Bombay High Court
Shashikala G. Wanjari vs State Of Maharashtra, Thr. Secretary, ... on 16 August, 2024
Author: M. W. Chandwani
Bench: Avinash G. Gharote, M. W. Chandwani
2024:BHC-NAG:9080-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 765 OF 2023
Dr. Shashikala G. Wanjari,
Aged about 64 years, Occ. Retired,
R/o. L-30, Yeshwant Nagar,
North Ambazari Road, Nagpur. . . . PETITIONER
// V E R S U S //
1. State of Maharashtra through it
Secretary, Department of Higher and
Technical Education, Mantralaya, Mumbai-32
2. The Hon'ble Governor (Chancellor of
Universities Maharashtra State),
Maharashtra State, Raj Bhavan,
Walkeshwar Road, Malabar Hill,
Mumbai-400035.
3. The Director Higher and Technical
Education Department, Pune.
4. The Joint Director, Higher Education
Department, Mumbai Region, Mumbai-
Elphiston Technical School Premises, 3,
Mahapalika Marg, Fort, Mumbai,
Maharashtra-400001
5. Account Officer, Higher Education, Mumbai
Region, Mumbai, Elphiston Technical
School Premises, 3, Mahapalika Marg,
Fort, Mumbai, Maharashtra-400001.
6. Rashtrasant Tukadoji Maharaj Nagpur
University through its Registrar, Nagpur
University, Nagpur. . . . RESPONDENTS
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Dr. Renuka S. Sirpurkar, Advocate for petitioner.
Shri H. R. Dhumale, AGP for respondent nos. 1 to 5.
Shri Rajat K. Maheshwari, Advocate for respondent no. 6.
---------------------------------------------------------------------------------------------------
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CORAM :- AVINASH G. GHAROTE &
M. W. CHANDWANI, JJ.
RESERVED ON :- 06.08.2024
PRONOUNCED ON :- 16.08.2024
JUDGMENT (PER: M. W. CHANDWANI, J.):
-
Heard.
2. Rule. Rule made returnable forthwith. Heard finally with
consent of the learned counsel for the parties.
3. The petition challenges the communication dated
22.10.2021 and 26.10.2021 issued by respondent no. 1 indicating the
petitioner's entitlement to pensionary benefits as per the Last Pay
Drawn on the post of Professor. The petition also seeks directions to
the respondents to grant retirement benefits to the petitioner as per
Last Pay Drawn on the post of Vice-Chancellor.
4. The facts of the case in brief can be summerised as under:-
i) The petitioner was appointed as Assistant Professor with
respondent no. 6 in the year 1987. Thereafter, she was promoted to
the post of Professor. On 02.07.2016, the petitioner was appointed as
Vice-Chancellor of SNDT Women University, Pune by respondent no. 2-
Governor of Maharashtra for a period of five years. She took charge of
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the post of Vice-Chancellor. Meanwhile, she retired from her original
post of Professor on 31.07.2018, however, she continued as Vice-
Chancellor till completion of five years i.e. till 02.07.2021.
ii) The grievance of the petitioner is that though, initially, the
pension proposal of the petitioner, on the basis of Last Pay Drawn by
her on the post of Vice-Chancellor, was submitted, however,
respondent no. 5- Account Officer called upon the Registrar of the
SNDT University to resubmit the pension papers of the petitioner on
the basis of Last Pay Drawn by her on the post of Professor.
Accordingly, the petitioner was communicated the same by respondent
no. 1 vide communication dated 22.10.2021. The University has now,
by communication dated 26.10.2021, called upon the petitioner to
submit No Objection Certificate to deduct the salary of the petitioner
for the period from 2016-18, which has been paid to her as Vice-
Chancellor from 01.08.2018 to 02.07.2021 to the extent of pension for
the said period, which is to be paid to her on the post of Professor.
iii) The stand of respondent nos. 1, 3 and 4 is that the
appointment of the petitioner as Vice-Chancellor was subject to the
terms and conditions of her contract of service as Professor and the
petitioner shall stand retired from her original post in accordance with
the terms and conditions of service of that post. Nevertheless, she has
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been appointed on a higher post as Vice-Chancellor. Section 11(12) of
the Maharashtra Public Universities Act, 2016 (for short, "Act of 2016")
has been relied upon.
5. Mrs. (Dr.) R. S. Shirpurkar, learned counsel for the
petitioner would submit that the petitioner has been appointed as full
time Vice-Chancellor of the SNDT Women University, therefore, she is
entitled to pay and allowance till the date of her retirement from the
post of Vice-Chancellor on 02.07.2021. Consequently, she will be
entitled to get the pension as per her Last Pay Drawn as Vice-
Chancellor. Therefore, action of the respondents of forwarding her
pension case on the basis of her Last Pay Drawn as Professor and
asking for no objection to deduct the amount is arbitrary and illegal.
6. Next, the learned counsel for petitioner submits that
appointment of Vice-Chancellor is regulated by Section 12 of the
Maharashtra Universities Act, 1994 (Repealed) (for short, "Act of
1994") and Section 11 of the Act of 2016. These provisions are similar
in nature. By referring to Sections 12(6), 12(11) and 12 of the Act of
1994,. she submits that the said provisions provide a lean on the
substantive post held by a person prior to appointment as Vice-
Chancellor and after the tenure of the post of Vice-Chancellor is over, if
the concerned person secures his post back, in that scenario only sub-
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Section (12) of the Act of 1994 will be invoked and his pension will be
decided as per the terms and conditions of his original post.
7. Lastly, the learned counsel for the petitioner submits that
Mr. Siddharth Vinayak Kane and two other persons, who retired from
the post of Vice-Chancellor of respondent no. 6 have been granted
pension as per his Last Pay Drawn on the post of Vice-Chancellor,
therefore, on the ground of parity, the petitioner is also entitled to the
pension as per Last Pay Drawn on the post of Vice-Chancellor and not
Last Pay Drawn on the post of Professor.
8. The learned counsel for respondents opposed the stand
taken by the petitioner and according to them, in wake of Section
11(12) of the Act of 2016, the petitioner will be entitled to get the
pension on Last Pay Drawn on her substantive post as on 31.07.2018
and thereafter, the pension which she will be entitled to as Professor
ought to have been deducted from the salary, which she get as Vice-
Chancellor. According to them, though Mr. Kane and other two have
been granted pension as per Last Pay Drawn on the post of Vice-
Chancellor but, an enquiry has been initiated in this regard and
appropriate action will be taken in those cases. According to him,
there cannot be parity in illegality, therefore, they seek rejection of the
petition.
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9. The entire controversy revolves around Section 11(11)
and 11(12) of the Act of 2016 which are pari materia to Section
12(10) and 12(11) of the Act of 1994. These are reproduced here as
under:-
"11. Appointment of Vice-Chancellor
....
(11) If a person receiving an honorarium from the
consolidated fund of the State, or if a principal of an affiliated
college or a recognized institution or a university teacher is
appointed as Vice-Chancellor, his terms and conditions of service
shall not be altered to his disadvantage during his tenure as
Vice-Chancellor.
(12) Notwithstanding anything contained in the foregoing
sub-sections, the person referred to in sub-section (7) shall stand
retired from his original post in accordance with the terms and
conditions of service of that post."
10. The sub-Section (12) of the Act of 2016 starts with non-
obstante clause, therefore, it has an overriding effect over the
provisions contained in the forgoing sub-Section (1) to (11) of Section
11 of the Act of 2016. Though, the petitioner was appointed as Vice-
Chancellor and was getting a salary of Rs.2,25,000/- which is more
than that of a Professor's salary i.e. Rs.2,10,000/- but, in view of sub-
Section (12) of Section 11 of Act of 2016, which contemplates that
irrespective of what is contained in sub-Sections of Section 11, a
person who holds a substantive post of University Teacher and has
been appointed as Vice-Chancellor shall stand retired from his original
post in accordance with the terms and conditions of service of that
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post. Meaning thereby that, while calculating pension or terminal
benefits, the service of the petitioner as Professor is to be considered
and her pension papers are to be considered on the basis of Last Pay
Drawn by her as Professor under Rule 110 of the Pension Rules.
Therefore, we are not in agreement with the argument of the learned
counsel for the petitioner that Section 11(12) of the Act of 2016 has
been wrongly interpreted by the respondents.
11. Reliance is also placed on Sub-Section (11) of Section 11
of the Act of 2016, which provides that if a University Teacher is
appointed as Vice-Chancellor, his terms and conditions of service shall
not be altered to his disadvantage during his tenure as Vice-Chancellor.
Meaning thereby that if any benefit is derived by the petitioner, by
condition of her services as Professor, those benefits cannot be altered
to her disadvantage while granting benefits as Vice-Chancellor. This
sub-Rule protects the benefits of the petitioner, which she was getting
as Professor and that should not have been withdrawn while getting
benefits as Vice-Chancellor. Thus, Section 11(12) unequivocally
indicates that if a teacher of a University is appointed as a Vice-
Chancellor, he/she stands retired from his original post with the terms
and conditions of service of that post. Therefore, we find force in the
argument of the learned counsel for the respondents.
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12. In sofar as the submission of the pay parity of the
petitioner with Mr. Kane, retired Vice-Chancellor, is concerned; it is
informed that action has been directed to be taken in those cases as
per Section 11(12) of the Act of 2016. Even otherwise, if somebody
has been granted any benefit illegally that does not entitle a similarly
situated person to claim parity. The law does not recognize parity in
illegality, and therefore, this ground will also not be helpful to the
petitioner.
13. This takes us to the anchor sheet argument of the learned
counsel of the petitioner whereby she submits that even if it is
presumed that the petitioner stands retired from her original post, in
accordance with the terms and conditions of said post but, she was
working as Vice-Chancellor on contract basis independently, therefore,
the remuneration, while working as Vice-Chancellor, shall not be
reduced to the extent of amount of pension she will be securing from
the post of Professor. Nothing has been placed on record to show that
the petitioner shall be entitled to the remuneration in addition to
pension of Professor. On the contrary, Section 11(12) says otherwise as
discussed herein-above. Therefore, we do not find merit in this
submission of the learned counsel for the petitioner.
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14. Evidently, till date, the pension of the petitioner has not
been given, even as per the terms of service condition of the post of
Professor to which she is entitled. Therefore, we find substance in the
argument of the learned counsel for the petitioner that a direction is
required to be issued to the respondents to release the pension of the
petitioner with all terminal benefits from her retirement from the post
of Professor w.e.f. 31.07.2018 along with interest from 02.07.2021, as
per Rule 129A and 129B of the Pension Rules.
15. Hence, we direct the respondents to release the pension
of the petitioner with all terminal benefits from her retirement from
the post of Professor w.e.f. 31.07.2018 along with interest from
02.07.2021.
16. In the above said terms, the petition is allowed. No costs.
(M. W. CHANDWANI, J.) (AVINASH G. GHAROTE, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 17/08/2024 11:07:40
