Shrikant Sakharam Jadhav v. The State of Maharashtra Thr. Principal Secretary and Ors

Judgment: "6. … … … The definition of the expression "qualifying service" in the Pension Rules refers to service rendered in a permanent post. In the present case, there is no dispute about the position that the Petitioner worked in a post which was sanctioned. Her services were duly approved by the Education Officer. The test which must be applied is as to whether an employee was a full time confirmed and approved member of the teaching or non-teaching staff of a private primary aided school on the date of her retirement. If that test is satisfied, the Pension Scheme is made applicable by virtue of the provisions of clause 5(ii). There is no warrant in the Pension Scheme or the Pension Rules to exclude while computing qualifying service, the service which is rendered by an employee before a school came to be in receipt of grant-in-aid. So long as the school was in receipt of grant-in-aid on the date on which an employee retired from service upon attaining the age of superannuation, the application of the Pension Scheme would be attracted. The Pensioner was an employee of a private primary aided school on the date of retirement and was hence eligible." It could be thus seen that the ratio the Division Bench has applied is whether on the date on which the employee retires was working in a School which was receiving grant-in-aid. Even if a part of the period of service is rendered in a School which was not receiving grant-in-aid, it cannot be ground to deny the Petitioner's pensionary benefits.

¶5Similarly, is the ratio of Homraj Hansaram Bisen and Ors v State of Maharashtra & Ors. It would be relevant to refer to paragraph 16 of the said judgment: "16. We find that had the Government not prescribed such a cut-off date, it would have led to anomalous situation. As already discussed hereinabove, the basic responsibility in an unaided recognized school to pay salary to its employees is on the management of the school. Taking the hypothetical situation as suggested by the counsel for petitioners, if an employee is appointed in 1998 and school comes to hundred percent grant in 2008 the question would be who would pay employer's contribution for a period of ten years. We, therefore, find that Scheme as formulated by the State Government is also totally workable inasmuch as employee who is receiving hundred percent salary from the public exchequer prior to 1st November 2005 is being governed by old Scheme. Had such a cut-off date not being provided for, there would have been discrimination between employees of the State Government who are appointed on or after 1st November 2005 and who are getting hundred percent salary from the State Government and the employees like the petitioner who are not getting full salary from the State Government. The Scheme has also taken care to see to it that a person who, though appointed in a school prior to 2005 and the school receives hundred percent grant-in-aid after 2005, would be entitled to enter into the new scheme as on the date on which the school comes to hundred percent grant-in-aid. In that view of the matter, we are unable to accept the contention of learned counsel for the petitioners that the Scheme is violative of Article 14 of the Constitution of India or unreasonable and arbitrary". (Emphasis added)

¶13The Division Bench actually allowed the Petition with costs. We do not think it is necessary to go quite that far but we do note that the default provision in that order was interest at 18% pa plus a potential charge of contempt.

¶14The finding is clear that it is the Old Pension Scheme and the date of the Petitioner's initial employment in the unaided section which would have to be taken into account for computing the number of years of service for the purposes of pension.

¶15Rule is made absolute in these terms, in terms of prayer clauses (a), (b) and (c) set out above. The amounts are to be paid to the Petitioner no later than by 21st April 2023.

¶16We said earlier that we are not making the order that the Division Bench of this Court made in Sister Ansela D'mello's case. However, for the benefit of the State Authorities and so that there is no possibility of any miscommunication between Mrs Gavhane and the officers in question, we reproduce paragraph 6(i) and 6(ii) of the order in the Sister Ansela D'mello case (that is potentially contempt plus interest at 18% pa): "6(i) Writ Petition is allowed with costs. The amount of costs is quantified at Rs.1,00,000/-. The State to give donation of Rs.1,00,000/- within a period of 15 days from the date of uploading of this order to Bethany Hospital, Thane by demand draft and place the receipt thereof on the proceedings of the present matter. The hospital details are as under: Bethany Hospital Charitable Trust, Pokhran Road No.2 Thane (West), Thane 400 610. It is made clear in the event the amount of costs is not deposited within the aforesaid period, the Chief Secretary of the State shall personally be held liable for committing contempt of this Court. It is further clarified that the State is at liberty to conduct inquiry as to who was the officer responsible for giving rise to such unnecessary litigation which deprived the petitioner of her legitimate pensionary benefits for a period of almost five years. The State would be at liberty to recover the amount of costs from the said officer. 6(ii) The respondents are directed to take into consideration the service rendered by the petitioner in aided School while considering the grant of pensionary benefits and work out pensionary benefits payable to the petitioner on the basis of her last drawn salary. The pensionary benefits would be paid on the basis of aforesaid order from the month of June 2019, and all arrears which the petitioner would be entitled from 1 January 2015 till 31 May 2019 shall be cleared within a period of three weeks from the date of uploading of this order, failing which, the respondents shall be held liable to pay interest @ 18 % p.a."

¶17Finally, we are constrained to note our great dismay, even displeasure, at the manner in which the State Government persists in raking up the same defence again and again. We do not know how many times this Court has to pronounce the law. The aforesaid extracts show that this Court had laid down the law, and the pronouncement was not limited to the facts of any particular case. Yet, the government persists in the belief that the law declared by this court is somehow not binding on it, or that every judgment, no matter what the wording and even if it clearly lays down the law is confined to that particular petition. We are letting it pass this once, but if this is repeated we may well be moved to far sterner action.

¶18The Writ Petition is disposed of in these terms. There will be no order as to costs. (Neela Gokhale, J) (G. S. Patel, J) RAJU DATTATRAYA GAIKWAD Digitally signed by RAJU DATTATRAYA GAIKWAD Date: 2023.03.31 +0530

Gaikwad RD IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5357 OF 2022 Dr Shrikant Sakharam Jadhav, Age- 61 years Residing at- 476/1, Samarth Wadi, Vitthal Park, Gangapur Road, Nasik 422 002. …Petitioner ~ versus ~ 1. The State of Maharashtra, Through its Principal Secretary, Higher & Technical Education Department, Mantralaya Annex, Mumbai 400 032. 2. The Director of Higher Education, Maharashtra State, Central Building, Pune, District- Pune. 3. The Joint Director of Higher Education, Department of Higher Education, 17, Dr Ambedkar Road, Pune, District- Pune. 4. The Savitribai Phule Pune University, Through its Registrar, Ganesh Khind Road, Pune 411 007. 5. Maratha Vidya Prasarak Samaj, Nashik, Through its Secretary Having office at- Central Office, Shivaji Nagar, Gangapur Road, Nashik 422 002, Maharashtra. 6. MVP's KTHM College, Through its Principal Having office at- Shivaji Nagar, Gangapur Road, Nashik 422 002. …Respondents APPEARANCES for the petitioner Mr Mihir Desai, Senior Advocate, i/b Devyani Kulkarni. for respondent – State Mrs PJ Gavhane, AGP. CORAM : G.S.Patel & Neela Gokhale, JJ. DATED : 29th March 2023 ORAL JUDGMENT ( Per GS Patel J) :- 1. Rule. There is an Affidavit in Reply of an additional affidavit by the Petitioner and an additional Affidavit in Reply by the Joint Director, Higher Education, Pune Region. Rule is made returnable forthwith and the Petition is taken up for final hearing and disposal. 2. The Petitioner was employed at the 6th Respondent, MVP's KTHM College ("the College") as an Assistant Professor in Commerce. He was first appointed as a Lecturer on 16th September 1999. He retired on 30th June 2020. He has filed this Petition aggrieved by the denial by the 3rd Respondent, the Joint Director of Higher Education, Pune of the Petitioner's retiral benefits including pension and gratuity. That denial came by two letters dated 10th February 2020 and 8th February 2022. 3. The final prayers in the Petition at pages 43 to 44 read as follows: "a. That this Honourable Court be pleased to issue a writ of certiorari and /or any other order or direction in the nature of certiorari to quash and set aside the impugned orders dated 10.02.2021 and 08.02.2022 which have been marked and annexed hereto collectively as Exhibit H and release the retirement benefits including pension and gratuity to the Petitioner on the basis of his last drawn salary counting his service from 20.09.1999 to 30.06.2020 as per the provisions of the old pension scheme of 1983. b. That this Honourable Court be pleased to issue a writ of mandamus and /or any other order or direction in the nature of mandamus to direct the Respondent No.1, 2 & 3 to grant and release the retirement benefits to the Petitioner including his pension and gratuity etc. on the basis of his last drawn salary considering his service period from 20.09.1999 to 30.06.2020 as per the provisions of the old pension scheme of 1983, with interest at the rate of 18% per annum from the date of superannuation till payment. c. That this Honourable Court be pleased to issue a writ of mandamus and /or any other order or direction in the nature of mandamus to direct the concerned Respondents to grant the retirement benefits to the Petitioner including pension and gratuity as per the provisions of the old pension scheme of 1983 which was brought into effect vide the GR dated 21.07.1983." 4. The 5th Respondent is the management of the College. 5. The Petitioner was appointed as a Lecturer on 30th November 1987 in the subject of commerce on a temporary basis. His services were continued on an annual basis until 1999. None of this is really contentious but we note it for completeness of record. There is no doubt that his appointment followed the usual procedure and was approved by the 4th Respondent University by various approval orders. The Petitioner's services were approved with effect from 20th September 1999. The approval order in questio