Bombay High Court
Babaso Ganpatil Awate vs The State Of Maharashtra And Ors on 9 October, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, M. M. Sathaye
2024:BHC-AS:41381-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3796 OF 2021
Babaso Ganpatil Awate ...Petitioner
Versus
The State of Maharashtra And Ors. ...Respondents
...
Mr. Narendra V. Bandiwadekar, Senior Advocate a/w Mr.
Rajendra B. Khaire, Mr. Aniket S. Phapale i/b. Mr. Vinayak R.
Kumbhar, Advocate for the Petitioner.
Ms. Ashwini A. Purav, AGP, for Respondent Nos.1, 2 and 6 -
State.
Dr. Vinod Joshi for Respondent No.5.
...
Digitally
signed by
CORAM : RAVINDRA V. GHUGE
PALLAVI
PALLAVI
MAHENDRA
MAHENDRA
WARGAONKAR
WARGAONKAR Date:
&
2024.10.18
11:44:52
+0530 M.M. SATHAYE, JJ.
DATE :- 9th OCTOBER, 2024
Oral Judgment (Per : Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2. The Petitioner has put forth prayer clause 21(b) and
prayer clause 21(c), as under :-
"21.
(b) By a suitable writ, order or direction, this Hon'ble
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Court be pleased to direct the Respondents to
prepare and process the pension papers of the
Petitioner having retired as a Full Time Assistant
Teacher in Respondent No.4 College on 31.07.2015,
by taking into considering not only the service in the
post of Full Time Assistant Teacher from 20.06.2006
to 31.07.2015, but also 50% of service rendered
prior thereto as Part Time Shikshan Sevak, and
thereafter as a Part Time Teacher, and accordingly
the Respondents be directed to pay the pension
benefits to the Petitioner on the basis of such service
together with arrears from 01.08.2015.
(c) By a suitable writ, order or direction, this Hon'ble
Court may be pleased to hold and declare that the
Petitioner was and is entitled to receive pension
benefits from the Respondents by taking into
consideration the service rendered by the Petitioner
as a Full Time Assistant Teacher in Respondent No.4
College from 20.06.2006 till 31.07.2015 and also the
service rendered prior thereto as Part Time Shikshan
Sevak and thereafter as Part Time Assistant Teacher,
and accordingly the Respondents be directed to
sanction and release the pension benefits to the
Petitioner on the basis of service rendered by the
Petitioner, and to pay the same w.e.f. 01.08.2015."
3. The Petitioner belongs to the Scheduled Caste
Category and came to be appointed as a Part Time Shikshan
Sevak with the Respondent No.4 - Junior College, on an aided
post, on 18th July, 2002. By an order dated 6th September, 2005,
delivered by the Deputy Director of Education, approval was
granted to the engagement of the Petitioner as a Part Time
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Shikshan Sevak. The Petitioner was subsequently granted the pay
scale. On 20th June, 2006, the Petitioner came to be appointed as
a Full Time Teacher with the sanctioned pay scale. On 31 st July,
2015, the Petitioner superannuated at the age of 58 years.
4. The contention of the Petitioner is that he has put in
9 years and one month as a Full Time Teacher in 100% grant-in-
aid Institution. As a Part Time employee, he had put in more than
4 years in service. The question that was raised, in these set of
facts, by the office of the Accountant General was as to whether
the Petitioner would be entitled for family pension as per the Old
Pension Scheme.
5. In the above backdrop, the Petitioner approached
this Court in Writ Petition No.8832 of 2015. By order dated 22 nd
July, 2016, this Court passed the following order:-
"1. Heard the learned Counsel appearing for the
respective parties. There is no dispute that for the
academic years 2002-2003, 2003-2004 and 2004-
2005, the Petitioner worked as part-time Shikshan
Sevak. There is also no dispute that for the
academic year 2005-2006, the Petitioner worked
as part-time teacher and with effect from 20th
June 2006 till his superannuation on 31st July
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2015, the Petitioner worked as full-time teacher
with Respondent Nos.3 and 4. It is clear from the
above facts that as a full-time teacher, the
Petitioner has worked for continuous period of 9
years, 1 month and 5 days and as a part-time
Shikshan Sevak and part-time teacher for 4 years.
Admittedly, the qualifying service for pension is
10 years.
2. The grievance of the Petitioner is that while
considering the pensionary benefits to be extended
to the Petitioner, the Respondents did not consider
the services rendered by the Petitioner as a part-
time shikshan sevak and teacher. This issue is
squarely covered by the decision of this Court in
Writ Petition No. 2354 of 2012 [Jyoti Prakash
Chougule v. State of Maharashtra delivered on 7th
January 2014]. In this decision, the Division
Bench of this Court relying upon the provisions of
Rule-30, Rule-57 Note-1 and Rule-110
Maharashtra Civil Services (Pension) Rules held
that the Petitioner therein who is similarly situated
is entitled to count 50% of the part-time services
rendered by him as a teacher and a shikshan
sevak. In the present case also, if 50% of the part-
time services rendered by the Petitioner is taken
into consideration along with services rendered by
the Petitioner as full-time teacher, then, he is
entitled to pensionary benefits. In the aforesaid
circumstances, we dispose of this petition by
directing Respondent Nos.3 and 4 to prepare and
process pension papers of the Petitioner in the
light of observations made herein above and
submit the same to Respondent No. 2 - Dy.
Director of Education. Respondent No. 2 in turn is
directed to consider the case of the Petitioner and
submit the same to Respondent No.5. Respondent
No.5 is directed to consider the case of the
Petitioner and take appropriate decision regarding
the pension benefits to be extended to the
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Petitioner. Respondent No.5 shall take decision
within two months from the date of receipt of
proposal from Respondent No. 2."
6. This Court has, therefore, specifically concluded in
paragraph 1, that the Petitioner was working for 9 years, 1 month
and 5 days, as a Full Time Teacher and had put in 4 years as a
part-time Teacher. Reliance was placed on the judgment of this
Court dated 7th January, 2014 delivered in Writ Petition No.2354
of 2012 (Jyoti Prakash Chougule vs. State of Maharashtra &
Ors.).
7. In Jyoti Prakash Chougule (supra), this Court has
recorded the fact that the Petitioner had put in eight years and
seven months as a Full Time Assistant Teacher. She was declined
pensionary benefits. This Court concluded that out of the total
service of the Petitioner of 14 years and 15 days, 5 years, 5
months and 15 days, were as a Part Time Teacher. While
referring to the provisions of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981 ("MEPS"
for short), it was recorded that if half of the part-time service of
the Petitioner can be taken into account, she would be
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completing 10 years of qualifying service and would be entitled
for the pensionary benefits.
8. The Court relied upon a judgment in the case of
Shivappa Bhujangappa Bembale Vs. State of Maharastra & Anr.
2005(3) Mh.L.J. 709, more specifically, paragraph Nos.5, 6 and
7, which read as under:-
"5. Relying on the above three provisions of Rule 30,
Rule 57 Note 1 and Rule 110 of the Maharashtra
Civil Services (Pension) Rules, Mr. Vivek Dhage,
Advocate for petitioner, submits that present
petitioner is entitled for pension as his part time
service as Peon is approximately 20 years as he
was appointed in the year 1970 and continued on
the same post till 1990 and, thereafter, the Chief
Executive Officer has taken him in regular cadre
by giving appointment in the said cadre and he
worked for three years. So, considering the Note 1
of Rule 57, his previous service is to be counted to
the extent of 10 years as this period worked as part
time Peon is about 20 years and in regular post he
worked for three years. Thus, the total period of
service of present petitioner comes to near about
13 years, however, the Zilla Parishad has
completely ignored this aspect.
6. The only crux in the present matter as the Zilla
Parishad authorities has rejected the claim of
present petitioner relying on Note 2, however,
considering the factual aspect from the present
case as it is seen that the initial appointment order
of the present petitioner as part time Peon is 24-7-
1970; he continued as part time Peon till 10-7-
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1990 and thereafter by order dated 6-7-1990 the
petitioner was taken on regular cadre in the pay
scale of Rs.750-12-870-DR-14-940 by the Chief
Executive Officer, Zilla Parishad. The order
passed by the Chief Executive Officer, Zilla
Parishad is also on record and the very wording of
the said order safely makes it clear that the persons
who are working as part time and salary being
paid from contingency, those persons are being
taken on regular cadre in class-4 and being fixed
in the pay scale of Rs. 750-12-870-DR-14-940.
After going through the order dated 7-7-1990 it
can be said that it is the fresh order giving regular
employment to the petitioner, however, as he was
already worked as part time Peon and being paid
from contingency the services being regularised in
the pay scale in class-4 servant. We have gone
through the Note 1 and Note 2 of Rule 57 and we
find that the Zilla Parishad has wrongly applied
Note 2 in the present matter while rejecting the
claim of the petitioner to grant pension, as in fact
in the present case, Note 1 of Rule 57 is
applicable. Therefore, we find that the claim as set
up by the present petitioner that he is entitled for
pensionary benefits, is definitely justified.
7. Mr. Dhage, Advocate, has made reference in
respect of order passed in Writ Petition
No.3472/1996 and in a same situation this Court in
the said writ petition, has given direction to the
respondents to consider the case of petitioner for
pensionary benefits within a period of three
months and also directed for payment of arrears.
We have gone through the said order wherein a
reliance is placed on Note 1 of Rule 57 of the
Maharashtra Civil Services (Pension) Rules, 1982.
Considering the factual aspects in the present case
we also find that in the present case Note 1 of Rule
57 is applicable."
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9. It is, thus, apparent that this Court relied on Rule 30
and 31 of the Maharashtra Civil Services (Pension) Rules, 1982
and concluded that half of the part-time service of the Petitioner
can be reckoned while calculating the total service put in by the
Petitioner for the purposes of satisfying the period of qualifying
service for receiving pensionary benefits.
10. The Petitioner has also relied upon the verdict of this
Court delivered at Nagpur, dated 9th July, 2018 in Writ Petition
No.5421 of 2017 (Smt Darshana wd/o Adikrao Gaikwad Vs. The
State of Maharashtra and Ors.) and the judgment dated 11th
March, 2020 delivered in Writ Petition No.3719 of 2019 ( Smt.
Prema Narsinha Herkal Vs. The State of Maharashtra & Ors.).
11. It cannot be ignored that the office of the Accountant
General was a party to Writ Petition No.8832 of 2015, filed by
the present Petitioner, wherein this Court concluded that half of
the part-time service of the Petitioner can be reckoned for the
purpose of calculating the qualifying service for pension. Having
drawn a conclusion that the Petitioner would be entitled for
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pensionary benefits after adding up half of his part-time service,
this Court directed the Deputy Director of Education to consider
the case and submit the proposal to Respondent No.5, which is
the Office of the Accountant General. The Accountant General
was directed to decide the proposal within two months in the
light of the order of this Court, dated 22nd July, 2016.
12. The learned counsel representing the Office of the
Accountant General, has vehemently opposed this Petition by
relying upon the affidavit-in-reply filed by Shri Raju Ramnani,
Senior Accounts Officer in the Office of Principal Accountant
General (A&E)-I, Maharashtra State, Mumbai, dated 4 th
February, 2022. A host of factors have been canvassed in the
pleadings. A stand is virtually taken that the Petitioner is not
entitled for pensionary benefits, although it is an admitted
position that the office of the Accountant General had not filed a
Review Petition with reference to the order dated 22 nd July, 2016
passed by this Court concluding that the Petitioner was entitled
for pensionary benefits. Neither was a proceeding taken to the
Hon'ble Supreme Court as against the said order. In these
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circumstances, we are circumspect as regards the stand taken by
the affiant in the affidavit-in-reply that the Petitioner would not
be entitled for the pensionary benefits.
13. The Deputy Director of Education sent a
communication dated 21st April 2020 to the office of the
Accountant General, tendering a list of 28 documents. The
learned AGP has pointed out the communication dated 31st May,
2021 addressed by the Deputy Director, Education, Kolhapur
Division, Kolhapur to the office of the Accountant General.
14. This issue has been put to rest before us in the light
of the statement of the learned counsel for the Accountant
General, made on instructions, that within five days, the
Petitioner would be granted the approval for releasing the
pensionary benefits. We are, therefore, rendering a quietus to this
issue.
15. The learned Advocate for the Petitioner has,
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therefore, raised an issue of grant of interest on the delayed
payment of pension /arrears of pension and the gratuity amount.
He draws our attention to the Rules 129-A and 129-B of the
Maharashtra Civil Services (Pension) Rules, 1982 (for short
"M.C.S. (Pension) Rules"). For the sake of brevity, sub-rules (1),
(2) and (3) of Rule 129-A and Rule 129-B of the M.C.S.
(Pension) Rules, are reproduced hereunder :-
"129-A. Interest on delayed payment of gratuity.
(1) If the payment of gratuity has been authorised
after three months from the date when its
payment become due and it is clearly
established that the delay in payment was
attributable to administrative lapse, interest at
the following rate on the amount of gratuity in
respect of the period beyond three months shall
be paid :-
(i) beyond 3 months and 7% per
upto one year annum.
(ii) beyond one year 10% per
annum.
Provided that no interest shall be payable if the
delay in payment of gratuity was attributable to
the failure on the part of the Government
servant to comply with the procedure laid down
in this Chapter:
Provided further that no interest shall be
payable in the case in which a provisional
gratuity is sanctioned.
(2) On an application made by the pensioner the
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concerned Administrative Department in
Mantralaya shall consider the request for
payment of interest and where the Department
is satisfied that the delay in the payment of
gratuity was caused on account of
administrative lapse, that Department shall
make a recommendation to the Finance
Department for the payment of interest.
(3) If the recommendation of the Department made
under sub-rule (2) is accepted by the Finance
Department, the Department concerned shall
issue Government sanction for the payment of
interest.
129-B. Interest on delayed payment of Pension.
(1) If the payment of pension has been authorised
after six months from the date when its
payment became due and it is clearly
established that the delay in payment was
attributable to administrative lapse, interest at
the rate of 10 per cent per annum in respect of
the period beyond six months shall be paid on
the amount of pension:
Provided that, no interest shall be payable if the
delay in payment of pension was attributable to
the failure on the part of the Government
servant to comply with the procedure laid down
in this Chapter:
Provided further that, no interest shall be
payable for the period for which a provisional
pension is sanctioned. In case of Government
Servant to whom provisional pension is
sanctioned an interest as provided shall be paid
after a period of six months from the cessation
of provisional pension till the final pension is
authorised.
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(2) On an application made by the pensioner the
concerned Administrative Department in
Mantralaya shall consider the request for
payment of interest and where the Department
is satisfied that the delay in the payment of
pension was caused on account of
administrative lapse, that Department shall
make a recommendation to the Finance
Department for the payment of interest.
(3) If the recommendation of the Department made
under sub-rule (2) is accepted by the Finance
Department, the Department concerned shall
issue Government sanction for the payment of
interest.
(4) In all cases where the payment of interest has
been authorised with the concurrence of the
Finance Department, the Department
concerned shall fix the responsibility and take
disciplinary action against the Government
servant or servants concerned who are found
responsible for the delay in the payment of
pension and recover the amount of interest
required to be paid from the Government
servant, or servants concerned, including the
concerned officer, who are found responsible
for the delay in the payment of pension.
(5) If as a result of Government's decision taken
subsequent to the retirement of a Government
servant, the amount of pension already paid on
his retirement is enhanced on account of-
(a) grant of pay higher than the pay on which
pension, already paid, was determined; or
(b) liberalisation in the provisions of these rules
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from a date prior to the date of retirement of
the Government servant concerned, no interest
on the arrears of pension shall be paid."
16. The facts emerging from the record speak loud and
clear. This Court delivered a verdict on 22nd July, 2016 on the
facts of the Petitioner's case recording a finding that the
Petitioner deserved to be considered for grant of pension as the
Respondents did not consider his part-time service as a Shikshan
Sevak, which had to be reckoned with while calculating
qualifying service. Pursuant to the said order, the State
Government was directed to forward the papers to Respondent
No.5, who in turn, was directed to take an appropriate decision
regarding grant of pensionary benefits to the Petitioner, within a
period of two months. More than 7 years have passed by after the
timeline granted by this Court concluded on 22nd September,
2016.
17. The learned Senior Counsel for the Petitioner draws
our attention to the impugned order dated 25 th September, 2020,
passed by the Senior Accounts Officer from the office of the
Accountant General at Mumbai, drawing the attention of the
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Deputy Director of Education, Kolhapur to the aspect of whether
the Petitioner can be held to be entitled for the old pension
scheme in the light of the facts of his case. A specific query was
raised by the Office of the Accountant General before the Deputy
Director, Education seeking assistance as regards the
employment of the Petitioner on part-time basis until 19 th June,
2006 and the full-time service commencing from 20 th June, 2006
when the Institution was 100% grant-in-aid.
18. The said communication dated 25th July, 2020 by the
Office of the Advocate General, was obviously issued after
receiving the communication from the Deputy Director of
Education, Kolhapur dated 21st April 2020, wherein a list of 28
documents were supplied to the office of the Accountant General.
In response to the said communication dated 25th September,
2020, that the office of the Deputy Director of Education,
Kolhapur had addressed the Accountant General vide the
communication dated 31st May, 2021 concluding that the
Petitioner was entitled for the pensionary benefits as per the Old
Pension Scheme, since his qualifying service was 11 years and
10 days.
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19. Considering the above, we are not required to deal
with the aspect as to which office and which officer would be
liable for the delay, since this issue is best left to the decision of
the State Government in the light of Rule 129A and Rule 129B.
It would be appropriate for us to direct the Competent Authority
of the State Government to deal with the aspect of delayed
payment, arrive at a conclusion of fixing the responsibility on
concerned officers and initiate remedial action, keeping in view
Section 10 of the Maharashtra Government Servants Regulation
of Transfers and Prevention of Delay in Discharge of Official
Duties Act, 2005 read with Rules 129A and 129B of the M.C.S.
(Pension) Rules.
20. In view of the above, this Writ Petition is allowed.
Recording the statement made by the counsel for the Office of
the Accountant General, on instructions, let the order of grant of
pension be passed in the case of the Petitioner by 21 st October
2024.
(a) The arrears of pension along with interest shall be
calculated and the same shall be paid to the Petitioner, within a
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period of 60 days.
(b) Needless to state, the gratuity amount, along with interest
@ 12% per annum, in the light of the Notification of the
Government of India dated 5th October, 1999 would also be paid
within the period of 60 days.
(c) Payment of regular pension shall commence with effect
from the regular pay day of November, 2024.
(d) Needless to state, notwithstanding the steps to be taken in
the light of Rule 129A and Rule 129B, the payment of interest on
the delayed payments of gratuity and pensionary benefits shall
not be withheld only for the reason that the State is carrying out
the investigation for fixing the responsibility.
21. Rule is made absolute in the above terms.
(M.M. SATHAYE, J.) (RAVINDRA V. GHUGE, J.)
Pallavi Wargaonkar, PS
