Janardhan S/O Pundlik Raut vs Swami Vivekanand Shikshan ...
2022 Latest Caselaw 3008 Bom

                                         1               WP 7808.19.odt



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

            WRIT PETITION NO. 7808 OF 2019


Janardhan s/o Pundlik Raut,
Aged about 70 years,
Occupation-Nil,
R/o. Malsur, Tah. Patur,
Dist.Akola.                                  ..     Petitioner


                         .. Versus ..


1) Swami Vivekanand Shikshan
   Prasarak Mandal, Malsur,
   Tah. Patur, Dist. Akola, through
   its President.

2) The Education Officer (Secondary),
   Zilla Parishad, Akola, Tah. & Dist.
   Akola.

3) The Head Master,
   Ramsingh Munssing Naik Vidyalaya,
   Malsur, Tah. Patur, Distt. Akola.         ..   Respondents



               ..........
Shri S.T. Harkare, Advocate for the petitioner,
Shri M.R. Deshmukh, Advocate h/f Shri S. Zia Qazi, Advocate for
respondent nos.1 and 3,
Shri Neeraj Patil, Assistant Government Pleader for respondent
no.2/State.
               ..........

       CORAM : A.S. CHANDURKAR AND SMT. M.S. JAWALKAR, JJ.
       DATED : 28.03.2022.
                                              2                   WP 7808.19.odt



ORAL JUDGMENT (Per : A.S. Chandurkar, J.)



               Rule. Rule made returnable forthwith. Heard the learned

counsel for the parties.

2.             In this Writ Petition the petitioner has challenged the

communication dated 20.02.2017 that has been issued by the respondent

no.3-Head Master holding the petitioner ineligible for receiving

pensionary benefits. Along with such challenge, the petitioner has also

challenged to the order of termination dated 25.04.1997 and has sought

payment of back-wages consequent upon such order of termination being

set aside.

3.             It is submitted by the learned counsel for the petitioner

that Writ Petition No.6037/2014 was filed by another employee in which

this Court on 21.11.2014 observed that the said petitioner would not be

entitled to seek any pensionary benefits. Relying upon that adjudication,

the present petitioner has been held not entitled for pensionary benefits.

It is submitted that the petitioner was not a party to Writ Petition

No.6037/2014 and therefore that adjudication cannot be applied to the

petitioner. The Education Officer (R-2), being the Competent Authority

to adjudicate the entitlement to pension, that Officer may be directed to

consider the petitioner's claim.
                                               3                     WP 7808.19.odt



4.             On behalf of the respondent nos.1 and 3 request is made

by the learned counsel that as Shri S. Zia Qazi, Advocate is unavailable,

time may be granted.

5.             We have, however, perused the reply filed on behalf of the

respondent nos.1 and 3. In that reply, it has been stated that with regard

to the challenge to the order of termination is concerned, the petitioner

had filed Writ Petition No.4855/2014 raising with similar challenge and

that writ petition was dismissed on 22.11.2016 by observing that if

otherwise the petitioner would be entitled to post-retiral benefits in

accordance with law, he would be entitled to receive the same. It is

further stated in the reply that the petitioner is not entitled to pensionary

benefits.

6.             At the outset, it may be stated that the prayer for challenge

the order of termination dated 25.04.1997 is covered by the order passed

in Writ Petition No.4855/2014 and hence that prayer cannot be

considered in this writ petition. We however find that Writ Petition

No.6037/2014 was not filed by the petitioner. Hence, that adjudication

could not have been applied in the case of the petitioner as has been done

by the impugned communication dated 20.02.2017 issued by the

respondent no.3. This Court in Writ Petition No.4855/2014 has

observed that the entitlement of the petitioner to post-retiral benefits is a

matter to be considered in accordance with law.
                                                                           4                    WP 7808.19.odt




                           7.               In that view of the matter, the communication dated

                           20.02.2017 would be applicable only to the petitioner in Writ Petition

                           No.6037/2014. The said could not have been applied to the present

                           petitioner in absence of any adjudication as regards his pensionary

                           benefits. In view of aforesaid, the following order is passed :

                                                        ORDER

(i) It is held that the communication dated 20.02.2017 issued by

the Head Master would not be applicable to the case of the petitioner.

(ii) The Head Master (R-3) shall forward all the relevant papers of

the petitioner to the Education Officer (Secondary), Zilla Parishad, Akola

(R-2) within a period of six weeks from today to enable the Education

Officer to consider the entitlement of the petitioner to the pensionary

benefits.

(iii) The Education Officer shall, within a further period of six weeks,

take a decision on the proposal of the petitioner for grant of pensionary

benefits. The entitlement shall be decided in accordance with law and

the decision taken shall be communicated to the parties.

(iv) Rule is made absolute in aforesaid terms. No costs.

[SMT. M.S. JAWALKAR, J.] [A.S. CHANDURKAR, J.] Signed By:ABHIMANYU SHANKARRAO GULANDE Gulande Private Secretary High Court Nagpur Signing Date:28.03.2022 18:29