Narayan S/O Gomaji Wankar vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 8757 Bom

                                            1                                      jg.wp 3400.11.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                      NAGPUR BENCH, NAGPUR.

                          Writ Petition No. 3400 of 2011

Petitioner :                                Narayan Son of Gomaji Wankar,
                                             Aged about 65 years Occu : Pensioner,
                                             R/o. Ward No. 2, Post : Hingna, 
                                             District : Nagpur. 

                                               //  Versus //

Respondents :-                        (1)  The State of Maharashtra,
                                             through its Secretary, 
                                             Rural Development Department, 
                                             Mantralaya, Mumbai-400032. 

                                      (2)  The Divisional Commissioner, 
                                             Nagpur Division, Nagpur-440001. 

                                             (3)  The Zilla Parishad, Nagpur, through its 
                                                    Chief Executive Officer, Zilla Parishad, 
                                                    Civil Lines, Nagpur-440001.  

Shri S. K. Verma, Advocate for the petitioner
Shri M. K. Pathan, Assistant Government Pleader for the respondent   
nos. 1 and 2
Shri Shaikh Majid, Advocate for the respondent no. 3

                                        CORAM      :  R. K. DESHPANDE AND
                                                        M. G. GIRATKAR, JJ.

DATE : 16-11-2017.

ORAL JUDGMENT (Per : R. K. DESHPANDE, J.)

Heard learned counsel appearing for the parties on merits of

the matter.

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2 jg.wp 3400.11.odt

2. The petitioner was appointed initially on 5-4-1971 as a

Chowkidar to work in the services of Zilla Parishad. He continued to

work on the said post till 10-8-1983 i.e. for about 13 years and was

thereafter promoted to the post of Attendant Grade-I. The petitioner

ultimately retired on attaining age of superannuation of 58 years from

the post of Junior Assistant with effect from 31-10-2004.

3. For the purpose of fixation of pension, one-half of his service

rendered by the petitioner from 5-4-1971 to 10-8-1983 was taken into

consideration by invoking the provisions of Note 1 of Rule 57 of the

Maharashtra Civil Services (Pension) Rules, 1982 (referred to as 'the

Pension Rules'). This is the grievance made in the petition. According to

the petitioner, entire service rendered by him from 5-4-1971 to

10-8-1983 was required to be taken into consideration in terms of Rule

30 of the Pension Rules.

4. The controversy involved is very short and if we find that the

case of the petitioner is covered by note 1 below Rule 57 of the Pension

Rules, then we will have to dismiss the petition. If we hold that the case

of the petitioner is not covered by provision of the Pension Rules, then

we will have to allow the petition.

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3 jg.wp 3400.11.odt

5. Rule 57 of the Pension Rules is relevant and is reproduced

below.

57. Non-Pensionable service.

As exceptions to rule 30, the following are not in pensionable service :-

(a) government servants who are paid for work done for Government but whose whole time is not retained for the public service,

(b) Government servants who are not in receipt of pay but are remunerated by honoraria,

(c) Government servants who are paid from contingencies,

(d) Government servants holding posts which have been declared by the authority which created them to be non- pensionable,

(e) Holders of all tenure posts in the Medical Department, whether private practice is allowed to them or not, when they do not have an active or suspended lien on any other permanent post under Government.

Note 1 - In cases of employees paid from contingencies who are subsequently brought on a regular pensionable establishment by conversion of their posts, one-half of their previous continuous service shall be allowed to count for pension.

Note 2 - In the case of persons who were holding the posts of Attendants prior to 1st. April 1966, one-half of their previous continuous service as Attendants, shall be allowed to count for pension.

The claim of the petitioner is that his case is covered by Rule 30

and hence the entire service rendered by him from 5-4-1971 to

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4 jg.wp 3400.11.odt

10-8-1983 was required to be counted for the purposes of pension.

Rule 57 is an exception to it. In terms of Note 1 below Rule 57, in case

of employees paid from contingencies who are subsequently brought on

a regular pensionable establishment by conversion of their posts, one-half

of their previous continuous service shall be allowed to count for pension.

The respondents have relied upon the copy of the order of appointment

dated 29-3-1971 and the service book extract of the petitioner.

6. We have gone through the order of appointment of the

petitioner issued on 29-3-1971. This is a common order appointing 54

employees on the establishment of Zilla Parishad. It states that the

candidates named therein are appointed in contractual service, but shall

work as Full Time Chowkidar on temporary (provisional) basis until

further orders and they shall be entitled to fix pay of Rs. 90/- per month.

In response to this order, the petitioner is joined the service on

5-4-1971 and he worked as such for period of 13 years up to 10-8-1983.

We have also seen the service book extract which is produced before us

by the Zilla Parishad in which the petitioner is described as 'Sadil

Karmachari' and the nature of appointment shown is temporary. We

have also seen the amended reply filed by the respondents in which they

have stated that the petitioner was paid fixed amount of Rs. 90/- from

contingency funds.

.....5/-

5 jg.wp 3400.11.odt

7. We put a specific question to the learned counsel for the

respondent - Zilla Parishad as to whether any record is available to show

that the petitioner was paid from contingency funds, the fixed amount of

Rs. 90/- per month for a period of 13 years continuously from 5-4-1971

to 10-8-1983, however, the learned counsel makes a statement that the

record is not available now. In view of this, we cannot rely upon such a

statement made in the affidavit which is supported by solemn affirmation

stating that the information is derived from the record.

8. Though, the order of appointment shows that the

appointment is under the service contract, it mentions that it is purely

on temporary basis and we fail to understand as to how the appointment

on contract basis for 13 years can be kept going on and paid from the

contingency funds. The service book extract shows that the appointment

is on temporary basis and it also records that the petitioner was

promoted to the post of Attendant Grade-I on 10-8-1983. We are

therefore of the view that two things are not satisfied to cover the case of

the petitioner by Note-1 under Rule 57 of the Pension Rules, i.e.

(1) the petitioner was paid from contingency funds the fixed

amount of Rs. 90/- per month for a period from 5-4-1971 to

10-8-1983, and

.....6/-

6 jg.wp 3400.11.odt

(2) that the petitioner was brought on regular pensionable

establishment by conversion of post on which he was appointed.

According to us, the petitioner was promoted to the higher post and not

by converting the post of Chowkidar. In our view, therefore, the stand

taken by the respondents is not substantiated.

9. In the result, writ petition is allowed. The order dated

30-10-2004 passed by the respondent no. 3 counting half of the service

rendered by the petitioner from 5-4-1971 to 10-8-1983 for the purpose of

pension is hereby quashed and set aside.

10. The respondents are directed to take into consideration the

full service rendered by the petitioner for the period from 5-4-1971 to

10-8-1983 and accordingly fix the pension and pay the arrears to the

petitioner within a period of three months from the date of receipt of

copy of this judgment. No costs.

                       JUDGE                                      JUDGE


wasnik




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