PROFESSOR MANORAMA PRAKASH KHANDEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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.