Hon'ble Ram Surat Ram (Maurya),J.
Learned Standing Counsel represents respondent nos. 1 and 2. Sri Ritvik Upadhaya, Advocate has accepted notice on behalf of respondent no.3.
Issue notice to respondent no.4 fixing 30th July, 2012 as the date.
Petitioner to take steps within a week.
All the respondents may file counter affidavit by the next date fixed.
List on the date fixed along with civil misc. writ petition no. 38802 of 2011.
Controversy with regard to the age of retirement of teachers of affiliated degree colleges was subject matter of consideration before a Division Bench of this Court in Civil Misc. Writ Petition No. 29776 of 2009 (Dr. Hari Prakash Mittal & Ors. vs. State of U.P. & Ors.) along with connected writ petitions. The Division Bench, after noticing that the State Government has already taken a decision to not to enhance the age of retirement of teachers of affiliated degree colleges covered by U.P. State Universities Act, 1973 from 62 years to 65 years as per the Government Order issued on 9th July,2009, proceeded to hold that the petitioners had no enforceable right for the increase of the age of superannuation. It was held that the issues raised in the writ petition were squarely covered by the judgment of Apex Court in the case of B. Bharat Kumar & Ors. vs. Osmania University & Ors. Reported in (2007) 11 SCC 58. The bunch of writ petitions was accordingly dismissed on 7th April, 2010. A review application was also filed in the matter, which was rejected on 13th September, 2010.
Petitioner claims to be working in a degree college affiliated to Deen Dayal Upadhya Gorakhpur University, Gorakhpur. The provisions of U.P. State Universities Act, 1973 and the first Statute framed by the University are fully applicable. Petitioner is to attain the age of 62 years on 30th June, 2012. In accordance with the Statutes as applicable, he is to retire on the said date.
Petitioner with reference to the order passed by the Apex Court dated 27th June, 2011 in Special Leave to Appeal ( Civil)............./2011 CC 8675 of 2011 (Shambhu Nath Upadhya & Ors. vs. State of U.P. & others) contends that the Apex Court while hearing the said appeal against the judgment of the Allahabad High Court dated 22nd June, 2010 passed in Civil Misc. Writ Petition No. 36285 of 2010, wherein the plea of teachers of affiliated degree colleges for continuance till the age of 65 years had been rejected, has been please to order status-quo. It is further stated that order of status quo has been explained by various Division Benches of the Allahabad High Court. It has been provided that all those teachers, who had already attained the age of superannuation i.e. 62 years on the date of the order of the High Court, their retirement would abide by the orders to be passed in the writ petition while in case of teachers, who had not attained the age of superannuation on the date of the order of the High Court, they shall be permitted to continue even beyond 62 years.
For ready reference, order passed by the Apex Court in the case of Shambhu Nath Upadhaya (Supra) and the orders passed by the Division Benches of High Court at Allahabad and the Bench at Lucknow dated 30th June, 2011 (passed in Service Bench No. 1178 of 2011; Dr. Ram Adhar Pandey vs. State of U.P. & Ors.), dated 15th July, 2011 (passed in Service Bench No. 1188 of 2011; Prof. Vishnu Kumar Tandon & Ors. vs. Union of India) and dated 6th June, 2012 (passed in Civil Misc. Writ Petition No. 29561 of 2012; Smt. Sharda Rani vs. State of U.P. & others) are quoted herein below.
Order of the Apex Court in the case of Shambhu Nath Upadhaya (Supra):
"Permission to file SLP granted.
Exemption allowed.
Issue notice on the application seeking condonation of delay, on special leave petition as also on the application for impleadment.
Status-quo exists as on date shall be maintained in the meanwhile.
Tag with SLP (C) Nos. 18766-18782 of 2010"
Order of Division Bench dated 30th June, 2011:
"Heard learned counsel for the petitioner, learned Chief Standing Counsel, Sri Manik Sinha appearing on behalf of opposite party nos. 2,3 and 4 as well as Sri I.H.Farooqui, Assistant Solicitor General of India on behalf of Union of India.
Submission of learned counsel for the petitioner is that issue in regard to retirement of Professor of the Universities at the age of 65 years is engaging attention of Hon'ble the Supreme Court. Earlier writ petition was filed before this Court and the Division Bench dismissed� the petition then the person concerned approached Hon'ble Apex Court by means of special leave to appeal and the following order was passed in the special leave to appeal :-
"Status quo exists as on date shall be maintained, in the meanwhile."
Learned counsel for the petitioner submits that petitioner is similarly situated and he is entitled to the benefit of the same interim relief.
We, therefore, provide that in case petitioner is identically situated to the case of the person who has approached� Hon'ble the Supreme Court, the benefit of the interim order passed by the Hon'ble Supreme� Court in the special leave to appeal will also be available to the petitioner."
Order of the Division Bench dated 15th July, 2011"
"Notice on behalf of the respondent no. 1 has been accepted by the learned Assistant Solicitor General of India whereas notice for 2 has been accepted by the learned Chief Standing Counsel and notice for respondent nos. 4 and 5 has been accepted by Sri S.P. Shukla. Notice on behalf of respondent no. 3 and 6 has been accepted by their respective counsel.
Ms. Alka Saxena, Advocate has put in appearance for respondent no. 1.
Issue notice to the respondent no. 7 returnable at an early date.
Learned counsel appearing for the petitioner submits that the Apex Court in SLP filed against the judgment passed by this Court dismissing the writ petition has passed the interim order for maintaining the status quo and this Court also in various writ petitions has passed the same order. This Court has also passed interim order, saying that the teachers of the University and Degree Colleges who have reached the age of 62 years but claim to be retired at the age of 65 years, their retirement shall be subject to the further orders of the Court.
List and connect the instant writ petition with Writ Petition No. 1178 (S/B) of 2011 in re Dr. Ram Adhar Pandey Vs. State of U.P. & Others; and other similar matters on 10.08.2011. In the meantime the parties shall exchange their affidavits. The case shall not be adjourned on that date.
We, therefore, as an interim measure provide for the teachers who have not crossed the age of 62 years, the status quo shall be maintained till further orders of this Court and in the case of teachers who have crossed the age of 62 years, their retirement shall be subject to the further orders passed by this Court. With respect to the teachers who have crossed the age of 62 years but their retirement is to take effect on completion of the academic session, status quo shall be maintained, for them also."
Order of Division Bench dated 6th June, 2012:
"Learned Standing Counsel has accepted notice on behalf of respondents 1 and 4. Sri Ishant shishu filed Parcha on behalf of respondent no.2.
Issue notice to respondents no.3 and 5 returnable at an early date.
Connect this matter with civil misc. writ petition no.38802 of 2011 and list thereafter.
In view of the fact that in various writ petitions similar controversy has been raised and this Court has granted the interim orders accordingly, we also pass the same orders.
We, therefore, as an interim measure, provide that the teachers who have not crossed the age of 62 years, the status-quo shall be maintained till further orders of this Court and in the case of teachers who have crossed the age of 62 years, their retirement shall be subject to the further orders passed by this Court. With respect to the teachers who have crossed the age of 62 years but their retirement is to take effect on completion of the academic session, status-quo shall be maintained by them also."
Petitioner seeks similar interim protection.
Having examined the records of the present writ petition, we find that the decision of the State Government to not to extend the age of superannuation of teachers of degree colleges beyond 62 years stands on record as on date. The statutory provisions in that regard admit of no exception. The teacher concerned has to retire on attaining the age of 62 years as per the provision applicable. Interim order granted by the Apex Court in the case of Shambhu Nath Upadhaya (Supra) will not mean that all the teacher of degree colleges, even after attaining the age of 62 years, would be entitled to continue till he/she attains the age of 65 years specifically in the circumstance when the Apex Court has not stayed the operation of either of the statutory provisions or the decision of the State Government, whereby it was resolved that the age of retirement of teachers of affiliated degree colleges shall continue to be 62 years.
This Court has been informed that the Division Bench judgment of this Court in the case of Dr. Hari Prakash Mittal (Supra) has not been stayed by the Apex Court and therefore, the said judgment is binding upon this Court.
It is settled law that the final judgment of a Coordinate Bench is binding, so long as it is not upset by the larger Bench or by the Higher Court, while interim orders are not binding and therefore, this Bench would rather follow the final decision of the High Court instead of the interim order, which has been granted.
In view of the aforesaid, it is provided that the petitioner shall retire in terms of the statutory provisions applicable as on date, however, his retirement shall abide by the orders to be passed in the present writ petition and in case petitioner succeeds he shall be entitled to all consequential benefits.
(Arun Tandon, J.) [ Ram Surat Ram (Maurya),J.] Order Date :- 28.6.2012 Sushil/-
Case :- WRIT - A No. - 30706 of 2012 Petitioner :- Dr. Vinod Kumar Srivastava Respondent :- State Of U.P. Thru' Secy.Of Higher Education U.P.Govt.& Ors.
Petitioner Counsel :- S.K. Gaur,Ritvik Upadhyaya Respondent Counsel :- C.S.C.
Hon'ble Arun Tandon,J.
Hon'ble Ram Surat Ram (Maurya),J.
For order see order of date passed on the separate sheets.
(Arun Tandon, J.) [ Ram Surat Ram (Maurya),J.] Order Date :- 28.6.2012 Sushil/-