Shri. Ashok Dattatraya Marathe vs The State Of Maharashtra, Through ...
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Ladda 
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL  APPELLATE JURISDICTION

                              WRIT PETITION NO.906 of 2013.


    Shri Ashok Dattatraya Marathe
    Age 68 years, Occup.Pensioner,                         Petitioner. 
    residing at Radha Niwas, Dalvi 
    Wada, 954, Sadashiv Peth, Near
    Nagnathpar, Pune 411 030, 
    District Pune, Maharashtra

                             Versus.

    1)      The State of Maharashtra
            through: the Secretary, Department
            of Higher and Technical Education,
            Mantralaya, Mumbai 400 032.

    2)      The Director of Education
            (higher Education) State of Maharashtra
            Central Building,Pune 411 001.

    3)      The Deputy Secretary,
            Higher and Technical Education
            Mantralaya, Mumbai 400 032.

    4)      The Maharashtra Education Society,
            A Society duly registered under
            the Bombay Public Trust Act, 1950,
            having its office at Abasaheb Garware
            College, Karve Road, Pune 411 004.                      Respondents.

    5)      The Abasaheb Garware College
            through: its Principal, Abasaheb
            Garware College, Karve Road,
            Pune 411 004.


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                                     WITH
                       CIVIL APPLICATION NO. 463 OF 2017
                                      IN 
                         WRIT PETITION NO. 906 OF 2013

Ashok Dattatraya Marathe
since deceased by his heirs and legal
representatives. 

(1)     Smt.Aparna Ashok Marathe                             Applicants/
        Age adult, Occup. Household work                     Petitioners.
        r/at Radha Niwas, Dalvi Wada,
        954, Sadashiv Peth, Pune.

(2)     Mrs. Bhupali Keshav Joshi
        age adult, r/o at Madhukoshi Apartment, 
        Phase III, Building F, Flat No. 706,
        Sinhgad Road, Wadgaon Khurd,Pune 411 041.

(3)   Bhushan Ashok Marathe
      Age adult, 
      r/at Radha Niwas, Dalvi Wada,
      954, Sadashiv Peth, Pune.

                         Versus. 

1)      The State of Maharashtra,
        Through: the Secretary, Department
        of Higher and Technical Education,
        Mantralaya, Mumbai 400 032.                          Respondents.

2)      The Director of Education
        (higher Education) State of Maharashtra
        Central Building,Pune 411 001.

3)      The Deputy Secretary,
        Higher and Technical Education
        Mantralaya, Mumbai 400 032.


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4)      The Maharashtra Education Society,
        A Society duly registered under
        the Bombay Public Trust Act, 1950,
        having its office at Abasaheb Garware

College, Karve Road, Pune 411 004. Respondents.

5) The Abasaheb Garware College through: its Principal, Abasaheb Garware College, Karve Road, Pune 411 004.

Mr. Hushing Praveen Kashinath for the Petitioner. Mr. B.V. Samant, A.G.P. Respondent No. 1 to 3.

CORAM : S.C. DHARMADHIKARI & SMT.BHARATI H.DANGRE, J.J.

                               RESERVED ON           : 7 th
                                                            December,2017.
                                                                          
                               PRONOUNCED ON: 21st December,2017.


JUDGMENT (Per : Smt. Bharati H.Dangre,J).



1)               Rule. Respondents waive service. By consent, Rule is made 

returnable forthwith and the petition is taken up for hearing and final

disposal.

2) The petitioner, a superannuated employee of the State

Government has invoked the writ jurisdiction of this Court under Article

226 of the Constitution of India for counting his previous service

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rendered from 15/6/1967 to 31/7/1972 for the purposes of conferment

of pensionery benefits and is aggrieved by the action of respondent-State

Government in reckoning his service rendered from 15/6/1974 till date

of his superannuation i.e. 30/4/2003 totally to 28 years, 10 months and

16 days for the purpose of pension and it is the case of the petitioner,

that if the previous service rendered by the petitioner is counted for

pensionery benefits, his total pensionable service would be 35 years and

10 months which would ultimately make him eligible for "full pension"

considering his "full qualifying service".

The factual events in the present case are not in dispute and

in brief we would delve upon the chronology of the events resulting into

filing of the present writ petition:-

The petitioner was appointed as full time Demonstrator in

Zoology Department in the Abasaheb Garware College, Karve Road, Pune

i.e. respondent No.5 on 15/6/1967 on the basis of his qualification of

B.Sc. (Zoology) prescribed by Pune University. The appointment of the

petitioner was approved by the Competent Authority. While he was

functioning on the said post, the educational qualification for the post of

Demonstrator was enhanced to Post Graduate Degree. Pursuant to this

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development, Respondent No.5 continued appointment of the petitioner

as Demonstrator. The petitioner by letter dated 1/8/1972 was informed

that his services are continued as a Demonstrator but in a part time

capacity with effect from 1/8/1972 to 14/6/1973 on the half scale of

Rs.250-50-400. The consent of the petitioner was sought for such an

arrangement and it is an admitted fact that the petitioner accepted his

appointment as part time Demonstrator. The appointment in the said

capacity was continued for the year 1973-74.

3) The petitioner completed his M.Sc. Degree Course and

thereupon by order dated 20/6/1974 the petitioner was appointed as

temporary full time Demonstrator in Zoology in the college with effect

from 15/6/1974 to 14/6/1975 on Rs. 340/- per month in the pay scale

of Rs.250-15-400 along with other benefits. The petitioner was

thereafter upgraded as Lecturer by an order dated 7/10/1976 and he

was made a permanent Lecturer in the year 1976-77. The petitioner

applied for "Teacher Fellowship" in Pune University and he completed his

M. Phil in "A" Grade in the year 1988 from Pune University. The petitioner

continued to work as Lecturer in Respondent No.5 College till 30/4/2003

when he retired on attaining age of superannuation. The petitioner

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rendered unblemished service to respondent No.5 without any stigma

attached to him.

Prior to his superannuation, the petitioner preferred a

representation to the Joint Director, Higher Education, Pune Division

Pune, requesting him to condone the break in his service from

15/6/1967 to 31/7/1972 and the Deputy Director of Education Pune on

17/3/2003 recommended to the Director of Education that in view of

change in Educational Qualification for the post of Demonstrator, the

petitioner had persuaded his studies in M.Sc and he has rendered part

time service as demonstrator from 1/8/1972 to 14/6/1974. The Deputy

Director of Education Pune recommended to the Director of Education

that at the relevant time the "Teacher Fellowship" was not available.

However, a Circular issued by Pune University permitted the part time

service to be condoned and reference was made to Circular No. GRP/PG-

1104-1106 dated 14/8/1976. The Deputy Director further recommended

that the post of Demonstrator is now abolished. In this background, it

was recommended that the service rendered by the petitioner from

15/6/1967 to 31/7/1972, if counted for the purposes of pension, the

petitioner would be entitled for full qualifying pensionable service by

condoning the break in service. The said recommendation was however

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turned down by the Director of Education Pune vide his communication

dated 17/7/2003 by taking recourse to Government Resolution dated

15/5/1996 and informing that the part time service rendered by the

petitioner cannot be counted for pensionable service in full time capacity.

It was also further set out in the said communication that power for

condonation of break in service as a special case vests in State

Government and since it has been the policy of the State Government not

to condone the break in service for availing the benefit of more pension

the request of the petitioner was turned down.

On rejection of request made by the petitioner, on his

superannuation, his pension was fixed on the basis of his services

rendered from 15/6/1974 to 30/4/2003 i.e. full time service rendered by

him excluding the service rendered from 15/6/1967 to 31/7/1972 and

pay order was issued in favour of the petitioner on 30/4/2003 fixing his

pension at Rs.7857/- per month commencing from 1/5/2003 and his

retirement-cum-death gratuity of was released to the tune of

Rs.2,50,000/- and commuted value of his pension was also worked out.

4 The grievance of the petitioner in the present petition is

about non counting of his total service of 35 years and depriving him of

pensionable pay which would have accrued to him if his service was

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counted from 15/6/1967. The petitioner agitated his grievance through

various repeated representations and on one occasion even approached

this Court by filing a writ petition which was decided by this Court on

5/12/2011 by issuing directions to the petitioner to make representation

to the Deputy Secretary, Higher and Technical Education Department

who was directed to consider the request after affording opportunity to

the petitioner and by passing a speaking order within a period of six

weeks from the date of said representation. In terms of the directions

issued by this Court, the petitioner preferred a representation raising his

grievance and also prayed for direction for arrears along with interest @

18% from the date of his superannuation. The respondent-State

authorities after affording necessary opportunity to the petitioner,

decided the representation by passing order on 6/7/2012. By the said

order, it was informed to the petitioner that his representation has been

rejected since there is no break in his service and, therefore, no question

arises of condoning the same.

In order to obtain redressal of his grievance, the petitioner

has invoked the writ jurisdiction of this Court by filing the present writ

petition.

5) This Court was pleased to issue notice on the said writ

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petition on 28/2/2013. In response to the writ petition, respondent

No.1 to 3 through the Joint Director of Higher Education, Pune Region

Pune has filed an affidavit before this Court on 5/8/2013. In the said

affidavit, it is stated that the petitioner has attained age of

superannuation on 30/4/2003 and from 15/6/1967 to 31/7/1972 i.e. 5

years, 1 month and 7 days as per Section 48 (c) of the Maharashtra Civil

Services Rules, 1984 for grant of pensionery benefits. It is stated that the

said request cannot be considered since the petitioner had rendered his

service as part time Demonstrator from 1/8/1972 to 14/6/1974 i.e.

period of 1 year, 10 months and 14 days and the service rendered by him

on part time basis is not to be considered for retirement and pensionery

benefits as per the existing rule and thus the previous service of 5 years,

1 month and 17 days is also not to be considered in retirement and

pensionery benefits. The subsequent affidavit has also been placed on

record. Along with affidavit, the respondents have also placed on record

the noting of the Department which reflects the reasoning as to why the

grievance of the petitioner is not fit for consideration. Further, the

respondents have also placed reliance on the Government Resolution

dated 15/5/1996 clarifying the policy of the State Government on

counting of part time service rendered between two full time services for

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the purposes of pensionery benefits.

6) We have heard Advocate Shri Praveen Hushing for the

petitioner and Mr. Samant, AGP representing the State Authorities and

with their able assistance, we have perused the writ petition and the

documents, so also the affidavits and documents placed on record on

behalf of the Respondents. It is not in dispute that the petitioner was

recruited as Demonstrator and at that time he was possessing degree in

B.Sc. (Zoology) and commensurate with his qualification he was

appointed as temporary Full Time Demonstrator in the pay scale of

Rs.100-5-150-EB-10-200 with ancillary benefits. The appointment order

issued to the petitioner on 31/5/1967 was for a period from 15/6/1967

to 14/6/1968 and was subsequently extended, in the capacity as

temporary Demonstrator for the year 1970-71 in the pay scale of Rs.250-

15-400. The petitioner was desirous of improving his qualification for the

post of Demonstrator since the prescribed qualification for the post of

Demonstrator being a Post Graduate Degree, the petitioner preferred to

persuade his studies and his continuation in the existing post of

Demonstrator was made conditional on him obtaining M.Sc. Degree. In

these peculiar circumstances, the petitioner's services were continued as

part time Demonstrator but he was shifted in the category of "part time

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demonstrator" for the year 1973-74. On his acquiring M.Sc. Degree, the

services of the petitioner were again restored to temporary full time

Demonstrator in Zoology with effect from 15/6/1974. The petitioner

was further upgraded as Lecturer in the same college from where he

retired on age of superannuation on 30/4/2003.

The service career of the petitioner can be classified into

three phases, first phase being from 15/6/1967 to 31/7/1972 when the

petitioner was working as full time Demonstrator in Zoology Department

of Respondent No.5 college - period 5 years, 1 month and 17 days. The

second phase being from 1/8/1972 to 14/6/1974 i.e. period of 1 year, 10

months and 14 days when the petitioner rendered his service as part time

demonstrator in respondent no.5 college since he was also prosecuting

his studies for post graduation in M.Sc. The third phase being from

15/6/1974 to 30/4/2003 i.e. period of 28 years, ten months and six days

when he rendered his services to respondent no.5 in the capacity as full

time Lecturer and the period which qualified him for regular pension.

The grievance of the petitioner is for counting the first two

phase of his service in continuation of his third phase of service and to

draw his pension by counting his total service of 35 years. In the

alternative the petitioner has prayed that if the petitioner would have

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been continued in service from 1/7/1972 to 14/6/1974, i.e. period of 1

year, 10 months and 14 days cannot be counted being part time service,

there is no reason why his service from 15/6/1967 to 31/7/1972 i.e. five

years ten months and 17 days cannot be counted and attached to the

third phase of service.

The Government has placed reliance on Resolution dated

15/5/1996. The Government was conscious of difficulties faced while

applying the pension scheme to the employees working in various Non

Agriculture Universities and affiliated colleges in full time capacity to

whom the pension scheme was made applicable from 1/10/1982. The

State Government was not oblivious to the fact that in such Universities

and affiliated colleges, the strength of lecturers is dependent on the work

load available and whenever the full work load is available a post of full

time lecturer gets approval. However, on account of some contingency if

there is decline in number of students, sections/classes, such full time

post call for conversion to part time post of lecturer and whenever the

desired strength is attained, they are again entitled for conversion in full

time capacity. The State Government noted that in such contingency

where the period of full time service is intervened by period of part time

service, it is not counted for the purposes of pension. Resultantly, the

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Lecturer cannot be deprived of benefits of pension scheme and the State

Government was therefore working out of modalities so that such

lecturer is not put to inconvenience. In this backdrop, the Government

issued Resolution on 15/5/96, thereby permitting the part time service

intervening between two full time services to be counted for the purposes

of pension subject to two conditions namely the contingency of part time

service is created on account of reduction in number of class/sections

and the part time service period would not be as qualifying service for

the purposes of pension.

It is the stand of the State Government that in the second

phase of the service of the petitioner i.e. from 1/8/1972 to 14/6/1974

the petitioner worked as part time Demonstrator and duration of service

rendered by him is 1 year 10 months and 14 days. The State Government

heavily relies on the Resolution mentioned above to contend that the

petitioner does not fulfill the conditions conferred in the Government

Resolution dated 15/5/1996. It is the stand of the State Government

that the part time service rendered by a Lecturer between two full time

tenures can be counted for pension but it is conditional that the part time

service is required to be rendered on account of fall in number of

classes / divisions. The another stipulation in the Government Resolution

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is that part time service period is not eligible to be counted as qualifying

service for the purpose of pension. By applying two stipulations in the

Government Resolution, the State Government do not consider the

petitioner to be entitled for consideration of his previous service of five

years, one month and 18 days to be adjuncted to his pensionable pay

service rendered from 15/6/1974 to 30/4/2003. Perusal of the

Government note which has been placed on record along with the

affidavit on behalf of the State Government sets out that for the purposes

of pensionery benefits, the service rendered by teaching/non-teaching

staff of Non-Government Aided College in the Full Time capacity on the

approved post is to be considered and the service rendered as part time

employee is not to be counted for the purposes of pensionery benefits.

The note further sets out that the service rendered by the petitioner from

1/8/1972 to 14/6/1974 is not break in service but it is a part time

service and in order to count the service rendered preceding the part

time service and attaching it to subsequent full time service, two

stipulations are required to be complied with. However, as far as the

petitioner is concerned, the petitioner was working on the post of

demonstrator and was required to obtain a M.Sc. Degree and while

prosecuting his studies for the said course he was allowed by the college

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in which he was to work on part time basis and thus the nature of service

had undergone a conversion from full time to part time and the said

period cannot be construed as break in service. The note also further

mentions that if in order to obtain a decree in M. Sc., he would have

been required to step out of his service, it would have been amounted to

a break in service. However, in the case of the petitioner and as he has

rendered part time service which is not entitled to be counted as

pensionable service.

We do not find reasoning adopted by the respondent to be

either perverse or arbitrary. The petitioner was rather obliged by the

respondent No.5 college when he decided to prosecute his degree in

M.Sc., which was an essential qualification for the post of Demonstrator

on which the petitioner was working and the college appointed him as a

part time demonstrator so as to enable him to prosecute his studies. On

completion of M.Sc. Curriculum he was again appointed as a full time

Demonstrator with effect from 15/6/74. The petitioner could have been

removed from the post of Demonstrator in the absence of holding the

requisite qualification but the petitioner has been saved of such extreme

situation by retaining him in service as part time Demonstrator with the

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existing qualification which he possessed subject to the undertaking that

he would acquire the desired qualification prescribed for the post of

Demonstrator. In any event, the petitioner has not been put to any loss as

he rendered his services till the age of superannuation i.e. 30/4/2003

and he has rendered pensionable service of 28 years 10 months and 6

days and his pension has been fixed on the basis of said period of service.

The petitioner also obtained other benefits including increments through

out his service tenure and barring slight reduction in the portion of

amount of pension to which he would have been eligible if it would have

been a full qualifying service of 35 years, no loss has been caused to the

petitioner. It is not the case that the petitioner has been deprived of his

pensionary benefits because his past service has not been counted. The

petitioner has retired on superannuation in the year 2003 and since then

is regularly availing the pension based on the service rendered by him as

a full time lecturer in respondent no.5 college.

7) In such circumstances, we do not feel that any grave

injustice has been caused to the petitioner and since it is the policy of the

State which does not make him entitled to consider his part time service

for the purposes of pensionary benefits thereby depriving him of such

service being added to the qualifying service which he has rendered. That

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does not infringe his legal right and therefore we decline to interfere with

the impugned order. We are not in a position to redress grievance of the

petitioner in exercise of our extraordinary jurisdiction. The writ petition

is dismissed. No order as to costs.

8) In view of dismissal of writ petition, civil application does

not survive and same is also dismissed being infructuous.

[SMT.BHARATI H.DANGRE, J.] [S.C. DHARMADHIKARI, J.]

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