Chandra Mohan Varma vs State Of Uttar Pradesh on 21 January, 2020


Supreme Court of India

Chandra Mohan Varma vs State Of Uttar Pradesh on 21 January, 2020

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Ajay Rastogi

                                                                            REPORTABLE


                                     IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NOS. 350-351 OF 2020
                                     (@SLP(C) NOS. 12714-12715 OF 2019)



          Chandra Mohan Varma                                              …Appellant


                                                     Versus


          State of Uttar Pradesh & Ors.                                    …Respondents




                                                JUDGMENT

Dr Dhananjaya Y Chandrachud, J.

1 A Division Bench of the High Court of Judicature at Allahabad dismissed,

by its judgment dated 2 February 2018, a Writ Petition instituted by the appellant

under Article 226 of the Constitution. By his petition, the appellant sought a

mandamus for his continuance in service as Professor and Head of the

Department of Cardiology of the LPS Institute of Cardiology in GSVM Medical
Signature Not Verified

College, Kanpur until he attained the age of 65. He claimed this relief on the
Digitally signed by
CHETAN KUMAR
Date: 2020.01.21
16:18:39 IST
Reason:

basis of a notification dated 6 February 2015 of the Government of Uttar Pradesh

1
extending the age of retirement from 60 to 65 years. The appellant had before the

issuance of the above government notification attained the age of superannuation

of 60 years on 13 August 2014. But, in terms of a Government decision 1 dated 19

November 2012, he had been granted a ‘session benefit’ of an extension of

service up to 30 June 2015. Based on this extension, the appellant’s case is that

he is entitled to the extension in the age of retirement which has been brought

about by the notification dated 6 February 2015. This claim has been repelled by

the judgment and order of the Allahabad High Court which is questioned in

appeal.

2 On 1 April 1992, the UP Fundamental Rules 2 were notified under Section

241(2)(b) of the Government of India Act 1935. Rule 56 provides that:

“Except as otherwise provided in this Rule, every
Government servant shall retire from service on the
afternoon of the last day of the month in which he attains
the age of sixty years:

Provided …”

3 On 21 December 1990, the Uttar Pradesh State Medical Colleges

Teachers, Service Rules 19903 were notified by the Governor in exercise of

powers conferred by the proviso to Article 309 of the Constitution. Rule 9

prescribed a maximum age for recruitment in medical colleges, by direct

recruitment. For Professors, it was 45 years. Among other things, the Rules made

a provision for constitution of cadres in Part II, recruitment in Part III,

quantifications for appointment in Part IV, procedure for recruitment in Part V and

1 “GO”
2 “Fundamental Rules”
3 “the Rules of 1990”

2
provisions for pay related matters in Part VII. The Rules did not prescribe the age

of retirement. But, Rule 26 contained the following stipulation:

“26. Regulation of other matters. – In regard to the
matters not specifically provided in these rules or in
special orders, persons appointed to the service shall be
governed by the rules, regulations and orders applicable
generally to Government servants in connection with the
affairs of the State.”

By virtue of Rule 26, the age of retirement of professors in medical colleges was

governed by Rule 56 of the Fundamental Rules which stipulated it as 60 years.

4 On 16 March 2005, the Medical Council of India Minimum Qualifications for

Teachers in Medical Institutions Regulations 1998 4 were amended in pursuance

of powers conferred by the Indian Medical Council Act 1956 to incorporate an

enabling provision in the following terms:

“The maximum age limit upto which a person can be
appointed or granted extension or re-employed in service
against the posts of Teachers or Dean or Principal or
Director, as the case may be, which are required to be
filled up as per the norms of the Medical Council of India
in any Medical College or Teaching Institution for
imparting Graduate and Post-Graduate medical
education, shall be 65 years.”

This provision was made in view of the shortage of medical teachers. It was

amended on 17 September 2010 so as to substitute 70 years for 65 years.

5 By a decision notified on 19 November 2012, the State of Uttar Pradesh

provided that Assistant Professors, Professors and Principals of Government

Medical Colleges who were to retire after reaching the age of superannuation

4 “the MCI Regulations 1998”

3
during the midst of an academic session would be granted an extension of

service till the end of the session namely 30 June of the following year. This has

been described as an ‘end of session benefit’.

6 On 6 February 2015, a notification was issued by the State of Uttar

Pradesh by which a decision was taken that in order to meet the continuous

shortage of medical teachers in Government Medical Colleges, the age of

superannuation for serving faculty members would stand enhanced from 60 to 65

years and the upper age limit prescribed for recruitment of medical teachers

through the Uttar Pradesh Public Service Commission 5 would stand abolished.

7 The appellant whose date of birth is 13 August 1954 joined as an ad-hoc

lecturer at GSVM Medical College, Kanpur on 17 April 1986. Over time he

received promotions in service. In August 2014, he was working as a Professor in

Cardiology and as Head of Department. In terms of Rule 56, he was due to retire

on attaining the age of 60 years on 13 August 2014.

8 On 6 August 2014, an order was issued by the Director General, Medical

Education & Training, on an application moved by the appellant on 31 May 2014

granting the benefit of an extension of service until the end of the session subject

to the fulfillment of the conditions stipulated in the GO dated 19 November 2012.

Apprehending that his services would be discontinued on 30 June 2015 at the

conclusion of the academic session, the appellant instituted a Writ Petition before

the Allahabad High Court seeking to interdict his retirement before he attained the

age of 65.

5 “UPPSC”

4
9 On 30 June 2015, an Office Memorandum 6 was issued by the Chief

Secretary to the State Government stating that upon the end of the session, the

appellant would be demitting office on 30 June 2015. The OM is extracted below :

“OFFICE MEMORANDUM

The undersigned has been directed to inform that after
your completing the age of superannuation i.e. 60 years
on the date mentioned against the name, the period of
session ending benefit for the below named Medical
Teacher will expire on 30.6.2015:-

          Sl    Medical    Date of      Date of        Present place     Date of
          No    Teacher    Birth        Retirement     of posting        expiry of
          .                                                              session
                                                                         ending
                                                                         benefit




          1.    Dr. C.M.   13.06.1954   31.08.2014     Professor and      30.06.2015
                Verma                                  Head of
                                                       Department,
                                                       Cardiology,
                                                       Institute of
                                                       Cardiology,
                                                       Kanpur

2. In view of above, the services of above-named
Medical Teacher, working under session ending benefit,
will expire on 30.06.2015”

10 On 1 July 2015, the appellant addressed a communication to the Principal

Secretary, Medical Education seeking re-appointment stating that he was doing

so in pursuance of the telephonic instructions of the DGME but without prejudice

to his right to claim continuance in service until the age of 65 years for which he

had instituted a Writ Petition before the High Court.

6 OM

5
11 On 2 July 2015, the appellant was re-appointed to the post of Professor of

Cardiology until further orders or until the attainment of the age of 65 years

whichever was earlier. The appellant initially furnished a letter of joining service

on re-appointment without prejudice to his rights and contentions in the pending

petition but subsequently withdrew it and submitted a fresh joining letter. He then

proceeded to amend the Writ Petition in order to challenge the OM dated 30 June

2015. The State Government in its counter affidavit opposed the Petition stating

that the appellant was not entitled to the benefit of the notification dated 6

February 2015 since he had already attained the age of superannuation on 13

August 2014 and retired on 31 August 2014. According to the State Government,

the continuance of the appellant until 30 June 2015 was on the basis of the grant

of the end of session benefit since the date of his retirement was in the midst of

the session. The Division Bench of the High Court by its judgment dated 2

February 2018 dismissed the Writ Petition on the ground that the notification

dated 6 February 2015 increasing the age of superannuation from 60 to 65 years

“has to be ignored rather than to be enforced”. The reasoning which weighed with

the High Court indicates that:

(i) The petitioner is governed by the UP State Medical College Teachers

Service Rules 1990. These rules do not provide for the age of

superannuation of teachers of medical colleges. In such a situation, the

Rules applicable to government servants, namely the UP Fundamental

Rules would be applicable;

(ii) Rule 56(a) of the Fundamental Rules prescribes the age of

superannuation as 60 years. This Rule has not been amended by the

6
State. Therefore, the notification dated 6 February 2015 increasing the

age of superannuation to 65 years was contrary to Rule 56(a) of the

Fundamental Rules; and

(iii) The GO (‘simple order’) was subordinate to the Fundamental Rules

(‘superior legislation’) and therefore, being contrary to it, would not have

effect.

The appellant filed a petition seeking review of the judgment on the ground that

(i) it was without considering and was contrary to a prior judgment of a coordinate

bench of the High Court in Dr Juhi Singhal v State of UP7; and (ii) it had

erroneously applied the Fundamental Rules when under Rule 26 of the Rules of

1990, the notification dated 06 February 2015 being a ‘special order’ would

become applicable with effect from 6 February 2015.

The review was dismissed by a judgment dated 14 March 2019.

12 Assailing the judgment of the High Court, Mr PS Patwalia, learned Senior

Counsel submitted that :

(i) Though the appellant attained the age of superannuation stipulated in

Rule 56 of the Fundamental Rules on 13 August 2014 and would have

retired from service on 31 August 2014, he was granted the benefit of the

GO dated 19 November 2012 in terms of which his services were

extended until the end of the session on 30 June 2015;

(ii) During the extended tenure of service, the State Government decided to

increase the age of retirement on 6 February 2015. The benefit of the

7 WP (S/B) No. 4292/2016

7
increase in the age of retirement must be granted to the appellant who

was in service on the date on which the State Government decided to

increase the age of superannuation to 65 years;

(iii) The High Court was in error in coming to the conclusion that the

notification dated 6 February 2015 enhancing the age of retirement to 65

years is ultra vires the provisions of Rule 56 of the Fundamental Rules. In

terms of Rule 26 of the Rules of 1990, matters which are not specifically

provided in the rules or in special orders would be governed by the rules,

regulations and orders generally applicable to State Government

servants. The notification dated 6 February 2015 enhancing the age of

superannuation to 65 years is a special order within the meaning of Rule

26. The MCI Regulations 1998 contain an enabling provision in terms of

which the State Government was entitled to enhance the age of

superannuation to 65 years;

(iv) The appellant is entitled to the benefit of the notification dated 6 February

2015 issued during the pendency of his extended service on account of

the end of session benefit given up to 30 June 2015. As a result of the

end of sessional benefit the superannuation gets postponed and would

be deemed to have taken place only at the end of the session namely on

30 June 2015. Hence, the appellant would be entitled to all benefits

arising before that date including the enhancement in the age of

superannuation to 65 years;

(v) The GO dated 19 November 2012 equally extended the end of session

benefit to medical teachers like the teachers in the education department.

8
In Ram Vir Sharma v State of UP8 (“Ram Vir Sharma”), this Court held,

while construing the provisions of Regulation 21 of Chapter III of the

Regulations under the Uttar Pradesh Intermediate Education Act 1921 9,

that the employee must not be deemed to have been superannuated on

the date of attaining the age of 60 years but would be deemed to have

been superannuated only on 30 June following the date on which the age

of 60 years was attained; and

(vi) Besides the decision in Ram Vir Sharma rendered by this Court, the

High Court has had occasion to deal with a similar issue in Dr Juhi

Singhal v State of UP through Principal Secretary Department of

Medical Education and Training10 (“Juhi Singhal”); State of Uttar

Pradesh through Principal Secretary, Secondary Education

Lucknow v Smt Hema Pathak11 (“Hema Pathak”); and Dr Professor

Rajendra Chaudhary v State of UP12(“Rajendra Chaudhary”). The

decision in Rajendra Chaudhary, though in the context of the abrogation

of the upper age limit for retirement has been affirmed by this Court in its

decision dated 28 August 201913.

13 On the other hand, Mr Gaurav Singh, learned Counsel appearing on behalf

of the respondents submitted that:

(i) The appellant attained the age of superannuation, which at the relevant

time was 60 years on 13 August 2014 and would have demitted office on
8 Civil Appeal No. 2606 of 2009 , decided on 4 June 2014
9 “the Intermediate Education Act 1921”
10 Service Bench No 4292 of 2016, decided on 11 November 2016
11 Special Appeal Defective No 477 of 2013, decided on 24 January 2017
12 Writ-A. No. 17078 of 2016, decided on 6 April 2018
13 Dr Professor Rajendra Chaudhary v State of Uttar Pradesh, Civil Appeal Nos. 6667-6668 of 2019

9
31 August 2014;

(ii) His continuance until 30 June 2015 in terms of the GO dated 19

November 2012 until the end of the session (30 June 2015) did not alter

the date of superannuation;

(iii) The continuance of the appellant until 30 June 2015 was only to obviate

a dislocation being caused as a result of the retirement falling in the

midst of the session;

(iv) The notification dated 6 February 2015 extending the age of

superannuation will not apply to the appellant who attained the age of

retirement on 13 August 2014;

(v) There is a distinction between the provisions of Regulation 21 contained

in the regulations made under Chapter III of the Intermediate Education

Act 1921 and the GO dated 19 November 2012. Under Regulation 21,

there is a deeming provision for an extension of service as a result of

which the retirement would take place at the end of the academic year

following. Regulation 21 contains an opt-out provision. On the other hand

in terms of the GO dated 19 November 2012, the extension of the end of

session benefit in Government Medical Colleges is conditional on

satisfactory performance in service. Consequently there is no deeming

extension of the age of superannuation by the GO dated 19 November

2012; and

(vi) The date of superannuation does not stand postponed. The decision of

this Court in Ram Vir Sharma as well as of the High Court in Hema

Pathak is distinguishable. The decision in Juhi Singhal dealt with the

10
abolition of the maximum age of recruitment and has no application.

Similar is the case with the decision in Dr Rajendra Chaudhary14 which

came up for decision before this Court on 28 August 2019.

14 While considering the rival submissions, it is necessary to clear the ground

in regard to Rule 56 of the Fundamental Rules. Rule 56(a) stipulates that (except

as otherwise provided in it) every government servant shall retire from service on

the afternoon of the last day of the month in which the age of 60 years is attained.

The High Court, while placing reliance on Rule 56(a), held that a ‘simple’ GO

extending the age of retirement to 65 years would not alter or modify the age of

retirement contained in the Fundamental Rules. Hence, the High Court held that

the age of retirement of 60 years which was prescribed in Rule 56(a) could not be

altered by the notification dated 6 February 2015. The High Court therefore held

that:

“Thus, even assuming that the aforesaid government
order had come during the service of the petitioner it
would not have the effect of enhancing the age of
superannuation prescribed under Rule 56(a) of the Rules
which stands unamended.”

The above extract indicates that the High Court noticed that:

(i) The order extending the age of retirement had not come during the

service of the petitioner; and

(ii) Even if it had, it would not have the effect of enhancing the age of

superannuation prescribed in Rule 56(a) which stands unamended.

15 Rule 26 of the Rules of 1990 makes applicable the rules, regulations and

14 Civil Appeal Nos. 6667-6668 of 2019

11
orders applicable generally to government servants serving in connection with the

affairs of the state in regard to matters which are not specifically provided in

those Rules “or in special orders”. The notification dated 6 February 2015

enhancing the age of retirement to 65 years for serving members of the faculty

working in Government Medical Colleges is a special order within the meaning of

Rule 26. That being the position and in terms of the Rules of 1990 which have

been framed under the proviso to Article 309, the increased age of

superannuation as prescribed in the notification dated 6 February 2015 cannot be

regarded as being ultra vires.

Indeed, as we have noticed, the regulations framed by the MCI contain an

enabling provision in pursuance of which it was open to the State Government to

provide for an increase in the age of superannuation for faculty working in the

Government Medical Colleges. The view of the High Court that the notification

dated 6 February 2015 is ultra vires Fundamental Rule 56 is hence erroneous.

16 The issue however is whether the appellant was entitled to the benefit of

the increase in the age of retirement from 60 to 65 years as a consequence of the

notification dated 6 February 2015. Mr PS Patwalia’s arguments proceed on the

basis of two hypotheses:

(i) The GO dated 19 November 2012 by which a facility of an extension of

service is granted until the end of the session places the faculty of

medical colleges on the same basis as teachers of the Education

department; and

(ii) A member of the faculty who was on an extension of service till the end

12
of the academic session as on 6 February 2015 would be entitled to an

extension of the age of superannuation brought about by the notification

dated 6 February 2015.

17 In order to appreciate the submission, it is necessary to consider the terms

on which it was decided by the Government on 19 November 2012 to grant a

session ending benefit to medical teachers. The subject of the communication of

the Chief Secretary to the Director General, Medical Education & Training is

extracted below:

“Regarding grant of session ending benefit to the
Medical Teachers working in the State Allopathic Medical
Colleges after retirement on attaining the age of
superannuation.”
(Emphasis supplied)

The communication then states :

“I am directed to say on the above-mentioned subject that
as per Education Section -1’s Govt. Order No. 7022/15
(1)/83/83-31 (16)/77 dated 21.03.1984 facility of extension
of service upto the end of session (i.e. 30 th June) has
been granted to the Teachers/Head Masters and
Principals working in Govt. Schools and Colleges.
Similarly, as per Technical Education Section -2’s Govt.
Order No 934/TE-2-7 (E) ED-78 dated 27.06.1988, the
facility of extension of service upto the end of academic
session (i.e. 30th June) has been granted to the
Instructors, Lectures Head of Departments and principals
working on teaching posts in the Govt. Technical
Education Department, who retire on attaining the age of
superannuation in the middle of session i.e. from 01 st July
to 30th June.

2. Facility of extension of service upto the end of
academic session (i.e. upto 30th June), by approving
the benefit of session ending, is granted to the
Lectures, Assistant Professors, Jr. Professors, Professors
and Principals of Govt. Allopathic Medical Colleges like
Education Department and Technical Education
Department, subject to the following conditions:-

(1) He is teaching any subject regularly according to

13
the recommendations of Medical Council of India.

              (2)     He is working on the post continuously for
              minimum 03 years and his work & conduct is
              satisfactory.
              (3)     No departmental proceeding or vigilance
              enquiry is pending against him.

3. I am also directed to say that such officers, who
are not doing teaching work, be not deputed for teaching
work in the last year of their service without any specific
reason, which may give them the benefit of retention in
service upto 30th June unnecessarily.”
(Emphasis supplied)

The above communication shows that the grant of a session ending benefit is for

medical teachers working in the State Medical Colleges “after retirement on

attaining the age of superannuation”. The effect is that a person who has

retired on attaining the age of superannuation, may continue until the end of the

academic session. In the case of the Education department, it was envisaged

that a teacher who retired in the midst of the session (1 July to 30 June of the

following year) would continue up to the end of the academic session (30 June).

While extending this facility to the faculty of Government Medical Colleges, the

communication dated 19 November 2012 made it abundantly clear that the

extension of service was not automatic but was subject to the fulfillment of

stipulated conditions. These were that:

(i) The teacher should be teaching a subject regularly;

(ii) The teacher should have been working on the post continuously for the

period of three years;

(iii) The work and conduct of the teacher should have been satisfactory; and

(iv) No departmental or vigilance enquiry should be pending against the

teacher.

14
The end of session benefit would not flow as a matter of right but only on fulfilling

the above conditions.

18 The date on which the employee attains the age of superannuation is

prescribed by the Fundamental Rules. The decision which was communicated by

the State Government on 19 November 2012 does not alter the date of

superannuation or retirement. However, what the decision effectuates is to allow

the continuance of the employee, after retirement, upon the attainment of the age

of superannuation with the salient purpose of preventing a disruption in education

instruction prior to the end of the academic session. This view is fortified by the

fact that the continuance of the employee until the end of the session is subject to

the fulfillment of conditions stipulated, as noticed above.

19 The notification dated 6 February 2015 provided for:

(i) Enhancing the age of superannuation from 60 to 65 years; and

(ii) Abolition of the maximum age limit for appointment of medical teachers

through the UPPSC. The increase in the age of superannuation from 60

to 65 years was prospective and would apply to those medical teachers

in Government Medical Colleges who had not attained the age of

superannuation under the prevailing rules. The State Government, in its

counter affidavit, has clarified that it has consistently adopted the

position that the notification dated 6 February 2015 increasing the age

of retirement for medical teachers from 60 to 65 years is prospective

and would not apply to teachers, such as the appellant, who had

already crossed the age of superannuation as it then stood prior to the

15
notification dated 6 February 2015. A person who had crossed the age

of 60 before the issuance of the notification and attained the age of

superannuation but was on an extension until the end of the session

would not be entitlement to benefit from the increase in the age of

retirement. Moreover, the State Government has specifically stated in

its counter affidavit that :

“…there is no medical teacher who had attained the age
of 60 years prior to the issuance of G.O. on 6.2.2015,
who has been given the benefit of increase in retirement
age of 65 years,”

The determination of the age of retirement is a matter of executive policy. The

appellant attained the age of superannuation prior to the notification dated 6

February 2015 and was not entitled to the benefit of the enhancement of the age

of retirement.

20 The appellant has pleaded a case of discrimination, relying upon the

instances of Dr A K Mehrotra, Dr Mangal Singh and Dr Pradeep Bharti. However,

it is evident from the details disclosed by the appellant in the Special Leave

Petition that each of the three doctors attained the age of 60 years after the date

of the notification dated 6 February 2015. The details which have been disclosed

by the appellant in the SLP are as follows:

1. Dr A K Mehrotra (Prof in S P M, Medical College, Jhansi)

– DOB 1.4.55 / 60 years completed on 31.3.15

2. Dr Mangal Singh (Prof in ENT, Medical College,
Allahabad)

– DOB 5.6.1955/ 60 years completed on 30.6.15

3. Dr Pradeep Bharti (Prof in Surgery, Meerut Medical
College)

– DOB 26.3.55 / 60 years completed on 31.3.15.”

16
21 The appellant has placed reliance on a decision of this Court dated 4 June

2014 in the case of Ram Vir Sharma v State of UP15. In that case, the appellant

was appointed as an ad-hoc Principal with effect from 1 July 2006 on a vacancy

created by the retirement of the incumbent. He retired on attaining the age of

superannuation on 6 August 2007. While he was permitted to discharge his

duties until the end of the academic session on 30 June 2008, he was not

allowed to discharge the duties of a Principal after 6 August 2007 nor was he

granted his emoluments. The issue before this Court was whether upon attaining

the age of superannuation on 6 August 2007, the appellant was disentitled to

discharge the duties of the post of Principal or whether he could continue up to

the end of the academic session. This Court, in that case, construed the

provisions of Regulation 21 contained in Chapter III under the Intermediate

Education Act 1921 which provided as follows:

“21 Principal, Head Master, Teacher shall retire on
attaining the age of sixty two years. …. In case date of
superannuation of a Principal, Head Master, or teacher
falls between 2nd July and 30th June, then in that case
retirement date of Principal, Head Master or Teacher falls
in the midst of academic year, except in such cases in
which the person concerned do not desires to continue
and issues a notice two month prior to date of retirement,
shall retire at the end of the academic year and said
extension shall be deemed to have been self-granted.

Further extension in service shall only be granted in those
special circumstances which are recommended by the
State Government…”

This Court held that in terms of Regulation 21, a person who was in service at the

beginning of the academic session on 2 July was entitled to continue to serve

until the end of the academic session (30 June) of the following year. In that

15 Civil Appeal No 2606 of 2009

17
context, dealing with the case of Ram Vir Sharma, this Court held:

“Thus, his age of superannuation under Regulation 21,
would be deemed to have been extended till 30.06.2008.

It is, therefore, clear that the appellant must not be
deemed to have been superannuated on 6.8.2007, but he
would be deemed to have been superannuated only on
30.06.2008, under Regulation 21, (extracted above). If he
was to superannuate on 30.06.2008, naturally, his tenure
of Principal would be co-terminus with the date of his
superannuation.”

The above observations of this Court were made specifically in the context of

Regulation 21 which envisaged that where the date of superannuation of a

principal or a teacher falls between 2 July and 30 June of the following year, the

incumbent shall retire at the end of the academic year and the extension shall be

deemed to have been granted. The exception, in the nature of an opt-out

provision, is where an employee does not desire to continue and issues a notice

of two months prior to the date of retirement. The provisions contained in

Regulation 21 are materially different from the conditions subject to which the

session ending benefit was granted by the GO dated 19 November 2012 to the

medical teachers in Government Medical Colleges. A comparison between the

two provisions would indicate that Regulation 21 provided for an opt-out

provision: in the absence of the exercise of the option, the teacher “shall retire at

the end of the academic year” and an “extension would be deemed to be have

been… granted”. In contrast, the notification dated 6 February 2015 postulates

that the grant of a session ending benefit is subject to the fulfillment of stipulated

conditions including of the work and conduct of the employee being satisfactory.

18

There is no deeming provision extending the age of retirement. The decision in

Ram Vir Sharma is hence distinguishable.

22 The decision of the Division Bench of the Allahabad High Court in Hema

Pathak considered whether the teacher was rightly promoted by the Committee

of Management on 18 May 2013. The DIOS held that the teacher had already

attained the age of superannuation before the date on which a resolution for

promotion was passed and was continuing till the end of the session and was

hence not entitled to promotion. Dealing with the issue the Division Bench of the

High Court held that the extension of service was for all purposes a part of

service and the incumbent is treated to have retired at the end of the session.

Hence, if before such retirement any benefit including promotion became due, it

could not be denied in the absence of a provision to the contrary. The decision in

the case of Hema Pathak is distinguishable and has no bearing on the

construction of the GO dated 19 November 2012. Similarly, the decision of this

Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of

the upper age limit for direct recruitment under the notification dated 6 February

2015. Dealing with this aspect, Mr Justice Nageswara Rao, speaking for this

Court in the judgment dated 28 August 2019 observed:

“12…The High Court rejected the challenge to the
enhancement of upper age limit for direct recruitment to
the post of Professor in Dr. Juhi Singhal (supra) by
holding that the Regulations framed by the MCI would
prevail over the Service Rules. In the said judgment, the
High Court was of the view that the Government Order
dated 06.02.2015 only supplements the Rules and does
not supplant them. The High Court further observed that
the relaxation was done in view of the shortage of
teachers in Medical Institutions who are qualified for
appointment to the posts of Professors. The relaxation of

19
the upper age limit was applicable only to those
departments where 25 per cent or more posts were
vacant and in respect of other departments, the State
Government decided not to fill them up. In Navyug
Abhiyan Samiti (supra), the Division Bench of the High
Court followed the same logic and reasoning while
considering the increase of upper age limit to the post of
Principals in Government Medical Colleges. We see no
reason to disagree with the said findings recorded by the
High court. There can be no manner of doubt that the
Regulations framed by the MCI relating to the conditions
of service of Professors in Medical Colleges shall prevail
over the Service Rules framed by the State of Uttar
Pradesh. The Government Order dated 06.02.2015 has
not been challenged by the Appellants for which reason
they cannot make any grievance about the same.”

23 The issue in Dr Rajendra Chaudhary’s case was distinct from the central

point in this case. In the present case the issue is whether the appellant who had

already attained the age of superannuation under the prevailing rules and was

continuing until the end of the session would be entitled to the benefit of the

enhancement of the age of retirement under the notification dated 6 February

2015. The decision in Dr Rajendra Chaudhary is hence distinguishable.

24 For the reasons that we have indicated, we hold that the appellant who

attained the age of 60 years – the age of retirement which prevailed at the

relevant time – was not entitled to the benefit of the notification dated 6 February

2015. The appellant was continuing until the end of the session (30 June 2015)

after retirement, in terms of the decision dated 19 November 2012. He was not

entitled to the enhanced age of retirement of 65 years. The terminal benefits

which are due to the appellant shall be accordingly computed and released within

a period of two months from the date of receipt of a certified copy of this order.

For the reasons which we have indicated, we have come to the conclusion that

20
there is no merit in the appeals. The appeals shall stand dismissed. There shall

be no order as to costs.

Pending application(s), if any, stands disposed of.

…….………….…………………………………………J.
[DR DHANANJAYA Y CHANDRACHUD]

…….…………………………………………………….J.
[AJAY RASTOGI]

New Delhi;

January 21, 2020.

21



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