Judgment - Condonation of Break

  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

WRIT PRTITION No 1015 OF 1999

 Vasant Heraji Kadu

aged 70 years ,

46, New Jagruti Colony ,

Katol Road, Nagpur -13           ------------------------      Petitioner

Versus

1.The State of Maharashtra through   Secertary,

Education & Employment Department Government of Maharashtra Mantralay Annex Building, Mumbai

2.Director of Education,

Mahaashtra State, Pune.

3. Deputy Director of Education

Nagpur Region , Napur

4. The Education Officer(Secondary)

Zilla Parishad , Napur   --------------------------------Respondents

Shri- A D Mohagaonkar, Advocate for the Petitioner

Shri S B Ahirkar, AGP, for the Respondents.

CORAM : K J Rohi & Prasanna Varale JJ

The Date of Reserving The Judgment : October 8, 2008

The Date of Pronouncing the Judgment, October 13, 2008

JUDGMENT : (PER K J ROHEE J)

1.      BY THIS PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF iNDIA, the petitioner seeks (1) quashing of the communication dated 4.1.1998 made by under secretary , Government of Maharashtra (Res -1) to the petitioner and the communication dated 2.3.1998 y the Deputy Director of Education, Nagpur Reion, Nagpur(Res -3) to the Head Master Yugantar Mahila Vidyalay , Nagpur in respect of condoning the break in service period of the petitioner and (ii) directing the respondents to condone the break in service of the petitioner on par with two other employees and finalize the pension of the petitioner accordingly.

2.      The facts which gave rise to the present petition are admitted and they are as under :-

The petitioner having acquired the qualification of  B. Sc.  B. T. was appointed as Assistant Teacher in Mahatma Gandhi Vidyalay, Armori on 18.10.1956. He was confirmed there and thereafter was promoted as Head Master in the same school on 1.4.1958. However on 1.5.1961the services of the petitioner were terminated by paying three months’ salary, he being permanent employee. This was the first break in his service. Thereafter on 1.6.1961 he was appointed as Head Master in Katol High School, Katol. On 6.4.1969 he resigned from the said post. His resignation was accepted on 1.10.1969 and was relieved on 6.10.1969. This was the second break in his service. Thereafter he was appointed as Assistant Head Master in temporary post in Tidke Viyalay ,Nagpur on 25.6.1972 . This was the third break in his service. Thereafter he was appointed as Head Master in Pragatik Vidyalay on 3.7.1972. His services were terminated on 30.4.1974. This was the fourth and the last break in his service. Lastly he was appointed as Assistant Teacher in Yuganter Mahila Vidyalay , Nagpur on 14.8.1976 and continued there till he retired on attaining the age of superannuation (i.e. 60 years) on 30.9.1968. Thus he rendered total service of 32 years including the break of about 4 years 3 months and 15 days. All these schools wherein he petitioner served were aided and recognized and the petitioner served their on full time basis and was permanent employee.

3.      Even before his retirement, the petitioner made a representation to the Education Officer, Zilla Parishad, Nagpur on 30.11.1987 for condoning the said break in his service period. The case of petitioner was also recommended bu the Education Officer as well as Deputy Director of Education to the Government. However, by communication dated nil July 1992 the Education Department informed the petitioner its regret the break in service during the period from 1.5.1974 to 13.8.1976 cannot be condoned as per the prevailing rules. Thereafter the petitioner made several representations to the secretary, Education Department, Bombay. However, the communications dated 4.1.1998 the petitioner was informed that the break in his service cannot be condoned. The petitioner has challenged those communications.

4.      According to the petitioner the breaks in service of Shri B. L .Deshmukh and Shri Jagdish Khebudkar were condoned by the state. However, the petitioner was discriminated and has been denied the benefit of his long service while giving pensionary benefits to him.

5.      Respondents no1 and 3 as well as respondent no 4 filed separate returns. According to them there has been no discrimination as alleged by the petitioner because the petitioner’s case cannot be equated with that of Shri B.L. Deshmukh and Shri Jagdish Khebudkar . The breaks in services in those two teachers were condoned because under normal rules they were not entitled to for any pension and in order to allow them to draw at least minimum pension, the break in service was condoned as special cases. The policy of the state Government is not to condone break in service in order to enhance pension. Thus the petition is not entitled to the relief sought.

6.      We have heard Shri A D Mohagaonkar , Advocate for the petitioner and Shri Ahirkar ,AGP for the respondents.

7.      Shri Mohagaonkar invited our attention to rule 70.1 of the secondary school code under the caption “Pension/Provident Fund”. It provides that every employee on a full time basis in aided and recognized school who was appointed before 1^st April 1966and has exercised in writing his opinion for a pension scheme, shall be eligible to get pension as per rules prescribed by the Government. Shri Mohagaonkar further invited our attention to Annexture34 of Secondary School Code which provides for “Pension Scheme for the employees in the Non-Government Secondary Schools”. Clause (1) of the said Scheme provides that :

                       “ Government directs that the pension gratuity and other retirement benefits admissible to the Maharashtra State Government servants under the Revised Pension Rules,1950 as amended from time to time, should be made applicable to full time teaching staff in recognized and aided Non-Government Secondary Schools in the state who retires on or after  1^st April 1966.”

Clause 7 of the Scheme provides that:

              “ In computing the length of qualifying service for pension under this scheme, all previous circumstances beyond the control of the teacher. If the services of a teacher have been terminated on disciplinary grounds after following the prescribed procedure, such break in service cannot be condoned and the services rendered by the teacher in the school from which his services are so terminated on disciplinary grounds will not account for pension.”

8.      Shri Mohagaonkar also invited our attention to Appendix A which is an Accompaniment of Government Resolution , Education Youth Services Department No  PEN 1076.81126(1491)XII dated 12.11.1976 which provides that breaks after 30.9.1976 in respect of teachers should not be condoned. The cut-off date prescribed by the state for condoning the break in service is wholly irrational and it results in discrimination between the employees and it has no nexus with the object sought to be achieved by the pension scheme. Perhaps that is why by Circular No: PEN -1088/120973/(582)/Sec – Edu  6  dated 10.5.1989 of the Secretary of Department of Education  was empowered to condone the breaks in services of teachers even after 30.9.1974.

9.      Shri Mohagaonkar pointed out that in case of the petitioner all those contentions are fulfilled and hence there was no difficulty in condoning the break in his service for the period from 30.4.1974 to 14.8.1976 which is of two years 3 months and 13 days.

10.The reasons put forth by respondents for not condoning the break in service of the petitioner are (1) that the policy of the State is not to condone the break in service in order to enhance the pension and (ii) that the cases of  Shri B L Deshmukh and Shri Jagdish Khebudkar cannot be equated with that of the petitioner , because those two employees would not have been entitled for any pension unless the break in their service was condoned and hence the same was condoned s special cases. We are unable to find any logic in these reasons. It is the policy of the State to give pension to every employee on a full- time basis in aided and recognized schools appointed before 1^st April 1966, there is no question of any policy of the State not to condone break in service in order to enhance pension.

11.So far as equating the case of the petitionerwith that of Shri B L Deshmukh and Shri Jagdish Khebudkar I is true that they cannot be equated because in the absence of condonation of break in their services ,those two employees would not have been entitled to draw any pension. However this does not mean that if because of condonation of break in service of the petitioner, he is benefited by getting more pension, the break in service should not be condoned. It may not be forgotten that the petitioner rendered 32 years of total service including break for 4 years 3 months and 15 days. As the last break in service of the petitioner is not condoned ,his pension has been calculated on the basis of his service of about 12 years only whereas if the last break in the service of the petitioner is condoned, he would get benefit of earlier 16 years of service. Since the last break in the service of the petitioner for 2 years 3 months and 13 days is not condoned, he gets pensionable service only from 14.8.1996 to 30.9.1988 i.e. for about 12 years whereas if the last break is in the service of the petitioner is condoned, he would get benefit of earlier 20 years of service for calculating pension and pensionable benefits. In our view the State was not justified in refusing to condone the last break in service of the petitioner depriving him all the benefits of the long service. Such a decision is against public policy. We are surprised to see that the last break in the service of the petitioner was not condoned by the State despite the authorities below having recommended the case of the petitioner for condonation of break in service.   

12.In view of the above reasons ,we find that the communication by the State dated nil July 1992 so also the communication dated 4.1.1998 and 2.3.1998 are liable to be quashed and set aside . Hence the following order :-

          The petition allowed. The communications dated4.1.1998 by the Under Secretary, Government of Maharashtra (R-1) to the petitioner and 2.3.1998 by the Deputy Director of Education, Nagpur Region, Nagpur (R-3) to the Head Master, Yuganter Mahila Viodyalay, Nagpur are hereby quashed and set aside. Respondent No -1 is directed to condone the break in service of the petitioner and to refix the pension of the petitioner accordingly. Rule is made absolute in the above terms.