As per case facts, the Petitioner, an Associate Professor, was appointed with a retirement age of 62 years based on a 2011 Government Resolution (GR). She was prematurely retired at ...
wp 5179-26-c-judgment.doc
Priya Soparkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5179 OF 2026
Dr. Alka Krishnarao Chougale, Age: 60
years 7 month, Date of birth : 22.08.1965
Occ: Superannuated from the post of
Professor Zoology Department, Institute of
Science, Mumbai
R/at : Building No.17, A/12, Government
Colony, Keshavrao Khade Marg,
Mahalaxmi, Mumbai 400 034. …Petitioner
~ versus ~
1.The State of Maharashtra through the
Additional Chief Secretary, Higher &
Technical Education Department,
Mantralaya, Mumbai.
2.The Director, Higher Education,
Maharashtra State, Central Building,
Pune 01.
3. The Director, Institute of Science,
Madam Cama Road, Mumbai 400 032. …Respondents
APPEARANCES
For the Petitioner Ms. Vaishali K. Jagdale with Mr.
Yash K. Jagdale.
For Respondent No. 1-StateMs. R. A. Salunkhe, AGP.
Page 1 of 15
PRIYA
RAJESH
SOPARKAR
Digitally
signed by
PRIYA RAJESH
SOPARKAR
Date:
2026.08.19
17:42:38
+0530
wp 5179-26-c-judgment.doc
CORAM:SUMAN SHYAM &
ADVAIT M. SETHNA, JJ.
RESERVED ON:13
th
AUGUST, 2026.
PRONOUNCED ON:19
th
AUGUST, 2026.
JUDGMENT ( Per Suman Shyam, J) :-
1.Heard Ms. Vaishali K. Jagdale, learned counsel appearing for
the Petitioner. Also heard Ms. R. A. Salunkhe, learned AGP
appearing for the Respondent No.1/State.
2.Rule. Rule made returnable forthwith with the consent of
both the parties.
3. The Writ Petitioner herein, namely, Alka Krishnarao
Chougale, as Applicant, had instituted Original Application (OA)
No.919 of 2025 before the Maharashtra Administrative Tribunal
(MAT), Mumbai Bench, assailing the decision of the Respondent
No.3 i.e. Director of Institute of Science, retiring the Petitioner
from service on attaining the age of 60 years. According to the
Petitioner/Original Applicant, she was entitled to remain in service
till the completion of the age of 62 years. However, by issuing the
order dated 28
th
August, 2025, she has been sent on retirement on
attaining the age of 60 years. By the judgment and order dated 28
th
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August, 2025 passed in OA No.919 of 2025, the learned Tribunal
had rejected the Original Application praying for a declaration that
she should retire from service after completion of 62 years of age.
Aggrieved thereby, the present Writ Petition has been filed. The
facts and circumstances, giving rise to filing of this Writ Petition, in
a nutshell, are as hereunder.
4.The Writ Petitioner was appointed in the post of Associate
Professor in the Institute of Science
vide appointment order dated
25
th
January, 2012. The Institute of Science is under the
administrative control of the Respondent No.3 i.e. the Director of
the Institution. At the time of issuance of the order of appointment
dated 25
th
January, 2012, Government Resolution (
GR) dated 5
th
March, 2011 was in force. According to the said GR, the age of
retirement of certain category of employees, including Associate
Professors appointed in the Institute of Science, was 62 years. As
such, it was mentioned, in the order of appointment dated 25
th
January, 2012 that the retirement age of the Petitioner would be
62 years. The Petitioner would attain the age of 62 years on 31
st
August, 2027. Therefore, as per the order of appointment, read
with the GR dated 5
th
March, 2011, the Petitioner claims a right to
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remain in service till attaining the age of 62 years, i.e. until 31
st
August, 2027. However, by issuing the impugned order dated 28
th
August, 2025, the Petitioner was pre-maturely retired from service
with effect from 31
st
August, 2025, i.e. with effect from the date on
which she had attained the age of 60 years. The aforesaid order
dated 28
th
August, 2025, according to the Petitioner, was based on
a subsequent Government Resolution dated 12
th
July, 2016, more
particularly, paragraph No.2.2 thereof, which was erroneously
applied in her case adversely affecting her interest, that too,
without serving any prior notice. The prayer of the
Petitioner/Original Applicant made before the learned MAT,
Mumbai, having been rejected by the impugned order dated 28
th
August, 2025, the present Writ Petition has been filed.
5.Ms. Vaishali K. Jagdale, learned counsel appearing for the
Petitioner, has argued that since the retirement age of the
Petitioner was mentioned in the appointment order itself as 62
years, the same could not have been reduced subsequently to 60
years, based on GR dated 12
th
July, 2016, that too, without serving
any prior notice upon her client. According to Ms. Jagdale, learned
counsel, the Petitioner has not assailed the GR dated 12
th
July,
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2016, but had merely sought proper implementation of clause 2.2
of the said GR in her case. However, on an erroneous
interpretation of the decision of this Court in Prof. Dr. Yeshwant
Kondji Khillare and ors. Vs. State of Maharashtra and ors. (Writ
Petition No.7831 of 2016) the learned Tribunal had rejected her
prayer without properly appreciating the facts and circumstances
of the case. She, therefore, submits that the learned Tribunal was
not correct in placing reliance on the decision of the Division
Bench of Bombay High Court, Aurangabad Bench, in the case of
Prof. Dr. Yeshwant Kondji Khillare (supra) so as to reject her claim.
6. Ms. R. A. Salunkhe, learned AGP appearing for the State, on
the other hand, has argued that fixing of retirement age of
government employees is a matter of policy decision of the State.
The retirement age of Petitioner was determined under the GR
dated 12
th
July, 2016. Therefore, since the validity of the GR dated
12
th
July, 2016 has been upheld by this Court in the case of Prof.
Dr. Yeshwant Kondji Khillare (supra), the learned MAT has rightly
rejected the claim of the Petitioner. As such, submits Ms. R. A.
Salunkhe, learned AGP, there is no scope for this Court to interfere
with the impugned judgment and order.
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7.We have considered the submissions made by learned
counsel for both the parties and have also carefully gone through
the material on record.
8.It is not in dispute that the Writ Petitioner was appointed as
Associate Professor in the Institute of Science, Mumbai
vide
appointment order dated 25
th
January, 2012. It is also the admitted
position of fact that the retirement age of the Petitioner was
mentioned as 62 years in her order of appointment. The learned
AGP has not denied the fact that the retirement age of the
Petitioner as reflected in the order of appointment dated 25
th
January, 2012 was 62 years. Such retirement age was evidently
fixed on the basis of GR dated 5
th
March, 2011, which had
prescribed the retirement age of such employees as 62 years.
9.There is also no controversy in this case about the fact that
there is no separate service rule governing the conditions of service
of the teaching staff of Institute of Science and the Government
Resolutions issued from time to time lying down the conditions of
service including the age of retirement of such employees would
have the force of statutory rules. If that be so, there can be no
doubt about the fact that the appointment of the Petitioner in the
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post of Associate Professor was clearly on the expressed condition
that her age of retirement would be 62 years. Such condition i.e.
age of retirement, was also fixed on the basis of GR dated 5
th
March, 2011, which prescribes the age of retirement. The
question, that would, therefore, arise before this Court is as to
whether, retirement of an employee having been fixed as 62 years
as per the order of appointment, can such retirement age be
subsequently reduced to 60 years by giving retrospective effect to
the GR dated 12
th
July, 2016.
10.It would be pertinent to mention herein that GR dated 12
th
July, 2016 refers to seven previous GRs, including the GR dated 5
th
March 2011, which deals with the retirement age of the teaching
staff. Since we are not concerned with the other GRs, save and
except the GR dated 5
th
March 2011 and the GR dated 12
th
July,
2016, it would not be necessary for this Court to refer to those
GRs.
11.It appears that GR dated 12
th
July, 2016 was also issued with
the purpose and object of increasing the retirement age of teachers
in non-agricultural universities and government/non-government
aided colleges/technical institutes in the State, as per the
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prescribed age limit, through the relevant government decisions.
Since the Petitioner has contended that she has been sent on
premature retirement by an erroneous interpretation of Clause 2.2
of the said GR, we deem it necessary to reproduce Clause 2 of the
GR dated 12
th
July, 2016 along with the sub-clauses, as here-under,
for ready reference:-
“2. Accordingly, the Government, with the approval
of the Cabinet, is taking the following decisions:-
1) The decisions taken under reference dated 05
March, 2011, 23.11.2011 and 23.02.2012, 28
March, 2012, 22 August, 2012 and 11 October,
2012 regarding the retirement age of teachers in
government institutions in the higher education
sector/ government technical colleges/degree
institutions/colleges affiliated to Maharashtra
State Board of Technical Education from 58 to
62 years and the retirement age of
teachers/librarians/ deputy librarians/ assistant
librarians/ directors, deputy directors and
assistant directors of physical education in non-
agricultural universities, technical universities
and affiliated non-government aided colleges
from 60 to 62 years are being reconsidered and
the retirement age is being increased to 60
years. Therefore, every such teaching staff who
attains 60 years of age will now retire from
service after noon on the last day of the month
in which they attain the age of 60. However, the
teaching staff whose date of birth falls on the 1
st
of the month will retire after noon on the last
day of the previous month as soon as they attain
the age of 60.
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2) As per the provisions of the Government
Decisions under reference dated 05 March,
2011, 23.11.2011 and 23.02.2012, 28 March,
2012, 22 August, 2012 and 11 October, 2012,
the teaching staff whose retirement age has
been extended from 60 to 62 years as per the
prescribed age limit will retire on the date of
extension specified in the Government Order
granting them the extension.
3) It has been decided deliberately that no
extension will be granted in any case that has
been received or is being received or is pending
with the government regarding the increase in
the retirement age of teaching staff as per the
prescribed age limit.
4) The Maharashtra Civil Service Rules will be
amended as above.”
12. According to the Petitioner, her case is covered under Clause
2.2 of the GR dated 12
th
July 2016. However, the claim of the
Petitioner appears to have been purportedly rejected on the ground
that there was no specific order of extension of her retirement age
from 60 years to 62 years. In our opinion, such an assumption of
the Respondents-authorities is clearly erroneous for the following
reasons.
13.Firstly, the retirement age of the Petitioner has already been
fixed at 62 years at the time of issuance of her order of
appointment. Therefore, there was no need for issuance of any
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further order extending her retirement age upto 62 years. Clause
2.2 of the GR deals with only those cases where there is no order
of extension of retirement age from 60 years to 62 years. By virtue
of her appointment order, the tenure of service of the Petitioner
was already extended to the age of 62 years. Therefore, the
Petitioner did not belong to the category of employees
contemplated under Clause 2.2 of the GR. In other words, Clause
2.2 of the GR dated 12
th
July, 2016, in our opinion, would not have
any application in case of the Petitioner.
14.Secondly, the age of superannuation of the Petitioner, having
been fixed as 62 years by her order of appointment, issued in terms
of the relevant GR dated 5
th
March 2011, which was holding the
field at the relevant point of time, reducing the same to 60 years,
that too, without serving any prior notice upon the Petitioner, in
our opinion, was wholly arbitrary exercises of administrative
power and also in violation of the principles of natural justice.
15.Thirdly, in view of the projection made in her appointment
order fixing the age of retirement as 62 years, a valuable right had
accrued upon the Petitioner to continue in service till she attains
the age of 62 years. The right, accruing to the Petitioner, could not
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have been taken away retrospectively, by relying upon the GR
dated 12
th
July,2016.
16.Law is well settled that any right accruing to a person cannot
be taken away by retrospective application of any statue. Such a
recourse would be clearly hit by the basic philosophy of law, as
enshrined in Article 13(2) of the Constitution of India. In this
context, it would be pertinent to note herein that the Hon’ble
Supreme Court, in the case of State of Madhya Pradesh Vs.
Yogendra Shrivastava, 2010 (12) SCC 538 has held that even the
rules made under Article 309 cannot operate with retrospective
effect, so as to take away any approved right. Observations made
in Paragraph No.15 reproduced herein-below for ready reference:-
“15. It is no doubt true that Rules made under Article
309 can be made so as to operate with retrospective
effect. But it is well settled that rights and benefits
which have already been earned or acquired under
the existing Rules cannot be taken away by amending
the Rules with retrospective effect. (N.C. Singhal v.
Armed Forces Medical Services reported in (1972)4
SCC 765; K.C. Arora v. State of Haryana reported in
(1984)3 SCC 281:1984 SCC (L & S) 520 and T.R.
Kapur v. State of Haryana reported in 1986 Supp SCC
584: (1987)2 ATC 595.) Therefore, it has to be held
that while the amendment, even if it is to be
considered as otherwise valid, cannot affect the rights
and benefits which had accrued to the employees
under the unamended rules. The right to NPA @ 25%
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of the pay having accrued to the respondents under
the unamended Rules, it follows that respondent
employees will be entitled to non-practising
allowance @ 25% of their pay up to 20-5-2003.”
17.A government resolution in the State of Maharashtra
operates as an executive instruction and/or an administrative
order. In view of the decision in the case of Yogendra Shrivastava
(supra) noted above, law is settled that, not to speak of an
executive instruction or an administrative order, a right accrued
cannot be taken away with retrospective effect even by amending
the rules framed under Article 309 of the Constitution of India. In
such view of the matter, the question of affecting the right/interest
of the Petitioner by relying upon GR dated 12
th
July, 2016, that too
with retrospective effect, in our opinion, would not arise in the
eyes of law.
18.In the case of Prof. Dr. Yeshwant Kondji Khillare (supra), as
many as nine employees had approached the Court, assailing the
GR dated 12
th
July, 2016, which
inter-alia provided that unless the
retirement age was specifically extended from 60 years to 62 years,
an employee covered by the previous GRs would retire at the age
of 60 years. As noted above, this Clause is applicable in case of
those employees whose retirement age under the relevant GR(s)
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was 60 years. Fixing the age of retirement undoubtedly forms a
part of the service condition of the employees and therefore, the
employer would be entitled to prescribe the same.
19. The Division Bench of the Bombay High Court at
Aurangabad, by placing reliance on the decision of the Hon’ble
Supreme Court rendered in the case of Jagdish Prasad Sharma Vs.
State of Bihar, (2013) 8 SSC 633, has held that the State
Government is entitled to enact laws pertaining to service
conditions of Associate Professor and other staff of State
Universities, and also have the right to alter terms and service
conditions of service of such employees, as the same would fall
within the domain of policy-making power of the State.
Accordingly, the validity of the GR dated 12
th
July, 2016 was
upheld. However, in the said decision, the question as to whether,
right accruing on an employee under a previous GR could be taken
away by retrospective application of the subsequent GR dated 12
th
July, 2016 was neither raised nor dealt with by the Division Bench.
In that view of the matter, we are of the opinion that ratio laid
down in the case of Prof. Dr. Yeshwant Kondji Khillare (supra)
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would not have any bearing in the facts and circumstances of the
case.
20.The question in this case is not as to whether, the
Government has the power to fix the retirement age of its
employees, but if accrued right of an employee could be taken
away with retrospective effect by issuing subsequent GR. In view of
the discussions made here-in-above, we are of the firm opinion
that by an erroneous application of the GR dated 12
th
July, 2016
the Respondent No.3 has unilaterally altered the service condition
of the Petitioner and sent her on premature retirement at the age
of 60 years although as per the terms of the order of appointment
she had a right to continue in service till the age of 62 years.
Therefore, this is a clear case where, the Respondents have taken
away the right of the Petitioner to remain in service till 62 years,
by retrospective application of the GR dated 12
th
July 2016, in a
manner which is impermissible in the eyes of law.
21.For the reasons stated here-in-above, the Writ Petition must
succeed. The same is accordingly allowed in terms of prayer
clauses (a) and (b). Consequently, the Judgment and order dated
28
th
August, 2025 passed by the learned MAT stands set aside.
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22.Since the Petitioner has been retired prematurely, we direct
that she be reinstated in service forthwith, but not later than seven
days from the date of uploading of this order in the official
website. Upon such reinstatement, she shall be allowed to remain
in service until she attains the age of 62 years, subject however, to
operation of any other Law in force.
23.All concerned to act on the digitally signed order.
24.No order as to cost.
(ADVAIT M. SETHNA, J.) (SUMAN SHYAM, J.)
{
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