IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2559 OF 2009 WRIT PETITION NO. 2559 OF 2009 WRIT PETITION NO. 2559 OF 2009 Munsura Ebrahim Millwala ...Petitioner vs. Hyderabad (Sind) National Collegiate Board & Ors. ...Respondents Mr.A.A. Kumbhakoni, Sr.Counsel with Mr.Y.E. Mooman for the Petitioner. Mr.Gobindram D. Talreja for Respondent Nos.1 to 3. Mr.P.M. Palshikar for Respondent No.4. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : APRIL 27, 2009 DATED : APRIL 27, 2009 DATED : APRIL 27, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for both the parties. 2. The petitioner is challenging order passed by the Tribunal dismissing her appeal for reinstatement. Brief facts in nutshell are as under :- 3. There is a chequered history in respect of this case and the petitioner in the petition had moved the Tribunal and thereafter, had come to the High Court and again second application was filed which went upto the Supreme Court. The petitioner was working as a part time clerk in December 1977 and in January 1985, she - 2 - filed an application in respect of an advertisement which was given by the respondent no.1 for the post of Librarian. The petitioner’s application for the said post was processed in accordance with law and she was appointed in the said post. There was some dispute raised in July 2002 about the certificates which had been issued by the petitioner at the time she had applied for her appointment to the post of Librarian. The petitioner was, therefore, suspended on 15.7.2002 and a charge-sheet was filed against her and enquiry was held and thereafter, her services were terminated. This order was challenged by her by filing an appeal before the Tribunal. The appeal was allowed and the department was directed to reinstate the petitioner to the post of Librarian with continuity of service and full backwages. This order, however, was not complied by the respondent and therefore, contempt petition was filed in the Tribunal. After the contempt petition was filed, the respondent filed the writ petition in this court. The writ petition came up for hearing before Brother Justice D.Y. Chandrachud. During the course of hearing, the parties arrived at the settlement which settlement terms - 3 - were recorded by the learned Single Judge in the order and the petition was disposed of in terms of Consent Terms. In the Consent Terms, it was agreed between the parties that the services of the petitioner would be reinstated with effect from 6.11.2006 and she would be given her normal duties. It was further stated that she would apply for voluntary retirement and the same would take effect from 6.11.2007 i.e. after one year from the date of which she would be reinstated on 6.11.2006. 4. Accordingly, in view of the consent terms, the petitioner was reinstated in service on 6.11.2006 and she also tendered her voluntary retirement with effect from 6.11.2007. It is the case of the petitioner that however, normal duties were not given to her and she was demerited and she was not given proper place to sit and other facilities also were not provided. She, therefore, made an application for withdrawal of her voluntary retirement. However, the said withdrawal of voluntary retirement application was not accepted by the management and therefore, she again preferred an appeal in the College Tribunal. In the meantime before that, - 4 - she had filed the Notice of Motion in this Court being Notice of Motion No.47/2007 for review of the order dated 12.10.2006 and non-compliance of the Consent Terms by the respondents. This Notice of Motion was rejected by the learned Single Judge (Coram : Dr.D.Y. Chandrachud, J.) by order dated 15th June, 2007. Against the said order, an appeal was filed before the Division Bench (Coram : J.N. Patel and A.A. Sayyed, JJ.). The appeal also was dismissed. Against this dismissal of the appeal, a SLP was preferred in the Apex Court which also was dismissed by order dated 20.11.2007. It was, however, observed by the Apex Court that it was open for the petitioner to take appropriate proceedings in accordance with the law for the purpose of enforcement of the Consent Terms said to have been arrived at by the parties. Thereafter, as mentioned aforesaid, the appeal was filed before the Tribunal. This appeal also is dismissed. Being aggrieved by the said order of dismissal of the appeal, the present petition has been filed by the petitioner. 5. It was strenuously urged by the learned Counsel - 5 - for the petitioner that on account of withdrawal of the application for voluntary retirement, the management could not have accepted the application for voluntary retirement. In support of the said submission, the learned Counsel Shri Kumbhkoni for the petitioner relied on the judgment of the Apex Court in the Punjab National Punjab National Punjab National Bank, Appellant vs. P.K. Mittal, Respondent, reported Bank, Appellant vs. P.K. Mittal, Respondent, reported Bank, Appellant vs. P.K. Mittal, Respondent, reported in AIR 1989 SC 1083. in AIR 1989 SC 1083. in AIR 1989 SC 1083. It was also submitted that since the voluntary retirement was to take effect in a future date, it was always open for the petitioner to withdraw the said application for voluntary retirement. He further submitted that since the respondent had not complied with their part of the obligation under the Consent Terms, it was always open for the petitioner to withdraw the application for voluntary retirement. 6. Shri Talreja, learned Counsel for the respondent, on the other hand, submitted that it was not open now for the petitioner to wriggle out of the Consent Terms which had been confirmed and recorded by the learned Single Judge of this Court. He submitted that the option of the voluntary retirement was - 6 - automatic in view of the specific consent which is recorded by the learned Single Judge. He further submitted that as per the Consent Terms, the petitioner had been reinstated and on frivolous grounds, the petitioner had raised objections regarding the facilities which were allegedly not provided by the management. He submitted that the backwages prior to 2006 as agreed, had been calculated and was deposited with the Tribunal and the petitioner also had not given her Birth Certificate and other relevant records in order to enable the respondent to file her pension papers before the appropriate authority. 7. Shri Kumbhkoni, learned Counsel appearing on behalf of the petitioner, on the other hand, submitted that the calculations made by the respondent were not correct. 8. In my view, the submissions made by the learned Counsel for the petitioner cannot be accepted. Taking into consideration the consent terms which were recorded by the learned Single Judge of this Court, it is obvious - 7 - from the said order that it was specifically agreed by the parties that after re-instatement, the services of the petitioner would come to an end and the voluntary retirement would take an effect from 6th November, 2007 In view of this, the Tribunal was justified in holding that there was no option left with the management or with the petitioner herein to alter the terms and conditions in the consent terms. The Tribunal has given cogent reasons for not accepting the submission made by the petitioner. 9. So far as the judgment of the Apex Court in the case of Punjab National Bank (supra) Punjab National Bank (supra) Punjab National Bank (supra) on which reliance is placed by the petitioner is concerned, the ratio of the said judgment would not apply to the facts of the present case since in this case, the voluntary retirement specifically was to take effect pursuant to consent terms which were filed by the parties and which were accepted by the learned Single Judge. Therefore, there is no merit in the submission made by the learned Counsel for the petitioner. The respondents have already deposited the amount of backwages from 2002 to - 8 - 2006 when the services of the petitioner were terminated. The petitioner is at liberty to withdraw the said amount which is deposited by the respondent in the Tribunal. The respondent also shall, upon the petitioner submitting the relevant documents, process her pension papers and file an application to the pension authorities as soon as the petitioner handovers the relevant documents. 10. Writ Petition is, accordingly, dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)