Bombay High Court
Dwarkabai Prabhakar Rmateke vs The State Of Maharashtra And Others on 8 May, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
-1-
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5592 OF 2021
Dwarkabai w/o Prabhakar Ramteke .. Petitioner
versus
The State of Maharashtra & others .. Respondents
Mr. A. G. Dalal, Advocate for the Petitioner.
Mr. V. S. Badakh, AGP for Respondent Nos. 1 to 4.
CORAM : RAVINDRA V. GHUGE AND
R. M. JOSHI, JJ.
RESERVED ON : 2nd MAY, 2024.
PRONOUNCED ON : 8th MAY, 2024.
PER COURT : ( Per R. M. Joshi, J.)
1. The Petitioner, being aggrieved by the refusal of
condonation of delay in M.A. No.65/2018 in Original Application
Stamp No. 883/2016 by the Maharashtra Administrative Tribunal
(for short "the Tribunal"), has preferred this Writ Petition under
Articles 226 and 227 of the Constitution of India.
2. It is the case of the Petitioner that her husband
Prabhakar Wanganuji Ramteke was in service of Tahsil Office, Jintoor
as a clerk with effect from 23.01.1968. He died while in service on
30.06.1985 after performing 17 years of service. The Petitioner
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claims that her marriage with Prabhakar was solemnised in 1984
after his first wife Rukhminibai died on 04.07.1984. The Petitioner
claims to be the legally wedded wife of Prabhakar and therefore seeks
pensionary benefits. It is further case of the Petitioner that she had
filed an Application for seeking family pension but since no action
was taken, a proceeding was filed before the Tribunal for seeking
retiral benefits of the deceased Prabhakar. The said Application,
however, was not entertained for the reason that Dadaji, the brother
of deceased Prabhakar, had obtained succession certificate from the
competent Court. The Petitioner, therefore, was required to prefer
proceeding bearing M.A.(R.J.E.) No. 2/2006 for revocation of the
succession certificate dated 17.04.1986 issued by the Civil Court,
Jintoor in favour of the brother of the deceased. The said Application
was allowed and the succession certificate issued in favour of the
brother of the deceased was revoked. Thereafter, the Petitioner
preferred another Application bearing Misc. Civil Application No.
10/2009 before the Civil Judge, Senior Division, Jintoor for grant of
heirship certificate, which came to be allowed in her favour. On
17.07.2010, the Petitioner submitted heirship certificate to the office
of Respondent No. 2 requesting for grant of pensionary benefits. The
said representation however, was not considered and hence the
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Original Application was filed before the Tribunal for the said relief.
Misc. Application No. 65/2018 which was filed in Original Application
Stamp No. 883/2016 was rejected by the Tribunal and hence this
Petition.
3. Respondent No. 4 filed reply contending that his office
does not act on its own volition, but authorizes pensionary benefits
only on receipt of proper pension papers duly attested by the
Sanctioning Authority of the State Government. It is also pointed out
that the Tribunal has refused to condone the delay and in the facts of
the case, grant of relief is opposed.
4. We have heard the learned Advocates for both the sides
extensively and perused the material record placed before this Court.
5. At the outset, it needs to be recorded that the learned
Tribunal has not decided the Original Application of the Petitioner on
merit but has passed an order on the Application for condonation of
delay, thereby rejecting the same. Therefore, the only issue that falls
for consideration before this Court is as to whether the delay caused
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in preferring the Original Application before the Tribunal, deserves to
be condoned.
6. The law on the point of condonation of delay is fairly
settled to say that inordinate and unexplained delay need not be
condoned. However, at the same time, there is no complete embargo
on the Court for condoning delay in appropriate cases where the
fundamental rights of the party are affected and there is no
deliberate/intentional act in moving the Courts in reasonable time.
Needless to say that the number of days of delay or time would not be
relevant but the peculiarity of the fact and the explanation given by
the party would be more relevant for condonation/non-condonation
thereof.
7. The learned Advocate for the Petitioner has relied upon
the judgment of the Hon'ble Supreme Court in case of S. K. Mastan
Bee vs. General Manager, South Central Railway and another, (2003)
1 Supreme Court Cases 184, wherein, according to him, in the
same set of facts the delay was condoned with observation that
denial of pension to the Petitioner was violation Article 21 of the
Constitution of India.
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8. The learned AGP opposed the said contention on the
ground that the Tribunal has taken into consideration the said
judgment and has distinguished the facts in both the cases and as
such no interference is called for in the impugned order.
9. In order to decide as to whether the delay caused in filing
of the Application deserves to be condoned or not, it would be
relevant to take into consideration the facts of the case in hand. On
perusal of the record we find peculiar set of facts involved herein.
The Petitioner is the second wife of deceased Prabhakar. In the year
2006, she did file Application before the Tribunal for seeking
pensionary benefits after death of her husband. The said Application
however, was rejected for the reason that Dadaji, the brother of
Prabhakar had obtained succession certificate from the competent
Court. The Tribunal therefore held that it would not be possible to
pass any order till such succession certificate issued in favour of the
brother of the deceased is revoked. The Petitioner, therefore, was
required to prefer proceeding before the concerned Court bearing
M.A.(R.J.E.) No. 2/2006 for revocation of succession certificate dated
17.04.1986. The concerned Court revoked the succession certificate
issued in favour of the brother of the deceased. It is after this, the
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Petitioner was required to file another Application bearing Misc. Civil
Application No. 10/2009 for the purpose of issuance of heirship
certificate in her favour. The said heirship certificate came to be
granted on 17.02.2010. After obtaining the heirship certificate, the
Petitioner moved representation before Respondent No. 2 with a
request for grant of pensionary benefits in view of issuance of
heirship certificate in her favour. The Petitioner also claims that she
made several representations but they were not responded to by
Respondent No. 2.
10. No doubt, apparently it seems that after obtaining
heirship certificate on 17.02.2010, an Application came to be filed
before the Tribunal in the year 2016 i.e. after six years. However, at
the same time, one cannot ignore the fact that the first Application
filed before the Tribunal was rejected only on the ground that there
was succession certificate issued in favour of the brother of the
deceased and till the time the same is revoked, it was not open for
the Tribunal to pass any order in favour of the Petitioner. In the
backdrop of this order, the Petitioner initiated proceeding for
revocation/cancellation of the succession certificate issued in favour
of the brother of the Petitioner and subsequently obtained heirship
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certificate in her favour. All these facts clearly indicate that the
Petitioner was vigilant about her rights and had initiated a
proceeding to establish the same before the competent Courts. It is
only after making representation to Respondent No. 2 on the basis of
heirship certificate, she did not file Application before the Tribunal
immediately. We have reason to believe that the Petitioner was under
a bonafide belief that obtaining the heirship certificate would serve
her purpose and she would be granted benefits. Pertinently, there is
nothing on record to indicate that Respondent No. 2 has even
considered the said representation and/or has refused the same in
order to give cause of action to the Petitioner to file Application before
the Tribunal.
11. In our considered view, the learned Tribunal has missed
the said issue/aspect of the matter. We are, therefore, of the view
that this is not a case wherein there is any inaction; deliberate or
otherwise, on the part of the Petitioner in not filing the Application
before the Tribunal in time. So also, the law recognizes the right of
the Petitioner to the service benefits of her deceased husband and
the delay caused should not be an impediment to deprive her of those
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benefits in her old age, when she has no source of income to sustain
herself. We, therefore, find it to be a fit case for condonation of delay.
12. We have perused the order passed by the Tribunal which
indicates that the rejection was only on the ground of delay without
touching the merits of the case. We, therefore, do not wish to record
any finding on the merits of the matter. Hence, this Writ Petition is
allowed. The impugned order passed by the learned Tribunal, is set
aside. Misc. Application No. 65/2018 filed in Original Application
Stamp No. 883/2016, stands allowed. The Original Application be
registered. The Tribunal is requested to decide the Original
Application within a period of six months.
( R. M. JOSHI) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
dyb
