Bombay High Court
Mrs. Chitrarekha M Naik vs The State Of Maharashtra Through ... on 8 October, 2021
Bench: R.D. Dhanuka, Abhay Ahuja
1 Judgment-WP 5458-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5458 OF 2017
Chitrarekha M. Naik
Age : 60 Years, Occu. : Retired Librarian,
Residing at 203, Amar Apartment,
Near Samrat Hotel, Pandit Deendayal Road,
Dombivali(W), Thane-421 202. ... Petitioner
Vs.
1. State of Maharashtra
Through the Principle Secretary,
Government of Maharashtra,
Mantralaya, Mumbai-400 032
2. The Accountant General
The Office of the Accountant General,
Accounts Entitlement-I, 2nd Floor,
Prathishta Bhavan, 101, Maharshi
Karve Road, New Marine Lines,
Mumbai-400 020.
3. The Secretary,
Department of Education (Lower),
Government of Maharashtra,
Mantralaya, Mumbai- 400 032.
4. Director of Education,
Central Building,
Government of Maharashtra,
Pune-411 001.
5. The Education Officer (Madhyamik),
Department of Education,
Zilla Parishad, Thane (West),
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6. The Principal,
Swami Vivekanand Vidya Mandir,
Datta Nagar (Madhyamik),
Chatrapatri Bhavan, Ayre Road,
Datta Nagar, Dombivli (East),
District-Thane 421 201. ... Respondents
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Mr. Shubham Misar i/b Mr. M. g. Misar, advocate for Petitioner.
Mr. N. K. Rajpurohit, Asst. Government Pleader, for Respondents
No.1 and 3 to 5.
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CORAM : R.D. DHANUKA AND
ABHAY AHUJA, JJ.
RESERVED ON : 5TH OCTOBER, 2021.
PRONOUNCED ON : 8TH OCTOBER, 2021.
JUDGMENT : (PER ABHAY AHUJA, J.)
1. Learned counsel for Petitioner seeks leave of this Court to
delete Respondent No.6. Leave is granted. Amendment to be carried
out forthwith. Re-verification is dispensed with.
2. Rule. Rule made returnable forthwith. Mr. N. K. Rajpurohit,
the learned Additional Government Pleader for Respondents No.1
and 3 to 5 waives service.
3. By consent of counsel for the parties, Writ Petition is heard
finally.
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4. By this petition, filed under Article 226 of the Constitution of
India, Petitioner is challenging the order dated 19 th November 2013
issued by the Accounts Officer, Office of the Principal Accountant
General, Accounts Entitlement-I, Mumbai, refusing / rejecting the
pension proposal in respect of Petitioner.
5. It is submitted that Petitioner was appointed as part time
librarian in Swami Vivekanand Vidyamandir on 29 th August 1992
and till 31st March 2006 she served as part time librarian. With
effect from 1st April 2006, she came to be appointed as full time
librarian, till she superannuated on 31st December 2013. It is the
case of Petitioner that her total part time service is 13 years, 7
months and 2 days and her total full time service is 7 years 8
months and 30 days.
6. Mr. Misar, learned counsel for Petitioner submits that
Petitioner has continuously served for 21 years uninterruptedly
and thereby qualifies the criteria for pensionable service of more
than 10 years. He submits that in a similar case, this Court has
allowed the Petition directing the Respondents to consider the
pension proposal of Petitioner and for making payment thereof and
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relies upon the decision of this Court in the case of Smt. Kalpana
Jagatrao Dahiwale Vs. State of Maharashtra and Ors. In Writ
Petition No. 1673 of 2021.
7. Per Contra, learned AGP relies upon the affidavit-in-reply
dated April/May 2021 and submits that part time service of
Petitioner cannot be considered for pensionery benefits.
8. We have heard Mr. Misar, Learned Counsel, on behalf of
Petitioner and Mr. Rajpurohit, Learned Additional Government
Pleader for Respondents No. 1 and 3 to 5 and with their able
assistance, we have perused the papers and proceedings in the
matter.
9. Facts not being in dispute, in a catena of decisions, this Court
has held that 50% of the part time services rendered by a part time
librarian is required to be counted for the purposes of pensionery
benefits alongwith the full time services rendered by the employee.
In the case in hand, admittedly, Petitioner has served as part time
librarian from 29th August 1992 to 31st March 2006 and from 1st
April 2006 till her retirement on 31 st December 2013, has worked
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as full time librarian, resulting in total part time service to 13 years
7 months and 2 days and total full time services to 7 years 8
months and 30 days. If 50% of total part time service was added to
the full time service, the total period of Petitioner's service would be
more than 10 years, entitling Petitioner to the benefit of services
rendered as full time librarian for the purposes of superannuation
pension in accordance with Rule 30 and Rule 57 of the Maharashtra
Civil Services (Pension) Rules, 1982 ( the "MCPS Rules, 1982"). For
the sake of convenience Rule 57, Note 1 on the MCPS Rules, 1982 is
usefully quoted as under:-
"Note 1- In case of employees paid from contingencies who
are subsequently brought on a regular pensionable
establishment by conversion of their posts, one-half of
their previous continuous service shall be allowed to count
for pension. (Emphasis Supplied)"
10. We also place reliance on the decision of this Court in the case
of Kalpana Dahiwale (supra), (where one of us, R. D. Dhanuka, J
was a member). Paragraphs no. 9 to 12 from the said decision are
usefully quoted as under:-
"9. This Court in case of Jyoti Prakash Chougule Vs. State
of Maharashtra has considered identical facts and after
adverting to the judgments of this Court in Shivappa s/o
Bhujangappa Bembale Vs. State of Maharashtra & anr.
and various other judgments has held that the teacher
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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 benefit 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. has after 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
Maharashtra 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.
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
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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."
11. In this view of the matter, we are of the view that, after
computing 50% of the services rendered by the Petitioner as part
time librarian and 100% service rendered as full time librarian,
Petitioner would be entitled to superannuation pension under the
relevant Rules and that the rejection by the authority and the
refusal cannot be sustained.
11. The order dated 19th November 2013 passed by the office of
Accountant General, Accounts Entitlement-I, viz. Respondent No. 2,
is hereby quashed and set aside.
12. Respondents are directed to grant and release pensionery
benefits to Petitioner in line with the aforesaid discussion including
all arrears of pension, within a period of two months from today.
13. Rule is made absolute in the above terms.
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14. Writ Petition accordingly stands disposed. There shall
however be no order as to costs.
15. Parties to act on an authenticated copy of this judgment.
(ABHAY AHUJA, J.) (R. D. DHANUKA, J.)
Digitally signed
NIKITA by NIKITA
YOGESH
YOGESH GADGIL
GADGIL Date: 2021.10.08
17:03:33 +0530
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