Bombay High Court
Smt. Jayshree Manohar Dhamarikar vs State Of Maharashtra Through Its ... on 29 September, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5268/2015
PETITIONER: Rohini Shashikant Oak
Aged about 62 years,
R/o T.T. Nagar, Opposite Abhiyanta Colony
Suit Girni Road, Amravati - 444606.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra, Through its Secretary,
Department of School Education, Mantralaya,
Mumbai - 32.
2. Accountant General (A & E-II), Maharashtra,
Civil Lines, Nagpur.
3. Education Officer (Secondary), Zilla Parishad,
Amravati.
4. Holy Cross Convent English High School,
Through its Head Mistress, Camp Road,
Amravati.
WITH
WRIT PETITION NO.2141/2015
PETITIONER: Smt. Jayshree Manohar Dhamarikar
Aged about 66 years, R/o, C/o Paresh
Jayshree Manohar Regency Plaza,
Plot No.428 A/3 Post Talegaon Dabhade,
Yashwant Nagar Taluka - Maval, District - Pune,
Pin Code - 410507.
...VERSUS...
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RESPONDENTS : 1. State of Maharashtra, Through its Secretary,
Department of School Education, Mantralaya,
Mumbai - 32.
2. Accountant General (A & E-II), Maharashtra,
Civil Lines, Nagpur.
3. Education Officer (Secondary), Zilla Parishad,
Yavatmal.
4. The English High School, Ner Parsopant
Through its Head Master, Ner Parsopant,
ig Distt. Yavatmal.
WITH
WRIT PETITION NO.5532/2015
PETITIONER: Shashikant Narayanrao Oak
Aged about 67 years, Occupation - Retd.
Librarian r/o T.T. Nagar, Opposite
Abhiyanta Colony Suit Girni Road,
Amravati - 444606.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra, Through its Secretary,
Department of School Education, Mantralaya,
Mumbai - 32.
2. Accountant General (A & E-II), Maharashtra,
Civil Lines, Nagpur.
3. Education Officer (Secondary), Zilla Parishad,
Amravati.
4. Shri Samarth Madhyamik va Uchha
Madhyamik Vidyalay, through its
Head Master, Badnera Road, Amravati.
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WITH
WRIT PETITION NO.5534/2015
PETITIONER: Bharatsingh Narayansingh Gahalot
Aged about 64 years
R/o Dream Elegance Housing Society
Flat No.C-602, Near JSPM College,
Handewadi Road, Hadapsar, Pune - 28.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra, Through its Secretary,
Department of School Education, Mantralaya,
Mumbai - 32.
2. Accountant General (A & E-II), Maharashtra,
Civil Lines, Nagpur.
3. Education Officer (Secondary), Zilla Parishad,
Buldhana.
4. Deulgaon Raja High School,
through its Head Master,
Deulgaon Raja, District - Buldhana
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Shri Sachin Khandekar, Advocate for petitioner in all petitions
Shri A.S. Fulzele, Addl. G.P. for respondent nos.1 to 3 in all petitions
-----------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 29.09.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Whether the half of the services rendered by a part-time
employee, who has attained the age of superannuation while working as a
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full-time employee, could be considered as qualifying service for
computing the pensionary benefits is a question that falls for
consideration in these writ petitions.
Since the issue involved in these writ petitions is identical,
they are heard together and are decided by this common judgment.
Rule. Rule made returnable forthwith. The petitions are
heard finally at the stage of admission with the consent of the learned
Counsel for the parties.
The petitioners in the writ petitions were appointed as
part-time librarians and with the increase of strength of the students in
the School in which they were working, they were absorbed as full-time
librarians. Each of the petitioners had retired on attaining the age of
superannuation. Since while computing the pensionary benefits the
services rendered by the petitioners on part-time basis were not
considered by the respondents, the petitioners have filed the instant
petition seeking a direction against the respondents to consider half of the
part-time services rendered by the petitioners as qualifying service for
pension.
Shri Khandekar, the learned Counsel for the petitioners
submitted that each of the petitioners was appointed as a part-time
librarian and has rendered several years of service as a full-time librarian
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also. It is stated that the petitioners have retired as full-time librarians
and hence in view of the provisions of the Maharashtra Civil Services
(Pension) Rules, 1982, specially Rules 30, 49 and 57 of the Rules, the
services rendered by the petitioners on part-time basis should be
considered for computing the qualifying service. It is submitted that the
issue involved in this case came up for consideration before this Court in
Writ Petition Nos.2354/2012 and 8289/2013 and this Court had, by the
judgments, dated 7.1.2014 and 29.4.2014 respectively, allowed the writ
petitions filed by the petitioners therein and had directed the State
Government to consider the services rendered by the petitioners therein
on part-time basis as qualifying service. It is submitted that on parity, a
similar order would be necessary in the case of the petitioners also.
Shri Fulzele, the learned Additional Government Pleader
appearing on behalf of the respondent nos.1 to 3 has opposed the prayer
made by the petitioners. It is stated that in view of the provisions of
Rule 70 of the Secondary Schools Code, that refers to pension and
provident fund, only a full-time employee would be entitled to pension
and provident fund. It is stated that as per Rule 70.1 of the Code, every
employee who is appointed on full-time basis in aided school would be
entitled for pension. It is stated that as per Rule 70.4 of the Code a
part-time employee would not be eligible either to the Provident Fund
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Scheme or to the Pension Scheme. The learned Additional Government
Pleader has relied on Rule 19 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 to canvass that an employee
of an aided school working on full-time basis would only be eligible for
pension. It is stated that in the judgments rendered by this Court and
relied on by the petitioners, the provisions of Rule 70 of the Code and
Rule 19 of the Rules of 1981 were not considered.
On hearing the learned Counsel for the parties, we find that
it would be necessary to direct the State Government to consider 50% of
the part-time services rendered by the petitioners as qualifying service. In
the judgments rendered by this Court and referred to herein above, the
provisions of the Maharashtra Civil Services (Pension) Rules, 1982 were
considered. Rule 30 of the Rules of 1982 speaks of the commencement of
qualifying service. The said rule provides that qualifying service of a
Government servant shall commence from the date he takes charge of the
post to which he is first appointed either substantively or in an officiating
or temporary capacity. The proviso to Rule 30 stipulates that at the time
of retirement the employee should hold a substantive or permanent post.
It is clear from the said provision that the qualifying service of a
Government servant would commence from the date on which he is
appointed even in an officiating or temporary capacity, provided that he
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holds substantively, a permanent post at the time of retirement. There is
no dispute about the fact that the petitioners were holding the permanent
posts of full-time librarians substantively at the time of their retirement.
Rule 49 of the Rules of 1982 goes to the extent of considering the services
on a fixed establishment, wherein an employee is paid by piece-work, as
qualifying service. Rule 57 of the Rules of 1982 refers to the
non-pensionable service and Note-1 thereof stipulates that where an
employee is paid from contingencies and is subsequently brought on a
regular pensionable establishment, one-half of previous continuous
service shall be allowed to be counted for pension. On a perusal of the
aforesaid Rules, this Court had held in the judgments referred to herein
above that 50% of the part-time services rendered by the petitioners
therein could be considered as qualifying service. It is not in dispute that
the Maharashtra Civil Services (Pension) Rules, 1982 are applicable to the
petitioners. If that be so, on a combined reading of the Pension Rules, it is
clear that 50% of the services of the petitioners as part-time librarians
should be considered as qualifying service. The reliance placed on behalf
of the respondents on Rules 70.1 and 70.4 of the Secondary Schools Code
is not well founded. Rule 70.1 of the Code only provides that a full-time
employee of an aided and recognized school shall be entitled to pension.
So also, Rule 70.4 of the Code provides that a part-time employee would
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not be eligible either to the Provident Fund Scheme or to Pension
Scheme. It is not disputed that the petitioners are entitled to pension and
are receiving the same. The import of Rule 70.4 of the Code is that a
part-time employee who joins a part-time employee and retires as a
part-time employee would not be entitled to the Provident Fund Scheme
or to the Pension Scheme. However, the provisions of Rule 70.4 of the
Code cannot be applied to a case where an employee is initially appointed
on part-time basis and is subsequently absorbed as a full-time employee
and retires on attaining the age of superannuation as a full-time
employee, with pensionable service. Rule 19 of the Rules of 1981 has no
relevance to the cases in hand. Rule 19 of the Rules of 1981 provides that
an employee of an aided school would be eligible for pension, if he works
on full-time basis. Admittedly, the petitioners herein have worked on
full-time basis for long and have retired as full-time employees and are
receiving pension. In view of the Pension Rules that are applicable to the
petitioners, one half of the services rendered by them as part-time
librarians should be considered as qualifying service for grant of
pensionary benefits.
Hence, for the reasons recorded herein above and for the
reasons recorded in the judgments in Writ Petition Nos.2354/2012 and
8289/2013, dated 7.1.2014 and 29.4.2014 respectively, the writ petitions
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are allowed. The respondents are directed to consider half of the services
rendered by the petitioners as part-time librarians as qualifying service for
computing their pensionary benefits. The exercise should be completed by
the respondents within three months and the arrears of pensionary
benefits should be released in favour of the petitioners within five
months. The respondents should also pay the admissible monthly pension
to the petitioners in terms of this judgment from January, 2017.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
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C E R T I F I C A T E
I certify that this judgment uploaded is a true and correct
copy of original signed judgment.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 01/10/2016
