Jayram Baburao More vs State Of Maharashtra Thr ...
2023 Latest Caselaw 11616 Bom

 Tauseef                                                        905-WP.3753.2023.doc


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO.3753 OF 2023

 Jayram Baburao More                             ...Petitioner
             Versus
 State of Maharashtra,
 through the Secretary & Ors.                    ...Respondents

                                      ********

Mr. Vaibhav Kulkarni for the Petitioner.

Ms. P. J. Gavhane, AGP for the Respondent (State).

Dr. Rajendra Anbhule for Respondent No.4.

Mr. Keshav Tupe, Joint Director of Higher Education, Pune.

                                      ********
                               CORAM :      G. S. KULKARNI,
                                            JITENDRA JAIN, J.J.
                               DATE    :    9th NOVEMBER, 2023.

 P.C.

 .            We have heard Mr. Vaibhav Kulkarni, learned counsel for the

Petitioner, Ms. P. J. Gavhane, learned AGP for the Respondent (State),

Dr. Rajendra Anbhule for Respondent No.4 and Mr. Keshav Tupe, Joint

Director of Higher Education, Pune joined online.

2. Mr. Tupe is very fair to tell us that immediately the necessary

steps can be taken to process the pension proposal of the Petitioner, who

has retired as a Coolie from his long service with the University of Pune-

Respondent No.4, stated to be service of almost 30 years. We have with

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the assistance of the learned counsel for the parties, we have perused

the records. We find that the appointment of the Petitioner itself

although was on a daily wages basis was of the year 1983. He was

continued in service thereafter and regularly appointed. Also approval

was granted even by the Education Department. He has drawn salary

on a regular pay scale as awarded to him. It appears that he also

received one promotion before he could retire on 31 st May 2021. There

are also documents to show that his performance he was exemplary, he

was also granted certain meddles for his dedicated service with the

Pune University.

3. It appears from the record that the proposal for the

Petitioner's pension on his retirement was forwarded by the Pune

University to the office of the Joint Director and also to the Principal

Secretary, Higher and Technical Education Department, with all

supporting documents. It is seen from the letter of Pune University

dated 14th December 2021, which itself was a detailed letter/proposal

along with all the documents. However, responding to such letter, Dr.

Kirankumar Bondar, Joint Director at the relevant time addressed a

letter dated 21st February 2022 and thereafter, letter dated 16 th June

2022 which in our opinion appears to be quite an insensitive and an

arbitrary approach on the part of the said officer. From the said

communication, as addressed to the Pune University, it appears that

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there was total non-application of mind, in regard to the tenure of the

service as rendered by the Petitioner and his entitlement, being a

permanent employee of the University to be awarded the pension, on

his retirement. The Petitioner has suffered for 3 years as his pension

proposal was entangled into enders communication between Dr.

Kirankumar Bondar and repeated satisfaction of Dr. Bondar's queries by

the University. In the previous order passed by us, we have expressed

our pain and anguish on such approach of the said officer.

4. Learned counsel for the Petitioner has also drawn our

attention to similar situation which had reached this Court in the case

of Dilip Krushna Tadakhe & Ors. Vs. State of Maharashtra & Ors. in Writ

Petition No.6168 of 2022 decided on 17th December 2013, in which the

Court considering the Government Resolutions and similar situation as

observed that the Government Resolutions were applicable and if there

were any issues in regard to the employee being over age. The present

case appears to be quite clear as already the age issue was condoned as

the Government itself had recognised the entitlement of the Petitioner

to continue in the service of the University and for which the University

was awarded the appropriate grants. In the said decision as noted by us

above, the Court in the circumstances had made the following

observations in paragraph nos.2 and 3.

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"2. On the earlier occasion, we called upon the Joint Director, Higher Education, Pune Region, Pune to take a decision as to how the petitioners are disentitled to pensionary benefits. The Joint Director, Higher Education has now placed on record a communication and in which she fairly states that the petitioner No.1 and petitioner No.2 have been appointed by the Pune University, although they did not qualify in terms of the requirement of age. Yet, this is a peculiar case, when petitioner No.1 belongs to a Scheduled Caste (namely Hindu Matang) and petitioner No.2 is a Hindu Teli. There was a specific Government Resolution which empowered condoning the requirement of age and in cases of over age candidates, who have put in otherwise meritorious and blemish-less services. That requirement can be dispensed with and pensionary benefits can be released. The Joint Director has taken a decision in terms of the Government Resolution dated 18 th March, 2011 and has forwarded the proposal dated 7th June, 2011 and 17th June, 2011. Thus both candidates have been held to be entitled to draw pension after the deficiency in their initial appointment is condoned.

3. We do not see how such issues can be raised at this belated stage. The petitioners have crossed the retirement age and are requesting that pensionary benefits on par with other employees he made admissible to them and amounts be released. When the proposal was forwarded by the University, the names of both petitioners were included. In these circumstances, we do not see the State raising such frivolous and technical objections in case of these petitioners. However, now that the Joint Director has taken corrective steps, we do not wish to issue any direction and particularly for payment of costs individually by the Director. In the peculiar facts and circumstances and by warning that in the event such issues are raised in cases of Class-IV employees and at belated stage, the Court will pass orders imposing cost and personally to be paid by higher officials, that we direct that within a period of two weeks from today, the University shall forward a fresh proposal in addition to one already forwarded and with particular reference to the two petitioners. On receipt of the said proposal, the respondent Nos.1 and 2 shall take all necessary steps and release the pensionary benefits within a period of four weeks from the date of receipt of the said proposal."

5. Similar view was taken in another case in Shri Ashok

Haribhau Sawant Vs. State of Maharashtra & Ors. in Writ Petition

No.8830 of 2015. We are infact considering a similar situation in the

present case. In the said decision, the Court had granted the relief,

namely the pension was ordered to be released along with interest at

the rate of 10%, the following observations as made by the Court:-

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"4. It has been pointed out that, this Court has dealt with the identical issues in the following matters-

a) Order dated 10th January 2012 in Writ Petition No.6523 of 2011 in the matter of Madhukar Shankarrao Pawar & Ors. Vs. State of Maharashtra & Ors..

b) Order dated 17th December 2013 in Writ Petition No.6168 of 2012 in the matter of Dilip Krushna Tadakhe & Ors. Vs. State of Maharashtra & Ors.

5. We, therefore, find that the issue of raising an objection as regards the qualifying age at the time of recruitment, being raised at the fagend of the service of the Petitioner, has been dealt with by this Court and the said objection has been rejected. The observations of this Court in paragraph Nos. 2 and 3 in the order dated 17 th December 2013 in the matter of Dilip Krushna Tadakhe (Supra), puts this issue to rest.

6. Considering the above, this Petition is allowed in terms of prayer clause (a). Insofar as the interest on the pension is concerned, we are granting 10% interest per annum on the pension amount, which should have been paid to the Petitioner within three months from the date of his superannuation i.e. on 31 May 2011. The said interest shall, therefore, be calculated w.e.f. 1st September 2011."

6. On a batch of petitions, Writ Petition No.5068 of 2018, Sulbha

Shankar Kurne Vs. The State of Maharashtra through its Secretary &

Ors., another coordinate bench of this Court had passed similar orders,

the relevant observations in that regard are required to be noted, which

reads thus:-

"3 On behalf of the Respondent, the grant of pension to the Petitioners is opposed on the ground that the Petitioners were over age at the time of their initial appointment and therefore, their appointment falls foul of the Government Resolution dated 28.01.1986 which fixed the upper age limit insofar as the nonteaching posts are concerned.

Insofar as the issue as to whether the fact of the Petitioners being over age at the time of their initial appointment would disentitle them to pension after putting in long years of service with the University is concerned, the same is no more resintegra and is covered by various judgments/orders passed by the Division Benches of this Court. The same

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can be gainfully summarized herein below :

i) Order dated 10th January 2012 in Writ Petition No.6523 of 2011 in the matter of Madhukar Shankarrao Pawar & Ors. Vs. State of Maharashtra & Ors.

ii) Order dated 17th December 2013 in Writ Petition No.6168 of 2012 in the matter of Dilip Krushna Tadakhe & Ors. Vs. State of Maharashtra & Ors.

iii) Order dated 2 nd May 2017 in Writ Petition No.8830 of 2015 in the matter of Ashok Haribhau Sawant Vs. State of Maharashtra & Ors.

4 Hence, the objection as regards the Petitioners being over age at the time of recruitment, has been rejected by the Division Benches of this Court, therefore, the said issue has been put to rest. The orders passed by the Division Benches in the above Writ Petitions are in respect of the employees who are similarly situated as Petitioners as can be seen from the proposal sent by the University to the Director of Higher Education wherein the names of all the Petitioners are appearing along with the Petitioner in Writ Petition No.8830 of 2015 i.e. Ashok Haribhau Sawant.

5 In that view of the matter, the above Writ Petitions are required to be allowed and are accordingly allowed in terms of prayer clause (a). Since the Petitioners have been wrongly denied the benefit of pension they would be entitled to the arrears of pension with interest @ 6% p.a. from the date of their retirement till payment. We direct that the payment to be made on or before 31.12.2018 failing which the rate of interest would increase to @ 10% p.a."

7. Again in the case of Kunda Prakash Ranade Vs. State of

Maharashtra Through Its Secretary Higher and Technical Edu. Dept. &

Ors. in Writ Petition 2482 of 2020 alongwith a batch of petitions, a

Division Bench of this Court deprecated such conduct of the department

in denying the pension to the Petitioners therein, who were denied

pension on the ground that the Petitioner were over age. The Court

granted relief to the Petitioner by directing that the pension be paid and

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also the arrears of pension be granted by 12% interest per annum

within a time bound schedule. The relief observations read thus:

"1. ....

2. This issue has been considered by various Division benches of our Court in a number of cases, including the cases of Dilip Krushna Tadakhe & Ors. V/s State of Maharashtra & Ors. (decided on 17.12.2013), Shri Ashok Haribhau Sawant Vs. State of Maharashtra & Ors. (decided on 02.05.2017), Shamsundar @ Sham Laxman Madwal Vs. State of Maharashtra & Ors. (decided on 12.03.2018) and Sulbha Shankar Kurne Vs. The State of Maharashtra through its Secretary & Ors. (decided on 04.09.2018). It has been held in all these cases that objections regarding over age at the time of appointment could not be sustained for denying pension to the respective employees.

3. The learned AGP on behalf of the Respondent-State is unable to point out any distinguishing feature in the facts of the present case from the facts of these other cases.

4. Accordingly, Rule is made absolute and the petitions are allowed in terms of prayer clause 'c' in each of the petitions.

5. Since the Petitioners' pensions have been delayed due to no fault of theirs and despite law stated by this Court in a number of cases, the Respondents are directed to pay the Petitioners' dues with interest at the rate of 8% p.a. on delayed payment of pension from the date of the respective due dates and until payment. We direct the Respondent-State to pass appropriate orders and release the pensionary dues as expeditiously as possible and in any event, within a period of six weeks from today. In case the Petitioners' dues are not released within six weeks from today, the dues shall carry interest at the rate of 12 % p.a. from expiry of six weeks and until payment."

8. The case before us is not different from what has been noted

by us hereinabove, infact in our opinion, this case is a gross case and

completely infected by a totally callus approach of Dr. Kirankumar

Bondar and who in our opinion has unwarrantedly created a situation

of raising queries which were totally irrelevant as also disregarded the

Government Resolutions as also the decisions of this Court on similar

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issues. Such issues were covered by existing Government Policies. We

accordingly have no manner of doubt that the Petitioner needs to be

granted reliefs.

9. However, the present Joint Director-Mr. Keshav Tupe is before

us as noted above who has taken a fair stand. He submits that he has

recently taken over the charge and realising the facts of the case, he

would consider all the relevant material and make an appropriate

proposal to the State Government which is required to be sanctioned by

the Secretary Education.

10. Though the Court closes for Diwali vacation tomorrow and we

are under tremendous pressure for large number of urgent orders to be

made available to the parties, we have still considered to pass such a

detailed order considering the fact that here is the petitioner before us

who is retired after 30 years of service as Hamal / Coolie. He is a senior

citizen, he is suffering every day for the pension not being paid to him.

In these circumstances, certainly our conscience would not permit to

delay passing any order on a situation which is before us. As all others,

the petitioner also needs to be happy, having devoted his entire life in

the service in the University, by receiving his legitimate entitlement of

pension and more particularly considering the ensuing festival season.

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 11.          We      accordingly   adjourn       the     present       proceedings         for

tomorrow i.e. 10th November 2023 to be taken at 4.30 p.m.

12. In the meantime, the Joint Director is directed to immediately

present the proposal which is already in his office for approval of the

Secretary of the Education Department. The Secretary of the Education

Department is directed to grant approach to such proposal.

13. Considering the observations as made by us above, we hope

that the concerned officer will show utmost sensitivity to these matters,

when it concerns pension and more particularly, the settled principles of

law in that regard as laid down in catena judgments of the Supreme

Court.

14. In this context, we may refer the decision of the Supreme

Court in the case of Dr. Uma Agarwal Vs. State of U.P. & Anr. 1, wherein,

the Supreme Court has expected of utmost sensitivity of such issues and

the facts which need to be taken by the concerned officers. In Paragraph

2 of the Supreme Court's case reads as under:-

"Now-a-days, several writ petitions are being filed in this Court and various High Courts seeking relief for disbursement of retiral benefits, because of inordinate delays in payment of these benefits. As Krishna Iyer, J. stated in State of Mysore Vs. C. R. Sheshadri & Ors. [SCC P.312, Para 8],

1 (1999) 3 SCC 438

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"a retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary expectation of the superannuated public servant - not unusual in government",

it is becoming necessary to issue directions, in several cases, for early payment of these dues. In yet another case in State of Kerala & Ors. Vs. M. Padmanabhan Nair [1985 (1) SCC 429], this Court had occasion to point out (at SCC p.430, para 2) that usually "the delay occurs by reason of non-production of the L.P.C (last pay certificate) and the N.L.C.(no liability certificate) from the concerned departments" but both the documents pertain to matters, records whereof would be with the government departments. It was observed that inasmuch as the date of retirement of every government servant was very much known in advance, it was difficult to appreciate why the process of collecting the requisite information and issuance of the abovesaid two documents should not be completed well before the date of retirement so that the payment of gratuity amount could be made on the date of retirement or on the following day and the pension, at the expiry of the following month. This Court stated that the necessity for prompt payment of the retirement dues to a government servant immediately after his retirement could not be over-emphasised and it would not be unreasonable to direct that there would be a liability to pay penal interest on these retirement benefits. In several cases, decided by this Court, interest at the rate of 12% per annum has been directed to be paid by the State."

15. We may reiterate that we were pained to see a person who

has retired as a Coolie suffering in this manner, we thus have a hope

that the pension to the Petitioner would be sanctioned and released and

he would be paid the arrears of pension.

16. Depending on the orders which would be passed by the

appropriate officers, further appropriate orders on the present petition

would be required to be passed tomorrow.

 [JITENDRA JAIN, J.]                                       [G. S. KULKARNI, J.]




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