Bombay High Court
Lions Education Society, Through ... vs Presiding Officer, School ... on 5 May, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5863/2014
Lions Education Society,
through its President R.G. Badjatia,
Civil Lines, Washim, Tq. and
Distt. Washim. ..Petitioner.
..Vs..
1. Presiding Officer,
School Tribunal, Amravati.
2. Sau. Nilima Suresh Chepe,
aged 54 Yrs., Occu. Service,
R/o Plot No.46, Gupta Layout,
I.U.D.P. Colony, Near Mahakali
Mandir Road, Washim.
3. Education Officer (Primary),
Zilla Parishad, Washim, Distt.
Washim. ..Respondents.
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Shri A.S. Kilor, Advocate for the petitioner.
Shri Bhagwan M. Lonare, A.G.P. for respondent No.1.
Shri P.R. Agrawal, Advocate for respondent No.2.
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CORAM : Z.A.HAQ, J.
DATE : 5.5.2017.
C.A.W. NO.494/2017.
For the reasons stated in the application, the prayer for early
hearing is granted. The petition is taken up for hearing. The civil application
is allowed accordingly. No costs.
ORAL JUDGMENT
1. Heard Shri A.S. Kilor, Advocate for the petitioner, Shri Bhagwan M.
Lonare, A.G.P. for the respondent No.1 and Shri P.R. Agrawal, Advocate for the
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respondent No.2. None for the respondent No.3 though served.
2. Undisputedly, the respondent No.2 worked in the school
administered by the petitioner - Society since 1984 as an approved Teacher. In
2012 when disciplinary proceedings were initiated against her she was working
as in-charge Headmistress of the school.
Admittedly, the respondent No.2 had submitted an application on
15th January, 2013 proposing to retire voluntarily w.e.f. 15 th April, 2013.
Admittedly, on receipt of this application the enquiry proceedings initiated
against the respondent No.2 were dropped, a resolution was passed by the
Management on 4th February, 2013 to accept the proposal of respondent No.2
for voluntary retirement and the respondent No.2 was informed on 2 nd May,
2013 that her request for voluntary retirement was accepted.
It appears that the petitioner and the respondent No.2 had amicably
decided that if the respondent No.2 opts for voluntary retirement, the
disciplinary proceedings initiated against her would be dropped and the
respondent No.2 would be entitled for all the benefits including pension. It
appears that subsequently a dispute arose between the petitioner and the
respondent No.2 and the respondent No.2 filed an appeal before the School
Tribunal challenging the resolution passed by the Management accepting her
request for voluntary retirement. The substantive ground of challenge was that
there is no provision under the Maharashtra Employees of Private Schools
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(Conditions of Service) Regulation Act, 1977 (for short "Act of 1977") and the
Rules framed under it which enables the Management to permit an employee
to retire voluntarily. The School Tribunal has upheld the challenge of the
respondent No.2 and has allowed the appeal by the impugned order. The
Tribunal has relied on the judgment given in the case of Sukanya Apte and
another V/s. State of Maharashtra and others reported in 2007 (4) Mh.L.J. 318
to hold that the resolution passed by the Management is unsustainable as there
is no provision under the Act of 1977 or the Rules framed under it which
enables the Management to permit the respondent No.2 to retire voluntarily.
3. Before this Court, the petitioner - Society has placed on the record
copy of circular dated 3rd March, 1987 issued by the Government of
Maharashtra by which it is clarified that the provisions of Maharashtra Civil
Services (Pension) Rules, 1982 will be applicable to the employees working in
the recognized and aided schools. Relying on this circular it is argued that it
was permissible for the respondent No.2 to seek voluntary retirement and
accordingly she submitted an application which is considered and accepted by
the Management and the respondent No.2 was informed about it and it was
acted upon and it cannot be said that the decision and the action of the
Management is illegal and unsustainable. It is submitted that the judgments
given in the case of Sukanya Apte and another V/s. State of Maharashtra and
others (supra) and in the case of Ramchandra Keshavrao Deo V/s. Presiding
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Officer, School Tribunal, Nagpur and others reported in 2006 (2) Mh.L.J.862
are not relevant for considering the point which arises in the present matter as
in those cases the decision of the Management to retire the employee
compulsorily was under scrutiny and it was found that there is no provision
under the Act of 1977 and the Rules framed under it and the Management
cannot retire the employee compulsorily. It is submitted that the case of
voluntary retirement stands on completely different footing than the case of
compulsory retirement. It is argued that in case of compulsory retirement it is
a unilateral decision of the Management but in the case of voluntary retirement
the employee proposes to accept retirement and then it is up to the
Management either to accept or reject the proposal of the employee and in case
of voluntary retirement it cannot be said that the decision of the Management
is adverse to the employee.
4. After hearing the learned Advocates for the respective parties and
the learned A.G.P., I find that the circular dated 3 rd March, 1987 makes the
provisions of the Maharashtra Civil Services (Pension) Rules, 1982 applicable
to the employees of recognized and aided non-government schools. Rule 66 of
the Maharashtra Civil Services (Pension) Rules, 1982 entitles the employee to
opt for voluntary retirement and if the employee has completed the qualifying
service he is entitled for the pensionary benefits also. The right of the
employee to opt for voluntary retirement is upheld by the Division Bench of
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this Court in the judgment given in the case of Anandrao Dhondiba Kandalkar
V/s. State of Maharashtra and others reported in 1995 (1) Mh.L.J. 335. The
circular dated 3rd March, 1987 was not referred or relied upon before the
School Tribunal and, therefore, the learned Presiding Officer had no occasion
to examine the controversy in the light of the above referred circular. But the
Tribunal has committed an error in relying on the judgment given in the case of
Sukanya Apte and another V/s. State of Maharashtra and others (cites supra).
As recorded earlier, in the case of Sukanya Apte and another V/s. State of
Maharashtra and others (cites supra) this Court held that the Management has
no right to retire an employee compulsorily as there is no such provision either
in the Act of 1977 or the Rules framed under it and this view is apparently
taken as decision of the Management to retire an employee compulsorily is
against the wishes of the employee and would be detrimental to the employee
but in the case of voluntary retirement, the situation is totally different and the
move is initiated by the employee himself.
In the present case, admittedly the respondent No.2 had submitted
an application proposing to retire voluntarily, the Management passed a
resolution and legality of the resolution is not disputed and the Management
informed the employee about acceptance of her application for voluntary
retirement.
5. In view of the circular dated 3rd March, 2017 the employee is
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entitled to exercise the right seeking voluntary retirement and as it appears
from the record that the respondent No.2 had completed qualifying service, she
would be entitled for the pension and other benefits. The respondent
No.3 - Education Officer had not opposed the claim of the respondent No.2
before the Tribunal regarding her entitlement for pension and other benefits.
The respondent No.3 - Education Officer is not represented before this Court.
There is no legal impediment in granting these benefits to the respondent No.2.
In view of the above, I conclude that the impugned order is
unsustainable and has to be set aside.
6. Hence, the following order:
(i) The impugned order is set aside.
(ii) The appeal filed by the respondent No.2 before the Tribunal is
dismissed.
(iii) It is clarified that the decision of the Management to retire the
respondent No.2 on her request for voluntary retirement is legal and valid and
in view of the circular dated 3 rd March, 1987 and the fact that the respondent
No.2 had completed qualifying service, she is entitled for pension and other
benefits.
(iv) The petitioner - Society is directed to monitor that the Headmaster /
Headmistress of the school sends the case of the respondent No.2 for
finalization of pension and other benefits within two months.
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(v) The respondent No.3 - Education Officer shall finalize the case
within two months from the date of receipt of the papers.
Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
