Bombay High Court
Yeshwant Kondji Khillare And ... vs The State Of Maharashtra And ... on 6 June, 2017
Bench: S.V. Gangapurwala
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7831 OF 2016
1. Prof. Dr. Yeshwant Kondji Khillare,
Aged 60 years, Occ.: Service-Professor
in Dr. Babasaheb Ambedkar Marathwada
University, R/o.: Plot No. 68, Pethe
Nagar, Bhausingpura, Aurangabad
2. Prof. Dr. Daulat Laxman Sonawane,
Aged 60 years, Occ.: Service-Professor
in Dr. Babasaheb Ambedkar Marathwada
University, R/o.: Dault, H.No.4,
Survey No. 221/1, Honaji Nagar,
Jatwada Road, infront of Oxford School,
Aurangabad
3. Prof. Dr. Vishnudas Harikishan Bajaj,
Aged 60 years, Occ.: Service-Professor
in Dr. Babasaheb Ambedkar Marathwada
University, R/o.: H.No.5, Kalash,
Gandhi Nagar, Bansilal Nagar,
Aurangabad
4. Dr. Patel Shaikh Ganimiya Hussain,
Aged 60 years, Occ.: Service-Associate Prof.
in Chistiya College, Khultabad,
R/o.: Wahed Colony, Central Naka Road,
Roshan Gate, Aurangabad
5. Dr.Shaikh Abdul Hafiz,
Aged 60 years, Occ.: Service-Associate Prof.
in Maulana Azad College,
R/o 6, Ahbab Colony, Ravindra Nagar,
Kat-Kat Gate Road, Aurangabad
6. Dr. Gulam Rabbani Mohammed Osman,
Aged 60 years, Occ: Service-Associate Prof.
in Maulana Azad College,
R/o 7, Bait-ul-Momin, Rahat Colony,
Kat-Kat Gate Road, Aurangabad
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7. Dr. Vishwanath Narsingrao Utkar,
Aged 60 years, Occ.: Asst. Prof.
in Maulana Azad College,
R/o.: 46, Asmta Park Mahada Colony,
N-7, CIDCO, Aurangabad
8. Dr. Prakash Santoshrao Bansod,
Aged 60 years, Occ.: Service-Librarian,
in Govt. College of Education,
R/o. Plot No.19, Sankalp Building,
Vasundhra Colony, Near Nandanvan
Colony, Aurangabad
9. Dr. Raosaheb Bhujangrao Dhawale,
Aged 60 years, Occ.: Service-Associate Prof.
in Matshodari Mahavidyalaya,
R/o.: Plot No. 9, Bagya Nagar,
Mobile Tower Building,
Near Railwaylon, Old Jalna,
Jalna PETITIONERS
VERSUS
1. State of Maharashtra,
Through : Secretary,
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32
2. Director (Higher Education),
Directorate of Education,
Government of Maharashtra,
Pune - 1
3. Joint Director (Higher Education),
Aurangabad Region, Aurangabad
4. The Vice Chancellor,
Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad
5. Principal,
Chistiya College, Khultabad,
District Aurangabad
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6. Principal,
Maulana Azad College,
Aurangabad
7. Principal,
Govt. College of Education,
Near Deogiri College,
Aurangabad
8. Principal,
Matshodari Mahaavidyalaya,
Jalna, District Jalna RESPONENTS
AND
WRIT PETITION NO. 8589 OF 2016
Prof. Dr. Sharda Atirudra Sangawar,
Age 60 years, Occu.: Service,
R/o Mayur Apt, Building B, Flat No.22,
House No. 1/17/790, Kailash Nagar,
Nanded PETITIONER
VERSUS
1. State of Maharashtra,
Through its Secretary,
Higher and Technical Education
Department, Mantralaya,
Mumbai
2. The Director of Education,
Higher and Technical Education,
Central Building Pune
3. The Joint Director,
Higher Education, Nanded Region,
Nanded
4. The Vice Chancellor,
Swami Ramanand Tirth Marathwada
University, Nanded RESPONDENTS
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----
Mr. V.D. Salunke, Advocate for the petitioner
in W.P. No. 7831/2016
Mr. S.V. Deshmukh, Advocate for the petitioners
in W.P. No. 8589/2016
Mr. V.S. Badakh, A.G.P. for respondent Nos.1 to 3
Mr. V.S. Kadam, Advocate for respondent No.4
in W.P.No.8589/2016
Mr. S.S. Tope, Advocate for respondent No.8 in W.P.
No.7831/2016
Mr. S.G. Chapalgaonkar, Advocate for respondent No.4
in W.P. No.7831 of 2016
----
CORAM : S.V.GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 4th MAY, 2017
PRONOUNCED ON: 6th JUNE, 2017
COMMON
JUDGMENT (
PER : SANGITRAO S. PATIL, J.
) :
Rule, returnable forthwith. With the consent
of the learned counsel for the petitioners and the
learned A.G.P., heard finally.
2. Common questions of law and fact are involved
in these petitions. Hence, they are being decided by
this common judgment.
3. The petitioners comprise of Associate
Professors and Librarian, who were serving in the
respondent-Colleges, have sought quashment of the
Government Resolution dated 12.07.2016, whereby their
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age of retirement has been brought down from 62 years
to 60 years and further sought a direction against the
respondent Authorities to extend their age of
retirement upto 62 years.
4. The learned counsel for the petitioners, in
both petitions, have raised common grounds of
objections for quashment of the Government Resolution
dated 12.07.2016. They submit that as per the
Government Resolutions dated 25.02.2011, 05.03.2011,
23.11.2011 and 28.03.2012, the age of retirement of the
Associate Professors/Teachers was enhanced by the
Government from 58 years to 62 years and vide
Government Resolution dated 22.08.2012, the age of
retirement of Librarian was enhanced from 60 years to
62 years. Accordingly, as per the terms of the said
Government Resolutions, performance of the petitioners
was evaluated by the Performance Review Committee and
after finding them fit to be continued till attaining
the age of 62 years, the said Committee recommended to
the Government accordingly. Some of the Associate
Professors, who were recommended by the Committee for
extension of the benefit of enhanced retirement age,
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alongwith petitioners, have been given the said
benefit. However, the proposals of the petitioners were
intentionally and deliberately kept pending by the
respondents-Authority until passing of Government
Resolution dated 12.07.2016. As per Government
Resolution dated 12.07.2016, the Government
reconsidered its earlier resolutions enhancing the age
of retirement upto 62 years and resolved to bring down
the age of retirement to 60 years from 62 years. In
view of this Government Resolution, the proposals of
the petitioners, which were already under consideration
of the Government, were rejected and they were ordered
to be retired on attaining the age of 60 years.
5. The learned counsel for the petitioners submit
that the Government Resolution dated 12.07.2016 is
discriminatory and arbitrary. The petitioners were not
given an opportunity of hearing before passing of the
said Government Resolution. They submit that some of
the Associate Professors, who were similarly situated
with the petitioners, were given the benefit of
extension of the retirement age upto 62 years. Some of
the Associate Professors, who had already got retired,
7 wp7831-2016+
also were given the said benefit. However, the
petitioners only came to be treated differently by
denying the said benefit in view of the impugned
Government Resolution dated 12.07.2016. They submit
that the impugned Government Resolution is arbitrary
and unconstitutional since it is against the provisions
of Article 14 of the Constitution of India.
6. The learned A.G.P. filed reply on behalf of
respondent Nos.1 to 3 and opposed the petitions. The
learned A.G.P. submits that considering the scarcity of
the persons for being appointed to the posts of
Associate Professor/Liberian, the Government had passed
the Resolutions dated 25.02.2011, 05.03.2011,
23.11.2011, 28.03.2012 and 22.08.2012 thereby
increasing their age of retirement from 58 years or 60
years, as the case may be, to 62 years, subject to
evaluation of their performance and fitness for
continuation. However, subsequently, it was noticed
that there were a number of eligible persons available
for being appointed to the said posts. Moreover, by
continuing the existing Associate Professors/
Librarians upto their attaining the age of 62 years, it
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was noticed that the Government was required to
shoulder more financial burden. In the circumstances,
to avoid such financial burden and to extend
opportunities for newly qualified persons of getting
employment, the Government decided to reconsider its
earlier decisions of enhancing the age of retirement
upto 62 years and resolved to bring it down to 60
years, as per the impugned Government Resolution. He
submits that as per the judgment in the case of Jagdish
Prasad Sharma Vs. State of Bihar 2013 (8) SCC 633, the
State Government is entitled to enact any laws
pertaining to service conditions of Associate
Professors and other staff of State Universities and
the right to alter terms and service conditions of the
employees of State Universities or college is within
domain of the policy making power of the State
Government. Accordingly, the Government decided to
reduce the age of retirement from 62 years to 60 years.
He submits that this decision of the State Government
has been supported by letter dated 14.08.2012 issued by
the Ministry of Human Resources Department and the
Department of Higher Education of Government of India,
New Delhi.
9 wp7831-2016+
7. The learned A.G.P. further submits that the
proposals received by the Government for enhancement of
age of retirement of the Associate Professors were
considered by the Government from time to time and
decision thereon was taken as per the existing policy.
The proposals which were considered prior to issuance
of the impugned Government Resolution dated 12.07.2016,
were given the benefit of extension of the age of
retirement. The proposals of the petitioners were not
considered prior to issuance of the said Government
Resolution. Consequently, they were governed by the
Government Resolution dated 12.07.2016. As such, they
were not given the benefit of extension of the age of
retirement upto 62 years. He submits that after
issuance of the said Government Resolution, nobody has
been given the benefit of extension of the age limit.
Therefore, according to him, there is absolutely no
discrimination on the part of the Government. He
submits that all the Associate Professors/Librarians
were being treated equally as per the existing policy
in respect of age of retirement. Only because of the
proposals of some of the incumbents, which were sent
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along with proposals of the petitioners, were
considered prior to issuance of the Government
Resolution dated 12.07.2016 granting them benefit of
enhancement of age of the retirement, the petitioners
cannot say that they have been subjected to
discrimination. The learned A.G.P. submits that the
petitioners have no vested right of claiming enhanced
age of retirement. In support of this contention he
relied on the judgments in the cases of Deepak Agrawal
Vs. State of U.P. (2011) 6 SCC 725, State of Tripura
Vs. Nikhil Chakraborty (2017) 3 SCC 646 and P. Suseela
and others Vs. University Grants Commission and others
(2015) 8 SCC 129.
8. The learned counsel for the petitioners
pointed out to certain individual cases of the
Associate Professors, who were considered fit for
getting benefit of the enhanced age of retirement upto
62 years and given the said benefit even after they got
retired. However, one thing is clear that their cases
were considered prior to issuance of impugned
Government Resolution dated 12.07.2016. The said
Assistant Professors are not parties to these
11 wp7831-2016+
petitions. The orders extending them the benefit of
enhanced age are not challenged in these petitions.
Their cases seem to have been considered by the
Government keeping in view the exigency of their
services in the concerned colleges. Even if it is
assumed that they were wrongly extended the benefit of
enhancement in the age of retirement, the petitioners
cannot claim parity for getting done illegal things
again, since two wrongs cannot make one right. In the
circumstances, we are not inclined to consider the
legality and correctness of the decision taken by the
Government to enhance the age of retirement in respect
of the individual cases referred to by the petitioners.
The petitioners cannot be given the benefit that has
been given to those individuals.
9. Here, a reference may be made to paragraph 5
of the letter dated 14.08.2012, issued by the Ministry
of Human Resource Development, Department of Higher
Education, Government of India, New Delhi, copy of
which is produced by respondent Nos. 1 to 3, which
reads as under:-
12 wp7831-2016+
"Bearing in mind that the question of
enhancement of age of retirement is
exclusively within the domain of the policy
making power of the State Governments, the
issue of age of retirement has been left to
the State Governments to decide at their
level. The condition of enhancement of age of
superannuation to 65 years as mentioned in the
Ministry's letter dated 31.12.2008 may be
treated as withdrawn, for the purpose of
seeking reimbursement of central share of
arrears to be paid to State University and
College teachers. However, the other
conditions as mentioned in the letters cited
above shall continue to apply."
10. In the case of Jagdish Prasad Sharma (supra),
cited by the learned A.G.P., it has been held that the
right to alter the terms and service conditions of the
State universities and colleges is within the domain of
the State Government and until it decides to adopt the
U.G.C. scheme, it would have no application to the
teaching staff of the Universities/Colleges.
11. The cases of Deepak Agrawal (supra), State of
Tripura Vs. Nikhil Chakraborty (supra) and P. Suseela
and others (supra), cited by the learned A.G.P., may
13 wp7831-2016+
not be directly on the question of enhancement in the
retirement age of the Assistant Professors, Lecturers,
etc., but from these judgments, it can be culled out
that when there is no vested right with the incumbent
in the matter of getting any benefit attached to his
service, the rule/law which is prevalent at the time
when consideration takes place for such service
benefit, would be applicable. In the present case,
there is no vested right with the petitioners to get
enhanced the age of retirement. Even as per the
Government Resolutions dated 25.02.2011, 05.03.2011,
23.11.2011, 28.03.2012 and 22.08.2012, the enhancement
in the age of retirement was subject to fitness and
evaluation of performance of the incumbent concerned.
In case an incumbent was found to be unfit or whose
performance was not satisfactory, he was not entitled
to claim enhancement in the age of retirement as of
right. There is nothing in these Government
Resolutions to show that the recommendations of the
Performance Review Committee would be binding on the
Government. In the absence of approval of the
Government to the said recommendations, the retirement
age of the incumbent concerned was not liable to be
14 wp7831-2016+
enhanced upto 62 years. In the circumstances, the
proposal for enhancement in the age of retirement would
be governed by the rules/laws, which would be in force
when such proposal was considered.
12. Indisputely, the proposals of the petitioners
remained to be considered until issuance of the
impugned Government Resolution on 12.07.2016. If this
factual position is considered, the proposals of the
petitioners certainly would be governed by the
Government Resolution dated 12.07.2016. Consequently,
the earlier Government Resolutions, which were
reconsidered in the impugned Government Resolution,
would be of no help to the petitioners to claim
enhanced age of retirement upto 62 years.
13. As stated above, it was within the domain of
the policy making power of the State Government to fix
the age of retirement of the Associate Professors/
Librarians. In exercise of that power, the State
Government decided to bring down the age of retirement
of the Associate Professors/Librarians from 62 years to
60 years. The reasons given by the State Government
for changing the policy decision in respect of the age
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of the retirement appear to be reasonable and
acceptable. The continuation of the petitioners and the
persons similarly situated, would have increased the
financial burden on the Government. Moreover, it is
stated that there were many qualified persons available
for being appointed as Associate Professors/
Lecturers/Librarians. It was necessary to change the
policy decision in order to extend an opportunity of
employment to such persons. In view of these reasons,
we hold that the decision taken by the Government to
bring down the age of retirement from 62 years to 60
years cannot be said to be arbitrary, irrational or
unreasonable.
14. It is true that some of the incumbents, whose
proposals were recommended simultaneously with that of
the petitioners, have got the benefit of the earlier
Government Resolutions and they have been ordered to be
continued till they attain the age of 62 years.
However, their cases were considered prior to issuance
of the impugned Government Resolution. There is not a
single case pointed out by the petitioners to indicate
that after issuance of the impugned resolution, an
16 wp7831-2016+
incumbent similarly situated to the petitioners has
been given benefit of the enhanced age of retirement
upto 62 years. Had such benefit been given to
somebody, the petitioners would have been justified in
saying that there was discrimination on the part of the
State Government. The petitioners cannot equate
themselves with the incumbents whose cases were
considered prior to 12.07.2016 as per the policy that
was then prevailing. The incumbents, whose cases were
considered as per the earlier Government Resolutions,
when they were in force, would form a different class
and could not be treated at par with the petitioners.
The cases of the petitioners have been considered as
per the policy that was prevailing i.e. the policy
contained in Government Resolution dated 12.07.2016.
Consequently, the petitioners cannot be heard to say
that they were discriminated.
15. The learned counsel Mr. V.D. Salunke cited the
judgment in the case of D.S. Nakara and others Vs.
Union of India (1983) 1 SCC 305, wherein it was held
that pension is neither a bounty, nor a matter of grace
depending upon the sweet will of the employer, nor an
17 wp7831-2016+
ex gratia payment. It is a payment for the past
service rendered. Pension as a retirement benefit is
in consonance with and furtherance of the goals of the
Constitution. It creats a vested right and is governed
by the statutory rules. In the circumstances, criterion
of the date of enforcement of the revised scheme
entitling benefits of the revision to those retiring
after that date while depriving the benefits to those
retiring prior to that date, was held to be violative
of Article 14. As stated above, the enhancement in the
age of retirement is not a vested right of the
petitioners. Therefore, they cannot get the benefit of
this judgment which protects the vested right of an
employee to get pension.
16. The learned counsel Mr. V.D. Salunke then
relied on the judgment in the case of John Vallamattom
and another Vs. Union of India (2003) 6 SCC 611,
wherein the constitutionality of the provisions of
Section 118 of the Indian Succession Act, 1925 was
challenged. Since discriminatory treatment was meted
out to the members of Christian community under the Act
by which they were practically prevented from
18 wp7831-2016+
bequeathing the property for religious and charitable
purposes, the Hon'ble the Apex Court held that Section
118 of the Act is unconstitutional and is liable to be
struck down as unconstitutional. It was held that there
should be no discrimination between one person and
another if as regards subject matter of the
Legislation, their position is the same and all persons
in similar circumstances shall be treated alike, both
in privileges and liabilities imposed. It was further
held that the classification should not be arbitrary.
It should be reasonable and must be based on qualities
and characteristics and not any other who are left out
and those qualities or characteristics must have
reasonable relations to the object of the Legislation.
In the case at hand, as stated above, there is change
in the policy of the Government in the matter of age
limit for retirement of Associate Professors/
Librarians. The cases of the individual incumbents
were considered by the Government as per the policy
that was prevailing at the time of such consideration.
Only because the cases of the petitioners could not be
considered, when the earlier policy was in force and
could be considered only after there was change in the
19 wp7831-2016+
policy, the petitioners cannot claim parity with those
incumbents whose cases were considered when the earlier
policy was in force and as such, cannot blame the
Government for causing discrimination. In view of these
distinguishing facts of the present case, the judgment
in the case of John Vallamattom and another (supra) ,
would not be helpful to the petitioners.
17. The learned counsel for the petitioners
further cited the judgment in the case of State of
Uttar Pradesh Vs. Dayanand Chakrawarty and others
(2013) 7 SCC 595, wherein the U.P. Jal Nigam Employees
(Retirement on Attaining Age of Superannuation)
Regulations, 2005, which created two separate ages of
retirement amongst the same classes of employees, was
declared as discriminatory and unconstitutional. In
the case at hand, as per the impugned Government
Resolution dated 12.07.2016, two separate ages of
retirement amongst the same classes of employees have
not been prescribed. All the incumbents, whose cases
would be considered after 12.07.2016 onwards, would
have the same age of retirement i.e. 60 years. Thus,
the above cited case would not be helpful to the
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petitioners to advance their case.
18. In the case of Devkaran s/o Tulshiram Madan
Vs. The State of Maharashtra and others, Writ Petition
No. 2907 of 2015, decided by this Court on 13.03.2015,
cited by the learned counsel for the petitioners, the
proposal of the petitioners therein seeking enhancement
in the age of retirement upto 62 years was forwarded to
the Government. However, the decision was taken late.
It is only on 01.09.2012, that the Government ordered
extension of the age of retirement of the petitioner
though the petitioner attained the age of 60 years on
31.01.2011. The petitioner was not paid salary from
January, 2012 to September, 2012. It was held that the
principle of "no work, no pay" would not be applicable
and the Government was directed to pay the salary to
the petitioner therein in respect of that period. This
judgment has no bearing on the controversy involved in
the present petitions.
19. The learned counsel for the petitioners lastly
cited the judgment in the case of Ramana Dayaram Shetty
Vs. International Airport Authority of India and others
(1979) 3 SCC 489, wherein it has been observed in
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paragraph 12 as under:-
".........It must, therefore, be taken to be
the law that where the Government is dealing
with the public, whether by way of giving
jobs or entering into contracts or issuing
quotas or licences or granting other forms of
largesse, the Government cannot act
arbitrarily at its sweet will and, like a
private individual, deal with any person it
pleases, but its action must be in conformity
with standard or norms which is not
arbitrary, irrational or irrelevant. The
power or discretion of the Government in the
matter of grant of largess including award of
jobs, contracts, quotas, licences etc., must
be confined and structured by rational,
relevant and non-discriminatory standard or
norm and if the Government departs from
standard or norm in any particular case or
cases, the action of the Government would be
liable to be struck down, unless it can be
shown by the Government that the departure
was not arbitrary, but was based on some
valid principle which in itself was not
irrational, unreasonable or discriminatory.
20. As stated above, the State Government, in
exercise of its policy making power resolved to reduce
the age of retirement of the Lecturers/Associate
Professors/Librarians from 62 years to 60 years as per
the impugned Government Resolution dated 12.07.2016.
It was the prerogative of the Government to fix the age
of retirement of such employees. As stated above,
there is nothing on record to show that after issuance
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of the said resolution, the Government granted the
benefit of enhanced age of retirement upto 62 years to
any of the Associate Professors/Lecturers/Librarians.
All the incumbents, whose cases were pending till
12.07.2016, have been treated equally in terms of the
impugned Government Resolution. Thus, no
discrimination has been caused by the State Government.
As stated above, the reasoning given by the State
Government for change in the policy in the matter of
age of retirement appears to be reasonable, proper and
acceptable. The impugned Government Resolution, thus,
is neither irrational nor unreasonable, nor
discriminatory. In the circumstances, the above cited
judgment would not be of any help to the petitioners to
challenge the validity of the impugned Government
Resolution.
21. In our opinion, the impugned Government
Resolution is neither unreasonable nor irrational, nor
arbitrary. The proposals of the individual incumbents
for getting benefit of enhanced age of retirement have
been considered as per the policy that was prevailing
at the time of their consideration. No discrimination
23 wp7831-2016+
has been caused by the State Government in extending or
denying such benefit of any incumbent. We do not find
anything unconstitutional or violative of Article 14 of
the Constitution of India in the impugned Government
Resolution dated 12.07.2016. The petitioners have no
vested right in claiming enhancement in the age of
retirement upto 62 years. If that be so, they are not
entitled to get any relief as claimed in the petitions.
The petitions are devoid of any substance. They are
liable to be dismissed. Hence the order:-
(i) The Writ Petitions are dismissed.
(ii) Rule is discharged accordingly.
(iii) The parties shall bear their own costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.V. GANGAPURWALA]
JUDGE JUDGE
npj/wp7831-2016+
