Bombay High Court
An Radha vs Director Of Tech. Education & Anr on 10 June, 2016
Bench: B.P. Dharmadhikari
1 wp2034.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2034 OF 2005
A.N. Radha, aged 58 years,
occupation : Principal,
r/o A/3 Neelalaya,
46/A, Gokulpeth, Nagpur. ... Petitioner
- Versus -
1) Director of Technical Education,
Maharashtra State, No.3,
Mahapalika Marg, Post Box
No.1967, Mumbai 440 001.
2) Women's Education Society,
through its Chairman, Women
Technical Education and Research
Institute, North Ambazari Road,
Sitabuldi, Nagpur 440 010.
3) State of Maharashtra, through (amended as per
Desk Officer, Higher Technical Court's order dated
Education Division, Mantralaya 31-07-2008)
Extension, Mumbai 400 032. ... Respondent s
-----------------
Shri R.S. Sundaram, Advocate for petitioner.
Shri N.S. Khubalkar, Assistant Government Pleader for
respondent nos.1 and 3.
Shri A.A. Naik, Advocate for respondent no.2.
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CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 10, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
By this petition filed under Article 226 read
with Article 227 of the Constitution of India, petitioner,
a retired Principal of Polytechnic College run by
respondent no.2, seeks a declaration that her
superannuation at the age of 58 years is unsustainable
as the age of superannuation is 60 years. Second
contention is that petitioner is entitled to change her
option and avail benefit of pension and gratuity
scheme and communication dated 10/8/2005 refusing
that benefit is unsustainable.
2) It is not in dispute that petitioner got
knowledge of her proposed superannuation at 58 years
when Management moved office of respondent no.1
seeking permission to advertise the post of Principal.
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After filing of writ petition, this Court on 29/4/2005
issued rule in the matter and in the light of judgment
of Hon'ble Apex Court in the case of Ahmedabad
Education Society vs. Gilbert B. Shah and others
(2004 1 SCC 612) granted interim relief in terms of
prayer clause (ii) of the petition, with the result,
petitioner continued in employment beyond 30/4/2005
and till she reached 60 years of her age, i.e. upto
30/4/2007. She has been accordingly paid salary for
the work done.
3) In this background, Adv. Sundaram appearing
for petitioner submits that age of retirement in case of
petitioner was always 60 years and it has been
brought down for the first time by Government
Resolution dated 27/2/2003. The Government
Resolution itself specifically stipulates in Clause 1 that
it comes into effect from 1/1/1996 insofar as revised
scales of pay and higher qualifications, etc. as
stipulated therein are concerned. The other terms and
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conditions are made effective from 30/12/1999. He
submits that petitioner had joined employment on
9/9/1971 and became Principal on 25/8/1985. As such,
the age of superannuation prevailing on 25/8/1985 is
not altered by this Government Resolution dated
27/2/2003. To point out how terms and conditions
stipulated in contract of service are treated by Hon'ble
Apex Court, he is drawing support from the judgment
of Hon'ble Apex Court in the case of Ahmedabad
Education Society (supra).
4) To show that it is open to State Government
not to accept age of superannuation as stipulated in
University Grants Commission's Regulations and the
earlier age of superannuation can be maintained by
the State Government, Adv. Sundaram draws support
from the judgment of Hon'ble Apex Court in T.P.
George and others vs. State of Kerala and others
(1992 Supp (3) SCC 191).
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5) Our attention is also invited to orders passed
in the present petition on 16/4/2007 as also on
21/4/2008 to urge that though initially there was a
direction to release all terminal benefits including
pension by treating age of retirement is 60 years,
because of modification, that order could not be given
effect to.
6) Inviting our attention to order dated
10/8/2005, he states that finality to option exercised
by the petitioner as mentioned therein is not correct.
Adv. Sundaram argues that petitioner gave option
initially on 7/12/1985 by moving separate application
and then sought to change it on 28/1/2005. The
forwarding letter and the option by which petitioner
wanted to shift to pension scheme as contained in
Maharashtra Civil Services (Pension) Rules, 1982 is
relied upon by him for this purpose.
7) In the alternative, Adv. Sundaram argues that
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option given by the petitioner on 7/12/1985 is
redundant because Contributory Provident Fund
scheme was never implemented in the establishment
of respondent no.2. He has also produced before this
Court Government Resolution issued on 23/6/2015 to
demonstrate that so called finality to option envisaged
at the time of wage revisions on various occasions has
never been treated as conclusive and time to shift to
pension scheme has been extended on various
occasions. According to him, lastly even on 23/6/2015
time has been allowed and hence, the change sought
for by petitioner on 28/1/2005 could not have been
declined on 10/8/2005.
8) Though the facts are not on record, according
to Adv. Sundaram, amount of Rs.2,30,690/- only has
been deposited in CPF Account with State Bank of India
without any contribution of State Government. He
submits that petitioner is ready and willing to refund
that amount to State Government with 5% interest, if
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benefit of pension scheme is extended to her.
9) Shri Khubalkar, learned Assistant Government
Pleader for respondent nos.1 and 3, submits that
reliance upon Government Resolution dated 23/6/2015
should not be accepted as he is not fully aware of the
contents thereof or further developments in relation
thereto. Without prejudice, he has attempted to assist
the Court only by explaining the scheme thereof from
its express language. He has further submitted that
the fact that Contributory Provident Fund scheme was
never implemented in respondent no.2 College is not
on record. Similarly, amount in deposit with State
Bank of India and alleged no contribution towards it by
State Government are the events not pleaded on
record.
10) He points out that as per Government
Resolution dated 20/2/1985 for the first time Pension
and Death-cum-Retirement Gratuity scheme was made
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applicable to employees like petitioner and vide
Clause 5 age of retirement was then stipulated to be
60 years. He submits that the said age was prevalent
even as per earlier Government Resolutions dated
19/5/1983 and 28/11/1984. This was continued till
coming into force of revision of pay scales as per
Government Resolution dated 27/2/2003.
ig The said
Government Resolution expressly brings out the age of
superannuation to 58 years vide its Clause 15 and
petitioner having taken benefit of that Government
Resolution cannot be permitted to urge that Clause 15
should not be applied to her. He submits that it is a
package scheme, which petitioner has to take as it is
or then reject wholly. Acceptance only of beneficial
part and rejection of prejudicial part is legally not
permissible. According to him, this controversy about
the age of superannuation is settled by judgment of
this Court dated 14/6/2006 in Writ Petition
No.413/1998 where the judgment delivered at Bombay
on 30/9/2005 in Writ Petition No. 6529/2005 has been
9 wp2034.05
followed.
11) Shri Khubalkar, learned Assistant Government
Pleader has attempted to distinguish the judgment of
Hon'ble Apex Court in the case of T.P. George and
others (supra). He has also invited our attention to
the judgment of Hon'ble Apex Court in B. Bharat
Kumar and others vs. Osmania University and
others {(2007) 11 SCC 58} to urge that it is not
obligatory for the State Government to accept the
entire scheme of University Grants Commission as it is.
The judgment of the Hon'ble Apex Court in the case of
Ahmedabad Education Society (supra) relied upon
by petitioner is sought to be explained by urging that
there appointments were on contract specifically,
which prescribed age of superannuation also. To urge
that this Court has very limited jurisdiction in such
matters, support is drawn from the judgment of
Division Bench of this Court in Shri Vasantrao
Vishnu Mangore vs. State of Maharashtra (2004
(2) ALL MR 674).
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12) He has placed reliance upon reply-affidavit
filed in this Court while replying to Civil Application
No.5166/2008. He submits that as mentioned therein,
State Government after introduction of Pension and
Death-cum-Retirement Gratuity scheme has given
various opportunities to employees like petitioner to
shift to that scheme and petitioner has accordingly
exercised the option. The option once exercised is
made final. He relies upon Government Resolution
dated 10/9/1996 for the said purpose.
13) Commenting upon Government Resolution
dated 23/6/2015, he submits that it has been issued
for entirely different purpose and it does not extend
time limit for furnishing options.
14) Adv. Sundaram for petitioner, in reply
arguments, submits that Government Resolution dated
27/2/2003 revises wages and which, according to
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respondents brings down the age of superannuation,
does not modify the earlier Government Resolution
dated 20/2/1985 and arrangement in that Government
Resolution is left intact. This stipulation that age of
superannuation in case of petitioner shall be 60 years
is not affected by latter Government Resolution. He
further submits ig that when perusal of recent
Government Resolution dated 23/6/2015 reveals that
time to furnish option has not been treated as final and
difficulties faced by the employees have been looked
into and redressed therein, the request made by the
petitioner for change of option on 28/1/2005 could not
have been rejected and in any case in the light of said
Government Resolution, the request can now be
entertained and allowed.
15) We have carefully considered the rival
arguments. The fact that pension and death-cum-
retirement gratuity scheme has been made applicable
to employees like petitioner for the first time on
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20/11/1985 is not in dispute. Clause 5 of Government
Resolution dated 20/2/1985 is on age of retirement
and it stipulates that age of retirement for employees
in non-Government aided Technological Colleges,
Polytechnics, Pharmacy Institutes shall be 60 years in
case of Teachers and 58 years in case of non-teaching
employees. This age has been accepted as mentioned
in earlier Government Resolutions dated 19/5/1983
and 28/11/1984. Stipulation of age of retirement in
the earlier Government Resolutions is not relevant
here because in case of petitioner, pension and death-
cum-retirement gratuity scheme has become
applicable only on 20/2/1985 and, therefore, age of
retirement has been prescribed for the first time by
that Government Resolution.
16) Government Resolution on which respondents
placed reliance to urge that said age has been brought
down to 58 years is issued on 27/2/2003. This
Government Resolution is on revision of pay scales of
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Teachers/Librarians in Government/non-Government
and other Colleges including Polytechnics. The said
Government Resolution is looked into by Division
Bench of this Court while deciding Writ Petition No.
413/1998 on 14/6/2006. There the question was
identical. In paragraph 3, Division Bench has noted
that Counsel for the petitioner fairly accepted the
settled legal position in this respect and as such, this
judgment does not contain any adjudication on the
issue of age of superannuation. In paragraph 2 of the
judgment dated 30/9/2005 delivered at Bombay in Writ
Petition No.6529/2005 it is observed that University
Grants Commission's recommendations on the
retirement age have to be held as directory and State
Government and University concerned has fixed the
age of retirement as 58 years in Government Colleges.
Thus, the issue regarding age of superannuation in
non-Government Polytechnic College is not specifically
looked into even in this judgment.
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17) However, perusal of Government Resolution
dated 27/2/2003 vide Clause 15 specifically shows that
age of superannuation of Teachers would be 58 years
and thereafter no extension can be given to them.
This Government Resolution is issued to implement
recommendations of 5th Pay Commission and revised
pay scales. Paragraph 2 of the Government Resolution
shows that A.I.C.T.E. had forwarded its
recommendations about revision of pay scales and
service conditions of teaching staff of Polytechnic
Institutions to State Government and the State
Government has considered it as a package scheme.
Decision of State Government also reveals that it was
being implemented as a package scheme. Thus,
revision of pay scales has been clubbed with and
associated with terms and conditions of service. As
per Clause 4, this Government Resolution applies to all
Teachers. Clause 5, which deals with date of effect,
prescribes that revised pay scales, career
advancement scheme and incentives for higher
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qualification given under the scheme become effective
from 1/1/1996. All other terms and conditions become
effective from 30/12/1999. The superannuation and
re-employment are dealt with in Clause 15 and as
stipulated in Clause 5, it becomes effective from
30/12/1999. In view of this express provision, it is
apparent that after issuance of this Government
Resolution on 27/2/2003, the age of superannuation
has been brought down to 58 years in case of Teachers
like petitioner in Polytechnic Colleges. We find
substance in the contention of learned Assistant
Government Pleader that A.I.C.T.E. as also State
Government have examined the issue of wage revision
and service conditions together. The decision to
implement wage revisions and other service conditions
has been taken as a package scheme and, therefore,
age of superannuation as 58 years forms an integral
part of wage revision scheme. Petitioner having taken
advantage of that scheme, cannot turn back and
contend that her age of superannuation remained or
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continued to be 60 years even after 27/2/2003.
18) Perusal of judgment in the case of Shri
Vasantrao Vishnu Mangore vs. State of
Maharashtra (supra) reveals that there challenge was
to a Resolution of Government re-introducing 58 years
as age of superannuation. The question was of power
or jurisdiction of employer and it is in that background
the Division Bench of this Court has observed that it is
a policy matter. Here, the contention of the learned
Counsel for the petitioner is that the age of
superannuation already settled on 20-02-1985 could
not have been reduced by the later Government
Resolution dated 27-02-2003 which is essentially on
wage revision. Perusal of judgment of the Hon'ble
Apex Court in the case of T.P. George and others vrs
State of Kerala and others, reported at 1992 Supp (3)
Supreme Court Cases 191 shows that the Hon'ble
Apex Court has found that the scheme of UGC fixing
60 as age of superannuation was not binding either on
the State Government or the Universities functioning
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under the relevant statutes in the State and the
Government, therefore, has discretion either to accept
it in full or in modified form or not at all. Here, on
27-02-2003, the State Government has accepted the
scheme as a package scheme and therefore
essentially co-related service conditions with age of
superannuation. The judgment of Hon'ble Apex Court
in the case of Ahmedabad Eduction Society vrs
Gilbert B. Shah and others, reported at (2004) 1
Supreme Court Cases 612, is the judgment where the
terms and conditions of the employment were laid
down by contract and in terms of contract the age of
superannuation was 60 years as per Rule 29 of the
Leave Rules framed by the employer Society. It is, in
this background, the Hon'ble Apex Court has found
that the contract entered into between the parties is
decisive. Here, the petitioner had option not to take
benefit of wage revision in terms of Government
Resolution dated 27-02-2003. However, having taken
benefit thereof the petitioner cannot contend that
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only advantageous part of it should apply to her and
Clause 15 which reduces the age of superannuation
should not be extended. In the judgment of Hon'ble
Apex Court reported at (2007) 11 Supreme Court
Cases 58 (B. Bharat Kumar and others vrs Osmania
University and others) follows the view noted supra
while considering the judgment in the case of T.P.
George and others vrs State of Kerala and
others.
19) Coming to the question of option exercised by
the petitioner, the fact that the petitioner gave option
on 07-12-1985 and opted for Contributory Provident
Fund is not in dispute. She has on 28-01-2005
attempted to shift to pension scheme and forwarded a
communication for that purpose along with option
form. She was to reach the age of superannuation i.e.
58 years on 30-04-2005. Thus, she wanted to shift to
pension scheme just three months prior to her
superannuation. This request was turned down on
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10-08-2005. The perusal of Government Resolution
dated 10-09-1996 shows that it is expressly on the
subject of grant of extended time limit for furnishing
such option. Various extensions earlier allowed are
mentioned therein and as per Clause 2 thereof the
time of three months was given to everybody including
those who had already superannuated to change their
option. It is expressly stipulated that option thus
exercised would be final and time limit for that
purpose would not be extended again. Thus, the
petitioner could have changed her option after
10-09-1996 within three months. This opportunity was
not availed of by her. As such, we are unable to find
any perversity in order of rejection dated 10-8-2005.
20) The copy of Government Resolution dated
23-06-2015 produced during the course of arguments
is marked as Exhibit-'X'. It is subject to the objection
of learned Assistant Government Pleader that he does
not have any instructions about the said Government
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Resolution or further developments in pursuance
thereof. Perusal of this Government Resolution shows
that it is on the subject of extending benefit of pension
scheme to full time employees like present petitioner.
In preamble it is mentioned that the cases of change
of option by certain employees who had deposited the
amount of Management
ig contribution with State
Government were pending due to condition that option
once exercise would be final. Thus, this Government
Resolution envisages those employees who had
changed their option and also refunded the amount of
the Management contribution to the State
Government. In the present matter, the petitioner
could not do so because of the impugned
communication dated 10-08-2005.
21) The stipulation mentioned supra in the said
Government Resolution itself raises certain disputes.
However, as the learned Assistant Government Pleader
is not fully instructed in the matter, we are not
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observing anything in relation thereto. We find that in
the present situation, the petitioner can be given
opportunity to make appropriate representation
pointing out this resolution and the rejection dated
10-08-2005 and to seek an opportunity to take
benefits of the pension scheme. If such representation
is made by the petitioner within three months from
today, the State Government shall consider it within
next four months in accordance with law.
22) With these directions to the respondents, we
dismiss the Writ Petition. Rule stands discharged. No
costs.
JUDGE JUDGE
KJ / Deshmukh
