1 WP-2093-2011 group 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 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 2 WP-2093-2011 group 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 ...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 3 WP-2093-2011 group 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 4 WP-2093-2011 group 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. 5 WP-2093-2011 group 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 6 WP-2093-2011 group 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: 7 WP-2093-2011 group (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 the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide the Department of Higher Education letter No.F.No.119/2006-U.II dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O. letter No.F.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, 8 WP-2093-2011 group subject to amendments in the respective statutes, with the approval of the competent authority (Visitor in the case of Central Universities). (ii) Subject to availability of vacant positions and fitness, teachers shall also be reemployed on contract appointment beyond 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 in the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers. (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 be available 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 9 WP-2093-2011 group 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 Institutions Deemed 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 in this 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 in line 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 following terms 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. 10 WP-2093-2011 group (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) 11 WP-2093-2011 group (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. (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 12 WP-2093-2011 group 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 18th 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 13 WP-2093-2011 group 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 eqnrok< nsrkauk lacaf/krkauh fuEu ckchaph iqrZrk dj.ks vfuok;Z jkghy & 1½ lnj laLFkkae/khy v/;kid@izkpk;Z ;kaP;k izFke fu;qDR;k fo|kihB vuqnku vk;ksx o jkT; ‘kklukus fofgr dsysY;k ik=rk] vVh o ‘krhZ izek.ks >kysY;k vl.ks vko’;d vkgs- 14 WP-2093-2011 group 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 Ph.D. ‘kh 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. 15 WP-2093-2011 group 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 16 WP-2093-2011 group 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 17 WP-2093-2011 group 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- 18 WP-2093-2011 group 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 19 WP-2093-2011 group 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 20 WP-2093-2011 group 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 21 WP-2093-2011 group 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