Dismissed

Ghulam Mustaffa Khan Mohd Umar Khan v. the State Ofmah and Ors.

Bombay HC6 Mar 2018WP/1654/2006

Case brief

AI extract

What is this about?

In a writ petition challenging premature retirement at 58 years, the court held that unapproved regulations cannot override settled rules. The writ was rejected, but the court directed the Board to decide on the petitioner's pending pension and medical benefit claims within three to four months.

What did the court decide?

Writ petition rejected. Order directed Board to decide pending pension and monetary benefit application within three to four months.

Ghulam Mustaffa Khan Mohd Umar Khan Vs the… — Pension and Retirement Benefits | Bombay HC (2018)

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1654.06WP

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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. 1654 OF 2006

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Ghulam Mustaffa Khan S/o
Mohd. Umar Khan
Age : 58 years, Occ : Service,
R/o Sameer Complex, Ahbad Colony,
Katkat Gate Road, Aurangabad.

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...PETITIONER

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 VERSUS

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1.The State of Maharashtra,
(Through its Secretary,
Revenue & Forests Department
Mantralaya, Mumbai.

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2.The Chairman,
Maharashtra State Board of Wakfs,
(Through its Chairman)
Room No. 309-310 Majestic MLA Hostel,
Colaba, Mumbai.

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3. The Chief Executive Officer, Maharashtra State Board of Wakfs, Panchakki Road, Aurangabad.

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...RESPONDENTS
 ...
Mr.A.S. Kale holding for Mr. S.B. Talekar
Advocate for Petitioners.
Mr.V.S. Choudhari, A.G.P. for Respondent
No.1.
Mr. V.C. Patil holding for Mr. S.M. Godsay,
Advocate for Respondent Nos.2 and 3.

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...

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1654.06WP

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CORAM: S.S. SHINDE AND
 S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 24TH FEBRUARY, 2018.

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 DATE OF PRONOUNCING JUDGMENT : 6TH MARCH, 2018.

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JUDGMENT [PER S.S. SHINDE, J.]:

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This Petition is filed with the following
prayer :-

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retirement dated 13.12.2005 retiring the
petitioner on superannuation with effect

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from 30.12.2005 issued by the Chief
Executive Officer, Maharashtra State Board
of Wakfs, Aurangabad by issuing a writ of
certiorari or any other appropriate writ,
order or direction, as the case may be.”

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2. Learned counsel appearing for the

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petitioner submits that, the petitioner is working

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as Deputy Wakf Officer in the office of District

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Wakf Officer, Aurangabad. The petitioner is a
full-time employee working on regular post and in
substantive capacity since last 26 years. It is
submitted that, the petitioner was initially
appointed as Clerk in the year 1979. Thereafter,
he came to be promoted as Deputy Wakf Officer in
1987. It is submitted that, the date of birth of
the petitioner is 12th May, 1948, which is evident
from the extract of first page of service book. It
is submitted that, in exercise of powers conferred

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by Section 10 of the Wakfs Act, 1995, the

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Maharashtra State Board of Wakfs, Aurangabad made
regulations, namely, Maharashtra Wakf Board
Regulations, 2003. It is submitted that,
Regulation 19 of the Maharashtra Wakf Board
Regulations, 2003 (hereinafter referred to as “the

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said Regulations) are approved in the meeting of
the Maharashtra State Board of Wakfs, Aurangabad

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held sometime in the year 2004. A full time
employee of the Board shall be governed by the

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MaharashtraCivilServicesRules,1967.

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Regulations 19(1)(d) further provides that a full
time employee of the Board shall not be continued
to be employed after he has attained the age of 60
years, except under special resolution and
recording the reasons therefor passed in the
meeting of Board by 2/3rd majority of the total
number of members of the Board. It is, therefore,
clear from Regulation 19(1)(d) that the age of
retirement on superannuation is of 60 years.
However, a full-time employee of the Board can be
continued in employment even after he attains the

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age of 60 years under a special resolution
recording reasons thereof passed in the meeting of
the Board by a 2/3rd majority 3rd the total number
of members of the Board.

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3.It is submitted that, the petitioner

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completed 58 years of age on 30th May, 2005. At the

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time of filing the petition, he would attend the
age of 60 years on 12th May, 2007. He has at least

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one year and six months to go before his
retirement. It is submitted that, although it is
possible to continue a full time employee of the
Board even after attaining the age of 60 years,
there is no provision to retire a full time
employee of the Board on superannuation or
otherwise, before he attains the age of 60 years.
It is submitted that, the Chief Executive Officer,
Maharashtra State Board of Wakfs, Aurangabad has
issued a notice directing to relieve him on
retirement with effect from 30th December, 2005 on
13th December, 2005. It is submitted that, the
petitioner preferred an application on 16th
December, 2005, stating that he was entitled to
pension as well as medical reimbursement benefit,

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as prescribed in form BG-6. The petitioner had
expressed his willingness to get retired pursuant
to the notice dated 13th December, 2005, if he was

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given the benefits under the Maharashtra Civil
Services Rules. It is further submitted that, as
per the Wakf Regulations, the age of retirement is

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60 years. It is submitted that, the petitioner has
not received any reply to his representation till
this date. Meanwhile, the petitioner personally
met the Chief Executive Officer, Maharashtra State
Board of Wakfs, Aurangabad and requested to
withdraw the notice of retirement. However, the
Chief Executive Officer, orally turned down his
request, and on the contrary, informed the
petitioner that he would stand retired on 30th
December, 2005.

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4.It is submitted that, the petitioner is

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given understanding that in the meeting of the
Maharashtra State Board of Wakfs, Aurangabad held
on 30.11.2005, it was resolved to fix the age of
retirement as 58 years. However, the minutes of
the said meeting need to be confirmed in the next
meeting. No meeting of the Maharashtra State Board
of Wakfs, Aurangabad is held after 30th November,

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2005. As such, the minutes of the meeting held on
30th November, 2005 are yet to be confirmed. It is

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submitted that, even after the Maharashtra State
Board of Wakfs, Aurangabad passes a resolution
fixing the age of retirement as 58, the same needs
to be approved by the State Government. The
Government has not yet approved the reduction in

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age of retirement from 60 to 58 years. It is
submitted that, even under the old Service
Regulations of 1964, the age of retirement was
fixed as 60 years. The Board has been acting upon

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the Regulations framed in 2003, which is evident
from the order dated 22nd November, 2005, retiring
one Shri Raghunath Shivram Bansode on attaining
the age of 60 years on 30th September, 2005.

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5.It is submitted that, meanwhile, one Shri

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Nuruddin, who is working as Peon in the office of
District Wakf Officer, Jalna is allowed to
continue in service even after 60 years of age by
granting an extension of service by six months, by

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passing the Resolution in the meeting of the
Maharashtra State Board of Wakfs, Aurangabad. It

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1654.06WP

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is submitted that, the regulations do not provide
for appeal against either compulsory retirement or
premature retirement from service. Therefore, the
learned counsel appearing for the petitioners
submits that, the Petition may kindly be allowed.

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6.Pursuant to the notices issued to the

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Respondents, Respondent No.3 has filed the
affidavit in reply. It is stated in the said reply
that, the petitioner was serving with the Wakf
Board. The petitioner was initially appointed as
clerk and later on was given promotional post as

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Deputy Wakf Officer, which is certainly not a
class IV post. It is submitted that, formally the
Board has resolved to make the age of retirement

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for all the employees of the board as 60 years.
The same has thus been reflected in the

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regulations of 2003. However, when the regulations
were sent to Government of Maharashtra for its

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approval, an objection was taken, as age of 60
years was not in accordance with M.C.S.R.

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Regulations. Accordingly in August, 2005, the
Board has passed a resolution, thereby the age of
retirement for all the employees except the class
IV employees has been brought back to 58 years. It
is submitted that, as per date of birth of the
petitioner, he was to retire in May, 2005, but
since earlier resolution was in force, he was
continued after May, 2005, and when the subsequent
resolution was passed, he was given notice and
made to retire on 30th December, 2005 by notice
dated 13th December, 2005. Regulations are still
pending for approval before the State Government.

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7.It is submitted that, the Board does not
reserve any service grants from the State
Government and it works on the own generated
funds, as such so far all the employees, who have
retired from the service, have been given only
gratuity and no other benefits. The petitioner

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will also be paid the amount of gratuity as
admissible. It is submitted that, the contentions

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of the petitioner raised in the Petition are ill-

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founded and deserves no consideration and

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therefore, he submits that, the Petition deserves
to be rejected.

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8.The petitioner has also filed the short
affidavit, stating therein that, he was initially
appointed as clerk in 1979 and at the time of
initial appointment, the Marathwada Wakf

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Regulations, 1964 were applicable and the age of
retirement of class-III employees prescribed under

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Marathwada Wakf Regulations was 60 years.
Therefore, the petitioner has filed two
representations, requesting to sanction pensionary
benefits and Medical reimbursement etc., which
found favour with accounts Superintendent, who
recommended his case accordingly, as per Wakfs
Rules, 2003.

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9.We have carefully considered the

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submissions advanced by learned counsel appearing

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for the petitioner, learned counsel appearing for
Respondent No.1 and learned counsel appearing for
Respondent Nos.2 and 3. We have perused the
averments in the Petition, grounds taken therein,
annexures thereto, Reply filed by Respondent No.3
and the short affidavit filed by the petitioner.

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10.The petitioner has placed reliance upon
Regulation 19 of the Maharashtra Wakf Regulations,
2003 (Draft for Approval). The draft Regulation
No.19(1)(d)reads thus :-

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“19(1)(d) :- Not be continued for employed

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after he has attained the age of 60 years

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except under a special resolution-
recording the reasons therefore passed at
a meeting of the Board by a majority of

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2/3rd of the total number of the members of

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Board.”

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11.It is clear from the reply filed by
Respondent Nos.2 and 3 that, the said 2003
Regulations were sent to the Government of
Maharashtra for its approval, and an objection was
taken to the said Regulations that, the age of 60

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years, as prescribed under the said Draft
Regulations, was not in accordance with the
Maharashtra Civil Services Rules, and therefore,
the said Regulations have not been approved by the

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State Government, and as a result, their status
remained as draft Regulations. Therefore, the Wakf
Board has passed the resolution in the month of
August, 2005 and the age of retirement for all the
employees, except the class-IV employees has been
prescribed 58 years instead of 60 years, which was

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shown in the draft Regulations. Keeping in view
the resolution in the month of August, 2005, the

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notice was given to the petitioner to retire on
30th December, 2005. In that view of the matter, we

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do not find any force in the arguments of learned
counsel appearing for the petitioner that, the

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petitioner ought to have been continued upto
attaining the age of 60 years in the employment on
the basis of Draft Regulations, which were not
approved by the State Government.

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12.By way of filing the affidavit, the

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petitioner has stated that, the petitioner did
file the representation to the Chairman,
Maharashtra State Wakf Board on 15th February,
2006, requesting therein to grant pensionary and
monitory benefits to the petitioner in the manner
statedintherepresentation.Ifsuch

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representation is yet pending, we direct
Respondent Nos.2 and 3 to take appropriate
decision on the said representation, if already
not taken, in accordance with the relevant
rules/procedures, as expeditiously as possible,

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and preferably within three months from today, and
if the petitioner is not already extended the

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monetary benefits, to release the said monetary
benefits to him, depending upon the entitlement of

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the petitioner, as expeditiously as possible, and
preferably within four months from today.

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13.In the light of discussion hereinabove,

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we are unable to persuade ourselves to grant
relief in terms of prayer clauses “A” and “B” of
the Petition in favour of the petitioner. Hence
the Petition stands rejected. Rule stands
discharged accordingly.

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[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

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sga/

Ghulam Mustaffa Khan Mohd Umar Khan v. the State Ofmah and Ors.

Case brief

What is this about?

What did the court decide?

Ghulam Mustaffa Khan Mohd Umar Khan v. the State Ofmah and Ors.

Case brief

What is this about?

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