Bombay High Court
Smt.Parubai Alias Parvati Wd/O ... vs State Of Maharashtra & 3 Ors on 11 January, 2018
Bench: B.P. Dharmadhikari
wp.2570.02
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 2570/2002
* Dr Manik s/o Rajaram Shamkuwar
(since expired)
a) Smt. Parubai @ Parvati wd/o Dr. Manik Shamkuwar
Aged about 57 years, R/o 8 Sharma Layout
Opp: Pradeep Panch, Pratap nagar,
Nagpur.
b) Ajay s/o Dr.Manik Shamkuwar (son)
Aged about 39 years, occu: service
R/o Flat E, First Floor, Plot No.12/2
Fourth Street, Dr. Thirumurthy Nagar
Nungumakkam, Chennai-34.
c) Susheel s/o Dr. Manik Shamkuwar ( son)
Aged about 38 years, occu: service
C/o Dr, L.A. Meshram 1018, sujata Nagar
Binaki Layout, Nagpur-17.
d) Pankaj s/o Dr. Manik Shamkuwar (son)
Aged about 29 years, occu: service
R/o Flat No.204, Building 1A,
Whispering Palms
Lokhandwala Complex, Akurli Road
Kandivili (E), Mumbai 400 101.
e) Smt.Vandana w/o Bhojraj Khade (daughter)
Aged about 31 years, occu: Housewife
R/o Jatpura Ward No. 3
H/o Shri I.B. Taksande
Panchsheel Chowk, Chandrapur. .. ..PETITIONERS
(Amendment carried out vide order
dated 18.2.2003)
versus
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1) State of Maharashtra
Through the Secretary
Department of Higher & Tech.Education
Mantralaya, Mumbai -400 032.
2) Joint Director (Higher Education)
Nagpur Division,
Old Morris college Building
Near Patwardhan High School
Sitabuldi, Nagpur.
3) Administrative Officer (Grants)
Nagpur Division,
Old Morris College Building,
Near Patwardhan High School
Sitabuldi, Nagpur.
4) Vice-Chancellor
Nagpur University, Nagpur. .. ..RESPONDENTS
...............................................................................................................................................
Mr. R.L.Khapre, Advocate for the petitioner
Mr. Amit Chutke, AGP for respondent nos.1 & 2
Nobody appears for respondents 3 & 4
................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 11th January, 2018
ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. An employee, by name, Dr.Shamkuwar, retired on reaching the age of
superannuation on 31.5.1996. He has been in service as Lecturer before that in
aided Colleges and thereafter with University itself from 13.07.1964. As he did not
get superannuation pension as per Rule 62 (2) of the Maharashtra Civil Services
(Pension) Rules, 1982 ( hereinafter referred to as "the Pension Rules"), he filed
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present petition. He expired and his legal heirs have been brought on record on
18.2.2003.
2. Contention of Adv. Khapre on behalf of legal heirs is, as breaks in
service are already condoned, the petitioner's service right from 13.07.1964 till
31.05.1996 should be treated as a qualifying service and superannuation pension
must be paid. To buttress his submission, he has taken us through the proceedings
of the meeting dated 30.08.1997 of Management Council of his employer, namely,
Nagpur University. He has also placed reliance upon provisions of Rule 46 and Rule
52 of the Pension Rules.
3. He submitted that last service put in by petitioner after 02.05.1992
till his superannuation was with Department of Ambedkar Thoughts and as a
contributory Lecturer. This Department is also extended benefit of pension from
01.04.1997 i.e. after 11 months of superannuation of deceased-petitioner. He submits
that thus services rendered by others before 31.05.1996 with said Department has
been treated as pensionable service. But only because petitioner retired on
31.05.1996 he has been declined pension. His argument is, service put in by
petitioner upto 19.04.1986 was, in any case, pensionable service and from
13.07.1964 till that date, petitioner did render about 22-years of service. Benefit of
this service and eligibility cannot be taken away merely because on 31.05.1996 his
last employment is held to be in non-pensionable employment. Contention is
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contingencies envisaged in Rule 52 of the Pension Rules supra are precisely for this
purpose and respondents cannot deny benefit of completed pensionable service to
petitioner after 31.5.1996.
4. Adv. Khapre adds that earlier counsel representing petitioner, namely,
Shri Harsulkar expired. His death was not within the knowledge of deceased-petitioner
or his legal heirs. After receipt of notice from Registry to engage another lawyer,
necessary steps have been taken by legal heirs. He submits that he received papers
very recently and has called for some more information and documents. He contends
that document basically required to be viewed is one dated 01.04.1997 by which
pension has been extended to last employment of the petitioner with University only in
its Department of Ambedkar Thoughts. He submits that after perusal necessary
challenges can be raised.
5. By way of abundant precaution, he also points out that as matter is
pending before this Court since last more than 15-years, if this Court is not convinced ,
entitlement and eligibility of petitioner to pension as on 19.04.1986 should only be
examined and necessary orders be passed.
6. Learned AGP is relying upon reply-affidavit. He submits that as on
19.04.1986 petitioner had neither retired, voluntarily or otherwise, nor reached the
age of superannuation. Hence as per Pension Rules, there is no question of paying
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him anything by accepting the alternate arguments. By way of abundant precaution,
he invites attention to the controversy taken note of by the Management Council in its
meeting dated 30.08.1997. Learned AGP submits that by Government Resolution (GR)
dated 29.05.1984 options were called for from employees like petitioner, it was open
to them to opt out of CPF Scheme and to come under Pension scheme. Deceased-
petitioner perhaps has not exercised that option and hence even in 1986 he could
not have claimed superannuation pension.
7. He further states that action of State Government bringing Department
of Dr.Babasaheb Ambedkar Thoughts of Nagpur University under pension scheme
with effect from 01.04.1997 is prior to 2002 and it has not been questioned in present
petition. Impliedly, said service was not pensionable on 31.05.1996. The petitioner
opted out of pensionable service (had he submitted option in 1984) and joined non-
pensionable service. He submits that the entry in non-pensionable service in
Department of Dr. Babasaheb Ambedkar Thoughts is as contributory Lecturer during
years 1988-89, 1989-90, 1990-91 and thereafter from 02.05.1992 to 06.09.1996 as
incharge, on honorarium basis. This service therefore cannot be recognised as
continuous with service which ended on 19.04.1986. He submits that in this situation
there is no question of using Rule 52 of Pension Rules and making a service which
was non-pensionable on 31.05.1996, pensionable service. He submits that conscious
steps taken by the petitioner cannot be ignored and hence action of respondents in
denying pension to deceased-petitioner is in accordance with law.
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8. He, however, points out that whether petitioner did exercise option
way back in 1984 or not is a fact within knowledge of his employer namely,
respondent nos.3 and 4.
9. We find that though served, nobody appears for respondent nos.3
and 4. Papers on record show that Management Council of respondent nos.3 and 4
did not oppose entitlement of petitioner to pension.
10. In absence of assistance from respondent nos. 3 and 4, this Court
cannot, at this stage, find out whether in 1984 petitioner opted out of CPF scheme
and submitted himself to pension scheme.
11. Adv. Khapre, in brief reply, point out that pension is a welfare measure
and is viewed by the Hon'ble Apex Court in AIR 1983 SC 130 (D.S. Nakara and
others vs. Union of India), it is not a bounty. Under the guise of extending pension to
one Department of his employer from 01.04.1997 that employer or then State
Government cannot wipe out earlier service rendered by petitioner. He contends
that after 31.05.1996 considering eligibility of petitioner as on 19.04.1986 pension
can be directed to be released.
12. During arguments, he also submitted that as full documents and full
data is not with him, he is not in position to effectively assist the Court and raise
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necessary challenges. He also prayed for adjournment. He, however, also opposed
any direction to University or State to take fresh decision. According to him, such
fresh decision is bound to be against the deceased and a fresh challenge to it would
again take more than 10 years.
13. Undisputed facts as are apparent from communication dated
18.03.1977 sent by employer of petitioner to respondent no.2-Joint Director show that
deceased-petitioner worked from 13.07.1964 to 19.6.1966 with Janata Mahavidyalaya,
Chandrapur. Thereafter from 20.06.1966 to 05.09.1993 he was with Dr. Ambedkar
Mahavidyalaya, Nagpur. He resigned from said College and joined Department of
Post-Graduate Training i.e. PGTD-Economics of Nagpur University. There he worked
from 05.09.1983 afternoon to 20.04.1984 and then from 07.08.1984 to 07.02.1985.
Break in his service from 21.9.84 to 6.8.1994 has been condoned by employer
-University. He again started working in that Department only on 09.02.1985 and
worked upto 20.04.1985. Break of one day ie.. 08.02.1985 has been condoned.
After 20.4.1985 he joined PGTD-Economics again on 02.09.1985 and continued
there upto 02.03.1986. Break in his service from 21.04.1985 to 01.09.1985 has
been condoned by his employer. He again joined very same Department on
04.03.1986 and worked upto 19.04.1986. Break of one day i.e. 03.03.1986 has
been condoned.
14. After 19.04.1986, said communication mentions that he became
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contributory Lecturer in Department of Ambedkar Thoughts of respondent nos.3 and
4 only and worked in that capacity in academic sessions 1988-89, 1989-90 and
1990-91. Obviously this was not a full time service. On 02.05.1992 he became
incharge of that Department, on honorarium basis and worked upto 06.09.1996. In this
communication, honorarium mentioned is of Rs. 500/- per month.
15. The record therefore shows that after 05.09.1983 upto 06.09.1996
deceased-petitioner has worked under very same employer i.e. respondent nos.3 and
4. He was superannuated on 31.05.1996 but it appears that thereafter also he was
permitted to work upto 06.09.1996. When he worked as incharge, he was paid
honorarium of Rs. 500/- per month. Again, it appears that it was over and above his
remuneration as a contributory Lecturer. However, nothing can be said with certainty
in this respect. We only wish to emphasis that after 05.09.1983 upto 31.05.1996
when he reached the age of superannuation, he was under very same employer.
16. As his service from 13.07.1964 till 05.09.1983 is in Colleges recognised
and approved by Nagpur University only i.e. aided colleges, that service also needs
to be clubbed with above service.
17. His demand for pension is looked into by the Management Council of
respondent nos. 3 and 4 on 30.08.1997. The Management Council finds that from
13.07.1964 upto 19.04.1986 he had put in 22-years of total service as a Lecturer.
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The Management Council also refers to representations made by him on 12.05.1997
and 16.07.1997 in which he asserted that after GR dated 29.5.1984 he exercised
option for pension scheme and accordingly submitted necessary documents to the
office of Nagpur University. This assertion has been accepted by Nagpur University.
The respondent nos. 1 and 2 have also not brought on record anything to the
contrary. The respondents 1 and 2 have not shown to this Court that petitioner has
been paid contributory provident fund after his superannuation.
18. The Management Council has recommended that date on which
deceased-petitioner relinquished his full-time service as post-graduate teacher of
Nagpur University i.e. 19.04.1986 should be taken as date of superannuation for
the purpose of computing of terminal benefits.
19. The State Government has found that when his last service during
which he reaches age of superannuation was made pensionable i.e. on 01.04.1997
he was not in that employment. Perusal of letter dated 07.11.1997 shown to this
Court by Adv. Khapre during arguments, reveals that on 19.04.1986 petitioner had
not reached age of superannuation and was not compulsorily retired or opted for
voluntary retirement. Hence, his eligibility or entitlement to pension as on that date,
could not have been looked into.
20. Perusal of Rule 62 which appears in Chapter VII of Pension Rules
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shows that it deals with different classes of pension. It is not in dispute that petitioner
can at the most claim superannuation pension. Retiring pension described in sub-rule
(2) of Rule 62 is granted to Government servant who retires voluntarily on
completion of 20/30 years of qualifying service or who is required by appointing
authority to retire in public interest. However this event has to be before attaining
the age of superannuation. On 19.04.1986 petitioner who joined employment on
13.07.1964 had put in 22-years of service and had not reached age of superannuation.
Perhaps considering this contingency, the Management Council then felt that on
the basis of 22-years of service put in by deceased, his pension should be cleared as
if it is retiring pension on 19.04.1986.
21. Rule 52 is about counting non-pensionable service for pension. After
hearing learned counsel, we find that if employee superannuates from pensionable
service, his non-pensionable service can be added to his pensionable service for
computing total qualifying service. In short, on the basis of material made available
to us, we are not in position to hold that because of prior pensionable service,
service rendered later on in a non-pensionable employment can make such later
employment also pensionable. However, we are leaving this question open If GR
dated 01.04.1997 or other relevant GR by which the services in the Department of
Ambedkar Thoughts was made pensionable, carries any terms or stipulations having
bearing on this aspect; as the same is not before us, again, we are not in position
to conclude relevance of Rule 52 in this matter.
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22. The material produced on record by petitioner shows that had he
continued with his Department of PGTD-Economics under respondent nos.3 and 4
he would have been entitled to claim pension. After 19.04.1986 his services in
academic year 1987-88 does not appear on record. The communication dated
18.03.1997 (Annex.P.4) after 19.04.1986 points out service as contributory Lecturer
directly in academic year 1988-89. This status as a contributory Lecturer may also
militate with demand of pension. He was continued as contributory Lecturer from
1988-89 till academic year 1990-91. In academic year 1991-92 his status again is
not very clear. He has been shown as incharge of Department of Ambedkar Thoughts
on 02.05.1992 i.e. in academic year 1992-93 only.
23. In this situation, various other questions arise and merely by giving
legal heirs of petitioner an opportunity to produce documents, those questions cannot
be suitably answered. After the documents are produced and affidavits are filed,
respondents will be required to be given time to file their replies and some disputed
question may again crop up.
24. In this situation, taking overall view of the matter and because of
completion of 22-years of pensionable service upto 19.04.1986 by deceased-
petitioner, we are inclined to give legal heirs of petitioner an opportunity to make
necessary representation disclosing relevant facts to respondent no.2. They can point
out their challenges to act of respondents extending pension only from 01.04.1997
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and also raise additional challenges. They can also renew their request for releasing
pension of deceased-petitioner for period upto 19.04.1986 only.
25. The respondents 1 and 2 can verify whether CPF amount is
paid/withdrawn by petitioner. Contingent upon that, they can decide the representation
submitted by legal heirs of petitioner as per law.
26. We, accordingly, grant petitioners leave to make such a representation
within a period of six weeks, to office of respondent no.2. The respondent nos.1 and
2 shall, with cooperation of respondent nos.3 and 4, take suitable decision upon
that representation within next two months. We direct respondent nos.3 and 4 also
to assist the Office of respondent nos.1 and 2 and to provide necessary information to
legal heirs of deceased-petitioner for this purpose.
27. The respondents 1 and 2 shall in this peculiar case also, independently
examine whether pension can be released to petitioner as an exception by accepting
his service only upto 19.04.1986 if his later service cannot be taken into account.
28. We also grant legal heirs leave to challenge such decision as per law
before this Court thereafter. Acceptance of any benefit released by respondent nos.1
and 2 in pursuance of this exercise, shall not preclude legal heirs from approaching
this Court.
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29. In view of the fact that deceased-petitioner superannuated on
31.05.1996 i.e. about 22-years back and the dispute is still going on, we also
express that such a petition or challenge if filed, shall be decided at the earliest.
30. With these directions and liberty, we partly allow the Writ Petition and
dispose it of. No costs.
JUDGE JUDGE
sahare
