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Professor Smt. Manorama Prakash Khandekar v/s The State of Maharashtra, Higher and Technical Education Department, through its Secretary, Mantralaya & Others


    Writ Petition No. 5448 of 2011

    Decided On, 20 March 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.S. CHANDURKAR & THE HONOURABLE MR. JUSTICE VINAY JOSHI

    For the Petitioner: P.C. Marpakwar, Advocate. For the Respondents: R1, H.N. Jaipurkar, Assistant Government Pleader, R3 & R4, H.D. Dangre, Advocate.



Judgment Text


A.S. Chandurkar, J.

1. The petitioner takes exception to the action on the part of the respondent no.4 - Priyadarshani College of Education of seeking to retire the petitioner on completion of age of 58 years. The petitioner was appointed on the post of Lecturer pursuant to the order dated 06.10.2003. Her appointment was approved by the respondent no.2 - Nagpur University vide communication dated 28.10.2003 By considering the age of retirement to be 60 years, the petitioner was to superannuate on 26.10.2013. However on 20.10.2011, the petitioner was issued a communication by the Principal of the College stating therein that in the light of Circular dated 25.03.2010 issued by the respondent no.3-Secretary of the Society the petitioner would superannuate from service on 27.10.2011 on attaining the age of 58 years. The petitioner on 21.10.2011 issued a communication to the College stating therein that she was entitled to continue in service till the age of 60 years. The petitioner then approached University vide communication dated 24.10.2011. She was informed by the University on 07.12.2011 that the age of retirement was fixed by the Government at 62 years and therefore she was entitled to continue in service till the age of 60 years. However as the petitioner was treated as superannuated on attaining the age of 58 years, she has preferred the present writ petition.

2. Shri P.C.Marpakwar, learned counsel for the petitioner submitted that the College was not justified in seeking to retire the petitioner at the age of 58 years. He submitted that as per Government Resolution dated 11.12.1999 the age of superannuation of teachers in Non-Agricultural Universities, affiliated Colleges and Institute of Science was 60 years and such teachers were entitled to superannuate at the age of 60 years. Subsequently Government Resolution dated 25.02.2011 prescribed the age of retirement of teachers in non-government colleges to be 60 years and after reviewing the performance of the respective teachers the age of superannuation could be extended by the period of two years to 62 years. Ignoring these Government Resolutions, the College by referring to its own Circular dated 25.03.2010 proceed to treat the petitioner as having superannuated at the age of 58 years. Copy of the said Circular was never served upon the petitioner and she was not aware about its contents. He then submitted that on two earlier occasions, the College had permitted the concerned teacher/Principal to continue in service till the age of 60 years. He referred to the averments in that regard as made in paragraph 4 of the writ petition. In the light of the communication dated 07.12.2011 issued to the Management, the University had also clarified the position that the petitioner was entitled to continue in service till the age of 60 years. He placed reliance on the decisions in Miss Raj Soni Vs. Air Officer in charge Administration and another, AIR 1990 SC 1305, Dr. Ajay Gambhir and another Vs. Dean, Mahatma Gandhi Institute of Medical Sciences, Sevagram, Distt. Wardha and others, AIR 1986 Bom 26 and Secretary, Mahatma Gandhi Mission and Another Vs. Bhartiya Kamgar Sena and others (2017) 4 SCC 449 to substantiate his contentions. It was thus submitted that the notice dated 20.10.2011 issued by the College was liable to be quashed and the petitioner was entitled to all consequential benefits that were admissible by treating the petitioner to be in service till the age of 60 years.

3. Shri H.D.Dangre, learned counsel for the respondent nos. 3 and 4 supported the impugned action. At the outset, he submitted that the respondent no.3 was a minority institution and it had been recognized as such by the State Government on 12.02.2009. The respondent nos. 3 and 4 therefore entitled to have their own service rules and conditions. Referring to the decision in Sindhi Education Society and another Vs. Chief Secretary, Government of NCT of Delhi and others, (2010) 8 SCC 49 , it was submitted that the Management could not be compelled to perform acts or deeds that would tantamount to infringement of its rights to manage and control the institution. He then submitted that the respondent no.3 was merely a Society registered under the Societies Registration Act, 1860 and it was not receiving any grant-in-aid from the State Exchequer. The writ petition therefore would not be maintainable against it as the Society could not be treated as “State” under Article 12 of the Constitution of India. In that regard, he referred to the decision in Vishnu Dattatraya Redekar and others Vs. Director, Nehru Centre and others, 1998 (1) Mh.L.J. 689. He further submitted that alternate remedies were available to the petitioner of either approaching the Grievances Committee under the Maharashtra Universities Act, 1994 or by treating the action of the College of superannuating the petitioner at the age of 58 years as amounting to otherwise termination of her services. These remedies had not been availed by the petitioner. In fact, it was submitted that the petitioner was estopped from challenging the action of superannuating the petitioner at the age of 58 years in view of the fact that the petitioner had accepted such superannuation and had thereafter filed the writ petition. Moreover the petitioner failed to raise a challenge to the Circular dated 25.03.2010 by which the Management had resolved that all the teaching and non-teaching employees would superannuate on attaining the age of 58 years. There was nothing arbitrary in prescribing the age of superannuation as 58 years. The Government Resolutions relied upon by the petitioner were not applicable to a minority institution and hence it could not be said that the petitioner was entitled to continue in service till the age of 60 years. In any event it was submitted that since the petitioner did not discharge duties after the age of 58 years, she was not entitled to any monetary benefit whatsoever. As regards the instances quoted by the petitioner in paragraph 4 of the writ petition of two teachers being continued in service beyond the age of 58 years, it was submitted that the case of the petitioner was not comparable with the case of those teachers. The Principal was continued on the said post on the ground that no other qualified person was available to be appointed as Principal. Another lecturer was appointed at the age of 58 years for a limited period of two years since it was the requirement as per NCTE norms that the lecturers in the College should be Ph.D. holders. It was thus submitted that on these counts the petitioner was not entitled to the reliefs sought in the writ petition and the same was therefore liable to be dismissed.

4. Ms. H.N.Jaipurkar, learned Assistant Government Pleader for the respondent no.1 referred to the affidavit in reply filed on behalf of the respondent no.1 and submitted that as per Government Resolution dated 05.03.2011 the age of superannuation of teachers other than Principals working in non-agricultural universities and non-government affiliated colleges (aided and non-aided) had been increased from 60 to 62 years. However at the age of 60 years review of the performance of the teachers was to be taken by the Performance Review Committee and on its recommendation, the age of superannuation till 62 years could be extended.

5. We have heard the learned counsel for the parties and with their assistance we have perused the documents on record. It can be seen that the respondent no.3- Society has been recognized as a Linguistic Minority Institution in the light of such declaration granted by the Competent Authority on 12.02.2009. The petitioner was appointed on the post of Lecturer on 06.10.2003. Her appointment was approved by the Nagpur University on 28.10.2003. As per the staff profile prepared by the respondent nos. 3 and 4, it is seen that the date of birth of the petitioner was shown as 26.10.1953 and the date of her superannuation was indicated to be 26.10.2013. The said staff profile was certified by the Registrar of the University. The petitioner was thus shown to superannuate at the age of 60 years. Though the Society has been recognized as a linguistic minority and it does not receive any grant-in-aid, the College is recognized by the Higher and Technical Education Department of the State Government it is affiliated to the Nagpur University. As per Government Resolution dated 11.12.1999 the pay-scales of teachers in non-agricultural universities came to be revised. In that Government Resolution the age of superannuation was shown as 60 years with a provision of extension in service. On 25.02.2011 the Higher and Technical Education Department issued a Government Resolution increasing the age of superannuation from 60 to 62 years. However before such extension in the age of superannuation after 60 years was to be granted, the performance of each teacher was to be reviewed. On the recommendation of the Performance Review Committee such extension could be granted subject to approval of the State Government.

From the aforesaid Government Resolutions which are applicable to the respondent nos. 3 and 4 by virtue of the College being recognized by the State Government and its affiliation with the University, it is clear that the age of retirement of a teacher in a non-agricultural university or affiliated college was 60 years with a provision to extend the age of superannuation to 62 years subject to recommendations of the Performance Review Committee.

6. The College on 20.10.2011 issued a notice to the petitioner and sought to superannuate her on completion of the age of 58 years. This notice was issued by relying upon the Circular dated 25.03.2010 that was issued by the Secretary of the Society. That Circular was based on the decision taken by the Executive Body of the Society and reference therein was made to the provisions of Article 30 of the Constitution of India and the rights of the Society by virtue of being a linguistic minority. The petitioner made grievance against such action and the University on 07.12.2011 informed the Society that the petitioner was entitled to continue in service till the age of 60 years and that age of superannuation had been extended to 62 years in view of Government Resolutions dated 25.02.2011 and 05.03.2011. Despite that the petitioner was required to superannuate on completing the age of 58 years.

7. According to the learned counsel for the respondent nos. 3 and 4 as the College was not receiving any grant-in-aid from the State Exchequer and the Institution was a linguistic minority which had in exercise of rights conferred by Article 30 of the Constitution of India fixed the age of superannuation at 58 years, there was no scope to interfere with the action of the Management in superannuating the petitioner at the age of 58 years. Insofar as the College not receiving any grant-in-aid is concerned, that fact by itself would not be a reason to hold that the writ petition as filed against the College and the Society would not maintainable. It is a settled position that the provisions of Article 12 of the Constitution of India would be relevant for the purposes of enforcement of fundamental rights while Article 226 of the Constitution empowers the High Courts to issue writs for enforcement of fundamental rights as well as non-fundamental rights against any person or authority. This position has been explained by the Hon’ble Supreme Court in the decision in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mohotsav Smarak Trust and others Vs. V.R.Rudani and others, AIR 1989 SC 1607, wherein the Hon’ble Supreme Court has in paragraph nos. 19, 20 and 21 observed as under :

19. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.

20. In Praga Tools Corporation v. Shri C.A.Imanual, (1969) 3 SCR 773, this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at 778) (of 1969-3 SCR) : At pp.1309-10 of AIR) :

"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury's Laws of England (3rd Ed. Vol. II p. 52 and onwards)."

21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative 'Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies effecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”

A Constitution Bench in M/s. Zee Tele Films Ltd and another Vs. Union of India and others, AIR 2005 SC 2677, reiterated this position by observing that when a private body exercises public functions even if it is not a State, the aggrieved person has a remedy not only under common law but also under Article 226 of the Constitution of India.

8. It is to be noted that the College is recognized by the Department of Higher and Technical Education of the State Government and it is also affiliated with the Nagpur University. By virtue of imparting higher education the said College can be said to be discharging a public function. Thus mere fact that the College does not receive any grant-in-aid or that it is being controlled by a society registered under the Society’s Registration Act, 1860 cannot be a reason to hold that it would not be amenable to writ jurisdiction under Article 226 of the Constitution of India. The ratio of the decision in Vishnu Dattatraya Redekar (supra) therefore does not apply to the case in hand. That stand taken by the respondent nos. 3 and 4 therefore cannot be accepted.

9. Recently in Dr. Janet Jeyapaul Vs. SRM University and others AIR 2016 SC 73 the question as to the maintainability of a writ petition filed by a Lecturer of a deemed University challenging its action of discharging her from duty was considered by the Hon’ble Supreme Court. The law as laid down in Shri Anadi Mukta (supra) was reiterated and in addition, it was observed that by imparting education in higher studies to students at large, the institution was discharging public functions. The writ petition was held to be maintainable.

10. The Society then seeks to justify its action by virtue of the rights and privileges which it claims to be entitled to as it has been granted the status of a linguistic minority Institution. As per Article 30 of the Constitution of India all minorities based on religion or language have been granted the right to establish and administer educational institutions of their choice. The nature of right of a minority institution to establish and administer an educational institution has been the subject matter of consideration in various decisions of the Hon’ble Supreme Court. While the right to ‘establish’ an educational institution has been held to mean to bring into existence an educational institution, the word ‘administer’ means the right to manage and conduct the affairs of the institution. There is a freedom to choose the managing body, the Principal and the staff. There is also freedom to admit students of its own choice. However the right to administer is not an absolute right and there is requirement to comply with conditions of recognition and affiliation. The right to administer has been held not to include the right of mal-administer. The general rules and regulations relating to the conditions of service and tenure of teachers under the employment of minority institutions are required to be consistent with such rules and regulations as framed by the State. Applicability of the provisions of Article 30(1) of the Constitution to a minority institution would not make it immune from the operation of regulatory measures. The extent of regulations by the State is permissible in the matter of service conditions of employees but without interfering with the overall administrative control by the Management over the staff.

In D.A.V.College, Jullundur, etc. Vs. The State of Punjab and others AIR 1971 SC 1737, the provisions of the Statutes framed by the Guru Nanak University requiring non-government colleges to comply with the requirements laid down in the ordinances governing service conditions were challenged at the behest of minority institutions. The Constitution Bench held that there was power with the University to make regulations governing service conditions and conduct of teachers as it was in the larger interests of the institutions to ensure their efficiency and excellence.

11. Reference in this regard can also be made to the decision in Secretary, Malankara Syrian Catholic College Vs. T.Jose & Ors. AIR 2007 SC 570. After referring to the judgment of the Constitution Bench in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481 it was observed in paragraph 18 as under :

“Among the questions formulated and answered by the majority while summarising conclusions, Question 5(c) and answer thereto has a bearing on the issue on hand : Question 5 ( c ) is extracted below :

"Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?

The first part of the answer to Question 5 (c) related to unaided minority institutions. With reference to statutory provisions regulating the facets of administration, this Court expressed the view that in case of an unaided minority educational institutions, the regulatory measure of control should be minimal; and in the matter of day-to-day management, like the appointment of staff (both teaching and non-teaching) and administrative control over them, the management should have the freedom and there should not be any external controlling agency. But such institutions should have to comply with the conditions of recognition and conditions of affiliation to a University or Board; and a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. This Court also held that fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.”

Thereafter referring to the decision in P.A.Inamdar Vs. State of Maharashtra (2005) 6 SCC 537 it was further observed as under :

"(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).”

The decision in Sindhi Education Society (supra) would have to be read in the aforesaid context as observed in paragraph 94 of that decision.

12. In the aforesaid backdrop, it would be necessary to refer to the stand of the respondent no.1 which is the Department of Higher and Technical Education of the State Government. In paragraphs 5 and 6 of the affidavit in reply dated 08.02.2012 it has been stated as under:

“5. It is therefore, submitted that the age of superannuation of the Lecturers of Non-Government (Grant and Non-Grant) colleges affiliated to Non-Agriculture Universities under the State of Maharashtra, is increased from 60 to 62 years. However, for the extension in the age of superannuation after the age of 60 years, performance of the concerned Lecturer has to be reviewed by the prescribed committee and the proposal for grant of extension in the age of retirement has to be done with the approval of the State Government on satisfaction of the conditions prescribed in the G.R. dated 05.03.2011.

6. It is pertinent to submit that the petitioner has not sought any relief as against this answering respondent. The petitioner is an employee in Educational Institute which is on permanent non-grant and in view of the provision of G.R. dated 05.03.2011, the respondent No.3 and 4 are the authorities competent , in this respect, however, it is a matter of record that the age of superannuation is 60 years, with regard to the petitioner.”

13. On perusal of Government Resolution dated 11.12.1999 it becomes clear that the age of superannuation of a teacher in non-agricultural universities and affiliated colleges was fixed to be 60 years. This age of superannuation was then extended to 62 years by the subsequent Government Resolution dated 25.02.2011. The only rider imposed was that the Performance Review Committee was to assess the suitability of a teacher at the age of 60 years to enable such teacher to continue in service for further period of two years. It thus becomes clear that by virtue of regulations governing the recognition of the minority institution the age of superannuation of teachers was 60 years subject to further extension of the age of superannuation by two years. This indicates that the petitioner was entitled to continue in service till the age of 60 years and subject to recommendation by the Performance Review Committee, she could have continued further in service for two more years. This position is accepted by the University in its communication dated 07.12.2011 issued to the Management and also by the Department of Higher and Technical Education by referring to the Government Resolution dated 05.03.2011.

14. As regards the contention that the petitioner has an alternate remedy of approaching the Grievances Committee constituted under the Maharashtra Universities Act, 1994 even that stand does not deserve to be accepted. Existence of an alternate remedy by itself is no bar for exercising writ jurisdiction. When there are no disputed questions falling for adjudication, the Court can in an appropriate cases exercise jurisdiction under Article 226 of the Constitution of India. We find that since the petitioner claims to have wrongly superannuated from service disregarding the statutory provisions prevailing and there being no disputed questions of fact that require adjudication, the challenge as raised can be considered in writ jurisdiction. We also find that the submission as made on behalf of the Society and the College that the decision of the Executive Body taken on 15.03.2010 and the Circular dated 25.03.2010 were required to be specifically challenged is also not well founded. In view of the fact that the petitioner was aggrieved by the notice dated 20.10.2011 by which she was asked to superannuate at the age of 58 years, a challenge to the same has been raised. The minutes of the meeting of the Executive Body or the Circular dated 25.03.2010 were not supplied to the petitioner. The challenge to the notice dated 20.10.2011 which in turn is based on Circular dated 25.03.2010 implies a challenge to the Circular itself. Hence it is open for the petitioner to contend that the action taken by the College to superannuate her in view of the Circular dated 25.03.2010 is contrary to law.

15. It is thus found that the petitioner whose services were duly approved by the University and whose service conditions were governed by Government Resolution dated 11.12.1999 was entitled to continue in service till the age of 60 years. Similar position is indicated by Government Resol

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utions dated 25.02.2011 and 05.03.2011. Disregarding all these statutory instructions that were binding on the College, the petitioner was superannuated at the age of 58 years. The petitioner not only had a right to continue in service till the age of 60 years but was also entitled to have her performance reviewed by the Performance Review Committee which could have considered whether the petitioner was entitled to continue in service till the age of 62 years. The action of superannuating the petitioner at the age of 58 years is therefore illegal and contrary to law. 16. Coming to the question of relief that can be granted to the petitioner it is found that though the petitioner was willing to discharge duties, she was superannuated at the age of 58 years. In a situation where the employee is willing to discharge duties but is prevented from doing so, the principle of no work no pay would not be applicable. Reference in this regard can be made to the observations in State of Uttar Pradesh Vs. Dayanand Chakrawarty and others AIR 2013 SC 3066, Deepali Gundu Surwase Vs. Kranti Junior Adhyapak -Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324 and Ishwarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Company Limited and another, (2014) 6 SCC 434. Though the petitioner has sought a declaration that she was entitled to continue in service till the age of 62 years and has also sought monetary benefits in that regard, we are inclined to grant relief to the petitioner by declaring that she was entitled to continue in service atleast till the age of 60 years. Since there was no occasion for the Performance Review Committee to assess her performance at the age of 60 years, the question of granting of further relief of declaration that the petitioner was entitled to continue in service till the age of 62 years would not arise. Thus by holding that the petitioner who was entitled to continue in service till the age of 60 years was wrongly superannuated at the age of 58 years, she is entitled to all monetary benefits by treating her age of superannuation as 60 years. 17. In the light of aforesaid discussion, we pass the following order : (1) The notice dated 20.10.2011 issued by the Principal of the respondent no.4-College seeking to superannuate the petitioner at the age of 58 years is quashed and set aside. (2) It is declared that the petitioner was entitled to continue in service as Lecturer till she attained the age of 60 years. The petitioner is held entitled to all monetary benefits including the salary till the date she attained the age of 60 years which is 25.10.2013. All monetary benefits be paid to the petitioner within a period of eight weeks from today failing which the said amount would carry interest @6% per annum from the date of this judgment till realization. Rule is made absolute in aforesaid terms with no orders as to costs.
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