1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 382/2003 Dr. M. R. Nimbalkar, resident of “Renuka” Plot No.458, R.K. Nagar, Cooperative Housing Society No.6, Kolhapur – 406013. ......... Petitioner. Versus (1) The Director of Education, Government of Goa, having Office at Directorate of Education, 18th June Road, Panaji-Goa. (2) The Director of Accounts, Government of Goa, having Office at Directorate of Accounts, Panaji, Goa. (3) State of Goa, through the Chief Secretary, having Office at Secretarat, Panaji, Goa. ........... Respondents. Mr. M. S. Sonak, Advocate for the Petitioner. Ms. W. Coutinho, Government Advocate for the respondents. CORAM : P.B. MAJMUDAR & N.A. BRITTO, JJ. DATE : 23rd JANUARY, 2009. ORAL JUDGMENT : (Per : P.B. MAJMUDAR, J.) 2 By this petition, the petitioner has prayed that the respondents may be directed pay additional benefits of Rs.1,34,946/- along with interest, which amount he is entitled to on the basis of the calculation of retirement dues, considering the age of superannuation as 60 years and not 58 years. The petition has taken the benefit of Voluntary Retirement Scheme (VRS). However, while calculating the retirement dues, the Department considered his age of superannuation as 58 and not 60, though according to the petitioner the calculation should have been done considering the age of superannuation as 60 as he was discharging his duty on promotion to the post of Headmaster/Vice Principal of Government School/Higher Secondary School. 2. The petitioner was initially appointed as Asstt. Social Educational Officer in the Directorate of Education, Panaji. As per the Schedule to the Recruitment Rules, at page 24 the next promotional post to the post of Asstt. Social Educational Officer is the Vice- Principal of Training College/Headmaster of Govt. High School/Vice- Principal of Government Higher Secondary School. The petitioner was subsequently promoted vide Order dated 18.11.1997. The order states 3 that various officers in the grade of Tr. Gd.I/Sr. Inst./A.D.E.I./ Headmaster of Govt. Middle School/ASEO have been promoted to the post of Headmaster/Vice-Principal of Govt. High School/Higher Secondary School in the scale of Rs.2000-3500 with immediate effect. The name of the petitioner appears at serial No. 17, and in Column No.4 i.e. “Designation and Place where now posted on promotion” does not show the post to which the petitioner is promoted, but only recorded as “State Institute of Education Porvorim vice Shri V.D. Nadgauda transferred”. It seems that the petitioner brought to the attention of the respondent No.1 the fact that he could have been promoted to the post of Headmaster/Vice Principal of Government School/Higher Secondary School as per the Recruitment Rules. According to the petitioner, on that basis there is also an entry in the petitioner’s Service Book to the effect that the petitioner is posted on the post of Headmaster/Vice Principal of Government School/Higher Secondary School in the pay scale of Rs.2000-3500. 3. Mr. Sonak, learned Counsel appearing for the petitioner submitted that as per the Recruitment Rules, the petitioner could have been promoted only on the post of Headmaster/Vice Principal of 4 Government School/Higher Secondary School which is on teaching side and even if for administrative reasons the petitioner was assigned the duties on non-teaching side as he accepted the posting at State Institute of Education Porvorim vice Shri V.D. Nadgauda, who was designated as non-teaching staff, that itself is not a ground for considering the age of superannuation to the post in question as 58 years. It is not in dispute that if a person who is serving on the non- teaching side, his age of superannuation is 58 years. 4. It is the say of the petitioner that when he was promoted to a post meant for teaching side and even if for administrative reasons he was asked to perform non-teaching work, that itself is no ground in considering his age of superannuation as 58 years and not 60 years. The learned Counsel for the petitioner drew our attention to the order dated 2nd September, 2002 of the Director of State Institute of Education which is at page 32. As per the said order, the petitioner is entitled to Rs.1,34,946/- which is stated to be admissible under the VRS. That amount obviously has been calculated considering the superannuation age of the petitioner as 60 years. Inspite of the said order, the petitioner was not given the benefit in 5 consonance with the said order. The petitioner has, therefore, filed this writ petition praying for a writ of mandamus, directing the Department to give the said benefits. 5. Ms. Coutinho, the learned Government Advocate for the respondents submitted that the petitioner after his promotion, was working on a non-teaching post, for which the superannuation age is 58 years. The petitioner, therefore, cannot ask for the benefits on the basis that his age of superannuation is 60 years, especially when the petitioner was never a part of teaching staff after his promotion and through out he continued as a member of the non-teaching staff. She has next submitted that the service record was changed without the approval of the Government which fact is also highlighted in the affidavit-in-reply filed by the respondents. It is further argued that the petitioner has not made any representation for changing his service record, yet the service record was changed. Her main contention is that the entry in the service record is illegal since there is no approval of the Government for the change in the service record. It is also submitted by her that since the petitioner has worked on a non- teaching post, for which the superannuation age is 58, the petitioner is 6 not entitled to any benefit considering his age of superannuation as 60 years. 6. We have heard the learned Counsel for the parties and gone through the petition and the reply filed by the respondents. It is required to be noted that as per the Recruitment Rules, the petitioner could have been promoted and posted on the post of Headmaster/Vice Principal of Government School/Higher Secondary School and that the petitioner could not have been promoted to any other post. It is not in dispute that the retirement age prescribed for the post of Headmaster/Vice Principal of Government School/Higher Secondary School is 60 years and not 58 years. Once the petitioner is already promoted and even the order of promotion itself provides for the promotion to the said post, we fail to understand as to how it can be said that the petitioner’s age of superannuation is 58 years which is prescribed for non-teaching staff. The fact remains that the petitioner was promoted to the post in respect of which the age of superannuation is 60 years not 58 years which fact is not in dispute. It is further to be noted that service entry is already changed by the concerned Department and apart from that, even an order was passed 7 on 2nd September, 2002 which is at page 32 giving the said benefit. Even, otherwise, the petitioner could not be promoted to a post meant for non-teaching staff as the Recruitment Rules speak otherwise, and as per the Recruitment Rules, the petitioner could be promoted to a post falling within the category of teaching staff only. It is thus clear that the petitioner is promoted on teaching post and the petitioner is, therefore, entitled to get the benefits considering the age of superannuation as 60 years, irrespective of whether he was for administrative reasons posted and performing duty of a non-teaching staff. 7. Considering the aforesaid aspect of the matter, there is no justification for withholding the amount which is calculated on the basis that the petitioner’s age of superannuation is 60 years which is evident from the communication dated 2.9.2002 at page 32 of the paper book. The said benefit has been withheld, without giving any hearing to him and thus in violation of the principles of natural justice. 8. The contention of the petitioner that his past service with Shivaji Arts & Commerce College, Karwar-Karnataka should have 8 been counted for the retirement benefits cannot be accepted as the petitioner had accepted his appointment to the post of Assistant Social Education Officer as a fresh appointment and there is no material to show that the petitioner had any lien in this behalf on the original post. In fact the petitioner had served in other State and as such, his earlier period cannot be counted. 9. The petition is, accordingly, partly allowed in terms of prayer clause (a) to the extent that he shall be entitled to the additional benefits of Rs.1,34,946/- along with interest at the rate of 8% per annum till payment, as the demand of the petitioner for interest at the rate of 15 % per annum is not justified. The said payment shall be made within a period of 8 weeks from today. Rule made absolute, accordingly, to that extent. There shall be no order as to costs. P.B. MAJMUDAR, J. N.A. BRITTO, J. ssm