Shaikh Mushtaque Ahmed ... vs The State Of Maharashtra And Ors
2017 Latest Caselaw 9353 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                     WRIT PETITION NO. 1321 OF 2009


 1.       Shaikh Mushtaque Ahmed Janmohammed
          Age 58 years, occupation - retired teacher
          residing at - 7143, Hatam Pura,
          Ahmednagar - 414 001                       ..    Petitioner
                  versus
 1.       The State of Maharashtra,
          through its Secretary to the Government
          Education and Employment Department,
          Secondary Education Section,
          Mantralaya, Mumbaui - 32


 2.       The Zillha Parishad, Ahmednagar,
          through its Education Officer,
          Secondary Education, having its office
          located opp. Old Bus Stand,
          Ahmednagar


 3.       ATU Chand Sultana Anglo Urdu
          High-School and Junior College,
          Juna Bazar, Church Road,
          Ahmednagar-414 001
          Through its Head Master                  .. Respondents
                  ---
 Mr. G. R. Syed, Advocate for petitioner
 Mr. P. K. Lakhotia, Asstt. Govt.Pleader for respondent no. 1
 Smt. A. N. Ansari, Advocate for respondent no. 3




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                                CORAM :      SUNIL P. DESHMUKH AND
                                             SANGITRAO S. PATIL, JJ.

DATE : 06-12-2017

ORAL JUDGMENT (PER: SUNIL P. DESHMUKH, J.)

1. Heard learned counsel for appearing parties.

2. Petitioner is before the court, challenging validity of

circular dated 10-05-1989 of the Department of Education

and Employment, Government of Maharashtra issued

further to earlier Government Resolutions, clarifying in the

same, authorities vested with powers to condone break in

service for a period of 1/5 th of the admissible qualifying

service of member of teaching and non-teaching staff in

non aided secondary schools, and further purports to

challenge competence of the officer viz; Superintendent,

(Secondary) Salary and Provident Fund Inspection Unit,

Ahmednagar, to make adverse endorsement dated

05-04-2008 on proposal forwarded by management for

condonation of break in petitioner's service.

3. Learned counsel appearing on behalf of petitioner Mr.

G. R. Syed submits that had interruption in service from

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1982 to 1994 been condoned, perhaps petitioner would

have been able to secure more pensionary benefits than

the ones those have been granted to him. He submits that

even otherwise, communication/endorsement dated 05-04-

2008 on proposal by management for condonation of break

in service is untenable, for, that would be in colourable

exercise of power looking at the purport underlying the

government circular dated 10-05-1989 since the power

vests with the officer of the rank of Deputy Director of

Education whereas, communication / endorsement dated

05-04-2008 had been made by the officer of lower rank i.e.

Superintendent and, as such, the same is not in

accordance with provisions of the relevant rules and said

circular. He further purports to challenge validity of the

circular.

4. He submits, the conditions which are purportedly

imposed under circular dated 10-05-1989 are overbearing

and overreaching the purport of the very circular and

adversely affect the cases like that of the petitioner and,

therefore it be declared ultra vires, against logic,

unconstitutional, illegal and unreasonable.

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5. Learned counsel submits that the petitioner had been

appointed as Assistant Teacher in 1973. He had been bed -

ridden for quite a long time, from 1983 to 1994 and, as

such, there was break in his service. He resumed services

in 1994 and continued to work till superannuation in 2008.

6. He submits, having regard to that Maharashtra Civil

Services (Pension) Rules being made applicable to

employees of private schools under the provisions of

Maharashtra Employees of Private Schools (Conditions of

service) Regulation Act, 1977 and as can be gathered from

the decision of this court in the case of Gajraj Mohanlal

Mohabey vs. State of Maharashtra and others, 2003 (1) LJSOFT 96 :

2003 Bom.C.R. 56, petitioner shall receive benefit of

condonation of break in service. The purported

communication / endorsement dated 05-04-2008 issued by

Superintendent (Secondary) pursuant to circular dated

10-05-1989, stating that break period is for a period more

than 1/5th of total admissible service is untenable for want

of authority with him. Deputy Director of Education being

vested with power to condone break in service under the

circular and as such, the purported communication being

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by authority lower in rank than him, refusal to accept

proposal for condonation of break is untenable.

7. Learned counsel submits that the petitioner had not

been well for quite a long period and, as such, it should be

considered that interruption caused in his service had been

for the reasons which were beyond his control.

8. Learned counsel appearing for respondent no. 3 Smt.

A. N. Ansari, however, fairly points out the position, that as

a matter of fact, the petitioner had been terminated from

service in 1982 and in 1994 he had again been appointed

as a fresh candidate. As such, it would not be a case

wherein it can be said that there had been interruption in

service as contemplated under the Pension rules.

9. Besides aforesaid, various conditions as appearing

under the 1989 circular show that the petitioner is seldom

in a position to overcome impediments appearing under

the circular. Even assuming for the sake of argument that

there is interruption, certainly the same is for a period more

than 1/5th of the total admissible / qualifying service. Smt.

Ansari points out that under clause 3 of circular dated

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10-05-1989, various eventualities have been referred to and

petitioner's case is not covered by any of them.

10. Learned Assistant Government Pleader appearing for

respondent no. 1 Mr. P. K. Lakhotia supports the respondent

no. 3 and submits that clearly it is not a case which can be

said to be of interruption in service. He submits, it is not a

case of resumption of service in 1994. There is no question

of condonation of break. As such, the contention of the

petitioner in that respect is not tenable. He further submits

that since the petitioner's case does not fall for

consideration pursuant to relevant rules for condonation of

break, challenge to the validity of the circular dated

10-05-1989 would not be proprietarily correct and is

rendered only academic.

11. Looking at undeniable position that petitioner had

been terminated from service in 1982 and was in 1994

appointed as a fresh candidate, basic requirement for

consideration of this span of 12 years as break in service

would not be available to petitioner. Termination for such a

long period may not be an interruption in service for the

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purpose of Pension rules. Even otherwise, condonation of

such interruption, in accordance with rules, especially sub

rule (2) of rule 48 of the Maharashtra Civil Services

(Pension) Rules, 1982 would not be possible. Said rule

would show, benefit of this condonation would hardly be

available since it would not be treated as part of admissible

qualifying period of service.

12. Rule 48 of Maharashtra Civil Service (Pension) Rules

1982 reads as under:

'' 48. Condition of interruption in service. (1) The appointing authority may, by order, condone interruptions in the service of a Government servant : Provided that-

(a) the interruptions have been caused by reasons beyond the control of the Government servant;

(b) the total service pensionery benefit in respect of which will be lost, is not less than five years duration, excluding one or two interruptions, if any; and

(c) the interruption including two or more interruptions if any, does not exceed one year.

Provided further that, such service of the Government Servant shall be count as qualified service for the purpose of rule 33. ''

2. The period of interruption condoned under sub-rule (1) shall not count as qualifying service.

(3) In the absence of a specific indication to the contrary in the service record, an interruption between two spells of civil service rendered by a Government servant under Government, shall be treated as automatically condoned and the per-interruption service treated as qualifying service.

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          (4)     Nothing in sub-rule (3) shall apply to interruption caused by

resignation, dismissal or removal from service or for participation in a strike.

(5) The period of interruption referred to in sub-rule (3) shall not count as qualifying service. ''

13. In the face of the eventual position that it cannot be

said that there had ever been any interruption in service of

the petitioner since he had been terminated from service

and thereafter had been appointed as a fresh candidate, no

case can be said to have been made out to sustain

challenge to the validity of the circular dated 10-05-1989

and the communication/endorsement dated 05-04-2008 by

Superintendent (Secondary), Salary and Provident Fund

Inspection Unit, refusing to accept the proposal for

condonation of break in petitioner's service, in view of rule

48 of Maharashtra Civil Service (Pension) Rules.

14. Writ petition, as such, fails and is dismissed.

15. Rule is discharged.

 SANGITRAO S. PATIL,                                SUNIL P. DESHMUKH,
     JUDGE                                              JUDGE

 pnd