Ku. Durga Shriram Kamthe, Now Sou. ... vs The Education Officer (Primary) ...
2022 Latest Caselaw 13051 Bom

                                                    1                      wp1991.20.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                        WRIT PETITION NO.1991/2020

    Ku. Durga Shriram Kamthe,
    Now Durga Digambar Gaidhane,
    Aged about 58 years, Occ. Service,
    R/o Second Dal Oli, in front of
    Hanuman Mandir, Kamptee,
    District Nagpur.                                         .....PETITIONER
                     ...V E R S U S...

1. The Education Officer (Primary)
   Zilla Parishad, Nagpur.

2. The Deputy Director of Education,
   Nagpur Division, Nagpur.

3. The Accountant General (Accounts
   & Establishment), Pension Wing,
   Old Building, Civil Lines, Nagpur
   through its Senior Accounts Officer.

4. Modi Club, Kamptee (Pradnyapeeth
   Convent), through its Secretary,
   Advocate Shri Ramesh Kothade,
   Mahatma Fule Audyogik Prashikshan
   Sanstha, Manewada Chowk, Near
   Gas Petrol Pump, Nagpur.

5. The Director of Education (Primary)
   State of Maharashtra, Pune.                               ...RESPONDENTS

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Mr. A. Z. Jibhkate, Advocate for petitioner.
Mr. Shaikh Majid, Advocate for respondent no.1.
Ms N. P. Mehta, A.G.P. for respondent nos.2, 3 and 5.
Mr. S. S. Joshi, Advocate for respondent no.4.
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CORAM:- A. S. CHANDURKAR & ANIL L. PANSARE, JJ.

DATED :- 15.12.2022 2 wp1991.20.odt

ORAL JUDGMENT (Per: Anil L. Pansare, J.)

Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for the parties.

2. The petitioner has put forth following substantive

prayers:

"(i) Direct respondent No.1 i.e. Education Officer (Primary), Zilla Parishad, Nagpur and respondent No.2 i.e. Deputy Director of Education, Nagpur Region, Nagpur to forward regular pension case papers to the Respondent No.3 i.e. Accountant General (Accounts & Establishment), Pension Wing, Nagpur on submission of the same by the petitioner by fixing the pension of the Petitioner as per Rules showing the date of retirement as 31/07/2020 or at any rate 30/04/2013 when the school was closed, within stipulated period and on receipt of the same direct the Respondent No.3 i.e. Accountant General, (Accounts & Establishment), Pension Wing, Nagpur to sanction the pension of the Petitioner and release retirement benefits within stipulated period, by suitable and appropriate writ or directions.

(ii) Further be pleased to direct the Respondents to make payment of amount of pension, gratuity and all other retiremental benefits including contribution by State in G.P.F. along with interest thereof at the rate of 12% per annum, by a suitable and appropriate writ or directions.

(iii) Further be pleased to quash and set aside the order dated 15/11/2017 (Annexure No.11) passed by the Respondent No.1 i.e. Education Officer (Primary), Zilla 3 wp1991.20.odt

Parishad, Nagpur by a suitable and appropriate writ or directions.

(iv) Kindly direct the Respondent Nos. 1, 2 & 5 to release unpaid salary of the Petitioner from 01/05/2013 till the date of her superannuation i.e. 31/07/2020, by a suitable and appropriate writ or directions."

3. It is the case of the petitioner that she being

professionally and academically qualified and suitable to the post

of Assistant Teacher, the respondent no.4 -Management appointed

her on clear sanctioned vacant post of Primary Teacher with effect

from 01.07.1988 and continued her services. The school was

admitted for grant-in-aid vide order 20.07.1990, 50% grant from

01.07.1988 and 100% grant from 1991 onwards.

4. The respondent no.1 - Education Officer granted

approval for the period from 01.10.1988 to 30.04.1989 and

thereafter from 01.05.1990 onwards. As such, the petitioner

worked on sanctioned vacant post of Assistant Teacher (Primary).

The respondent no.1 withdrawn recognition of the school with

effect from 30.04.2013 vide order dated 31.07.2012. The Deputy

Director of Education, while exercising appellate jurisdiction under

the Bombay Primary School Act, 1949 granted permission to run

and administer the school for the academic session 2013-14 vide

order dated 14.03.2013. However, the Education Officer did not 4 wp1991.20.odt

permit the management and the teachers to run and administer

the school for the academic session 2013-14 and passed the orders

contrary to the order passed by the Deputy Director of Education.

5. Further, out of the two approved teachers working in

the school run by the respondent no.4, the respondent no.1 did

not take steps to process the case of the petitioner for absorption

though there were vacancies in the various primary schools. The

respondent no.1 however processed the case of another teacher for

absorption. As a result thereof the petitioner remained without

salary from 01.05.2013. The respondent no.1 refused to accept

the pension case papers of the petitioner for grant of regular

pension, gratuity and other retiral benefits and vide order dated

15.11.2017 ordered the petitioner to submit proposal for

compensation pension holding therein that regular pension is not

payable to the teacher whose services have been terminated under

Rule 25(A) of Maharashtra Employees of Private Schools

(Condition of Service) Rules, 1981 (For short, the "Rules of

1981").

6. The petitioner has drawn our attention to the impugned

order dated 15.11.2017. The pensionary benefits have been

denied to the petitioner by relying upon Rule 25 (A) of the Rules

of 1981 read with Rule 45 of Maharashtra Civil Services (Pension) 5 wp1991.20.odt

Rules, 1982 (For short, the "Pension Rules, 1982"). Further, the

respondent no.1 has directed the respondent no.4 - Education

Society to submit the proposal for compensation pension in terms

of Rule 81 (a) of the Pension Rules, 1982.

7. Mr. Jibhkate, learned counsel for the petitioner, on

instructions, submits that the petitioner is not pressing for orders

to release unpaid salary from 01.05.2013 till 31.07.2020. He

further submits that the petitioner is restricting her claim to the

pensionary benefits only. According to Mr. Jibhkate, the petitioner

having put in pensionable service of more than 20 years, the

respondents could not have denied pensionary benefits to the

petitioner, particularly when there is nothing on record to show

that the school under question has been de-recognized for the fault

attributable to the petitioner.

8. Mr. Majid, learned counsel for the respondent no.1,

submits that there is no dispute that the petitioner was duly

qualified and was working with the respondent no.4 till the date of

closure and de-recognition of the school. He further submits that

respondent no.1 issued order dated 26.03.2013 whereby

recognition of the respondent no.4 has been withdrawn with effect

from 30.04.2013 for the irregularities, deficiencies which

disentitled the school to recognition. According to him, the 6 wp1991.20.odt

petitioner is alone responsible for closure of the school due to

de-recognition. The services of the petitioner, therefore stands

terminated in terms of Rule 25(A) of the Rules of 1981. He

further submits the petitioner was not entitled for absorption

under Rule 26(2) of the Rules of 1981. Consequently, in terms of

Rule 45 of the Pension Rules, 1982, her services are forfeited and

she no longer has right to claim pensionary benefits. He has then

drawn our attention to the show cause notice dated 05.08.2013,

issued by the Secretary of the respondent no.4 to the petitioner

thereby holding her responsible for de-recognition of the school.

Accordingly, he supported the impugned order.

9. Ms Mehta, learned Assistant Government Pleader for

the respondent nos.2, 3 and 5, has supported the impugned order.

According to her, the school run by the respondent no.4 was

derecognized solely because of the lapses committed by the

petitioner. Accordingly, the services of the petitioner stood

terminated in terms of rule 25A and that therefore the petitioner is

not entitled for pensionary benefits.

10. During the course of arguments Mr. Jibhkate, has

referred to letter dated 08.02.2018 issued by the respondent no.2

in favour of the respondent no.1, by which the respondent no.2

sought report from the respondent no.1, by referring to letter 7 wp1991.20.odt

dated 28.03.2016 recommending absorption of petitioner in other

school in terms of of Rule 26 (2) of the Rules of 1981. Thus,

according to him, the case of the petitioner for absorption was

considered, which impliedly indicates that the petitioner was not

responsible for the de-recognition of the school.

11. Learned A.G.P. in response, submits that the

communication is inadvertently issued and is, in any case, contrary

to the provisions of the Rules, 1981.

12. Having considered the rival submissions, the

controversy appears to revolve around Rule 25A of the Rules of

1981 and Rule 45 of the Pension Rules, 1982. Rule 25A of the

Rules of 1981 reads thus:

"25A. Termination of Service on account of abolition of posts.

(1) The services of permanent employee may be terminated by the Management on account of abolition of posts due to closure of the school after giving him advance intimation of three months to the effect that in the event of closure of the school his services shall be automatically stand terminated. In the case of closure of school due to de-recognition, such advance intimation of three months shall be given by the management to the permanent employees after receipt of a show cause notice from Deputy Director.

Explanation: For the purposes of this subrule, the expression 'closure of the school' shall include -

(i) Voluntary closure by the management of the entire School if it is imparting instruction through one medium 8 wp1991.20.odt

or a part of the school comprising one or more media of instruction if it is imparting instruction through more than one medium; and

(ii) closure of the school due to de-recognition by the Department.

(2) The names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) on account of de-recognition and who are not directly responsible for such de-recognition shall be taken on a waiting list by the Education Officer in the case of primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior college of Education and same shall be recommended by him to the managements of newly opened aided Schools or of the existing aided schools which are allowed to open additional Division or classes for consideration."

Rule 45 of the Pension Rules, 1982 reads thus:

"45. Forfeiture of service on dismissal or removal. Dismissal or removal of a Government servant from a service or post entails forfeiture of his past service."

13. Bare reading of Rule 25A indicates that there is clear

mandate to issue three month's advance notice to the permanent

employee, if he has to be terminated by management on account

of abolition of post due to closure of the school. It further

provides that in case of closure of school due to de-recognition,

such advance intimation shall be given by the management to the

terminated employee after receipt of show cause notice from the

Deputy Director.

9 wp1991.20.odt

14. We were not shown the show cause notice issued by the

respondent no.2 to the respondent no.4 nor is the notice issued to

the petitioner been shown to us. Sub Section (2) of Rule 25A,

provides that if the service of an employee is so terminated on

account of de-recognition and if the employee is not directly

responsible for such a de-recognition he shall be taken on wait-list

by the Education Officer or the Deputy Director, as the case may

be and that the same shall be recommended by him to the

management of newly opened aided school. The letter dated

18.02.2019 shows that the name of the petitioner was

recommended for absorption, meaning thereby that the petitioner

was not responsible for de-recognition of the school.

15. The learned A.G.P. has argued that the issuance of

letter is contrary to the provisions of the Rules of 1981. This

argument is based on the presumption that the petitioner is

responsible for de-recognition of the school. On this point, our

attention was drawn to the show cause notice issued by the

respondent no.4 to the petitioner, calling upon her to explain

within three days as to why action should not be taken against her.

16. Mr. Jibhkate has drawn our attention to the letter dated

25.05.2015 issued by the respondent no.4 to the respondent no.1.

The letter records the fact that the petitioner has handed over 10 wp1991.20.odt

entire record to the respondent no.4 and therefore the respondent

no.4 has no objection if the petitioner is given reappointment in

the aided school.

17. The documents placed before us thus do not

substantiate the stand taken by the respondents that the petitioner

is responsible for de-recognition/closure of the school. The

respondents have not placed before us the show cause notice

issued by the Deputy Director to the Management as required

under Rule 25A (1) nor is the advance notice issued to the

petitioner by the respondent no.4, placed before us to show

compliance of Rule 25A(1).

18. Resultantly, what transpires is that the petitioner has

rendered pensionable services as she was appointed on 01.07.1988

and the de-recognition came into force with effect from

30.04.2013. Thus, she has put in more than 20 years of service

and, therefore, she will be entitled to the pensionary benefits.

19. The respondents have erroneously invoked the

provisions of Rule 25A of the Rules of 1981 and Rule 45 of the

Pension Rules, 1982. The impugned action is, therefore, contrary

to the Rules of 1981 and Pension Rules of 1982. The action of the

respondents, withholding the pensionary benefits to the petitioner, 11 wp1991.20.odt

therefore, does not stand the scrutiny of law. The petitioner has

made out a case to that effect. We, therefore, proceed to pass the

following order.

20. The writ petition is hereby allowed.

The respondents are directed to process the regular

pension case papers of the petitioner, treating the date of her

retirement as 30.04.2013.

The respondents are directed to make payment of

amount of her pension, gratuity and all other retiremental benefits

accordingly, as expeditiously as possible and in any case on or

before 31.03.2023.

Rule is made absolute in the above terms. No order as

to costs.

(Anil L. Pansare, J.) (A. S. Chandurkar, J.)

kahale

Digitally signed byYOGESH ARVIND KAHALE Signing Date:15.12.2022 14:27