Bombay High Court
Venkat Mahadji More And Others vs The State Of Maharashtra And ... on 5 May, 2017
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 8911 OF 2015
1] Venkat Mahadji More,
2] Bhaskar Nagnath Madewar,
3] Dyanand Ramrao More,
4] Shivanand Chilbarao Jadhav,
5] Pandurang Laxman Bainwad,
6] Vishwanath Parashuram Pahukar,
7] Smt. Pratibha Govindrao Mugutkar,
8] Nandkishore Ganapati Rajemod,
9] Nagorao Laxman Darshane,
10] Pandit Jaywantrao Patil,
11] Bhagvan Vithal Dhepe
All age major,
All occ. Service in
SC Ashram School
A/p Mughat, Tq.Mudkhed,
District Nanded ...Petitioners
VERSUS
1] The State of Maharashtra,
through the Chief Secretary
to Government of Maharashtra,
Mantralaya, Mumbai,
2] The State of Maharashtra
through the Secretary,
Social Welfare and Community
Development Department,
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Government of Maharashtra,
Mantralaya, Mumbai,
3] The Director, Social Welfare,
Department, Pune ...Respondents
WRIT PETITION NO. 3897 OF 2011
1] Balaji s/o Nagorao Chandankar,
age 30 years, occ. Asstt. Teacher,
R/o Mugat, Tq. Mudkhed,
District Nanded. ... Petitioners
VERSUS
1] The State of Maharashtra,
through the Chief Secretary,
Mantralaya, Mumbai,
2] The Secretary
Social Welfare Department,
Mantralaya, Mumbai,
3] Principal Secretary,
General Administration Department,
Social Justice Cultural Affairs and
Special Assistance Department,
Mantralaya, Mumbai,
4] The Director,
Social Welfare Department, Pune
5] Regional Provident Fund
Commissioner for Marathwada
Region, N-5, CIDCO, Aurangabad,
6] Social Welfare Officer,
Group A, Class I,
Zilla Parishad, Nanded,
7] President, Sant Rohidas
Seva Samiti Kinwat,
Tq. And Dist. Nanded. ...Respondents
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WRIT PETITION NO. 4825 OF 2014
1] Scheduled Caste Ashram Schools
Shikshak -Shikshaketar Karmachari
Sanghtana, Maharashtra
(Duly Registered),
through its President,
Shri Dayanand Ramrao More,
age 43 years, occ. Service,
R/o 55, Deepkunj,
Deepaknagar, Taroda (Bk),
Nanded,
2] Shri Dayanand Ramrao More,
age 43 years, occ. Servicer,
R/o 55, Deepkunj, Deepaknagar,
Taroda (Bk.), Nanded ...Petitioners
VERSUS
1] The State of Maharashtra,
through the Chief Secretary
to Government of Maharashtra,
Mantralaya, Mumbai-32,
2] The State of Maharashtra
through the Secretary,
Social Welfare and Community
Development Department,
Government of Maharashtra,
Mantralaya, Mumbai,
3] The State of Maharashtra,
Through the Secretary,
Finance (Expenditure),
Government of Maharashtra,
Mantralaya, Mumbai - 32. ...Respondents
.....
Mr. R.R.Mantri, advocate in Wps 8911/2015 and
4825/2014
and
Mr. S.R.Choukidar, advocate in WP 3897/2011
for the petitioners.
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Mr. Y.G.Gujarathi, A.G.P. for resp. nos. 1 to 3.
Mr. K.B.Chaudhari, advocate for respondent no.5 in
Writ Petition No. 3897 of 2011
Mr. S.B.Pulkundwar, advocate for respondent no. 6
in Writ Petition No. 3897 of 2011
Mrs. M.A.Deshpande, advocate for respondent no. 6
in Writ Petition No. 4825 of 2014
.....
CORAM : S.V.GANGAPURWALA & K.L.WADANE,JJ.
DATE OF RESERVING
THE JUDGMENT : 02.3.2017
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 5.2017
JUDGMENT (Per K.L.Wadane, J.)
Rule. Rule is made returnable forthwith.
Since the issue involved in the above referred
Writ Petitions is identical, therefore, those
Petitions are heard together finally at the
admission stage.
2. Since the main contention of the
petitioners in all the petitions is similar,
therefore, the brief facts in Writ Petition No.
8911 of 2015 are taken into consideration which
are as follows :-
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The petitioners are the employees of
Ashram School of Scheduled Caste. Though the
Ashram School for the Scheduled Caste is started
since 1995, in spite of several representations,
the State did not apply the General Provident Fund
Rules 1998 to them, though it applied for the
Ashram Schools of Vimukta Jati and Nomadic Tribes.
Both the Schools are run with the same object,
rules and procedure.
Some of the petitioners in the above Writ
Petitions have filed Writ Petition No. 3893 of
2011 to 3896 of 2011 in this Court for extending
the benefit of applicability of the Maharashtra
General Provident Fund Rules, 1998 and Pension
Scheme 1977. During the pendency of those
petitions, it was stated that the matter is
pending before the Hon'ble Minister. Therefore,
this Court by its common order dated 14.8.2014
expected the State Government to take the decision
about the applicability of the said General
Provident Fund Rules and Pension Scheme. The
Secretary of respondent no.1, however, by
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communication, dated 2.3.2015 has refused to
extend the benefit of applicability of the General
Provident Fund Rules and Pension Scheme.
Therefore, these Writ Petitions.
3. The petitioners prayed in this Writ
Petition as follows : -
" (B) Issue a writ of mandamus or any other
appropriate order directing the respondents to
make the Maharashtra General Provident Fund Rules
1998 applicable to the services of the petitioner
and give Distinct Account Number to each of the
petitioner.
(C) Issue similar writ and direct the
respondents to make Pension Scheme 1977 applicable
to all the pre-2005 appointees in the Ashram
Schools for SC in the State of Maharashtra.
(D) Issue a writ of certiorari or any other
appropriate writ, order or direction and quash and
set aside the communication dt. 2.3.2015,
Annexure-A, issued by the Upper Secretary, State
of Maharashtra Social Justice and Special
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Assistance, Mantralaya, Mumbai. "
4. It is contended that the above mentioned
communication does not show that the decision has
been taken by the Government or the respondent as
per the order of this Court passed in group of
Writ Petitions. The concerned Secretary by
reproducing the earlier instances by other
Departments and on the vague grounds rejected the
request of the petitioners without authority of
law and against the principles of natural justice.
It is further contended that, in fact, the
communication does not show that the State
Government, as such, has taken the decision to
apply the said scheme. It is further contended
that the applicability or non-applicability of
pension has no concern nor it is a criteria to
make the Provident Fund scheme applicable. It is
contended that, it is the employees who will be
contributing and getting the amount with interest
at the fag end of their service, of course, small
part can be taken as loan or non-refundable for
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specific purpose even before end of service.
There is no question of change in circumstance
about pension and Provident Fund position and
surely not in case of employees pre-2005
appointments. The State is bound to provide equal
service conditions for equally situated and
employed persons as provided for Vimukta Jati and
Nomadic Tribes. The discrimination, as done, is
arbitrary. The communication dated 2.3.2015 is
thus illegal, arbitrary and against the principles
of natural justice. Therefore, same needs to be
quashed and set aside.
5. Affidavit-in-reply is filed on behalf of
the respondents by one Sunil Nagesh Khamitkar, the
District Social Welfare Officer, Zilla Parishad,
Nanded and it is contended that as per the common
order passed by this Court on 14.8.2014 in Writ
Petition No. 3893 of 2011 including the group of
petitions, the Government has taken decision in
the coordination of the General Administration
Department as well as the Finance Department. The
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detailed information of the decision has been
communicated to the petitioners by the Government
vide letter dated 2.3.2015, which is already
submitted by the petitioners with this Petition.
The General Administration Department has given
its opinion, wherein it is stated that the
Maharashtra General Provident Fund Rules 1998
would be made applicable to those employees to
whom Pension Scheme is applicable. To the
employees to whom Pension Scheme is not
applicable, the Maharashtra General Provident
Funds Rules, 1998 are not applicable to them.
6. It is further contended that revised rules
for the Scheduled Caste Ashram Schools have been
formed on 29.5.1999. It is not provided anywhere
in these Rules that the the General Provident Fund
Rules and Pension Scheme is applicable to the
teaching and non-teaching staff of the Scheduled
Caste Primary Ashram Schools. Hence, benefit of
Provident Fund Rules and Pension Scheme is not
granted to the petitioners. It is further
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contended that the proposal for applicability of
of the the General Provident Fund Rules and
Pension Scheme to the teaching and non-teaching
staff of the Scheduled Caste Primary Ashram
Schools was frequently presented to the Finance
Department, however, it is informed by the Finance
Department that considering the change in
implementation of scheme of General Provident
Fund and Pension Plans, the proposal for
application of the scheme of General Provident
Fund and Pension plan to the teaching and non-
teaching staff of the Scheduled Caste Primary
Ashram Schools cannot be accepted. Therefore,
the respondents lastly prayed to dismiss the Writ
Petitions.
7. We have heard Mr. R.R.Mantri, learned
counsel in Writ Petitions nos. 8911 of 2015 and
4825 of 2014 and Mr. S.R.Choukidar, learned
counsel in Writ Petition No. 3897 of 2011 for the
petitioners, Mr. Y.G.Gujarathi, A.G.P. for
respondent nos. 1 to 3, Mr. K.B.Chaudhari,
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advocate for respondent no.5 in Writ Petition No.
3897 of 2011 and Mr. S.B.Pulkundwar, advocate for
respondent no. 6 in Writ Petition No. 3897 of
2011, and Mrs. M.A.Deshpande, advocate for
respondent no. 6 in Writ Petition No. 4925 of
2014.
8. Learned counsel for the petitioners argued
that the General Provident Fund Rules and Pension
Scheme are applicable to the employees of Ashram
Schools belonging to Vimukta Jati and Nomadic
Tribes, which is governed under the same Rules.
Therefore, the employees of Scheduled Caste Ashram
Schools are similarly situated, therefore, the
State cannot discriminate amongst the employees of
Ashram Schools of Vimukta Jati and Nomadic Tribes
and the employees of Ashram Schools of Scheduled
Caste. The Rules and Regulations applicable to
the Ashram Schools of Vimukta Jati and Nomadic
Tribe are made applicable to the employees of
Ashram Schools of Scheduled Caste. It is argued
on behalf of the respondents that the Government
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has also taken a decision to apply the Defined
Contributory Pension Scheme to the employees who
are appointed on or after 1.11.2005 as per the
Government Resolution dated 9.11.2012. The
Provident Fund Scheme is discontinued in the year
2005 and it is replaced by Defined Contributory
Pension Scheme 2005. Due to the change in policy,
the proposal of the petitioners could not be
accepted.
9. We have perused the record. From the
contents of the affidavit submitted on behalf of
the respondents as well as impugned order dated
2.3.2015, it reveals that the respondents
frequently submitted the proposals to the Finance
Department for applicability of the Provident Fund
Rules and Pension scheme, however, the Finance
Department rejected such proposals on the ground
that there is change in circumstances in regard to
the Provident Fund Rules and Pension scheme.
Thus, from the record, it is seen that the
Social Welfare Department has recommended to the
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Finance Department for implementation of the
Provident Fund Rules and Pension scheme to the
employees of Scheduled Caste Ashram Schools.
10. The learned A.G.P. appearing for the
respondents has relied upon the observations in
the judgment Hon'ble Apes Court in the case of
State of Himachal Pradesh and Others vs Rajesh
Chander Sood and Others, reported in (2016) 10 SCC
77, wherein it is observed that the Government
cannot be obliged to bear financial burden of
non-viable Pension Scheme, introduced not as
employer but as welfare measure for employees of
Government-controlled corporate bodies as self-
financing scheme.
11. It is material to mention here that when
the earlier Writ Petitions in this behalf were
decided by this Court, at that time it was
submitted on behalf of the respondents that the
discussion is in progress for bringing the Primary
Ashram Schools for Scheduled Caste also on
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non-plan scheme and the matter is pending with the
Hon'ble Minister. However, no such decision by
the Hon'ble Minister is on record nor it has been
communicated to the petitioners. Therefore, the
observations of this Court in the order dated
14.8.2014 in Writ Petition No. 3893 of 2011 and
others are relevant, which read as under : -
"7) It is for the State to take
decision expeditiously on the same.
When the process has been almost
completed and the matter is now with
the Hon'ble Minister, there should be
no impediment for the respondent -
State to take decision on the same
considering the fact that it concerns
all the employees of the Primary
Ashram Schools for scheduled caste.
8) In the light of above, we hope
and trust that the respondents shall
take decision on the aspect about
applicability or otherwise of the
provient fund scheme under the
Maharashtra Provident Fund Rules, 1977
to the employees of the Primary Ashram
Schools for scheduled caste
expeditiously and preferably within a
period of six months from today. The
Writ Petitions are accordingly
disposed of. No order as to costs. "
Looking to the above observations of this
Court, it appears that the respondents have not
taken decision as per the directions of this Court
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mentioned above.
12. No doubt to apply Pension Scheme or
Provident Fund Rules is within the realm of the
policy decision of the State. In earlier Writ
Petitions it was submitted by the State that
matter is under consideration with the Hon'ble
Minister but on perusal of impugned communication
it nowhere transpires that it was considered by
Hon'ble Minister. It was expected that the matter
be considered by the Department in consultation
with the Hon'ble Minister.
13. In the circumstances, we dispose of the
above Writ Petitions with direction to the
respondents to reconsider the reliefs claimed by
the petitioners in these petitions in consultation
with the Hon'ble Minister, in accordance with law,
as expeditiously as possible and preferably within
a period of six months from today.
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14. Rule is accordingly made absolute. No
order as to costs.
(K.L.WADANE) (S.V.GANGAPURWALA)
JUDGE JUDGE
dbm/wp8911.15
