Purushottam Harishchandra ... vs The State Of Maharashtra Through ...
2021 Latest Caselaw 11777 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION
                     WRIT PETITION NO.2538 OF 2021
 1. Shri Purushottam Harishchandra
 Shirsekar
 Aged 42 yrs, Occ. Service, R/o. Nate, Tal
 Rajapur, Dist. Ratnagiri.

 2. Nate Gram Panchayat's Nate Nagar
 Vidyamandir,
 Nate Arts Commerce Junior College,
 Nate, Tal. Rajapur, Dist. Ratnagiri,
 Through its Principal                                 ... Petitioners
       V/s.
 1. The State of Maharashtra
 Through      the     Secretary,      School
 Education Department, Mantralaya,
 Mumbai - 40032.

 2. The Education Offcer Secondary),
 Zilla Parishad, Ratnagiri.

 3. Superintendent,
 Pay and Provident Fund Unit Sec. Edn.)
 Ratnagiri.                                          ...Respondents


 Mr. Narendra V. Bandiwadekar with Mr. Vinayak R.
      Kumbhar and Mr. Ajinkya S. Navale i/b. Mrs. Ashwini
      Navjyot Bandiwadekar for the Petitioners.
 Mr. N.C. Walimbe, AGP for State - Respondent Nos.1 to 3.

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

 ORDER RESERVED ON                       11TH AUGUST, 2021

 ORDER PRONOUNCED ON                     25TH AUGUST, 2021






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 O R A L O R D E R Per R.I. Chagla, J.)

1. The Petitioners have fled this Writ Petition under

Article 226 of the Constitution of India. The Petitioner No.1

seeks to quash and set aside the impugned order dated 13th

May, 2020 issued by the Respondent No.3 on the proposal

dated 6th November, 2019 submitted by the Petitioner No.2.

Further direction has been sought against Respondent No.2

to apply pension scheme to the Petitioner No.1 which was

prevailing prior to 1st November, 2005 in accordance with

the provisions of the Maharashtra Civil Services Pension)

Rules, 1982 "the said Rules") and grant consequential

service benefts to the Petitioner No.1.

2. The Petitioner No.1 came to be appointed as Part Time

Shikshan Sevak on 11th September, 2001 which post was

sanctioned on aided basis in the school of the previous

management. The Petitioner No.1's services continued in the

said post for three years and the Respondent No.2 granted

approval to the said appointment.

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3. The Petitioner No.1 after completing three years as

Part Time Shikshan Sevak came to be appointed as part time

teacher on 1st September, 2010. The Respondent No.2

granted approval to the said appointment, which was made

on aided post.

4. Thereafter, the Petitioner No.1 came to be upgraded to

the post of full time teacher in the same school on 15th June,

2015. The said post was sanctioned on aided basis. The

proposal of the Petitioner was accordingly submitted to the

Respondent No.2 for approval on 30th December, 2015.

5. The Respondent No.2 issued order dated 25th January,

2016 rejecting the said proposal of the Petitioner No.1 on the

ground that as per Government Resolution dated 2nd May,

2012, there was a ban on recruitment of teachers in aided

school.

6. Being aggrieved thereof, the Petitioner No.1 and the

management of the previous school fled Writ Petition

No.4120 of 2016 in this Court to challenge the order dated

25th January, 2016 passed by the Respondent No.2. The

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Division Bench of this Court by an order dated 28th

February, 2016 allowed the said Writ Petition and set aside

the impugned order and directed Respondent No.2 to grant

approval to the Petitioner No.1 as full time teacher and make

payment of salary. On 1st September, 2018, the Respondent

No.2 issued order of approval to the appointment of the

Petitioner on full time post. Since, the Petitioner No.1 was

declared surplus in the previous school, the Respondent No.2

issued order on 28th November, 2018 and absorbed the

Petitioner No.1 in the Petitioner No.2 school as full time

teacher. Accordingly, the Petitioner No.1 made application

dated 19th July, 2019 to the Petitioner No.2 and requested

that since the Petitioner No.1 was appointed prior to 1st

November, 2005, the old pension scheme shall be made

applicable to the Petitioner No.1. A proposal was submitted to

the concerned offce for applying the old pension scheme.

7. The Petitioner No.2 submitted proposal dated 6th

November, 2019 to the Respondent No.3 along with decisions

of this Court which were relied upon by the Petitioner No.1.

The Respondent No.2 was requested to grant the said

proposal and apply the old pension scheme to Petitioner No.1.

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8. The Respondent No.3 passed the impugned order dated

13th May, 2020 which is on the reverse of the said proposal

letter submitted by the Petitioner No.2, thereby rejecting the

said proposal. Being aggrieved by the impugned order the

Petitioner has fled this Writ Petition.

9. The learned Counsel appearing for the Petitioner has

submitted that the impugned order is bad in law as it

proceeds on the premise that the appointment of the

concerned teaching and non teaching employees has to be on

full time post and not on part time post and which

appointment has to be prior to 1st November, 2005 and for

which the grant-in-aid should also have been sanctioned for

full time post prior to 1st November, 2005. It is only then

that the provisions of the old pension scheme will apply.

10. The learned Counsel for the Petitioner has submitted

that the Petitioner No.1 in the present case was appointed as

a part time shikshan sevak on 11th September, 2001 i.e. prior

to 1st November, 2005 and the said post was receiving 100%

grant-in-aid from the State Government. He has submitted

that since the Petitioner No.1 has been appointed prior to 1st

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November, 2005 albeit on a part time post on receiving 100%

grant-in-aid, Respondent No.3 could not have rejected the

proposal submitted by the Petitioner No.2 to apply the old

pension scheme to Petitioner No.1. He has placed reliance

upon the judgments of this Court in Writ Petition No.8289 of

2013, Writ Petition No.10221 of 2015 and Writ Petition

No.5421 of 2017. He has submitted that in these decisions

this Court had taken a consistent view that the 50% of the

part time services is to be counted for the purpose of pension

along with the full time services rendered by the Petitioner

either for teaching or non teaching employees for the purpose

of payment of pension.

11. Learned Counsel has also placed reliance upon the

decision of this Court in Smt. Prema Narsinha Herkal Vs.

State of Maharashtra & Ors.1. The Division Bench has in the

said decision held that the Petitioner therein is entitled to

claim 50% of the part time service rendered by the employee

for the purpose of pension and the date of appointment as

part time librarian in that case had to be taken in to

consideration for the purpose of pension. The Division Bench

1 Writ Petition No.3719 of 2019 decided on 11th March, 2020.

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further held that the appointment as full time librarian is not

a fresh appointment. The services of the Petitioner has to be

counted from the frst date of appointment i.e. as part time

librarian and therefore, the pension scheme prevailing prior

to 1st November, 2005 would be applicable to the Petitioner.

12. The learned Counsel for the Petitioner has submitted

that the impugned order has referred to a Government Order

without giving particulars of the Government Order and

which it claims provided a teaching or non teaching employee

is appointed prior to 1st November, 2005, it should be to a

full time post sanctioned 100% grant, for the old pension

scheme to apply, otherwise the D.C.P.S. new pension

scheme) will apply. He has submitted that merely referring to

a Government Order without providing its particulars is not

suffcient as it is the basis for the passing of the impugned

order. He has submitted that as far as the Government

Resolution dated 31st October, 2005 which applies the new

pension scheme is concerned, it has to be interpreted in line

with the decisions of this Court. He has submitted that under

clause 4 of the said Government Resolution which is titled

applicability of the scheme, the following is provided:

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APPLICABILITY OF THE SCHEME

4. a) As mentioned above, new defned contribution pension scheme will be applicable to Government servants who are recruited on or after 1st November, 2005 in State Government service.

b) Government is also pleased to direct that the above decision should, mutatis- mutandis, apply to the employees, who are recruited on or after 1st November, 2005, in the services of the Recognized and Aided Educational Institutions, Non- Agricultural Universities and affliated Non Government College and Agricultural Universities etc., to whom the existing pension scheme and General Provident Fund Scheme is applicable.

c) In exercise of the powers conferred by the proviso to Section 248 of the Maharashtra Zilla Parishadas and Panchayat Samiti's Act, 1961 Mah.V of 1962) and of all the other powers enabling it in that behalf, Government is further pleased to decide that the above decision shall apply to the employees, who are recruited on or after 1st November, 2005 in the services of Zilla Parishad.

13. It is submitted that it is clear from the above clause

that the new pension scheme is made applicable to

Government employees who are recruited on or after 1 st

November, 2005 in the services of recognized and aided

educational institutions. He has submitted that there is no

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distinction made between full time employees and part time

employees in the services of such recognized and aided

educational institutions. He has referred to the decision of

the Division Bench of this Court in Deshmukh Dilipkumar

Bhagwan & Ors. Vs. State of Maharashtra, through Chief

Secretary, General Administration Department & Ors.2,

wherein this Court had referred the issue as to whether

employees who were appointed prior to 1st November, 2005

in the aided recognized, primary and secondary and higher

secondary schools as well as colleges of the education who

were receiving less than 100% grant-in-aid as on 1st

November, 2005 are entitled to the beneft of old pension

scheme under the pension rules and commutation of pension

Rules or whether they will be governed by the new pension

scheme under the Government Resolution of 2005 to a

Larger Bench. Apart from this issue, two more issues have

also been referred to the Larger Bench He has then referred

to the Full Bench decision of this Court in Deshmukh

Dilipkumar Bhagwan Vs. State of Maharashtra3 in which the

Full Bench has answered these issues. The Full Bench has

2 Writ Petition No.8387 of 2013 decided on 26th August, 2019.

 3       2019 3) Mh.L.J. 903






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answered these issues at paragraph 37, which reads as

under:

37. Under these circumstances, we answer the Reference as under:-

Question No.1.

In the context of the right of an employee of private school or college of education to receive pensionery benefts and the corresponding liability of the Government to pay the same, only those schools and colleges of education which are receiving 100% grant-in-aid can be termed as aided institutions.

Question No.2.

The employees who were appointed prior to 1-

11-2005 in aided recognized primary, secondary schools as well as colleges of education which were receiving less than 100% grant-in-aid as on 1-11-2005 would be governed by the DCP Scheme.

Question No.3.

Similar will be the situation of the employees who were appointed prior to 1-11-2005 in aided primary, secondary and higher secondary schools as well as the colleges of education which were receiving less than 100% grant-in- aid as on 1-11-2005 but which became 100% aided before 29-11-2010 would also be governed by the DCP Scheme.

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14. It has thus been held by the Full Bench that only those

schools and colleges of education which are receiving 100%

grant in aid can be termed as aided institutions. Further, in

answer to question No.2, this Court has held that the

employees who were appointed on 1st November, 2005 in

aided recognized primary, secondary schools as well as

colleges of education, which were receiving less than 100%

grant in aid as on 1st November, 2005 would be governed by

the DCP Scheme. He has submitted that from the decision of

the Full Bench which has answered the three questions

referred to the Bench. It is clear that distinction has been

made between part time and full time employees appointed

prior to 1st November, 2005 in aided educational

institutions. The only requirement for application of the old

pension scheme is that the employee should be receiving the

100% grant-in-aid as on 1st November, 2005 otherwise the

employees would be governed by the DCP scheme. He has

submitted that it is an accepted position in the present case

that, the Petitioner No.1 was receiving 100% grant-in-aid on

1st November, 2005 and that the Petitioner No.1 was

appointed part time shikshan sevak prior thereto i.e. on 11 th

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September, 2001 on fully aided basis in the school of the

previous management. He has accordingly submitted that

the old pension scheme is applicable to the Petitioner No.1 i.e.

the scheme prevailing to 1st November, 2005 in accordance

with the provisions of the said Rules, 1982 and the Petitioner

No.1 is entitled for consequential service benefts.

15. The learned AGP appearing for Respondent Nos.1 to 3

has vehemently opposed the Petition. He has placed reliance

upon the Affdavit in Reply of Respondent No.2 dated 13th

July, 2021. He has referred to the averments in the said

Affdavit and in particular the averments in paragraph 5 and

6 thereof, wherein it is stated that the judgments relied upon

by the Petitioner in Writ Petition No.8289 of 2013, Writ

Petition No.5422 of 2017 and Writ Petition No.10221 of 2015

are limited to the facts in those Petitions. It is stated that the

said judgments are not squarely applicable to the case of the

Petitioner No.1. It has further been stated in paragraph 6 of

the Affdavit that there is a Government Order directing that

if any employee is appointed prior to 1st November, 2005 but

the post is sanctioned 100% grant for full time post after 1st

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November, 2005, then for such teaching and non teaching

employees new pension scheme) DCPS applies.

16. The learned AGP has relied upon the decision of the

Division Bench of this Court dated 26th August, 2019 in Writ

Petition No.8387 of 2013 and companion matters, which

referred to in paragraph 13 of the said Affdavit and wherein

it is contended that the issue involved in this Petition is no

longer res integra. He has submitted that the said decision of

the Division Bench reference is made to the decision of the

full bench of this Court which has held that employees of

educational institutions working against fully aided i.e. 100%

aided post prior to 1st November, 2005 irrespective of the

nature of the initial appointment would be governed by the

old pension scheme. He has submitted that this would

necessarily to be read as employees working on fully aided

post prior to 1st November, 2005. He has submitted that as

the appointment of the Petitioner No.1 as full time teacher a

fully aided post, was after 1st November, 2005, the new

pension scheme i.e. DCPS would be applicable. He has

accordingly submitted that there is no merit in this Petition

and it should be rejected.

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17. Having considered the submissions, it is to be noted

that the Petitioner No.1 was appointed on a part time fully

aided post in the school of the previous management on 11th

September, 2001. It has been consistently observed by this

Court in various decisions including the decisions relied upon

by the learned Counsel for the Petitioners and referred to in

the Petition i.e. the decisions of this Court in Writ Petition

No.8289 of 2013, the decision dated 29th April, 2014; decision

in Writ Petition No.5421 of 2017, decision dated 9 th July, 2018

and decision in Writ Petition No.10221 of 2015, decision

dated 11th February, 2016 that teaching as well as non

teaching employees who have been appointed initially in part

time services and thereafter in full time services are entitled

to claim pension and pensionery benefts on 50% of the part

time services rendered by the employee along with the full

time services in the educational institutions. The services of

the employee has to be counted from the frst date of

appointment on either part time or full time post for purpose

of pension and pensionery beneft. It is also been held in a

subsequent decision of the Division Bench of this Court in

Smt. Prema Narsinha Herkal Supra) that the services in

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that case of the Petitioner as full time librarian cannot be

considered as a fresh appointment as the Petitioner therein

had been appointed as part time librarian prior to 1st

November, 2005 i.e. on 21st September, 1990 and thereafter

as full time librarian from 6th November, 2006. The services

of the Petitioner has to be counted from the frst date of

appointment and it was accordingly held by the Division

Bench that, the old pension scheme prevailing prior to 1st

November, 2005 would be applicable to the Petitioner.

18. It has thus been a consistent view of this Court that the

services of the employee of the Educational Institution is to

be counted from the frst date of appointment irrespective of

whether it is on a part time or full time post. Further, if such

appointment is prior to 1st November, 2005, then the old

pension scheme would be made applicable to the employee.

This requirement is further made clear from the Government

Resolution dated 31st October, 2005 which provides in

Clause 4 that the employees who are to be recruited on or

after 1st November, 2005 in the services of the recognized

and aided educational institutions for the new pension

scheme DCPS) is made applicable.

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19. The decision of this Court in Deshmukh Dilipkumar

Bhagwan Supra) had referred certain questions to the full

bench and one of the questions is material herein which is

whether the employees appointed prior to 1st November,

2005 in aided recognized primary, secondary and higher

secondary schools as well as colleges of education which were

receiving less than 100% grant-in-aid as on 1st November,

2005 are entitled to the old pension scheme under the

pension rules and the commutation of pension rules or

whether they will be governed by the new pension scheme

under the Government Resolution dated 31st October, 2005?

This question along with two other questions have now been

answered in the full bench decision in Deshmukh Dilipkumar

Bhagwan Supra). The Full Bench has made it clear that only

those education institutions receiving 100% grant-in-aid can

be termed as aided institutions. The employees appointed

prior to 1st November, 2005 in aided educational institutions

but receiving less than 100% grant-in-aid as on 1st

November, 2005 would be governed by the new pension

scheme DCPS).

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20. Thus it is clear that employees such as Petitioner No.1

who were appointed prior to 1st November, 2005 in aided

educational institution receiving 100% grant-in-aid as on 1st

November, 2005 would be governed by the old pension

scheme. This has further been made clear by the Division

bench in Deshmukh Dilipkumar Bhagwan Supra) along with

companion matters, decision dated 26th August, 2019

Coram Pradeep Nandrajog, CJ and Smt. Bharati Dangre, J.).

It has been held therein that employees of schools, including

colleges of education working against fully aided, i.e. 100%

aided post prior to 1st November, 2005, irrespective of the

nature of the initial appointment would be governed by the

old pension scheme. We do not fnd any merit in submission

of the learned AGP that the employee must not only be

appointed prior to 1st November, 2005 but the post against

which the employee is appointed must also be a fully aided

post for making the old pension scheme applicable to such

employee. The impugned order has only referred to a

Government Order which it alleges provides for such

requirement. However, the said Government Order has

neither been produced nor any particulars of the same has

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been given. Further the Government Order relied upon in the

impugned order cannot be contrary to what has to be laid

down in the decisions of this Court including the decision of

the Full Bench in Deshmukh Dilipkumar Bhagwan Supra).

21. We are of the view that since the Petitioner No.1 had

been appointed prior to 1st November, 2005 and occupied a

part time fully aided post i.e. receiving 100% grant-in-aid

from the State Government, the old pension scheme would be

made applicable to the Petitioner No.1. Hence, we pass the

following order:-

(a) The Respondent No.2 Education Offcer shall

apply the pension scheme to the Petitioner No.1

prevailing prior to 1st November, 2005 old

pension scheme) in accordance with the

provisions Maharashtra Civil Services Pension)

Rules, 1982 and the Petitioner No.1 is eligible to

be granted all consequential service benefts

under the old pension scheme.

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(b) The Respondent Nos.2 and 3 shall allot the

Provident Fund Account to the Petitioner No.1

and thereafter permit the Petitioner No.2 to

deduct the amount of monthly compensation

from monthly salary of Petitioner No.1 and

deposit the same in the said Provident Fund

Account which shall be done within a period of six

weeks from the date of this order.

(c) Rule made absolute in the above terms.

(d) Writ Petition is disposed of accordingly.

         (e)      There shall be no order as to costs.



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