Navin Chandra Dhoundiyal vs The State Of Uttarakhand on 16 October, 2020


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Supreme Court of India

Navin Chandra Dhoundiyal vs The State Of Uttarakhand on 16 October, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, S. Ravindra Bhat

                                                    1




                                                                             REPORTABLE

                                  IN THE SUPREME COURT OF INDIA

                                 (CIVIL APPELLATE JURISDICTION)

                                     CIVIL APPEAL NO. 3493/2020
                               (ARISING OUT OF SLP (C) NO. 10943/2020)


  NAVIN CHANDRA DHOUNDIYAL                                             ...APPELLANT(S)

                                                VERSUS

  STATE OF UTTARAKHAND AND ORS.                                  ...RESPONDENT(S)


                                               WITH
                                     CIVIL APPEAL NO. 3494/2020
                               (ARISING OUT OF SLP (C) NO. 11189/2020)
                                     CIVIL APPEAL NO. 3495/2020
                               (ARISING OUT OF SLP (C) NO. 11055/2020)
                                     CIVIL APPEAL NO. 3496/2020
                               (ARISING OUT OF SLP (C) NO. 11023/2020)
                                     CIVIL APPEAL NO. 3497/2020
                               (ARISING OUT OF SLP (C) NO. 11014/2020)


                                                 ORDER

S. RAVINDRA BHAT, J.

Signature Not Verified

1.
Digitally signed by
MEENAKSHI KOHLI
Leave granted. The parties were heard finally in these appeals. The common
Date: 2020.10.16
15:26:38 IST

question which arises for decision is as to the correct interpretation of a condition in the
Reason:

respondent-University’s statutes regarding the date of superannuation of its teachers.

2

2. All the appellants are working as Professors in various disciplines, in the
respondent Kumaun University (hereafter “the University”). They are aggrieved by an
office order dated 21.12.2019 which set out their respective dates of retirement (which
were the last dates in the months they attained the age of superannuation, i.e. 65 years).
The appellants relied on Statute No. 16.24 of the University, applicable to them,
contending that they were entitled to continue beyond the last date of the month in
which each of them attained the age of superannuation, till the “30th of June following”
in terms of that provision. That statute reads as follows:

“16.24 (1) The age of superannuation of a teacher of the University, whether
governed by the new scale of pay or not shall be sixty-five years.
(2) No extension in service beyond the age of superannuation shall be
granted to any teacher after the date of commencement of these statutes.
provided that a teacher whose date of superannuation does not fall on June
30, shall continue on service till the end of the academic session, that is
June 30, following and will be treated as on re-employment from the date
immediately following his superannuation till June, 30, following.
(Provided further that such physically and mentally fit teachers shall be
reappointed for a further period of two years, after June, 30, following the
date of their superannuation as were imprisoned for taking part in freedom
struggle of 1942 and are getting freedom fighters pension)
Provided also that the teachers who were re-appointed in accordance with
the second proviso as it existed prior to the commencement to the Kumaun
University (Twenty-third amendment) First Statute, 1988 and a period of
one year has not elapsed after the expiry of the period of their
reemployment, may be considered for re-appointment for a further period of
one year.”

3. The appellants were aggrieved by the office order dated 21.12.2019 and
approached the Uttarakhand High Court in writ proceedings. They argued that they were
entitled to continue in service, on extension up to the end of June, 2021. They had relied
on a previous judgment of the Division Bench of the High Court – Dr. Indu Singh v
State of Uttarakhand1. In that judgment, the Division Bench had, on an interpretation of
1 2017 SCC Online 1527
3

the relevant provisions (which were worded identically to Statute No. 16.24 as in this
case) held that those who retire after 30th June are “entitled to continue till the end of
the academic year”. The Division Bench placed emphasis and importance on the
legislative intent “to cater to the supreme need to not adversely affect the academic
activities of the institution and to safeguard the interest of the students.”

4. The impugned judgment rejected the appellants’ writ petition, holding that Indu
Singh2 could not be considered as a binding authority. It was also held that Statute No.
16.24 applies to the teachers of the university. The Division Bench said that Statute No.
16.24 (2) specifically places an embargo on extension in service beyond the age of
superannuation. Statute No. 16.24 (2.1) – according to the Division Bench, merely
provided that if the superannuation were not to fall on June, 30th, the teacher shall
continue in the service till end of the academic session i.e. June, 30th and the same will
be treated as re-employment. The Division Bench was of the opinion that whenever the
superannuation of an employee falls within the month of June, in that event, his or her
retirement would stand extended till the end of June of that particular month. The words
used “of the end of the academic session”, was held to be “misleading”. Further,
according to the Division Bench, the end of an academic session was not “fixated as on
June, even though, most of the universities end their academic session in June, 30th. It
is not a matter of rule that the same happens everywhere. Therefore, the said concession
has been granted only for the month of June.” In other words, the impugned judgment
considered Indu Singh3 to be limited to holding that the service of an employee or
teacher retiring in a given month; would be “extendable only till the end of the month
and not more.” The impugned judgment stated that if the appellants were right, every
officer would get an extension for a year or so, which could never be the intention of the
university or of the government.

2 Supra n.1
3 Supra n.1
4

5. It is argued by Mr. Gaurav Gupta, learned counsel for the appellants, that the
impugned judgment erred in holding that the proviso to Statute No. 16.24 only enables
teachers to continue till the end of the month and that to understand it to say that it
assures re-employment to a superannuated teacher till the end of June of the academic
session is misleading. It is submitted that the purport of the proviso has to be gathered
from the circumstance – that it caters to a specific eventuality, where the teacher/official
superannuates on a particular day of any month, after June 30 th, of an academic year.
Superannuation would normally mean that the retirement date would be in accordance
with the rules. In this particular case, since the provision applied only to teachers, the
intention of the statute clearly was the continuance of status quo, to avoid disturbance,
caused by the retirement, and the likely time to be taken by the University to make
alternative arrangements to fill the vacancy. This was conceived in the larger interest for
the students, who would have faced difficulties in completing their syllabi in the
absence of the teacher, and likely time taken for the new teacher to adjust to the subject
and the students.

6. It was next submitted that the High Court should not, having regard to the
precedential value of Indu Singh4, held that it was incorrectly reasoned, or that its facts
were different, because the provision dealing with retirement was in pari materia with
Statute No. 16.24. He relied on the provision which was considered in Indu Singh5 in
support of this contention6. Further, Mr. Gupta submitted that a bench of co-equal

4 Supra n.1
5 Supra n.1
6 Para 17.15 of the First Statutes of the University of Hemavati Nandan Bahuguna, Garhwal, 1978, which read as follows:

“17.15 No extension in service beyond the age of superannuation shall be granted to any teacher after the date of
commencement of these Statutes:

Provided that a teacher whose date of superannuation does not fall on June 30, shall continue in service till the
end of the academic session, that is, June 30 following, and will be treated as on re-employment from the date immediately
following his superannuation till June 30, following:

Provided further that such physically and mentally fit teachers shall be re-appointed for a further period of two
years, after June 30, following the date of their superannuation, as were imprisoned for taking part in freedom struggle of
1942 and are getting freedom fighters pension.

5

strength could not have refused to follow an earlier decision; if it doubted it or wished to
depart from it, the proper course would have been to refer the issue to a larger, or full
bench. Counsel relied on certain decisions of this court, in this regard. 7 Counsel also
relied on the decision of this court in S.K. Rathi v Prem Hari Sharma8 and submitted
that the impugned judgment was again in error in holding that the decision of this court
was not binding, as the observations were obiter. It was lastly urged that the consistent
view of the High Court, expressed by two other Benches [in Professor Sri Krishna
Khandelwal v State of Uttarakhand {WP (S/B) No. 601/2017}, decided on 10.01.2018
and Binod Kumar Singh v State of Uttarakhand {WP (S/B) No. 328/2019, decided on
25.07.2019}] in relation to the concerned statute, i.e. proviso to Statute No. 16.24, that
the teacher whose age of superannuation was after the 30th of June of any given year,
was to be continued as a re-employed officer, till the end of the academic session, i.e.
30th June of the following year.

7. Ms. Vanshaja Shukla, learned counsel for the University and the State, urged this
court not to interfere with the impugned judgment. She argued that the Division Bench
had good reasons to differ from the reasoning in Indu Singh9. She emphasized that the
impugned judgment took note of the submissions on behalf of the state that according to
a general order, whenever an employee attained the age of superannuation (regardless of
the date), he/she was entitled to continue till the end of that particular month. It was
submitted that the Division Bench took note of this argument, and correctly surmised
that the proviso to Statute No. 16.24 merely embodied the principle underlying that

Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to
the commencement of the Garhwal University (Twenty-second Amendment) First Stututes, 1988 and a period of one year
has not elapsed after the expiry of the period of their re-employment, may be considered for re-appointment for a further
period of one year.”

7 S. Kasi v State through Inspector of Police 2020 SCCOnline 529; Nahar Industrial Enterprises Ltd v Hongkong and
Shanghai Banking Corporation (2009) 8 SCC 646; Central Board of Dawoodi Bohra Community v State of Maharastra
(2005) 2 673;

8 (2001) 9 SCC 377
9 Supra n.1
6

government order, ensuring that teachers retired only at the end of the month during
which they attained the age of superannuation.

8. Ms. Shukla submitted that one could not read too much into the expression “the
30th June following” beyond the fact that it was meant to illustrate that if a teacher were
to attain the age of superannuation during June of any year, she or he could be re-
employed till the end of that month. Ms. Shukla submitted that surely that did not imply
that the teacher, a superannuated employee had a right to insist that he should be re-
employed till the end of June of the next year. Learned counsel underlined the intent of
the main provision, which enacts the essential principle, which is that every teacher
attains the age of superannuation when she turns 65; in these circumstances, he/she
cannot claim entitlement to re-employment.

9. This court is of the opinion that on a plain interpretation of Statute No. 16.24,
including the proviso in question, it is clearly apparent that firstly each teacher attains
the age of superannuation on completing 65 years {Statute No. 16.24 (1)}. Secondly, no
teacher who attains the age of superannuation has a right or entitlement to re-
employment; in fact, the opening expression “No teacher” appears to rule out re-
employment of superannuated teachers {Statute No. 16.24 (2)}. Thirdly, and
importantly the proviso {to Statute 16.24 (2)} carves out an exception to the main
provision, inasmuch as it provides that a teacher whose “date of superannuation does
not fall on June 30, shall continue in service till the end of the academic session, that is
June 30, following and will be treated as on re-employment from the date immediately
following his superannuation till June, 30, following.”

10. It appears that in S.K. Rathi10, a resolution, perhaps a forerunner to Statute No.
16.24 was in issue. No doubt, the petitioner there was officiating as principal. His
contention was that by virtue of the resolution, he was entitled to continue beyond the

10 Supra n. 8
7

age of superannuation, as acting principal. This court negatived his claim to continue
as principal. However, crucially, the court underlined that a teacher had a right to
continue till the 30th June following:

“3. It is not in dispute that respondent No. 1, who was a teacher, had been
appointed as an acting Principal. He attained the age of 60 years sometime
in December, 1999. With an effort to continue in office, he filed a writ
petition (CM. Writ Petition No. 54640 of 1999) and in the impugned order
dated 5th January, 2000, the Division Bench of the High Court observed
that in view of the decision of another Division Bench in Udai Narain
Pandey’s case, respondent No. 1 could continue to function as Principal of
the Institution till 30th June 2000. Hence this appeal.

4. On a query raised by us, learned Counsel for the respondent drew our
attention to a decision of the Government contained in document dated 16th
February, 1999, in which it was, inter alia, stated that for teachers like
respondent No. 1 the age of superannuation was 60 years. The said decision
further states that no extension in service shall be granted but “if the date of
superannuation of a teacher does not fall on June 30, the teacher shall
continue in service till the end of the academic session i.e. June 30,
following”. This is the clause on which reliance is placed by the learned
Counsel in support of the decision of the High Court.

5. There is no doubt that the said decision would enable respondent No. 1 to
continue as a teacher, which is his substantive appointment, up to 30th June,
following the day when he attained the age of 60 years, but this clause
cannot allow him to continue as an acting Principal which is a different post
altogether. It cannot be disputed that the post of Principal and of the teacher
is not the same. It is a teacher on promotion who is appointed as a Principal
and there is no decision of the Government giving extension beyond the age
of 60 years to a Principal. This being so, the appeal is allowed and the
decision of the High Court permitting respondent No. 1 to function as
Principal of the Institution till 30th June, 2000 is set aside.”

11. This court no doubt held that a teacher could not continue as principal; yet, it
decisively ruled that “There is no doubt that the said decision would enable respondent
No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June,
following the day when he attained the age of 60 years.” In this court’s opinion, such a
8

categorical expression about a pari materia norm was decisive enough for the court to
have found itself compelled to follow. Yet, the impugned judgment- with respect,
characterized the expression in S.K. Rath11 as obiter. The Division Bench, in this court’s
view, erred on this score.

12. The issue appears to have lingered and different benches of the Allahabad High
Court, in view of the differences in phraseology of rules and statutes of various
institutions, seem to have expressed divergent views in the State of Uttar Pradesh.
Ultimately, this led to a reference which was answered by a Full Bench, authored by
Justice D.Y. Chandrachud12 by the judgment reported as State Of U.P. v Ramesh
Chandra Tiwari13.

“Primary schools are governed by the provisions of the Uttar Pradesh
Basic Education Act, 1972 and the service conditions of the teachers are
governed by the Rules framed under the Act. Rule 29 lays down (i) the age
of superannuation which is 62 years; (ii) the principle that a teacher who
attains the age of 62 years will retire from service on the last day of the
month in which the age of superannuation is attained; and (iii) the
principle that a teacher who has retired during an academic session, shall
continue to work till the end of the academic session and that such period
of service will be deemed to be an extended period of employment. The
proviso to Rule 29 enacts a legal fiction through the subordinate
legislation, the effect of which is that though a teacher has attained the age
of superannuation, the teacher, notwithstanding the fact that he or she had
retired during the academic session, will continue to work until the end of
the academic session and that such period of service will be deemed to be
an extended period of employment. Rule 29 refers to the academic session
as being 1 July to 30 June, since this was the academic session which
prevailed right until academic session 2013-14. The reason why a special
provision is made in the proviso to Rule 29 is to ensure that the educational
needs of students are not disrupted by the retirement of a teacher in the
midst of an academic session. In other words, the benefit is extended not so

11 Supra n.8
12 At that time, the Chief Justice of the court
13 (2015 (6) ADJ 579)
9

much for teachers (though the teachers would obviously also receive the
benefit of an extended period of employment) but primarily to protect the
students whose education would be disturbed by the absence of a teacher
for the academic session.”

13. The above analysis would show that the view of the Uttarakhand High Court, as
also the Allahabad High Court (now settled by the full bench decision) consistently have
been that teachers superannuating are to be treated as re-employed or allowed to
continue, in the larger interest of the pupils, has prevailed. If the view that found
acceptance with the impugned judgment were to prevail, there would be avoidable
disruption in teaching; the likely delay in filling vacancies caused mid-session cannot
but be to the detriment of the students. That apart, this court is also of the opinion that if
the state or the university wished to depart from the prevailing understanding,
appropriate measures could have been taken, putting all the concerned parties to notice,
through amendments. In the absence of any such move, the departure from the
prevailing understanding through a discordant judgment, as the impugned judgment is,
injects uncertainty. Long ago, this court had underlined this aspect while ruling that long
standing or established status quo brought about by judgments interpreting local or state
laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey v
Sant Prasad Tewari & Ors14 in the following words:

“In the matter of the interpretation of a local statute, the view taken by the
High Court over a number of years should normally be adhered to and not
disturbed. A different view would not only introduce an element of
uncertainty and confusion, it would also have the effect of unsettling
transactions which might have been entered into on the faith of those
decisions. The doctrine of stare decisis can be aptly invoked in such a
situation. As observed by Lord Evershed M.R. in the case of Brownsea
Haven Properties v. Poole Corpn
.(1958 [Ch] 574), there is well-established
authority for the view that a decision of long standing on the basis of which
many persons will in the course of time have arranged their affairs should
not lightly be disturbed by a superior court not strictly bound itself by the
decision.”
14 1973 (2) SCR 835
10

14. This court is consequently of the opinion that the impugned judgment is in error.
The very object and intent of the proviso to Statute No.16.24 is to avoid the disruption
caused by discontinuity of service of a teaching staff employee or official mid-session.
Therefore, the view in Indu Singh15, dealing with an identical statute, was correctly
interpreted; the other decisions which dealt with Statute No.16.24 [Professor Sri
Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided.

15. For the foregoing reasons, the impugned judgment and orders of the High Court
are set aside. The appellants are entitled, consequently, to continue till the end of the
following June on re-employment. If any of them has been superannuated, he or she
shall be issued with orders of reinstatement, with full salary for the period they were out
of employment, and allowed to continue till the following June, on re-employment
basis. The appeals are allowed without any order as to costs.

…………………………………………………J
[UDAY UMESH LALIT]

…………………………………………………J
[S. RAVINDRA BHAT]

New Delhi,
October 16, 2020.

15 Supra n. 1



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