Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2202 OF 2022
Jai Maharashtra Shikshak Wa
Karmachari Sena, A Registered Union of Teachers and Non-Teaching Employees and Also a Public Charitable Trust registered under the provisions of Bombay Public Trusts
Act 1951 and having its registered address as
C-6, Kamgar Swa-Sadan, Mahadev Palav Road, Curry Road (East) , Mumbai 400012. i) Through its Founder/President, Shri. Vijay Patil, Age:-56 years. ii) Through its General Secretary, Shri. Sandeep Parab, Age:- 52 years, iii) Through its Working President, Shri, Sunil Surve, Age:- 52 years, iv) Through its Treasurer, Shri. Ramdas Hanjankar, Age:-48 years, v) Through its Officiating Secretary, Smt. Geeta Rane, Age:- 59 years, All having address C-6, Kamgar Swa-Sadan, Mahadev Palav Road, Curry Road
(East), Mumbai 400012 … Petitioner
Terminus, Mumbai 400001 (Through the
Commissioner).
2. The Joint Municipal Commissioner, Brihanmumbai Municipal Corporation
Education Department, Mumbai 400012.
Municipal Corporation, Education Department, Triveni Sangam Municipal Marathi School
Mahadev Palav Marg, Curry Road (East),
6. The Chief Accounts Officer, Accounts Section Education Department, Private Primary Aided School, Triveni
Sangam Municipal School, Curry Road, 7. The State of Maharashtra, Through the Principal Secretary, School Education & Sports Department, Mantralaya, Mumbai – 400032. … Respondents
…
Mr Sachin S Punde, Advocate for the Petitioner.
Mr Shivprasad D Borade a/w Mr Lalit B Devkate, for the
Respondent-BMC.
Mr Nilesh Datar, Administrative Officer, Aided School Present.
Ms Gaurangi Patil, AGP for the Respondent No.7/State. ...
DATED : 3rd JANUARY, 2025
JUDGMENT
1. Rule. By consent of the counsel, Rule is made returnable forthwith.
2. Petitioner, a Public Charitable Trust registered under Bombay Public Trust Act, 1951, a union of teachers and non-teaching employees working in aided and unaided Pre-Primary, Primary, Secondary and Higher Secondary Schools in Brihanmumbai, has preferred the present petition, seeking grant of pension and retiremental benefits to its members. Details pertaining to the post held by the members of the Petitioner, date of their appointments, dates of receipt 20% grant-in-aid, dates of receipt 100% grant-in-aid, date of retirement and the period of service are mentioned in the Schedule annexed to the petition as Exhibit A. Exhibit A makes reference to the following essential facts:a) Members (28 nos.) of the Petitioner Association appointed as teachers/ nonteaching employees in aided Private Primary Schools in Brihanmumbai–possessed the requisite qualification and their appointment was duly approved by the Respondent No. 1 Corporation. They retired upon attaining the age of superannuation. Having put in service ranging from 17 years to 36 year. b) The Schools which recruited members of petition started getting 20% grant-in-aid, from Respondent No. 1 Corporation and thereafter 100% grant-in-aid, in the subsequent heirs. c) Members of the Petitioner have retired after completion of 10 years of qualifying service.
3. Respondent No.1 Corporation is established under the Mumbai Municipal Corporation Act, 1808. Education Department of the Respondent No.1 Corporation by a Circular bearing No.SAS/Pension/667 dated 31.10.1997, formulated the “Pension Scheme for Private Primary Aided Schools of Greater Mumbai” (Pension Scheme”) w.e.f. 01.04.1979. By this Pension Scheme the pensionary benefits were extended to the approved staff (Teaching and Non-Teaching) of the Private Primary Aided Schools in Greater Mumbai. By Circular bearing No.SAS/Pensions/847 dated 30.11.2005 guidelines were issued in respect of the Pension Scheme.
4. Pension proposals submitted pursuant to the Pension Scheme, by the members of the Petitioner i.e. Teaching/Nonteaching employees were rejected by the Respondent Nos. 1 to 6 which resulted in refusal of grant of pension and other retiremental benefits to the members of the Petitioner/beneficiaries under the Pension Scheme.
5. Issue raised in the present petition is no more res integra. The question of the applicability of the Pension Scheme fell for consideration before this Court in Writ Petition No.415 of 2012 filed by the Ms. Anuradha Jayant Gangakhedkar[1]. Ms. Anuradha Jayant Gangakhedkar (supra), an Assistant Teacher working in a Marathi Medium Primary School vis. D. D. @ Babasaheb Deshpande D. S. High School (Primary School), receiving grant in aid, having retired upon attaining the age of superannuation, sought for extension of the benefit under the Pension Scheme. The petition was opposed by the Respondent No.1 Corporation on the ground that, the qualifying service to avail benefit under the Pension Scheme must be construed to be service rendered in an aided school; and service rendered by an employee before the school came in receipt of grant in aid would have to be excluded for computing qualifying service. Reliance was placed on Rule 48 of the Pension Rules, which 1 Anuradha Jayant Gangakhedkar Vs. Brihanmumbai Municipal Corporation and Ors. 2012 SCC OnLine Bom 1056 provides that a Municipal employee retiring on superannuation before completing qualifying service of 10 years is only entitled to service gratuity of half months’ pay for each completed six months period of qualifying service.
6. This Court by judgment dated 26.07.2012, passed in the said Writ Petition negated the contentions of the Respondent No.1 Corporation and held Ms. Anuradha Jayant Gangakhedkar is entitled to the benefit under the pension Scheme. In paragraph Nos. 6 and 7, this Court held as under: “6. The Pension Scheme which has been framed by the Municipal Corporation applies to full time confirmed and approved teaching and non-teaching staff of private primary aided schools of Greater Mumbai whose salaries and allowances are held admissible for grant-in-aid and claimed regularly by the School from the Municipal Corporation subject to the condition that the School has obtained an exemption under Section 16(2) of the EPF Act,
1952. The expression “Private Primary School” is defined to mean a private primary school recognized by the Government and receiving grant-in-aid from the Corporation. Clause 8 of the Scheme which provides for the computation of pension requires a qualifying service not less than 33 years. In the case of an employee who has rendered qualifying service of ten years or more, but less than 33 years, a pro rata computation is provided for. The definition of the expression “qualifying service” in the Pension Rules refers to service rendered in a permanent post. In the present case, there is no dispute about the position that the Petitioner worked in a post which was sanctioned. Her services were duly approved by the Education Officer. The test which must be applied is as to whether an employee was a full time confirmed and approved member of the teaching or non-teaching staff of a private primary aided school on the date of her retirement. If that test is satisfied, the Pension Scheme is made applicable by virtue of the provisions of clause 5(ii). There is no warrant in the Pension Scheme or the Pension Rules to exclude while computing qualifying service, the service which is rendered by an employee before a school came to be in receipt of grant- in-aid. So long as the school was in receipt of grant-in-aid on the date on which an employee retired from service upon attaining the age of superannuation, the application of the Pension Scheme would be attracted. The Petitioner was an employee of a private primary aided school on the date of retirement and was hence eligible.
7. For these reasons we are of the view that the Municipal Corporation is required to release pensionary benefits to the Petitioner. We direct that the Third and Fourth Respondents shall complete the pension papers pertaining to the Petitioner and submit them to the Education Officer (Primary) of the Mumbai Municipal Corporation within a period of two weeks from today, unless the papers have already been submitted. In this event, that the Education Officer requires any further information, he shall make a requisition to the School within one week which shall comply with the requirements within a period of one week thereafter. The arrears of pension shall be released to the Petitioner within a period of one month from today. Relief for the award of interest is no pressed.”
7. Review Petition[2] filed by the Respondent No.1 Corporation seeking review of the judgment dated 26.07.2012 with the above observation is dismissed by this Court on 19.12.2013. Further Special Leave to Appeal (CC) No.7981 of 2014 filed by the Respondent No.1 Corporation against the judgment was also dismissed on 04.07.2014.
8. Relying on the judgment in the case of Anuradha Jayant
2 Municipal Corporation of Brihanmumbai Vs. Anuradha J. Gangakhedkar and Ors. Review Petition (L) No.40 of 2013 Gangakhedkar (supra), several other petitions viz Writ Petition Nos. 191 of 2013, 1524 of 2012, 2424 of 2014, 2423 of 2014, 2417 of 2014, and 2419 of 2014 were disposed off, extending the benefit of the Pension Scheme to the Petitioners therein. Writ Petition No.191 of 2013 was also disposed off vide order dated 21.06.2013, whereas Writ Petition No.1524 of 2012 was disposed off vide order dated 29.08.2020. Writ Petition Nos. 2424, 2423, 2417 and 2419 all of the year 2014 came to be disposed off on 05.08.2016.
9. Review Petitions[3] filed by the Respondent No.1 seeking review of the order dated 05.08.2016 passed in Writ Petition No.2424 of 2014 and the other connected matters were dismissed by this Court on 27.01.2017. Contention of the Respondent No.1 Corporation while applying for review was, inter alia that the decision of Ms. Anuradha Jayant Gangakhedkar (supra) did not consider the fact that the institution was not fully receiving grant-inaid but was receiving partial grant-in-aid. This Court rejected the said contention of the Respondent No.1 Corporation relying on the decision of Ms. Anuradha Jayant Gangakhedkar(supra).
10. Records of the present petition bears out that Contempt
3 Review Petition (Writ Petition( (L) No.76 of 2016, Brihanmumbai Municipal Corporation and Anr. Vs. Shital Arvind Vadkar and Anr. Petition bearing No. 19 of 2017 was filed by Anuradha Jayant Gangakhedkar, alleging willful disobedience on the part of Respondent No. 1 Corporation in complying with the judgment dated 26.07.2012 passed in Writ Petition No. 415 of 2012. This Court observed that action on the part of Respondent No. 1 Corporation was not in consonance with the legal position and pursuant to it the Corporation was constrained to confer benefits under the Pension Scheme to Ms. Anuradha Jayant Gangakhedkar.
11. This Court in another batch of Writ Petition’s filed by Urmila Premnarayan Mishra and Ors.[4] filed against the Respondent No.1 Corporation, by a detailed judgment, relying on the decision of this Court in the case of Ms. Anuradha Jayant Gangakhedkar (supra) and various other decisions allowed the Writ Petition by granting benefit of the Pension Scheme to the Petitioner’s in the said petitions with the following pertinent observation:- “54. Various Division Benches of this Court have followed the judgment of this Court in case of Ms. Anuradha Jayant Gangakhedkar (supra) consistently and have allowed the relief of payment of pension in favour of large number of employee rejecting the contentions raised by the BMC. It is not in dispute that all those orders have been thereafter implemented by the BMC by realizing the payment dues up to the particular period computed on the basis of the last drawn salaries by those Petitioners.
61. It is clear beyond reasonable doubt that the BMC had implemented the judgment of this Court in case of Anuradha Jayant Gangakhedkar (supra) which was followed in several other matters by taking into account her entire service on the date of initial appointment till the date off superannuation. The MBC thus cannot be allowed to now canvass the issues raised in the affidavit in reply and also across the bar for taking different view in the matter or to refer the issues to a large Bench. The issue raised by the BMC have attained finality and cannot be referred to the larger Bench. Be that as it may, we do not propose to take any different view in the matter.
62. The judgment of this Court in case of Anuradha Jayant Gangakhedkar (supra) was on interpretation of the pension scheme and the circular pension scheme and after interpreting those provisions, had granted relief for payment of pension in favour of the said Mrs. Anuradha jayant Gangakhedkar. In our view, the judgment of the Hon’ble Supreme Court in case of Gian Singh (supra) thus would not assist the case of the petitioner.”
12. From the facts as narrated herein above it is clear that Respondent No. 1 Corporation has implemented the judgment of this Court in the case of Anuradha Jayant Gangakhedkar (supra), which decision was followed in several other petitions.
13. Respondent No.1 Corporation has filed Affidavit-in-Reply dated 05.12.2024. Perusal of the said reply indicates the Respondent No.1 has made an attempt to re-agitate the issues, which were raised while opposing the earlier petitions. Reply filed by the Respondent No.1 gives an impression that it is attempting to re-open the issues which are decided by this Court in the afore referred petition. The Corporation has also referred to the Appeals instituted before the Supreme Court vide SLP Nos.032973-032975 of 2018 and SLP No.002039 of 2022, and it is informed that they are pending. It would not be out of context to make reference to paragraph No.23 and 25 of the reply dated 05.12.2024 filed by the Respondent No.1 Corporation, where it state as under:- “23. It is further most respectfully submitted to this Hon’ble Court that the Division Bench of this Hon’ble Court in the case of Anuradha Jayant Gangakhedkar v/s Brihan Mumbai Municipal Corporation (2012 (5) Mh.L.J. 775), while passing the Order has not considered various clauses of Pension Scheme, which has resulted into erroneous interpretation and/or misinterpretation of the Pension Scheme causing serious prejudice and very heavy financial implication on the Corporation….”
25. With great respect it is submitted that, as regard the contention of the Petitioner regarding dismissal of SLP filed against the order passed in Mrs. Anuradha J. Gangakhedkar is concerned, I say that the Order is mere dismissal of SLP without giving any reason. I say that it is well settled position of law as declared by the Apex Court that dismissal of Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special leave Petition has been filed before the Hon’ble Supreme Court stands affirmed or the judgment and order impugned merges with such order of the Hon’ble Supreme Court on dismissal of the Petition. It is a nonspeaking order and therefore may not be bar for further reconsideration of the case. Similarly, reliance of dismissal of review Petition and the orders passed by the Division Bench in other matters are concerned, the same also not dealt with the cogent and details reason and it is simply relied upon the case of Anuradha J. Gangakhedkar. In view of the above legal and factual aspect of the matter, this Hon’ble Court be please to decide the above Writ Petition independently without being influenced by the observation made in the case of Anuradha Jayant Gangakhedkar vs. B.M.C. reported in 2012(5) Mh.L.J.775, since it has far reaching effect on the high financial implication if the Corporation.”
14. Learned advocate for the Respondent No.1 Corporation is unable to distinguish the facts of the present case or to point out any distinct circumstances. Even otherwise we find that the facts involved in the present petition are similar to in the case of Anuradha Jayant Gangakhedkar (supra). When this Court has adjudicated the issue and declared its verdict, various Division Benches of this Court have followed the judgment, consistently and have allowed the reliefs of payment of pension in favour of large number of employees, rejecting the contentions of the Respondent. Similarly, the learned advocate for the Corporation could not dispute, that the stand taken by the Corporation in the earlier petitions was considered and rejected by this Court in the afore referred decisions. It is not, therefore, open to the Corporation to canvass the issues raised in the affidavit in reply, once that have been decided by this Court in the afore referred decision. The Hon’ble Supreme Court in the case of Shah Faesal vs. Union of India[5] in para 18 has held as under:- 5 Shah Faesal vs. Union of India (2020 (4) SCC 1) “18.Doctrines of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. Arguably, judges owe a duty to the concept of certainty of law, therefore they often justify their are holdings by relying upon the established tenets of law.”
15. The observations of the Supreme Court in the case of Chandraprakash vs. State of U.P[6]. in paragraph No.22 are also relevant and we reproduce the same:- “22. The doctrine of binding precedents is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court.”
16. The learned advocate for the Corporation thereafter attempted to salvage the situation by submitting that the Special Leave Petitions filed are pending before the Hon’ble Supreme Court and allowing the petition would result in financial hardship to the Corporation. Said contention is liable to be rejected for the reasons that the judgment of this Court in case of Ms. Anuradha Jayant Gangakhedkar (supra) has attained finality, and it bind the Corporation and this Court while disposing the case of Urmila Premnarayan Mishra (supra) has observed that the Respondent 6 Chandraparkash vs. State of U. P. (2022 (4) SCC 24) No.1 Corporation has granted benefits to Ms. Anuradha Jayant Gangakhedkar and to other employees of the Respondent No.1 Corporation.
17. The learned Advocate for the Respondent No.1 though made reference to the pending Special Leave to Appeals, however fairly submitted that the Respondent No.1 Corporation has not secured by any interim protection, till date. It is trite position of law that mere finding of an appeal/ proceeding would not operate as a stay of a judgment, unless there is an order passed to that effect. Thus, in the absence of any interim order staying the decision/operation of the judgment passed by this Court, the Respondent No.1 Corporation would be obliged to comply with the directions issued by this Court in the above referred decisions.
18. By following the judgments in the case of Anuradha Jayant Gangakhedkar (supra) and Urmila Premnarayan Mishra (supra) and by adopting the reasoning in the aforesaid decisions, we allow the petition by directing the Respondent No.1 Corporation to release the pension to the members of the Petitioner, who are named in the Schedule annexed and marked as Exhibit A to the petition, along with arrears with interest at the rate of 16% from the due date, till the date of payment on the basis of the last drawn salary, within a period of eight weeks from today.
19. It is made clear that if the pension along with the arrears is not released, as directed above, in eight weeks, it shall carry further interest of 10%.
20. Rule made absolute in above terms. No orders as to costs. (ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)