Bombay High Court
The Principal, Bhausaheb Vartak ... vs Mukesh Narendra Gangrade And Ors on 29 October, 2021
Bench: R.D. Dhanuka, R. I. Chagla
bdp
1
wp-3125.20 & ors(j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3125 OF 2020
Lalit Rajendra Gajanan
Lecturer Selection Grade at
Bhausaheb Vartak Polytechnic
Vasai Road (West), Dist. Palghar
residing at B/401 Star Manor Apt
Anand Road Extension, Malad (W)
Mumbai - 400 064. ... Petitioner
Versus
1. Vidyavardhani
A registered Society/Trust
C/o. Bhausaheb Vartak Polytechnic
Vasai Road (West), Dist Palghar 401 202
(through its Secretary)
2. Bhausaheb Vartak Polytechnic
Vasai Road (West), Dist Palghar 401 202
(through the Principal)
3. The State of Maharashtra
through the Principal Secretary
Higher and Technical Education
Mantralaya, Mumbai 400 032
4. The District of Technical Education
Maharashtra State
Elphinstone Technical School
Mahapalika Marg, Mumbai 400 001
5. Maharashtra State Board of Technical
Education (MSBTE for short)
Kherwadi, Bandra (East)
Mumbai 400 051
(through its Chairman)
6. All India Council of Technical/
Education having its office at
bdp
2
wp-3125.20 & ors(j).doc
Industrial Assurance Bldg
Churchgate, Mumbai 400 020
through its Regional Secretary ... Respondents
WITH
WRIT PETITION NO. 3617 OF 2020
Mukesh Narendra Gangrade
Age 58 years, Occ. Service,
A Wing, Flat No.4, Akansha Apartment,
Sai Sagar Vasai Road (West),
Dist. Palghar 401 202 ... Petitioner
Versus
1. The State of Maharashtra (Through
the Secretary of the Department of
Higher & Technical Education, Govt.
of Maharashtra, Mantralaya, Mumbai Annexe,
Mumbai 400 032
2. The Director of Technical Education, having its
Office at 3, Mahapalika Marg, Mumbai 400 001
3. All India Council for Technical Education,
a Statutory Body of the Government of India,
having its office at Indira Gandhi Sports Complex,
Indraprasth Estate, New Delhi 110 002
4. The Principal,
Bhausaheb Vartak Polytechnic,
Vasai Road (West), Dist Palghar 401 202
5. Vidyavardhani
Through its Secretary,
K. T. Marg (Vasai Road) (W), Dist. Palghar ... Respondents
WITH
bdp
3
wp-3125.20 & ors(j).doc
INTERIM APPLICATION (ST) NO. 93900 OF 2020
IN
WRIT PETITION NO. 3617 OF 2020
1. The Principal
Bhausaheb Vartak Polytechnic
2. Vidyavardhini
Through its Secretary, ... Applicants
In the Matter between :-
Mukesh Narendra Gangrade
Age 58 years, Occ. Service,
A Wing, Flat No.4, Akansha Apartment,
Sai Sagar Vasai Road (West),
Dist. Palghar 401 202 ... Petitioner
Versus
1. The State of Maharashtra (Through
the Secretary of the Department of
Higher & Technical Education, Govt.
of Maharashtra, Mantralaya, Mumbai Annexe,
Mumbai 400 032
2. The Director of Technical Education, having its
Office at 3, Mahapalika Marg, Mumbai 400 001
3. All India Council for Technical Education,
a Statutory Body of the Government of India,
having its office at Indira Gandhi Sports Complex,
Indraprasth Estate, New Delhi 110 002
4. The Principal,
Bhausaheb Vartak Polytechnic,
Vasai Road (West), Dist Palghar 401 202
5. Vidyavardhani
Through its Secretary,
K. T. Marg (Vasai Road) (W), Dist. Palghar ... Respondents
bdp
4
wp-3125.20 & ors(j).doc
******
Mr. Abhay Anturkar i/by Mr. Harshwardhan Suryawanshi for the Petitioners
in WP/3125/2020.
Mr. Abhijeet J. Kandarkar for the Petitioner in WP/3617/2020.
Mr. Susheel Mahadeshwar a/w Mr. Shaikh Nasie Masih for the Respondent
Nos.4 and 5 in WP/3617/2020 and for the Respondent Nos. 1 and 2 in
WP/3125/2020 and Applicant in IAST/93900/2020.
Mr. R. V. Govilkar for the Respondent No.4-Mah. State Board for Technical
Education in WP/3125/2020.
Mrs. Anjali N. Helekar a/w Mr. Anu C. Kaladharan and Ms.Athithi Abhay
for the AICTE for the Respondent No.3 in WP/3617/2020 and for the
Respondent No.6 in WP/3125/2020.
Mr. N. C. Walimbe, AGP for the Respondents-State in both Writ Petitions.
******
CORAM: R. D. DHANUKA AND
R. I. CHAGLA, JJ.
RESERVE DATE : 17th AUGUST, 2021
PRONOUNCE DATE : 29th OCTOBER, 2021
JUDGMENT (Per R.D. Dhanuka, J.) :-
. The petitioner in Writ Petition No. 3125 of 2020 filed under
Article 226 of the Constitution of India prays for a declaration that the
age of retirement of the petitioner who worked as polytechnic lecturer
is 60 years and cannot be treated as 58 years. The petitioner also seeks
a writ of certiorari for quashing and setting aside the communication
dated 31st December, 2019 informing the petitioner that he stood retired
on attaining the age of 58 years. The petitioner seeks permission to
perform his duties in the said post till the actual retirement after
attaining the age of 60 years and seeks payment of salary due and
payable from 1st January, 2020 till the date of retirement of the
petitioner with interest @ 18% p.a. on the amount due and payable till
payment within four weeks.
bdp
wp-3125.20 & ors(j).doc
2. The petitioner in the Writ Petition No. 3617 of 2020 filed under
Article 226 of the Constitution of India prays for a writ of certiorari for
quashing and setting aside the provisions of the Government
Resolution dated 27th February, 2003 in as much as the same affect the
age of the retirement of the employees reducing the same from 60
years to 58 years and denies the right of the employees to receive the
arrears of difference and revised the pay-scales w.e.f. 1st January, 1996.
The petitioner also seeks a writ of mandamus against the respondent
no.4 to continue the petitioner in service as In-charge Head of
Department of Civil Engineering till he completes 60 years of age and
to pay his salary and other benefits regularly.
3. By an order dated 20th October, 2020 passed by a Division Bench
of this Court, this Writ Petition came to be admitted. This Court
granted interim reliefs restraining the respondent nos. 4 and 5 from
retiring the petitioner on completion of 58 years of age. The respondent
nos. 4 and 5 filed Special Leave to Appeal (SLA) No. 1139 of 2021
before the Hon'ble Supreme Court impugning the said interim order.
The Hon'ble Supreme Court expedited the hearing of this writ petition
with a direction to dispose of the same as early as possible preferably
within one month. By Interim Application No. 93900 of 2020, the
original respondent nos. 4 and 5 have prayed for vacating the interim
relief granted on 27th August, 2020 directing that the service of the
petitioner shall be continued as Lecturer in respondent no.4-college till
the retirement age of 60 years.
4. By consent of parties all the aforesaid proceedings were heard
bdp
wp-3125.20 & ors(j).doc
together finally and are being disposed of by a common order.
Facts and submission in Writ Petition No. 3125 of 2020 :-
5. The petitioner has acquired degree in M.Sc (Electronics) and is
qualified to be appointed as a Lecturer. On 16th August, 1990, the
petitioner was appointed on probation for two years as lecturer by the
respondent no.1-Management w.e.f. 1st August, 1990 after following
the process of interview and selection. By letter dated 24 th September,
1992, the petitioner was confirmed in service w.e.f. 1 st August, 1992.
The petitioner continued to be in service from the first day of his
appointment in 1990 and completed the period of more than 29 years.
On 29th January 2015, the Director of Technical Education,
Maharashtra granted approval to the appointment of the petitioner. On
31st December, 2019, the respondent no.1 issued a letter to the
petitioner informing that he had been retired from the services of the
respondent no.2 as lecturer in Computer Technology Department w.e.f.
31st December, 2019 evening as he had completed 58 years of age and
was due for retirement on that day. It is the case of the petitioner that
no notice period was given to the petitioner by the respondent nos. 1
and 2 before retiring the petitioner with immediate effect. The
petitioner accordingly filed this petition on 24 th January, 2020 for
various reliefs.
6. Mr. Anturkar, learned senior counsel for the petitioner invited
our attention to various documents annexed to the writ petition
including the letter dated 16th August, 1990 addressed by the
bdp
wp-3125.20 & ors(j).doc
respondent no.2-college appointing the petitioner as a Lecturer in
Computer Technology Department subject to the approval of the
Director of Technical Education, Maharashtra State. It was stated in
the said letter that the rules and service conditions laid down by the
Management of the respondent no.2 and Director of Technical
Education, Maharashtra State will be binding on him. He invited our
attention to the letter dated 29th January, 2015 issued by the Director of
Technical Education, Maharashtra State granting approval to the
appointment of the petitioner and the letter dated 31 st December, 2019
informing the petitioner that he had retired from the services of the
respondent no.2-Institute w.e.f. 31st December, 2019 as he had
completed 58 years of age and was due for retirement on that day.
7. Learned senior counsel invited our attention to Rules 17 and 18
of the Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 (for short 'the said MEPS Rules) and would
submit that under the said Rule 18(1) an employee, other than class IV
employee shall retire from service on the date on which he attains the
age of 58 years and under no circumstances he shall be granted an
extension in service beyond that age. The age of superannuation of
lower grade employee however shall be 60 years. It is submitted that
the respondent no.1 is private Polytechnic unaided Institution. He
submits that under All India Council for Technical Education (Pay
Scales, Service Conditions and Qualifications for the Teachers and
Other Academic Staff in Technical Institutions (Degree) Regulations,
2010 (for short 'the said AICTE Regulations'), the age of
superannuation is 65 years. He submits that the said MEPS Act is a
bdp
wp-3125.20 & ors(j).doc
general law.
8. It is submitted that the said AICTE Regulations being a subject
law, there being an inconsistency insofar as the age of superannuation
is concerned, the said AICTE Regulations would prevail and not the
said MEPS Act being a general law. He relied upon the definition of
school under Section 2(24) of the MEPS Act and would submit that the
definition of the school includes by whatever name called including
technical or any part of such school, college or institution, which
imparts general, technical education etc.
9. The MEPS Act has been enacted by the State Legislature in
exercise of its legislative power under Article 246(3) of the
Constitution. The MEPS Act has been enacted in relation to the subject
mentioned in Entry 25 of List III (Concurrent List) viz. "Education,
including technical education, medical education and universities
subject to the provisions of entries 63, 64, 65 and 66 of List I,
vocational and technical training of labour.
10. The AICTE Act on the other hand has been enacted by the
Parliament in exercise of its legislative power under Article 246(1) and
(2) read with Entry 66 of List I (Union List) and Entry 25 of List III
(State List). Entry 66 of List I provides for "Co-ordination and
determination of standards in institutions for higher education or
research and scientific and technical institutions." The Hon'ble
Supreme Court of India in State of Tamil Nadu v. Adhiyaman
Education & Research Institute has inter alia held that the expression
bdp
wp-3125.20 & ors(j).doc
'coordination' used in Entry 66 of the Union List does not merely mean
evaluation. It means harmonisation with a view to forge a uniform
pattern for a concerted action according to a certain design, scheme or
plan of development. It, therefore, includes action not only for
removal of disparities in standards but also for preventing the
occurrence of such disparities. It would, therefore, also include power
to do all things which are necessary to prevent what would make
'coordination' either impossible or difficult. This power is absolute
and unconditional and in the absence of any valid compelling reasons,
it must be given its full effect according to its plain and express
intention.
11. It is submitted that the AICTE Act has been enacted by the
parliament in exercise of its legislature power under Article 246(1) and
(2) read with Entry 66 of the List I which provides for coordinate and
determination of the standards in institutions for higher education or
research and scientific and technical institutions. He submits that the
State Act i.e. MEPS Act in this case would not be enforceable in view
of their being a conflict between the said MEPS Act and the said
AICTE Regulations, insofar as the age of superannuation is concerned.
Once the field is occupied by the Central Act, State Act cannot be
applied. There is no other grievance of the petitioner about any other
inconsistency if any between the provision of the said MEPS Act and
the said AICTE Regulations. He submits that both these provisions
cannot be read harmoniously while one provides the age of
superannuation as 58 whereas the other prescribes 65 as the age of
superannuation.
bdp
wp-3125.20 & ors(j).doc
12. Learned senior counsel for the petitioner placed reliance on the
judgment of Supreme Court in case of Jaya Gokul Educational Trust
V/s. Commissioner and Secretary to Government Higher Education
Department, Thiruvanathapuram, Kerala State and Anr., (2000) 5
SCC 231 and in case of Parshvanath Charitable Trust and Ors. v/s.
All India Council for Technical Education and Ors., (2013) 3 SCC
385 and would submit that the judgment of the Supreme Court in case
of State of Tamil Nadu v/s. Adhiyaman Educational and Research
Institute and Ors. (supra) has been followed in those two judgments of
the Hon'ble Supreme Court.
13. Learned senior counsel for the petitioner placed reliance on the
judgment delivered by a Division Bench of this Court in case of
Amrutraj Pratapji Vyas and Ors. v/s. Hind Seva Mandal, Bhusaval
and Ors., (2018) 2 Mah LJ 615 and in particular paragraphs 45 and 46
and would submit that till 1990, all Polytechnics were not within the
ambit of MEPS Act. Thereafter, the AICTE was responsible to
prescribe the pay scales and other service conditions of the teaching as
well as non-teaching staff in technical institutions like the Polytechnics
and degree courses. He submits that the State Government had issued
various circulars adopting the recommendations made by the AICTE
regarding the qualifications and the pay scales and also in respect of
the age of superannuation which are in conformity with the said AICTE
Regulations.
14. Learned senior counsel distinguished the judgment delivered by
a Full Bench of this Court in case of Anil Dattatraya Ade v/s.
bdp
wp-3125.20 & ors(j).doc
Presiding Officer, School Tribunal, Amravati region, Amravati and
Ors., (2003) 3 Bom CR 465 on the ground that the issue of
inconsistency between the State Act and the Central Act was not
considered by this Court in the said Full Bench judgment. This Court
was not dealing with the AICTE Regulations.
15. Learned senior counsel for the petitioner distinguished the
judgment of Hon'ble Supreme Court in case of Bindeshwari Ram v/s.
State of Bihar and Ors., (1989) 4 SCC 465 on the ground that the
executive instructions cannot supersede the statutory rules or cannot be
inconsistent with the statutory rules.
16. Learned senior counsel for the petitioner distinguished the
judgment of the Hon'ble Supreme Court in case of State of
Maharashtra v/s. Jagannath Achyut Karandikar, (1989) Supp (1) SC
393 relied upon by the learned counsel for the respondent nos. 4 and 5
in the joint compilation on the ground that the said judgment would not
apply to the facts of this case even remotedly. He also distinguished the
judgment of Hon'ble Supreme Court in case of Modern Dental and
Research Centre and Ors. v/s. State of Madhya Pradesh and Ors.,
(2017) 7 SCC 353 and would submit that the said judgment also does
not deal with the issue of inconsistency between the State Act and the
Central Act. He submits that in any event even in the said judgment,
the Hon'ble Supreme Court has adverted to the earlier judgment in case
of State of Tamil Nadu v/s. Adhiyaman Educational and Research
Institute and Ors. (supra). He submits that the petitioner be thus
allowed to remain in service till he attains the age of 65 years.
bdp
wp-3125.20 & ors(j).doc
17. In the present case, it is admitted by all the parties that the
provision in the Regulation relating to superannuation is traceable to
Entry 66 of the Union List. Even if it is assumed that the said provision
is traceable to Entry 25 of the Concurrent List, the fact remains that the
AICTE Regulations trace their legislative source to the Parliament
made law.
18. It is submitted that if any provision of a law made by the
Legislature of a State is repugnant to any provision of a law made by
the Parliament, which Parliament is competent to enact, or to any
provision of an existing law with respect on of the matters enumerated
in the Concurrent List, then, the law made by Parliament, whether
passed before or after the law made by the Legislature of such State, or,
as the case may be, the existing law, shall prevail.
19. It is submitted that where a law made by the Legislature of a
State with respect to one of the matters enumerated in the Concurrent
List contains any provision repugnant to the provisions of an earlier
law made by Parliament or an existing law with respect to that matter,
then, the law so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and has received
his assent, prevail in that State.
20. It is submitted that in the present case, the MEPS Act received
the assent of the President on March 16, 1978. The AICTE Act was
received the assent of the President on December 23, 2010. Ordinarily
bdp
wp-3125.20 & ors(j).doc
MEPS Act would have prevailed over any other Central Act, having
received the assent of the President. But the proviso to Article 254(2)
would suggest otherwise. It reads as under :
" Provided that nothing in this clause shall prevent Parliament
from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State."
21. It is submitted that the Hon'ble Supreme Court of India in T.
Barai v . Henry AH Hoe and another has inter alia held that the
proviso to Article 254(2) empowers the Union Parliament to repeal or
amend a repugnant State law even though it has become valid by virtue
of the President's assent. Parliament may repeal or amend the
repugnant State law, either directly, or by itself enacting a law
repugnant to the State law with respect to the 'same matter'. Even
though the subsequent law made by Parliament does not expressly
repeal a State law, even then, the State law will become void as soon as
the subsequent law of Parliament creating repugnancy is made. A State
law would be repugnant to the Union law when there is direct conflict
between the two laws. Such repugnancy may also arise where both
laws operate in the same field and the two cannot possibly stand
together.
22. It is submitted that a proper reading of the provisions relied upon
by the petitioner makes it abundantly clear that the MEPS Act has to
the extent that it provides for the age of superannuation has become
void as soon as the AICTE Act creating the repugnancy was enacted.
bdp
wp-3125.20 & ors(j).doc
The MEPS Rules is repugnant to the AICTE Regulations as there is a
direct conflict between the two of them with respect to the age of
retirement. Such repugnancy has arisen since both the laws operate in
the same field and possibly cannot stand together. In light of the
aforesaid, the law made by the Parliament viz. AICTE Act, and the
Regulations framed thereunder, will prevail over the State Law in terms
of Article 254.
Facts and Submissions of the Petitioner in
Writ Petition No.3617 of 2020 :-
23. On 19th June, 1985, the petitioner was appointed as a lecturer in the
respondent no.4 college after following due process of law. The date of the
birth of the petitioner is 21st September, 1962. He is presently working in the
Department of Civil Engineering as in-charge Head of the Department. The
respondent no.4 is Institute of Technology. The petitioner is the employee of
the respondent no.5. The respondent no.4 is one of the institutions approved
by the respondent no.3. The A.I.C.T.E. prepared a package scheme in
respect of pay-scale, terms and conditions of service, qualifications,
maintenance of standard of the technical education etc. of the librarians,
lecturers, senior lecturers, senior lecturers (selection grade), heads of the
department and Principals teaching in polytechnics in all the States of India.
By the said resolution, the said package scheme was made applicable. The
said package scheme was modified partly by the Government Resolution
issued by the Department of Higher and Technical Education and
employment dated 26th May, 1992. The said package scheme was made
applicable w.e.f. 1st January, 1986. It is the case of the petitioner that the said
Government Resolution nowhere referred to the age of retirement.
bdp
wp-3125.20 & ors(j).doc
24. In the year 1999, the respondent no.3 prepared a new package scheme
in respect of pay-scales, service conditions, qualification and maintenance of
standards of technical education etc. which was communicated to the
secretaries of all the State Governments and Union Territories dealing with
technical education. The said new package scheme was made applicable
w.e.f. January 1996 and all other terms and conditions came into force with
effect from the effect of the said notification. Clause 12 of the said
notification provided that the age of superannuation of teachers in diploma
level technical institutions would be 62 years and thereafter no extension of
service shall be given. The age of superannuation of librarians, physical
education personnel and such other employees of technical education who is
treated at par with the teachers and whose age of superannuation was 60
years, now will be 62 years.
25. On 27th February, 2003, the respondent no.1 issued a resolution of its
Department of Higher and Technical Education. Paragraph (5) of the said
resolution provided that the revised scales of pay, career advancement
schemes and incentives for higher qualifications given under the scheme
would be effective from 1st January, 1996. In paragraph (15) of the said
resolution it was provided that the age of superannuation of teachers,
librarians, physical education personnel and such other employees who are
treated at par with the teachers, in diploma level technical institutions would
be 58 years and thereafter no extension of service shall be given.
26. The respondent no.2 issued a letter dated 21 st March, 2003 to the
principals of all the Government and Non-Government Polytechnics calling
upon all the principals to take action according to the said resolution dated
27th February, 2003 and to prepare the necessary pay fixation verified by the
pay fixation group formed by the respondent no.2 to inform the number of
bdp
wp-3125.20 & ors(j).doc
teachers/librarians who retired after 1st January, 1996 so that their pay
fixation would be verified promptly. The principals were also called upon to
take undertaking from the concerned employee/officer for recovery in case
there was a wrong pay fixation and in case extra amount of difference was
paid to him.
27. On 18th February, 1999, the respondent no.1 issued a resolution
pertaining to revision of pay-scales of teachers, librarians and instructors of
physical education in Government/non-Government Engineering colleges
and other degree level technical institutions including architectural and
pharmacy colleges. The respondent no.1 took a decision to implement the
package scheme with the terms and conditions of service. It was provided
that the age of superannuation of all teachers in technical institutions shall be
60 years except in Government Engineering colleges and other equivalent
Government technical institutions, Government technical institutions of
degree level, where the age of superannuation of teachers will continue to be
58 years.
28. On 18th December, 1999, the respondent no.1 issued another
Government resolution regarding the implementation of the revised pay-
scale of the teachers from Government and Aided Technical Institutions
(Polytechnics). The respondent no.1 took a decision to implement the
revised pay-scales on the basis of the said Government Resolution dated 26 th
May, 1992 to the Government and non-government-aided and unaided
institutions of technology, architecture, pharmacology and polytechnics. In
paragraph (2) of the said Government Resolution, it was provided that after
issuance of the order by All India Council for Technical Education i.e.
A.I.C.T.E. in respect of implementing revised pay-scales to the teachers from
polytechnics, revised pay-scales shall be made applicable to the teachers
bdp
wp-3125.20 & ors(j).doc
from the polytechnics in the State subject to the terms and conditions of the
said order. In paragraph (5) of the said Government Resolution, it was
provided that the prevailing orders in respect of age of retirement of the
teachers would continue even thereafter.
29. The respondent no.3 issued a resolution on 5 th March, 2010 laying
certain service conditions and qualifications for the teachers and other
academic staff in technical institutions. Insofar as age of the superannuation
is concerned, it was provided in the said Government Resolution that in
order to meet the situation arising out of the shortage of teachers in technical
institution and the consequent vacant positions therein, the age of
superannuation for teachers in technical institutions has been enhanced to
sixty five years, vide the Department of Higher Education letter dated 23 rd
March, 2007 for those involved in class room teaching in order to attract
eligible persons to the teaching career and to retain teachers in service for a
longer period. The petitioner completed 58 years on 30th September, 2020.
30. On 25th February, 2011, the respondent no.1 passed a resolution
thereby the age of retirement of the lecturers had been increased from 58
years to 62 years. Clause 7 of the said Resolution deals with the increase of
the age limit from 58 years to 62 years. It is the case of the petitioner that
the petitioner is thus entitled to be continued to be in service upto the age of
62 years and in any case upto 60 years.
31. On 30th July, 2020, the petitioner filed this writ petition. On 20 th
October, 2020, the Division Bench of this Court admitted this writ petition
and granted interim relief in terms of prayer clause (E) thereby restraining
the respondent nos. 4 and 5, their agents, servants and/or any person
claiming through them from retiring the petitioner on completion of 58 years
bdp
wp-3125.20 & ors(j).doc
of age during the pendency of this petition. The Hon'ble Supreme Court did
not interfere with the interim order passed by this Court and expedited the
hearing of this writ petition.
32. Mr.Abhijeet Kandarkar, learned counsel for the petitioner invited our
attention to the various annexures to the writ petition filed by his client and
would submit that the petitioner was appointed as a lecturer in construction
technology on probation for the period of two years subject to the approval
of the Director Technical Education, Maharashtra State and the rules and
service conditions laid down by Vidyavardhini, i.e. respondent no.5 and the
Department of Technical Education, Maharashtra State. He submits that the
said appointment was confirmed by the respondent no.5 on 28 th September,
1988. The petitioner was thereafter granted promotion on 12 th January, 1996
to the post of senior lecturer in the Construction Technology Department.
On 24th August, 2003, the respondent no.5 informed the petitioner that along
with his present teaching load, he was required to perform additional duties
and responsibilities as prescribed by the AICTE. His services would be
governed by the rules and regulations framed by the management of the
respondent no.5 and the Department of Technical Education M.S. from time
to time.
33. Learned counsel invited our attention to the notification dated 5th
March, 2010 issued by the AICTE, notification dated 1 st March, 2019 issued
by the AICTE and the Government order dated 25 th February, 2011. It is
submitted that right from the date of appointment of the petitioner, the age of
the retirement has been 60 years only. The petitioner had accepted his
appointment subject to the said condition of service. Section 4(1) of the
MEPS Act prohibits the respondent no.1 from framing rules which would
vary the conditions of the employees in respect of any of the condition of his
bdp
wp-3125.20 & ors(j).doc
service which would be to the disadvantage of such employees.
34. It is submitted by the learned counsel that the MEPS Act was made
applicable to the polytechnics by the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation (Amendment) Act, 1990 which
was published in the official gazette on 17th December, 1990. The appointed
date of the petitioner is 17th December, 1990 and not 14th August, 1989. He
submits that since AICTE in its recommendation has prescribed the age of
retirement as 62, the respondent no.1 ought to have increased the age of
retirement from 60 to 62 and the respondent no.1 has chosen to reduce the
age of retirement from 60 to 58. The reduction in retirement age would also
affect the pension amount of the petitioner in case he would have opted for
voluntary retirement. He submits that the employees are normally governed
by the rules of the reasonable expectation.
35. Learned counsel placed reliance on the judgment of the Hon'ble
Supreme Court in case of Pramod vs. State of Maharashtra & Ors.
delivered on 29th December, 2015 in Civil Appeal No.14735 of 2015 and in
particular paragraphs 15 and 16. He submits that the Hon'ble Supreme
Court in that judgment has held that the regulation of AICTE being
statutory, unless these have been superseded or annulled by a competent
authority, the appellant's age of superannuation stood extended upto 65
years.
THE SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 4
AND 5 IN WRIT PETITION NO. 3617 OF 2020 AND ON BEHALF OF
THE RESPONDENT NOS. 1 AND 2 IN WRIT PETITION NO. 3125
OF 2020 BY MR.SUSHEEL MAHADESHWAR :-
36. Learned counsel invited our attention to the averments made by the
bdp
wp-3125.20 & ors(j).doc
petitioner in paragraphs 15 and 16 of the writ petition and also to the proviso
4(1) of the MEPS Act and would submit that since the petitioner in Writ
Petition No. 3617 of 2020 was appointed w.e.f. 19th June, 1985, he is not
entitled to claim the benefit of extension of date of the retirement from 58
years to 60 years. He relied upon the judgment of this Court delivered by
the Full Bench in case of Anil Dattatraya Ade (supra) and in particular
paragraphs 21(ii), 27, 31, 32, 59 and 60. It is submitted that in view of the
principles of law laid down by the Full Bench of this Court in the said
judgment holding that the protection of the age is limited and who were in
service of the recognized institution as on 15 th July, 1981, the petitioner
could not be entitled to protection to age extension having been effected
from 19th June, 1985.
37. It is submitted that in view of the Full Bench judgment of this
Hon'ble Court in case of Anil Dattatraya Ade, the Amendment Act of 1990
operates retrospectively from the date the MEPS Act came into force on 15 th
July, 1981. It is therefore clear that the MEPS Act applies to polytechnics
from the date the MEPS Act came into force on 15 th July, 1981 and the
retirement age of teachers who came to be employed in polytechnics on or
after 16th July, 1981, is governed by Rule 17 of the MEPS Rules, which
provides that the retirement age of teachers is 58 years. The petitioner was
appointed as a lecturer in the said polytechnic on 19th June, 1985. The
retirement age of the petitioner is therefore governed by Rule 17 of the
MEPS Rules, which provides that a teacher shall retire from service when he
attains 58 years of age.
38. Learned counsel invited our attention to the observations made by this
Court in the oral judgment dated 13th April, 2009 in case of Dilip Krishnaji
Kulkarni vs. the State of Maharashtra & Ors. in Writ Petition No. 6030 of
bdp
wp-3125.20 & ors(j).doc
2008 along with other writ petition and more particularly in paragraphs 2
and 3 thereof. He submits that it is clearly observed that it is not res intergra
as to whether any employer has a power to reduce the age of superannuation
during service or not, but, the question in that case assumes some
importance in view of the fact that the age of superannuation of 60 years was
protected by an act of legislation.
39. Learned counsel invited our attention to the order dated 7 th June, 2011
passed by this Court in Writ Petition No.1759 of 2004 in case of
S.J.Kanitkar & Ors. vs. State of Maharashtra & Ors. He submits that the
said judgment would not assist the case of the petitioner. He submits that
the provisions of AICTE Act and MEPS Act are to be read with
harmoniously. He invited our attention to the prayers in the writ petition and
also to the Government Resolution dated 27th February, 2003 and would
submit that by the said resolution, the age of superannuation of teachers,
librarians, physical education personnel and such other employees of
technical education who were treated at par with the teachers, in diploma
level technical institutions would be 58 years. It is provided that there was
no extension of service to be provided to be given. He invited our attention
to the grounds raised by the petitioner and more particularly in paragraphs
15 and 16 and would submit that the petitioner cannot be granted benefits of
the proviso to section 4(1) of the MEPS Act in view of his appointment
made in the year 1985.
40. It is submitted by the learned counsel that the Full Bench of this Court
has already held that the Amendment Act of 1990 has been held to be
clarificatory or declaratory having retrospective operation. The petitioner
was born on 21st September, 1962 and was appointed on 19th June, 1985.
bdp
wp-3125.20 & ors(j).doc
41. Learned counsel submits that AICTE Act would fall under Entry 6 of
List I of the Constitution of India. Section 10 of the said Act does not
provide that AICTE Act can lay down service conditions of the staff. It can
provide qualification. Section 23 of the said Act empowers the Government
to make regulation which shall not be inconsistent with the Act. Section
23(2)(b) provides for terms and conditions of service.
42. Learned counsel invited our attention to the notification dated 5th
March, 2010 and more particularly clause 1.2 which provides that those
regulations of 2010 would apply to the technical institutions conducting
technical education and such other courses/programmes and areas as notified
by the Council from time to time and relied upon the Government
Resolution dated 25th February, 2011 and more particularly clauses 5 and 6.
43. Learned counsel placed reliance on the judgment of the Hon'ble
Supreme Court in case of Jagdish Sharma & Ors. vs. State of Bihar (2013)
8 SCC 633 and in particular paragraphs 2, to 5, 7 to 10, 19, 20, 68 to 70, 73,
76 and 77 respectively in support of the submission that conditions imposed
by of the State Government which are within the domain of the State
Government cannot be altered by the Central Government
44. It is submitted that in the case of Jagdish Prasad Sharma (2013) 8
SCC 633, the issue was whether regulations framed by the University
Grants Commission with regard to the age of superannuation had a binding
effect on educational institutions being run by the different states and even
under State enactments. The judgment by three Judges of the Hon'ble
Supreme Court held that "The right of the Commission to frame regulations
having the force of law is admitted. However, the State Governments are
also entitled to legislate with matters relating to education under List III
bdp
wp-3125.20 & ors(j).doc
Entry 25. So long as the State legislation did not encroach upon the
jurisdiction of Parliament, the State legislation would obviously have
primacy over any other law.
45. Learned counsel distinguished the judgment of the Hon'ble Supreme
Court in case of the State of Tamil Nadu & Anr. vs. Adhiyaman
Educational and Research Institution and Ors. (supra). He states that the
age of superannuation was increased by AICTE due to shortage of teachers
and not as a matter of right. Learned counsel placed reliance on the judgment
of the Hon'ble Supreme Court in case of Bharthidasan University &
Another vs. All India Council for Technical Education and Ors. (2001) 8
SCC 676 and in particular paragraphs 12 to 14 and would submit that even if
the Government Resolutions issued by the State Government is not
challenged, the said Government Resolution being illegal, cannot be binding
on the respondents and has to be ignored.
46. Learned counsel placed reliance on the judgment of the Hon'ble
Supreme Court in case of Modern Dental College and Research Centre &
Ors. (supra) and in particular paragraphs 27, 98, 101 104, 122, 129, 133,
142, 144, 145 and 148. He submits that the functions and powers of AICTE
under section 10 of the AICTE Act are to describe the service condition and
not the age of retirement. It is submitted by the learned counsel that MEPS
(Amendment) Act, 1990 did not apply to polytechnic. The amendment was
thus considered in the definition of expression "school" so as to cover all
technical and non-technical schools, junior colleges and institutions which
impart shall technical, vocational and Art or as the case may be, Special
Education or Training in any faculty or Discipline subject below degree
level.
bdp
wp-3125.20 & ors(j).doc
47. It is submitted by the learned counsel that MEPS Act applies to
polytechnic from the date of MEPS Act came into force on 15 th July, 1981
and the retirement age of teachers who claim to be the employee in
polytechnic on or after 16th July, 1981 is governed by Rule 17 of the MEPS
Rules providing that the retirement age of the teachers is 58 years. Since the
petitioner was appointed as lecturer on 19 th June, 1985, the age of the
petitioner is thus governed by Rule 17 of the MEPS Rules providing the age
of retirement as 58 years
48. It is submitted that AICTE Regulations are related to Schedule IV
List-I Entry No.66. The MEPS Act is enacted by the State Legislation in
exercise of powers under List-III Entry 25, there is no repugnancy between
the MEPS Act and AICTE Regulations. Under List III Entry 25, the State
Government is entitled to enact its own laws with regard to the service
condition of the teachers with the State and the same will have effect unless
they are repugnant with the Central Legislation. In absence of any
repugnancy between the State Legislation and the Central Legislation, the
provisions of MEPS Act shall prevail.
49. Is is submitted that the legislative competence of the State in enacting
the MEPS Act and the Rules thereunder is traceable to Entry 25 List III,
which reads as under :
"Education, including technical education, medical
education and universities, subject to the provisions of entries 63,
64, 65 and 66 of List I; vocational and technical training of
labour."
50. It is submitted that the power of the State under Entry 25 List III is
subject to Entry 66 List I. List I Entry 66 reads as under :
bdp
wp-3125.20 & ors(j).doc
"Coordination and determination of standards in institutions
for higher education or research and scientific and technical
institutions"
51. It is submitted that Rule 17 of the MEPS Rules, in as much as it lays
down the age of superannuation of teachers, does not impinge on the
coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions. Rule 17, is
therefore, not beyond the legislative competence of the State and is valid.
52. It is settled law that statutory rules cannot be modified or altered by
executive instructions. In the case of Nishad Sadashiv Pawar Vs.
Dnyanasadhana College, reported in 2005 (4) ALL MR 101, a Division
Bench of this Hon'ble Court has held that executive institutions cannot
contravene MEPS (CS) Rules.
53. Learned counsel distinguished the judgment of the Hon'ble Supreme
Court in case of Sudhir N. vs. State of Kerala (2015) 6 SCC 685, which was
tendered by Mr.Anturkar, learned senior counsel for the petitioner in Writ
Petition No.3125 of 2021. He referred to paragraphs 15 and 18 of the said
judgment and would submit that the said judgment would not apply to the
facts of this case at all. He relied upon the judgment of the Hon'ble Supreme
Court in case of Tamil Nadu Medical Officer Association and others vs.
Union of India, 2020 SC Online SC 699 and would submit that in
paragraphs 142 and 143, the Hon'ble Supreme Court has held that the
judgment in case of Sudhir N. (supra) is not good law. In paragraph 145 (a)
and (9) of the said judgment, the Hon'ble Supreme Court clarified that the
said judgment would apply with prospective effect.
bdp
wp-3125.20 & ors(j).doc
54. Learned counsel made an attempt to distinguish the judgment of the
Hon'ble Supreme Court reported in 1983 (1) SCC 177 and would submit
that there is no repugnancy in NEET Act and AICTE Regulation since both
the Act are under 2 separate List and not in concurrent with the List. Learned
counsel distinguished the judgment of the Hon'ble Supreme Court in case of
Pramod (supra) on the ground that the age of retirement was not the issue
before the Hon'ble Supreme Court in the said judgment.
55. Mrs.Helekar, learned counsel for the respondent no.3 in Writ Petition
No.3617 of 2020 submits that according to her client, the age of
superannuation is 60 years and not 58 years.
56. Mr.Abhay Anturkar, learned counsel for the petitioner in Writ Petition
No.3125 of 2020 in his rejoinder argument submits that Article 254 of the
Constitution of India attracts even if two items fall under two different list.
In case of any inconsistency between the State Act and the Central Act, the
Central Act would prevail MEPS Act. NEET and AICTE Regulations are
repugnant to each other. NEET has also received assent of the President of
India. Entry 60 to the List - I i.e. AICTE Regulations would thus prevail.
AICTE Regulations received assent of India on 23rd December, 1987.
Proviso to Article 254(2) of the Constitution of India will apply in the facts
of this case. Since AICTE has made law inconsistent with MEPS Act,
AICTE Regulation will prevail. He relied upon the judgment of the Hon'ble
Supreme Court in case of T. Barai Vs. Henry Ah Hoe & Anr., 1983 (1) SCC
177 and in particular 15 and would submit that there is repugnancy between
the State Act and the Central Act. The Central Act thus would apply.
57. Mr.Kandarkar, learned counsel for the petitioner in Writ Petition
No.3617 of 2020 in his rejoinder argument submits that the State
bdp
wp-3125.20 & ors(j).doc
Government has already considered this issue at serial no.VI of the
Government Resolution at page 146 of the petition. MEPS Act apply to
provide an unaided technical schools. He relied upon the judgment delivered
by the Full Bench of this Court in case of Chandrakant Sakharam
Karkhanis & Ors. Vs. State of Maharashtra & Ors., AIR 1977, Bombay
193 and in particular paragraphs 1, 31 and 32. He also placed reliance on
section 20 of the General Clauses Act and would submit that he adopts the
arguments advanced by Mr.Anturkar, learned senior counsel in rejoinder on
the issue of repugnancy between the two Acts. He submits that the age of
superannuation of his client to be considered as 60 years.
REASONS AND CONCLUSIONS
IN WRIT PETITION NO. 3125 of 2020 :-
58. It is not in dispute that the petitioner was appointed on probation for
two years as lecturer by the respondent no.1 on 16 th August, 1990 and was
confirmed subsequently w.e.f. 1st August, 1992. The petitioner has already
completed more than 29 years. The Director of Technical Education,
Maharashtra granted approval to the appointment of the petitioner on 29 th
January 2015. The petitioner has impugned the letter dated 31 st December,
2019 issued by the respondent no.1 stating that the petitioner had retired
from the services of the respondent no.2 as lecturer in Computer Technology
Department w.e.f. 31st December, 2019 on attaining the age of 58 years.
59. A perusal of the Rules 17 and 18 of the MEPS Rules indicates that an
employee, other than class IV employee shall retire from service on the date
on which he attains the age of 58 years and under no circumstances he shall
be granted an extension in service beyond that age. The age of
superannuation of lower grade employee however shall be 60 years.
bdp
wp-3125.20 & ors(j).doc
60. It is not in dispute that the respondent no.1 is a private Polytechnic
unaided Institution. It is the case of the petitioner that under AICTE
Regulations, the age of superannuation is 65 years. Under section 2(24) of
the MEPS Act, the definition of the school includes technical or any part of
such school, college or institution, which imparts general, technical
education etc. It is admitted by all the parties that the provision in the
Regulation relating to superannuation is traceable to Entry 66 of the Union
List. The MEPS Act received the assent of the President of India on 16 th
March, 1978. The AICTE Act received the assent of the President of India
on 23rd December, 2010.
61. On 20th October, 2020, the Division Bench of this Court admitted this
writ petition i.e. Writ Petition No.3125 of 2020 and granted interim relief
restraining the respondent nos. 4 and 5 from retiring the petitioner on
completion of 58 years of age. The appointment letter dated 16 th August,
1990 appointing the petitioner as a lecturer in Computer Technical
Department indicates that the rules and service conditions laid down by the
Management of the respondent no.2 and Director of Technical Education,
Maharashtra State will be binding on the petitioner.
62. The MEPS Act is a State Legislature. In exercise of its legislative
power under Article 246(3) of the Constitution, the MEPS Act has been
enacted in relation to the subject mentioned in Entry 25 of List III
(Concurrent List) viz. "Education, including technical education, medical
education and universities subject to the provisions of entries 63, 64, 65 and
66 of List I, vocational and technical training of labour.
63. The AICTE Act has been enacted by the Parliament in exercise of its
legislative power under Article 246(1) and (2) read with Entry 66 of List I
bdp
wp-3125.20 & ors(j).doc
(Union List) and Entry 25 of List III (State List).
64. The Hon'ble Supreme Court in case of State of Tamil Nadu v.
Adhiyaman Education & Research Institute (supra) has held that the
expression 'coordination' used in Entry 66 of the Union List does not merely
mean evaluation. It would include power to do all things which are
necessary to prevent what would make 'coordination' either impossible or
difficult.
65. The question that arises for consideration of this Court is whether
there is any inconsistency or conflict between the MEPS Act and the AICTE
Regulation insofar as the age of superannuation is concerned. Under the
provisions of the MEPS Act, the age of superannuation is 58. On the other
hand, the provisions of AICTE Regulation prescribes the age of
superannuation as 65.
66. This Court in case of Amrutraj Pratapji Vyas and Ors. (supra) after
considering the provisions of MEPS Act and AICTE Act held that till 1990,
all Polytechnics were not within the ambit of MEPS Act. Thereafter, the
AICTE was responsible to prescribe the pay scales and other service
conditions of the teaching as well as non-teaching staff in technical
institutions like the Polytechnics and degree courses. Various resolutions
were passed by the State Government adopting the recommendations made
by the AICTE regarding the qualifications and the pay scales. This Court
also considered that under section 4(1) of the MEPS Act, the State
Government is empowered to make rules providing for the minimum
qualifications for recruitment, duties, pay, allowances, post retirement and
other benefits and other conditions of service of employees of private
schools.
bdp
wp-3125.20 & ors(j).doc
67. This Court also held that AICTE being a body created under the
AICTE Act, is required to carry out statutory functions and it is a model
agency so far as the technical education in India is concerned and is thus
responsible to issue directions/instructions to the Management whether aided
or unaided in view of the provisions of section 4(3) of the M.E.P.S. Act, read
with section 3(1) of the said M.E.P.S. Act. It is held that the polytechnic was
not only bound to comply with the directions issued under the provisions of
MEPS Act and the MEPS Rules framed thereunder, but, were also bound to
comply with the directions issued by the AICTE under the provisions of
AICTE Act including the directions issued for payment of pay scale and
other service conditions prescribed in respect of the staff in a Polytechnic
college or schools. The principles laid down by this Court in case of
Amrutraj Pratapji Vyas and Ors. (supra) squarely applies to the facts of this
case. We do not propose to take any different view in the matter.
68. In our view, since there is conflict between the provisions of the
MEPS Act and the AICTE Regulations in respect of the age of
superannuation, the provisions of the AICTE Regulations would prevail.
The resolutions passed by the State Government under the provisions of the
AICTE Regulations prescribing the age of superannuation would apply to
the teaching and non-teaching staff appointed by the polytechnic institutes
governed by the provisions of the AICTE Act and Regulations. In our view,
Mr.Anturkar, learned senior counsel for the petitioners is right in his
submission that the provisions of the MEPS Act and of the AICTE
Regulations cannot be read harmoniously and thus there being a conflict
insofar as the age of superannuation is concerned, the provisions of the
AICTE Regulations or the resolutions and/or the circulars issued under the
provisions of the AICTE Act or the Regulations would prevail and not the
bdp
wp-3125.20 & ors(j).doc
age of superannuation prescribed under the provisions of the MEPS Act read
with Rules.
69. The judgment of the Hon'ble Supreme Court in case of State of Tamil
Nadu & Anr. vs. Adhiyaman Educational and Research Institution and
Ors. (supra) has been subsequently followed by the Hon'ble Supreme Court
in case of Jaya Gokul Educational Trust (supra) and in case of
Parshvanath Charitable Trust and Ors. (supra).
70. Insofar as the judgment delivered by the Full Bench of this Court in
case of Anil Dattatraya Ade (supra) relied upon by the learned counsel for
the respondent nos. 4 and 5 in Writ Petition No.3617 of 2020 is concerned, a
perusal of the said judgment would clearly indicate that the issue of
inconsistency between the MEPS Act, Rules framed under the said Act and
the AICTE Regulations have not been considered by this Court in the said
judgment. Similarly the judgment of the Hon'ble Supreme Court in case of
Modern Dental and Research Centre and Ors. (supra) would also not apply
to the facts of this case on the similar ground.
71. Insofar as the judgment of the Hon'ble Supreme Court in case of
State of Maharashtra v/s. Jagannath Achyut Karandikar (supra) relied
upon by the learned counsel for the respondent nos. 4 and 5 is concerned, in
our view the said judgment dealing with the issue of seniority and promotion
would not even remotedly apply to the facts of this case and thus would not
advance the case of the respondent nos. 4 and 5.
72. In our view, though the MEPS Act has received the assent of the
President on 16th March, 1978 and AICTE Act had received the assent of the
President 23rd December, 2010 and in ordinary course, the MEPS Act would
bdp
wp-3125.20 & ors(j).doc
have prevailed over any other Central Act, having received the assent of the
President, however in view of the proviso to Article 254(2) of the
Constitution of India, nothing prevents Parliament from enacting at any time
any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislature of the
State.
73. The Hon'ble Supreme Court in case of T. Barai v/s. Henry AH Hoe
and another (supra) has held that the proviso to Article 254(2) empowers
the Union Parliament to repeal or amend a repugnant State law even though
it has become valid by virtue of the President's assent. Parliament may
repeal or amend the repugnant State law, either directly, or by itself enacting
a law repugnant to the State law with respect to the 'same matter'. It is held
that even though the subsequent law made by Parliament does not expressly
repeal a State law, even then, the State law will become void as soon as the
subsequent law of Parliament creating repugnancy is made. A State law
would be repugnant to the Union law when there is direct conflict between
the two laws. Such repugnancy may also arise where both laws operate in
the same field and the two cannot possibly stand together.
74. In our view, the MEPS Act has to the extent that it provides for the
age of superannuation has become void as soon as the AICTE Act creating
the repugnancy was enacted. Such repugnancy arises since both law
operates in the same field and cannot stand together.
75. A perusal of the Government Resolution dated 18 th February, 1999
issued by the State Government indicates that the said resolution deals with
the revision of pay-scales of teachers, librarians and instructors of physical
education in Government/non-Government Engineering colleges and other
bdp
wp-3125.20 & ors(j).doc
degree level technical institutions including architectural and pharmacy
colleges. Under the said Government Resolution, it was provided that the
age of superannuation of all teachers in technical institutions shall be 60
years except in Government Engineering colleges and other equivalent
Government technical institutions, Government technical institutions of
degree level, where the age of superannuation of teachers will continue to be
58 years.
76. On 18th December, 1999, the State Government issued another
Government Resolution to implement the revised pay scale on the basis of
the said Government Resolution dated 26 th May, 1992 to the Government
and non-government-aided and unaided institutions of technology,
architecture, pharmacology and polytechnics. It was clearly provided in the
said Government Resolution that after issuance of the order by All India
Council for Technical Education i.e. A.I.C.T.E. in respect of implementing
revised pay-scales to the teachers from polytechnics, revised pay-scales shall
be made applicable to the teachers from the polytechnics in the State subject
to the terms and conditions of the said order. It was provided that the
prevailing orders in respect of age of retirement of the teachers would
continue even thereafter.
77. The AICTE issued a resolution on 5th March, 2010 laying down
service conditions and qualification for the teachers and other academic
staff and technical institutions. It was provided in the said resolution that in
order to meet the situation arising out of the shortage of teachers in the
technical institutions and consequent vacant position therein, the age of
superannuation for the teachers in technical institutions has been enhanced to
65 years vide Department of Education letter dated 23 rd March, 2007 for
those involved in class room teaching in order to attract eligible persons to
bdp
wp-3125.20 & ors(j).doc
teaching career to retain the teachers in service for longer period.
78. On 25th February, 2011, the State Government issued a resolution
increasing the age of retirement of the Lecturer from 58 years to 62 years
and more particularly in clause 7 thereof.
79. In our view, Section 4(1) of the MEPS Rules prohibits the State
Government from framing rules which may vary the conditions of the
employees in respect of any of the conditions of his service which would be
to the disadvantage of such employees. The MEPS Act was made applicable
to the Polytechnic Institutions by Maharashtra Private Schools (Conditions
of Services) Regulations (Amendment) Act, 1990. We are inclined to accept
the submission of the learned counsel for the petitioner that reduction in
retirement age would affect the pension amount of the petitioner in case he
would have obtained voluntary retirement. The employees are governed by
the Rules and reasonable expectation.
80. A Division Bench of this Court in case of S.G. Kanetkar and others
vs. State of Maharashtra in Writ Petition no.1759 of 2004 delivered on 7 th
June, 2011 adverted to the judgment in case of Dilip Kulkarni vs. State of
Maharashtra in Writ Petition No.6030 of 2008. A Government Resolution
reducing the age of retirement of the employees from 60 years to 58 years
was impugned. Similar order was passed on 26th November, 2012 in Writ
Petition No.308 of 2010 in case of Niranjan N. Parekh vs. State of
Maharashtra & others.
81. Hon'ble Supreme Court in case of Pramod vs. State of Maharashtra
in Civil Appeal No.14735 of 2015 has held that the regulation of AICTE
being statutory, unless these have been superseded or annulled by the
bdp
wp-3125.20 & ors(j).doc
competent authority, the age of superannuation of the appellant therein stood
extended upto 65 years. In our view, there is no substance in the submission
of the learned counsel for the respondent nos.4 and 5 that the retirement age
of the teachers came to be reduced in the polytechnic institutions on or after
16th July, 1981 and/or that the polytechnic institutions are governed by Rule
17 of the MEPS Rules which provides retirement age of the teachers as 58
years. In view of conflict between the provisions of the MEPS Act read with
MEPS Rules and AICTE Regulations, the age of superannuation prescribed
under the said Regulation would prevail and not the said Rule 17 of the
MEPS Rules.
82. There is no substance in the submission of the learned counsel for the
respondent nos.4 and 5 that the petitioner cannot be granted the benefits of
the proviso to section 4(1) of the MEPS Act, 1990 as has been held to be
clarificatory or declaratory. Under section 10 of the AICTE Act, the
AICTE is empowered to lay the service conditions of the staff which would
include the age of superannuation. Insofar as the judgment of the Hon'ble
Supreme Court in case of Jagdish Sharma (supra) relied upon by the
learned counsel for the respondent nos.4 and 5 is concerned, in our view, the
said judgment does not deal with the issue of conflict between the State Act
and the Central Act and thus would not advance the case of the respondent
nos.4 and 5.
83. Insofar as the judgment of the Hon'ble Supreme Court in case of
Modern Dental College (supra), relied upon by the learned counsel for the
respondent nos.4 and 5 is concerned, the judgment would not even apply to
the facts of this case remotely. There is no substance in the submission of the
learned counsel for the respondent nos.4 and 5 that the MEPS (Amendment)
Act, 1990 does not apply to polytechnic institutions. There is no substance
bdp
wp-3125.20 & ors(j).doc
in the submission of the learned counsel for the respondent nos.4 and 5 that
Rule 17 of the MEPS Rules is not beyond the legislative competence. Be
that as it may, in view of the conflict between the MEPS Rules, AICTE
Regulations, AICTE Regulations would prevail.
84. In our view Article 254 of the Constitution of India is attracted even if
two items fall under two different lists. Proviso to Article 254 (2) of
Constitution of India will apply in the facts of this case. The judgment
delivered by the Full Bench of this Court in case of Chandrakant
Karkhanis would clearly support the case of the petitioner.
85. In our view, the age of superannuation of the petitioners in each of
these petitions would be 60 years and not 58 years. We, accordingly pass the
following order :-
(a) Writ Petition No. 3125 of 2020 is made absolute in
terms of prayer clauses (a) to (d). Rule is made
absolute accordingly.
(b) Writ Petition No. 3617 of 2020 is made absolute in
terms of prayer clauses (B) and (C). Rule is made
absolute accordingly.
(c) In view of the disposal of the Writ Petition No. 3617
of 2020, Interim Application (St) No.93900 of 2020
does not survive and is accordingly disposed of.
(d) There shall be no order as to costs.
(e) The parties to act on the authenticated copy of this
judgment.
[R. I. CHAGLA, J.] [R. D. DHANUKA, J.]
Digitally signed
by BIPIN
BIPIN DHARMENDER
DHARMENDER PRITHIANI
PRITHIANI
Date: 2021.10.29
15:27:01 +0530
