REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NOS. 350-351 OF 2020 (@SLP(C) NOS. 12714-12715 OF 2019)

Chandra Mohan Varma                                                 …Appellant  

Versus  

State of Uttar Pradesh & Ors.           …Respondents

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.   

                 1 A Division Bench of the High Court of Judicature at Allahabad dismissed,

by its judgment  dated 2 February 2018, a Writ Petition instituted by the appellant

under  Article  226  of  the  Constitution.  By  his  petition,  the  appellant  sought  a

mandamus for  his  continuance  in  service  as  Professor  and  Head  of  the

Department of Cardiology of the LPS Institute of Cardiology in GSVM Medical

College, Kanpur until he attained the age of 65.  He claimed this relief on the

basis of a notification dated 6 February 2015 of the Government of Uttar Pradesh

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extending the age of retirement from 60 to 65 years. The appellant had before the

issuance of the above government notification attained the age of superannuation

of 60 years on 13 August 2014. But, in terms of a Government decision1 dated 19

November  2012,  he had been granted  a  ‘session benefit’  of  an extension  of

service up to 30 June 2015. Based on this extension, the appellant’s case is that

he is entitled to the extension in the age of retirement which has been brought

about by the notification dated 6 February 2015. This claim has been repelled by

the  judgment  and  order  of  the  Allahabad  High  Court  which  is  questioned  in

appeal.  

2 On 1 April 1992, the UP Fundamental Rules2 were notified under Section

241(2)(b) of the Government of India Act 1935. Rule 56 provides that:

“Except  as  otherwise  provided  in  this  Rule,  every Government  servant  shall  retire  from  service  on  the afternoon of the last day of the month in which he attains the age of sixty years:

Provided …”  

3 On  21  December  1990,  the  Uttar  Pradesh  State  Medical  Colleges

Teachers,  Service  Rules  19903 were  notified  by  the  Governor  in  exercise  of

powers  conferred  by  the  proviso  to  Article  309  of  the  Constitution.  Rule  9

prescribed  a  maximum  age  for  recruitment  in  medical  colleges,  by  direct

recruitment. For Professors, it was 45 years. Among other things, the Rules made

a   provision  for  constitution  of  cadres  in  Part  II,  recruitment  in  Part  III,

quantifications for appointment in Part IV, procedure for recruitment in Part V and

1 “GO” 2 “Fundamental Rules” 3 “the Rules of 1990”

2

provisions for pay related matters in Part VII. The Rules did not prescribe the age

of retirement. But, Rule 26 contained the following stipulation:

“26.  Regulation  of  other  matters.  –  In  regard  to  the matters  not  specifically  provided  in  these  rules  or  in special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants in connection with the affairs of the State.”

By virtue of Rule 26, the age of retirement of professors in medical colleges was

governed by Rule 56 of the Fundamental Rules which stipulated it as 60 years.  

4 On 16 March 2005, the Medical Council of India Minimum Qualifications for

Teachers in Medical Institutions Regulations 19984 were amended in pursuance

of powers conferred by the Indian Medical Council Act 1956 to incorporate an

enabling provision in the following terms:

“The  maximum  age  limit  upto  which  a  person  can  be appointed or granted extension or re-employed in service against  the  posts  of  Teachers  or  Dean  or  Principal  or Director,  as the case may be, which are required to be filled up as per the norms of the Medical Council of India in  any  Medical  College  or  Teaching  Institution  for imparting  Graduate  and  Post-Graduate  medical education, shall be 65 years.”

This provision was made in view of the shortage of  medical  teachers.  It  was

amended on 17 September 2010 so as to substitute 70 years for 65 years.

5 By a decision notified on 19 November 2012, the State of Uttar Pradesh

provided  that  Assistant  Professors,  Professors  and  Principals  of  Government

Medical Colleges who were to retire after reaching the age of superannuation

4 “the MCI Regulations 1998”

3

during  the  midst  of  an  academic  session  would  be  granted  an  extension  of

service till the end of the session namely 30 June of the following year. This has

been described as an ‘end of session benefit’.  

6 On  6  February  2015,  a  notification  was  issued  by  the  State  of  Uttar

Pradesh by which a decision was taken that  in  order to meet  the continuous

shortage  of  medical  teachers  in  Government  Medical  Colleges,  the  age  of

superannuation for serving faculty members would stand enhanced from 60 to 65

years  and the upper  age limit  prescribed for  recruitment  of  medical  teachers

through the Uttar Pradesh Public Service Commission5 would stand abolished.  

7 The appellant whose date of birth is 13 August 1954 joined as an ad-hoc

lecturer  at  GSVM  Medical  College,  Kanpur  on  17  April  1986.  Over  time  he

received promotions in service. In August 2014, he was working as a Professor in

Cardiology and as Head of Department. In terms of Rule 56, he was due to retire

on attaining the age of 60 years on 13 August 2014.  

8 On 6 August 2014, an order was issued by the Director General, Medical

Education & Training, on an application moved by the appellant on 31 May 2014

granting the benefit of an extension of service until the end of the session subject

to the fulfillment of the conditions stipulated in the GO dated 19 November 2012.

Apprehending that his services would be discontinued on 30 June 2015 at the

conclusion of the academic session, the appellant instituted a Writ Petition before

the Allahabad High Court seeking to interdict his retirement before he attained the

age of 65.  

5 “UPPSC”

4

9 On  30  June  2015,  an  Office  Memorandum6 was  issued  by  the  Chief

Secretary to the State Government stating that upon the end of the session, the

appellant would be demitting office on 30 June 2015. The OM is extracted below :

         “OFFICE MEMORANDUM

The undersigned has been directed to  inform that  after your completing the age of superannuation i.e. 60 years on the date mentioned against  the name, the period of session  ending  benefit  for  the  below  named  Medical Teacher will expire on 30.6.2015:-

Sl  No .  

Medical Teacher

Date of  Birth  

Date of  Retirement  

Present place of posting

Date of  expiry of  session  ending  benefit  

1. Dr. C.M. Verma

13.06.1954 31.08.2014 Professor and Head of  Department,  Cardiology,  Institute of  Cardiology,  Kanpur  

 30.06.2015

2. In  view  of  above,  the  services  of  above-named Medical  Teacher,  working under  session ending benefit, will expire on 30.06.2015”

10 On 1 July 2015, the appellant addressed a communication to the Principal

Secretary, Medical Education seeking re-appointment stating that he was doing

so in pursuance of the telephonic instructions of the DGME but without prejudice

to his right to claim continuance in service until the age of 65 years for which he

had instituted a Writ Petition before the High Court.  

6 OM

5

11 On 2 July 2015, the appellant was re-appointed to the post of Professor of

Cardiology until  further  orders  or  until  the  attainment  of  the age of  65 years

whichever was earlier. The appellant initially furnished a letter of joining service

on re-appointment without prejudice to his rights and contentions in the pending

petition but subsequently withdrew it and submitted a fresh joining letter. He then

proceeded to amend the Writ Petition in order to challenge the OM dated 30 June

2015. The State Government in its counter affidavit opposed the Petition stating

that  the  appellant  was  not  entitled  to  the  benefit  of  the  notification  dated  6

February 2015 since he had already attained the age of superannuation on 13

August 2014 and retired on 31 August 2014. According to the State Government,

the continuance of the appellant until 30 June 2015 was on the basis of the grant

of the end of session benefit since the date of his retirement was in the midst of

the  session.  The  Division  Bench  of  the  High  Court  by  its  judgment  dated  2

February  2018 dismissed the Writ  Petition on the ground that  the notification

dated 6 February 2015 increasing the age of superannuation from 60 to 65 years

“has to be ignored rather than to be enforced”. The reasoning which weighed with

the High Court indicates that:  

(i) The petitioner is governed by the UP State Medical College Teachers

Service  Rules  1990.  These  rules  do  not  provide  for  the  age  of

superannuation of teachers of medical colleges. In such a situation, the

Rules applicable to government servants, namely the UP Fundamental

Rules would be applicable;

(ii) Rule  56(a)  of  the  Fundamental  Rules  prescribes  the  age  of

superannuation as 60 years. This Rule has not been amended by the

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State. Therefore, the notification dated 6 February 2015 increasing the

age of superannuation to 65 years was contrary to Rule 56(a) of the

Fundamental Rules; and

(iii) The GO (‘simple  order’)  was subordinate  to  the Fundamental  Rules

(‘superior legislation’) and therefore, being contrary to it, would not have

effect.   

The appellant filed a petition seeking review of the judgment on the ground that

(i) it was without considering and was contrary to a prior judgment of a coordinate

bench of  the High Court  in  Dr Juhi  Singhal v State  of  UP7; and (ii)  it  had

erroneously applied the Fundamental Rules when under Rule 26 of the Rules of

1990,  the  notification  dated  06  February  2015  being  a  ‘special  order’  would

become applicable with effect from 6 February 2015.  

The review was dismissed by a judgment dated 14 March 2019.

12 Assailing the judgment of the High Court, Mr PS Patwalia, learned Senior

Counsel submitted that :

(i) Though the appellant attained the age of superannuation stipulated in

Rule  56 of the Fundamental Rules on 13 August 2014 and would have

retired from service on 31 August 2014, he was granted the benefit of the

GO  dated  19  November  2012  in  terms  of  which  his  services  were

extended until the end of the  session on 30 June 2015;

(ii) During the extended tenure of service, the State Government decided to

increase the age of retirement on 6 February 2015. The benefit of the

7 WP (S/B) No. 4292/2016

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increase in the age of retirement must be granted to the appellant who

was in service on the date on which the State Government decided to

increase the age of superannuation to 65 years;

(iii) The  High  Court  was  in  error  in  coming  to  the  conclusion  that  the

notification dated 6 February 2015 enhancing the age of retirement to 65

years is ultra vires the provisions of Rule 56 of the Fundamental Rules. In

terms of Rule 26 of the Rules of 1990, matters which are not specifically

provided in the rules or in special orders would be governed by the rules,

regulations  and  orders  generally  applicable  to  State  Government

servants. The notification dated 6 February 2015 enhancing the age of

superannuation to 65 years is a special order within the meaning of Rule

26. The MCI Regulations 1998 contain an enabling provision in terms of

which  the  State  Government  was  entitled  to  enhance  the  age  of

superannuation to 65 years; (iv) The appellant is entitled to the benefit of the notification dated 6 February

2015 issued during the pendency of his extended service on account of

the end of session benefit given up to 30 June 2015. As a result of the

end of sessional benefit the superannuation gets postponed and would

be deemed to have taken place only at the end of the session namely on

30 June 2015.  Hence,  the  appellant  would  be  entitled  to  all  benefits

arising  before  that  date  including  the  enhancement  in  the  age   of

superannuation to 65 years;  

(v) The GO dated 19 November 2012 equally extended the end of session

benefit to medical teachers like the teachers in the education department.

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In Ram Vir Sharma v State of UP8 (“Ram Vir Sharma”), this Court held,

while  construing the provisions of  Regulation 21 of  Chapter  III  of  the

Regulations under the Uttar Pradesh Intermediate Education Act 19219,

that the employee must not be deemed to have been superannuated on

the date of attaining the age of 60 years but would be deemed to have

been superannuated only on 30 June following the date on which the age

of 60 years was attained; and  

(vi) Besides the decision in  Ram Vir Sharma  rendered by this Court,  the

High Court  has had occasion to  deal  with  a similar  issue in  Dr Juhi

Singhal  v State  of  UP through Principal  Secretary Department  of

Medical  Education  and  Training10 (“Juhi  Singhal”);  State  of  Uttar

Pradesh through  Principal  Secretary,  Secondary  Education

Lucknow  v Smt Hema Pathak11 (“Hema Pathak”); and  Dr Professor

Rajendra  Chaudhary  v State  of  UP12(“Rajendra  Chaudhary”).  The

decision in Rajendra Chaudhary, though in the context of the abrogation

of the upper age limit for retirement has been affirmed by this Court in its

decision dated 28 August 201913.  

13 On the other hand, Mr Gaurav Singh, learned Counsel appearing on behalf

of the respondents submitted that:  

(i) The appellant attained the age of superannuation, which at the relevant

time was 60 years on 13 August 2014 and would have demitted office on

8 Civil Appeal No. 2606 of 2009 , decided on 4 June 2014 9 “the Intermediate Education Act 1921” 10 Service Bench No 4292 of 2016, decided on 11 November 2016 11 Special Appeal Defective No 477 of 2013, decided on 24 January 2017 12 Writ-A. No. 17078 of 2016, decided on 6 April 2018  13 Dr Professor Rajendra Chaudhary v State of Uttar Pradesh, Civil Appeal Nos. 6667-6668 of 2019  

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31 August 2014;

(ii) His  continuance  until  30  June  2015  in  terms  of  the  GO  dated  19

November 2012 until the end of the session (30 June 2015) did not alter

the date of superannuation;

(iii) The continuance of the appellant until 30 June 2015 was only to obviate

a dislocation being caused as a result  of  the retirement  falling in  the

midst of the session;

(iv) The  notification  dated  6  February  2015  extending  the  age  of

superannuation will not apply to the appellant who attained the age of

retirement on 13 August 2014;  

(v) There is a distinction between the provisions of Regulation 21 contained

in the regulations made under Chapter III of the Intermediate Education

Act 1921 and the GO dated 19 November 2012. Under Regulation 21,

there is a deeming provision for an extension of service as a result of

which the retirement would take place at the end of the academic year

following. Regulation 21 contains an opt-out provision. On the other hand

in terms of the GO dated 19 November 2012, the extension of the end of

session  benefit  in  Government  Medical  Colleges  is  conditional  on

satisfactory performance in service. Consequently there is no deeming

extension of the age of superannuation by the GO dated 19 November

2012; and

(vi) The date of superannuation does not stand postponed. The decision of

this Court  in  Ram Vir Sharma  as well  as of the High Court  in Hema

Pathak is distinguishable. The decision in  Juhi Singhal dealt with the

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abolition  of  the  maximum age of  recruitment  and  has  no  application.

Similar is the case with the decision in Dr Rajendra Chaudhary14 which

came up for decision before this Court on 28 August 2019.

14 While considering the rival submissions, it is necessary to clear the ground

in regard to Rule 56 of the Fundamental Rules. Rule 56(a) stipulates that (except

as otherwise provided in it) every government servant shall retire from service on

the afternoon of the last day of the month in which the age of 60 years is attained.

The High Court,  while placing reliance on Rule 56(a), held that a ‘simple’ GO

extending the age of retirement to 65 years would not alter or modify the age of

retirement contained in the Fundamental Rules. Hence, the High Court held that

the age of retirement of 60 years which was prescribed in Rule 56(a) could not be

altered by the notification dated 6 February 2015. The High Court therefore held

that:

“Thus,  even  assuming  that  the  aforesaid  government order  had  come  during  the  service  of  the  petitioner  it would  not  have  the  effect  of  enhancing  the  age  of superannuation prescribed under Rule 56(a) of the Rules which stands unamended.”  

The above extract indicates that the High Court noticed that:  

(i) The  order  extending  the  age  of  retirement  had  not  come during  the

service of the petitioner; and  

(ii) Even  if  it  had,  it  would  not  have  the  effect  of  enhancing  the  age  of

superannuation prescribed in Rule 56(a) which stands unamended.  

15 Rule 26 of the Rules of 1990 makes applicable the rules, regulations and

14 Civil Appeal Nos. 6667-6668 of 2019

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orders applicable generally to government servants serving in connection with the

affairs  of  the state in  regard to matters which are not specifically  provided in

those  Rules  “or  in  special  orders”.  The  notification  dated  6  February  2015

enhancing the age of retirement to 65 years for serving members of the faculty

working in Government Medical Colleges is a special order within the meaning of

Rule 26. That being the position and in terms of the Rules of 1990 which have

been  framed  under  the  proviso  to  Article  309,  the  increased  age  of

superannuation as prescribed in the notification dated 6 February 2015 cannot be

regarded as being ultra vires.

Indeed,  as  we  have  noticed,  the  regulations  framed  by  the  MCI  contain  an

enabling provision in pursuance of which it was open to the State Government to

provide for an increase in the age of superannuation for faculty working in the

Government Medical Colleges. The view of the High Court that the notification

dated 6 February 2015 is ultra vires Fundamental Rule 56 is hence erroneous.  

16 The issue however is whether the appellant was entitled to the benefit of

the increase in the age of retirement from 60 to 65 years as a consequence of the

notification dated 6 February 2015. Mr PS Patwalia’s arguments proceed on the

basis of two hypotheses:

(i) The GO dated 19 November 2012 by which a facility of an extension of

service  is  granted  until  the  end  of  the  session  places  the  faculty  of

medical  colleges  on  the  same  basis  as  teachers  of  the  Education

department; and

(ii) A member of the faculty who was on an extension of service till the end

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of the academic session as on 6 February 2015 would be entitled to an

extension of the age of superannuation brought about by the notification

dated 6 February 2015.  

17 In order to appreciate the submission, it is necessary to consider the terms

on which it was decided by the Government on 19 November 2012 to grant a

session ending benefit to medical teachers. The subject of the communication of

the  Chief  Secretary  to  the  Director  General,  Medical  Education  & Training  is

extracted below:  

“Regarding grant  of  session  ending  benefit  to  the Medical Teachers working in the State Allopathic Medical Colleges after  retirement  on  attaining  the  age  of superannuation.”  

(Emphasis supplied)   

The communication then states :

“I am directed to say on the above-mentioned subject that as per Education Section -1’s  Govt.  Order No. 7022/15 (1)/83/83-31 (16)/77 dated 21.03.1984 facility of extension of  service  upto  the  end of  session  (i.e.  30th June)  has been  granted  to  the  Teachers/Head  Masters  and Principals  working  in  Govt.  Schools  and  Colleges. Similarly,  as per Technical  Education Section -2’s  Govt. Order  No 934/TE-2-7  (E)  ED-78 dated 27.06.1988,  the facility of extension of service upto the end of academic session  (i.e.  30th June)  has  been  granted  to  the Instructors, Lectures Head of Departments and principals working  on  teaching  posts  in  the  Govt.  Technical Education Department, who retire on attaining the age of superannuation in the middle of session i.e. from 01st July to 30th June.  2. Facility of extension of service upto the end of academic session (i.e. upto 30th  June), by approving the  benefit  of  session  ending,  is  granted to  the Lectures, Assistant Professors, Jr. Professors, Professors and Principals  of  Govt.  Allopathic  Medical  Colleges like Education  Department  and  Technical  Education Department, subject to the following conditions:- (1) He is teaching any subject regularly according to

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the recommendations of Medical Council of India. (2) He  is  working  on  the  post  continuously  for minimum  03  years  and  his  work  &  conduct  is satisfactory.  (3) No  departmental  proceeding  or  vigilance enquiry is pending against him. 3. I am also directed to say that such officers, who are not doing teaching work, be not deputed for teaching work in the last year of their service without any specific reason, which may give them the benefit of retention in service upto 30th June unnecessarily.”       

(Emphasis supplied)

The above communication shows that the grant of a session ending benefit is for

medical  teachers working in  the State Medical  Colleges “after retirement on

attaining the age of  superannuation”.  The effect  is  that  a person who has

retired on attaining the age of superannuation, may continue until the end of the

academic session. In the case of the Education department, it  was envisaged

that a teacher who retired in the midst of the session (1 July to 30 June of the

following year) would continue up to the end of the academic session (30 June).

While extending this facility to the faculty of Government Medical Colleges, the

communication  dated  19  November  2012  made  it  abundantly  clear  that  the

extension  of  service  was  not  automatic  but  was  subject  to  the  fulfillment  of

stipulated conditions. These were that:

(i) The teacher should be teaching a subject regularly;

(ii) The teacher should have been working on the post continuously for the

period of three years;

(iii) The work and conduct of the teacher should have been satisfactory; and  

(iv) No  departmental  or  vigilance  enquiry  should  be  pending  against  the

teacher.

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The end of session benefit would not flow as a matter of right but only on fulfilling

the above conditions.  

18 The date  on which  the  employee  attains  the age  of  superannuation  is

prescribed by the Fundamental Rules. The decision which was communicated by

the  State  Government  on  19  November  2012  does  not  alter  the  date  of

superannuation or retirement. However, what the decision effectuates is to allow

the continuance of the employee, after retirement, upon the attainment of the age

of superannuation with the salient purpose of preventing a disruption in education

instruction prior to the end of the academic session. This view is fortified by the

fact that the continuance of the employee until the end of the session is subject to

the fulfillment of conditions stipulated, as noticed above.

19 The notification dated 6 February 2015 provided for:

(i) Enhancing the age of superannuation from 60 to 65 years; and

(ii) Abolition of the maximum age limit for appointment of medical teachers

through the UPPSC. The increase in the age of superannuation from 60

to 65 years was prospective and would apply to those medical teachers

in  Government  Medical  Colleges  who  had  not  attained  the  age  of

superannuation under the prevailing rules. The State Government, in its

counter  affidavit,  has  clarified  that  it  has  consistently  adopted  the

position that the notification dated 6 February 2015 increasing the age

of retirement for medical teachers from 60 to 65 years is prospective

and  would  not  apply  to  teachers,  such  as  the  appellant,  who  had

already crossed the age of superannuation as it then stood prior to the

15

notification dated 6 February 2015. A person who had crossed the age

of 60 before the issuance of the notification and attained the age of

superannuation but was on an extension until the end of the session

would  not  be entitlement  to  benefit  from the increase in  the age of

retirement. Moreover, the State Government has specifically stated in

its counter affidavit that :

“…there is no medical teacher who had attained the age of 60 years prior to the issuance of G.O. on 6.2.2015, who has been given the benefit of increase in retirement age of 65 years,”

The determination of the age of retirement is a matter of executive policy. The

appellant  attained  the age of  superannuation  prior  to  the notification dated 6

February 2015 and was not entitled to the benefit of the enhancement of the age

of retirement.  

20 The  appellant  has  pleaded  a  case  of  discrimination,  relying  upon  the

instances of Dr A K Mehrotra, Dr Mangal Singh and Dr Pradeep Bharti. However,

it  is  evident  from the details  disclosed by the appellant  in  the Special  Leave

Petition that each of the three doctors attained the age of 60 years after the date

of the notification dated 6 February 2015. The details which have been disclosed

by the appellant in the SLP are as follows:

   “ 1. Dr A K Mehrotra (Prof in S P M, Medical College, Jhansi) - DOB 1.4.55 / 60 years completed on 31.3.15 2. Dr  Mangal  Singh  (Prof  in  ENT,  Medical  College,

Allahabad) - DOB 5.6.1955/ 60 years completed on 30.6.15 3. Dr  Pradeep  Bharti  (Prof  in  Surgery,  Meerut  Medical

College) - DOB 26.3.55 / 60 years completed on 31.3.15.”

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21 The appellant has placed reliance on a decision of this Court dated 4 June

2014 in the case of Ram Vir Sharma v State of UP15. In that case, the appellant

was appointed as an ad-hoc Principal with effect from 1 July 2006 on a vacancy

created by the retirement of the incumbent. He retired on attaining the age of

superannuation  on  6  August  2007.  While  he  was  permitted  to  discharge  his

duties  until  the  end  of  the  academic  session  on  30  June  2008,  he  was  not

allowed to discharge the duties of a Principal after 6 August 2007 nor was he

granted his emoluments. The issue before this Court was whether upon attaining

the age of superannuation on 6 August 2007, the appellant was disentitled to

discharge the duties of the post of Principal or whether he could continue up to

the  end  of  the  academic  session.  This  Court,  in  that  case,  construed  the

provisions  of  Regulation  21  contained  in  Chapter  III  under  the  Intermediate

Education Act 1921 which provided as follows:

“21  Principal,  Head  Master,  Teacher  shall  retire  on attaining the age of sixty two years. ....  In case date of superannuation of  a  Principal,  Head Master,  or  teacher falls between 2nd July and 30th June, then in that case retirement date of Principal, Head Master or Teacher falls in the midst of  academic year, except in such cases in which the person concerned do not  desires to continue and issues a notice two month prior to date of retirement, shall  retire  at  the  end  of  the  academic  year  and  said extension  shall  be  deemed  to  have  been  self-granted. Further extension in service shall only be granted in those special  circumstances  which  are  recommended  by  the State Government…”

This Court held that in terms of Regulation 21, a person who was in service at the

beginning of the academic session on 2 July was entitled to continue to serve

until  the end of the academic session (30 June) of  the following year.  In that

15 Civil Appeal No 2606 of 2009

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context, dealing with the case of Ram Vir Sharma, this Court held:

“Thus,  his  age of  superannuation  under  Regulation 21, would be deemed to have been extended till 30.06.2008. It  is,  therefore,  clear  that  the  appellant  must  not  be deemed to have been superannuated on 6.8.2007, but he would be deemed to have been superannuated only on 30.06.2008, under Regulation 21, (extracted above). If he was to superannuate on 30.06.2008, naturally, his tenure of  Principal  would  be  co-terminus  with  the  date  of  his superannuation.”

The above observations of this Court were made specifically in the context of

Regulation  21  which  envisaged  that  where  the  date  of  superannuation  of  a

principal or a teacher falls between 2 July and 30 June of the following year, the

incumbent shall retire at the end of the academic year and the extension shall be

deemed  to  have  been  granted.  The  exception,  in  the  nature  of  an  opt-out

provision, is where an employee does not desire to continue and issues a notice

of  two  months  prior  to  the  date  of  retirement.  The  provisions  contained  in

Regulation 21 are materially different from the conditions subject to which the

session ending benefit was granted by the GO dated 19 November 2012 to the

medical teachers in Government Medical Colleges. A comparison between the

two  provisions  would  indicate  that  Regulation  21  provided  for  an  opt-out

provision: in the absence of the exercise of the option, the teacher “shall retire at

the end of the academic year” and an “extension would be deemed to be have

been… granted”. In contrast, the notification dated 6 February 2015 postulates

that the grant of a session ending benefit is subject to the fulfillment of stipulated

conditions including of the work and conduct of the employee being satisfactory.

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There is no deeming provision extending the age of retirement. The decision in

Ram Vir Sharma is hence distinguishable.

22 The decision of the Division Bench of the Allahabad High Court in  Hema

Pathak considered whether the teacher was rightly promoted by the Committee

of Management on 18 May 2013. The DIOS held that the teacher had already

attained the age of  superannuation before the date on which a resolution for

promotion was passed and was continuing till  the end of the session and was

hence not entitled to promotion. Dealing with the issue the Division Bench of the

High  Court  held  that  the extension of  service  was for  all  purposes a  part  of

service and the incumbent is treated to have retired at the end of the session.

Hence, if before such retirement any benefit including promotion became due, it

could not be denied in the absence of a provision to the contrary. The decision in

the  case  of  Hema  Pathak is  distinguishable  and  has  no  bearing  on  the

construction of the GO dated 19 November 2012. Similarly, the decision of this

Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of

the upper age limit for direct recruitment under the notification dated 6 February

2015.  Dealing with this  aspect,  Mr Justice Nageswara Rao,  speaking for  this

Court in the judgment dated 28 August 2019 observed:

“12…The  High  Court  rejected  the  challenge  to  the enhancement of upper age limit for direct recruitment to the  post  of  Professor  in  Dr.  Juhi  Singhal  (supra)  by holding  that  the  Regulations  framed by  the  MCI  would prevail over the Service Rules. In the said judgment, the High Court was of  the view that  the Government Order dated 06.02.2015 only supplements the Rules and does not supplant them. The High Court further observed that the  relaxation  was  done  in  view  of  the  shortage  of teachers  in  Medical  Institutions  who  are  qualified  for appointment to the posts of Professors. The relaxation of

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the  upper  age  limit  was  applicable  only  to  those departments  where  25  per  cent  or  more  posts  were vacant  and  in  respect  of  other  departments,  the  State Government  decided  not  to  fill  them  up.  In  Navyug Abhiyan Samiti  (supra),  the Division Bench of  the High Court  followed  the  same  logic  and  reasoning  while considering the increase of upper age limit to the post of Principals in Government Medical  Colleges.  We see no reason to disagree with the said findings recorded by the High court.  There  can be no manner  of  doubt  that  the Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over  the  Service  Rules  framed  by  the  State  of  Uttar Pradesh.  The Government  Order dated 06.02.2015 has not been challenged by the Appellants for which reason they cannot make any grievance about the same.”

23 The issue in Dr Rajendra Chaudhary’s case was distinct from the central

point in this case. In the present case the issue is whether the appellant who had

already attained the age of superannuation under the prevailing rules and was

continuing until  the end of the session would be entitled to the benefit  of  the

enhancement of the age of retirement under the notification dated 6 February

2015. The decision in Dr Rajendra Chaudhary is hence distinguishable.  

24 For the reasons that we have indicated, we hold that the appellant who

attained  the  age  of  60  years  –  the  age  of  retirement  which  prevailed  at  the

relevant time – was not entitled to the benefit of the notification dated 6 February

2015. The appellant was continuing until the end of the session (30 June 2015)

after retirement, in terms of the decision dated 19 November 2012. He was not

entitled to the enhanced age of retirement of 65 years.  The terminal benefits

which are due to the appellant shall be accordingly computed and released within

a period of two months from the date of receipt of a certified copy of this order.

For the reasons which we have indicated, we have come to the conclusion that

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there is no merit in the appeals. The appeals shall stand dismissed. There shall

be no order as to costs.     

Pending application(s), if any, stands disposed of.                                              

…….………….…………………...........................J.                         [DR DHANANJAYA Y CHANDRACHUD]

…….…………………………...............................J.   [AJAY RASTOGI]

New Delhi;  January 21, 2020.

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