16 Feb 2023 1:45 PM GMT
The Bombay High Court recently held that the management of a minority institution cannot act as per its whims and allow a retired employee who retained full retiral benefits to return whenever he desires.A division bench of Justice Ravindra Ghuge and Justice Sanjay Deshmukh sitting at Nagpur upheld the Education Officer’s order rejecting approval for reinstatement of a retired employee...
A division bench of Justice Ravindra Ghuge and Justice Sanjay Deshmukh sitting at Nagpur upheld the Education Officer’s order rejecting approval for reinstatement of a retired employee as headmaster of Dr. Zakir Hussain High School, Sailu, Dist. Parbhani.
“…it cannot be permitted to allow such an employee to return as and when he desires and the private Management, on the pleading that it is a minority institution, to act as per it’s whims. This cannot be countenanced, more so when the money is paid from the State Exchequer, which is public money. Such private arrangement would surely not bind the State Government”, the court held.
The court further observed that reinstatement on the basis of a private arrangement between the management and the employee would lead to serious uncertainty.
“…if such practices are tolerated on the basis of a private arrangement between the Management and the Employee, this would lead to serious uncertainty. If the vacancy is filled in by any candidate, the return of such a retired employee would amount to foisting him on such candidate and thereby dislodge the candidate who has been selected on account of a vacancy that arose out of such voluntary retirement of an employee”, the court observed.
The school receives salary grants from the government. The petitioner opted for voluntary retirement and was relieved from service on July 31, 2019. He approached the management for reinstatement in January 2021. The management reinstated him from January 4, 2021. However, the Education Officer on April 30, 2021 declined to approve the petitioner’s reinstatement. Hence the present writ petition.
The petitioner claimed that there was an enmity between him and the son-in-law of the Secretary of the institution. He was threatened to retire voluntarily or face dismissal. The said Secretary died in 2020 and hence sought reinstatement in service with continuity. He contended that this arrangement is between him and the management and the Education Officer cannot object if the management is reinstating him.
The management in its affidavit denied that the petitioner was ever threatened. However, his representation for reinstatement was considered sympathetically and it was agreed to reinstate him, it stated.
The Education Officer in his affidavit stated that all the retiral benefits of the petitioner were cleared by the department. He was paid gratuity and has been receiving monthly pension. Once a person has opted for voluntary retirement, and has availed of all the benefits as per service conditions, a private arrangement with the Management to reinstate him is without the sanction of the Government.
The court said that if a candidate alleges forcible retirement, he has to challenge it on the ground that it amounts to forcible termination.
The court noted that the petitioner did not approach any statutory authority with a grievance against the management. Further, he didn’t ever ask to withdraw his voluntary retirement application as it was allegedly extracted under duress.
Thus, the court concluded that the petitioner has come to terms with his retirement and has no grievance about it as he accepted the gratuity and received noted for communication of a portion of a pension as well as received monthly pension.
The court noted the management “shrewdly” did not pay any salary to the petitioner after reinstating him in January 2021 and he continued to draw his pension. He retained the entire amount of retiral benefits. Only after the impugned order of the Education Officer four months after his notional reinstatement did the management discontinue him, the court observed.
Thus, the court did not find any fault in the order of the Education Officer. It did not permit reinstatement despite the management’s claim that the vacancy created on account of the petitioner’s retirement was not filled in.
Case no. – Writ Petition No. 6452 of 2021
Case Title – Mohammed Mussaviruddin Mohammed Naziruddin v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 104
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