Bombay High Court

Gulabbee Syed Pasha vs The State Of Maharashtra And Others on 6 May, 2025

Author: R.G. Avachat

Bench: R.G. Avachat

2025:BHC-AUG:13281-DB
                                                           Writ Petition No.5752/2022
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                      IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD

                               WRIT PETITION NO.5752 OF 2022


                 Smt. Gulabbee wd/o Syed Pasha
                 Age 61 years, Occu. Household,
                 R/o Taru Pimpalwadi,
                 Tq. Paithan, Dist. Aurangabad             ... PETITIONER

                        VERSUS

                 1.     The State of Maharashtra
                        through its Principal Secretary,
                        Rural Development Department,
                        Mantralaya,Mumbai - 32

                 2.     The Additional Chief Secretary,
                        Finance Department,
                        Mantralaya, Mumbai - 32

                 3.     The Chief Executive Officer,
                        Zilla Parishad, Aurangabad,
                        District Aurangabad

                 4.     The Chief Engineer,
                        Public Works Department,
                        Zilla Parishad, Aurangabad
                        Tq. & Dist. Aurangabad

                 5.     Deputy Chief Accounts and Finance
                        Officer, Zilla Parishad, Aurangabad,
                        Tq. & Dist. Aurangabad             ... RESPONDENTS

                                               .......
                 Mr. S.G. Salgare, Advocate for petitioner
                 Mr. A.S. Shinde, A.G.P. for State
                 Mr. Avinash S. Deshmukh, Advocate (as amicus curiae to
                 assist Court)
                                                 Writ Petition No.5752/2022
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                                  .......

                     CORAM : R.G. AVACHAT AND
                             SANDIPKUMAR C. MORE, JJ.

       Date of reserving judgment : 22nd April 2025.
       Date of pronouncing judgment : 6th May, 2025


J U D G M E N T (PER R.G. AVACHAT, J.) :

Rule. Rule made returnable forthwith and heard

finally with the consent of learned counsel for the parties.

2. This petition under Article 226 of the Constitution of

India, is filed for the following main relief :

"E-1) By writ, order or directions, the impugned letter dated 01/12/2021 issued by the respondent No.5 to the respondent No.4 and the impugned Government Circular dated 25/10/2011 issued by the respondent No.2 may kindly be quashed and set aside to the extent of the case of the petitioner and the respondent No.1 to 4 may kindly be directed to grant family pension, death gratuity and other pensionary benefits to the petitioner as per 6 th Pay Commission as provided under G.R. dated 27/12/2018 considering the period of 300 days of earned leave, 73 days of commuted leave and 911 days of extra-ordinary leave on medical ground granted by the competent authority after the death of her husband as qualifying service for the purpose of pension, death gratuity, and other pensionary benefits in view of the provisions under Rule 35 of Maharashtra Civil Services (Pension) Rules, 1982 in the interest of justice."

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3. Facts, not in dispute, are as follows :-

Syed Pasha was the husband of the petitioner -

Gulabbi. He was appointed on the post of Driver with the

office of Zilla Parishad, Aurangabad on 10/8/1985. He (Syed

Pasha) breathed his last on 30/4/2007. He was not keeping

well. The details of leave availed by him immediately before

his passing away are as under :

1) Medical Leave : 09/07/2001 to 29/07/2001 12/11/2001 to 26/11/2001 Total 38 days.

2) Earned Leave : 11/11/2002 to 06/09/2003 Total 300 days.

3) Commuted leave : 07/09/2003 to 19/10/2003 01/10/2004 to 20/10/2004 Total 73 days.

4) Extra-ordinary Leave: 30/10/2004 to 29/04/2007 (Medical) Total 911 days.

4. Syed Pasha had rendered total service of 21 years

8 months and 20 days. His widow, the petitioner, had been

sanctioned family pension in terms of 5 th Pay Commission

recommendations on 16/8/2007.

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5. Since Syed Pasha passed away post 6th Pay

Commission recommendations made applicable, the petitioner

applied for grant of family pension in terms of 6 th Pay

Commission recommendations. Her claim has been turned

down relying on the Government Circular, under challenge,

dated 25/10/2011, whereunder the employees on extraordinary

leave since before 1/1/2006 and died thereafter were held to

be not entitled to the benefits of the 6 th Pay Commission

recommendations.

6. Heard. At the outset, we acknowledge assistance

rendered by learned counsel Mr. Avinash S. Deshmukh,

appointed to assist us in the matter. He would submit that, the

Maharashtra Civil Services (Pension) Rules, 1982 (M.C.S. Pay

Rules) are in the nature of beneficial legislation. He adverted

our attention to clause (2) of the Maharashtra Civil Services

(Revised Pay) Rules, 2009 (M.C.S. Revised Pension Rules) to

submit that, the employees on extraordinary leave without pay

have not been excluded from applicability of the rules. He

would support the petitioner's cause.

7. Learned counsel for the petitioner relied on Rule 35

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of the M.C.S. Pension Rules to submit that, all leave excluding

extraordinary leave during the period of continuous service

shall count as qualifying service for pension. He would further

submit that, the State Government cannot withdraw

retrospectively the benefits which have already been accrued

to the deceased and on his demise, to the petitioner.

8. The learned A.G.P. would, on the other hand,

submit that, the relevant M.C.S. Pension Rules and the M.C.S.

Revised Pay Rules have not been challenged. The

Government Circular dated 25/10/2011 is in consonance with

the M.C.S. Pension Rules and M.C.S. Revised Pay Rules.

The M.C.S. Revised Pay Rules specifically empower the

Governor to exclude certain category of employees from

applicability of the said Rules. In exercise of the said powers,

the Circular dated 25/10/2011 has been issued. The learned

A.G.P. would, therefore, submit that the claim of the petitioner

has rightly been turned down. He, therefore, urged for

dismissal of the petition.

9. We have considered the submissions advanced.

Perused the relevant rules under the M.C.S. Pension Rules,

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MCS (Leave) Rules and the M.C.S. Revised Pay Rules

besides the Circular dated 25/10/2011.

10. Chapter VI of the M.C.S. Pension Rules speaks of

pensionable pay. Rule 60 thereof is relevant for the purpose.

Rule 9(36) defines the term 'pay' to mean the amount drawn

monthly by a Government servant. Clause (v) has been

introduced therein vide amendment dated 18/1/2016 to include

therein the following :

"(v) in the 6th Pay Commission, the pay drawn in the prescribed pay band plus applicable grade pay but does not include any other type of pay like special pay, which the Government servant was receiving immediately before his retirement or on the date of his death."

11. We are not much concerned with the M.C.S.

Pension Rules, 1982 since the claim in the Writ Petition is for

revision of pay and pension in terms of 6 th Pay Commission

recommendations.

12. The 6th Pay Commission recommendations have

been made applicable w.e.f. 1/1/2006. Extraordinary leave

without pay is one of the leaves admissible to the Government

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employee. True, in view of Rule 17(4) of the M.C.S. (Leave)

Rules, 1981 a Government servant on extraordinary leave is

not entitled to any leave salary.

13. For implementation of the 6th Pay Commission

recommendations, the State Government, vide notification

dated 22/4/2009, brought into force the M.C.S. Revised Pay

Rules to be made applicable w.e.f. 1st day of January, 2006.

Clause (h) of sub-rule (2) of Rule 2 of the M.C.S. Revised Pay

Rules is heavily relied on by the learned A.G.P. The clause

reads thus :

"(h) Government servants specifically excluded wholly or in part by the Governor of Maharashtra from the operation of these rules."

14. True, the Circular dated 25/10/2011 is said to have

been issued by the Governor in exercise of powers under

clause (h) above. Clause (3) of the Circular reads thus :

"३. शशसनशनन यशवर ववचशर कनलश अससन, शशसन आतश असश खखलशसश कररत आहन कक, जन करर चशरर वद. १ जशननवशरर २००६ पसवरपशससन असशधशरण रजनवर वककवश वनलकबनशखशलर हहतन व जन पतयकशत वद. १ जशननवशरर २००६ नकतर असशधशरण रजनवर असतशकनश सनवशवनववत वककवश रवतयस पशवलन असतरल वककवश वनलकबनशधरन असतशकनश सनवशवनववत झशलन / करणयशत आलन असतरल तर अशश करर चशऱयशकनश र.नश.सन. (सख.वन.) वनयर २००९ चश लशभ अनखजनय नशहर."

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15. The petitioner obtained an extract of endorsement

made in the Service Book of her deceased husband. The

endorsement reads thus :-

"रश. रखखय कशयर कशरर अधधकशरर, धजलहश पररषद, औरकगशबशद यशकचन आदनश क. धजपऔ/बशकध/असश/शन/कशवर/२००८ वद. १३/५/२००८ शर सययद पशशश अबदल ख रहनरशन वशहनचशलक धजप(बशक) उपववभशग, धसलहड यशकचर खशलरलपरशणन रजश रकजसर करणयशत आलर आहन.

वदनशकक ११/११/२००२ तन ६/९/२००३ ३०० वदवस अधजर त रजश वदनशकक ७/९/२००३ तन १९/१०/२००३ ४३ वदवस पररववतर त रजश वदनशकक ११/१०/२००४ तन ३०/१०/२००४ ३० वदवस --"-- वदनशकक ३१/१०/२००४ तन २९/४/२००७ ९११ वदवस असशधशरण रजश

सकबकधधतशकचर एकसण १२८४ वदवसशचर वररल परशणन रजश रकजसर करणयशत यनत आहन. सकबकधधत हन वदनशकक ३०/४/२००७ रहजर रयत झशलन आहनत."

16. The aforesaid record indicates that, late Syed

Pasha was constrained to avail extraordinary leave, as he was

not keeping good health. The period of leave indicates that his

health condition must have been such which made him

physically disabled to render the service. This is nothing short

of a case of a person acquiring physical disability during

service. Admittedly, he breathed his last due to ill health on

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30/4/2007 i.e. after 6th Pay Commission recommendations

made applicable. A reference to clause (iii) of Note (1) of

M.C.S. Revised Pay Rules would not be out of place though

not strictly applicable. Sub-clause (iii) reads thus :

"(iii) A Government servant who is on extraordinary leave for other than medical reasons prior to the 1st day of January 2016 and retired on or after the 1st day of January 2016 without resuming his office, shall not be entitled for the benefits of these rules, however, his pensionary benefits shall be granted as per the applicable rules in unrevised pay structure."

17. This clause makes applicable 7th Pay Commission

recommendations to the employees on extraordinary leave for

medical reasons even from prior to 1st day of January 2016

and retired thereafter without resuming his office.

18. It is reiterated that, Syed Pasha was constrained to

avail extraordinary leave without pay for medical reasons.

When the M.C.S. Revised Pay Rules were notified on

22/4/2009, making them applicable w.e.f. 1/1/2006, the State

Government/ Governor had not specifically excluded any

Government servant from application of the M.C.S. Revised

Pay Rules. The Rules were made applicable to all persons

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who were under the Rule making control of the Government of

Maharashtra, true, except certain categories of Government

servants enumerated in sub-clause (2). It is reiterated that, on

the day on which Syed Pasha passed away, he was not

specifically excluded from applicability of the M.C.S. Revised

Pay Rules. It is only two years after his demise, the

Government Circular dated 25/10/2011 came into being,

excluding the persons on extraordinary leave from applicability

of the M.C.S. Revised Pay Rules.

19. In our view, when the benefit had already been

accrued to Syed Pasha, and on his demise to the petitioner,

the same ought not to have been withdrawn vide impugned

Circular dated 25/10/2011. Right to receive retiral benefits is

considered to be a right under Article 300A of the Constitution

of India. With an executive fiat it cannot be withdrawn

retrospectively. It is the delay caused by the employees of the

concerned Department in not releasing the benefits in favour of

the petitioner before 25/10/2011. Had the claim of the

petitioner been processed immediately, the actual benefits

would have been paid to the petitioner, but for the impugned

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Circular. Had the benefits been actually received by the

petitioner, those could not have been legally recoverable in the

Courts of law, on the strength of the Circular dated 25/10/2011.

We, therefore, set aside the said Circular dated 25/10/2011 to

the extent of the petitioner's case and direct the respondent

authorities to release in favour of the petitioner all the

monetary benefits accrued in terms of 6 th Pay Commission

recommendations on account of her husband's death in

harness. It is made clear that, the petitioner shall not be paid

the actual monetary benefits during which late Syed Pasha

was on extraordinary leave without pay.