Bombay High Court
Kalyani Sangappa Sadashivappa vs The State Of Maharashtra on 19 January, 2012
Author: S.S. Shinde
Bench: S.S. Shinde
1 wp-1580.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1580 OF 2011
Kalyani Sangappa Sadashivappa,
Age: 67 years,Occ: Nil,
R/o. At Post Degloor,
near T.V. Center, Degloor,
District Nanded. ...PETITIONER
VERSUS
1. The State of Maharashtra,
through Secretary Education
Department, Mantralaya,
Mumbai.
2. Chief Executive Officer,
Zilla Parishad,Nanded.
3. The Education Officer (Primary),
Zilla Parishad, Nanded.
4. The Head Master,
Zilla Parishad High School,
Boddi, Taluka Kinwat,
District Nanded. ...RESPONDENTS
...
Mrs. A.N. Ansari, Advocate for petitioner.
Mr. N.H. Borade, A.G.P.for respondent No.1.
Mr. V.S. Panpatte, Advocate for respondent Nos. 2
to 4.
...
CORAM: S.S. SHINDE, J.
DATE : 19TH JANUARY, 2012
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ORAL JUDGMENT :
. This petition was heard for admission by this Court on 08-03-2011 when this Court issued notice for final disposal. The matter was adjourned time to time on the request of the Counsel appearing for the parties and on 04-01-2012 the matter is heard finally, however, the same is listed today for dictating the judgment.
2. Rule. Rule made returnable forthwith.
With the consent of the parties heard finally.
3. The background facts as disclosed in the petition are as under :
. The petitioner herein was appointed as Assistant Teacher (Primary) on 04-10-1962. The petitioner was in actual service up to 26-12-1975.
It is the case of the petitioner that, he proceeded on three days Casual Leave, however, he ::: Downloaded on - 09/06/2013 18:05:55 ::: 3 wp-1580.11 could not report to duty after expiry of leave period due to illness.
. On 19-10-1981 the petitioner approached respondent No.4 with a request to allow him to join the duties. The application was accompanied by the medical certificate. It is the case of the petitioner that, in spite of request of the petitioner, he was not allowed to join the duties.
The petitioner kept on making applications on 30-11-1981, 03-12-1981, 01-05-1982 and 02-05-1982, however, the petitioner was not allowed to join the duties.
. It is further the case of the petitioner that, on his constant persuasion with respondent Nos. 2 to 4 for allowing him to join the duties, the authority in spite of allowing the petitioner to join the duties, on 13-12-1982 ordered the inquiry in the matter and the Education Officer, Zilla Parishad, Nanded was appointed as Special Enquiry Officer/Presenting Officer to conduct the ::: Downloaded on - 09/06/2013 18:05:55 ::: 4 wp-1580.11 inquiry.
. The petitioner received charge sheet on 30-09-1983 and he filed detailed reply to the same within time i.e. on 30-10-1983.
. The Enquiry Officer has submitted his report on 02-01-1984. The Enquiry Officer has held that, the charge of absenteeism is proved against the petitioner and further recommended that, Zilla Parishad authorities should take steps for getting sanction from the Government of absenteeism period of the petitioner and also made certain recommendations.
. On 31-03-1984 the petitioner was served with show cause alongwith inquiry report. It is the case of the petitioner that, alongwith show cause notice, copy of the report of recommendations made by the Enquiry Officer was not supplied to the petitioner. The petitioner requested for report making recommendations by the ::: Downloaded on - 09/06/2013 18:05:55 ::: 5 wp-1580.11 Enquiry Officer by application dated 24-04-1984, however, the same was refused by the authority by letter dated 17-08-1984. The petitioner submitted his reply to show cause notice on 07-05-1984. It is the case of the petitioner that, though the inquiry was initiated in the year 1982 and the report was submitted in the year 1984, no final order was passed. It is the case of the petitioner that, the Zilla Parishad authorities failed to take timely steps.
. It is further case of the petitioner that, when the Zilla Parishad authorities failed to pass the order on the application of the petitioner requesting the authorities to allow him to join the services, the petitioner filed application on 16-12-2004 with modified prayer that, as the petitioner has completed 58 years of age, the petitioner may be granted pension from 01-03-2000 for the services which he has actually rendered i.e. 1962 to 1975. However, the said prayer of the petitioner was also not considered ::: Downloaded on - 09/06/2013 18:05:55 ::: 6 wp-1580.11 and no order was passed as such. Therefore, the petitioner was constrained to file writ petition before this Court seeking appropriate directions to the authorities to consider the request of the petitioner for pension. This Court directed the authorities to pass final order on inquiry report within specified time. It is the case of the petitioner that, to show compliance of the order passed by this Court, the authorities have hurriedly passed the order on 04-01-2008 by which services of the petitioner are terminated w.e.f.
01-01-1976. It is the case of the petitioner that, when the order dated 04-01-2008 was passed by the authority, the request of the petitioner for grant of pension for the period for which he has actually rendered service was very much on record, however, the authority has not taken into consideration the entire record of the case and passed termination order in order to avoid the contempt.
. It is the case of the petitioner that, he ::: Downloaded on - 09/06/2013 18:05:55 ::: 7 wp-1580.11 challenged the termination order dated 04-01-2008 by filing appeal before the Additional Commissioner, Aurangabad on 18-02-2008. Said appeal was heard finally on 18-08-2010 and same came to be dismissed by the judgment and order dated 25-01-2011. It is the case of the petitioner that, neither disciplinary authority nor the appellate authority has considered the case of the petitioner in its proper perspective and arrived at erroneous conclusion, which is challenged in this writ petition.
4. The learned Counsel appearing for the petitioner vehemently argued that, the inquiry was initiated in the year 1982 and the report was submitted by the Enquiry Officer in the year 1984, however, no final order came to be passed by the authority. It is further submitted that, Zilla Parishad authority has not taken timely steps for quashing the order allowing the petitioner to join the duties. It is further submitted that, the impugned termination order is passed by the ::: Downloaded on - 09/06/2013 18:05:55 ::: 8 wp-1580.11 authority to teach the lesson to the petitioner as he approached to this Court. It is further submitted that, inquiry papers were not available on record when the appellate authority passed the impugned order. The recommendations made by the Enquiry Officer were never supplied to the petitioner nor the same are available on record.
On the other hand, conclusions drawn by the Enquiry Officer is contained in inquiry report which shows that, Zilla Parishad authorities should get permission/approval from the Government if absenteeism period is more than five years.
However, the Zilla Parishad authorities have not followed the said procedure before passing the termination order. The petitioner is required to face present contingency because of the delay on the part of the Zilla Parishad authorities. It is submitted that, the petitioner is deemed to be in service till the date of superannuation and it was for the Zilla Parishad authorities to decide the period from 01-01-1976 to 29-02-2000 and to grant superannuation pension to the petitioner.
::: Downloaded on - 09/06/2013 18:05:55 :::9 wp-1580.11 . It is further submitted that, the prayer of the petitioner is very limited that, he should be paid pension for the services which he has actually rendered from 04-10-1962 to 26-12-1975, since he has completed 13 years 2 months and 13 days service. It is further submitted that, the fact that the petitioner has not reported to duties after sanction of leave and remained absent, cannot be a ground for imposing major punishment. It is further submitted that, had the authorities have accepted the recommendations of the Enquiry Officer and obtained necessary permission/sanction from the Government for the period of absenteeism, the matter should have been settled long back. It is submitted that, the Zilla Parishad authorities have initiated inquiry in the matter, however, refused to act as per recommendations of the Enquiry Officer. It is submitted that, at the most the petitioner should be held liable for the period from 01-01-1976 till the time of filing proper medical certificate i.e. ::: Downloaded on - 09/06/2013 18:05:55 ::: 10 wp-1580.11 25-02-1982, which has been considered by the Enquiry Officer in his report. It is further submitted that, the petitioner is made to suffer from the year 1984 i.e. time of issuing show cause till the impugned order is passed on 04-01-2008, without any fault on his part.
. It is submitted that, though the disciplinary authority has accepted inquiry report, however, refused to accept the recommendations and for that, no reason is given.
It is further submitted that, the appellate authority by rejecting the appeal, has relied upon Rule 47 of the Maharashtra Civil Services (Pension) Rules, 1982 ( for short, "Rules of 1982"), however, it is required to be noted that, the appellate authority has not properly interpreted the said rule. It is submitted that, Rule 47 of the Rules of 1982, is about forfeiture of earlier services on account of uninterruption in service, however, five exceptions are provided in the same rule. The case of the petitioner will ::: Downloaded on - 09/06/2013 18:05:55 ::: 11 wp-1580.11 be governed by exceptions and particularly exception (b). Sub-rule (2) also authorised the appointing authority to compute the period of absence without leave as extraordinary leave. If the said rule is applied in its entirety, the petitioner will be entitled for pension.
. The learned Counsel for the petitioner relied upon the grounds taken in the petition, and submitted that, the petitioner cannot be denied benefit of services which he has rendered before going on leave i.e. from 04-10-1962 to 26-12-1975 or any other contingency till the year 1984 when the inquiry was initiated and the petitioner has submitted reply and no order was passed by the authority. It is further submitted that, termination/removal order cannot be passed with retrospective effect i.e. from 01-01-1976 when the record shows that, the disciplinary authority has initiated the inquiry against the petitioner being employee of the Zilla Parishad in the year 1984.
At the most, removal order can be passed after ::: Downloaded on - 09/06/2013 18:05:55 ::: 12 wp-1580.11 completion of the inquiry proceedings. It is further submitted that, the order of the appellate authority suffers from non application of mind, as same is claimed to be passed under Rule 46 of the Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964 (for short, "Rules of 1964"). It is further submitted that, Rules of 1964 consists only 26 rules and there is no rule as 46 in the Rules of 1964.
5. The learned Counsel for the petitioner submitted that, this Court in the case of Harischandra vs. State of Maharashtra and others reported in 1998 M.C.R. 520 held that, if the services are rendered for more than ten years as Assistant Teacher, in that case, the said person is entitled for beneficiary benefits. The learned Counsel further pressed into service another reported judgment of the Division Bench of this Court in the case of Parsuram vs. State of Maharashtra and another reported in 2001(4) All M.R. 471 and submitted that, while interpreting ::: Downloaded on - 09/06/2013 18:05:55 ::: 13 wp-1580.11 Rule 30 of the Rules of 1982, the Division Bench of this Court has taken a view that, the petitioner therein is entitled to the pensionary benefits, since he was working as Labour Supervisor for the period more than ten years of continuous service.
. The learned Counsel for the petitioner also invited my attention to another reported judgment of this Court in the case of Shankarlal vs. State of Maharashtra and another reported in 2003(2) B.C.R. 294 and submitted that, in the said matter, the petitioner therein was handicapped employee who could not complete ten years qualifying service, however, this Court directed the Government to consider his case once again for pension. The learned Counsel also invited my attention to the reported judgment of the Supreme Court in the case of Basic Shiksha Parishad vs. Suganabai reported in 2004 A.I.R. SCW 119 and submitted that, in the facts of the case, Supreme Court held that, the petitioner therein who was ::: Downloaded on - 09/06/2013 18:05:55 ::: 14 wp-1580.11 appointed as Assistant Teacher was prevented from joining as teacher after she went on leave due to prolonged illness. However, no order of termination or dismissal was produced and therefore, she was treated to be in continuous service and entitled to compensation equivalent to salary for three preceding years before the date of superannuation on the basis of revised pay.
.
The learned Counsel for the petitioner further placed reliance upon the reported judgment of this Court in the case of Shivappa Bhujanappa Bembale vs. State of Maharashtra and another reported in 2005(3) M.L.J. 709. Relying upon the said judgment, the Counsel for the petitioner would submit that, in the said case the petitioner served as a part time Peon in Zilla Parishad School for 20 years and was thereafter taken on regular cadre in Class-IV and served for three years in that cadre. However, this Court has taken a view that in terms of Note-1 of Rule-56 the petitioner is entitled for the pension for ::: Downloaded on - 09/06/2013 18:05:55 ::: 15 wp-1580.11 rendering near about 13 years service. The learned Counsel also relied upon unreported judgment of this Court in the case of Shaikh Musa vs. State of Maharashtra in Writ Petition NO. 620 of 1997 and submitted that, the petitioner therein was in service from 23-04-1963 to 07-08-1972 and he is held to be entitled for invalid pension benefits as per Rules of 1982.
.
The learned Counsel for the petitioner also placed reliance upon the unreported judgment of this Court in Writ Petition NO. 3454 of 1997 decided on 05-05-2008 and submitted that, in the said matter also the petitioner therein had rendered service from 1967 till 01-12-1978. This Court held that, the petitioner therein is entitled for pensionary benefits. The Counsel also placed reliance upon unreported judgment of this Court in the case of Walliuddin s/o Pashasaheb vs. The State of Maharashtra and another in Writ Petition NO. 1542 of 2008 decided ::: Downloaded on - 09/06/2013 18:05:55 ::: 16 wp-1580.11 on 25-08-2010. Relying upon the said judgment, the Counsel for the petitioner submits that, in that case also the services rendered by the petitioner were from 21-11-1986 till 30-11-2000.
However, this Court held that, aggregating period of service from 21-11-1986 till 30-11-2000 and from 01-12-2000 till 28-02-2007, the petitioner has completed more than 10 years qualifying services and therefore, the petitioner therein is entitled for pension and accordingly, this Court directed the authorities to compute the pensionary benefits payable to the petitioner therein.
Therefore, the learned Counsel for the petitioner relying upon the grounds taken in the writ petition and relying upon the aforementioned authoritative pronouncements of this Court, would submit that, this writ petition deserves to be allowed.
6. Though many grounds are taken in the writ petition, the petitioner has restricted the prayer only for grant of pension from 1962 to 1975.
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7. Respondent Nos. 2 to 4 have filed affidavit in reply. It is stated in the said affidavit in reply that, the petitioner remained absent and away from his duties unauthorisedly and without any leave till the year 1981. It is the contention of the respondents that, from 1962 to 1975 to 1981 the petitioner never intimated to the answering respondents regarding his so called illness, nor any application for medical leave was filed nor the petitioner tried to join his duties.
It is further stated that, the charge of misconduct of remaining absent from duties unauthorisedly and without permission from 29-12-1975 to 06-10-1981 has been proved against the petitioner and the Enquiry Officer submitted the inquiry report on 02-01-1984. Pursuant to the said report, show cause notice was issued to the petitioner by exercising the powers under Rules 4 and 6 of the Rules of 1964 thereby proposing punishment "removal from service" against the petitioner and the petitioner also submitted his ::: Downloaded on - 09/06/2013 18:05:55 ::: 18 wp-1580.11 reply on 07-05-1984 to the said final show cause notice. However, it seems that disciplinary action against the petitioner could not be completed due to administrative difficulties. It is further stated that, the petitioner was given opportunity to file reply for show cause notice.
The respondents by letter dated 06-09-2007 sought guidance of the Divisional Commissioner, Aurangabad regarding proposed punishment to be imposed against the petitioner and the claim of the petitioner for giving retiral benefits to him.
By letter dated 21-11-2007 the Divisional Commissioner gave his guidance and instructions that, since the petitioner remained unauthorisedly absent from duties from 29-12-1975 to 06-10-1981 and the said charge of misconduct is also proved in the Departmental Enquiry and said break in service is due to unauthorised absence and therefore, as per Rule 47(1) of the Rules of 1982, benefit of past service to the petitioner cannot be extended.
::: Downloaded on - 09/06/2013 18:05:55 :::19 wp-1580.11 . In para-3 of the affidavit in reply, it is further stated that, the judgment and order passed by the appellate authority is after hearing both the sides and after appreciation of documents placed on record and the appellate authority has rightly dismissed the appeal filed by the petitioner. It is further stated in para-4 that the authority has passed the order of termination in accordance with the Rules and by recording reasons and placing reliance upon the Rule 47(1) of the Rules of 1982 and therefore, this Court may not interfere in the said order which is confirmed by the appellate authority. It is further stated that, the petitioner is not entitled for benefit of exception (b) under Rule 47 of the Rules of 1982.
8. The learned Counsel appearing for respondent Nos. 2 to 4 has placed on record skeleton of arguments. Relying upon the same, the Counsel for respondent Nos. 2 to 4 submits that, the petitioner is not entitled for the benefit of ::: Downloaded on - 09/06/2013 18:05:55 ::: 20 wp-1580.11 Rule 47 (b) of the Rules of 1982. Rule 47 operates in cases where there is no forfeiture of services of the employees and they are not either removed or dismissed employee. It is further submitted that, there is no proper explanation tendered by the petitioner either in the Departmental Enquiry before the appellate authority or before this Court justifying unauthorised absence and hence, the Zilla Parishad was entitled in law by invoking provisions of Rule 45 of the Rules of 1982 for forfeiture of past service and also Rule 48 of Rules of 1982 by which the period by which the period beyond five years cannot be condoned and cannot be counted for qualifying service. It is further submitted that, merely because the petitioner has served for 13 years, that would not entitle the petitioner for pension, the employer has right to forfeit the past service on account of misconduct having been proved.
. The learned Counsel for respondent Nos. 2to 4 further submits that, the petitioner was ::: Downloaded on - 09/06/2013 18:05:55 ::: 21 wp-1580.11 afforded adequate opportunity of hearing during the enquiry proceedings and thereafter the petitioner has slept over his rights either challenging the departmental proceedings or taking up the cause for not allowing him to join the duties as alleged by him which is not real and therefore, the petitioner is not entitled in law to raise the issue of grant of pension which if at all was in existence in 1984 cannot be taken up in 2011 or in 2007 when for the first time petitioner approached this Court soliciting directions for completion of the enquiry. It is further submitted that, the petitioner on his own accord absented and deserted from the employment and fully aware of having absented without leave was not entitled in law to claim reinstatement and thereafter was gainfully employed which has also been proved in the departmental proceeding.
. The learned Counsel further submits that, the petitioner was appointed on 04-10-1962, he was in service from 04-10-1962 to 26-12-1975, since ::: Downloaded on - 09/06/2013 18:05:55 ::: 22 wp-1580.11 26-12-1975 he transferred from Primary School Jawla to Zilla Parishad High School, Bodhadi and joined there, thereafter he proceeded on 3 days leave till 31-12-1975 and then remained absent from duty unauthorisedly. Thereafter, immediately the said post has been filled in by appointing another teacher Smt. S.N. Deshpande and therefore, provisions of Rule 47 (b) will not apply in the case of the petitioner. It is further submitted that, the petitioner remained absent without any leave and on 19-10-1981 he made request to allow him to join on duties contending that, he was suffering from illness and submitted medical certificate of private doctor from Solapur in which no specific period of his illness nor any specific disease was mentioned and since 29-12-1975 till 19-10-1981 he never intimated regarding his illness nor made any application or not tried to join the duties, therefore, by an order dated 14-12-1982 directed disciplinary enquiry against the petitioner for serious misconduct of remaining absent from duties ::: Downloaded on - 09/06/2013 18:05:55 ::: 23 wp-1580.11 unauthorisedly. It is further submitted that, on 02-01-1984 Enquiry Officer submitted his report and charge of misconduct against the petitioner has been proved and thereafter on 31-03-1984 final show cause notice has been issued and after following due procedure the petitioner has been dismissed from service and during the said absence period the petitioner was working as Agent in L.I.C and therefore, punishment awarded is not shockingly disproportionate and misconduct has proved and Zilla Parishad sought guidelines on 06-09-2007 and accordingly, the Divisional Commissioner gave its permission by letter dated 21-11-2007.
9. The learned Counsel for respondent Nos. 2to 4 further submitted that, the judgment on which the petitioner seeks reliance are the judgment in which issue had raised was as to whether a particular employee qualifies the service for grant of pension and the issue as to whether the misconduct in question having been proved or not ::: Downloaded on - 09/06/2013 18:05:55 ::: 24 wp-1580.11 was a matter of consideration and the judgment cited by the petitioner in the case of Mohd. Yusuf Mohd. Abdul Aziz vs. State of Maharashtra, 2007(Supp.) BCR 698 in para-9 it is specifically held by Division Bench of this Court that if the termination is simplicitor without any stigma then in such cases only employee could seek the benefit of pension. It is further submitted that, there was no specific order of forfeiture of service invoking provisions of Rule 111 and a case was governed by Rule 50 of Maharashtra Non Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non Teaching Employees) Rules which is in respect of desertion of service which entails automatic termination of service and in the present case, the termination is passed on the establishment of misconduct of unauthorised absence and hence the ratio and principle stated therein is not applicable and not attracted to the case of the petitioner.
::: Downloaded on - 09/06/2013 18:05:55 :::25 wp-1580.11 . The learned Counsel for respondent Nos. 2 to 4 further submitted that, the Hon'ble Apex Court in the case of Regional Manager, Bank of Baroda vs. Anita Nandraj reported in 2009 Volume 9, SCC 462 in para 13 has observed that, remaining absent without leave for long period was clearly regrettable and unfortunate and no establishment can function if it allows its employees to behave in such a manner. It is further submitted that, considering the principles stated therein and having regard to the conduct of the writ petitioner having remained absent without leave for no justifiable reason is not entitled in law to claim contention of his unauthorised absence and claiming pension. It is further submitted that, the petitioner is not entitled to claim benefit under Rule 47(b) of M.C.S. (Pension) Rules for the reason that the post held by the petitioner was immediately filled in. He further submits that, it is not the case of the petitioner that either in the departmental proceedings before the appellate authority and in this Court also ::: Downloaded on - 09/06/2013 18:05:55 ::: 26 wp-1580.11 that the post held by him had remained unfilled and, therefore, on that count also the petitioner is not entitled for benefit under Rules 47(b) M.C.S. (Pension) Rules. It is further submitted that, the petition is devoid of any merits, same deserves to be dismissed.
10. In the present matter, notice was issued for final disposal and pursuant to the said notice, this matter is finally heard at admission stage, the petitioner has restricted his claim for only pension for the services which he has actually rendered from 04-10-1962 to 26-12-1975.
It is admitted position that, the petitioner has actually rendered service as Assistant Teacher from 04-10-1962 to 26-12-1975 i.e. for 13 years 2 months and 13 days. At this juncture, it would be appropriate to refer to the provisions of Rule 30 of the Maharashtra Civil Services (Pension) Rules, 1982. Rule 30 reads thus :
"30. Commencement of qualifying ::: Downloaded on - 09/06/2013 18:05:55 ::: 27 wp-1580.11 service.- Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed wither substantively or in an officiating or temporary capacity :
Provided that at the time of retirement he shall hold substantively a permanent post in Government service or holds a suspended lien or certificate of permanency :
Provided further that, in cases where a temporary Government servant retires on superannuation or on being declared permanently incapacitated for further Government service by the appropriate medical authority after having rendered temporary service of not less than ten years, or voluntarily after completion of twenty years of qualifying service, shall be eligible for grant of superannuation, Invalid or, as the case may be, Retiring Pension ; Retirement Gratuity; and Family ::: Downloaded on - 09/06/2013 18:05:55 ::: 28 wp-1580.11 Pension at the same scales as admissible to a permanent Government servant.
Exception.- The rules regarding grant of terminal benefits to temporarily Government servants except those mentioned in the second proviso who retire without being confirmed in any post in Government service are embodies in Appendix II. ig Note 1.- If a Government servant is holding a temporary post when the permanent post on which he holds a lien is abolished in the circumstances described in rule 81, or if, at or very shortly after the abolition of the permanent post, he is appointed to a newly created temporary post, his service in the temporary post is pensionable service.
Note 2.- In the case of employees of former Indian States who have been absorbed in Government service previous pensionable service rendered by them under the same State should ::: Downloaded on - 09/06/2013 18:05:55 ::: 29 wp-1580.11 it immediately followed by Government service be taken into account for purposes of pension on his final retirement from Government service, Pensionable service rendered under different States should be taken into account for purposes of pension provided that the employees were transferred or sent on deputation from one State to another under a written agreement between the Governments of the States concerned.
The term "immediately" appearing in Note 2 above includes a break in service if it does not exceed six months, between the date on which the service was terminated and the date of his re-employment in service.
The question whether the previous service in Indian States is pensionable or not should be determined in accordance with these rules as if those rules were applicable to that service.
11. Upon careful perusal of the afore ::: Downloaded on - 09/06/2013 18:05:55 ::: 30 wp-1580.11 mentioned Rule, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed wither substantively or in an officiating or temporary capacity : Provided that at the time of retirement he shall hold substantively a permanent post in Government service or holds a suspended lien or certificate of permanency : Provided further that, in cases where a temporary Government servant retires on superannuation or on being declared permanently incapacitated for further Government service by the appropriate medical authority after having rendered temporary service of not less than ten years, or voluntarily after completion of twenty years of qualifying service, shall be eligible for grant of superannuation, Invalid or, as the case may be, Retiring Pension ; Retirement Gratuity; and Family Pension at the same scales as admissible to a permanent Government servant.
12. The Counsel appearing for the petitioner ::: Downloaded on - 09/06/2013 18:05:55 ::: 31 wp-1580.11 submits that, in the facts of this case, the case of the petitioner would fall under exception (b) of Rule 47 of the Maharashtra Civil Services (Pension) Rules, 1982. Rule 47(b) of the Maharashtra Civil Services (Pension) Rules, 1982 reads thus :
"47. Effect of interruption in service.-(1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases :-
(a) authorised leave of absence;
(b) unauthorised absence in continuation of authorised leave of absence so long as the post held by the absence is not filled substantively;
(c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the ::: Downloaded on - 09/06/2013 18:05:55 :::
32 wp-1580.11 Government servant dies or is permitted to retire or is retired on attaining the age of superannuation while under suspension;
(d) transfer to non qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest;
(e) joining time while on transfer from one post to another.
(2) Notwithstanding anything contained in sub-rule (1), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave."
. From reading the facts of the case in hand and exception (b) of Rule 47, it would make it clear that, in case of the petitioner he was on unauthorised absence in continuation of ::: Downloaded on - 09/06/2013 18:05:55 ::: 33 wp-1580.11 authorised leave of absence and therefore, his case would be covered under said provision. The provisions of Rule 47 provides that, an interruption in the service of a Government servant entails forfeiture of his past service.
There are five exceptions given to this Rule. The petitioner's case is that, in the year 1975 he was on authorised leave for 3 days and thereafter, he was seriously ill and could not join his duties.
Rule 45 of the Rules of 1982 provides for forfeiture of service on dismissal or removal.
Rule 45 of of the Maharashtra Civil Services (Pension) Rules, 1982 reads thus :
"45. Forfeiture of service on dismissal or removal.- Dismissal or removal of a Government servant from a service or post entails forfeiture of the post service"
13. From perusal of the said Rules, the forfeiture of service can be only in case of dismissal or removal of a Government servant from ::: Downloaded on - 09/06/2013 18:05:55 ::: 34 wp-1580.11 his service or post. In the present case, the case of respondent Nos. 2 to 4 is that, services of the petitioner are terminated by order dated 04-01-2008 w.e.f. 01-01-1976. The learned Counsel appearing for respondent Nos. 2 to 4 strenuously contended that, the services of the petitioner are terminated with stigma. However, from careful perusal of the material placed on record, it is abundantly clear that, by order dated 04-01-2008, the services of the petitioner are simplicitor terminated w.e.f. 01-01-1976. Therefore, the case of the petitioner would not fall under the provisions of Rule 45 of the said Rules. There is no any removal or dismissal from the service and therefore, there is no question of forfeiture of past service which he has rendered for the period 04-10-1962 to 26-12-1975.
. This Court had occasion to consider Rule 30 of the said Rules in the case of Shivappa Bhujanappa Bembale (supra). In the said case, the ::: Downloaded on - 09/06/2013 18:05:55 ::: 35 wp-1580.11 petitioner therein served as part time Peon in Zilla Parishad school for 20 years and was thereafter taken on regular cadre in Class IV and served for 3 years in that cadre. This Court has taken a view that, in terms of Note-1 of Rule 57 the petitioner therein is entitled to pension for rendering near about 13 years service.
14. In the present case, it is admitted position that, the petitioner has rendered service as Assistant Teacher in the employment of respondent Nos. 2 to 4 from 04-10-1962 to 26-12-1975. Respondent Nos. 2 to 4 have also admitted that, the petitioner was appointed on 04-10-1962 and he was in service from the said date till 2-12-1975.
. This Court in Writ Petition No.1542 of 2008 has considered somewhat similar controversy and had taken a view that the petitioner therein is entitled for pensionary benefits. The Division Bench of this Court in the case of Parsuram ::: Downloaded on - 09/06/2013 18:05:55 ::: 36 wp-1580.11 Vithoba Bhandare vs. State of Maharashtra and another reported in 2001(4) All MR 471 held in para-7 as under :
"7. Relying on the first note to Rule 57 above, that the petitioner was denied pensionary benefit by the State and the denial was approved by the Maharashtra Administrative Tribunal, in our opinion, both are wrong. A reading of Rule 30 clearly shows that the petitioner is entitled to the pensionary benefits. A reading of Rule 57 proves that the petitioner's case is not covered by the exceptions mentioned in that Rule
57. It is nowhere the case of Government of Maharashtra that the salary of the petitioner paid to him as daily wages from 1964 to 1980 was drawn from the contingency fund of the State and it is only when the salary or wages paid to the employees are drawn from contingency fund that the exception is made in relation to the case of grant of ::: Downloaded on - 09/06/2013 18:05:55 :::
37 wp-1580.11 terminal benefits. The factual and legal aspect was not taken into consideration either by the State or Tribunal resulting in miscarriage of justice and denial of valuable right to the petitioner. The petitioner having completed more than 10 years of contino9us service as labour supervisor as his salary at any point of time was not drawn from the contingency fund, was already entitled to the pension. In the result the petition succeeds and is allowed. Rule is made absolute."
15. Therefore, if the facts of the case in hand are compared with the facts of the cases cited supra, it will have to be held that, the petitioner is entitled for pensionary benefits since it is undisputed position that the petitioner has served continuously from 04-10-1962 to 26-12-1975.
16. In that view of the matter, I find that, the petitioner has put in around 13 years 2 months ::: Downloaded on - 09/06/2013 18:05:55 ::: 38 wp-1580.11 13 days service from 04-10-1962. Therefore, in view of the judgments of the Division Bench cited supra, and the respondents have not pointed out that, the salary of the petitioner was drawn from contingency fund, I am inclined to grant prayer of the petitioner in so far as pensionary benefits are concerned. In the result, the impugned judgment and order passed by the Additional Divisional Commissioner, Aurangabad in Appeal-
DB/Appeal/Cell-/09/2008 dated 25-01-2011 to the extent of refusing the relief of pensionary benefit, to the petitioner, is quashed and set aside. Writ Petition is partly allowed. The respondents are directed to prepare the papers for grant of pensionary benefits to the petitioner treating him in service from 04-10-1962 to 26-12-1975 and forward the same to the Accountant General for necessary action. Taking into consideration the fact that, the petitioner is old aged person, the respondents are directed to submit the papers within period of two months from today to the appropriate authority. Upon ::: Downloaded on - 09/06/2013 18:05:55 ::: 39 wp-1580.11 submitting such papers, the concerned authority is directed to make pensionary benefits available to the petitioner within period of three months thereafter.
17. Rule made absolute on the above terms.
Writ Petition is allowed to the above extent, same stands disposed of.
sd/-
[S.S. SHINDE, J.] sut/JAN12 ::: Downloaded on - 09/06/2013 18:05:55 :::