Bombay High Court
Gangasagar Umrao Kawale And Others vs The State Of Maharashtra And Others on 5 February, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:2469-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10170 OF 2021
1) Gangasagar W/o Umrao Kawale,
Age-40 years, Occu:Household,
R/o-Patil Nagar, Vasmat,
District-Hingoli,
2) Vikas S/o Umrao Kawale,
Age-16 years, Occu:Education,
R/o-Patil Nagar, Vasmat,
District-Hingoli,
3) Janhavi D/o Umrao Kawale,
Age-18 years, Occu:Education,
R/o-Patil Nagar, Vasmat,
District-Hingoli,
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through the Secretary of Higher
Education Department,
Mantralaya, Mumbai-32,
2) The Director, Higher Education,
Maharashtra State, Pune,
3) The Joint Director, Higher Education,
Nanded Regional Office, Nanded,
4) Accounts Officer (Grants),
Office of the Joint Director, Higher
Education, Nanded Region, Nanded,
District-Nanded,
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5) Swami Ramanand Tirth Marathwada
University, Through its Registrar,
Dnyantirth, Vishnupuri,
Nanded, District-Nanded,
6) Shri. Yoganand Swami College,
Through its Principal,
Vasmat Nagar, District-Hingoli.
...RESPONDENTS
...
Mr. R.R. Deshpande Advocate h/f. Ms. P.R. Deshpande
Advocate for Petitioner.
Mr. S.K. Shirse, A.G.P. for Respondent Nos. 1 to 3.
Mr. U.S. Malte Advocate for Respondent No.5 present
through Video Conferencing.
None present for Respondent No.6.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE OF RESERVING JUDGMENT : 11th JANUARY 2024
DATE OF PRONOUNCING JUDGMENT : 5th FEBRUARY 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Petition has been filed by the legal representatives
of deceased Umrao Vitthalrao Kawale, who died on 26 th May
2021 at Secunderabad due to Covid-19, for following reliefs:-
"B] By issuing the writ of certiorari or any other appropriate
writ or order or direction in the like nature, the communication
dated 23-07-2021 issued by the respondent No.4 namely
Accounts Officer (Grants), Office of the Joint Director Higher
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Education, Nanded Region, Nanded, may kindly be quashed and
set aside.
C] By issuing the writ of certiorari or any other appropriate
writ or order or direction in the like nature, the respondent Nos. 1
to 6 may kindly be directed to process, sanction and disburse the
family pension and other retirement benefits to the petitioners in
consonance with the Rules and Regulations, within the stipulated
period which this Hon'ble High Court would deem fit and proper.
E] By issuing the writ of certiorari or any other appropriate
writ or order or direction in the like nature, the respondent Nos.1
to 6 may kindly be directed to pay all the arrears of the
pensionary benefits as well as the other retirement benefits in
respect of the deceased to the petitioners with 15% interest p.a.
till its realization."
2. It is the case of the petitioners that deceased Umrao was
serving as assistant professor in respondent No.6 college. He
came to be appointed in pursuant to the advertisement
published by respondent No.5 on 5 th June 2001. He came to be
selected by the selection committee duly constituted for the
purpose of making appointment in furtherance of the
advertisement. Pursuant to order dated 9th March 2002,
deceased Umrao was appointed as full time assistant lecturer. He
had successfully completed his probation of two years after the
appointment. Respondent No.5 had accorded approval to the
services of deceased Umrao by letter dated 24 th August 2006
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from the date of joining i.e. 11th March 2002, subject to passing
of NET / SET Examination. While in service the deceased has
successfully completed his M.Phil degree in Sociology as on 3 rd
August 2009. The respondent authorities even granted additional
increment on account of his said achievement in getting M.Phil.
Degree from 3rd August 2009. The deceased acquired the
additional higher qualification of Ph.D. in Sociology on 14 th
October 2017 from respondent No.5 University. Even additional
three increments on account of the same came to be granted
from 14th October 2017. Permanent appointment order came to
be issued by respondent No.6 college on 6 th November 2017,
which again confirmed that the services rendered by the
deceased from 11th March 2002 have been regularized.
Deceased expired at the age of 44 years. Respondent No.6 was
requested to forward proposal for the family pension.
Accordingly, the proposal was forwarded in consonance with the
provisions of the Maharashtra Civil Services (Pension) Rules to
respondent Nos.3 and 4. However respondent No.4 declined to
sanction the family pension on the ground that deceased had not
acquired the requisite qualification within the prescribed period.
It was stated that the deceased was not holding the requisite
qualification of NET / SET Examination and had also not obtained
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the same within the prescribed period nor the higher
qualification as an exemption for the condition of passing the
NET / SET Examination. In fact the deceased has rendered
pensionable service. His services have been approved. Similarly
situated lecturer, namely, Vijaykumar Baburao Ranpise, who
came to be appointed on 14th August 1995 for the subject
history, who had retired on 30 th February 2018, when refused to
give pension, had approached this Court by filing Writ Petition
No.755 of 2019 and his Petition came to be allowed on 9 th April
2019. Further, similarly situated other lecturers have also been
granted pension, of whom names have been given with other
details, in the Petition and therefore, the petitioners prayed that
similar treatment be given to them.
3. Dr. Vitthal Ramrao More, Joint Director Higher Education,
Nanded Region, Nanded has filed affidavit-in-reply on behalf of
respondent Nos.1 to 3. The other facts are admitted but it is said
that on the date of appointment the deceased was holding
educational qualification of M.A. only. Deceased completed
M.Phil. on 3rd August 2009 and Ph.D. on 14 th October 2017. As
per the notification of the University Grands Commission dated
19th September 1991 it was mandatory to possess the NET / SET
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qualification for getting an appointment as lecturer in non-
agricultural Universities and affiliated colleges. Appointment of
the deceased in respondent No.6 college is not as per the said
qualification. Government Resolution dated 27 th June 2013
prescribes that the approval would be granted to the services of
those non-NET/SET teachers appointed during the period from
23rd October 1992 to 3rd April 2000. Taking into consideration the
date of appointment of the deceased, the said Resolution dated
27th June 2013 is not applicable to him. The cases in respect of
allegedly similarly situated lecturers are concerned, this Court
had come to the conclusion that they were fulfilling the criteria of
Government Resolution dated 27 th June 2013. Rule 31 of the
Maharashtra Civil Services Rules 1982 mentions that if the duties
and salary of the employee is not being regulated by the
Government or the conditions prescribed by the Government,
then the service will not qualify for pension. The acquisition of
the higher qualification by the deceased is after the cut-off dates
and therefore, the family pension cannot be granted.
4. Heard learned Advocate Mr. R.R. Deshpande holding for
learned Advocate Ms. P.R. Deshpande for the petitioner, learned
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AGP Mr. Shirse for respondent Nos.1 to 3 and learned Advocate
Mr. Malte for respondent No.5, through Video Conferencing.
5. In order to cut short, it can be said that all the learned
Advocates have argued in support of their respective
contentions.
6. At the outset we would like to say that the decisions which
have been relied on by the learned Advocate for the petitioner
contended different set of facts. In those petitions the
appointment of the petitioners therein was prior to 23 rd October
1992 and therefore, it was held that they were covered by
University Grants Commission Resolution dated 19 th September
1991 which came to be implemented in the State on 30 th
October 1992. Here the facts are already stated, however to
recapture, it can be said that the appointment of the deceased
was on 9th March 2002. The approval was granted by the
University on 24th August 2006 which was subject to passing of
NET / SET Examination and it was temporary approval. The
deceased completed his M.Phil on 3rd August 2009 and he was
awarded Ph.D. on 14th October 2017. Thereafter the institute
wherein the deceased was serving i.e. respondent No.6 had
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forwarded proposal to grant permanency to the deceased, which
came to be approved by the University on 13 th December 2017.
Entry was taken in his service book to that effect. Now, it is to
be noted that there is a presumption that when University grants
approval to the permanency then it has considered all the
requirements / rules / regulations. The said approval granted by
the University was never challenged by anybody. Unfortunately,
the deceased expired on 26th May 2021. Now the petitioners
cannot be asked to answer the deficiencies.
7. Since the University has granted approval on 13 th
December 2017 and the fact that the deceased had put in
pensionable service, definitely the Petition deserves to be
allowed.
8. At the cost of repetition, we are saying that it is since the
University has granted approval, who was required to consider
whether the appointment was proper or not and the Government
cannot raise objection to that effect at a later stage; we are
constrained allow the Petition. Accordingly, the Writ Petition is
allowed.
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9. We direct that petitioner No.1 would be entitled for pension
and pensionary benefits. The respondents shall consider the case
of the petitioners for pensionary benefits and shall not refuse to
grant pensionary benefits to them on the ground that the
deceased had not possessed the necessary qualification.
Therefore, we set aside the order dated 23 rd July 2021 issued by
respondent No.4. Respondent Nos. 1 to 6 to process and
sanction the family pension and other retirement benefits to
petitioner No.1 in consonance with the rules and regulations,
expeditiously and preferably within a period of SIX MONTHS
from the date of this order. It should also include the arrears, if
any.
9. Rule is made absolute in the above terms.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN24
