The State Of Maharashtra, Thr. ... vs Vishnu Mahdevrao Bhoyar
2023 Latest Caselaw 10212 Bom

2023:BHC-NAG:14422-DB


                                                                               wp.7568.2022.judgment..odt
                                                           (1)

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH : NAGPUR

                                       WRIT PETITION NO. 7568 OF 2022

                 1.      The State of Maharashtra,
                         Through its Additional Chief Secretary,
                         Revenue and Forest Department,
                         Mantralaya, Mumbai - 32.

                 2.      The Divisional Commissioner,
                         Amravati.

                 3.      The District Collector, Washim.                       ..... PETITIONERS

                                                    // VERSUS //

                        Vishnu S/o Mahdevrao Bhoyar,
                        Aged about 60 Years,
                        Occupation : Retired 'Circle Inspector'
                        (absorbed in State Government Service on
                        17.05.2003 on the Establishment in
                        the O/o. Sub-Divisional Officer,
                        Mangrulpir.
                        R/o. Mahalaxmi Nagar, Wadegaon Raod,
                        Yavatmal, Taluka and District Yavatmal.                .... RESPONDENT

                 ---------------------------------------------------------------------------------------
                         Shri N. S. Rao, AGP for petitioners/State.
                         Shri A. P. Sadavarte, Advocate for respondent.
                 ---------------------------------------------------------------------------------------



                                               CORAM :        AVINASH G. GHAROTE AND
                                                              URMILA JOSHI-PHALKE, JJ.

RESERVED ON : 29.08.2023 PRONOUNCED ON : 04.10.2023

JUDGMENT : [ PER: URMILA JOSHI-PHALKE, J.]

1. RULE. Rule made returnable forthwith.

wp.7568.2022.judgment..odt

2. The matter is finally heard by the consent of the parties.

3. The order passed by the learned Maharashtra Administrative

Tribunal, Nagpur Bench Nagpur in original Application No.545/2020

dated 17.12.2021 is under challenge in this petition, by which, the

application filed by the respondent No.1 is allowed and the applicant is

directed to consider the respondent No.1 as a permanent employee with

effect from the entries in the service as Muster Assistant till the date of

superannuation. The Tribunal further directed the respondents to

consider the case of the deceased employee for all the pensionary

benefits, as may be admissible, as per rules.

4. Being aggrieved and dissatisfied with the said directions,

present petition is preferred by the State. The respondent Vishnu

Mahadevrao Bhoyar was firstly appointed under the Employment

Guarantee Scheme (hereinafter referred to as "EGS") on 24.04.1985 and

he was getting Rs.300/- per month as per the order of Sub-Divisional

Officer, Public Works Sub-Division, Yavatmal. On 07.08.1987 as the EGS

work was over and further EGS work was not available, the employment

of the respondent No.1 under EGS came to an end. Therefore,

respondent approached to the Labour Court, Amravati by preferring ULP

No.294/1987. The Labour Court directed that the respondent is to be

taken on work under the EGS. Thereafter, the respondent was taken on wp.7568.2022.judgment..odt

work under EGS till March, 1988. On 08.05.2003, the respondent was

absorbed on the post of Talathi in the office of Sub-Division, Mangrulpir

under the Establishment of Collector, Washim. Thus, he joined as a

Talathi on 17.05.2003 and in view of that he became a government

employee as per the Maharashtra Civil Services (Pension) Rules, 1982

(hereinafter referred to as "MCS Rule 1982") from 17.05.2003. The

respondent retired from service on 31.07.2020 due to superannuation.

The respondent was retired on 31.07.2020 and given all the benefits

which are admissible as per the rules.

5. The respondent approached to the Maharashtra

Administrative Tribunal, Nagpur by preferring original Application

No.545/2020 contended that he along with the other applicants in the

said application were working as a Muster Assistant on a consolidated

pay of Rs.300/-. They were paid regular pay scale vide Government

Resolution dated 22.02.1993 in the pay scale of Rs.750-940. They

approached to the learned Labour Court as they were discontinued from

their service. As per the order of the learned Labour Court they were

reinstated with continuity of service as per the order of the Labour Court

dated 07.08.1990. Thus, they were absorbed in regular service as per

the Government Resolution dated 01.12.1995 and 21.04.1999. They

claimed to consider them as a permanent employee from their initial wp.7568.2022.judgment..odt

appointment on the post of Muster Assistant and sought directions to

consider them as permanent employees with all pensionary benefits,

which was allowed by the Tribunal.

6. It is submitted on behalf of the petitioner that the

Government Resolution dated 22.02.1993 was misconceived by the

Tribunal. In fact, the respondent is covered by the scheme floated by

Government Resolution dated 01.12.1995, 21.04.1999 and subsequent

circular issued there under and therefore, respondent cannot claim and

is not entitled beyond the scheme floated by Government Resolution

dated 01.12.1995, 21.04.1999. Undisputedly the respondent was

working as a Muster Assistant under the EGS and firstly appointed on

24.04.1985 on monthly pay Rs.300/-. The employment under the EGS

was discontinued on 07.08.1987. By virtue of the order of the learned

Labour Court they were reinstated. Thereafter, respondent was

continued with the Sub-Divisional Officer, Mangrulpir and from

17.05.2003, he was absorbed on the establishment of the petitioner No.3

as a Talathi. Thereafter, he was promoted as Circle Officer on

23.01.2018 and superannuated on 31.07.2020. Thus, he completed 17

years, 2 months and 14 days at the time of superannuation and thus

already has sufficient service for being qualified for regular pension.

wp.7568.2022.judgment..odt

7. It is submitted by the learned AGP Shri Rao for the

petitioners/State that the Tribunal had not considered that he was

already eligible for the pensionary benefits and therefore, the directions

to consider him as a permanent employees with effect from their entries

in the service as Muster Assistant is erroneous and liable to be set aside.

8. Per contra, learned Counsel Shri Sadavarte for the

respondent vehemently submitted that the issue of the entitlement of

Muster Assistant to get pension is considered by this Court in various

judgments and this Court directed the States to consider that the persons

who has been absorbed over a period of time and to consider them for

the pensionary benefits. He placed reliance on the judgment of the Apex

Court in Shaikh Miya Shaikh Chand ETC. ETC. Vs. State of Maharashtra

in Civil Appeal No.6531-6533/2022 dated 07.09.2022, Writ Petition

No.709/2023 (The State of Maharashtra and another Vs. Waman

Ramchandra Kumbhalkar) decided on 27.03.2023 and also Writ Petition

No.10471/2014 (Shri Vikar Ansar Shaikh and other Vs. The State of

Maharashtra, through the Secretary, Planning Department, Mantralaya,

Mumbai and another decided at Principal Seat on 13.11.2017. He

submitted that the contention of applicability of the Government

Resolution dated 22.02.1993 is misconceived. In fact, the respondent is

covered by the scheme floated by Government Resolutions 01.12.1995 wp.7568.2022.judgment..odt

and 21.04.1999. In fact, both the Government Resolutions are self-

explanatory and in both the Government Resolutions it is stated that the

past service on the post of Muster Assistant prior to absorption in State

Government Cadre will not be counted for any purposes.

9. Admittedly, the applicant was initially appointed under the

Employment Guarantee Scheme and later on absorbed in the State

Government Cadre, as per the policy of the State. Though, respondent

relied upon various judgments passed by this Court, however, the facts of

the cited case shows that as the petitioners therein were not eligible for

the pensionary benefit and therefore, this Court has taken a view that

the date of their absorption in the State Government Cadre be

considered for giving them pensionery benefits. Here in the present

case, the pensionary benefits are already granted to the respondent, and

therefore, the said directions given by the Tribunal was not required.

10. Learned Counsel Shri Sadavarte placed reliance on

Government Resolution dated 23.05.2023. The said Resolution was

passed in view of the order of this Court which reads as follows:

"lanHkkZf/ku 'kklu fu.kZ;kl vuqy{kwu 'kklu lsosr lekos'ku >kysY;k gtsjh lgk¸;dkaph rlsp ek- U;k;kf/kdj.k@U;k;ky;s ;kauh fnysY;k funZs'kkuqlkj lekos'ku >kysY;k gtsjh lgk¸¸;dkaph ek- lokZsPp U;k;ky;kus fnukad 07-09-2022 jksth ikfjr dsysY;k vkns'kkl wp.7568.2022.judgment..odt

vuql:u fn-31-03-1997 iklwuph lsok fuo`RrhosrukgZ lsok Eg.kwu xzkg; /kj.;kr ;koh- gtsjh lgk¸;dkaps lekos'ku T;k 'kkldh;

dk;kZy;kr dj.;kr vkys vkgs] R;k dk;kZy;

izeq[kkauh@foHkkxizeq[kkauh@iz'kkldh; foHkkxkus mijksDr fu.kZ;kuqlkj lekos'ku >kysY;k gtsjh lgk¸;dkaph lsokfo"k;d vfHkys[kkaph rikl.kh d:u R;kuqlkj fn-31-03-1997 iklwu fuo`RrhosrukgZ lsok ns.;kckcr dk;Zokgh djkoh- lnjps ykHk gs dkYifudfjR;k xzkg; /kj.;kr ;sr vlY;kus] dks.kR;kgh deZpk&;kyk fnukad 31-03-1997 rs izR;{k lekos'ku ;k dkyko/khrhy dks.krsgh lsokfo"k;d ykHk ok osru Qjd@Fkdckdh jDde vuqKs; ukgh- rlsp iquoZsrufuf'prh dj.;kr ;sÅ u;s- ojhyizek.ks dk;Zokgh 'kklu fu.kZ;kP;k fnukadkiklwu ,d efgU;kP;k dkyko/khr iw.kZ djko;kph vkgs- "

11. In our view, what the Bench considered appropriate to issue

notice was really the aspect that since the absorption occurred over a

period of time, and that may have deprived some persons to their service

as permanent employees, it should be the notional date of absorption on

31.03.1997 which should be taken into account for determining the

pensionable service.

In our view, this is also what the Industrial Court have done where

relief has been granted and it has been accepted by the State.

We are thus of the view that the only direction which can be

issued is that persons who has been absorbed over a period of time post

31.03.1997, for pensionable service, the reckoning date would be

31.03.1997 and such of the persons who have rendered a pensionable

service on that basis would be entitled to that benefits.

wp.7568.2022.judgment..odt

12. Thus, the Government Resolution above referred was issued

in view of the observation of the Hon'ble Apex Court in Special Leave

Petition No.6039-6042/2016 in Civil Appeal No.6531-6534/2022.

13. Learned Counsel for the petitioner relied upon the

provisions of Rules 38, 54 and 58 of MCS Rules 1982. The import of

Rules 30, 33 and 48 of the MCS Rules 1982, has been considered by the

Division Bench of this Court in Muktabai Chandrakant Paravat Vs. State

of Maharashtra in Writ Petition No.12560/2018 with connected matters

decided on 22.04.2022 in which the question whether the employee can

seek condonation of interruption in service to enhance the pension

where the employee has qualifying service for pension, has been

answered in the negative by holding that if the service of an employee at

his superannuation is less than ten years, then the previous temporary or

officiating service needed to be counted for the qualifying service for

pension, as the purpose of condoning the interruptions in service is to

make an employee entitled to the pension by adding the days of his

service and not to enhance the pension for the reason that the pension is

to be calculated and paid on the basis of the last salary drawn on the

substantive permanent post.

14. The question in the present matter is squarely covered Rule

54 of the MCS Rules, 1982 which speaks about the condonation of the wp.7568.2022.judgment..odt

deficiency and addition in service and confers the powers upon the

Government for special reasons to be recorded in writing for doing so. If

Rule 54 of the MCS Rules, 1982 is read in consonance with Rules 33, 34

and 48 of the MCS Rules, 1982 then it cannot be used for the purpose of

enhancement of the pension where the employee has already

pensionable service available to him.

15. Rule 30 of the MCS Rules, 1982 deals with the

commencement of qualifying service. Under this provision the qualifying

service is from the date he takes charge of the post to which he was first

appointed from the date the employer started deduction of provident

fund from the employee. It states that subject to the provisions of these

rules, qualifying service of a Government servant shall commence from

the date he takes charge of the post to which he is first appointed either

substantively or in an officiating or temporary capacity. The proviso of

Rule 30 states that at the time of retirement he shall hold substantively a

permanent post in Government service or holds a suspended lien or

certificate of permanency.

16. Rule 33 of the MCS Rules, 1982 speaks about the Service

rendered under Government followed without interruption by

confirmation counts in full as service qualifying for pension and Rule 48 wp.7568.2022.judgment..odt

the MCS Rules, 1982 speaks about the condonation of interruption in

service. The condonation of break in service in view of Rule 48 the MCS

Rules, 1982 is for the purpose of computation of pension sought by

retired employee.

17. In the present matter, the respondent was absorbed and was

appointed as a Talathi in the office of Sub-Divisional Office, Manglurpir

on 17.05.2003. Thereafter, he was promoted as Circle Officer on

23.01.2018 and he was superannuated on the post on 31.07.2020. Thus,

he had completed 17 years, 2 months and 14 days at the time of his

superannuation and therefore, all pensionary benefits were granted to

him. Considering the same and the intention behind condoning the

interruption in service, is only to make an employee entitled to the

pension by adding the days of his service and not to enhance the

pension, for the reason that the pension is to be calculated and paid on

the basis of last salary drawn on the substantive permanent post, as in

the present case, the present respondent was considered as Government

employee from 17.05.2003 when he was absorbed on the establishment

of Sub-Divisional Office, Mangrulpir and he has already fulfilled the

criteria for getting the benefit of the pension, in view of that, the

observation of the learned Tribunal holding him entitled to be the

permanent employee with effect from his entry in service as Muster wp.7568.2022.judgment..odt

Assistant is erroneous and liable to be set aside, as the respondent is

already getting the pensionary benefits and the learned Tribunal had not

considered the same and erroneously directed the State to treat him as

permanent employee with effect from his entry in the service. In fact,

he became the Government servant form 17.05.2003 and therefore, his

services are rightly counted for giving the benefit of pension, from that

date.

18. In view of the above the directions issued by the learned

Maharashtra Administrative Tribunal deserves to be set aside, and

petition deserves to be allowed. The order passed by the learned

Tribunal in original Application No.545/2020 is quashed and set aside,

and Original Application No.545/2020 is dismissed.

19. Rule is made absolute. No order as to costs.

(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)

Sarkate.

Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 04/10/2023 15:11:33