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srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2093 OF 2011
Satish Kundanlal Agarwal ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
ig WITH
WRIT PETITION NO. 3197 OF 2011
Mr.Mallikarjun Ramgondappa Patil and ors. ...Petitioners
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION NO.3463 OF 2011
Karishma Shankarlal Dass ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
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WITH
WRIT PETITION NO.6262 OF 2011
Prof. T.K. Zanke ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION NO. 7143 OF 2011
Hamid Babulal Munde
ig ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION NO. 7348 OF 2011
Deoram Bajaba Dhamane ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION NO. 7756 OF 2011
Shri Sanjay Raghunath Kulkarni ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
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WITH
ORIGINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.951 OF 2011
Altamash Alnasir Ghaznavi ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION NO. 953 OF 2011
Raghavendra Bhimrao Deshpande ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION LODGING NO. 1409 OF 2011
Krishna Kumar Sharma ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
WITH
WRIT PETITION LODGING NO.1426 OF 2011
Evelyn D'Souza ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
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WITH
WRIT PETITION LODGING NO.1427 OF 2011
Mrs. Rina B. Chakravarty ...Petitioner
Versus
The State of Maharashtra and ors. ...Respondents
Mr.Mihir Desai for petitioners in W.P.Nos.2093 and 7348 of 2011.
Mr.S.G. Deshmukh with Mr.Abhijeet Kandarkar for petitioners in
W.P.No.3463 of 2011.
Mr.S.A.Sawant with Ms.Gunjan Shah for petitioners in W.P.Nos.3197 and
6262 of 2011.
Mr.M.S.Bhandari with Ms. Pranjali Bhandari for petitioners in W.P.Nos.
951 and 953 of 2011.
Mr.Vivek Salunke for petitioners in WP (L) No.1409, 1426 and 1427 of
2011.
Mr.J.S.Chandanani for resp.no.4 in W.P.No.3463 of 2011 and for resp.no.
3 in W.P.Nos.951 and 953 of 2011 and for Resp.No.5 in W.P.(L) Nos.
1409, 1426 and 1427 of 2011.
Mr.Rui A. Rodrigues for UGC in all petitions and for AICTE in W.P.No.
2683 of 2011.
Mr.R.A.Lokhande for resp.no.4 in W.P. No.2093 of 2011.
Mr.Shriram Chaudhary with Mr. Vishwanath Talkute for resp.nos.5 and 6
in W.P. No.2093 of 2011.
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Mr.Nitin Jamdar with Mr.Haribhau Deshinge for resp.no.2 in W.P. No.
3197 of 2011.
Mr.Rajiv Chavan with Mr.Vinod Joshi for resp.no.4 in W.P.No.7348 of
2011.
Mr.S.K.Shinde, Additional G.P. with Mr.A.B. Vagyani, AGP for State in
all Appellate Side petitions.
Ms.S.M.Dandekar, AGP for State in W.P.No.951 of 2011.
Mr.M.D.Naik, AGP for State in W.P.No.953 of 2011 and W.P.(L) Nos.
1409, 1426 and 1427 of 2011.
Mr.Rajiv Chavan with Mr.G.Hariharan for Union of India in W.P. (L)
1409, 1426 and 1427 of 2011.
CORAM: B. H. MARLAPALLE &
SMT. NISHITA MHATRE, JJ.
September 30, 2011.
ORAL ORDER (PER B.H.MARLAPALLE,J.)
1. This group of petitions raises common challenge to the
Government Resolution dated 5th March 2011 issued by the State of
Maharashtra through the Department of Higher and Technical Education
and to the extent of Clauses 11(1), 11(3) and 11(4) of the said G.R.
There is no dispute that the impugned GR has replaced the earlier GR
dated 25/2/2011 and, therefore, the challenge to the same clauses of the
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GR dated 25/2/2011 is required to be considered with reference to the
GR dated 5/3/2011 as the petitions were filed prior to the GR dated
5/3/2011. Hence these petitions are being decided by this common order.
2. The petitioners are either working as Lecturers / Professors at the
graduation or post graduation level in different colleges affiliated to non-
agricultural Universities and with the said universities as well as in the
Government colleges (Engineering and Non-agricultural) in the State of
Maharashtra. On 31/12/2008 the Government of India through the
Ministry of Human Resources Development addressed a letter to the
Secretary – University Grants Commission (UGC) regarding the scheme
of revision pf pay of teachers and equivalent categories in the Universities
and Colleges, following the revision of pay scales of Central Government
employees on the recommendations of the Sixth Central Pay Commission
(SCPC). The said communication sets out elaborately the educational
qualifications, revised pay scales, career advancement scheme, annual
increments, pay fixations and age of superannuation etc. The pay scales
of the Professors in Graduate as well as Post Graduate Colleges have
been revised as under:
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(i) Assistant Professor – Rs.15,600 – 39,100.
(ii)Associate Professor – Rs. 37,400 – 67,000.
So far as the post of Professor is concerned, the pay band of Rs.37,400 –
67,000 would be applicable with higher Academic Grade Pay (AGP) than
applicable to the post of Associate Professor. We are mainly concerned
with the age of superannuation clause and the said clause reads as under:
“(f)
Age of Superannuation:
(i) In order to meet the situation arising out of shortage of
teachers in universities and other teaching institutions and theconsequent 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, forthose 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 ageof superannuation of teachers, the Central Government has
already authorized the Central Universities, vide Department of
Higher Education D.O. letter No.F.1-24/2006-Desk(U) dated
30.3.2007 to enhance the age of superannuation of Vice-
Chancellors of Central Universities from 65 years to 70 years,::: Downloaded on – 09/06/2013 17:47:46 :::
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approval of the competent authority (Visitor in the case ofCentral Universities).
(ii) Subject to availability of vacant positions and fitness,
teachers shall also be reemployed on contract appointmentbeyond the age of sixty five years up to the age of seventy years.
Re-employment beyond the age of superannuation shall,
however, be done selectively, for a limited period of 3 years inthe 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 vacantpositions without affecting selection or promotion prospects of
eligible teachers.
(iii) 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 beavailable to the categories of Librarians and Directors of
Physical Education.”
3. On the applicability of the said scheme, clauses p(i) and p(v) of the
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said communications read as under:
(p)(i) This scheme shall be applicable to the teachers and other
equivalent cadres of Library and Physical Education in all the
Central Universities and Colleges thereunder and the InstitutionsDeemed to be Universities whose maintenance expenditure is
met by the UGC. The implementation of the revised scales shall
be subject to the acceptance of all the conditions mentioned inthis letter as well as Regulations to be framed by the UGC in this
behalf. Universities implementing this Scheme shall be advised
by the UGC to amend their relevant statutes and ordinances inline with the UGC Regulations within three months from the
date of issue of this letter.
(p)(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 followingterms and conditions: (emphasis supplied)
(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.
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(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).
(emphasis supplied)
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(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.
ig (emphasis supplied)
4. On the date of implementation of the revised pay and allowances
and payment of arrears etc. it was stated that the revised pay and dearness
allowance would be effective from 1/1/2006 and other allowances shall
be paid with effect from 1/9/2008. Payment of arrears of 40% of the total
arrears was to be paid during the current financial year i.e. 2008-2009
after deduction of admissible income tax. It was also clarified that the
revised pay in the relevant pay band and the Academic Grade Pay
together with the applicable allowances including arrears of salary as
mentioned above shall be paid to all eligible candidates under the scheme
pending framing of Regulations by the UGC. The Government of
Maharashtra, therefore, without waiting for the Regulations being framed
by the UGC issued a GR on 12th August 2009 and implemented the
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scheme of the Union of India as formulated through the communication
dated 31st December 2008 so as to revise the pay scales on par with the
recommendations of the SCPC. However, there was no enhancement in
the age of retirement of the colleges as well University teachers.
5. It is also pertinent to note that the UGC brought into force the
University Grants Commission (Minimum Qualifications for
Appointment of Teaches and other Academic Staff in Universities and
Colleges and other Measures for the Maintenance of Standards in Higher
Education) Regulations, 2010 (for short the UGC Regulations 2010) and
they came to be published in the Gazette of India dated 18 th September
2010.
6. It is pertinent to note at this stage that the teachers and principals in
the Government colleges (Engineering, Polytechnic and other non-
agricultural colleges) retire at the age of 58 years and there was no
increase in the age of retirement till the impugned GR was issued. So far
as graduation and post graduation teachers in the aided and un-aided
private colleges are concerned, their age of retirement has been 60 years
including the Principals. However, by the impugned GR the State
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Government has proposed to bring about uniformity in the age of
retirement of the teachers at all levels i.e. in polytechnics, degree colleges
as well as post graduate institutes. The age of retirement of all these
teachers has been enhanced to 62 years. Whereas for the Principals in all
the colleges (Government, private aided and private unaided), the age of
retirement has been enhanced to 65 years. At the same time, the
enhancement in the age of retirement is not unconditional and it is subject
to review of performance by a Committee constituted by the Government.
For the Assistant Professors, Associate Professors and Professors the
review is at the age of 60 years, whereas for the Principals such a review
is at the age of 62 years and continuation beyond the age of 60 years or
62 years, as the case may be, is subject to the Review Committee’s
recommendations. Let us, therefore, reproduce the relevant impugned
clauses of the G.R. dated 5th March 2011
11- ojhy loZ laLFkkarhy v/;kid rFkk izkpk;kZaP;k lsokfuo`RrhlkBh
eqnrokkysY;k vl.ks vko’;d vkgs-
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2½ — —
3½ laca/khr v/;kid@izkpk;kZauh Ph.D. vFkok fo|kihB vuqnku
vk;ksx rFkk vf[ky Hkkjrh; ra=f’k{k.k ifj”knsP;k fud”kkuqlkj ‘kh
Ph.D.
led{k v’kh ‘kS{k.khd vgZrk /kkj.k dj.ks vko’;d jkghy-
4½ laca/khr v/;kid@izkpk;Z ;kaP;k eqnrok<hP;k fnukadkiwohZps
ekxhy ikp o"kkZrhy okf"kZd xksiuh; vgoky fopkjkr ?ksÅu] lnj xksiuh;
vgokykph loZlk/kkj.k ewY;ekiukph izrokjh fdeku rhu o"ksZ mRÑ"V (A)
vkf.k nksu o"ksZ fuf'pr pkaxyk (B+) vl.ks vko';d vkgs-
7. Clause 11 of the impugned GR states that the initial appointments
of the Professors / Principals must be in keeping with the Rules and the
qualifications laid down were satisfied for such appointments. The
continuation beyond the age of 60 years is subject to the clearance
regarding the physical and mental fitness by the Government Medical
Committee. The Professor / Principal concerned must have acquired the
Degree of Ph.D. or equivalent educational qualification. While
considering the cases of the Professors / Principals for retention beyond
the age of 60/62 years the ACRs for the last five years would be
considered by the Performance Committee and for being retained beyond
such years the Professor / Principal concerned must have “A” Grade
rating for three years and “B+” Grade rating for the remaining two years.
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8. It is submitted by the petitioners that the insistence of Ph.D. Degree
and the assessment of performance at the age of 60 or 62 years, as the
case may be, for being retained till the age of 62 years or 65 years is
illegal, unreasonable, harsh, unrealistic and contrary to the UGC
Regulations, 2010. When the prescribed qualifications for the post of
Assistant Professor do not provide for a Ph.D. Degree as the necessary
qualification, the State cannot be allowed to insist on such a qualification
for being continued up to the age of 62 years. Once the UGC Regulations
have extended the age of retirement to 65 years unconditionally, it is not
permissible for the State Government to extend the age of retirement on
such conditions of educational qualifications etc. Mr.Desai, the learned
counsel appearing for some of the petitioners submitted that the UGC Act
was enacted by the Parliament in exercise of its powers under Entry 66 of
List 1 to Schedule VII of the Constitution and, therefore, it is a Central
Legislation as contained in Article 254(1) of the Constitution. The
formulation of service conditions of the university and college teachers,
including the determination of the age of superannuation is the subject
matter of State Legislation as the same would fall within Entry 25 of List
III and there cannot be any conflict between the provisions of the UGC
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Regulations and the Rules framed by the State Government for the
service conditions of such teachers. In short the State Government is
bound by the UGC Regulations and if the said Regulations have not
imposed any conditions for extending the age of superannuation beyond
60 years, it would not be within the competence of the State Government
to impose any conditions or any conditions like the Ph.D. degree or
performance assessment by a specially constituted committee. The
enhancement in the age of retirement is required to be unconditional
subject to the incumbent being found medically fit. The Regulations
formulated by the UGC are a composite package and it is not permissible
for the State Government to accept something unconditionally and
impose conditions while granting some other benefits. If the UGC in its
wisdom has decided to enhance the age of retirement unconditionally, the
decision of the State to impose the impugned conditions is illegal and
requires to be quashed and set aside. It was also urged that even the
preamble of the impugned Resolution has considered the vacancy
position and the scarcity of experienced and qualified college teachers. It
has been stated that there are about 17000 vacancies of Assistant
Professors, Associate Professors and Professors etc. and, therefore, there
is a need to retain the experienced college and university teachers by
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enhancing the age of retirement. On the backdrop of these realities the
State Government ought to have extended the age of retirement without
imposing any conditions so long as the concerned teachers were found to
be medically fit. When the Ph.D. degree is not an essential qualification
for appointment to the post of Assistant Professor or for granting senior
scale / selection grade, imposing of such a condition for enhancing the
age of retirement up to 62 years is arbitrary and more so when the
Professors concerned have reached at the fag end of their career and
insistence on the Ph.D. degree qualification would be, therefore, an
impossible condition. If such a condition is followed strictly coupled
with the assessment of performance, the enhancement in the age of
retirement would remain on paper and it would be only an illusion as
there would be hardly any college teachers who would be eligible for
being retained till the age of 62 years. The learned counsel also brought
to our notice that similar challenge has been allowed by the High Court of
Jharkhand in Writ Petition No.363 of 2010 and others, the High Court of
Patna in CWJC No.11348 of 2010 and ors. and the High Court of
Karnataka in Writ Petition No.13429 of 2011 and ors.
9. The State Government has filed affidavit in reply through the In-
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charge Joint Director of Higher Education in Writ Petition No.953 of
2010 and the same has been adopted in all the petitions. Similarly the
UGC has filed affidavit in reply in Writ Petition No.2093 of 2011 and the
same has been adopted in other petitions as well. The State Government
has opposed the petitions whereas the UGC has placed on record the
UGC Regulations of 2000 and UGC Regulations of 2010. It has also
been pointed out that the Government of India had revised the pay scales
of teachers in the Colleges following the revision of pay scales of Central
Government employees on the recommendations of the FCPC vide its
letter dated 27th July 1998 addressed to the UGC and by the said letter
while revising the pay scales in line with the Fifth Pay Commission
Recommendations the age of superannuation of University and College
teachers was fixed at 62 years and it was left open to the University or
College to re-employ superannuated teacher according to the guidelines
framed by the UGC up to the age of 65 years. Accordingly, the UGC
Regulations of 2000 increased the age of superannuation to 62 years for
college and university teachers. On 23rd March 2007 the Government of
India addressed a letter to the UGC for enhancement of age of
superannuation from 62 years to 65 years for the teaching positions in the
centrally funded institutions in higher and technical education. As per the
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said letter the age of superannuation of all persons who were holding
teaching positions on regular employment in centrally funded institutions
in higher and technical education under the Ministry of Human
Resources Development shall be increased from 62 years to 65 years. It
was clarified in the said communication that the enhancement of
retirement age as mentioned above and the provision for re-employment,
would apply only to persons in teaching positions against the posts
sanctioned to the centrally funded higher and technical education
institutions coming under the purview of the HRD Ministry so as to
overcome the shortage of teachers. While framing the UGC Regulations
of 2000 the Government of India’s directives have been taken into
consideration and the age of retirement has been increased to 62 years for
the college and university teachers. It is pertinent to note that the UGC
has not specifically commented on the contentions of the petitioners or
for that matter of the State Government on their respective claims in these
petitions. The UGC has not commented adversely on the GR dated 5th
Mach 2011 issued by the Government of Maharashtra and the impugned
conditions under Clause No.11 therein.
10. So far as the Government of Maharashtra is concerned, it is
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contended that the impugned GR has not been issued to permit or allow
the candidates without Ph.D. degree to continue endlessly in service and
the State Government has taken a policy decision to ensure that only
those professors / principals who possess the Ph.D. degree are granted the
benefit of enhancement in the age of retirement. Though there was no
requirement for a candidate to be appointed to the post of Assistant
Professor, of possessing a Ph.D. degree but to prevent the falling
standards of education and to raise the standard of higher and technical
education it was felt necessary to insist on a Ph.D. degree coupled with
the performance assessment of the teachers during the last five years.
Reference has been made to the notification dated 1st June 2009 issued by
the UGC and making it compulsory for any candidate to be eligible for
appointment as Assistant Professor with any university or college to
possess the qualifications of NET / SET / Ph.D. degree. As per the State
Government the said notification of the UGC is a standing proof of the
recommendation by the Central Government as well as UGC for the felt
need to insist on Ph.D. degree while granting enhancement in the age of
retirement to the college as well as university professors. It is also
pointed out that the teachers who do not possess a Ph.D. degree and who
would otherwise retire at the age of 60 years cannot claim to be entitled to
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be continued in service merely because the age of superannuation has
been raised. Such teachers in normal course would have retired at the age
of 60 years and imposing conditions of higher qualifications or
performance of B+ or above level during the last five years cannot be
termed to be unreasonable conditions. The State Government has not
violated or acted in breach of the UGC Regulations 2010 or the
Government of India’s instructions dated 31st December 2008. The State
Government is well within its rights, while enhancing the age of
retirement, to impose conditions of higher qualifications and assessment
of performance during the last five years. If such conditions are found to
be unacceptable to the Government of India or the UGC, it is entirely a
matter between the State of Maharashtra and the UGC or the Government
of India as the case may be. The petitioners cannot claim that they must
be given the benefit of enhancement of age of retirement unconditionally.
It is emphasised by the State Government that in the interest of
maintaining better standards of higher and technical education, it has a
right to have a scrutiny of college and university teachers for deciding
about their continued utility and more so when such teachers are from the
Government colleges or Government aided private colleges. When the
teachers are being paid from public funds, it would be competent for the
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State Government to lay down conditions to decide the continued utility
of such teachers in public interest. It is also reiterated that in the
impugned GR there is no conflict between the powers of the Central
Government or for that matter the UGC on one hand and the State
Government on the other hand. In support of these contentions the State
Government has relied upon the following decisions of the Supreme
Court:
(i) The State of Maharashtra and ors Vs. Association of
Maharashtra Education Service Class II Officers and ors.
[(1974) 4 SCC 706]
(ii)T.P.George and ors. Vs. State of Kerala and ors. [1992
Supp (3) SCC 191] and
(iii)B. Bharat Akumar and ors. Vs. Osmania University and
ors. [(2007) 11 SCC 58].
11. In the writ petitions before the High Court of Jharkhand the
common question involved was whether the UGC Regulations 2010
would be binding upon the State Government / State Universities so far as
it related to the enhancement of age of teachers of universities from 62 to
65 years. The State of Jharkhand vide its Resolution dated 10/10/2009
had decided to implement the scheme formulated by the Government of
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India through its letter dated 31/12/2008 with respect to the revision of
pay as well as enhancement of age of superannuation with effect from
1/1/2006. The Government of India vide its letter dated 11/5/2010 had
intimated to the Government of Jharkhand that payment of central
assistance for implementing the scheme would be 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 the State Government. Some of the
lecturers in different colleges filed writ petitions for directions to enhance
the age of superannuation from 62 to 65 years and while these petitions
were pending before the High Court, the State of Jharkhand passed a
Resolution on 20/11/2010 prescribed the age of superannuation at 62
years under Section 67 of the Jharkhan University Act. The learned
Single Judge of the High Court of Jharkhand while allowing the petitions
recorded his findings as follows:
“Thus, in view of the proposition laid down by the Hon’ble
Supreme Court as referred to above, stipulation made under the
regulation regarding enhancement of the age from 62 to 65 years
cannot be said to be an encroachment of the field of the State
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framed under Entry 25 of List III of the Constitution of Indiabeing in conflict with the regulation so far it relates to
enhancement of the age from 62 to 65 would be void and
inoperative in terms of Article 254(1) of the Constitution of India.
Accordingly order as contained in Memo No.1188 dated20.11.2010 refusing to extend the age from 62 to 65 is hereby set
aside.
Thus, in view of the conclusion arrived at just hereinabove
and also conclusion that scheme formulated by way of regulation
is to be adopted a composite one, the age of superannuation ofthe petitioners would stand extended to 65 years. As a
consequence whereof the petitioner who was in service but was
made to retire on 30.6.2010 or thereafter on attaining the age of62 years would be entitled to the benefit of extended age of
superannuation as a result of which they are to be taken back in
service with continuity and all consequential benefits.”
The decisions of the High Court of Patna and the High Court of
Karnataka (Supra) are almost on the same lines as the above view taken
by the High Court of Jharkhand.
12. The only questions that fall for our considerations are (1) whether
the State Government acted illegally by incorporating Clause 11(3) and
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11(4) in the impugned GR dated 5/3/2011 while enhancing the age of
retirement from 60 to 62 years for the college and university teachers and
from 62 to 65 years for the college principals and (2) whether it is
permissible for the State Government to subject the professors/ principals
for performance review of last five years and to insist on B+ and above
grade rating for retention beyond the age of 60 or 62 years as the case
may be.
13.
So far as clause 11(1) is concerned, it mandates that the
Professors / Principals concerned ought to have been appointed as per the
Rules prescribed by the UGC and the State Government and they comply
with the prescribed conditions of qualifications etc. We do not find any
error or incompetence on the part of the State Government in insisting
that the teachers who are going to be retired at the age of 62 years must
have been appointed at the initial stage, as per the Rules and other
conditions of qualifications and experience etc. prescribed by the UGC or
the State Government were fulfilled. In our opinion, the challenge to
Clause 11(1) of the impugned GR does not need any further elaboration
and it is devoid of any merits. Hence, it is rejected summarily.
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14. Coming to the clause of performance review for being eligible to
be retained beyond 60 years of age, it has been fairly conceded by the
State Government that the mechanism for performance assessment is at
place in the Government colleges and the Annual Confidential Reports
(ACRs) of each lecturer / principal / professor in such colleges are written
and reviewed and, therefore, there would not be any difficulty in
assessing the performance of past five years of these professors /
principals. So far as private aided colleges are concerned, there is no
dispute that most of these colleges do not have at place the mechanism
for performance review and there is hardly any aided private college in
the State of Maharashtra which has a formal system of performance
assessment of teachers in each academic year. If the mechanism for
performance is not prevalent in the private aided colleges, there would be
merit in the petitioners’ arguments that clause 11(4) of the impugned GR
cannot be implemented, it is unrealistic and without application of mind
to the ground realities. Having realised the prevailing conditions in the
private aided colleges, the State Government has come out with an
alternative mechanism for performance review and a number of
parameters have been suggested with a view to decide the continued
utility of the teachers / principals beyond the age of 60 years and by the
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Performance Review Committee (PRC).
15. So far as clause 11(3) of the impugned GR is concerned,
Mr.Shinde, the learned Additional GP, on instructions, stated that after the
first GR dated 25/2/2011 was issued, the State Government considered
the cases of 155 college / university teachers who had attained the age of
60 years or were due to attain the age of 60 years, so as to review their
performance and it was noticed that 80 of these professors were Ph.D.
degree holders. From amongst the Ph.D. degree holders 66 have been
granted the befit of enhanced age of retirement of 62 years and 14 of
them have been denied because of their unsatisfactory performance
though some of them may be Ph.D. degree holders. Mr.Shinde, therefore,
urged before us that Clause 11(3) cannot be said to be an illusion and
there are college / university teachers as well as the principals who hold a
Ph.D. degree. He urged that the State Government must be allowed to
subject the professors / principals to the scrutiny of performance review,
with the modified scheme of performance assessment, in the interest of
better standards in higher and technical education.
16. In the case of Association of Maharashtra Education Service Class
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II Officers (Supra), the UGC report for the year 1966-67 recommending a
revision of pay scales for various categories of university and college
teachers was accepted by the Government of India and by its letter dated
7th April 1966 to the Education Secretary, Government of Maharashtra,
the Government of India undertook to pay 80 % of the expenditure
incurred by the university or the colleges for implementing the scheme of
UGC which was brought into operation with effect from April 1, 1966.
As per the said scheme, the UGC had recommended the following scale
of pay to the college / university lecturers:
Senior Lecturers – Rs.700-40-1100
Lecturers (Senior Scale) – Rs.400-30-640-40-800
Lecturers (Junior Scale) – Rs.300-25-600.
However on 6/11/1967 the Government of Maharashtra passed a
resolution accepting in principle the proposal of the Government of India
but Note 1 to the said resolution stated that only such persons who
possess at least a second class Master’s Degree of a statutory university
would be eligible for the revised scales and in regard to the scale of Rs.
700-1100 it was further necessary that the teachers were recognised or
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approved by the university for post graduate work as on 1/4/1966 and had
in fact done post graduate teaching for a minimum period of one year
prior to 1/4/1966. The respondent teachers meeting these education
requirements for the pay scale of Rs.700-1100 possessed the requisite
qualification but the State Government refused to offer them pay scales
unless they appeared before the State Public Service Commission for
selection as per the notice dated 2/3rd March 1970. The teachers,
therefore, approached this Court praying for quashing of the notices dated
2/3rd March 1970 and for further prayer that they be placed in the pay
scale of Rs.700-1100 with effect from 1/4/1966. This Court allowed the
petitions and quashed the notices directing to appear before the
Maharashtra State Public Service Commission. The challenge of the
State of Maharashtra to the order passed by this Court failed before the
Supreme Court and the Supreme Court observed, inter alia, thus,
“8. The contention that Lecturers in Class II of the
Maharashtra Educational Service must present
themselves for selection before the Public Service
Commission was introduced apparently on a
misunderstanding of the Scheme initiated by the
University Grants Commission. That Scheme envisages
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no promotion of Lecturers from one Class to another. It
concerns itself with the revision of pay-scales of the
Colloegiate teachers and its object was to raise the
salary-structure as one of the basic essentials for
improvement of educational standards. The letter of the
Government of India to the State Government, dated
April 7, 1966 shows that the subject matter of the
correspondence was “Improvement of salary Scales of
College and University teachers” and that the
Government of India had accepted the recommendations
of the University Grants Commissions for (a) “revision
of the salary scales” of collegiate teachers with effect
from April 1, 1966. The Government of Maharashtra
misunderstood the Scheme as requiring the promotion of
Class II teachers to Class I and since under its Rules
such a promotion could not be granted without
consultation with the Public Service Commission, it
asked respondents 2 to 11 to offer themselves for
selection by that Commission. The imposition of such a
condition being based on a misunderstanding of the
Scheme proposed by the University Grants Commission,
the High Court was right in directing the Government to
place respondents 2 to 11 in the pay-scale of 700-1100
without asking them to appear before the Public Service
Commission. As stated by the High Court whether
respondents 2 to 11 should, as a consequence of the
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upgrading of their pay-scale, be placed in Class I
Educational Service and whether they are entitled to the
other benefits available to Class I officers is an entirely
separate matter which the State government will be at
liberty to decide in accordance with the relevant rules
and procedure.”
It is thus clear that the Supreme Court did not approve the notices
issued calling upon the Lecturers to appear before the Maharashtra Public
Service Commission but at the same time there was no interference either
by this Court or by the Supreme Court in the conditions of higher
qualifications set out by the State Government by its resolution dated
6/11/1967 though such conditions were not set out in the letter dated 7th
April 1966 of the Government of India or in the scheme framed by the
UGC. The State Government decision to prescribe higher qualification,
was not faulted.
17. In the subsequent decision in the case of T.P. George (Supra) the
UGC Scheme of 1986 framed pursuant to the Malhotra Committee’s
Report was circulated by the Government of India on 17th June 1987 and
for adoption by all States / Union Territories. It was also clarified that the
adoption of the scheme was voluntary and the only result which might
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follow from the State Government not adopting the scheme might be that
the State Government would forfeit the offer of reimbursement from the
Government of India to the extent of 80 % involved in giving benefit of
the recommendation of the scales as recommended by the scheme
(emphasis ours). The age of retirement which was part of the scheme and
which was fixed at 60 years was not followed by the State Government
and at the relevant time the age of retirement for the college / university
lecturers in Kerala was 55 years. The college teachers moved the High
Court and in Writ Appeal No.223 of 1991 the following observations
made by the Division Bench have been approved by the Supreme Court,
“Though Clause 26 of the scheme provides
that the age of superannuation for teachers should be
60 years, and the scheme contemplates certain
improvements in providing for assistance in that
behalf, it is not a scheme which is statutorily binding
either on the State Government or the different
Universities functioning under the relevant statues in
the State of Kerala. What the State Government has
done by its order dated March 13, 1990 is to
implement the UGC Scheme including revision of
scales of pay in relations to teachers in Universities
including Kerala – Agricultural University, affiliated
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colleges, Law Colleges, Engineering Colleges and
qualified Librarians and qualified Physical Education
Teachers with effect from January 1, 1986, subject
however to the express condition that insofar as the
age of retirement is concerned, the present fixation of
55 years shall continue. The contention of the
appellant is that the State Government having
accepted the UGC Scheme, and as the scheme
provides for a higher age of 60 years, all the clauses
of the scheme became applicable. It is not possible
to accede to this contention. Firstly, as already stated
the UGC Scheme does not become applicable
because of any statutory mandate making it
obligatory for the Government and the Universities
to follow the same. Therefore the State Government
had the discretion either to accept or not to accept the
scheme. In its discretion it has decided to accept the
scheme, subject to the one condition, namely, insofar
as the age of superannuation is concerned, they will
not accept the fixation of higher age provided in the
scheme. The State Government having thus accepted
the scheme in the modified form, the teachers can
only get the benefit which flows from the scheme to
the extent to which it has been accepted by the State
Government and the concerned Universities. The
appellant cannot claim that major portion of the
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scheme having been accepted by the Government,
they have no right not to accept the clause relating to
fixation of higher age of superannuation. That is a
matter between the State Government on the one
hand and the University Grants Commission on the
other, which was provided certain benefits by the
scheme. It is for the University Grants Commission
to extend the benefit of the scheme or not to extend
the benefit of the scheme, depending upon its
satisfaction about the attitude taken by the State
Government in the mater of implementing the same.
That is a matter entirely between the State
Government on the one hand and the University
Grants Commission on the other. Teachers of the
private institution concerned are governed by the
statutes framed under the relevant statutory
enactment. As long as the superannuation remains
fixed at 55 years and so long as the State
Government has not accepted the UGC’s
recommendation to fix the age of superannuation at
60 years, teachers cannot claim as a matter of right
that they are entitled to retire on attaining the age of
60 years.” (emphasis ours)
The Supreme Court further went on to state,
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“5. We may further point out that the teachers in
Universities are governed in respect of their
conditions of service and the age of retirement by the
separate statutes made by the Universities concerned.
On the other hand the teachers in private colleges or
affiliated colleges are governed in respect of their
conditions of service by regulations or rules framed by
the Government (separate state (sic set) of statutes).
In these circumstances, the two classes of Universities
teachers and teachers in private colleges cannot be
regarded as similar for the purposes of conditions of
service as to bring the case under Article 14 of the
Constitution”
18. Though the Lecturers could not succeed before the Supreme Court,
the Supreme Court observed that the age of retirement fixed at 55 years
was too low but it would not be for the Court to prescribe the correct age
of retirement and that would be a policy function requiring considerable
expertise which can properly be done by the State Government or the
State Legislature or the Universities concerned. In the case of Bharat
Kumar and ors (Supra) the Supreme Court reiterated the view taken
earlier in the case of T.P.George (Supra). In para 14 and 15 of the said
decision the Supreme Court stated,
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“14. In spite of our best efforts, we have not been
able to follow as to how the judgment of the Kerala
High Court, which has been approved by this Court is,
in any manner, different from the factual situation that
prevails here in this case. It is for that reason that we
have extensively quoted not only the aforementioned
letter dated 27-7-1998 but also the subsequent letters
and the further policy statement. Plain reading of all
these is clear enough to suggest that the scheme was
voluntary and it was up to the State Governments to
accept or not to accept the scheme. Again even if the
State Government accepted a part of the scheme, it
was not necessary that all the scheme as it was, had to
be accepted by the State Government. In fact the
subsequent developments suggest that the State
Government has not chosen to accept the scheme in
full inasmuch as it has not accepted the suggestions on
the part of the UGC to increase the age of
superannuation.
15. Once we take this view on the plain reading of
the scheme, it would be necessary for us to take stock
of the subsequent arguments of Mr. Rao regarding
Entry 66 in List I vis-a-vis Entry 25 in List III. In our
opinion, the communications, even if they could be
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heightened to the pedestal of a legislation, or as the
case may be, a policy decision under Article 73 of the
Constitution, they would have to be read as they
appear and a plain reading is good enough to show
that the Central Government or as the case may be
UGC also did not introduce the element of compulsion
vis-a-vis the State Government and the universities.
We, therefore, do not find any justification in going to
the entries and in examining as to whether the scheme
was binding, particularly when the specific words of
the scheme did not suggest it to be binding and
specifically suggest it to be voluntary.”
19. In the case of All India Judges’ Association v. Union of India [AIR
1993 SC 2493], the Supreme Court considered the necessity to clamp
scrutiny and that too an additional one at the age of 58 years for the
Judicial Officers whose age of retirement was directed to be enhanced to
60 years as per the judgment dated 13th November 1991. The Supreme
Court stated,
“… The benefit of the increase of the retirement age to
60 years shall not be available automatically to all
judicial officers irrespective of thier past record of
service and evidence of their continued utility to the
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judicial system. The benefit will be available to those
who, in the opinion of the respective High Courts,
have a potential for continued useful service. It is not
intended as a windfall for the indolent, the infirm and
those of doubtful integrity, reputation and utility. The
potential for continued utility shall be assessed and
evaluated by appropriate Committees of Judges of the
respective High Courts constituted and headed by the
Chief Justices of the High Courts and the evaluation
shall be made on the basis of the judicial officers’ past
record of service, character rolls, quality of judgments
and other relevant matters.
The High Court should undertake and complete
the exercise in case of officers about to attain the age
of 58 years well within time by following the
procedure for compulsory retirement as laid down in
the respective Service Rules applicable to the judicial
officers. Those who will not be found fit and eligible
by this standard should not be given the benefit of the
higher retirement age and should be compulsorily
retired at the age of 58 by following the said
procedure for compulsory retirement. The exercise
should be undertaken before the attainment of the age
of 58 years even in cases where earlier the age of
superannuation was less than 58 years. It is necessary
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to make it clear that this assessment is for the purpose
of finding out the suitability of the concerned officers
for the entitlement of the benefit of the increased age
of superannuation from 58 years to 60 years. It is in
addition to the assessment to be undertaken for
compulsory retirement and the compulsory retirement
at the earlier stage/s under the respective Service
Rules.”
So far as the judicial officers who had crossed the age of 58 years
and who could not be subjected to the review mechanism, the Supreme
Court stated,
“Since those who have already crossed the age of 58
years have had no benefit of exercising their option to
retire earlier and the point of time at which their
assessment could be undertaken for compulsory
retirement, if any, has also passed, it is not considered
proper to subject them to the review for compulsory
retirement at this stage. They may, therefore,be given
the benefit of the enhanced superannuation age of 60
years without subjecting them for such review.”
20. Admittedly the Government of India by its letter dated 27th July
1998 addressed to the Education Secretaries of all the States / Union
Territories issued directions for implementation of the revision of pay
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scales of teachers in the universities and colleges following the revision
of the pay scales of the Central Government employees on the
recommendations of the Fifth Central Pay Commission. It was
stipulated that the Central Government will provide financial assistance
to the State Government which would opt for these revised pay scales to
the extent of 80 % of the additional expenditure involved in the
implementation of revision and the balance 20 % of the expenditure was
to be borne by the State Governments. The age of retirement was
enhanced to 62 years and the clause of age of superannuation read thus:
“The age of superannuation of university and
college teachers would be 62 years and thereafter no
extension in service should be given. However, itwould be to the university or college to re-employ
the retiring teacher according to the existingguidelines framed by the UGC up to the age of 65
years.”
Following the instructions of the Government of India as set out in
the letter dated 27th July 1998, the UGC framed its Regulations of 2000
and the Government of Maharashtra adopted the directions of the
Government of India as well as the UGC Regulations of 2000.
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However, it did not increase the age of retirement for the college /
university teachers and during the last about more than ten years neither
the UGC nor the Government of India has ever taken any objection or
taken any steps against the Government of Maharashtra for its failure to
enhance the age of retirement.
21. It is also pertinent to note that age of retirement for the
lecturers/principals with the Government colleges was directed to be
increased by the Nagpur Bench of this court to 60 years by judgment
and order dated 24/7/1989 while allowing Writ Petition No. 788 of 1980
and the consequent thereto on 20/12/1990, the Government of
Maharashtra increased the age of superannuation of Government college
lecturers to 60 years. However, Civil Appeal No. 10994 of 1996 filed by
the Government of Maharashtra against the decision of this court in Writ
Petition No. 788 of 1980 came to be allowed and the judgment of this
court was set aside. The Government of Maharashtra, therefore, issued a
fresh order and recalled the earlier order dated 20/12/1990. The age of
retirement was brought down to 58 years with effect from 30/4/2002 and
till the impugned resolution was issued, the age of retirement of the
teachers and principals in the Government colleges remained at 58 years.
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In these circumstances, it is difficult to accept the contentions of the
petitioners that the scheme framed by the UGC under the instructions of
the Central Government is required to be accepted as a package and the
State Government has no powers to vary the clauses of age of
superannuation. It is also relevant to note that though the Central
Government has enhanced the age of retirement to 65 years and the
Government of Maharashtra has enhanced the age of superannuation to
62 years by the impugned resolution, there is no challenge in any of
these petitions so as to seek a mandamus against the State Government
to fix the age of retirement at 65 years.
22. As observed by the Supreme Court in the case of T.P. George
(Supra) and Bharat Kumar (Supra), if any condition of the UGC
Regulations framed under the instructions of the Central Government
and more particularly condition of age of superannuation, has not been
followed by the State Government, it is entirely a matter between the
State Government on one hand and the UGC and the Central
Government on the other hand. Clause (8)(f) of the scheme formulated
by the Government of India vide its letter dated 31/12/2008, clearly
indicated that it was applicable for the teachers in the University and
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other teaching institutions in Central Educational Institutions and Clause
8(t) of the said scheme also clearly stated that the scheme was applicable
to the teachers and other equivalent cadre in all the Central Universities
and colleges thereunder as well as the institutions deemed to be the
University whose maintenance expenditure is met by the UGC. Sub-
clause (f) below clause 8(p) of the said scheme stated,
“(f) The
ig 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 1/1/2006; 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).” (emphasis ours)
This clause gave a flexibility to the State Government in revising
the pay scales and also to fix the date of implementation on or after
1/1/2006 depending upon the local conditions and other considerations.
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It was clarified that in case the pay scales would be higher than the
prescribed in the scheme, the Central assistance would be restricted to
the Pay bands as approved by it. Clause 8(p)(i)(g) of the said scheme
also stated that the payment of Central assistance for implementing the
scheme would also be 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 the 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. The learned counsel for the petitioners
have placed reliance on this clause in support of their contentions that
the scheme was a composite scheme for being implemented and without
any modifications except with regard to the date of implementation and
scales of pay mentioned in the scheme and there was no discretion left
to the State Government to put any condition while enhancing the age of
superannuation to 62 years. There is nothing to indicate in the
Regulations that the State Government is either called upon to enhance
the age of superannuation or while doing so, it is prevented from
imposing some additional conditions to maintain higher standards of
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education. It is at this backdrop Mr. Shinde, the learned AGP,
submitted before us that if the challenge to the impugned clauses of the
GR dated 5/3/2011 is allowed by this court, nothing would stop the State
Government from withdrawing the said GR in its totality and re-fix the
age of superannuation at 60 years. Having regard to the UGC
Regulations 2010 read with the scheme framed by the Government of
India vide its letter dated 31/12/2008, we have no doubt in our mind that
the State Government is not prevented from either fixing the age of
superannuation at less than 65 years of age or for imposing some
additional conditions while enhancing the age of superannuation to 62
years, so as to maintain higher standards of education and also to decide
the continued utility of teachers and principals by a performance review
mechanism, beyond the age of 60 or 62 years, as the case may be.
23. Coming to the challenge on insistence of a Ph.D. degree for
getting the benefit of enhanced age of superannuation for the teachers as
well as the principals, it would be appropriate to consider the
educational qualifications prescribed under the UGC Regulations 2010.
For the post of Assistant Professor, the minimum academic qualification
prescribed is a good academic record with 55% marks or an equivalent
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grade at the Master’s Degree level and qualifying in the National
Eligibility Test or an accredited test (State Level Eligibility Test
-SLET/SET). It has been further stated that NET/SLET/SET shall
remain the minimum eligibility condition for recruitment and
appointment of Assistant Professors in Universities /Colleges /
Institutions. However, as per Clause No. 3.3.1 the candidates who are or
have been awarded a Ph.D. degree in accordance with the UGC
(Minimum Standards and Procedure for Award of Ph.D. degree)
Regulations 2009, shall be exempted from the requirement of the
minimum eligibility condition of NET/SLET/SET for recruitment and
appointment of Assistant Professor or equivalent positions in
Universities/Colleges/Institutions. The Ph.D. degree shall be a
mandatory qualification for the appointment of professors and for the
promotion as professors. It is also an essential qualification for all
candidates to be appointed as Associate Professors through direct
recruitment. It is thus clear that for appointment as Assistant Professor,
the minimum qualification is not the Ph.D. degree but certainly it is one
of the qualifications and the candidate with Ph.D. degree is exempted
from NET/SET. A Ph.D. degree is not an essential qualification but it is
one of the qualifications prescribed. For the post of Principal, a
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Master’s Degree with at least 55% marks by a recognized University
with a Ph.D. degree in the concerned/allied/relevant discipline in the
institution concerned with evidence of published work and research
guidance is the prescribed qualification. At the same time, Associate
Professors/Professors with a total experience of 15 years
teaching /research /administration in Universities, Colleges and other
institutions of higher education are also eligible for being appointed to
the post of principals. Clause 4.3.0 of the Regulations has set out the
qualification for Associate Professor and the Ph.D. degree is an essential
qualification. The Regulations framed by the UGC during the last more
than 20 years or so go to show that acquiring of Ph.D. degree even for
the post of Lecturer / Assistant Professor has been an indicator of
advancing the academic achievements and under the Career
Advancement Scheme there is a special consideration for the Ph.D.
degree holders. Whereas for the post of Associate Professor, Professor
and Principal, Ph.D. degree is an essential qualification.
24. The Government of Maharashtra while framing the scheme for
implementation of the directives of the Government of India as well as
the UGC Regulations, by way of policy decision, has set out conditions
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in Clause 11 of the impugned GR dated 5/3/2011 and unless such policy
decision suffers from arbitrariness, inequality, unfairness or otherwise
takes away any legal rights or vested rights, this Court under the power
of judicial review may not cause interference in such decisions. In
addition if the parameters laid down while granting enhancement in the
age of superannuation are found to be impracticable / impossible,
interference by this Court may also be necessary. But having regard to
the figures provided by the learned AGP that out of 155 college teachers
whose cases were scrutinised for retention beyond the age of 60 years,
during the last few months, 80 of them were Ph.D. degree holders, it
would go to show that the requirement of a Ph.D. degree is not
impracticable or impossible or that a vast majority of the teachers will
not stand to benefit by the enhancement of the age of superannuation.
Even otherwise the scope for interference in the academic matters under
the powers of judicial review is also limited. In the case of Maharashtra
State Board of Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth [AIR 1984 SC 1543] the Supreme Court held,
“……… the Court should be extremely reluctant to
substitute its own views as to that is wise, prudent and proper
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in relation to academic matters in preference to those
forumatled by professional men possessing technical expertise
and rich experience of actual day-to-day working of
educational institutions and the departments controlling
them.”
In the case of State of U.P. vs. Johri Mal [AIR 2004 SC 3800] a
three-Judge bench while dealing with the limitations / parameters while
exercising the power of judicial review stated that the scope and extent
of power of the judicial review under Article 226 of the Constitution
would vary from case to case, the nature of the order, the relevant
statute as also the other relevant factors including the nature of power
exercised by the public authorities, namely, whether the power is
statutory, quasi judicial or administrative. The power of judicial review
is not intended to assume a supervisory role or done the robes of
omnipresent. The power is not intended either to review governance
under the rule of law nor do the Courts step into the areas exclusively
reserved by the supreme lex to the other organs of the State. The
Supreme Court reiterated the following guidelines on the scope of
judicial review:
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(i) Courts, while exercising the power of judicial review, do
not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain
well-defined grounds.
(iii) An order passed by an administrative authority exercising
discretion vested in it, cannot be interfered in judicial review
unless it is shown that exercise of discretion itself is perverseor illegal.
(iv) A mere wrong decision without anything more is not
enough to attract the power of judicial review; the supervisoryjurisdiction conferred on a Court is limited to seeing that
Tribunal functions within the limits of its authority and that its
decisions do not occasion miscarriage of justice.
(v) The Courts cannot be called upon to undertake the
Government duties and functions. The Court shall not
ordinarily interfere with a policy decision of the State. Socialand economic belief of a Judge should not be invoked as a
substitute for the judgment of the legislative bodies.
25. Coming to the requirement of performance review at the age of
60 and 62 years, as the case may be, while granting the benefit of
enhancement in the age of superannuation the law laid down by the
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Supreme Court in All India Judges’ Association (Supra) does empower
the State Government to scrutinize the service record of an officer so as
to decide his continued utility beyond the age of 58 or 60 years, as the
case may be. Indeed Rule 10 the the Maharashtra Civil Services
(Pension) Rules provides for such a scrutiny at the age of 50 and 55
years as well, so as to decide the retention of the officer concerned in
public interest and if the officer is found to be incompetent, dishonest,
infirm or of doubtful integrity, an order of compulsory retirement on the
basis of the service record and general standing is issued indicating that
the retention of such officer any further would not be in public interest.
In the academic arena, if the State Government has decided to set up a
mechanism so as to assess the performance of college teachers to decide
their continued utility beyond the age of 60 or 62 years, we cannot find
fault with the same, nor can it be said that asking for such scrutiny for
deciding continued utility is in any way illegal, perverse,
unconstitutional or otherwise taking away any vested rights. To
maintain the higher standards of education, research and training it is
necessary that the college / university teachers are subjected to such
performance review periodically and if the State Government has
decided to enhance the age of superannuation beyond the age of 60
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years, the performance review at the age of 60 years cannot be said to
be illegal, capricious or otherwise warranting the interference by this
Court under the powers of judicial review, so long as the mechanism
sought to be put in place is fair, just and reasonable. On the queries
made by us the State Government fairly conceded during the course of
arguments that in the private aided colleges there is hardly any
mechanism at place so as to undertake the performance review of the
college teachers, though such a mechanism is available with the
Government colleges / institutions. Having realised that the assessment
of performance review for the last five years as set out in Clause 11(4)
would not be possible, the Government has proposed suitable
parameters for the performance assessment of Assistant Professors,
Associate Professors as well as Principals. Indeed such parameters
suggested could be only illustrative and not exhaustive. Nonetheless,
emphasis of such exercise to review the performance during the last five
years ought to be on academic achievements and free from personal
bias, unfairness and arbitrariness. The Professors and Principals are
high academicians / administrators and, therefore, in the exercise of
performance review each one of them ought to be provided with a
chance of self assessment. Undoubtedly the Head of the Department /
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Principal would be the reviewing authority, but for the time being the
Government has proposed a committee of four to six members. The
committee envisaged under the impugned GR, in our opinion, did not
reflect the emphasis on academics and, therefore, we suggested the
presence of more academicians in such performance assessment
committees. These suggestions have been accepted by the State
Government in the draft notification placed before us.
26.
It was submitted by Mr.Desai that the teachers who have already
retired on attaining the age of 60 years after the impugned GR was
issued and during the pendency of these petitions, be exempted from
such performance review and granted the benefit of the enhanced age of
superannuation, whether they hold a Ph.D. degree or otherwise. This
submission appears to supported from the directions given by the
Supreme Court in the case of All India Judges’ Association (Supra).
However, on closer scrutiny it appears that the said directions cannot be
per se made applicable in these petitions. The Supreme Court by its
earlier judgment dated 13th November 1991 had issued specific
directions to all the State Governments so as to improve the service
conditions of the members of the subordinate judiciary, through out the
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country. One of the directions was to enhance the age of
superannuation to 60 years. The State Governments were directed to
amend the Service Rules so as to implement these directions before a
specific date. However, some of the State Governments approached the
Supreme Court with review petitions raising general objections to some
of the directions issued. The Union of India also had filed a review
petition. The review petitions came to be decided on 24th August 1993.
Thus from 13th November 1991 to 24th August 1993, a large number of
subordinate judicial officers had already crossed the age of 58 years
and the review mechanism proposed by the Supreme Court while
deciding these review petitions could not have been feasible because the
review was required to be undertaken before attaining the age of 58
years. In the instant petitions before us the first GR was issued on 25th
February 2011 and it was substituted by the GR dated 5th March 2011.
By way of interlocutory orders this Court has directed that the
retirement / superannuation of any petitioner during the intervening
period will be subject to the final outcome. At the same time the
learned AGP submitted that even on retirement, some teachers were
subjected to review performance and have been granted the benefit of
enhanced age of retirement despite the fact that they had already
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attained the age of 60 years.
27. The local conditions in the State of Maharashtra are not
comparable to the conditions in the States of Jharkhand, Bihar or
Karnataka, in the field of higher and technical education. In the case
decided by the Jharkhand High Court and which has been relied upon
by Mr.Desai, the State Government has prescribed the age of
superannuation under Section 67 of the Jharkhand University Act
framed under Entry 25 of List III of the Constitution. In the State of
Maharashtra the age of retirement for the college / university teachers
has not been prescribed under the Maharashtra Universities Act, 1994
and the same is prescribed under the Rules framed by the State
Government following the UGC Regulations. We have already dealt
with the prevailing age of superannuation for these academicians in the
State of Maharashtra and there has been no uniformity between the age
of retirement for the lecturers / professors in the Government colleges /
institutions on one hand and the lecturers / professors in the private
colleges aided by the State Government. The universities in the State of
Maharashtra governed by the Maharashtra Universities Act, 1994 are
fully aided by the State Government. In our opinion, therefore, and in
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view of the elaborate reasons we have dealt with hereinabove, the
decisions rendered by the High Court of Jharkhadn, the High Court of
Patna and High the Court of Karnataka and as relied upon by the
petitioners, with respect, cannot be made applicable to the petitioners
before us.
28. We must also deal with an additional facet so as to invite the
State Government’s attention to bring uniformity in performance
assessment so as to decide the continued utility in public interest. As
noted earlier, the lecturers / professors / principals in the Government
colleges / institutions are subjected to performance review at the age of
50 or 55 years as the case may be so as to decide their retention in
service and continued utility and if on assessment of the entire service
record they are found to be incompetent or of doubtful integrity, they
are retired in public interest. The professors / principals in the private
aided colleges as well as the universities covered by the Maharashtra
Universities Act, 1994 are also paid from public funds and, therefore,
all of them ought to be subjected to similar scrutiny in the public
interest, at the age of 50 years, 55 years and 60 years so as to decide
their continued utility for the advancement of academic standards i.e.
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education, training and research. We hope the State Government will
address on this issue as well, as early as possible.
29. It was also urged before us by the learned counsel for the
petitioners that insistence on a Ph.D. degree for enhancement in the age
of superannuation has come as a sudden jolt by the impugned GR and at
the fag end of their career and it is without leaving any scope, despite
their best desires and efforts, to obtain a Ph.D. degree. It was submitted
that in some cases it is possible that the teachers were genuinely
interested in enrolling themselves for Ph.D., but because of the local
conditions in the colleges concerned, they could not do so and for the
reasons not attributable to them. Number of such teachers might have
otherwise contributed for higher academic standards by writing books
or publication of research papers. There may be some teachers whose
books form part of the syllabus and, therefore, it would be harsh to call
upon such teacher, all of a sudden to produce a Ph.D. degree certificate.
The insistence of the State Government on such conditions is
unreasonable and in some cases impossible to achieve.
We have no doubt that there is some merit in these arguments.
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However, we have already stated that under the powers of judicial
review, there is no case made to cause interference in the impugned
policy decision to insist on a Ph.D. degree, as one of the conditions for
the benefit of enhanced age of superannuation. However, our
suggestion to extend a concession for a limited period of three years to
the Assistant Professors who are the beneficiaries of the Career
Advancement Scheme, has been accepted by the State Government so
as to subject them to performance assessment by the Committee. Such a
response by the State Government also meets the twin object of
compassion and equity and the State Government has been fair in
accepting our proposal.
30. In the premises, we hold that clauses 11(1), 11(3) and 11(4) of
the GR dated 5th March 2011 do not suffer from any infirmities /
unconstitutionality and hence the challenge to the validity of the said
clauses is hereby rejected. However, we direct, by way of exception,
for the limited period up to 31st March 2014, to place the cases of the
Assistant Professors who do not possess a Ph.D. degree but have
received the benefits of the Career Advancement Scheme, before the
Performance Review Committee and the said committee shall assess
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their performance as per the parameters set out for deciding their
retention beyond the age of 60 years.
The composition of the Performance Review Committees, shall
be as under:
(a) For the post of Principal:
(i) Vice Chancellor / Pro Vice Chancellor of the concerned
University – Chairman
(ii)Director, Higher Education – Member
(iii)Dean / Professor in the subject concerned – Member
(iv)Registrar of the University – Member Secretary
(b) For Professors, Associate/Assistant Professors in the
non-agricultural Universities:
(i) Vice Chancellor of the concerned University –
Chairman
(ii)Nominee of the Vice Chancellor who is a well known
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educationist – Member
(iii)Professor and Head of the Department of the concerned
subject – Member
(iv)Dean/Expert of the concerned subject – Member
(v) Director, Higher Education – Member
(vi)Registrar of the University – Member Secretary
(c) For Assistant Professors / Associate Professors in the
colleges:
(i) Pro Vice Chancellor / Director of BCUD of the
concerned University – Chairman
(ii)Head of the Department of the concerned subject in the
University – Member
(iii)Principal of the concerned college – Member
(iv)Expert in the concerned subject and nominated by the
Vice Chancellor – Member
(v) Joint Director of Higher Education of the concerned
region – Member
(vi)Controller of Examinations of the concerned University
– Member Secretary
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WP-2093-2011 groupThe Performance Review Committee meetings shall be held at the
University headquarters and every month. The Principals of the
concerned colleges shall forward the names of the college teachers six
months before he / she attains the age of sixty years, to the concerned
University along with the consent for being retained beyond the age of
60 years to the Registrar of the concerned University to take
appropriate steps so that the Performance Review Committee meets
and the performance assessment exercise is completed at least two
months before the teacher attains the age of 60 years.
The State Government to issue the modified GR / notification on
the lines of the draft of the said notification placed before us, within a
period of two weeks from today so as to constitute the Performance
Review Committees and to set out the parameters for performance
assessment.
We also direct that the performance review of the College /
University Teachers and Principals who have retired during the
intervening period i.e. from 28th February 2011 onwards be completed
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as expeditiously as possible and in any case within a period of six
weeks from the issuance of the revised notification. The Principals /
Lecturers / Professors who are found to be fit for being continued till
the age of 62 years or 65 years as the case may be, shall be entitled for
the payment of salary for the intervening period.
The suggestion is made by us to introduce the performance
assessment of the Lecturers / Professors / Principals of the private aided
colleges as well as those at the University level, at the age of 50 or 55
years so as to decide their further retention in service in public interest,
on the lines of Rule 10 of the Maharashtra Civil Services (Pension)
Rules, be considered by the State Government as as expeditiously as
possible.
31. All the petitions stand disposed in terms of the above directions.
(SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)
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