1 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 *** 1. The State of Maharashtra, Through its Secretary, Education Department, Mantralaya, Mumbai. 2. The Accountant General, Pension Wing, Old Building, Post Box No. 114, Civil Lines, Nagpur. ... APPLICANTS. [ORI.RESPDT.1 & 2] Versus 1. Shri Yadav Sakharam Kawade, Age: 81 years, Occu.: Retired R/o M/P Dhandarphal (Bk.), Taluka Sangamner, District Ahmednagar. 2. Zilla Parishad, Ahmednagar, Through Education Officer, (Primary), Taluka and District Ahmednagar. 3. Panchayat Samiti, Sangamner, Through Block Education Officer, Taluka Sangamner, District Ahmednagar. ... RESPONDENTS *** Mr. V. H. Dighe, A.G.P. for the Applicants. Mr. P. R. Patil, Advocate h/f Mr. S. V. 2 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 Suryawanshi, Advocate for the Petitioner in Writ Petition. Mr. S. T. Shelke, Advocate for Respondent Nos.3 and 4 in Writ petition. *** CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ. DATED:- 20th JULY, 2011. JUDGMENT [Per Deshmukh, J.]: 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. We shall refer to the brief facts to appreciate the submissions of learned counsel for the parties. Respondent No.1 was working as Primary Teacher in the school run by Respondent Nos.2 and 3. Respondent NO.1 retired on superannuation as Head Master, on 31st May, 1986. The State Government had issued Government Resolution dated 4th of April, 1990, thereby granting higher pay scale to the Head Masters who had completed twelve years of qualifying service as Head Master. It is contended on behalf of Respondent No.1 that he approached to the Respondent Nos.2 and 3 on numerous occasions, however, no action was taken. Respondent Nos.2 and 3 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 3 by the communication dated 17th August, 2007 informed the Respondent no.1 that a higher pay scale as claimed by the Respondent No.1 cannot be granted to the Respondent No.1 since the Respondent No.1 has not completed twelve years of qualifying service as Head Master. The Respondent No.1 being aggrieved by the communication dated 17th August, 2007, by Respondent Nos.2 and 3, filed writ petition No.9660 of 2010. Respondent No.1, in this Review Petition was writ petitioner before this Court and present Review Petitioners were Respondent Nos.1 and 2 and Respondent Nos.2 and 3 in this Review Petition were Respondent Nos.3 and 4 in the said writ petition. The Respondent No.1/ Petitioner, made the following prayers in the writ petition: "(B) Issue a writ of mandamus or writ in the nature of mandamus thereby directing the Respondents to pay higher scale of pension and arrears of pension to the Petitioner and treat that the Petitioner has qualifying service of 12 years for the purpose of pensionary benefits as available and for that purpose issue necessary writ, order or direction. 4 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 (C) Issue a writ of certiorari or writ in the nature of certiorari thereby quash and set aside the order/ letter dated 17.08.2007 and 02.08.2004 issued by the Respondent No.3 and 4 as against the Petitioner and for that purpose issue necessary writ, order or direction. Government Resolution dated 4th April, 1990 was Annexure-C to the writ petition. 4. Writ petition No.9660 of 2010 was filed by Respondent no.1/ original writ petitioner on 23rd September, 2010. Writ Petition No.9660 of 2010 was heard by this Court on 13th October, 2010. This Court, after hearing the learned counsel for parties, allowed Writ Petition in following terms: "7. In the result, the petition is allowed. The respondents are directed to re- consider the matter regarding fixation of pensionable benefits to the petitioner, by treating his qualifying service as Head Master of 12 years. The said exercise shall be completed within a period of three months from today. Arrears, if any, shall be paid to the petitioner within a period of six months from today." 5 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 5. It appears that Writ Petition No.9660 of 2010 which was allowed by this Court by the order passed on 13th October, 2010 was moved before this Court on 26th October, 2010 for speaking to minutes. By speaking to minutes order passed on 26th October, 2010, this Court has clarified the date of Government Resolution which was mentioned as 1st February, 1990 instead of 4th April, 1990 at some places in the order passed on 3rd October, 2010. 6. Learned A.G.P. took us to the order passed by this Court in Writ Petition NO.9660 of 2010. He also pointed out Government Resolution Annexure-C to the writ petition. It is contended on behalf of the Review Petitioners that Respondent No.1/ Writ Petitioner had sought a writ of mandamus against Review Petitioners and Respondent Nos.3 and 4 in this Review Petition, for payment of higher scale of pension and arrears of pension to the petitioner and treat that the petitioner has qualifying service of 12 years for the purpose of pensionary benefits as available. Learned A.G.P. submitted that Government Resolution dated 4th of April, 1990 Annexure-C to the Writ petition provides higher pay 6 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 scale to the employees who have completed twelve years service on a particular post and have not been promoted. Stagnation of the Government employee on a particular post for a period of twelve years without any promotion was the issue considered by the State Government and, therefore, this Government Resolution with some conditions made available higher pay scale or award of higher pay scale to such Government employees. According to the review petitioners, this Court while passing order on 13th October, 2010 in Writ Petition No. 9660 of 200 has considered Rule 110 of Maharashtra Civil Services (Pension) Rules, 1982 [the Rules of 1982, for short] and allowed the writ petition. This Rule 110, in the facts of the present case does not apply to the Respondent no.1/ original petitioner. 7. Mr. P. R. Patil, learned counsel, who appears for the Respondent No.1 in this Review Petition fairly concedes that higher pay scale was not granted to the Respondent No.1 at any point of time by Respondent Nos. 3 and 4 or by the present Petitioners and that was the grievance of 7 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 Respondent No.1 while approaching to this Court by filing Writ Petition No.9660 of 2010. He, however, submits that while dealing with the claim for pension based on the interpretation of regulations it will have to be held that the construction of the regulation which would achieve object of regulation should be made. For this proposition he relied on a judgment of the learned Single Bench of High Court of Madras in the case of "S. Elumalai V/s The Superintendent (Works) Tamil Nadu Govt. Transport Corporation Ltd., Kancheepuram" reported in 2008-TLMAD-O-2945. He took us to paragraph Nos. 7, 9 and 10 of the reported pronouncement. 8. We have given due consideration to the submissions of the learned counsel for parties. There is no dispute amongst the learned counsel for the respective parties that Government Resolution dated 4th April, 1990 provides higher pay scale in certain circumstances mentioned in the same Government Resolution. Object of making available such benefit is the absence of promotional avenue for Government employee who is working on a particular post for the period of twelve years. In 8 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 the case on hand, Mr. Patil, learned counsel for the Respondent No.1/ original petitioner, fairly admits that the request of the Respondent No.1/ original petitioner for higher pay scale was rejected by the Government on 17th August, 2007. Respondent No.1/ original Petitioner was aggrieved by said rejection and that is how he approached this Court by filing Writ Petition No.9660 of 2010. It is manifest from the petition that, all that petitioner was asking, was grant of higher pay scale. In para 8 of the writ petition Respondent No.1/ original petitioner had made reference to Rule 110 (3) of the Rules of 1982. In our opinion, reliance by Respondent No.1 on Rule 110 (3) of the Rules of 1982, at the outset, was misplaced on the premise that higher pay scale was never granted to him. It was not pointed out to this Court by either of the parties while deciding writ petition No.9660 of 2010 that the Respondent No.1/ original petitioner was not entitled to rely or resort to Rule 110 (3) of the Rules of 1982 and factually higher pay scale was never granted to the Respondent No.1/ original petitioner. On the 9 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 contrary, his request was rejected by the State Government. 9. In our opinion, it is apparent mistake/ error on the face of the record to rely upon Rule 110 (3) of the Rules of 1982. Such apparent error on the face of the record needs to be corrected by exercising review jurisdiction. We are, therefore, inclined to pass the following order: (a) Review Petition is allowed. Order passed by this Court in Writ Petition No.9660 of 2010 on 13th October, 2010 is quashed and set aside. Consequently, writ petition No.9660 of 2010 stands dismissed. Rule made absolute in above terms. However, we make it clear that petitioner is not precluded from filing a proceeding to challenge the order dated 17th August, 2007, for higher pay scale. [S. B. DESHMUKH, J.] [D. B. BHOSALE, J.] Dated:20/07/2011. ans/164 10 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 REVIEW PETITION NO.: 164 OF 2011 IN WRIT PETITION NO.: 9660 OF 2010 Date of decision: 20th JULY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE D. B. BHOSALE THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE