Bombay High Court
Ajinath vs The State Of Maharashtra (Through ... on 21 January, 2002
Author: Marlapalle
Bench: Marlapalle
JUDGMENT
Marlapalle, J.
1. This petition involves the claim of pensionary benefits and salary fixation, on superannuation.
2. The Petitioner claims that he was initially employed under the Hyderabad State by order dated 7th Khurdad 1357 Fasli and continued to work in the post of Farashgiri on the pay of Rs.10/- and dearness allowance as applicable. He was initially posted at the school at Chigatgaon and was then transferred to Primary School at Talwada in Vaijapur Taluka of Aurangabad District. He claims that on retirement he was not paid pension and, therefore, he approached this Court. The letter dated 2nd April, 1997, addressed by the Head Master of the Primary School at Talwada to the Petitioner, clearly speaks that he was part time employee and he had already reached the age of superannuation i.e. 60 years. It appears that even after reaching the age of superannuation he continued to attend the duty and hence this letter was issued.
3. The Zilla Parishad has filed affidavit in reply initially and recently additional reply has been filed. The employer-employee relationship has not been denied by the Zilla Parishad but specifically stated that the Petitioner was never appointed on full time basis and, therefore, he is not entitled to the pensionary benefits in view of the bar under Rule 57 (a) of the Maharashtra Civil Services (Pension) Rules, 1982. The Zilla Parishad claims that the Petitioner has all along fabricated documents with the help of his brother who was also employed as an Assistant Teacher in the said primary school at Talwada. The Petitioner was, for the first time, considered for promotion from part time to full time post of Peon vide order dated 30th March, 1984 on the condition that he would submit certificate of his educational qualifications upto 4th standard. Subsequent correspondence and more particularly the application of the Petitioner dated 2nd May, 1984 indicate that he did not accept the said promotion and instead requested to appoint Shri Walmik Laxman Ekhande in his place as a Peon. The said letter also admits that the Petitioner was a part timer right from 1956 and claims that from 1947 to 1956 he was employed on full time basis as Peon. The Petitioners counsel has submitted before us copies of some muster rolls after 1956. As we have stated that the employer-employee relationship has not been disputed and the only question that we are required to consider is whether the Petitioner was entitled for the pensionary benefits.
4. At the first instance even if it is presumed that the Petitioner was born in 1939 it is doubtful whether at the age of 14 years he would be appointed as a full time peon in any school under the State Government as was the position during the erstwhile Hyderabad State. The appointment letter purportedly issued in favour of the Petitioner, and which is in Urdu language, has been translated by the Junior Translator of this Court and it no where shows that the Petitioner was appointed on full time basis. The school leaving certificate, which the petitioner has relied upon, also appears tobe fabricated as has been demonstrated by the Zilla Parishad by submitting the original record before us. Way back on 12th June, 1980 the Education Officer, Zilla Parishad, Aurangabad had submitted to the State Government that the Petitioner would not be entitled for pensionary benefits as he was a part time servant.
5. Shri Suryawanshi, the learned counsel for the Petitioner has relied upon Government Resolution dated 21st August, 1987. This resolution, in para 2 and 2.2, does make out a case for pensionary benefits for temporary employees who have completed 20 years or more service or to those who retired on superannuation or on being declared permanently incapacitated for further Government service with not less than ten years of temporary service. This resolution does not speak anything about the part time employees and, therefore, the reliance on this circular is totally misplaced.
6. The Petitioner lastly contended that from 1947 to 1956 he worked as a full time employee and, thereafter, he was continued on part time basis. The Zilla Parishad concedes to the later part and emphatically denies that the Petitioner had worked on full time basis even prior to 1956 at any time. We are not equipped to adjudicate upon the nature of employment of the Petitioner from 1947 to 1956 and even if he has submitted Urdu copies of some attendance register that itself could not be even a prima facie proof to establish that he was, in fact, working on full time basis.
7. In the result, the petitioner has not made out a case for issuing a writ for giving him the benefit of pension under the Maharashtra Civil Services (Pension) Rules or as applicable to the Zilla Parishad employees and, therefore, the petition is devoid of merits.
8. Petition is, therefore, dismissed. Rule discharged. No order as to costs.
9. Pursuant to the order passed by this Court on 24th January, 1990 the Petitioner was paid an amount of Rs.500/- per month from August, 1989 towards provisional pensionary benefits and this order came to be modified by order dated 23rd October, 1991 and the provisional pension was fixed at Rs.80/- per month, pending final hearing and disposal of this petition. We hereby direct that the said amount, already paid to the Petitioner, shall not be recovered.
