Allowed

Hira Tatyaba Khandalkar v. the Auditor and Ors.

Bombay HC27 Mar 2015WP/3396/2003

Case brief

AI extract

What is this about?

This court held that the requirement of five Headmasters for eligibility under a Government Resolution was a misplaced interpretation. The Headmaster cadre was included in the teaching staff cadre. Consequently, the withdrawal of selection grade pay was illegal, the impugned order was quashed, and recovery was directed to be refunded.

What did the court decide?

The impugned order quashed and set aside; Respondents directed to refund the recovered amount and accord selection grade pay benefits with consequential relief.

Hira Tatyaba Khandalkar Vs the Auditor and Ors. — Pension and Retirement Benefits | Bombay HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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WRIT PETITION NO.3396 OF 2003

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Hira Tatyaba Khandalkar,
Age-55 years, Occu:Service,
R/o-Shivshankar Society,
"Sanghursha" Plot No.3 A,
Chitod Road, Dhule

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...PETITIONER
 VERSUS

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1) The Auditor,
 Education Department,
 Near Swastik Talkies,
 In premises of Public School,
 Dhule,

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2) Deputy Director of Education,
 Nashik Region, Gole Colony,
 Near L.I.C. Office, Nashik,

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3) The President,

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 Bal Vikas Mandal, Near Narayanbuva
 Samadhi, Agra Road, Dhule,

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4) The State of Maharashtra

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...RESPONDENTS

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 ...
 Mr.S.P. Brahme Advocate for Petitioner.
 Mr.G.K. Thigale (Naik), Additional Government
 Pleader for Respondent Nos.1, 2 and 4.
 Mr. V.P. Raje Advocate for Respondent No.3.
 ...

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CORAM: S.V. GANGAPURWALA AND
 A.I.S. CHEEMA, JJ.

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 DATE : 27TH MARCH, 2015

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ORAL ORDER :

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1.Mr. Brahme, the learned counsel submits

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that on the date of filing of Petition, the
Petitioner was working as Head Master of a primary

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school run by Respondent No.3. The Petitioner
possessed qualification of M.A. D.Ed. On 1st June
1996 the petitioner was given scale of selection

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grade. Even the proposal of Fifth Pay Commission

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was submitted by the management and the same was

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given to the Petitioner w.e.f 1st January 1998.
However, abruptly on 3rd July 2002, the same was

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cancelled and on 27th May 2002, the management
modified the scale and forwarded the proposal to
the Respondent No.1. The learned counsel submits

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that the reason given for cancelling the scale of
selection grade to the Petitioner is that as per
Clause 9 of the Government Resolution dated 2nd
September 1989, Petitioner is not entitled for

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selection grade. According to the learned counsel,
reliance placed on Clause 9 of the said Government
Resolution by the management and the authorities
is misplaced. According to the learned Counsel,
20% of the persons from Senior scale of a
particular cadre would be entitled for the
selection grade pay. However, the same has been
misread and the Respondents have confused
themselves between cadre and category. According
to the learned counsel, 'category' would be that
of permanent and temporary employees whereas the
cadre would be that of teaching and non teaching
staff. Teaching staff would form one cadre. The
learned counsel relies on Rule 10 of the
Maharashtra Employees of PrivateSchools
(Conditions of Service) Regulation Rules, 1981
(for short "M.E.P.S. Rules"). The learned counsel
submits that the Petitioner further, during the
pendency of the Writ Petition, on attaining the
age of superannuation, retired from service. Even
the amount paid by way of selection grade has been

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recovered by the Respondent, which is illegal.

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2.Mr.Thigale,learnedAdditional

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Government Pleader submits that, reading clause 9
of the Government resolution dated 2nd September

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1989 in its entirety, the only conclusion that can
be drawn is unless there are 5 posts of Head
Masters in a particular institution, Head Master
cannot be entitled for the selection grade pay.
According to the learned Additional Government
Pleader, the same would be literal interpretation
of the provisions. In the present case, the
institution does not have 5 posts of Head Masters.
As such, the Petitioner was not entitled for the
selection grade pay which was erroneously granted
and has been recovered.

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3.We have considered the submissions

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canvassed by the learned counsel for the
respective parties.

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4.The categories of employees are laid down

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under Rule 10 of M.E.P.S. Rules which states that
employees shall be permanent or non-permanent. The
cadre would be of a teaching and non-teaching
staff. Clause 9 of the Government Resolution,
which is in a vernacular language, reads as

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under:-

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" 9 + izkFkfed o ek/;fed 'kkGkrhy f'kÕdkauk o eq[;k/;kidkauk f}Lrjh; @ f=Lrjh; osruJs.kh %&

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jkT;krhy loZ vuqnkuhr v'kklfd; [kktxh] izkFkfed 'kkGk] ek/;fed 'kkGk] rka=hd ÓkGake/khy fo|kfo"k;d f’kÕd o v/;kid fo|ky;s ;ke/khy f'kÕdkauk fnukad 1 tkusokjh 1986 iklqu dsanz 'kklukP;k /kfrZoj f=Lrjh; osru jpuk eatqj dj.;kP;k fu.kZ;kuqlkj fofo/k laoxkZr eqG Js.kh] ofj"B Js.kh o fuoM Js.kh laca/khr izi=kr n'kZfoY;kuqlkj jkfgy + ;kiq<s ek/;fed 'kkGsrhy eq[;k/;kidkapk ,dp izoxZ jkfgy o R;kauk 12 o"kkZP;k R;k inkojhy vgZrkdkjh lsosuarj ofj"B Js.kh feGsy +

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1 + ofj"B Js.khr ik= gks.;klkBh mesnokjkyk [kkyhy vVhaph iqrZrk dj.ks vko';d vkgs +

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v½ izf'kÕ.k vgZrslg 12 o"kkZph vgZrkdkjh lsok

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c½ ;k dkeklkBh fu;qDr dsysY;k lferhyk mesnokjkps dkedkt lek/kkudkjd okV.ks

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d½ R;kus @ rhus foHkkxkus fofgr dsysys fdeku rhu vkBoM;kaps lsokarxZr izf’kÕ.k iq.kZ dj.ks +

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ojhy ¼d½ ;sFkhy vV nÕrkjks/k ikj dj.;kl vko';d jkfgy +

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2 + fuoM Js.kh R;k R;k laLFksrhy o laoxkZrhy ofj"B Js.khrhy 20 VDds inkauk lsokts"Brsuqlkj vuqKs; gksbZy o R;k laoxkZrhy fdeku 5 ins vl.kk&;k izoxkZpk [kkyhy vVhaph iqrZrk dj.ks vko';d jkfgy %&

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v½ R;kus rhus @ ofj"B Js.khr 12 o"kkZph vgZrkdkjh lsok iq.kZ dsyh vlyh ikfgts +

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c½ 'kklu fofgr djhy vls lsokarxkZr izf’kÕ.k R;kus @ rhus iq.kZ dsys vlys ikfgts +

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d½ ¼1½ izkFkfed f'kÕdkalkBh izf’kÕhr inoh/kjkph vgZrk feGoyh vlyh ikfgts +

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2 + izkFkfed 'kkGsrhy eq[;k/;kidkalkBh inO;qRrj izf’kÕhr f'kÕdkaph vgZrk izkIr dsyh vlyh ikfgts +

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v½ ek/;fed 'kkGsrhy izf'kÕhr vinoh/kj f'kÕdkalkBh inoh o inoh/kj f'kÕdkalkBh inO;qRrj izf'kÕhr f'kÕdkaph vgZrk izkIr dsysyh vlysyh ikfgts

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3 + ofj"B Js.kh o fuoM Js.khlkBh rlsp nÕrkjks/k ikj dj.;klkBh ik= gks.;kdjhrk laca/khr f’kÕdkus @ eq[;k/;kidkus R;kaP;klkBh vk;ksftr dsysY;k lsokarxZr izf’kÕ.k dk;Zdzekr lgHkkxh gksÅu rks iq.kZ dj.ks vko';d vkgs + rFkkih tj fof'k"V ifjfLFkrhr lsokarxZr izf’kÕ.k vk;ksftr dj.ks 'kD; >kys ukgh rj 'kklu gh vV v'kk f'kÕdkaP;k o eq[;k/;kidkaP;k ckcrhr dkgh fof'k"V dkGklkBh f'kFkhy d# 'kdsy +

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4 + izkFkfed 'kkGsrhy f'kÕd o izf'kÕhr f'kÕdkauk ofj"B Js.khrhy 12 o"kkZP;k vgZrkdkjh lsosuarj] fuoM Js.kh ifjPNsn ¼2½ P;k ¼d½ ;sFks ueqn dsysyh 'kSÕf.kd vgZrk izkIr dj.;kps vVhoj vuqKs; vkgs +;k ckcr Li"V dj.;kr ;srs dh] T;k f'kÕdkaph lyx lsok 18 o"kZ ok R;kisÕk tkLr >kyh vlsy v'kk f'kÕdkauk iq<hy mPp Js.khlkBh Eg.ktsp fuoM Js.khlkBh fofgr dsysyh 'kSÕf.kd vgZrk feGfo.;kiklqu lqV feGq 'kdsy + rFkkih T;kauh 18 o"kZ iq.kZ ,o<h lsok dsyh ulsy r'kk f'kÕdkauk R;kauh fofgr 'kSÕf.kd vgZrk izkIr dsY;kf'kok; R;kapk iq<hy Js.khlkBh fopkj djrk ;s.kkj ukgh +

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5 + 12 o"kkZP;k izf'kÕhr vgZrslg >kysY;k lyx lsosuarj eqG osru Js.kkhrqu iq<hy ofj"B Js.khe/;s @ fuoM Js.khe/;s osru fuf'pr dj.;kr ;sbZy v'kk osGh R;k f'kÕdkaP;k ntkZe/;s ¼LVsVl½ o tckcnk&;ke/;s Qjd gksr ulY;kus eqG osruk,o<;k jdespk ofj"B Js.khr VIik vlsy rj osru R;k VIi;koj fuf'pr dj.;kr ;kos o vlk VIik ofj"B @ fuoM Js.khrhy uthdP;k [kkyhy VII;koj osru fuf'pr d#u R;k VIi;kph jDde eqG osru Js.khrhy osrukisÕk tso<;k jdesus deh vlsy rso<h jDde R;k deZpk&;kl oS;Drhd osru Eg.kqu let.;kr ;kos o vls oS;Drhd osru iq<hy okf"kZd osruok<hr lkekoqu ?ks.;kr ;kos " +

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5.The category of Headmaster laid down

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under Clause 9 is with reference to Headmaster of
secondary school, which states that there would be
one category of Headmaster and after twelve years

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of service, will be entitled for senior scale.

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6.We would be more concerned with

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interpretation of sub-clause (2) of Clause 9 of
said Government Resolution. Reading the said sub-

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clause (2), it lays down that 20% of the post in
the cadre of senior scale as per the seniority
would be entitled for selection scale, of course
subject to the conditions laid down in sub-clause
(2) of Clause 9 of the said Government Resolution.
If the contention of learned Additional Government
Pleader that Headmaster is a separate cadre and
Assistant Teacher is a separate cadre, is
accepted, then unless and until an institution
runs five schools and there are five Headmasters,

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no Headmaster would be entitled for selection
grade pay. The said interpretation would lead to
anomalous situation. Schedule C of the M.E.P.S.
Rules lays down the pay-scale of the Assistant
Teacher, Headmaster etc. The selection grade pay-
scale of an Assistant Teacher and the senior pay-

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scale of a Headmaster is one and the same. If the
interpretation of the Respondent is accepted, an
Assistant Teacher would be entitled for selection
grade pay, however, Headmaster would not be
entitled for selection grade pay. Sub-clause (2)
of Clause 9 of the said Government Resolution will
have to be read in a manner it purports to achieve
the object of enacting the said Clause. It will
have to be read in the context in which it has
been introduced. The contextual interpretation
will have to be considered.

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7.The Apex Court in a case of Reema

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Aggarwal vs. Anupam and others, reported in

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2004(3) S.C.C. 199, has observed that:

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"24. In Reserve Bank of India etc. etc. v.
Peerless General Finance and Investment Co.
Ltd. and others etc. etc. (1987 (1) SCC
424) while dealing with the question of
interpretation of a statute, this Court
observed:

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"Interpretation must depend on the text and
the context. They are the bases of

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interpretation. One may well say if the
text is the texture, context is what gives
the colour. Neither can be ignored. Both
are important. That interpretation is best
which makes the textual interpretation
match the contextual. A statute is best
interpreted when we know why it was
enacted. With this knowledge, the statute
must be read, first as a whole and then
section by section, clause by clause,
phrase by phrase and word by word. If a
statute-maker, provided by such context,
its scheme, the sections, clauses, phrases
and words may take colour and appear
different than when the statute is looked
at without the glasses provided by the
context. With these glasses we must look at
the Act as a whole and discover what each
section, each clause, each phrase and each
word is meant and designed to say as to fit
into the scheme of the entire Act. No part
of a statute and no word of a statute can
be construed in isolation. Statutes have to
be construed so that every word has a place
and everything is in its place.""

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8.The provision will have to be read in a
manner it is made workable. The same cannot be
interpreted in a manner that the said sub-clause
is rendered redundant or superfluous. It certainly
would not have been the intention of the Statute
that unless an institution runs five schools and
there are five Headmasters, no Headmaster should

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be given selection grade pay. The cadre of a
teaching staff would be one in which a Headmaster
also would be included.

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9.The Petitioner herein was accorded

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selection grade pay in the year 1998 and was paid
up-to 2002 and has been abruptly withdrawn,
relying on sub-clause (2) of Clause 9 of the said
Government Resolution. The said Government
Resolution has not been properly construed by the
Respondent Authorities. The same would be
applicable to the Petitioner also. The fact that

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the Petitioner was accorded benefit of the
selection grade pay itself is sufficient to show
that the Petitioner was complying with all the
conditions required for getting the selection
grade pay.

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10.Considering the above, the impugned order

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is quashed and set aside. The Respondents shall
refund the amount recovered from the Petitioner

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towards the selection grade pay and accord the
benefit of selection grade pay to the Petitioner.

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Needless to state that the Petitioner will be also
entitled for all the consequential benefits
arising therefrom.

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11.Rule accordingly made absolute. No costs.

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[A.I.S.CHEEMA,J.] [S.V. GANGAPURWALA, J.]

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asb/MAR15

Hira Tatyaba Khandalkar v. the Auditor and Ors.

Case brief

What is this about?

What did the court decide?

Hira Tatyaba Khandalkar v. the Auditor and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

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