Bombay High Court
Devidas Bhiku Borker vs The State Of Maharashtra on 19 July, 2011
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar, R.Y.Ganoo
1 7458.10
SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7458 OF 2010
1.Devidas Bhiku Borker
(Retired Godown Keeper),
3, Sai Manglaya Apartment,
Shivtar Road, at Post Khed,
District : Ratnagiri.
2.Anant Shriniwas Sinkar,
(Retired Awal Karkun),
Punyai, Mahalaxmi Road,
at Post Dapoli, Dist.Ratnagiri.
3.Pramod Madhav Talathi,
(Retired Awal Karkun),
Varcha Vibhag Sali Wada,
At/Post Dabhol, Tal.Dapoli,
Dist.Ratnagiri - 415 706. ...Petitioners
Versus
1.The State of Maharashtra,
Through the Principal Secretary,
Food & Civil Supplies & Consumer
Protection Department,
Mantralaya, Mumbai - 400 032.
2.The Collector,
Dist.Ratnagiri. ...Respondents
......
Mrs.Preeti Walimbe for Petitioners.
Mrs.S.S.Bhende, A.G.P. for Respondents.
......
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2 7458.10
CORAM:- A.M.KHANWILKAR AND
R.Y.GANOO, JJ.
DATED:- JULY 19, 2011.
ORDER (Per A.M.Khanwilkar, J.):
1. Heard Counsel for the parties.
2. Rule. Rule made returnable forthwith, by consent. Mrs.Bhende, A.G.P. waives notice for Respondents.
3. As short question is involved, Petition is taken up for final disposal forthwith, by consent.
4. This Writ Petition under Article 226 of the Constitution of India takes exception to the Judgment and Order of the Maharashtra Administrative Tribunal, Mumbai in Original Application No.1297/2009 dated 3rd May, 2010. The petitioners had filed original application inter alia praying for declaration that the service rendered by the petitioners as Seasonal Godown Keeper should be taken into consideration for the purposes of computing the entitlement and quantum of their pension and to direct the respondents to take into consideration the entire period of service rendered by them from the date of their joining as Seasonal Godown Keeper for the purpose of computing their entitlement and quantum of pension and issue ::: Downloaded on - 09/06/2013 17:31:13 ::: 3 7458.10 appropriate orders as may be necessary. The petitioners, to buttress their grievance placed reliance on the decision of the Division Bench of this Court in Writ Petition No.3690/2005 dated 19th December, 2006 in the case of Shri Anant S.Tambde & Ors. vs. The Collector & Ors. In the said Petition, similarly placed Government employees had asked for identical relief. This Court on construing the provisions of Rule 30 of the Maharashtra Civil Services (Pension) Rules, 1982 proceeded to hold as follows:
"4. ............. A bare perusal of this rule would indicate that if a government employee is holding a substantive post at the time of his retirement, his qualifying service shall be computed from the date of his first appointment either substantively or in an officiating capacity or temporary capacity. It is clear from the record that petitioners had been given temporary appointment as seasonal godown keepers and this fact has been recognized by the Tribunal as also by the respondents in their reply before us. In this view of the mater, we find that the entire period of service from the date of their joining would have to be counted for the purpose of computing their entitlement and quantum of pension.
5. We accordingly allow this petition and direct the respondents to make payment to petitioners in accordance with their qualifying service within a period of 6 months from today. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs." (emphasis supplied)
5. According to the petitioners, this decision was challenged by the respondents before the Apex Court by way of SLP. However, the same was dismissed on 3rd August, 2007. In other words, the view taken by the High ::: Downloaded on - 09/06/2013 17:31:13 ::: 4 7458.10 Court has been upheld by the Apex Court. Besides, the petitioners also relied on another decision of the Maharashtra Administrative Tribunal, Mumbai in Original Application No.426/2006 decided on 16th March, 2007 in the case of Shri Prabhakar Shankar Bagkar vs. The State of Maharashtra & Anr., in which similarly placed employee was granted relief after relying on the decision of the High Court referred to above. It is the case of the petitioners that the decision of this Court has attained finality and has been acted upon by the Department. Similarly, the decision in the case of Shri Prabhakar Shankar Bagkar of the Maharashtra Administrative Tribunal has also been accepted by the Department and has attained finality.
6. Ordinarily, on the basis of this plea, the Tribunal ought to have allowed the Original Application filed by the petitioners. However, the Tribunal in the impugned Judgment has discarded the decision of this Court on the finding that the same does not refer to all aspects of the matter and the relevant decision and provisions were not brought to the notice of the High Court. The Tribunal has then relied on the decision of the Apex Court in the case of Director General, Council of Scientific and Industrial Research vs. Dr.K.Narayanaswami & Ors. reported in AIR 1995 SC ::: Downloaded on - 09/06/2013 17:31:13 ::: 5 7458.10 2318 to justify its conclusion that the Government employees such as the petitioners are not entitled to get pension by taking into account their first date of appointment as Seasonal worker.
7. The learned A.G.P. has supported the decision of the Tribunal and prays for dismissal of the present Writ Petition.
8. Having considered the rival submissions, at the outset, we may observe that the Tribunal has misdirected itself in taking the view that the decision of the Division Bench of this Court referred to above, cannot be relied upon, as it has not taken into account all the aspects of the matter. It is indisputable that the decision of the Division Bench of this Court interprets the purport of Rule 30 of the relevant Rules. The assumption of the Tribunal that the High Court has not adverted to all the relevant aspects, in our opinion, is inappropriate. Indeed, the Tribunal has adverted to other rules such as Rule 31(3), 33 and 38(1) to hold that it is necessary to keep in mind as to whether the concerned employee was in continuous service from the date of his initial appointment or whether there were interruptions from time to time. In the first place, the Tribunal was bound by the opinion of the Division Bench of the High Court which decision had attained finality on ::: Downloaded on - 09/06/2013 17:31:13 ::: 6 7458.10 account of dismissal of the SLP by the Supreme Court. In any case, the Tribunal was bound by another decision of the same Tribunal in the case of Shri Prabhakar Shankar Bagkar, which is founded on the decision of the High Court. A coordinate bench of the Tribunal could not have departed from that binding precedent. In any case, the Tribunal misdirected itself on applying the principle of interruptions of service from time to time. What has been glossed over by the Tribunal is the purport of Rule 30, which makes no distinction between the first appointment either substantively or in officiating capacity or temporary capacity for the purpose of computing qualifying service. Understood thus, Rule 30 would encompass the services rendered by the Government employees even in the capacity of the temporary appointment as Seasonal Godown Keepers.
9. To justify its opinion, the Tribunal has placed reliance on the decision of the Apex Court in the case of Director General, Council of Scientific and Industrial Research (supra). The exposition in that case is, however, in the fact situation of that case. In that case, the Government employee "resigned from temporary service" and thereafter "was appointed against substantive post in another service". In the present case, as in the case decided by the High Court as also by the same Tribunal in Original ::: Downloaded on - 09/06/2013 17:31:13 ::: 7 7458.10 Application No.426 of 2006, the Government employees were appointed on seasonal basis from time to time "in the same service", where they were eventually absorbed and appointed on regular basis. In this backdrop, the service rendered by them in the capacity as temporary employee as Seasonal Godown Keepers, can be reckoned for the purposes of pensionary benefit.
10. In the circumstances, we have no hesitation in taking the view that the Tribunal has completely misdirected itself in departing from the consistent view of the High Court as well as of the same Tribunal. The Tribunal has misdirected itself in placing reliance on the decision of the Apex Court which is in the context of an employee resigning from temporary service and being appointed in substantive post in another service.
11. In the circumstances, this Petition ought to succeed. The impugned Judgment and Order of the Tribunal is quashed and set-aside and instead, the Original Application filed by the petitioners is made absolute in terms of prayer clauses (a) and (b), which read thus:
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(a) to call for the record and proceeding pertaining to the communications dated 16/7/2009 and 27/8/2009 issued by respondent no.2 as per directions of res.no.1 and quash and set aside the same as being unjust, unfair, arbitrary and discriminatory and direct the respondents to extend the benefit or order of the Hon/High Court dated 19/12/2006 in Writ Petition No.3690 of 2005 to the applicants.
(b) to hold and declare that the service rendered by the applicants as Seasonal Godown Keeper should be taken in to consideration for the purposes of computing the entitlement and quantum of their pension and to direct the respondents to take into consideration the entire period of service rendered by the applicants from the date of their joining as Seasonal Godown Keeper for the purpose of computing their entitlement and quantum of pension of computing their entitlement and quantum of pension and issue appropriate orders at the earliest."
12. We further direct the respondents to compute the pensionary benefit to be extended to the petitioners in terms of this order and release the amount due and payable to the petitioners as expeditiously as possible and in any case, not later than six months from today.
(R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)
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