Bombay High Court
Dananjay Bhagwanas Devi vs State Of Mharashtra Thr. Principal ... on 30 January, 2024
Author: M.M. Sathaye
Bench: Nitin Jamdar, M.M. Sathaye
skn 1 401-WP-16125.2023--.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 16125 OF 2023
Narendra Krishna Patil. ... Petitioner.
V/s.
State of Maharashtra and others. ... Respondents.
WITH
WRIT PETITION NO. 16125 OF 2023
Dhananjay Bhagwandas Devi. ... Petitioner.
V/s.
State of Maharashtra and others. ... Respondents.
Mr.C.G.Gavnekar with Mr.Ashutosh Gavnekar and Mr.Rohit
Parab for the Petitioners.
Mr.V.M.Mali, AGP for Respondent Nos.1 to 3.
Mr.Milind Deshmukh for Respondent Nos.4 and 5.
CORAM : NITIN JAMDAR, AND
M.M. SATHAYE, JJ.
DATE : 30 January 2024.
P.C. :
The Petitioners have sought a declaration that the
Petitioners are entitled to continue in service of Respondent No.4-
Management in Respondent No.5- College till the age of 65 years.
The Petitioners have also challenged the communications issued by
Respondent No.4 directing that the Petitioners will retire on
superannuation upon completion of the age of 60 years. The
learned AGP tendered reply affidavit in the Court. The learned
skn 2 401-WP-16125.2023--.doc
counsel for the parties point out that the issue raised in these
petitions would affect large numbers of teaching staff in the unaided
technical colleges in the State of Maharashtra. Stand over to 21
February 2024 at 3.30 p.m.
2. Heard the learned counsel for the parties on ad-interim
relief.
3. The learned counsel for the Petitioners contends that the
Petitioners may be permitted to continue in the employment of
Respondent No.4 till the petition is heard beyond the age of 60
years. The learned AGP and the learned counsel for Respondent
Nos.4 and 5 oppose this prayer contending that such a prayer would
be contrary to the concerned relevant governing resolutions.
4. The main contention of the Petitioners is based on the
Regulations issued by All India Council for Technical Education
(AICTE). According to the Petitioners, the regulations of AICTE
prescribe the date of retirement as 65 years and the same would
override the governing resolutions issued by the State Government.
The Petitioners have relied upon the decision of the learned Single
Judge in the case of University of Mumbai v. Satish V. Ratnaparkhi 1
and the interim order dated 31 July 2023 passed by the Hon'ble
Supreme Court in Special Leave to Appeal (C) No.15958/2023
(Dr.Mir Sadique Ali v. Vidarbha Youth Welfare Society).
1 Writ Petition No.12761/2019 decided on 28 February 2023.
skn 3 401-WP-16125.2023--.doc
5. The Respondent- Management has referred to the
Statutes of Dr. Babasaheb Ambedkar Technological University to
which the Respondent- Management is affiliated. Statute 10.74
thereof provides that the age of superannuation of the employees
shall be as prescribed by the Government from time to time.
According to the the Respondent- Management, the age of
superannuation of the teaching staff of the Respondent- College, an
unaided technical institute is 60 years as per Government Resolution
dated 12 July 2016 issued by the Higher and Technical Department,
Government of Maharashtra. The Respondents have relied upon the
decision of the Division Bench of this Court in the case of Prof. Dr.
Yeshwant Kondji Khillare v. State of Maharashtra2.
6. According to the Respondent- Management, the
Petitioners' case is governed by the Government Resolution dated 12
July 2016. The Government Resolution dated 12 July 2016 was a
subject matter of challenge in this Court in the case of Prof. Dr.
Yeshwant Kondji Khillare and the Division Bench of this Court
(Aurangabad Bench) negatived the challenge and upheld the said
Government Resolution. The Division Bench taking note of the
decision of the Supreme Court in the case of Jagdish Prasad Sharma
v. State of Bihar3, observed that it is a prerogative of the State
Government to fix the age of retirement of the employee.
According to the State, it is not the Government Resolution dated 12
2 2017 (5) Mh.L.J. 825
3 2013 (8) SCC 633: 2013 Mh.L.J. Online (SC) 31
skn 4 401-WP-16125.2023--.doc
July 2016 but it is the Government Resolutions dated 5 March 2011
and 25 November 2011 which are applicable to decide the
retirement age of the faculty and the Principals in the unaided
institutions. Even proceeding on the basis that these Government
Resolutions are applicable which contemplate that continuation
beyond the age of 60 years but on performance review, and in the
Petitioners' case there is no such performance review. Therefore,
going by the stand put forth by the Respondent- State and the
Respondent- Management based on the Government Resolutions as
above, in the present case the age of retirement would remain 60
years for the Petitioners.
7. As regards the order passed by the learned Single Judge
in the case of University of Mumbai v. Satish V. Ratnaparkhi , the
same was subject matter of challenge in Special Leave to Appeal
No.14778/2023. Though the Special Leave Petition was summarily
dismissed by the Supreme Court by order dated 21 July 2023, the
question of law is kept open to be decided in a proper case. It
appears that the decision of the Division Bench of this Court was not
brought to the notice of the learned Single Judge as it does not find
reference in the decision in the case of University of Mumbai v.
Satish V. Ratnaparkhi. As regards the order of the Supreme Court in
the case of Dr.Mir Sadique Ali is concerned, this order was passed
in Special Leave to Appeal which arose from the judgment and order
dated 30 June 2023 passed by the learned Single Judge of this Court
(Nagpur Bench) in Writ Petition No.5944/2022 (Vidharbha Youth
skn 5 401-WP-16125.2023--.doc
Welfare Society v. Dr.Mir Sadique Ali ). In this case, the University
and College Tribunal, Nagpur had granted relief in favour of the
employee which order was challenged by the Management therein
and the challenge of the Management was allowed by the learned
Single Judge. During the pendency of the writ petition, the interim
order continued and it is this decision that has been stayed while
issuing notice to the respondents therein. There is, therefore, no
direct conclusive pronouncement in favour of the Petitioners holding
the field whereby the Petitioners can be directed to continue in
service beyond the age of 60 years that is placed before us.
8. The learned counsel for the parties inform us that as on
today the teaching staff in the technical colleges retire at the age of
60 years, except performance review as the case may be. We are not
inclined to grant interim order. If the Petitioners succeed,
appropriate relief can always be granted.
9. The learned counsel for the Petitioners, proceeding on
the basis that the Respondents may process the papers for post
retirement benefits and disburse the amounts to the Petitioners,
submitted that they should be restrained from doing so as it would
affect the merits of the Petitioners' case. The Respondents to
process the papers for post retirement benefits of the Petitioners only
after seeking leave of the Court.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
