Bombay High Court
Kirankumar Miraji Salve vs The State Of Maharashtra And Others on 24 September, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:22456-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1223 OF 2021
Kirankumar Miraji Salve,
Age : 38 Years, Occu. : Service,
R/o Plot No. A/2, Dr. Babasaheb
Ambedkar Chowk, Nirmal Nagar
Savedi, Ahmednagar,
Tq. and Dist. Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. The Joint Director,
(Higher Education),
Pune Division, Pune.
3. Savitribai Fule Pune University
Through its Registrar, Pune.
4. Premraj Sarda College, Ahmednagar
Through its Principal,
Tq. Dist. Ahmednagar. .. Respondents
Shri Anand V. Indrale Patil, Advocate for the Petitioner.
Shri A. R. Kale, Addl.G.P. for the Respondent Nos. 1 and 2.
The Respondent No. 3 is served.
Shri M. D. Deshpande, Advocate h/f Shri Sushant V. Dixit,
Advocate for the Respondent No. 4.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 02.09.2024
JUDGMENT PRONOUNCED ON : 24.09.2024
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JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. With the consent
of both sides heard finally at the admission stage.
2. The petitioner has invoked jurisdiction of this Court under
Article 226 of the Constitution of India for challenging
communications dated 30.07.2019 and 20.01.2020 issued by
respondent No. 2/Joint Director of Education, Pune rejecting his
claim for old pension scheme instead of Defined Contributory
Pension Scheme (for short "D.C.P.S. scheme"). He is also seeking
mandamus to hold him entitled to old pension scheme as per the
provisions of the Maharashtra Civil Services (Pension) Rules,
1982 as well as Government Provident Fund (for short 'G.P.F.')
and to award him consequential benefits.
3. The petitioner is employee of respondent No. 4/college,
which is affiliated to respondent No. 3/university. He belongs to
the Scheduled Caste category. An advertisement was published
by respondent No. 4 for the post of lecturer in Botany along with
other posts. He was recommended by the duly constituted
selection committee and was appointed on 17.08.2005 as a
Lecturer in Botany with effect from 18.08.2005 on contract and
purely temporary basis from 18.08.2005 to 17.08.2007. His
service was approved by respondent No. 3/university vide order
dated 29.10.2005 for two years on condition of passing National
Eligibility Test (NET)/State Eligibility Test (SET). He was
continued in service by further orders of continuation. Further
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spells of appointments were also approved by the university for
two years and lastly for 11 months.
4. Respondent No. 4/management discontinued the services of
the petitioner, which was a cause of action for him to approach
the High Court vide Writ Petition No. 8564 of 2010. Interim
order was passed on 21.09.2010 restraining the management
from filling in the post. By final order passed on 17 July 2014, he
was directed to be continued in service subject to acquiring Ph.
D. degree and the university was directed to consider the
proposal seeking approval. He was not held entitled to the back
wages, but the continuity of services was directed to be
considered. As there was non compliance of the orders, Contempt
Petition No. 479 of 2014 was filed by the petitioner. In
compliance with the earlier orders, he was issued with
appointment order on 14.02.2015 as a full time lecturer in
Botany on contract basis from 17.07.2014 with stipulation of
continuity of services.
5. The petitioner made representation to the respondent No.
2/Joint Director of Education, Pune seeking GPF number and for
applying old pension scheme. By the impugned communications,
respondent No. 2 rejected the claim and it was reiterated that
D.C.P.S. scheme was applicable to him.
6. The petitioner was not having NET/SET or Ph. D. or M.
Phil, when he was appointed on 18.08.2005. He registered
himself for Ph. D. on 26.03.2007 and it was acquired on
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16.03.2015. His initial appointment was subject to passing of
NET/SET. Initial approval was also granted to him subject to
passing of NET/SET examination within two years.
7. The learned counsel Mr. Anand V. Indrale Patil appearing
for the petitioner submits that by the impugned communications
the claim of the petitioner for getting GPF number and applying
old pension scheme has been turned down arbitrarily and
highhandedly. He would submit that the petitioner was
appointed after following due procedure of law from 18.08.2005
and was given approved vide order dated 29.10.2005. He was
continuously rendering services with the approvals which shows
that it was a regular appointment. He would further submit that
by the intervention of the High Court in Writ Petition No. 8564 of
2010, he was directed to be continued in service and his proposal
for approval was to be considered by the university. He was
reinstated and granted continuity from 17.07.2014.
Consequently, the university approved him vide letter dated
19.11.2015, which amounts to regularization of services since
inception. He would submit that the approval order issued on
19.11.2015 would relate back to the initial date of appointment i.
e. 18.08.2005.
8. The learned counsel further submits that he acquired Ph.
D. degree on 16.03.2015 and, therefore, holds necessary
qualification. The learned counsel tenders on record written
notes of arguments, couple of Government Resolutions and
following judgments of this Court to support his claim :
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I. Judgment dated 03.10.2018 in Writ Petition No. 13166 of
2017 in the matter of Maroti Dattatraya Patil Vs. The State
of Maharashtra and others.
II. Judgment dated 05.02.2024 in Writ Petition No. 10170 of
2021 in the matter of Gangasagar Umrao Kawale and
others Vs. The State of Maharashtra and others.
III. Order dated 14.03.2024 in Writ Petition No. 814 of 2023 in
the matter of Vanmala Wd/o Gautam Shambharkar and
others Vs. The State of Maharashtra and others.
IV. Shrikant Sakharam Jadhav (Dr.) Vs. The State of Maharashtra and
others ; 2023 DGLS (Bom.) 2368.
9. The respondent Nos. 3 and 4 have not filed any reply. The
respondent No. 4 supports the petitioner.
10. The respondent Nos. 1 and 2 filed affidavit in reply. It is
contended that service of the petitioner was approved with effect
from 09.03.2015 by respondent No. 3/university and not from the
initial date of appointment i. e. 18.08.2005. There was no
regularization of service from initial date of appointment. The
break in service was never condoned. The petitioner was not
having requisite qualification when he was appointed on
18.08.2005 and subsequent acquisition of Ph. D. would not confer
any benefit retrospectively. It is further submitted that the
Government Resolutions dated 27.06.2013 and 29.10.2021, which
are pressed into service by the petitioner, are not applicable his
appointment was not during 23.10.1992 to 03.04.2000. It is
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vehemently submitted that he is governed by the Government
Resolution dated 25.03.2011 read with Government Resolution
dated 22.08.2014. His claim is rightly rejected by the impugned
communications.
11. We have considered rival submissions. We have also gone
through the notes of arguments, government policies and the
judgments cited by the petitioner.
12. The D.C.P.S. scheme is made applicable vide Government
Resolution dated 25.03.2011 read with Government Resolution
dated 21.08.2014 from 01.11.2005. The petitioner placed reliance
on the G. R. dated 27.06.2013 and 29.10.2021. A careful perusal
of both the Government Resolutions shows that those lecturers
who were appointed from 23.10.1992 to 03.04.2000 without
passing NET/SET examination were granted regularization on
certain conditions. One of the conditions was of making the
D.C.P.S. scheme applicable to them. It was deleted by subsequent
Government Resolution dated 29.10.2021.
13. The petitioner for the first time was appointed on
18.08.2005. He did not enter the service during the period
between 23.10.1992 and 03.04.2000. Therefore, Government
Resolutions dated 27.06.2013 and 29.10.2021 are not applicable.
Similarly, Government Resolution dated 02.02.2014 and circular
of the university, No. 46/2024 are also not applicable, as
advertisement was issued prior to 01.11.2005.
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14. It reveals from record that the petitioner was not having
qualification of NET/SET or Ph. D. or M. Phil when he was
appointed on 18.08.2005. His appointment was conditional and
following conditions were incorporated :
2. Your appointment is on Contract basis And on purely
Temporary basis for the period from 18-8-2005 to 17-8-2007.
3. You will be paid Rs. 8,000-00 (Rs. Eight thousand only) per
month as per mentioned in the letter No. lal&ekxkloxhZ;
vuq'ks"k&'kSik&ihvkj&Œ" fn- --Œ Received form the Joint
Director, Higher Education, Pune Region, Pune.
4. ...........
5. As per above mentioned G. R. and Letters from
Government, You shall have to qualify the NET or the SET or
similar test (As the case may be) laid down by the University, State
of Maharashtra/UGC Or the Central Council pertaining to your
faculty within two years from the date of appointment, otherwise
your service will be automatically terminated.
6. You shall have to acquire qualifications (M. Phil./Ph.D., etc)
as prescribed by the University/State Government or Central
Council.
15. The services were for the first time approved by the
respondent/university on 29.10.2005 for two years subject to
passing of NET/SET examination. Though the continuation
orders are not placed on record, there is reason to believe that he
was continued in service. The respondent/university approved
services vide order dated 10.03.2008 for a period of two years. By
further order dated 22.10.2009, the services were approved for
eleven months. From the orders of appointment and the
approval, it cannot be inferred that the petitioner was regularly
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appointed and there was permanent approval. He was not
having requisite qualification at the time of his initial
appointment. He did not pass NET/SET within two years as was
stipulated in the orders of approval.
16. The petitioner was terminated on 31.07.2010 and he was
required to file Writ Petition No. 8564 of 2010. Final order
passed by the coordinate bench on 17th July 2014 shows that he
had registered for Ph. D. on 26.03.2007, which was an alternate
qualification to dispense with NET/SET examination. He was
directed to be continued in the services subject to acquiring of
Ph. D. degree. In pursuance of the orders of the High Court the
proposal was forwarded by the respondent/college to the
university. Respondent No. 3/university granted approval vide
order dated 19.11.2015 specifically with effect from 09.03.2015 as
a full timer. The order of approval was neither challenged by the
petitioner nor by the management. It was not an approval from
initial date of appointment i. e. 18.08.2005.
17. The petitioner was granted continuity of the service by the
High Court in Writ Petition No. 8564 of 2010 vide order dated
17.07.2014, but that is not reflected in the subsequent order of
approval. Rather order of approval dated 19.11.2015 specifically
mentions that the approval was from 09.03.2015. Management
issued appointment order dated 14.02.2015 stipulating continuity
of service from 01.09.2005 to 14.02.2015, but that is not sufficient
to draw an inference that the services of the petitioner were
regularized from 18.08.2005. It is not clear as to whether the
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continuity granted to the petitioner is also for conferment of
retiral benefits as per old pension scheme or not.
18. Mere continuity of services would not make the petitioner
eligible for benefits of old pension scheme. Rather the last order
of approval dated 19.11.2015 is an impediment in recognizing the
petitioner being regularly appointed from 18.08.2005. At the
most it can be inferred that the service of the petitioner has been
regularized from 09.03.2015. We are not inclined to accept the
submission of the petitioner that the petitioner was regularized
from initial date of appointment.
19. At the cost of repetition, we record that there is no order
regularizing the petitioner from initial date of appointment.
Respondent Nos. 1 and 2 have rightly contended that the
appointment of the petitioner was not made during the period
from 23.10.1992 to 03.04.2000, and, therefore, he was not entitled
for regularization on the conditions stipulated in the Government
Resolution dated 27.06.2013 and 29.10.2021. Respondent No.
2/Joint Director of Higher Education, Pune is justified in
rejecting the claim of the petitioner and holding him eligible for
the benefits of D.C.P.S. scheme.
20. As the appointment of the petitioner was not during the
period from 23.10.1992 to 03.04.2000, no benefit of the judgments
and the law laid down therein by the coordinate benches in the
matters of Maroti Dattatraya Patil Vs. The State of Maharashtra and others
(supra) and Gangasagar Umrao Kawale and others Vs. The State of
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Maharashtra and others (supra) can be given to the petitioner. In the
matter of Gangasagar Umrao Kawale and others Vs. The State of
Maharashtra and others, the university had given permanent approval
on 13 December 2017 and, therefore, the petitioner therein was
held to be entitled to all service benefits of permanency. In the
case in hand the approval is from 09.03.2015 and there is no
regularization from initial date of appointment.
21. In the case of Vanmala Wd/o Gautam Shambharkar and others Vs.
The State of Maharashtra and others (supra) reliance was placed on the
judgment of Gangasagar Umarao Kawale Vs. The State of
Maharashtra and others. In that matter the deceased employee
was full time lecturer appointed after following due procedure of
law. Since there was permanent approval, it was held that the
petitioner was entitled to pensionary benefits and his proposal
should not have been refused for not possessing necessary
qualification. The case in hand shows that the approval of the
respondent/university is very specific i. e. with effect from
09.03.2015 and it is not a permanent approval since inception.
22. The judgment relied by the petitioner in the matter of
Shrikant Sakharam Jadhav (Dr.) Vs. The State of Maharashtra and others
(supra) shows that retiral benefits were denied to the petitioner
therein as his earlier service on non grant basis was not taken
into account for calculating the total qualifying service and at the
time of his appointment in the year 2003, he was not having
NET/SET. The petitioner was held to be entitled to the retiral
benefits as the date on which he attained superannuation the
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school was receiving grants. Considering the previous service
rendered in unaided school, he was held to be complying the
qualifying service. Such is not the situation in the present
matter. The petitioner has not been denied the retiral benefits.
The issue involved in the present matter is as to the applicability
of old pension scheme or the new D.C.P.S. scheme. Therefore, the
ratio laid down by the coordinate bench is not helpful to the
petitioner.
23. The regularization does not in all cases relates back to the
initial date of appointment. If it relates back to the first date of
appointment, then it has to be so mentioned expressly. In the
present matter there is no express order of regularizing the
services from 18.08.2005. The petitioner's services have been
regularized from 09.03.2015, which is after the cut off date
provided by the Government Resolution dated 25.03.2011. The
petitioner is governed by D.C.P.S. scheme. We find no illegality
or arbitrariness in the impugned communications. We are
unable to grant any relief to the petitioner.
24. The writ petition is dismissed. Rule is discharged.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/Sept. 24
