Deshpande, J.@mdashBy this petition under Art. 226 of the Constitution, the petitioners seek - (i) a declaration that the petitioners belong to Maharashtra Education Class-I (Collegiate Branch) designated as Professors, (ii) their equation with Lecturers (Junior Scale) under the Government Resolution, dated 25th October 1977, and their superannuation before completing the age of 60 years, be quashed, (iii) to equate the pay scales of the petitioners with those of Readers in the Universities and Principals in the affiliated colleges and give consequential benefits to the petitioners as stipulated by the Government Resolution dated 27th February 1989, (iv) to superannuate the petitioners at the age of 60 years without subjecting them to a review at the age of 50 and 55 years as required by Rule 161(C-a) of the Bombay Civil Services Rules ("BCSR" for short), by Clause 26 of the Government Resolution dated 27th February 1989, and (v) to quash Rule 161 of the BCSR as ultra vires Articles 14 and 16 of the Constitution, so far as it relates to the teachers in Government Colleges such as the petitioners and to direct that the age of superannuation of the teachers in Government Colleges shall be 60 years.
2. Petitioner No. 1 is an Association of Maharashtra Educational Service Class-II Officers (Collegiate Branch) which represents the members of the said service in the employment of the State Government and was recognised by the Government of Maharashtra by its Resolution, dated 29th April 1969. Petitioner Nos. 2 to 10 are the members of the Maharashtra Educational Service Class-II Officers (Collegiate Branch) and also the members of petitioner No. 1 The petitioner purports to be filed in a representative capacity on behalf of the members of the Maharashtra Educational Service Class-II (Collegiate Branch).
3. In pursuance of the report of the University Grants Commission (''UGC'' for short), for the year 1966-67, recommending revision of pay scales to cover all categories and grades of teachers employed in the Universities and affiliated Colleges, the teachers came to be divided into two groups - one of the University Teachers and the second of the Teachers in the affiliated Government and non-Government Arts, Science and Commerce and Secondary Training Colleges. The University teachers were put in three categories, the revised pay scales recommended for them being respectively -
(1) Professor : Rs. 1100 - 1600
(2) Reader : Rs. 700 - 1250
(3) Lecturer : Rs. 400 - 950.
For the second group, five categories were
provided as below :-
(1) Principal : Revised Scale
(i) Rs. 700 - 1000
(ii) Rs. 800 - 1250
(2) Senior Lecturers : Rs. 700 - 1100
(3) Lecturer Senior Scale : Rs. 400 - 800
(4) Lecturer Junior Scale : Rs. 300 - 600
(5) Demonstrator and : Rs. 250 - 400
Tutors
Under the recommendations of the UGC these pay scales were to be effective from 1st April 1966. The Government of Maharashtra by Resolution No. UGC - 1116 - U, dated 6th November 1967, made these scales applicable to the different categories of teachers in the Universities and affiliated colleges and under the Resolution, all Professors, Heads of Departments and Lecturers in different pay scales in affiliated Colleges were to be given in the first instance, junior scale of Rs. 300 - 600.25 percent of the posts being in the senior scale of Rs 400 - 800, and out of total number of lecturers, not more than 25 percent, were to be given scale of Rs. 700 - 1100. On 10th December, 1968, the State Government issued a Resolution No. MES-1168-(I)-(D) towards the implementation of its earlier resolution dated 6th November, 1967, directing the distribution of the existing Maharashtra Educational Service Class-I and Class-2 posts (Collegiate Branch) in Government Arts. Commerce and Science Colleges, to be made subjectwise, providing further that the grade of Rs. 700 - 1100 should be classified as belonging to Maharashtra Educational Service Class I (''MES Class I'' for short) and should be designated as Professors, and those in the grades of Rs. 400 - 800 and Rs. 300 - 600 should be classified as belonging to the Maharashtra Educational Service Class II (''MES-Class II'' for short) and should be designated as Lecturers (Senior Scale) and Lecturers (Junior Scale) respectively. We may mention at this stage that the grievance that the first category should be designed as Class-I does not now survive, because during the pendency of this petition, respondent No. 1 State of Maharashtra has granted Class-I status to the members of the posts in the grade of Rs. 700 - 1100.
4. The Government of Maharashtra, however, declined to place 25 percent of the total number of lecturers in the scale of Rs. 700 - 1100; as that was the scale admissible to Class-I Service, unless all eligible persons were screened by the State Public Service Commission as required by Art. 320 of the Constitution, Petitioner No. 1 approached this Court by Special Civil Application No. 296 of 1970 for placing the petitioners Nos. 2 to 11 in that position in the pay scale of Rs. 700 - 1100, without their cases being referred to the Public Service Commission, and this court granted the reliefs sought by the judgment delivered on 23rd July 1970. The State of Maharashtra filed Civil Appeal No. 1281 of 1971 before the Supreme court, but that appeal was dismissed on 26th April 1974, observing that the scheme formulated by the UGC envisaged no promotion of lecturers from, one class to another, but concerned itself with the revision of pay scales of the collegiate teachers and its object was to raise the salary structure as one of the basic essentials for improvement of educational standards.
5. A Committee, popularly known as ''Sen Committee'', came to be appointed for reporting on the problems relating to the governance of the University and College Teachers, and its recommendations was accepted by the UGC in its meeting dated 30th April 1973. The recommendations included, inter alia, that the age of superannuation should be 60 years, and thereafter no further extension in service should be given, and if a University/College required the services of a teacher after the age of superannuation, he should be appointed on a contract not exceeding 5 years. The UGC recommended for the University teachers the following pay scales :
(1) Lecturer : Rs. 700-1600 (2) Reader : Rs. 1200-1900. (3) Professor : Rs. 1500-2500, and (4) Professor of Eminence : Rs. 3000.
For affiliated college teachers, the lecturer''s scale was to be Rs. 700 - 1300, and for Principal (i) Rs. 1200 - 1900 and (ii) Rs. 1500 - 2500, these being the only categories which were to remain in the affiliated colleges.
6. In follow up, the Government of India sent a communication dated 20th February 1975, to the State of Maharashtra, laying down conditions relating to qualifications for recruitments to the posts of lecturers at University level as well as at College level, there being no real difference between the qualifications prescribed, except that a University lecturer is to have a Doctor''s Degree whereas a College lecturer should have a Degree of Master of Philosophy or a recognised Degree beyond the Master''s level. The State Government issued a Resolution dated 4th October 1975, for implementing the pay scales with effect from 1st January 1973. Some of the conditions mentioned therein, relating to the qualifications and workload of teachers and vacation, and examination remuneration, were challenged by a writ petition file in this Court by the Maharashtra Federation of University Teachers and College Teacher'' Organisation (''MSFUCTO'' for short), of which none of the present petitioners were members. As a result of the consensus reached between the Government and MSFUCTO, a Resolution was passed by the Government of Maharashtra on 25th October 1977 in supersession of the earlier Resolution dated 4th October 1975.
7. The submission of the petitioners in respect of the resolution dated 25th October 1977 (Annexure VII) is that their pay scales as Senior Lecturers/Readers, which had been previously Rs. 700 - 1100, were on par with the scales of Principals as well as Reader in the Universities which came to be revised to Rs. 700 - 1600. As against this, the pay scales of Principals were revised to Rs. 1200-1900, but the pay scales of lecturers, which were previously Rs. 300-600, were revised to Rs. 700-1600, i.e., the same as given to the petitioners who were Senior Lecturers/Readers, and this was not to their benefit. They claimed that they should have been placed in higher pay scales as their counterparts, i.e., Principals and Readers, and their pay-scales came to be reduced to such an extent that they were put on par with the lecturers in the universities and Colleges in junior scale of Rs. 700-1600.
8. Though the age of Superannuation for all University and College teachers was fixed at 60 years, the age of superannuation for teachers in Government Colleges, such as the petitioners, was not fixed at 60, but was left to be the subject matter of the relevant rules framed by the Government which meant that they would have to retire at the age of 58 years under Rule 161 of the BCSR and would be subjected to a review for determining their fitness first at the age of 50 and next at the age of 55 years for judging whether or not they should be compulsorily retired.
9. Petitioner No. 2, the President of the petitioner No. 1 - Association, wrote on 14th December 1978 to the respondent No. 1 - State of Maharashtra, requesting for a change in the age of superannuation to 60 and for higher pay scales on par with those given to the Post Graduate teachers in the Universities. In spite of the meeting with the Minister of Education on 6th February 1979 and the further efforts on the part of the Association, by the letter dated 11th May 1979 the State Government informed the Association that its request could not be granted. Aggrieved by this letter, the petitioners seek the aforesaid reliefs by this petition.
10. By the return filed by the respondent No. 1, State of Maharashtra, in respect of the pay scales, it is contended that the nature of the duties and responsibilities attached to the posts of the lecturers, including Senior Lecturers in the colleges are quite different from those of the Readers in Universities, as the latter are expected to concentrate on Post-Graduate Teaching, Research and making original contribution to the fund of knowledge, while the former are not, and that their qualifications are also different and therefore, the contention that the previous parity which existed between the teachers in the Universities and the affiliated colleges, including Government Colleges, was intended to be protected and extended for the future as per the Government Resolution dated 25th October 1977, was baseless. It is also denied that the pay scales of the Senior Lecturers, who were drawing pay scale of Rs. 700-1100, were reduced, while prescribe in the composite pay scale of Rs. 700-1600. With regard to the age of superannuation, it is urged that the service conditions of the teachers in Government Colleges are regulated by the provisions of the BCSR as amended from time to time, and the age of superannuation prescribed for Government employees being 58 years, and so long as their work is found satisfactory, they will have to retire at the age of 58 years only and it was not possible to entertain their request for raising the age of superannuation to 60 years as for the teachers in the non-Government Colleges.
11. The Director of Education, Government of Maharashtra, respondent No. 2, did not file a separate return and there was no appearance for respondents Nos. 3 and 4, the UGC and Union of India, though they were served.
12. An application for intervention (C.A. No. 1816 of 1989) was filed by the Nagpur University Teachers'' Association and three others - M/s. Vazalwar, Damle and Badhe, contending that during the pendency of the petition, most of the petitioners have retired, with the result that they have no interest in prosecuting this writ petition, and looking to the class of persons affected by the alleged discriminatory action of the respondent No. 1, the interveners are required to approach this court and to prosecute the petition. The intervention was allowed on 26th June 1989. Shri V. C. Daga, the learned Counsel for the interveners stated before us that he would adopt the same arguments as would be advanced by Shri Aney, the learned Counsel for the petitioners.
13. As we have already indicated, the grievance, that Class-I status was not conferred on the petitioners, does not survive, because the petitioners came to be treated as Class-I officers by the respondent No. 1 by its action taken in the year 1985 and Shri Aney for the petitioners stated that there has been a redressal of that grievance. In fact, three scales were given to the lecturers by the Government of Maharashtra, that of Senior Lecturers being Rs. 700-1100, Lecturers (Senior Scale) Rs. 400-800 and Lecturers (Junior Scale) Rs. 300-600. The distinction between the lecturers (Senior Scale) and lecturers (Junior Scale) came to be abolished by the Government Resolution, dated 25th October 1977 (Annexure VII) and a new scale Rs. 700-1600 came to be prescribed for them with effect from 1st July, 1985. By the Government Resolution, dated 13th March 1980 (Annexure XIII), the Government sanctioned the revised pay scale for the posts of Directors, Professors and Associate Professors at the Institute of Science, Bombay, Nagpur and Aurangabad, and they were given the scales - Rs. 1500-2500, 1500-2500 and 1200-1900 respectively - with effect from 1st July 1979. After the learned Counsel for the petitioners was heard on this aspect for some time, and after he informed us that similar benefits were extended to the staff of Vishwesharyya Regional College of Engineering, which is State within the meaning of Article 12 of the Constitution, the State of Maharashtra being one of the participants in the management of that institution, we asked the learned Counsel for the petitioners, whether this would not be a matter of policy to be determined regarding the equivalence of existing pay scale and whether the matter cannot be represented to the Government, he stated that in view of the changed context, he would be willing to make a fresh representation to the Government on behalf of the petitioners, within a month, and Shri P G Palshikar, the learned Special Counsel for the Government, stated before us that if such a representation were made for determining the equivalence of the petitioners, who were in the pay scale of Rs. 700-1100, and their placement in the revised scale, the Government would consider that representation and render its decision within two months from the date of the receipt of representation, and that in view of this development, we should not decide the points raised by the parties about the equivalence of the Senior Lecturers in the new scales and leave it open to be decided, after Government takes a decision upon the representation of the petitioners, should an occasion arise, by filing a fresh petition. In view of this, we leave the question regarding grant of prayers (ii) and (iii) undecided and grant liberty to the petitioners to raise these points later, should an occasion arise, after their representation is considered by the respondent No. 1 - State of Maharashtra.
14. The main question, that falls for consideration, is regarding the age of superannuation which, under the provisions of Rule 161 of the BCSR, is 58 years for Government servants, and the validity of the exclusion of the teachers, who are in Government service, by Clause 26 of the Resolution dated 27th February 1989, the effect of which would be to retire the teachers in Government service, at the age of 58 years.
15. The first letter outlining the general policy of the Government of India, Ministry of Education and Social Welfare, was issued on 20th February, 1975 (Annexure-VI), by which Central assistance was to be given for meeting the requirements of the revised pay scales of teachers subject to certain conditions. That letter referred to the qualification, which were prescribed for recruitment to the posts of Lecturers in the faculties of Arts and Social Sciences, including Commerce and Science in the Universities and the affiliated Colleges. This was a sequel to the report of Sen Committee which had been constituted by the UGC. The Committee on Governance of University Colleges considered the question of service conditions of teachers in Universities and Colleges and had taken into account the suggestions made by various Teachers'' Organisations and individuals in this regard. It dealt with various aspects, including the need to attract the best talent, the need to improve the functions and professional competence of teachers, pay scales and their rationale and recommended the scales of pay which should be given to the various categories of teachers. It also emphasises the need for improved qualifications, procedure for assessment of teachers, methods of appointment and promotion and evaluation of teachers. Para 10 of the report dealt with the need for a national wage policy, as in its view the basic problems facing the country in education or any other walk of life cannot be solved, unless this was done. It took into account the aspects such as conditions of service, security of service of teachers, pension, Provident Fund, workload, age of superannuation, medical facilities, examination work and Code of Conduct. As regards the age of superannuation, it said that the age of superannuation should be 60 years and thereafter no further extension in service should be given. If a University/College requires the services of a teacher after the age of superannuation, he should be appointed on a contract not exceeding 5 years, and during the contract period, the teacher should not be given any administrative responsibility. By Item No. 7 of the Minutes of the Meeting, dated 30th April 1973, the UGC generally accepted the recommendations made by the Committee, including the one about the age of superannuation by its Resolution dated 2nd November, 1974, Appendix-II to the letter dated 25th February, 1975 (Annexure-VI), and agreeing in particular with the recommendation that there should be three scales of pay.
16. The Government of Maharashtra, by its resolution dated 25th October, 1977 (Annexure-VII), adopted the pay scales proposed by the Government of India on the basis of the Sen Committee''s report as well as the provisions regarding qualifications, work-load etc., but on the question of superannuation, while accepting the age of superannuation for teachers of Universities and non-Government affiliated Colleges as 60 years, made an exception in the case of the teachers in Government Colleges, who were to continue to be governed by the relevant rules framed by the Government. All the instructions issued by this resolution were in line with the instructions of the Government of India on the subject. The resolution dated 25th October, 1977 also referred to the challenges which were raised to the qualifications, work-load of teachers, vacation and examination remunerations and observed that during the pendency of the petition, negotiations with the representative of the MFUCTO were initiated with a view to exploring the possibility of arriving at agreed terms on the matters in dispute and that after the consensus was reached on the points of dispute, the directions were being issued in the form of Government Resolution dated 25th October 1977. However, an affidavit was filed on 20th July, 1959, on behalf of the petitioners, stating that the federation, which negotiated the matter with the Government, did not include either the petitioner No. 1 Association or any of the teachers in Government Colleges, such as the petitioners and that the consensus, therefore, did not include any of the petitioners and they were no parties to it, nor were they consulted in this regard or invited for any discussion, negotiation or resolution of the problem settled by the said consensus. This position was not disputed on behalf of the respondents and we see no substance in the contention that since a consent order had been obtained from this Court earlier, the petitioners would not be in a position to reagitate the points which were made-subject matter of the Resolution, dated 25th October 1977, by this petition.
17. In fact, on behalf of the petitioners, a representation was made on 14th October 1978 (Annexure-VIII) to the Minister of Education, Government of Maharashtra, taking up several questions, including the anomaly between the superannuation ages of Government College and other College teachers by making the age of superannuation for Government Colleges as 60 years. This was followed by a meeting dated 6th February 1979 with the Minister of Education and a fresh representation dated 7th March 1979 (Annexure-IX) was made by the petitioners to the Minister of Education and Sports, Government of Maharashtra. On 11th May 1979, the Government rejected the representation, its answer in respect of the age of superannuation being that the enhancement of the age of superannuation to 60 years could not be granted to the petitioners, as their service conditions were on par those of the Government employees. In the return filed by the respondent No. 1 to this petition, the only justification given for continuing the age of superannuation for Government employees as 58 years, was that teachers in Government Colleges, being the Government employees would have to retire from Government Service at the age of 58 years only, and it was not possible to entertain the request for raising the age of superannuation to 60 years available to the teachers in non-Government Colleges, who were not eligible for certain fringe benefits available to the Government employees. Our attention was drawn on behalf of the petitioners, to the position that the teachers in the Vishwesharyya Regional College of Engineering retired at the age of 60 years and in respect of the Regional College at Education in respect of the Regional College of Education at Bhopal also the age of retirement was 60 years. We have no material, however, to ascertain whether all other conditions of service of the teachers in Vishwesharyya Regional College of Engineering and the Regional College of Education at Bhopal were similar to those of the petitioners. It is clear that the employees of those institutions are not employed by the State Government, nor are they the beneficiaries of the liberal provisions made by the State Government by the several resolutions which have been placed record.
18. Though the respondent No. 1 had not given any details of the fringe benefits which the petitioner teachers received as Government servants, it is apparent from the Government Resolution dated August 1983 (Annexure-VI), that the scheme of the pension-cum-gratuity was extended to the teaching and non-teaching staff of the non-Agricultural Universities and affiliated non-Government colleges and the disparity with regard to the pensionary benefits did not continue after this Resolution.
19. The submission on behalf of the petitioners was that there was no justification for the discriminatory treatment meted out to the teachers in Government colleges when all the other service conditions of the teachers in Government and non-Government colleges are uniform. In the letter, dated 17th June, 1987, which was sent by the Government of India, Ministry of Human Resources Development, Department of Education, to the Secretaries of all the States, it was pointed out that in fulfillment of the constitutional responsibility for coordination and maintenance and standards in higher education, the Central Government and UGC have taken from time several measures. As a part of these efforts, the Central Government have revised the pay scales in Universities and Colleges in order to attract and retain talent in the teaching profession. The National Policy on Education, 1986 envisages efforts to reach the desirable objective of uniform emoluments, service conditions and grievance removal mechanism for teachers throughout the country. The policy also visualises the creation of an open, participative and data based system of teachers'' evaluation. It also suggests reorganisation of methods of recruitment, introduction of programmes of teacher orientation and continuing education, filling up of posts in Universities and Colleges on the basis of merit, etc. From that letter, it is clear that following the appointment of the Fourth Central Pay Commission for Central Government employees, the University Grants Commission had appointed a committee under the Chairmanship of Professor R. O. Mehrotra, Professor Emeritus, University of Rajasthan, to examine the present structure of emoluments and conditions of service of University and College teachers, taking into account the total packet of benefits such as superannuation, medical and housing facilities etc. and to make recommendations on them having regard to the necessity of attracting and retaining talented persons in the teaching profession and providing professional advancement opportunities to them. That Committee had submitted its report to the University Grants Commission in May, 1986. The UGC considered the recommendations contained in the report, and made certain observations on them and requested the Government of India to consider implementation of the report. After examination of the Recommendations, the Government of India proposed to implement the scheme in the Central Universities and other institutions fully financed by the Central Government and also decided to assist the State Governments, who wish to adopt and implement the scheme of revision of pay scales, subject to certain terms and conditions. The extent of Central assistance was upto 80% of the total additional expenditure involved in giving effect to the revision of scales of pay to be available for the period from 1st January, 1986 to 31st March, 1990, and the State Governments were to meet the remaining 20% of the expenditure from their own resources, without passing on the liability or any portion thereof to the Universities or the management of private Colleges. From 1st April, 1990, the State Governments were to take the entire responsibility for maintaining the revised scales of pay. In the event of the State Government introducing scales of pay different from those mentioned in the scheme, prior approval from the Government was to be obtained. The payment of Central assistance for implementation of the scheme was subject to the condition that the entire scheme of revision of pay scales together with all the conditions attached to it, was implemented by the State Governments as a composite scheme, without any modification, except to the date of implementation and the scales of pay in addition, it was necessary for the Universities and managements of Colleges to make necessary changes in their statutes, ordinances, rules, regulations etc., to incorporate the provisions of the scheme. Anomalies, if any, may be brought to the notice of the Department of Education, in the Ministry of Human Resources Development for clarification.
20. We have referred to this letter in detail, because it was the submission of Shri Aney, the learned Counsel for the petitioners, that the scheme amounted to a direction to the State Governments, the subject of Education now being in the concurrent list and it being permissible to the Central Government to issue directions to the States in these matters. Reliance was placed on the observations in Maharashtra Shikshan Sansthan v. The State of Maharashtra. Special Civil Application No. 1156 of 1975, decided on 22nd April 1977, but the question, which arose for consideration in that petition, was whether the communications addressed by the Education Officer, Zilla Parishad, Nagpur, requiring the reinstatement of certain employees, was in excess of certain Government Resolutions. In
21. That brings us to the impugned Government Resolution dated 27th February 1989 (Annexure XVII), and it would be useful to set out in detail the opening portion of the Resolution which runs as follows :
"Government had approved the implementation of revised pay scales for University and College teachers with effect from 1st January, 1973 by Government Resolution, Education and Youth Services Department No. USG 1177/129387/XXXII (CELL) dated 25th October, 1977 for Librarians and Physical Education Staff by Government Resolution, Education and Employment Department No. USG 4280/157972/ (275) UNI-4, dated 18th April, 1984. After appointment of the Fourth Pay Commission for Central Government Employees, the University Grants Commission had appointed a Committee under the Chairmanship of Prof. Mehrotra to examine the present structure of emoluments and conditions of service of University and College teachers. After considering the Mehrotra Committee''s Report, the University Grants Commission submitted its recommendations to the Government of India in February 1987. After examination of the Report, Government of India evolved a scheme of pay revision for the University and College teachers and other measures for improvement of standards in higher education. By their letter dated 17th June, 1987 and subsequent letters dated 7th September, 1987 and 22nd July, 1988, the Government of India recommended to the State Government to implement this scheme. The question of implementing Government of India''s scheme of revision of pay scales of University and College teachers and other relevant guidelines and Notifications issued by the U.G.C. from time to time was under consideration of the State Government. After careful considerations of the Government of India''s Package Scheme, 1986, for maintenance of standards in higher education and after an agreement with the Maharashtra Education of University and College Teachers'' Organisation, the State Government has now decided to implement the terms and conditions of service as detailed below.
2. Coverage - The revised scales and other measures for improvement of standards in higher education are applicable to all categories of full-time teachers employed by the non-Agricultural Universities, Government and non-Government Colleges in the faculties of Arts, Science, Commerce and Education, in the State Government Institutes of Science/Government Institute of Management Studies/Social Sciences. The revised scales of pay are also applicable to the Teachers/Librarians/Instructors of Physical Education/Directors of Physical Education in the affiliated, unaided Colleges of Arts, Science, Commerce, Education in the State. However, these Colleges will not be entitled for any financial assistance from the State Government and the same is the case with the unapproved (not covered under 100 percent salary grant) posts in affiliated unaided Colleges in the non-Agricultural Universities in the State. The revised scales are not applicable to teachers who retired on or before 31st December 1985 and who worked on re-employment on that date, including those period of re-employment was excluded after that date".
22. The two paragraphs, which we have extracted above, answer the contention of learned Special Counsel for the Government, who urged that the category of Government teachers was not within the contemplation of this resolution, when the other comprehensive provisions of the resolution were made. Obviously, the dichotomy, if any, which the resolution contemplated, was between the University teachers and the teachers in affiliated Colleges. The latter category would include also teachers in Government institutions. Elaborate provisions were made regarding pay scales, manner of fixation of pay, option for revised scales of pay, recruitment and qualifications, career advancement, promotions, continuing education, performance appraisal of teachers, work-load, protection to teachers, vacation and other conditions of service which applied uniformly to all categories of teachers, which came within the purview of the resolution. It was only in para 26, which dealt with superannuation and re-employment that while extending the age of superannuation for teachers to 60 years and providing for re-employment that the age of superannuation of teachers in Government Colleges and Institutes of Sciences was to continue to be 58 years as hither to before. The other subjects covered by the Government Resolution were grievance redressal mechanism, Code of Conduct and fixation of pay and preferring claim for payment of arrears. Even in para 28, which related to Code of Conduct, it was mentioned that the UGC had been asked to prepare a Code of professional ethics for University and College teachers. Till such a uniform code of professional ethics was evolved, the Code of Conduct already drawn up by the Universities in the State for its teachers as well as for those in affiliated Colleges, consistent with the rules mentioned in this Government Resolution should be held applicable to the University and College teachers. This would show that even the matter of Code of Conduct as was contemplated prima facie, was not the Code of Conduct prescribed by the Government, but the Code of Conduct which had been drawn up by the Universities in the State for their teachers. The submission on behalf of the respondent No. 1, therefore, that the Government teachers were regarded as a class apart and were not within the contemplation of this resolution, cannot be accepted. The only departure, which was made, was in respect of the age of superannuation which was to continue upto 58 years. We may point out that this Resolution adopted the same line as was suggested by the UGC and accepted by the Government of India. The policy adopted by the UGC, the Government of India, and the State of Maharashtra on the matters covered by the Resolution dated 27th February, 1989 (Annexure-XVII), was the result of the reports of two expert bodies such as Sen Committee and Mehrotra Commission which were appointed by the UGC for the purpose. UGC is the apex body in the matters which have been referred to and its recommendations were entitled to great weight and came to be accepted by both the Government of India and the State of Maharashtra.
23. The learned Special Counsel for the respondent No. 1 urged that the classification between Government and non-Government institutions had been accepted as a valid classification, and since it is founded on a rational differentia, it cannot be said that there was a discrimination which would enable the petitioners to invoke Art. 14 of the Constitution.
24. The principles about the applicability of Art. 14 have been laid down in
"(4). The principle underlying the guarantee of Art. 14 is not than the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstances shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another, if as regards the subject matter of the legislation, their position is substantially the same.
(5). By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality, but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to together persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characterisation. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can even recognize degrees of evil, but the classification should never be arbitrary, artificial or evasive.
7). The classification must not be arbitrary but must be rational, that is to say it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, but those qualities and characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act.
8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Art. 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned."
25. In
a) the nature, the mode and the manner of recruitment of a particular category from the very start,
b) the classification of the particular category,
c) the terms and conditions of service of the members of the category,
d) the nature and character of the posts and promotional avenues,
e) the special attributes that the particular category possess which are not to be found in other classes, and the like.
26. If regard is had to the totality of the attributes and the common features applicable to the teachers as a class in the Resolution dated 27th February 1989, it would be apparent that there is no distinction, except in the matter of the age of superannuation in the Government teachers and other teachers. In the face of this Government Resolution we would expect more material from the State to show why the Government teachers were regarded as a class apart from the other teachers when they have so much in common with the others who were the subject of that Resolution, and to show that there were such similarities between the teachers and other classes of Government servants who are governed by Rule 161 of the BCSR, which would outweigh the considerations in Government Resolution dated 27th February, 1989. Apart from saying that the Government servants are a class apart, no material was placed before us to show that the Government teachers were similarly circumstanced with the other categories of Government servants to whom Rule 161 of the BCSR applies.
27. In
28. In order to lend support to his contention, the learned Special Counsel for the respondent No. 1 also relied upon
29. With regard to the value to be attached to the opinion of expert bodies, we might with advantage refer to the observations in
30. As we have already indicated, the proposals, which were accepted by the State of Maharashtra by its Resolution dated 27th February, 1989, were based, in respect of the class of teachers as a whole, on the recommendations made by the Sen Committee and Mehrotra Committee, which came to be accepted by a high power body such as the UGC. When the Government of India, which relied on their recommendations, did not make any distinction between Government teachers and other teachers, we should have expected atleast some indication why the Government teachers and the other teachers who, in the opinion of these expert bodies formed a homogenous class, should have been treated differently by the Government for the age of superannuation. The same principle is reiterated in
31. The learned Counsel for the petitioners referred us to certain Supreme Court decisions which recognized the present trend in prescribing higher ages of superannuation. In
32. In
33. Even if it were to be recognized that before formulation of the schemes by the UGC and their application by the Government of India and the Government of Maharashtra, the government teachers might have fallen into a different category which could be treated like the others who were governed by Rule 161 of the BCSR, in view of the revision of pay scales and other measures taken for improving the standards of teaching for fulfillment of the Constitutional responsibility for co-ordination and maintenance of standards in higher education, the line of demarcation between the Government teachers and other Government servants gradually vanished. It was not possible for the learned Special Government Pleader to indicate to us the points of similarity which could be found in all cases other than those accepted by Rule 161 of the BCSR and the Government teachers. The object to be achieved by the Government Resolution, dated 17th June, 1987, is to be found in the National Policy on Education, 1986, which envisaged efforts to reach the desirable objective of uniform emoluments, service conditions and grievance removal mechanism for teachers throughout the Country. That policy visualised the creation of an open, participative and data based system of teacher evaluation for achieving the higher goal of the maintenance of standards in higher education. We tried hard to find out the nexus between the retention of the age of 58 years in respect of the Government teachers and the achievement of these objectives and what valid differentia there could be for distinguished between the Government teacher of the age of superannuation. The return filed by the State of Maharashtra is silent on this point and apart from what we have stated above, no grounds came forward in the course of the arguments by the learned Special Counsel for the respondent No. 1 who frankly stated that he could not say more than saying that the differential treatment was necessary, because the petitioners were Government teachers. We are afraid, this cannot be the basis for classification in the present case.
34. In Motor General Traders v. State of Andhra Pradesh, AIR 1948 SC 121 , it has been pointed out in para 12 while considering the question of exemption from Rent Control Legislation to certain buildings for giving incentive to the building activity, that what was once a non-discriminatory piece of legislation, may in course of time become discriminatory and be exposed to a successful challenge on the ground that it violated Article 14 of the Constitution. With Regard to the observations in
35. Having regard to all these factors, we find no justification whatsoever for upholding the discrimination on the question of superannuation as contained in Clause 26 of the Government Resolution dated 27th February, 1989, in view of the intrinsic material afforded by the other clauses of that Resolution which treated all teachers on par and as forming one class. The Government Resolution will have the force of law as it lays down the rules of principles of general application, in view of the Full Bench judgment in Chandrakant Sakharam Karkhanis case (cited supra). If the clauses of that Resolution are obnoxious, because they fall foul of Article 14 of the Constitution, the differential treatment sought to be given to the Government teachers by continuing their age of superannuation as 58 years, while other of the same class have the age of 60 years, that part of the Government Resolution will have to be struck down.
36. The learned Counsel for the petitioners conceded that through the petition was filed in the year 1980 and the challenged had come to be raised in respect of the similar provisions in the earlier Resolutions, the effect of out quashing down the offending part of the Government Resolution, dated 27th February 1989, can only be prospective in its application. Unfortunately, many others, who could have taken advantage of this petition, have retired and no redress can be given to them.
37. With regard to the provisions of Rule 161(C-1), of the BCSR in the application to the Government teachers, no concrete instances have been brought to our notice that the State Government has initiated action for putting an end to any teacher at the age of 50 years or 55 years. It will not be possible for us to decide this question in a vacuum and when we pointed this out to the learned Counsel to the parties they stated that this question may not be decided in this petition, but should be left open to be agitated if and when action is taken by Government under Rule 161(C-1) of BCSR or the analogous provisions of Rule 10 of the Maharashtra Civil Service (Pension) Rules 1982, which would now govern that position. We, accordingly, leave that question open.
37-A. In the result we quash the last sentence in para 26 of the Government of Maharashtra, Education and Employment Department, Resolution No. NGC 1286/ (1224) /MH/UNI-4, dated 27th February 1989 (Annexure-VII to the petition), which rune as follows :-
"The age of superannuation of teachers in Government Colleges and Institutes of Sciences, will however, continue to be 58 years as hitherto before".
and declare that the cases of Government teachers will be governed by the remaining portion of Clause 26 ibid.
38. Rules 161 of the BCSR will stand modified to that extent, so the age of superannuation for them shall not be 58 years but the age as prescribed by Clause 26 of the Government Resolution dated 27th February 1989. We make it clear that the other matters which we have left open as mentioned in the earlier portions of this judgment, have not been decided by us and the petitioners would be free to reagitate those matters, after the Government decides upon their representations, should an occasion arise in future.
39. Rule made absolute in the above terms, but there will be no order as to the costs.
