Bombay High Court
Smt. Vina Vinayak Uasani vs State Of Maharashtra Through The ... on 4 August, 2021
Author: R.I. Chagla
Bench: R.D. Dhanuka, R.I. Chagla
This Order is modified/corrected by Speaking to Minutes Order dated 11/08/2021
9-WP-3386-21.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3386 OF 2021
Smt. Vina Vinayak Upasani ...Petitioner
Versus
State of Maharashtra & Ors. ...Respondents
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Mrs. Pranita P. Hingmire for the Petitioner.
Mr. N.K. Rajpurohit, AGP for the Respondent Nos. 1 to 3.
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CORAM : R.D. DHANUKA &
R.I. CHAGLA, JJ.
DATE : 4 August 2021
ORDER :
1. Rule.
2. Learned AGP waives service for Respondent Nos. 1 to 3. Respondent Nos. 4 and 5 inspite of service, have not appeared before the Court.
3. Heard fnality by consent of parties.
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4. By this Petition fled under Article 226 of the Constitution of India, the Petitioner is seeking quashing and setting aside the impugned order dated 19th October 2020 issued by Respondent No. 2 refusing to grant pension and other pensionary benefts to the Petitioner. Further directions are sought against the Respondents to consider half of the service rendered by the Petitioner as part time Librarian as qualifying service for computing pension and other pensionery benefts. The Petitioner has also sought refund of an amount of Rs. 3,57,846/- along with interest, which amount has been deducted towards Defned Contribution Pension Scheme.
5. The Petitioner was appointed as part time Librarian in the Bhikusa High School, Sinnar run and managed by Respondent No. 4-Gokhale Education Society.
6. The services of the Petitioner as part time Librarian was approved by Respondent No. 3 on 20th November 1995.
7. The Petitioner was thereafter promoted from 1st August 2008 by Respondent No. 4 Management in Respondent 2/8 ::: Uploaded on - 09/08/2021 ::: Downloaded on - 25/09/2021 00:23:40 ::: This Order is modified/corrected by Speaking to Minutes Order dated 11/08/2021 9-WP-3386-21.doc No. 5-School as full time Librarian. Respondent No. 3 also granted approval to the Petitioner as full time Librarian.
8. Respondent No. 5-School has made the pension case of the Petitioner and forwarded the proposal to Respondent No. 2 through Respondent No. 3.
9. In view of Petitioner having been appointed as full time Librarian on 1st August 2008, Respondent No. 3 made the Petitioner applicable for Defned Contribution Pension Scheme ("DCPS" for short) and opened account of the Petitioner from April 2016. It is the case of the Petitioner that the amount to be collected for DCPS is deducted and recovered from April 2008.
10. The Petitioner has stated that total amount deducted towards DCPS is Rs. 3,51,846/- and that this the only principal amount deducted towards DCPS. It is further case of the Petitioner that Respondent No. 3 had not made pension scheme applicable to the Petitioner as her date of initial appointment is 11th October 1995 and that Respondent No. 3 had illegally opened DCPS account of the Petitioner and made 3/8 ::: Uploaded on - 09/08/2021 ::: Downloaded on - 25/09/2021 00:23:40 ::: This Order is modified/corrected by Speaking to Minutes Order dated 11/08/2021 9-WP-3386-21.doc her applicable to DCPS. The Petitioner should have been eligible for old pension scheme as part time Librarian from the date of initial appointment on 11th October 1995 i.e. prior to the Government Resolution dated 1st November 2005.
11. On 19th October 2020 by the impugned order, Respondent No. 2 rejected the pension case of the Petitioner. Being aggrieved by the impugned order, the present Petition has been fled.
12. Learned Counsel for the Petitioner has submitted that the issue arising in this Petition is no longer res integra. She has relied upon several judgments of this Court from pages 26 to 76 of the Petition. She has submitted that this Court has time and again included part time services of the teaching as well as non teaching staff and has considered the half of the services rendered by clubbing with full time services of the teaching and non teaching staff for computing pension and other pensionary benefts. She has submitted that in view of the decisions of this Court, the Petitioner is entitled to the pensionery benefts for part time services from 11th October 1995 to 31st July 2008 as well as for full time services which is 4/8 ::: Uploaded on - 09/08/2021 ::: Downloaded on - 25/09/2021 00:23:40 ::: This Order is modified/corrected by Speaking to Minutes Order dated 11/08/2021 9-WP-3386-21.doc from 1st August 2008 to 30th September 2020 being well over the period of 10 years applicable for superannuation pension.
13. Learned AGP appearing on behalf of Respondent Nos. 1 to 3 has supported the impugned order dated 19th October 2020 and has submitted that the issue arising in this Petition has not been concluded by the decisions of this Court relied upon by the Petitioner in the said Petition.
14. We have considered the submissions. It appears from the material on record as well as the decisions relied upon by the learned Counsel for the Petitioners that the issue in fact has been settled and is no longer res integra.
15. We have also decided this issue by our order dated 4th August 2021 in case of Smt. Kalpana Jagatrao Dahiwale Vs. The State of Maharashtra & Ors.1.
16. Learned AGP for the State has not been able to produce any contra material and/or distinguish the said decisions relied upon by the learned Counsel for the Petitioner 1 Writ Petition No. 1673 of 2021 Order dated 04.08.2021 5/8 ::: Uploaded on - 09/08/2021 ::: Downloaded on - 25/09/2021 00:23:40 ::: This Order is modified/corrected by Speaking to Minutes Order dated 11/08/2021 9-WP-3386-21.doc in support of his submissions that there is no infrmity to the impugned order dated 19th October 2020.
17. We are of the view that in the light of the several decisions passed by this Court, which are in cases of both teaching and non teaching staff, the Petitioners are entitled to pension and pensionery benefts for service in Respondent No. 5-School both as part time Librarian from the order of initial appointment on 11st October 1995 which services was approved by the Respondent No. 3 and thereafter, as full time Librarian from 1st August 2008 which approval was also granted by Respondent No. 3 on 13th April 2009.
18. We accordingly, pass the following order:-
(i) The impugned order dated 19th October 2020 issued by Respondent No. 2 refusing to grant pension and pensionery benefts to the Petitioner for the part time service rendered by he Petitioner is quashed and set aside.6/8 ::: Uploaded on - 09/08/2021 ::: Downloaded on - 25/09/2021 00:23:40 :::
This Order is modified/corrected by Speaking to Minutes Order dated 11/08/2021 9-WP-3386-21.doc
(ii) The Respondent Nos. 4 and 5 are directed to submit the pension papers of the Petitioner to the Respondent No. 3 within a period of four weeks from the date of communication of this order without fail.
(iii) Upon receipt of pension papers from the Respondent Nos. 4 and 5, the Respondent No. 3 shall start making payments of the pension and pensionary benefts to the Petitioner by considering half of the service rendered by the Petitioner as part time Librarian (from 11.10.1995 to 31.07.2008) or qualifying service and shall clear the arrears of pension to the Petitioner within a period of three months thereafter without fail.
(iv) Respondents shall repay/refund to the Petitioners an amount of Rs. 3,51,846/- without interest which has been deducted towards Defned Contribution Pension Scheme within a period of three months from the date of this order.
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(v) Rule is made absolute accordingly.
(vi) Writ Petition is disposed of in the aforesaid terms.
(vii)Parties to act on an authenticated copy of this order.
[R.I. CHAGLA J.] [R.D. DHANUKA, J.] 8/8 ::: Uploaded on - 09/08/2021 ::: Downloaded on - 25/09/2021 00:23:40 :::