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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, AKIL KURESHI, NITIN W. SAMBRE, JJ.
Deshmukh Dilipkumar Bhagwan and Others - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 9798, 11689, 14170 of 2016, 22867, 23148, 23149 of 2017; Civil Application No. 961, 971 of 2011; Writ Petition (St) No. 8387 of 2013, 293 of 2018, 295 of 2018, 531 of 2012, 546 of 2012, 723 of 2014, 862 of 2014, 864 of 2014, 910 of 2014, 1008 of 2019, 1009 of 2019, 1010 of 2019, 1197 of 2014, 1432 of 2012, 1811 of 2014, 1915 of 2014, 2050 of 2014, 2073 of 2017, 2075 of 2011, 2076 of 2011, 2081 of 2011, 2081 of 2018, 2180 of 2018, 2192 of 2018, 2199 of 2018, 2346 of 2014, 2393 of 2013, 2821 of 2014, 3280 of 2014, 3281 of 2014, 3376 of 2018, 3377 of 2018, 3634 of 2016, 3736 of 2014, 3737 of 2014, 3757 of 2014, 3795 of 2014, 3797 of 2014, 3955 of 2014, 3987 of 2014, 4022 of 2014, 4105 of 2011, 4220 of 2011, 4268 of 2011, 4306 of 2014, 4347 of 2012, 4358 of 2012, 4600 of 2012, 4639 of 2016, 4845 of 2016, 4960 of 2017, 5225 of 2014, 5429 of 2010, 5439 of 2010, 5487 of 2010, 5505 of 2016, 5724 of 2010, 6257 of 2011, 6400 of 2018, 6823 of 2014, 7066 of 2010, 7506 of 2013, 7613 of 2010, 7733 of 2012, 7871 of 2016, 7966 of 2010, 7974 of 2011, 7975 of 2011, 7977 of 2011, 7993 of 2016, 8388 of 2013, 8408 of 2010, 8683 of 2016, 8760 of 2010, 8765 of 2010, 8984 of 2017, 8985 of 2017, 8986 of 2017, 8987 of 2017, 8988 of 2017, 8989 of 2017, 9003 of 2017, 9179 of 2016, 9309 of 2017, 9310 of 2017, 9311 of 2017, 9312 of 2017, 9314 of 2017, 9321 of 2017, 9330 of 2017, 9431 of 2017, 9432 of 2017, 9433 of 2017, 9928 of 2017, 9929 of 2017, 9930 of 2017, 9931 of 2017, 9932 of 2017, 9933 of 2017, 9934 of 2017, 9935 of 2017, 10029 of 2010, 10042 of 2010, 10089 of 2013, 10090 of 2013, 10091 of 2013, 10141 of 2017, 10465 of 2011, 10623 of 2012, 10671 of 2017, 10720 of 2012, 10782 of 2016, 10793 of 2017, 10794 of 2017, 11381 of 2016, 11713 of 2012, 12024 of 2017, 12082 of 2013, 12579 of 2016, 14178 of 2017, 14204 of 2016
Decided On : 30-04-2019
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 – Rules 2, 19, 30 – Constitution of India, 1950 – Article 309 – Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 – Sections 4, 16 – Pension Scheme – Applicability – Whether only those schools and colleges of education which are receiving 100% aid can be termed as the aided institutions or whether schools and colleges of education receiving less than 100% aid can also be termed as aided institution – Whether the employees who were appointed prior to 1st November 2005 in the aided recognized primary, secondary and higher secondary schools as well as colleges of education which were receiving less than 100% grant-in-aid as on 1st November 2005 are entitled to the benefice of Old Pension Scheme under the Pension Rules and the Commutation of Pension Rules or whether they will be governed by the New Pension Scheme under the GR of 2005 – Whether the employees who were appointed prior to 1st November 2005 in the aided recognized primary, secondary and higher secondary schools as well as the colleges of education which were receiving less than 100% grant-in-aid as on 1st November 2005 but which became 100% aided before the date on which the GR of 2010 came into force, are entitled to the benefit of Old Pension Scheme under the Pension Rules and the Commutation of Pension Rules or whether they will be governed by the New Pension Scheme under the GR of 2005 – Held, It is true that the relevant rules under grant-in-aid code refer to an aided school and does not make a distinction between a partially or fully aided school. Nevertheless, the liability of the Government to pay pensionary benefits to a retired employee of a private school can arise only if the Government has undertaken to pay 100% grant to the school. – As noted, very concept of expecting the Government to pay such pension even in a case where the Government has so far not undertaken the liability to pay 100% grant is abhorrent to the basic principle of service law. – It is true that the service put in by an employee of a recognized private school during the time when such school was not receiving grant, would also count towards the qualifying service for pension when such employee retires from a school which receives grant. – This was also the context of G.R. noted earlier. – This, however, would not mean that the employee appointed in a school can claim to be governed by the pension scheme till the school starts receiving 100% grant. – Petitioners have also based their case on right to education arguing that the State must undertake the full responsibility to provide quality basic education which would include payment of full pension to the retired teachers of primary and secondary schools. – However, in our opinion, the obligation of the State to provide free and compulsory primary and secondary education or free and compulsory education to all children of the age of six to fourteen years cannot be linked with the scale and manner of payment of post-retiral benefits of the employees of such schools. – The liability and obligation of the State to weigh the burden of such post-retire-mental benefits must depend on range of factors such as existing scheme for payment of such death-cum-retirement benefits and the financial and budgetary consideration of the State. – In the present case, the DCP scheme as applicable to the employees of the State Government and private aided schools is not under challenge. – Petitioners had also argued that right of retired Government servants to receive pension is a vested right. – It is neither bounty nor a largesse to be given by the employer. – To this propostion, there can be no quarrel. – However, right to receive post-retiral benefits flow from the scheme provided by the employer. – In the present case, as discussed earlier, the existing pension scheme is replaced by new pension scheme. – No vested right of the employees is being taken away. – In the context of the right of an employee of private school or college of education to receive pensionary benefits and the corresponding liability of the Government to pay the same, only those schools and colleges of education which are receiving 100% grant-in-aid can be termed as aided institutions. – The employees who were appointed prior to 1.11.2005 in aided recognized primary, secondary schools as well as colleges of education which were receiving less than 100% grant-in-aid as on 1.11.2005 would be governed by the DCP scheme. – Similar will be the situation of the employees who were appointed prior to 1.11.2005 in aided primary, secondary and higher secondary schools as well as the colleges of education which were receiving less than 100% grant-in-aid as on 1.11.2005 but which became 100% aided before 29.11.2010 would also be governed by the DCP scheme. – Order Accordingly
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AKIL KURESHI, J.
1. At the outset, we may record in brief the facts leading to the present Reference.
The petitioners in these petitions are teachers and non-teaching staff regularly appointed in various recognized aided schools in the State of Maharashtra. The respective schools are presently receiving 100% grant-in-aid from the State Government. All these employees were appointed prior to 1.11.2005. However, at the time of their appointments, the schools were not receiving 100% grant-in-aid. Admitted position is that all the schools started receiving 100% grant-in-aid from the Government only after 1.11.2005. The significance of this cut off date of 1.11.2005 would become clear as we record further facts. At this stage, however, we note that the Government of Maharashtra has introduced a Defined Contributory Pension Scheme ("DCP Scheme" for short) w.e.f. 1.11.2005 for the State Government employees as well as for the staff of private aided schools and colleges replacing the existing pension scheme. Petitioners claim that as they have been recruited prior to 1.11.2005, they would be governed by the old pension scheme irrespective of the fact that the schools in which they were appointed, started receiving 100% government grant after 1.11.2005. On the other hand, Government argues that an employee of a private school recruited prior to 1.11.2005 would be governed by DCP Scheme if the school in which he was appointed, started receiving 100% grant-in-aid only after 1.11.2005.
2. In order to appreciate this controversy, we may take note of the relevant statutory provisions and Government Resolutions ("GR" for short).
Under GR dated 4.11.1968, the Government decided to grant pensionary benefits to the full time teaching staff of recognized aided non-Government secondary schools in the State who retire on or after 1.4.1966 as admissible to Maharashtra State Government servants under the Revised Pension Rules 1950. This GR defines the term "Teacher" as to mean a full time teacher including a Headmaster/Headmistress and a full time special teacher working, in a non-Government Secondary School. The scheme framed under this GR granted an option to the teachers who were in service on 31.3.1966 either to continue under the Contributory Provident Fund Scheme or to switch over to the Pension Scheme. The teachers recruited on or after 1.4.1966 would be automatically governed by the Pension Scheme.
3. In order to regulate recruitment and conditions of service of employees in certain private schools, the State legislature framed the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the Act of 1977"). In exercise of powers conferred under sub-sections (1) and (2) of Section 16 read with Section 4 of the Act of 1977, the Government of Maharashtra framed the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 (hereinafter referred to as "the said Rules of 1981"). These Rules provided the qualifications for appointment to various teaching posts in private schools. It also laid down the pay scales and allowances and other service conditions of such teachers. Rule 19 of the said Rules of 1981 pertains to pension and reads as under:-
"An employee of an aided secondary school and aided Junior College of Education working on full time basis and retiring on or after the 1st April 1966 and an employee of an aided primary school working on full time basis and retiring on or after the 1st April 1979 but who have opted for pension and the employee appointed on or after the above-mentioned respective dates shall be eligible for pension at the rates and in accordance with the rules as are sanctioned by Government specifically to the employees of private schools."
4. The Government in exercise of powers under proviso to Article 309 of the Constitution of India framed the Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred to as "the Pensi
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