State Of Maharashtra And Ors. vs G.B. Agaskar
2004 Latest Caselaw 864 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition the State of Maharashtra as the Petitioner has challenged the order passed by Maharashtra Administrative Tribunal allowing the Original Application filed by respondent granting him certain pensionary benefits which according to the State is against the law and hence the petition.

2. The petitioner retired from service of the Government of Maharashtra as Superintending Engineer in the year 1976 and was given all pensionary benefits as per the rules existing on the date of his retirement. This period was computed as per those rules providing for computation of pensionable period. This aspect of his case is undisputed.

3. Initially the conditions of service of the employees of Government of Maharashtra were governed by the Bombay Civil Services Rules which contained various chapters including a chapter of pensions. It was under those rules of the Bombay Civil Service Rules that the pension of the petitioner was fixed in the year 1976.

4. Thereafter in 1982 the Government of Maharashtra in exercise of powers under Article 309 of the Constitution of India framed rules differently for different purposes. It framed the Maharashtra Civil Services (Pension) Rules 1982 creating the Code in itself governing the Rules in relation to pension granted by the State. It is from 1982 that Maharashtra Civil Services (Pension) Rules are in operation. Rule 110 of these Rules provided for computation of the period for which the pension is to be given under those Rules. This Rule 110 underwent amendment in the year 1985 by the Maharashtra Civil Services (Pension) Second Amendment Rules, 1985. By this second amendment Sub-rule 3 of Rule 110 came to be substituted. From that day therefore the manner of computing pensionable period changed. These amendments or even the basic Maharashtra Civil Service (Pension) Rules of 1982 did not in any manner alter the scheme of granting pension to employees of the Maharashtra State.

5. Original Application was therefore filed by the petitioner before the Tribunal claiming that he is entitled to recomputation of his pension in view of 1985 amendment. The Tribunal considered all the contentions raised by the petitioners in Original Application No. 1255/01 and rejected the Original Application by its order dated 1.2.2002.

6. The Tribunal by its impugned order noted several judgments of the Supreme Court and held that the provisions of Rule 110 as amended from time to time would be applicable to all the pensioners who retired even prior to 1983. Reliance was placed for that purpose on a judgment reported in the case of Subrata Sen and Ors. v. Union of India and Ors., 2001 SCC (L&S) 1237. Heavy reliance was placed on observations made in para 6 thereof where the Supreme Court of India on entire review of the case law on the point observed that where an employee concerned retires from service and gets certain pension and subsequent thereto there is an amendment of the relevant pension scheme, it therefore contemplates amendment of relevant pension scheme whatever be the nature of that amendment. In the instant case a the pension scheme as envisaged in Bombay Civil Service Rules is not amended or revised. A complete new Code was promulgated in the year 1982 and the amendment is effected to that Code in 1985. Amendment of 1985 or Pension Rules of 1982 are not amendments of the Pension Scheme as envisaged in the Bombay State which finds place in the Bombay Civil Service Rules. The observations of the Supreme Court in Subrata Sen's Case (supra) are therefore not attracted to the present case at all. The Tribunal therefore erred in holding by reference to this Court that pensioners living after 1985 amendment are entitled to revised Rules of computation of pension. What has been amended is Rule of 1982 providing for computing of pension. That rule itself was not applicable to the respondent and amendment thereof cannot therefore be made applicable to him. The Tribunal therefore erred in applying the ratio of the Supreme Court in Subrata Sen's case to the facts of the present case. In the result, therefore, the petition succeeds and is allowed. Impugned order passed by the Maharashtra Administrative Tribunal is set aside. There shall be no order as to costs.