Madhya Pradesh High Court
Dr. (Mrs) Nihar Gite vs Staet Of M.P. Through Department ... on 23 September, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 23 rd OF SEPTEMBER, 2023
WRIT PETITION No. 1245 of 2021
BETWEEN:-
DR. (MRS.) NIHAR GITE W/O SHRI RAHUL GITE, AGE: 68
YEAR S, OCCUPATION: RETIRED PROFESSOR, P.M.B.
GUJRATI COMMERCE COLLEGE, INDORE, R/O: 539-A
MAHALAXMI NAGAR, OPPOSITE BOMBAY HOSPITAL,
INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI L. C. PATNE - ADVOCATE.)
AND
1. THE STATE OF MADHYA PRADESH, THROUGH
T H E PRINCIPAL SECRETARY TO THE
GOVERNMENT OF MADHYA PRADESH,
DEPARTMENT OF HIGHER EDUCATION,
VALLABH BHAWAN MANTRALAYA, BHOPAL 462
004 (MADHYA PRADESH)
2. THE COMMISSIONER, GOVERNMENT OF
MADHYA PRADESH, DEPARTMENT OF HIGHER
EDUCATION, SATPURA BHAWAN, BHOPAL
(MADHYA PRADESH)
3. THE EDUCATION OFFICER AND PRINCIPAL,
GOVERNMENT MATA JEEJA BAI GIRLS' POST
GRADUATE COLLEGE, MOTI TABELA, INDORE
(MADHYA PRADESH)
4. THE PRINCIPAL, M.K.H.S. GUJARATI GIRLS
C O L L E G E , 1, MAHARANI ROAD, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 3 - STATE BY SHRI RAJWARDHAN GAWDE -
ADVOCATE.)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 9/25/2023
6:33:50 PM
2
following:
ORDER
Petitioner has filed this petition under Article 226 of Constitution of India
seeking direction to the respondents to make payment of salary and allowances
to her for the period 01.07.2015 to 30.06.2018 with interest.
2. According to the petitioner, she was wrongly retired at the age of 62 years
on 30.06.2015 vide order dated 01.04.2015 (Annexure P/6), whereas as per
Statute No.28 (College Code 28) framed by the Coordination Committee, in
exercise of powers conferred by Section 36 of Madhya Pradesh
Vishwavidyalaya Adhiniyam, 1973, she was entitled to continue in service up to
the age of 65 years.
3. Identical writ petitions have been allowed by this Court as well as Supreme
Court by directing the respondents to pay salary of intervening period i.e. the
date of retirement at the age of 62 years up to 65 years' superannuation age.
4. Respondents No.1 to 3 - State of Madhya Pradesh filed reply by
submitting that in case of R.S. Sohane v. State of Madhya Pradesh reported
as (2019) 16 SCC 796, the Apex Court has not directed to pay salary to those
Teachers, who did not work continuously up to the superannuation age of 65
years; and the aforesaid direction was given only for those teachers, who are
working and also to those teachers who have continuously worked till attaining
the age of superannuation i.e. 65 years. Since the petitioner did not work up to
the age of 65 years, therefore, she is not entitled for payment of salary on the
principle of "no work no pay".
5. In this case, petitioner was retired at the age of 62 years with effect from
30.06.2015 vide order dated 01.04.2015 (Annexure P/6). She approached this
Court by way of Writ Petition No.3346 of 2015 and by order dated 22.06.2015
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Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 9/25/2023
6:33:50 PM
(Annexure P/7), the respondents were directed to continue the petitioner in the
service till next date of hearing or till she attains 65 years of age. Later on, vide
common order dated 08.10.2015 (Annexure P/8) passed in main lead case
Writ Petition No.4698 of 2020 (Dr. Smt. Anjana Manawat W/o Shri
Pramod Manawat v. The State of Madhya Pradesh & others), all the writ
petitions were dismissed. Accordingly, the petitioner was discontinued from
services vide order dated 15.10.2015 (Annexure P/9).
6. Thereafter, petitioner approached the Apex Court along with R.S. Sohane
and vide order dated 07.05.2019 (Annexure P/10), the Apex Court has allowed
Civil Appeal No.4675-76 of 2019 with connected appeals and set aside the
order passed by the Full Bench of High Court as well as consequential
judgments of Division Bench of High Court and held that all the Teachers of
private aided institutes are entitled to continue their services up to the age of 65
years; and direction was issued to the Government of Madhya Pradesh to pay
salaries to the Teachers in added private colleges, who are working and also
those who have worked till they attained the age of superannuation of 65 years.
7. Thereafter, now the petitioner has filed the present petition seeking
payment of salary and allowances for the period 01.07.2015 to 30.06.2018 i.e.
the period during which she was forced to remain out of employment.
8. Similar issue came up for consideration before this Court in Writ Appeal
No.378 of 2018 (Balkrishna Rathi v. The State of Madhya Pradesh)
decided 08.07.2019 (Annexure R/1) in which a Division Bench of this Court
has held that the appellant is certainly entitled to continue up to the age of 65
years.
9. Thereafter, this issue again came up for came up for hearing before the
Apex Court in case of Dr. Jacob Thudipara v. The State of Madhya
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Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 9/25/2023
6:33:50 PM
Pradesh reported as 2022 SCC OnLine SC 488 = 2022 Vol. 7 SC 764 , the
operative para of the said order is reproduced below: -
"Having heard learned counsel appearing on behalf of the respective parties
and considering the various orders passed by the High Court, by which in similar facts
and situation and not accepting the submission on behalf of the State that on the
principle of 'no work no pay' the teachers are not entitled to any monetary benefits
for the intervening period between 62 years and 65 years of age, we are of the
opinion that appellant shall be entitled to all consequential and monetary benefits
including the arrears of salaries and allowances for the intervening period, as if he
would have been retired at the age of 65 years. The appellant being similarly situated
teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and
other allied writ appeals, it was submitted by the State that on the principle of 'no
work no pay' such teachers are not entitled to any monetary benefits. However, the
High Court vide detailed judgment and order has negated such a plea and defence
and has observed that as the teachers were prevented from serving up to the age of
65 years though they were entitled to, as held by this Court in the case of Dr. R.S.
Sohane (supra), they cannot be denied the monetary benefits for the intervening
period. It is reported that the said judgment and order passed by the Division Bench
of the High Court has been implemented by the State after the Special Leave Petition
against the said judgment and order has been dismissed by this Court.
In view of the above discussion and for the reasons stated above, the present
appeal succeeds. The impugned judgment and order passed by the Division Bench of
the High Court in W.A. No. 667/2016 is hereby quashed and set aside, which was
passed relying upon the decision of Full Bench of High Court in W.A. No. 950/2015,
which has been subsequently set aside by this Court in the case of Dr. R.S. Sohane
(supra). It is held that the appellant herein is entitled to the benefit of enhanced age of
superannuation i.e., 65 years. He shall be entitled to all the consequential and
monetary benefits including arrears of salaries and etc., as if, he would have been
continued up to the age of 65 years. The arrears etc., shall be paid to the appellant
within a period of six weeks' from today. However, considering the fact that there
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 9/25/2023
6:33:50 PM
was a huge delay in preferring the appeal, which has been condoned by this Court,
the appellant shall not be entitled to any interest on the arrears for the period between
09.05.2017 till the filing of the present appeal."
10. Thereafter, this Court has dismissed an appeal filed by the State of
Madhya Pradesh bearing Writ Appeal No.1114 of 2022 (The State of
Madhya Pradesh & others v. Dr. Suresh Chandra Jain S/o Late Shri
Heeralal Jain) vide order dated 15.09.2022. Shri Patne, learned counsel for
the petitioner submits that even the aforesaid order has been complied with by
the State Government and Dr. Suresh Chandra Jain has been granted the salary.
11. Therefore, in view of the above, Writ Petition No.1245 of 2021 is
allowed. The respondents are directed to pay full salary to the petitioner for the
period 01.07.2015 to 30.06.2018 i.e. the period during which she was forced to
remain out of employment within a period of sixty days; failing which, the
petitioner shall be entitled to receive interest at the rate of 6% per annum from
the date of entitlement till payment.
(VIVEK RUSIA)
JUDGE
rcp
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 9/25/2023
6:33:50 PM
