2003(4) ALL MR 54
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

H.L. GOKHALE AND S.J. VAZIFDAR, JJ.

Smt. Kunta Narayan Jagdale Vs. State Of Maharashtra & Ors.

Writ Petition No.410 of 1995

18th July, 2003

Petitioner Counsel: Mr. S. G. KUDLE
Respondent Counsel: Mrs. S. S. BHENDE

Secondary School Code - Junior Colleges - Are to be treated as an extension of secondary schools.

In the instant case, the Petitioner initially worked as a Head Mistress in the school known as "Jaihind Vidyalaya" in District Osmanabad from 4th June, 1956 to 8th June, 1969. Thereafter she left the service and proceeded to improve her qualification by enrolling herself for Ph.D. The fact remains that she did receive her General Provident Fund at the time of leaving the secondary school. Thereafter she joined back again on 3rd July, 1973 in a junior college of the same institute at Barshi. She worked over there from 3rd July, 1973 to 30th June, 1975 and subsequently worked as a lecturer in a senior college from 1st July, 1975 to 30th June, 1994 when she retired. At that time, the Deputy Director of Education made a recommendation on her representation. On that representation dated 19th August,1991, the Deputy Director recommended that the break in service be condoned as a special case and accordingly orders be passed. The Desk Officer, Government of Maharashtra, however, by his communication dated 11th February, 1992 conveyed the decision to the Petitioner that the break could not be condoned. The Petitioner relies upon a case of another employee, i.e. one Mr. S. M. Zapake, in whose case a break of some 6 years was condoned and, therefore, Mr. Kudle submits that in the present case also appropriate orders should be passed. A reply has been filed on behalf of the Respondent - State Government and it is pointed out that the two cases of Mr. Zapake and the Petitioner could not be compared. The reason given is that Mr. Zapake all throughout taught in a secondary school and subsequently in a junior college. Court does not find any merit in this submission for the reason that junior colleges are also treated as an extension of the secondary school and in many places, XI and XII standards are run by the schools themselves. [Para 2,3]

JUDGMENT

H. L. GOKHALE, J. :- This petition is by a school teacher, who initially worked in a secondary school, thereafter left the service of that school for a period of about 4 years, completed her Ph. D. in the meanwhile, then joined a junior college of the same institution and subsequently retired as a lecturer in the senior college of the same institution. In this process, there was a break in service for a period of 4 years and 24 days between 9th June, 1969 and 2nd July, 1973. In case that break is condoned by passing appropriate order, the Petitioner will be eligible to receive better retirement benefits. It is for this purpose that the present petition has been filed.

2. As stated above, the Petitioner initially worked as a Head Mistress in the school known as "Jaihind Vidyalaya" in District Osmanabad from 4th June, 1956 to 8th June, 1969. Thereafter she left the service and proceeded to improve her qualification by enrolling herself for Ph.D. The fact remains that she did receive her General Provident Fund at the time of leaving the secondary school. Thereafter she joined back again on 3rd July, 1973 in a junior college of the same institute at Barshi. She worked over there from 3rd July, 1973 to 30th June, 1975 and subsequently worked as a lecturer in a senior college from 1st July, 1975 to 30th June, 1994 when she retired. At that time, the Deputy Director of Education made a recommendation on her representation. On that representation dated 19th August,1991, the Deputy Director recommended that the break in service be condoned as a special case and accordingly orders be passed. The Desk Officer, Government of Maharashtra, however, by his communication dated 11th February, 1992 conveyed the decision to the Petitioner that the break could not be condoned. The Petitioner relies upon a case of another employee, i.e. one Mr. S. M. Zapake, in whose case a break of some 6 years was condoned and, therefore, Mr. Kudle submits that in the present case also appropriate orders should be passed.

3. A reply has been filed on behalf of the Respondent - State Government and it is pointed out that the two cases of Mr. Zapake and the Petitioner could not be compared. The reason given is that Mr. Zapake all throughout taught in a secondary school and subsequently in a junior college. We do not find any merit in this submission for the reason that junior colleges are also treated as an extension of the secondary school and in many places, XI and XII standards are run by the schools themselves. That apart, reliance is placed on a Government Resolution dated 12th November, 1976. This Resolution states that breaks after 30th September, 1974 in respect of teachers should not be condoned. Mrs. Bhende, A. G. P. for Respondents Nos.1 and 2, has however taken instructions from the concerned Section Officers Mrs. Ghodpade from the Higher and Technical Education Department, who is present in Court. Mrs. Bhende informs that it is the School Education Department which can take the decision as to whether this break should be condoned while accepting that since this is a case of break prior to 30th September, 1974, it is possible to condone the break.

4. In the event the Government decides to condone this break, the fall out will be that the Petitioner will have to return the amounts which she has received at the time of leaving her service on the first occasion. This is because if she is to be granted continuity, it is only on her refunding the amount received by her with appropriate interest that the other benefits can flow to her including pension. This aspect will have to be decided by the Secretary, Higher and Technical Education Department.

5. This being the position, we direct the Secretary, School Education Department to examine and take a decision as to whether the break during the period 9th June, 1969 to 2nd July, 1973 could be condoned in the case of the Petitioner. In the event, the decision is taken that the break deserves to be condoned, the papers will be forwarded to the Secretary, Higher and Technical Education Department, who will arrive at the exact amount that would be payable to the Petitioner on the basis of the continuous service from 4th June, 1976 until her retirement on 30th June, 1994. After making the calculation, the officer concerned will make appropriate deduction towards the monies which the Petitioner has received and thereafter the amounts due to the Petitioner either by way of pension or other benefits will be arrived at.

6. The Secretary, School Education Department will take the decision within 2 months from the receipt of an authenticated copy of this order and after that decision is conveyed to the Secretary, Higher and Technical Education Department, he will take decision within 2 months thereafter. The concerned departments will give notice to the Petitioner and will permit her to make her representation. The decisions that they will take shall contain at least short reasons for the same.

7. Rule is made absolute accordingly with no order as to costs.

8. Parties to act on a copy of this order duly authenticated by the Personal Secretary.

Petition allowed.