Bombay High Court
Sudhakar Nivrutrao Kadam vs The State Of Mahrashtra And Others on 18 December, 2023
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2023:BHC-AUG:27133-DB
(1) 9 wp 11054.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11054 OF 2019
Sudhakar s/o. Nivrutrao Kadam
Age: 60 yrs. Occu. Retired
R/o. Parli Vaijnath, Tal. Parli Vaijnath,
Dist. Beed. ... PETITIONER
V/s.
1. The State of Maharashtra
Through the Secretary Social
Welfare Officer, Maharashtra State,
Mantralaya, Mumbai-32.
2. The Chief Accountant General Nagpur,
Dist. Nagpur
3. The Social Welfare Officer Grade I
Zilla Parishad Beed.
4. The Head Master Residential
Dumb and Deaf Vidyalaya
Sangam Road, Parli Vaijinath
Tal. Parli Vaijinath Dist. Beed.
5. Pradhnyaniketan Shikshan Sanstha
Degloor, Tal. Degloor
Dist. Nanded
Through its Secretary.
R/o c/o Head master
Nivasi Mukh Badhir Vidyalay,
Udgir, Tq. Udgir, Dist. Latur. ... RESPONDENTS
...
Mr. N.L. Jadhav, Advocate for the Petitioner
Mr. P.K. Lakhotiya, AGP for Respondent-State
Mr. P.D. Suryawanshi, Advocate for Respondent No.3
...
(2) 9 wp 11054.19
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
DATE : 18th December, 2023
ORAL JUDGMENT:-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2. The Petitioner is an employee of the Deaf and Dumb School
operated by the Social Welfare Department. Permission to run the school on
unaided basis was granted on 13.07.1990. The Petitioner was appointed as an
Art Teacher on 'no grants' basis on 11.10.1993 and on 28.05.1995, the School
was extended grants in aid. On 13.08.2014, the Petitioner was relieved from
service after opting for a voluntary retirement.
3. The question is as to whether the service of the Petitioner on no-
grant in aid basis from 11.10.1993 to 28.04.1995 can be reckoned with for the
purpose of concluding that his service is pensionble. It is undisputed that 20
years of service is the qualifying service for pension.
4. Reliance is placed on the judgment delivered by this Court at
Principal Seat on 03.07.2018 in Writ Petition No.1166/2018 (Shekhar P.
Deshmukh V/s. The Deputy Director Education and Ors.). However, the issue
of the Petitioner working on no grant basis was not addressed to the Court
(3) 9 wp 11054.19
since that was not an issue in the proceedings. There is no contention that the
service of the Petitioner Shekhar (supra) w.e.f. 30.11.1998 was on 'no grant
basis'. In Writ Petition No.2185/2000 decided by this Court at the Principal
Seat, by judgment dated 25.02.2014, also did not involve a case of a Petitioner
working initially on no grant basis.
5. In Homraj Hansaram Bisen and Ors. V/s. State of Maharashtra and
Ors.; 2013 2 Mh.L.J. 401, the issue was as to whether the Petitioners were
working on 100% grant in aid prior to the cut-off date 01.11.2005. This case
also did not involve an issue as like the present case before us. In Deshmukh
Dilipkumar Bhagwan and Ors. V/s. State of Maharashtra and Ors.; 2019 (3)
Mh.L.J. 903, the Full Bench of this Court was required to deal with an issue
under Rule 19 of the M.E.PS. Rules 1981 as to whether the Petitioners were
working on 100% grant in aid prior to 01.11.2005, so as to be eligible for the
Old Pension scheme.
6. It is undisputed that if the 20 years from the date of reference i.e.
the date of relieving of the Petitioner on 13.08.2014, are to be calculated, the
period from 13.08.1994 would be the date from which the service will have to
be reckoned with. It is also undisputed that the Petitioner joined service on
11.10.1993 as an Art Teacher when the school was on no grant in aid basis.
(4) 9 wp 11054.19
The grants in aid were received from 28.04.1995. To take care of such
employees, the School Education and Sports Department, Government of
Maharashtra issued a circular dated 08.04.2008 and has provided in Clause
1-B, 2 and 3 as under:
" (ब) काही मान्यााा्र अशासकी् ववनाअनुदावनय माध्वमक शाळा
सुरुवायीस काही ठराववक वरार्ष्रय शासना््ा अनुदाना््ा उषलब्धयेअभावी
ववनाअनुदावनय संववरार्य राहयाय व कालबांवयराने अनुदानावर ्ेयाय. अशा
शाळे यीलब सेवा असेलब यर अशा शशिकांवनी संवबंवधधय ववनाअनुदावनय मान्
अशासकी् माध्वमक शाळे ््ा व्वस्ाषनाने त्ा््ा अंवशदा्ी भववि् वनवार्ह
वनधी््ा खात्ाय जमा केलबेलबी रक्म त्ावरीलब व्ाजासहीय शासकी्
कोराराराय जमा कराची, षंवरयु व्वस्ाषनाने अंवशदा्ी भववि् वनवार्ह वनधी
सुरुच केलबा नसेलब यर शासन वनिरर् ्, शशििर, कीडा समाज कल्ािर ववभार,
कमांवक एसरसएसरसएसरन १९६नान-जी, वदनांवक २ माचर् , १९६न७१९६ अनव्े सषपीकरिर
केल्ाामािरे अशासकी् माध्वमक शाळे य केलबेलबी सेवा कालबावधीय अंवशदा्ी
भववि् वनवार्ह वनधी भरण््ा््ा अटी शशवा् अशी सेवा वनवृत्ी वेयनासाठी
ग्राह् धरावी.
2. शासनाने वरीलबामािरे सव्ंवसषप आदेश असयानाही शामन मान्
अशासकी् वनअनुदावनय षरंवयु कालबायंवराने अनुदानावर आलबेल्ा शाळायीलब
शशिकांवची वनवृत्ीवेयन ाकरिरे मान् करयाना ववनाअनुदावनय कालबावधीयीलब
सेवे््ा कालबावधीचे अंवशदा्ी भववि् वनधीची रक्म व्ाजासह कोराराराय
भरण््ाची सकी केलबी जाय आहे. असे शशिक लबोक ाधयवनधीनी शासना््ा
वनदशर् नास आिरलबे आहे.
(5) 9 wp 11054.19
३. शशििर, कीडा व समाज कल्ािर ववभार, कमांवक एसरसएसरसएसरन १९६न७१९६-जी,
वदनांवक १९६४ फेबुवारी, १९६न७२ ्ा शासन वनिरर् ्यीलब आदेश लबिाय घेया असे
सषप करण््ाय ्ेये की , मान् शासकी् ववनाअनुदावनय माध्वमक शाळा
कालबांवयराने अनुदानावर आलबेल्ा आहेय अशा शाळामध्े ववनाअनुदावनय
कालबावधीय केलबेलबी सेवा वनवृत्ी वेयनासाठी ग्राह् धरण््ाचे व सदर
कालबावधीचे अंवशदा्ी भववि् वनवार्ह वनधी वरर् िरी जर व्वस्ाषनाने
शशिका््ा खात्ाय जमा केलबी असेलब यर अशा शशिकांवनी सदर रक्म
व्ाजासवहय शासकी् कोराराराय जमा करावी षरंवयु व्वस्ाषनाने अंवशदा्ी
भववि् वनवार्ह वनधी सुरुच केलबा नसेलब यर अशी रक्म संवबंवधीय शशिकाकडू न
वसूलब करण््ाय ्ेऊ न्े."
7. It is, therefore, obvious from the GR that the service put in by the
employee prior to the school receiving grant in aid has to be considered while
reckoning the qualifying service period. Issue as regards whether the
Management was deducting contribution towards the pension prior to
01.11.2005, was also dealt with and in an extreme case where the school did
not even open the pension account or did not deduct contribution towards the
pension prior to receiving grants, the Government provided that if the
contributions were made, they should be added to the Petitioner's account for
pension purposes. But, if no such contribution was made, the amount should
not be recovered from the employee.
(6) 9 wp 11054.19
8. In the judgment of the learned Full Bench in Deshmukh
Dilipkumar Bhagwan (supra), it was observed in paragraph 32, 33 and 34 as
under:
"32. Rule 19 of the Rules of 1981 only recognizes the right of
employees of the aided schools and colleges to receive pension at
the rates and in accordance with the rules as sanctioned by the
Government to the employees of such schools. Under GR dated
31.10.2005, the Government replaced the existing pension scheme
by the DCP scheme which would be applicable to certain class of
employees. Rule 19 of the Rules of 1981 does not prescribe any
specific pension scheme, it only refers to payment of pension at the
rates and in accordance with the rules as sanctioned by the
Government. The DCP scheme which replaced the existing pension
scheme would also be in consonance with Rule 19 of the Rules of
1981. As per this rule, it was within the powers of the Government
to prescribe the rates and the rules in accordance with which the
employees would be eligible to receive pension. The contention of
the learned counsel for the petitioners, therefore, that the DCP
scheme could not have been implemented without amending Rule
19 of the Rules of 1981 cannot be accepted.
33. It is true that the relevant rules under grant-in-aid code refer
to an aided school and does not make a distinction between a
partially or fully aided school. Nevertheless, the liability of the
Government to pay pensionary benefits to a retired employee of a
private school can arise only if the Government has undertaken to
pay 100% grant to the school. As noted, very concept of expecting
the Government to pay such pension even in a case where the
Government has so far not undertaken the liability to pay 100%
grant is abhorrent to the basic principle of service law.
34. It is true that the service put in by an employee of a
recognized private school during the time when such school was not
receiving grant, would also count towards the qualifying service for
pension when such employee retires from a school which receives
grant. This was also the context of G.R. dated 8.4.2018 noted earlier.
This, however, would not mean that the employee appointed in a
(7) 9 wp 11054.19
school can claim to be governed by the pension scheme till the
school starts receiving 100% grant."
[The GR is dated 08.04.2008 (wrongly typed as 08.04.2018 in paragraph 34)].
9. It is thus obvious that service put in by an employee in a school
which was without grants initially, but was 100% grant in aid prior to
01.11.2005 and he retired from service thereafter, can be considered for
pension, meaning thereby that the short period of working when the school
was without grants, will have to be reckoned with for the purposes of deciding
qualifying service.
10. In Writ Petition No.8990/2021 (Smt. Manasi Sudhir Mane @
Aruna Yashwant Patil V/s. The State of Maharashtra and Ors.) along with other
matters, decided by judgment dated 11.04.2022, it has been observed in
paragraph 8 as under:
"8. In the case of Nilesh s/o Namdev Gurav (supra) after
considering all these cases, this Court has held that the Government
Resolution dated 31st October, 2005 and in particular Clause 4 thereof
lays down that it is only those employees who are recruited on or after
1st November, 2005 in the services of the recognized aided educational
institutions who would be governed by the new pension scheme i.e.
DCP Scheme. It is further held that those employees appointed prior to
1st November, 2005 in aided educational institution and receiving
100% grant-in-aid prior to 1 November, 2005 shall be governed by the
old pension scheme. It is further held that those employees, who were
appointed prior to 1 November, 2005 and occupied a part time fully
aided post receiving 100% grant-in-aid from the State Government,
would be governed by the old pension scheme. It is also held, relying
upon the decision in the case of Shri. Purushottam Harishchandra
Sirsekar ¹, that if school employee is appointed on a post which is a
(8) 9 wp 11054.19
sanctioned aided post on part time basis, he would be governed by the
old pension scheme. This Court further held that if school employee
had been appointed prior to 1" November, 2005 on un-aided post but
the school has been receiving 100% aid since prior to 1" November,
2005, even such employee would be qualified as per the Government
Resolution dated 19th July, 2011 to get the benefits of the old pension
scheme."
11. As such, in Purshottam Harishchandra Sirsekar and Anr. V/s. The
State of Maharashtra and Ors., Writ Petition No. 2538/2021 (Principal Seat), it
was held that if a school employee is appointed on a post prior to 01.11.2005
on an unaided post, but the school has been receiving 100% aid prior to
01.11.2005, even such employee would be qualified, as per the GR dated
19.07.2011, to get the benefits of the old pension scheme. The judgment of the
learned Full Bench in Smt. Manasi Sudhir Mane (supra) and Purshottam
Harishchandra Sirsekar (supra) clears all doubts that the period of service of an
employee in an unaided school in which 100% grant in aid was received by the
school prior to 01.11.2005 and the employee has retired when the school was
on 100% grant in aid, even such employee would be eligible for pensionary
benefits by reckoning his period of service when the school was without grant
in aid.
12. In view of the above, this petition is allowed in terms of prayer
clause-D-1 which reads as under:
"D-1) By issuing writ of certiorari, writ of mandamus or appropriate
writ impugned communication dated 3.8.2019 issued by the Social
(9) 9 wp 11054.19
Welfare officer, Zilla Parishad Beed may kindly be quashed and set
aside and the District Social Welfare Officer, Zilla Parishad, Beed may
kindly be directed to grant approval to the service rendered by the
petitioner w.e.f. 11.10.1993 to 31.3.1994 on the post of Craft Teacher
for the purpose of counting the said service for grant of pension and
pensionary benefit to the petitioner and accordingly he may be directed
to submit the same to the A.G Nagpur, within one month or as directed
by this Hon'ble Court."
13. In the light of the above, the prayer set out at clause-D-2 would
not survive.
14. Rule is made absolute in the above terms.
15. As such, a fresh proposal for grant of pensionary benefits by
reckoning the period of employment of the Petitioner as an Art Teacher from
11.10.1993 shall be forwarded. While computing completion of qualifying
service of 20 years, the date of his retirement being 13.08.2014 shall be
considered. Let such proposal be forwarded within 45 days from today by the
Management. The Petitioner would cooperate with the Management in the
completion of such papers / proposal. Thereafter, the concerned authority from
the Social Welfare Department would forward the papers after scrutiny to the
Accountant General at Nagpur within further 45 days so as to commence the
payment of pension to the Petitioner w.e.f. from the date of his retirement.
( 10 ) 9 wp 11054.19
16. The Accountant General to calculate the interest component as per
the permissible statutory rates of interest per annum for the delayed payment
of pension from the date of retirement of the Petitioner, until the amount is
actually paid.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
