Madhya Pradesh High Court
Dr. (Ms) Saroj Potdar vs The State Of Madhya Pradesh on 26 April, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 26 th OF APRIL, 2024
WRIT APPEAL No. 387 of 2022
BETWEEN:-
DR. (MS) SAROJ POTDAR D/O SHRI NANDKISHORE
POTDAR, AGED ABOUT 68 YEARS, OCCUPATION:
RETIRED, ASSISTANT PROFESSOR IN PHYSICS IN THE
P.M.B. GUJRATI SCIENCE COLLEGE, INDORE 307, R.P.
APARTMENTS, 29/1, DR. R.S. BHANDARI MARG,
(MADHYA PRADESH)
.....APPELLANT
(SHRI L. C. PATNE, LEARNED COUNSEL FOR THE APPELLANT)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY TO THE
GOVERNMENT OF MADHYA PRADESH
DEPARTMENT OF HIGHER EDUCATION,
VALLABH BHAWAN, MANTRALAYA, (MADHYA
PRADESH)
2. THE COMMISSIONER HIGHER EDUCATION
D EPARTM EN T SATPURA BHAWAN, BHOPAL.
(MADHYA PRADESH)
3. THE CHAIRMAN. GOVERNING BODY,
GOVERNING BODY, P.M.B. GUJARATI SCIENCE
COLLEGE 1, NASIA ROAD. INDORE (MADHYA
PRADESH)
4. THE PRINCIPAL . P.M.B. GUJARATI SCIENCE
COLLEGE. P.M.B. GUJARATI SCIENCE COLLEGE.
INDORE. (MADHYA PRADESH)
.....RESPONDENTS
( SHRI BHUWAN GAUTAM - GOVT. ADVOCATE FOR THE
RESPONDENTS/STATE)
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 26-04-2024
18:33:16
2
This appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Learned counsel for the parties are heard on I.A. No.3277/2022, which is an application under Section 5 of the Limitation Act for condonation of delay of 665 days in filing the appeal.
As per office report, there is a delay of 1380 days including the COVID- 19 period. However, excluding the COVID-19 period, the same comes to 665 days.
2. This Writ Appeal has been preferred by the appellant under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya [Khand Nyayapeeth Ko Appeal] Adhiniyam, 2005 against the order dated 04.04.2018 passed in W.P. No.4845/2016 by learned Single Judge whereby the writ petition preferred by the petitioner has been dismissed.
3. It is submitted by the learned counsel for the appellant that by the impugned order dated 04.04.2018, appellant's writ petition was dismissed by the learned Single Judge by relying upon the decision of Gwalior Bench of this Court in Dr. Dinesh Chandra Mishra vs. State of M.P. and others [W.P. No.5168 of 2012 decided on 13.08.2012.]. By the same impugned order four other writ petitions of other teachers were also dismissed. Those four teachers challenged the impugned order before the Division Bench by filing writ appeals which were also dismissed by order dated 09.05.2017. In a batch of SLPs preferred by similarly situated teachers, the Supreme Court allowed their claim and held that they entitled to get benefit of enhanced age of superannuation of 65 years with service benefits by passing a common order in the case o f Dr. R.S. Sohane vs. State of M.P. and others reported in [(2019) 16 SCC 796].
Signature Not Verified Signed by: SEHAR HASEEN Signing time: 26-04-2024 18:33:16 3The judgment of the Full Bench of this Court which was relied upon by the Division Bench for dismissing the Writ Appeals of aforesaid teachers was set aside.
4. It is further submitted that since the fate of the appellant had been sealed by the decision in the above writ appeals and since he was not having sufficient means to approach this Court he did not challenge the impugned order at that time. After the decision of the Supreme Court in Dr. R.S.Sohane (supra) he was expecting a fair treatment from the respondents. A co-ordinate Division Bench of this Court at Principal Seat at Jabalpur in case of similarly situated teacher in Dr. R.K. Sharma vs. State of M.P. and other [W.A. No.1857/2019 decided on 29.11.2019] has already condoned the delay of 1227 days in filing the writ appeal. Similarly in Dr. Sushant Kumar Sinha vs. State of M.P. and others [W.A. No.802/2020 decided on 01.09.2020] delay of three years has been condoned. Moreover a coordinate Division Bench in Balkrish Rathi vs. State of M.P. and others [R.P. No.265/2021 decided on 05.08.2021] has condoned delay of 221 days. When the appellant came to know about similar orders passed by coordinate Division Benches of this Court, she immediately contacted her counsel who applied for the certified copy of impugned order on 12.04.2022 and has thereafter immediately preferred the instant appeal. It is hence submitted that there are sufficient reasons by which the appellant was prevented from preferring the appeal within time hence the delay in filing the appeal deserves to be condoned.
5. Reply has been filed by the respondents in which it is submitted that no sufficient reason has been furnished by the appellant for the delay in preferring the appeal. After passing of the impugned order no steps were taken by him within time in preferring the appeal and was satisfied with the order.
Signature Not Verified Signed by: SEHAR HASEEN Signing time: 26-04-2024 18:33:16 4Only for the reason that similarly situated employees have been extended the benefits as are being claimed by the appellant it would not be a ground for the appellant not to challenge the impugned order. The day to day delay has not been explained. It is hence submitted that the application be rejected.
6 . I n the application, the appellant has categorically stated that by the impugned order various connected petitions were also dismissed and writ appeals against their dismissal were also dismissed by the Division Bench hence the appellant did not take any step for challenging the impugned order. She was also not having sufficient means for the same. After the Supreme Court in case of Dr. R.S. Sohane (supra) allowed the claim of similarly situated persons, the appellant was accepting a fair treatment from the respondents and was quite hopeful that she shall also be given the same treatment as given to similarly situated teachers without forcing her to file any litigation. In State of Karnataka vs. C.Lalitha reported in [(2006) 2 SCC 747] and K.T. Veerappa vs. State of Karnataka reported in [(2006) 9 SCC 406, it has been held by the Supreme Court that similar benefits deserve to be conferred to all similarly situated employees regardless of the fact that only some of them have approached the Court for seeking the relief. Moreover, the judgment rendered in the case of Dr. R.S. Sohane (supra) is a judgment in rem hence as held in State of U.P. and others vs. Arvind Kumar Shrivastava reported in 2015(1) SCC 347 and Maharaj Krishna Bhat vs. State of Jammu and Kashmir and other reported in (2008) 9 SCC 24 if the appellant believed that upon passing of the same she would also be extended similar benefits as extended to the other employees, she was perfectly justified. The appellant has also stated that she was not aware of the orders passed in the other litigation Signature Not Verified Signed by: SEHAR HASEEN Signing time: 26-04-2024 18:33:16 5 and as soon as she acquired knowledge of the same she has preferred the appeal. In cases of other similarly situated employees delays such as in the present case has already been condoned by co-ordinate Division Benches. Thus in our opinion, the appellant has furnished sufficient reasons for the delay in preferring the appeal in view of which the delay deserves to be condoned. Accordingly, I.A. No.3277/2022 stands allowed and the delay in filing the appeal is condoned.
7. Learned counsel for the parties are also finally heard with their consent.
8. It is not disputed that by the impugned order a batch of writ petitions were dismissed by learned Single Judge. Some of the writ petitioners of those petitions preferred writ appeals before this Court which were also dismissed by order dated 09.05.2017. However, the Supreme Court in a batch of SLPs filed by similarly situated teachers, by order dated 07.05.2019 has held them entitled to get benefit of superannuation at 65 years with service benefits in Dr. R.S. Sohane (supra). Relying upon the said judgment the Division Bench of this Court at Gwalior in Dr.(Mrs.) Rukmani Tiwari vs. State of M.P. and another, Writ Appeal No.108/2016 decided on 15.07.2019, Dr. R.K. Sude vs. State of M.P. and another, W.A. No.997/2018 decided 17.02.2020 as well as the Division Bench of this Court at Bench at Indore in R.K. Sharma vs. State of M.P. and another, W.A. No.1857/2020 decided on 29.11.2019 and Dr.Sushant Kumar vs. State of M.P. and another, W.A. No.802/2020 decided on 01.09.2020 h a s held similarly situated teachers entitled to be superannuated at the age of 65 years. It is not in dispute that the appellant is a similarly situated employee.
9 . Moreover, the respondent No.1 itself has issued an order on Signature Not Verified Signed by: SEHAR HASEEN Signing time: 26-04-2024 18:33:16 6 26.02.2020 (Annexure A/7) in light of the decision of the Supreme Court in Dr. R.S. Sohane (supra) resolving to fix the age of superannuation of teachers s erving in private colleges receiving 100% grant in aid from the State Government from 62 years to 65 years and has also acknowledged its liability for payment of salary to such teachers. Thus, in our opinion, the appellant in view of the said order itself ought to have been granted the benefits as are being claimed by him. In any case, since similarly situated employees have already been granted the said benefit in the judgments referred to aforesaid, we are of the opinion that the appellant also deserves to be granted similar benefits.
10. As a result, the impugned order passed by the learned Single Judge is set aside and the appellant is held entitled to the benefit of enhanced age of superannuation i.e. 65 years. She shall be entitled to all the consequential and monetary benefits including arrears of salary, etc. as if, she would have continued in service up to the age of 65 years. The arrears and all other benefits shall be paid to the appellant within a period of eight weeks from today.
However, considering the fact that there was a huge delay in preferring this appeal, the appellant shall not be entitled to any interest on the arrears for the period between 04.04.2018 till the date of filing of this appeal i.e. 13.04.2022.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 26-04-2024
18:33:16