# State of U.P v. Dr. Javed Bahar & Ors

- **Citation:** (2024) 2 ILRA 725
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-15
- **Case number:** J. Special Appeal No. 734 of 2023
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-dr-javed-bahar-ors-51469
- **Pages:** 17

## Headnote

Service Law - U.P. (Krishi Evam Prodyogik
Vishwavidyalaya Adhiniyam), 1958 -U.P.
General Clauses Act, 1904 - Sections 2(k)
& 6 - Age of Superannuation - Appellants
challenged
Single
Judge's
order
dated
14.08.2023
holding
respondents
(Research
Assistants)
as
teachers
entitled
to
superannuation
at
62
years
-
Held,
respondents, initially appointed as Research
726 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistants, were granted 'Teacher' status under
unamended Section 2(k) for conducting/guiding
research,
reinforced
by
Executive
Council
resolution (25.02.2000) and Government Orders
(04.01.2008, 16.02.2010) granting Assistant
Professor pay scale - Amendment to Section
2(k) via U.P. Act No. 9 of 2019, redefining
'Teacher' as Assistant Professor appointed per
UGC/ICAR norms, operates prospectively as no
retrospective intent expressed - Vested right to
'Teacher' status protected under Section 6 of
General Clauses Act, per St. of Rajasthan Vs
Trilok Ram, St. of Gujarat Vs Raman Lal Keshav
Lal
Soni,
and
Punjab
St.
Agricultural
Development
Bank
Ltd.
Vs
Registrar,
Cooperative Societies - Respondents covered
under unamended Section 2(k)'s first part, not
requiring statutory declaration, per P.S. Rama
Mohana Rao Vs A.P. Agricultural University - No
change in superannuation age (60 for nonteaching, 62 for teachers) under Statutes; issue
Ltd. to status, not employer's right to alter
superannuation age - Division Bench judgment
in Writ-A No. 7847 of 2022, upheld by Supreme
Court (02.02.2024), supports vested right
protection - Appellants' reliance on Bishnu
Narayan Mishra and K. Nagraj misplaced as case
not about changing superannuation age - Single
Judge's finding upheld, respondents entitled to
continue till 62 years with consequential
benefits. (Para 12-46)

Special Appeals dismissed.

List of Cases Cited:

## Text

_Characters 0–39,781 of 56,787. This is a partial read: ask again with offset=39781 for what follows._

2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
725
constituted on 11.11.2019. It interrogated
the second respondent and one more
student on 13.11.2019 and they disclosed
name of three more students, one Faculty
member and one staff member, who were
involved in the racket. Thus, there was,
prima facie, evidence in possession of the
University linking the second respondent
with the marking of fake ODs and it seems
that the University had already decided to
place him under suspension so as not to
permit him to appear in the end semester
examination.
The
actual
order
of
suspension was issued a day later on
15.11.2019 but this had in no manner
caused any prejudice to the second
respondent because after passing of the
suspension order, in any case, he could not
have appeared in the End Semester
Examination. Thus, there was no change in
the ultimate result.

42. The issue which remains to be
considered is regarding imposition of B+
Cap by the University, the effect of which
was that the second respondent was not
granted Grade above B+, irrespective of his
actual performance. The learned Single
Judge had directed the University not to
impose B+ Cap on the student taking a
lenient view and with the aim of adopting a
reformative approach. Although strictly
speaking, imposition of B+ Cap may be a
necessary consequence of the rustication of
the second respondent but in exercise of
power in intra-court appeal, we are
reluctant to interfere with the relief granted
to the student in this regard by the learned
single judge. We agree with his view that in
matters relating to students, while on one
hand, the University has to ensure
maintenance of discipline to ensure a
conducive academic atmosphere, but at the
same time it is also obliged to adopt
reformative approach which is critical for
bringing back indisciplined students to the
main stream. We, therefore, decline to
interfere with the ultimate directions issued
by learned Single Judge for removal of B+
Cap and from not making any reference to
the disciplinary proceedings in his mark
sheet as it would definitely visit him with
evil consequences all through his career.

43. In the result, the appeal is
dismissed.
----------
(2024) 2 ILRA 725
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Special Appeal No. 734 of 2023
Connected with
Special Appeal Defective No. 707 of 2023
With other connected cases

State of U.P. ...Appellant
Versus
Dr. Javed Bahar & Ors. ...Respondents

Counsel for the Appellant:
C.S.C.,
S.C.,
Sri
Ashok
Mehta
(Sr.
Advocate)

Counsel for the Respondents:
Sri Rakesh Kumar, Sri Ashok Khare (Sr.
Advocate)

Service Law - U.P. (Krishi Evam Prodyogik
Vishwavidyalaya Adhiniyam), 1958 -U.P.
General Clauses Act, 1904 - Sections 2(k)
& 6 - Age of Superannuation - Appellants
challenged
Single
Judge's
order
dated
14.08.2023
holding
respondents
(Research
Assistants)
as
teachers
entitled
to
superannuation
at
62
years
-
Held,
respondents, initially appointed as Research
726 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistants, were granted 'Teacher' status under
unamended Section 2(k) for conducting/guiding
research,
reinforced
by
Executive
Council
resolution (25.02.2000) and Government Orders
(04.01.2008, 16.02.2010) granting Assistant
Professor pay scale - Amendment to Section
2(k) via U.P. Act No. 9 of 2019, redefining
'Teacher' as Assistant Professor appointed per
UGC/ICAR norms, operates prospectively as no
retrospective intent expressed - Vested right to
'Teacher' status protected under Section 6 of
General Clauses Act, per St. of Rajasthan Vs
Trilok Ram, St. of Gujarat Vs Raman Lal Keshav
Lal
Soni,
and
Punjab
St.
Agricultural
Development
Bank
Ltd.
Vs
Registrar,
Cooperative Societies - Respondents covered
under unamended Section 2(k)'s first part, not
requiring statutory declaration, per P.S. Rama
Mohana Rao Vs A.P. Agricultural University - No
change in superannuation age (60 for nonteaching, 62 for teachers) under Statutes; issue
Ltd. to status, not employer's right to alter
superannuation age - Division Bench judgment
in Writ-A No. 7847 of 2022, upheld by Supreme
Court (02.02.2024), supports vested right
protection - Appellants' reliance on Bishnu
Narayan Mishra and K. Nagraj misplaced as case
not about changing superannuation age - Single
Judge's finding upheld, respondents entitled to
continue till 62 years with consequential
benefits. (Para 12-46)

Special Appeals dismissed.

List of Cases Cited:

1. P.S. Rama Mohana Rao Vs A.P. Agricultural
University; (1997) 8 SCC 350

2. St. of Rajasthan Vs Trilok Ram; (2019) 10
SCC 383

3. St. of Gujarat Vs Raman Lal Keshav Lal Soni;
(1983) 2 SCC 33

4. Punjab St. Agricultural Development Bank
Ltd. Vs Registrar, Cooperative Societies; (2022)
4 SCC 363

5. Bishnu Narayan Mishra Vs St. of U.P.; AIR
1965 SC 1567

6. K. Nagraj Vs St. of Andhra Pradesh; (1985) 1
SCC 523

7. St. of Raj. Vs Mangilal Pindwal; (1996) 5 SCC
60

8. Koteswar Vittal Kamath Vs K. Rangappa
Baliga & Co.; (1969) 1 SCC 255

9. Railway Board Vs C.R. Rangadhamaiah;
(1997) 6 SCC 623

10. B.S. Yadav Vs St. of Haryana; 1980 Supp
SCC 524

11. Qudrat Ullah Vs Municipal Board, Bareilly;
(1974) 1 SCC 202

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This bunch of special appeals are
filed by the State of Uttar Pradesh as well
as Chandra Shekhar Azad University of
Agricultural and Technology, Kanpur,
challenging the judgment and order dated
14.08.2023, passed by learned Single Judge
in a batch of writ petitions with leading
Writ-A No.10622 of 2022 filed by Dr.
Rajendra Prakash Vyas and others.

2. The issue before learned Single
Judge was as to what would be the age of
superannuation
of
the
respondentspetitioners.
The
respondents-petitioners
contended before learned Single Judge that
they are to be treated as faculty member of
the Agricultural University at Kanpur,
against teaching positions, and hence are
entitled to continue in service till the age of
superannuation i.e. 62 years. The case of
the appellants-respondents before learned
Single Judge, on the other hand, was that
the respondents-petitioners were member
of non-teaching staff and were to retire at
the age of 60 years under the Statute.
Learned Single Judge upon consideration
2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
727
of the cause has held that all the
respondents-petitioners are members of
teaching faculty and would be entitled to
continue in service till they attain the age of
superannuation of a teacher i.e. 62 years.
All consequential benefits have been
allowed to the respondents-petitioners.
Thus aggrieved, the appellants-respondents
have filed the present bunch of appeals.

3.

Chandra
Shekhar
Azad
University of Agricultural and Technology,
Kanpur
(hereinafter
referred
to
as
'Agricultural University at Kanpur') is a
university established under the provisions
of the Uttar Pradesh (Krishi Evam
Prodyogik Vishwavidyalaya Adhiniyam),
1958 (hereinafter referred to as 'Act of
1958'). Section 2(k) of the Act of 1958, as
it stood prior to its amendment in 2019,
defined 'Teacher' in following words:-

"2(k). "Teacher" means a person
appointed or recognised by the University
for the purpose of imparting instruction or
conducting
and
guiding
research
or
extension programmes and includes a
person who may be declared by the statutes
to a teacher; and
 1. (University means the Govind
Ballabh
Pant
Evam
Prodyogik
Vishwavidyalaya or the Narendra Deva
Krishi Evam Prodyogik Vishwavidyalaya
or the Chandrashekhar Azad Krishi Evam
Prodyogi Vishwavidyalaya, as the case
may be)."

4. Section 28 of the Act of 1958
provided for framing of statutes subject to
the provisions of the Act which were to
provide for:

(a)..........................

(b)..........................

(c) The designation, manner of
appointment, powers and duties of the
officers of the University.

5. The manner of making statutes is
specified in Section 29. Statutes have been
framed accordingly. Chapter XXI of the
Statutes contain terms and conditions of
service of employees of the University
(Agricultural University at Kanpur) other
than Vice Chancellor. Clause 7(i) of the
Statutes provides the age of superannuation
for all employees of the University to be 60
years. Clause 7(a)(ii) of the Statutes
provides for the age of superannuation of
the teachers/scientists as 62 years. The
provisions, in that regard, are reproduced
hereinafter:-

"7. Age of Retirement

(i) The age of superannuation for
all classes of employees of the University
shall be 60(sixty) years. In no case
extension or re-employment will be given to
any of its employees.

7(a)(ii).
The
age
of
superannuation of teachers/scientists of the
university shall be 62 years after 1.7.2003.
In no case extension or re-employment will
be given to any of its employees."

6. Section 2-A of the Act of 1958
provided for establishment of Agricultural
Universities at Faizabad and Kanpur. We
are concerned in this bunch of appeals with
the Agricultural University at Kanpur. The
other University established under the Act
of 1958 was Narendra Dev Krishi Evam
Prodyogik
Vishwavidyalaya,
Faizabad
(hereinafter referred to as 'Agricultural
University
at
Faizabad').
Before
establishment of these two Universities
there
existed
an
earlier
Agricultural
University in the erstwhile State of Uttar
Pradesh namely Govind Vallabh Pant
728 INDIAN LAW REPORTS ALLAHABAD SERIES
Krishi Evam Pradyogik Vishwavidyalaya,
Pantnagar (now in Nainital, Uttaranchal). A
Government Order was issued by the State
of U.P. on 06.06.1981 granting pay scale of
UGC (University Grants Commission) to
the Research Assistants of Agricultural
University at Pantnagar. Admittedly, all the
respondents-petitioners
were
initially
appointed on the post of Research Assistant
in the University.

7. It transpires that a Writ Petition
No.1082 (SB) of 1995 came to be filed
before Lucknow Bench of this Court by
Rajitram Verma and others, who were the
Senior
Research
Associates
in
the
Agricultural
University
at
Faizabad
claiming
salary
of
Teachers/Assistant
Professors in the pay scale of Rs.2200-4000
on the ground that other Research Assistant
are already getting such benefits. An adinterim mandamus or show cause was
issued in the writ on 07.05.1999. The State
of Uttar Pradesh choose to abide by the
interim
mandamus
and
issued
a
Government Order on 22.07.1999 granting
pay scale of Rs.2200-4000 to the Senior
Research Associate of the Agricultural
University at Faizabad. The aforesaid writ
petition thereafter was dismissed as not
pressed on 03.03.2000. The grant of benefit
of UGC pay scale of Rs.2200-4000,
admissible to a teacher was, however,
restricted to 19 petitioners of the aforesaid
writ petition.

8. The Research Assistants of the
Agricultural University at Kanpur, who had
already filed a Writ Petition No.836 (SB)
of 1994, claimed parity with the petitioners
in whose favour the ad-interim mandamus
or show cause was issued on 07.05.1999.
The Writ Petition No.836 (SB) of 1994 was
disposed of on 18.08.1999 with the
observation that once the State has granted
benefit of UGC pay scale of Rs.2200-4000
to the Senior Research Associates of the
Agricultural University at Faizabad, there
is no reason why such benefits be denied to
the Research Assistants of Agricultural
University at Kanpur.

9. The Executive Council of the
Agricultural University at Kanpur in its
117th meeting held on 25.02.2000 took up
the issue of declaration of Teacher to the 52
Research Assistants, and vide resolution
no.6, the Executive Council resolved to
declare the Research Assistants as a
Teacher.

10. Minimum qualification for
appointment to the post of Teacher in
University
and
its
colleges
got
prescribed by the UGC on 24.11.1998.
Since the respondents-petitioners were
working from much prior to such date,
as such the University at Kanpur
extended the UGC Regulations to direct
recruitments only. Relaxation was given
to the teachers working from before and
had research experience for a period of
five years.

11. A Government Order was issued
on 04.01.2008 sanctioning pay scale of
Assistant Professor to the respondentspetitioners. This Government Order also
provided that Research Assistants be
adjusted/absorbed
against
the
posts
created/existing of Assistant Professor or
equivalent posts. This decision of the State
was reiterated vide Government Order
dated
16.02.2010.
The
respondentspetitioners accordingly state that as they
were initially appointed for conducting and
guiding research and were also granted pay
scale of the post of Assistant Professor by
the Agricultural University at Kanpur, as
such they are to be treated as member of
2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
729
the teaching staff and thus entitled to
continue in service till the age of 62 years.

12. Learned Single Judge in the
judgment
under
challenge,
dated
14.08.2023, took note of the previous
litigation and the passing of orders, therein,
which resulted in the grant of declaration of
'Teacher' to the Research Assistants of the
Agricultural University at Kanpur.

13.

The
issue of respondentpetitioners being teacher apparently would
have been given a quietus but for an
amendment introduced in the Act of 1958
vide U.P. Act No.9 of 2019. The definition
of 'Teacher', contained Section 2(k) of the
Act of 1958 was substituted vide Section
2(k) of the UP Act No.9 of 2019, which is
reproduced hereinafter:-

"2(k). 'Teacher' means a person
not below the rank of Assistant Professor
duly appointed as per the norms and
guidelines of UGC and ICAR in this regard
by the University."

14. The authorities took the view
that as respondents-petitioners were not
appointed as Assistant Professor as per the
norms and guidelines of UGC and ICAR,
as such they cannot be treated as 'Teacher"
and, consequently, they are to superannuate
at the age of 60 years treating them to be
non-teaching
staff.
The
Director
(Administration and Monitoring) of the
Agricultural
University
at
Kanpur,
however, sought guidance from the State
on 05.10.2020 in view of the fact that
Research Assistants were already granted
the status of Teacher/Assistant Professor.
The State Government vide order dated
16.06.2022 opined that in view of the
amended definition of 'Teacher', contained
in Section 2(k) of the Act of 2019, the
respondents-petitioners cannot be treated as
'Teacher'.

15. It may be worth noticing at this
stage that the Agricultural University at
Faizabad had also established various
Krishi Vigyan Kendras. An issue arose as
to what would be the age of superannuation
of Research Assistants engaged in such
Krishi
Vigyan
Kendra.
The
matter
ultimately came before a Division Bench of
this Court at Lucknow in Writ-A No.7847
of 2022, in the context of amended Section
2(k), substituted vide U.P. Act No.9 of
2019. Although the Amending Act was
challenged in the writ but at the time of its
hearing such challenge was given up. The
amended definition of 'Teacher' in Section
2(k) was noticed in para 3 of the Division
Bench judgment dated 17.05.2023. Taking
aid of Section 6 of the General Clauses Act,
the Co-ordinate Bench observed as under in
paras 14 to 18:-

"(14) Thus prior to amendment,
Section
2(k)
provided
that
anyone
appointed or recognized by the University
for the purposes of imparting instructions
or conducting and guiding research or
extension programmes will be a teacher
which will include any person who may be
declared as such by the University.
However, after the amendment, the teacher
in the University is now a person not below
the rank of Assistant Professor appointed
as per the norms and guidelines of UGC
and ICAR. Thus, the persons appointed for
conducting
and
guiding
research
or
extension programmes have been excluded
from
the
purview
of
'teacher'.
The
Government by means of the order dated
14.06.2022 directed that action be taken in
terms of the provisions contained therein in
respect of the employees appointed in
Krishi Vigyan Kendras treating them to be
730 INDIAN LAW REPORTS ALLAHABAD SERIES
non-teaching staff and accordingly, the
impugned orders have been issued retiring
the petitioners on their completion of age of
60 years treating them to be non-teaching
staff.

(15) It is to be noticed that U.P.
Act No. 9 of 2019 does not make a mention
as to from which date the said amendment
shall take effect. It was published on
05.08.2019 and in absence of any specific
date when the U.P. Act No. 9 of 2019
would come in operation, it will be deemed
to
have
come
in
operation
w.e.f.
05.08.2019. It is settled principle of law
that any statutory prescription, which will
include a legislation as well, will operate
prospectively unless the statute itself
provides for its retrospective application
expressly or by implication. U.P. Act No. 9
of 2019 does not expressly provide its
operation to be retrospective. There is no
implied provision in U.P. Act No. 9 of 2019
which can be taken aid of to infer that the
said amending Act will be operative
retrospectively.

(16) In view of the provisions
contained in the amending Act, namely,
U.P. Act No. 9 of 2019, since there is no
express provision of its applicability from a
retrospective date, it will thus operate
prospectively. In our considered opinion,
since U.P. Act No.9 of 2019 has not been
made applicable retrospectively, if a
particular category of employees has
already been classified or recognized as
"Teachers", they will continue to be
treated as "Teachers". We have already
noticed that as per the powers vested in it
in Chapter XII of the First Statutes of the
University, the Board of Management in its
28th meeting held on 30.09.1980 has
already recognized the Subject Matter
Specialists as "Teachers" and thus by
operation of U.P. Act No. 9 of 2019 their
status as "Teacher", in our opinion, will
not change for the reason that U.P. Act No.
9 of 2019 has not been made effective with
effect from any retrospective date.

(17) At this juncture, we may
refer to Section 6 of U.P. General Clauses
Act, 1904 according to which if any U.P.
Act repeals any enactment, then unless a
different intention appears, the repeal shall
not affect the previous operation of any
right, privilege, obligation or liability
acquired, accrued or incurred under any
enactment so repealed. Section 6 of U.P.
General Clauses Act, 1904 is quoted
hereunder:-

"6. Effect of repeal. Where any
Uttar Pradesh Act repeals any enactment
hitherto made or hereafter to be made,
then, unless a different intention appears,
the repeal shall not

(a) revive anything not in force or
existing at the time at which the repeal
takes effect; or

(b) affect the previous operation
of any enactment so repealed or anything
duly done or suffered thereunder; or

(c)
affect
any
right,
privilege,
obligation
or
liability
acquired, accrued or incurred under
any enactment so repealed; or

(d)
affect
any
penalty,
forfeiture or punishment incurred in
respect of any offence committed
against any enactment so repealed;
or

(e) affect any remedy, or
investigation or legal proceeding
commenced
before
repealing
Act
shall have come into operation in
respect of any such right, privilege,
obligation,
liability,
penalty,
forfeiture
or
punishment
as
aforesaid;

and any such remedy may be
enforced and any such investigation or
legal proceeding may be continued and
2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
731
concluded, and any such penalty, forfeiture
or punishment imposed as if the repealing
Act had not been passed."

(18) Thus, by substituting new
definition of 'Teacher' in Section 2(k) in the
Principal Act by way of Act No. 9 of 2019,
the old definition of the word "Teacher"
stands repealed, however, since there is no
express or implied provision in U.P. Act
No. 9 of 2019 for its retrospective
operation, those employees who were
already recognized as "Teachers" will
continue
to
be
"Teachers".
In
the
unamended
Section
2(k),
the
words
occurring are a person "appointed" or
"recognized". Thus before U.P. Act No. 9
of 2019, if a person was appointed as
Teacher, he will be a "Teacher" and if any
employee though not appointed as Teacher,
but is recognized as "Teacher", he shall
also be a "Teacher". At the cost of
repetition, we may again refer to the
decision of the Board of Management of the
University taken in its 28th meeting held on
30.09.1980, wherein the Subject Matter
Specialists
have
been
recognized
as
"Teachers". Thus in the aforesaid view of
the matter, the amendment in the definition
of the word "Teacher" as occurring in
Section 2(k) will not affect the status of the
petitioners as "Teachers". "

16. Learned Single Judge in the
impugned judgment has relied upon the
aforesaid
judgment
to
conclude
that
notwithstanding the amended definition of
'Teacher' the status and pay scale already
granted
to
the
respondents-petitioners
cannot be withdrawn and they are entitled
to continue in service at the age of 62
years.

17. The Division Bench Judgment of
the Lucknow Bench dated 17.5.2023 was
challenged before the Supreme Court in
Special Leave Petition (Civil) Diary No(s).
32010 of 2023, which has been dismissed
vide following orders on 2.2.2024:-

"Delay condoned.

Heard learned counsel for the
parties.

We see no reason to interfere
with the impugned orders.

The Special Leave Petitions are,
accordingly, dismissed.

Pending
applications
stand
disposed of."

18. Sri Ashok Mehta, learned Senior
Counsel for the appellants submits that the
respondents-petitioners were not appointed
as per the norms and guidelines of UGC
and ICAR on the post of Assistant
Professor and, as such, they cannot be
treated as 'Teacher'. He further submits
that the amendment incorporated vide Act
No.9 of 2019 is not challenged and,
therefore,
the
respondents-petitioners
cannot claim themselves to be 'Teacher'. It
is further submitted that Section 6 of the
General
Clauses
Act
will
have
no
applicability in the facts of the present case,
since it is not a case of repeal of statute but
is a case of amendment introduced in the
definition of 'Teacher'.

19. Sri Mehta has placed reliance
upon the judgment of Supreme Court in
Bishnu Narayan Mishra vs. State of U.P.
and others, AIR 1965 SC 1567, to submit
that employer has the right to reduce the
age of superannuation. Reliance is also
placed upon the judgment of Supreme
Court in K. Nagraj and others vs. State of
Andhra Pradesh and another, (1985) 1 SCC
523, for the similar proposition. It is further
argued
that
change in
the
age
of
superannuation does not take away any
vested right, inasmuch as the age of
732 INDIAN LAW REPORTS ALLAHABAD SERIES
superannuation fixed at the time of initial
appointment can always be changed by the
employer. Submission is that though the
pay scale of Rs.2200-4000 admissible to a
teacher would continue to be available to
Research Assistants, as per the scale of
UGC, but they cannot claim continuation in
service beyond the age of 60 years.

20. Per contra, Sri Ashok Khare,
learned Senior Counsel for the respondentspetitioners submits that the effect of
amendment in the definition of 'Teacher'
would have the same consequence as that
of repeal, inasmuch as the previous
definition stood substituted by a new
provision. The effect of amendment is thus
similar to repeal and the spirit underlying
Section 6 would clearly be applicable.

21. Sri Khare, has placed reliance
upon judgment of the Supreme Court in
State of Rajasthan vs. Trilok Ram, (2019)
10 SCC 383, wherein the effect of
substitution of provision was examined.
Reliance is also placed upon judgment of
the Supreme Court in P.S. Rama Mohana
Rao vs. A.P. Agricultural University and
others, (1997) 8 SCC 350, in order to
contend that a similar definition of
'Teacher', as it previously existed in the
unamended
section
2(n)
fell
for
determination before the Supreme Court.
The Court took the view that the definition
is in two parts. The first part included a
Professor,
Reader,
Lecturer
or
other
Professor appointed or recognized by the
University for the purposes of imparting
instructions or conducting any guiding
research or extension programme. The
second part included any person declared
by the Statutes to be a Teacher. Learned
Senior Counsel, accordingly, submits that
the case of the respondents-petitioners fell
in the first part and, therefore, they are
covered by the definition of 'Teacher' even
without a declaration granted under the
Statutes.

22. Learned counsel further
submits that the status of 'Teacher' since
has
already
been
granted
to
the
respondents-petitioners, by the University,
and the pay scale etc. is otherwise protected
by the State, as is urged by Sri Mehta, the
status of 'Teacher' cannot simultaneously
be withdrawn for the age of superannuation
and retained for the purposes of payment of
salary. It is further argued that vested right
since has been created in favour of
respondents-petitioners on account of grant
of declaration of 'Teacher', and the pay
scale of Assistant Professor is granted to
them, therefore, they cannot be treated as
non-teaching staff in the matter of other
service conditions. Sri Khare, submits that
the right of the employer to change the age
of superannuation is not doubted but that,
in fact, is not the issue here. The issue
rather is as to whether a vested right
already
created
in
favour
of
the
respondents-petitioners to the status of
'Teacher'
can
be
retrospectively
withdrawn. Reliance is also been placed
upon the judgment of the Supreme
Court in State of Gujarat vs. Raman Lal
Keshav Lal Soni, (1983) 2 SCC 33, as
well as the judgment in Punjab State
Agricultural Development Bank Ltd. vs.
Registrar, Cooperative Societies, (2022) 4
SCC 363.

23. We have heard Sri Ashok Mehta,
learned Senior Counsel, assisted by Sri
Rakesh Kumar, Sri M.P. Sahi, Sri Ankit
Gaur, Sri C.P. Yadav and Sri Pradeep for
the State and Agricultural University at
Kanpur, and Sri Ashok Khare, learned
Senior Counsel, assisted by Sri Om Prakash
Tripathi for the respondents-petitioners and
2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
733
have perused the materials brought on
record.

24. It is not in dispute that all the
respondents-petitioners
were
initially
appointed as Research Assistants. As per
the unamended definition of 'Teacher' in
Section 2(k) of the Act of 1958, it meant a
person appointed or recognized by the
University for the purposes of imparting
instructions or conducting a guiding
research or extension programme and
included a person, who may be declared by
the Statues to be a 'Teacher'. The term
'Teacher' has been employed in a wide
sense to include a person appointed or
recognized by the University for the
purposes of imparting instructions or
conducting a guiding research or extension
programmes. It is undisputed that all the
respondents-petitioners were appointed by
the Agricultural University at Kanpur for
the purposes of conducting and guiding
research. We are, therefore, of the view that
in the first part of the definition contained
in Section 2(k) itself the respondentspetitioners would qualify to be a Teacher.

25. In P.S. Rama Mohana Rao (supra)
a similar definition of 'Teacher' came up
for interpretation before the Supreme
Court. Para 5 of the judgment contains
definition of Teacher in section 2(n), which
is reproduced hereinafter:-

"5. For the purpose of deciding
the above issue arising between the parties,
it is necessary to refer to the relevant
provisions of the Act and the Regulations.
Clause (n) of Section 2 defines "teacher"
as follows:

"2. (n) 'teacher' includes a
professor, reader, lecturer or other person
appointed or recognised by the University
for the purpose of imparting instruction or
conducting
and
guiding
research
or
extension programmes, and any person
declared by the statutes to be a teacher;"

The definition does not say what
the word "teacher" means but includes
certain categories within the meaning of
the said word."

While considering the status of
Physical Director to be a Teacher or not,
the Court clearly countenanced two distinct
eventualities to subsist in the definition of
'Teacher' under Section 2(n). The first part
of the term 'Teacher' included a Professor,
Reader, Teacher or other person appointed
or recognized for the purposes of imparting
instructions or conducting and guiding
research or extension programme , while
the second part included a person to be
declared as a 'Teacher' under the Statutes.
In Para 16 and 17 of the judgment in P.S.
Ram Mohan Rao (supra), the Supreme
Court observed as under:-

"16. In the impugned judgment of
the High Court it has been said that merely
because Physical Directors are paid the
same scales as the teaching staff that does
not confer on them the status of a teacher.
There is also no discrimination if Physical
Directors are retired at the age of 58 years
and other teachers are allowed to retire at
the age of 60 years. The High Court further
said that while it was true that Section 2(n)
of the Act contained an inclusive definition
of "teacher", the Physical Directors did
not come within the categories mentioned
in the inclusive definition. They are neither
Professors nor Readers nor Lecturers nor
were they persons appointed or recognised
by the University for the purpose of
imparting instruction or conducting and
guiding research or extension programmes.
 17. In our view, the learned
Judges did not go into the meaning of the
734 INDIAN LAW REPORTS ALLAHABAD SERIES
word "teacher" in the main part of the
clause nor assessed correctly the effect of
the material evidence on record. The
learned Judges observed that assuming
Physical Directors imparted instructions to
their
students,
unless
the
University
recognised them as teachers they could not
claim the benefit of Section 2(n) of the Act.
Obviously
the
learned
Judges
were
referring to the last part of Section 2(n)
which includes persons other than those
enumerated in the inclusive part if so
recognised by the University. As we have
held that the Physical Directors come
within the main part of the definition of
"teacher", it is in our opinion not
necessary that they should be separately
recognised as teachers by an order or
statute of the University."

26. In the facts of the present case,
the State legislature had enacted the Act of
1958 for establishment of two agricultural
universities in Uttar Pradesh at Faizabad
and Kanpur. A similar University already
existed
from
before
at
Pantnagar.
Government Order was already issued on
06.06.1981 allowing UGC pay scale to
Research Assistants of the Agricultural
University at Pantnagar. Pursuant to an adinterim mandamus issued on 07.05.1999 by
the Lucknow Bench in Writ Petition No.
1082 (SB) of 1995, the State Government
on 22.07.1999 granted the benefit of UGC
pay scale of teacher to Senior Research
Associate of the Agricultural University at
Faizabad.
They
were
also
granted
declaration of Teacher and were adjusted
against such posts. We have already
noticed that the Lucknow Bench of this
Court in Writ Petition (SB) No.836 of 1994
had extended the benefit, granted to Senior
Research
Associate
of
Agricultural
University at Faizabad, to the Research
Assistants of Agricultural University at
Kanpur. The Executive Council clearly
granted declaration of Teacher to the
Research Associate in its resolution dated
25.02.2000.

27. A Government Order dated
04.01.2008 has also been issued extending
the pay scale of Assistant Professor to the
Research Assistants of the Agricultural
University at Kanpur i.e. respondentspetitioners. These Research Assistants have
already been absorbed on the vacant posts
of Assistant Professor or equivalent post.
Subsequent
Government
Order
dated
16.02.2010 is also on record granting the
benefit of post and pay scale of Teacher to
the respondents-petitioners.

28. Sri Ashok Mehta, learned
Senior
Counsel
for
the
State
and
Agricultural University at Kanpur has
referred to and relied upon the Government
Order dated 18.02.2000, whereby the
previous
Government
Order
dated
22.07.1999 has been modified. While
granting the benefit of promotional pay
scale of UGC to 19 petitioners, their post
was re-designated as Senior Research
Associate and no further post with such
name was to be created henceforth.
Relevant portion of the Government Order
dated 18.02.2000 is extracted hereinafter:-

"मुझे यि किने का ननदेश हुआ िै
नक उपयुदक्त निषयक आपके अर्द्दशासकीय पत्र
सीं०-1914/स्था०/99, नदनाींक 12 निम्बर, 1999
के सींदर्द में तथा कृनष निश्वनिद्यालय फैजाबाद के
शौध सिायकोीं के िेतन पुनरीक्षण के सींबींध में
शासनादेश जारी िोने के नतनथ से यू०जी०सी०
िेतनमान रू० 2200-4000 प्रदान करने के
कारण शासनादेश जारी िोने की नतनथ ि
उच्चीकरण िेतनमान देने की समान नीनत को
दृनिगत रखते हुए। कृनष निश्वनिद्यालय, फैजाबाद
2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
735
के 19 याची सीननयर ररसचद एशोनसयेट को र्ी
यू०जी०सी० िेतनमान देने के सींबींध में पुनदनिचार
करते हुए शासनादेश सीं०- 1138/12-8-99400(157)/90, नदनाींक 22 जुलाई, 1999 में
आींनशक सींशोधन करते हुए श्री राज्यपाल
मिोदय उक्त शासनादेश के प्रस्तर-4 को
ननम्नित सींशोनधत करने की सिषद स्वीकृनत
प्रदान करते ि ैंः-

"िनणदत तथ्ोीं के पररप्रेक्ष्य में एिीं
माननीय उच्च न्यायालय में दायर ररट यानचका
सीं०-1082(एसबी)/1995 में नदए गए ननदेश
नदनाींक 7-5-99 को दृनिगत रखते हुए सम्यक
निचारोपरान्त री राज्यपाल कृनष निश्वनिद्यालय
फैजाबाद के उक्त ररट के 19 याचीगण से
सीननयर ररसचद एशोनसयेट को शासनादेश जारी
िोने की नतनथ 22-7-1991 से यू०जी०सी० का
प्रोन्नत िेतनमान स्वीकृत नकए जाने के आदेश
प्रदान करते िै। इनका पदनाम िररष्ठ अनुसींधान
सिायक कर नदया जाए तथा इस उद्देश्य और
कायद िेतु नकसी र्ी नाम से कोई पद र्निष्य में
सृनजत निीीं नकया जाय।

2- उक्त सींशोधन के फलस्वरूप
शासनादेश नदनाींक 22.7.99 को पूिद प्रस्तर-4
ननरस्त करने की र्ी राज्यपाल मिोदय स्वीकृनत
प्रदान करते िै।"

29. The argument of Sri Mehta that
initial benefit granted in 1999 was modified
in the year 2000 cannot be accepted in view
of the Subsequent Government Order
issued on 04.01.2008, which categorically
held as under:-

"अतैंः उक्त को दृनिगत रखते हुए
शासनादेश नदनाींक 7.8.2002 को सींशोनधत
करते हुए नदनाींक 8.1.2001 से याचीगण को
सिायक प्राध्यापक का िेतनमान शासनादेश
नदनाींक 20.10.05 द्वारा प्रदान कर नदया गया िै।
इस सींबींध में यि र्ी उल्लेखनीय िै नक
निश्वनिद्यालय से प्राप्त सूचना के अनुसार
निश्वनिद्यालय में सृनजत/ररक्त सिायक प्राध्यापक
एिीं समकक्षीय पदो पर याचीगण को समायोनजत
कर नलया गया िै। "

30. The Government Order dated
04.01.2008
has
been
reiterated
vide
Government
Order
dated
16.02.2010.
Operative
portion
of
the
aforesaid
Government
Order
is
extracted
hereinafter:-

"अतैंः उक्त को दृनिगत रखते हुए
शासनादेश नदनाींक 7.8.2002 को सींशोनधत
करते हुए नदनाींक 8.1.2001 से याचीगण को
सिायक प्राध्यापक का िेतनमान शासनादेश
नदनाींक 20.10.05 द्वारा प्रदान कर नदया गया िै।
इस सींबींध में यि र्ी उल्लेखनीय िै नक
निश्वनिद्यालय से प्राप्त सूचना के अनुसार
निश्वनिद्यालय में सृनजत/ररक्त सिायक प्राध्यापक
एिीं समकक्षीय पदो पर याचीगण को समायोनजत
कर नलया गया िै।"

31. In view of the specific stand taken
by the State Government, by issuing the
aforesaid Government Orders, various
proceedings initiated before the Writ Court
as also the contempt proceedings were
dropped.
The
appellants-respondents
clearly admit that the benefit of pay scale
of 'Teacher' granted to the respondentspetitioners is not proposed to be withdrawn.
It is admitted to the appellants-respondents
that the pay scale admissible to an Assistant
Professor under the UGC scale would
continue to be paid to respondentspetitioners. Their entitlement, in that
regard, is not doubted or disputed.

32. The only issue raised by the
appellants-respondents is with regard to the
age of superannuation of respondentpetitioners. According to the appellantsrespondents, it is open for the employer to
736 INDIAN LAW REPORTS ALLAHABAD SERIES
change the age of superannuation, and that
age of superannuation is otherwise not a
vested right and, therefore, the plea that it
cannot be retrospectively amended is
misconceived.

33. It is worth clarifying at this stage
that there is no change in the age of
superannuation under the Act or the
Statutes. The age of superannuation has
been fixed under clause 7 of the Statutes
and there is no amendment in it. For the
non-teaching
staff
the
age
of
superannuation from the very beginning is
60 years and continues to remain the same.
Similarly, in the case of teaching staff the
age has remained at 62 years. We are,
therefore, not required to answer the
question as to whether any change in the
age of superannuation is permissible or not.

34. In the facts of the present case, we
are only concerned with the issue as to
whether the amendment in Section 2(k) can
be given a retrospective application, so as
to deny the benefit of designation of
'Teacher' to the respondents-petitioners?

35. In State of Rajasthan vs. Trilok
Ram (supra) the Supreme Court has
considered the effect of amendment in a
legislation. What exactly happens in a case
of amendment and as to what extent the
repeal would be applicable in such a case
has been dealt with in para 18 and 19 of the
judgment
which
are
reproduced
hereinafter:-

 "18. We are in this case
concerned with the effect of amending Act
which brought about the substitution of a
provision. An amendment which brings
about substitution of a provision essentially
does two things. In the first place, the
provision which is substituted undergoes a
repeal. At the same time, there is a reenactment through the newly inserted
provisions.

19. We may only refer to a
decision of this Court in State of Rajasthan
v. Mangilal Pindwal [State of Rajasthan v.
Mangilal Pindwal, (1996) 5 SCC 60 : AIR
1996 SC 2181] , therein this Court inter
alia held as follows: (SCC pp. 63-64, paras
9-12)

"9. As pointed out by this Court,
the process of a substitution of statutory
provision consists of two steps; first, the
old rule is made to cease to exist and, next,
the new rule is brought into existence in its
place. (See: Koteswar Vittal Kamath v. K.
Rangappa Baliga & Co. [Koteswar Vittal
Kamath v. K. Rangappa Baliga & Co.,
(1969) 1 SCC 255 : (1969) 3 SCR 40] ,
SCR at p. 48.) In other words, the
substitution of a provision results in repeal
of the earlier provision and its replacement
by the new provision. As regards repeal of
a statute the law is thus stated in
Sutherland on Statutory Construction:

'2042. The effect of the repeal of
a statute where neither a saving clause nor
a general saving statute exists to prescribe
the governing rule for the effect of the
repeal, is to destroy the effectiveness of the
repealed act in futuro and to divest the
right to proceed under the statute, which,
except as to proceedings past and closed, is
considered as if it had never existed.' (Vol.
I, Para 2042, pp. 522-23.)10. Similarly in
Crawford's Interpretation of Laws it has
been said:

'316.
Effect
of
Repeal,
Generally.- In the first place, an outright
repeal will destroy the effectiveness of the
repealed act in futuro and operate to
destroy inchoate rights dependent on it, as
a general rule. In many cases, however,
where statutes are repealed, they continue
to be the law of the period during which
2 All. State of U.P. Vs. Dr. Javed Bahar & Ors.
737
they were in force with reference to
numerous matters.' (Para 316 pp. 640-41.)

11. The observations of Lord
Tenterden and Tindal, C.J.