Bombay High Court
Purushottam S/O Sadashiv Gite vs Municipal Corporation, Through ... on 11 October, 2022
Bench: A.S. Chandurkar, M. W. Chandwani
15-J-WP-3075-19 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3075 OF 2019
Purushottam s/o Sadashiv Gite
Aged about 56 years, Occ. Retired,
r/o behind Mukharji Bungalow,
Raut Wadi, Akola,
Tq. and Distt. Akola ... Petitioner
-vs-
1. Municipal Corporation,
Akola, Through its Commissioner,
Off- At Gandhi Road, Akola,
Tq. and Distt. Akola
2. State of Maharashtra,
Through the Secretary,
Urban Development Department,
Mantralaya, Mumbai-32 ... Respondents
Shri C. A. Joshi, Advocate for petitioner.
Dr Anjan De, Advocate for respondent No.1.
Ms Hemlata N. Jaipurkar, Assistant Government Pleader for respondent
No.2.
CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI, JJ.
DATE : October 11, 2022
Oral Judgment : (Per : A. S. Chandurkar, J.)
Rule. Rule made returnable forthwith and heard the learned
counsel for the parties.
At the outset, learned counsel for the petitioner, on instructions,
does not press clause [2] of the writ petition.
15-J-WP-3075-19 2/4
2. The petitioner was serving as Internal Auditor in the Accounts
Department of the Municipal Corporation, Akola. On 02/04/2018 he
gave a notice seeking to voluntarily retire from service with effect from
02/07/2018. The Municipal Corporation through its Additional
Commissioner however passed an order on 29/06/2018 by which it
was stated that the petitioner would superannuate from 30/06/2018.
The petitioner issued various communications raising protest that he
had indicated that he desired to superannuate from 02/07/2018 and
hence the action of accepting his voluntary retirement from
30/06/2018 was illegal. Being aggrieved the petitioner has
challenged the aforesaid action.
3. The learned counsel for the petitioner by relying upon Rule
65(1)(a) of the Maharashtra Civil Services (Pension) Rules, 1982 (for
short, the said Rules) submitted that a government servant/employee
who proposes to retire on completion of qualifying service can give a
notice in writing three months prior to the date of which he desires to
retire. The petitioner gave such notice on 02/04/2018 and indicated
the proposed date of retirement as 02/07/2018. The same ought to
have been accepted by the Municipal Corporation. By retiring the
petitioner from 30/06/2018 the rights of the petitioner have been
affected. The petitioner was deprived of an annual increment by
15-J-WP-3075-19 3/4
directing his voluntary retirement on 30/06/2018. Hence this action
of the Municipal Corporation was illegal.
4. The learned counsel for the Municipal Corporation supported
the action of retiring the petitioner from 30/06/2018. Since the
petitioner's notice was dated 02/04/2018 and the period of 90 days
came to an end on 30/06/2018, the petitioner was rightly retired on
that date. It is further stated that an increment of Rs.520/- would not
be available to the petitioner for this reason. Hence there was no
illegality in the action of the Municipal Corporation.
5. On hearing the learned counsel for the parties we find that the
petitioner's intention behind indicating the date of retirement as
02/07/2018 is to enable the petitioner to receive the annual increment
that becomes due on 1st July every year. Notwithstanding the fact
that the petitioner was to retire from 30/06/2018 as per the Municipal
Corporation, we find that in view of the decision of this Court in
Pandurang Vithobaji Dhumne and ors. vs. State of Maharashtra and
ors. 2022(4) Mh.L.J. 270, the petitioner would be entitled for the
annual increment that became due on 01/07/2018 notwithstanding his
retirement on 30/06/2018. It has been held therein that service
having been rendered for one year prior to that date would entitle such
15-J-WP-3075-19 4/4
employee to receive the annual increment. Since this was the reason
for indicating the date of retirement, we find that even if the stand of
the Municipal Corporation is accepted, the petitioner would be entitled
to receive such annual increment. In these facts therefore we do not
propose to go into the question whether the petitioner was justified in
seeking to indicate his date of retirement as 02/07/2018 by relying
upon Rule 65(1)(a) of the said Rules. That question is kept open.
6. Hence for aforesaid reasons it is held that the petitioner would
be entitled to annual increment that fell due on 01/07/2018
notwithstanding the fact that the petitioner retired from service on
30/06/2018.
The petitioner would be entitled to pensionary benefits in the
light of aforesaid directions.
The pensionary benefits of the petitioner be released within a
period of three months from today.
Rule is made absolute in aforesaid terms with no order as to
costs.
(M. S. Chandwani, J.) (A. S. Chandurkar, J.)
Asmita
Digitally signed byASMITA
ADWAIT BHANDAKKAR
Signing Date:11.10.2022
18:39:05
