Sunil Chandrarao Attargekar vs The State Of Maharashtra And ...
2021 Latest Caselaw 974 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


                     WRIT PETITION NO. 3916 OF 2019


Sunil s/o. Chandrarao Attargekar,
Age 50 years, Occ. Retired,
R/o. Jijau Nagar, Shellal Road,
Udgir, Tq. Udgir, Dist. Latur.

                                               ..      Petitioner
                 Versus


1]      The State of Maharashtra
        through the Director,
        Social Welfare, Maharashtra State,
        Pune.

2]      The Accountant General-II,
        Office of Accountant General,
        Pension Wing, Old Building,
        Civil Line, Nagpur,
        Maharashtra State, Nagpur.

3]      The District Social Welfare Officer,
        Zilla Parishad, Latur,
        Dist. Latur.

4]      The Secretary,
        Mahatma Phule Bahuuddeshiya
        Shikshan Sanstha, Udgir,
        Tq. Udgir, Dist. Latur.

5]      The Headmaster,
        Premnath Maharaj Residential
        Handicapped School, Udgir,
        Tq. Udgir, Dist. Latur.
                                               ..      Respondents

                                 ...
Mr. Ram S. Shinde, Advocate for Petitioner
Mr. S.S. Dande, Advocate for respondent No.2
Mr. S.S. Manale, Advocate for respondent No.3.
                                 ...


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                               CORAM :        SUNIL P. DESHMUKH AND
                                              ABHAY AHUJA, JJ.

DATE : 15th JANUARY, 2021

ORAL JUDGMENT [ PER SUNIL P. DESHMUKH, J] :-

1] Rule. Rule made returnable forthwith. Heard learned

counsel for appearing parties finally by consent.

2] The petitioner had issued a notice on 14-02-2018

annexed to the petition at Page 84 for voluntary retirement

pursuant to rule 66(1) of M.C.S. (Pension) Rules, 1982 referring to

that he had completed twenty years and one month and fourteen

days qualifying service and had been working since 1-4-1998. His

request had been processed by - Respondents 3 to 5 and proposal

had been sent to respondent No.2. The same has been received

back with the response dated 12-10-2018 from respondent No.2

(page 44), purportedly referring to that, as per Rule 66(1) of the

Maharashtra Civil Services (Pension) Rules, notice is supposed to be

given after completion of 20 years of qualifying service and further

asking how the notice dated 14-2-2018 had been accepted before

completion of 20 years. It is under these circumstances, petitioner

is before this court.

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3]               Learned counsel for the petitioner submits, it would

emerge, record would bear that petitioner has been appointed long

before 1998. The proposal, submitted to ofce of respondent No.2 -

accountant general by respondent No. 3, with documents sent

along, would establish the case of petitioner that the petitioner had,

in fact, been working from 1994. It would also be seen that he has

been appointed and working from 1996 on the sanctioned post.

Initially appointment had been of temporary nature as a

probationary employee in pay scale of 950-1500 and the same had

continued from time to time. He submits that under mistaken belief

and erroneous appreciation of situation, application had been

moved referring to the date from which services of the petitioner

were confrmed in said post, where he had been working. He

submits that the factual position about him being working from

1994/96 onwards would also get support from the service book

maintained in respect of his employment which as well had been

put up alongwith proposal. He submits that the documents sent

along with proposal sufciently bear that petitioner had been

working in substantive post since 1996. He had been working in the

post continuously without any interruption and the same has even

not been disputed. Return of proposal is detrimental to petitioner's

interest and gravely harms his retiral benefts. If the record is not

taken into account, it would put petitioner in peril. There had been

inadvertent error in referring to the date of appointment as

01-04-1998. He submits that in such a case, having regard to the

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documents which have not been disputed, a proper construction on

proposal accordingly be placed for voluntary retirement and submits

that a pedantic approach would put his long service and the

benefts accrued in jeopardy and urges to eschew such an

approach.

4] Learned A.G.P. submits that apparently the petitioner

has committed a mistake in giving a wrong date in the application

and the authorities have considered the proposal accordingly and

refers to order dated 13-08-2019 in this writ petition, purporting to

point out that petitioner was supposed to place on record copy of

permanent approval.

5] Chapter V of the M.C.S. (Pension) Rules defines

qualifying service, and Rule 30 which is in respect of

commencement of qualifying service, reads thus :-

"30. Commencement of qualifying service.

Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity :

Provided that at the time of retirement he shall hold substantively a permanent post in Government service or holds a suspended lien or certificate of permanency

Provided further that, in cases where a temporary Government servant retires on superannuation or on being declared permanently incapacitated for further Government service by the appropriate medical authority after having rendered temporary service of not less than 10 years or voluntary after the completion

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of 20 years of qualifying service, shall be eligible for grant of superannuation, invalid or, as the case may be, Retiring Pension; Retirement Gratuity: and family Pension at the same scale as admissible to permanent Government servant."

6] Rule 66(1) of the Maharashtra Civil Services (Pension

Rules) reads thus :-

                 "66. Retirement         of    completion of           20 years
                 qualifying service :-

(1) At any time after a Government servant completed twenty years qualifying service, he may, by giving notice of three months in writing to the appointing authority, retire from service.

(2) The notice of voluntary retirement given under sub- rule (1) shall require acceptance by the appointing authority.

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period....... ."

7] After hearing the learned counsel, position appears to

emerge that there is material showing petitioner had been

appointed on 01-04-1996 as a clerk on the post and his

appointment in the same had been accorded permanency in 1998.

Pursuant to rules referred to above, situation will have to be

relooked into, without devitalizing the claim for voluntary

retirement on technicalities if it is otherwise legitimate.

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8]               Claimed emerging position that petitioner having been

appointed from 1994/1996, if is not incorrect, a perfunctory and

pedantic approach better be eschewed. The case of petitioner may

be taken into account with reference to the documents which have

been part of the proposal placed on record referring to his initial

posting from 01-04-1996. If that be so, the application of petitioner

may have to be given treatment as contemplated under the M.C.S.

(Pension) Rules and the notice in such a case may not be treated to

be defective for non completion of 20 years service, in the peculiar

facts and circumstances in this petition.

9] In view of the aforesaid, we deem it appropriate that

proposal of the petitioner for retiral benefits be examined and

reconsidered and be given a proper treatment based on record, as

may be available and may also give opportunity to mend the

application, if required.

10]              Writ petition is disposed of.


11]              Rule made absolute in above terms. No costs.




     ( ABHAY AHUJA )                         ( SUNIL P. DESHMUKH )
          JUDGE                                        JUDGE



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