Smt. Kalpana Jagatrao Dahiwale vs The State Of Maharashtra Thru The ...
2021 Latest Caselaw 10272 Bom

                                                                  8-WP-1673-21.doc

Sharayu Khot.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                           WRIT PETITION NO. 1673 OF 2021


     Smt. Kalpana Jagatrao Dahiwale,
     Aged 61 Years, Occ. Retired,
     C/O. Satish Dahiwale, Roop Jagat
     Bunglow, Ramrkishna Garden, Tembhde
     Road, Palghar, Dist. Palghar - 401 404.                    ...Petitioner

             Versus

     1. The State of Maharashtra,
        Through the Secretary,
        School Education Department,
        Mantralaya, Mumbai - 400 032.
     2    The Accountant General, M.S., Mumbai
     3    The Deputy Director of Education,
          Mumbai Region, Mumbai.
     4    The Education Offcer Secondary),
          Zilla Parishad, Palghar
     5    Seva Ashram Shikshan Sanstha, A/p
          Murbe, Ta. & Dist. Palghar - 401 501,
          Through its Chairman/Secretary
     6    Seva Ashram Vidyalaya, Boisar, Tal. &                 ...Respondents
          Dist. Palghar, Through its Head Master

                                       ----------
     Mr. N.V. Bandiwadekar a/w Mr. Vinayak Kumbhar i/by Ms.
     Ashwin N. Bandiwadekar, Ms. Neha N. Bandiwadekar for the
     Petitioner.
     Mrs. P.J. Gavhane, AGP for the Respondent Nos. 1 to 4.
                                       ----------

                                       CORAM :           R.D. DHANUKA &
                                                         R.I. CHAGLA, JJ.

                                      DATE          :    4 August 2021







                                                                   8-WP-1673-21.doc




 ORAL JUDGMENT :               Per R.D. Dhanuka, J.)



 1.               Rule.



 2.               Learned       AGP     waives         service       on     behalf       of

Respondent Nos. 1 to 4. Learned Counsel for the Respondent

Nos. 5 and 6 waives service.

3. By our order dated 20th July 2021, it was made

clear that the Court would make an endevour to dispose of the

Writ Petition fnally at the admission stage subject to time

constraint. Though Respondent Nos. 5 and 6 are served, none

appears on behalf of them.

4. By this Petition fled under Article 226 of the

Constitution of India, the Petitioner has prayed for an order

and declaration that the Petitioner is entitled to

superannuation pension since she has completed the qualifying

service of 10 years to get the said pension, taking into

consideration one half of service of the part time service

rendered by the Petitioner along with the entire service

8-WP-1673-21.doc

rendered by the Petitioner on full time basis, in the post of

Librarian in the Respondent No. 6-School.

5. The Petitioner was appointed on 26th December

1995 as part time Librarian in the Respondent No. 6-School

run by the Management at the sanction and aided post.

Education Offcer granted approval for part time Librarian

from the year 1996. The Education Offcer thereafter, granted

approval on 25th June 2007 to the Petitioner in the full time

post of Librarian appointed on 1st April 2006 by upgradation of

the said part time post as full time on 29th February 2016. The

Petitioner retired from services as full time Librarian. It is the

case of the Petitioner that she has rendered services as part

time Librarian for a period of 10 years and 3 months and

thereafter, full time Librarian for a period 9 years and 11

months and thus, became eligible to superannuation pension by

completing qualifying service of 10 years as required in the

pension rules. Since the Petitioner was refused the payment of

superannuation pension by the authority, the Petitioner fled

this Petition.

6. Mr. Bandiwadekar, learned Counsel for the

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Petitioner invited our attention to various documents annexed

to the Petition. It is not in dispute that the appointment of the

Petitioner as part time Librarian was already approved on 3rd

February 1996. The Petitioner was working as part time

Librarian in the school run by the same Management and

thereafter, as full time Librarian in the same school approved

by the same Management.

7. Learned Counsel invited our attention to various

judgment annexed to the Writ Petition at pages 31 to 58 in

support of his submission that under Rule 57 Note 1 of the

Maharashtra Civil Services Pension) Rules, 1982, the

Petitioner was entitled to beneft of 50% of the services

rendered by him as part time Librarian in the school approved

by the said Management which was aided post and also entitled

to period of services rendered as full time Librarian for the

purpose of superannuation pension under Rule 30 and 57 of

the Maharashtra Civil Services Pension) Rules, 1982.

8. Mrs. Gavhane, learned AGP for the State on the

other hand tried to distinguish the judgments relied upon by

the Petitioner and submits that the period of services rendered

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by the Petitioner as part time Librarian cannot be considered

for the purpose of full time superannuation.

9. This Court in case of Jyoti Prakash Chougule Vs.

State of Maharashtra1 has considered identical facts and after

adverting to the judgments of this Court in Shivappa s/o

Bhujangappa Bembale Vs. State of Maharashtra & anr.2 and

various other judgments has held that the teacher should not

have been deprived of the services rendered under the same

Management, but may be in different schools or institutions.

The services could have been clubbed or added to as desired. It

is held that the State Pension Rules are applicable to the

teachers in terms of Rule 19 of the MEPS Rules, the above

principle will apply. This Court directed the Accountant

General to consider the case of the Petitioner by giving

pensionary beneft in view of the Rules considered by this

Court.

10. A Division Bench of this Court in case of Abaso

Ganpati Aoute Vs. State of Maharashtra & Ors.3 has after

1 Writ Petition No. 2354 of 2012 Order dated 07.01.2014 2 2005 3) Mh.L.J. 709 3 Writ Petition No. 8832 of 2015 Order dated 22.07.2016

8-WP-1673-21.doc

adverting to the judgment of Jyoti Prakash Chougule supra)

has held that 50% of the part time services rendered by the

Petitioner has to be taken into consideration along with the

services rendered by the Petitioner as full time teacher for

grant of superannuation pension benefts.

11. The principles laid down by this Court in the

aforesaid judgment will apply to the present case regarding non

teaching staff also. A Division Bench of this Court in case of

Smt. Darshana wd/o Adikrao Gaikwad Vs. State of

Maharashtra4 has considered identical facts where the

Petitioner was appointed as part time Librarian initially and

thereafter, full time Librarian. In that matter also authority

had refused to grant superannuation pension to the Petitioner

therein. This Court after adverting to various judgments

including Jyoti Prakash Chougule supra) held that 50% of the

part time services rendered by the part time Librarian is

required to be counted for the purpose of pensionary services

along with full time services rendered by the employee. The

said judgments squarely applies to the facts of this case. We are

not inclined to take different view in the matter.

4 Writ Petition No. 5421 of 2017 Order dated 09.07.2018

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12. Though learned AGP made an attempt to

distinguish the aforesaid judgments, in our view, the learned

AGP could not succeed in her attempt. In our view, the

Petitioner having completed more than 10 years 3 months as

part time Librarian and completed more than 9 years and 11

months as full time Librarian, 50% of the services rendered as

part time will have to be considered for the purpose of

computation of pensionable services. After computing 50% of

the services rendered by the Petitioner as part time Librarian

and 100% services rendered as full time Librarian, the

Petitioner would be entitled to superannuation pension under

the relevant Rules referred to aforesaid. The authority thus,

could not have refused to pay pension to the Petitioner.

13. We accordingly, pass the following order:-

i) The Respondent Nos. 5 and 6 are directed to submit

the pension papers of the Petitioner in line with the

view taken by this Court aforesaid to the Respondent

No. 4 within a period of four weeks from the date of

communication of this order without fail.

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ii) Upon receipt of pension papers from the Respondent

Nos. 5 and 6 to the Respondent No. 4, the Respondent

No. 4 to start making payments of the pensionary

benefts to the Petitioner for the month of August 2021

on or before 25th August 2021 and shall clear the

arrears of pension to the Petitioner within a period of

three months thereafter without fail.

iii) Rule is made absolute accordingly.

iv) Writ Petition is disposed of in the aforesaid terms.

v) Parties to act on an authenticated copy of this order.

 [R.I. CHAGLA J.]                             [R.D. DHANUKA, J.]