Bombay High Court
Walmik Vishwanath Bhasme vs State Of Mah. Thr. Its Secty., And ... on 16 March, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1575 OF 2011.
Walmik Vishwanath Bhasme,
Aged about 60 years, Occupation
Associate Professor, resident of
Plot No.45, Banerjee Layout,
Post Bhagwan Nagar, Nagpur
Pin - 440027. ....PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Department of Higher and Technical
Education, Mantralaya,
Mumbai - 32.
2. Joint Director of Higher Education
Nagpur Division, Nagpur.
3. Dr. Ambedkar College,
Deekshabhoomi Nagpur,
through its Principal.
4. Param Pujya Dr. Babasaheb Ambedkar
Smarak Samiti, through its
Secretary, resident of c/o. Dr. Ambedkar
college, Deekshabhoomi, Nagpur.
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Judgment wp1575.11
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5. The President,
Medical Board, Government Medical
College, Nagpur.
6. Rashtrasant Tukdoji Maharaj
Nagpur University, Nagpur
through its Registrar.
7. University Grants Commission,
through its Secretary, Bahudurshah
Zafar Marg, New-Delhi - 110002. ....RESPONDENTS
.
-----------------------------------
Mr. Anand Parchure with Shri Deshpande, Advocates for Petitioner.
Mr. B.M. Lonare, Asstt. Govt. Pleader for Respondent Nos. 1,2 and 5.
------------------------------------
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : MARCH 16, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Petitioner, an Associate Professor in the employment of respondent
no.3 College has approached this Court on 29.03.2011 claiming right to
continue upto 62 years of age. He was to attain age of 60 years on
31.03.2011. The matter was considered by this Court on 01.04.2011 and a
prima facie finding that only due to absence of medical fitness, extension
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upto 62 years was being denied, an interim order was passed permitting him
to continue in the employment beyond 60 years of age. This Court made it
clear that the interim order would not create any equity in his favour and it
would be subject to decision of Medical Board. At this stage it is not in
dispute that on 05.04.2011, the Medical Board found petitioner fit to
continue.
2. However, this interim order has not been implemented and it
appears that no contempt proceedings were taken out. The petitioner
therefore, did not get any benefit of that order. By one of the orders passed
on 29.01.2013, petitioner was permitted to accept pension calculated by
treating 60 years as his age of retirement without prejudice to his rights and
contentions in the petition.
3. It is in this situation, we have heard Shri Parchure with Shri
Deshpande, learned Counsel for the petitioner and Shri Lonare, learned
A.G.P. for respondent nos. 1, 2 and 5.
4. Petitioner states that only ground for denying extension to
petitioner is consideration of his entitlement by Performance Review
Committee (PRC). Total about 12 points have been used and with a finding
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that as majority of them were not fulfilled, petitioner is declared ineligible.
It is pointed out that this consideration is in terms of Government
Resolutions dated 05.03.2011, 23.11.2011 and 23.02.2012. Basic eligibility
is to be evaluated on the strength of 5 factors stipulated in the government
resolution dated 05.03.2011, then in force. Paragraph no.11 of this
government resolution is pressed into service. It is submitted that Ph.D.,
mandated by paragraph no.11[3] of the said Government Resolution has
been later on not insisted upon, and as such only 4 norms/factors could have
been looked into. Medical fitness certificate is also later on received by the
petitioner and hence, the remaining three norms ought to have been
examined. It is submitted that as appointment of petitioner is duly
approved and as per law, norm no.1 in that paragraph is satisfied. As
medical certificate is received, second norm is also satisfied. Requirement of
Ph.D. being dispensed with later on, need not be considered and factor no.5
is said to be undertaken by the management. Our attention is invited to
orders passed on 07.01.2015 to demonstrate that there fact that petitioner
has "A" (Excellent) remark in three years and "B+" (Positively good) in
remaining two years, is also not in dispute. Thus, requirement of paragraph
no.11[4] is also satisfied. Shri Parchure, learned counsel submits that in this
situation, without properly evaluating the case of petitioner in terms of these
directions, the Performance Review Committee has used entirely different
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yardsticks and found petitioner ineligible. He contends that if these 5 factors
are to be accepted as norms, the 8 points utilized by Performance Review
Committee for scrutiny are nothing but, only guidelines and therefore,
subordinate in nature. To drive home this contention, support is being taken
from paragraph no.4[4] of government resolution dated 23.11.2011.
5. Petitioner therefore, claims that evaluation by the Performance
Review Committee needs to be discarded and petitioner should be continued
in employment till 62 years of age for all practical purpose and
consequential benefits should be released to him.
6. Learned A.G.P. is relying upon affidavits in reply filed by
respondent no.2. Those affidavits are dated 17.06.2011, 17.09.2012 and
12.02.2013. He has taken us through relevant government resolutions to
urge that Performance Review Committee has acted as per those resolutions
and as petitioner has been found not fulfilling most of the norms,
continuation beyond 60 years is rightly denied to him.
7. With the assistance of respective counsel, we have perused the
records. First guidance about the factors, subject to which entitlement of a
candidate like petitioner to continuity beyond 60 years is to be scrutinized is
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available in government resolution dated 05.03.2011. In paragraph no.11, 5
factors are stipulated and while mentioning arguments of learned counsel
for the petitioner we have briefly referred to the same. It appears that
thereafter, on 23.11.2011, because of orders passed on 30.09.2011 by this
Court in various Writ Petitions, the Committees as formed for evaluation in
terms of government resolution dated 05.03.2011, were cancelled.
Performance Review Committee as stipulated therein were formed. As per
Clause 4[4] in so far as petitioner is concerned, it is stipulated that apart
from 5 factors mentioned in paragraph no.11 of the government resolution
dated 05.03.2011, additional guidelines have been stipulated. Those
guidelines are in clause 'C' of said government resolution. Those guidelines
are VIII in number, and these VIII heads or points for consideration figure in
chart prepared by Performance Review Committee which is impugned before
this Court. Submission of petitioner is there is no application of mind qua,
basic 5 norms stipulated in paragraph no.11 of government resolution dated
05.03.2011.
8. Perusal of last government resolution dated 23.02.2012, therefore
becomes necessary. This government resolution in its preamble points out
that previous history including events leading to second government
resolution dated 23.11.2011 and then it points out directions issued by this
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court in its judgment dated 30.09.2011. That judgment speaks of certain
parameters which could have been used to decide the eligibility for
extension. Judgment itself clarifies that those were only illustrative and not
exhaustive. Accordingly on 23.02.2012, a corrigendum was issued. As per
paragraph no.4[2] of that corrigendum, it has become necessary to
scrutinize the cases of all candidates like petitioner by ignoring the
stipulation of Ph.D. and also of annual confidential report. Thus, other
terms and conditions contained in paragraph no.11 of the government
resolution dated 05.03.2011 and in paragraph 'C' of government resolution
dated 23.11.2011 were to be looked into.
9. Judgment of this court dated 30.09.2011 has not been available
for our perusal by the parties, however, its portion reproduced in paragraph
no.2 of government resolution dated 23.02.2012 reveals a direction by this
Court to Performance Review Committee to undertake that exercise of
performance review of College/University Teachers and Principals who have
retired during the intervening period i.e. from 28.02.2011 onwards.
Direction was given to complete that exercise expeditiously and within a
period of six weeks from the issuance of the revised notification. The revised
notification came on 23.11.2011 and thereafter on 23.02.2012. It is not in
dispute that for the first time the case of petitioner for continuation has been
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examined in view of this direction by the Performance Review Committee,
and that exercise has been impugned before this Court.
10. Performance Review Committee consisting of 6 Members has
expressly mentioned government resolutions dated 05.03.2011, 23.11.2011
and 23.02.2012. Thus, they have looked into all relevant government
resolutions. Petitioner could not have been considered before the
corrigendum issued on 23.02.2012 and found fit because it is by said
corrigendum, that the condition of Ph.D. has been dispensed with. Use of
these three government resolutions by the Performance Review Committee is
not in dispute. Only contention is, the 5 norms prescribed by the
government resolution dated 05.03.2011, have not been considered.
11. When the corrigendum issued on 23.02.2012 and directions
mentioned supra issued on 30.09.2011 are looked into, it is apparent that
the argument is misconceived. After deleting the condition of confidential
report and Ph.D., the material conditions are prescribed only in government
resolution dated 23.11.2011. All those 8 conditions/norms finds mention in
the performance review exercise undertaken by the said Performance
Review Committee in case of present petitioner. Perusal of chart placed on
record by petitioner shows that he is not fulfilling most of the tests applied
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by the Performance Review Committee.
12. Tests were prescribed before hand as per directions of this Court
and have been applied. Correctness of finding against any test is not in
dispute. Whether these norms or guidelines are not relevant and valid is not
the debate before us. Same are material for present adjudication because
those tests are parameters prescribed after directions of this Court dated
30.09.2011. Eligibility of a candidate for continuation has to be examined
on the strength of these parameters only.
13. In this situation we find that the Performance Review Committee
has rightly applied its mind and result reached by it cannot be said to be
either erroneous or perverse. We therefore, find no case made out
warranting interference. Writ Petition is accordingly dismissed. Rule
discharged. No costs.
JUDGE JUDGE
Rgd.
