Madhukar Dattatraya Gholap & Anr. v. The Superintendent (Secondary) & Ors.

1. Heard learned counsel for the Petitioners. Invoking jurisdiction of this Court under Article 226 of the Constitution of India, Petitioner No.2 is praying for reimbursement of medical expenses of his mother late Smt. Hemlata Madhukar Gholap who succumbed to the illness of Breast Cancer. She was working as Assistant Teacher with Respondent No.5-School governed by Respondent No.6-Nashik Municipal Corporation. Petitioner No.1, who was the husband of late Smt. Hemlata Madhukar Gholap, passed away during the pendency of this Petition.

2. Briefly stated, the facts are that the mother of Petitioner No.2 joined service of Respondent No.5-School in the year 1982. Her services were approved as a permanent teacher by Respondent No.6. Petitioner No.2’s mother was diagnosed with Breast Cancer in the year 2014. The Office of the Education Officer was informed by a communication dated 1st October, 2014 that the employees of the school governed by Municipal Corporation are not entitled for reimbursement of medical bills. The Education Officer vide communication dated 14th January, 2015 rejected reimbursement of medical bills totalling to about Rs.2,32,262/-. The Education Officer informed that the said bills cannot be reimbursed.

3. We have heard learned counsel for the Petitioners, learned counsel for Respondent-Municipal Corporation and learned AGP for the State. In the Affidavit-in-reply that is affirmed by Sanjaykumar Dharma Rathod, Deputy Director of Education, Nashik Region, Nashik, on behalf of Respondent Nos.[3] and 7, the following stand has been taken in paragraph Nos.[3] to 5 which read thus:- “3. I say that, the Writ Petition was filed by the Petitioners in WP/162/2016 before the Hon'ble High Court at Nagpur Bench for declaration that Petitioners therein and dependents of the Petitioners therein are entitled for benefits of medical reimbursement in view of Government Resolution dtd. 20.02.2009.

4. I say that, the said Writ Petition No. 162/2016 was disposed off by an Order dtd. 30.08.2016, wherein it is held that, the teaching as well as non-teaching staff employed in a primary, secondary, higher secondary school, technical school is entitled to the benefit of expenses on medical reimbursement in view of the Government Resolution dtd. 12.05.1989. Further, the Hon'ble Court requested the Additional Government Pleader to forward a copy of the Judgment and Order to the Principal Secretary. School Education, with a direction that if any of such of the employees which are similar to that of the Petitioners are pending either with himself or with any of his subordinate officer, the same shall be decided expeditiously in the light of direction, stated in the said Order. Hereto annexed and marked as Exhibit -A is a copy of the said Order dtd. 30.08.2016.

5. I say that, after the said Order, in view of the said Order, the State Government from 28.11.2019 issued a Letter to all Divisional Deputy Directors of Education, and All Education Officers (Secondary), informing them that Medical Expenses of teaching and non-teaching staff in 100% aided secondary schools run by Municipal Corporation, Municipalities, Municipal Council, excluding Brihanmumbai and Thane Municipal Corporation should be reimbursed as mentioned in the said Letter dtd. 28.11.2019 with prospective effect. Hereto annexed and marked as Exhibit B is a copy of the said Letter dtd. 28.11.2019.” (emphasis supplied by us)

4. The question is whether the Respondent Nos.[3] and 7 are justified in their decision to reimburse the claims with prospective effect from 28.11.2019.

5. We have perused the Judgment and order dated 30th August, 2016 passed by this Court in the case of Shri Suresh Mahadeorao Ahio & Ors. Vs. State of Maharashtra & Ors. in Writ Petition No. 162 of 2016 which would squarely cover the issue involved in the present Petition. The relevant portion of the decision of this Court needs to be extracted for the facility of convenience and proper understanding, which reads thus:- “4. In accordance with the Government Resolution dated 20th February 2009, the petitioners who were employees of the Schools managed by the Nagar Parishad through Municipal Council, had applied for reimbursement of the medical expenditure incurred on their treatment or the treatment of their dependents. The Municipal Council recommended the same to the Education Officer and the Education Officer, in turn, recommended the same to the State of Maharashtra. The State of Maharashtra vide communication dated 3.2.2015 sanctioned an amount of Rs.1,57,260/- in respect of treatment of the petitioners and their dependents. However, it appears that the communication was addressed by the respondent no.4-Education Officer to the Desk Officer in the office of the respondent no.1 dated 16th April, 2015 seeking his guidance. In response to the said communication, Shri N. P. Thorat, Desk Officer addressed the communication dated 24th July, 2015 to the Deputy Director of Education, thereby informing him that the provisions of the Government Resolution dated 12th May, 1989 were not applicable to the employees of the Municipal Council. However, in response to an information sought under the Right to Information Act, said Shri Thorat, gave an information to the petitioners that the benefits of reimbursement of the medical expenditure is applicable to 100% grant-in-aid Secondary & Higher Secondary Schools managed by the Municipal Councils.

5. It could thus be seen that the said Shri N. P. Thorat has addressed three conflicting communications. Vide first one dated 3.2.2015, he had sanctioned the reimbursement of the medical expenditure in his own signature. Vide another communication dated 24th July 2015, he had addressed another communication informing the Deputy Director that the employees of the Municipal Council are not entitled to medical reimbursement. Not only that, he has gone to the extent of extending a threat to the Deputy Director as to why an action should not be taken against him and the Education Officer for having acted contrary to the Government Resolution. Again, vide communication dated 19.2.2016, he had made a volte face and informed the petitioners, in response to the application made under the Right to Information Act, that the employees of the Schools managed by the Municipal Council are entitled to the benefits of medical reimbursement.

6. In response to the notice issued by us, in the affidavit which has been filed by Shri Thorat, he has stated that the Government Resolution dated 20th February 2009 is clear. He has further stated that his communications dated 23rd February, 2015 and 19th November, 2016 are incorrect. He has stated that though he does not justify the mistake he has committed, the mistake was on account of ‘heavy pressure of work and due to inadvertence” and therefore has tendered the unconditional apology. He has further stated that his communications dated 3rd February, 2015 is incorrect. He has further stated that the Resolution dated 20th February, 2009 is only applicable insofar as the teachers in the Municipal Corporation and Municipal Council and Nagar Parishad, who are teaching in primary schools. It is further stated that since the petitioners are not working in Primary School, the said Government Resolution is not applicable.

7. We find that said Shri Thorat has not changed his stance not only once but at least on four occasions. However, we find that his interpretation on the Government Resolution dated 20th February, 2009 as is reflected in the affidavit, is totally incorrect.

8. It could be seen that the basic Government Resolution making applicable the benefits to the teachers in recognised grant-in-aid Schools is of 12th May, 1989. Perusal of the said Government Resolution would reveal that prior to the said Government Resolution, the benefit of reimbursement of medical expenses was applicable only to Government employees, Zilla Parishad employees, University and College teaching as well as non-teaching employees. However, vide said Government Resolution, the Government resolved to make this benefit applicable to the teaching as well as nonteaching staff in recognised aided, private, primary school, secondary school, high school, colleges and technical school.

9. What has been done vide Government Resolution dated 20th February, 2009 is only determining the authority who would be competent to grant approval to the proposal received for medical reimbursement. The preamble of the said Resolution states that vide Government Resolution dated 4.1.1973, a provision has been made for grant of approval to the medical reimbursement proposal in case of teaching, non-teaching employees working in the schools run by the Schools, Boards of the Municipal Corporations/Municipal Councils and Nagar Panchayats. The said Government Resolution makes it amply clear that the vide Government Resolution, dated 12th May 1989, the benefits of medical reimbursement have been made applicable to aided, private, primary, secondary, higher secondary teaching colleges and technical schools. The said Government Resolution also authority who shall be competent to grant the limit of Rs. 40,000/- Corporations etc. is not states that the approval to the proposals upto in case of schools managed by determined and the Municipal said aspect was under consideration of the Government. The Government Resolution therefore states that in case of the amount above Rs. 40,000/-, the competent authority is the Secretary of the concerned Department. It however provides that in case of the medical reimbursement below an amount of Rs. 40,000/- in case of the employees working in the schools managed by the Municipal Corporation/Municipal Council/Nagar Panchayat, the Administrative Officer of the concerned Municipal Corporation, Municipal Council and Nagar Panchayat shall be the competent authority. In that view of the matter, we find that the stand taken in the affidavit, is upon misreading of the Government Resolution.

10. We are of the considered view that Education,Nagpur after rightly the Deputy Director of understanding the provision, recommended the proposal of the petitioners for grant had of medical reimbursement. We find that the State Government in its communication dated 3rd February, 2015 through said Shri N.P. Thorat, had rightly granted the proposal submitted by the Deputy Director. We find that the communication dated 24th July 2015 addressed by Shri Thorat to the Deputy Director, was totally unwarranted.

11. We are of the considered view that the stand taken in the affidavit is totally unsustainable. If the stand, as stated in the affidavit is to be accepted, the Government Resolution dated 12th May 1989 is to be totally ignored. Apart from that, it will lead to a anomalous situation. In the same Municipal Council if a teacher is working in a primary school, he/she would be entitled to the said Government Resolution. However if another employee working in the same school but teaching in secondary or higher secondary classes, he/she would not be entitled to the benefit. Likewise a teacher working in private aided Higher or Secondary school which comes under the control of the Education Officer, the teacher would be entitled to the benefit. However a teacher working in the school managed by the Municipal Council/Municipal Corporation in secondary, higher secondary, which also comes under the control of the same Education Officer, the teacher would not be entitled to the said benefit. We, therefore, find that the stand taken by the respondent-State is unsustainable in law. The Petition is therefore deserves to be allowed. Hence the following order:- ORDER i) The Writ Petition is allowed. ii) The impugned order dated 24th July, 2015 issued by the Desk Officer is quashed and set aside. iii) It is held that the teaching as well as non-teaching staff employed in a primary, secondary, higher secondary school, Technical school is entitled to the benefit of the expenses on medical reimbursement, in view of the Government Resolution dated 12th May 1989. Consequently, the petitioners would also be entitled to the benefit of the Government Resolution. iv) It is directed that the order issued by the State of Maharashtra dated 3rd February, 2015 shall hold the field. The amount sanctioned as per the said order shall be disbursed to the petitioners within a period of two weeks from today. v) The learned Additional Government Pleader is requested to forward a copy of this judgment and order to the Principal Secretary, School Education, with a direction that if any of cases of the employees which are similar to that of the petitioners are pending, either with himself or with any of his subordinate officers, the same shall be decided expeditiously, in the light of the directions stated herein-above. He is further directed to circulate a copy of this judgment to the Director of Education, all the Deputy Directors of Education and the all the Education Officers within the state of Maharashtra so that they can take necessary steps in respect of the proposal of the similarly circumstanced employees. vi) The notice issued to Shri N.P. Thorat stands discharged. Rule is made absolute in the aforesaid terms.” (emphasis supplied by us)

6. The afore-quoted authority makes it clear that employees of school managed by the Municipal Council would be entitled to the benefits of GR dated 12th May, 1989. The Petitioner being an employee of the school managed by Municipal Corporation is also entitled to the benefit of the GR dated 12th May, 1989. The stand taken by the Respondent Nos.[3] and 7 in the Affidavit-in-reply extracted hereinbefore is by and large, except on prospectivity is in consonance with the view taken in the aforesaid decision. There is no debate that the Respondent No.5-School run by Municipal Corporation, where Petitioner No.2’s mother was working as Assistant Teacher, was in receipt of 100% aid from the State Government. Petitioner Nos.2’s mother was diagnosed with the ailment in the year 2014.