Bombay High Court
Dr. Vasant Raghunath Raipurkar ... vs The State Of Mah. Thr. The Secty., ... on 12 April, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO.657/2011
1) Dr. Vasant Raghunath Raipurkar
Aged about 76 years, occu: Retired
R/o 127, Surendra Nagar, Nagpur-15.
2) Dr. Balkrishna Martand Murhar
Aged about 81 years, occu: Retired
R/o 172, 'Martand' Indraprastha Nagar
Pannase Layout, Nagpur.
3) Shridhar Malharrao Pande
Aged about 74 years, occu: Retired
R/o 45-A, Pande layout, Khamla, Nagpur.
4) Dr.Gajendra Gulabrao Fukey
Aged about 72 years, occu: Retired
R/o F-13-B Laxmi Nagar, Nagpur. ..PETITIONERS
v e r s u s
1) State of Maharashtra
Through the Secretary
Higher Education Central Building, Pune.
2) The Joint Director
Higher Education
Old Morris College Building
Civil Lines, Nagpur.
3) The Director
Higher Education, Maharashtra State
Central Building, Pune. ...RESPONDENTS
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...........................................................................................................................
Ms. A.S. Athalye, Advocate for petitioners
Mr.Ambarish Joshi,Assistant Government Pleader for respondents 1 to 3
...........................................................................................................................
CORAM: SMT. VASANTI A. NAIK &
MRS . SWAPNA JOSHI, JJ
.
DATED : 12 April, 2017
th
ORAL JUDGMENT: (PER SMT. VASANTI A. NAIK, J.)
1. By this Writ Petition, the petitioners seek a direction against the
respondents to grant the benefit of leave encashment to all the petitioners as
per the calculations in the chart in paragraph 7 of the Writ Petition and
release the arrears of leave encashment to the petitioners at the earliest.
2. The petitioners were working as Principals in different Colleges
in the Nagpur University. The petitioner no.1 retired as a Principal on
31.08.1993, petitioner no.2 on 30.4.1989, the petitioner no.3 on 30.09.1996
and the petitioner no.4 retired on 30.04.1999, after attaining the age of
superannuation. According to the petitioners, they were working as Principals
in the non-vacation Department, inasmuch as they had served in the Colleges
during the summer and winter vacations. It is the case of the petitioners that
the petitioners are entitled to the benefit of leave encashment as per Rule 50
of the Maharashtra Civil Service (Leave) Rules,1981 and by the Government
Resolution dated 29.03.1997. It is stated that the said benefits are made
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available to the Principals like the petitioners but with effect from the date of
the Resolution ie, 29.03.1997. According to the petitioners, petitioner nos.1,2
and 3 retired before the Government Resolution dated 29.03.1997 was
passed, but the petitioner no.4 has retired on 30.04.1999 and the benefit of
leave encashment could be made available to him, in view of the Government
Resolution dated 29.03.1997. The petitioners have, by filing the Writ Petition
on 12.01.2011, sought a direction against the State Government to grant the
monetary benefit of leave encashment to the petitioners.
3. Ms.Athaley, the learned counsel for the petitioners submitted that
the benefit of leave encashment cannot be said to have been granted to the
Principals like the petitioners by the Government Resolution dated 29.03.1997
for the first time as it was available to the petitioners as per the Maharashtra
Civil Services (Leave) Rules, especially Rule 50 thereof. It is submitted that by
the Government Resolution dated 21st July 1983, the benefit of leave
encashment was made available to the teachers, lecturers, readers etc working
in the Colleges/Universities, but the same was not made available to the
Principals and hence by the Government Resolution dated 29.03.1997, the
benefit was extended to the Principals also. It is submitted that it is held by
the Aurangabad Bench of this Court, in the judgment dated 17.06.2008 in a
bunch of Writ Petitions bearing Writ Petition No. 704/2007 and others, that all
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the retiral benefits including the benefits of salary are liable to be paid to an
employee and delay in filing a petition would not come in the way of the
Court in issuing directions against the concerned employer. It is stated that it
is held by this Court in the said decision, that non-payment of salary is a
recurring cause which would not lapse till the salary is paid by the employer. It
is submitted by placing reliance on the judgment of the Hon'ble Supreme
Court, reported in (2005) 10 SCC 346: State of Rajasthan vs. Senior Higher
Secondary School and others, that leave encashment is part of "salary". It is
submitted that since the Hon'ble Supreme Court has held that leave
encashment would fall within the term "salary" and since it is held in the
judgment, dated 17.06.2008, that non-payment of salary would be a recurring
cause, a direction needs to be issued against the respondents to pay the benefit
of leave encashment to the petitioners. The learned counsel then relied on the
judgment of the Hon'ble Supreme Court, reported in (1996) 10 SCC Page 172:
S.R. Bhanrale vs. Union of India and others, to submit that when leave
encashment benefits are wrongfully withheld, despite the representation,
raising a plea of limitation by the Government would be wrongful.
4. Shri Ambarish Joshi, the learned Assistant Government Pleader
appearing for the respondents has denied the prayers made in the Writ
Petition. It is submitted that the petitioner nos.1,2 and 3 have retired before
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the Government issued the Resolution, dated 29.03.1997, and the benefit of
the said resolution cannot be granted to them. It is submitted that the
petition suffers from laches inasmuch as the petitioners have retired from the
year 1993 to 1999 and the Writ Petition is filed in January, 2011. It is
submitted that there is an inordinate delay in filing the Writ Petition and the
delay is not satisfactorily explained. It is stated that the petitioners have, for
the first time, made a representation to the State Government seeking the
benefit of leave encashment on 6th October, 2008 though they had retired on
30.08.1993, 30.04.1989, 30.09.1996 and 30.04.1999. It is submitted that
there is an inordiante delay which is not explained at all by the petitioners. It
is submitted that the Hon'ble Supreme Court has held in the case of State of
Maharashtra vs. Nowrosjee Wadia College and others, reported in (2013) 4
SCR 303, that the teachers of affiliated colleges would not be entitled to seek
leave encashment benefits from the State Government, as of a right. It is
submitted that in view of the said decision of the Hon'ble Supreme Court, the
Petition is liable to be dismissed.
5. On hearing the learned counsel for the parties, it appears that the relief
sought by the petitioners cannot be granted. The petition suffers from laches.
As submitted on behalf of the respondents, the petitioner nos.1,2,3 and 4 had
retired in the year 1993, 1989, 1996 and 1999 respectively. The first
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representation seeking the benefit of leave encashment is made by the
petitioners to the State Government on 06.10.2008. The said representation is
made more than 10 years after the date of retirement in the case of three
petitioners and a little less than 10-years, in the case of the fourth petitioner. If
according to the petitioners, they were entitled to the benefit of leave
encashment, they ought to have approached this Court within a reasonable
time, from the date on which they retired on attaining the age of
superannuation. In the case of some of the petitioners, the petition is filed 20
years after their retirement. The first representation was filed on 06.10.2008.
Even if the first representation had been filed immediately after their
retirement the petitioners should have approached this Court if the
representation was not favourably considered within a reasonable time. It is
held by the Honourable Supreme Court that making of successive
representations would be inconsequential while considering sufficient cause
as making of representations would not stop the limitation. It would be
worthwhile to refer to the judgments of the Hon'ble Supreme Court, in the
cases reported in 1995 Supp.4 SCC 593, 1997 11 SCC 13 and (2006) 4 SCC
322, in this regard. The judgment of the Hon'ble Supreme Court reported in
(1996) 10 SCC 172 and relied on by the learned counsel for the petitioners
cannot come to the rescue of the petitioners. In that case, the employee had
retired on attaining the age of superannuation on 31.07.1994 and after
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making successive representations he had filed the Original Application before
the Central Administrative Tribunal in the year 1997. In that case, the benefit
was sought by the concerned employee within a period of three years. In that
factual background, the Hon'ble Supreme Court held that since the employee
therein had made representations and had filed the case within a reasonble
time before the Central Administrative Tribunal, it was not proper on the part
of the State Government to raise the plea of limitation. The learned counsel
for the petitioners has relied on the judgment of this Court dated 17.06.2008,
in the bunch of Writ Petitions bearing Writ Petition No. 704/2007, to state that
non-payment of salary is a recurring cause which would not be lost till the
salary is paid by the employer. We are afraid that this observation or finding
goes contrary to the law laid down by the Hon'ble Supreme Court. It is well-
settled that a claim for salary could be made only for a period of three years
preceding the date of filing of the petition. If according to the petitioners,
'leave encashment' would fall within the term "salary" it was necessary for
the petitioners to have made the claim in legal proceedings within a period of
three years from the date of their retirement. In this case, we have already
mentioned about the inordinate delay in filing the Writ Petition. It is held by
the Hon'ble Supreme Court that even if a monetary claim is found to be
sustainable and the cause of action is continuous, still the monetary claim
should be granted only for a period of three years preceding the date of
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approaching the Court. Non-payment of leave encashment would not be a
continuous cause of action, as submitted on behalf of the petitioners. The
Hon'ble Supreme Court has held in the judgments reported in (1997) 11 SCC
13; (2007) 9 SCC 274; 1995 (5) SCC 628 and 2008 (8) SCC page 648,
that even if a monetary claim is sustainable, the monetary relief could be
granted only for three years preceding the date of filing of the petition.
The petitioners cannot effectively challenge the applicability of the
Government Resolution dated 29.03.1997 with effect from the said date, as a
challenge in that regard is also filed belatedly in the year 2011, by this
petition. A lame attempt is made on behalf of the petitioners to join the
respective Colleges in which the petitioners were working at the time of their
retirement at this stage. It is surprising that all the four petitioners worked in
different Colleges and not in the same College. The petitioners have not joined
the Colleges in which they were working as party-respondents. There is
misjoinder of parties by filing one petition for seeking the benefits of leave
encashment though all the petitioners were working in different colleges. An
amendment Application is sought to be filed for joining the respective Colleges
as party-respondents at this stage when the matter is heard after a period of
five years from its admission. We are not inclined to grant the prayer made by
the petitioners in this regard, as against the concerned Colleges that are
sought to be joined as parties, the petition would be further delayed by more
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than six years.
6. In the circumstances of the case, since we are not inclined to grant the
relief claimed by the petitioners, we dismiss the petition with no order as to
costs. Rule stands discharged.
JUDGE JUDGE
sahare
