Shivappa S/O Bhujangappa Bembale vs State Of Maharashtra And Anr.
2005 Latest Caselaw 458 Bom

JUDGMENT

P.B. Gaikwad, J.

1. Petitioner Shivappa s/o Bhujangappa Bembale has filed present Writ Petition against Zilla Parishad through its Chief Executive Officer and requested for direction to regularise his services as a Peon w.e.f. 24-7-1970; further direction is sought to regularise his services as Peon w.e.f. 1973. Petitioner also claimed arrears; and, thereafter, by amending petition on 12-9-1995, claimed relief to grant pension.

2. The gist of the contention of the petitioner that he is resident of Bardapur, Tq. Ambajogai, District Beed. It is further claimed that he was working as part time Peon in a Primary Girls School at Bardapur since 1-8-1970. He worked as part time Peon till 10-7-1990. The said school is run by Zilla Parishad, Beed. It is further claimed that he was thereafter appointed and taken in regular cadre as Peon in the pay scale of Rs. 750-12-870-DR-14-940 by order dated 6-7th July, 1990 passed by the Chief Executive Officer, Zilla Parishad. Beed. The petitioner was, accordingly, posted as Peon in the Primary Girls School, Hatola, Taluka Ambajogai and he worked there till 30-4-1993, however, as he completed 60 years of age on 30-4-1993, he was relieved from service w.e.f. 30-4-1993. It is further submitted that as a matter of fact the services of petitioner ought to have been regularised in the year 1973 itself and should have taken in regular cadre. However, he was continued to serve part time till 1990. It is further contended that some other persons were taken on regular cadre. It is also submitted that by paying meagre amount of Rs. 2,322/- the petitioner is retired from service on 30-4-1993. According to him, the service record of petitioner is clean and unblemished; even, he continued in service from 1-8-1970 till 30-4-1993; and considering the said period he is entitled for pensionary benefits. It is submitted that the petitioner is unnecessarily discriminated. A request is accordingly made to direct the respondent Zilla Parishad to consider his claim for pensionary benefits.

3. In the petition we heard Mr. Vivek Dhage, Advocate for petitioner; Mr. U. K. Patil, AGP for respondent No. 1 - State; and Mr. C. V. Thombre, Advocate for respondent No. 2 - Zilla Parishad, Beed, at length. We have also gone through the affidavit-in-reply filed on behalf of Zilla Parishad and the letter dated 1-3-1994 and 14-7-1994.

4. Mr. Vivek Dhage, Advocate, referred Rule 30, Rule 57 and Rule 110 of the Maharashtra Civil Services (Pension) Rules and relying on those provisions, according to him, the claim for pension of the petitioner has been wrongly rejected.

As against this, it is submitted on behalf of respondents that, Note 2 of Rule 57 is applicable in the present case and, therefore the petitioner is not entitled to claim pensionary benefits, as in view of Rule 57 the services of present petitioner is hardly 3 years and he has not completed qualifying service as required under Rule 30 and Rule 110. It is, thus, now necessary to see whether the submissions made on behalf of petitioner is acceptable for which a reference to Rule 30 of the Maharashtra Civil Services (Pension) Rules, 1982, which reads as under :

"30. Commencement of qualifying service. -- Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he first appointed either substantively or in an officiating or temporary capacity : Provided that at the time of retirement he shall hold substantively a permanent post in Government service or holds a suspended lien or certificate of permanency.

[Provided further that, in cases where a temporary Government servant retires on superannuation on or being declared permanently incapacitated for further Government service by the appropriate medical authority after having rendered temporary service of not less than 10 years, or voluntary after the completion of 20 years of qualifying service, shall be eligible for grant of superannuation, Invalid or, as the case may be, Retiring Pension; Retirement Guarantee; and Family Pension at the same scale as admissible to permanent Government servant.]

Exception --

The rules regarding grant of terminals benefits to temporary Government servant (except those mentioned in the second proviso) who retire being confirmed in any post in Government service are embodied in Appendix II.

Note 1. ..."

A reference is necessary to Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982, which reads as under :

"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)      ....
 

(c)      Government servants who are not in receipt of pay but are remunerated by honoraria,
 

(d)     ....
 

(e)     ....
 

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 allowed to count for pension.

Note 2 - In 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.

A reference is also necessary to Rule 110 which deals with amount of pension.

"110. Amount of pension. -- [(1) In the case of a Government servant retiring on Superannuation, Retiring, Invalid or Compensation Pension before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's pay for every completed six monthly period of qualifying service.]

(2)(a)....

(b) In the case of a Government servant retiring on Superannuation, Retiring, Invalid or Compensation Pension in accordance with the provisions of these rules before completing qualifying service of thirty three years but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under (a) and in no case the amount of pension shall be less than (rupees three hundred and seventy five) per mensem.

(3)....

(4)...."

5. Relying on the above three provisions of Rule 30, Rule 57 Note 1 and Rule 110 of the Maharashtra Civil Services (Pension) Rules, Mr. Vivek Dhage, Advocate for petitioner, submits that present petitioner is entitled for pension as his part time service as Peon is approximately 20 years as he was appointed in the year 1970 and continued on the same post till 1990 and, thereafter, the Chief Executive Officer has taken him in regular cadre by giving appointment in the said cadre and he worked for three years. So, considering the Note 1 of Rule 57, his previous service is to be counted to the extent of 10 years as this period worked as part time Peon is about 20 years and in regular post he worked for three years. Thus, the total period of service of present petitioner comes to near about 13 years, however, the Zilla Parishad has completely ignored this aspect.

6. The only crux in the present matter as the Zilla Parishad authorities has rejected the claim of present petitioner relying on Note 2, however, considering the factual aspect from the present case as it is seen that the initial appointment order of the present petitioner as part time Peon is 24-7-1970; he continued as part time Peon till 10-7-1990 and thereafter by order dated 6-7-1990 the petitioner was taken on regular cadre in the pay scale of Rs. 750-12-870-DR-14-940 by the Chief Executive Officer, Zilla Parishad. The order passed by the Chief Executive Officer, Zilla Parishad is also on record and the very wording of the said order safely makes it clear that the persons who are working as part time and salary being paid from contingency, those persons are being taken on regular cadre in class-4 and being fixed in the pay scale of Rs. 750-12-870-DR-14-940. After going through the order dated 7-7-1990 it can be said that it is the fresh order giving regular employment to the petitioner, however, as he was already worked as part time Peon and being paid from contingency the services being regularised in the pay scale in class-4 servant. We have gone through the Note 1 and Note 2 of Rule 57 and we find that the Zilla Parishad has wrongly applied Note 2 in the present matter while rejecting the claim of the petitioner to grant pension, as in fact in the present case, Note 1 of Rule 57 is applicable. Therefore, we find that the claim as set up by the present petitioner that he is entitled for pensionary benefits, is definitely justified.

7. Mr. Dhage, Advocate, has made reference in respect of order passed in Writ Petition No. 3472/1996 and in a same situation this Court in the said writ petition, has given direction to the respondents to consider the case of petitioner for pensionary benefits within a period of three months and also directed for payment of arrears. We have gone through the said order wherein a reliance is placed on Note 1 of Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982. Considering the factual aspects in the present case we also find that in the present case Note 1 of Rule 57 is applicable.

8. We, thus, accordingly direct the respondent No. 2 - Zilla Parishad to consider the case of present petitioner for giving terminal benefits in view of the above Rule and to decide the same within three months from today and the necessary arrears which the petitioner is entitled be accordingly paid.

By order dated 12-9-1995 this Court in the present petition has given direction to respondent No. 2 to deposit amount of Rs. 50,000/-. The Zilla Parishad, accordingly, has deposited amount of Rs. 50,000/- in this Court, which seems to be deposited in a Scheduled Bank in pursuance of further directions dated 19-6-1996. The said amount along with accrued interest be paid to the petitioner. It is further made clear that above amount which to be paid to the petitioner is to be adjusted against the arrears which the respondents are liable to pay to the petitioner on account of pensionary benefit.

Writ Petition is accordingly disposed of in the above terms.

Parties shall bear their own costs.