1 jg.wp 3400.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Writ Petition No. 3400 of 2011
Petitioner : Narayan Son of Gomaji Wankar,
Aged about 65 years Occu : Pensioner,
R/o. Ward No. 2, Post : Hingna,
District : Nagpur.
// Versus //
Respondents :- (1) The State of Maharashtra,
through its Secretary,
Rural Development Department,
Mantralaya, Mumbai-400032.
(2) The Divisional Commissioner,
Nagpur Division, Nagpur-440001.
(3) The Zilla Parishad, Nagpur, through its
Chief Executive Officer, Zilla Parishad,
Civil Lines, Nagpur-440001.
Shri S. K. Verma, Advocate for the petitioner
Shri M. K. Pathan, Assistant Government Pleader for the respondent
nos. 1 and 2
Shri Shaikh Majid, Advocate for the respondent no. 3
CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
DATE : 16-11-2017.
ORAL JUDGMENT (Per : R. K. DESHPANDE, J.) Heard learned counsel appearing for the parties on merits of the matter.
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2. The petitioner was appointed initially on 5-4-1971 as a Chowkidar to work in the services of Zilla Parishad. He continued to work on the said post till 10-8-1983 i.e. for about 13 years and was thereafter promoted to the post of Attendant Grade-I. The petitioner ultimately retired on attaining age of superannuation of 58 years from the post of Junior Assistant with effect from 31-10-2004.
3. For the purpose of fixation of pension, one-half of his service rendered by the petitioner from 5-4-1971 to 10-8-1983 was taken into consideration by invoking the provisions of Note 1 of Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982 (referred to as 'the Pension Rules'). This is the grievance made in the petition. According to the petitioner, entire service rendered by him from 5-4-1971 to 10-8-1983 was required to be taken into consideration in terms of Rule 30 of the Pension Rules.
4. The controversy involved is very short and if we find that the case of the petitioner is covered by note 1 below Rule 57 of the Pension Rules, then we will have to dismiss the petition. If we hold that the case of the petitioner is not covered by provision of the Pension Rules, then we will have to allow the petition.
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5. Rule 57 of the Pension Rules is relevant and is reproduced below.
57. Non-Pensionable service.
As exceptions to rule 30, the following are not in pensionable service :-
(a) government servants who are paid for work done for Government but whose whole time is not retained for the public service,
(b) Government servants who are not in receipt of pay but are remunerated by honoraria,
(c) Government servants who are paid from contingencies,
(d) Government servants holding posts which have been declared by the authority which created them to be non- pensionable,
(e) Holders of all tenure posts in the Medical Department, whether private practice is allowed to them or not, when they do not have an active or suspended lien on any other permanent post under Government. Note 1 - In cases of employees paid from contingencies who are subsequently brought on a regular pensionable establishment by conversion of their posts, one-half of their previous continuous service shall be allowed to count for pension.
Note 2 - In the case of persons who were holding the posts of Attendants prior to 1st. April 1966, one-half of their previous continuous service as Attendants, shall be allowed to count for pension.
The claim of the petitioner is that his case is covered by Rule 30 and hence the entire service rendered by him from 5-4-1971 to .....4/-
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4 jg.wp 3400.11.odt 10-8-1983 was required to be counted for the purposes of pension. Rule 57 is an exception to it. In terms of Note 1 below Rule 57, in case of employees paid from contingencies who are subsequently brought on a regular pensionable establishment by conversion of their posts, one-half of their previous continuous service shall be allowed to count for pension. The respondents have relied upon the copy of the order of appointment dated 29-3-1971 and the service book extract of the petitioner.
6. We have gone through the order of appointment of the petitioner issued on 29-3-1971. This is a common order appointing 54 employees on the establishment of Zilla Parishad. It states that the candidates named therein are appointed in contractual service, but shall work as Full Time Chowkidar on temporary (provisional) basis until further orders and they shall be entitled to fix pay of Rs. 90/- per month. In response to this order, the petitioner is joined the service on 5-4-1971 and he worked as such for period of 13 years up to 10-8-1983. We have also seen the service book extract which is produced before us by the Zilla Parishad in which the petitioner is described as 'Sadil Karmachari' and the nature of appointment shown is temporary. We have also seen the amended reply filed by the respondents in which they have stated that the petitioner was paid fixed amount of Rs. 90/- from contingency funds.
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7. We put a specific question to the learned counsel for the respondent - Zilla Parishad as to whether any record is available to show that the petitioner was paid from contingency funds, the fixed amount of Rs. 90/- per month for a period of 13 years continuously from 5-4-1971 to 10-8-1983, however, the learned counsel makes a statement that the record is not available now. In view of this, we cannot rely upon such a statement made in the affidavit which is supported by solemn affirmation stating that the information is derived from the record.
8. Though, the order of appointment shows that the appointment is under the service contract, it mentions that it is purely on temporary basis and we fail to understand as to how the appointment on contract basis for 13 years can be kept going on and paid from the contingency funds. The service book extract shows that the appointment is on temporary basis and it also records that the petitioner was promoted to the post of Attendant Grade-I on 10-8-1983. We are therefore of the view that two things are not satisfied to cover the case of the petitioner by Note-1 under Rule 57 of the Pension Rules, i.e. (1) the petitioner was paid from contingency funds the fixed amount of Rs. 90/- per month for a period from 5-4-1971 to 10-8-1983, and .....6/-
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6 jg.wp 3400.11.odt (2) that the petitioner was brought on regular pensionable establishment by conversion of post on which he was appointed. According to us, the petitioner was promoted to the higher post and not by converting the post of Chowkidar. In our view, therefore, the stand taken by the respondents is not substantiated.
9. In the result, writ petition is allowed. The order dated 30-10-2004 passed by the respondent no. 3 counting half of the service rendered by the petitioner from 5-4-1971 to 10-8-1983 for the purpose of pension is hereby quashed and set aside.
10. The respondents are directed to take into consideration the full service rendered by the petitioner for the period from 5-4-1971 to 10-8-1983 and accordingly fix the pension and pay the arrears to the petitioner within a period of three months from the date of receipt of copy of this judgment. No costs.
JUDGE JUDGE
wasnik
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