1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3891 OF 2010 Balbhim s/o. Damodhar Kumbhar, Age 60 yrs., Occu. Pensioner, R/o. Khed, Tq. Karjat, Dist. Ahmednagar. ....Petitioner. Versus 1. The State of Maharashtra Through it's Secretary Education Department Mantralaya, Mumbai-32. 2. The Education Officer, (Secondary) Zilla Parishad, Ahmednagar. 3. Accountant General Pay and provident fund Office, Mumbai. 4. Superintendent (Sec.) Pay and Provident Fund Unit, Education Department, Ahmednagar. 5. The Head Master, Loknayak Jaiprakash Narayan Madhyamik and Dr. G.D. Saptrashri Higher Secondary College, Khed Nagar, Taluka Karjat, Dist. Ahmednagar. 6. The Managing Trustee, Indian Institute for Social Development And Reserch, Dr. Kumar Saptrashri, Krantiniketan, 1468, Sadashiv Peth, Near S.P. College, Khaina Vihir Chowk, Pune - 411030. ....Respondents. Mr. A.N. Kakade, Advocate for petitioner. Mrs. A.V. Gondhalekar, AGP for respondent Nos. 1 to 4. Mr. Pradeep Deshmukh, Advocate for respondent Nos. 5 and 5. 2 CORAM : B.R. GAVAI AND A.A.SAYED, JJ. DATED : 21st October, 2010. ORAL JUDGMENT : [ PER B.R. GAVAI, J.] 1. Rule. Rule made returnable forthwith. Heard by consent. 2. The petition has been filed by the present petitioner for a writ of mandamus or any other appropriate writ, order or direction to the respondent Nos. 4 and 5 to forward the proposal of the petitioner for grant of pension along with all relevant documents, with further direction to respondent Nos. 2 to 4, to decide the same, by granting pensionary benefits to the petitioner. 3. Taking into consideration the chequered history of the litigations between the petitioner, on one hand and respondent No. 6, on the other hand, we had directed the petitioner to hand over the proposal regarding pensionary benefits to the learned counsel appearing for respondent No. 6. Shri. Deshmukh, the learned counsel for respondent No. 6 had assured this Court that the proposal, duly signed by respondent No. 6, would be handed over to Shri. Kakade, the learned counsel appearing for the petitioner. 4. Shri. Kakade has placed before us the proposal regarding pensionary benefits to be made applicable to the petitioner along with 3 the forwarding letter signed by respondent No. 6. 5. The present case is not the first one in a long drawn series of litigation between the parties. There were various rounds of litigations between the petitioner and respondent No.6, which led to file proceedings before the Tribunal as well as before this Court. It may not be out of place to quote some of the observations made by this Court, while passing the order in Civil Application Nos. 6977/2004 and 2010/2005. The relevant portion of the order passed by the Division Bench of this Court, consisting of Hon'ble Shri. Justice A.P. Deshpande and Hon'ble Smt. Justice Vasanti A. Naik, dated 22nd of July 2005 reads thus :- "(2) This petition brings to the light a very arrogant and highhanded attitude on the part of the private school management. The petitioner was working as an Assistant Teacher pursuant to an order of appointment dated 25-11-1988. The departmental enquiry was initiated against the petitioner in the year 2000 which culminated in passing of an order of termination dated 10-4-2001. The petitioner being aggrieved by the termination order, preferred an appeal before the Presiding Officer of the School Tribunal. The Tribunal allowed the appeal by its judgment and order dated 28-10-2002 and the Tribunal directed reinstatement of the petitioner with full back wages. Despite an order passed by the School Tribunal, as the petitioner was not reinstated in service, he initiated 4 contempt proceedings by filing Miscellaneous Application No. 22/2002. The respondent / management seems to have reluctantly reinstated the petitioner with a view to make a show of compliance of the order passed by the Tribunal. The petitioner was reinstated on 5-2-2003 and strangely enough on the same day, he was issued another termination order on the ground that his very appointment was void ab initio. The petitioner had no other choice but to file another appeal before the School Tribunal calling in question the order of termination dated 5-2-2003. The Tribunal allowed the said appeal by its judgment and order dated 19-3-2003. The petitioner was reinstated on 21st April 2003 and on the same day, an order of retirement was served on the petitioner, retiring him from the same day. The petitioner this time chose to file a Writ Petition in the High Court, challenging the action of retirement. It may not be out of place to state that the age of superannuation of a Head Master or a Teacher is 58 years. Admittedly, at the time when the petitioner was served with an order of retirement, according to the petitioner, his age was 52 years. (3) ......... (4) .......... (5) The facts narrated herein above by themselves establish an arrogant and highhanded attitude on the part of the School Management. The orders passed by the School Tribunal and this Court have 5 not been complied with. As and when the Management has complied with any order, the same has never been in spirit. The petitioner is harassed and made to move from pillar to post inspite of repeated orders having been passed in his favour. In this fact situation, the minimum that this Court can do is to see to it that whatever non-salary grants are available with the Education Officer payable to the respondent No. 4, are made over to the petitioner. The Education Officer who is present in the Court, states that a sum of Rs. 6,36,470/- is due and payable to the School Management towards non-salary grants. The petitioner's arrears of salary, as claimed by him, comes to Rs. 7,06,650/-. Learned Assistant Government Pleader states that the said figure is true and correct, on instructions from the Education Officer. Mr. S.T. Shelke, learned Counsel for respondent nos. 4 and 5, submits that School Tribunal's order directs payment of the arrears of salary of the petitioner from the salary grant and, as such, direction should be issued to the Education Officer to pay the amount from the salary grant. We are not impressed by the said submission made by the learned Counsel, as the said payment would consume further time. (6) So far as Civil Application No. 2010/2005 is concerned, it is not in dispute that a room admeasuring 210 square feet is very much available and is being occupied by the Head Master. The photograph of the room has also been placed on record along with the affidavit in reply. 6 (7) In the result, we pass the following order : (a) We direct the Education Officer to pay the entire amount of non-salary grant to the petitioner/applicant forthwith. The Education Officer assures this Court that the amount would be paid within a period of one week from today. We make it clear that it shall be open for the Education Officer to make statutory deductions, such as, income tax, provident fund, etc., from the amount payable to the petitioner. We further make it clear that as and when the amount of salary grants payable to the petitioner would be available, the respondents will be at liberty to move this Court for appropriate orders. (b) We hope and trust that the Education Officer hereafter would exercise more control and supervision over the school in question." 6. It can, thus, be seen that this Court itself, in earlier round of litigation, has found the the attitude of the present respondent No. 6 to be arrogant and highhanded. In the peculiar facts and circumstances of the case, this Court, though the petitioner had an alternate, efficacious remedy, had entertained the said petition, which was filed by the present petitioner, challenging the order of retirement. This Court, in an unequivocal term, found that the respondent No. 6 has not only 7 disobeyed the orders passed by the Tribunal, but also by this Court. 7. The Division Bench, in the peculiar facts and circumstances of the case, has also directed the Education Officer to exercise more control and supervision over the school in question. The proposal of the petitioner, for making him entitled to pensionary and other retirement benefits on account of his retirement on superannuation, would have to be considered in this background. It can further be seen that though vide communication dated 5th of July 2010, addressed by respondent No. 2, the copy of which is placed on record and marked as "X" for identification, the respondent Nos. 5 and 6 were directed to submit a proposal in respect of pensionary benefits/provident fund and gratuity etc., applicable to the petitioner, the same has not yet been submitted by the said respondents. On the contrary, perusal of communication dated 18th of May 2010, a copy of which is already taken on record and marked as "X-1", would clearly exhibit, the arrogant and highhanded behaviour of the respondent No. 6, as has been already noted by the Division Bench of this Court in it's order dated 22nd of July 2005. The respondent No. 6 in the said letter has said that, if it is necessary to recommend the proposal for making pensionary benefits applicable to the person like petitioner, who was occupying the post of Headmaster, he will have to ignore all his social experience and conscience and will also have to kill the principles of natural justice and that this cannot be done by him in any event. The said communication, if read in entirety, though a good 8 piece of literature, depicts a total highhanded and adamant attitude on behalf of the respondent No. 6, which is a mirror reflection of what has been observed by the Division Bench in the earlier order. Though the forwarding letter of respondent No. 6 dated 16th of October 2010 has been drafted so as to show the compliance of the order passed by this Court dated 13th of October 2010, it can be seen from the said letter that it has provided scope for denying or atleast delaying the aforesaid retiral benefits applicable to the petitioner. 8. In this background and specifically, in the light of observations made by this Court in the order dated 22nd July 2005, which have been reproduced hereinabove, we will have to pass some unusual order in the present case. 9. In that view of the matter, we allow the petition with following directions. (1) The proposal of pensionary benefits of the petitioner alongwith the forwarding letter of the respondent No. 6 dated 16th of October 2010 is directed to be handed over to the learned A.G.P. who shall hand over the same to the Education Officer. (2) The Education Officer would ignore all the adverse things said in the said forwarding letter of respondent No. 6 and treat that proposal of making retirement benefits applicable to the petitioner, as duly 9 recommended by respondent No. 6. (3) All the pensionary benefits including the provident fund, gratuity etc. would be made applicable to the petitioner within a period of three months from today and the arrears, if any, shall be paid to the petitioner within a period of six months from today. (4) Needless to state that all this would be subject to the result of the Writ Petition No. 1999/2010. (5) We further clarify that taking into consideration the highhanded and adamant attitude of respondent No. 6 which has been noticed by this Court in its order dated 22nd of July 2005, if the respondent No. 6 makes any attempt to deny or delay grant of retiral benefits applicable to the petitioner, the same shall be totally ignored by the authorities of the Education Department. (6) Authenticated copy of this order be supplied to the learned A.G.P. to act upon. Rule is made absolute in the aforesaid terms. [ A. A. SAYED ] [ B. R. GAVAI ] Judge Judge ssc/wp3891.10