Bombay High Court
Bhatt Girish P. vs Vidyavardhani A Registered Society / ... on 14 October, 2025
2025:BHC-AS:44513
Megha 39_wp_1515_2021_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1515 OF 2021
Bhatt Girish P. ...Petitioner
V/s.
Vidyavardhini and Ors. ...Respondents
______________
Mr. Anil Anturkar, Senior Advocate i/b. Mr. Harshvardhan B.
Suryawanshi for the Petitioner.
Mr. Susheel Mahadeshwar i/b. Ms. Ranjana Todankar for Respondent
Nos.1 and 2.
Mr. Sandeep Babar, AGP for Respondent Nos.3 to 5-State.
______________
CORAM: SANDEEP V. MARNE, J.
Judgment reserved on: 6 OCTOBER 2025
Judgment pronounced on: 14 OCTOBER 2025
Judgment:
1) Rule. Rule is made returnable forthwith. With the consent of
the learned counsel appearing for parties, the Petition is taken up for final
disposal.
2) The Petition presents a unique conundrum. The Petitioner
was terminated shortly before attaining the age of 58 years, which was
then treated as the age of superannuation for teachers employed in
Polytechnics. After crossing the age of 58 years, the School Tribunal
allowed Petitioner's appeal and held termination to be illegal. However, it
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did not grant him reinstatement on account of he crossing the age of 58
years and therefore directed payment of full backwages till attaining the
age of 58 years. Petitioner is aggrieved by direction for payment of
backwages only till attaining the age of 58 years and believes that he
deserves to be paid backwages till attaining the age of 60 years. With this
grouse he has instituted the present Petition.
3) During pendency of the Petition, the Division Bench of this
Court has delivered a judgment on 29 October 2021 in Lalit Rajendra
Gajanan V/s. Vidyavardhini through its Secretary and Others 1 holding
that the age of superannuation of teachers employed in Polytechnics is 60
years. While Petitioner claims backwages till attaining the age of 60 years
based on judgment of the Division Bench, the Respondent -Management
is contesting the claim by relying on judgment of the Apex Court in U.P.
Jal Nigam and Another V/s. Jaswant Singh and Another 2, in which it is
held that fence-sitters cannot be granted benefit of extension of age
retirement when they were not vigilant enough in instituting the
proceedings before attaining the original age of retirement. Respondent -
Management claims that since Petitioner has filed the present Petition
after crossing the age of 58 years, the ratio of the judgment in U.P. Jal
Nigam (supra) would apply disentitling him the relief of backwages upto
the age of 60 years. Petitioner on the other hand, attributes non-filing of
proceedings seeking extension of age of retirement owing to illegal
termination effected by the Management and claims that the present
Petition is filed well before the judgment rendered in Lalit Rajendra
Gajanan (supra). This Court is tasked upon to resolve this unique
conundrum involved in the Petition.
1
(2022) 2 Bom CR 708
2
(2006) 11 SCC 464
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4) A brief reference to factual background of the case would be
necessary. Respondent No.1 has established and manages Bhausaheb
Vartak Polytechnic at Vasai Road (West), District- Palghar, which is a
permanently unaided college. Petitioner was appointed as a lecturer in
Industrial Electronics at Respondent -Polytechnic w.e.f. 17 August 1988.
Petitioner blames Respondent-Management and its Principal for not
submitting proposals seeking approval of appointment of teaching staff
members. The Petitioner and other teaching staff were also repeatedly
making the demands for implementation of V th and VIth Pay
Commissions' recommendations. They had filed Writ Petition No.7602
of 2018 before this Court. Petitioner also had grievance about
Respondent-Management retiring the teaching staff at the age of 58 years
instead of continuing them upto the age of 60 years. Petitioner also had
grievance about the Management slowly closing the course of study in
various branches. Respondent-Management closed department of
Electronics and Telecommunication in the Polytechnic w.e.f. 1 October
2018. Owing to the closure of the department, services of the Petitioner
were retrenched w.e.f. 1 October 2018 by paying him three months' salary
in lieu of notice. Petitioner challenged that retrenchment order dated 1
October 2018 by filing Appeal No.23 of 2018 before the School Tribunal,
Navi Mumbai. By judgment and order dated 6 August 2019, the Tribunal
has partly allowed the Appeal by setting aside retrenchment order dated 1
October 2018. Petitioner is held entitled for reinstatement. However, the
relief of reinstatement was refused on the ground that he had attained the
age of superannuation. Respondent-Management is therefore directed to
pay to the Petitioner benefits of continuity of service with full backwages
from 1 October 2018 till he the attained the age of superannuation.
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5) Thus, though the Petitioner has succeeded in his Appeal, the
net effect of the order passed by the Tribunal is that he is held entitled to
salary of only one month. This is because he attained the age of 58 years
on 19 January 2019 and would have superannuated from service on the
basis of age of 58 years on 31 January 2019. Since Petitioner was paid
three months wages in lieu of notice, he has already received wages for
the months of October, November and December-2018. This is how
Petitioner would get salary of only January 2019 towards implementation
of the impugned order passed by the School Tribunal.
6) Petitioner believes that the correct age of his superannuation
is 60 years and has accordingly filed the present Petition for the purpose
of grant of full backwages from the date of retrenchment till he attains
the age of 60 years i.e. 31 January 2021. After filing of the present
Petition on 20 December 2019, the Division Bench of this Court has
delivered judgment in Lalit Rajendra Gajanan (supra) on 29 October 2021
holding that age of superannuation of teaching staff in Polytechnic would
be 60 years. Special Leave to Appeal (C) No.4635 of 2022 filed by
Respondent-Management challenging the judgment of the Division
Bench has been dismissed by the Supreme Court on 4 April 2022.
7) Mr. Anuturkar, the learned Senior Advocate appearing for
the Petitioner would submit that the issue involved in the present Petition
is squarely covered by judgment of Division Bench of this Court in Lalit
Rajendra Gajanan (supra) in which age of teaching staff in Polytechnic is
held to be 60 years. That therefore Petitioner deserves to be paid full
backwages till 31 January 2021. He would submit that the judgment of
the Apex Court in U.P. Jal Nigam (supra) has no application to the facts
of the present case whereas the Petitioner filed the present Petition well
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before delivery of the judgment in Lalit Rajendra Gajanan (supra). That
Petitioner was prevented from adopting proceedings for enhancement of
age of retirement before crossing the age of 58 years on account of illegal
retrenchment of his service. That the present Petition raises no other issue
but the issue of age of superannuation. That the Petitioner has thus taken
prompt steps for declaring increase in the age of superannuation
immediately after passing of order by the School Tribunal setting aside
the retrenchment. That Petitioner did not withdraw provident fund
accepting the age of retirement as 58 years and the same was withdrawn
by him only after his completing 62 years i.e. on 30 October 2023. That
the Petitioner therefore cannot be treated as a fence-sitter for the
application of ratio of the judgment in U.P. Jal Nigam (supra). He would
accordingly pray for payment of full backwages to the Petitioner till
attaining the age of 60 years.
8) Petition is opposed by Mr. Mahadeshwar, the learned
counsel appearing for Respondent Nos.1 and 2-Management. He would
submit that the present case is squarely covered by ratio of the judgment
of the Apex Court in U.P. Jal Nigam (supra) as the Petition is filed long
after the Petitioner crossed the age of 58 years. That the Apex Court has
clearly held in the case of U.P. Jal Nigam that non-vigilant employee
initiating proceedings after crossing the age of retirement cannot be
granted benefit of increased age of retirement. He would submit that
issue of age of retirement cannot be contested in the present Petition,
which seems to challenge order passed by the School Tribunal. That the
Tribunal does not have jurisdiction to decide the issue of age of
retirement. That the jurisdiction of the School Tribunal is restricted only
to termination and supersession. That while challenging order passed by
the School Tribunal deciding the issue of retrenchment, the issue of
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extension of period of service cannot be raised by way of sidewind. That
Petitioner has acquiescence in the age of retirement as 58 years. That
Petitioner's colleague-Suresh Ninu Mahajan had filed Writ Petition No.
14189 of 2017 before this Court seeking enhancement of age of
retirement to 60 years and on 22 December 2017, this Court had passed
an interim order for continuation of services. While Petitioner relies on
said interim order, he did not join his colleague in seeking declaration of
age of retirement as 60 years. That the Petitioner was in service when his
colleague filed Writ Petition No.14189 of 2017. Similarly, Petitioner
adopted a separate remedy in respect of payment of pay scales by filing
Writ Petition No.7602 of 2018 while he was in service but did not include
the relief of seeking declaration of age of retirement as 60 years. That
these factors would clearly indicate that Petitioner has consciously chosen
not to adopt remedies in respect of his age of retirement and he would be
squarely covered by the ratio of the judgment in U.P. Jal Nigam (supra).
He would also rely upon judgment of this Court in Dr. Arun R. Damle
V/s. Vidyavardhini and Ors.3 in which Division Bench has declined the
relief of extension of service to teaching staff, who filed Petition after
crossing the age of 58 years. He would accordingly pray for dismissal of
the Petition.
9) Rival contentions of the parties now fall for my
consideration.
10) The Petition arises out of challenge raised to the order
passed by the School Tribunal on 6 August 2019 by which Petitioner's
Appeal has been partly allowed. Though Petitioner has succeeded in
3
Writ Petition No.11004 of 2022, decided on 7 February 2024
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getting retrenchment order set aside he has virtually achieved nothing.
Paragraph 23 and operative portion of School Tribunal's order reads thus:
23. As letter dated 01.10.2018 is illegal and is set aside therefore it is
otherwise termination of the Appellant. Closure is without obtaining
the permission of the competent authority therefore Appellant is
entitled to the relief of reinstatement, full-back-wages and continuity
of service. However, as Appellant has attained the age of
superannuation therefore he is not entitled for reinstatement.
However he is entitled to full-back wages and continuity of service.
Hence I answer Point No.3 accordingly. In the result I proceed to
pass following order:
ORDER
1. The appeal is partly allowed with proportionate cost.
2. The letter of retrenchment dated 01.10.2018 is illegal hence
it is set aside.
3. The Appellant was entitled to reinstatement but as he has
attained the age of superannuation so relief of reinstatement
is refused.
4. The Respondents are directed to give benefits of continuity
of service and full back-wages to the Appellant from the date
of letter dated 01.10.2018 till age of superannuation within
one month from the date of this order.
11) As observed above, Petitioner had attained the age of 58
years on 19 January 2019 and would have retired from service on 31
January 2019. Therefore, order of the School Tribunal means payment of
wages from October-2018 to January 2019. Since Petitioner is already
paid wages in lieu of salary till December-2018, all that he has achieved
by succeeding before the School Tribunal is to receive wages for the
month of January 2019. Even the same are not paid to him by the
Management on the pretext of he not approaching the Management for
payment of wages of January 2019. I fail to comprehend as to why
Petitioner was required to approach the Management for receiving
benefits of order passed by the School Tribunal. It was the duty of
Respondent-Management to deposit wages of Petitioner for the month of
January-2019. Be that as it may. This issue need not detain the Court any
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further as the real issue involved in the Petition is whether the Petitioner is
entitled to payment of wages upto 31 January 2021 when he would have
superannuated in view of judgment of Division Bench in Lalit Rajendra
Gajanan (supra).
12) The judgment in Lalit Rajendra Gajanan is delivered by the
Division Bench in relation to one of the employees of the same
Management. The issue before the Division Bench was with regard to the
age of superannuation for teaching staff in Respondent-Polytechnic. The
Division Bench noticed conflict between the provisions of the
Maharashtra Employees of Private Schools (Conditions of Service) Rules,
1981 and AICTE regulations in regard to the age of retirement. The
Court held that the age of superannuation prescribed under the AICTE
Regulations would prevail and not the one prescribed in Rule 17 of the
MEPS Rules. The Division Bench thus held age of superannuation of
Petitioners therein would be 60 years and not 58 years. Special Leave
Petition filed by the Respondent-Management challenging the judgment
in Lalit Rajendra Gajanan has been dismissed by the Supreme Court by
order dated 4 April 2022. Thus, the law appears to be clear now that the
age of superannuation for teaching staff in the Respondent-Polytechnic
would be 60 years.
13) The issue here however is whether the benefit of the
judgment in Lalit Rajendra Gajanan can be extended to the case of the
Petitioner. The judgment in Lalit Rajendra Gajanan is delivered on 29
October 2021. Petitioner attained the age of 58 years on 19 January 2019
and his retrenchment was set aside by the School Tribunal on 6 August
2019. Thus, the judgment of Division Bench is rendered after Petitioner
crossed age of 58 years and also after the School Tribunal set aside his
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retrenchment. The Respondent-Management has therefore relied upon
judgment of the Apex Court in U.P. Jal Nigam (supra), in which the
Respondent therein had already retired on attaining the age of 58 years.
Some of the employees had petitioned the High Court and thereafter the
Apex Court seeking declaration of age of superannuation as 60 years i.e.
on par with State Government employees. The Apex Court in Harwindra
Kumar vs. Chief Engineer, Karmikand others,4 declared that age of
retirement for employees in Nigam would also be 60 years. After the
judgment of the Apex Court in Harwindra Kumar a spate of writ
petitions followed in the High Court by the employees, who had retired
long back. In the light of this position, the issue before the Apex Court
was whether employees, who did not wake up to challenge their
retirement and accepted the same and collected their post-retirement
benefits, could be given benefit in the light of the subsequent decision
delivered by the Apex Court. The issue has been captured in paragraph 5
of the judgment as under:
5. So far as the principal issue is concerned, that has been settled by this
Court. Therefore, there is no quarrel over the legal proposition. But the
only question is grant of relief to such other persons who were not
vigilant and did not wake up to challenge their retirement and accepted
the same but filed writ petitions after the judgment of this Court in
Harwindra Kumar. Whether they are entitled to same relief or not?
Therefore, a serious question that arises for consideration is whether the
employees who did not wake up to challenge their retirement and
accepted the same, collected their post-retirement benefits, can such
persons be given the relief in the light of the subsequent decision
delivered by this Court?
14) The Apex Court has answered the issue in paragraph No.17
as under:-
2005 (13) SCC 300
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17. The benefits shall only be confined to abovementioned
persons who have filed writ petitions before their retirement or
they have obtained interim order before their retirement. The
appeals filed against these persons by the Nigam shall fail and
the same are dismissed. Rest of the appeals are allowed and
orders passed by the High Court are set aside. There would be
no order as to costs.
15) Thus, in U.P. Jal Nigam (supra), the Apex Court has held
that benefit of judgment enhancing the age of retirement can be given
only to a person who had filed Writ Petition before his retirement or had
secured interim order before his retirement. Relying on the dictum of the
Apex Court in U.P. Jal Nigam, it is sought to be contended on behalf of
the Respondent-Management that since the Petitioner did not file any
proceedings seeking extension of age of retirement before crossing age of
60 years, he is now precluded from raising the said issue in the Petition
filed on 20 December 2019. Petitioner had crossed the age of 58 years on
19 January 2019.
16) What needs to be appreciated in the present case is that
Petitioner was prevented from seeking any relief relating to age of
retirement of 60 years on account of retrenchment of his services on 1
October 2018. Unless Petitioner got his retrenchment set aside, it was not
possible for him to file any proceedings relating to the correct age of
retirement. His retrenchment order was set aside by the School Tribunal
on 6 August 2019 only after he crossed the age of 58 years on 19 January
2019. Petitioner promptly filed the Petition on 20 December 2019. The
only issue raised in the present Petition is about correct age of retirement
of 58 years. Since Petitioner has succeeded before the School Tribunal no
other issue is raised by him in the present Petition. Respondent-
Management has not challenged the order of School Tribunal and has
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accepted the same. In the light of this position, the Petition raises the sole
issue of correct age of retirement of the Petitioner.
17) It is contended on behalf of the Respondent-Management
that the issue of age of retirement could not be agitated before the School
Tribunal and that it was therefore rightly not raised in the Appeal filed by
the Petitioner. It is therefore contended that the said issue cannot be
permitted to be raised in the present Petition, in which the Tribunal's
order is challenged. Though what is contended on behalf of the
Respondent-Management cannot be said to be entirely wrong, it must be
noted that the Petitioner has faced a rather strange situation. Though the
issue of correct age of retirement was not involved in proceedings filed
before the School Tribunal, ultimately the School Tribunal has restricted
the relief admissible to the Petitioner on the basis of his age of retirement
of 58 years. Thus, it cannot be contended that the issue of correct age of
retirement of the Petitioner was altogether foreign to the proceedings filed
before the Tribunal. If the issue of correct age of retirement is not
determined in the present Petition, the Petitioner will have to be driven to
another round of litigation by filing a writ petition before a Division
Bench of this Court. After securing the declaration that the correct age of
retirement of the Petitioner is 60 years in petition filed before a Division
Bench, the Petitioner may still have to challenge the order passed by the
School Tribunal to ensure that he gets the relief of backwages for a period
up to 31 January 2021. Considering the fact that the Petitioner has already
retired from service (by crossing even the age of 60 years in January 2021)
and is at an advanced age of about 64 years now, in my view, it would be
appropriate to not to drive Petitioner to another round of litigation. It is
on account of these peculiar circumstances, this Court thinks it
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appropriate to go into the issue of correct age of retirement of the
petitioner in the present Petition.
18) As observed above, Petitioner was prevented from adopting
proceedings for extending his services upto 60 years on account of his
unlawful termination. If his services were not retrenched and if he was
not to file any proceedings for seeking enhancement of age of retirement,
the ratio of judgment in U.P. Jal Nigam (supra) would have applied to his
case with full force. However the said ratio cannot be made applicable to
the peculiar facts of the present case.
19) Also of relevance is the fact that the Petitioner had been
agitating the issue of correct age of retirement well before his
retrenchment. This is clear from observations of the School Tribunal in
paragraph 3 of its order, which read thus:
3. According to Appellant the age of retirement is 60 years but
Respondent Management has been treating 58 years as age of
retirement and replacing them by contractual appointees with
intend to ear the benefits.
Thus, Petitioner has not raised the issue of age of retirement of 60 years
only after delivery of judgment in Lalit Rajendra Gajanan. He had raised
the said issue with the Respondent-Management well before he was
retrenched on 1 October 2018. Thereafter he was prevented from
exercising any remedy in respect of age of retirement on account of
termination of his services. However, well before the decision in Lalit
Rajendra Gajanan could be delivered on 29 October 2021, Petitioner had
already filed the present Petition on 20 December 2019.
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20) Considering the above peculiar facts, in my view, the benefit
of age of retirement of 60 years declared in the judgment of Lalit
Rajendra Gajanan cannot be denied to the Petitioner. Petitioner cannot be
treated as a fence-sitter who acquiesced on his retirement on attaining the
age of 58 years. He also did not receive any retirement benefit by
accepting the age of retirement of 58 years. He did not withdraw the
Provident Fund immediately after crossing age of 58 years but withdrew
the same after attaining the age of 62 years. In my view therefore the ratio
of the judgment of the Apex Court in U.P. Jal Nigam cannot be applied
to the facts of the present case where Petitioner was already raising the
issue of age of retirement of 60 years well before his retrenchment and
filed the present Petition well before delivery of judgment of the Division
Bench in Lalit Rajendra Gajanan. For the same reason, the judgment of
Division Bench in Dr. Arun R. Damle (supra) would have no application
to the present case. In that case, Petitioner therein had filed Writ Petition
seeking extension of age of retirement after crossing the age of 58 years.
21) The objection of Respondent-Management that the
Petitioner did not join his colleague in filing Writ Petition No.14189 of
2017 does not appeal to me. May be the Petitioner was in service when
his colleague filed Writ Petition No.14189 of 2017. However, merely
because Petitioner did not join him in litigation, the same does not mean
that he had acquiesced of retirement of 58 years. Order of the School
Tribunal indicates that the Petitioner was raising issue of age of
retirement of 58 years much before his retrenchment. Similarly, objection
of Petitioner filing Writ Petition No.7602 of 2018 alongwith his
colleagues for implementation of recommendations of Pay Commission
but not including relief of extension of age of retirement does not appeal
to this Court. Inclusion of prayer for extending the age of retirement in
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Writ Petition No.7602 of 2018 would have invited the objection of
misjoinder of causes of action as issue of implementation of
recommendations of Pay Commissions has nothing to do with the issue
of age of retirement. Therefore, non-inclusion of relief of age of
retirement in Writ Petition No.7602 of 2018 filed during service tenure of
the Petitioner would not be a ground for presuming acceptance or
acquiescence on his part of age of retirement of 58 years.
22) Conspectus of the above discussion is that Petitioner needs
to be extended benefit of judgment in Lalit Rajendra Gajanan (supra).
Extending him benefit of the said judgment would mean granting him
reinstatement as he was yet to cross the age of 60 years as on the date of
decision by the Tribunal or even on the date of filing of the petition.
However since the Petitioner has crossed the age of even 60 years during
pendency of the Petition, extending the benefit of judgment in Lalit
Rajendra Gajanan would actually mean grant of full backwages till he
attained the age of 60 years i.e. upto 31 January 2021. However, this
Court notes the position that the Respondent-Management is an unaided
institute and will not be able to bear the burden of payment of full
backwages for over two years. Considering the peculiar facts and
circumstances of the present case where the benefit of judgment in Lalit
Rajendra Gajanan is being extended to the Petitioner even though the
Petition is filed after crossing the age of 58 years, in my view, the relief of
full backwages granted to Petitioner by the Tribunal needs to be modified.
Instead of awarding full backwages to the Petitioner, he needs to be paid
lumpsum compensation. It must be borne in mind that delivery of
judgment in Lalit Rajendra Gajanan is nothing but a fortuitous
circumstance for the Petitioner. Therefore, the Management cannot be
saddled with the burden of paying wages for over two years in the facts of
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the present case. In my view, therefore, ends of justice would meet if
Respondent-Management is directed to pay to the Petitioner lumpsum
compensation of Rs. 5,00,000/- in lieu of reinstatement and backwages.
23) I accordingly, proceed to pass the following order:-
(i) Judgment and order dated 06 August 2019 passed by the
School Tribunal in Appeal No.23 of 2018 is set aside to
the limited extent of not granting the relief of
reinstatement by presuming the age of superannuation as
58 years.
(ii) The Petitioner shall however be entitled to lumpsum
compensation of Rs.5,00,000/- in lieu of relief of
reinstatement and back-wages.
(iii) The Respondent-Management shall pay to the Petitioner
compensation of Rs. 5,00,000/- within two months.
(iv) Beyond the lumpsum compensation of Rs. 5,00,000/-,
Petitioner shall not be entitled to any other service related
benefits from the Respondent-Management.
24) With the above directions, Petition is partly allowed. Rule is
made partly absolute. There shall be no orders as to costs.
[SANDEEP V. MARNE, J.]
Designation: PA To Honourable Judge 14 October 2025
Date: 14/10/2025 14:24:22
