Point of Law: Pension scheme - Deduction of monthly salary - since the Petitioner No. 1 had been appointed prior to 1st November, 2005 and occupied a part time fully aided post i.e. receiving 100% grant-in-aid from the State Government, the old pension scheme would be made applicable to the Petitioner.

ORDER :

1. The Petitioners have fled this Writ Petition under Article 226 of the Constitution of India. The Petitioner No. 1 seeks to quash and set aside the impugned order dated 13th May, 2020 issued by the Respondent No. 3 on the proposal dated 6th November, 2019 submitted by the Petitioner No. 2. Further direction has been sought against Respondent No. 2 to apply pension scheme to the Petitioner No. 1 which was prevailing prior to 1st November, 2005 in accordance with the provisions of the Maharashtra Civil Services Pension) Rules, 1982 “the said Rules”) and grant consequential service benefits to the Petitioner No. 1.

2. The Petitioner No. 1 came to be appointed as Part Time Shikshan Sevak on 11th September, 2001 which post was sanctioned on aided basis in the school of the previous management. The Petitioner No. 1’s services continued in the said post for three years and the Respondent No. 2 granted approval to the said appointment.

3. The Petitioner No. 1 after completing three years as Part Time Shikshan Sevak came to be appointed as part time teacher on 1st September, 2010. The Respondent No. 2 granted approval to the said appointment, which was made on aided post.

4. Thereafter, the Petitioner No. 1 came to be upgraded to the post of full time teacher in the same school on 15th June, 2015. The said post was sanctioned on aided basis. The proposal of the Petitioner was accordingly submitted to the Respondent No. 2 for approval on 30th December, 2015.

5. The Respondent No. 2 issued order dated 25th January, 2016 rejecting the said proposal of the Petitioner No. 1 on the ground that as per Government Resolution dated 2nd May, 2012, there was a ban on recruitment of teachers in aided school.

6. Being aggrieved thereof, the Petitioner No. 1 and the management of the previous school fled Writ Petition No. 4120 of 2016 in this Court to challenge the order dated 25th January, 2016 passed by the Respondent No. 2. The Division Bench of this Court by an order dated 28th February, 2016 allowed the said Writ Petition and set aside the impugned order and directed Respondent No. 2 to grant approval to the Petitioner No. 1 as full time teacher and make payment of salary. On 1st September, 2018, the Respondent No. 2 issued order of approval to the appointment of the Petitioner on full time post. Since, the Petitioner No. 1 was declared surplus in the previous school, the Respondent No. 2 issued order on 28th November, 2018 and absorbed the Petitioner No. 1 in the Petitioner No. 2 school as full time teacher. Accordingly, the Petitioner No. 1 made application dated 19th July, 2019 to the Petitioner No. 2 and requested that since the Petitioner No. 1 was appointed prior to 1st November, 2005, the old pension scheme shall be made applicable to the Petitioner No. 1. A proposal was submitted to the concerned office for applying the old pension scheme.

7. The Petitioner No. 2 submitted proposal dated 6th November, 2019 to the Respondent No. 3 along with decisions of this Court which were relied upon by the Petitioner No. 1. The Respondent No. 2 was requested to grant the said proposal and apply the old pension scheme to Petitioner No. 1.

8. The Respondent No. 3 passed the impugned order dated 13th May, 2020 which is on the reverse of the said proposal letter submitted by the Petitioner No. 2, thereby rejecting the said proposal. Being aggrieved by the impugned order the Petitioner has fled this Writ Petition.

9. The learned Counsel appearing for the Petitioner has submitted that the impugned order is bad in law as it proceeds on the premise that the appointment of the concerned teaching and non teaching employees has to be on full time post and not on part time post and which appointment has to be prior to 1st November, 2005 and for which the grant-in-aid should also have been sanctioned for full time post prior to 1st November, 2005. It is only then that the provisions of the old pension scheme will apply.

10. The learned Counsel for the Petitioner