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K.L. SODHI V/S UNION TERRITORY, CHANDIGARH THROUGH ITS ADMINISTRATOR, PUNJAB RAJ BHAWAN, SECTOR 6, CHANDIGARH & OTHERS, decided on Wednesday, November 23, 2016.
[ In the Central Administrative Tribunal Chandigarh Bench, O.A No. 060/00498 of 2015. ] 23/11/2016
Judge(s) : SANJEEV KAUSHIK, MEMBER (J) & MS. RAJWANT SANDHU, MEMBER (A)
Advocate(s) : Applicant Sharma. R1 to R3 & R7, Arvind Moudgil, R4, K.K. Thakur, R6, Rakesh Verma, , R5, None.
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    Oral Order:Sanjeev Kaushik Member J.1. By means of the present O.A filed under Section 19 of the Administrative Tribunals Act 1985 the applicant seeks issuance of direction to the respondent nos. 1 to 3 to implement the notification dated 31.12.2008 issued by respondent no. 4. Union of India Ministry of Human Resource and Development and allow the applicant to continue in service upto the age of 65 years by enhancing the age of superannuation from 58 years to 65 years in Government Colleges.2.   The facts which led to filing the present O.A are that the applicant joined the Education Department Chandigarh Administration as Lecturer (Geography) on 27.08.1985 and was posted at Government College of Education Sector 20-D Chandigarh. During his service carrier he was assigned various duties under administration and presently the applicant is working as Associate Professor (Geography)/Dean at Government College of Education Sector 20 D. It is the case of the applicant that service conditions of the applicant are to be governed by rules for corresponding post as framed by Punjab Government. As per the Punjab Civil Services Rules Vol. (I) Part I retirement age of an employee was 58 years which was subsequnently enhanced to 60 years by making amendment in Rule 3.26 particularly clauses (a) and (b) whereby they allow extension in service beyond the date of retirement for a period not exceeding two years after getting an option from the concerned government employee. Since Punjab Rules are ispo facto applicable to the employees working on the corresponding posts in Chandigarh Administration the same benefit of extension of service was to be granted to the employees of Chandigarh Administration. It is the case of the applicant that when the respondents did not extend the benefit of two years of extension of service he was compelled to approached this court by filing O.A No. 854/CH/2015 which was allowed vide order dated 27.08.2015 where by his prayer was allowed and Chandigarh Administration allowed him to continue beyond the age of superannuation of 58 years by adding two years i.e. 60 years. It is the case of the applicant that Government of India issued a notification dated 31.12.2008 inter-alia increasing the age of retirement/superannuation of the college teachers upto 65 years therefore above notification issued by Government of India applies to the employees of Chandigarh Administration and the applicant is to be allowed to continue in service upto the age of 65 years i.e. till 30.06.2020. It is submitted that the applicant also submitted a representation requesting the Chandigarh Administration to adopt the Government of India notification dated 31.12.2008 by increasing the age of retirement of college teachers to 65 years but the respondents did not take any decision then he was compelled to knock the door of this court. Hence present O.A.3.   The respondents have contested the claim of the applicant by filing a separate reply. Chandigarh Administration while filing the reply contested the claim of the applicant by taking an objection that notification dated 31.12.2008 issued by Government of India which the applicant seeks to be enforced for the employees working with Administration relates to Central Educational Institutes/Centrally funded institutions/Central Universities therefore same cannot be made applicable qua employees working under Chandigarh Administration. It is also submitted that by virtue of provisions under Punjab State reorganization Act and subsequent notification dated 13.01.1992 the rules framed by Punjab Government are Ispo-facto applicable to the corresponding posts of Chandigarh Administration and once they have their own set of rules which govern the relevant field i.e. age of retirement then the notification issued by the Government of India will not Ispo facto would be applicable without its adoption by the State Government. In State of Punjab date of superannuation of college teachers which was 58 years in terms of 3.26 of Punjab Civil Services Rule Volume 1 Part 1 subsequently amended and extended by giving benefit of two years of extension in service i.e. upto the age of 60 years which was also allowed in favour of the employees working in Chandigarh Administration. Since the Punjab Government has not taken any decision to increase the age of superannuation for their employees working in colleges by enhancing the age to 65 years as per notification dated 31.12.2008 issued by Government of India therefore same cannot be applicable qua employees working with Chandigarh Administration like applicant. They have taken their stand in para 1 of the written statement which needs to be reproduced as under:-“That the contents of this para are admitted to the extent that the applicant is permanent UT employee and at present working as Associate Professor in Government College of Education Sector 20 Chandigarh. That in reply to contents of this para it is submitted that the Government College of U.T. Chandigarh are affiliated to the Panjab University Chandigarh but these Colleges neither fall within the definition of ‘Central Educational Institutions’ nor within the definition of ‘Centrally Funded Institutions’. It is important to add that the Panjab University Chandigarh to which all these colleges are affiliated is also not declared a Central University a Central Educational Institution or a Centrally Funded Institution within the meaning of all or any of the said expressions. The Government of India’s letter dated 23.03.2007 to the UGC (Annexure R-1) which speaks of ‘Central Funded Institutions of Higher and Technical Education’ coming under the purview of the Union Ministry of Human Resource Development envisages andapplies only to autonomous institutions funded by the Government of India such as IIMs IITs and IISs (Indian Institutes of Management Indian Institutes of Technology and Indian Institutes of Science) and not to institutions such as Government College in UT Chandigarh under the direct and complete administrative control of Government (the UT Administration in this case). Unlike Government Colleges the ‘Central Funding’ of such institutions like IIM IITs etc. is provided by way of grant-in-aid which is in addition to the income generated by them from their own resources. Moreover unlike the employees of Government Colleges employees of such ‘Centrally Funded’ institutions are ordinarily and generally not Government employees but are employees of the institution itself and are governed by separate Institutional Rules Regulations MOUs of contracts of service. The age of retirement in Government Colleges in UT Chandigarh has never been 62 years and the question of enhancing the said age to 65 years (as provided in Annexure A-3) is completely and manifestly misconceived. As a matter of fact the age of retirement in Government Colleges in UT Chandigarh has always been only 58 years. It may further be added in this context that Clause 8 (f) of the Government of India’s letter dated 31.12.2008 to the UGC (Annexure A-3) captioned ‘Age of Superannuation’ is limited ex facie to Central Educational Institutions and Central Universities. As a matter of fact the very opening or introductory paragraph of Annexure P-1 shows that the said annexure is limited to teachers in Central Universities. This limited applicability of Annexure P-1 is made clear in Clause 8 (p) thereof captioned ‘Applicability of the Scheme’. A perusal of Clause 8(p) and sub clause (i) to (v) thereof especially sub-clause (v) which is further broken up into sub paras (a) to (g) makes it clear that the applicability of extension of the scheme of revision of pay scales embodied in Annexure A-3 to Universities Colleges or Institutions other than Central Universities is entirely optional and discretionary.”4.   Apart from above contention they have also relied upon the decision of the Hon’ble Jurisdictional High Court passid in case of S.S. Bindra Vs. State of Punjab & Ors. CWP No. 9665/2010 decided on 04.03.2011 where it is held that UGC guidelines are not mandatory in nature and are only recommendary in nature and it is for the concerned State/U.T to take policy decision to adopt the recommendation or not.5.   The State of Punjab has also filed a reply wherein they have taken a similar stand as taken by the Chandigarh Administration. They also relied upon the judgment in case of Jagdish Prasad Sharma Vs. State of Bihar 2013(8) SCC 633.6.   UGC-respondent no. 5 has also filed its separate reply wherein they admitted this fact that question of enhancing the age of retirement is exclusively within the domain of policy making power of State Government and the issue with regard to age of retirement is left open to the State Governments to decide at their own level. In this regard they place reliance upon a letter dated 14.08.2012 issued by the Ministry of HRD (Annexure R-1) with the written statement. They have also taken a stand that the notification which the applicant seeks to be enforced for the Chandigarh Administration employees enhancing the age of superannuation to 65 years only applies to Central Universities and institutions affiliated thereto being funded and maintained by the University Grant Commission. They placed reliance upon the judgment passed in case of Dr. A.C. Julka & Ors. Vs. Punjab University & Ors. 2009 (1) ILR (Punjab) 735.7.   No rejoinder has been filed by the applicant.8.   We have heard Sh. D.R. Sharma learned counsel for the applicant Sh. Arvind Moudgil counsel for respondent no. 1 to 3 & 7 Sh. K.K. Thakur counsel for respondent no. 4 and Sh. Rakesh Verma counsel for respondent no. 6.9.   Sh. D.R. Sharma learned counsel for the applicant vehemently argued that action of the respondent-Chandigarh Administration in not increasing the age of retirement of Teachers working under their colleges from 60 to 65 years by adopting the notification dated 31.12.2008 is totally illegal arbitrary thus a direction be issued to them to increase the age of retirement of their teacher working under their control and be allowed to continue till they attain the age of superannuation of 65 years. He further argued that once the respondents have accepted part of recommendation of the notification dated 31.12.2008 by implementing the pay scale then they have to apply the scheme in composite manner but cannot be allowed to pick and choose a particular clause out of the said notification. They also placed reliance upon the judgment passed in case of Jagdish Prasad (supra).10.  Per contra Sh. Arvind Moudgil learned counsel for Chandigarh Administration vehemently opposed the prayer made in O.A and submitted that in view of the judgment passed in case of Jagdish Prasad (supra) upon which the applicant is relying upon they are not bound to implement said notification dated 31.12.2008 until or unless State or Union Territory takes a policy decision as to whether they want to implement the notification qua their employee or not? He further argued that once they are having rules in relevant field which has not been amended then they cannot be compelled to amend the rules by adopting the particular policy/ notification as per their decision. Lastly he argued that said notification as reflected from the same is applicable to the Central Educational Institutions or Centrally funded University/Institution and by no stretch of imagination it can be made applicable to the other States or Union territories Ispo-facto.11.  We have given our thoughtful consideration to the entire matter and have perused the pleadings and cited judgment as available on record with the able assistance of the learned counsel for the parties.12.  Solitary issue raised at the hands of the applicant which is to be answered is as to whether notification dated 31.12.2008 issued by Government of India will be applicable to the Teachers working under Chandigarh Administration or not?13.  Before we will answer the query as noticed above little history with the regard to rule formulation as applicable to the Chandigarh Administration is to be noticed here. UT of Chandigarh was constituted on 01.11.1996 under the provisions of the State Re-organization Act. By means of a notification dated 01.11.1966 issued by Government of India Ministry of Home Affairs under Article 309 of the Constitution of India the Administrator of UT of Chandigarh was authorized to exercise the power to make rules in regard to method of recruitment to the Central Civil Services under his administrative control in connection with the affairs of the UT of Chandigarh. It is in furtherance thereof vide notification dated 13.1.1992 which made applicable w.e.f. 01.04.1991 the rules condition of service of U.T of Chandigarh were notified and as per those rules the condition of services of persons appointed to the Central Civil Services and posts in Groups A B C and D under the administrative control of the Administrator of Union Territory of Chandigarh shall subject to any other provision made by the President in this behalf be the same as the conditions of service of persons appointed to the corresponding posts in Punjab Civil Services and shall be governed by the same rules and orders as are for the time being applicable to the later category of persons. This notification was slightly modified vide notification dated 29.10.1992 to the effect that words ‘other cognate matters’ appearing in letter dated 26.06.1992 shall besides other include ‘age for retirement’ and retirement retirement (including premature and voluntary retirement) pension and other retirement benefits.14.  Narration of the facts makes it clear that Chandigarh Administration is not having its independent rules. There is no doubt that the service conditions of employees of Chandigarh Administration like applicant and similarly situated persons are the same as applicable to the corresponding posts in State of Punjab. As per Punjab Civil Services Rules Vol. I Part I age of retirement of an employee was 58 years which was amended by the Punjab Government vide their notification dated 08.10.2012 by amending Rule 3.26 clause (a) and (b). These rules are called the Punjab Civil Services (First Amendment) Rules Vol. I Part-1 2012 provided extension of service beyond the age of retirement for the period not more than two years that too with an option from the concerned government employee accordingly age of retirement from 58 to 60 years was increased. As per present rule formulation the applicant retired after attaining the age of superannuation of 60 years i.e. 30.06.2015. The notification dated 31.12.2008 issued by the Government of India Ministry of Human Resource and Development New Delhi increasing the age of college teachers from 58 years to 65 years is not Ispo facto applicable to the concerned states unless same is adopted by them by taking a conscious decision. It is clear from the notification that same was issued for Central Education institution or Institution funded by Central Government like IIM IIT etc as those were provided aid by Central Government. This issue has already been clarified by the Chandigarh Administration and also by the UGC and by Central Government by making averment in their written statement that this notification is applicable to the Central Educational Institutions only.15.  Issue with regard to the applicability of notification issued by UGC came up for consideration before the jurisdictional High Court in the case of S.S. Bindra (supra) where the Hon’ble High Court has held that UGC guidelines are not mandatory in nature and they are recommendory in nature unless those are adopted by State/UT these cannot be implemented and its benefit cannot be extended to a particular class. Finding to this effect that P.U is not central institute is recorded in para 22 of the said judgment which reads as under:-“22. The Punjab University is not a Central university as already held by this Court in Dr. A.C.Jhulka. It is also not a centrally funded university under any law though it has been stated that certain developments have taken place and the matter is yet to be decided by the Central Government. As per statutory provisions of the Punjab University Act 1947 and the Punjab Reorganization Act 1966 the University cannot be treated as a Central university or the centrally funded university. If the Central Government accepts the Punjab University to be centrally funded the scheme for revision of age of superannuation may become applicable. Till such a decision is taken the scheme cannot be held to have become- applicable. The Panjab University will thus stand on the same footing as other State universities. The questions is answered accordingly.”16.  This issue subsequently came up for consideration before their Lordships in case of Jagdish Prasad (supra) where findings were recorded in para 65 of the judgment to the effect that it is for the State to take a policy decision to increase the age of retirement from 58 years to 65 years. Being relevant para 65 reads as under:-65. We are then faced with the situation where a composite scheme has been framed by the UGC whereby the Commission agreed to bear 80% of the expenses incurred by the State if such scheme was to be accepted subject to condition that the remaining 20% of the expenses would be met by the State and that on and from 1st 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.66. However within this class of institutions there is a separate group where the State Governments themselves have taken a decision to adopt the scheme. In such cases the consequences envisaged in the scheme itself would automatically follow.”17.  In view thereof it can safely be concluded that notification dated 31.12.2008 cannot be made applicable to applicant and age of retirement of Teachers working under Chandigarh Administration cannot be increased to 65 years without its adoption by Chandigarh Administration by taking a conscious decision therefore question as posed above is decided in negative by holding that no direction can be issued to Chandigarh Administration to adopt notification dated 31.12.2008. Similar issue for enhancement of age of retirement from 60 to 65 years qua teachers working under the Chandigarh Administration came up for consideration before Honble jurisdictional High Court in Single Bench in case of Bhura Singh Ghuman Vs. Panjab University Chandigarh & Ors. 2016(4) RSJ 65 wherein similar prayer was made for enforcement of notification dated 31.12.2008 issued by the UGC for enhancing the age of retirement to 65 years. The Honble High Court dismissed the writ petition holding that Panjab University is an independent and autonomous body and has not been declared as Central University by the Government of India. It being an inter-State University and as such consultation with the concerned State Government having been found necessary by the Central Government itself therefore age of superannuation cannot be increased based upon the above notification issued by the UGC unless it is adopted by the Administration/Panjab University. In latter case appeal preferred against the order of Single Bench the DB has not granted any stay on the judgment passed by the Single Bench in case of Bhura Singh Ghuman (supra) therefore no benefit can be derived from the order of DB.18.  No judgment has been shown by the counsel representing the applicant that court can direct the State or U.T to adopt a particular policy which to our mind cannot be adopted for variety of reasons.19.  We are also remind of the judicial pronouncement on the issue that no court can issue a writ of mandamus as it being wholly a matter in the realm of a policy decision within the domain of the executive. It is too well settled that the correctness of a policy decision will not be gone into by this Court unless it can be shown to be wholly and completely arbitrary or specifically violative of any Constitutional or statutory provision. Reliance in this regard is placed upon the judgment of the Supreme Court in case of BALCO Employees' Union (Regd.) v. Union of India (2002) 2 SCC 333 wherein it is held as follows:-“92. In a democracy it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide a decision bringing about change cannot per se be interfered with by the court.”Similarly in Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561 it was held that:-“169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely becuase it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.”20.  In the light of the above settled law and discussion we find no reason to entertain the present O.A and accordingly same is dismissed being devoid of merit.21.  No costs.