Dismissed

Prabhakar Govind Dhirde v. the State of Maharashtra and Others

Bombay HC5 Sept 2018WP/9118/2015

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad disposed of a writ petition challenging the discrimination in the Government Resolution extending retirement age for Librarians. The court held that no arbitrary discrimination existed due to distinct working conditions and clarified judicial restraint in reviewing executive policy. The petition was dismissed.

What did the court decide?

No relief granted. Writ Petition dismissed. No costs.

Prabhakar Govind Dhirde Vs the State of… — Pension and Retirement Benefits | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 9118 OF 2015

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Prabhakar s/o Govind Dhirde,
age 63 years, occ. Pensioner,
R/o 81/502, Civil Hudco,
Savedi Road, Ahmednagar...Petitioner

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VERSUS

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1] The State of Maharashtra, through the Secretary, Higher Technical Education Department, Mantralaya, Mumbai – 32,

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2] The Joint Director of Higher Education, Pune Division, Pune,

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3] The Principal, New Law College, Ahmednagar,

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4] Ahmednagar Zilla Maratha Vidya Prasarak Samaj, Ahmednagar, through its Secretary, Lal Taki Road, Ahmednagar ...Respondents

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Advocate for Petitioner : Mrs. Mhase Thube for Lex

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Aquila

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AGP for Respondents 1 and 2 : Mr. S.G.Karlekar
Advocate for Respondents 3 and 4 : Mr. Hon Ashwin V.

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wp9118.15

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CORAM : S.V.GANGAPURWALA

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AND SUNIL K.KOTWAL, JJ.

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DATE : SEPTEMBER 5, 2018

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JUDGMENT (Per S.V.Gangapurwala, J.)

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The petitioner was appointed as a Librarian

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with respondent no.3 with effect from 1.1.1984. The
petitioner attained age of superannuation as per the
relevant policy on attaining age of 60 years. The
petitioner attained age of 60 years on 31.3.2012. AS
per the Government Resolution, dated 22.8.2012 the
age of retirement of Librarian was extended to 62
years. Thereafter, the order was issued in favour of

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the petitioner granting extension of age of
retirement on 10.1.2013. The petitioner as per
extended age of retirement attained the age of
superannuation on 31.3.2014 and retired.

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2.Mrs. Thube, learned counsel for the

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petitioner submits that though the Government
Resolution, dated 22.8.2012 extending age of

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retirement of the Librarian was issued and the
petitioner stood retired on 31.3.2012 the petitioner
all along was officiating with respondent no.3 as a
Librarian and was never given break in service. The
petitioner, however, for the said period was paid
consolidated salary by the institution. The
petitioner is paid regular salary from the date of
granting extension, however, is not paid salary from
1.4.2012 till January, 2013.

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3.Learned counsel submits that the Librarian

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is included in the definition of teacher and the same
is also an academic post. Learned counsel relies on
the provisions of Section 2 (34) of the Maharashtra
Universities Act and Statute 411 (A) and (B) of the
University. Learned counsel submits that similar
Government Resolution for the benefit of Lecturer was
already issued on 5.3.2011 and subsequently on
23.2.2012. The Librarian being included in the
category of teacher/lecturer, the petitioner would be

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covered by the Government Resolutions. Learned
counsel submits that Sub-clause (6) of clause 3 of

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the impugned Government Resolution is illegal,
discriminatory and arbitrary. The same deserves to be
set aside. The similar clause restricting payment
till the date the petitioner resumes duty after the
order granting extension in age of retirement of
Librarian does not appear in the Government
Resolution issued extending age of retirement of
Lecturer/Principal. The Librarian and Lecturer form

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the same class. In view of that, different yard
stick could not have been applied to the Librarian.
Sub-clause (6) of clause 3 of the Government
Resolution, dated 22.8.2012 is violative of Article
14 of the Constitution of India and deserves to be

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set aside. Learned counsel further submits that

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reliance placed by the respondent on clause 4 of the
Government Resolution, dated 14.1.2016 would enure to

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the benefit of the petitioner, in as much as the
petitioner has also worked since 1.4.2012 till the

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order of the Government extending age of retirement.

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4.Mr. Karlekar, learned AGP submits that the

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respondents have disputed that the petitioner has
worked for the period the petitioner stood retired on
31.3.2012 and the date of the order granting
extension of age of retirement to the petitioner.
Learned AGP further submits that the Government
Resolution, dated 22.8.2012 was issued making
applicable to those persons who have retired after
2.2.2011. The persons could not have worked as a
Librarian after the date of retirement on attaining
age of 60 years and till the issuance of the
Government Resolution, dated 22.8.2012 as there was

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no policy of extending age of retirement of
Librarians. The grievance raised by the petitioner
regarding discrimination between Lecturers and
Librarians pursuant to the Government Resolutions
extending age of retirement of the Lecturers and
Librarian also does not survive in view of the

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Government Resolution, dated 23.6.2016. The
Government Resolution, dated 23.6.2016 also

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prescribes that the persons who had not worked after
they have attained age of superannuation and till the
order is passed for extension of age of retirement
shall not be paid salary. The said period is only to
be calculated notionally. Learned AGP further
submits that the post of Librarian does not involve
academic activity. Nature of work of Librarian and
Lecturer is distinct and different and both cannot be
equated with each other.

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5.We have considered the submissions canvassed
by the learned counsel for the respective parties.

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6.The petitioner is basically assailing the
Government Resolution dated 22.8.2012 on the ground
that the Librarians are discriminated as against the
teacher and the Principal. The Lecturers, Professors
and Librarians are included in the definition of

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teacher. In the impugned Government Resolution, the
age of superannuation of the Librarians has been
enhanced/extended, however, the period the Librarians
have attained the age of superannuation and their re-
appointment pursuant to the impugned Government
Resolution is not considered for the purpose of
payment of salary; whereas for the Lecturers and
Professors, such an embargo in the Government
Resolution, dated 5.3.2011 extending their age of
retirement is not made.

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7.The State has clarified that the Government
decided to increase age of retirement of college
Lecturers/Principals as there was scarcity of
teachers and for that purpose, the Government
Resolution, dated 25.2.2011 was issued to increase
the age of retirement of college Lecturers from 60 to
62 years subject to certain conditions. By subsequent
Government Resolution, dated 5.3.2011 the earlier
Government Resolution, dated 25.2.2011 was superseded

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and last condition concerning the two advertisements
was deleted retaining the other conditions. The same
was further modified. In the said Government
Resolution the posts of Librarian, Deputy Librarian
and Assistant Librarian were not included. It was
only upon the representation made by the Maharashtra
FederationofCollege/UniversityLibrarians
Association, the Government considered the request,
though there was no scarcity of Librarians. The
liberal view was taken by the Government deciding to
extend age of retirement of Librarians by two years

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from the age of 60 to 62 years and, as such,

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Government Resolution, dated 22.2.2012 was issued.

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8.The impugned Government Resolution, dated

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22.2.2012 is an executive action of the State. The
executive power can be exercised by issuing
administrative orders, Circular or Resolution, so
long as the Legislature does not make any law on that
subject.

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9.Framing a policy is within the competence of

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State in its executive authority. The policy
decision is in the domain of the executive authority
of the State. The efficacy or otherwise may not be
questioned so long the same does not offend any
provision of the Statute or the Constitution of
India. It is not for the Courts to consider the
relative merit of the different policies. The Court

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can not sit in judgment of the policy of the
Legislature or the Executive. The Court can not
strike down a policy decision taken by the
Government, merely, because it feels that another
decision would have been more logical or wiser. It is

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not the domain of the Courts to embark upon an

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inquiry as to whether a particular policy is
acceptable or whether a better policy could be

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evolved. The Court can only interfere if the policy

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framed is irrational, arbitrary, unreasonable and
thereby offend Article 14 of the Constitution of
India.

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10.The Librarians along with Professors and

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Associate Professors are included in the definition

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of teachers as defined under Section 2 (34) of the
Maharashtra Universities Act. The working conditions

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of Professors and Librarians are different. The
marked distinction needs to be considered. The age
of superannuation of Lecturers was extended initially

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pursuant to the Government Resolution, dated
25.2.2011. The same was made applicable to those who

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were working as on 25.2.2011. Subsequently under the
Government Resolution, dated 5.3.2011 modification

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was made and it was made applicable since 25.2.2011,
meaning thereby that those who were working as on the
date of implemention of Government Resolution, dated
25.2.2011, were entitled to benefit of the extended

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age of retirement. The said Government Resolution
was not made applicable with retrospective effect;

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whereas Government Resolution, dated 22.8.2012

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extendingtheageofretirementfor

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Librarians/Assistant Librarians was made applicable

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to those who have retired on and after 2011, meaning
thereby that even those who retired prior to 1½ year
of issuance of Government Resolution, dated 22.8.2012
would be entitled to the benefit of extended age of
retirement. Naturally, for the period the Librarians
retired and thereafter considered for re-appointment
on account of extended age of retirement under
Government Resolution, dated 22.8.2012 would not be
entitled for the emoluments for the period when the
scheme of extended age of retirement was not in
force. This is the marked distinction between the

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Government Resolutions extending the age of
retirement of Lecturers and that of Librarians.

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11.In the light of above, it cannot be said

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that the Librarians are discriminated as against the
Lecturers. The respondents have denied that the
petitioner after attaining the age of superannuation
on crossing 60 years age has worked till the order
was given to the petitioner of re-appointment. The

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petitioner claims to have worked after he attained 60
years of age and till he received the order of
extension of age of retirement in January, 2013 on
consolidated salary. It would be a fresh appointment
by the College on its own volition under agreement
between the parties.

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12.We would not be entering into the debate
whether the petitioner has really worked for the
period, as on the date the petitioner acquired 60

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years of age, the Government Resolution, dated
22.8.2012 was not in force.

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13.In the light of above, Writ Petition is

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dismissed. No costs.

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 [SUNIL K.KOTWAL, J.] [S.V.GANGAPURWALA, J.]

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dbm

Prabhakar Govind Dhirde v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Prabhakar Govind Dhirde v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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