wp6334.13.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6334/2013
PETITIONER : Shri Dinkar s/o Raoji Mapari
Aged about 63 years, Occu : Retired,
R/o Lonar, Tahsil Lonar, District Buldana.
...VERSUS...
RESPONDENTS : 1. Nagar Parishad, Lonar,
Represented through its Chief Officer,
Tahsil Lonar, District Buldana.
2. Directorate of Nagar Parishad Administration,
Government Transport Service Building,
3rd Floor, Sir Pochkhanwala Marg, Worli,
Mumbai - 400030.
3. State of Maharashtra,
Urban Development Department,
Mantralaya, Mumbai, duly represented through
its Secretary.
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Shri P.S. Sadavarate, Advocate for petitioner
Shri A.P. Kalmegh, Advocate for respondent no.1
Shri H.R. Dhumale, AGP for respondent nos.2 and 3
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 27.06.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) By this petition, the petitioner seeks a direction against the respondents to pay the retiral benefits of leave encashment, G.I.S. amount, gratuity and arrears of pension with interest. ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:46:14 :::
wp6334.13.odt 2 The petitioner was serving in the Army and retired from the military services in May, 1987. After his retirement the petitioner was appointed on the post of Electrical Inspector in the services of the respondent - Nagar Parishad. The petitioner worked as an Electrical Inspector with the Nagar Parishad from 28.2.1996 but since the Nagar Parishad gave technical breaks in his services, the petitioner filed a complaint before the Industrial Court under the provisions of the M.R.T.U. and P.U.L.P. Act. The proceedings filed by the petitioner in the year 1997 were compromised between the petitioner and the Nagar Parishad and the Nagar Parishad decided to regularize the services of the petitioner w.e.f. 15.5.1997. In terms of the compromise, the petitioner agreed that he would not claim any monetary benefits prior to the date of the compromise, that was effected on 1.2.2001. The petitioner continued to work with the Nagar Parishad till he attained the age of superannuation in the year 2009. After his superannuation the petitioner sought the retiral benefits. The Nagar Parishad did not grant some of the retiral benefits to the petitioner and hence, the petitioner filed a complaint before the Lok Ayukta. The complaint was decided by the Lok Ayukta on 11.12.2013 and the Nagar Parishad was directed to pay the pension and the other retiral benefits by reckoning the services of the petitioner with the Nagar Parishad w.e.f. 15.5.1997 till the date of his retirement on ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:46:14 ::: wp6334.13.odt 3 28.2.2009. During the pendency of the writ petition, as per the directions of the Lok Ayukta, the Nagar Parishad has paid the pensionary benefits as also the other retiral benefits to the petitioner. Since according to the petitioner, the pension of the petitioner was liable to be fixed in view of Rule 162 of the Maharashtra Civil Services (Pension) Rules, 1982, the petition is being prosecuted only in respect of the said relief as the other retiral benefits sought by the petitioner have been released in his favour.
Shri Sadavarte, the learned Counsel for the petitioner submitted that in view of Rule 162 (ii) (B) of the Rules of 1982 it was necessary for the Nagar Parishad to grant the pensionary benefits to the petitioner without deducting the pension drawn by him for the military services rendered by him. It is submitted that in case of an employee below the commissioned officer's rank the entire pension is liable to be paid. It is submitted that the petitioner would be entitled to both the pensions in full, that is, the military pension as well as the pension, that is, liable to be paid to him in view of his services with the Nagar Parishad.
Shri Dhumale, the learned Assistant Government Pleader appearing for the respondent nos.2 and 3 opposed the prayer made by the petitioner. It is submitted that Sub Rule (ii) (B) of Rule 162 of the Rules of 1982 will not apply to the case of the petitioner as the petitioner has ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:46:14 ::: wp6334.13.odt 4 not retired before attaining the age of 55 years and has retired on attaining the age of superannuation. It is submitted that the pension of the petitioner was rightly fixed by deducting the pension received by him for the military services. The learned Assistant Government Pleader sought for the dismissal of the writ petition.
Shri Kalmegh, the learned Counsel for the Nagar Parishad opposed the prayer made in the writ petition. It is submitted that the petitioner was not appointed by following the due procedure for selection and the petitioner was also not qualified for holding the post of Electrical Inspector. It is submitted that the qualifications required to be possessed by an Electrical Inspector are S.S.C. and two years diploma course of I.T.I. and the petitioner does not possess the diploma. It is submitted that as per the directions of the Lok Ayukta the entire amount that is due and payable to the petitioner is disbursed to the petitioner and the grievance of the petitioner should have been redressed on the payment of the said amount. It is submitted that the petitioner has wrongly relied on the provisions of Rule 162 (ii) (B) of the Rules of 1982 to claim the entire pension as the said provision is applicable only in case of the employee who retire before attaining the age of 55 years.
On hearing the learned Counsel for the parties and on a perusal of the relevant rules on which the learned Counsel for the ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:46:14 ::: wp6334.13.odt 5 petitioner has relied on, it appears that the submission made on behalf of the petitioner that the petitioner would be entitled to entire pension for both the services is liable to be rejected. Apart from the fact that the petitioner was not eligible for holding the post of Electrical Inspector as he was not qualified for holding the same and his appointment was also not made after following the due procedure of selection, i.e., issuance of advertisement, inviting all the eligible candidates holding the requisite qualification (only military persons were called), it is necessary to note that Rule 162 (ii) (B) of the Rules of 1982 would not apply to the case of the petitioner at all. Sub Rule (ii) (B) of Rule 162 of the Rules of 1982 would apply only to the cases of the employees that retire before attaining the age of 55 years. Only such employees who retire before attaining the age of 55 years and who hold the rank which is lower than the commissioned officer's rank would be entitled to entire pension, without deducting the pension received by them in pursuance of their military services. The petitioner has retired on attaining the age of superannuation, i.e., 58 years and not before attaining the age of 55 years. Sub Rule (ii) of Rule 162 of the Rules of 1982 would therefore not apply to the case of the petitioner. Rightly, the respondents had deducted the pension that is received by the petitioner, in view of his military services, from the pension, that is, liable to be paid in view of his services ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:46:14 ::: wp6334.13.odt 6 with the Nagar Parishad. Since the petitioner has only relied on Rule 162
(ii) (B) of the Rules of 1982 in support of his claim for seeking the entire pension and since the said rule would not apply to the case of the petitioner, the prayer made by the petitioner for grant of entire pension is liable to be rejected. We would note that even if the Rule had applied, we would have considered whether to grant the relief in favour of the petitioner or not as the petitioner did not possess the requisite qualification for appointment to the post of Electrical Inspector and the appointment of the petitioner was not made after following the due procedure for selection. The Services of the petitioner appears to have been regularized only in view of the compromise between the Nagar Parishad and the petitioner.
Since all the other retiral benefits are released in favour of the petitioner and since the petitioner would not be entitled to the entire pension as claimed by him in pursuance of the provisions of Rule 162 (ii) (B) of the Rules of 1982 the petition is liable to be disposed of.
Hence, we dispose of the writ petition with no order as to costs. Rule stands discharged.
JUDGE JUDGE
Wadkar
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