Satyawati Chandrakant Tamhankar vs State Of Maharashtra Through Its ...
2021 Latest Caselaw 17961 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.2557 OF 2021

Mrs.Satyawati Chandrakant Tamhankar            .. Petitioner
       Versus
State of Maharashtra & Ors.                    .. Respondents

            ---
Mr.V.S. Talkute for the petitioner.
Mrs.P.N.Diwan, AGP for the respondent nos.1 & 2-State.
            ---
                          CORAM : R.D. DHANUKA AND
                                      R.N.LADDHA, JJ.

                        DATE        : 23rd December 2021

P.C.:-
.               Learned counsel for the petitioner seeks permission to delete

the name of the respondent no.3 from the cause title of the petition.

Amendment to be carried out forthwith. Re-verification is dispensed with.

2. Rule. Learned AGP waives service for the respondent nos.1

& 2-State. By consent of parties, petition is heard finally.

3. By this petition filed under Article 226 of the Constitution

of India, the petitioner seeks writ of mandamus against the respondent

nos.1 & 2 to complete the formalities regarding the grant of pension to

the petitioner expeditiously along with arrears and benefits as per the 6 th

Pay Commission to the petitioner till her retirement.

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4. On 5th July 2003, the petitioner was appointed as a Peon

w.e.f. 16th July 2003 as regular employee on probation at a basic salary

of Rs.2,550/- per month. The services of the petitioner were confirmed on

19th December 2006 w.e.f. 16th July 2005 after completing her two year

probation period. The respondent no.3 addressed a letter to the respondent

no.2 on 30th May 2014 requesting that the petitioner be given the benefit

of the 6th Pay Commission. The respondent no.2 responded to the said

letter vide letter dated 1st October 2014 that there is an objection of the

petitioner being overage at the time of appointment. On 11 th December

2014 , the respondent no.2 addressed a letter to the Director of Education

requesting that a proper order be passed in respect of the issue of overage

of the petitioner.

5. On 30th May 2016, the respondent no.1 addressed a letter to

the Divisional Joint Director of Education requesting that the objection

of overage be condoned in the case of the petitioner and the petitioner

be given the benefits of the 6 th Pay Commission. On 24th July 2016, the

Joint Director of Education addressed a letter to the respondent no.1 - the

Principal Secretary stating that the objection of overage in the case of

the petitioner could not be relaxed. The petitioner retired from services

as a Shipai-Sevika on 31st May 2017. Though the petitioner made various

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representations to the respondents to release the pension to the petitioner,

neither any pension is released nor the benefits of the 6 th Pay Commission

was given to the petitioner.

6. It is the case of the petitioner that at the time of the first

appointment of the petitioner, the petitioner was only 26 year old and

thus the question of there being any overage at the time of appointment

did not arise.

7. Learned counsel for the petitioner invited our attention to

some of the judgments which are annexed at pages 17 to 31 and would

submit that the respondents cannot be allowed to raise an issue of

overage at the fag end of the retirement of the petitioners. No affidavit-

in-reply is filed by the respondents.

8. A perusal of the record indicates that various authorities

have recommended the case of the petitioners for condonation of

overage at the time of appointment.

9. Division Bench of this Court in case of Dilip Krushna

Tadakhe & Ors. Vs. State of Maharashtra & Ors. in Writ Petition

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No.6168 of 2012 has deprecated the practice of the State Government to

raise issue of overage at the time of initial appointment at the stage of

retirement or thereafter while processing the claim for pension.

10. It is held by this Court that when the proposal was forwarded

by the University, the names of the petitioners were included and thus the

State Government cannot be allowed to raise such frivolous and technical

objections in the case of the petitioners at this belated stage.

11. Division Bench of this Court in an unreported judgment

delivered on 2nd May 2017 filed by Shri Ashok Haribhau Sawant Vs.

the State of Maharashtra & Ors. in Writ Petition No.8830 of 2015 has

taken a similar view after adverting to the judgment of the Division bench

of this Court in case of Dilip Krushna Tadakhe & Ors. (supra) and has

directed the State Government to pay pension amount with interest

@10% p.a. after expiry of three months from the date of his

superannuation.

12. In our view, the principles of law laid down by this Court in

the cases of Dilip Krushna Tadakhe & Ors. (supra) and Shri Ashok

Haribhau Sawant (supra) apply to the facts of this case. We are

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respectfully bound by the said judgments. We do not propose to take a

different view in the matter.

13. The appointment of the petitioner was already confirmed

as far back as 19th December 2006. The petitioner stood retired after

about 10 years from the date of confirmation of service of the petitioner

as permanent. The State Government however, did not raise the issue of

overage at the stage of initial appointment of the petitioner while

confirming the appointment of the petitioner and thus cannot be allowed

to raise such issue after retirement to deny the claim for pension.

14. The question whether the petitioner was overage at the time

of appointment could have been gone into by the Education Officer at

the time of approval of the appointment of the petitioner and not at the

time of retirement. The impugned action on the part of the respondents

refusing to pay pension though various recommendations made by

various authorities directing condonation of overage at the time of

appointment is totally illegal, perverse and is contrary to the principles of

law laid down by the this Court in the cases of Dilip Krushna Tadakhe

& Ors. (supra) and Shri Ashok Haribhau Sawant (supra). We are of the

opinion that the petitioner is entitled to payment of pension with interest.

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15.              We accordingly pass the following order :-

(i)     The respondents are directed to release payment of pension and

other pensionary benefits payable to the petitioner within four weeks from today with interest @ 10 % p.a. to be after expiry of three months from the date of her superannuation.

(ii) If the petitioner is entitled to pay benefits on the basis of the recommendations made as per the 6th Pay Commission, the same shall also be considered separately. A separate order in that regard shall be passed by the Deputy Director of Education after considering the representation of the petitioner.

(iii) If the petitioner makes a representation within two weeks from today, the same shall be considered within four weeks from the date of receipt of such representation in accordance with law.

(iv) If any payment is payable as per the 6th Pay Commission to the petitioner, the same shall be paid within two weeks from the date of decision.

(v) If the order is adverse against the petitioner, the petitioner would be at liberty to file appropriate proceedings.

(vi) Writ petition is allowed in aforesaid terms. Rule is made absolute accordingly. No order as to costs.

                 R.N.LADDHA, J                   R.D. DHANUKA, J.