Bombay High Court
Dr Goraksha V Pargaonkar vs The State Of Maharashtra And 5 Ors on 6 November, 2017
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.585 OF 2017
Dr. Goraksha V. Pargaonkar
Principal, having his office at Bombay Physical
Culture Association's College of Physical
Education, Bharatiya Krida Mandir,
Naigaon Cross Road, Wadala,
Mumbai 400 031 ......Petitioner
Versus
1 The State of Maharashtra,
Through its Secretary,
Higher and Technical Education
Department; Mantralaya,
Mumbai- 400 032 .......Respondent
2 The Director of Higher Education,
Maharashtra State,
Central Building, Pune-411001
3 The Joint Director of Higher Education,
Mumbai Region, 3, Mahapalika Marg,
Mumbai 400 001
4 The School Education and Sports
Department, Mantralaya,
Mumbai 400032.
5 The Secretary, Bombay Physical
Culture Association, Bharatiya Krida
Mandir, Naigaon Cross Road,
Wadala, Mumbai-31
6 University of Mumbai,
Through its Registrar,
M.G.Road, Fort, Mumbai.
Mr. Rajiv Chavan , Senior Advocate along with Ms. Priyanka
Chavan and Mr. Swaraj Jadhav, Advocates for Petitioner.
Ms. Uma Palsuledesai, Asst. Government Pleader for the State
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for Respondent Nos.1 to 4.
Mr. Rui A. Rodrigues , Advocate for Respondent No.6- Mumbai
University.
CORAM : B.R. GAVAI &
SANDEEP K. SHINDE, JJ.
DATE : November 6 , 2017.
JUDGMENT : [Per Shri Sandeep K. Shinde, J.]
The Petitioner who is qualified teacher of physical
education and being an experienced education administrator
is seeking a writ of mandamus directing the Respondent Nos.1
to 3 to apply provisions of the Government Resolutions dated
5.3.2011 and 12.7.2016 issued by the Respondent No.2 herein
to Principals and Teachers working in Physical Education
Colleges and as such fix age of the Petitioner's superannuation
at 62 years; extendable to 65 years in terms of aforesaid
Government Resolutions. Petitioner's representation to the
Respondent No.1 to make the aforesaid resolutions applicable
to him was turned down vide order dated 14.12.2016 and
being aggrieved by the same, this Petition is preferred.
2 The Petitioner was appointed as lecturer on
23.8.1982 and as a principal of Bombay Physical Culture
Education College of Physical Education ('BPCE ' for short) run
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by the Respondent No.5 on 7.10.1995. His appointment as
Principal was approved and confirmed by the Mumbai
University on 14.2.1997. It was also approved by the Director,
Sports and Youth Services of the State on 19.3.1997. It is the
Petitioner's case that the said College of Physical Education is
affiliated to the University of Mumbai which is non-
agricultural University. That, the State had issued
Government Resolution on 7.6.1984 and revised the pay-
scales of the teaching staff in physical education colleges as
laid down by the University Grants Commission. That on 22 nd
May, the State further revised pay-scales as well as terms and
conditions including the recruitment qualifications, work-load,
etc. of teaching staff of colleges of physical education as per
UGC Notifications dated 24.12.1998. That UGC in October,
1994 included the Bombay Physical Culture Association
College of Physical Education, Wadala, i.e., Respondent No.5 in
the list under the Non-Government Colleges and was held
eligible to receive central assistance in terms of the Rules
framed under Section 12(B) of the UGC Act, 1956. That the
Respondent No.4 had issued Government Resolution dated
24.11.2011 and recommended to apply the Sixth Pay
Commission to the teaching employees of eight non-
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government physical education colleges in the State from
1.1.2006. This recommendation was made at the instance of
University Grants Commission. That as such, it is Petitioner's
case that, BPCE College was/ is eligible to receive the
assistance from the UGC being in the list of colleges prepared
under Section 2(f) of the UGC Act, 1956.
3 It is the Petitioner's case that Council of Ministers
of the State took a decision in the meeting held on 22.5.2013
to bring the colleges of physical education under the purview
of Respondent No.1, i.e., Higher and Technical Education
Department from the Department of School Education and
Sports. That this decision was taken for the reason that these
colleges of physical education are affiliated to various
universities of the State and subject to regulations of UGC.
4 It is the Petitioner's case that on 5.3.2011, State in
its Higher and Technical Education Department resolved to
revise retirement age of the principals of Government/non-
Government Colleges, aided or unaided affiliated to non-
agricultural universities from 60 to 65 with a proviso that
extension beyond 62 years would be subject to performance
review by the committee and subject to approval by the State.
It was also resolved to extend age of retirement of teachers in
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such colleges from 60 to 62 years.
5 It is the Petitioner's case that provisions of the
Government Resolution dated 5.3.2011 were squarely
applicable to him and principals working in physical education
colleges. It is the Petitioner's case that he was about to
complete the age of 60 years on 31.12.2016 and as such made
a representation to the Respondent No.2 with a request to
extend the age of his retirement in view of the Government
Resolution dated 5.3.2011. It is his case that Director of
Higher Education who is controlling authority of the
Petitioner's College vide letter dated 18.8.2016 requested the
Respondent No.1 to apply the provisions of Government
Resolution dated 5.3.2011 and 12.7.2016 to the
unaided/aided physical education colleges affiliated to non-
agricultural university. It was pointed out in the said letter
that as around 100 unaided and 8 aided physical education
colleges were in shortage of suitable, eligible principals. That
since his representation was not decided, Petitioner had filed
Writ Petition No.2552 of 2016 which was disposed of on
24.11.2016 whereby Respondents were directed to take
decision on or before 19.12.2016 on representation of the
Petitioner and that of the Respondent No.5.
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6 It is Petitioner's case that vide order dated
14.12.2016, the Respondent No.1 was pleased to reject the
representation of the Petitioner and was pleased to hold that
provisions of the Government Resolution dated 5.3.2011 and
12.7.2016 were not applicable to the Principals and Teachers
of colleges in physical education for the following reasons:
(1) That UGC pay-scales are not applicable
to non-Government aided physical education
colleges.
(2) For want of quantifiable
details/research report from authorised
Central/State authorities regarding the
scarcity of qualified/eligible teachers in the
stream of physical education colleges, the
provisions of the G.R. dated 5.3.2011 cannot
be extended to the principals and teachers
attached to the non-government colleges of
physical education;
(3) If the benefit under the G.R. is extended to
the employees of such colleges that would
burden the exchequer.
(4) Teachers and the principals of the non-
government aided physical education
colleges are not falling within the purview of
UGC and its Regulations.
(5) That there is no report or authenticate
data to indicate and suggest there is paucity
of qualified teachers and the principals in
physical education colleges.
(6) That the Central Government does not
provide any salary grant to the physical
education colleges affiliated to the
university.
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7 Aggrieved by the order dated 14.12.2016, this
Petition is preferred.
8 That on notice, Respondent-State filed
affidavit of one Dr. Rohidas Kale, in-charge Joint Director,
Higher Education and supported the reasons given in the
impugned order.
9 Heard Mr. Chavan the learned Senior
Counsel for the Petitioner and Ms. Uma Palsuledesai for the
Respondent-State. Perused the pleadings of the parties.
10 The principal questions which arises for
consideration is, "whether the State was justified in excluding
the teachers and principals of aided/unaided physical
education colleges affiliated to non-agricultural universities.,
from the purview of the Government Resolution dated
5.3.2011 by not extending the age of retirement of the
principals from 62 to 65 and other professors from 60 to
62 ?". AND "As to whether the reasons for such exclusion
narrated in the impugned order dated 14.12.16 were valid
and defensible ?"
11 Indisputedly, Bombay Physical Culture Education
Colleges of Physical Education is affiliated to Mumbai
University, a non-agricultural university. A plain reading of
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the G.R. of 5.3.2011 and Clause 8(2) thereof, clarifies that
functional non-government colleges in the State
(Aided/Unaided) attached to non-agricultural universities are
covered under the said G.R., whereby the retirement age of
the principal of such colleges is extended from 60 to 65 with a
proviso that extension after age of 62 would be subject to
performance review by the Committee constituted under the
said G.R. In the case in hand, the BPCE college run by the
Respondent No.5 is affiliated to the Mumbai University which
is non-agricultural university; in our view, the principals and
teachers working in the physical education colleges cannot be
excluded from the purview of the Government Resolution
dated 5.3.2011. In fact Clause 8(2) and 8(6) squarely applies
to teachers of BPCE College and colleges similarly situated. In
our view excluding Principals and teachers from the purview
of G.R. dated 5.3.2011, would result into discrimination meted
out to similarly circumstanced without any rational basis.
The next question that falls for consideration is,
"Whether the reasons given in the impugned order passed on
representation of the Petitioner were defensible ?."
Mr. Chavan the learned Senior Counsel for the
Petitioner has taken us through the various documents to
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substantiate his contention that the subject BPCE college
being enlisted on the list of the colleges prepared by the
University Grants Commission under Section 2(f) of the UGC
Act, it is within the purview of UGC Act and Regulations. On
this count, he has invited our attention to a letter of October,
1994, addressed by the UGC to the Registrar, Mumbai
University. It shows that Mumbai Physical Culture Education
College of Physical Education was held eligible to receive
central assistance in terms of Rules framed under Section
12(b) of the UGC Act, 1956. He has further invited our
attention to the communication dated 8.10.2015 whereby the
UGC had extended/sanctioned financial assistance for major
research project to the Petitioner as principal of BPCE college
of Physical Education, Wadala, Mumbai. Mr. Chavan has
further invited our attention to the communications dated
25.6.2008 and 1.10.2010 and also 27.3.2014 addressed by
the UGC to the Principal of the Bombay Physical College of
Culture of Physical Education conveying the approval of
grant-in-aid, under the general development assistance for
development of undergraduate and post-graduate education.
The communication dated 10.10.2010 shows that UGC had
extended financial assistance to BPCE College to hold the
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conferences, work-shops. Mr. Chavan, Learned Senior
Counsel, would therefore contend that, correspondence as
aforesaid, in clear terms indicate and concludes that the
authorities of the UGC were time and again extending the
financial assistance to the BPCE college and therefore State's
contention while declining benefits of subject G.R. to the
teachers and principals of non-government aided Physical
Education Colleges that employees of subject college were not
within the purview of UGC Act its regulation was incorrect.
We have perused the correspondence between the
authorities of the UGC and the subject college. We have also
perused the G.R.dated 6.6.1984 whereby scales of the
teaching staff in the physical education colleges were revised
by the State. That again vide G.R. dated 22 nd May, there was
further revision in the pay-scales of the teachers working in
the colleges of physical education. Both the revisions were as
per the Notifications issued by the UGC. We have also perused
another G.R.dated 24.11.2011 whereby recommendations of
the Sixty Pay Commission were made applicable to eight
Government physical education colleges in the State at the
instance of the University Grants Commission. Indisputedly,
BPCE College was held eligible to receive assistance from the
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UGC as could be seen from the letter of October, 1994. Thus,
cumulative effect of such correspondence is that the college
run by the Respondent No.5, i.e., BPCE College and the
teaching staff and principals working in the said college
were/are receiving grants/assistance from the UGC and as
such, contention of the State while declining to apply the
provisions of the G.R. dated 5.3.2011 is incorrect and as such,
cannot be accepted.
12 Mr. Chavan, the learned Senior Counsel for the
Petitioner has taken us through the letter dated 18.8.2016
addressed by the Director of Higher Education to the
Respondent No.1 wherein the Director had brought to the
notice of the Respondent No.1 that in 100 unaided and 8 aided
physical education colleges there was shortage of suitable,
eligible principals. The State neither in its affidavit nor in the
order dealt with this data, however, simply contended that in
absence of authenticate quantifiable data about paucity of
qualified teachers and principals in physical education
colleges, it was not possible to extend the benefit of the subject
G.R. to the Petitioner and teachers working in the colleges of
physical education. The State has not taken any pains to place
on record data on this issue to persuade this Court that there
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is no paucity of eligible, qualified teachers in physical
education colleges. We cannot ignore the contents of the letter
of Director of Technical Education, who is the controlling
authority and having supervisory powers over all the
institutes across the State. In view of this fact, we are
convinced that rejection of Petitioner's contention by the
Respondent-State vide its order dated 14.12.2016 on the very
ground of non-availability of quantifiable details/search
reports is incorrect and cannot be accepted.
13 That after perusing the pleadings and the
documents placed on record alongwith the Petition, we hold
that there was no justification on part of the State to exclude
the principals and teachers working in the aided/unaided
physical education colleges affiliated to Mumbai University
from purview of G.R. dated 5.3.2011. At the first place, on
plain reading of the G.R. dated 5.3.2011, principals and
teachers of the colleges in physical education are beneficiaries
of the said G.R. That even assuming the State intended not to
extend the benefit of the subject G.R. to the Petitioner, it ought
to have substantiated such a exclusion on dependable
evidence and for cogent reasons. The reasons for not
extending benefit as reproduced in paragraph 6 hereinabove
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are found incorrect in view of the documents placed on record
by the Petitioner. In view of this fact, we are of the considered
opinion that the impugned order dated 14.12.2016 is not
sustainable. In the circumstances, for the reasons stated
hereinabove, exclusion of the Petitioner from the purview of
G.R. dated 5.3.2011 by the Respondent No.1 is arbitrary and
contrary to their own G.R. Resultantly, we hold and declare
that provisions of the G.R. dated 5.3.2011 are squarely
applicable to the Petitioner and teachers working in the
Bombay Physical Culture Education College of Physical
Education run by the Respondent No.5. Hence, the
t Petition is
allowed in following terms :-
I) It is held and declared that the Government
Resolution dated 5th March 2011 is also
applicable to the Physical Education Colleges
receiving grant-in-aid from the State of
Maharashtra and which are affiliated to Non-
Agricultural Universities.
II ) The Respondent - State is directed to refer the
case of the Petitioner for continuation till he
attains the age of 65 to the Scrutiny
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Committee as appointed under the
Government Resolution dated 5th March
2011 and if the Scrutiny Committee finds
that the Petitioner is entitled to continue till
the age of 65 years, he is directed to continue
as Principal till he attains the age of 65 years.
14 Rule is made absolute in the aforesaid terms.
(SANDEEP K. SHINDE, J) (B.R. GAVAI, J)
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