Bombay High Court
Gopaldas Kanhiyalal Sharma vs Joint.Dir. Of Higher Education on 29 April, 2016
Bench: B.P. Dharmadhikari
wp744.05 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 744 OF 2005
Gopaldas s/o Kanhaiyalal Sharma,
aged about 60 years, occupation -
Retired, r/o A-2/1, NSK Society,
Temple Road, Ravi Nagar, Nagpur. ... PETITIONER
Versus
1. Joint Director of Higher Education,
Nagpur Region, Nagpur.
2. Senior Accounts Officer,
o/o the Indian Audit & Accounts
Department, o/o the Accountant
General (A&E)-II, Maharashtra,
Nagpur 440 001.
3. Principal,
Dr. Ambedkar College,
Diksha Bhoomi, Nagpur.
4. Government of Maharashtra,
through Secretary, Ministry of
Finance Department, Mantralaya,
Mumbai. ... RESPONDENTS
Shri R.S. Sundaram with Ms. U.R. Tanna, Advocates for the
petitioner.
Shri B.M. Lonare, AGP for respondent Nos. 1, 2 & 4.
.....
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
APRIL 29, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Sundaram, learned counsel for the
petitioner and Shri Lonare, learned AGP for respondent Nos. 1,
2 & 4. Nobody appears for respondent No. 3.
2. The petitioner claims clubbing of his service from
07.12.1964 till 31.08.1985 with later service between
16.11.1987 to 30.04.2004 for computation of his pension. The
facts are not in dispute. Between 07.12.1964 to 31.08.1985 he
has worked as a Director of Geology and Mining with the State
Government and thereafter retired voluntarily. He practised
Law for about two years and on 16.11.1987 joined Respondent
No. 3 - College as a Lecturer. In due course, he was also
confirmed. He reached the age of superannuation on
30.04.2004. Thus, his service directly under State Government
is of 20 years, 8 months and 24 days. As he rendered service in
excess of 20 years, he gets credit of five years and thereafter
service is counted as 25 years, 8 months and 24 days. His
length of service in Respondent No. 3 - College is of 16 years, 5
months and 14 days.
3. Till the date of judgment by the Hon'ble Apex Court
in the case of State of Maharashtra vs. Manubhai Pragaji Vashi
& Ors., reported at AIR 1996 SC 1, the Law Colleges were not
getting any grants from the State Government. After that
judgment, Respondent No. 3 started getting grants.
Accordingly, wages and salary of the petitioner have been fixed.
In this background, Shri Sundaram, learned counsel submits
that the petitioner has been receiving pension for service put in
by him directly under the State Government. Similarly, as he
has put in more than qualifying service with Respondent No. 3,
he is also entitled for pension. The pension is to be released by
the State Government and hence both these spells of
employment need to be clubbed together to work out the
pension. He has invited our attention to the provisions of Rule
48 of the Maharashtra Civil Services (Pension) Rules, 1982,
(hereinafter referred to as Pension Rules, 1982), particularly
Rule 48(3) to urge that in view of specific provision in the said
Rule, the break in service needs to be treated as automatically
condoned and pre-interruption service needs to be clubbed
together and recognized as part of later service. He has also
relied upon the judgment delivered by the Hon'ble Apex Court
in the case Madhukar vs. State of Maharashtra & Ors., reported
at 2014(4) ALL MR 448 (S.C.), to urge that there in identical
situation, by placing reliance upon the provisions of Rule 48(3)
read with Government Resolution dated 11.03.1992, service
has been clubbed together.
4.
Shri Lonare, learned AGP is opposing the petition.
He relies upon the reply affidavit placed on record to urge that
when the petitioner joined the employment with Respondent
No. 3, his previous service or fact that he was getting pension
for that service was not disclosed to either Respondent No. 1 or
Respondent No. 2. He contends that in this situation, as the
petitioner never exercised option, the break in service cannot be
condoned. It is further submitted that interruption or break can
be condoned as per Rule 48(1)(c), if it is not in excess of one
year. In the present matter, as the break is of two years, two
months and 15 days, i.e. from 01.09.1985 to 15.11.1987, break
cannot be condoned. It is further submitted that service
rendered under Respondent No. 3 cannot be treated as service
under State Government and hence support being drawn from
Rules 153, 154 and 155 of Pension Rules, 1982, by the
petitioner is erroneous.
5. Shri Sundaram, learned counsel, in reply
arguments, points out that on 19.12.2000, positive steps were
taken towards clubbing of both services and the petitioner was
called upon to deposit the amount of Dearness Allowance (DA)
which he has received in excess and that amount was worked
out at Rs.90,521/- and the petitioner has accordingly deposited
the said amount. He, therefore, submits that by adhering to
adjudication in case of Madhukar vs. State of Maharashtra &
Ors., (supra), writ petition must be allowed.
6. A perusal of judgment of the Hon'ble Apex Court in
the case of State of Maharashtra vs. M.P. Vashi, (supra) clearly
shows that till then State Government was not ready and
willing to recognize Private Law Colleges as eligible for grants.
It is thereafter only that Private Law Colleges have been recognized
and grants have been released to them. This judgment of the
Hon'ble Apex Court is dated 16.08.1995. The petitioner had
joined employment with Respondent No. 3 - Private College on
16.11.1987 i.e. about eight years prior to delivery of this
judgment. As such, at that time, it was purely a private
employment and it was not obligatory either for the employer
or for the employee to communicate details of his previous
employment to any other authority, including Respondent Nos.
1 & 2. The petitioner, therefore, cannot be held to be at fault
for not communicating these details. These details became
relevant when after delivery of above judgment, the grants
scheme was implemented and the provisions of Maharashtra
Civil Services (Pension) Rules, 1982, were extended to the
Lecturers/ Teachers working in such Private Law Colleges.
7. The petitioner reached the age of superannuation
on 30.04.2004.
8. A perusal of judgment of the Hon'ble Apex Court in
the case of Madhukar vs. State of Maharashtra, (supra) reveals
that Madhukar was working from 21.06.2050 till 18.07.1960
with the State Government in various capacities. He resigned
on that day and joined a private recognized College viz., Hislop
College at Nagpur as Lecturer. The Government of Maharashtra
issued a resolution on 11.03.1992 and decided to count past
government service for computation of Pension in respect of all
employees retiring on or after 01.10.1982. The petitioner,
therefore, attempted to have his service from 21.06.1950 till
18.07.1960 attached and computed for pension with his later
service from 18.07.1960 till 24.05.1983. This effort of
Madhukar was not entertained by the department and he
approached this Court in Writ Petition No. 4736 of 2011. Writ
Petition was dismissed on 23.04.2012. Thereafter Madhukar
approached the Hon'ble Apex Court. The Hon'ble Apex Court
has looked into Government Resolution dated 11.03.1992 and
also language of Rule 48(3) of Pension Rules, 1982.
9. In the light of these provisions, the request of
Madhukar has been allowed and service rendered by Madhukar
from 21.06.1950 to 18.07.1960 has been directed to be
counted for the purposes of computation of pension.
10. We find that the facts looked into by the Hon'ble
Apex Court and facts at hand are identical. Though, in case of
Madhukar there is no break in service and hence there was no
question of condonation of any break in service, in the light of
Government Resolution dated 11.03.1992, we find that the
period during which the petitioner practised law is not being
counted for the purposes of computing his qualifying service.
The Hon'ble Apex Court in its judgment supra has found that
said Government Resolution is applicable to the employees
retiring on or after 01.10.1982. The petitioner has retired
voluntarily on 01.09.1985 i.e. after said date. The previous
service rendered by the petitioner needs to be, therefore,
computed and clubbed along with his later service for the
purposes of computing his pension.
11. Accordingly, we set aside the communication dated
19.07.2004 and direct the respondents to club both spells of
services rendered by the petitioner together for determining his
pension and other benefits in accordance with law. The
exercise be completed within four months from today.
12. Needless to mention that the entitlement of the
petitioner to interest in terms of Rule 129-A of the Maharashtra
Civil Services (Pension) Rules, 1972, shall be independently
examined by the authorities.
13. Writ Petition is thus allowed and disposed of. Rule
is made absolute in above terms. However, in the facts and
circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
