Bombay High Court
Association Of College And ... vs Union Of India And Others on 6 April, 2016
Bench: S.S. Shinde
5206.2014 WP.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5206 OF 2014
Association of College & University
Superannuated Teachers,
(Maharashtra) a Society registered
at No.MA-853/2009 under the
Provisions of the Societies
Registration Act, having its Head
Office at 20, Sawarkar Nagar,
N-5 (South), CIDCO, Aurangabad
Through it's President & Convener,
Principal Dr.M.A.Wahul PETITIONER
VERSUS
1] Union of India,
Through its under Secretary,
Ministry of Finance,
Department of Education,
New Delhi.
(Copy to be served on Assistant
Solicitor General Union of India,
High Court of Judicature of Bombay
Bench at Aurangabad)
2] The State of Maharashtra,
Through its Secretary, Higher and
Technical Department, Mantralaya
Mumbai-32.
3] The Director,
Higher Education,
Maharashtra State, Pune
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5206.2014 WP.odt
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4] The University Grants Commission,
Bahadurshah Jafar Marg., New Delhi
[Copies for respondents No.
1 to 4 to be served on Government
Pleader High Court of Judicature
of Bombay Bench at
Aurangabad) RESPONDENTS
...
Mr. S.G.Bhalerao, Advocate holding for Mr.
Y.R.Barhate, Advocate for the Petitioner
Mr. S.B.Deshpande, Assistant Solicitor
General, for Respondent Nos. 1.
Mr. S.B.Pulkundwar, AGP for the Respondent
Nos.2 and 3 / State
Mr. Alok Sharma, Advocate for the respondent
No.4.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 29.03.2016
Pronounced on : 06.04.2016
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable
forthwith, and heard with the consent of the
parties.
3] This Petition is filed with
following prayer clause:
5206.2014 WP.odt
A) By issuing writ of certiorari or any
other writ, order or direction, this
Hon'ble court may be pleased to
quash and set aside to the
Government Resolution dated 5.5.2009
issued by the Government of
Maharashtra i.e. respondent no.2 and
direct the respondent no.2 to give
the effect to the Government
Resolution dated 21st August, 2009
from 1.1.2006 and pay difference
gratuity amount calculated as per
maximum ceiling limit of Rs.7 Lacs
with 12% interest per annum to the
members of petitioner Association.
4] It is the case of the petitioner
that the petitioner is the Association of
College and University Superannuated Teachers
(Maharashtra), which is a registered
Organization under the Maharashtra Societies
Registration Act, 1860. The main grievance
of the petitioner Association pertains to
discrimination made by the respondents while
giving the gratuity amount to the teachers,
5206.2014 WP.odt
who retired between 01.01.2006 to 01.09.2009
and the teachers, who retired after
01.09.2009 in respect of enhanced gratuity
ceiling limit as per recommendations of the
6th Pay Commission to their cases. It is
further the case of the petitioner that, the
teachers who are retired between period of
01.01.2006 to 01.09.2009 were paid gratuity
as per maximum ceiling limit of 5 Lacs, vide
Government Resolution dated 5th May, 2009, and
the teachers who retired after 01.09.2009
were paid gratuity as per maximum ceiling
limit of Rs.7 lacs vide Government Resolution
dated 21st August, 2009, i.e. after a period
of only 3 months new Government Resolution is
issued by State of Maharashtra and ceiling
limit of gratuity is enhanced from Rs.5 lacs
to Rs.7 lacs.
5] Therefore, according to the
petitioner, the members of the association
should be given the same benefit in respect
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of enhanced gratuity ceiling limit of Rs.7
lacs. The members of Association are retired
during the period from 01.01.2006 to
01.09.2009. On the dates of their respective
retirements, they were eligible and entitled
to receive the amount of gratuity as per the
recommendations made by the 6th
ig Pay
Commission. It is further the case of the
petitioner that, the Government Resolution
dated 21st September, 2009, issued by the
Government of Maharashtra is arbitrary and
has resulted in discrimination between the
teachers, who retired during the period
01.01.2006 to 01.09.2009 and who retired
thereafter. It is further the case of the
petitioner that, other States implemented the
recommendations of 6th Pay Commission w.e.f.
01.01.2006, without making any
discrimination, except the Government of
Maharashtra for the best reasons known to it.
6] The petitioner Association filed
5206.2014 WP.odt
Writ Petition No.5284/2011 before the High
Court, regarding similar subject matter. The
Writ Petition No.5284/2011, came to be
dismissed on 26th September, 2011. Being
aggrieved by the said order, the petitioner
Association preferred Special Leave Petition
before the Supreme Court, which was
subsequently converted into Civil Appeal No.
908/2013 [Association of College & University
Superannuated Teachers Vs. Union of India and
others].
The Hon'ble Supreme Court allowed
the said Appeal on 30th January, 2013
and set aside the cut of date prescribed in
the said Government Resolution dated
05.05.2009, by holding that, the members of
Association are entitled to the benefit of
enhanced gratuity i.e. Rs.7,00,000/-. The
Supreme Court further directed respondents to
pay the said amount within 3 months from the
date of order. The State Government was
5206.2014 WP.odt
supposed to pay difference of the gratuity
amount in terms of Government Resolution
dated 21st August, 2009, to the members of the
petitioner. It is further the case of the
petitioner that, the respondents have delayed
payment beyond the period of three months,
and therefore, it is clearly established
that, the delay in payment of gratuity was
attributable to administrative lapses, and
therefore, the petitioner is entitled for the
interest at the rate applicable to General
Provident Fund Deposits on the amount of
gratuity.
7] The learned counsel appearing for
the petitioner invited our attention to the
grounds taken in the Petition and submits
that, in view of Rule 129-A of the
Maharashtra Civil Services [Pension] Rules,
1982, where the payment of retirement
gratuity has been delayed beyond the period
of 3 months from the date of retirement, and
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it is clearly established that, the delay in
payment of gratuity was attributed to
administrative lapses, then interest at the
rate applicable to General Provident Fund
Deposits shall be paid on the amount of
gratuity. In the present case also interest
is payable by the respondent no. 2 i.e.
Government of Maharashtra, on the delayed
payment of gratuity to the members of the
petitioner association, because the delay in
payment of gratuity to the members of
petitioner association is caused due to the
administrative lapses of the respondent no.2.
The learned counsel appearing for the
petitioner submits that, the provisions of
sub-rule (4) (b) of Rule 129-A of the
Maharashtra Civil Services [Pension] Rules,
1982, can be pressed into service by the
State Government, only in case the State
Government would have paid the differential
amount voluntarily in accordance with the
5206.2014 WP.odt
revision in pursuance of the policy framed by
the State Government in respect of payment of
gratuity. However, in the facts of the
present case, the State Government declined
to grant benefit to the petitioner's members
as per the revised policy framed by the State
Government. It is submitted that, the
petitioner filed Writ Petition seeking
directions to the respondent State to pay
differential amount in accordance with the
revision in pursuance of the policy framed by
the State Government in respect of payment of
gratuity. However, Writ Petition was
dismissed. The petitioners approached the
Hon'ble Supreme Court, and the Supreme Court
directed the State Government, to pay to the
members of the appellant and other similarly
situated employees the difference of gratuity
in terms of Government Resolution dated 21st
August, 2009.
8] The learned counsel appearing for
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the petitioner in support of his contention
that, the petitioners are entitled for the
interest on delayed payment of the enhanced
gratuity amount pressed into service
exposition of the Hon'ble Supreme Court in
the cases of Megh Varan Sharma Vs. State of
U.P. and Ors.1, S.K.Dua Vs. State of Haryana
and Anr.2, State of Kerala and Ors. Vs. M.
Padmanabhan Nair3, R.Kapur Vs. Director of
Inspection (Painting and Publication) Income
Tax and Anr.4 and The President /Secretary,
Vidarbha Youth Welfare Institution (Society)
Vs. Shri. Pradipkumar s/o Ramchandrarao
Lambhate5.
9] On the other hand, the learned AGP
appearing for the respondent State submits
that, the claim of the petitioner in respect
of payment of gratuity amount stood satisfied
1 2015 (1) SCT 12 (SC)
2 AIR 2008 SC 1077
3 AIR 1985 SC 356
4 (1994) 6 SCC 589
5 2012 (2) Mh.L.J. 752
5206.2014 WP.odt
since the State Government has paid the
amount as per the directions of the Supreme
Court in Civil Appeal No.908/2013
[Association of College & University
Superannuated Teachers Vs. Union of India and
others]. The learned AGP further submits
that, sub-rule (5) (b) of Rule 129-A of the
Rules, makes an exception and, as such, the
interest on delayed payment of gratuity is
not liable to be borne by the State since
differential payment is on account of
liberalization of the provisions of the Rules
and the petitioners are held entitled to
receive the differential amount in accordance
with the revision in pursuance to the policy
framed by the State Government in respect of
payment of gratuity.
10] We have heard the learned counsel
appearing for the petitioner, and the learned
AGP appearing for the Respondent - State.
With their able assistance, perused the
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pleadings and grounds taken in the Petition,
annexure thereto, the relevant provisions of
the Maharashtra Civil Service [Pension]
Rules, 1982, and copies of other documents
and the reply filed by the respondent -
State. There is no dispute that, the claim
of the petitioner in respect of payment of
gratuity amount stood satisfied since the
State Government is stated to have paid the
amount as per the directions of the Supreme
Court in Civil Appeal No.908/2013
[Association of College & University
Superannuated Teachers Vs. Union of India and
others]. According to the learned counsel
appearing for the petitioner, the question
remains to be addressed about the entitlement
of the petitioner for the interest on the
delayed payment of gratuity by the respondent
- State as per revision. Though, the
petitioners have prayed that, they are
entitled for the interest on the payment of
5206.2014 WP.odt
gratuity, delayed beyond period of three
months from the date of retirement, however,
we do not think that the said prayer to pay
interest on the delayed payment of retirement
gratuity, can be granted in a manner as
prayed by the petitioner. However, we find
considerable force in the arguments of the
learned counsel appearing for the petitioner
that, though the Supreme Court directed the
respondent State to pay to the members of the
appellant and other similarly situated
employees difference of the gratuity as
already paid to other employees who retired
after 01.09.2009, and enhanced gratuity
payable in terms of Government Resolution
dated 21th August, 2009, within three months
from the date of receipt / production of copy
of this order passed by the Supreme Court,
the State Government has not paid the same
amount within three months as ordered by the
Supreme Court. Therefore, according to us,
5206.2014 WP.odt
the members of the petitioners are entitled
for the interest on the delayed payment of
enhanced gratuity payable in terms of the
Government Resolution dated 21st August, 2009,
beyond three months from the date of
receipt / production of copy of the order
passed by the Supreme Court before the
respondent State, till the said amount was
actually disbursed to the members of the
petitioner.
11] In order to appreciate submissions
of the learned AGP appearing for the
respondent - State that, in view of the
provisions of clause (b) of sub-rule (4) of
Rule 129A of the said Rules, 1982, the
petitioners are not entitled for the
interest, it would be apt to reproduce said
provision herein below:
(b) liberalisation in the provisions of
these rules from a date prior to the
date of retirement of the Government
5206.2014 WP.odt
servant concerned, no interest on
the arrears of pension shall be
paid.
12] In the facts of the present case, in
spite of the directions given by the Hon'ble
Supreme Court to pay the enhanced gratuity
amount to the members of the petitioner's
Association within three months from the
receipt of the order by the respondent,
admittedly, the said amount has not been paid
within three months by the respondents.
13] The learned counsel appearing for
the petitioner has placed reliance on the
provisions of sub-rule (1) and (2) of Rule
129-A of the said Rules, which reads thus:
129-A. Interest on delayed
payment of gratuity. - (1)
Whether the payment of
retirement gratuity or death
gratuity, as the case may be
has been delayed beyond the
5206.2014 WP.odt
period of three months from the
date of retirement or death,
and it is clearly established
that the delay in payment was
attributable to administrative
lapse, an interest at the rate
applicable to General Provident
Fund deposits shall be paid on
ig the amount of gratuity, in
respect of the period beyond
three months :
Provided that, no interest
shall be payable if the delay
in payment of such gratuity was
attributable to the failure on
the part of the Government
servant, to comply with the
procedure laid down in this
Chapter :
Provided further that no
interest shall be payable in
the case where a provisional
gratuity is paid.
(2) Every case of delayed
payment of retirement gratuity
or death gratuity, as the case
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may be, shall suo motu, be
considered by the concerned
Administrative Department, and
where the Department is
satisfied that the delay in
payment of such gratuity was
caused on account of
administrative lapse, that
ig Department shall sanction
payment of interest after
obtaining the admissibility
report, in this behalf, from
the Accountant General
(Accounts and Entitlement),
Maharashtra, Mumbai or Nagpur,
as the case may be. The
approval of the Finance
Department for payment of such
interest shall not be
necessary.
14] Therefore, in our considered view,
since the respondents did not pay the amount
towards enhanced gratuity within three months
as ordered by the Supreme Court, the members
of the petitioner Association are entitled to
5206.2014 WP.odt
receive the interest as provided in the
aforesaid provisions.
15] In the light of the discussion
herein above, we direct the respondent nos. 2
and 3 to calculate the amount in the light of
the provisions of Rule 129A of the said
Rules, and disburse the same as expeditiously
as possible, however, within 3 months from
today.
16] Petition is partly allowed. Rule is
made absolute in the above terms.
In view of disposal of Writ
Petition, Civil Application No.9619/2015
stands disposed of.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
