Thakurbhai Patel vs Director Of Education & Ors
2017 Latest Caselaw 4295 Bom

                                      1         WP.422/1997-Reserved Judgment

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION

                            WRIT PETITION NO. 422 OF 1997

Thakorbhai Patel                                             ...Petitioner
Residing at Indraprastha
Apartment 2/207,
Rander Road, Mora Bhagal Char Rasta,
Rander, Surat 395 005, Gujrat.
      Vs.
1.  The Deputy Director of Education,
      Greater Mumbai, Mumbai.

2.        Educational Inspector,
          (North Zone), Greater
          Bombay, Churchgate, Mumbai. 

3.        The Accountant General,
          Mantralaya, Mumbai-400 032

4.        State of Maharashtra
          through the Secretary, 
          Department of Education
          and Employment, Mantralaya
          Annexe, Mumbai 400 032.                            ...Respondents


Ms.Saranga Ugalmugle i/by Mr. Mihir Desai, Sr. Advocate for Petitioner
Ms. Uma Palsule-Desai, AGP for Respondent no.4/State.

                                          CORAM:  A.A. SAYED & 
                                                  M.S. KARNIK, JJ.

Date of Reserving the Judgment: 28 TH June, 2017 Date of Pronouncement of Judgment: 11th July, 2017

2 WP.422/1997-Reserved Judgment

JUDGMENT: [PER M.S. KARNIK, J.]

1. The Petitioner, a retired Teacher has filed this Petition

challenging the action on the part of the Respondents in reducing the

period of 15 years from his qualifying service for the purpose of

pension on alleged extraneous grounds. The Petitioner worked in

aided secondary schools as Assistant Teacher in the bilingual and

undivided Bombay State from March 1951 to 1960. From June 1960

up to June 1962 the Petitioner worked in the newly bifurcated Gujarat

State. The Petitioner worked in various secondary aided schools in

Mumbai during the period from June, 1962 to 15 th November, 1990.

The Petitioner has for the purpose of convenience handed over a chart

indicating his service details, which are as follows:

   Sr.        Establishment       Date of joining Date   of  Break 
   No.                                            termination (duration)
   1          Mahadev   Shastri  26.03.1951         25.03.1952           No
              Vidyalaya, Surat 26.03.1952           25.03.1953           No
                                 26.03.1953         04.07.1955           No
   2          M.N.P.   High  21.11.1955             20.11.1956           3½ months
              School   Rander,  21.11.1956          20.11.1957           No
              Surat             21.11.1957          20.11.1958           No
                                21.11.1958          20.11.1959           No
                                21.11.1959          13.06.1960           No





                                           3          WP.422/1997-Reserved Judgment

      3          H.K.   Vakil   High  13.06.1960     12.06.1961           No
                 School,   Bharuch  15.06.1961       10.06.1962           3 days
                 (Gujrat)
      4          Asuea Nutan           11.06.1962    09.06.1963           No
                 VidyaMandir,
                 Malad.
      5          Diamond Jubilee 10.06.1963          09.06.1964           No
                 High   School,  10.06.1964          09.06.1965           No
                 Bombay.         10.06.1965          13.06.1965           No
      6          Seth   G   T   High  14.06.1965     13.06.1966           No
                 School, Bombay
      7          Set   P             T  14.06.1966   13.06.1967           No
                 Vidyalaya,             14.06.1967   08.06.1968           No
                 Bombay
      8          Sai Kabibai High  10.06.1968        07/06/70             No
                 School, Bombay
      9          Nahavaty   Vidya,  08/06/70         11/06/72             No
                 Bombay
      10         Rashtria   Vidya  12/06/72          31.03.1973           3 months
                 Mandir, 
                 Nanachowk, 
                 Bombay
      11         Navbharat Nutan  01/07/73           15.11.1990
                 Vidyalaya, 
                 Mulund

2. On 15th January, 1986 the Education Inspector addressed a letter

to the Head Master of Navbharat School regarding the counting of the

Petitioner's bilingual State service and the services rendered by him in

Gujarat for the purpose of pension. The Petitioner had corresponded

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on 22nd December, 1989, 25th May, 1990, 28th May, 1990 and 30th July,

1990 with the Education Inspector for condonation of the breaks in

service for pension. On 25th November, 1993 the Accountant General

informed the Petitioner about sanctioning his pension. The Petitioner's

continuous service for the purpose of pension is considered for a

period of 24 years and 2 months. According to the Petitioner the

period from 1966 to 15th November 1990 is taken into consideration

for computing the period of 24 years and 2 months.

3. Learned Counsel for the Petitioner submitted that the Petitioner

was appointed in March 1951 in the Aided Secondary School in the

bilingual and undivided Bombay State. According to her the Petitioner

has rendered uninterrupted services initially in the bilingual and

undivided Bombay State and thereafter for 2 years worked in the

bifurcated new Gujarat State. The chart would indicate that after the

Petitioner resigned the H.K.V High School B G on 10th June, 1962 he

immediately joined within 3 days at Asuea N V M Malad on 11 th June,

1962. The Petitioner from 11th June 1962 onwards till his retirement

was working uninterruptedly except for the break of 3 months between

5 WP.422/1997-Reserved Judgment

1st April, 1973 to 30th June 1973. According to the Petitioner from 1 st

July, 1973 to 15th November, 1990 he worked uninterruptedly in the

Navbharat Nutan Vidyalaya, Mulund.

4. The learned Counsel for the Petitioner therefore contends that

the period from 26th March, 1951 should be reckoned as continuous

service for the purpose of pension. In the submission of the learned

Counsel for the Petitioner the record would indicate that atleast from

11th June, 1962 the Petitioner has worked uninterruptedly. Though the

Petitioner has resigned and joined new school after 11 th June 1962,

this cannot be regarded as break in service as the Petitioner has joined

the new school immediately the very next day on being relieved from

the erstwhile school. The Petitioner has thus rendered uninterrupted

service from 11th June, 1962 in Bombay.

5. Learned A.G.P for the Respondent invited our attention to the

affidavit-in-reply filed by Shri Gajanan Vasudev Shahane, Accounts

Officer working in the office of the Deputy Director of the Education.

She invited our attention to the G.R dated 12th November, 1976. The

6 WP.422/1997-Reserved Judgment

relevant portion of the G.R. clause 2 reads thus:

"Clause 2: The number of breaks inclusive of technical breaks should not exceed 10, of which not more than 4 breaks should be due to resignation."

6. According to the learned AGP there are 10 breaks in service out

of which 7 breaks are due to resignation and 3 breaks are due to

termination. In view of Clause 2 the Petitioner was not granted

condonation of break in service. It is in this view of the matter that the

Petitioner's continuous service is considered only for the period of 24

years and 2 months for the purpose of pension.

7. Learned Counsel for the Petitioner invited our attention to the

circular No. PEN/1075/XII dated 15th November, 1975 issued by the

respondent no.4 to support her contention for counting the services in

the State of Gujarat and for including the service in the bilingual

Bombay State for the purpose of pension in respect of teachers retiring

from Non-Government Secondary Schools. The circular dated 15 th

November, 1975 reads thus:

7 WP.422/1997-Reserved Judgment

"CIRCULAR NP. PEN 1075/XII Dated: 15th November, 1975.

Subject: Counting of other State Service Purposes of pension in respect of teachers retiring from Non-Government Secondary Schools.

Whenever proposals for allowing service in schools situated out side the State of Maharashtra (primarily within the jurisdiction of the former C.P & Bearer / M.P., Bombay including Bilingual Bombay and Hyderabad State) are submitted to Government it is required to be certified that -

i) the schools were aided and recognized by the respective States, on the authority of such a certificate from the school duly countersigned by the concerned Education Department authority of present state in which the school is situated;

ii) That he was full time teacher, also on the authority of a certificate with due compliance as in the case of (i) above.

iii) That he was/was not a member of the C.P.F in the said school(s) and in the former case whether management's share and Governments share, if any, was paid to the teacher while leaving the school (in which case it will have to be credited to Government with interest @ 3 ½ % p.a) or

8 WP.422/1997-Reserved Judgment

whether the account was transferred to the school in this state, which he subsequently joined and/or from which he retired and whether the managements share for the service in said schools stands credited to Government.

By order and in the name of the Governor of Maharashtra"

8. In so far as the services rendered in the bilingual Bombay State

and the State of Gujarat up to 10 th June 1962, we are not inclined to

consider counting this period as service for the purpose of pension. We

find that the Petitioner has not pleaded in this Petition about the

fulfillment of the conditions mentioned in the State Circular dated 15 th

November, 1975. There is also no other material to indicate the

fulfillment of the conditions. The Petitioner is therefore not entitled to

claim the benefit of the services rendered from March 1951 up to 12 th

June 1961 for the purpose of pension.

9. In these circumstances we are of the opinion that counting the

period from 11th June 1962 onwards till his retirement (services

rendered in Bombay) for the purpose of pension will meet the ends of

justice. In the facts of the present case we find that the Petitioner

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resigned one school and factually joined the new school on the very

next day. In our opinion this cannot be treated as a break in service for

the purpose of pension. The chart would indicate that the Petitioner is

in continuous service though served in different schools receiving

grant-in-aid. The Petitioner all through out worked in aided secondary

schools and was paid salary accordingly. From 11th June 1962 the

Petitioner has rendered continuous service up to 31 st March 1973.

There appears to be only one break in service for the period of 4

months during the period from 1st April, 1973 to 30th June, 1973.

Thereafter the Petitioner worked continuously from 1st July, 1973 to

15th November, 1990 (date of retirement). In our opinion, as the

Petitioner has rendered continuous service from 11 th June 1962 till 15th

November 1990, except one break during the period 1 st April, 1973 to

30th June 1973, the Respondents therefore are not justified in coming

to the conclusion that there are 10 breaks in service of the Petitioner.

The Petitioner cannot be deprived of the benefit of this continuous

service for the purpose of pension.

10. It cannot be said that there is any break in service for the

10 WP.422/1997-Reserved Judgment

purposes of pensionary benefits as the Petitioner has worked

uninterruptedly but in different schools receiving grant-in-aid. In this

view of the matter the stand of the Respondents that the Petitioner's

case does not fall within clause 2 of the conditions specified in

condition in service for condonation of break in service is unjustified.

According to us therefore the Petitioner's case would squarely fall

under Clause 2 of the G.R. dated 12th November, 1976. Hence,

following order:

ORDER

(a) The Writ Petition is partly allowed.

(b) The Respondents are directed to refix the Petitioner's pension and retiral benefits by counting his service from 11 th June 1962 till the date of his retirement by granting to the Petitioner the benefit of Clause 2 (condonation of break in service) of the said G.R. dated 12th November, 1976 and thereby count the said period for the purpose of pension.

(c) The Respondents are directed to refix the pension of the Petitioner within a period of 3 months from today and the arrears (pension and retiral benefits) may be paid to the

11 WP.422/1997-Reserved Judgment

Petitioner within a period of 3 months from the date of refixation of pension.

(d) The Writ Petition is accordingly disposed of with no orders as to costs.

       (e)           Rule partly made absolute. 




       (M.S. KARNIK, J.)                                         (A.A. SAYED, J.)