Bombay High Court
Rafiuddin Shahabuddin Inamdar vs The State Of Maharashtra And Ors on 15 December, 2017
Bench: S.C. Dharmadhikari
1
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2924 of 2011.
Shri Rafiuddin Shahabuddin Inamdar
Age 61 years, Occupation:Retired
Residing at :Flat No. 5 & 6, Second Fl
Raja Mahal Society, Sahaney Sujan Park,
Lullanagar, Pune 411 040
since deceased through L.Rs.
1(a) Smt. Rizwana Rafiuddin Inamdar
Age Adult, Occupation: NIL
Residing at :Flat No. 54,
Raja Mahal Society, Sahaney Sujan Park,
Lullanagar, Kondhwa, Pune. Petitioners.
1(b) Shri Shakir Raifuddin Inamdar
age adult, Occupation Service,
Residing at as above.
1(c) Sajeeda Raifuddin Inamdar
aged adult, Occupation Nil,
residing at as above.
Versus.
1) The State of Maharashtra
Through: The Secretary,
Department of Education (High School
Mantralaya, Mumbai.
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2) Dy. Director of Education,
Maharashtra State, Central Building,
Pune 411 001.
3) Education Officer (High School)
Pune Zilla Parishad
Pune 411 001.
4) Head Master,
Moledina High School,
Shankar Shet Road,
Pune 411 037. ..Respondents.
Mr. V.K. More, Advocate for the Petitioner.
Mr. B.V. Samant, AGP for the State.
CORAM : S.C. DHARMADHIKARI &
SMT.BHARATI H.DANGRE, JJ.
th
RESERVED ON : 7
December, 2017.
Pronounced on : 15th December, 2017.
JUDGMENT (Per : Smt. Bharati H.Dangre,J).
1 The petitioner, a retired Assistant Teacher has invoked the
jurisdiction of this Court under Article 226 of the Constitution of
India seeking issuance of writ in the nature of mandamus for
quashing and setting aside the impugned order dated 25 th
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January,2011 passed by Deputy Director of Education, Pune Division,
Pune/Respondent No.2. The petitioner has further sought direction to
respondent No.1 to condone break in service of the petitioner and to
process the pension and gratuity papers in respect of the case of the
petitioner and solicit release of the same. During pendency of the
petition, the petitioner employee expired and his legal heirs have
been brought on record with the leave of this Court. The writ
petition was therefore amended and it is prayed that the family of the
original petitioner be held eligible for family pension and the same
should be disbursed in their favour.
2 The petitioner Raifuddin Inamdar before us was initially
appointed in Janata Vidyalaya, Ruichhattishi, District Ahmednagar
and he served in the said school with effect from 16 th November,
1978 to 3rd August, 1981. He resigned from the said service and he
was appointed as Assistant Teacher in Anglo Urdu Boys High School,
New Modikhana, Pune, where he served from 10 th August, 1981 to
11th June, 1986. During his service in the said school there were three
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breaks in service on account of termination and break of one day as a
technical break. Thereafter, the petitioner was again appointed to the
post of Assistant Teacher In Moledina High School Pune with effect
from 12th June, 1986. He tendered his resignation on 20 th December,
1999 on account of his ill health by surrendering three months pay
in lieu of the period of notice. He was again appointed in Moledina
High School from 1st September, 2001 after break of one year, nine
months and four days. The service of the petitioner in the said school
was approved by the Education Officer (Secondary) Pune vide order
dated 1st April, 2002. The petitioner served in the said school till he
attained the age of superannuation i.e. 30th June, 2008.
The petitioner addressed a representation to the State
Government for condoning the break in his service of one year, nine
months and four days and according to the petitioner it was only the
State Government who was competent to condone the break in
service. The Deputy Director of Education, Pune, however, took up
the case of the petitioner before the State Government for
condonation of breaks in service of the petitioner by addressing
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communication to the Secretary, Education and Sports Department
on 20th October, 2008 forwarding the said proposal to the State
Government in terms of Circular dated 10th May, 1989. No action was
taken on the proposal forwarded to the State Government, which
constrained the petitioner to approach this Court by filing a writ
petition which was numbered as W.P. No.5573 of 2010. The said writ
petition came to be disposed of by this Court on 12 th October, 2010
on the statement made by the learned A.G.P. that the application filed
by the petitioner seeking condonation of break in his service will be
decided by the State Government in accordance with law, as
expeditiously as possible within a period of six weeks. However, the
grievance of the petitioner is that in spite of the said commitment, no
decision was taken by the State Government on the said
representation but Respondent No.2/the Deputy Director of
Education, Pune Division, Pune addressed a communication to the
petitioner on 25th January, 2011 thereby informing the petitioner that
the break in service of the petitioner being of one year and nine
months and four days which is more than one year, in the light of
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condition No. 1 and 4 of Government Resolution dated 12 th
November, 1976 and in view of the fact that break in service was
after 30th September, 1974, the petitioner is not entitled for its
condonation. It is this communication which is impugned in the
present writ petition.
3) The learned counsel for the petitioner Shri V.K. More
invited our attention to the Government Resolution of 10 th May, 1989
and he also placed reliance on a judgment of Division Bench of this
Court (Nagpur Bench) in Writ Petition No. 1015/1999 (Vasant Hiraji
Kadu Vs. State of Maharashtra & Ors) dated 15 th October, 2008.
According to the learned Counsel for the petitioner, the Government
Circular dated 10th May, 1989 sets out the modalities for condoning
the break in service subject to certain terms and conditions and
according to the learned Counsel this Circular makes a reference to
the Government Resolution of 4th November, 1968 and 30th August,
1972 which stipulated certain conditions subject to which the break
in service of the teaching and non-teaching staff of the Non-
Government Secondary School can be condoned. He invited our
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attention to clause No.3 of the said Circular by which it is stipulated
that those cases which are not covered by clause (2) of the
Government Circular, the said proposal should be forwarded to the
State Government. According to the Advocate Shri More, the
petitioner is entitled for condonation of break in service in the light of
the policy of the State Government and the petitioner has been
deprived of the benefit of family pension since the break in service of
the employee has not been condoned and the State Government till
date has not taken any decision.
4) Per contra, the learned A.G.P. Shri Samant invited our
attention to the relevant portion of Government Circular dated 10 th
May, 1989 specifically sub-clause (i) of Clause (3). According to Shri
Samant the Government Circular provides that the proposals not
covered by clause No.2, be forwarded to the State Government and
the powers were conferred on the Secretary of the Department to
condone the break by relaxing the condition in Clause No. (vi) of
Government Circular dated 4th November, 1968 and 30th August,
1972. However, the said powers were to be exercised subject to
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compliance of certain conditions and he invited our attention to the
foremost condition contained in sub clause (I) which mandated that
the break in service of the teaching and non-teaching staff should not
be subsequent to 30th September, 1974 and 31st December, 1975. Shri
Samant vehemently argued that the break in service of the petitioner
was more than one year and he had tendered a resignation from
Moledina High School on 20th December, 1999 thereby forfeiting his
entire service.
According to Shri Samant, the Government had already
refused to condone the service by referring Government Resolution
dated 12th November, 1976 and this decision was brought to the
notice of the petitioner by communication dated 20th October, 2008.
5) We have carefully considered the arguments of learned
counsel of the rival parties and with the assistance of the learned
Counsel, we have perused the documents on record. We can get brief
idea of the service details of the petitioners including the interruption
and the period of break of which he seeks condonation by referring to
the following table which we are extracting from one of the
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representation of the petitioner.
Sr Name of school Period of Period of Total Cause of
No. service. break in service in break in
service. break. service.
1 Janta Vidyalaya 16/11/1978 to 4/8/1981 to 6 Days Resignation
Ruichhatishi 3/8/1981 9/8/1981
taluka District
Ahmednagar
2 Anglo Urdu Boys 10/8/1981 to 1/6/1982 to 14 Days. Due to
High School, 31/5/1982 14/6/1982 termination
Pune-1 of
temporary
service.
3 Anglo Urdu Boys 15/6/1982 to 13/6/1983 to 1 Day. Due to
High School, 12/6/1983 13/6/1986 termination
Pune-1 of
temporary
service.
4 Anglo Urdu Boys 13/6/1984 11/6/1986 00 days. Technical
High School, to 11/6/1986 to break.
Pune-1 12/6/1986
(B.N.)
5 Moledina High 12/6/1986 to 21/12/1999 1 Year 8 Resignation.
Scoool Pune 37 20/12/1999 to months
31/8/2001. 11 days.
6 Moledina High 1/9/2001 to
Scoool Pune 37 30/6/2008.
6) The case of the petitioner was forwarded by the Deputy
Director of Education, Pune to the Secretary, School Education and
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Sports on 20th October, 2008 thereby intimating that there were six
breaks in the services of the petitioner who was appointed in Janata
Vidyalaya, District Ahmednagar and who retired from Moledina High
School, Pune. The Deputy Director of Education, Pune made a
reference to Government Circular dated 10/5/1989 which has been
placed on record as Exh.G. The said Circular makes a reference to
Government Resolution dated 4th November, 1968 and 30th August,
1972 and the provisions contained in the said Government Resolution
stipulates six conditions to be complied before condonation of break
in service namely (i) The total breaks in the service tenure should not
be more than six, (ii) out of said six breaks, not more than three
breaks should be on account of resignation, (iii) The total period of
breaks in service should not exceed more than two years, (iv) Out of
six breaks in service, no period of break in service should exceed 12
months, (v) During the period of break employee should not have
rendered service elsewhere, (vi) The break in service should be of
one or more approved Secondary School.
As per the said Circular dated 10/5/1989 the power to
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condone the break in service is conferred on the Director of
Education and puts an embargo on the powers to be exercised by any
Educational Institution. However, the said Circular also provides that
in case there is no compliance of any of the conditions mentioned
above, such cases should be forwarded to the State Government and
the powers to confer such break in service are vested in the Secretary
of the Department. The power to be exercised by the Secretary was
conferred vide earlier Government Resolutions dated 4 th November,
1968 and 30th August, 1972 subject to the conditions which are spelt
out in Paragraph 7. One of the conditions being that the break in
service of the teaching and non teaching staff should not be after 30th
September, 1974 and 31st December, 1975.
7) The petitioner repeatedly made representation for
condonation of break in service and since one of the break in service
of the petitioner was more than one year eight months and eleven
days, the Deputy Director, Pune Division Pune forwarded the
proposal of the petitioner requesting to condone the break in service
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of the petitioner to the State Government. The inaction on the part
of the respondent/State Government constrained the petitioner to
approach this Court by filing the writ petition No. 5573 of 2010
which came to be disposed of by this Court on 12th October, 2010, on
statement being made by the learned AGP that the representations of
the petitioner dated 1st March, 2008 and 19th March, 2009 seeking
condonation of break in service will be decided by the State
Government within a period of six weeks from 12th October, 2010. In
view of the said statement, the petitioner withdrew the writ petition
filed by him. The petitioner was intimated by the Deputy Director of
Education, Pune Division Pune to remain present for hearing in the
office on 28th December, 2010 for compliance with the directions of
this Court. The petitioner, thereafter, made repeated request to the
authorities to take a decision on his grievance and ultimately it was
on 25th January, 2011, the Deputy Director of Pune Division Pune
issued the impugned communication intimating the petitioner that
the break in service of the petitioner was after 30 th September, 1974
and since there was no compliance of condition No.1 and 4 of the
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Government Resolution dated 12th November, 1976 and the period of
break in service being more than one year, it was not entitled to be
condoned.
8) In our view, the said impugned order is not sustainable on
more than one count. Firstly, it is to be noted that this Court in Writ
Petition filed by the petitioner has recorded the statement of learned
A.G.P. made on behalf of the Government that the decision as regards
the break in service of the petitioner will be decided by the State
Government and in fact the proposal of the petitioner was forwarded
to the State Government by the Deputy Director, Pune Division Pune
in the light of Circular dated 10th May, 1989 which authorizes the
State Government to take a decision of condoning break in service
since period of break was more than one year. The Respondent
authorities were alive to the fact that the said decision was to be
taken by the State Government but instead the Deputy Director Pune
Division Pune conducted hearing in compliance of directions issued
by this Court on 26th October, 2010 and passed the impugned order
on 10th January, 2011. The said impugned order therefore violates the
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policy of the State Government as contained in the Government
Circular dated 10th May, 1989. The said order is also not sustainable
further on the ground that it has refused to condone the break in
service of the petitioner on the ground that the break in service is
after 30th September, 1974 and in terms of the Government
Resolution dated 12th November, 1976, the break in service cannot be
condoned if it is after 30th September, 1974 and 30th December, 1975.
Our attention was invited to order of Division Bench of this Court
(Nagpur Bench) in Writ Petition No. 1015 of 1999 on 15 th October,
2008 wherein somewhat an identical issue was involved and the
Court (Coram :K.J.Rohee & Prasanna B.Varale,JJ) had an opportunity
to deal with the conditions contained in Government Resolution
dated 12th November, 1976. The Court observed as follows :
8. "Shri Mohgaonkar also invited our attention to
Appendix A which is an Accompaniment of
Government Resolution, Education Youth
Services Department No. PEN-1076-81126(1491)
XII dated 12.11.1976 which provides that breaks
after 30.9.1974 in respect of teachers should not
be condoned. The cut-off date prescribed by the
State for condoning the break in service is wholly
irrational and it results in discrimination between
the employees and it has no nexus with the
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object sought to be achieved by the pension
scheme. Perhaps that is why by Circular No.
PEN-1088/120973(582)/Sec.Edu.6 dated
10.5.1989 the Secretary of Department of
Education was empowered to condone the breaks
in services of teachers even after 30.9.1074".
The Division Bench allowed the writ petition by
condoning the break in service with observation that the State was
not justified in refusing to condone the break in service depriving of
benefits of all along the service and such decision is against public
policy.
9) In the light of the aforesaid facts, the impugned order
cannot be sustained and needs to be set aside and is therefore set
aside. The break in service of the petitioner is to be considered by the
State Government in terms of the Policy of the State Government as
contained in Government Circular dated 10th May, 1989. The matter
is remanded to the State Government to take a decision on the
communication dated 20th October, 2008 forwarded by the Deputy
Director of Education, Pune to the State Government and we direct
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the State Government to take a decision within a period of six weeks
from today, particularly, in view of the fact that the Family of the
Petitioner is deprived of Family Pension since the entire service
rendered by the petitioner has not been held entitled for pension. The
break in service of the petitioner has not been condoned by the
respondent authorities, in spite of rendering 30 years of service.
10) Writ petition is partly allowed. Respondent No.1 - State
Government to take decision on the proposal of Deputy Director,
Education, Pune dated 20th October, 2008 as regards condonation of
break in service of the petitioner within a period of six weeks and
communicate the same to the petitioners on record.
11) Writ petition is disposed of in terms of above order. No
order as to costs.
[SMT.BHARATI H.DANGRE, J.] [S.C. DHARMADHIKARI, J.]
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