Bombay High Court
Mrs Dr Manisha Bharat Salunkhe vs 1. Shri Mahesh J Chothe on 9 January, 2024
Author: M.M.Sathaye
Bench: Nitin Jamdar, M.M.Sathaye
1 22-WP-25-2024 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 25 OF 2024
Dr Manisha Bharat Salunkhe ...Petitioner
Versus
The State Of Maharshtra And Ors ...Respondents
WITH
CONTEMPT PETITION NO. 4 OF 2024
Dr Manisha Bharat Salunkhe ...Petitioner
Versus
Mahesh J Chothe & Anr. ...Respondents
.......
Mr.Satyajeet A. Rajeshirke, for the Petitioner.
Ms. Rupali Shinde, AGP for Respondent Nos. 1 to 4 in W.P.
25/2024 and Respondents in Contempt Petition No. 4/2024.
.......
CORAM : NITIN JAMDAR &
M.M.SATHAYE, JJ.
DATE : 9 JANUARY 2024
P.C.:
. The Petitioner is working with Respondent Nos. 5 and
6 as Assistant Teacher. By a Government resolution dated 31
October 2005, State Government introduced Defined
Contribution Pension Scheme which came into effect from 1
November 2005. Treating the Petitioner being governed by the
new scheme of Defined Contribution Pension, deductions from
the Petitioner's salary commenced. Petitioner's case is that
Petitioner had rendered a part time service alongwith full time
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service and therefore Petitioner was entitled to old pension
scheme.
2. Petitioner filed a Writ Petition bearing No. 10385 of
2022, which was disposed of on 7 September 2022 by following
order.
". The petitioner contends that the petitioner was
appointed as part time teacher on 9th October,
2002. The said appointment was approved.
The petitioner was upgraded as a full time
teacher on 2nd January, 2006. The contention
of the petitioner is that the petitioner is governed
by the old pension scheme.
2. Reference is made to the order of this Court
dated 11th April, 2022 in Writ Petition No.
8990 of 2021 with connected writ petitions.
3. We have also heard the learned AGP.
4. In the light of the aforesaid order, we follow the
same course and pass the following order :-
(a) Deputy Director of Education-respondent
no.3 is directed to decide case of the petitioner
regarding applicability of the old pension
scheme as per Maharashtra Civil Services
(Pension) Rules, 1982 and Maharashtra Civil
Services (Computation of Pensions) Rules-1984
and General Provident Fund Scheme by
keeping in view law laid down by this Court in
its various judgments including the judgments
referred to in the body of the judgment.
(b) If it is so found by respondent no.3-Deputy
Director of Education that the petitioner is
governed by old pension scheme, the respondent
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no.3 shall issue necessary directions to not deduct
any amount from the salary payable to the
petitioner governed by the old pension scheme
for the purpose of its applying to the DCPS or
NPS, and shall also issue necessary directions for
refunding of these amounts to the petitioner from
the salary, same are deducted, within four weeks
of the date on which such determination is made.
(c) In case it is found that the petitioner is
governed by the old pension scheme necessary
directions shall be issued by respondent no.3-
Deputy Director of Education to open GPF
account in the name of petitioner found eligible
for same,within four weeks of the date on which
his eligibility is determined.
(d) The petitioner to appear before the
respondent No.3-Deputy Director of Education
on 28th September, 2022.
(e) Rule is made absolute in above terms. No
costs.
(f) Petition stands disposed of accordingly."
(emphasis supplied)
The above emphasized portion i.e. paragraph 2 refers to the order
passed by this Court dated 11 April 2022 in Writ Petition No.
8990 of 2021, which was part of the Writ Petition.
3. By the order dated 7 September 2022, Deputy
Director of Education was directed to examine Petitioner's case in
view of the law laid down by this Court in various judgments
including referred to in paragraph no. 2 of the said order. The
judgment referred in para 2 relies on various earlier decisions of
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this Court which indicate consistent legal position. Therefore,
then Division Bench passed order on 7 September 2022, Deputy
Director of Education was called upon to keep in mind the
consistent view taken and thereafter examine Petitioner's case.
Thereupon, Deputy Director passed an order on 19 June 2023
rejecting Petitioner's case. This rejection is subject matter
challenge of this Writ Petition as well as it is alleged that it is
passed in a contemptuous manner.
4. Learned counsel for the Petitioner has taken us to
order dated 19 June 2023 and submits that entire narration in the
discussion and conclusion does not take into consideration legal
position laid down in various decisions referred to in order dated 7
September 2022. Only reference that is made is to a decision in
Writ Petition No. 2311 of 2013 dated 31 March 2015(Satish
Ganpatrao Patil & Ors. V/s The State of Maharashtra) . Learned
counsel for the Petitioner contends that in subsequent decision,
Division Bench of this Court in Writ Petition No. 2074 of 2020
and group of Petitions ( Aurangabad Bench) dated 1 October
2022, reference made to the decision in Satish Ganpatrao Patil has
distinguished the said decision.
5. In the impugned order there is no reference of various
decisions referred to in order dated 7 September 2022.
Considering that the Deputy Director of Education deals with
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such issues relating to education frequently and would have
acquired domain expertise and would know the law on subject , we
have to proceed on that basis that Deputy Director would be aware
of the legal position laid down by this Court. Inspite of this
presumption that carries with the post, this Court had drawn
attention of the Deputy Director to the orders passed by this Court
and to deal with the same before passing the order, yet the Deputy
Director has not done the same. This is not an isolated case. This
Court has come across numerous orders where law laid down by
this Court is not taken into consideration by the office of the
Education Department of the State forcing the employees to
repeatedly approach this Court.
6. Issue notice in the Contempt Petition to Respondent
No. 1 Mahesh J. Chothe, Deputy Director of Education, Kolhapur
Region, Kolhapur, to file reply as to why we should not take this
case forward in the contempt jurisdiction. At this stage, this notice
be treated as notice before admission and not initiating contempt.
7. Also, issue notices to the Respondents in Writ
Petition. Learned AGP waives service for Respondent Nos. 1 to 4.
Notices are made returnable on 29 January 2024.
(M.M.SATHAYE, J.) (NITIN JAMDAR, J.)
Y.S.Patil
