Bombay High Court
Hemlata Shrikant Kulkarni vs The State Of Maharashtra And ... on 11 October, 2023
Bench: Mangesh S. Patil, Shailesh P. Brahme
2023:BHC-AUG:21811-DB
1 WP / 7604 / 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7604 OF 2018
Smt. Hemlata Shrikant Kulkarni,
Age 60 years, Occ. Service as a
Principal, R/o 166, N-3, CIDCO,
Aurangabad ... Petitioner
Versus
1] The State of Maharashtra,
Through the Secretary,
Social Justice & Empowerment Department,
Mantralaya, Mumbai - 400 032
2) The Commissioner,
Social Welfare, Pune
3) The Assistant Commissioner,
Social Welfare, Aurangabad
4) Dr. Babasaheb Ambedkar
Marathwada University through
its Registrar
Aurangabad, Tq. Dist. Aurangabad
5) Higher Technical Education Department,
Through its Secretary, Mantralaya,
Mumbai - 32. ... Respondents
...
Advocate for petitioner : Mr. Yashodeep P. Deshmukh
and Mr. Anand D. Kawre
AGP for the respondents 1 to 3 and 5 : Mr. S.K. Tambe
Advocate for the respondent no. 4 : Mr. K.M. Suryawanshi
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 21 JULY 2023
PRONOUNCED ON : 11 OCTOBER 2023
::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 12:35:23 :::
2 WP / 7604 / 2018
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith. Learned
AGP waives service for respondents 1 to 3 and 5. Mr. K.M.
Suryawanshi waives service for respondent no. 4. At the joint request
of the parties, the matter is heard finally at the stage of admission.
2. The only issue that arises for determination is as to
whether the Principal of a college of Social Work conducted by the
respondent no. 4 - University which is governed by the Maharashtra
Public Universities Act, 2016 ("The Act of 2016") would superannuate
at the age of 60 years or at the age of 62 years pursuant to the
Government resolution dated 05.03.2011 issued by the Higher and
Technical Education Department ?
3. The learned advocate for the petitioner would submit that
the resolution dated 05.03.2011 would be applicable even to the
petitioner and she should have been allowed to retire on completing
the age of 62 years. The order of superannuation passed by the Vice
Chancellor of the University dated 07.07.2018 is therefore illegal.
4. He would submit that the college receives grant-in-aid from
the Social Justice Department of the Government of Maharashtra,
however, so far as the staffing pattern and the recruitment is
concerned, those are governed by the rules framed by the Higher and
3 WP / 7604 / 2018
Technical Education Department. Though her date of superannuation
going by the age of 60 years was of 09.12.2017, she was allowed to
work as the Principal and it is only subsequently by the order dated
07.07.2018, she was directed to be relieved.
5. Mr. Deshmukh, would further submit that the petition was
filed on 06.07.2018. Soon thereafter, another Government resolution
dated 23.08.2018 was issued thereby expressly declaring that the
colleges run under the Maharashtra Social Justice and Special
Assistant Department would not be governed by the Government
resolution dated 05.03.2011 and 12.07.2016 of the Higher and
Technical Education Department. He would submit that in view of such
supervening event, the petition has been amended so as to put up a
challenge to this Government resolution dated 23.08.2018. It is
violative of Article 14 of the Constitution of India inasmuch as it seeks
to make distinction between persons holding the same post of Principal
in respect of the colleges being run by the Social Justice Department
and the Department of Higher and Technical Education. There is no
rationale and the Government resolution dated 23.08.2018 is liable to
be struck down.
6. The learned AGP and the learned advocate for the
respondent no. 4 - University by referring to their respective affidavits
strongly oppose the petition. They would submit that the college in
4 WP / 7604 / 2018
which the petitioner was the Principal, is a college conducted by the
University within the meaning of section 2(2) of the Act of 2016 and is
not an affiliated college as defined under section 2(3) of the Act. The
college being a college conducted by the university, the Government
resolution dated 05.03.2011 issued by the Higher and Technical
Education Department was not applicable. Even otherwise, by virtue of
that very Government Resolution, it was incumbent for the person
holding the post of Principal to obtain certificate from the Government
Medical Committee three months before the date of superannuation
about mental and physical fitness. There was requirement of the
qualification of Ph.D. or equivalent degree, even the confidential
reports of the last five years were relevant. Since it was continuation
beyond the age of 60 years it could not have been without performance
appraisal. Therefore, even if it is assumed that the Government
Resolution dated 05.03.2011 was applicable, for want of such
compliances, since the petitioner's date of superannuation was
09.12.2017, the petition having been filed thereafter on 06.07.2018,
she is not entitled to seek any relief.
7. The learned AGP would further point out that even
Government resolution dated 05.03.2011 was subsequently rescinded
by the Department of High and Technical Education Department by
issuing another Government resolution dated 12.07.2016. Therefore,
5 WP / 7604 / 2018
even for this reason, the petitioner was not entitled to any relief on the
date of the petition.
8. By filing rejoinder the petitioner had made an attempt to
salvage some ground by pointing out that similarly placed individuals,
namely, Dr. S.M. Thaturwar who was Principal of Matoshree Anjanabai
Mundaphale College of Social Work, Narkhed, District - Nagpur and
Dr. B.M. Kurhade, Principal of Aniket Shikshan Sanstha's College of
Social Work, Wardha were both allowed to continue to hold the post till
they reached the age of 62 years, by the order of the Director of Social
Welfare, Pune and Rashtrasant Tukdoji Maharaj Nagpur University,
respectively.
9. We have considered the rival submissions and perused
the papers.
10. At the outset, it is necessary to emphasize the fact that a
college in which the petitioner was the Principal, is a college conducted
by the respondent no. 4 - University as defined under section 2(22), as
distinguished from an affiliated college as defined under section 2(3) of
the Act of 2016. There is a marked distinction between the two and the
fact has not been denied in the rejoinder also. It was, therefore,
imperative for the petitioner to demonstrate that the Government
Resolution dated 05.03.2011 issued by the Department of Higher and
6 WP / 7604 / 2018
Technical Education was applicable even to the Principal of the
colleges conducted by the respondent no. 4 - University. There is
absolutely no response from the petitioner to this stand.
11. Besides, the very same Government resolution dated
05.03.2011 was subsequently revoked or rescinded in the year 2016
even before the petitioner superannuated and obviously, even before
filing of this petition. If such is the state-of-affairs when the petitioner
was appointed to the post of Principal even prior to the Government
Resolution dated 05.03.2011 and it was in force only for period of five
years, independent of anything else, the petitioner's right to continue
on the post of Principal would not be governed by the 2011
Government Resolution. At least it would not lie in her mouth to say
that the service conditions were being sought to be adversely altered
post such appointment.
12. Again, except the bald statements and equally bald
arguments, there is nothing to demonstrate that the Government
Resolution issued by the Department of Higher and Technical
Education was applicable to the colleges being conducted and
regulated under the aegis of the Social Justice Department. Besides,
as is mentioned herein-above, even the Government Resolution dated
05.03.2011 having been subsequently rescinded, the discussion would
only be academic.
7 WP / 7604 / 2018
13. Even the discussion as to whether there was any
discrimination under Article 14 of the Constitution of India, would now
become academic, for, the very policy has been subsequently
rescinded within a period of five years.
14. It does appear that in couple of cases, in respect of
Dr. S.M. Thaturwar and Dr. B.M. Kurhade, Social Justice Department of
the State and the Rashtrasant Tukdoji Maharaj University which is also
governed by the Act of 2016, had allowed the incumbents to continue
up to the age of 62 years. It is apparent that one was granted approval
on 01.07.2015 and the other on 09.08.2016. However, once we have
concluded that the Government Resolution dated 05.03.2011 issued by
the Department of Higher and Technical Education was not applicable
to the colleges run under the Department of Social Justice and further
that the college in which the petitioner was working as a Principal was
a college conducted by the respondent no. 4 - university to which the
Government Resolution issued by the Higher and Technical Education
Department will not be applicable, merely because couple of
individuals could derive some benefits for whatever reason, the
petitioner is not entitled to seek any relief on the ground of parity.
15. Besides, even otherwise, even if the Government
Resolution dated 05.03.2011 was applicable to the petitioner, still, as
8 WP / 7604 / 2018
per the terms and conditions and the stipulations in the Government
Resolution, such continuation was not axiomatic. It had to be preceded
by the performance review. The petitioner completed 60 years of age
as on 09.12.2017. There is no whisper about any insistence by her to
undergo such performance appraisal prior to her superannuation.
Therefore, even for this reason, when the petition has been filed on
06.07.2018 post her superannuation, the petitioner cannot be granted
any relief.
16. The petition is dismissed.
17. Rule is discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
