Bombay High Court
Shri Dinkar S/O Raoji Mapari vs Nagar Parishad Lonar Thr. Its Ch. ... on 27 June, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6334/2013
PETITIONER : Shri Dinkar s/o Raoji Mapari
Aged about 63 years, Occu : Retired,
R/o Lonar, Tahsil Lonar, District Buldana.
...VERSUS...
RESPONDENTS : 1. Nagar Parishad, Lonar,
Represented through its Chief Officer,
Tahsil Lonar, District Buldana.
2. Directorate of Nagar Parishad Administration,
Government Transport Service Building,
3rd Floor, Sir Pochkhanwala Marg, Worli,
Mumbai - 400030.
3. State of Maharashtra,
Urban Development Department,
Mantralaya, Mumbai, duly represented through
its Secretary.
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Shri P.S. Sadavarate, Advocate for petitioner
Shri A.P. Kalmegh, Advocate for respondent no.1
Shri H.R. Dhumale, AGP for respondent nos.2 and 3
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 27.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioner seeks a direction against the
respondents to pay the retiral benefits of leave encashment, G.I.S.
amount, gratuity and arrears of pension with interest.
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The petitioner was serving in the Army and retired from the
military services in May, 1987. After his retirement the petitioner was
appointed on the post of Electrical Inspector in the services of the
respondent - Nagar Parishad. The petitioner worked as an Electrical
Inspector with the Nagar Parishad from 28.2.1996 but since the Nagar
Parishad gave technical breaks in his services, the petitioner filed a
complaint before the Industrial Court under the provisions of the M.R.T.U.
and P.U.L.P. Act. The proceedings filed by the petitioner in the year 1997
were compromised between the petitioner and the Nagar Parishad and
the Nagar Parishad decided to regularize the services of the petitioner
w.e.f. 15.5.1997. In terms of the compromise, the petitioner agreed that
he would not claim any monetary benefits prior to the date of the
compromise, that was effected on 1.2.2001. The petitioner continued to
work with the Nagar Parishad till he attained the age of superannuation
in the year 2009. After his superannuation the petitioner sought the
retiral benefits. The Nagar Parishad did not grant some of the retiral
benefits to the petitioner and hence, the petitioner filed a complaint
before the Lok Ayukta. The complaint was decided by the Lok Ayukta on
11.12.2013 and the Nagar Parishad was directed to pay the pension and
the other retiral benefits by reckoning the services of the petitioner with
the Nagar Parishad w.e.f. 15.5.1997 till the date of his retirement on
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28.2.2009. During the pendency of the writ petition, as per the directions
of the Lok Ayukta, the Nagar Parishad has paid the pensionary benefits as
also the other retiral benefits to the petitioner. Since according to the
petitioner, the pension of the petitioner was liable to be fixed in view of
Rule 162 of the Maharashtra Civil Services (Pension) Rules, 1982, the
petition is being prosecuted only in respect of the said relief as the other
retiral benefits sought by the petitioner have been released in his favour.
Shri Sadavarte, the learned Counsel for the petitioner
submitted that in view of Rule 162 (ii) (B) of the Rules of 1982 it was
necessary for the Nagar Parishad to grant the pensionary benefits to the
petitioner without deducting the pension drawn by him for the military
services rendered by him. It is submitted that in case of an employee
below the commissioned officer's rank the entire pension is liable to be
paid. It is submitted that the petitioner would be entitled to both the
pensions in full, that is, the military pension as well as the pension, that
is, liable to be paid to him in view of his services with the Nagar
Parishad.
Shri Dhumale, the learned Assistant Government Pleader
appearing for the respondent nos.2 and 3 opposed the prayer made by the
petitioner. It is submitted that Sub Rule (ii) (B) of Rule 162 of the Rules
of 1982 will not apply to the case of the petitioner as the petitioner has
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not retired before attaining the age of 55 years and has retired on
attaining the age of superannuation. It is submitted that the pension of
the petitioner was rightly fixed by deducting the pension received by him
for the military services. The learned Assistant Government Pleader
sought for the dismissal of the writ petition.
Shri Kalmegh, the learned Counsel for the Nagar Parishad
opposed the prayer made in the writ petition. It is submitted that the
petitioner was not appointed by following the due procedure for selection
and the petitioner was also not qualified for holding the post of Electrical
Inspector. It is submitted that the qualifications required to be possessed
by an Electrical Inspector are S.S.C. and two years diploma course of I.T.I.
and the petitioner does not possess the diploma. It is submitted that as per
the directions of the Lok Ayukta the entire amount that is due and
payable to the petitioner is disbursed to the petitioner and the grievance
of the petitioner should have been redressed on the payment of the said
amount. It is submitted that the petitioner has wrongly relied on the
provisions of Rule 162 (ii) (B) of the Rules of 1982 to claim the entire
pension as the said provision is applicable only in case of the employee
who retire before attaining the age of 55 years.
On hearing the learned Counsel for the parties and on a
perusal of the relevant rules on which the learned Counsel for the
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petitioner has relied on, it appears that the submission made on behalf of
the petitioner that the petitioner would be entitled to entire pension for
both the services is liable to be rejected. Apart from the fact that the
petitioner was not eligible for holding the post of Electrical Inspector as
he was not qualified for holding the same and his appointment was also
not made after following the due procedure of selection, i.e., issuance of
advertisement, inviting all the eligible candidates holding the requisite
qualification (only military persons were called), it is necessary to note
that Rule 162 (ii) (B) of the Rules of 1982 would not apply to the case of
the petitioner at all. Sub Rule (ii) (B) of Rule 162 of the Rules of 1982
would apply only to the cases of the employees that retire before attaining
the age of 55 years. Only such employees who retire before attaining the
age of 55 years and who hold the rank which is lower than the
commissioned officer's rank would be entitled to entire pension, without
deducting the pension received by them in pursuance of their military
services. The petitioner has retired on attaining the age of
superannuation, i.e., 58 years and not before attaining the age of 55
years. Sub Rule (ii) of Rule 162 of the Rules of 1982 would therefore not
apply to the case of the petitioner. Rightly, the respondents had deducted
the pension that is received by the petitioner, in view of his military
services, from the pension, that is, liable to be paid in view of his services
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with the Nagar Parishad. Since the petitioner has only relied on Rule 162
(ii) (B) of the Rules of 1982 in support of his claim for seeking the entire
pension and since the said rule would not apply to the case of the
petitioner, the prayer made by the petitioner for grant of entire pension is
liable to be rejected. We would note that even if the Rule had applied, we
would have considered whether to grant the relief in favour of the
petitioner or not as the petitioner did not possess the requisite
qualification for appointment to the post of Electrical Inspector and the
appointment of the petitioner was not made after following the due
procedure for selection. The Services of the petitioner appears to have
been regularized only in view of the compromise between the Nagar
Parishad and the petitioner.
Since all the other retiral benefits are released in favour of
the petitioner and since the petitioner would not be entitled to the entire
pension as claimed by him in pursuance of the provisions of Rule 162 (ii)
(B) of the Rules of 1982 the petition is liable to be disposed of.
Hence, we dispose of the writ petition with no order as to
costs. Rule stands discharged.
JUDGE JUDGE
Wadkar
