Bombay High Court
Dr Balaji Laxmanrao Potulwar And Others vs The State Of Maharashtra And Others on 15 December, 2021
Author: S. G. Mehare
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
901 WRIT PETITION NO.83 OF 2020
DR. BALAJI LAXMANRAO POTULWAR AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. Barlinge S. R.
AGP for Respondents-State : Smt. M. A. Deshpande.
Standing Counsel for Respondent No.3 : Mr. Deshpande S. B.
...
CORAM : RAVINDRA V. GHUGE, AND
S. G. MEHARE, JJ.
DATE : 15.12.2021
PER COURT :-
1. Vide order dated 29.11.2021, we had directed the State Government to place before us the minutes / notings of the meeting of the Committee, which formalized the Government Corrigendum No.Misc-2018/C.R.56/18/UNI-1, dated 10.05.2019. While calling for such record, we had observed as under :
"1. The only issue before this Court is that, while accepting the Career Advancement Scheme (CAS) with the benefits flowing from the 7th pay commission recommendations, it is noted in clause 7.3 (VIII) at page 59 of the petition paper book as under :-::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 :::
2 901-WP.83-20.odt Para Particulars in G.R. Amendment dated 08.03.2019 7.3 VIII The requirement for The date for requirement Orientation course and of Orientation course and Refresher course for Refresher course for promotions due under promotions due under the CAS shall not be the CAS shall not be mandatory up to 31st extended up to 31st December, 2018. December, 2018.
2. The Higher and Technical Education Department, Government of Maharashtra, while accepting the scheme suggested by the U.G.C., issued the Government Resolution dated 08.03.2019 in which, it was mentioned in clause 2.0 that the date of implementation of the revised pay shall be 01.01.2016 and the date of implementation of the terms and conditions shall be the date of issuance of these rules. It was then recorded in clause 7.3 (VIII) that the requirement for orientation course and refresher course for promotions due under the CAS shall not be mandatory up to 31.12.2018.
However, the Government of Maharashtra issued a fresh Government Resolution, which is styled as corrigendum dated 10.05.2019, replacing the words in clause 7.3(VIII) with the words as follows :-
"The date for requirement of Orientation course and Refresher course for promotions due under the CAS shall not be extended up to 31st December, 2018."
3. The learned AGP submits that this would mean that the date for undergoing the said courses shall not be extended after 31.12.2018.
4. From the language used in the corrigendum reproduced above, we find that the same is slightly confusing as to whether, ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 3 901-WP.83-20.odt the State desires that the date of requirement of the said courses for promotions due under the CAS, shall not be extended upto 31.12.2018 or the same shall not be extended beyond 31.12.2018.
5. We are, therefore, directing the learned AGP to place before us the Marathi version of the corrigendum, if any, and the minutes/ notings of the meeting of the committee, which formalized the Government Corrigendum No.Misc-2018/ C.R.56/18/UNI-1 dated 10.05.2019, till the next date in this matter.
6. List this petition on 08.12.2021 in the urgent category."
2. In the backdrop of the issue before us, we have referred to a compilation of documents placed before us by the learned AGP. The 2010 U.G.C. regulations prescribe minimum qualifications for appointment of teachers and academic staff in universities and colleges and measures for the maintenance of standards in higher education 2010 (dated 30.06.2010). These regulations with amendments in connection thereto, have been superseded by the 18.07.2018 regulations which are now known as 'University Grants Commission' (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2018.
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3. Clause 1.2 pertains to the mandate of such regulations being applicable to all universities, colleges, deemed university etc. It would be apposite to reproduce clause 1.2 here under :
"1.2 These shall apply to every University established or incorporated by or under a Central Act, Provincial Act or a State Act, every Institution including a Constituent or an affiliated College recognized by the Commission, in consultation with the University concerned under Clause (i) of Section 2 of the University Grants Commission Act, 1956 and every Institution deemed to be a University under Section 3 of the said Act."
4. In Clause 3 of the 2018 regulations, it is provided as under :
"3. If any University contravenes the provisions of these Regulations, the Commission after taking into consideration the cause, if any, shown by the University for such failure or contravention, may withhold from the University, the grants proposed to be made out of the Fund of the Commission."
5. The 2018 regulations, to the extent of implementation of the revision of pay as per the 7th Pay Commission Recommendations, prescribe the applicability from 01.01.2016. Under Clause 5.0, the Constitution of Selection Committees and Guidelines on Selection Procedure is prescribed. In Clause 5.1(X), the "Screening-cum-Evaluation ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 5 901-WP.83-20.odt Committee" for CAS promotion of Assistant Professors / equivalent cadres in Librarians / Physical Education and Sports from one level to other higher level has been prescribed. Under clause 6.0 (VIII), the mandate of requirement of orientation course and refresher course for promotions due under the CAS, has been removed upto 31.12.2018. The said clause is reproduced verbatim as under :
"VIII. The requirement for Orientation course and Refresher course for promotions due under the CAS shall not be mandatory upto 31.12.2018."
6. The above provision under the 2018 regulation is the basis for the filing of this petition since the State Government initially issued a Government Resolution dated 08.03.2019 accepting the 2018 regulations, which, prima facie, appear to apply mandatorily to all universities, affiliated colleges, even under the State Act. However, by a further Government Resolution dated 10.05.2019, styled as a "Corrigendum", the State Government has replaced the said clause with the clause appearing below paragraph No.1 in the comparative chart, set out in our order dated 29.11.2021, which is reproduced herein above.
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7. It appears from the submissions of the learned AGP advanced on instructions that the corrigendum intends to mean that the earlier date of completion of orientation/refresher course for promotions under CAS being 31.12.2013, would not be extended upto 31.12.2018. We find that the contention of the learned AGP to this extent is correct that the State Government does not intend to extend the date for completion of orientation/refresher courses upto 31.12.2018.
8. The learned advocate for the petitioners has placed reliance upon the judgment delivered by the Hon'ble Apex Court in Parshvanath Charitable Trust and others Vs. All India Council for Technical Education and others, (2013) 3 Supreme Court Cases 385, relevant paragraph No.25 of which reads as under :
"25. It is also a settled principle that the regulations framed by the central authorities such as the AICTE have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 7 901-WP.83-20.odt manner impermissible under the Regulations and the AICTE Act. In the case of AICTE v. Surinder Kumar Dhawan [(2009) 11 SCC 726], this Court, while stating the principles that the courts may not substitute their opinion in place of opinion of the Council, held as under:-
"17. The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, courts will step in. In Dr. J.P. Kulshreshtha v. Chancellor, Allahabad University: (1980) IILJ 175 SC this Court observed:
'11. ... Judges must not rush in where even educationists fear to tread...
17. ... While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.'
18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth : [1985] 1 SCR 29, this Court reiterated:
'29. ..the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them'. "
32. This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/technical facets which can only be done by an expert body like AICTE. This function cannot obviously be ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 8 901-WP.83-20.odt taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four year Advance Diploma holders who had passed the entry level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one time measure was extended for several years and was also extended to Post Diploma holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards and quality of engineering degree courses. Courts should guard against such forays in the field of education."
9. The learned advocate representing the U.G.C. has relied upon the judgment of the Hon'ble Apex Court delivered in Kalyani Mathivanan Vs. K.V. Jeyaraj and others, 2015 AIR (SC) 1875, relevant paragraph Nos.19 and 44 which read thus :
"19. For determination of these issues, it is necessary to notice the relevant provisions of University Commission Act, 1956 (hereinafter referred to as the, 'UGC Act, 1956'), UGC Regulations, 2010, the University Act, 1965 and the statutes framed thereunder.
University Grants Commission Act, 1956:
UGC Act, 1956 was enacted to make provisions for the co- ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.
Section 12 deals with the 'function of the Commission', relevant of which is quoted hereunder:::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 :::
9 901-WP.83-20.odt "12. It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-
ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may-inquire into the financial needs of Universities; .................................................... recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation; to
(i)...........................
(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions." Section 14 deals with 'consequences of failure of Universities to comply with recommendations of the Commission' which is as follows:
14. If any University 1[grants affiliation in respect of any course of study to any college referred to in subsection (5) of section 12A in contravention of the provisions of that sub-section or] fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13, 2[or contravenes the provision of any rule made under clause (f) or clause (g) of sub-section (2) of section 25, or of any regulation made under clause(e) or clause (f) or clause
(g) of section 26,] the Commission, after taking into consideration the cause, if any, shown by the University 3[for Such failure or contraventions may withhold from the University the grants proposed to be made out of the Fund of the ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 :::
10 901-WP.83-20.odt Commission."
"44. In view of the discussion as made above, we hold:
(i) To the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.
(ii) The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the Universities to which it applies.
(iii)UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by the UGC.
(iv) UGC Regulations, 2010 is directory for the Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the Scheme.
Thus, UGC Regulations, 2010 is partly mandatory and is partly directory.
(v) UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does not arise. Once it is adopted by the State Government, the State Legislation to be amended appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation."
10. As such, the learned advocates for the petitioners and the U.G.C. are united in submitting that the 2018 regulations ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 11 901-WP.83-20.odt of the U.G.C. cannot be unilaterally amended or modified by the State Government. Prima facie, we find from the reproduced clause 1.2 of the 2018 regulations that they are mandatorily applicable to all those institutions under the Central Act as well as the State Act as the said clause beings with "these shall apply to every".
11. The learned AGP has relied upon a judgment delivered by the Hon'ble Apex Court affirming the view of the Kerala High Court in T. P. George and others Vs. State of Kerala and others, 1992 SCR (2) 311, in which it has been held as under :
"Disposing of the cases this Court, HELD : 1.1 The High Court was right in holding that the UGC Scheme did not become applicable because of any statutory mandate 312 making it obligatory for the Government and the Universities to follow the same, and, therefore, the State Government had the discretion either to accept or not accept the Scheme, And in its discretion, it had decided to accept the Scheme, subject to the one condition, that, in so far as the age of superannuation was concerned, they would not accept the fixation of higher age provided in the Scheme; and that as long as the age of superannuation remained fixed at 55 years, and as long as the State Government had not accepted the UGC's recommendation to fix at 60 years, teachers could not claim as a matter of right that they were entitled to retire on attaining the age of 60 years. [313B, F-G, 314D] 1.2. It is clear from paragraph 4 of the circular dated ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 :::
12 901-WP.83-20.odt 17th June, 1987 of the Government of India addressed to all States/UTs (Union Territories) that the adoption of the Scheme was voluntary, and the only result which might follow from the State Government not adopting the scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80 per cent of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the Scheme. [314 E-G]"
12. The learned AGP further relies upon a judgment delivered by the Hon'ble Apex Court in the matter of B. Bharat Kumar and others Vs. Osmania University and others, (2007) 11 SCC 58, relevant paragraph No.14 being reproduced here under :
"14. Inspite of our best efforts, we have not been able to follow as to how the judgment of the Kerala High Court, which has been approved by this Court is, in any manner, different from the factual situation that prevails here in this case. It is for that reason that we have extensively quoted not only the aforementioned letter dated 27.7.1998 but also the subsequent letters and the further policy statement. Plain reading of all these is clear enough to suggest that the scheme was voluntary and it was upto the State Governments to accept or not to accept the scheme. Again even if the State Government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State Government. In fact the subsequent developments suggest that the State Government has not chosen to accept the scheme in full inasmuch as it has ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 :::
13 901-WP.83-20.odt not accepted the suggestions on the part of the UGC to increase the age of superannuation."
13. The issue, therefore, to be considered in this petition is as to whether the 2018 regulations introduced by the U.G.C. by superseding all earlier regulations with amendments, making them applicable to the entire country, could be tinkered with by the State Government in the form of deleting clauses from the said regulations on the pretext that the money will have to be paid by the State Government and, therefore, it has a right to modify a provision of the regulations for reducing it's financial burden.
14. On our directions, the State Government has placed before us certain notings with regard to the corrigendum Government Resolution dated 10.05.2019 and pertaining to the disagreement of the State in extending the time period upto 31.12.2018 to enable the eligible teachers to undergo refresher/orientation courses as a condition precedent for being eligible for revised pay scales. On perusal of the notings, we do not find any such discussion by the State Government so as to indicate a conscious decision as to why the said clause 6.3 ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 14 901-WP.83-20.odt VIII introduced by the U.G.C. needs to be done away with.
15. The learned AGP clarifies that the notings shown to us pertain to the Finance Department and not the Education Department. We find from the notings that the Finance Department has given much importance to saving the finances / reducing the financial burden on the State Government. The learned advocate representing the U.G.C. submits that the time frame for completion of orientation and refresher courses was not made mandatory upto 31.12.2018, as a conscious decision taken by the U.G.C. However, there is no affidavit-in-reply, as yet filed in this matter and he seeks liberty to file the response of the U.G.C..
16. We are of the prima facie view that the teachers ought to complete their orientation / refresher courses so that there would be addition to their knowledge and their teaching skills would be sharpened which would ultimately benefit the students community in the State. If, by encouraging them to complete such orientation / refresher courses to achieve the reward of revised pay scale, which would financially burden the State Exchequer, it would be the students community ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 15 901-WP.83-20.odt which would ultimately benefit out of such sharpening of the skills of the teachers. The Government should, therefore, give more importance to this aspect and not to the aspect of saving their funds.
17. With regard to the modification of a scheme introduced by U.G.C., in State of Kerala Vs. T. P. George and others (supra), the Hon'ble Apex Court concluded that the State had the discretion either to accept or reject a scheme and in it's discretion while accepting the scheme, it could do away with one condition and by not following the scheme of the U.G.C. (in its entirety) the State Government would not be entitled for the offer of reimbursement from the Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the scheme. In the instant case, the Union of India was to support the State of Maharashtra upto 50% of the additional expenditure for a period of three years. The next question, therefore, would be as to whether the State Government, if held to be entitled to delete a clause from the regulations, which would cause additional expenditure on the Government, be deprived of the benefit of the offer of reimbursement upto the extent of 50% of ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:33 ::: 16 901-WP.83-20.odt the additional expenditure incurred by the State Government.
18. Having perused the brief affidavit-in-reply filed on behalf of the State, we are of the view that the State Government needs to enter a proper reply so as to deal with all the above issues. So also, the U.G.C. needs to enter an affidavit-in-reply to deal with the action of the State of Maharashtra in deleting the particular clause 6.3 VIII from the regulations and whether the State Government could have the power to make such modifications in the U.G.C. regulations, which have been published in the India Gazette and made applicable to the entire country vide Clause 1.2 reproduced above.
19. We expect the affidavits-in-reply by the State and the U.G.C., to be filed, on or before 31.01.2022. We permit the petitioners to file an affidavit-in-rejoinder, on or before 25.02.2022. Thereafter, this matter be listed for hearing on 07.03.2022.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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