Bombay High Court
Bhimrao S/O Bhikaji Sapkal vs State Of Maharashtra Thr. ... on 16 December, 2016
Bench: V.A. Naik
1612WP2292.16-Judgment 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2292 OF 2016
PETITIONER :- Bhimrao S/o Bhikaji Sapkal, Aged about 62
yrs., Occu.:- Retired, R/o Sonkhas Colony,
Bypass Road, Mangrulpir-444 403, District -
Washim.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through Secretary,
Higher Education & Technology
ig Department, Mantralaya, Bombay - 32.
2. Joint Director (Higher Education), Amravati
Region, Amravati - 444 604.
3. Pratibha Shikshan Prasarak Mandal,
Through its President / Secretary, Januna,
Tq. Barshi-Takli - 444 401. District Akola.
4. Sant Gadgebaba Amravati University,
Amravati.
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Mrs. S.W.Deshpande, counsel for the petitioner.
Mr.N.H.Joshi, Asstt.Govt.Pleader for the respondent Nos.1 & 2.
Mr.R.D.Karode, counsel for the respondent No.3.
Mr. N.S.Badhe, counsel for the respondent No.4.
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CORAM : SMT. VASANTI A NAIK &
MRS. SWAPNA JOSHI, JJ.
DATED : 16.12.2016
O R A L J U D G M E N T (Per Smt. Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally at the stage of admission with the consent of the learned
counsel for the parties.
1612WP2292.16-Judgment 2/7
2. By this writ petition, the petitioner challenges the order of
the respondent No.2, dated 25-29.02.2016 refusing to grant pensionary
benefits to the petitioner on the ground that the petitioner was not
qualified to hold the post of principal in Madhukarrao Pawar Arts
College in Murtizapur from 17.06.2010 and there was a break in the
service of the petitioner, after the petitioner resigned as a principal from
V.N. Arts & A.N. Commerce College, Mangrulpir, on 16.06.2010. The
petitioner seeks a direction against the respondents to release the
pensionary benefits to the petitioner.
3. The petitioner was appointed on the post of lecturer in
V.N. Arts & A.N. Commerce College, Mangrulpir on 07.02.1989 by
following the due procedure for selection. The petitioner was promoted
to the post of principal in V.N. Arts & A.N. Commerce College,
Mangrulpir on 01.04.1998. An approval was granted by the respondent
No.2 to the appointment of the petitioner on the post of principal on
20.08.1998. Since the petitioner found better prospects for working as
a principal in Madhukarrao Pawar Arts College, Murtizapur, the
petitioner resigned from the post of principal in V.N. Arts & A.N.
Commerce College, Mangrulpir on 16.06.2010 and on the next day i.e.
17.06.2010, the petitioner joined on the post of principal in
Madhukarrao Pawar Arts College Murtizapur. The pay of the petitioner
1612WP2292.16-Judgment 3/7
on the post of principal was protected by the respondent No.2-Joint
Director of Higher Education. The petitioner continued to receive the
pay scale of a principal from the Government Exchequer, till the
petitioner attained the age of superannuation, on 31.01.2016. After the
petitioner retired, the petitioner made the claim for grant of pensionary
benefits that was rejected by the respondent Nos.1 and 2 by the
impugned order dated 25-29.02.2016. The petitioner has challenged
the said order in the instant petition.
4. Mrs. Deshpande, the learned counsel for the petitioner,
submitted that the respondent No.2 was not justified in rejecting the
prayer of the petitioner for grant of pensionary benefits on the ground
that the petitioner was not qualified to hold the post of principal in
Madhukarrao Pawar Arts College in Murtizapur. It is submitted that the
respondent Nos.1 and 2 could not have refused to grant the pensionary
benefits to the petitioner on the ground that he had not completed ten
years of service in Madhukarrao Pawar Arts College, Murtizapur. It is
stated that there was no break in the services of the petitioner,
inasmuch as, the petitioner had resigned as a principal in V.N. Arts &
A.N. Commerce College, Mangrulpir on 16.06.2010 and had joined the
services on the post of principal in Madhukarrao Pawar Arts College,
Murtizapur on 17.06.2010. It is stated that the respondents after having
1612WP2292.16-Judgment 4/7
paid the salary to the petitioner for the post of principal for nearly six
years, during his service in Madhukarrao Pawar Arts College,
Murtizapur cannot be permitted to reject the prayer of the petitioner for
grant of pensionary benefits. It is submitted that the case of the
respondents that the petitioner did not possess Ph.D. qualification and,
therefore, the petitioner could not have appointed on the post of
principal in Madhukarrao Pawar Arts College, Murtizapur is liable to be
rejected, as the petitioner's appointment as a principal would relate
back to the date of his appointment as a principal in V.N. Arts & A.N.
Commerce College, Mangrulpir on 01/04/1998. It is stated that the
respondents have illegally rejected the claim of the petitioner for grant
of pensionary benefits.
5. Shri Joshi, the learned Assistant Government Pleader
appearing for the respondent Nos.1 and 2, supported the action of the
respondent Nos.1 and 2. It is stated that though the petitioner was
qualified on 01/04/1998 to hold the post of principal in view of the
then existing guidelines, on 17/06/2010, the petitioner could not have
been appointed as a principal in Madhukarrao Pawar Arts College,
Murtizapur, as in view of the guidelines then applicable, the petitioner
was required to possess a Ph.D. It is submitted that there was a break
in the service of the petitioner, after he resigned as a principal in V.N.
1612WP2292.16-Judgment 5/7
Arts & A.N. Commerce College, Mangrulpir on 16/06/2010. It is stated
that the petitioner had not completed the qualifying service of ten years
as a principal in Madhukarrao Pawar Arts College, Murtizapur. The
learned Assistant Government Pleader sought for the dismissal of the
writ petition.
6. In the circumstances of the case, the prayer made by the
petitioner needs to be granted. The petitioner was duly qualified to be
appointed on the post of lecturer on 07.02.1989 and was appointed as
such in V.N. Arts & A.N. Commerce College, Mangrulpir. Approval was
granted to the appointment of the petitioner by the respondent No.2.
On 01/04/1998 the petitioner was promoted as a principal in V.N. Arts
& A.N. Commerce College, Mangrulpir. The appointment/ promotion
of the petitioner to the post of principal was duly approved by the
respondent No.2 vide order dated 20.08.1998. The petitioner
continued to work as a principal in V.N. Arts & A.N. Commerce College,
Mangrulpir, till he resigned from the said post on 16.06.2010 to join as
a principal in Madhukarrao Pawar Arts College, Murtizapur on
17.06.2010. There is no break in the service of the petitioner, inasmuch
as the petitioner had resigned from V.N. Arts & A.N. Commerce College,
Mangrulpir on 16.06.2010 and on the very next day i.e. 17.06.2010 had
joined the services as a principal in Madhukarrao Pawar Arts College,
1612WP2292.16-Judgment 6/7
Murtizapur. There is no break in the services of the petitioner as a
principal and, therefore, the respondent Nos.1 and 2 could not have
rejected the prayer of the petitioner for grant of pensionary benefits on
the ground that the petitioner had worked as a principal in
Madhukarrao Pawar Arts College, Murtizapur only for a period of five
years or more. There was continuity to the services of the petitioner,
inasmuch, as there was no break in the service of the petitioner as a
principal though the petitioner had resigned from the post of principal
in one college and had joined on the post of principal in the other
college on the very next day. There was no break in the service of the
petitioner and the pay of the petitioner as a principal in Madhukarrao
Pawar Arts College, Murtizapur was protected by the order of the
respondent No.2 dated 17.06.2010. The services of the petitioner were
approved continuously from 07.02.1989 till the petitioner attained the
age of superannuation and retired on 31.01.2016. The petitioner
continued to receive his salary from the Government Exchequer from
07.02.1989 till 31.01.2016. In the circumstances of the case, the
respondent Nos.1 and 2 were not justified in holding that the services
of the petitioner were not continuous due to the resignation tendered
by the petitioner on 16.06.2010 and that the petitioner was not
qualified to hold the post of principal in Madhukarrao Pawar Arts
College, Murtizapur. The services of the petitioner as a principal need
1612WP2292.16-Judgment 7/7
to be reckoned from 01.04.1998 when the petitioner was
appointed/promoted to the post of principal in V.N. Arts &
A.N.Commerce College, Mangrulpir. At the relevant time, it was not
necessary for the petitioner to hold a Ph.D. for his
appointment/promotion to the post of principal. The action on the part
of the respondent Nos.1 and 2 to deny pensionary benefits to the
petitioner is clearly bad-in-law. The claim of the petitioner is supported
by the law laid down by this court in the judgment dated 28.06.2016 in
Writ Petition No.1608 of 2016 (Dr.Miss Veena d/o Manohar Mulay v.
Rashtra Sant Tukdoji Maharaj Nagpur University and others).
7. Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order is quashed and set aside. The respondent
Nos.1 and 2 are hereby directed to release the regular pension in favour
of the petitioner from the month of February, 2017 and pay the arrears
of pensionary benefits to the petitioner, within four months. The
respondent Nos.3 and 4 are directed to do the needful to ensure that
the pensionary benefits are released in favour of the petitioner, at the
earliest. Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
KHUNTE
