Bombay High Court
Pramodhini Wd/O Kunjakutti ... vs State Of Maha., Thr. Secretary, ... on 5 September, 2023
Bench: Avinash G. Gharote, Urmila Sachin Phalke
2023:BHC-NAG:13175-DB
J.wp.7163.22.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.7163 OF 2022
Smt. Pramodhini wd/o Kunjakutti Matheu,
Aged about 79 years,
Occupation - Retired
R/o. Near Circuit House,
Behind Galaxy Hotel, Civil Lines,
Yavatmal, Tq. and District Yavatmal
...PETITIONER
VERSUS
1. The State of Maharashtra,
through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai - 32
2. Director of Education (Primary)
Directorate of Education,
Maharashtra State, Pune
3. Chief Executive Officer,
Zilla Parishad,
Yavatmal
4. Education Officer (Primary),
Zilla Parishad,
Yavatmal
5. Block Development Officer,
Panchayat Samiti,
Yavatmal
...RESPONDENTS
______________________________________________________
Mrs. Sunita D. Paul, Advocate for the petitioner.
Mr. S.M. Ukey, AGP for respondent Nos.1 and 2.
Mr. S.C. Bhalerao, Advocate for respondent Nos.3 to 5.
______________________________________________________
J.wp.7163.22.odt 2
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 seeks declaration that she is
entitled for pension and all retiral benefits with effect from date of her
retirement i.e. 30th June, 2001. She had also claimed arrears of pension.
3. The petitioner was initially appointed in Vasantrao
Vidyaniketan English Medium Primary School, Yavatmal as an Untrained
Teacher from 30th June, 1973. The school was controlled by Zilla
Parishad, Yavatmal. Her initial appointment was for the period from
30th June, 1973 to 30th April, 1974. Thereafter the termination order was
issued to her on 05th April, 1974. Thereafter again the appointment was
given to her for the period from 30 th June, 1975 to 30th April, 1976, 30th
June 1976 to 30th April, 1977, 02nd May, 1977 to 31st October, 1977, 02nd
November, 1977 to 30th April, 1978, 02nd February, 1979 to 30th April,
1979, 02nd July, 1979 to 31st December, 1979. Respondent No.3 further
issued appointment order on 30 th January, 1980 appointing her for a
period from 02nd February, 1980 to 31st January, 1981 or till receipt of
selection list from Selection Board. She was terminated on 30 th January,
1981. Thereafter again she was appointed from 3 rd February, 1981 to
31st January, 1982 or till receipt of select list from the Selection Board.
Again she was appointed on 2nd February, 1982. Thus, by giving notional
breaks, her service was continuous for the period from 30 th June, 1973
to 27th January, 1983. Though the post of Primary School Teacher was
vacant with the respondents and despite of vacant post, the respondents
had continued her services by giving notional breaks till January, 1983.
She served as an English Primary School Teacher for a continuous period
of 10 years in Vasantrao Vidyaniketan English Medium Primary School,
Yavatmal and thereafter said school was permanently closed down.
Therefore, she was absorbed and transferred in the capacity of English
Medium Primary Teacher in Panchayat Samiti, Yavatmal. Further she
was appointed in Panchayat Samiti School at Pandhari by appointment
order dated 13th July 1987. Again the Block Development Officer had
issued second appointment order dated 24 th June, 1994 appointing her
in the same school at Pandhari. Thus, it reveals that she was in
continuous service as English Primary Teacher from 13 th July, 1987 to
24th June, 1984 i.e. for continuous period of 7 years. Thus, she served
for a period of 10 years in Vasantrao Vidyaniketan English Medium
Primary School, Yavatmal and thereafter 7 years as per the appointment
order issued by the Panchayat Samiti, Yavatmal. Despite this service the
respondents failed to release the pension and retiral benefits to her. The
Block Development Officer, Panchayat Samiti, Yavatmal had issued a
letter on 22nd June, 2001 which shows that she retired on attaining the
age of superannuation on 30th June, 2001.
4. As per the contention of the petitioner that in view of the
judgment of this Court, the untrained Teachers who have worked from
1973 onwards are deemed to be treated as trained Teacher are entitled
for pension and other retiral benefits, therefore, she approached to the
respondent Nos.3 and 4 contending that she had worked continuously
for a period of 28 years as a Primary English Medium Teacher with
respondent Nos.3 and 4. Therefore, she is entitled for the retiral benefits
including pension etc. Said representations are not considered by
respondent Nos.3 and 4, and therefore, she approached to this Court by
claiming the retiral benefits.
5. Respondent Nos.3 to 5 by submitting their reply submitted
that there was no any provision for payment of pension and other retiral
benefits to the untrained Teacher, therefore, same was not paid. The
petitioner has not claimed pension till filing of the present petition. As
far as the contention of the petitioner is concerned that by giving
notional breaks, her service was continuous for 28 years however,
denied the contention that she is entitled to receive the pensionary
benefits as she was not the trained Teacher.
6. Heard learned Counsel for the petitioner. She submitted that
the petitioner is entitled for the benefit of pension as per the
Government Resolution dated 9th March, 2010 and Circular dated 09 th
March, 2010. There is no dispute that initially the petitioner was
appointed in Vasantrao Vidyaniketan English Medium Primary School,
Yavatmal. Her services was continued by giving her notional breaks in
the said school till 1983. Thereafter her services are obtained by the
Block Development Officer, Panchayat Samiti by absorbing her. Time to
time the appointment letters were issued to her by giving her notional
break. In view of the letter dated 22nd June, 2001, the petitioner got
retired on reaching at the age of superannuation.
7. In the judgment of this Court in Writ Petition No.4749 of
2016 dated 21st December, 2017 in view of Government Resolution
dated 9th March, 2010 it is held that the candidates who had possessed
either PSC or SSC and PTC or a Diploma in Education, would be entitled
for pensionary benefits. It is further held that all the teachers who would
be covered by the Government Circular dated 9 th March, 2010 and which
has been considered by this Court in Writ Petition No.5110 of 2012
dated 13th December, 2017 which is applicable to the respective
Education Officers for the benefit in accordance with such circular. If all
such applications are made, the Education Officer shall decide the same
within a period of 3 months of making such application. The said ratio is
laid down in Writ Petition No.9434 of 2017 along with the connected
petitions decided on 19th March, 2019 wherein also the pensionary
benefits was allowed to the teachers. She submitted that thus
respondent Nos.3 to 5 were under obligation to provide her pensionary
benefits which was not provided, and therefore, she is entitled for the
arrears of the pension along with the interest.
8. Shri S.M. Ukey, learned Assistant Government Pleader for
respondent Nos.1 and 2 and Shri S.C. Bhalerao, learned Counsel for
respondent Nos.3 to 5 submitted that as the petitioner was not a trained
Teacher, said benefit was not given to her. The communication issued by
respondent Nos.3 and 4 is legal and not faulted with. The petition is
without merits and liable to be dismissed.
9. On hearing the learned Counsel for the parties and on perusal
of the Government Resolution dated 9 th March, 2010 it is found that the
Teachers who are appointed after 01 st July, 1973 who are the untrained
Teachers are entitled for pensionary benefits. This aspect is also
considered by this Court in Writ Petition No.4749 of 2016 wherein also
it is held that the Government itself had realized it's mistake and issued
the Circular dated 9th March, 2010 which provided that the candidates
who had possessed either PSC or SSC and PTC or a Diploma in
Education, would be entitled for pensionary benefits. Insofar as the
Communication dated 16th August, 2013 deleting the word "PSC" and
"or" from the Circular dated 9th March, 2010 is concerned, it has also
been held that the said circular was not sustainable in law.
10. It is further held that in view of the policy of the Government,
as reflected from the circular dated 09th March, 2010, all such teachers
who possess PSC or SSC along with a PTC or a Diploma in Education
will have to be treated as trained teachers for the purpose of IV th, Vth and
VIth Pay Commission recommendations. It is further held that all the
teachers who would be covered by the Government Circular dated 9 th
March, 2010 and which has been considered in the judgment in Writ
Petition No.5110 up 2012 dated 13th December, 2017 to apply to the
respective Education Officers for the benefit in accordance with such
circular and the benefit was given. The similar issue was raised in Writ
Petition No.9434 of 2017 wherein also the benefit of pension was given
to the petitioners.
11. As far as the present case is concerned there is no dispute that
initially, petitioner was appointed on 30 th June, 1973. Said appointment
letter is at Annexure-A which shows that her initial appointment was
from 30th June, 1973 till 30th April, 1974. The various communications
issued to her which are filed on record shows that from time to time by
giving notional breaks, she was continuously appointed in Vasantrao
Vidyaniketan English Medium Primary School, Yavatmal as an untrained
Teacher. She was continued in the said school till 1983. Subsequently,
she was absorbed in Panchayat Samiti and the Block Development
Officer had issued the appointments to her time to time, not only this
but by issuing letter on 22 nd June, 2001 as she has attained the age of
superannuation she was relieved by the Block Development Officer by
issuing letter on 22nd June, 2001. This communication sufficiently shows
that she had rendered her services approximately for 28 years.
Therefore, respondent Nos.3 to 5 were under obligation to give her
benefit of pension in view of Government Circular dated 9 th March,
2010. She had submitted her representation first time on 29 th March,
2022. However, no decision was taken on her representations.
Admittedly, first time she claimed the pensionary benefits on 29 th March,
2022 though Circular was issued on 9 th March, 2010. Thus, there is a
delay in claiming the said benefit by the present petitioner.
12. It is well settled that if an application is made to the authority
claiming a relief and if the application is not decided within a reasonable
time, it would be necessary for the party to approach the Court for
seeking the relief claimed in the application.
13. The delay as long as in the present 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 also 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 of the writ petition. In case where 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. The Honourable Apex Court in case of Jai Dev
Gupta Vs. State of H.P. and ors. [AIR 1998 SC 2819], M.R. Gupta Vs.
Union of India (UOI) and ors. [AIR 1996 SC 669], had considered this
issue and it is held that monetary relief can 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. Monetary benefits payable towards pension are
also governed by the same rule.
14. Hence, though the petitioner would be entitled to the benefit
of pension, 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 25th August, 2022.
15. Hence, for the reasons aforesaid, we pass the following
order :
(i) The writ petition is partly allowed.
(ii) It is hereby declared that the petitioner is entitled
to receive the benefit of pension in view of the Government
Circular dated 9th March, 2010.
(iii) Respondent Nos.3 to 5 shall forward the proposal
of the petitioner for pension to respondent Nos.1 and 2.
(iv) Respondent Nos.1 and 2 are directed to pay
regular family pension to the petitioner from 01 st September,
2023. The arrears of pensionary benefit with effect from 3
years preceding the date of filing the writ petition i.e. 25 th
August 2019 and it should be paid to the petitioner within a
period of 6 weeks. If the aforesaid directions are not complied
with, the respondents would be liable to pay the aforesaid
amount to the petitioner with interest at the rate of 18% per
annum.
16. Rule is made absolute in the aforesaid terms. No costs.
(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)
Signed by: Mrs. Divya Baldwa *Divya
Designation: PA To Honourable Judge
Date: 05/09/2023 15:04:50
