Bombay High Court
Bhanudas Mahadeo Gawande vs State Of Maharashtra Through Its ... on 9 June, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.153 of 2015
Bhanudas Mahadeo Gawande,
Age 70 years, Occ.-Nil,
R/o.-Saptashrungi Housing Society,
Pankaj Nagar, Malkapur,
Gorakshan Road, Akola-44006. .... Petitioner.
Versus
1] State of Maharashtra
through its Secretary,
Department of Education, Mantralaya,
Mumbai-400 032,
2] Director of Education,
Maharashtra State, Pune,
3] Chief Executive Officer,
Zilla Parishad, Buldhana,
4] Accountant General of Maharashtra,
Nagpur. .... Respondents.
Shri P.C. Madkholkar, Advocate with
Shri R.M. Karode, Advocate for petitioner.
Mrs. A.R. Taiwade, AGP for resp.nos. 1 and 2.
Coram : B.P. Dharmadhikari &
Kum. I.K. Jain, JJ.
Dated : 09 th June, 2016
.
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ORAL JUDGMENT [ Per B.P. Dharmadhikari, J.]
1] Heard learned Advocate Shri Madkholkar with learned
Advocate Shri Karode for the petitioner and the learned Assistant
Government Pleader for the respondents. It is not in dispute that the
petitioner came to be appointed in the Maharashtra Education
Services (Class-II) post from the Scheduled Tribe category and
joining on 18-11-1983. The Maharashtra Administrative Tribunal
[MAT] has mentioned in impugned order the date of joining him in
employment as 30-11-1983. He was terminated on 06-05-1986 as
his caste claim as person belonging to Scheduled Tribe category
was invalidated. This termination was questioned by him in
Writ Petition No.1174 of 1986. The Division Bench of this Court
allowed that petition on 11-02-2002. Perusal of said judgment
shows that the invalidation was without giving to the petitioner any
opportunity. As the petitioner was continuing in service because of
interim orders passed by this Court, the Division Bench permitted
the State Government to proceed further after giving necessary
opportunity to the petitioner. Thus, the termination order dated
06-05-1986 does not survive after 11-02-2002.
2] The petitioner continued in service till he reached the age of
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superannuation on 31-12-2002. During said period his caste claim
was never forwarded for verification. After his superannuation as
he did not receive pension and other terminal benefits he made a
representation. The communication on part of employer was
questioned in Writ Petition No.4040 of 2005. The Division Bench
of this Court on 30-12-2005 disposed of the Writ Petition with
direction to respondent no.2 in that Writ Petition to pass a reasoned
order and to decide the representation made by the petitioner. It
appears that it is in this background when his grievance was not
redressed, he approached the MAT and assailed the communication
dated 23-03-2011 and sought direction to release his increments
and pensionary benefits etc. The application was filed with the
MAT in the year 2011 and it was registered as Original Application
No.264 of 2011.
3] The MAT has found that the petitioner retired on 31-12-2002
and as per Section 21 of the Administrative Tribunals Act, 1985,
the proceedings should have been filed within one year. It has also
observed that by filing earlier Writ Petition and the Contempt
Petition the petitioner was knocking the wrong doors, it therefore
held that mere continuous correspondence by the petitioner could
not save the limitation.
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4] This judgment delivered by the MAT on 28-08-2014 has
questioned in the present matter.
5] According to learned Advocate Shri Madkholkar for the
petitioner, the petitioner worked for the period in excess of 19
years with State Government and he cannot be blamed for not
getting his caste claim verified. He further submits that the
entitlement to draw pension every month is a continuous cause
and hence the reason that the petitioner approached belatedly before
the MAT is unsustainable.
6] The learned Assistant Government Pleader on the other hand
points out that the caste claim was invalidated and the petitioner
was once terminated. As the caste claim was never validated
thereafter the petitioner was not holding post substantively and
continued as probationary only. Hence, the view taken by the
MAT does not call for any interference.
7] With the assistance of the respective Counsel, we have
perused the record. We find that the termination order dated
06-05-1986 cannot survive after the judgment of this Court dated
11-02-2002 in Writ Petition No.1174 of 1986. Within next 10 months
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i.e. on 31-12-2002 itself the petitioner reached the age of
superannuation. Thus, before the age of superannuation could be
reached no steps were taken by the respondents to get his caste
claim verified though that opportunity was given to them by this
Court. After his retirement the petitioner was entitled to receive
pension, provident fund, gratuity and other terminal benefits. He
has also claimed increments.
8] The MAT has relied upon Rule 30 of the Maharashtra Civil
Services (Pension) Rules, 1982 and noted that as per first proviso
to said Rules it was necessary for the petitioner to demonstrate that
he was substantively holding permanent post. His probation
period was not completed and he was also terminated. It, therefore,
held that the petitioner did not fulfill the requirements of first
proviso to said Rule 30.
9] In the light of Full Bench judgment of this Court in the case
of Arun s/o Vishwanath Sonone vs. State of Maharashtra and
others, reported in 2015(1) Mh.L.J. 457, we find that, in this
situation, as the petitioner has already reached the age of
superannuation way back on 31-12-2002 his services need to be
treated as protected. It is true that his caste claim was never sent for
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verification but then we cannot blame the petitioner only in the
matter. The termination effected on 06-05-1986 formed subject
matter of challenge in Writ Petition No.1174 of 1986. That Writ
Petition remained pending for about 16 years and came to be
allowed on 11-02-2002. The petitioner has retired within 10 months
thereafter.
10]
We, therefore, find that the MAT could not have treated the
petitioner only as probationer. The reliance upon first proviso to
Rule 30 of the Pension Rules, 1982, in present situation is
unwarranted. Similarly, the fact that the petitioner a senior citizen
in 2011 though entitled to receive pension was not being paid it is
also has been ignored. The right of petitioner to receive his pension
is continuous right and finding that the MAT was approached
belatedly is unsustainable. In this situation, we set aside the
judgment dated 28-08-2014 passed in Original Application No.264
of 2011.
11] We direct the respondents to treat the services rendered by
the petitioner as protected for the period up to his superannuation.
Accordingly, his increments and retirement dues including
provident fund, gratuity etc. shall be released to him within next six
months.
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12] If any amount under any of these heads is already paid to him
that amount shall be deducted while effecting payment. We also
direct the respondents to consider his entitlement to receive interest
in terms of Rule 129A and B of the Maharashtra Civil Services
(Pension) Rules, 1982.
13] Writ Petition is, thus, allowed and disposed of. No costs.
JUDGE JUDGE
Deshmukh
