A.N. Radha vs State Of Maharashtra, Through ...
2022 Latest Caselaw 9576 Bom

Judgment                                   1               6.wp.1414.2020.judg.odt




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      NAGPUR BENCH, NAGPUR.

                      WRIT PETITION NO.1414 OF 2020

      A. N. Radha
      Aged 65 Yrs., Occu.: Retired,
      R/o. A/3, Neelay, 46-A,
      Gokulpeth, Nagpur                                 .... PETITIONER

                                  // VERSUS //

     1. State of Maharashtra,
      Through Secretary, Higher
      Technical Education Division,
      Mantralaya, Extension, Mumbai -400 032

     2. The Director of Technical Education,
       Maharashtra State, No. 3, Mahapalika
      Marg, PB 1967, Mumbai 1

    3. Women Education Society,
     through its Chairman,
     Technical Education and Research
     Institute, North Ambazari Road,
     Nagpur 440 010.                          .... RESPONDENTS
___________________________________________________________________
      Dr. R. S. Sundaram, Advocate for the petitioner
      Mr N. S. Rao, AGP for respondent Nos.1 &2
___________________________________________________________________
                      CORAM : SUNIL B. SHUKRE AND
                               G. A. SANAP, JJ.

DATED : 21.09.2022

ORAL JUDGMENT : (PER : SUNIL B. SHUKRE, J.)

1] Heard. RULE. Rule made returnable forthwith. Heard

finally by consent.

 Judgment                              2                6.wp.1414.2020.judg.odt




2]            The petitioner is granted permission to amend the prayer

clause. The prayer clause be amended as per Government Resolution

dated 20.02.1985.

3] Nobody is present for respondent No. 3 before this Court.

But, respondent No. 3 has already given its no objection by letter dated

17.11.2016 for granting pension and other retiral benefits to the

petitioner.

4] This petition is seeking pensionary benefits and gratuity in

accordance with the pension scheme formulated under the

Government Resolution dated 20.02.1985. However, the Pension

Scheme and Death-cum-Retirement gratuity Scheme has not been

made applicable to the petitioner on the ground that she had given an

option for being governed by Contributory Provident Fund Scheme.

5] According to the learned counsel for the petitioner, the

reasons stated in the impugned order are contrary to the provisions of

the Scheme itself. In the opinion of learned AGP, the impugned order is

correct, although the respondent Nos. 1 and 2 would not explain as to

how the impugned order will be reconciled with the provisions made in Judgment 3 6.wp.1414.2020.judg.odt

the Government Resolution dated 20.02.1985, whereby the above

Scheme was brought into force.

6] In the opinion of respondent Nos. 1 and 2, as stated

earlier, the Pension Scheme could not be made applicable to the

petitioner because she had given an option to be governed by

Contributory Provident Fund Scheme. But, it is an admitted fact that

the petitioner was appointed as a Principal with effect from 01.09.1985

and approval for which was issued by the Government on 21.08.1985.

Under Clause 8-C, no option regarding applicability of earlier

Contributory Provident Fund Scheme or Pension Scheme as per

Government Resolution dated 20.02.1985 is available to those

employees who have been recruited on or after 01.10.1982. For the

sake of convenience this clause is reproduced as below:

"(c) Those employees who have been recruited on or after 1st October 1982 shall not have any option, but they shall be governed by the Pension and Death-cum-retirement-gratuity scheme sanctioned under this resolution, provided they are otherwise eligible."

7] The provision made under Clause 8-C of the Government

Resolution dated 20.02.1985 was again reiterated by the Government

in its Government Resolution dated 10.08.1994, where it is said that Judgment 4 6.wp.1414.2020.judg.odt

the employees of Non Agricultural Universities and affiliated non

Government Colleges, appointed after 01.10.1982 and in service on the

date of issuance of the Government Resolution would have no option

whatsoever to be governed by either of the Schemes and would be

perforced governed by the pension and gratuity scheme alone. The

relevant portion of the Government Resolution dated 10.08.1994 for

the sake of convenience is reproduced as under:

"Considering all the above relevant matter Govt. has now decided that, henceforth in Non-agricultural Universities and affiliated non-Govt. Colleges, those teaching and non- teaching employees who had been appointed after 1.10.1982 and those who are presently in service and those who would be appointed in service thereafter. All such employees only Pension and Gratuity Scheme alone should be made applicable. Those employees who have not yet exercised option for Pension and Gratuity Scheme in order to avail benefit of CPF such employees should also be governed only by pension scheme alone. All concerned should take note of the same."

8] So, it is clear that even if the petitioner had given some

option as regards applicability of Contributory Provident Fund Scheme,

the option so given carried no meaning from the view point of applying

the Pension Scheme to the employees appointed on or after

01.10.1982. The petitioner having been appointed after 01.10.1982,

did not have benefit of exercising any option and is compulsorily

governed by the Pension-cum-Gratuity Scheme as promulgated in Judgment 5 6.wp.1414.2020.judg.odt

Government Resolution dated 20.02.1985 and reiterated in subsequent

Government Resolution dated 10.08.1994. The reasons stated in the

impugned order for denial of benefit of Pension-cum-Gratuity Scheme

to the petitioner are contrary to the executive instructions contained in

the Government Resolutions dated 20.02.1985 and 10.08.1994. The

impugned order, therefore, deserves to be quashed and set aside. The

petition is, thus, allowed in terms of prayer clauses (a), (a-1), (b) and

(b-1), which read as under:

"(a) Issue a Writ of Certiorari and/or Writ, order or direction thereby direct the respondent no.1 State of Maharashtra, through Secretary, Higher Technical Education, Mumbai and the respondent no.2 Director of Technical Education, Maharashtra State, Pune to grant pensionery benefits and gratuity to the petitioner as per Govt. Resolution dated 28/02/1985 which is at Annexure F, after duly accepting the option submitted by the petitioner on 28/01/2005 which is at Anne-H within a stipulated time period in the interest of justice; (a-1) Order and direct the respondents No.1 and 2 respectively to extend the same concession granted to other graduate Lecturers and Professors as per Government Resolution dated 23/06/2015 to the petitioner since petitioner is identically placed;

(b) Order and direct the respondent nos. 1 and 2 to pay the arrears of pension and gratuity along with interest @ 12% per annum, within a stipulated time period; (b-1) Issue writ, writ order or direction quashing and setting aside the communication dated 20/02/2017 (Annexure -O) there by rejecting the claim of the petitioner for pension cum gratuity scheme being illegal and improper."

                                 Judgment                              6               6.wp.1414.2020.judg.odt




                                9]           Pension alongwith all arrears and other benefits and

applicable interest for delayed payment, under Rule 129-B of the

Maharashtra Civil Services (Pension) Rules, 1982, be paid to the

petitioner in terms of this final order within a period of three months

from the date of the receipt of the order.

10] Rule is made absolute in the above terms. No costs.

                                               (G. A. SANAP, J.)          (SUNIL B. SHUKRE, J.)




                                Namrata




Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:21.09.2022 17:52