# Dr. Prem Chandra Mishra v. State of U.P. & Ors

- **Citation:** (2022) 12 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Writ-A No. 3950 of 2022
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-prem-chandra-mishra-v-state-of-u-p-ors-47886
- **Pages:** 12

## Headnote

A. Service Law - Age of Superannuation -
University Grants Commission Act, 1956 -
436 INDIAN LAW REPORTS ALLAHABAD SERIES
Clause (e) and (g) Section 26(1) - U.P.
State Universities Act, 1973: Section 50(6)
- The states are free to decide as to
whether the scheme would be adopted by
them or not and there was no automatic
application of recommendation made by
the UGC. However, if any petitioner, who
claims any benefit under the scheme without
the responsibility attached thereto, should also
fail, which also meant that the scheme has to
be implemented in a composite manner
and not in a piece-meal manner as is
being suggested by the Respondents. (Para
17)

The state cannot pick and choose a part of the
scheme to its liking and not implement the other
part of the scheme. Both the responsibility and
the benefit have to go side-by-side and has to
be dealt in a composite & together manner,
provided always that the state is free to decide
to whether implement the scheme or not. The
state of Uttar Pradesh has already taken the
benefit of the scheme of UGC and is now
refusing the responsibility of increasing the age
of superannuation. (Para 18)

B. Distinction between 'quashing of an
order' and 'stay of operation of an order' -
Quashing of an order result in the
restoration of the position as it stood on
the date of the passing of the order which
has been quashed. The stay of operation
of an order does not, however, lead to
such a result. It only means that the order
which has been stayed would not be
operative from the date of passing of the
stay order and it does not mean that the
said order has been wiped out from
existence. (Para 19)

It cannot be said that merely because there is a
stay granted by the DB of this Court that the
order of the Ld. Single Judge has been "wiped
out from existence." Thus, stay of operation of
an order cannot be considered as quashing of
an order. In any case, the need for
consistency of approach and uniformity in
the
exercise
of
judicial
discretion
respecting
similar
causes
and
the
desirability to eliminate occasions for
grievances of discriminatory treatment
requires that all similar matters should
receive similar treatment except where
factual differences require a different
treatment so that there is assurance of
consistency, uniformity, predictability and
certainty of judicial approach. (Para 21)

C. Rule of Precedent - A coordinate bench
cannot comment upon the discretion
exercised
or
judgment
rendered
by
another coordinate bench of the same
court. The rule of precedent is binding for the
reason that there is a desire to secure
uniformity and certainty in law. A bench must
follow the decision of a coordinate bench and
take the same view as has been taken earlier.
The earlier decision of the coordinate bench is
binding upon any latter coordinate bench
deciding the same or similar issues. If the latter
bench wants to take a different view than that
taken by the earlier bench, the proper course is
for it to refer the matter to a larger bench. (Para
22, 23)

In the present case, this Court finds it
appropriate to extend the benefit to the
petitioner as has been granted to other similarly
situated parties. Moreover, this court cannot be
oblivious of the law of precedents, which forms
the foundation of administration of justice and it
has been held time and again that a Single
Judge of a High Court is ordinarily bound to
accept as correct judgments of Courts of
coordinate jurisdiction and of Division Benches
and of the Full Benches of his Court. The
reason of
the
rule
which
makes
a
precedent binding lies in the desire to
secure uniformity and certainty in the law.
(Para 22)

This court finds that the issue relating to the
present case is no longer res integra, as it
already stands decided by at least three
judgment/order of this court. The judgment of
this court was based on a finding returned by
the
Uttarakhand
High
Court,
which
has
considered the issue in the correct perspect

## Text

_Characters 0–39,989 of 41,634. This is a partial read: ask again with offset=39989 for what follows._

12 All. Dr. Prem Chandra Mishra Vs. State of U.P. & Ors.
435
required to be remunerated at that rate for
the subsequent years.

47. Before parting with the matter, we
must note that Special Appeal No. 463 of
2020 is directed against the judgment and
order of the learned Single Judge dated
August 20, 2019 passed in Writ-A No.
55334 of 2017. In the said writ petition,
Bhola Nath Pandey son of late Sri Kedar
Nath Pandey, resident of 103, Shaheed
Nagar, Koraon, District Prayagraj was the
first petitioner. The said writ petition was
allowed by the judgment and order dated
August 20, 2019. It has to be recorded that
Bhola Nath Pandey filed Writ-A No. 55334
of 2017 in the year 2017, substantially
seeking relief of payment of honorarium @
₹17,000/- per month, pursuant to the
decision of the Project Approval Board,
Government of India from the month of
March, 2017. This relief was granted to
him by the learned Single Judge following
the judgment in Writ Petition No. 7631
(SS) of 2018. Surprisingly, Bhola Nath
Pandey subsequently instituted another writ
petition in the year 2018, being Writ-A No.
3169 of 2018. The said writ petition is one
substantially for the sale relief as that
sought in Writ-A No. 55334 of 2017,
though couched in different words and
more elaborate in its terms. This writ
petition came to be allowed by the learned
Single Judge, also by an order dated
August 20, 2019 following the judgment
and order of the learned Single Judge in
Writ Petition No. 7631 (SS) of 2018, dated
July 3, 2019, under challenge in the leading
appeal. Clearly, the judgment impugned in
Special Appeal No. 465 of 2020 passed in
Writ-A No. 3169 of 2018 cannot be
sustained as the second writ petition, filed
by Bhola Nath Pandey on the same cause
of action and for the same relief is not
maintainable. On the said ground alone,
Special Appeal No. 465 of 2020 deserves
to be allowed in toto.

48. In the result, Special Appeal Nos.
403 of 2019, 399 of 2019 filed at Lucknow
Bench and Special Appeal Nos. 775 of
2020 and 463 of 2020 and Special Appeal
Defective No. 660 of 2020 are allowed in
part. The judgments of the learned Single
Judge are set aside to the extent that these
direct payment of honorarium to the writ
petitioners beyond the year 2017-18,
including incidental directions regarding
payment of interest etc. The judgment is
upheld only to the extent that it directs
payment of honorarium to the writ
petitioners for the year 2017-18 @
₹17,000/- per month. Special Appeal No.
465 of 2020 is allowed. The impugned
judgment passed by the learned Single
Judge stands set aside and the writ petition
dismissed.
----------
(2022) 12 ILRA 435
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2022

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 3950 of 2022
and other connected cases.

Dr. Prem Chandra Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Raj Kumar Upadhyaya (R.K. Upadhyaya), Ajeet
Kumar Dwivedi

Counsel for the Respondents:
C.S.C., Anurag Kumar Singh

A. Service Law - Age of Superannuation -
University Grants Commission Act, 1956 -
436 INDIAN LAW REPORTS ALLAHABAD SERIES
Clause (e) and (g) Section 26(1) - U.P.
State Universities Act, 1973: Section 50(6)
- The states are free to decide as to
whether the scheme would be adopted by
them or not and there was no automatic
application of recommendation made by
the UGC. However, if any petitioner, who
claims any benefit under the scheme without
the responsibility attached thereto, should also
fail, which also meant that the scheme has to
be implemented in a composite manner
and not in a piece-meal manner as is
being suggested by the Respondents. (Para
17)

The state cannot pick and choose a part of the
scheme to its liking and not implement the other
part of the scheme. Both the responsibility and
the benefit have to go side-by-side and has to
be dealt in a composite & together manner,
provided always that the state is free to decide
to whether implement the scheme or not. The
state of Uttar Pradesh has already taken the
benefit of the scheme of UGC and is now
refusing the responsibility of increasing the age
of superannuation. (Para 18)

B. Distinction between 'quashing of an
order' and 'stay of operation of an order' -
Quashing of an order result in the
restoration of the position as it stood on
the date of the passing of the order which
has been quashed. The stay of operation
of an order does not, however, lead to
such a result. It only means that the order
which has been stayed would not be
operative from the date of passing of the
stay order and it does not mean that the
said order has been wiped out from
existence. (Para 19)

It cannot be said that merely because there is a
stay granted by the DB of this Court that the
order of the Ld. Single Judge has been "wiped
out from existence." Thus, stay of operation of
an order cannot be considered as quashing of
an order. In any case, the need for
consistency of approach and uniformity in
the
exercise
of
judicial
discretion
respecting
similar
causes
and
the
desirability to eliminate occasions for
grievances of discriminatory treatment
requires that all similar matters should
receive similar treatment except where
factual differences require a different
treatment so that there is assurance of
consistency, uniformity, predictability and
certainty of judicial approach. (Para 21)

C. Rule of Precedent - A coordinate bench
cannot comment upon the discretion
exercised
or
judgment
rendered
by
another coordinate bench of the same
court. The rule of precedent is binding for the
reason that there is a desire to secure
uniformity and certainty in law. A bench must
follow the decision of a coordinate bench and
take the same view as has been taken earlier.
The earlier decision of the coordinate bench is
binding upon any latter coordinate bench
deciding the same or similar issues. If the latter
bench wants to take a different view than that
taken by the earlier bench, the proper course is
for it to refer the matter to a larger bench. (Para
22, 23)

In the present case, this Court finds it
appropriate to extend the benefit to the
petitioner as has been granted to other similarly
situated parties. Moreover, this court cannot be
oblivious of the law of precedents, which forms
the foundation of administration of justice and it
has been held time and again that a Single
Judge of a High Court is ordinarily bound to
accept as correct judgments of Courts of
coordinate jurisdiction and of Division Benches
and of the Full Benches of his Court. The
reason of
the
rule
which
makes
a
precedent binding lies in the desire to
secure uniformity and certainty in the law.
(Para 22)

This court finds that the issue relating to the
present case is no longer res integra, as it
already stands decided by at least three
judgment/order of this court. The judgment of
this court was based on a finding returned by
the
Uttarakhand
High
Court,
which
has
considered the issue in the correct perspective,
wherein it was held that the members of the
teaching staff of the university of the
state of Uttarakhand have acquired a right
in their favour to have their age of
superannuation increased to 65 years and
such right can be enforced through a
mandamus
u/Article
226
of
the
12 All. Dr. Prem Chandra Mishra Vs. State of U.P. & Ors.
437
Constitution
of
India.
The
judgment
passed by this court or the Hon'ble
Uttarakhand
High
court
is
squarely
applicable to the facts of the present case.
(Para 16)

In view of the facts & circumstances, it is
hereby directed that the Respondent state
of Uttar Pradesh will get the statutes of
University of Lucknow altered providing
for increase of age of superannuation of
the members of teaching staff from 62
years to 65 years, preferably within a
period of three months. The petitioner shall
continue to work on his post, if they are
working, till the appropriate decision is taken by
the state Government as indicated above. The
impugned letters issued on behalf of the
university or the state Government shall abide
by the direction of this court passed in other
identical matter of Dr. Devendra Narain Mishra
case, Chandra Mohan Ojha case and Dr. Anil
Kumar Singh case as mentioned infra. (Para 24)

D. Words and Phrases - 'Qualification' -
The word "qualification" used in S.26(1)(e)
would also mean to include age, qualification
and therefore it was within the competence of
UGC to prescribe age superannuation. (Para 12)

Writ petitions allowed. (E-4)

Precedent followed:

1. Jagdish Prasad Sharma & ors. Vs St. of Bihar
& ors., (2013) 8 SCC 633 (Para 13)

2. Chandra Mohan Ojha & ors. Vs St. of U.P. &
ors., Writ Petition No. 7085 of 2022, decided on
11.05.2022 (Para 15) p

3. Shree Chamundi Mopeds Ltd. Vs Church of
South India Trust Association CSI Cinod
Secretariat, Madras, (1992) 3 SCC 1 (Para 20)

4. Sant Lal Gupta & ors. Vs Modern Co-operative
Group Housing Society Ltd. & ors., (2010) 13
SCC 336 (Para 22)

5. State of Punjab & anr. Vs Devans Modern
Breweries Ltd. & anr., (2004) 11 SCC 26 (Para 23)

Precedent cited:
1. B. Uharat Kumar Vs Osmania University, 2007
(11) SCC 58 (Para 13)

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. These bunch of writ petitions
involve common questions of law and fact.
It is the case of the petitioners that they
were entitled to be allowed to continue
their services as teachers in the university
concerned till the age of 65 years and relies
on three identical orders passed by a
coordinate bench of this Court in similar
situation in the following cases:

(i) Order dated 19.04.2022 passed in
Writ A No. 3433 of 2022 titled as Dr.
Devendra Narain Mishra V/s State of Uttar
Pradesh & Ors;

(ii) Order dated 11.05.2022 passed in
Writ A No. 7085 of 2022 titled as Chandra
Mohan Ojha & 19 others V/s State of Uttar
Pradesh & Ors;

(iii) Order dated 27.05.2022 passed in
Writ A No. 3369 of 2022 titled as Dr. Anil
Kumar Singh V/s State of Uttar Pradesh &
Ors;

2. All the petitioners have common
ground, that in all these cases, it was
directed to the state Government to
incorporate the necessary amendments in
the respective university statues, so as to
raise/increase the age of superannuation
from the existing 62 years to 65 years.
Since, common ground is engaging the
attention of this court in all these bunch of
writ petitions, these petitions are being
disposed of by a common order and for the
sake of convenience, the facts of leading
petition being Writ-A No. 4440 of 2022
(Dr. Prem Chandra Mishra V/s State of U.P
& Others ) is being considered for disposal
of these writ petition. The petitioner, in the
said writ petition claims to have been
438 INDIAN LAW REPORTS ALLAHABAD SERIES
working as a Professor (Psychology) in the
University
of
Lucknow,
wherein
he
superannuated on attaining the age of 62
years on 08.07.2020. However, since the
petitioner was extended the session benefit,
he actually retired on 30.06.2021. Thus, the
petitioner has filed the present writ petition
for the following relief:

"(i) to issue a writ, order or direction
in the nature of Certiorari quashing the
impugned letter dated 27.01.2020 issued on
behalf of respondent University of Lucknow
contained as Annexure - 12 to the writ
petition, to the extent that it prescribe
superannuation
of
the
petitioner
on
attainment of 62 years of age.

(ii) to issue a writ, order or direction
in the nature of Mandamus commanding
the opposite parties state to alter and
modify the statutes of the Lucknow
University providing for increase in age of
superannuation of teachers in Universities
and its affiliate Colleges from 62 years to
65 years in terms of the University Grants
Commission (Minimum Qualifications for
Appointment
of
Teachers
and
Other
Academic
Staff
in
Universities
and
Colleges
and
other
Measures
for
Maintenance of Standards in Higher
Education) Regulations, 2010 and allow
the petitioner to perform his duties of the
post of Professor (Psychology), with
consequential
benefits
of
pay
and
allowances."
(iii) to issue a writ, order or direction in the
appropriate nature declaring the condition
of point no. 2.3 of said Government Order
dated 28.06.2019 as ultra vires and the age
of superannuation of teachers including
petitioner may be directed to be corrected
as 65 years and extension of 2 years of
service
after
attaining
the
age
of
superannuation
may
be
given
after
completing the age of 65 years."

3. This court finds that similar prayers
have been made by the other writ
petitioners in their respective petition.
Counter have been invited by this court,
wherein although counter has been filed in
the lead matter, the same is not the fate of
other connected matters. This court does
not wish to deal with the pleadings of each
& every writ petition separately as the court
is deciding the common issue raised by the
writ petitioner in these bunch of petition. It
is made clear that only the counter filed in
the lead matter Prem Chandra Mishra case
is being dealt with this court and any
pleadings not commensurate & not in
conformity to the pleadings of the lead
matter stands rejected /allowed as per the
findings arrived by this court hereinafter.

4. This court has patiently heard Shri
Dhruv Mathur, Ld. counsel for petitioner in
Writ A No. 3803 of 2022, Shri Sharad
Pathak, ld. counsel for the petitioner in Writ
A No. 3542 of 2022, Shri Rajesh Tiwari,
Additional C.S.C. assisted by Shri Akash
Mishra and Ms. Shagun Srivastava, learned
State Law Officer's for the State of Uttar
Pradesh and Shri Anurag Kumar Singh,
Advocate assisted by Shri Akhilendra
Singh, learned Counsel for the Lucknow
University.

5. It is the common submission of the
counsels for the petitioners that the
Government of India through the Ministry
of
Human
Resources
Development,
department of Higher Education had
decided
to
increase
the
age
of
superannuation for all persons holding
teaching positions on regular employment
against sanctioned posts as on 15.03.2017
in any of the centrally funded higher and
technical education institute under the said
Ministry. In the said chronology, the
Government
of
India,
on
the
12 All. Dr. Prem Chandra Mishra Vs. State of U.P. & Ors.
439
recommendation of the University Grant
Commission has also decided to revise the
pay
scale
of
teachers
in
Central
Universitates
subject
to
the
various
provisions of "Scheme of pay scales as
contained in Government Order dated
31.12.2008"

6. In order to buttress their further
submission, the Ld. Counsels for the
petitioners have brought to the notice of
this court, clause 8(f) of the scheme
notified vide the aforesaid government
order
dated
31.12.2008,
which
also
provides for the age of superannuation and
acknowledges the age thereof to be 65
years. He has also submitted that in
pursuance of the government order dated
31.12.2008, the UGC in exercise of its
power under Clause (e) and (g) of sub
section (1) of section 26 of the University
Grant Commission Act, 1956 has also
framed the university Grants Commission
(Minimum Qualifications for Appointment
of Teachers and other Academic staff in
universities
and
colleges
and
other
Measures for Maintenance of Standards in
Higher education) Regulations, 2010 dated
30.06.2010.

7. It has been submitted that Clause
1.1.2 of the aforesaid Regulations of 2010
provides for its application to every
University established or incorporated by or
under a Central Act, Provincial Act or State
Act and included every institution including a
constituent or affiliated college recognized by
the commission. It is submitted that the
annexure appended to the said regulations at
clause 2.0.0 contained the provisions for pay
scales,
pay
fixation
and
age
of
superannuation etc. and clause 2.1.0 says that
the revised scales of pay and other service
conditions including age of superannuation in
central universities and other institutions
maintained and/or funded by the University
Grants Commission (UGC), shall be strictly
in accordance with the decision of the Central
Government, Ministry of Human Resource
Development (Department of Education), as
contained in Appendix-I.

8. This court finds that Appendix-1
which is a government of India letter dated
31.12.2008 is addressed to the UGC
relating to the scheme of revision of pay of
teachers etc. and clause 8 of the said
appendix, contains the heading "other terms
&
conditions",
wherein
clause
8(f),
contained inter-alia:

(f) Age of Superannuation:

(i) In order to meet the situation
arising out of shortage of teachers in
universities and other teaching institutions
and
the
consequent vacant
positions
therein, the age of superannuation for
teachers in Central Educational Institutions
has already been enhanced to sixty five
years, vide the Department of Higher
Education
letter
No.F.No.119/2006-U.II
dated 23.3.2007, for those involved in class
room teaching in order to attract eligible
persons to the teaching career and to retain
teachers in service for a longer period.
Consequent on upward revision of the age
of superannuation of teachers, the Central
Government has already authorized the
Central Universities, vide Department of
Higher Education D.O. letter No.F.124/2006-Desk(U)
dated
30.3.2007
to
enhance the age of superannuation of Vice-
Chancellors of Central Universities from 65
years to 70 years, subject to amendments in
the respective statutes, with the approval of
the competent authority (Visitor in the case
of Central Universities).

(ii) Subject to availability of vacant
positions and fitness, teachers shall also be
reemployed
on
contract
appointment
440 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond the age of sixty-five years up to the
age of seventy years. Reemployment
beyond the age of superannuation shall,
however, be done selectively, for a limited
period of 3 years in the first instance and
then for another further period of 2 years
purely on the basis of merit, experience,
area of specialization and peer group
review and only against available vacant
positions without affecting selection or
promotion prospects of eligible teachers.
(ii) Whereas the enhancement of the age of
superannuation for teachers engaged in
class room teaching is intended to attract
eligible persons to a career in teaching and
to meet the shortage of teachers by
retaining teachers in service for a longer
period, and whereas there is no shortage in
the categories of Librarians and Directors
of Physical Education, the increase in the
age of superannuation from the present
sixty two years shall not be available to the
categories of Librarians and Directors of
Physical Education.

9.

Moreover,
relating
to
the
applicability of the said scheme, it is
contained at clause 8 (p) (v) of Appendix-1,
as follows:

(v) This Scheme may be extended to
universities, Colleges and other higher
educational institutions coming under the
purview of State legislatures, provided
State Governments wish to adopt and
implement the Scheme subject to the
following terms and conditions:

(a) Financial assistance from the
Central Government to State Governments
opting to revise pay scales of teachers and
other equivalent cadre covered under the
Scheme shall be limited to the extent of
80% (eighty percent) of the additional
expenditure involved in the implementation
of the revision.

(b) The State Government opting for
revision of pay shall meet the remaining 20%
(twenty percent) of the additional expenditure
from its own sources.

(c) Financial assistance referred to in
sub-clause (a) above shall be provided for the
period from 1.01.2006 to 31.03.2010.

(d) The entire liability on account of
revision of pay scales etc. of university and
college teachers shall be taken over by the
State Government opting for revision of pay
scales with effect from 1.04.2010.

(e) Financial assistance from the Central
Government shall be restricted to revision of
pay scales in respect of only those posts
which were in existence and had been filled
up as on 1.01.2006.

(f) State Governments, taking into
consideration other local conditions, may also
decide in their discretion, to introduce scales
of pay higher than those mentioned in this
Scheme, and may give effect to the revised
bands/ scales of pay from a date on or after
1.01.2006; however, in such cases, the details
of modifications proposed shall be furnished
to the Central Government and Central
assistance shall be restricted to the Pay Bands
as approved by the Central Government and
not to any higher scale of pay fixed by the
State Government(s). (g) Payment of Central
assistance for implementing this Scheme is
also subject to the condition that the entire
Scheme of revision of pay scales, together
with all the conditions to be laid down by the
UGC by way of Regulations and other
guidelines shall be implemented by State
Governments and Universities and Colleges
coming
under
their
jurisdiction
as
a
composite scheme without any modification
except
in
regard
to
the
date
of
implementation and scales of pay mentioned
herein above.

10. It has been claimed by the
petitioners that the sate of U.P has availed
12 All. Dr. Prem Chandra Mishra Vs. State of U.P. & Ors.
441
the financial assistance from the central
Government to the extent of 80% for
revising the pay scale of Teachers and
others under the scheme and the regulations
of 2010 has sought to be adopted by the
state of U.P vide various government orders
dated 31.12.2010, 28.05.2015, 22.11.2016
and 08.04.2017. Thus, it is the grievance of
the petitioner that the provisions related to
increase in the age of superannuation of
teachers working in the universities college
and institutions of higher education under
the
state
legislature
were
never
implemented by the state of Uttar Pradesh,
while exercising its powers under section
50(6) of the U.P State Universities Act,
1973, although the State of U.P has availed
all the financial assistance as made
available
to
them
by
the
Central
Government.

11. It is the case of the petitioners that
although the salaries of the teachers in the
state universities including the Lucknow
university were revised under the scheme,
however the Lucknow university failed to
modify its statutes so as to bring the age of
superannuation
of
teaching
staff
in
conformity
with
the
said
scheme/regulations. The petitioner further
submits that as late as on 13.09.2018, the
state of UP while implementing the central
government order dated 02.11.2017 has
sought to avail the 50% grant of the
financial
burden
relating
to
recommendation of the 7th central pay
commission, which as per clause 12
provides
for
existing
provisions
on
superannuation
and
re-employment,
however the state of Uttar Pradesh has
failed to implement the said regulations in
letter & spirit. It has also been submitted
that these grant of financial burden of the
central
government
was
subject
to
implementation of the regulations by the
state government and universities and
colleges concerned as the scheme was a
composite
scheme
and
cannot
be
implemented in piece-meal.

12. Thus, the Ld. Counsels have tried
to bring home the point that since section
26(1)(e) and 26(1)(g) of the UGC act, 1956
provides
to
define
and
prescribe
qualifications that should be ordinarily be
required of any persons to be appointed to
the teaching staff of the university, having
regard to the branch of education in which
he is expected to give instruction and
further UGC may regulate the maintenance
of standards and the co-ordination of work
of facilities in universities, it can be safely
concluded that the word "qualification"
used in section 26(1) (e ) would also mean
to include age, qualification and therefore it
was within the competence of UGC to
prescribe age of superannuation. It has been
thus argued that by operation of law the age
of superannuation of teachers in the
Lucknow university stands increased to 65
years and the failure on the part of the
university and state of UP to make
necessary changes in the statute cannot
deprive the petitioner of his right to
continue in service till the age of 65 years
in terms of the UGC regulations of 2010,
which have a binding effect on the
University.

13. Separate Counter-Affidavit have
been filed by the Respondent No. 1 / State
of Uttar Pradesh and Respondent No.2/
University of Lucknow in the lead matter.
The respondents having filed their counteraffidavit, have also taken common grounds
and have relied on the Judgment of the
Hon'ble Apex Court in Jagdish Prasad
Sharma & Ors V/s State of Bihar & Ors.;
(2013) 8 SCC 633, to contend that the
decision of the State Government for non-
442 INDIAN LAW REPORTS ALLAHABAD SERIES
accepting
increase
of
the
age
of
superannuation to 65 years in terms of
composite character of the scheme of
central Government dated 31.12.2008 and
regulation 2010, through different writ
petitions
stands
settled
in
the
said
judgment, in as much as it was held by the
Hon'ble Apex court that the state of U.P
had discretion and they were statutorily not
bound by the decision of the commission to
enhance the age of superannuation. The Ld.
Counsel has also relied on the judgment of
B.
Uharat
Kumar
Vs
Osmania
University (2007 (11) SCC 58 ), wherein
the Hon'ble Apex court has held that even if
the state Government accepts a part of the
scheme of UGC, it is not necessary that all
the scheme has to be accepted by the state
Government. Further, it has been submitted
that the regulation of the commission
would not be binding on the university of
Delhi and did not impinge upon the
university's power to select its teacher.

14. The Ld. Counsels for the respondent
has also submitted that the role of the UGC is
only to prescribe academic standards and the
question of enhancement of the age of
retirement is exclusively within the domain of
the policy making part of the state government.
Thus, it has been contended that the petitioner
has no right available to be enforced under the
writ. The regulations, 2010 as framed by the
commission could not, therefore, be enforced
on unwilling states in view of the federal stature
of our constitution. In any case, it has been
argued by the Ld. Counsels that the conditions
of service in state universities could not be
controlled by the UGC and even on receipt of
80% of the expenses to be incurred by the
colleges the state's power under the statute
could not be taken away.

15. Towards the end, the Ld. Counsels
has argued that although a similar writ
petition being No. 7085 of 2022 (Chandra
Mohan Ojha and Ors. Vs State of U.P &
Ors.) had been decided vide order dated
11.05.2022, whereby certain direction had
been given to the state government to alter
the age of superannuation of the members of
the teaching state from 62 to 65 years in
respect wherein state Government has
control, however the said order of the Single
Bench has been stayed by the Division Bench
of this court vide order dated 28.06.2022
passed in Special Appeal No. 486 of 2022. To
the similar effect is another identical matter
being Dr. Devender Narain Mishra V/s State
of U.P & Ors. (Writ A No. 3433 of 2022),
wherein order dated 19.04.2022 of the Single
Bench has been stayed vide interim order
dated 07.07.2022 by a Division bench of this
Court.

16. Having heard the learned counsels
for the parties at length, this court finds that
the issue relating to the present case is no
longer res integra, as it already stands
decided by at least three judgment/order of
this court, which has been referred by the
counsels for the petitioner. Further, this
court finds that the judgment of this court
was based on a finding returned by the
Uttarakhand
High
Court,
which
has
considered
the
issue
in
the
correct
perspective, wherein it was held that the
members of the teaching staff of the
university of the state of Uttarakhand have
acquired a right in their favour to have their
age of superannuation increased to 65 years
and such right can be enforced through a
mandamus under Article 226 of the
constitution of India. The judgment passed
by this court or the Hon'ble Uttarakhand
High court is squarely applicable to the
facts of the present case.

17. The reliance of the Ld. Counsels
for the Respondents in the case of Jagdish
12 All. Dr. Prem Chandra Mishra Vs. State of U.P. & Ors.
443
prasad case is misplaced, in as much as the
issue before the Apex Court in the said
bunch of matter as has been indicated in
paragraph 19 was;

"It appears that the States of West
Bengal, Uttar Pradesh, Haryana, Punjab
and Madhya Pradesh implemented the
Scheme without waiting for the UGC
Regulations, which were framed only on
30.6.2010, whereas the said Scheme was
implemented by the aforesaid States long
before the said date. It is when the
reimbursement of 80% of the expenses was
sought for from the Central Government
that the problems arose, since in keeping
with the composite scheme, the concerned
States had not enhanced the age of
superannuation
simultaneously.
The
Central Government took the stand that
since the Scheme in its composite form had
not been given effect to by the States
concerned, the question of reimbursement
of 80% of the expenses did not arise. This
is one of the core issues, which has arisen
in these cases for decision."

And
the
Hon'ble
Apex
Court
concluded at paragraph 65 as herein below:

"We are then faced with the situation
where a composite scheme has been framed
by the UGC, whereby the Commission
agreed to bear 80% of the expenses
incurred by the State if such scheme was to
be accepted, subject to the condition that
the remaining 20% of the expense would be
met by the State and that on and from 1st
April, 2010, the State Government would
take over the entire burden and would also
have enhanced the age of superannuation
of teachers and other staff from 62 to 65
years. There being no compulsion to accept
and/or adopt the said scheme, the States
are free to decide as to whether the scheme
would be adopted by them or not. In our
view, there can be no automatic application
of the recommendations made by the
Commission,
without
any
conscious
decision being taken by the State in this
regard, on account of the financial
implications
and
other
consequences
attached to such a decision. The case of
those Petitioners who have claimed that
they should be given the benefit of the
scheme dehors the responsibility attached
thereto, must, therefore, fail."

 (emphasis supplied)

This court finds the Hon'ble Apex
court has dealt with the issue in a very lucid
and crystal-clear manner, wherein it has
certainly clarified that the states are free to
decide as to whether the scheme would be
adopted by them or not and there was no
automatic application of recommendation
made by the UGC. However, it also
clarified that if any petitioner, who claims
any benefit under the scheme without the
responsibility attached thereto, should also
fail, which also meant that the scheme has
to be implemented in a composite manner
and not in a piece-meal manner as is being
suggested by the Respondents.

18. Thus, in the opinion of this court,
the state cannot pick and choose a part of
the scheme to its liking and not implement
the other part of the scheme. Both the
responsibility and the benefit have to go
side-by-side and has to be dealt in a
composite & together manner as has been
held by the Apex Court, provided always
that the state is free to decide to whether
implement the scheme or not. This court
finds that the state of Uttar Pradesh has
already taken the benefit of the scheme of
UGC
and
is
now
refusing
the
responsibility of increasing the age of
superannuation.
444 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In any case, on a query to the
counsels for the Respondents as to whether
any appeal has been filed or pending
against the order/judgment passed by the
Single Bench on identical issues, the
respondents have stated that special appeals
have been filed against the single bench
order and an interim order of stay has been
also granted in their favour in those special
appeals.

20. Having recorded the submission
of the Ld. Counsel for the respondents and
as to the effect of stay granted by the
Division Bench of this Court on the relied
upon order of the Single Judge, this Court
finds that the Apex Court in the case of
Shree Chamundi Mopeds Ltd. vs. Church
of South India Trust Association CSI
Cinod Secretariat, Madras, reported as
(1992) 3 SCC 1 has held at paragraph 11 of
the said judgment as follows:

"10. ............ While considering the
effect of an interim order staying the
operation of the order under challenge, a
distinction has to be made between
quashing of an order and stay of operation
of an order. Quashing of an order result in
the restoration of the position as it stood on
the date of the passing of the order which
has been quashed. The stay of operation of
an order does not, however, lead to such a
result. It only means that the order which
has been stayed would not be operative
from the date of passing of the stay order
and it dose not mean that the said order has
been wiped out from existence. This means
that if an order passed by the Appellate
Authority is quashed and the matter is
remanded, the result would be that the
appeal which had been disposed of by the
said order of the Appellate Authority would
be restored and it can be said to be pending
before the Appellate Authority after the
quashing of the order of the Appellate
Authority. The same cannot be said with
regard to an order staying the operation of
the order of the Appellate Authority
because in spite of the said order, the order
of the Appellate Authority continues to
exist in law and so long as it exists, it
cannot be said that the appeal which has
been disposed of by the said order has not
been disposed of and is still pending....."

21. The said judgment of the Apex
Court has been consistently followed by the
High Courts and the Apex Court. Thus, to
borrow the phraseology of the Supreme
Court in Shree Chamundi Mopeds Ltd. v.
Church of South India Trust Association
(supra), it cannot be said that merely
because there is a stay granted by the DB of
this Court that the order of the Ld. Single
Judge has been "wiped out from existence."
Thus, stay of operation of an order cannot
be considered as quashing of an order. In
any case, this Court finds that the need for
consistency of approach and uniformity in
the
exercise
of
judicial
discretion
respecting
similar
causes
and
the
desirability to eliminate occasions for
grievances of discriminatory treatment
requires that all similar matters should
receive similar treatment except where
factual differences require a different
treatment so that there is assurance of
consistency, uniformity, predictability and
certainty of judicial approach.

22. Thus, this court finds it
appropriate to extend the benefit to the
petitioner as has been granted to other
similarly situated parties in (i) Writ A No.
3433 of 2022 titled as Dr. Devendra Narain
Mishra V/s State of Uttar Pradesh & Ors;
(ii) Writ A No. 7085 of 2022 titled as
Chandra Mohan Ojha & 19 others V/s State
of Uttar Pradesh & Ors, (iii) Writ A No.
12 All. Dr. Prem Chandra Mishra Vs. State of U.P. & Ors.
445
3369 of 2022 titled as Dr. Anil Kumar
Singh V/s State of Uttar Pradesh & Ors.
Moreover, this court cannot be oblivious of
the law of precedents, which forms the
foundation of administration of Justice and
it has been held time and again that a single
Judge of a High Court is ordinarily bound
to accept as correct judgments of Courts of
coordinate jurisdiction and of Division
Benches and of the Full Benches of his
Court. The reason of the rule which makes
a precedent binding lies in the desire to
secure uniformity and certainty in the law.
The Hon'ble Supreme court in the case of
Sant Lal Gupta and Ors. vs. Modern Cooperative Group Housing Society Ltd. and
Ors., (2010) 13 SCC 336, held that it was
neither desirable nor permissible by the
coordinate Bench to disapprove the earlier
judgment and take view contrary to it. A
coordinate bench cannot comment upon the
discretion exercised or judgment rendered
by another coordinate bench of the same
court. The rule of precedent is binding for
the reason that there is a desire to secure
uniformity and certainty in law. A bench
must follow the decision of a coordinate
bench and take the same view as has been
taken earlier. The earlier decision of the
coordinate bench is binding upon any latter
coordinate bench deciding the same or
similar issues. If the latter bench wants to
take a different view than that taken by the
earlier bench, the proper course is for it to
refer the matter to a larger bench.

23. To the same effect is the judgment
of the Apex Court reported in the State of
Punjab and another versus Devans
Modern Breweries ltd. and another, (2004)
11 SCC 26, wherein paragraph 339 laid
down the following: -

"339. Judicial discipline envisages
that a coordinate Bench follow the decision
of an earlier coordinate Bench. If a
coordinate Bench does not agree with the
principles of law enunciated by another
Bench, the matter may be referred only to a
Larger Bench. (See Pradip Chandra Parija
v. Pramod Chandra Patnaik, (2002) 1 SCC
1 followed in Union of India Vs. Hansoli
Devi, (2002) 7 SCC 273. But no decision
can
be
arrived
at
contrary
to
or
inconsistent with the law laid down by the
coordinate Bench. Kalyani Stores (supra)
and K.K. Narula (supra) both have been
rendered by the Constitution Benches. The
said decisions, therefore, cannot be thrown
out for any purpose whatsoever; more so
when both of them if applied collectively
lead to a contrary decision proposed by the
majority."

24. In view of the facts &
circumstances, it is hereby directed that the
Respondent state of Uttar Pradesh will get
the statutes of University of Lucknow
altered providing for increase of age of
superannuation of the members of teaching
staff from 62 years to 65 years, preferably
within a period of three months. The
petitioner shall continue to work on his
post, if they are working, till the
appropriate decision is taken by the state
Government as indicated above. The
impugned letters issued on behalf of the
university or the state Government shall
abide by the direction of this court passed
in other identical matter of Dr. Devendra
Narain Mishra case, Chandra Mohan Ojha
case and Dr. Anil Kumar Singh case as
mentioned supra.

25. As an upshot to the aforesaid
observation,
these
writ
petitions
are
accordingly allowed in the above terms. In
the facts of the case, there shall be no order
as to costs.
----------
446 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 446
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ-A No. 21333 of 2014

Awadh Bihari Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri P.C. Mishra, Sri Dharmendra Kumar Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - Uttar Pradesh
St.
Aided
Educational
Institution
Employees Contributory Provident Fund
Insurance Pension Rules, 1964 - Rule
19(b)
-
Continuous
temporary
or
officiating
service
followed
without
interruption by confirmation in the same
or another post shall also count as
qualifying service. (Para 5)

It is clear that petitioner is entitled to
pensionary benefits under the Uttar Pradesh St.
Aided
Educational
Institution
Employees
Contributory Provident Fund Insurance Pension
Rules, 1964 and for such purposes the ad hoc
continuance from 1995-2013 followed with
regularization would have to be counted
towards qualifying service for sanction and
fixation of pension.