Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Bom) 1790

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.V. Gangapurwala, Sunil K Kotwal, JJ.
Devendra Gopalrao Abetkar – Appellant
Vs.
State of Maharashtra – Respondent
W.P. No. 1273, 10246, 11925 of 2014, 3500, 3504, 3506, 3507, 4105, 4247, 4565, 4743, 5013, 5089, 5090, 5092, 5097, 5895, 5896, 5897, 5985, 5986, 6014, 6494, 7588, 7589, 7590, 7826, 9013, 9060, 9074, 9078, 9079, 9081, 9082, 9320, 9321, 9405, 9451, 9503, 10092, 10093, 10094, 10526, 10973, 11041, 12354, 12355, 12356 of 2016, 2129, 2148, 2153, 4735, 5754, 6448, 9299, 10331, 10332, 10335, 10632, 10779, 10810, 10811, 10812, 10813, 10814, 10815, 10816, 10817, 10820, 10835, 12111, 12112, 12113, 12114, 12115, 12116, 12117, 12134, 12172, 12173, 12174, 12175, 12176, 12287, 12419, 12449, 12454, 13300, 13858, 13859, 13860, 13930, 13932, 13952, 13957, 13988, 13989, 13990, 13992, 14103, 14104, 14105, 14108, 14119, 14288, 14289, 14305, 14697, 14760, 14835, 14942, 15034, 15234 of 2017, 272, 273, 287, 306, 307, 335, 582, 616, 655, 1580, 1581, 3161, 5335, 9376 of 2018
Decided On : 09-10-2018

Advocates Appeared:
P.R. Katneshwarkar, Adv., A.G. Ambetkar, Adv., S.B. Yawalkar, Adv., S.T. Shelke, Adv., S.S. Kulkarni, Adv., B.S. Deshmukh, Adv., S.Y. Yawalkar, Adv., P.D. Bachate, Adv., Y.B. Bolkar, Adv., R.N. Jain, Adv., A.N. Nagargoje, Adv., Manjushri Shendge Narwade, Adv., Surekha P Mahajan, Adv., Suvidh S Kulkarni, Adv., Mayur G Deokate, Adv., Shailesh P Brahme, Adv., M.S. Sonawane, Adv., Sambhaji S Tope, Adv., Vaibhav U Pawar, Adv., Abhijit G Choudhari, Adv., N.L. Chaudhari, Adv., A.V. Rakh, Adv., Arvind G Ambetkar, Adv., Dhanaji S Kudle, Adv., Vinod P Patil, Adv., Dhanji S Kudle, Adv., Ganesh J Kore, Adv., Arun V Rakh, Adv., Vivek U Rathod, Adv., K.K. Kulkarni, Adv., S.N. Patne, Adv., R.D. Kawade, Adv., R.J. Nirmal, Adv., Sham B Patil, Adv.

The main legal point established in the judgment is the validity of the State Government's application of the New Defined Contributory Pension Scheme (D.C.P.S.) to employees appointed after 01.11.2005, and the reasonableness and constitutionality of the State's policy decision in this regard.

Headnote:
Pension Scheme - Government Resolution - Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 248, 241, 274 of the Act of 1961, Article 309 of the Constitution of India, Article 162 of the Constitution of India, Article 300A of the Constitution of India - Summary of Acts and Sections: The court discussed the applicability of the New Defined Contributory Pension Scheme (D.C.P.S.) to teachers and employees appointed after 01.11.2005, and the constitutional and statutory provisions governing the conditions of service, pension, and provident fund for employees of Zilla Parishads and private schools. The court analyzed the powers of the State Government under Article 162 and Article 309 of the Constitution of India, and the rules and regulations under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The court also considered the implications of Article 300A of the Constitution of India on the deprivation of property and the rights of the petitioners to pension benefits.
Fact of the Case:

The petitioners challenged the Government Resolution dated 31st October, 2005 and subsequent circulars, which applied the New Defined Contributory Pension Scheme (D.C.P.S.) to teachers and employees appointed after 01.11.2005, depriving them of the benefits of the old pension scheme. The petitioners argued that this action was unconstitutional, illegal, and without legislative authority.
Finding of the Court:

The court found that the impugned Government Resolution and subsequent amendments to the Pension Rules were valid and within the powers of the State Government. The court held that the pension is paid from the District Fund and not the consolidated funds of the State, and therefore, the impugned actions did not fall within the purview of a Money Bill as contemplated under Article 199 of the Constitution of India. The court also upheld the reasonableness and validity of the D.C.P.S. scheme and the State's policy decision in this regard.
Issues: The issues before the court included the constitutionality and legality of applying the D.C.P.S. to employees appointed after 01.11.2005, the deprivation of pension benefits, and the applicability of statutory rules and constitutional provisions.
Ratio Decidendi: The court held that the impugned Government Resolution and subsequent amendments were valid and within the powers of the State Government. The court also found that the pension is paid from the District Fund and not the consolidated funds of the State, and therefore, the impugned actions did not fall within the purview of a Money Bill as contemplated under Article 199 of the Constitution of India. The court further upheld the reasonableness and validity of the D.C.P.S. scheme and the State's policy decision in this regard.
Final Decision: The writ petitions were dismissed, and the court discharged the rule. The court refused to grant a continuation of the stay in some matters, and the request for continuation of stay was refused. The court also refused to grant reasonable installments to the petitioners to deposit the amount of arrears.

JUDGMENT :

S.V. Gangapurwala, J.

Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. All these writ petitions are based on similar set of facts and involve common question of law, as such to avoid rigmarole are decided by the common judgment.

3. The petitioners assail the Government Resolution dated 31st October, 2005 and the subsequent Government Resolutions/Circulars. Under the impugned Government Resolution and Circular primary teachers and employees of the Government aided private schools and Zilla Parishad appointed on or after 01.11.2005 are governed by the New Defined Contributory Pension Scheme (for short "D.C.P.S."). These teachers/employees appointed on or after 01.11.2005 are not entitled for the benefit of the old pension scheme in view of G. R. dated 31.10.2005 and resolutions/circulars issued thereof.

4. Mr. Katneshwarkar, the learned advocate led the arguments on behalf of petitioners and other advocates adopted the arguments and also added their views. The submissions of the learned counsel for petitioners are summarized as under :

A. The petitioners are the permanent employees and members of the District Service Class - III. They are permanent employees and are entitled for pensionary benefits provided under the Maharashtra Civil Services (Pension) Rules 1982 (for short "Pension Rules"), the Maharashtra Civil Services (Commutation of Pension) Rules, 1984 and Maharashtra General Provident Fund Rules, 1998 (GPF). The petitioners cannot be deprived of the benefits of the old pension scheme by way of administrative orders. Such an action is unconstitutional, illegal and without authority of law. All primary teachers including the petitioners are recorded in District Service Class - III in accordance with law and provisions made under the Zilla Parishad Act and the Rules.

B. Section 248 of the Maharashtra Zilla Pairshads and Panchayat Samitis Act, 1961 (for short "Act of 1961) deals with the recruitment and conditions of service of persons serving with Zilla Parishad. The Government may make rules regulating the conditions of service in respect of pension by a general or special order. Section 241 of the Act of 1961 provides that, every person employed shall as from that day be appointed as a member of the District Technical Service (Class III), the District Service (Class III) or as the case may be of the District Service (Class IV) and shall become an officer or servant and hold office under the Zilla Parishad. Sub Section (1) of Section 274 of the Act of 1961 provides that, the State Government may make rules not inconsistent with the provisions of this Act. Sub Section (2) of Section 274 of the Act of 1961 further provides that in particular and without prejudice to the generality of the foregoing provisions, the State Government may make rules in the matter U/Sec. 248 of the Act of 1961 regulating payment to be made by the Zilla Parishad towards pension. Sub Section 3 of Section 274 of the Act of 1961 further provides that the rules to be made under this section shall be subject to the condition of previous publication. Sub Section 4 of Section 274 of the Act of 1961 mandates that all rules made under this section shall be laid before each House of the State Legislature as soon as may be after they are made, and shall be subject to such modifications as the Legislature may make during the session in which they are so laid or the session immediately following, and publish in the Official Gazette. The mandate of Sub Section 4 of Section 274 of the Act of 1961 is required to be followed as the act of rule making by the Government is subject to the test by the Legislature and unless legislature accepts the rules, the same cannot be a part of legislation. This procedure is not followed, the impugned Government Resolution was never laid before each House of the State Legislature and as such is unconstitutional and void.

C. All rules framed pursuant to the powers U/Sec. 274 of the

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2018 Supreme(Bom) 1790

The main legal point established in the judgment is the validity of the State Government's application of the New Defined Contributory Pension Scheme (D.C.P.S.) to employees appointed after 01.11.2005, and the reasonableness and constitutionality of the State's policy decision in this regard.

Cases Referred (11)