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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.1015 OF 1999
Vasant Hiraji Kaddo,
aged about 70 years,
R/o 46, New Jagruti Colony,
Katol Road, Nagpur -13. .. PETITIONER
.. Versus ..
1. The State of Maharashtra through
Secretary,
Education & Employment Department,
Government of Maharashtra,
Mantralaya Annex Building, Mumbai.
2. The Director of Education,
Maharashtra State, Pune.
3. The Deputy Director of Education,
Nagpur Region, Nagpur.
4. The Education Officer (Secondary),
Zilla Parishad, Nagpur. .. RESPONDENTS
Shri A.D. Mohgaonkar, Advocate for the Petitioner.
Shri S.B. Ahirkar, AGP for the Respondents.
...
CORAM : K.J. ROHEE & PRASANNA B. VARALE, JJ.
DATE OF RESERVING THE JUDGMENT : OCTOBER 8, 2008
DATE OR PRONOUNCING THE JUDGMENT: OCTOBER 15,2008
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JUDGMENT : (PER : K. J. ROHEE, J)
1. By this petition under Article 226 of the Constitution
of India, the petitioner seeks (i) quashing of the communication
dated 4.1.1998 made by under Secretary, Government of
Maharashtra (Respondent no.1) to the petitioner and the
communication dated 2.3.1998 by the Deputy Director of
Education, Nagpur Region, Nagpur (respondent no.3) to the
Head Master, Yugantar Mahiya Vidyalaya, 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 finalise the
pension of the petitioner accordingly.
2. The facts which gave rise to the present petition are
all 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 Vidyalaya, Armori on 18.10.1956. He was confirmed
there and thereafter was promoted as Head Master in the same
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school on 1.4.1958. However, on 1.5.1961 the 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 he 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 Vidyalaya, Nagpur on
26.7.1971. However, his services were terminated on
25.6.1972. This was the third break in his service. Thereafter
he was appointed as Head Master in Pragatik Vidyalaya, Koradi
on 3.7.1972. His services were terminated on 30.4.1974. This
was the fourth and last break in his service. Lastly he was
appointed as Assistant Teacher in Yugantar Mahila Vidyalaya,
Nagpur on 14.8.1976 and continued there till he retired on
attaining the age of superannuation ( i.e. 60 years) on
30.9.1988. Thus he rendered total service of 32 years including
the break of about 4 years 3 months and 15 days. All these
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schools wherein the petitioner served were aided and
recognised and the petitioner served there 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 the petitioner was also recommended by
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 that 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, by communications dated 4.1.1998 and
2.3.1998 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 the service
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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 benefit to him.
5. Respondents no.1 to 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.
Deshmuklh and Shri Jagdish Khebudkar. The breaks in the
services of those two teachers were condoned because under
normal rules they were not entitled for any pension and in
order to allow them to draw at least minimum pension, the
break in their services was condoned as special cases. The
policy of the State Government is not to condone break in
service in order to enhance the pension. Thus the petitioner is
not entitled to the relief sought.
6. We have heard Shri A.D. Mohgaonkar, Advocate for
the petitioner and Shri S.B. Ahirkar, AGP for the respondents.
7. Shri Mohgaonkar invited our attention to Rule 70.1
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of the Secondary School Code under the caption
“Pension/Provident Fund”. It provides that every employee on
a full-time basis in aided and recognised schools who was
appointed before 1st April, 1966 and had exercised in writing
his option for a pension scheme, shall be eligible to get pension
as per rules prescribed by Government. Shri Mohgaonkar
further invited our attention to Annexure 34 of the 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 recognised and aided
Non-Government Secondary Schools in the
State who retires on or after 1st April, 1966.”
Clause 7 of the Scheme provides that:
“In computing the length of qualifying service
for pension under this Scheme, all previous
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service, whether temporary, officiating or
permanent, either in one or more than one
Non-Government Secondary School, shall be
taken into account. Subject to the general
condition that the period of each break does
not exceed 6 months and the total period of
six breaks hereinafrer referred to do not
exceed two years, breaks in service on
account of any of the reasons listed below not
exceeding six in number,
ig should not be
treated as interruptions entailing forfeiture
of past service.
(1) Break in service on account of
resignation of the teachers from a Non-
Government Secondary School, provided it is
followed by his taking up service as a teacher
to another recognised Non-Government
Secondary School and is not intervened by
his taking employment in any other capacity.
Out of the maximum number of six breaks
that can be condoned, not more than three
breaks should, however, be on account of
such resignations.
(2) Termination of service due to no fault of
the teacher or on account of the
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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 Mohgaonkar also invited our attention to
Appendix A which is an Accompaniment of Government
Resolution, Education Youth Services Department No.
PEN1076-81126(1491) XII dated 12.11.1976 which provides
that breaks after 30.9.1974 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 the Secretary
of Department of Education was empowered to condone the
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breaks in services of teachers even after 30.9.1974.
9. Shri Mohgaonkar 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 14.8.1976 which is of 2 years 3 months
and 13 days.
10. The reasons put forth by the respondents for not
condoning the break in service of the petitioner are (i) 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 as
special cases. We are unable to find any logic in these reasons.
If 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 1st April, 1966, there is no question of any policy of the
State not to condone break in service in order to enhance
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pension. If an employee is benefitted in calculation of his
pension by condoning break in his service, there is no reason
why such break should not be condoned. It fact it would be in
consonance with the pension scheme introduced by the State.
Hence the ground for not condoning the break in service of the
petitioner does not stand to reason.
11. So far as equating the case of the petitioner with
that of Shri B.L. Deshmukh and Shri Jagdish Khebudkar, it 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 the condonation of break
in service of the petitioner, he is benefitted by getting more
pension, the break in his 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 the 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
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service of the petitioner is condoned, he would get benefit of
the 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 14.8.1976 to
30.9.1988 i.e. for about 12 years whereas if the last break 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 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 we pass the following order:-
The petition is allowed. The communications dated
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4.1.1998 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,
Yugantar Mahila Vidyalaya, 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.
(PRASANNA B. VARALE, J.) (K.J. ROHEE, J.)
…
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