The main legal point established in the judgment is that the old pension scheme would not be applicable to non-teaching staff who became regular after the cut-off date of 1.11.2005, when the new pension scheme was made applicable to non-teaching staff.

SUNIL K. KOTWAL, J.

1. By filing this petition under Article 226 of the Constitution of India, the petitioners have sought the following substantial reliefs :

(A) By issuing writ of mandamus for appropriate writ or directions or orders in the like nature the respondent No.3 and 4 be directed to consider the claim of approval to the appointment of petitioners with effect from July 1999 or on the date of completion of strength of students at 500 or from the date of first proposal seeking approval and modify the existing order granting approval dated 24/12/2004 and 4/7/2007.

(B) By issuing writ of mandamus for appropriate writ or directions or orders in the like nature the respondent No.3 and 4 be directed to make applicable Pension Scheme on the basis of appointment of the petitioners made and approved before 2005 by quashing the letter dated 29/3/2008 issued by respondent No.4.

(C) By issuing writ of mandamus for appropriate writ or directions or orders in the like nature the respondent No.3 and 4 be directed to pay salary differences from July 1999 to 31/5/2004 and award all consequential service benefits.

2. The Government of Maharashtra under various Government Resolutions has made applicable the provisions contained in the Maharashtra Civil Services (Pension) Rules to the full time teachers and non-teaching staff in the non- Government/ private aided schools. The last of such Pension Scheme was framed under the Maharashtra Civil Services (Pension) Rules, 1982. The Union of India vide Notification issued by its Finance Department dated 22.12.2003 has made applicable the Defined Contributory Pension Scheme (for short, the “DCP Scheme”) to the employees who are appointed on or after 1.1.2005. The Union of India has also appointed a Committee for the said purpose. The Government of Maharashtra vide Resolution dated 31st October 2005, had resolved to make similar DCP Scheme applicable to the employees appointed in the services of the State of Maharashtra on or after 1st November 2005. Vide Government Resolution dated 29th November 2010, the Government of Maharashtra, through its School Education and Sports Department, has resolved that teachers and non-teaching staff appointed in the recognized non-Government (private) aided primary, secondary and higher secondary schools as also Junior College of Education on or after 1st November 2005, shall be governed by the new DCP Scheme.

3. The question that arises for consideration in the present petition is as to whether non-teaching staff like Clerks and Peons, who were appointed in private recognized Government-aided schools prior to 1.11.2005 on honourarium, and who were brought in regular scale after the cut-off date 1.11.2005, would be governed by the 1982 Pension Rules or the new D.C.P. Scheme.

4. After hearing Shri B.R. Warma, learned counsel for the petitioners and learned A.G.P. for the State, following undisputed facts emerge before this Court.

5. That, on 2.7.1993, petitioners were appointed as Clerk and Peon respectively in respondent No.6 school, on contract basis, when there was ban on recruitment of the staff, under Government Resolution dated 16.6.1987. This ban on recruitment was lifted under Government Resolution dated 1.8.1995. 100% grant-in-aid is approved to the respondent No.6 school since the year 1998. In the year 1999, the strength of the students in respondent No.6 school was beyond 500. Therefore, since June 1999, the respondent No.6 school became eligible to get approval for appointment of one Clerk and one Peon in the school. However, till 2001, respondent Nos.5 and 6 did not submit the proposal to the respondent No.4 for grant of approval though on 24.5.1999 respondent No.5 issued fresh appointment orders in favour of petitioners on permanent basis. For the first time, on 21.6.2001, respondent No.6 sought approval from the Government to the appointment of the petitioners as Clerk and Peon respectively on the ground that strength of the school reached beyo