Bombay High Court
Babarao S/O. Jaynarayan Ingle And ... vs State Of Maha., Thr. Sect. Dept. Of ... on 1 March, 2016
Author: B.R. Gavai
Bench: B.R. Gavai, P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No.946 OF 2016
1. Babarao s/o Jaynarayan Ingle
aged about 58 years, Occ. Head Clerk,
R/o 9/2, MIG Colony,
Trimurti Nagar, Nagpur.
2. Matru Sewa Sangh Institute of
Social Work, through its Principal,
West High Court Road, Bajaj Nagar,
Nagpur - 10. ... ... Petitioners.
-Versus.-
1. The State of Mah. Through its Secretary,
Department of Higher & Technical Education,
Mantralaya, Mumbai -32.
2. Director, Higher Education
(Maharashtra State), Pune.
Registrar.
3. Joint Director of Higher Education
Nagpur Division, Nagpur.
4. Rashtra Santh Tukdoji Maharaj
Nagpur University,
through its Registrar. ... ... Respondents.
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Mr. A.S. Dhore, counsel for petitioner.
Mr. A.M. Balpande, AGP for respondent nos. 1 to 3.
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CORAM : B.R. GAVAI AND P.N. DESHMUKH
, JJ.
DATED : 1
March, 2016
st
ORAL JUDGMENT ( Per B.R. Gavai, J)
Rule. Heard the parties on the question of grant of interim relief.
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2. The matter was heard in the morning session. Since we were of the view that the communication impugned in the present petition dated 15.12.2015 was totally in ignorance of Rule 84 of the Maharashtra Non-
Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-Teaching Employees), Rules, 1984 (for short the said Rules), and since we were also of the view that the communication was totally unsustainable in law, we had requested the learned A.G.P. to take instructions in that regard from the respondent no.3.
3. Accordingly, an affidavit has been filed by Dr. Anjali Milind Rahatgaonkar, presently working as Joint Director, Higher Education, Nagpur Division, Nagpur, therein tendering unconditional apology. She has further stated that she is withdrawing the letter dated 15.12.2015 which was addressed to the petitioner no. 2 and has further stated that hereinafter she will not issue such communications in future.
4. The petitioner no. 2, in view of the enabling provision under Rule 84, had sent a proposal with regard to extension of service of the petitioner no. 1 till he attains the age of 60 years prior to three months of the date on which he was to retire i.e. on 25.9.2015. The petitioner no. 2 had also addressed another communication dated 26.11.2015 to the respondent no.2.
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5. It is relevant to reproduce Rule 18 of the said Rules-
84. Extension in service beyond the age of compulsory retirement - Notwithstanding anything contained in sub-
rule(3) of the rule 82, the Competent Authority may subject to the prior approval of Government grant an extension of service to any non-teaching employee beyond the age of retirement, on public grounds, which shall be recorded in writing :
Provided that, except in very exceptional circumstances extension shall not be granted beyond the age of 60 years. Such proposals of granting extension to the non-teaching employees shall be forwarded to Government three months in advance before the actual date of retirement of the concerned employee.
6. It could thus be seen that a Competent Authority notwithstanding anything contained in sub-rule 3 of Rule 82 subject to prior approval of the government is entitled to grant an extension of service to any non-teaching employee beyond the age of retirement on public grounds which are required to be recorded in writing. Proviso to the said rule provides that only in exceptional circumstances extension could be granted beyond the age of 60 years. In the present case it can thus be seen that since the petitioner no. 2 was of the opinion that taking into consideration excellent services rendered by petitioner no.1 he should be granted extension till the ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 07:22:33 ::: 4 wp946-16.odt age of 60 years, submitted a proposal within the prescribed period.
However, it appears that on account of the communications between respondent nos. 2 & 3 and on account of their not understanding the legal position that the government resolution cannot supersede the statutory rules, the matter regarding grant of approval was travelling like a shuttle cock between their offices.
7. It appears that even before the orders were received from the respondent no.2, the respondent no. 3 has addressed the impugned communication to petitioner no.2. The said communication states that there are no provisions for increase in the age of retirement of non-teaching employees. The communication further states that the petitioner no. 2 does not appear to have knowledge of the rules. It further states that by filing such proposal the petitioner no.2 was wasting the valuable time of the government. The communication, therefore, called upon the petitioner no.2 to show cause as to why such an illegal proposal was forwarded. It is pertinent to note that in the proposal submitted by the petitioner no.2 there is a specific reference to Rule 84.
8. The nature of interim relief that we propose to grant is mandatory in nature. The Courts are required to be slow in granting an interim relief which is mandatory in nature. However, if a party makes out an exceptional case, the court is not precluded from granting an interim ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 07:22:33 ::: 5 wp946-16.odt relief which is mandatory in nature.
9. In the present case, we find that on account of the respondents not understanding the legal provisions in the correct perspective, the proposal which was submitted by the petitioner no. 2 well within the time was not considered by them and no orders were passed.
10. In the present case, it could be seen that the petitioner no. 2 has specifically informed the respondent no. 2 about the exceptional services rendered by the petitioner no.1 and as to how his extension till the age of 60 years is in the interest of the institution.
11. In that view of the matter, we find that the petitioners have made out an exceptional case.
12. By way of interim order, we, therefore, direct that the petitioner no.1 shall be continued in service till he attains the age of 60 years. It is informed that the petitioner no.1 is continuously working with the respondent no.2. It is also nobody's case that anybody else is appointed in place of petitioner no.1 and his salary is also drawn for the said post.
13. In that view of the matter, we further direct that the petitioner no.1 shall be granted salary from the date on which he attains age of 58 years till the date on which he attains age of 60 years.
14. It is further clarified that after he attains the age of 60 years, the respondents shall calculate the retiral benefits payable to the petitioner no.1 ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 07:22:33 ::: 6 wp946-16.odt on the basis of his last drawn salary and pay the said retiral benefits within the reasonable period including the pension admissible under the relevant rules.
JUDGE JUDGE
Hirekhan
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