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2017 Supreme(Bom) 1154
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, B.P. Colabawalla, JJ.
Shivaji Nagnath Lokare and others - Petitioner
Versus
State of Maharashtra, Ministry of Finance, Mantralay Mumbai and others - Respondent
Writ Petition No. 11228 of 2011
Decided On : 16-03-2017
For the Petitioner: Mr. S.S. Pakale i/b Mr. Avinash R. Belge
For the Respondent: Ms. Sushma Bhende, Mr. Vijay Killedar
Headnote:Constitution of India, 1950-Article 16(1)-Right of equality.-Right of equality guaranteed by Articles 16(1) in matters of public employment, is not a right of being applied.
The invitation to the public ought to be clear and precise. Those eligible and in terms of the criteria laid down in the rules and in the advertisement alone would qualify. It is not only because they qualify and they apply that they can be appointed. There is a notified procedure which follows the issuance of the advertisement, receipt of applications, short listing thereof etc. There is either a written examination or coupled with the written examination, an oral interview; list is prepared and of the selected candidates. The law is those who are selected or those whose names are notified in the select list have no vested right of appointment. The right guaranteed by Article 16(1) and in matters of public employment is a right of being considered and not a right of being appointed. Therefore, if selected, none can claim that they ought to be issued an appointment order as of right. Once the procedure and as elaborate as Court has referred has to be followed, then, merely because of the intent to sanction the posts or the intent to permit creation and sanction of the posts would not necessarily and in the facts and circumstances of the case, be the date of reckoning or the cut-off date.
Maharashtra Civil Services (Pension) Rules, 1982-Rule 6-Defined Contribution Pension Scheme-G.R. dated 31.10.2015- New Pension Scheme.-Petitioners, selected for post of Gram Sevaks earlier, appointed after cut-off date 1-11-2005, entitled to pension under new Pension Scheme.
The Zilla Parishad was wrong or in error in issuing the impugned communication. They are based on the Government Resolutions. The Government Resolutions themselves cannot be set aside and at the instance of such of the petitioners before Court who are relying upon a process prior to the appointment, but culminating in the appointment. In the circumstances, Court does not see how Section 6 of the General Clauses Act, 1897, also has any application. It applies only when the General Clauses or the Central Act or Regulation made after the commencement of the General Clauses Act repeals an enactment hitherto made or hereafter to be made and unless a different intention appears therein, the repeal of that shall not affect what is relied upon by Mr. Pakale and appearing in clauses (b) and (c) of the same.
S.C. Dharmadhikari, J.
The petitioners, by this writ petition under Article 226 of the Constitution of India, are seeking a writ of certiorari or any other writ, order or direction calling for the records and proceedings pertaining to Government Resolutions dated 31st October, 2005, 21st May, 2010, 19th July, 2011 and an order dated 18th January, 2010, of the third respondent being Annexures F to I to the writ petition and based on that, they are seeking a declaration that the respondent No.4 shall continue to extend the benefits under the Maharashtra Civil Services (Pension) Rules, 1982, and existing General Provident Fund Scheme to the petitioners and they ought not be brought under the new pension scheme, namely, Defined Contribution Pension Scheme (for short "DCPS").
2. The writ petition is filed by the petitioners, who are 51 in number.
3. The writ petition proceeds to set out the details of the appointments of the petitioners. The petitioners claim that they have joined as Gram Sevaks on contract basis on 16th November, 2005, and they have been confirmed on 16th November, 2008, in the services of the various Gram Panchayats in Solapur District, their date of selection is 10th September, 2005, 12th September, 2005 and 28th October, 2005. Going by these dates of selection, the petitioners cannot be brought under the purview of the new scheme and their service conditions, including pension must be under the old scheme, is the case set up.
4. To appreciate the correctness of the submissions of Mr. Pakale, we would refer to the facts in some details. As stated above, the petitioners are in the services of the various Gram Panchayats within the control of the Zilla Parishad, Solapur. Thus, they are Zilla Parishad employees. The petitioners are governed by the rules and regulations framed under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, insofar as their recruitment and appointment. The petitioners case is that by virtue of the rules and regulations, the Zilla Parishad employees are entitled to pensionary benefits under the Maharashtra Civil Services (Pension) Rules, 1982, and existing General Provident Fund Scheme. The petitioners state that after they were initially recruited and appointed as Gram Sevaks on contract basis, subsequently, their appointments were confirmed. That was on completion of three years' probation period. The confirmation comes with continuity of service and pensionary and retirement benefits. The petitioners would, therefore, submit that for the purposes of continuity in service, the dates of their initial appointment as Gram Sevaks would be the governing date. The petitioners submit that the earlier scheme of 31st May, 2000, and modified by the 6th June, 2001 Government Resolution, enabled them to seek employment as Gram Sevaks. In other words, the petitioners would be appointed initially on contract basis and on successful completion of the period stipulated in the contract, their appointments would be confirmed. The petitioners state that the Chief Executive Officer of the Zilla Parishad invoked section 94 of the Maharashtra Zilla Parishads and Panchayat Samitis Act for appointing the petitioners as Gram Sevaks. The appointments on contract basis are governed under the Maharashtra Zilla Parishads (Contract Services) Rules, 1963. The appointments are made on regular establishment. They cannot be said to be appointments under Rule (3) of the Rules of 1963. Therefore, independent of the same, the first three years of service rendered by the petitioners is to be computed and taken as a regular service for the purpose of pensionary, retirement and other benefits. That is how they would claim that they are entitled to benefit of pension under the Maharashtra Civil Services (Pension) Rules 1982, and General Provident Fund Scheme.
5. The petitioners claim that a new pension scheme was introduced with effect from 1st November, 2005. That was applicable to State Government employees.
