Bombay High Court
Devidas Ramdas Gurav vs The State Of Maharashtra And ... on 26 July, 2022
Bench: Mangesh S. Patil, Sandeep Vishnupant Marne
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
939 WRIT PETITION NO.10111 OF 2021
Devidas s/o Ramdas Gurav,
Age 59 years, Occ. Retired Employee
R/o. House No. 2025, Datta Krupa Shani
Galli, Talode, Tq. Taloda, Dist. Nandurbar. ... Petitioner.
VERSUS
1) The State of Maharashtra,
Through its Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2) Senior Accounts Officer/PR-6,
Indian Audit & Accounts Department,
Office of the Accountant General
(Accounts & Entitlements)-1.
Pratistha Bhavan (Old C G O Bld)
101, Mahrshi Karve Marg, 2nd Floor
Mumbai- 400 020, Maharashtra.
3) The Director of Education,
Education Department,
Maharashtra State, Pune.
4) The Deputy Director of Education
Division Nashik, Tq. & Dist. Nashik.
5) The Education Officer (Secondary)
Zhilla Parishad, Nandurbar.
6) Peoples Education Society,
Talode, Tq. Talode & Dist.
Nandurbar.
Through it's Chairman.
7) The New English School and
Junior College, Akkalkuwa,
Dist. Nandurbar. ... Respondents.
...
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Advocate for Petitioner : Mr. Wakade Ramesh I.
AGP for Respondent Nos. 1, 3 to 5 : Mr. K. N. Lokhande
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 26.07.2022.
ORAL ORDER : (PER : SANDEEP V. MARNE, J)
Rule. With the consent of both the sides, rule is made returnable
forthwith and heard finally.
2. By way of present petition, the petitioner seeks following relief :
"(B) By issuing writ of mandamus or any other
appropriate writ, order or directions in the like nature,
respondents may kindly be directed to grant the pension to
petitioner by considering his service on the post of Part-
Time Librarian along with service rendered as Full-Time
Librarian in the light of order dt. 11 th March 2020 passed in
Writ Petition No. 3719/2019, by Hon'ble Division Bench of
High Court at Bombay in case of Smt. Prema Narsinha
Herkal Vs. State of Maharashtra and others."
3. The petitioner was appointed as a part time librarian and has been
granted approval with effect from 12.06.1997. Thereafter approval has also
been granted for appointment of the petitioner as a full time librarian with
effect from 01.07.2006 vide letter dated 27.02.2008.
4. In similar circumstances, this Court has passed an order dated
04.07.2020 in Writ Petition No. 6337/2019 (Rajendra Rangnath Sambhus
Vs. The State of Maharashtra and others) which reads thus :
"By this petition under Article 226 of the Constitution
of India, the petitioner is seeking upgradation to the post of
full time Librarian as per the Government Resolution dated
28.06.1994 with effect from 15.03.1995.
2 The petitioner was appointed in Respondent No. 6-
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School as a part-time Librarian on 15.03.1995. The
petitioner is holding the qualification as B.Com. and Librarian
and Training Course ('LTC'). The appointment of the
petitioner was approved by the Education Officer.
Subsequently, the petitioner has been appointed as a full time
Librarian with effect from 01.04.2006, which appointment
has also been approved by the Education Officer on
23.03.2007.
3 The petitioner is placing reliance on the Government
Resolution dated 03.08.2006, by which it is provided that
whenever and wherever strength of the students in the college
exceeds one thousand, the post is required to be upgraded as
full time Librarian.
4 The learned Counsel for the petitioner has placed
reliance on the decision of this Court in batch of writ petitions
bearing W. P. No.12902 of 2018 and others (Punjahari
Baburao Dighe & others Vs. State of Maharashtra & others),
decided on 06.05.2022, in order to submit that similar relief
has been granted by this Court in identical circumstances.
5 On behalf of the Respondents, reliance is placed on the
decision of this Court in Writ Petition No. 2311 of 2013
(Satish Ganpatrao Patil Vs. State of Maharashtra & others),
decided on 31.03.2015.
6 However, learned Counsel for the petitioner points out
that the decision in Satish Ganpatrao Patil (supra) has been
considered by this Court in W. P. No. 12902 of 2018 in
paragraphs no. 56 and 57 of the judgment and order dated
06.05.2022.
7 We have heard learned Counsel for the respective
parties. Perused record.
8 It appears that the petitioner was appointed as a part-
time Librarian in the Respondent-School on 15.03.1995 and
has been subsequently appointed as full time Librarian with
effect from 01.04.2006. The record also discloses that the
strength of the students in the school had exceeded one
thousand in the year 1994-95 itself, which aspect is not
disputed on behalf of the Respondent-State. Thus, in our
considered view, the petitioner would be entitled to the
benefit of the Government Resolution dated 03.08.2006. The
petitioner has since retired from service on 31.03.2021. This
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petition was, therefore, amended in order to incorporate
prayer clause "B-1", as under:
B-1) Hold and declare that, the petitioner is entitled for
upgradation to the post of full time librarian as per
Government Resolution dated 28.06.1994 w.e.f.
15.03.1995 and to issue appropriate writ or direction in
the like nature directing the respondents to issue orders
for upgradation as a full time librarian and to release all
consequential monitary and service benefits in favour of
the petitioner and for that purpose issue necessary
orders.
9 The learned Counsel for the petitioner is restricting his
claim to the extent of prayer clause "B-1" except that the
petitioner is not claiming any arrears of salary from
15.03.1995 till 01.04.2006.
10 In that view of the matter, the petition is allowed in
terms of prayer clause "B-1", subject to the condition that the
petitioner shall not be entitled to the arrears of salary for the
period from 15.03.1995 to 01.04.2006. However, the said
period shall be notionally reckoned for giving pensionary and
all consequential benefits to the petitioner. Such benefits be
extended within eight weeks from today."
5. The learned A.G.P. submits that since the petitioner has been granted
approval as a full time librarian with effect from 01.07.2006, the petitioner
would be governed by the provisions of the new Defined Contributory
Pension Scheme. However, we find that this issue is no more res integra
and is covered by the judgment dated 06.05.2022 in Writ Petition No.
12902/2018, Punjahari Baburao Dighe and others Vs. The State of
Maharashtra and others, para No. 53 of which reads thus :
"53. The Division Bench of this Court at Principal Seat,
comprising one of us (R.D. Dhanuka, J.) in the case of Smt.
Urmila Ashok Kamble Vs. The State of Maharashtra and
Others in Writ Petition (St.) No. 57/2020 delivered on 27 th
October 2021, after considering the similar facts and also
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after considering the Full Bench judgment of this Court in
case of Deshmukh Dilipkumar Bhagwan and Ors. Vs. State of
Maharashtra in Writ Petition No. 8387/2013 decided on
26.8.2019 (supra) held that the petitioner had been
appointed as librarian much prior to 1st November 2005 and
therefore, the provisions of Defined Contributory Pension
Scheme would not be applicable. The school in which the
petitioner was working at the relevant time was a fully aided
school and hence, the provisions of Defined Contributory
Pension Scheme framed under the Government Resolution
dated 31st October 2005 cannot be made applicable to the
petitioner therein. This Court accordingly held that the case
of the petitioner would be governed by the provisions of
MCPS Rules 1982, The Maharashtra Civil Services
(Commutation of Pension) Rules, 1984 and the existing
General Provident Fund Scheme and not in accordance with
the Defined Contributory Pension Scheme. The principles
laid down in the said case of Smt. Urmila Ashok Kamble
(supra) would apply to the facts of the present cases. We do
not propose to take any different view in the matter."
Thus, the date of approval on the post of full time librarian would not
decide the entitlement of the petitioner in respect of a particular pension
scheme.
6. Accordingly the said objection raised by the learned A.G.P. does not
find favour with this Court.
7. Learned advocate Mr. Wakade for the petitioner makes a statement
that the petitioner would not claim arrears of salary in respect of his service
as a part time librarian.
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7. The Writ Petition is disposed of. Rule is accordingly made absolute in
terms of prayer clause 'B'.
8. However, it is clarified that in respect of the services of the petitioner
as a part time librarian, only 50% of his service shall be counted.
(SANDEEP V. MARNE J.) (MANGESH S. PATIL, J.)
mkd/-
