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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Anant Narayan Shikhare..... Petitioner.
Versus
University of Bombay others..... Respondents.
Writ Petition No. 1590 of 1984, decided on 10-1-1991.
Advocates appeared :
S.B. Naik, for the petitioner.
M.B. Palshikar, for respondent No. 1.
S.V. Malvankar with Ms. Jawale, for respondent No. 2.
V.N. Lokur, for respondent No. 3.
G R No. NOC/1283/865/UNI IV dated 21-7-1983-Practitioner opted to Contributory Provident Fund Rule and/or gratuity school instead of pensioncum-gratuity scheme-Petitioner praying for change of option in view of reduction in age of retirement from 60 to 58 years-Respondents contending-GR reducing retirement age issued on 21-7-1983 whereas Petitioner exercised option on 26 -3 -1984-Held-Note at foot of GR regarding authorities to whom copies of GR were sent not indicating whether the same were so sent or not Petitioner not at fault-Prayer of Petitioner for exercise of fresh option not to be denied.
State Government submits that an option could be exercised that option cannot be allowed the luxury of a fresh option. It such a course is permitted, so says the learned counsel, it would open up a pandoras box for all manner of persons would think it necessary to go back on an option once given by them. Petitioner had opted for the contributory provident fund rule because the rules then permitted him to retire at the age, of 58 years extendable by two more years. Once the concession of extension was taken away, a different situation came into existence. This change of situation is by itself a reason for permitting a reconsideration by the affected employee the State Government having been responsible for reducing the age of retirement cannot now turn back and say that the affected employee should be at the losing end in both the situations. The permissibility of exercising the option is to be considered the a reasonable manner. Where a legal charge is brought about in the premises governing the exercise of options, it is not warranted that the Court should go by the letter of the law and not its spirit. Lastly the State. Government contends that the G. R. reducing the retirement age was issued on 21st July 1983, whereas the petitioner exercised his option on 26th March, 1983. At that time he should have been diligent and made proper enquiries to find out the preferable alternative. Now, it is true that the GR was issued on 21th July, 1983 and that copies thereof were said to have been sent to a number of authorities including the principals of aided non-Government affiliated colleges. But the University on 24th May, 1983 gave a different version which is to be found in Exh. B. Exh. B permitted non-teaching employees of aided colleges to get an extension for two years after attaining the age of 58 years. The University took its own time to Issue a circular to bring to the notice of the affiliated colleges the change brought about by the G. R. dated 21st July, 1983. This it did by its circular dated 26th. July, 1984, Being an affiliated college, the instititution in which the petitioner served i. e., the 2nd respondent, did nothing amiss in going by circulars issued by the University At the foot of the G R. dated 2,st July 1981 is a list of authorities to whom copies of G. R. are to be sent. But whether they were so sent or not and particularly to respondent No. l is not known. Petitioner cannot therefore be faulted for going by Exh. B when, it came to exercising an option it was argued that Exh. B violates Section 77-B of the Bombay University Act, 1974 (Act). This section has no application to the case of the petitioner who was an employee in an affiliated college and not an employee of the University. The service conditions of employees working in affiliated colleges could be regulated by the power vested in the State Government under Section 77-A of the Act. But then this could be done only by means of a Standard Code published by means of a notification in the Official Gazette. The G. R. of 21st July, 1983 cannot be treated as a Standard Code, because the said Code came into force on 1st May, 1985. There is thus no question of any statutory violation in the issue of Exh B by the University. Exh B. would be an exercise of the power conferred upon Vice-Chancellor by Section 11 (6) (b) of the Act. Therefore, the same will have legal force and cannot be said to be derogation of any restriction on the powers exercisable by the Vice-Chancellor.
G. R. No NGC/1283/865 UNI-IV dated 21-7-1983-Petitioner opted to Contributory Provident Fund Rule instead of pension cum gratuity scheme Prayer by petitioner for change of option-Ground-Petitioner expected to serve till attainment of age of 60 years but State Government subsequently reduced age of retirement to 58 years-Held-Once concession of extension upto 60 years of age was taken away a different situation came into existence-Such a change of itself a reason for permitting reconsideration by affected employee.
2. The short question now surviving is whether the petitioner should be allowed to exercise a fresh option vis-a-vis the alternatives open to the retiring employees. The options are (i) contributory provident fund rule and/or gratuity scheme applicable; and (ii) pension-cum-gratuity scheme as contained in Maharashtra Civil Services (Pension) Rules, 1982, under Government Resolution No. NGC/1283/865 UNI-IV dated 21st July, 1983. Petitioner had initially opted for the first alternative and this on the assumption that he would be retiring at the age of 60 years. Being part of the non-teaching staff of an affiliated college i.e. respondent No. 2, the petitioner expected that he would be allowed to serve till he attained the age of 60 years. The State Government subsequently reduced the age of retirement for non-teaching employees, except class IV servants, to 58 years. Pursuant to an order passed by the School Tribunal, the petitioner was allowed to continue in service even after he had completed 58 years. During that period he was paid a salary which under the system of grants was reimbursed by the State Government. Because of the reduction in the age of retirement, petitioner had to leave before completing the age of 60 years. Finding himself in this position, the petitioner wants to change his option to the second alternative. The State Government contends that he cannot. The reasons given by it for the negative attitude are discussed below.
3. The first contention is that the petition is bereft of any prayer which would enable the petitioner to exercise a fresh option. In terms, the petition does not contain such a prayer. But this would not be a reason for denying unto the petitioner a relief to which he is otherwise entitled, having regard to the long pendency of this petition as also the indisputable position in law. The petition prayer column contains an omnibus prayer enabling this Court to grant such directions as may be fit and proper in the circumstances of the case. This is a writ Court and technical rules more appropriate to pleadings in civil suits cannot have precedence over substantial justice here. Therefore, the absence of a prayer in terms permitting petitioner to exercise a fresh option will not be a reason to deny him that relief, if the same be otherwise admissible.
4. Mr. Lokur for the State Government submits that an option could be exercised only once and the petitioner having exercised that option cannot be allowed the luxury of a fresh option. If such a course is permitted, so says the learned Counsel, it would open up a pandora's box for all manner of persons would think it necessary to go back on an option once given by them. Petitioner had opted for the contributory provident fund rule because the rules then permitted him to retire at the age of 58 years extendable by two more years. Once the concession of extension was taken away, a different situation came into existence. This change of situation is by itself a reason for permitting a reconsideration by the affected employee. The State Government having been responsible for reducing the age of retirement, cannot now turn back and say that the affected employee should be at the losing end in both the situations. The permissibility of exercising the option is to be considered in a reasonable manner. Where a legal change is brought about in the premises governing the exercise of options, it is not warranted that the Court should go by the letter of the law and not its spirit. Lastly, the State Government contends that the G.R. reducing the retirement age was issued on 21st July, 1983, whereas the petitioner exercised his option on 26th March, 198
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