Bombay High Court
Smt. Darshana Wd/O Adikrao Gaikwad vs State Of Maharashtra Thr. Secretary, ... on 9 July, 2018
Equivalent citations: AIRONLINE 2018 BOM 532
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.5421 of 2017
Smt. Darshana wd/o Adikrao Gaikwad,
Aged about 38 years,
Occupation - Household,
Resident of C/o Prashant Madhukarrao Bhaisare,
Ramabai Chowk, Vidyanagar,
Brahmapuri,
District Chandrapur. ... Petitioner
Versus
1. State of Maharashtra,
through its Secretary,
Department of School Education,
Mantralaya, Mumbai-32.
2. The accountant General (A & E-II),
Maharashtra, Civil Lines, Nagpur.
3. The Education Officer (Secondary),
Zilla Parishad, Chandrapur.
3. Mahatma Fule Vidyalaya,
through its Head Master,
Sindewahi,
District Chandrapur. ... Respondents
Shri Anand Parchure, Advocate for Petitioner.
Ms S.S. Jachak, Assistant Government Pleader for Respondent
Nos.1 to 3.
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Coram : R.K. Deshpande & Arun D. Upadhye, JJ.
th Dated : 9 July, 2018 Oral Judgment (Per R.K. Deshpande, J.) :
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. The husband of the petitioner, while working as a Full Time Librarian in the private aided School, i.e. the respondent No.4- Mahatma Fule Vidyalaya, Sindewahi, District Chandrapur, expired on 24-10-2016. The petitioner is his widow, who has filed this petition challenging the communication dated 23-5-2017 issued by the respondent No.2-
Office of the Accountant General, Nagpur, rejecting her claim for release of pension on the ground that she is not entitled to pension in terms of the Government Resolution dated 31-10-2005. The stand is that the husband of the petitioner worked as a Full Time Librarian from 1-2-2009 till 24-10-2016 and as such he failed to complete the qualifying ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 ::: 3 wp5421.17.odt service of ten years to become entitled for pension.
3. From the stand taken by the respondent No.3- the Education Officer and the respondent No.2 - The Accountant General by filing an affidavit, the undisputed position emerging is that the husband of the petitioner worked as a Part Time Librarian from 1-7-1998 to 31-1-2009, i.e. for a period of 10 years and 7 months, and thereafter he was continued as a Full Time Librarian from 1-2-2009 to 28-10-2016 in the same School. After rendering 7 years, 8 months and 23 days' service as a Full Time Librarian, he expired.
4. We have gone through the Government Resolution dated 31-10-2005 and we do not find that Clause 4(b) therein makes any distinction between the Part Time and Full Time employees. It states that the decision contained in the said Government Resolution shall mutatis-mutandis apply to the employees who are recruited on or before 1-11-2005, to whom the existing Pension Scheme or General Provident Fund Scheme ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 ::: 4 wp5421.17.odt would be applicable. Undisputedly, the husband of the petitioner was recruited on 1-7-1998 as a Part Time Librarian and we find that the stand of the respondents is that Clause 4(b) contains the recruitment as a Full Time employee as on 1-11-2005, is artificial and it is not borne out from the said Government Resolution.
5. We find that the controversy involved in the present matter is covered by several decisions of this Court. The first decision is in the case Jyoti Prakash Chougule v. State of Maharashtra and others, delivered by the Division Bench consisting of S.C. Dharmadhikari and K.R. Shriram, JJ. in Writ Petition No.2354 of 2012 on 7-1-2013. Para 2 of the said decision deals with the relief claimed in the petition and the same is reproduced below :
"2] By this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of a writ of mandamus or any other appropriate writ order or direction directing the respondents Nos.1 to 4 to grant ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 ::: 5 wp5421.17.odt superannuation pension by counting one half of service of 5 years, five months fifteen days part time Assistantteacher along with service of eight years, seven months as full time assistant teacher, so as to enable her to qualify for superannuation pension."
After considering several decisions, including the decisions of the Apex Court and the rules applicable, it is held in para 13 as under :
"13] Once the very State Pension Rules are applicable to teachers in terms of the Rule 19 of the MEPS Rules, then, we are of the view that the above principle will apply in the present case. Hence, we direct the respondent No.2 Accountant General to consider the case of present petitioner for giving pensionary benefits in view of the above rule and to decide the entitlement within four months from the date of receipt of copy of this order. The necessary arrears which the petitioner is entitled to should be accordingly paid. If any monetary benefits have to be refunded, the said Respondent No.2 to make an appropriate order in that behalf and the petitioner to abide by the same."::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 ::: 6
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6. The same view is taken by another Division Bench consisting of S.S. Shinde and V.K. Jadhav, JJ. in Writ Petition No.8289 of 2013 [Shali w/o Asaram Akkarbote v. The State of Maharashtra and others] decided on 29-4-2014. Para 3 of the said decision deals with the relief claim in the petition, which is reproduced below :
"3. This Writ Petition is filed with prayer seeking direction to the respondents to count the services of the petitioner as part-time Librarian, as qualifying service for the purpose of grant of pensionary benefits."
7. After taking into consideration several decisions, including the aforesaid decision in the case of Shalini w/o Asaram Akkarbote v. The State of Maharashtra and others, cited supra, it is held in para 11 as under :
"11. In the facts of the present case also, indisputably the petitioner herein has rendered services as part-time ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 ::: 7 wp5421.17.odt Librarian with respondent no.4- School from 24.08.1982 to 30.07.1997 and from 01.08.1997 as full-time Librarian till the date of her superannuation i.e. 30.04.2004. Therefore, the services rendered by the petitioner as a part-time Librarian, half of the period of said services will have to be taken into consideration in addition to the period for which the petitioner has worked as full-time Librarian, and accordingly, the petitioner will have to be held entitled for the pensionary benefits."
Thereafter, different Benches of this Court have reiterated the same view and the ultimate ratio is that 50% of the part-time service rendered is required to be counted for the purposes of determining the pensionable service along with the full-time service rendered by an employee.
8. In view of above, the petitioner is entitled to the reliefs claimed in the petition, for the reason that 50% of the service rendered by her husband from 1998 to 2009 is to be counted for the purposes of pension along with full-time service rendered from 1-2-2009 to 24-10-2016. Thus, the deceased-employee ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 ::: 8 wp5421.17.odt becomes entitled to pension in accordance with law.
9. In the result, this petition is allowed. The communication dated 23-5-2017 at Annexure-X to the petition, issued by the respondent No.2- Office of the Accountant General, Nagpur, is hereby quashed and set aside. It is declared that the petitioner is entitled to family pension, as her husband had completed the qualifying service of ten years so as to get the pension. We direct the respondents to calculate the pensionary benefits available to the petitioner within a period of one month from today after taking into consideration the half of the part-time service and complete service as Full Time Librarian in terms of this judgment and to pay her the entire arrears within a period of one month thereafter.
10. Rule is made absolute in above terms. No order as to costs.
(Arun D. Upadhye, J.) (R.K. Deshpande, J.) Lanjewar ::: Uploaded on - 12/07/2018 ::: Downloaded on - 14/07/2018 01:07:11 :::