Bombay High Court
Jai Maharashtra Shikshak Wa Karmachari … vs Brihanmumbai Municipal Corporation on 3 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-OS:849-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
ORDINARY ORIGINAL CIVIL JURISDICTION
signed by
ARUNA
ARUNA SANDEEP
SANDEEP TALWALKAR
TALWALKAR Date:
2025.01.20
20:44:49
+0530
WRIT PETITION NO.2202 OF 2022
Jai Maharashtra Shikshak Wa
Karmachari Sena, A Registered Union
of Teachers and Non-Teaching Employees
and Also a Public Charitable Trust registered
under the provisions of Bombay Public Trusts
Act 1951 and having its registered address as
C-6, Kamgar Swa-Sadan, Mahadev Palav Road,
Curry Road (East) , Mumbai 400012.
i) Through its Founder/President,
Shri. Vijay Patil, Age:-56 years.
ii) Through its General Secretary,
Shri. Sandeep Parab, Age:- 52 years,
iii) Through its Working President, Shri,
Sunil Surve, Age:- 52 years,
iv) Through its Treasurer, Shri.
Ramdas Hanjankar, Age:-48 years,
v) Through its Officiating Secretary,
Smt. Geeta Rane, Age:- 59 years, All
having address C-6, Kamgar Swa-Sadan,
Mahadev Palav Road, Curry Road
(East), Mumbai 400012 ... Petitioner
Versus
1. Brihanmumbai Municipal Corporation,
Mahapalika Marg, Near Chhatrapati Shivaji
Terminus, Mumbai 400001 (Through the
Commissioner).
2. The Joint Municipal Commissioner,
Brihanmumbai Municipal Corporation
Education Department, Mumbai 400012.
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3. The Education Officer, Brihanmumbai
Municipal Corporation, Education Department,
Triveni Sangam Municipal Marathi School
Mahadev Palav Marg, Curry Road (East),
Mumbai 400012.
4. The Deputy Education Officer,
Brihanmumbai Municipal Corporation,
Private Primary Aided School Section,
Triveni Sangam Municipal Marathi School,
Mahadev Palav Marg, Curry Road (East),
Mumbai 400012.
5. The Superintendent (School),
Private Primary School Department,
Triveni Sangam Municipal Marathi School,
Mahadev Palav marg, Curry Road (East), Mumbai 400012
6. The Chief Accounts Officer,
Accounts Section Education Department,
Private Primary Aided School, Triveni
Sangam Municipal School, Curry Road,
Mumbai 400012.
7. The State of Maharashtra,
Through the Principal Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 400032. ... Respondents
...
Mr Sachin S Punde, Advocate for the Petitioner.
Mr Shivprasad D Borade a/w Mr Lalit B Devkate, for the
Respondent-BMC.
Mr Nilesh Datar, Administrative Officer, Aided School Present.
Ms Gaurangi Patil, AGP for the Respondent No.7/State.
...
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CORAM: BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATED : 3rd JANUARY, 2025
JUDGMENT (PER ASHWIN D. BHOBE J.)
1. Rule. By consent of the counsel, Rule is made returnable
forthwith.
2. Petitioner, a Public Charitable Trust registered under
Bombay Public Trust Act, 1951, a union of teachers and
non-teaching employees working in aided and unaided
Pre-Primary, Primary, Secondary and Higher Secondary Schools
in Brihanmumbai, has preferred the present petition, seeking
grant of pension and retiremental benefits to its members.
Details pertaining to the post held by the members of the
Petitioner, date of their appointments, dates of receipt 20%
grant-in-aid, dates of receipt 100% grant-in-aid, date of
retirement and the period of service are mentioned in the
Schedule annexed to the petition as Exhibit A.
Exhibit A makes reference to the following essential facts:-
a) Members (28 nos.) of the Petitioner Association
appointed as teachers/ nonteaching employees in aided
Private Primary Schools in Brihanmumbai-possessed the
requisite qualification and their appointment was duly
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retired upon attaining the age of superannuation. Having
put in service ranging from 17 years to 36 year.
b) The Schools which recruited members of petition
started getting 20% grant-in-aid, from Respondent No. 1
Corporation and thereafter 100% grant-in-aid, in the
subsequent heirs.
c) Members of the Petitioner have retired after
completion of 10 years of qualifying service.
3. Respondent No.1 Corporation is established under the
Mumbai Municipal Corporation Act, 1808.
Education Department of the Respondent No.1 Corporation
by a Circular bearing No.SAS/Pension/667 dated 31.10.1997,
formulated the “Pension Scheme for Private Primary Aided
Schools of Greater Mumbai” (Pension Scheme”) w.e.f. 01.04.1979.
By this Pension Scheme the pensionary benefits were
extended to the approved staff (Teaching and Non-Teaching) of
the Private Primary Aided Schools in Greater Mumbai.
By Circular bearing No.SAS/Pensions/847 dated 30.11.2005
guidelines were issued in respect of the Pension Scheme.
4. Pension proposals submitted pursuant to the Pension
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Scheme, by the members of the Petitioner i.e. Teaching/Non-
teaching employees were rejected by the Respondent Nos. 1 to 6
which resulted in refusal of grant of pension and other
retiremental benefits to the members of the
Petitioner/beneficiaries under the Pension Scheme.
5. Issue raised in the present petition is no more res integra.
The question of the applicability of the Pension Scheme fell
for consideration before this Court in Writ Petition No.415 of 2012
filed by the Ms. Anuradha Jayant Gangakhedkar1.
Ms. Anuradha Jayant Gangakhedkar (supra), an Assistant
Teacher working in a Marathi Medium Primary School vis. D. D. @
Babasaheb Deshpande D. S. High School (Primary School),
receiving grant in aid, having retired upon attaining the age of
superannuation, sought for extension of the benefit under the
Pension Scheme. The petition was opposed by the Respondent
No.1 Corporation on the ground that, the qualifying service to
avail benefit under the Pension Scheme must be construed to be
service rendered in an aided school; and service rendered by an
employee before the school came in receipt of grant in aid would
have to be excluded for computing qualifying service.
Reliance was placed on Rule 48 of the Pension Rules, which
1 Anuradha Jayant Gangakhedkar Vs. Brihanmumbai Municipal Corporation and Ors. 2012 SCC
OnLine Bom 1056
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provides that a Municipal employee retiring on superannuation
before completing qualifying service of 10 years is only entitled to
service gratuity of half months’ pay for each completed six
months period of qualifying service.
6. This Court by judgment dated 26.07.2012, passed in the
said Writ Petition negated the contentions of the Respondent No.1
Corporation and held Ms. Anuradha Jayant Gangakhedkar is
entitled to the benefit under the pension Scheme. In paragraph
Nos. 6 and 7, this Court held as under:
“6. The Pension Scheme which has been framed by the
Municipal Corporation applies to full time confirmed and
approved teaching and non-teaching staff of private
primary aided schools of Greater Mumbai whose salaries
and allowances are held admissible for grant-in-aid and
claimed regularly by the School from the Municipal
Corporation subject to the condition that the School has
obtained an exemption under Section 16(2) of the EPF Act,
1952. The expression “Private Primary School” is defined to
mean a private primary school recognized by the
Government and receiving grant-in-aid from the
Corporation. Clause 8 of the Scheme which provides for the
computation of pension requires a qualifying service not
less than 33 years. In the case of an employee who has
rendered qualifying service of ten years or more, but less
than 33 years, a pro rata computation is provided for. The
definition of the expression “qualifying service” in the
Pension Rules refers to service rendered in a permanent
post. In the present case, there is no dispute about the
position that the Petitioner worked in a post which was
sanctioned. Her services were duly approved by the
Education Officer. The test which must be applied is as to
whether an employee was a full time confirmed and
approved member of the teaching or non-teaching staff of a
private primary aided school on the date of her retirement.
If that test is satisfied, the Pension Scheme is made
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is no warrant in the Pension Scheme or the Pension Rules to
exclude while computing qualifying service, the service
which is rendered by an employee before a school came to
be in receipt of grant- in-aid. So long as the school was in
receipt of grant-in-aid on the date on which an employee
retired from service upon attaining the age of
superannuation, the application of the Pension Scheme
would be attracted. The Petitioner was an employee of a
private primary aided school on the date of retirement and
was hence eligible.
7. For these reasons we are of the view that the Municipal
Corporation is required to release pensionary benefits to the
Petitioner. We direct that the Third and Fourth Respondents
shall complete the pension papers pertaining to the
Petitioner and submit them to the Education Officer
(Primary) of the Mumbai Municipal Corporation within a
period of two weeks from today, unless the papers have
already been submitted. In this event, that the Education
Officer requires any further information, he shall make a
requisition to the School within one week which shall
comply with the requirements within a period of one week
thereafter. The arrears of pension shall be released to the
Petitioner within a period of one month from today. Relief
for the award of interest is no pressed.”
7. Review Petition2 filed by the Respondent No.1 Corporation
seeking review of the judgment dated 26.07.2012 with the above
observation is dismissed by this Court on 19.12.2013.
Further Special Leave to Appeal (CC) No.7981 of 2014 filed
by the Respondent No.1 Corporation against the judgment was
also dismissed on 04.07.2014.
8. Relying on the judgment in the case of Anuradha Jayant
2 Municipal Corporation of Brihanmumbai Vs. Anuradha J. Gangakhedkar and Ors. Review
Petition (L) No.40 of 2013
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Gangakhedkar (supra), several other petitions viz Writ Petition
Nos. 191 of 2013, 1524 of 2012, 2424 of 2014, 2423 of 2014, 2417
of 2014, and 2419 of 2014 were disposed off, extending the benefit
of the Pension Scheme to the Petitioners therein.
Writ Petition No.191 of 2013 was also disposed off vide order
dated 21.06.2013, whereas Writ Petition No.1524 of 2012 was
disposed off vide order dated 29.08.2020. Writ Petition Nos.
2424, 2423, 2417 and 2419 all of the year 2014 came to be
disposed off on 05.08.2016.
9. Review Petitions3 filed by the Respondent No.1 seeking
review of the order dated 05.08.2016 passed in Writ Petition
No.2424 of 2014 and the other connected matters were dismissed
by this Court on 27.01.2017.
Contention of the Respondent No.1 Corporation while
applying for review was, inter alia that the decision of Ms.
Anuradha Jayant Gangakhedkar (supra) did not consider
the fact that the institution was not fully receiving grant-in-
aid but was receiving partial grant-in-aid. This Court rejected
the said contention of the Respondent No.1 Corporation
relying on the decision of Ms. Anuradha Jayant
Gangakhedkar(supra).
10. Records of the present petition bears out that Contempt
3 Review Petition (Writ Petition( (L) No.76 of 2016, Brihanmumbai Municipal Corporation and
Anr. Vs. Shital Arvind Vadkar and Anr.
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Petition bearing No. 19 of 2017 was filed by Anuradha Jayant
Gangakhedkar, alleging willful disobedience on the part of
Respondent No. 1 Corporation in complying with the judgment
dated 26.07.2012 passed in Writ Petition No. 415 of 2012. This
Court observed that action on the part of Respondent No. 1
Corporation was not in consonance with the legal position and
pursuant to it the Corporation was constrained to confer benefits
under the Pension Scheme to Ms. Anuradha Jayant
Gangakhedkar.
11. This Court in another batch of Writ Petition’s filed by Urmila
Premnarayan Mishra and Ors.4 filed against the Respondent No.1
Corporation, by a detailed judgment, relying on the decision of
this Court in the case of Ms. Anuradha Jayant Gangakhedkar
(supra) and various other decisions allowed the Writ Petition by
granting benefit of the Pension Scheme to the Petitioner’s in the
said petitions with the following pertinent observation:-
“54. Various Division Benches of this Court have followed
the judgment of this Court in case of Ms. Anuradha Jayant
Gangakhedkar (supra) consistently and have allowed the
relief of payment of pension in favour of large number of
employee rejecting the contentions raised by the BMC. It is
not in dispute that all those orders have been thereafter
implemented by the BMC by realizing the payment dues up
to the particular period computed on the basis of the last
drawn salaries by those Petitioners.
61. It is clear beyond reasonable doubt that the BMC had
4 2021 SCC OnLine Bom 6191
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Anuradha Jayant Gangakhedkar (supra) which was
followed in several other matters by taking into account her
entire service on the date of initial appointment till the date
off superannuation. The MBC thus cannot be allowed to now
canvass the issues raised in the affidavit in reply and also
across the bar for taking different view in the matter or to
refer the issues to a large Bench. The issue raised by the
BMC have attained finality and cannot be referred to the
larger Bench. Be that as it may, we do not propose to take
any different view in the matter.
62. The judgment of this Court in case of Anuradha Jayant
Gangakhedkar (supra) was on interpretation of the pension
scheme and the circular pension scheme and after
interpreting those provisions, had granted relief for
payment of pension in favour of the said Mrs. Anuradha
jayant Gangakhedkar. In our view, the judgment of the
Hon’ble Supreme Court in case of Gian Singh (supra) thus
would not assist the case of the petitioner.”
12. From the facts as narrated herein above it is clear that
Respondent No. 1 Corporation has implemented the judgment of
this Court in the case of Anuradha Jayant Gangakhedkar (supra),
which decision was followed in several other petitions.
13. Respondent No.1 Corporation has filed Affidavit-in-Reply
dated 05.12.2024. Perusal of the said reply indicates the
Respondent No.1 has made an attempt to re-agitate the issues,
which were raised while opposing the earlier petitions.
Reply filed by the Respondent No.1 gives an impression that
it is attempting to re-open the issues which are decided by this
Court in the afore referred petition.
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The Corporation has also referred to the Appeals instituted
before the Supreme Court vide SLP Nos.032973-032975 of 2018
and SLP No.002039 of 2022, and it is informed that they are
pending.
It would not be out of context to make reference to
paragraph No.23 and 25 of the reply dated 05.12.2024 filed by
the Respondent No.1 Corporation, where it state as under:-
“23. It is further most respectfully submitted to this
Hon’ble Court that the Division Bench of this Hon’ble Court
in the case of Anuradha Jayant Gangakhedkar v/s Brihan
Mumbai Municipal Corporation (2012 (5) Mh.L.J. 775),
while passing the Order has not considered various clauses
of Pension Scheme, which has resulted into erroneous
interpretation and/or misinterpretation of the Pension
Scheme causing serious prejudice and very heavy financial
implication on the Corporation….”
25. With great respect it is submitted that, as regard the
contention of the Petitioner regarding dismissal of SLP filed
against the order passed in Mrs. Anuradha J.
Gangakhedkar is concerned, I say that the Order is mere
dismissal of SLP without giving any reason. I say that it is
well settled position of law as declared by the Apex Court
that dismissal of Special Leave Petition in limine does not
mean that the reasoning of the judgment of the High Court
against which the Special leave Petition has been filed before
the Hon’ble Supreme Court stands affirmed or the judgment
and order impugned merges with such order of the Hon’ble
Supreme Court on dismissal of the Petition. It is a non-
speaking order and therefore may not be bar for further
reconsideration of the case. Similarly, reliance of dismissal
of review Petition and the orders passed by the Division
Bench in other matters are concerned, the same also not
dealt with the cogent and details reason and it is simply
relied upon the case of Anuradha J. Gangakhedkar. In view
of the above legal and factual aspect of the matter, this
Hon’ble Court be please to decide the above Writ Petition
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independently without being influenced by the observation
made in the case of Anuradha Jayant Gangakhedkar vs.
B.M.C. reported in 2012(5) Mh.L.J.775, since it has far
reaching effect on the high financial implication if the
Corporation.”
14. Learned advocate for the Respondent No.1 Corporation is
unable to distinguish the facts of the present case or to point out
any distinct circumstances. Even otherwise we find that the facts
involved in the present petition are similar to in the case of
Anuradha Jayant Gangakhedkar (supra). When this Court has
adjudicated the issue and declared its verdict, various Division
Benches of this Court have followed the judgment, consistently
and have allowed the reliefs of payment of pension in favour of
large number of employees, rejecting the contentions of the
Respondent.
Similarly, the learned advocate for the Corporation could
not dispute, that the stand taken by the Corporation in the earlier
petitions was considered and rejected by this Court in the afore
referred decisions. It is not, therefore, open to the Corporation to
canvass the issues raised in the affidavit in reply, once that have
been decided by this Court in the afore referred decision.
The Hon’ble Supreme Court in the case of Shah Faesal vs.
Union of India5 in para 18 has held as under:-
5 Shah Faesal vs. Union of India (2020 (4) SCC 1)
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wp-220-2022-20-1-2025.odt“18.Doctrines of precedents and stare decisis are the core
values of our legal system. They form the tools which
further the goal of certainty, stability and continuity in our
legal system. Arguably, judges owe a duty to the concept of
certainty of law, therefore they often justify their are
holdings by relying upon the established tenets of law.”
15. The observations of the Supreme Court in the case of
Chandraprakash vs. State of U.P6. in paragraph No.22 are also
relevant and we reproduce the same:-
“22. The doctrine of binding precedents is of utmost
importance in the administration of our judicial system. It
promotes certainty and consistency in judicial decisions.
Judicial consistency promotes confidence in the system,
therefore, there is this need for consistency in the
enunciation of legal principles in the decisions of this
Court.”
16. The learned advocate for the Corporation thereafter
attempted to salvage the situation by submitting that the Special
Leave Petitions filed are pending before the Hon’ble Supreme
Court and allowing the petition would result in financial hardship
to the Corporation.
Said contention is liable to be rejected for the reasons that
the judgment of this Court in case of Ms. Anuradha Jayant
Gangakhedkar (supra) has attained finality, and it bind the
Corporation and this Court while disposing the case of Urmila
Premnarayan Mishra (supra) has observed that the Respondent
6 Chandraparkash vs. State of U. P. (2022 (4) SCC 24)
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No.1 Corporation has granted benefits to Ms. Anuradha Jayant
Gangakhedkar and to other employees of the Respondent No.1
Corporation.
17. The learned Advocate for the Respondent No.1 though made
reference to the pending Special Leave to Appeals, however fairly
submitted that the Respondent No.1 Corporation has not secured
by any interim protection, till date. It is trite position of law that
mere finding of an appeal/ proceeding would not operate as a stay
of a judgment, unless there is an order passed to that effect. Thus,
in the absence of any interim order staying the decision/operation
of the judgment passed by this Court, the Respondent No.1
Corporation would be obliged to comply with the directions issued
by this Court in the above referred decisions.
18. By following the judgments in the case of Anuradha Jayant
Gangakhedkar (supra) and Urmila Premnarayan Mishra (supra)
and by adopting the reasoning in the aforesaid decisions, we allow
the petition by directing the Respondent No.1 Corporation to
release the pension to the members of the Petitioner, who are
named in the Schedule annexed and marked as Exhibit A to the
petition, along with arrears with interest at the rate of 16% from
the due date, till the date of payment on the basis of the last
drawn salary, within a period of eight weeks from today.
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19. It is made clear that if the pension along with the arrears is
not released, as directed above, in eight weeks, it shall carry
further interest of 10%.
20. Rule made absolute in above terms. No orders as to costs.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
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