Vasant v. 3. 4. 5. 2 Municicipal Council

Shri H. A. Deshpande, Advocate for the petitioner. Shri P. C. Madkholkar, Advocate for the Respondent no.1. Shri SS Doifode, AGP for R-3 to 5. CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATED : 08/09/2009. Heard Advocate Shri Deshpande for the Petitioner, Advocate Shri P. C. Madkholkar,for Respondent no.1 and 3 learned AGP Shri T. A. Mirza for Respondents no.3 to 5. The challenge in this writ petition is to the order of the Collector, Akola dated 7-7-1994 passed under Section 308 of the Maharashtra Municipalities Act, whereby he suspended the Resolution no.4 (2) dated 31-12-1993 passed by the General Body of Respondent no.1 Municipal Council. By the said Resolution, the Municipal Council resolved to retain the Petitioner in service beyond 58 years till he reached the age of 60 years. The said date of Resolution mentioned in the order of Collector as 31-12-1993 has been later corrected by the corrigendum as dated 29-12-1992. This Court had granted interim relief to the Petitioner which continues to operate even today. In 4 the result, the impugned order of the Collector never came into force, and resolution of Municipal Council continues to operate. The Petitioner accordingly continued to work up to 60 years. Because of the interim orders passed by this Court, he was paid his salary for the work done, and also because of the interim orders, he was paid Gratuity for service beyond 58 years. However, the said payment was subject to his undertaking that in case of dismissal of the Writ Petition, he would refund the entire amount back to the Municipal Council. The Petitioner expired during pendency of the Writ Petition and his legal heirs have been brought on record on 19-07-2000. In this background, Advocate Shri Deshpande urges that the Petitioner is entitled 5 to re-computation of his pension by calculating the age of retirement to be 60 years. In the alternative, he states that the provisional pension being paid to the Petitioner/his dependants needs to be finalized. Advocate Shri Madkholkar has contended that the Order of Collector has taken into account the proviso of byelaw's of Karanja Municipal Council and also service bylaws adopted by the Municipal Council, and has considered the grievance made by the employee Mayaram Sadhwani and accepted it. He contends that the said Mayaram Sadhwani is not a party before this Court. According to him, retention of the Petitioner beyond 58 years was unwarranted and in the present circumstances, the Order of the Collector requires no interference. 6 Leaned AGP adopts these arguments. Perusal of bye-laws called as Karaja Municipal Council (Regulating the period of service of the employees) Bye-laws 1977 filed on record by the Petitioner particularly bye-law no.4 states that the age of retirement for the Petitioner was 58 years. Proviso thereto permitted the Employer Municipal Council to retain the Petitioner in service after completion of 58 years, but not beyond 60 years on the grounds to be recorded in writing with previous approval of Council by means of a Resolution passed by a majority of total number of Councilors. It is not in dispute before us that in 1986 the Municipal Council amended its service bye-laws by passing the appropriate resolution in accordance with Section 322 read 7 with Section 80 and MCSR (Pension Rules) 1982 has been adopted as service bye-laws. As per Rule 10 sub rule (1), the age of retirement is specified to be 58 years, and it permitted retention in service beyond 58 years only with the previous sanction of the Government on public grounds which were required to be recorded in writing. Here, it is not in dispute that the Resolution has been passed by the Municipal Council on 29-12-1993 and in that Resolution, the reasons for retention of the Petitioner beyond 58 years of his age are recorded. It is to be noted that the reference to State Government in Rule 10 sub rule (1) of Pension Rules 1982 needs to be construed as reference to the Municipal Council (General Body) in the present matter. 8 As per the retirement order issued to the Petitioner on 22-12-1993, he was to complete 58 years of his age on 31-5-1994. Thus, the valid resolution for his retention beyond 58 years was passed by the competent authority. The reasons recorded therein cannot be labeled to be either irrelevant or erroneous. Though the Collector has subsequently set aside the said Resolution in the complaint filed by Shri Sadhwdani, it is apparent that the Petitioner has worked because of the interim orders passed by this Court. The Petitioner has received his salary up to the age of 60 years and he has also been paid Gratuity for that service. The Collector has interfered in the matter because the Collector has found that the previous 9 approval of Director of Municipal Administration thereon was not obtained. Because of the passage of time and in changed situation, it is not necessary for us to consider the controversy in more details. Petitioner is already dead, and he was paid for work done. He cannot be said to be at fault. His or his heirs(cid:25) entitlement to pension at 58 cannot be disputed. The Writ Petition is, therefore, accordingly allowed by declaring that the Petitioner was being validly continued by the Municipal Council beyond 58 years of his age. It is clarified that, that does not mean that the Petitioner is entitled to re-computation of pension by treating his age of retirement as 60 years. 10 The Petitioner/his dependants are being paid provisional pension. We direct the Municipal Council to calculate his pension as if he retired at 58 years of his age, and to finalize the same and arrange to pay the arrears to his dependants in accordance with law as early as possible and in any case by 31st July

2010. Rule accordingly. No costs. JUDGE JUDGE /Muley/