Anil Dnyandeo Sarode And Anr vs The State Of Maharashtra And Ors
2017 Latest Caselaw 9018 Bom

                                                      Writ Petition No.1049/2010
                                      (( 1 ))


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        WRIT PETITION NO.1049 OF 2010


 1.       Anil s/o Dnyandeo Sarode,
          Age 38 years, Occ. Service,
          R/o Kinhi, Taluka Bhusawal,
          District Jalgaon.

 2.       Subhash s/o Kadu Zope,
          Age 41 years, Occ. Service,
          R/o Zope Wada, Varangaon,
          Tq. Bhusawal, District Jalgaon        ...      PETITIONERS

          VERSUS

 1.       The State of Maharashtra
          through Secretary,
          Primary Education Department,
          Mantralaya, Mumbai - 32

 2.       The Director of Education,
          Maharashtra State,
          Central Building, Pune

 3.       The Deputy Director of Education,
          Nashik Region, Nashik

 4.       The Education Officer (Primary),
          Zilla Parishad, Jalgaon.

 5.       The Secretary,
          Leva Samaj Yuwa Seva Mandal,
          Varangaon, Tq. Bhusawal,
          District Jalgaon.

 6.       The Head Master,
          Navin Prathamik Shala,
          Now C.H. Bade Prathamik Vidyamandir,
          Varangaon, Tq. Bhusawal,
          District Jalgaon.          ... RESPONDENTS




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                                                    Writ Petition No.1049/2010
                                    (( 2 ))


                               .....
 Shri B.R. Warma, Advocate for petitioners
 Mrs. M.A. Deshpande, Addl. G.P. for respondents N.1 to 3
 Shri M.K. Goyanka, Advocate for respondent No.4
                               .....


                                CORAM:    RAVINDRA .V. GHUGE AND
                                          SUNIL K. KOTWAL, JJ.

                  Date of reserving judgment : 1st November, 2017
                  Date of pronouncing judgment : 24th November, 2017


 JUDGMENT (PER SUNIL K. KOTWAL, J.):

1. By filing this petition under Article 226 of the

Constitution of India, the petitioners have sought the following

substantial reliefs :

(A) By issuing writ of mandamus for appropriate writ or directions or orders in the like nature the respondent No.3 and 4 be directed to consider the claim of approval to the appointment of petitioners with effect from July 1999 or on the date of completion of strength of students at 500 or from the date of first proposal seeking approval and modify the existing order granting approval dated 24/12/2004 and 4/7/2007.

(B) By issuing writ of mandamus for appropriate writ or directions or orders in the like nature the respondent No.3 and 4 be directed to make applicable Pension Scheme on the basis of appointment of the petitioners made and approved

Writ Petition No.1049/2010 (( 3 ))

before 2005 by quashing the letter dated 29/3/2008 issued by respondent No.4.

(C) By issuing writ of mandamus for appropriate writ or directions or orders in the like nature the respondent No.3 and 4 be directed to pay salary differences from July 1999 to 31/5/2004 and award all consequential service benefits.

2. The Government of Maharashtra under various

Government Resolutions has made applicable the provisions

contained in the Maharashtra Civil Services (Pension) Rules to

the full time teachers and non-teaching staff in the non-

Government/ private aided schools. The last of such Pension

Scheme was framed under the Maharashtra Civil Services

(Pension) Rules, 1982. The Union of India vide Notification

issued by its Finance Department dated 22.12.2003 has made

applicable the Defined Contributory Pension Scheme (for

short, the "DCP Scheme") to the employees who are

appointed on or after 1.1.2005. The Union of India has also

appointed a Committee for the said purpose. The Government

of Maharashtra vide Resolution dated 31st October 2005, had

resolved to make similar DCP Scheme applicable to the

employees appointed in the services of the State of

Maharashtra on or after 1st November 2005. Vide

Writ Petition No.1049/2010 (( 4 ))

Government Resolution dated 29th November 2010, the

Government of Maharashtra, through its School Education and

Sports Department, has resolved that teachers and non-

teaching staff appointed in the recognized non-Government

(private) aided primary, secondary and higher secondary

schools as also Junior College of Education on or after 1st

November 2005, shall be governed by the new DCP Scheme.

3. The question that arises for consideration in the

present petition is as to whether non-teaching staff like Clerks

and Peons, who were appointed in private recognized

Government-aided schools prior to 1.11.2005 on honourarium,

and who were brought in regular scale after the cut-off date

1.11.2005, would be governed by the 1982 Pension Rules or

the new D.C.P. Scheme.

4. After hearing Shri B.R. Warma, learned counsel for

the petitioners and learned A.G.P. for the State, following

undisputed facts emerge before this Court.

5. That, on 2.7.1993, petitioners were appointed as

Clerk and Peon respectively in respondent No.6 school, on

contract basis, when there was ban on recruitment of the

staff, under Government Resolution dated 16.6.1987. This

ban on recruitment was lifted under Government Resolution

dated 1.8.1995. 100% grant-in-aid is approved to the

Writ Petition No.1049/2010 (( 5 ))

respondent No.6 school since the year 1998. In the year

1999, the strength of the students in respondent No.6 school

was beyond 500. Therefore, since June 1999, the respondent

No.6 school became eligible to get approval for appointment

of one Clerk and one Peon in the school. However, till 2001,

respondent Nos.5 and 6 did not submit the proposal to the

respondent No.4 for grant of approval though on 24.5.1999

respondent No.5 issued fresh appointment orders in favour of

petitioners on permanent basis. For the first time, on

21.6.2001, respondent No.6 sought approval from the

Government to the appointment of the petitioners as Clerk

and Peon respectively on the ground that strength of the

school reached beyond 500. By that time, on 30.5.2000,

again ban was imposed on recruitment and creation of any

staff by the Government Departments (Government

Resolution dated 30.5.2000). Therefore, approval was not

granted to the appointment of petitioners.

6. Thereafter, Shikshan Sevak Scheme came into

effect. Separate scheme was introduced by State Government

under Government Resolution dated 12.7.2004 for recruitment

of Clerks and Peon on honourarium basis. Under this

Government Resolution, the Director of Education (Primary)

was instructed to create and sanction 333 posts of Junior

Writ Petition No.1049/2010 (( 6 ))

Clerks and 336 posts of Peons in 336 schools in the State of

Maharashtra. This newly introduced Government Resolution,

for appointment of Clerks and Peons in eligible schools on

honourarium basis, specifically provides that, after

appointment for the first three years, honourarium of

Rs.2000/- per month and Rs.1700/- per month would be

payable to the Clerk and Peon respectively. Thereafter, if the

performance of the Clerk and Peon is satisfactory, then only

the respective Clerk and Peon would be brought in regular pay

scale applicable to Clerks and Peon.

7. On 2.11.2004, a fresh proposal was submitted by

respondent No.5 Educational Institution for approval of

appointment of petitioners as Clerk and Peon respectively. On

24.12.2004, the respondent No.4 granted a "temporary

approval" to the appointment of the petitioners as Clerk and

Peon respectively, but on honourarium basis for the period of

next three years only. Petitioners satisfactorily completed this

period of three years. Therefore, on 14/7/2007, the

respondent No.4 granted "permanent approval" to the

appointment of petitioners and they were brought in regular

pay-scales applicable to them.

8. Learned counsel for the petitioners also submits

that, because the strength of the students in respondent No.6

Writ Petition No.1049/2010 (( 7 ))

school reached above 500 in the year 1999 and because the

school was eligible to get sanction for one Clerk and one Peon

in the year 1999, the approval for the appointment of

petitioners as Clerk and Peon respectively ought to have been

granted with effect from July 1999 and not from 24.12.2004

and 4.7.2007, as granted by the State Government.

9. The learned counsel for petitioners submits that,

under Government Resolution dated 19.7.2011, the

Maharashtra Civil Services (Pension) Rules, 1982 (Old Pension

Rules) are made applicable to the Shikshan Sevak/

Gramsevak/ Krushi Sevak who were appointed prior to

1.11.2005 on honourarium basis, only after completing their

service for the period of three years satisfactorily. He further

submits that, though under Government letter dated

24.12.2004, approval has been granted to the appointment of

petitioners since 1.6.2004, on honourarium basis for the

period of next three years, and though this temporary

approval was made permanent on 4.7.2007, w.e.f. 1.6.2007

to bring the petitioners on regular pay-scale, old pension

scheme would be applicable to the petitioners in view of

Government Resolution dated 19.7.2011 referred above.

According to learned counsel for the petitioners, the

Government Resolution dated 19.7.2011 is also applicable to

Writ Petition No.1049/2010 (( 8 ))

the non-teaching staff like Clerk and Peon as they fall in the

category of "Shikshan Sevak".

10. Learned counsel for the petitioners placed reliance

on judgment of this Court, passed on 10.7.2014 in Writ

Petition No.6689/2013 (Anil V. Wasekar & ors. Vs. State of

Maharashtra & ors.), Kaushalya Shivaji Kekan & ors. Vs. State

of Maharashtra & ors., dated 11.10.2013 in Writ Petition

No.2455/2012, Shantaram Madhukar Patil & anr. Vs. State of

Maharashtra & ors., dated 30.7.2014 in Writ Petition

No.6093/2011, Sandip Vasantrao Patil & ors. Vs. State of

Maharashtra & ors., dated 15.2.2017 in Writ Petition

No.5321/2011.

11. Learned A.G.P. for the State points out that,

though the strength of the students in respondent No.6 school

was above 500 after June 1999 and though that time

respondent No.6 school was eligible to obtain a sanction for

the appointment of one Clerk and one Peon, the said proposal

was submitted by respondent No.6 school on 21.6.2001, when

there was ban on recruitment and grant of approval.

According to the learned A.G.P., therefore, the appointment of

the petitioners as Clerk and Peon cannot be approved with

effect from July 1999. She points out that, the ban on

recruitment and approval was lifted under Government

Writ Petition No.1049/2010 (( 9 ))

Resolution dated 12.7.2004, which introduced the

appointment of Clerk and Peon on honourarium basis in the

schools which are eligible for such appointments.

12. The learned A.G.P. for the State countered the

argument of the learned counsel for the petitioners that the

petitioners fall in the category of "Shikshan Sevak" and

submits that, Shikshan Sevak is a different cadre, who are

appointed under a different scheme than the non-teaching

staff like Clerk and Peon. According to learned A.G.P., under

the Government Resolution dated 19.7.2011, the Government

has carved out an exception only for the Shikshan Sevak/

Krushi Sevak/ Gramsevak. She has pointed out that, this

Government Resolution dated 19.7.2011 nowhere reflects that

the Clerks and Peons are also included and covered under this

Government Resolution. Learned A.G.P. submits that, as the

case of petitioners is not covered under Government

Resolution dated 19.7.2011, the old pension scheme would

not be applicable to the petitioners, in view of the specific

directions given by the Government under Government

Resolution dated 24.2.2008 and Government Resolution for

clarification, dated 30.6.2009.

13. Undisputedly, in the year 1999, the respondent

No.6 school was eligible to get sanction for one post of Clerk

Writ Petition No.1049/2010 (( 10 ))

and one Peon because, in that year, the strength of the

students in respondent No.6 school grew beyond 500

students. However, on 21.6.2001, for the first time the

respondent No.6 school submitted its proposal to the

Education Department to grant sanction and approval to the

appointment of petitioners as Clerk and Peon respectively.

When the proposal for appointment of Clerk and Peon was

submitted by respondent No.6 school to the Education

Department, at that time, there was absolute ban on new

recruitment and approval under the Government Resolution

dated 30.5.2000. Thus, obviously, the respondent No.1 to 4

were not empowered to grant approval to the appointment of

petitioners on 21.6.2001.

14. The ban on recruitment was lifted only on

introduction of Government Resolution dated 12.7.2004,

under which the scheme for recruitment of Clerk and Peon on

honourarium basis was introduced in the Government aided

private primary schools where the strength of the students

reached beyond 500 students. In the circumstances, the

respondent No.4 Education Officer is justified in granting

temporary approval to the appointment of petitioners as Clerk

and Peon respectively w.e.f. 1.6.2004 for the period of next

three years on honourarium basis. The appointment order

Writ Petition No.1049/2010 (( 11 ))

issued by respondent No.5 dated 24.5.1999 in favour of

petitioners, as Clerk and Peon respectively on permanent

basis is illegal, as on that date post of one Clerk and one Peon

were not sanctioned by respondent No.4 because in the year

1999 no proposal for approval of these appointments was

submitted by respondent No.6. Thus, obviously, the

appointment of petitioners as Clerk and Peon cannot be

approved w.e.f. July 1999 as prayed by the petitioners. In

the circumstances, the prayer clause (A) of the petition cannot

be allowed.

15. In support of his submissions that the posts of

Clerk and Peon fall in the category of "Shikshan Sevak",

learned counsel for the petitioners has drawn our attention to

Section 2(7) of the Maharashtra Employees of private Schools

(Conditions of Service) Regulation Act, 1977 (hereinafter

referred to as the M.E.P.S. Act), wherein the term "employee"

is defined as under :

"Employee" means any member of the teaching and non-teaching staff of a recognized school + [and includes *Assistant Teacher (Probationary)] +Inserted by Section 10(a) of the Mah. Act 14 of 2007. *substituted for Shikshan Sevak by Maharashtra Act 9 of 2012, Sec. 10(a)

16. A bare glance at Section 2(7) of the M.E.P.S. Act

makes it absolutely clear that, teaching staff and non-teaching

Writ Petition No.1049/2010 (( 12 ))

staff are separate cadres, and the words "Shikshan Sevak" are

substituted by the words "Assistant Teacher" under

Maharashtra Act No.9 of 2012. It means that, "Shikshan

Sevak" is synonymous term for "Assistant Teacher" and the

posts 'Clerk' and 'Peon' do not fall in the category of

"Shikshan Sevak". Thus, the contention of learned counsel for

the petitioners is not acceptable that the petitioners fall in the

category of Shikshan Sevak and, therefore, the Government

Resolution dated 19.7.2011 is applicable to the petitioners.

17. After going through the Government Resolution

dated 19.7.2011, it becomes clear that, in the entire

Government Resolution there is no reference that it is made

applicable to non-teaching staff like Clerk and Peon in the

educational institutions. On the other hand, from this

Government Resolution, it can be gathered that, exception

has been carved out by Government only for "Shikshan

Sevak/ Krushi Sevak/ Gramsevak", to make applicable old

pension scheme to these specified cadres if their

appointments are made prior to 1.11.2005 i.e. the cut-off

date for applicability of new pension scheme. In the case of

"Kaushalya Shivaji Kekan & ors Vs. State of Maharashtra"

(supra), this Court has interpreted the Government Resolution

dated 19.7.2011, which is held applicable only to Shikshan

Writ Petition No.1049/2010 (( 13 ))

Sevak/ Gramsevak and Krushi Sevak. Therefore, the ratio of

this case is of no help to the petitioners.

18. We have carefully considered the Government

Resolution dated 19.7.2011 in the light of the contention of

the petitioners that they derive benefit from the said

Government Resolution. We find that, firstly, the said

Government Resolution is specifically restricted to the

Shikshan Sevak, Krushi Sevak and Gramsevak. The very title

of the Government Resolution and the first paragraph below

the introduction in the Government Resolution, it is

specifically mentioned that, the Government Resolution is with

regard to Shikshan Sevak, Gramsevak and Krushi Sevak,

working in 100% grant-in-aid primary, secondary and higher

secondary schools, Junior Colleges, Colleges of Education,

Sainik Schools, Vidya Niketan, Zilla Parishad and Agricultural

Department. Those Shikshan Sevak, Gramsevak and Krushi

Sevak who were working on honourarium basis prior to

1.11.2005, are benefited by the said Government Resolution

since it provides for reckoning their service on honourarium

basis for the purposes of their retiral pensionary benefits. We

have not been shown any Government Resolution, which

indicates that the three years period of honourarium service

put in by employees like the petitioners before us, would

Writ Petition No.1049/2010 (( 14 ))

enable the service on honourarium to be reckoned as regular

service by such employees.

19. Similarly, the case of "Anil V. Wasekar & ors Vs.

State of Maharashtra & ors." (supra) is distinguishable,

wherein this Court held that, merely because grants are

disbursed to the school from 1.12.2005, the petitioners cannot

be deprived of the benefit of the old pension scheme of the

year 1982, when the school in which the petitioners are

working was brought on 100% grant-in-aid w.e.f. April 2005.

Thus, the ratio decidendi in this case is altogether distinct.

This case is not applicable to the case at hand.

20. On the other hand, learned A.G.P. has rightly

drawn our attention to the Government Resolution dated

26.2.2008 and the clarificatory Government Resolution dated

30.6.2009, which provides that, the old pension scheme would

be applicable only to those non-teaching staff, who complete

the initial period of three years on honourarium scale before

1.11.2005. This Government Resolution specifically provides

that, the new pension scheme will be applicable to those staff

members who become regular on 1.11.2005 or thereafter.

21. In the case at hand, the approval order of

petitioners, dated 24.12.2004, shows that, approval was

granted w.e.f. 1.6.2004 for the period of three years on

Writ Petition No.1049/2010 (( 15 ))

honourarium basis and the order dated 4.7.2007 further

makes it clear that the petitioners were brought in regular

pay-scale only on 1.6.2007 i.e. after the cut-off date

1.11.2005. As the petitioners became regular on 1.6.2007

i.e. after the cut-off date 1.11.2005, when the new pension

scheme is made applicable to the non-teaching staff in the

school, by no stretch of imagination it can be held that the old

pension scheme would be made applicable to the petitioners.

It follows that, prayer clause (B) of the petition cannot be

allowed to make the old pension scheme applicable to the

petitioners. It follows that, a writ of mandamus cannot be

issued to direct respondent No.3 and 4 to pay salary

differences from July 1999 to 31.5.2004 to the petitioners. In

other words, none of the prayers of the petition can be

allowed.

22. The case of "Shantaram Madhukar Patil & anr. Vs.

State of Maharashtra & ors." (supra) and "Sandip Vasantrao

Patil & ors. Vs. State of Maharashtra" (supra) are

distinguishable for the reason that in these both cases the

Government Resolutions dated 26.2.2008 and 30.6.2009 were

not brought to the notice of this Court. Even the ratio of

Homraj Bisen & ors. V/s State of Maharashtra & ors.

reported in [2013 (2) Mh.L.J. 401 ] is not applicable to the

Writ Petition No.1049/2010 (( 16 ))

case at hand for the reason that in that case, legality and

validity of Government Resolution dated 29/11/2010 was

challenged, under which Government of Maharashtra, through

its School Education & Sports Department has resolved that

Teachers and non-teaching staff appointed in recognized non-

Government (private)-aided primary, secondary and higher

secondary schools as also Junior College of Education, on or

after 1.11.2005, shall be governed by the new defined

contributory pension scheme. The question for consideration

before this Court was, "Whether the employees who were

appointed in private recognized school prior to 1.11.2005 and

whose services were approved by competent authority but the

schools were not admissible to 100% grant-in-aid, would be

governed by 1982 Pension Rules or new D.C.P. Scheme". In

this case, this Court held that, Government Resolution dated

29.11.2010 is valid and the petitioners, who were appointed in

private recognized schools prior to 1.11.2005 and whose

services were approved by the competent authority, but the

schools were not admissible to 100% grant-in-aid would be

governed by new D.C.P. Scheme. In the result, the petition

was dismissed. Thus, obviously, in the case of "Homraj Vs.

State of Maharashtra", this Court has nowhere interpreted the

Government Resolution dated 19.7.2011, and this Court

Writ Petition No.1049/2010 (( 17 ))

nowhere held that Clerks and Peons appointed prior to

1.11.2005 on honourarium basis, would be governed by the

1982 Pension Rules. Thus, the ratio of this case is of no help

to the petitioners in any manner.

23. In the result, we have come to the conclusion that

this petition being devoid of merit, deserves to be dismissed.

Accordingly, we pass the following order :

OR D ER

Writ Petition is dismissed. Rule is discharged.

          ( SUNIL K. KOTWAL )            ( RAVINDRA V. GHUGE )
               JUDGE                           JUDGE

After pronouncing the judgment, learned Advocate for the petitioners prays for continuance of the interim relief granted earlier for a period of six weeks, since the petitioners intend to assail this judgment before the Hon'ble Apex Court.

The request is accepted. The interim relief granted earlier would continue for a further period of six weeks.

          ( SUNIL K. KOTWAL )            ( RAVINDRA V. GHUGE )
                JUDGE                           JUDGE


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