Full Judgment Text
2013:BHC-OS:7056-DB
DSS wp 2808.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2808 OF 2012
Mrs. Charumathi Kannappa Mudaliar
Age 60 years
Retired Trained Teacher
Keshavji Vasanji Kesharwala Ghatkopar
Sarvajanik School, Sainath Nagar,
Ghatkopar (West), Mumbai-400 086
And R/o. E-8, Prathamesh C.H.S.
Vidayalay Marg, Mahakali Nagar
Mulund (E), Mumbai-400 081 .. Petitioner
vs.
1. Municipal Corporation of Greater
Bombay having its office and
Headquarters at Mahanagar Palika
Bhavan, Mahapalika Marg,
Mumbai-400 001.
2. Municipal Commissioner
Municipal Corporation of Greater
Mumbai, Education Department Mahapalika
Marg, Mumbai-400 001
3. Education Officer
Municipal Corporation of Greater
Mumbai MCGM
Lakhamsi Nappo Road, Hindu
Colony, Municipal School Building,
st
1 Floor, Dadar (E), Mumbai-400 014
4. Keshavji Vasanji Kesharwala
Ghatkopar Sarvajanik School, Through
its Principal, Sainath Nagar,
Ghatkopar (West), Mumbai-400 086. .. Respondents
Mr. Rahul G. Walia for the Petitioner.
Ms. Komal Punjabi for B.M.C. - Respondent Nos.1 to 3.
Mr. Shailesh More for Respondent No.4.
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CORAM : S. J. VAZIFDAR &
M. S. SONAK, JJ.
TH
DATE : 15 JULY, 2013 .
JUDGMENT ( PER M.S. SONAK, J) :-
th
1] By an order dated 25 March, 2013, the parties were put to
notice that the matter may be disposed of finally, at the admission
stage itself.
2] Accordingly, Rule. Rule is made returnable forthwith with the
consent of all the parties.
3] The petitioner, who possesses the qualifications of B.A. and
B.Ed. (Physical Education & History) was appointed as an Assistant
Trained Teacher with respondent No.4 School (recognized and
th
aided school) with effect from 7 June,1982. The Education Officer
– respondent No.3 approved the appointment of the petitioner with
th
effect from 7 June, 1983 and the petitioner was confirmed in
th
service with effect from 13 June, 1983.
4] The petitioner, right from the date of her initial appointment
and upto the date of her retirement, upon attaining the age of
st
superannuation, i.e., upto 31 October, 2009 was paid salary and
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other benefits payable to an Assistant Trained Teacher.
5] There is no dispute that the service conditions of the
petitioner entitle her to draw pension upon superannuation.
However, for a period of about two years, no pension was paid to
the petitioner. Ultimately, pension payments commenced on the
basis that the petitioner had superannuated as an Assistant
Untrained Teacher. There is a difference in the pay scales of
Assistant Trained Teachers and Assistant Untrained Teachers. This
difference, naturally persists in the matter of payment of pensionary
benefits as well.
6] The impugned action was defended on the basis that the
petitioner’s initial appointment as an Assistant Trained Teacher was
defective. The defect stated was that the qualifications for the
appointment of Assistant Trained Teacher was SSC/HSC with
Diploma in Education (D.Ed), whereas the petitioner's qualifications
were B.A., B.Ed. (Physical Education and History). The petitioner's
qualifications were not only in the relevant field but were admittedly
higher than the requisite qualifications. Despite the same, the
petitioner's initial appointment almost 27 years prior to the date of
her superannuation was not only virtually annulled, but the
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respondents even seek recovery of the difference in pay between
trained and untrained teachers and further resist the payment of
pension and other pensionary benefits commensurate to the post of
Assistant Trained Teacher.
7] In our judgment, respondents action is totally unreasonable,
arbitrary and violative of Article 14 of the Constitution of India. There
is no dispute that the petitioner possessed qualifications of B.A. and
B.Ed., which are much higher than the minimum prescribed
qualifications of SSC/HSC with D.Ed. It is not the respondents case
that possessing higher qualifications disqualifies a candidate from
occupying the post. Nor is it contended that the qualifications
possessed by the petitioner are either not appropriate or have no
nexus with the post held by her for almost 27 years. The petitioner’s
appointment was duly approved and the petitioner throughout her
service period was treated as the Assistant Trained Teacher, which
clearly she was. The petitioner during her entire service period has
been paid salary of an Assistant Trained Teacher. In these
circumstances, we find absolutely no justification on the part of the
respondents even to suggest that the petitioner’s initial
appointment, made 27 years prior to the date of her
superannuation, was in any manner defective. In the context of the
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post of Assistant Trained Teacher, the possession of degree of B.A.
and B.Ed. cannot be said to be qualifications, which have no nexus
with the post or the duties assigned to the post. This has rightly not
even been the case of the respondents. Accordingly, we find no
justification in permitting the respondents to recover any alleged
arrears or to deny pension or pensionary benefits commensurate to
the post of the Assistant Trained Teachers to the petitioner.
8] In some what similar circumstance, a Division Bench of this
Court in case of Baptist Anthony Rumao Vs. Municipal Corporation
of Greater Mumbai & ors. (Writ Petition No.1029 of 2012) decided
th
on 26 July, 2012, expressed distress at the Municipal Corporation
of Greater Bombay seeking to make recoveries and denying
pensions to a Teacher on the ground that his initial appointment 28
years prior to the date of his superannuation, was defective and that
such a teacher was only entitled to be appointed as Assistant Un-
trained Teacher. The Teacher in the said case, had in fact, expired
after attaining the age of superannuation and arrears were sought to
be recovered from the widow and pension was proposed to be paid
to the widow commensurate to the post of the Assistant Un-trained
Teacher. The Division Bench restrained the MCGM from making any
recoveries and further directed that pension be paid commensurate
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to the post of Assistant Trained Teacher. Directions were also given
to pay interest of 12% per annum upon the arrears. The Division
Bench, at paragraph ‘2’ made the following observations :
“2. ........... Treating the deceased employee as
an untrained teacher and directing the recovery of
such salary from the date of appointment until her
retirement is ex-facie an arbitrary requisition made
without application of mind. It is distressing as to
how such a requisition could be made by the
Municipal Corporation, particularly after the
employee has died upon superannuation from
service, having rendered 28 years service as a
primary teacher.”
9] The issue is, therefore, no longer res-integra . In fact,
the case of the present petitioner is upon a better footing than the
Teacher in Writ Petition No.1029 of 2012. Any attempt to recover the
difference from the petitioner, on the basis that the petitioner should
have been appointed only as Assistant Untrained Teacher is ex-
facie, illegal and unjustified. So also the denial of pension and
pensionary benefits commensurate to the post of Assistant Trained
Teacher, in which post the petitioner has actually discharged the
duties for a period of almost 27 years prior to her superannuation, is
also arbitrary, illegal and unjustified. The impugned communication
th
dated 29 December, 2011, which directs recoveries is liable to be
quashed and set aside.
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10] The petitioner was not even heard or offered any
opportunity to show cause prior to the respondents arriving at
unilateral decision to treat her as the Assistant Untrained Teacher.
Un-doutedly, the decision visits the petitioner with civil
consequences, inasmuch as it involves recovery of money and
denial of pension commensurate to the post of Assistant Trained
Teacher. Merely because, this was attempted to be done after the
petitioner had attained the age of superannuation, by itself is no
reason to avoid compliance with the principles of natural justice and
fair play. In any case, we do not base our decision only upon the
failure on the part of the respondents to comply with the principles of
natural justice and fair play. We have decided the case on merits.
11] In the case of D.S. Nakara Vs. Union of India, 1983(1)
SCC 305 , in the context of pension, the Supreme Court has made
following observations:
“20. The antequated notion of pension being a bounty, a
gratuitous payment depending upon the sweet will or grace
of the employer not claimable as a right and, therefore, no
right to pension can be enforced through Court has been
swept under the carpet by the decision of the Constitution
Bench in Deokinandan Prasad v. State of Bihar (1971
Supp SCR 634 : (1971) 2 SCC 330) wherein this Court
authoritatively ruled that pension is a right and the
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payment of it does not depend upon the discretion of the
Government but is governed by the rules and a
government servant coming within those rules is entitled to
claim pension. It was further held that the grant of pension
does not depend upon anyone’s discretion. It is only for the
purpose of quantifying the amount having regard to service
and other allied matters that it may be necessary for the
authority to pass an order to that effect but the right to
receive pension flows to the officer not because of any
such order but by virtue of the rules. This view was
reaffirmed in State of Punjab v. Iqbal Singh ((1976) 3 SCR
360 : (1976) 2 SCC 1).
22. In the course of transformation of society from feudal
to welfare and as socialistic thinking acquired
respectability. State obligation to provide security in old
age, an escape from undeserved want was recognised
and as a first step pension was treated not only as a
reward for past service but with a view to helping the
employee to avoid destitution in old age. The quid pro quo
was that when the employee was physically and mentally
alert, he rendered unto master the best, expecting him to
look after him in the fall of life........
29. Summing up it can be said with confidence that
pension is not only compensation for loyal service
rendered in the past, but pension also has a broader
significance, in that it is a measure of socio-economic
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justice which inheres economic security in the fall of life
when physical and mental prowess is ebbing
corresponding to aging process and, therefore, one is
required to fall back on savings. One such saving in kind is
when you give your best in the hey-day of life to your
employer, in days of invalidity, economic security by way of
periodical payment is assured. The term has been
judicially defined as a stated allowance or stipend made in
consideration of past service or a surrender of rights or
emoluments to one retired from service. Thus the pension
payable to a government employee is earned by rendering
long and efficient service and therefore can be said to be a
deferred portion of the compensation or for service
rendered. In one sentence one can say that the most
practical raison d’etre for pension is the inability to provide
for oneself due to old age. One may live and avoid
unemployment but not senility and penury if there is
nothing to fall back upon”.
12] In the circumstances, Rule is made absolute in terms of
prayer clauses (a), (b) and (c). However, the interest shall be at the
th
rate of 12% per annum. The order shall be complied with by 15
September, 2013. Needless to add that the interest will be paid only
on the arrears, i.e., the differential amount. There shall be no order
as to costs.
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13. The Writ Petition is, accordingly, disposed off.
(M. S. SONAK, J.) (S. J. VAZIFDAR, J.)
DSS
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2808 OF 2012
Mrs. Charumathi Kannappa Mudaliar
Age 60 years
Retired Trained Teacher
Keshavji Vasanji Kesharwala Ghatkopar
Sarvajanik School, Sainath Nagar,
Ghatkopar (West), Mumbai-400 086
And R/o. E-8, Prathamesh C.H.S.
Vidayalay Marg, Mahakali Nagar
Mulund (E), Mumbai-400 081 .. Petitioner
vs.
1. Municipal Corporation of Greater
Bombay having its office and
Headquarters at Mahanagar Palika
Bhavan, Mahapalika Marg,
Mumbai-400 001.
2. Municipal Commissioner
Municipal Corporation of Greater
Mumbai, Education Department Mahapalika
Marg, Mumbai-400 001
3. Education Officer
Municipal Corporation of Greater
Mumbai MCGM
Lakhamsi Nappo Road, Hindu
Colony, Municipal School Building,
st
1 Floor, Dadar (E), Mumbai-400 014
4. Keshavji Vasanji Kesharwala
Ghatkopar Sarvajanik School, Through
its Principal, Sainath Nagar,
Ghatkopar (West), Mumbai-400 086. .. Respondents
Mr. Rahul G. Walia for the Petitioner.
Ms. Komal Punjabi for B.M.C. - Respondent Nos.1 to 3.
Mr. Shailesh More for Respondent No.4.
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CORAM : S. J. VAZIFDAR &
M. S. SONAK, JJ.
TH
DATE : 15 JULY, 2013 .
JUDGMENT ( PER M.S. SONAK, J) :-
th
1] By an order dated 25 March, 2013, the parties were put to
notice that the matter may be disposed of finally, at the admission
stage itself.
2] Accordingly, Rule. Rule is made returnable forthwith with the
consent of all the parties.
3] The petitioner, who possesses the qualifications of B.A. and
B.Ed. (Physical Education & History) was appointed as an Assistant
Trained Teacher with respondent No.4 School (recognized and
th
aided school) with effect from 7 June,1982. The Education Officer
– respondent No.3 approved the appointment of the petitioner with
th
effect from 7 June, 1983 and the petitioner was confirmed in
th
service with effect from 13 June, 1983.
4] The petitioner, right from the date of her initial appointment
and upto the date of her retirement, upon attaining the age of
st
superannuation, i.e., upto 31 October, 2009 was paid salary and
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other benefits payable to an Assistant Trained Teacher.
5] There is no dispute that the service conditions of the
petitioner entitle her to draw pension upon superannuation.
However, for a period of about two years, no pension was paid to
the petitioner. Ultimately, pension payments commenced on the
basis that the petitioner had superannuated as an Assistant
Untrained Teacher. There is a difference in the pay scales of
Assistant Trained Teachers and Assistant Untrained Teachers. This
difference, naturally persists in the matter of payment of pensionary
benefits as well.
6] The impugned action was defended on the basis that the
petitioner’s initial appointment as an Assistant Trained Teacher was
defective. The defect stated was that the qualifications for the
appointment of Assistant Trained Teacher was SSC/HSC with
Diploma in Education (D.Ed), whereas the petitioner's qualifications
were B.A., B.Ed. (Physical Education and History). The petitioner's
qualifications were not only in the relevant field but were admittedly
higher than the requisite qualifications. Despite the same, the
petitioner's initial appointment almost 27 years prior to the date of
her superannuation was not only virtually annulled, but the
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respondents even seek recovery of the difference in pay between
trained and untrained teachers and further resist the payment of
pension and other pensionary benefits commensurate to the post of
Assistant Trained Teacher.
7] In our judgment, respondents action is totally unreasonable,
arbitrary and violative of Article 14 of the Constitution of India. There
is no dispute that the petitioner possessed qualifications of B.A. and
B.Ed., which are much higher than the minimum prescribed
qualifications of SSC/HSC with D.Ed. It is not the respondents case
that possessing higher qualifications disqualifies a candidate from
occupying the post. Nor is it contended that the qualifications
possessed by the petitioner are either not appropriate or have no
nexus with the post held by her for almost 27 years. The petitioner’s
appointment was duly approved and the petitioner throughout her
service period was treated as the Assistant Trained Teacher, which
clearly she was. The petitioner during her entire service period has
been paid salary of an Assistant Trained Teacher. In these
circumstances, we find absolutely no justification on the part of the
respondents even to suggest that the petitioner’s initial
appointment, made 27 years prior to the date of her
superannuation, was in any manner defective. In the context of the
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post of Assistant Trained Teacher, the possession of degree of B.A.
and B.Ed. cannot be said to be qualifications, which have no nexus
with the post or the duties assigned to the post. This has rightly not
even been the case of the respondents. Accordingly, we find no
justification in permitting the respondents to recover any alleged
arrears or to deny pension or pensionary benefits commensurate to
the post of the Assistant Trained Teachers to the petitioner.
8] In some what similar circumstance, a Division Bench of this
Court in case of Baptist Anthony Rumao Vs. Municipal Corporation
of Greater Mumbai & ors. (Writ Petition No.1029 of 2012) decided
th
on 26 July, 2012, expressed distress at the Municipal Corporation
of Greater Bombay seeking to make recoveries and denying
pensions to a Teacher on the ground that his initial appointment 28
years prior to the date of his superannuation, was defective and that
such a teacher was only entitled to be appointed as Assistant Un-
trained Teacher. The Teacher in the said case, had in fact, expired
after attaining the age of superannuation and arrears were sought to
be recovered from the widow and pension was proposed to be paid
to the widow commensurate to the post of the Assistant Un-trained
Teacher. The Division Bench restrained the MCGM from making any
recoveries and further directed that pension be paid commensurate
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to the post of Assistant Trained Teacher. Directions were also given
to pay interest of 12% per annum upon the arrears. The Division
Bench, at paragraph ‘2’ made the following observations :
“2. ........... Treating the deceased employee as
an untrained teacher and directing the recovery of
such salary from the date of appointment until her
retirement is ex-facie an arbitrary requisition made
without application of mind. It is distressing as to
how such a requisition could be made by the
Municipal Corporation, particularly after the
employee has died upon superannuation from
service, having rendered 28 years service as a
primary teacher.”
9] The issue is, therefore, no longer res-integra . In fact,
the case of the present petitioner is upon a better footing than the
Teacher in Writ Petition No.1029 of 2012. Any attempt to recover the
difference from the petitioner, on the basis that the petitioner should
have been appointed only as Assistant Untrained Teacher is ex-
facie, illegal and unjustified. So also the denial of pension and
pensionary benefits commensurate to the post of Assistant Trained
Teacher, in which post the petitioner has actually discharged the
duties for a period of almost 27 years prior to her superannuation, is
also arbitrary, illegal and unjustified. The impugned communication
th
dated 29 December, 2011, which directs recoveries is liable to be
quashed and set aside.
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10] The petitioner was not even heard or offered any
opportunity to show cause prior to the respondents arriving at
unilateral decision to treat her as the Assistant Untrained Teacher.
Un-doutedly, the decision visits the petitioner with civil
consequences, inasmuch as it involves recovery of money and
denial of pension commensurate to the post of Assistant Trained
Teacher. Merely because, this was attempted to be done after the
petitioner had attained the age of superannuation, by itself is no
reason to avoid compliance with the principles of natural justice and
fair play. In any case, we do not base our decision only upon the
failure on the part of the respondents to comply with the principles of
natural justice and fair play. We have decided the case on merits.
11] In the case of D.S. Nakara Vs. Union of India, 1983(1)
SCC 305 , in the context of pension, the Supreme Court has made
following observations:
“20. The antequated notion of pension being a bounty, a
gratuitous payment depending upon the sweet will or grace
of the employer not claimable as a right and, therefore, no
right to pension can be enforced through Court has been
swept under the carpet by the decision of the Constitution
Bench in Deokinandan Prasad v. State of Bihar (1971
Supp SCR 634 : (1971) 2 SCC 330) wherein this Court
authoritatively ruled that pension is a right and the
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payment of it does not depend upon the discretion of the
Government but is governed by the rules and a
government servant coming within those rules is entitled to
claim pension. It was further held that the grant of pension
does not depend upon anyone’s discretion. It is only for the
purpose of quantifying the amount having regard to service
and other allied matters that it may be necessary for the
authority to pass an order to that effect but the right to
receive pension flows to the officer not because of any
such order but by virtue of the rules. This view was
reaffirmed in State of Punjab v. Iqbal Singh ((1976) 3 SCR
360 : (1976) 2 SCC 1).
22. In the course of transformation of society from feudal
to welfare and as socialistic thinking acquired
respectability. State obligation to provide security in old
age, an escape from undeserved want was recognised
and as a first step pension was treated not only as a
reward for past service but with a view to helping the
employee to avoid destitution in old age. The quid pro quo
was that when the employee was physically and mentally
alert, he rendered unto master the best, expecting him to
look after him in the fall of life........
29. Summing up it can be said with confidence that
pension is not only compensation for loyal service
rendered in the past, but pension also has a broader
significance, in that it is a measure of socio-economic
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justice which inheres economic security in the fall of life
when physical and mental prowess is ebbing
corresponding to aging process and, therefore, one is
required to fall back on savings. One such saving in kind is
when you give your best in the hey-day of life to your
employer, in days of invalidity, economic security by way of
periodical payment is assured. The term has been
judicially defined as a stated allowance or stipend made in
consideration of past service or a surrender of rights or
emoluments to one retired from service. Thus the pension
payable to a government employee is earned by rendering
long and efficient service and therefore can be said to be a
deferred portion of the compensation or for service
rendered. In one sentence one can say that the most
practical raison d’etre for pension is the inability to provide
for oneself due to old age. One may live and avoid
unemployment but not senility and penury if there is
nothing to fall back upon”.
12] In the circumstances, Rule is made absolute in terms of
prayer clauses (a), (b) and (c). However, the interest shall be at the
th
rate of 12% per annum. The order shall be complied with by 15
September, 2013. Needless to add that the interest will be paid only
on the arrears, i.e., the differential amount. There shall be no order
as to costs.
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13. The Writ Petition is, accordingly, disposed off.
(M. S. SONAK, J.) (S. J. VAZIFDAR, J.)
DSS
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