Rishipalsingh S/O Mukhrajsingh ... vs Municipal Commissioner, Nagpur
2023 Latest Caselaw 9289 Bom

2023:BHC-NAG:13173-DB


               J.wp.6331.22.odt                                                        1


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

                                  WRIT PETITION NO.6331 OF 2022

                          Rishipalsingh s/o Mukhrajsingh Choudhary
                          Aged 72 years, Occupation - Retired,
                          R/o. 106/A, Rajaram Society,
                          Jafar Nagar, Beh. Raut Sabhagruh,
                          Katol Road,
                          Nagpur - 440013
                                                                  ...PETITIONER
                                             VERSUS
                          Municipal Commissioner,
                          N.M.C. Mahanagar Palika Bhavan,
                          Civil Lines, Sadar,
                          Nagpur - 440001
                                                                       ...RESPONDENT
               ______________________________________________________
                          Mr. Vipin M. Lute, Advocate for the petitioner.
                          Mr. A.S. Mehadia, Advocate for the respondent.
               ______________________________________________________

                                    CORAM :     AVINASH G. GHAROTE &
                                                URMILA JOSHI-PHALKE, JJ.
                           RESERVED ON      :   AUGUST 24, 2023
                        PRONOUNCED ON       :   SEPTEMBER 05, 2023

               JUDGMENT (Per Urmila Joshi-Phalke, J.)

RULE. Rule made returnable forthwith. Heard finally with

the consent of learned Counsel for the parties.

2. By this petition, the petitioner has claimed revised pension as

per the Government Resolution dated 22 nd June, 2009 and balance

amount of Gratuity. The petitioner was an employee of Nagpur

Municipal Corporation and serving as a Medical Officer (Health

Department) from 10th July, 1982 to 31st July, 2008. He served

continuously for 26 years. The petitioner retired on 31 st July, 2008. After

his retirement, 6th Pay Commission came into force and was made

applicable to the retired employee from 01 st January, 2006 as per the

Government Resolution dated 27 th December, 2018. However, the

respondent - N.M.C. did not make it applicable from the above dates but

it was made applicable from 01 st December, 2010. The respondent-

N.M.C. had not revised his pension as per 6 th Pay Commission. The

petitioner has made several representations to revise his basic pay, the

respondent-authority has revised his pension incorrectly @ Rs.15,612/-.

As per the contention of the petitioner, he is entitled to receive pension

in view of Government Resolution No.SNV1009/PK33/SEVA-4 dated

22nd June, 2009. In view of the said Government Resolution, clause No.6

- an employees who have completed 20 years of service are qualified to

get the retirement benefit i.e. pension by calculating 50% of last basic

pay. His last month's basic pay at the time of retirement was

Rs.32,070/-, and therefore, his pension ought to have been calculated at

50% of last basic pay. But the respondent has calculated his pension

without considering the Government Resolution dated 22 nd June, 2009.

The petitioner further claimed that he had received the Gratuity of

Rs.2,50,000 on his retirement and this amount is also wrongly

calculated. In the Government Resolution dated 22 nd June, 2009 in para

No.7, the formula for calculating the gratuity amount is provided which

says that 16.5 times of the basic pay or Rs.5,00,000/- whichever is less

would be considered as the gratuity amount for the full service of 33

years. The petitioner had completed 26 years of service and hence the

days for gratuity amount period is to be calculated as 15 days for one

year of service, and therefore, his paid days for gratuity have been

calculated as 390 days i.e. 13 months, therefore, the gratuity amount

should have been Rs.4,16,910/- but the respondent authority paid

Rs.2,50,000/- which is less. It is further contention of the petitioner that

he had filed Writ Petition No.1934 of 2022 before this Court for seeking

same relief. At the relevant time, this Court has directed the petitioner to

put his demand with the Employer - N.M.C. and liberty was granted to

him to file the writ petition if it is not considered. As per the order of

this Court he had made representation on 13 th June, 2022 but the

respondent authority has not considered the said representation nor

given any reply to the said representation, therefore, he constrains to file

the present writ petition.

3. The contention of the petitioner is opposed by the respondent

- N.M.C. on the ground that the present petition is liable to be dismissed

summarily on the ground of delay and laches. The petitioner stood

retired from service on 31st July, 2008 and as per rules the petitioner

was paid pension since the month of August 2008. The 5 th Pay

Commission was made applicable to the petitioner in the year 2010 with

effect from 01st January, 2006. The petitioner has approached to this

Court after lapse of almost 10 years and has not given any explanation

much less sufficient cause for approaching this Court after lapse of more

than 10 years. Hence, the present petition is liable to be dismissed.

4. It is further contention of the respondent - N.M.C. that the

salary including Dearness Pay of the petitioner at the time of his

retirement was Rs.19,875/- and as per the rules, the petitioner was paid

Pension of Rs.7820/- per month. The petitioner has never objected to

the said calculation. The respondent on 01st December, 2010 had

decided to give benefits of 5th Pay Commission to its employees with

effect from 01st January, 2006 subject to the condition that difference of

amount of salary/pension/gratuity till 01 st December, 2010 shall not be

paid to any of the employees. The petitioner has accepted the aforesaid

condition, and therefore, rightly not claimed the difference of amount of

salary. By taking into consideration the decision to implement 5 th Pay

Commission, the petitioner though retired on 31 st July, 2008, his salary

including Dearness Pay was fixed at Rs.32,070/- per month for the

purposes of calculating the pension. The respondent by adopting the

same method calculated the pension, and therefore, the contention of

the petitioner that as per the Clause No.6 of the Circular dated 22 nd

June, 2009 the petitioner is not entitled for an amount of Rs.16,035/-

per month towards the pension.

5. Heard Shri V.M. Lute, learned Counsel for the petitioner. He

reiterated the contention and submitted that the petitioner is entitled to

receive the pension as per the revised pay. The petitioner has rendered

his 26 years service as a Medical Officer and retired on 31 st July, 2008.

The Nagpur Municipal Corporation has made applicable the 6 th Pay

Commission from 01st December, 2010. Thus, in view of Clause No.6 of

the said Government Resolution No.SNV1009/PK33/SEVA-4 dated 22 nd

June, 2009, the petitioner is entitled to receive 50% of average of his

last 10 months basic pay or 50% of last months basic pay as a pension

which is not considered. The gratuity amount is also not calculated as

per said Government Resolution. As far as the delay and laches is

concerned he submitted that the cause of action is continuous. The cause

of action in case of pensionary benefits continues from month to month,

and therefore, the petitioner is entitled to receive the arrears of pension

by considering his revised pay. He is also entitled to receive the amount

of gratuity in view of the said Circular. Whereas learned Counsel Shri

Mehadia submitted that there is inordinate delay in claiming the said

relief. The petitioner never approached to the respondent for his revised

pay. He accepted the calculations while fixing his pension. The writ

petition is filed after 10 years thus, there is delay and laches and on the

ground of delay and laches the writ petition deserves to be dismissed.

6. In support of his contention he placed reliance on the State of

Maharashtra Vs. Digambar [(1995) 4 SCC 683] and Chairman, State

Bank of India and anr. Vs. M.J. James [(2022) 2 SCC 301] wherein it is

held that how a person who alleges against the State of deprivation of

his legal right, can get relief of compensation from the State by invoking

writ jurisdiction of the High Court under Article 226 of the Constitution

even though, he is guilty of laches or undue delay is difficult to

comprehend, when it is well settled by decisions of this Court that no

person, be he a citizen or otherwise, is entitled to obtain the equitable

relief under Article 226 of the Constitution if his conduct is blame-

worthy because of laches, undue delay, acquiescence, waiver and the

like. Moreover, how a citizen claiming discretionary relief under Article

226 of the Constitution against a State, could be relieved of his

obligation to establish his unblameworthy conduct for getting such

relief, where the State against which relief is sought is a welfare State, is

also difficult to comprehend. Where the relief sought under Article 226

of the Constitution by a person against the welfare State is founded on

its alleged illegal or wrongful executive action, the need to explain

laches or undue delay on his part to obtain such relief, should, if

anything, be more stringent than in other cases, for the reason that the

State due to laches or undue delay on the part of the person seeking

relief, may not be able to show that the executive action complained of

was legal or correct for want of records pertaining to the action or for

the officers who were responsible for such action not being available

later on. Further, where granting of relief is claimed against the State on

alleged unwarranted executive action, is bound to result in loss to the

public exchequer of the State or in damage to other public interest, the

High Court before granting such relief is required to satisfy itself that the

delay or laches on the part of a citizen or any other person in

approaching for relief under Article 226 of the Constitution on the

alleged violation of his legal right, was wholly justified in the facts and

circumstances, instead of ignoring the same or leniently considering it.

Thus, in our view, persons seeking relief against the State under Article

226 of the Constitution, be they citizens or otherwise, cannot get

discretionary relief obtainable thereunder unless they fully satisfy the

High Court that the facts and circumstances of the case clearly justified

the laches or undue delay on their part in approaching the Court for

grant of such discretionary relief. Therefore, where a High Court grants

relief to a citizen or any other person under Article 226 of the

Constitution against any person including the State without considering

his blame-worthy conduct, such as laches or undue delay, acquiescence

or waiver, the relief so granted becomes unsustainable even if the relief

was granted in respect of alleged deprivation of his legal right by the

State.

7. On the basis of this observation, Shri Mehadia, learned

Counsel submitted that there is inordinate delay in claiming the said

relief, and therefore, the petition deserves to be dismissed.

8. On hearing the learned Counsel for the parties and on perusal

of the petition and the reply, there is no dispute that the petitioner was

serving with the Nagpur Municipal Corporation as a Medical Officer.

There is also no dispute that he retired from service on 31 st July, 2008.

After his retirement, 6th Pay Commission came into force and was made

applicable to the retired employees from 01 st January, 2006 as per the

Government Resolution dated 27 th October 2008. Said Government

Resolution is reproduced for the reference :

"या समितीने केलेल्या शिफारशीच्या अनुषंगाने संदर्भाधिन (२) वरील शासन निर्णय दिनां क २७ फेब्रुवारी, २००९ च्या आदे शान्वये निवृत्तीवेतन धारकां च्या निवृत्तीवेतनामध्ये सुधारणा करण्याचा निर्णय घेण्यात आला आहे . त्यानुसार शासनाने महाराष्ट्र नागरी सेवा (निवृत्तीवेतन) नियम १९८२ मधील निवृत्तीवेतन, निवृत्ती/मृत्युउपदान आणि कुटुं ब निवृत्तीवेतन नियमित

करणा-या तसेच महाराष्ट्र नागरी सेवा (निवृत्तीवेतनाचे अं शराशीकरण) नियम १९८४ मधील नियमामध्ये खालीलप्रमाणे फेरबदल करण्याचा निर्णय घेतला असून हे फेरबदल शासकीय कर्मचारी तसेच उपरोल्ले खित नियम ज्यांना

लागू आहे त अशा इतर कर्मचा-यां ना लागू राहतील."

9. Said Government Resolution was made applicable to the

retired employees from 01st January, 2006. It is not disputed that the

Nagpur Municipal Corporation made it applicable from 01 st December,

2010. If the said Government Resolution is perused it states about the

rules as to how the amount of pension is to be calculated regarding the

persons who are already retired. The relevant Clause No.6 states about

the rule how the pension is to be calculated. It is reproduced as under:

"२० वर्षाची अर्हताकारी सेवा पू र्ण केल्यानंतर नियतवयोमानानुसार/ स्वेच्छा सेवानिवृत्ती घेउन सेवानिवृत्त होणा-या कर्मचा-यां ना सेवानिवृत्तीच्या शेवटच्या १० महिन्यात अर्जित केलेल्या सरासरी मूळ वेतनाच्या किंवा शेवटच्या महिन्यात घेतलेल्या मूळ वेतनाच्या ५०% यापैकी जी रक्कम कर्मचा-यास लाभदायक ठरे ल, ती रक्कम निवृत्तीवेतन म्हणून अनुज्ञेय होईल. त्यामुळे दि.१.१.२००६ नंतर सेवानिवृत्त झालेल्या ज्या निवृत्तीवेतनधारकां चे निवृत्तीवेतन त्यां च्या अर्हताकारी सेवेत भर घालून निश्चित करण्यात आले आहे , त्या निवृत्तीवेतनधारकां चे निवृत्तीवेतनही या सुत्रानुसारच निश्चित करण्यात यावे ."

10. The petitioner has also claimed that the gratuity amount is

also not calculated by the respondent as per the Government Resolution.

He referred Clause No.7 of the said Government Resolution which is

reproduced hereunder:

"७. महाराष्ट्र नागरी सेवा (निवृत्तीवेतन) नियम १९८२ मधील नियम ९(३६) (एक) मध्ये व्याख्या केल्यानुसार मूळ वेतनावर निवृत्ती/मृत्यु उपदानाची

परिगणना करण्यात येईल. उपदानाची कमाल मर्यादा वेतनाच्या साडे सोळा पट किंवा पाच लाख यापैकी जी कमी असेल ती राहील."

11. Thus, in view of clause No.7, the petitioner is entitled to

receive the gratuity amount 16.5 times of the basic pay or Rs.5,00,000/-

whichever is less. As per his contention only amount of Rs.2,50,000/-

was sanctioned to him as gratuity amount in stead of Rs.4,16,910/-. He

also placed reliance on the Government Circular dated 27 th December,

2018 which is a revised Government Resolution which says that the

earlier Government Resolution is made applicable from 01 st January,

2006. The clauses in the earlier Government Resolution were made

applicable from 01st January, 2006. It is further declared that the

employees who retired during 01 st January, 2006 to 26th February, 2009

are also entitled for the revised pension in view of the said Government

Resolution. The petitioner has claimed that his last drawn pay was

Rs.32,070/- and by considering the same 50% of the last month's basic

pay comes to Rs.16,035/-, and therefore, he is entitled to receive revised

pension by calculating his pension on the basis of his basic pay.

However, the respondent has calculated it incorrectly. He also claimed

that he is entitled to receive the gratuity 16.5 times of the basic pay. His

both contentions are substantiated by the Government Resolution dated

27th October, 2008. The contention of the respondent is that the

petitioner never approached to claim the said relief to the respondent

and now after delay of 10 years he is claiming the said relief which he is

not entitled as now no cause of action arose. As far as the demand by

the petitioner is concerned, it is the duty of the respondent to revise the

pension of the petitioner. The respondent was under obligation to revise

the pension of all the employees who are retired during the period from

01st January, 2006 to 26th February, 2009. The revised Resolution of the

Government dated 27th December, 2018 by which all the departments

were informed in clause No.7 which is reproduced hereunder:

" 7- loZlk/kkj.k lqpuk %& अ) शासन विभागां करीता सूचना& शासनाच्या प्रत्येक विभागाने त्याच्या अधिपत्याखालील सर्व कार्यालय प्रमुखां नी यां नी दिनां क ०१-०१-२००६ ते २६-०२-२००९ या कालावधीतील निवृत्तिवेतनधारकां च्या निवृत्तिवेतन@कुटुं ब निवृत्तिवेतनाची प्रकरणे सुधारित करुन याबाबत दर सहा महिन्यां नी आढावा घ्यावा- त्यां च्या अधिपत्याखालील एखाद्या कार्यालय प्रमुखांनी यांनी सु धारित निवृत्तिवेतन प्रकरण महालेखापाल कार्यालयास सादर न केल्यामूळे उद्भवलेल्या न्यायालयीन प्रकरणास तो विभाग सर्वस्वी जबाबदार राहील-

ब ) कार्यालय प्रमुख यां च्यासाठी सुचना-

१- कार्यालय प्रमुख यांनी दिनां क ०१-०१-२००६ ते २६-०२-२००९ या कालावधीत सेवानिवृत्त झालेल्या सर्व शासकीय कर्मचारी यां च्या निवृत्तिवेतनाची प्रकरणे उपरोक्त प्रमाणे सुधारित करुन मा- महालेखापाल कार्यालयास सेवापुस्तकासह विहित नमूना क्र- ६- मध्ये सुधारणेसाठी सादर करावीत- ज्या निवृत्तिवेतनधारकां च्या@कुटुं बनिवृत्तिवेतनधारकां च्या निवृत्तिवेतनाचे अभिलेख उपलब्ध नसतील अशा प्रकरणी निवृत्तिवेतनधारकां नी@कुटुं बनिवृत्तिवेतनधारकां नी संबंधित कार्यालय प्रमुखाकडे P.P.O. (निवृत्तिवेतन प्रदान आदे श) च्या प्रतीसह अर्ज करावा- कार्यालय प्रमुखाने अर्ज प्राप्त झाल्यानंतर योग्य ती शहानिशा करून निवृत्तिवेतन प्रकरण सुधारणेकरीता मा- महालेखापाल कार्यालयास सादर करावे-

२- दिनां क ०१-०१-२००६ ते २६-०२-२००९ या कालावधीत सेवानिवृत्त झालेल्या सर्व शासकीय कर्मचारी यां च्या सुधारित निवृत्तिवेतनाची@कुटुं बनिवृत्तिवेतनाची प्रकरणे तातडीने सादर करण्याची दक्षता घ्यावी- सुधारित निवृत्तिवेतन@कुटुं बनिवृत्तिवेतन प्रकरणांबाबतचा अहवाल संबंधीत प्रशासकीय विभागास पाठविण्यात यावा-"

12. Thus, in view of the said Government Circular also it was the

respondent who has to revise the pension of the petitioner in view of the

Government Resolution dated 01st January, 2006 which was made

applicable to the employees of the Nagpur Municipal Corporation from

01st December, 2010.

13. As per the respondent the claim of the petitioner is barred by

the limitation as there is a delay and laches in claiming the relief. He

also placed reliance on the various judgments referred above. The delay

as long as the one occasion in this case would result in the dismissal of

the petition on the ground of laches if the cause of action is not

continuous. It is no doubt true that the cause of action in case of

pensionary benefits continues from month to month but, it is well settled

that in case of delay in filing the writ petition beyond the period of 3

years, the monetary relief could be restricted even in case of pensionary

benefits only for a period of 3 years preceding the date of filing the writ

petition. In cases when the cause of action is not continuous, a writ

petition seeking a particular relief would be barred by laches as mere

making of representation to an authority would not stop the period of

limitation. It is held by the Honourable Apex Court from time to time

that monetary relief could be granted for a period of 3 years preceding

the date of filing of the writ petition even if the cause of action is

continuous. The monetary reliefs payable towards pension are also

governed by the same rule. The same ratio is laid down by the

Honourable Apex Court in the case of M.R. Gupta Vs. Union of India

(UOI) and ors. [AIR 1996 SC 669], Jai Dev Gupta Vs. State of H.P. and

ors. [AIR 1998 SC 2819], Shiv Dass Vs. Union of India (UOI) and ors.

[AIR 2007 SC 1330] and Union of India (UOI) and ors. Vs. Tarsem

Singh [(2008)2 SCC (LS) 765]. Thus, considering the Government

Resolution which entitles the petitioner for a revised pension as well as

the gratuity, the petitioner would be entitled to the arrears of the family

pension only for a period of 3 years preceding the date of filing of the

writ petition i.e. from 08th September, 2022.

14. Hence, for the reasons aforesaid, we pass the following

order :

           (i)     The writ petition is partly allowed.


           (ii)    It is declared that the petitioner is entitled for the

revised pension in view of the Government Resolution dated

01st January, 2006 made applicable from 01st December, 2010

by the respondent.

(iii) The respondent - N.M.C. is directed to pay revised

family pension to the petitioner from September, 2016. The

arrears of the pensionary benefits with effect from 08 th

September, 2019 should be paid to the petitioner within a

period of six weeks. If the aforesaid directions are not

complied with the respondents would be liable to pay the

aforesaid amount with interest @18% per annum.

15. Rule is made absolute in the aforesaid terms. No costs.

(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)

*Divya

Signed by: Mrs. Divya Baldwa Designation: PA To Honourable Judge Date: 05/09/2023 15:02:13