Bombay High Court
Jagdish S/O Maruti Bhadarage And ... vs The State Of Maharashtra Thru ... on 1 October, 2021
Bench: R.D. Dhanuka, R. I. Chagla
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Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4748 OF 2019
1. Nilesh s/o Namdev Gurav
Age : 50 years, Occu.: Service
as Librarian presently working
with Vidyapeeth High School
Kolhapur, Tq. & Dist. Kolhapur
2. Sanjay S/o Maruti Mane
Age : 48 years, Occu.: Service
as Assistant Teacher presently
working with New English
School Channequppy,
Tq. Gadhinglaj, Dist. Kolhapur
3. Vinayak s/o Gangadhar Chavan
Age : 48 years, Occu.: Service
as Assistant Teacher presently
working with Ajara Mahavidyalaya
Ajara, Tq. Ajara. Dist. Kolhapur
4. Dilip s/o Pandurang Sankpal
Age : 49 years, Occu.: Service
as Assistant Teacher presently
working with Ajara Mahavidyalaya
Ajara, Tq. Ajara. Dist. Kolhapur
5. Smt. Ragini Shankarrao Rajmane
Age : 48 years, Occu.: Service
as Assistant Teacher presently
working with Ajara Mahavidyalaya
Ajara, Tq. Ajara. Dist. Kolhapur
6. Dhanaji s/o Vishnu Kesarkar
Age : 48 years, Occu.: Service
as Assistant Teacher presently
working with Vidhapeeth
1/23
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High School Kolhapur,
Tq. & Dist. Kolhapur ...Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Finance Department,
State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Secretary,
School Education and
Sports Department,
Mantralaya, Mumbai - 32.
3. The Dy. Director of Education,
Kolhapur Region, Kolhapur
4. The Education Offcer (Secondary),
Zilla Parishad Kolhapur,
Dist. Kolhapur
5. The Superintendent (Secondary),
Pay and Provident Fund Unit
Kolhapur, Dist. Kolhapur ...Respondents
WITH
WRIT PETITION NO. 4744 OF 2019
Aspak s/o Allabaksh Kazi
Age : 44 years, Occu.: Service
as Assistant Teacher working
with English School Mangalwedha,
Tq. Mangalwedha, Dist. Solapur
...Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Finance Department,
2/23
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State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Secretary,
School Education and
Sports Department,
Mantralaya, Mumbai - 32.
3. The Education Offcer (Secondary),
Zilla Parishad Solapur,
Dist. Solapur
4. The Superintendent (Secondary),
Pay and Provident Fund Unit
Squad, (Education Department),
Solapur, Dist. Solapur
...Respondents
WITH
WRIT PETITION NO. 4747 OF 2019
Vijay s/o Mukund Kulkarni
Age : 46 years, Occu.: Service
as Assistant Teacher working
with Vidya Mandir High School
and Jr. College, Salgar Bk.,
Tq. Mangalwedha, Dist. Solapur
...Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Finance Department,
State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Secretary,
School Education and
Sports Department,
Mantralaya, Mumbai - 32.
3/23
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3. The Education Offcer (Secondary),
Zilla Parishad Solapur,
Dist. Solapur
4. The Superintendent (Secondary),
Pay and Provident Fund Unit
Squad, (Education Department),
Solapur, Dist. Solapur
...Respondents
WITH
WRIT PETITION NO. 4749 OF 2019
1. Jagdish s/o Maruti Bhadarage
Age : 35 years, Occu.: Service
as Assistant Teacher presently
working with Sou.Vijayamala
Dinkarrao Shinde High School
Gadhinglaj, Tq. Gadhinglaj,
Dist. Kolhapur
2. Kumar s/o Ramchandra Kurukale
Age : 37 years, Occu.: Service
as Assistant Teacher presently
working with Nagojirao Patankar
High School Kolhapur,
Tq. & Dist. Kolhapur
3. Tanaji s/o Bharamu Amage
Age : 43 years, Occu.: Service
as Assistant Teacher presently
working with Shri Ram High
School Nangnur, Tq. Gadhinglaj,
Dist. Kolhapur
4. Narayan s/o Vithoba Hodage
Age : 47 years, Occu.: Service
as Assistant Teacher presently
working with Mahatma Phule
Vidyalaya, Mahagaon,
Tq. Gadhinglaj, Dist. Kolhapur
4/23
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5. Ranjit s/o Gananan Ingavale
Age : 43 years, Occu.: Service
as Assistant Teacher presently
working with Shri Ram High
School & Junior College Kuditre,
Tq. Karvir, Dist. Kolhapur
6. Smt. Nirmala Dipak Bhjoite
Age : 52 years, Occu.: Service
as Assistant Teacher presently
working with Chatrapati Yuraj
Shahu Maharaj High School,
Gandhinagar, Tq. Karvir,
Dist. Kolhapur
7. Sadanand s/o Basavant Phutane
Age : 40 years, Occu.: Service
as Assistant Teacher presently
working with Jagruti High School
Gadhinglaj, Tq. Gadhinglaj,
Dist. Kolhapur
8. Nihal s/o Ramjan Makandar
...Petitioners
Age : 46 years, Occu.: Service
as Assistant Teacher presently
working with Sadhana High
School & Junior College of
Science & Vocational Gadhinglaj,
Tq. Gadhinglaj, Dist.Kolhapur
Versus
1. The State of Maharashtra
Through its Secretary,
Finance Department,
State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Secretary,
School Education and
Sports Department,
Mantralaya, Mumbai - 32.
5/23
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3. The Dy. Director of Education,
Kolhapur Region, Kolhapur
4. The Education Offcer (Secondary),
Zilla Parishad Kolhapur,
Dist. Kolhapur
5. The Superintendent (Secondary),
Pay and Provident Fund Unit
Kolhapur, Dist. Kolhapur ...Respondents
----------
Mr. P.R. Kantneshwarkar i/by Mr. Arvind G. Ambetkar for the
Petitioners in all WPs.
Mr. V.M. Mali, AGP for the Respondent Nos. 1 to 5 in Writ
Petition No. 4748 of 2019 and for Respondent Nos. 1 to 4 in
Writ Petition No. 4744 of 2019 and Writ Petition No. 4747 of
2019.
----------
CORAM : R.D. DHANUKA &
R.I. CHAGLA, JJ.
Reserved on : 07 September 2021
Pronounced on : 01 October 2021
JUDGMENT : (Per R.I. Chagla, J)
1. Rule. Learned AGP waives service on behalf of the
Respondent-State.
2. Heard fnally by consent of parties.
3. By this Petition fled under Article 226 of the
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Constitution of India, the Petitioners are seeking declaration
that they are governed under the old pension scheme i.e.
Pension i.e. Maharashtra Civil Services (Pension) Rules, 1982
and Maharashtra Civil Services (Communication of Pension)
Rules, 1984 and General Provident Fund which are applicable
to the Assistant Teachers and Non-Teaching employees, who
are appointed prior to 1st November 2005.
4. Further direction is sought directing Respondent
Nos. 1 to 5 to continue to extend the benefts of old pension
scheme to the Petitioners and the Respondents be restrained
from enforcing and applying the new pension scheme i.e.
Defned Contribution Pension Scheme ("DCP Scheme") to the
Petitioners in any manner and/or by any method. The challenge
to the Government Resolution dated 29th November 2010
although raised in the Petition, is not pressed. Since almost
identical issues arise in these Petitions, they are disposed of
together.
5. The Petitioners in these Petitions along with the
dates of appointment to their respective posts; dates of
approval of the respective posts; and the names of the
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respective schools in which the Petitioners are employed, are
set out as under:-
WRIT PETITION NO. 4748 OF 2019
SR. NAME OF THE DATE OF DATE OF PRESENT NAME G.P.
NO. PETITIONERS APPOINTMEN APPROVAL OF THE SCHOOL F.
T AND POST AND POST A/C
NO.
1. Nilesh Namdev 26/03/1998 01/04/2006 Vidhapeeth High
Gurav Part-Time Librarian School Kolhapur,
Librarian Dist. Kolhapur
2. Sanjay Maruti 16/01/1999 01/12/2007 New English
Mane Part-Time Assistant School,
Assistant Teacher Channekuppi,
Teacher Tq. Gadhinglaj,
Dist. Kolhapur
3. Vinayak 10/07/1998 01/07/2006 Ajara
Gangadhar Part-Time Assistant Mahavidyalaya,
Chavan Assistant Teacher Ajara, Tq. Ajara.
Teacher Dist. Kolhapur
4. Dilip 20/07/1996 12/06/2006 Ajara
Pandurang Part-Time Assistant Mahavidyalaya,
Sankpal Assistant Teacher Ajara, Tq. Ajara.
Teacher Dist. Kolhapur
5. Smt. Ragini 01/12/1999 13/07/2006 Ajara
Shankarrao Part-Time Assistant Mahavidyalaya,
Rajmane Assistant Teacher Ajara, Tq. Ajara.
Teacher Dist. Kolhapur
6. Dhanaji Vishnu 09/06/2004 24/02/2009 Vidhapeeth High
Kesarkar Part-Time Assistant School Kolhapur,
Assistant Teacher Dist. Kolhapur
Teacher
01/08/2007
Shikshan
Sevak
WRIT PETITION NO. 4744 OF 2019
Name of Teacher : Shri. Aspak s/o Allabaksh Kazi
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Name of School : English School Mangalwedha,
Tq. Mangalwedha, Dist. Solapur
Post : Assistant Teacher
Sr.No. Academic Years Post
01. From 08.06.2001 Part time Shikshan Sevak
02. From 11.06.2004 Part Time Assistant Teacher
03. From 01.10.2007 Full Time Assistant Teacher
WRIT PETITION NO. 4747 OF 2019
Name of Teacher : Shri. Vijay Mukund Kulkarni
Name of School : Vidya Mandir High School & Jr.
College, Salgar Bk., Tq. Mangalwedha,
Dist. Solapur
Post : Assistant Teacher
Sr.No. Academic Years Post
01. From 10.06.2004 Part time Shikshan Sevak
02. From 10.06.2007 Part Time Assistant Teacher
03. From 15.06.2009 Full Time Assistant Teacher
WRIT PETITION NO. 4749 OF 2019
SR NAME OF DATE OF DATE OF DATE OF PRESENT G.
.N THE APPOINTM CONFIRMA APPROVA NAME OF P.
O. PETITIONER ENT AND TION AND L AND THE SCHOOL F.
S POST POST POST A/
N
O.
1. Jagdish 01/10/2005 01/12/2006 28/05/20 Sou.Vijaymal
Maruti Part-Time Shikshan 09 a Dinkarrao
Bhadarage Shikshan Sevak Assistant Shinde High
Sevak Teacher School
Gadhinglaj,
Ta.
Gadhinglas,
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Dist.
Kolhapur
2. Kumar 01/10/2005 15/06/2007 22/09/20 Nagojirao
Ramchandra Part-Time Shikshan 09 Patankar
Kurukale Shikshan Sevak Assistant High School
Sevak Teacher Kolhapur,
Dist.
Kolhapur
3. Tanaji 01/09/2004 01/12/2007 18/06/20 Shri Ram
Bharamu Part-Time Shikshan 09 High School,
Amage Shikshan Sevak Assistant Nangnur, Tq.
Sevak Teacher Gadhinglaj,
Dist.
Kolhapur
4. Narayan 02/0- 10/07/2007 11/02/20 Shri
Vithoba 7/2001 Shikshan 08 Mahatma
Hodage Part-Time Sevak Assistant Phule
Shikshan Teacher Vidyalay
Sevak Junior
College, Tq.
Gadhinglaj,
Dist.
Kolhapur
5. Ranjit 30/08/2005 16/06/2008 21/01/201 Shri Ram
Gananan Part-Time Shikshan 0 High School
Ingavale Shikshan Sevak Assistant and Junior
Sevak Teacher College,
Kuditre, Tq.
Karvir, Dist.
Kolhapur
6. Smt. 01/10/2005 01/11/2010 11/10/201 Chatrapati
Nirmala Part-Time Shikshan 1 Yuraj Shahu
Dipak Shikshan Sevak Assistant Maharaj
Bhjoite Sevak Teacher High School
14/06/2010 Gandhinagar,
Part-Time Tq. Karvir,
Assistant Dist.Kolhapu
Teacher r
7. Sadanand 22/07/2003 13/11/2006 13/11/200 Jagruti High
Basavant Part-Time Shikshan 9 School
Phutane Shikshan Sevak Assistant Gadhinglaj
Sevak Teacher Tq.
Gadhinglaj,
Dist.Kolhapu
r
8. Nihal 11/07/2005 20/06/2007 16/08/20 Sadhana
Ramjan Part-Time Shikshan 09 High School,
WP-4748-19-Group.doc
Makandar Shikshan Sevak Assistant Junior
Sevak Teacher College of
Science and
Vocational
Gadhinglaj
Tq.
Gadhinglaj,
Dist.
Kolhapur
6. The Petitioners' case is that they have been
appointed prior to 1st November 2005 to part-time posts.
Almost all of the Petitioners are Teaching employees (Assistant
Teachers). One of the Petitioners is a Non-Teaching employee.
All Petitioners are employed in fully aided schools and thus,
they have claimed that they are entitled to the old pension
scheme and for the Respondents to extend the benefts of the
old pension scheme to the Petitioners.
7. Mr. Kantneshwarkar, the learned Counsel
appearing for the Petitioners in these Petitions has submitted
that the issue arising in these Petitions have been covered in
several decisions of this Court and which include the
following :-
WP-4748-19-Group.doc
(1) Jyoti Prakash Chougule Vs. State of Maharashtra &
Ors.1
(2) Shalini w/o Asaram Akkarbote Vs. The State of
Maharashtra & Ors.2
(3) Smt. Darshana wd/o Adikrao Gaikwad Vs. State of
Maharashtra & Ors3
(4) Smt. Prema Narsinha Herkal Vs. State of Maharashtra
& Ors.4
(5) Smt. Kalpana Jagatrao Dahiwale Vs. The State of
Maharashtra & Ors.5
(6) Smt. Vina Vinayak Upasani Vs. State of Maharashtra
& Ors6
2 Writ Petition No. 8289 of 2013 (Aurangabad Bench)
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(7) Deshmukh Dilipkumar Bhagwan & Ors. Vs. State of
Maharashtra7
(8) Shri Purushottam Harishchandra Shirsekar Vs. The
State of Maharashtra & Ors.8
(9) Renuka Chandrabhan Umredkar Vs. State of
Maharashtra & Ors.9
8. He has submitted that this Court has consistently
held that the services of employees of education institutions is
to be counted from the frst date of appointment irrespective of
whether it is on a part-time or full time post. Where such
appointment is prior to 1st November 2005, then the old
pensions scheme would be made applicable to such employee.
The only additional condition imposed by the Full Bench in case
of Deshmukh Dilipkumar Bhagwan (supra) is that the
employees appointed prior to 1st November 2005 must be
employed in aided education institutions, receiving 100%
grant-in-aid prior to 1st November 2005 to be granted the old
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pension scheme. He has accordingly, submitted that the
Petitioners in these Petitions who are employees of the
educational institutions were appointed on the part-time posts
in fully aided education institutions prior to 1st November
2005 and thus, following the above referred decisions, they
would be entitled to the benefts of the old pension scheme.
9. The learned Counsel for the Petitioners has
submitted that this position is also clear from the Government
Resolution dated 31st October 2005 under Clause 4, titled
applicability of the scheme, that the new pension scheme is
made applicable to employees of the educational institutions
who are recruited on or after 1st November 2005 in the
services of the recognized and aided educational institutions.
There is no distinction made between full time and part-time
employees in the services of such aided educational
institutions. He has accordingly, submitted that in the present
case the Petitioners' educational institutions where the
Petitioners were appointed, were receiving 100% grant-in-aid
prior to 1st November 2005. The Petitioners having been
appointed as employees prior to 1st November 2005 in such
fully aided educational institutions, they would be entitled to
WP-4748-19-Group.doc
the beneft of the old pension scheme i.e. the scheme prevailing
prior to 1st November 2005 in accordance with the provisions
of the Maharashtra Civil Services (Pension) Rules, 1982 and
Maharashtra Civil Services (Communication of Pension) Rules,
1984 and General Provident Fund shall be made applicable to
the Petitioners.
10. Learned AGP appearing for the Respondents
has referred to the Affdavit in Reply fled on behalf of the
Respondent No. 5 in Writ Petition No. 4748 of 2019 and the
Affdavit in Reply fled on behalf of the Respondent No. 5 in Writ
Petition No. 4749 of 2019, both dated 6th September 2021 as
well as the Charts annexed to the said Affdavits. He has
submitted that the Petitioners having been appointed prior to
1st November 2005 on part-time basis in fully aided schools
would not be entitled to pensionery benefts as per the old
pensionery scheme. Learned AGP has submitted that the
Petitioners came to be appointed on full time posts only after
1st November 2005 and they would thus, be entitled to the
revised "Defned Contribution Pension Scheme" (new pension
scheme) and as per the provisions of the Government
Resolution dated 29th October 2010, the relevant dates of the
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appointment for full time posts are to be taken into
consideration.
11. Learned AGP has further submitted that as
per Rule 19 of Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, it is made clear that full
time employees in aided schools are entitled to pensionery
benefts. Accordingly, those employees appointed on full time
basis on fxed honorarium per month prior to 1st November
2005 and in continuous appointment and subsequently
appointed in regular pay-scale are held eligible for the old
pension scheme. He has relied upon the decision of the Nagpur
Bench of this Court in Writ Petition No. 1574 of 2017, dated 4th
January 2020 in this context. He has submitted that the
Petitioners are not entitled to the old pension scheme. They are
entitled to the revised DCP Scheme introduced with effect from
1st November 2005.
12. Having considered these submissions, it is to
be noted that the Petitioners were appointed as employees on
part-time posts in education institutions which were fully aided
educational institutions i.e. receiving 100% grant-in-aid prior to
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1st November 2005.
13. We are of the view that the issue arising in
these Petitions is no longer res integra. There has been a
consistent stand taken by this Court in the decisions referred
to and relied upon by the learned Counsel for the Petitioners
that the service of the employees of educational institutions is
to be counted from the frst date of appointment irrespective of
whether it is on part-time or full time basis. This stand has
been made clear by this Division Bench in Renuka
Chandrabhan Umredkar (supra), wherein the Government
Resolution dated 31st October 2005 as well as the Full Bench
decision of this Court in case of Deshmukh Dilipkumar
Bhagwan (supra) and prior decision of Division Bench of this
Court in case of Shri Purushottam Harishchandra Shirsekar
(supra) amongst other decisions were considered. This Court
had upon considering the Government Resolution dated 31st
October 2005 and in particular Clause 4 thereof observed that
as per Government Resolution, employees recruited on or after
1st November 2005 in the services of the recognized aided
educational institutions, the new pension scheme i.e. DCP
Scheme has been made applicable.
WP-4748-19-Group.doc
14. The Full Bench decision of this Court in the
case of Deshmukh Dilipkumar Bhagwan (supra) had held that
employees appointed prior to 1st November 2005 in aided
educational institution and receiving 100% grant-in-aid prior to
1st November 2005 shall be governed by the old pension
scheme. It was held that since employees in that matter 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 such employees. This decision has been followed in
the subsequent decision in Shri Purushottam Harishchandra
Shirsekar (supra) wherein this Division Bench held that the
Petitioner had been appointed as part time Shikshan Sevak on
11th September 2001 on the post which was a sanctioned aided
post in the school. The Petitioner's services were granted
approval by the Education Offcer and the services continued.
The employee was thereafter, appointed as part time teacher
and upgraded to full time teacher in the said school on 15th
June 2015 which post was a sanctioned aided post. It was
accordingly, held that the Petitioner would be entitled to the
benefts of the old pension scheme and the relevant date of the
service of the employee is to be counted from the frst date of
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appointment irrespective of whether it is on a part-time or full
time posts.
15. The Division Bench in the recent decision in
Renuka Chandrabhan Umredkar (supra) after referring to the
above referred decisions held that the Respondent-State could
not overlook the fact that the Petitioner therein was appointed
as part-time Librarian on aided post in 100% aided school and
the said appointment was duly approved by the Education
Offcer. The Respondents-State thus, could not refuse to give
beneft of 50% of services rendered by the Petitioner therein as
part-time Librarian prior to 1st November 2005 for
computation of pensionable services along with the services
rendered by the Petitioners on full time basis after 31st October
2005. The entitlement of the Petitioner for pension under the
old pension scheme would be on the basis of initial date of
appointment as part-time Librarian on aided post and not on
the basis of appointment as full time Librarian under DCP
Scheme. It has accordingly, been held that the Petitioner would
be governed by the old pension scheme and not DCP Scheme
introduced on 31st October 2005.
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16. We are of the view that the present case of all
the Petitioners are similar as to the Petitioners in the above
referred decisions as they were appointed prior to 1st
November 2005 in fully aided education institutions albeit on
part-time basis. It is clear from the Affdavit in Reply of
Respondent No. 5 fled in Writ Petition No. 4748 of 2019 and
Writ Petition No. 4749 of 2019 that the only contention of the
Respondents is that the Petitioners were not appointed as full-
time employees prior to 1st November 2005 and were
appointed as part-time employees and thus, not extended the
old pension scheme. However, it has not been disputed that the
Petitioners were employees in educational institutions which
were fully aided institutions prior to 1st November 2005.
17. It is noted that Respondents have in the
Charts annexed to the said Affdavits singled out the case of
Petitioner No. 6 in Writ Petition No. 4748 of 2019 by stating
that he was an employee on unaided post. However, it is clear
from the Government Resolution dated 19th July 2011 that
what is to be taken into consideration is whether the
educational institution is a fully aided educational institution,
receiving 100% aid from the Government Resolution and not
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whether particular post is aided or not.
18. Petitioner No. 6 in Writ Petition No. 4748 of
2019, having been appointed prior to 1st November 2005 on
part-time basis in a fully aided education institutions would
along with the other Petitioners be entitled to the benefts of the
old pension scheme. Hence, we pass the following order:-
(i) Petitioners in Writ Petition No. 4748 OF 2019,
Writ Petition No. 4744 OF 2019, Writ Petition No.
4747 OF 2019 and Writ Petition No. 4749 OF
2019 are entitled to be governed under the old
pension scheme i.e. Maharashtra Civil Services
(Pension) Rules, 1982 and Maharashtra Civil
Services (Communication of Pension) Rules,
1984 and General Provident Fund is applicable
to the Petitioners who are either Assistant
Teachers or Non-Teaching employees, appointed
prior to 1st November 2005.
(ii) The Respondent Nos. 1 to 5 shall extend the
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benefts of the old pension scheme to the
Petitioners and shall not deduct any amount
from the salary of the Petitioners by applying
the DCP Scheme (New Pension Scheme). In the
event, any amount has been deducted by
applying the DCPS, such amount shall be
refunded to the Petitioners within a period of
four weeks from today.
(iii) Respondents shall allot the General Provident
Fund Account (GPF Account) to the Petitioners
and thereafter, permit the educational
institutions to deduct the amount of monthly
compensation from the monthly salary of the
Petitioners and deposit the same in the said GPF
Account which shall be done within a period of
six weeks from the date of this order.
(iv) Rule is made absolute in the above terms.
(v) Writ Petition is accordingly disposed of.
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(vi) There shall be no order as to costs.
(vii) Parties to act upon an authenticated copy of this
order.
[R.I. CHAGLA J.] [R.D. DHANUKA, J.]
