Bombay High Court
Satyanarayan Shantayya Jakkawar And ... vs The State Of Maharashtra, Thr. ... on 5 April, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:3720-DB
1 3-2009-2022-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 2009 OF 2022
PETITIONERS : 1 Satyanarayan Shantayya Jakkawar,
Aged 47 years, Occ. Head Master,
R/o C/o Sant Manavdyal Vidyalaya,
Rangayyapalli, Tal. Sironcha, Dist.
Gadchiroli
2. Chandrashekhar Narayan Wasake
Aged 44 years, Occ. Asstt. Teacher,
R/o C/o Sant Manavdyal Vidyalaya,
Rangayyapalli, Tal. Sironcha, Dist.
Gadchiroli
3. Tirupati Vistari Jode
Age 36 years, Occ. Lab Assistant,
R/o C/o Sant Manavdyal Vidyalaya,
Rangayyapalli, Tal. Sironcha, Dist.
Gadchiroli
4. Gattu Buchayya Yedanla,
Age 37 years, Occ. Peon,
R/o C/o Sant Manavdyal Vidyalaya,
Rangayyapalli, Tal. Sironcha, Dist.
Gadchiroli
5 Jagannath Kisan Parchake,
Age 51 years, Occ. Peon,
R/o C/o Sant Manavdyal Vidyalaya,
Rangayyapalli, Tal. Sironcha, Dist.
Gadchiroli
2 3-2009-2022-J.odt
6. Khatif Buran Sheikh,
Age 46 years, Occu. Peon,
R/o C/o Sant Manavdyal Vidyalaya,
Rangayyapalli, Tal. Sironcha, Dist.
Gadchiroli
Vs.
RESPONDENTS : 1 The State of Maharashtra,
Through its Secretary,
Higher Education Department,
Mantralaya, Mumbai - 32
2 Dy. Director of Education,
Nagpur Division, Nagpur
3 The Superintendent,
Pay and Provident Fund Unit
(Secondary), Gadchiroli
4 The Education Officer (Secondary),
Zilla Parishad, Gadchiroli
Mr. P.S. Kshirsagar, Advocate for Petitioners
Mr. A.A. Madiwale, AGP for Respondents
CORAM: AVINASH G. GHAROTE AND
ABHAY J. MANTRI, JJ.
DATED : 5th APRIL, 2025
ORAL JUDGMENT (Per : AVINASH G. GHAROTE, J.)
1. Heard.
2. Rule. Rule made returnable forthwith.
3 3-2009-2022-J.odt
3. The learned counsel for the petitioners,
submits that under Government Resolution the moment
a tribal school completes five years, it is to be put on
100% grant. If that be so, then it is contended that as
the petitioners' school had commenced operation in the
year 2000, it was entitled to be put on 100% grant in
2005. The Government Resolution dated 27.10.2005
(Page No. 42) is also relied upon for this purpose and
therefore, it is contended, that since the petitioners
were incorrectly put on 40% grant by the said
Government Resolution, the subsequent Government
Resolution dated 15.7.2008 (Page No. 47), therefore,
recognizes the correct position that the petitioner has
been put on 100% grant-in-aid. It is, therefore,
submitted that in the light of the aforesaid two
positions, the petitioners were already put on 100%
grant-in-aid w.e.f. 27.10.2005, i.e. from the financial
year 2005-2006. The applicability of the New Pension
Scheme being w.e.f. 01.11.2005 and onwards, the
petitioners would, therefore, be entitled to be governed
by the Old Pension Scheme, the Institution having been
put on 100% grant-in-aid as on 27.10.2005 before the
4 3-2009-2022-J.odt
Government Resolution dated 01.11.2005 came to be
issued.
4. Mr. Madiwale, learned Assistant Government
Pleader for the respondents submits, that the
Government Resolution dated 27.10.2005 does not, in
fact, put the petitioners on 40% or for that matter 100%
grant-in-aid even considering the Government
Resolution dated 15.7.2008 (Page No.47) as para 6 of
the said Government Resolution indicates the valuation
to be completed by the District Committee by
13.11.2005 and by the State Committee by 31.12.2005
and submit the report to the State. He further submits,
that since the actual disbursal of 100% grant-in-aid to
the petitioners is from 01.9.2006, it cannot be held that
the petitioners are entitled to the benefit of the Old
Pension Scheme. He further relies upon the opinion
given by the learned Full Bench in Deshmukh
Dilipkumar Bhagwan Vs. State of Maharashtra, 2019
(3) Mh.L.J. 903, in support of his contention, to
contend, that since the petitioner Sant Manavdayal
Vidyalaya Rangayyapalli, Tahsil Sironcha, District
Gadchiroli was disbursed the 100% grant-in-aid on
5 3-2009-2022-J.odt
01.9.2006, therefore the employees of the said school,
cannot be held to be covered by the Old Pension
Scheme.
5. Certain facts, necessary, for decision of the
issue involved in the petition need to be noted. Sant
Manavdayal Vidyalaya Rangayyapalli, Tahsil Sironcha,
District Gadchiroli, is a school, which is situated in the
tribal area, is a position, which is not disputed by the
learned Assistant Government Pleader. The said school
was already being administered grant-in-aid by the
State. By the Government Resolution dated 27.10.2005
(Page No..41), it was admitted to 40% grant-in-aid from
the financial year 2005-2006, which is reflected from
para 3 of the said Government Resolution. The said
Government Resolution in para 3 itself records that
schools in tribal areas, are being admitted to 100%
grant-in-aid. The Education Officer (Secondary), by his
communication dated 01.12.2005 (Page No.45)
addressed to the Secretary, Education Department,
pointed out, that all four schools which were included
in the Government Resolution dated 27.10.2005,
including the aforesaid school were situated in the tribal
6 3-2009-2022-J.odt
area, therefore, in consonance with the applicable
policy they would be entitled to be admitted to 100%
grant-in-aid instead of 40% grant-in-aid. The State
thereafter through the Government Resolution dated
15.7.2008 (Page No.47) corrected the earlier
Government Resolution dated 07.10.2005 and indicated
that instead of 40% grant-in-aid, the aforesaid schools
would be admissible to 100% grant-in-aid. In pursuance
to this, the Education Officer by his communication
dated 02.8.2008 (Page No.48) addressed to the Head
Master of Sant Manavdayal Vidyalaya Rangayyapalli,
Tahsil Sironcha, District Gadchiroli, informed it about
the abovesaid correction of the said school being
admissible to 100% grant-in-aid in reference to the
Government Resolution dated 27.10.2005 and further
informed them that the dismemberment of the salaries
would be undertaken upon correction of the category of
grant-in-aid. It is, however, a position on record, that
the actual disbursement of the 100% grant-in-aid has
been commenced from September, 2006.
6. The expression, 'receiving 100% grant-in-
aid', in the opinion of the learned Full Bench, in
7 3-2009-2022-J.odt
Deshmukh Dilipkumar Bhagwan (supra), will therefore
have to be considered in the light of the above factual
background. Though the learned Assistant Government
Pleader, submits that the above expression of opinion,
will have to be related to the date of actual
disbursement of 100% grant-in-aid to the Institution,
we are unable to agree with the same, as in a given
case, though the Institution, would have been held
admissible to 100% grant-in-aid, there may be cases
where the actual disbursal of the grant, would be after a
considerable period of time. In this context, the
reasoning of the learned Full Bench, requires to be
considered, to understand the concept of "receiving
100% grant-in-aid". We would, therefore, like to
reproduce paras 30, 31 and 33 of the learned Full
Bench in Deshmukh Dilipkumar Bhagwan (supra),
which is as under :
"30. It is true that the petitioners who are
before the Court in this group of petitions were
recruited in recognized private schools prior to
1-11-2005. Admittedly, however, on 1-11-2005
the school, in which they were so recruited, were
not receiving 100% grant-in-aid. At the time,
when therefore the State Government decided to
introduce the DCP scheme w.e.f. 1-11-2005, the
right of these employees to claim pensionary
benefits had not yet crystallized. The
8 3-2009-2022-J.odt
Government had no obligation to cover such
employees in the pension scheme. By GR dated
29-11-2010, therefore, when the Government
made detailed provisions for implementation of
the DCP scheme for teaching and non-teaching
staff of aided private recognized schools, the
Government merely elaborated the procedure.
This GR referred to the employees of 100% aided
posts in the private recognized schools and
provided that those who have been appointed
after 1-11-2005 would be governed by the DCP
Scheme. This provision in the GR dated 29-11-
2010 is merely in the nature of clarification. It
made the position explicit which was already
implicit in the GR dated 31-10-2005. In our
opinion, Government's stand that only those
employees of private recognized aided schools
who were recruited prior to 1-11-2005 in schools
receiving 100% grant-in-aid would continue to
be governed by the old pension scheme is a
correct and valid interpretation.
31. The GR dated 29-11-2010 merely
made detailed provisions for implementation of
the Government decision to introduce DCP
Scheme which decision was already declared
under GR dated 31-10-2005. This, therefore, is
not a case of introduction of the DCP Scheme
with retrospective effect. In that view of the
matter, it cannot be said that the Government by
virtue of said GR dated 29-11-2010 disturbed or
took away the vested or existing rights of the
employees to receive pension under the old
scheme. As far back as on 31-10-2005, the
Government had already taken a decision to
implement the DCP scheme in relation to certain
class of employees.
33. It is true that the relevant rules under
grant-in-aid code refer to an aided school and
does not make a distinction between a partially
or fully aided school. Nevertheless, the liability
of the Government to pay pensionary benefits to
a retired employee of a private school can arise
9 3-2009-2022-J.odt
only if the Government has undertaken to pay
100% grant to the school. As noted, very
concept of expecting the Government to pay such
pension even in a case where the Government
has so far not undertaken the liability to pay
100% grant is abhorrent to the basic principle of
service law."
7. A perusal of para 30, would indicate that
what is necessary to be considered while understanding
the aforesaid expression, is the crystallization of the
right of an employee, to claim pensionary benefits,
which would become crystallized, once the Institution,
is held to be admissible to 100% grant-in- aid, which is
the basic gravamen for holding whether the DCP
scheme is applicable to an employee or not.
8. In this background, it is also necessary to
consider the language of the Government Resolution
dated 27.10.2005, which holds the entitlement of the
Institution to receive grant-in-aid, the relevant para, of
which is as under :
ßfnukad 17 Qsczqokjh] 2004 P;k 'kklu fu.kZ;krhy
rjrqnhuwlkj mDr 'kkGkaps ewY;kadu 2004&2005 ;k
vkfFkZd o"kkZr ?kksf"kr gks.ks vko';d gksrs] R;keqGs mDr
'kkGkaiSdh fcxj vkfnoklh {ks=krhy 'kkGkauk ik=rsuqlkj
vuqnkukpk izFke 20 VDds gk VIik lu 2004&2005 ;k
vkfFkZd o"kkZr ns; gksr vlY;kus] lu 2005&2006 ;k
vkfFkZd o"kkZr vuqnkuklkBh 40 Vdds gk VIik vuqKs;
dj.;kr ;sr vkgs- vkfnoklh {ks=krhy 'kkGkauk fu/kkZfjr
lw=kuqlkj 100 VDds gk VIik vuqKs; dj.;kr ;sr vkgs-
lkscr tksMysY;k fooj.k i=kr lac/khr 'kkGsleksj
n'kZfo.;kr vkysyk vuqnkukpk ns; VIik gk QDr b;Rrk 8
10 3-2009-2022-J.odt
oh rs b;Rrk 10 oh ;k oxkZukp vuqKs; vkgs-
vuqnkuklkBh 'kkGk ik= >kyh Eg.kts R;k
'kkGsl vuqnkukpk gDd izkIr gksr ukgh- laca/khr 'kkGkauk
vuqnku ykxw dj.ks 'kklukpk LosPNkf/kdkj vlwu fu/khP;k
miyC/krsuqlkj 'kklu fud"kkik= 'kkGkauk vuqnku ykxw
djhy- gs vuqnku Hkwry{eh izHkkokus ykxw dsys tk.kkj ukgh-
Þ
9. The word "vuqKs;" means permitted /
admissible.
10. It is also necessary to consider the language
of the subsequent Government Resolution dated
15.7.2008, which is as under :
ßxMfpjksyh ftYg;krhy fcxj
vkfnoklh {ks=kr ?kksf"kr dsysY;k
ek/;fed 'kkGkauk vkfnoklh
mi;kstuk {ks=kr ?kksf"kr d:u
vuqnkukl ik= ;knhr nq:Lrh
ckcr-
egkjk"Vª 'kklu
'kkys; f'k{k.k o dzhMk foHkkx
'kklu 'kq/nhi= %& dza- lafd.kZ 1008@¼559@08½@ekf'k&1
ea=ky; foLrkj Hkou] eqacbZ
fnukad % 15 tqyS] 2008
lanHkZ % 'kklu fu.kZ; dza- ek'kkv 1804@¼656@04½@
ekf'k&1] fn- 27 vkWDVkascj] 2005
'kklu fu.kZ; %&
'kklu fu.kZ; daz- ek'kkv&1804@
¼656@04½@ekf'k&1] fn- 27@10@2005 vUo;s fouk vuqnkfur
ek/;fed 'kkGk eqY;kadukuqlkj vuqnkukl ik= Bjfo.;kr vkysY;k
vkgsr- lnj 'kklu fu.kZ;kr xMfpjksyh ftYg;krhy eqY;kadukuqlkj
?kksf"kr dj.;kr vkysY;k 3 ek/;fed 'kkGk 40% vuqnkukoj ?
kksf"kr dj.;kr vkysY;k vkgsr- rFkkfi] xMfpjksyh ftYg;krhy
eqY;kadukuqlkj vuqnkukl ik= ek/;fed 'kkGk g;k vkfnoklh
11 3-2009-2022-J.odt
mi;kstuk {ks=krhy vlY;kus R;k 'kklu fu.kZ; fnukad
17@2@2004 ef/ky rjrwnhuqlkj 100% vuqnkukoj ?kksf"kr gks.ks
vko';d gksrs-
2- foHkkxh; f'k{k.k milapkydkauh mijksDr lanHkhZ;
i=kUo;s dGfoY;kuqlkj 1½ Hkxoarjko gk;Ldqy] panuosyh]
rk- ,VkiYYh] ft- xMfpjksyh 2½ lar ekuon;ky fo|ky;]
jax¸;kiYyh] rk- fljksapk] ft- xMfpjksyh- 3½ dqFks ikVhy fo|ky;]
mjkMh] rk- dqj[ksMk] ft- xMfpjksyh] ;k rhu ek/;fed 'kkGk
vkfnoklh mi;kstuk {ks=krhy vlY;kus 40% ,soth 100% vuqnku
Viik v'kh nq:Lrh dj.;kr ;sr vkgs- rlsp vuqnku VIik
nq:Lrhuqlkj ;k 'kkGkauk eatwj vuqnkukrwu vuqnku vnk
dj.;kr ;kos-
6- 'kklu 'q/nhi= egkjk"Vªª 'kklukP;k ladsrLFkGkoj
(www.Maharashtra.gov.in) miyC/k dj.;kr vkyk vlwu R;kpk
lax.kd lakdsrkad dazekd 20080715115820001 vkgs-
egkjk"Vªªkps jkT;iky ;kaP;k vkns'kkuqlkj o ukoku]
Lok-
¼lqo.kkZ fl- [kjkr½
voj lfpo] egkjk"Vªª 'kklu
izr % vko';d R;k rkRdkG dk;ZokghlkBh vxzsf"kr]
f'k{k.k lapkyd] ek/;fed o mPp ek/;fed] egkjk"Vªª jkT;] iq.ks
f'k{k.k milapkyd] ukxiwj foHkkx] ukxiwj
f'k{k.kkf/kdkjh ¼ek/;fed½] ft-i- xMfpjksyh-
fuoM uLrh & ekf'k&1-Þ
11. The GR dated 27.10.2005, which is
admittedly before the admission of the new pension
scheme (DCP) by the GR dated 31.10.2005 w.e.f.
01.11.2005, would indicate, that it has held, the
abovesaid Institutions to be admissible to 40% grant-in-
12 3-2009-2022-J.odt
aid. Such admissibility, in turn by the GR dated
15.07.2008 has been recognized to be 100%, which
relates back to the GR dated 27.10.2005. It would,
therefore, be apparent that the right to be governed by
a pension scheme, which was in force on the date on
which GR dated 27.10.2005, came into existence,
became crystallized on account of the said GR. Thus if
the right of an employee, in terms of what has been
held by the learned Full Bench gets crystallized before
01.11.2005, then could it be said that since the actual
disbursement of the 100% grant-in-aid was later in
point of time, such a person would not be covered by
the Old Pension Scheme. In our considered opinion,
once, the State admits a particular Institution to a 100%
grant-in-aid the position ought to get locked on that
date, which in the present case is 27.10.2005. The
determining of the quantum of grant and disbursement
of the actual amount are matters which have nothing to
do, with the admissibility of the 100% grants as they
are merely administrative and procedural aspects, to be
executed and implemented, once it is held that the
particular Institution is admissible to 100% grant.
13 3-2009-2022-J.odt
12. Though Mr. Madiwale, learned Assistant
Government Pleader for the respondents / State relies
upon clause 6 of the Government Resolution dated
27.10.2005, to contend, that the valuation of the
District Committee and State Committee was solicited
to determine the amount payable under the grant, as
indicated above, the same would not affect, the right of
an employee, which came to be crystallized on the
issuance of the GR dated 27.10.2005. Similarly, reliance
placed upon the later part of Clause 3 in the GR dated
27.10.2005, would also not adversely affect the
crystallization of the right of the employee, as all that it
says is that grants would be given if the funds are
available. So also, the statement as contained therein
that grant-in-aid would not be administered
retrospectively would also not in any manner affect the
right of an employee as all these things, are procedural
in nature. It is also necessary to note, that the grant in
aid which has been disbursed w.e.f. 01.09.2006, is
related to the GR dated 27.10.2005, which holds the
Institution admissible to 100% grant.
13. It is also necessary to note that holding that
14 3-2009-2022-J.odt
the Old Pension Scheme, would be applicable, from the
date of actual disbursement of the amount payable in
accordance with the bringing of the Institution to 100%
grant, would in fact, cause an injustice to the employees
as indicated above, as in a given case, the Institution
would have been admissible to 100% grant-in-aid,
earlier to the cut off date of 01.11.2005 but the actual
disbursement could be at any time in future and in
cases even after substantial period of time, and,
therefore, the expression "receiving 100% grant", has
necessarily to be construed in the light of what the
learned Full Bench, has observed in para 30 of the said
judgment regarding crystallization of the right of an
employee.
14. We are, therefore, of the considered opinion,
since nothing otherwise has been brought to our notice
for us to take any other view of the matter, that since
the right of the petitioners, came to be crystallized on
27.10.2005, the date of the issuance of the GR by which
the Institution was held admissible to 100% grant and
the fact that all the petitioners have been recruited and
appointed prior to 01.11.2005, they would be governed
15 3-2009-2022-J.odt
by the Old Pension Scheme. The petition is, therefore,
allowed in the above terms. Considering the
circumstances, no order as to costs.
Rule is made absolute in the above terms.
(ABHAY J. MANTRI,J.) (AVINASH G. GHAROTE,J.)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 08/04/2025 18:36:02
