory and binding vis-a-vis the Colleges/Universities as the Central Government was providing financial assistance to the State in implementing the Scheme of revision of pay scales. While deciding the above question the Hon’ble Supreme Court referred to the Scheme and held that it is for the University Grants Commission to extend the benefit of the Scheme or not to extend the benefit of the Scheme depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the same. That is a matter entirely between the State Government on the one hand and the University Grants Commission on the other. The teachers cannot claim as a matter of right that they are entitled to retire on attaining the age of 60 years.This decision cited by the learned Advocate General was sought to be distinguished on the ground that the Hon’ble Supreme Court in the said case was examining the Scheme which had not been formed a part of any Regulation and therefore it is distinguishable. In para-15 of the judgment the Court held in the following manner:“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 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”.It is therefore clear from the above that even if the communications made in the said letter are 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. This decision has been relied upon by the Division Bench of Punjab and Haryana High Court as well as the High Court of Andhra Pradesh.11. In the light of the above decisions and on examination of the Scheme as well as the 2010 Regulation we find that the Scheme is not mandatory and it is open for the State Government to accept the Scheme or not to accept the same. Even if the State Government accepts the Scheme in part the consequence provided in the Regulations is after notice to show cause the UGC may withhold the University grants proposed to be made out of the fund of the Commission. Alternatively also we find that the clause relating to age of superannuation in the Scheme as well as in 2010 Regulation provides that in order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide Department of Higher Education letter dated 23.3.2007 for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. It further provides that consequent on upward revision of age of superannuation of teachers the Central Government has already authorized the Central Universities vide Department of Higher Education D.O. letter dated 30.3.2007 to enhance the age of superannuation of Vice-Chancellors of Central Universities from 65 years to 70 years subject to amendments in the respective statutes with the approval of the competent authority. The other two conditions contained in the said clause nowhere prescribes that the entire clause relating to age of superannuation is relatable to the teachers working in the Universities and aided Colleges functioning within the State under enactments made by the State Government under Entry 25 of the Concurrent List of Seventh Schedule. In other words even if the State Government decides to implement the Scheme as a composite one the age of superannuation prescribed in the Scheme as well as in the 2010 Regulations only relate to the teachers working in the Central Universities and has no application to the teachers working in the Universities and aided Colleges functioning within the State as their service conditions are regulated by the respective enactments made by the State under Article 309 of the Constitution prescribing the age of superannuation at 60. Even in the case of B. Bharat Kumar v. Osmania University the Hon’ble Supreme Court held that even if the scheme is heightened to the pedestal of a legislation a policy decision under Article 73 of the Constitution has to be read as it appears or as the case may be and UGC also did not introduce the element of compulsion vis--vis the State Government and the universities. In view of what has been held by the Division Benches of different High Courts referred to above and the observation of the Hon’ble Supreme Court in the case of B. Bharat Kumar v. Osmania University (supra) we find no reason to agree with the submissions of the learned counsel appearing for the petitioners.12. The above view taken by us is also fortified in view of the stand taken by the UGC in the counter affidavit filed by it in W.P.(C) No.17747 of 2011 after the judgment was reserved in this batch of cases. In paragraphs- 24 and 25 of the said counter affidavit it is clearly stated that enhancement of age of superannuation up to 65 years is for the teachers of the Central Universities and the Colleges affiliated thereto which are being funded and maintained by the University Grants Commission/MHRD Government of India. In case of teachers of other universities it is open to the concerned State Governments or other appropriate authority to adopt the same. It is also specifically stated that in case of an employee of a University/College which is not funded and maintained by the University Grants Commission the age of superannuation as notified by the MHRD vide letter dated 23.3.2007 is not applicable but shall be open for the State Government or other competent authority to adopt the decision or to take any other decision as considered appropriate in respect of the age of superannuation of teachers in higher and technical educational institutions under their purview with the approval of their appropriate competent authority. This stand also appears to have been taken by the UGC in cases filed in some of the High Courts and reference to the same has been made by those High Courts in their judgments. In view of such stand taken by the UGC we find that the grounds taken in the writ petition have no substance.13. We accordingly find no merit in any of the writ petitions and dismiss the same being devoid of merit. In some cases this Court while issuing notice had granted stay and those interim orders stand vacated from today. The petitioners who continued to work even after the age of superannuation by virtue of interim orders shall be entitled to salary for the period they worked by virtue of the interim orders.B.K. PATEL J.14. I have had the privilege of going through the judgment of my brother Hon’ble Shri Justice L. Mohapatra with whom I fully agree. However I am propelled by certain other reasons which support the stand of the State that acceptance of the scheme under 2010 Regulations as a whole or as a part is voluntary and not mandatory to supplement it.15. In the counter-affidavit of the UGC clear stand has been taken at paragraphs 24 and 25 that dispute with regard to enhancement of age of superannuation up to 65 years under Regulation 2010 is for the teachers of the Central Universities and the Colleges affiliated thereto which are being funded and maintained by the UGC/ Government of India. In case of an employee of a University/ College which is not funded and maintained by the UGC same is not applicable. Rather it shall be open for the State Government or competent authority to adopt the decision or to take any other decision as considered appropriate in respect of the age of superannuation of teachers in higher and technical educational institutions under their purview with the approval of their appropriate competent authority.16. Presumably in taking the stand that stipulation regarding enhancement of age of superannuation is not mandatory for the State institutions the UGC and for that matter the Central Government were conscious of the Entry 41 of the State List under Seventh Schedule of the Constitution which reads:“State Public Services; State Public Service Commission”Under the Entry State Legislature has plenary power to legislate on State Public Service. It is not disputed that age of retirement is a condition of service. The State Legislature derives its competence not only from Article 309 but also from Entry 41 of List II of the Seventh Schedule. Indeed within its allotted sphere that is with respect to any of the matters enumerated in List II of the Seventh Schedule the State Legislature has by virtue of Article 246 (3) exclusive plenary powers of legislation. It has been held by the Supreme Court in I.N. Saksena -vrs.- State of Madhya Pradesh : AIR 1976 SC 2250:“32. It is well settled that the entries in these legislative lists in Sch.VII are to construe in their widest possible amplitude and each general word used in such entries must be held to be comprehend ancillary or subsidiary matters. Thus considered it is clear that the scope of Entry 41 is wider that the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309.”17. Teachers in State Universities and other educational institutions are receiving UGC scale of pay and members of State Public Service. Therefore there cannot be any directive which would have the effect of encroaching upon Legislative competence of State in respect of Entry 41 of the State List. UGC can simply issue advisories to the State to amend its enactments enhancing the age of retirement. In this context decision of Hon’ble Supreme Court in N. Lakshmana Rao and Ors.-vrs.- State of Karnataka and Ors. : AIR 1975 SC 1646 and decisions of Karnataka High Court in P. Javaryigowda -vrs.- State of Karnataka and Ors. : 1984 LAB. I.C. NOC 56 and in Laxman Rajappa Garag and Ors. -vrs.- The State of Karnataka and another : 1975 LAB. I.C. 799 as well as of Allahabad High Court in Virendrapal Singh -vrs.- State of U.P. and Ors. : 1978 LAB. I.C. 7 in M/s. Poysha Industrial Company Ltd. Ghaziabad -vrs.- State of Uttar Pradesh and ors. : 1985 LAB. I.C. 1683 may also refer to.18. Moreover grant of financial assistance to State to meet additional burden incurred for payment of salary at the UGC scale under the scheme is for a temporary period up to 30.3.2010.Therefore on the basis of a grant for a limited period State could not be saddled with the burden of enhanced age of superannuation resulting in incurring of additional financial burden by the State on its own beyond the scheme period.19. As has been pointed out by the Division Bench of Kerala High Court in M.M.Mathai -vs- Elizabeth Xavier and others (R.P.No.190 of 2011(B) a batch of other petitions) the retirement age of teachers in the colleges in Kerala is fifty five. State of Kerala took the stand that problem of unemployment does not justify enhancement of age of retirement. It has been held by Kerala High Court:-“Before parting with the subject we feel there is merit in the contention of the State Government in declining to accept UGC recommendation to increase the retirement age at a stroke from 55 to 65. If this is done the consequence would be that most of the qualified Post-graduates and Ph.D. holders waiting for employment in teaching faculties of colleges will be out of employment in Kerala for another 10 years. In the course of these 10 years these people will either seek some other employment or may even remain unemployed for such long period and in either case there will be substantial erosion in their R.P.190/2011 & amp;conn.14 quality and capacity to take up teaching profession in colleges thereafter. Further increase in retirement age by 10 years will be a disincentive and discouragement o those waiting for joining Post-graduate courses and for Research Degrees for the fear of long term unemployment on account of want of slots for employment for 10 years.”20. No data has been placed before us to draw an inference that standard of higher education is directly proportional to the age of superannuation of teachers. Standard of education in Kerala has not been shown to be inferior to that in other States in which age of superannuation is higher than fifty five. Scheme of the Constitution has been pragmatic in leaving conditions of service of the members of State Public Service to the discretion of the State taking into account the exigencies of local conditions.21. Therefore the legal framework under the Constitution as well as the objective and purpose of the scheme lead to the only conclusion that the stipulation with regard to enhancement of age of retirement under the scheme is not and cannot be mandatory. There is no merit in any of the writ petitions.Writ petitions dismissed.