ORDER
Permod Kohli, J.
Page 1819
1. Petitioners were serving as Scientists/Teachers in various disciplines of Birsa Agricultural University. All of them retired from the service of the University in various capacities and on the dates indicated in paragraph No. 4 of the writ petition, on attaining 60 years of age. After retirement, they have preferred this writ petition, seeking to challenge Clause 3 of Notification No. 3/Misc.-18/2004-115 dated 31st July, 2005 whereunder this notification was made applicable with immediate effect (prospectively) as regards the enhancement of age of superannuation of the Teachers, Scientists in UGC/ICAR pay scale, from 60 years to 62 years. As a consequence of insertion of Clause 3, only such Teachers/Scientists in UGC/ICAR pay scale, who were in service as on 31st July, 2005, got extension in retirement age from 60 to 62 years. Since the petitioners had already retired before the date of notification, their age of superannuation continued to remain 60 years. Aggrieved of Clause 3, which, inter alia, applies the notification from the date of its issue, they have challenged the same on variety of grounds.
2. Before specific grounds raised in this writ petition and urged before this Court are noticed, it may be relevant to briefly notice the background as averred in the pleadings of the parties. Vide a Notification dated March 3, 1999, issued by the Government of India, Ministry of Agriculture, Department of Agricultural Research & Education, New Delhi, addressed to the Chief Secretaries of all the States, certain benefits were proposed for the Teachers in Agricultural Universities and Colleges on account of revision of pay scale of Central Government employees on the recommendation of 5th Central Pay Commission. Besides revising the pay scales, in paragraph No. 4(vi) it is mentioned that the competent authority has accepted the proposal of the Council for enhancement of age of retirement of the Teachers from 60 to 62 years. Necessary action has already been taken and after final decision, separate order in this regard will be issued and until such time, the age of superannuation will continue to be 60 years. In paragraph 8(i) it is further provided that the pay scale and service conditions of SAU/CAU’s personnel will be determined only by ICAR and that decision taken by the UGC in this regard will not be applicable unless they are accepted by the ICAR. This was followed by a letter dated 12th December, 2002 from the State Government to the Accountant General, communicating him regarding the revision of pay scale with effect from 1st January, 1996. In paragraph (XVI) of the aforesaid letter it was further mentioned that the directions of ICAR alone will be applicable and for implementation of the pay scale and other conditions, wherever necessary, amendments be made in the Agricultural Universities Statutes/Rules. Government of India, Ministry of Agriculture, issued a further office memorandum F.No. 1(7)/98-Per.IV dated 31st October, 2003, addressed to the Chief Secretaries of all the State and Vice Chancellors of the Central Agricultural Universities with copies to the Vice Page 1820 Chancellors of all State Agricultural Universities. Copy of the same was also sent to the Vice Chancellor, Biasa Agricultural University, Ranchi. Through this memorandum it has been communicated that the competent authority has enhanced the age of superannuation of the Teachers/ Scientists of State Agricultural Universities/Central Agricultural Universities, Imphal from existing 60 years to 62 years with effect from 13th October, 2003, Consequently Teachers/Scientists, who are due to retire on superannuation on 31st October, 2003 will also retire after attaining the age of 62 years. This was followed by another letter F.No. 1(7)/98-Per.IV dated 5th November, 2003, clarifying that the enhancement of age of retirement is applicable to such Teachers/Scientists, who are still in service and also to those, who are due to retire on 31st October, 2003 and it will not be applicable to the Teachers/Scientists, who have already retired and to those, who are on extension/re-employment. This communication was also sent to the Chief Secretaries of all the States.
3. It appears that some of the petitioners also made representations to His Excellency the Governor/Chancellor, Birsa Agricultural University, Ranchi. In the meanwhile, the Board of Management of Birsa Agricultural University in its 54th meeting held on 19th November, 2003 vide Agenda Item No. 1084 adopted a resolution for enhancement of the age of superannuation of the Teachers/Scientists of the University from 60 years to 62 years and the same was sent to the Chancellor of the Universities for his assent to the amendment of Clause 13.3(2) of the Statutes, as required under Section 36(2) of the Jharkhand State Universities Act, 2000.
4. On the basis of the aforesaid letter dated 5th November, 2003 and the resolution, the Vice Chancellor of Birsa Agricultural University, Ranchi, recommended to the State Government for enhancement of age of the Teachers/Scientists from 60 to 62 years vide his letter No. 527 dated 10th February, 2004.
5. The State Government, thereafter, issued the impugned notification No. 3/Misc.-18/2004-115 dated 31st July, 2005. Mr. M.S. Anwar, learned Senior Counsel appearing for the petitioners, has assailed the validity of Clause 3 of the impugned notification on the following grounds, namely, (1) the State Government is bound by the instructions of UGC, ICAR as regards the pay scale and service conditions of Teachers/Scientists of Agricultural Universities are concerned, (2) the delay in implementing the directions on the part of the State cannot deprive the petitioners from the benefits of age enhancement (3) the action of the State Government is arbitrary and discriminatory, and (4) the cut off date has no nexus with the object, sought to be achieved.
6. Three separate counter affidavits have been filed; one by respondent Nos. 1 and 2 i.e. the State Government, another on behalf of respondent Nos. 4 and 5 i.e. Birsa Agricultural University, Ranchi, and the last one on behalf of ICAR. Reference shall be made to the replies at the appropriate stage. It is not in dispute that the Birsa Agricultural University is creation of Jharkhand Agricultural Universities Act, 2000. This University was established under Section 3 of the aforesaid Act. Section 8 prescribes the authority of the University whereas Section 9 prescribes constitution of the Board of Management, the Chief Executive Body of the University. Section 10 specifies the power and duties of the Board of Management. Clauses relevant for the purposes of this application, as provided under Section 10, are noticed hereunder:
Page 1821
10. Powers and duties of the Board of Management: The Board of management shall exercise the following powers and shall perform the following duties, namely:
(a) frame, amend and repeal the Statute/Regulations in the manner prescribed under this Act.
xx xx xx (c) approve the recommendation for appointment of officers, teachers and other staff of a University in the manner prescribed; xx xx xx Under Section 20, the Governor of the State of Jharkhand is the Chancellor of the University. Chapter V deals with the service conditions of the Teachers and staff whereas Chapter VII deals with the funds and accounts and Chapter VIII deals with the Statutes and Regulations. Some of the extracts of the relevant provisions of these Chapters are reproduced hereunder; 25. Appointment, selection and fixation of pay and allowances.-(i) Subject to the provision of this Act, the procedure for appointment, promotion, selection, fixation of pay and allowances, and other service conditions of teachers and members of the staff a University shall be as prescribed in the Statutes. (ii) Notwithstanding anything contained in the Act no University or any college or its institution shall create any teaching or non-teaching post involving financial liability, nor shall increase the pay and allowances of its staff without prior sanction of the State Government. xx xx xx 29. University funds and grants.- (1) University shall have a general fund to which the following shall be credited.- (1) its income from fees, emoluments and grants; (ii) contributions or grants made by the State/Central Government and other agencies from time to time; (iii) grants, donations and benefactions, and (iv) other receipts. (2) A University shall form a fund called the Foundation Fund from contributions and grants made by the Central Government and other agencies for doing credit to the said fund. xx xx xx (5) It shall be competent for a University in furtherance of the objectives to accept grants from the Government of Bihar or any other State Government or the Central Government or statutory bodies or endowments or donations under such conditions as may be agreed upon between the University and the Government or donor. (6) A University may have such other funds, as may be prescribed by the Statutes. xx xx xx 31. Management of Funds.- The General Fund, foundation fund and other funds of a University shall be managed as prescribed. Page 1822 32. Grants.- (1) The State Government shall every year, make the following lump sum grants to a University, (i) a grant not less than the next expenditure incurred by the State of Jharkhand on such of the activities of the institution of the agriculture, animal husbandry and other Government departments as are transferred to the University; (ii) a grant not less than the estimated net expenditure on pay and allowances of the staff, contingencies, supplies and services of University other than in respect of the activities in various organizations referred to above in Clause (l); and (iii) a grant to meet such additional items of expenditure recurring and non-recurring as the State Government deem necessary for the proper functioning of the University.
(2) The State Government shall also make non-lapsable lump sum grant to a University in respect of the schemes in the Five year Plan and transfer an amount equal to the net outlay in the annual plan for implementation by the University. Adjustment may be made by the State Government for the anticipated assistance from the Central Government and other agencies sponsoring such schemes provided such assistance may come to a University directly, rather than through the State Government.
xx xx xx 35. Statutes.- Subject to the provisions of this Act the Statutes may provide for all or of the following matters, namely: xx xx xx (4) classification, qualification and manner of appointment of teachers and other non-teaching staff; xx xx xx (9) the manner of appointment and selection of officers other that Vice-Chancellor, and their powers, terms and conditions of service; 36. Statutes how made.- (1) the Board of Management may, from time to time, make new or additional statutes or may amend or repeal the Statutes in the manner hereinafter provided in this Section:
Provided that the Board of Management shall not make any statute or any amendment to a statute affecting the status, powers or constitution of any existing authority until such authority has been given an opportunity of expressing an opinion on the proposal and any opinion so expressed shall be in writing and shall be considered by the Board of Management:
(2) Every new statute or addition to the statute or any amendment or repeal of a statute shall require the approval of the Chancellor, who may assent thereto to withhold assent or remit the same to the Board of Management for consideration.
(3) A new statute or a statute amending or repealing an existing statute shall have no validity unless it has been absented to by the Chancellor.
(4) All statutes made under this Act shall be published in the official Gazette.
Page 1823
7. It has been strenuously argued on behalf of the petitioners that all Agricultural Universities, including Birsa Agricultural University, Ranchi, are bound by the instructions of the ICAR, an expert body, and the service conditions of the teaching faculty and scientists are to be governed and regulated by the guidelines and instructions of ICAR and for this purpose, reference is made to communication dated March 3, 1999, wherein, pay scale of teachers, scientists and other staff of the Agricultural Universities were revised. Reliance is also placed upon Clause 8 of the said communication, which provides for determination of the pay scale and service conditions by ICAR and also mentions about the decision of the competent authority in the Ministry of Agriculture to enhance the age of superannuation from 60 years to 62 years on the proposal of the Council of ICAR. On the same basis further reliance is placed upon the office memorandum dated 31st October, 2003 and letter dated 5th November, 2003, details whereof are referred hereinabove.
8. From the counter affidavit filed by the State Government it is evident that the State Government has received the aforementioned communications for enhancement of age of superannuation. Even the Board of Management of the University also adopted the resolution in its 54th meeting and recommended for enhancement of age to the Chancellor. The State Government has raised a plea that on receipt of the proposal for enhancement of age, the matter was referred to the Law Department and the Finance Department. However, on account of ensuing Parliamentary Elections in the year, 2004 and Assembly Election in the year, 2005 in the State of Jharkhand, the process of decision making slowed clown due to imposition of model code of conduct, which prohibits taking of any such policy decision. The Law Department gave its approval on 2rd July, 2005 and the matter was, thereafter, approved by the State Cabinet on 30th July, 2005 and finally on receiving the assent of His Excellency the Governor of the State of Jharkhand, who is also the Chancellor of the University, on 31st July, 2005 the impugned notification was issued and consequently Statute 13.3(2) came to be amended. The effect of the enhancement was given from the date of notification as the State was unable to shoulder the financial burden. It is also mentioned that the Central government has enhanced the age of superannuation fixing the date of its implementation from 31st October, 2003 without consulting the State Government and the State Government is, thus, not bound to give effect to the proposal of Government of India. It is also mentioned that the decisions of the Central Government are not suo motu applicable to the State or the University and the State Government, accordingly, took a policy decision to enhance the age with effect from the date of notification.
9. The ICAR also filed a short reply, giving details of the decision taken by the ICAR. In paragraph Nos. 9, 14 and 15 of its counter affidavit, it is mentioned that the instructions of DARE/ ICAR regarding enhancement of age of superannuation are not mandatory for the Birsa Agricultural University, Ranchi.
10. It is not in dispute that ICAR is an expert body, which deals with the research etc. in the field of agriculture and also issues instructions and guidelines for the scientific research as also the qualifications, manner and method of research and also in regard to the emoluments, facilities and service conditions of teaching and scientific faculty for the Agricultural Universities and Institutions in the country. Mostly these guidelines and instructions are accepted and implemented by various Universities and other organizations. There is nothing on the record to suggest that Page 1824 the status of ICAR is more than a guide or an expert and its decisions, guidelines and instructions has statutory force and binding on the Universities and organizations, dealing with the agricultural research/education. To the contrary the Birsa Agricultural University is creation of the statute enacted by the State of Jharkhand and its functioning, including the service conditions etc., is governed, regulated and managed under various provisions of Jharkhand Agricultural Universities Act, 2000. As noticed above, the University is created under Section 3 whereas authorities of the University have been specified under Section 8, its Chief Executive Body is the Board of Management constituted under Section 9 and its powers and duties are enumerated under Section 10. Clause (a) of Section 10 empowers the Board to frame, amend and repeal the statute/regulations whereas the power to recommend for appointment of its officers, teachers and other staff are provided under Clause (c). His Excellency the Governor is the Ex. Officio Chancellor of the University in terms of Section 20. The service conditions of the teachers and other staff of the University are to be prescribed by the statutes framed by the University under Section 35 as is evident from Section 25, which deals with the appointment, selection, fixation of pay scale etc. The sources of the fund of the University are mentioned under Section 29. Besides the income from fees, grants, donations etc., one of the major source of University’s fund is the contributions or grants by the State/Central Government. Section 32 further makes it obligatory for the State Government to make various grants to the University.
A perusal of this Section is sufficient to indicate that the major expenditure of the University is met from the grants by the State. Thus, primarily the financial burden of the University is to be shouldered by the State Government. The manner of appointment and terms and conditions of service of the officers of the University, including teachers and other non-teaching staff, is to be prescribed by the statutes framed under Section 35 whereas Section 36 prescribes the procedure and method for making statutes.
11. It goes without saying that the age of superannuation is one of the conditions of service of an employee of the University, which, inter alia, includes the teachers and scientists and this can only be prescribed by way of statutes framed under Section 35, made in accordance with the procedure prescribed under Section 36. Sub-section (2) of Section 36 mandates the approval of every new, additional or amended statutes by the Chancellor. Under Sub-section (3) no statute or amended statute shall have any validity unless it has received the assent of the Chancellor and in terms of Sub-section (4) every such statute has to be published in the Government Gazette. A conjoint reading of various provisions of the Jharkhand Agricultural Universities Act clearly embark upon the fact that the service conditions of the teachers/scientists and other employees of the University can only be laid by way of statutes, validly made by the authorities prescribed under the Act. Therefore, no guideline or instruction of ICAR prescribing service conditions for the teachers and scientists will ipso facto apply, as argued by the learned Counsel for the petitioners. The age of superannuation being one of the service conditions can only be prescribed by way of statutes made under Section 35 and in the manner prescribed under Section 36 and such statute can only become enforceable when receive the assent of the Chancellor and is duly published in Government Gazette.
12. Notwithstanding the decision of the Central Government to accept the proposal of Council of ICAR and its communication to the State Government as also Page 1825 the University vide letters dated March 3, 1999, 31st October, 2003 and 5th November, 2003 enhancing the age of teachers/scientists from 60 to 62 years, such an enhancement is permissible only by way of statutes duly approved and notified in terms of Section 36. The age of superannuation is prescribed under statutes 13.3.(2). Copy of the statues is placed as Annexure 5/A of the writ application. Under this statute the age of superannuation is 60 years. Statute 13.3(2) has been amended vide the impugned notification so as to enhance the age of superannuation from 60 to 62 years. This statute is prospective in nature.
13. It is also noticed that the financial burden for payment of salaries and other emoluments of teachers, which is major part of the expenditure of the University, is upon the State Government. Therefore, the State Government has the right to consider and determine up to what extent and from which period it can shoulder the financial burden within its financial resources. The State Government in its wisdom decided to implement the instructions of ICAR/Central Government prospectively with effect from the date of adoption of the guidelines by amending statutes and not from the date proposed/suggested by the ICAR/Central Government and consequently amended the existing law. This much liberty is to be conceded to the State Government to enable it to provide finances, being an impact of the enhancement of age. Under the situation I am not in agreement with the contentions of the learned Counsel for the petitioners that the State Government is bound by the instruction of the UGC/ICAR regarding the pay scale and service conditions of teachers/scientists. I also do not agree with the contention that the delay in implementing the directions has caused an adverse impact on the petitioners, who were made to retire during the period of receipt of guidelines and its implementation. The State Government has sufficiently explained the delay and even if the explanation is not valid, still no direction can be issued by this Court to implement any law retrospectively merely because a section of the employees is deprived of certain benefits, unless it is established that such deprivation is a consequence of discriminatory and arbitrary treatment. It cannot be disputed that statutes framed in exercise of power under Section 35 has the status of law being a delegated legislation.
14. Now let me examine the other aspect of the issue. It has been argued that the action of the State Government is arbitrary and discriminatory as also the cut off date has no nexus with the object, sought to be achieved. Whenever a change is brought in any law particularly with regard to the service conditions of the existing employees, it has its impact both beneficial and adverse. The change in the statute definitely bifurcates the society or a section of society into two groups, the beneficiary and the non-beneficiary. Is it necessary that such a division is always discriminatory and arbitrary? If this theory is accepted, then perhaps no change can be made in any law, affecting the society or a section thereof. Change in age of superannuation is not a new phenomenon. There have been changes to the detriment of the employees by reducing the age of superannuation and there have been changes enhancing the age of superannuation. In both the cases, the conditions of service are altered. So long the change is affected under authority of law in accordance with the procedure established by law, there is no discrimination or arbitrariness, unless it operates differently on the similarly situated persons. The enhancement of age of superannuation, as made by the impugned notification with effect from 31st July, 2005 definitely operates from the said date. An employee, who retired Page 1826 before the said date and an employee who is in service can not claim equality as they fall in different zones. Such a classification is permissible in law. Petitioners have referred to and heavily relied upon a decision of the Apex Court in the case of B. Prabhakar Rao v. State of Andhra Pradesh reported in 1985 (Suppl) SCC 432, wherein, the following observations have been made:
20…The division of Government employees into two classes, those who had already attained the age of 55 on February 28, 1983 and those who attained the age of 55 between February 28, 1983 and August 23, 1984 on the one hand, and the rest on the other and denying the benefit of the higher age of superannuation to the former class is as arbitrary as the division of Government employees entitled to pension in the past and in the future into two classes, that is, those that had retired prior to a specified date and those that retired or would retire after the specified date and confining the benefits of the new pension rules to the latter class only. Legislations to remedy wrongs ought not to exclude from their purview a few of the wronged persons unless the situation and the circumstances make the redressal of the wrong, in their case, either impossible or so detrimental to the public interest that the mischief of the remedy outweighs the mischief sought to be remedied. We do not find that there is any such impossibility or detriment to the public interest involved in reinducting into service those who had retired as a consequence of the legislation which was since thought to be inequitable and sought to be remedied….
15. Above observations of the Apex Court came under the peculiar facts of the said case. In the State of Andhra Pradesh the Government reduced the age or superannuation of its employees from 58 years to 55 years in February, 1983 and it was applied uniformly to all its employee. Consequently, the fundamental Rule 56(a) and Rule 231 of the Hyderabad Civil Services Rules were amended and the figure 58 was substituted by 55 and thereby reduced the age of superannuation to 55 years. There was protest by the Government employees and the State Government retracted its policy and after entering into an agreement with the employees restored the age of retirement to 58 years by a subsequent ordinance/law with effect from 2rd August, 1984. Some of the employees retired between February, 1983 when the age was reduced to 55 years and 2rd August, 1984 when the age of superannuation was again enhanced. It was under these circumstances the Apex Court held that there is discrimination between the employees who retired on February 28, 1983 and those, who retired between February 28, 1983 and August 23, 1984. In the present case, there is no such discrimination and, thus, the action of the respondents cannot be said to be arbitrary or discriminatory in nature, warranting any interference by this Court.
16. Petitioners have further relied upon a Constitution Bench judgment of the Apex Court in the case of D.S. Nakara v. Union of India , wherein, the benefit of liberalized pension was made available to the pensioners retiring on or after March 31, 1979. The Apex Court observed that the notification granting liberalized pension operates differently to homogenous class of pensioners and is, thus, violative of Article 14 of the Constitution of India.
17. Mr. Anwar has also referred to another decision of the Apex Court in the case of John Vallamattom v. Union of India , wherein, the Apex Court observed as under:
Page 1827
62…The guarantee of equal protection embraces the entire realm of “State action”. It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc. In all these cases, the principle is the same, namely, that there should he no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same. In my view, all persons in similar circumstances shall he treated alike both in privileges and liabilities imposed. The classification should not be arbitrary; it should be reasonable and it must he based on qualities and characteristics and not any other who are left out, and those qualities or characteristics must have reasonable relations to the object of legislation.
18. The ratio of the aforesaid judgment is that the action complained of if operates differently on the same class of persons under similar situations, it offends Article 14. It is admitted case of the petitioners that all of them retired from service prior to issuance of the notification enhancing the aye. As observed above, on the date of notification the petitioners being not in service do not fall in the same category as those, who were in service as on that date and, thus, there is no question of violation of Article 14. In any eventuality whenever the age is enhanced some cut off date has to be announced. If the contention of the petitioners is accepted, then even if the cut off date as recommended by the Government of India i.e. 31st October, 2003 is fixed for the purpose of granting benefit of enhancement of age, all those, who retired earlier can also have the grievance and could have complained discrimination. Therefore, the test which has to be applied is whether the notification operates differently to the same class of persons when it was made applicable.
19. In the case of State of Punjab v. Amar Nath Goyal , the State of Punjab increased the benefit of quantum of gratuity and the benefit was made available from 1st April, 1995 on the basis of the recommendation of the 5th Central Pay Commission. Those, who retired prior to this date, claimed the benefit of revised gratuity etc. and on considering their plea the Apex Court held as under:
26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Government to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, view, either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the centre or at the State level.
20. The Constitution Bench decision in the case of D.S. Nakara v. Union of India (supra) was also considered in this judgment by the Apex Court. This judgment further came up for consideration by the Apex Court in the case of State of A.P. v. Pensioners’ Association , wherein, after noticing this judgment and also the case of D.S. Nakara v. Union of India (supra), the Apex Court observed as under:
39. It is, therefore, beyond and shadow of doubt that the financial implication is a relevant criterion for the State Government to determine as to what benefits can be granted pursuant to or in furtherance of the recommendations made by PRC. PRC also said that while revision of pay shall lake effect from 1.7.1998, the monetary benefit would be payable only from 1.4.1999. Page 1828 If monetary benefit was payable only from 1.4.1999, all rights to get the benefits computed on the basis of revised scale of pay would only be for the purpose of payment of pay with effect from 1.4.1999 or payment of the recurring amount of pension with effect from that date.
21. In view of the law laid down and the plea raised by the State, I am of the considered opinion that there has been no discrimination or violation of Article 14 of the Constitution. On the totality of circumstances, this writ petition fails and is hereby dismissed, but without any order as to costs. Let the original records, produced by Mrs. I. Sen Couhdhary, S.C.-III, be returned to her.