Bombay High Court
Prabhavati Ashokrao Bhambare 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. 7639 OF 2020
Smt. Prabhavati Ashokrao Bhambare .. Petitioner
versus
The State of Maharashtra & others .. Respondents
Mr. M. M. Bhokarikar, Advocate for the Petitioner.
Mr. R. K. Ingole, AGP for Respondent Nos. 1 to 5.
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 has filed this Petition with following
prayers :-
b) The petitioner may kindly be declared as
entitled for pension and other pensionary benefits,
after death of her husband. Late Ashok Yamaji
Bhambre, which is from 10.1.2006.
c) The direction may kindly be given to
respondents that they shall pay regular pension
henceforth, arrears of pension, with all other
pensionary benefits from 10.01.2006 for which
petitioner is eligible under law, till filing of petition
with interest as commercial rate.
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d) The earlier decision, which are against petitioner
and/or by Hin. Tribunal, Hon. Court, may kindly be
quashed and set aside and be declared as not binding
on the petitioner nor would affect her right of getting
pension and pensionary benefits from respondents.
2. Ashok Yamaji Bhambre, the husband of the Petitioner,
was appointed on 25.11.1983 on salary of Rs. 300/- per month in
Public Works Department, Ambajogai. He worked continuously for
more than 240 days and claimed to have become permanent
employee. On 05.02.1987, to ensure that there is no continuous
service, steps were taken by the Respondents against him. He, along
with other employees, filed complaint ULP No. 39/1987 through
Union, as Mustering Assistant and Mestri Sanghatana
(Maharashtra). The learned Industrial Court granted interim
protection on 26.02.1987 however, dismissed the Complaint on
22.12.1993. Ashok died on 10.01.2006. The Petitioner, therefore,
filed Original Application No. 669/2006 which was dismissed by
order dated 24.01.2007 concluding that since Ashok was absorbed in
the service on 25.06.2004, the Petitioner is not entitled for
pensionary benefits. She, however, claims that her son was
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appointed on compassionate basis and joined the service on
11.07.2013.
3. On behalf of Respondent No. 4, Narayan Tatyarao Patil,
Executive Engineer, Public Works Department, Ambajogai, filed
affidavit-in-reply opposing the Petition. It is not disputed that the
husband of the Petitioner was working as Mustering Assistant. From
25.11.1983 and pursuant to the policy of the State Government he
was absorbed as clerk cum surveyor with the office of the Deputy
Director of Land Records, Nashik. He was issued posting order on
17.01.2005. It is however, specifically stated that he did not join the
said post and never worked on the absorbed post till his death. In
support of the said statement, documents are placed on record.
4. A rejoinder-affidavit was filed by the Petitioner. It is
claimed that she being illiterate the order of absorption in the office
of Deputy Director of Land Records, Nashik, dated 17.01.2005 came
to her notice for the first time in this proceeding. The Petitioner
could not comment on the contents of the affidavit filed by the
Respondent on the ground that she is not aware about the details
thereof. She only claims that she was residing with her husband till
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his death and she knows that he was continuously working in the
Government office as the employee of the Government.
5. The learned Advocate for the Petitioner submits that the
order passed by the Tribunal dated 24.01.2007 in Original
Application No. 669/2006 is consequential to the judgments passed
by the Hon'ble Supreme Court as well as this Court in number of
cases. He made reference to Civil Appeal No. 6531-6533/2022 and
order dated 07.09.2022 passed by the Hon'ble Supreme Court to
submit that the date 31.03.1997 should be taken into account as
notional date for determining the pensionary service and as such the
findings recorded by the Tribunal that the husband of the Petitioner
was granted absorption after 26.06.2004 is not relevant now. He also
drew attention of the Court to the following judgments :-
i) Shaikh Miya s/o Shaikh Chand vs. State of Maharashtra
Civil Appeal No. 6531-6533/2022 decided on 07.09.0222.
ii) State of Maharashtra vs. Ramchandra Kondiba Mahajan
Special Leave to Appeal (Civil) no. CC 3641/2024
decided on 03.03.2014
iii) The State of Maharashtra vs. Kishor Digmabar Gaikwad
Special Leave Petition (Civil) Diary No. 44716/2019
decided on 18.12.2019
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iv) Prem Singh vs. State of Uttar Pradesh
AIR 2019 SC 4390
v) Shalik Wamanrao Ranavare vs. State of Maharashtra
Writ Petition No. 2236/1997 decided on 24.08.2012.
vi) Dnyanu Pandurang Pingale vs. State of Maharashtra
Writ Petition No. 10321/2013 decided on 09.02.2021.
vii) MahatmaPhule Krishi Vidyapeeth, Ahmednagar
vs. Ganpat Kisan Karle, 2016(3) ABR 697 (SJ)
6. The learned AGP opposed the said submission by
referring to the documents on record and according to him, there is
no dispute about the fact that the husband of the Petitioner has
never accepted the order of absorption and hence the question of his
absorption in service and consequential grant of pensionary benefits
does not arise. To support his submission about Petitioner having no
right to claim pension, he placed reliance on the judgment of this
Court in Writ Petition No. 4864/2014 (Shaikh Mohammad Younus
s/o Shah Mohammad vs. The State of Maharashtra) dated
03.04.2024.
7. Though we find that the Petitioner had preferred
proceeding bearing Original Application No. 669/2006 before the
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Tribunal and the said Application was rejected by order dated
24.01.2007 and no Petition was filed raising challenge to the said
order til 2020, we however, do not wish to go into the technicality of
the period of limitation for the challenge of the said order. We have
taken this view considering the contentions of Petitioner about
passing of subsequent orders by the Hon'ble Supreme Court and this
Court in connection with other Mustering Assistants. The order of
the Hon'ble Supreme Court in case of Shaikh Miya s/o Shaikh
Chand (supra), no doubt holds that irrespective of the actual date of
absorption of the Mustering Assistants, the notional date of
absorption should be considered as 31.03.1997 for determining the
pensionary benefits. Before us, however, the question arises as to
whether the husband of the Petitioner was absorbed and he joined
the absorbed post for the purpose of getting consequential benefit
thereof.
8. Respondent No. 4, by filing affidavit-in-reply, has brought
on record the absorption order issued to the husband of the
Petitioner calling upon him to join the post as a clerk cum surveyor.
Clause No. 13 of the said order indicates that if for any reason the
employee refuses to accept the said absorption, he would not be
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entitled for any benefit. There is a statement on oath that Petitioner's
husband never joined the said post before his death in the year 2006.
There is however, no rebuttal of the said factual aspect by the
Petitioner in the affidavit-rejoinder. Moreover, the documents placed
on record by the Petitioner indicate that from January to March
2006, her husband was paid salary by PWD, Ambajogai, meaning
thereby inspite of issuance of order for absorption, the husband of
the Petitioner did not join the said post. He, therefore, cannot be
treated as absorbed in regular service.
9. The Government by passing Resolution on 21.04.1999
decided to absorb Mustering Assistants Class III and IV as per their
educational qualification without applying the Maharashtra Civil
Services Pay Rules. They were absorbed by creating super-numerary
posts. The Hon'ble Supreme Court has held that since they were
absorbed it would be appropriate to consider the notional date of
absorption to be 31.03.1997 for determining the pensionary benefits.
Needless to emphasis that the pre-requisite for getting the pensionary
or any other benefits of absorption would be acceptance of such post
by the Mustering Assistant. In the instant case, the husband of the
Petitioner did not accept the said post. We are, therefore, unable to
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accept the contention of the Petitioner that her husband was
absorbed in service and therefore she is entitled for the pensionary
benefits by treating the Notional date of absorption as 31.03.1997.
10. We find that the son of the Petitioner and deceased
Ashok, is given compassionate appointment by the Government. The
Petitioner's claim could have sustained only after her husband had
accepted the post as per the order of absorption. Once the said
absorption is not accepted by him, we do not find any reason or
justification to cause interference in the impugned order passed by
the Tribunal. Even otherwise, independently considering the factual
aspect on record and material placed before us, we do not find
Petitioner to be entitled for any benefit of absorption. The judgments
(supra) would not support the case of the Petitioner for material
difference in the facts of those cases and one in hand.
11. In view of the above, the Writ Petition stands
dismissed.
( R. M. JOSHI) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
dyb
