Shridhar S/O Gajanan Ranade vs Secondary Education Society, ...
2017 Latest Caselaw 1924 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT NAGPUR, NAGPUR.
                                            ...

WRIT PETITION NO. 5602/2015 Shridhar s/o Gajanan Ranade Aged about 66 years, occu: Retired school Teacher R/o Pragati Colony Shendurwafa,Sakoli Dist. Bhandara. ..PETITIONER

v e r s u s

1) Secondary Education Society Sakoli, Through its Secretary Shri Ghanshyam s/o Shyamrao Kamgate Advocate, Aged about 50 years R/o Talav Ward At & Po: Saoli, Dist. Bhandara.

2)        Principal
          The Nandlal Patil Kapgate Vidyalaya 
          and Kanishtha Vigyan Vidyalaya, Sakoli
          Dist. Bhandara.

3)        Deputy Director of Vocational Education
          & Training, Regional office, 
          Civil Lines, Nagpur.

4)        District Vocational Education & Training 
          Officer, Bhandara. 

5)        State of Maharashtra 
          Department  of Technical Education
          Through its Principal Secretary
          Mantralaya, Mumbai-32.                                                             ...RESPONDENTS

...........................................................................................................................

Mr. A.R. Patil, Advocate for the petitioner Mr.Ambarish Joshi, Assistant Government Pleader for Respondents 3 to 5 ...........................................................................................................................

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                                       CORAM:    SMT. VASANTI A. NAIK   &
                                                      MRS . SWAPNA  JOSHI, JJ
                                                                             . 
                                       DATED :      21  April  2017
                                                       st



ORAL JUDGMENT:  (PER SMT. VASANTI A. NAIK, J.)

Rule. Rule made returnable forthwith. The Writ Petition is heard finally

with the consent of the learned counsel for the parties.

By this Writ Petition, the petitioner challenges the order of the

respondent no.3-Deputy Director of Vocational Education and Training, dated

21.06.2012 rejecting the prayer of the petitioner for reckoning his service for

pensionary benefits from 30.09.1988 and directing the petitioner to return the

increments that were wrongfully paid to him.

The petitioner was appointed as an Instructor-Teacher in the Vocational

School run by the respondent nos.1 and 2, on 30.09.1988. At the relevant

time, the petitioner did not possess the training qualification and hence he

secured the training qualification with the permission of the respondent nos.1

and 2. While undergoing the training, the respondents continued the services

of the petitioner in the school from year-to-years basis and provisional

approval was granted to the petitioner's service during each of the years. On

16.2.1992,the petitioner was appointed as a regular Instructor as, by that time,

he had secured the training qualification. In the year 1995, and to be precise

on 20.10.1995, a Circular was issued by the State Government directing all

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the Deputy Directors of Vocational Education in the State of Maharashtra to

continue the Instructors-Teachers that did not possess the requisite training

qualification and that were in service as on 20.10.1995 and also grant them

yearly increments. On the basis of the Circular of the State Government, dated

20.10.1995, the petitioner was granted the benefit of yearly increment from

the date of his initial appointment ie, 30.09.1988 without considering the fact

that his services were regularised on 16.02.1992. The petitioner retired on

attaining the age of superannuation on 31.03.2008. After the petitioner

retired, the petitioner's service was reckoned for the purpose of grant of

pensionary benefits with effect from 16.02.1992 and not from the date of his

initial appointment, on 30.09.1988. The petitioner, therefore, filed a Writ

Petition in this Court for a direction against the respondents to consider his

services with effect from 30.09.1988, for grant of pensionary benefits. The

Writ Petition was disposed of with a direction against the Deputy Director of

Vocational Education and Training, to consider the claim of the petitioner for

grant of pensionary benefits by reckoning his services from 30.09.1988. The

Deputy Director of Vocational Education and Training, by the impugned order

dated 21.06.2012, rejected the representation of the petitioner and further

directed the petitioner to refund the amount that was paid to the petitioner

towards increments in pursuance of the Government Circular, dated

20.10.1995. The communication of the Deputy Director of Vocational

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Education and Training is challenged by the petitioner in the instant petition.

Shri Patil, the learned counsel for the petitioner submitted that the

petitioner continuously worked with the respondent nos.1 and 2 as an

Instructor from the date of his initial appointment on 30.09.1998. It is

submitted that though the petitioner's services were confirmed on 16.02.1992,

the petitioner had worked as an Instructor with the respondent nos. 1 and 2

from 30.09.1998. It is stated that with a small break in service, which was a

technical break, the petitioner's services were continued by the respondent

nos.1 and 2 from time to time and a provisional approval was granted on

year-to-year basis to the appointment of the petitioner,on the post of Instructor.

It is submitted that in view of the Circular dated 20.10.1995 the petitioner is

granted increments by considering his date of appointment as 30.09.1998 and

hence the petitioner would be entitled to pensionary benefits by reckoning his

services with effect from 30.09.1988. It is submitted that the Deputy Director

of Vocational Education and Training was not justified in directing the

petitioner to refund the amount that was paid to the petitioner several years

earlier, towards increments for his services between 30.09.1988 to 16.02.1992.

It is stated that the increments were granted to the petitioner in pursuance of

the Circular dated 20.10.1995 and petitioner had not fraudulently claimed the

same. It is submitted that, in any case, in view of the law laid down in the

case of State of Punjab vs. Rafiq Masih, reported in AIR 2015 SC 1267, the

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impugned order so far as it directs the refund of the amount paid to the

petitioner towards increments, is liable to be set aside.

Shri Ambarish Joshi, the learned Assistant Government Pleader

appearing for the respondent nos. 3 to 5 has supported the order passed by

the Deputy Director of Vocational Education & Training. It is submitted that

not only were the petitioner's services not regularized with effect from

30.09.1988 till 16.02.1992, but the petitioner also did not possess the training

qualification till his services were confirmed by the respondent nos. 1 and 2

or 16.02.1992. It is submitted that the Deputy Director of Vocational Education

& Training has rightly held that the petitioner was not qualified to hold the

post of Instructor on regular basis on 30.09.1988 and the State Government

had never granted continuity to his services from 30.09.1988. It is submitted

that the respondents had erroneously granted the increments to the petitioner

though the petitioner was not entitled to the same as per the Government

Circular, dated 20.10.1995. The learned Assistant Government Pleader,

however, did not dispute the law laid down by the Hon'ble Supreme Court in

the case of Rafiq Masih (supra) and submitted that an appropriate order may

be passed on the prayer against the recovery. It is submitted that in the

circumstances of the case, the petition is liable to be rejected, insofar as the

claim of the petitioner for reckoning his services with effect from 30.09.1988 is

concerned.

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On hearing the learned counsel for the parties, we find that the

petitioner would not be entitled to seek a direction against the respondents to

grant pensionary benefits to the petitioner by reckoning his services with effect

from 30.09.1988. Admittedly, the petitioner was appointed firstly on

30.09.1988 and thereafter every year, on year-to-year basis, till he was

appointed in the regular vacancy on 16.02.1992. There was some break in the

services of the petitioner every year. Provisional approval was granted to the

appointment of the petitioner from year-to-year basis as, at the relevant time

in the year 1989, 1989 and 1990, the petitioner did not possess the training

qualification. Till the petitioner possessed the training qualification, the

petitioner was not entitled to be appointed as an Instructor on regular basis.

By referring to the Government Circular dated 20.10.1995, the petitioner was

granted some monetary benefits towards increments. In this case, we are not

required to consider whether the petitioner was rightly or wrongly granted

those increments as admittedly the monetary benefits towards increments

were paid to the petitioner nearly ten years before the date of his retirement

from service. It is laid down by the Honourable Supreme Court in the

judgment in the case of Rafiq Masih (supra) that whenever some monetary

benefits are paid to an employee for some time and the grant of the monetary

benefits is not based on misrepresentation of the employee, the employer

would not be entitled to recover the monetary benefits from the employee

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after the retirement of the employee as the recovery of such monetary benefits

would cause undue hardship to the employee. Hence, though the petitioner

would not be entitled to the grant of pensionary benefits by reckoning his

services from 30.09.1988 for counting the qualifying service for grant of

pensionary benefits as the petitioner was temporarily appointed from year to

year basis with break in service and he was not qualified to hold the post, the

petitioner would be entitled to the other relief claimed. The respondents

would not be entitled to recover the amount that was paid to the petitioner

towards increments in pursuance of the Circular dated 20.10.1995, as the said

amount was paid to the petitioner several years before his retirement and it

is sought to be recovered from the petitioner more than four years after his

retirement, by the impugned order dated 21.06.2012.

Hence, for the reasons aforesaid,the Writ Petition is partly allowed. The

impugned order of the Deputy Director of Vocational Education & Training is

modified. The part of the order that rejects the prayer of the petitioner for

considering his services from 30.09.1988 for grant of pensionary benefits

instead of 16.02.1992 is upheld and confirmed. The part of the order of the

Deputy Director of Vocational Education & Training that directs the recovery

of the amount paid to the petitioner towards increments, is hereby quashed

and set aside.

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Rule is made absolute in the aforesaid terms, with no order as to costs.

                        JUDGE                            JUDGE

sahare