Bombay High Court
Anita Bhagawat Narkhede Alias Anita ... vs The State Of Maharashtra Through ... on 5 February, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:2400-DB
(1) wp 13031.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13031 OF 2023
Anita Bhagawat Narkhede alias
Anita Avinash Kolhe
Age: 53 years, Occu: Service
R/o Plot No.6, Madhukunj, Shakarwadi,
Ring Road, Dist. Jalgaon. ... PETITIONER
V/s.
1. The State of Maharashtra
Through its Secretary of Education,
Mantralaya, Mumbai.
2. Deputy Director of Education,
Nashik, Dist. Nashik.
3. Education Officer (Secondary)
Zilla Parishad, Jalgaon.
4. Leva Educational Union,
Jilha Road, Jilha Peth,
District Jalgaon
through its Secretary
5. Dr. Annasaheb G.D. Bendale Mahila College,
Jilha Road, Jilha Peth, Dist. Jalgaon
Through its Principal
6. Kaviyitri Bahinabai Chaudhary
North Maharashtra University
P.B. No.80, Umavi Nagar, Jalgaon
Through its Registrar. ... RESPONDENTS
...
Ms. Nayana Patil h/f. Surekha Mahajan, Advocate for the Petitioner
Mr. S.B. Narwade, AGP for Respondent-State
Mr. S.R. Patil, Advocate for Respondent Nos.3 & 4
...
(2) wp 13031.23
CORAM : RAVINDRA V. GHUGE &
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 18th January, 2024
PRONOUNCED ON : 5th February, 2024
JUDGMENT (Per: Y. G. Khobragade, J.) :
-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2. By this petition under Article 226 of the Constitution of India, the
Petitioner prayed for issuance of Writ of Mandamus directing the Respondents
to consider 6 years of part time service w.e.f. September 2001 to September
2007 while computing qualifying service for the pensionary benefits.
3. The learned advocate for the Petitioner submits that, the Petitioner
has qualified B.Sc, MP.Ed and DCM. She was appointed as Shikshan Sevak
(Physical Education) with the Respondent No.5 Junior College on part time
basis w.e.f. 18.09.2001. Her appointment was duly approved by Respondent
no.2 vide order dated 11.02.2002. She worked with the Respondent no. 5 for
the period of 6 years w.e.f. 18-09-2001 to 18-09-2007 as a part time lecturer in
Physical Education. Thereafter, she was appointed on full time Shikshan Sevak
(Physical Education) w.e.f. 20.06.2007.
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The Respondent No.2 Deputy Director of Education granted approval to the
appointment of the petitioner on 06.11.2007. In the year 2007, she was
granted senior pay scale. Then, she was appointed as a Director of Physical
Education with Respondent No.5-College on 25.09.2013 on 100% grant-in-aid
basis against the vacant post. On 03.01.2014, the Respondent No. 6 University
granted approval for said appointment w.e.f. 29.11.2013.
4. The learned counsel for the petitioner submits that, the Petitioner
worked as a Part Time Teacher with grant of approval of Respondent No.2
from year 2001 to 2007 and as a Full Time Teacher from 20.06.2007 till 2013
and presently working being a Director of Physical Education from the year
2013 and She would be retiring on 16.05.2029. Since, she has performed six
years as a Part Time Teacher, therefore, said period needs to be considered
while computing her pensionary benefits.
5. The learned advocate for the Petitioner submits that Rule 30 of
Maharashtra Civil Services Rules provides commencement of Qualifying
Service. Qualifying service of Government employee commences from the date
from which the employee substantially or temporary capacity is appointed.
Therefore, at the time of the retirement, the service rendered by the petitioner
being part time teacher required to be considered.
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6. To buttress her submissions the learned advocate for the Petitioner
relied on the cases of Chitralekha M. Naik V/s. State of Maharashtra & Ors.;
(2022) 1 AIR Bom R 510, and Mahatma Phule Krishi Vidyapeet V/s. Ganpat
Kisan Karle; 2016 (3) AIR Bom R 697, Single Judge Bench of this Court,
authored by one of us (Coram: Ravindra V. Ghuge, J.). Further he relied on an
order dated 24.03.2023 passed in Writ Petition No.9545/2022 (Vandana
Lakhichand Borole V/s. The State of Maharashtra and Ors.).
7. Per contra Mr. S.B. Narwade, the learned AGP appearing for the
Respondent Nos. 1 to 3 vehemently canvassed that, initially the petitioner was
appointed with the Respondent No.5 on 18.09.2001 on part time basis, but said
appointment was not approved by the Respondent No.2. Deputy Director of
Education. Therefore, said period as a part time cannot be considered for the
purpose of pensionary benefits under Rule 30 of the Maharashtra Civil Services
(Pension) Rules, 1982, and hence, prayed for dismissal of the petition.
8. Adv. S. R. Patil, the learned counsel appearing for Respondent Nos.
4 & 5 submits that, after due permission of Respondent No.2, the selection
procedure was followed and the Petitioner was appointed. The Petitioner
joined as Shikshan Sevak on 18.09.2001. Respondent No.2 granted approval to
the appointment of the Petitioner on 11.02.2002, on full time basis w.e.f.
(5) wp 13031.23
20.06.2007 vide letter dated 06.11.2007. Therefore, she was continuously
working since then, and hence, prayed for passing an appropriate order.
9. Needless to say that, the Petitioner was fully qualified for
appointment being a Shikshan Sevak as she did B.Sc., MP.ED, DCM. No doubt,
initially, she was appointed as a Shikshan Sevak (Physical Education) on part
time basis w.e.f. 18.09.2001 and her service was duly approved by Respondent
No. 2 on 11.02.2002. Subsequently, she was brought on half pay basis with
continuity in service vide order dated 22.09.2006 issued by the Respondent
No.2. It is not in dispute that, Respondent No.2 accorded approval to the
appointment of the Petitioner on full time basis w.e.f 20.07.2007 vide letter
dated 06.11.2017. Therefore, from the date of initial appointment, she is
continuously discharging her duty. She served as a part time Assistant Teacher
(Physical Education) for six years. However, She apprehends that, the
Respondents may not consider her 6 years of part time service for the
pensionary benefits at the time of her retirement.
10. Rule 30 of the Maharashtra Civil Services (Pension) Rules, 1982
rules provides as under:
"30. Commencement of qualifying service 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:
(6) wp 13031.23
Provided 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:
[Provided further that, in cases where a temporary Government
servant retires, on Superannuation or on being declared
permanently in capacitated for further Government service by the
appropriate medical authority after having rendered temporary
service of not less that ten years, or voluntarily after completion of
twenty years of qualifying service, shall be eligible for grant of
Superannuation, Invalid or, as the case may be, Retiring Pension;
Retirement Gratuity; and Family Pension at the same scales as
admissible to a permanent Government servant.] Exception- The
rules regarding grant of terminal benefits to temporary
Government servants [except those mentioned in the second
proviso] who retire without being confirmed in any post in
Government service are embodied in Appendix II.
Note1.- If a Government servant is holding a temporary post when
the permanent post on which he holds a lien is abolished in the
circumstances described in the rule 81, or if, at or very shortly
after the abolition of the permanent post, he is appointed to a
newly created temporary post, his service in the temporary post is
pensionable service.
Note 2.- In the case of the employees of former India States who
have been absorbed in Government service previous pensionable
service rendered by them under the same State should it
immediately followed by Government service be taken into
account for purposes of pension on his final retirement from
Government service. Pensionable service rendered under different
States should be taken into account for purposes of pension
provided that the employees were transferred or sent on deputation
from on State to another under a written agreement between the
Governments of the States concerned.
The term" immediately" appearing in Note 2 above includes a
break in service if it does not exceed six months, between the date
on which the service was terminated and the date of his re-
employment in service). The question whether the previous
(7) wp 13031.23
service in Indian States in pensionable or not should be determined
in accordance with these rules as if those rules were applicable to
that service."
11. In the case of Chitralekha M. Naik, (supra), this Court has held
that, 50% of the part time service rendered by the employees has to be taken
into consideration along with the services rendered by the Petitioner as full
time teacher, for grant of superannuation pension benefits.
12. In the case of Mahatma Phule Krishi Vidyapeet, (supra), the Single
Judge Bench of this Court considered various case law cited therein and
observed in Para Nos.38 to 40 as under:
"38. A careful perusal of the second proviso to Rule 30 will
indicate that it is with regard to the case of a temporary Government
servant who retires on superannuation. So also, an employee being
declared permanently incapacitated by the appropriate medical
authority or an employee who has voluntarily retired from service is
also held eligible for grant of superannuation, invalid or as the case
may be, retiring pension, retirement gratuity and family pension at
the same scale, as is admissible to a permanent Government servant.
It is, therefore, provided by the said proviso that a temporary
Government servant, who retired on superannuation and who has
completed not less than ten years of service, obviously as a
temporary employee, is also held entitled for retiring pension,
retirement gratuity and family pension at the same scale as is
admissible to a permanent Government servant. As such, in my
view, Rule 30 is aimed at covering the cases of all such employees,
who have been working temporarily for a period of atleast ten years,
are held to have satisfied the definition of "Qualifying Service under
Rule 30 and who are not covered by Rule 57.
39. In the light of the above, though I have come to a conclusion
that the Industrial Court has erroneously relied upon Rule 110 while
(8) wp 13031.23
allowing the complaint of the respondent, I am not inclined to remit
the matter back to the Industrial Court since I have dealt with the
said issue of pension in this judgment. So also, it would cause grave
hardships and manifest inconvenience to the respondent - employee,
who has retired from service on 30.11.2000, which is practically
more than 15 years ago, to undergo the rigors of litigation again.
40. In the light of the above, the direction in Clause (3) of the
operative part of the impugned judgment by which the petitioner
was directed to pay pension as per Rule 110 of the 1982 Rules,
stands modified with the direction to the petitioner to pay pension to
the respondent - employee as he has fulfilled the requirement of
Rule 30 of the 1982 Rules, as expeditiously as possible and
preferably within a period of three months from today."
13. The same issue has been followed subsequently in the order dated
24.03.2023 passed in Writ Petition No.9545/2022 and held that, the part time
service which was approved by the Competent Authority can be considered to
the extent of 50% to be added up with the regular service put in by an
employee, so as to calculate qualifying service for the purposes of the retiral
benefits.
14. Similarly, in the case in hand, the Petitioner rendered six years
service as a part time teacher w.e.f. 18.09.2001 till 18.09.2007. Therefore,
considering the Rule 30 of Maharashtra Civil Services (Pension) Rules, 1982
and the view taken in above cited case law, 50% of the service rendered by the
Petitioner as part time teacher is required to be computed for the pensionary
(9) wp 13031.23
benefits by adding it to the full time service (Assistant Teacher) w.e.f.
18.09.2007.
15. In view of the above discussion, the petition is partly allowed. The
Respondents are hereby directed to consider 50% service rendered by the
Petitioner as a part time teacher for the pensionary benefits. Accordingly, Rule
is made partly absolute in the above terms.
[Y. G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
