Bombay High Court

Dipali Nandkishor Patade And Others vs The State Of Maharashtra And Others on 6 May, 2025

Author: Mangesh S. Patil

Bench: Mangesh S. Patil

2025:BHC-AUG:13296-DB


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                                                   (1)

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                               WRIT PETITION NO.12748 OF 2021

                1.      Dipali w/o Nandkishor Patade,
                        Age: 42 years, Occ. Household.
                2.      Sukhada D/o Nandkishor Patade
                        Age: 19 years, Occ. Education
                3.      Anandi D/o Nandkishor Patade,
                        Age : 15 years, Occ. Education,
                        Minor U/G Petitioner No.1,
                        Dipali N. Patade, 42 years.
                        All R/o Angadrao Dhodiram Kale
                        Behind Pokarna Oil Mill, Moti Nagar
                        Karneri Road, Dist-Latur               ....PETITIONERS

                        VERSUS
                1]      The State of Maharashtra,
                        Through the Secretary of
                        Higher Education Department,
                        Mantralaya, Mumbai-32

                2]      The Director Higher Education,
                        Maharashtra State, Pune.

                3]      The Joint Director Higher Education,
                        Nanded Regional office, Nanded.

                4]      Accounts Officer (Grants)
                        Office of The Joint Director
                        Higher Education, Nanded Region,
                        Nanded. Dist. Nanded.

                5]      Swami Ramanand Teerth
                        Marathwada University,
                        Through its Registrar,
                        Dnyantirth, Vishnupuri,
                        Nanded, Dist. Nanded.
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                                 (2)


6]    Nagnath Arts, Commerce
      & Science College, Aundha Nagnath
      Through its Principal
      Tal. Aundha(Nag.) Dist. Hingoli          ....RESPONDENTS

                                   ....

Mr R. R. Deshpande, Advocate h/f Ms Priyanka Deshpande, Advocate
for petitioners
Mr S. V. Hange, A.G.P. for respondent Nos.1 to 3
Mr S. S. Birajdar, Advocate h/f Mr S. K. Chavan, Advocate for
respondent No.6

                      CORAM : MANGESH S. PATIL
                                   AND
                              PRAFULLA S. KHUBALKAR, JJ.

           RESERVED ON : 11th February, 2025
         PRONOUNCED ON : 6th May, 2025


JUDGMENT (PER : PRAFULLA S. KHUBALKAR, J.)

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by

consent of parties.

3. The petition takes exception to the decision of the

respondents, denying family pension to the legal representatives of

deceased employee by excluding the petitioners communicated by

letter dated 30/08/2021. The denial of family pension is primarily on

account of failure of the deceased employee to clear National 12748.21wp

Eligibility Test/State Eligibility Test (NET/SET) examination as

required by the order of approval of appointment.

4. The petitioners are the legal representatives of deceased

Shri. Nandkishor Sitaram Patade, who had worked on the post of

'Librarian' from 21/06/2001 till his death on 23/04/2021, while in

service, due to Covid-19. The primary contention of the petitioners is

that deceased Shri. Nandkishor Sitaram Patade, husband of petitioner

No.1 and father of petitioner Nos.2 and 3 was appointed on 21/06/2001

by regular selection process and his appointment was duly approved

by respondent No.5/University, however, subject to passing of

NET/SET examination. It is their specific case that the deceased

employee had achieved additional/higher qualification of degree of

Ph.D. on 11/04/2017, pursuant to which, he was granted three

additional increments. After rendering qualifying service for pension

of more than 19 years, he expired at the age of 46 years. Denial of

family pension is mainly on account of non-fulfillment of the

requirement to obtain NET/SET qualification; and secondly, on the

ground that the appointment of the employee was not during the period

from 23/10/1992 to 03/04/2000 as stipulated in Clause No.16 of the

Government Resolution dated 27/06/2013.

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5. Advocate Mr R.R. Deshpande, holding for Advocate Ms

Priyanka Deshpande, learned counsel for the petitioners vehemently

submits that the impugned decision denying family pension to the

petitioners is arbitrary and illegal since, undisputedly, the appointment

of the deceased was approved by the University. He strenuously

submits that the instant case is covered by the judgment of the

co-ordinate bench of this Court, dated 05/02/2024 in Writ Petition

No.10170/2021 (Gangasagar Umrao Kawale and others Vs. State of

Maharashtra and others), by which, considering the fact of grant of

approval to the appointment, the employee was held entitled to grant

of family pension even in absence of NET/SET qualification. He also

relies on the judgment in Writ Petition No.10170/2021, another co-

ordinate bench of this Court at Nagpur decided Writ Petition

No.814/2023 (Vanmala Wd/o Gautam Shambharkar and others VS.

State of Maharashtra and others) vide judgment dated 14/03/2024 and

Writ Petition No.637/2022 (Shri. Pradip Nilkanthrao Dhote Vs. State

of Maharashtra and others) vide judgment dated 13/11/2024, wherein

the respective employees were held entitled to pensionary benefits

even in absence of NET/SET qualification, by mainly considering the

fact that their appointments were duly approved by the University.

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6. Per contra, advocate Mr S. V. Hange, learned A.G.P. for

respondent Nos.1 to 3 and advocate Mr S. S. Birajdar, holding for

advocate Mr Chavan, learned counsel for respondent No.6 vehemently

oppose the petition mainly highlighting that the deceased had not

acquired the requisite qualification and was not covered by the

Government Resolution dated 27/06/2013. Their primary contention is

that the approval was granted to petitioner's appointment subject to

compliance of orders issued by the University Grant Commission

(UGC) and the Government from time to time, including acquiring

NET/SET qualification.

7. Having considered the submissions, rival contentions fall

for our consideration.

8. The controversy revolves around entitlement of the

petitioners to family pension despite deceased employee having not

acquired the NET/SET eligibility. It is pertinent to note that the order

granting approval to the appointment of the deceased was subject to

compliance with the orders and regulations issued by the UGC and the

Government from time to time, including acquiring of NET/SET

qualification. Relevant to note, Government Resolution dated

27/06/2013 provided exemption from NET/SET qualification to the 12748.21wp

employees appointed during 23/10/1992 to 03/04/2000. In the instant

matter, the deceased was appointed on 21/06/2001 i.e. not during the

period from 23/10/1992 to 03/04/2000. It is important to note, the

approval was granted by the University specifically making it subject

to regulations of UGC and State Government issued from time to time

regarding NET/SET qualification. The UGC Regulations 2009

prescribes minimum qualification and contains provisions regarding

exemption from NET/SET for the candidates possessing Ph.D.

qualification. The deceased herein had completed his Ph.D. in 2017,

while he was in service. Further, there is no dispute that the

appointment was made by a duly constituted selection committee and

it was approved by the University and thus, in view of office order

dated 05/11/2008 issued by UGC, the deceased was entitled to claim

exemption from NET/SET. Thus, in the facts of the instant case, the

deceased was entitled to claim benefits of regulations and orders of

UGC issued from time to time.

9. The twofold reasons to deny family pension are dealt with

by the co-ordinate benches in above-referred judgments. Considering

similar situation of appointment dated 09/03/2002, the co-ordinate

bench had granted pensionary benefits to the deceased employee vide 12748.21wp

judgment dated 05/02/2024 in Writ Petition no.10170/2021 by

primarily considering that the appointment was duly approved.

Further, another co-ordinate bench in Writ Petition No.637/2022 has

held the employee entitled to grant of pensionary benefits by

considering the order dated 05/11/2008 passed by the UGC which had

granted exemption from NET/SET examination by primarily

considering the fact that the employee was appointed by a duly

constituted selection committee.

10. Having considered the controversy involved in the instant

matter, we find that the view taken by the co-ordinate bench in Writ

Petition No.10170/2021 is applicable to it. It is, therefore, profitable to

reproduce relevant paragraphs from the said judgment :

"6. At the outset we would like to say that the decisions which have been relied on by the learned Advocate for the petitioner contended different set of facts. In those petitions the appointment of the petitioners therein was prior to 23rd October 1992 and therefore, it was held that they were covered by University Grants Commission Resolution dated 19th September 1991 which came to be implemented in the State on 30th October 1992. Here the facts are already stated, however to recapture, it can be said that the appointment of the deceased was on 9th March 2002. The approval was granted by the University on 24th August 2006 which was subject to passing of NET / SET Examination and it was temporary approval. The deceased completed his M.Phil on 3rd August 2009 and he was awarded Ph.D. on 14th October 2017. Thereafter the institute 12748.21wp

wherein the deceased was serving i.e. respondent No.6 had forwarded proposal to grant permanency to the deceased, which came to be approved by the University on 13th December 2017. Entry was taken in his service book to that effect. Now, it is to be noted that there is a presumption that when University grants approval to the permanency then it has considered all the requirements / rules / regulations. The said approval granted by the University was never challenged by anybody. Unfortunately, the deceased expired on 26th May 2021. Now the petitioners cannot be asked to answer the deficiencies.

7. Since the University has granted approval on 13 th December 2017 and the fact that the deceased had put in pensionable service, definitely the Petition deserves to be allowed.

8. At the cost of repetition, we are saying that it is since the University has granted approval, who was required to consider whether the appointment was proper or not and the Government cannot raise objection to that effect at a later stage; we are constrained allow the Petition. Accordingly, the Writ Petition is allowed."

11. This apart, while considering the purport of the order

dated 05/11/2008 passed by the UGC, another co-ordinate bench in

Writ Petition No.637/2022 has held the employee entitled to

pensionary benefits by relying upon the judgment in Writ Petition

No.10170/2021, of which relevant paragraphs are reproduced below :-

"5. Our attention is invited to the order dated 5.11.2008 passed by the University Grants Commission (for short "U.G.C.") wherein the petitioner was granted exemption from 12748.21wp

appearing in NET/SET examination as the petitioner was selected by duly constituted Selection Committee.

6. In this background, respondent No.2 the Joint Director of Higher Education has instead of appreciating the exemption granted by U.G.C. and also the approval to the appointment of the petitioner, proceeded to overwrite the exemption granted by U.G.C. dated 5.11.2008 thereby forming the basis of non- holding NET/SET qualification by the petitioner for disqualifying him from getting the retirement benefits.

7. The aforesaid issue, in our opinion, is covered by the decision dated 5.2.2024 of Division Bench at Aurangabad in Writ Petition No.10170/2021 (Gangasagar W/o Umrao Kawale and two others V/s. The State of Maharashtra and others). ........"

12. Having considered the factual aspects of the instant case,

we find no reason to take a different view in view of the fact that the

deceased employee had rendered 19 years of service after having been

appointed through the regular selection process. We are of the

considered view that the decision of the respondents denying

pensionary benefits is unsustainable and the petition deserves to be

allowed. Hence, we find it appropriate to quash the impugned

communication dated 30/08/2021 issued by respondent No.4 and dated

02/09/2021 issued by respondent No.6. We hold that the petitioners

are entitled to grant of family pension of deceased Shri. Nandkishor

Sitaram Patade. Accordingly, the respondents are directed to process, 12748.21wp

sanction and disburse the family pension and other retiral benefits to