Bombay High Court
Wasudeo Govindrao Nagpure vs State Of Maharashtra Through ... on 22 August, 2017
Bench: V.A. Naik
2208WP4647.13-Judgment 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4647 OF 2013
PETITIONER :- Wasudeo Govindrao Nagpure, Aged about
33 years, Occupation : Service, R/o. Sonbaji
Nagar, Bhandara Road, Nagpur.
...VERSUS...
RESPONDENTS :- 1] State of Maharashtra, Through its Secretary,
Education Department, Mantralaya, Mumbai
- 32.
2] Director Vocational Education and Training,
Pune.
3] Joint Director, Vocational Education and
Training, Regional Office, Civil Lines,
Nagpur.
4] District Vocational Education and Training
Officer, Regional Office, Civil Lines, Nagpur.
5] C.P. & Berar Education Society, through its
Secretary, Mahal, Nagpur.
6] C.P. & Berar College, through its Principal,
Tulsibag, Mahal, Nagpur.
---------------------------------------------------------------------------------------------------
Mr. B.G.Kulkarni, counsel for the petitioner.
Mr. P. S. Tembhare, Asstt.Govt.Pleader for the respondent Nos.1 to 4.
Mr. Shantanu S. Ghate, counsel for the respondent Nos.5 and 6.
---------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK &
M. G. GIRATKAR
, JJ.
DATED : 22.08.2017
2208WP4647.13-Judgment 2/9
O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner challenges the orders
of the District Vocational Education and Training Officer, Nagpur dated
17/01/2013 and the Joint Director, Vocational Education and Training,
Nagpur, dated 08/12/2008. The petitioner seeks a direction against the
respondent Nos.2 to 4 to apply the old pension scheme as per the
Maharashtra Civil Services (Pension) Rules, 1982, to the petitioner.
2. Few facts giving rise to the petition are stated thus:-
The petitioner was initially appointed as a library
attendant in a clear vacancy in R.S.Mundle Dharampeth Arts and
Commerce College, Nagpur on 06/06/1994. The probation period of
the petitioner was extended by the order dated 30/12/1995 and the
petitioner was confirmed on the post of library attendant from the date
of his initial appointment, i.e. 06/06/1994 by the order dated
09/06/1996. On 01/11/2003, the petitioner was promoted as library
clerk and was granted senior grade scale. In June, 2007, in pursuance
of an advertisement published by the respondent Nos.5 and 6, the
petitioner applied for the post of assistant teacher in the respondent
No.6-college, since the petitioner was qualified for being appointed to
the post of assistant teacher. The petitioner was selected and appointed
as a full time teacher in the respondent No.6-college on 01/12/2007.
2208WP4647.13-Judgment 3/9
With the permission of the earlier management, the petitioner resigned
from his services in R.S.Mundle Dharampeth Arts and Commerce
College on 30/11/2007 and joined his duty in the respondent No.6-
college as an assistant teacher from 01/12/2007. Approval was granted
to the appointment of the petitioner by the education authorities when
the petitioner was working in R.S.Mundle Dharampeth Arts and
Commerce College and with the respondent No.6-college also. In the
approval order dated 08/12/2008, the Joint Director of Vocational
Education and Training inserted a condition that the petitioner would
not be entitled to the pension and the other benefits as per the
Maharashtra Civil Services (Pension) Rules. The petitioner made
representations to the education authorities raising objection to the
condition in the approval order. According to the petitioner, the
education authorities were liable to grant the benefits under the
Maharashtra Civil Services (Pension) Rules, 1982 to the petitioner. The
representations of the petitioner were not favourably considered and by
the order dated 17/01/2013, the District Vocational Education and
Training Officer, Nagpur rejected the representations of the petitioner
by referring to the condition in the order of approval dated 08/12/2008
that the petitioner would not be entitled to seek the benefit of the old
pension scheme. The order dated 17/01/2013 is impugned by the
petitioner in the instant petition. The petitioner has also challenged the
condition in the approval order dated 08/12/2008.
2208WP4647.13-Judgment 4/9
3. Shri Kulkarni, the learned counsel for the petitioner,
submitted by taking this court through a number of documents that the
petitioner was appointed in a clear vacancy in R.S.Mundle Dharampeth
Arts and Commerce College in the year 1994 on the post of library
attendant and after about two years of service, the petitioner's services
were confirmed by the management and approved by the education
authorities. It is submitted that the petitioner continued to work with
R.S.Mundle Dharampeth Arts and Commerce College, till 30/11/2007
when he resigned from the job in the said college with the permission of
the management. It is stated that without any break the petitioner
joined the services in the respondent No.6-college on 01/12/2007. It is
submitted that the petitioner was continuously working in the two
institutions without any break. It is submitted that the case of the
petitioner would be governed by the circular issued by the State of
Maharashtra on 12/01/2007 as also the government resolution dated
01/12/2008. It is submitted that as per the said circular and the
government resolution, continuity needs to be granted to the services of
an employee, who works on a permanent post in two departments
without any break. It is stated that all the conditions that are required
to be satisfied for seeking the continuity of service as per the circular
and the government resolution are satisfied in the case of the petitioner.
It is stated that the petitioner was working in a permanent vacancy in
2208WP4647.13-Judgment 5/9
R.S.Mundle Dharampeth Arts and Commerce College from 1994 and his
services were approved and thereafter without any break, he has joined
the services in the respondent No.6-college and the said services are
also approved. It is submitted that the petitioner had completed the
probation period in R.S.Mundle Dharampeth Arts and Commerce
College and had also sought the permission of the management of the
said college before applying for the job in the respondent No.6-college
and resigning from the said college. It is submitted that there is no
break in the services of the petitioner and, therefore the fourth
condition that is required to be satisfied as per the circular and the
government resolution would not be applicable to the case of the
petitioner. It is submitted that the petitioner was receiving the salary
from the government exchequer right from the date of his appointment
on 06/06/1994 till date and therefore the relief sought by the petitioner
needs to be granted as the petitioner is appointed in 1994 and he would
be governed by the old pension scheme.
4. Shri Tembhare, the learned Assistant Government Pleader
appearing for the respondent Nos.1 to 4, has denied the prayers made
by the petitioner. It is submitted that the petitioner accepted the order
of approval dated 08/12/2008 without any objection and the petitioner
cannot be heard to say after a number of years that the condition in the
order of approval is bad-in-law. It is submitted that since the petitioner
2208WP4647.13-Judgment 6/9
was appointed as an assistant teacher in the year 2007 in the
respondent No.6-college, the condition that the petitioner would not be
governed by the old pension scheme was rightly inserted in the order
dated 08/12/2008. It is stated that in the circumstances, the petition is
liable to be dismissed.
5. Shri Ghate, the learned counsel for the respondent Nos.5
and 6, has nothing much to say in the matter. It is however fairly stated
that the respondent Nos.5 and 6 would not mind if the relief is granted
in favour of the petitioner. It is stated that an appropriate order may be
passed in the circumstances of the case.
6. On hearing the learned counsel for the parties, it appears
that the relief sought by the petitioner needs to be granted. The
petitioner was appointed in a clear vacancy in R.S.Mundle Dharampeth
Arts and Commerce College on 06/06/1994, after following the due
procedure for selection. The services of the petitioner were confirmed
within a couple of years and the services were approved by the
education authorities. The petitioner was receiving the salary from
government exchequer while he was serving in R.S.Mundle Dharampeth
Arts and Commerce College from 06/06/1994. With due permission
from the management of the said college, the petitioner applied for the
post of assistant teacher, when an advertisement was issued by the
2208WP4647.13-Judgment 7/9
respondent Nos.5 and 6, as the petitioner had improved his
qualification and desired to be appointed as a teacher. The petitioner
was duly selected after following the due procedure of selection and
was appointed in the respondent No.6-college. There is no break in the
services of the petitioner, inasmuch as the petitioner resigned his job in
R.S.Mundle Dharampeth Arts and Commerce College on 30/11/2007
and joined the duties in the respondent No.6-college on 01/12/2007.
The said fact is fortified by the submissions made no behalf of the
respondent Nos.5 and 6. It is not in dispute that the services of the
petitioner as an assistant teacher were approved by the order of the
Joint Director of Vocational Education and Training, dated 08/12/2008.
It is surprising that though the services of the petitioner were
continuous from 06/06/1994 and the circular and the government
resolution could have been applied to the case of the petitioner, a
condition was inserted in the order of approval dated 08/12/2008 that
the Maharashtra Civil Services (Pension) Rules, 1982 would not be
applicable to the petitioner. We do not find any propriety in the action
on the part of the Joint Director of Vocational Education and Training
to insert the said condition in the approval order of the petitioner. The
case of the petitioner would be governed by the government circular
dated 12/01/2007 and the government resolution dated 01/12/2008.
We find that all the conditions that are required to be satisfied while
granting continuity to the services of an employee, who works in two
2208WP4647.13-Judgment 8/9
establishments stand satisfied in the case of the petitioner. The
petitioner was a permanent employee in R.S.Mundle Dharampeth Arts
and Commerce College since 06/06/1994 and without any break he
had joined the services in the respondent No.6-college on 01/12/2007,
after taking due permission from the management of R.S.Mundle
Dharampeth Arts and Commerce College before resigning and joining
the duties in the respondent No.6-college. It is worthwhile to note that
the petitioner received the salary from the government exchequer since
his initial appointment on 06/06/1994 in R.S.Mundle Dharampeth Arts
and Commerce College and continues to receive the salary from the
government exchequer while working in the respondent No.6-college.
We find that the fourth condition in the circular and the government
resolution would not be applicable to the case of the petitioner as there
is no break in the services of the petitioner. The other three conditions
that are required to be satisfied while seeking the continuity of services
stand satisfied in the case of the petitioner. It is also necessary to note
that since the year 1994, the petitioner was contributing towards the
general provident fund and the old pension scheme was also applicable
to the case of the petitioner. If that is so, the insertion of condition in
the order of approval dated 08/12/2008 would not be just and proper.
While holding so, we are not inclined to accept the submission made on
behalf of the respondent Nos.1 to 4 that since the petitioner had not
challenged the condition in the order of approval for long, the
2208WP4647.13-Judgment 9/9
petitioner would not be entitled to challenge the same. We find that the
petitioner has been making representations to the respondent Nos.1 to 4
for a long time. In the circumstances of the case, the petitioner would
be governed by the Maharashtra Civil Services (Pension) Rules as he
was appointed in the year 1994 in a permanent vacancy, after following
the due procedure for selection and without any break in service, with
the previous permission of the management of R.S.Mundle Dharampeth
Arts and Commerce College, the petitioner had joined the services in
respondent No.6-college and the services in R.S.Mundle Dharampeth
Arts and Commerce College and the respondent No.6-college are
approved by the education authorities and salary is paid to the
petitioner during all these years from the government exchequer.
6. Hence, for the reasons aforesaid, the writ petition is
allowed. It is hereby declared that the petitioner would be governed by
the Maharashtra Civil Services (Pension) Rules and the new Defined
Contributory Pension Scheme would not be applicable to the petitioner.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
