wp.5602.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 5602/2015 Shridhar s/o Gajanan Ranade Aged about 66 years, occu: Retired school Teacher R/o Pragati Colony Shendurwafa,Sakoli Dist. Bhandara. ..PETITIONER v e r s u s
1) Secondary Education Society Sakoli, Through its Secretary Shri Ghanshyam s/o Shyamrao Kamgate Advocate, Aged about 50 years R/o Talav Ward At & Po: Saoli, Dist. Bhandara.
2) Principal
The Nandlal Patil Kapgate Vidyalaya
and Kanishtha Vigyan Vidyalaya, Sakoli
Dist. Bhandara.
3) Deputy Director of Vocational Education
& Training, Regional office,
Civil Lines, Nagpur.
4) District Vocational Education & Training
Officer, Bhandara.
5) State of Maharashtra
Department of Technical Education
Through its Principal Secretary
Mantralaya, Mumbai-32. ...RESPONDENTS
...........................................................................................................................
Mr. A.R. Patil, Advocate for the petitioner Mr.Ambarish Joshi, Assistant Government Pleader for Respondents 3 to 5 ...........................................................................................................................
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Rule. Rule made returnable forthwith. The Writ Petition is heard finally with the consent of the learned counsel for the parties.
By this Writ Petition, the petitioner challenges the order of the respondent no.3-Deputy Director of Vocational Education and Training, dated 21.06.2012 rejecting the prayer of the petitioner for reckoning his service for pensionary benefits from 30.09.1988 and directing the petitioner to return the increments that were wrongfully paid to him.
The petitioner was appointed as an Instructor-Teacher in the Vocational School run by the respondent nos.1 and 2, on 30.09.1988. At the relevant time, the petitioner did not possess the training qualification and hence he secured the training qualification with the permission of the respondent nos.1 and 2. While undergoing the training, the respondents continued the services of the petitioner in the school from year-to-years basis and provisional approval was granted to the petitioner's service during each of the years. On 16.2.1992,the petitioner was appointed as a regular Instructor as, by that time, he had secured the training qualification. In the year 1995, and to be precise on 20.10.1995, a Circular was issued by the State Government directing all ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/04/2017 00:04:50 ::: wp.5602.15 3 the Deputy Directors of Vocational Education in the State of Maharashtra to continue the Instructors-Teachers that did not possess the requisite training qualification and that were in service as on 20.10.1995 and also grant them yearly increments. On the basis of the Circular of the State Government, dated 20.10.1995, the petitioner was granted the benefit of yearly increment from the date of his initial appointment ie, 30.09.1988 without considering the fact that his services were regularised on 16.02.1992. The petitioner retired on attaining the age of superannuation on 31.03.2008. After the petitioner retired, the petitioner's service was reckoned for the purpose of grant of pensionary benefits with effect from 16.02.1992 and not from the date of his initial appointment, on 30.09.1988. The petitioner, therefore, filed a Writ Petition in this Court for a direction against the respondents to consider his services with effect from 30.09.1988, for grant of pensionary benefits. The Writ Petition was disposed of with a direction against the Deputy Director of Vocational Education and Training, to consider the claim of the petitioner for grant of pensionary benefits by reckoning his services from 30.09.1988. The Deputy Director of Vocational Education and Training, by the impugned order dated 21.06.2012, rejected the representation of the petitioner and further directed the petitioner to refund the amount that was paid to the petitioner towards increments in pursuance of the Government Circular, dated 20.10.1995. The communication of the Deputy Director of Vocational ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/04/2017 00:04:50 ::: wp.5602.15 4 Education and Training is challenged by the petitioner in the instant petition.
Shri Patil, the learned counsel for the petitioner submitted that the petitioner continuously worked with the respondent nos.1 and 2 as an Instructor from the date of his initial appointment on 30.09.1998. It is submitted that though the petitioner's services were confirmed on 16.02.1992, the petitioner had worked as an Instructor with the respondent nos. 1 and 2 from 30.09.1998. It is stated that with a small break in service, which was a technical break, the petitioner's services were continued by the respondent nos.1 and 2 from time to time and a provisional approval was granted on year-to-year basis to the appointment of the petitioner,on the post of Instructor. It is submitted that in view of the Circular dated 20.10.1995 the petitioner is granted increments by considering his date of appointment as 30.09.1998 and hence the petitioner would be entitled to pensionary benefits by reckoning his services with effect from 30.09.1988. It is submitted that the Deputy Director of Vocational Education and Training was not justified in directing the petitioner to refund the amount that was paid to the petitioner several years earlier, towards increments for his services between 30.09.1988 to 16.02.1992. It is stated that the increments were granted to the petitioner in pursuance of the Circular dated 20.10.1995 and petitioner had not fraudulently claimed the same. It is submitted that, in any case, in view of the law laid down in the case of State of Punjab vs. Rafiq Masih, reported in AIR 2015 SC 1267, the ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/04/2017 00:04:50 ::: wp.5602.15 5 impugned order so far as it directs the refund of the amount paid to the petitioner towards increments, is liable to be set aside.
Shri Ambarish Joshi, the learned Assistant Government Pleader appearing for the respondent nos. 3 to 5 has supported the order passed by the Deputy Director of Vocational Education & Training. It is submitted that not only were the petitioner's services not regularized with effect from 30.09.1988 till 16.02.1992, but the petitioner also did not possess the training qualification till his services were confirmed by the respondent nos. 1 and 2 or 16.02.1992. It is submitted that the Deputy Director of Vocational Education & Training has rightly held that the petitioner was not qualified to hold the post of Instructor on regular basis on 30.09.1988 and the State Government had never granted continuity to his services from 30.09.1988. It is submitted that the respondents had erroneously granted the increments to the petitioner though the petitioner was not entitled to the same as per the Government Circular, dated 20.10.1995. The learned Assistant Government Pleader, however, did not dispute the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) and submitted that an appropriate order may be passed on the prayer against the recovery. It is submitted that in the circumstances of the case, the petition is liable to be rejected, insofar as the claim of the petitioner for reckoning his services with effect from 30.09.1988 is concerned.
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wp.5602.15 6 On hearing the learned counsel for the parties, we find that the petitioner would not be entitled to seek a direction against the respondents to grant pensionary benefits to the petitioner by reckoning his services with effect from 30.09.1988. Admittedly, the petitioner was appointed firstly on 30.09.1988 and thereafter every year, on year-to-year basis, till he was appointed in the regular vacancy on 16.02.1992. There was some break in the services of the petitioner every year. Provisional approval was granted to the appointment of the petitioner from year-to-year basis as, at the relevant time in the year 1989, 1989 and 1990, the petitioner did not possess the training qualification. Till the petitioner possessed the training qualification, the petitioner was not entitled to be appointed as an Instructor on regular basis. By referring to the Government Circular dated 20.10.1995, the petitioner was granted some monetary benefits towards increments. In this case, we are not required to consider whether the petitioner was rightly or wrongly granted those increments as admittedly the monetary benefits towards increments were paid to the petitioner nearly ten years before the date of his retirement from service. It is laid down by the Honourable Supreme Court in the judgment in the case of Rafiq Masih (supra) that whenever some monetary benefits are paid to an employee for some time and the grant of the monetary benefits is not based on misrepresentation of the employee, the employer would not be entitled to recover the monetary benefits from the employee ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/04/2017 00:04:50 ::: wp.5602.15 7 after the retirement of the employee as the recovery of such monetary benefits would cause undue hardship to the employee. Hence, though the petitioner would not be entitled to the grant of pensionary benefits by reckoning his services from 30.09.1988 for counting the qualifying service for grant of pensionary benefits as the petitioner was temporarily appointed from year to year basis with break in service and he was not qualified to hold the post, the petitioner would be entitled to the other relief claimed. The respondents would not be entitled to recover the amount that was paid to the petitioner towards increments in pursuance of the Circular dated 20.10.1995, as the said amount was paid to the petitioner several years before his retirement and it is sought to be recovered from the petitioner more than four years after his retirement, by the impugned order dated 21.06.2012.
Hence, for the reasons aforesaid,the Writ Petition is partly allowed. The impugned order of the Deputy Director of Vocational Education & Training is modified. The part of the order that rejects the prayer of the petitioner for considering his services from 30.09.1988 for grant of pensionary benefits instead of 16.02.1992 is upheld and confirmed. The part of the order of the Deputy Director of Vocational Education & Training that directs the recovery of the amount paid to the petitioner towards increments, is hereby quashed and set aside.
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wp.5602.15 8 Rule is made absolute in the aforesaid terms, with no order as to costs.
JUDGE JUDGE
sahare
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