Smt. Medha Shripad Ghatnekar vs State Of Maharashtra Through Its ...
2023 Latest Caselaw 2737 Bom

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

                                                      WRIT PETITION NO. 4667 OF 2021

                               Smt. Medha Shripad Ghatnekar,
                               Aged about 67 years, Occ. Nil,
                               R/o. Shubham Apartment,
                               Near Hanuman Temple, Gajanan Peth,
                               Akola.                                                                        ..PETITIONER

                                                                         VERSUS

                      1.       State of Maharashtra,
                               through its Secretary for Urban Development
                               Department, Mumbai.
                      2.       Municipal Commissioner,
                               Akola Municipal Corporation,
                               Akola.
                      3.       Accounts Officer,
                               Akola Municipal Corporation,
                               Akola.
                      4.       Education Officer,
                               Akola Municipal Corporation,
                               Akola.
                      5.       Deputy Director of Education,
                               Amravati Division, Amravati.
Amendment carried     6.       Miss Kavita Dwivedi,
out as per Court's
order dated                    Presently working as
16.11.2022                     Municipal Commissioner/Administrator,
Sd/- C.F.Petitioner
dt/23/11/2022                  Akola Municipal Corporation.                                              ..RESPONDENTS
                      ------------------------------------------------------------------------------------------------------------------
                      Shri S.A.Marathe, Advocate for petitioner.
                      Shri A.S.Fulzele, Additional Government Pleader for respondent nos. 1 and 5.
                      Shri S.V. Sohoni, Advocate for respondent nos. 2 to 4 and 6.
                      ------------------------------------------------------------------------------------------------------------------
                      CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI, JJ.

DATED : 21st MARCH, 2023.

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

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In view of notice for final disposal issued earlier, the writ petition has

been heard finally with consent of the learned counsel for the parties by issuing

Rule and making the same returnable forthwith.

2. The petitioner came to be appointed at the Municipal Corporation

Marathi Girls School by the Akola Municipal Corporation, on 24.02.1994. She was

aged about 43 years when her appointment was made. On completion of the

period of probation, her services came to be confirmed and after considering

service of 15 years and 7 months, she retired on superannuation on 30.09.2009.

Since the petitioner was not paid her pensionary benefits, she had approached this

Court in Writ Petition No.1024 of 2011. By the order dated 11.10.2011 the

Municipal Commissioner, Akola Municipal Corporation was directed to consider the

issue of age relaxation of the petitioner to enable consideration of her prayer for

grant of pension, if her age was relaxed. On 24.11.2011 the Municipal Corporation

through its Administrator passed Resolution No.19 and held the petitioner entitled

to pensionary benefits, gratuity and other admissible service benefits. It was

further stated that approval of the State Government be obtained. On 15.05.2015

the Municipal Corporation forwarded a proposal to the State Government seeking

its approval in the matter of age relaxation of the petitioner. During this period the

petitioner was receiving an amount of Rs.3,572/- towards pension alongwith

Dearness Allowance. On 10.01.2018 the Municipal Commissioner rejected the

petitioner's claim for fixation of amount of pension in view of letter of the

Government dated 21.11.2017. The said order was thus challenged by the

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petitioner in Writ Petition No.5187 of 2018. In the affidavit in reply filed by the

Municipal Corporation, it was stated that since the petitioner had rendered service

which was less than 16 years, she was being given pensionary benefits as per

Clause 5.1 of the Government Resolution Dated 30.10.2009. The said writ petition

was disposed of on 18.02.2020 granting liberty to the petitioner to make a

representation for fixation of her pension as per the recommendations of the Sixth

Pay Commission. Thereafter on 18.03.2021 the Municipal Commissioner passed an

order stating therein that the petitioner was not entitled for age relaxation and for

pensionary benefits. It is in this backdrop that the petitioner has challenged the

order dated 18.03.2021 passed by the Municipal Corporation refusing to grant age

relaxation in the matter of petitioner's appointment and thus grant of pensionary

benefits to the petitioner. During the pendency of the present writ petition, an

order was passed on 23.08.2022 directing the Municipal Commissioner to re-

consider the matter and pass an appropriate order accordingly. On 15.09.2022 the

Municipal Corporation passed an order refusing to regularise the appointment of

the petitioner and grant the petitioner pensionary benefits. By amending the writ

petition, the order dated 16.09.2022 is also under challenge.

3. Shri S.A.Marathe, learned counsel for the petitioner submitted that

initially on 24.11.2011 the Municipal Corporation had passed a Resolution

condoning the age of the petitioner holding her entitled to pensionary benefits.

Though the approval of the State Government was sought by the communication

dated 21.11.2017, the State Government had in clear terms informed the Municipal

Corporation that necessary decision was required to be taken at the level of the

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Municipal Corporation itself and there was no need for seeking approval of the

State Government. In the light of this communication dated 21.11.2017 nothing

further was required to be done by the Municipal Corporation and the petitioner

ought to have been paid her pensionary benefits. The Municipal Corporation had

unnecessarily sought to re-open the matter notwithstanding the Resolution dated

24.11.2011. Merely because this Court had directed the Municipal Commissioner

to re-consider the matter and pass an appropriate order, the same would not mean

that the benefits already granted to the petitioner pursuant to the Resolution dated

24.11.2011 could be withdrawn. It was submitted that by the order dated

15.09.2022 the benefits already received by the petitioner were sought to be

withdrawn which course was not permissible. In this regard, reference was made

to Rule 31 (1) of the Maharashtra Civil Services (Pension) Rules, 1982. The State

Government having directed the Municipal Corporation to take a decision on its

own level and such Resolution already having been passed, it was not permissible

for the Municipal Corporation now to deny the pensionary benefits to the

petitioner. The issue with regard to accepting the date of petitioner's appointment

despite being overage was not liable to be re-opened. It was thus submitted that

the order dated 15.09.2022 was liable to be set aside and the petitioner was

entitled to receive pensionary benefits as before.

4. Shri S. V. Sohoni, learned counsel for the respondent nos. 2 to 4 and 6

supported the stand of the Municipal Corporation. According to him, it was

undisputed that when the petitioner was appointed, her age was 43 years. This was

beyond the maximum permissible age for appointment. Since the petitioner had

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rendered service which was less then 16 years, she was not entitled to any

pensionary benefits. Since there was a direction issued to re-consider the case of

the petitioner, the same was done and on 15.09.2022 the impugned order came to

be passed holding the petitioner ineligible to receive pensionary benefits. On this

count, it was submitted that the petitioner was not entitled to any relief

whatsoever. It was submitted that there was no merit in the writ petition and the

petitioner was not entitled to any relief whatsoever.

5. We have heard the learned counsel for the parties and we have

perused the documents on record. It can be seen from the relevant documents that

the petitioner came to be appointed on 24.11.1994 as a primary teacher with the

Municipal Corporation. Having served for a period of about 15 years and 7 months

she superannuted on 30.09.2009. With the passing of Resolution No.19 on

24.11.2011, the Municipal Corporation approved her appointment notwithstanding

the fact that she was overage when she was appointed. In the said Resolution it

was stated that further approval of the State Government be obtained. The State

Government had on 21.11.2017 made it clear that since the Municipal Corporation

was the appointing authority of the petitioner, it was not necessary for the

appointing authority to obtain the approval of the State Government in this regard.

The matter with regard to accepting the age on appointment of the petitioner ought

to have been closed and the matter ought to have proceeded further in the light of

the Resolution passed by the Municipal Corporation on 24.11.2011. It is only

because the petitioner sought revision of her pensionary benefits since she was

receiving an amount of Rs.3,572/- per month towards pension that the Municipal

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Corporation has sought to re-open the entire matter. Having been appointed about

30 years ago and having superannuated about 15 years ago, there was no

justification whatsoever in again re-opening the entire matter, especially the fact

that the petitioner was overage when she was appointed. We find that the

approach of the Municipal Corporation in this regard unjustified and unbecoming

of an ideal employer. It cannot be lost sight of the fact that when the Resolution

dated 24.11.2011 was passed, it was the Administrator who was managing the

affairs of the Municipal Corporation and it is not the case that for any extraneous

reason such Resolution was passed.

6. It is also to be noted that when this Court on 23.08.2022 required the

Municipal Commissioner to re-visit the issue by prima facie observing that the

revision of the petitioner's pension was not correct, it was clearly implied that the

Municipal Commissioner was called upon to re-visit the issue of payment of the

amount of pension to the petitioner. There was no justification whatsoever on the

part of the Municipal Commissioner in seeking to re-open the entire matter and

thereafter passing the order dated 15.09.2022. In any event with passage of

considerable period of time during which the petitioner did receive partial amount

of pension, the re-opening of the entire matter is unwarranted. It is not the case

that by misrepresentation of material facts the petitioner secured employment

warranting the proceedings to be re-opened. In this context, we may also refer to

the provisions of Rule 110(2)(b) of the Maharashtra Civil Services (Pension) Rules,

1982 that enable the government servant retiring on superannuation before

completing qualifying service of 20 years but after completing the service of 10

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years to receive pension which is calculated at 50% of 'pensionable pay'. We

therefore find that the initial communication dated 18.03.2021 issued by the

Municipal Commissioner of re-considering the proposal for relaxation of the

petitioner's age on her appointment and thereafter grant of all consequential

benefits to be contrary to the Resolution passed by the Municipal Corporation on

24.11.2011. Similarly the impugned communication dated 15.09.2022 denying

benefit to the petitioner is also liable to be set aside on the same ground.

7. Accordingly, the following order is passed:

(i) The communications dated 18.03.2021 and 15.09.2022 issued by the Municipal Commissioner, Akola Municipal Corporation, Akola to the extent benefit is denied to the petitioner are set aside. The last paragraph of the order dated 15.09.2022 shall continue to operate. It is directed that the Municipal Corporation is bound by its Resolution bearing No.19 dated 24.11.2011 and that in view of communication dated 21.11.2017 approval of the State Government is not necessary in this regard.

(ii) The Municipal Corporation shall release the petitioner's pension with revision, as permissible, including arrears thereof within a period of three months from receiving the copy of this order.

(iii) Applicability of Rule 110(2)(b) of the Maharashtra Civil Services (Pension) Rules, 1982 can also be taken into consideration in this regard.

(iv) Rule is made absolute in aforesaid terms with no order as to costs.

           (M.W.CHANDWANI, J.)                            (A.S.CHANDURKAR,J.)

Andurkar