Dilip Krishnaji Kulkarni Vs. the State of Maharashtra and 3 Ors. - Court Judgment

Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. 1. heard. with consent of the learned counsel for the parties, the writ petition is being disposed of at this stage.2. this writ petition raises a very short controversy which is considered in our order dated 7th october, 2008. certain facts are undisputed and they are that the petitioner's services are governed by maharashtra employees of private schools (conditions of service) regulation act, 1977. he was sought to be retired on completion of 58 years on 31st march, 2009. he challenged the act of the respondent superannuating him on attaining age of 58 years, as according to the petitioner, he had a right to continue in service till he attains the age of 60 years. the respondents relied on a government resolution being government resolution dated 27th february, 2003. by this resolution, basically the effect was given to the recommendations of 5th pay commission and the resolution was termed as 'revision of pay scales of teachers/librarians in government/non-government engineering/technology/architectural and pharmacy polytechnic'. clause-15 of the resolution provided as under:15. superannuation and re-employmentthe age of superannuation of teachers, librarians, physical education personnel and such other employees who are treated at par with the teachers, in diploma level technical institutions would be 58 years and thereafter no extension of service shall be given.3. it is not disputed that before this resolution which was issued on 27th february, 2003, the age of superannuation for petitioner and others similar to him, was 60 years and it is also admitted by the respondent that by the said resolution, the age of superannuation was reduced from 60 years to 58 years. the controversy is whether the state by a resolution could have reduced the age of superannuation from 60 years to 58 years. it is not res intergra as to whether an employer has a power to reduce the age of superannuation during service or not, but, the question in this case assumes some importance in view of the fact that the age of superannuation of 60 years was protected by an act of legislation as is submitted by the learned counsel for the petitioner. the maharashtra employees of private schools (conditions of service) regulation act, 1977 came into force on 20th march, 1978. section 4 sub-section (1) of the act lays down proviso as under:4(1) subject to the provisions of this section, the state government may make rules providing for the minimum qualification for recruitment (including its procedure), duties, pay, allowances, post-retirement and other benefits and other conditions of service of employees of private school and for reservation of adequate number of posts for members of the backward classes:provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and postretirement benefits and other monetary benefits of an employee in the employment of an existing private school on the appointed date shall be varied to the disadvantage of such employee by any such rules.4. it is contended by the learned counsel for the petitioner that the conditions relating to absence, leave of absence, age of retirement and post-retirement benefits and other monetary benefits of an employee could not be changed by the respondents to his disadvantage after 20th march, 1978 and if the state wanted any amendment to be made or any change to be made in the age of superannuation, the only option with the state was to make amendment in the act itself. the resolution, according to the counsel for the petitioner, is ultra vires to section 4 of the act and as such cannot be given effect to. the learned counsel for the respondent has not made any submission contradicting the submissions made by the learned counsel for the petitioner, but, has only relied on two judgments of this court in writ petition no. 1152 of 2006 and writ petition no. 2455 of 2003. we have perused the judgments. in neither of the judgments, the court has taken note of maharashtra employees of private schools (conditions of service) regulation act, 1977, and as such the judgments are per incuriam. the counsel for the respondent has also referred to another order passed by division bench of this court in writ petition no. 439 of 2008. the said order is passed in an application seeking interim relief. the court declined to grant interim relief, noted the submission of the learned counsel for the petitioner of that case that the government could not have reduced the age of retirement from 60 years to 58 years in view of section 4 of the act, but it did not rule on the submission. for the reasons given by us hereinabove, we find that this writ petition deserves to be allowed and is accordingly allowed. the order of the respondent directing superannuation of the petitioner on completion of 58 years is quashed. no order as to costs. civil application is also disposed of.