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2011 Supreme(Bom) 1177
2011 (6) ALLMR 689
High Court of Judicature at Bombay
B.H. MARLAPALLE & NISHITA MHATRE
Satish Kundanlal Agarwal & Others
Versus
The State of Maharashtra & Others
WRIT PETITION NOS.2093 OF 2011 WITH WRIT PETITION NO. 3197 OF 2011 WITH WRIT PETITION NO.3463 OF 2011 WITH WRIT PETITION NO.6262 OF 2011 WITH WRIT PETITION NO. 7143 OF 2011 WITH WRIT PETITION NO. 7348 OF 2011 WITH WRIT PETITION NO. 7756 OF 2011 WITH WRIT PETITION NO. 953 OF 2011 WITH WRIT PETITION LODGING NO.1426 OF 2011 WITH WRIT PETITION LODGING NO. 1409 OF 2011 WITH WRIT PETITION LODGING NO.1427 OF 2011 WITH ORIGINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.951 OF 2011
Decided on : 30-09-2011
For the Petitioners:Mihir Desai, S.G. Deshmukh, Abhijeet Kandarkar, S.A. Sawant, Ms. Gunjan Shah, M.S. Bhandari, Ms. Pranjali Bhandari, Vivek Salunke, Advocates. For the Respondents:R2, Nitin Jamdar, Haribhau Deshinge, R4, J.S. Chandanani, Rajiv Chavan, Vinod Joshi, R.A. Lokhande, R5 & R6, Shriram Chaudhary, Vishwanath Talkute, Advocates, S.K. Shinde, A.B. Vagyani, Ms. S.M. Dandekar, M.D. Naik, AGP, Rajiv Chavan, G. Hariharan for Union of India, Rui A. Rodrigues for UGC.
Headnote:Constitution of India - Article 226-Judicial review- Power of-Not intended to assume a supervisory role-Power of judicial review, not intended either to review governance under rule of law nor do Courts step into areas exclusively reserved by supreme lex to other organs of State-Guidelines on scope of judicial review reiterated by Apex Court.-The power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclusively reserved by the supreme lex to the other organs of the State. The Supreme Court reiterated the following guidelines on the scope of judicial review :
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.
(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.
(v) The Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies.
Constitution of India - Articles 226 and 254-University Grant Commission (Minimum Qualification for Appointment of Teachers and others Academic Staff in Universities and Collages and other Measures for Maintenance of Standards in Higher Education) Regulations, 2010-G.R. dated 5.3.2011 issued by State of Maharashtra, clauses 11(1), 11(3) and 11(4)-Age of superannuation -Extension of-Grant of-Performance review before granting extension-Necessity of-To maintain higher standard of education periodical performance review, necessary-Such review neither illegal nor capricious-Warrants no interference by Court under powers of judicial review so long as mechanism sought to be put in place is fair, just and reasonable.-Coming to the requirement of performance review at the age of 60 and 62 years, as the case may be, while granting the benefit of enhancement in the age of superannuation the law laid down by the Supreme Court in All India Judges’ Association, (supra) does empower the State Government to scrutinize the service record of an officer so as to decide his continued utility beyond the age of 58 or 60 years, as the case may be. Indeed Rule 10 the Maharashtra Civil Services (Pension) Rules provides for such a scrutiny at the age of 50 and 55 years as well, so as to decide the retention of the officer concerned in public interest and if the officer is found to be incompetent, dishonest, infirm or of doubtful integrity, an order of compulsory retirement on the basis of the service record and general standing is issued indicating that the retention of such officer any further would not be in public interest. In the academic arena, if the State Government has decided to set up a mechanism so as to assess the performance of college teachers to decide their continued utility beyond the age of 60 or 62 years, cannot find fault with the same, nor can it be said that asking for such scrutiny for deciding continued futility is in any way illegal, perverse, unconstitutional or otherwise taking away any vested rights. To maintain the higher standards of education, research and training it is necessary that the college/university teachers are subjected to such performance review periodically and if the State Government has decided to enhance the age of superannuation beyond the age of 60 years, the performance review at the age of 60 years cannot be said to be illegal, capricious or otherwise warranting the interference by this Court under the power of judicial review so long as the mechanism sought to be put in place is fair, just and reasonable. On the queries made by the State Government fairly conceded during the course of arguments that in the private aided colleges there is hardly any mechanism at place so as to undertake the performance review of the college teachers, though such a mechanism is available with the Government Colleges/Institutions. Having realised that the assessment of performance review for the last five years as set out in clause 11(4) would not be possible, the Government has proposed suitable parameters for the performance assessment of Assistant Professors, Associate Professors as well as Principals. Indeed such parameters suggested could be only illustrative and not exhaustive. Nonetheless, emphasis of such exercise to review the performance during the last five years ought to be on academic achievements and free from personal bias, unfairness and arbitrariness. The professors and principals are high academicians/administrators and, therefore, in the exercise of performance review each one of them ought to be provided with a chance of self assessment. Undoubtedly the Head of the Department/Principal would be the reviewing authority, but for the time being the Government has proposed a committee of four to six members. The committee envisaged under the impugned GR, in opinion, did not reflect the emphasis on academics and, therefore, suggested the presence of more academicians in such performance assessment committees. These suggestions have been accepted by the State Government in the draft notification placed before.
B.H. MARLAPALLE, J.
1. This group of petitions raises common challenge to the Government Resolution dated 5th March 2011 issued by the State of Maharashtra through the Department of Higher and Technical Education and to the extent of Clauses 11(1), 11(3) and 11(4) of the said G.R. There is no dispute that the impugned GR has replaced the earlier GR dated 25/2/2011 and, therefore, the challenge to the same clauses of the GR dated 25/2/2011 is required to be considered with reference to the GR dated 5/3/2011 as the petitions were filed prior to the GR dated 5/3/2011. Hence these petitions are being decided by this common order.
2. The petitioners are either working as Lecturers / Professors at the graduation or post graduation level in different colleges affiliated to nonagricultural Universities and with the said universities as well as in the Government colleges (Engineering and Nonagricultural) in the State of Maharashtra. On 31/12/2008 the Government of India through the Ministry of Human Resources Development addressed a letter to the Secretary – University Grants Commission (UGC) regarding the scheme of revision pf pay of teachers and equivalent categories in the Universities and Colleges, following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission (SCPC). The said communication sets out elaborately the educational qualifications, revised pay scales, career advancement scheme, annual increments, pay fixations and age of superannuation etc. The pay scales of the Professors in Graduate as well as Post Graduate Colleges have been revised as under:
(i) Assistant Professor - Rs.15,600 – 39,100.
(ii) Associate Professor - Rs. 37,400 – 67,000.
So far as the post of Professor is concerned, the pay band of Rs.37,400 – 67,000 would be applicable with higher Academic Grade Pay (AGP) than applicable to the post of Associate Professor. We are mainly concerned with the age of superannuation clause and the said clause reads as under:
“(f) Age of Superannuation:
(i) In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years vide the Department of Higher Education letter No.F.No.119/2006-U.II dated 23.3.2007, 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. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O. letter No.F.1-24/2006-Desk (U) dated 30.3.2007 to enhance the age of superannuation of Vice- Chancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (Visitor in the case of Central Universities).
(ii) Subject to availability of vacant positions and fitness, teachers shall also be reemployed on contract appointment beyond the age of sixty five years up to the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers.
(iii) Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physi
