Resignation does not qualify as voluntary retirement under Rule 66 of the Pension Rules, and service on fixed pay is not eligible for pension.

JUDGMENT :

Sandeep V. Marne, J.

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

2. The present petition was initially instituted by late Bhagwanrao S/o Anantrao Chate challenging the communication dated 27.07.2016 by which his request for payment of pension and other retiral benefits was denied. During pendency of present petition, late Bhagwanrao Anantrao Chate unfortunately expired and his legal heirs are prosecuting the petition. For the purpose of convenience, we are referring late Bhagwanrao Anantrao Chate as the petitioner.

3. The petitioner claims to have worked as an Assistant Teacher in the respondent No. 4 school during the period from 20.03.1965 to 15.07.1967 on fixed pay. He tendered resignation to respondent No. 4 school and immediately joined respondent No. 5 school on 16.07.1967 as an Assistant Teacher again on fixed pay. He claims that on 01.11.1969, he was given a pay scale of Rs. 105 - 125 and was thereafter granted yearly increments.

4. The petitioner tendered resignation to the respondent No. 5 school vide letter dated 30.12.1984. In the letter he requested for relieving him with effect from 31.03.1985. There is an endorsement on the resignation letter dated 30.12.1984 that the resignation was accepted on 30.12.1984 itself. However, at page No. 57 of the paper book, there is letter dated 30.03.1985 by which the school management informed him that the resignation was accepted and that he was relieved with effect from 01st April 1985.

5. The petitioner avers that he requested the Education Officer to forward his proposal for pension and retiral benefits and that the respondent No. 5 school accordingly submitted such proposal to the office of the Education Officer on 13.07.2015. It is further averred that the Education Officer forwarded the proposal to the respondent No. 2 on 19.11.2015. Thereafter, it appears that some queries were raised and replied and ultimately by order dated 27.07.2016, the respondent No. 2 rejected the proposal on two counts namely (i) that the petitioner had resigned from service and that therefore he was not entitled to pension and (ii) that the petitioner’s service during 20.03.1965 to 15.07.1967 was on fixed pay, which cannot be counted for pension. The petitioner has filed the present petition on 23.08.2016 assailing the order dated 27.07.2016.

6. The respondent No. 2 has contested the petition by filing affidavit in reply inter alia contending that the proposal for pension was submitted after thirty years of the resignation. It is further contended that, on account of resignation he is not entitled to pension. It is also contended that the services of the petitioner between 20.03.1965 and 15.07.1967 were on fixed pay, which do not count for qualifying service. The respondent No. 2 has further contended that the petitioner has rendered less than 20 years of qualifying service and was, therefore, not entitled to opt for voluntary retirement under the provisions of Rule 66 of the Maharashtra Civil Services (Pension) Rules, 1982 (for the sake of brevity hereinafter referred as to the ‘Pension Rules’).

7. Dr. R. R. Deshpande, the learned counsel appearing for the petitioner has raised a plea that even though the petitioner had tendered resignation vide letter dated 30.12.1984, it is required to be construed as an application under Rule 66 of the Pension Rules for voluntary retirement. Dr. Deshpande contended that the petitioner had given three months notice by way of his letter dated 30.12.1984 and that acceptance of the resignation as well as relieving of the petitioner was also done only after expiry of the period of three months. In support of his contentions, Dr. Deshpande, places reliance on following judgments :

I. Judgment dated 28.07.2011 of the Supreme Court in Civil Appeal No. 6013 of 2011 in the case of Sheelkumar Jain Vs. The New India Assurance Co. Ltd. and others.

II. Judgment of the Supreme Court in the case of Shashikala Devi Vs.