Bombay High Court
Dr Balaji Laxmanrao Potulwar And ... vs The State Of Maharashtra And ... on 15 December, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
901 WRIT PETITION NO.83 OF 2020
DR. BALAJI LAXMANRAO POTULWAR AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. Barlinge S. R.
AGP for Respondents-State : Smt. M. A. Deshpande.
Standing Counsel for Respondent No.3 : Mr. Deshpande S. B.
...
CORAM : RAVINDRA V. GHUGE, AND
S. G. MEHARE, JJ.
DATE : 15.12.2021
PER COURT :-
1. Vide order dated 29.11.2021, we had directed the State
Government to place before us the minutes / notings of the
meeting of the Committee, which formalized the Government
Corrigendum No.Misc-2018/C.R.56/18/UNI-1, dated
10.05.2019. While calling for such record, we had observed as
under :
"1. The only issue before this Court is that, while accepting
the Career Advancement Scheme (CAS) with the benefits
flowing from the 7th pay commission recommendations, it is
noted in clause 7.3 (VIII) at page 59 of the petition paper book
as under :-
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Para Particulars in G.R. Amendment
dated 08.03.2019
7.3 VIII The requirement for The date for requirement
Orientation course and of Orientation course and
Refresher course for Refresher course for
promotions due under promotions due under
the CAS shall not be the CAS shall not be
mandatory up to 31st extended up to 31st
December, 2018. December, 2018.
2. The Higher and Technical Education Department,
Government of Maharashtra, while accepting the scheme
suggested by the U.G.C., issued the Government Resolution
dated 08.03.2019 in which, it was mentioned in clause 2.0 that
the date of implementation of the revised pay shall be
01.01.2016 and the date of implementation of the terms and
conditions shall be the date of issuance of these rules. It was
then recorded in clause 7.3 (VIII) that the requirement for
orientation course and refresher course for promotions due
under the CAS shall not be mandatory up to 31.12.2018.
However, the Government of Maharashtra issued a fresh
Government Resolution, which is styled as corrigendum dated
10.05.2019, replacing the words in clause 7.3(VIII) with the
words as follows :-
"The date for requirement of Orientation course and
Refresher course for promotions due under the CAS shall not be
extended up to 31st December, 2018."
3. The learned AGP submits that this would mean that the
date for undergoing the said courses shall not be extended after
31.12.2018.
4. From the language used in the corrigendum reproduced
above, we find that the same is slightly confusing as to whether,
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the State desires that the date of requirement of the said courses
for promotions due under the CAS, shall not be extended upto
31.12.2018 or the same shall not be extended beyond
31.12.2018.
5. We are, therefore, directing the learned AGP to place
before us the Marathi version of the corrigendum, if any, and the
minutes/ notings of the meeting of the committee, which
formalized the Government Corrigendum No.Misc-2018/
C.R.56/18/UNI-1 dated 10.05.2019, till the next date in this
matter.
6. List this petition on 08.12.2021 in the urgent category."
2. In the backdrop of the issue before us, we have referred
to a compilation of documents placed before us by the learned
AGP. The 2010 U.G.C. regulations prescribe minimum
qualifications for appointment of teachers and academic staff
in universities and colleges and measures for the maintenance
of standards in higher education 2010 (dated 30.06.2010).
These regulations with amendments in connection thereto,
have been superseded by the 18.07.2018 regulations which are
now known as 'University Grants Commission' (Minimum
Qualifications for Appointment of Teachers and Other
Academic Staff in Universities and Colleges and Measures for
the Maintenance of Standards in Higher Education)
Regulations, 2018.
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3. Clause 1.2 pertains to the mandate of such regulations
being applicable to all universities, colleges, deemed university
etc. It would be apposite to reproduce clause 1.2 here under :
"1.2 These shall apply to every University established or
incorporated by or under a Central Act, Provincial Act or a State
Act, every Institution including a Constituent or an affiliated
College recognized by the Commission, in consultation with the
University concerned under Clause (i) of Section 2 of the
University Grants Commission Act, 1956 and every Institution
deemed to be a University under Section 3 of the said Act."
4. In Clause 3 of the 2018 regulations, it is provided as
under :
"3. If any University contravenes the provisions of these
Regulations, the Commission after taking into consideration the
cause, if any, shown by the University for such failure or
contravention, may withhold from the University, the grants
proposed to be made out of the Fund of the Commission."
5. The 2018 regulations, to the extent of implementation of
the revision of pay as per the 7th Pay Commission
Recommendations, prescribe the applicability from
01.01.2016. Under Clause 5.0, the Constitution of Selection
Committees and Guidelines on Selection Procedure is
prescribed. In Clause 5.1(X), the "Screening-cum-Evaluation
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Committee" for CAS promotion of Assistant Professors /
equivalent cadres in Librarians / Physical Education and Sports
from one level to other higher level has been prescribed. Under
clause 6.0 (VIII), the mandate of requirement of orientation
course and refresher course for promotions due under the CAS,
has been removed upto 31.12.2018. The said clause is
reproduced verbatim as under :
"VIII. The requirement for Orientation course and Refresher
course for promotions due under the CAS shall not be
mandatory upto 31.12.2018."
6. The above provision under the 2018 regulation is the
basis for the filing of this petition since the State Government
initially issued a Government Resolution dated 08.03.2019
accepting the 2018 regulations, which, prima facie, appear to
apply mandatorily to all universities, affiliated colleges, even
under the State Act. However, by a further Government
Resolution dated 10.05.2019, styled as a "Corrigendum", the
State Government has replaced the said clause with the clause
appearing below paragraph No.1 in the comparative chart, set
out in our order dated 29.11.2021, which is reproduced herein
above.
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7. It appears from the submissions of the learned AGP
advanced on instructions that the corrigendum intends to
mean that the earlier date of completion of
orientation/refresher course for promotions under CAS being
31.12.2013, would not be extended upto 31.12.2018. We find
that the contention of the learned AGP to this extent is correct
that the State Government does not intend to extend the date
for completion of orientation/refresher courses upto
31.12.2018.
8. The learned advocate for the petitioners has placed
reliance upon the judgment delivered by the Hon'ble Apex
Court in Parshvanath Charitable Trust and others Vs. All India
Council for Technical Education and others, (2013) 3 Supreme
Court Cases 385, relevant paragraph No.25 of which reads as
under :
"25. It is also a settled principle that the regulations framed
by the central authorities such as the AICTE have the force of
law and are binding on all concerned. Once approval is granted
or declined by such expert body, the courts would normally not
substitute their view in this regard. Such expert views would
normally be accepted by the court unless the powers vested in
such expert body are exercised arbitrarily, capriciously or in a
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manner impermissible under the Regulations and the AICTE Act.
In the case of AICTE v. Surinder Kumar Dhawan [(2009) 11 SCC
726], this Court, while stating the principles that the courts may
not substitute their opinion in place of opinion of the Council,
held as under:-
"17. The role of statutory expert bodies on education and
role of courts are well defined by a simple rule. If it is a
question of educational policy or an issue involving
academic matter, the courts keep their hands off. If any
provision of law or principle of law has to be interpreted,
applied or enforced, with reference to or connected with
education, courts will step in. In Dr. J.P. Kulshreshtha v.
Chancellor, Allahabad University: (1980) IILJ 175 SC this
Court observed:
'11. ... Judges must not rush in where even educationists
fear to tread...
17. ... While there is no absolute bar, it is a rule of
prudence that courts should hesitate to dislodge decisions
of academic bodies.'
18. In Maharashtra State Board of Secondary and Higher
Secondary Education v. Paritosh Bhupesh Kumar Sheth :
[1985] 1 SCR 29, this Court reiterated:
'29. ..the Court should be extremely reluctant to substitute
its own views as to what is wise, prudent and proper in
relation to academic matters in preference to those
formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working
of educational institutions and the departments
controlling them'. "
32. This is a classic case where an educational course has
been created and continued merely by the fiat of the
court, without any prior statutory or academic evaluation
or assessment or acceptance. Granting approval for a new
course or programme requires examination of various
academic/technical facets which can only be done by an
expert body like AICTE. This function cannot obviously be
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taken over or discharged by courts. In this case, for
example, by a mandamus of the court, a bridge course was
permitted for four year Advance Diploma holders who had
passed the entry level examination of 10+2 with PCM
subjects. Thereafter, by another mandamus in another
case, what was a one time measure was extended for
several years and was also extended to Post Diploma
holders. Again by another mandamus, it was extended to
those who had passed only 10+1 examination. Each
direction was obviously intended to give relief to students
who wanted to better their career prospects, purely as an
ad hoc measure. But together they lead to an unintended
dilution of educational standards, adversely affecting the
standards and quality of engineering degree courses.
Courts should guard against such forays in the field of
education."
9. The learned advocate representing the U.G.C. has relied
upon the judgment of the Hon'ble Apex Court delivered in
Kalyani Mathivanan Vs. K.V. Jeyaraj and others, 2015 AIR (SC)
1875, relevant paragraph Nos.19 and 44 which read thus :
"19. For determination of these issues, it is necessary to notice
the relevant provisions of University Commission Act, 1956
(hereinafter referred to as the, 'UGC Act, 1956'), UGC
Regulations, 2010, the University Act, 1965 and the statutes
framed thereunder.
University Grants Commission Act, 1956:
UGC Act, 1956 was enacted to make provisions for the co-
ordination and determination of standards in Universities and
for that purpose, to establish a University Grants Commission.
Section 12 deals with the 'function of the Commission', relevant
of which is quoted hereunder:
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"12. It shall be the general duty of the Commission to take, in
consultation with the Universities or other bodies concerned, all
such steps as it may think fit for the promotion and co-
ordination of University education and for the determination
and maintenance of standards of teaching, examination and
research in Universities, and for the purpose of performing its
functions under this Act, the Commission may-inquire into the
financial needs of Universities; ....................................................
recommend to any University the measures necessary for the
improvement of University education and advise the University
upon the action to be taken for the purpose of implementing
such recommendation; to
(i)...........................
(j) perform such other functions as may be prescribed or as may
be deemed necessary by the Commission for advancing the
cause of higher education in India or as may be incidental or
conducive to the discharge of the above functions."
Section 14 deals with 'consequences of failure of Universities to
comply with recommendations of the Commission' which is as
follows:
14. If any University 1[grants affiliation in respect of any course
of study to any college referred to in subsection (5) of section
12A in contravention of the provisions of that sub-section or]
fails within a reasonable time to comply with any
recommendation made by the Commission under section 12 or
section 13, 2[or contravenes the provision of any rule made
under clause (f) or clause (g) of sub-section (2) of section 25, or
of any regulation made under clause(e) or clause (f) or clause
(g) of section 26,] the Commission, after taking into
consideration the cause, if any, shown by the University 3[for
Such failure or contraventions may withhold from the University
the grants proposed to be made out of the Fund of the
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Commission."
"44. In view of the discussion as made above, we hold:
(i) To the extent the State Legislation is in conflict with Central
Legislation including sub-ordinate legislation made by the
Central Legislation under Entry 25 of the Concurrent List shall
be repugnant to the Central Legislation and would be
inoperative.
(ii) The UGC Regulations being passed by both the Houses of
Parliament, though a sub-ordinate legislation has binding effect
on the Universities to which it applies.
(iii)UGC Regulations, 2010 are mandatory to teachers and other
academic staff in all the Central Universities and Colleges
thereunder and the Institutions deemed to be Universities whose
maintenance expenditure is met by the UGC.
(iv) UGC Regulations, 2010 is directory for the Universities,
Colleges and other higher educational institutions under the
purview of the State Legislation as the matter has been left to
the State Government to adopt and implement the Scheme.
Thus, UGC Regulations, 2010 is partly mandatory and is partly
directory.
(v) UGC Regulations, 2010 having not adopted by the State
Tamil Nadu, the question of conflict between State Legislation
and Statutes framed under Central Legislation does not arise.
Once it is adopted by the State Government, the State
Legislation to be amended appropriately. In such case also there
shall be no conflict between the State Legislation and the
Central Legislation."
10. As such, the learned advocates for the petitioners and
the U.G.C. are united in submitting that the 2018 regulations
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of the U.G.C. cannot be unilaterally amended or modified by
the State Government. Prima facie, we find from the
reproduced clause 1.2 of the 2018 regulations that they are
mandatorily applicable to all those institutions under the
Central Act as well as the State Act as the said clause beings
with "these shall apply to every".
11. The learned AGP has relied upon a judgment delivered
by the Hon'ble Apex Court affirming the view of the Kerala
High Court in T. P. George and others Vs. State of Kerala and
others, 1992 SCR (2) 311, in which it has been held as under :
"Disposing of the cases this Court,
HELD : 1.1 The High Court was right in holding that the
UGC Scheme did not become applicable because of any
statutory mandate 312 making it obligatory for the Government
and the Universities to follow the same, and, therefore, the State
Government had the discretion either to accept or not accept
the Scheme, And in its discretion, it had decided to accept the
Scheme, subject to the one condition, that, in so far as the age
of superannuation was concerned, they would not accept the
fixation of higher age provided in the Scheme; and that as long
as the age of superannuation remained fixed at 55 years, and
as long as the State Government had not accepted the UGC's
recommendation to fix at 60 years, teachers could not claim as
a matter of right that they were entitled to retire on attaining
the age of 60 years. [313B, F-G, 314D]
1.2. It is clear from paragraph 4 of the circular dated
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17th June, 1987 of the Government of India addressed to all
States/UTs (Union Territories) that the adoption of the
Scheme was voluntary, and the only result which might follow
from the State Government not adopting the scheme might be
that it may not get the benefit of the offer of
reimbursement from the Government to the extent of 80 per
cent of the additional expenditure involved in giving effect to
the revision of pay scales as recommended by the Scheme. [314
E-G]"
12. The learned AGP further relies upon a judgment
delivered by the Hon'ble Apex Court in the matter of B. Bharat
Kumar and others Vs. Osmania University and others, (2007)
11 SCC 58, relevant paragraph No.14 being reproduced here
under :
"14. Inspite of our best efforts, we have not been able to follow
as to how the judgment of the Kerala High Court, which has
been approved by this Court is, in any manner, different from
the factual situation that prevails here in this case. It is for that
reason that we have extensively quoted not only the
aforementioned letter dated 27.7.1998 but also the subsequent
letters and the further policy statement. Plain reading of all
these is clear enough to suggest that the scheme was voluntary
and it was upto the State Governments to accept or not to
accept the scheme. Again even if the State Government accepted
a part of the scheme, it was not necessary that all the scheme as
it was, had to be accepted by the State Government. In fact the
subsequent developments suggest that the State Government
has not chosen to accept the scheme in full inasmuch as it has
13 901-WP.83-20.odt
not accepted the suggestions on the part of the UGC to increase
the age of superannuation."
13. The issue, therefore, to be considered in this petition is
as to whether the 2018 regulations introduced by the U.G.C. by
superseding all earlier regulations with amendments, making
them applicable to the entire country, could be tinkered with
by the State Government in the form of deleting clauses from
the said regulations on the pretext that the money will have to
be paid by the State Government and, therefore, it has a right
to modify a provision of the regulations for reducing it's
financial burden.
14. On our directions, the State Government has placed
before us certain notings with regard to the corrigendum
Government Resolution dated 10.05.2019 and pertaining to
the disagreement of the State in extending the time period
upto 31.12.2018 to enable the eligible teachers to undergo
refresher/orientation courses as a condition precedent for
being eligible for revised pay scales. On perusal of the notings,
we do not find any such discussion by the State Government so
as to indicate a conscious decision as to why the said clause 6.3
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VIII introduced by the U.G.C. needs to be done away with.
15. The learned AGP clarifies that the notings shown to us
pertain to the Finance Department and not the Education
Department. We find from the notings that the Finance
Department has given much importance to saving the
finances / reducing the financial burden on the State
Government. The learned advocate representing the U.G.C.
submits that the time frame for completion of orientation and
refresher courses was not made mandatory upto 31.12.2018,
as a conscious decision taken by the U.G.C. However, there is
no affidavit-in-reply, as yet filed in this matter and he seeks
liberty to file the response of the U.G.C..
16. We are of the prima facie view that the teachers ought to
complete their orientation / refresher courses so that there
would be addition to their knowledge and their teaching skills
would be sharpened which would ultimately benefit the
students community in the State. If, by encouraging them to
complete such orientation / refresher courses to achieve the
reward of revised pay scale, which would financially burden
the State Exchequer, it would be the students community
15 901-WP.83-20.odt
which would ultimately benefit out of such sharpening of the
skills of the teachers. The Government should, therefore, give
more importance to this aspect and not to the aspect of saving
their funds.
17. With regard to the modification of a scheme introduced
by U.G.C., in State of Kerala Vs. T. P. George and others
(supra), the Hon'ble Apex Court concluded that the State had
the discretion either to accept or reject a scheme and in it's
discretion while accepting the scheme, it could do away with
one condition and by not following the scheme of the U.G.C.
(in its entirety) the State Government would not be entitled for
the offer of reimbursement from the Government to the extent
of 80% of the additional expenditure involved in giving effect
to the revision of pay scales as recommended by the scheme.
In the instant case, the Union of India was to support the State
of Maharashtra upto 50% of the additional expenditure for a
period of three years. The next question, therefore, would be
as to whether the State Government, if held to be entitled to
delete a clause from the regulations, which would cause
additional expenditure on the Government, be deprived of the
benefit of the offer of reimbursement upto the extent of 50% of
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the additional expenditure incurred by the State Government.
18. Having perused the brief affidavit-in-reply filed on behalf
of the State, we are of the view that the State Government
needs to enter a proper reply so as to deal with all the above
issues. So also, the U.G.C. needs to enter an affidavit-in-reply
to deal with the action of the State of Maharashtra in deleting
the particular clause 6.3 VIII from the regulations and whether
the State Government could have the power to make such
modifications in the U.G.C. regulations, which have been
published in the India Gazette and made applicable to the
entire country vide Clause 1.2 reproduced above.
19. We expect the affidavits-in-reply by the State and the
U.G.C., to be filed, on or before 31.01.2022. We permit the
petitioners to file an affidavit-in-rejoinder, on or before
25.02.2022. Thereafter, this matter be listed for hearing on
07.03.2022.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
...
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