Bombay High Court
Abdul Salim Abdul Quaiyum vs State Of Mah., Through Its ... on 20 July, 2017
Bench: V.A. Naik
1 J-WP-620-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 620 OF 2015
Abdul Salim Abdul Quaiyum,
Aged : 43 years, Occu. Service,
R/o. Saiyma Colony, Paratwada,
Dist. Amravati. ..... PETITIONER
...V E R S U S...
1. The State of Maharashtra,
Through its Secretary,
Department of School Education
and Sports, Mantralaya,
Mumbai - 32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Primary),
Zilla Parishad, Amravati.
4. The Superintendent of Pay Unit
(Primary), Office of Education
Officer (Primary),
Zilla Parishad, Amravati.
5. Maharashtra Urdu Primary School,
through its Headmaster,
Mughal Area, Saiyma Colony,
Paratwada, Dist. Amravati. ... RESPONDENTS
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Shri B. G. Kulkarni, Advocate for the petitioner.
Mrs. Mrunal Naik, AGP for the respondent Nos.1, 2 and 4.
Shri P.A.Kadu, Advocate for the respondent No.3.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
20/07/2017.
2 J-WP-620-15.odt
ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)
By this writ petition, the petitioner seeks a declaration
that he is entitled to the benefit of the provisions of the Maharashtra
Civil Services (Pension) Rules, 1982 and the New Defined Contributory
Pension Scheme would not apply to the petitioner. Certain other
ancillary prayers are also made.
The petitioner was eligible for appointment as an
Assistant Teacher in the year 1998 and he was appointed on the said
post after following the due process of selection, on 26/06/1998. The
school in which the petitioner was appointed was receiving 100 %
grant-in-aid from the State Government and hence, the provisions of the
Maharashtra Civil Services (Pension) Rules were applicable to the
petitioner. While working as an Assistant Teacher in Jani Shaida Urdu
High School, Shirala, the petitioner decided to change his job and get
absorbed in the services of Maharashtra Urdu Primary School,
Paratwada. Hence, by securing the No Objection Certificate from the
school in which he was working, the petitioner joined the services in
Maharashtra Urdu Primary School without any break in his services.
The salary of the petitioner was appropriately fixed. The petitioner was
however informed by the respondents that since the classes - sections
for which the petitioner was appointed, were not brought on 100%
grant-in-aid, the petitioner would not be governed by the Maharashtra
3 J-WP-620-15.odt
Civil Services (Pension) Rules though his initial services till 25/01/2012
in Jani Shaida Urdu High School could have entitled the petitioner to
the benefit of the provisions of the Maharashtra Civil Services (Pension)
Rules. The action on the part of the respondents of not granting the
benefits of the Provisions of the Maharashtra Civil Services (Pension)
Rules is challenged by the petitioner in the instant petition.
Shri Kulkarni, the learned counsel for the petitioner
submitted that the school in which the petitioner was absorbed i.e. the
Maharashtra Urdu Primary School was receiving 100% grant-in-aid
from the State Government though the newly opened section for which
the petitioner was appointed was receiving only 80% grant-in-aid. It is
submitted that since the school was receiving 100% grant-in-aid, the
petitioner had thought of giving up his job in Jani Shaida Urdu High
School and joining the duties in Maharashtra Urdu Primary School. It is
stated that there is nothing in the Government Resolution dated 31 st
October, 2005 that could have dis-entitled the petitioner to the benefits
of the provisions of the Maharashtra Civil Services (Pension) Rules. It is
submitted that the petitioner is unnecessarily put to a great loss, as the
class - section for which the petitioner is appointed is receiving only
80% grant-in-aid though the school was brought on 100% grant-in-aid
by the State Government in 2009. It is submitted that the benefits that
were available to the petitioner in Jani Shaida Urdu High School from
26/06/1998 till 24/01/2012 are wiped off in view of his absorption in
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Maharashtra Urdu Primary School. It is stated that in the peculiar
circumstances of the case, it should be held that the petitioner would be
entitled to the benefit of the provisions of the Maharashtra Civil
Services (Pension) Rules. It is submitted that the petitioner cannot be
put to such a great loss as the petitioner bonafide believed while joining
the duties in Maharashtra Urdu Primary School that since the school
was brought on 100% grant-in-aid in 2009, his services in the said
school would be reckoned for pensionary benefits under the old Pension
Scheme, as per the Maharashtra Civil Services (Pension) Rules.
Mrs. Naik, the learned Assistant Government Pleader
appearing for the respondent Nos.1, 2 and 4 supported the action of the
respondents. It is submitted that though the petitioner was working in a
school that was receiving 100 % grant-in-aid from 26/06/1998 to
24/01/2012, the classes for which he was appointed on 25/01/2012 in
Maharashtra Urdu Primary School were not receiving 100% grant-in-aid
till June, 2013 though the Maharashtra Urdu Primary School was
brought on 100% grant-in-aid in the year 2009. It is stated that the
classes for which the petitioner was appointed in the Maharashtra Urdu
Primary School were newly opened and therefore at the relevant time,
when the petitioner joined the duties in Maharashtra Urdu Primary
School, the classes for which the petitioner was appointed were not
receiving 100% grant-in-aid. The learned Assistant Government Pleader
relied on the Government Resolution dated 4th April, 2012 to submit
5 J-WP-620-15.odt
that the grant-in-aid provided to a school would not be retrospective
and the order providing grant-in-aid would be prospective in nature.
The learned Assistant Government Pleader sought for the dismissal of
the writ petition.
Shri Kadu, the learned counsel for the Zilla Parishad
opposed the prayer made in the petition. It is submitted that if the
petitioner joined his duties in Maharashtra Urdu Primary School on
25/01/2012 to teach the classes that were brought on 80% grant-in-aid,
the petitioner should blame himself. It is stated that the petitioner was
not absorbed in Maharashtra Urdu Primary School but he was
appointed in the said school by following the due process of selection.
The learned counsel relied on the Government Resolution dated 4 th
April, 2012 to submit that even though the newly opened sections
would be entitled to receive grant-in-aid, they cannot have a right to be
brought on grant-in-aid. It is stated that the right to bring the classes or
sections on grant-in-aid could be exercised by the State Government
and if the classes or sections are brought on grant-in-aid, the order in
that regard would not be retrospective in nature. It is however not
disputed that the classes for which the petitioner was appointed on
25/01/2012 were receiving 80% grant-in-aid on 25/01/2012 and they
were brought on 100% grant-in-aid w.e.f. June, 2013. The learned
counsel sought for the dismissal of the writ petition.
6 J-WP-620-15.odt
It is not in dispute that the petitioner was working as an
Assistant Teacher in Jani Shaida Urdu High School from 26/06/1998
till 24/01/2012. It is also not in dispute that Jani Shaida Urdu High
School was receiving 100% grant-in-aid from the Government and
therefore, the petitioner was held to be entitled to the benefit of the
provisions of the Maharashtra Civil Services (Pension) Rules while he
was working in Jani Shaida Urdu High School. By taking permission
from the appropriate authority, the petitioner was appointed in
Maharashtra Urdu Primary School that was receiving 100 % grant-in-
aid. Only the classes for which the petitioner was appointed on
25/01/2012, were receiving 80% grant-in-aid at the relevant time.
Since the Maharashtra Urdu Primary School was brought on 100%
grant-in-aid in 2009, the petitioner believed that in view of the circular
dated 12/01/2007, his services in Jani Shaida Urdu High School would
be reckoned for computing the pensionary benefits under the provisions
of the Maharashtra Civil Services (Pension) Rules. The petitioner was
however informed by some of the respondents that the petitioner would
not be entitled to receive the pensionary benefits as per the
Maharashtra Civil Services (Pension) Rules as the classes for which he
was appointed in Maharashtra Urdu Primary School on 25/01/2012
were receiving 80% grant-in-aid at the relevant time and they were
brought on 100% grant-in-aid in June, 2013. The petitioner appears to
have been put to a great loss in view of the stand of the respondents
7 J-WP-620-15.odt
though the petitioner had rendered more than 14 years of service in the
school which was receiving 100% grant-in-aid and was also appointed
in the other school that was receiving 100% grant-in-aid, but
unfortunately the classes for which the petitioner was appointed were
receiving 80% grant-in-aid at the relevant time and had started
receiving 100% grant-in-aid in June, 2013. As per the circular of the
Government dated 12/01/2007, if an employee working in a school or
an institution that is governed by the provisions of the Maharashtra
Civil Services (Pension) Rules is appointed in another school or an
institution that is also governed by the Pension Rules, the said employee
would be entitled to the pensionary benefits by reckoning his services in
the previous school and the subsequent school or institution. The
petitioner was appointed in Maharashtra Urdu Primary School by
following the due process of selection. There is no break in the service,
as the petitioner gave up his job in Jani Shaida Urdu High School on
24/01/2012 and he was appointed in Maharashtra Urdu Primary
School on 25/01/2012. The petitioner had secured the permission of
the appropriate authority before seeking the appointment in
Maharashtra Urdu Primary School and the petitioner had completed
more than 14 years of service in Jani Shaida Urdu High School. The
petitioner was working in the school that was receiving 100% grant-in-
aid, from 26/06/1998 to 24/01/2012 and on believing that he would
be entitled to the pensionary benefits if he is appointed in Maharashtra
8 J-WP-620-15.odt
Urdu Primary School without any break in service as it was receiving
100% grant-in-aid from the Government, he sought his appointment in
the said school. The newly opened section was however receiving 80%
grant-in-aid on 25/01/2012. After one year of joining Maharashtra
Urdu Primary School, the section for which the petitioner was
appointed started receiving 100% grant-in-aid. This is a peculiar case
where it would be necessary to hold that the petitioner would be
entitled to the benefit of the provisions of the Maharashtra Civil
Services (Pension) Rules for the services rendered by him in Jani Shaida
Urdu High School as also the services in Maharashtra Urdu Primary
School. The school in which the petitioner was appointed - absorbed on
25/01/2012 was admittedly receiving 100% grant-in-aid though the
section for which the petitioner was appointed was receiving 80%
grant-in-aid. Since June, 2013, the section for which the petitioner was
appointed also started receiving 100% grant-in-aid. In the peculiar facts
and circumstances of the case, when the petitioner was appointed much
before the cut off date as per the Government Resolution dated 30 th
October, 2005 in Jani Shaida Urdu High School on 26/06/1998 that
was receiving 100% grant-in-aid till 24/01/2012 and the section for
which he was appointed in Maharashtra Urdu Primary School also
started receiving 100% grant-in-aid from June, 2013, it would be
necessary to ignore the small period i.e. from 25/01/2012 till May,
2013 when the section for which the petitioner was appointed in
9 J-WP-620-15.odt
Maharashtra Urdu Primary School was not receiving 100% grant-in-aid
though it was receiving 80% grant-in-aid during that short period also.
The facts of the case are very peculiar and hence, we are inclined to
grant the relief claimed by the petitioner. It would be necessary in the
circumstances of the case to hold that the petitioner would be governed
by the provisions of the Maharashtra Civil Services (Pension) Rules and
not by the New Defined Pension Scheme, as per the Government
Resolution dated 30th October, 2005.
Hence, for the reasons aforesaid, the writ petition is
allowed. It is hereby declared that the petitioner would be entitled to
the benefit of the provisions of the Maharashtra Civil Services (Pension)
Rules, 1982. Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Choulwar
