Mr. Sandeep Vamanrao Kulkarni And ... vs The State Of Maharashtra Through ...
2021 Latest Caselaw 11644 Bom

 This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2021
                                                                               10.wp.5379.19.doc

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                           WRIT PETITION NO. 5379 OF 2019


   Sandeep Vamanrao Kulkarni & Ors.                       ...        Petitioners
             Versus
   The State of Maharashtra & Ors.                        ...        Respondents
                                  .........


   Mr. Anant B. Bobe for the Petitioners.
   Mr. A.I. Patel, Addl. G.P. a/w Mr. B.V. Samant, A.G.P. for the State-
   Respondent Nos.1 to 4.
                                    .........
                                          CORAM           : R.D. DHANUKA &
                                                            R.I. CHAGLA, JJ.

                                          DATE            : 24th AUGUST, 2021.

   P.C. :-

   1                  Rule. Learned A.G.P. waives service for the Respondents.

The Petition is heard finally by consent of parties.

2. By this Petition filed under Article 226 of the Constitution

of India, the Petitioners are seeking direction against Respondent

Nos.1 to 4 to consider commencement of qualifying service for old

pension scheme and general provident fund scheme benefits of the

Petitioners from the date of initial appointment on part time basis and

for which one half of that service requires to be calculated towards

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their pension benefits. Further direction is sought against Respondent

Nos.1 to 4 to consider that the present Petitioners have been entitled

to pay fixation, time bound promotions, old pension scheme and

general provident fund benefits without any arrears calculated from

the date when the respective schools of the respective Petitioners

attained the strength of 1000 students.

3 The Petitioners are librarians in various aided Secondary

and Higher Secondary Schools for the past many years. The

Petitioners were previously appointed on part time basis before

01.11.2005 and were serving on the post of librarian in the respective

educational institution. The Petitioners are now employed in the

capacity of full time librarians with continuous service of initial

appointment on part time basis.

4 It is the grievance of the Petitioners that the Respondents

are not taking into account the Government Resolutions dated

28.06.1994, 31.10.2005 and 03.08.2006 issued by the Respondent-

State. The learned Counsel for the Petitioners has relied upon several

decisions of this Court. He has referred to the compilation of these

decisions which include decision of this Court (Aurangabad Bench) in

Writ Petition No.6622 of 2004 - Jayshree vs. State of Maharashtra and

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Ors., decision dated 09.02.2005; the decision of this Court in Writ

Petition No.2354 of 2012 - Jyoti Prakash Chougule vs. State of

Maharashtra and Ors., decision dated 07.01.2014; decision of this

Court (Aurangabad Bench) in Writ Petition No.8289 of 2013 - Shalini

w/o Asaram Akkarbote vs. State of Maharashtra and Ors., decision

dated 29.04.2014; decision of this Court (Nagpur Bench) in Writ

Petition No.6630 of 2013 - Kiran Keshavrao Girhe and Ors. vs. State of

Maharashtra and Ors. along with the other companion matters,

decision dated 28.01.2015; decision of this Court (Nagpur Bench) in

Writ Petition No.1272 of 2015 - Sunil Ramkrishna Thaware vs. State

of Maharashtra and Ors., decision dated 20.01.2016; decision of this

Court (Nagpur Bench) in Writ Petition No.5421 of 2017 - Smt.

Darshana wd/o Adikrao Gaikwad vs. State of Maharashtra and Ors.,

decision dated 09.07.2018 and the decision of this Court in Writ

Petition No.9792 of 2016 along with companion matter - Shri Prakash

Hanumant Gidde vs. State of Maharashtra and Ors., decision dated

01.10.2018.

5 It is submitted that this Court has consistently held that

the Petitioners shall be entitled to half of the part time service

rendered by the Petitioners as teaching or non-teaching staff in the

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educational institution together with full time service rendered in such

educational institution. The initial date of appointment of the

Petitioners i.e. appointment as the part time employee in the

education institution shall be taken into account for the purpose of

calculation of pension and pensionery benefits. In so doing this Court

has held that in the event that the Petitioners appointment as

employee on part time basis is prior to 01.11.2005, they will be

entitled to the old pension scheme. The Full Bench decision of this

Court in Deshmukh Dilipkumar Bhagwan & Ors. vs. State of

Maharashtra, through Chief Secretary, General Administration

Department & Ors. (Writ Petition No.8387 of 2013 decided on

26.08.2019), has held that the employment in 100% aided

educational institution, whether part time or full time, prior to

01.11.2005, shall be taken into account and the old pension scheme

would be made applicable. He has submitted that all the Petitioners

have been appointed on part time basis prior to 01.11.2005 in fully

aided educational institution. He has, therefore, submitted that the

decisions of this Court referred to above, cover the issue arising in the

present Petition.

   6                The learned Counsel for the Petitioners has placed



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reliance on the decision of this Court in Prakash Hanumant Gidde

(supra) where this Court held that the date when the School attained

the figure of 1000 students is relevant for the old pension scheme to

be made applicable and that the Petitioner shall be entitled to notional

fixation of their salary, time bound promotion and pensionery benefits

from that date. The learned Counsel for the Petitioners has submitted

that the Petitioners in line with the said decision be given full time

status in terms of the Government Resolution dated 28.06.1994 i.e.

benefit from the date when the school attained the figure of 1000

students.

7 The learned A.G.P. has neither produced any judgment

contrary to the judgments relied upon by the learned Counsel for the

Petitioners nor been able to distinguish the said judgments.

8 Further the learned A.G.P. has neither been able to

produce any contrary decision nor distinguish the decision of this

Court in Prakash Hanumant Gidde (supra).

9 We are of the considered view that the issue arising in this

Petition has squarely been covered by the decisions relied upon by the

learned Counsel for the Petitioners referred to above. Further, the Full

bench of this Court in Deshmukh Dilipkumar Bhagwan (supra) has in

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answering the issue which also arises herein held that for employees

of educational institution who are appointed prior to 01.11.2005 in

fully aided posts, the old pension scheme shall be made applicable to

such employees of this educational institution.

10 We are of the further view that the Petitioners who were

appointed as Librarians on part time basis prior to 01.11.2005 and

currently serving as full time Librarians in their respective educational

institutes, are entitled for half of their part time service as Librarians

to be taken into account together with their full time service for the

purpose of pension and pensionery benefits and that the old pension

scheme will apply to the Petitioners. In view thereof, we pass the

following order :

i) Respondent Nos.1 to 4 shall consider the

commencement of qualifying service as part time

librarians for the old pension scheme and general

provident fund scheme benefits i.e. from the initial date of

appointment on part time basis for which one half of their

service shall be calculated together with the full time

service rendered by the Petitioners as librarians towards

pension and pensionery benefits.

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ii) Respondent Nos.1 to 4 shall consider the Petitioners

as being entitled to pay fixation, time bound promotion,

old pension scheme and general provident fund benefit

without any arrears calculated from the date when the

respective educational institutions in which the present

Petitioners attained the strength of 1000 students, as per

Government Resolution dated 28.06.1994.

iii) In the case of Petitioner Nos.2 and 3 who are

retired from their respective education institutions, the

Management of these education institutions are directed

to submit the pension papers of Petitioner Nos.2 and 3 to

the Respondent No.3 within a period of four weeks from

the date of communication of this order without fail.

Upon receipt of the pension papers from the

Management, the Respondent No.3 shall start making

payment of the pension and pensionery benefits as per the

old pension scheme to the Petitioner Nos.2 and 3 by

considering half of the service rendered by these

Petitioners as part time librarians as qualified service

together with the full time service and shall clear arrears

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of pension to these Petitioners within a period of three

months thereafter without fail.

iv) It is made clear that the Petitioners shall be entitled

to pension and pensionery benefits as full time librarians

from the date when the respective educational institutions

exceeded the student enrollment of 1000 students as per

the Government Resolution dated 28.06.1994.

v) In view of the assurance given by Mr. Patel, the

learned Additional Government Pleader appearing for the

Respondents, that the Respondent-State shall in future be

more vigilant with regard to the matters which are

covered by the High Court and Supreme Court and shall

not take any opposing stand in those matters, we deem it

fit not to impose any costs in this matter.

                    vi)         Rule is made absolute in the above terms.

                    vii)        Writ Petition is disposed of accordingly.

                    viii) There shall be no order as to costs.




         ( R.I. CHAGLA, J. )                                ( R.D. DHANUKA, J. )

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