Bombay High Court
Sanjay S/O Abhimanyu Erande vs The Govt. Of Maha. Thr. Secretary, ... on 30 January, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:951-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5230 OF 2022
Sanjay s/o Abhimanyu Erande,
Aged about 57 years,
Occupation - Retired,
R/o Flat No.2, "A" Wing, Trupti
Garden Co-operative Housing Society,
Bhausaheb Charwad Nagar, Near
Mataji Super Market, Wadgaon (Bu.),
Pune - 411051. .... PETITIONER
VERSUS
1) The Government of Maharashtra,
through Secretary,
Higher & Technical Education,
Mantralaya, Mumbai - 32.
2) The Director of Higher Education,
Maharashtra State, Central Building,
Pune - 411001.
3) The Joint Director,
Higher Education, Amravati Division,
Amravati, V.M.V. Premises,
Amravati-444604.
4) Sant Gadge Baba Amravati University,
Amravati, through its Registrar,
Mardi Road, Amravati - 444 602.
5) Maharashtra State Board of Secondary
& Higher Secondary Education,
through its Secretary, Survey No.812,
Plot No.178, 179, Near Balchitrawani,
Bhambhurda, Shivaji Nagar, Pune-411004. .... RESPONDENTS
________________________________________________________________
Mr. H.D. Dangre & Mr. R.D. Wakode, Counsel for the petitioner,
Mr. J.Y. Ghurde, A.G.P. for the respondent Nos.1 to 3,
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Ms. K.K. Pathak, Counsel for the respondent No.4,
Mr. Anand Parchure, Counsel for the respondent No.5.
________________________________________________________________
CORAM : AVINASH G. GHAROTE &
ABHAY J. MANTRI, JJ.
DATE : 30-1-2025
ORAL JUDGMENT : (Per : AVINASH G. GHAROTE, J.)
Rule. Rule made returnable forthwith.
2. The petition questions the communication dated 13-5-2022 (Page
No. 87) by which the petitioner has been held not to be entitled to the
benefit of the Old Pension Scheme.
3. Mr. H.D. Dangre, learned counsel for the petitioner submits, that
since the petitioner was employed with the Maharashtra State
Secondary and Higher Secondary Education Board (for short, "Board"
hereinafter) and had served the Board for duration 21-2-1992 to
04-9-2008, consequent to which, he had been permitted to join the
respondent No.4 on 05-9-2008 till 31-7-2021 being superannuated, the
petitioner was clearly entitled for the Old Pension Scheme. In support
of his contention, he relies upon the G.R. dated 15-11-1985 (Page
No.38), which entitles the employees of the Board for grant of pension,
though such pension has to be granted from the funds made available
by the Board. He also places reliance upon the G.R. dated 31-10-2005
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(Page No.50) by which the new contribution pension scheme has been
introduced and specifically clause 4(b), to contend that the scheme is
applicable to any recognized and aided educational institution in so far
as employees who are recruited on or after 01-11-2005 (Page No.51).
He also places reliance upon the circular dated 12-6-1997 (Page
No.181) by which the Board has been recognized as an educational
institution. Reliance is also placed on the circular dated 12-1-2007
(Page No.56) and the one dated 18-8-2009 (Page No.57) in support of
the aforesaid contention. He further relies upon Rule 29 of the
Maharashtra Civil Services (Pension) Rules, 1982 (for short "MCS
(Pension) Rules") to point out that in case of an employee having
earlier been employed with an institution to whom the local fund as
defined in Rule 9(32) was applicable, then for the purpose of grant of
pension there has to be an apportionment depending upon the length
of service, from the local fund and the consolidated fund as defined in
Section 9(10) for the purpose of grant of pension. He further submits,
that even the impugned communication dated 13-5-2022 does not
dispute that the petitioner is entitled for pension, however, what is
being applied, is the Defined Contribution Pension Scheme (for short,
"DCPS") on account of the employment of the petitioner with the
respondent No.4 w.e.f. 05-9-2008 instead of the Old Pension Scheme,
which is applicable in view of the earlier employment of the petitioner
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with the Board w.e.f. 21-2-1992. He, therefore, submits, that the
impugned communication in so far as it denies the applicability of the
Old Pension Scheme to the petitioner on the aforesaid ground cannot
be sustained and is liable to be quashed and set aside and the petitioner
is entitled to pension under the Old Pension Scheme.
4. Mrs. K.K. Pathak, learned Counsel for the respondent No.4 and
Mr. Anand Parchure, learned Counsel for the respondent No.5, both are
supporting the contentions of Mr. H.D. Dangre, learned Counsel for the
petitioner.
5. Mr. J.Y. Ghurde, learned Assistant Government Pleader, however,
vehemently supports the impugned communication by contending that
the appointment of the petitioner with the respondent No.4 on
05-9-2008 was a fresh appointment and therefore, the applicability of
the DCPS has rightly been done.
6. We are not inclined to agree with the contention of Mr. J.Y.
Ghurde, learned Assistant Government Pleader, for the reason, that the
respondent No.3, by the impugned communication, does not say that
the petitioner is not entitled for pension. What it says that the Old
Pension Scheme would not be applicable to the petitioner. The very
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fact that the petitioner has been held to be entitled to the grant of
pension, by the respondent No.3, would in itself indicate that the
earlier services of the petitioner with the Board has been considered by
the respondent No.3 to determine the fulfillment of qualifying service of
twenty years for the grant of pension. This being the position, it is thus
apparent, that the earlier employment of the petitioner with the Board
has been taken into consideration for the purpose of holding that the
petitioner is entitled to the pension. If that be so, the respondent No.3
now cannot turn around and say that the Old Pension Scheme would
not be applicable to the petitioner, as that would be a contrary to the
stand by the respondent No.3 in the impugned communication that the
petitioner is entitled for grant of pension on account of having
completed the qualifying service, for otherwise, taking into
consideration the length of service put by the petitioner with the
respondent No.4, which is a period of 13 years, the petitioner would
have been held to be dis-entitled for pension on account of non
completion of the qualifying service.
7. It would also be material to note as rightly pointed by Mr. H.D.
Dangre, learned Counsel for the petitioner, that the Board has been
recognized as an educational institution by the circular dated
12-6-1997 (Page No. 181). The G.R. dated 15-11-1985, also makes the
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pension applicable to the employees of the Board, subject to the only
condition that it is to be paid from its own funds. This would clearly
indicate that the pension which is payable by the Board, is out of the
local fund as defined in Rule 9(32) of the MCS (Pension) Rules. A
meaningful reading of Rule 29 of the aforesaid Rules, would indicate
that where a part of the pensionable service has been rendered in an
establishment, which is governed by the local fund and part in an
institution governed by the consolidated fund, the payment of pension
has to be apportioned between both, commensurate to the length of
service put in by the employee in the two institutions. Rule 34 also
supports this contention, which states that service paid from local fund,
which is administered by the Government, is pensionable service, but
the cost of pension earned by it will be met by the local fund. It is also
necessary to note that Mr. J.Y. Ghurde, learned Assistant Government
Pleader for the respondent Nos.1 to 3, does not dispute that except for
the stipulation of grant of pension, from its own fund, the Board is an
organization, which is fully controlled in all aspects by the State. This
would, therefore, point out to us that the service rendered by the
petitioner to the Board cannot be ignored for the purpose of grant of
pension. In fact the impugned communication itself as indicated above
considers the services rendered by the petitioner with the Board, for the
purposes of holding him to satisfy the qualifying service for grant of
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pension. That being the position, we hold that the Old Pension Scheme
would be applicable to the petitioner, however, subject to what has been
stated in Rule 29 of the MCS (Pension) Rules regarding the
apportionment.
8. The impugned communication dated 13-5-2022 in so far it denies
the benefit to the petitioner of Old Pension Scheme is hereby quashed
and set aside. The petition is accordingly allowed in the above terms.
No costs.
Needles to say, that the proposal for pension of the petitioner,
shall be processed by the authorities all post haste and it shall be
ensured that the petitioner is granted pension within a period of six
weeks from today.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 31/01/2025 15:18:40
