Bombay High Court
Pratibha Rajendra Wagh vs The State Of Maharashtra And ... on 10 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
910 WRIT PETITION NO.1116 OF 2020
PRATIBHA RAJENDRA WAGH
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Mr V. U. Jadhav, Advocate for petitioner;
Mr P. S. Patil, A.G.P. for respondent Nos.1 & 2;
Mr D. B. Pawar, Advocate for respondent Nos.3 to 5
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 10th August, 2021
PER COURT:
1. We have considered the submissions of the learned
Advocates for the respective parties.
2. This Court had issued notice on 16/01/2020. All the
respondents were served. Respondent Nos.3 to 5 i.e. the Chief
Executive Officer, Zilla Parishad, Aurangabad; the Education
Officer (Primary), Zilla Parishad, Aurangabad and the Deputy
Chief Accounts and Finance Officer, Zilla Parishad, Aurangabad,
did not cause an appearance and did not respond to the notice of
this Court. Therefore, this Court had issued notice for final
disposal on 27/02/2020, with a rider that if these respondents do
not appear, the Court will have to issue a warrant against them. It
is only thereafter, that respondent Nos.3 to 5 have appeared in this
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matter. We would deal with their conduct at the end of this
judgment.
3. The petitioner is a widow, who has untimely lost her
husband, who was an employee as an 'Assistant Teacher' with the
Zilla Parishad School, Aurangabad. He had joined on
16/06/1995. He was selected on a post reserved for the Scheduled
Tribe category. His proposal for validation of his tribe claim was
forwarded by the Zilla Parishad to the Competent Committee on
21/08/2009. His cousin sister had already been granted a tribe
validity certificate.
4. The petitioner's husband died on 12/06/2018 while in
service with the Zilla Parishad Primary School, Sonwadi, Tq.
Kannad, Dist. Aurangabad.
5. On 22/05/2012, the Committee confiscated the tribe
certificate of the deceased husband of the petitioner on the ground
that it was not issued by a Competent Authority in a proper
format. Liberty was granted to the deceased to obtain a fresh
certificate from a Competent Authority and submit a proposal for
validation. The petitioner-widow submits that her deceased
husband did not have the knowledge of this order.
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6. The learned Advocate for respondent Nos.3 to 5 relies upon
a communication dated 01/04/2019, issued by respondent No.5 ,
addressed to respondent No.4, listing out certain deficiencies as a
reason for not clearing the pension papers and, therefore, the
payment of pension has been deferred. The deceased, belonging
to 'Hindu Mahadeo Koli' tribe, had not submitted his tribe
validity certificate, is a ground at Sr. No.2.
7. In the matter of Prakash Fulchand Barwal, since
deceased, through his legal heirs Smt. Shobhabai Prakash
Barwal and others versus the State of Maharashtra and
others, Writ Petition No.3718/1994, this Court delivered an order
on 12/08/2010. It has been noted in paragraph Nos. 4, 5 and 6 as
under :
"4] During pendency of the writ petition, the original
petitioner has died and his legal heirs are brought on
record. Since the original petitioner has already died,
the question regarding his claim of belonging to
scheduled tribe does not arise. The legal heirs of the
original petitioner have restricted the claim in the
present petition only for grant of family pension.
5] The petitioner was originally appointed on
18.7.1988. By virtue of interim order passed in the year
1994, the petitioner was directed to be reinstated. The
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original petitioner has died on 5.12.2003. Considering
the date of appointment of the original petitioner to be
11/18.7.1988, the original petitioner has rendered the
service of more than 15 years. As such the petitioner's
widow would be entitled to the family pension. We
accordingly extend the benefit of family pension to the
widow of the original petitioner i.e. present petitioner
no.1 - Smt.Shobhabai w/o Prakash Barwal.
6] We, therefore, dispose of the writ petition by
directing the respondents to give the benefits of family
pension to the widow of the original petitioner from the
date of his death i.e. 5.12.2003. The said benefit be
extended to the widow of the petitioner namely
Smt.Shobhabai w/o Prakash Barwal within a period of
six months from today along with the arrears. No order
as to costs."
8. We find it quite tragic that the husband of the petitioner had
died on 12/06/2018 and it is a period of more than three years that
the family is running from pillar to post for receiving pension.
The petitioner is a house-maker and lives in Taluka Chalisgaon,
Dist. Jalgaon. She had to file this petition for seeking retiral
benefits which have not been paid to her. It is ironical that
respondent No.5 has addressed respondent No.4, listing out
several deficiencies as grounds for not processing the pension
papers. Both these officers belong to the same department.
Though respondent No.4 has received the letter on 01/04/2019,
there has been no progress on the same.
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9. We have carefully gone through the said communication
dated 01/04/2019. Ground No.2 pertains to the validity
certificate, which is taken care of by the judgment delivered by
this Court in Prakash Fulchand Barwal (supra) and the said
ground no longer remains an obstacle for the grant of pension to
the petitioner. Similarly, ground No.3 is an objection as regards
the deceased, having not passed his computer examination within
a prescribed time limit and hence, the increment that he obtained
on 01/01/2008 till 28/07/2010 is sought to be recovered. The
petitioner is unaware as to whether any specific order for
recovery, has been issued. Nevertheless, keeping in view the law
laid down by the Hon'ble Apex Court in the matters of the State
of Punjab & ors. Vs. Rafiq Masih (White Washer), (2015) 4 SCC
334 and Syed Abdul Qadir Vs. State of Bihar, (2009) 3 SCC
475, an employer cannot recover the said amount from an
employee who is not in service or debit the said amount to the
retiral benefits account. The said ground Nos.2 and 3 set out in
the letter dated 01/04/2019, therefore, stand quashed.
10. In view of the above, this petition is partly allowed. We
direct respondent Nos.4 and 5 to ensure that the deficiencies listed
out in the letter dated 01/04/2019, which are to be removed by
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respondent No.4, shall be so done expeditiously and in any case,
on or before 31/08/2021. Consequentially, the communication
dated 31/03/2019, addressed by respondent No.4 to respondent
No.2 - Committee, would also stand quashed. The objections at
ground Nos.1 and 4 to 10 shall be cured by respondent No.2, as
expeditiously as possible and in any case, on or before
30/09/2021. Thereafter, the pension papers would be processed
and respondent Nos.3 to 5 shall ensure that the payment of
pension to the petitioner along with arrears of unpaid pension
amount and all other retiral benefits are paid, on or before
30/10/2021.
11. If any of the above directions are not complied with, we
would hold respondent Nos.3 to 5 personally responsible for the
disobedience of the order of this Court.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
sjk
