1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2320 OF 2009 IN WRIT PETITION NO.6609 OF 2009 The Director of Higher Education, ..Applicants Pune & ors V/s. Nowrosjee Wadia College & ors ..Respondents Mr.P.P.Kakade, Assistant Government Pleader, for the applicants Mr.Mihir Desai, Advocate, for the original petitioner Mr.Sandip Waghmare a/w.Mrs.M.G.Kulkarni, Advocate, for respondent No.3 CORAM : S.B.MHASE & R.M.SAVANT, JJ. DATE : 9TH OCTOBER, 2009 P.C. . Heard the learned counsel for the parties. 2. Writ Petition No.8763 of 2007 and other 12 companion matters were decided by Division Bench of this Court comprising of J.N.Patel & A.A.Sayed, JJ. on 7th April, 2000. In all those Writ Petitions, the teachers and the lecturers working with various 2 educational institutions were the petitioners. All those petitioners have retired from their services and while claiming the pensionery benefits they were claiming benefit of leave encashment also. Since that was denied by the State of Maharashtra, the concerned Management and the petitioners had filed those Writ Petitions. In all those Writ Petitions, Rule was granted and the Writ Petitions were finally heard. It is to be noted here that in all those Writ Petitions the State of Maharashtra was a party. For the State of Maharashtra, the Government Pleader, Shri Vinay Masurkar had appeared in all those Writ Petitions. Therefore, after hearing the parties and more specifically the State of Maharashtra, those Writ Petitions were allowed and leave encashment for maximum 180 days or to the extent that the petitioners are entitled to have been granted. The said Judgment of this Court was not challenged by the State of Maharashtra or any other educational institution where respective petitioners were working. Thus, 3 the said Judgment has attained finality as against the educational institutions and also against the State of Maharashtra as a result of not preferring SLP before the Apex Court. Thus, as a result of not preferring SLP, the State of Maharashtra has acquiesced in the said Judgment and Order. In view of the said subject, the petitioner Nowrosjee Wadia College which was being run by the Modern Education Society complied with the said Order and paid benefits of leave encashment. Since these Colleges were grantable, they made a claim of re-imbursement with the Joint Director of Higher Education. In fact, the Director of Higher Education was under obligation to make re-imbursement in view of the fact that the State of Maharashtra was a party to the earlier Writ Petitions referred to above but by Order dated 24th August, 2009, even though the claim was made by the petitioners in Writ Petition No. 6609 of 2009 to the respondent  State, the respondent  State kept silence over it and did not make payment to them and therefore, the petitioners 4 had approached this Court. We had called upon the Joint Director of Higher Education, Mr.Kadu to remain present before us to know as to why the Government of Maharashtra is not obeying this Court's Order and the Government of Maharashtra in fact was in contempt for not obeying this Court's Order. We waited to know whether the State was obeying this Court's Order or not otherwise contempt proceedings would be initiated against them. Thereafter, a concession was given which was recorded in the Order dated 24th August, 2009. We make it clear that in the absence of said concession we could have passed an Order directing the respondents to obey the Orders passed in Writ Petition No.8763 of 2007 dated 7th April, 2000, coupled with 12 other companion matters. In our view, in view of this Court's Order, the petitioners were entitled to get re-imbursement from the respondents especially from the State of Maharashtra. Therefore, the Order in Writ Petition No.6609 of 2009 dated 24th August, 2009, is not 5 simply based on the concession given by Mr.Kadu but it is equally based on the Order passed by Division Bench of this Court in Writ Petition No. 8763 of 2007 and 12 other companion matters dated 7th April, 2000. Under these circumstances, we only relieve Mr.Kadu from his concession in the Order of Writ Petition No.6609 dated 24th August, 2009. In the Civil Application raise a new ground for refusal of the payment. However, once the Order in Writ Petition No.8763 of 2007 dated 7th April, 2000, has attained finality then these grounds are not available to the respondents. Much more by the principle of constructive res-judicata these grounds are now barred. Therefore, we maintain the Order dated 24th August, 2009, except deleting the concession recorded of Mr.Kadu in the said Order. 3. The above Civil Application is allowed to be withdrawn and stands disposed of accordingly. ( R.M.SAVANT, J.) ( S.B.MHASE, J. ) 6