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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Rohit B. Deo, M.W. Chandwani, JJ.
Mr. Anjali w/o Anil Tanksale - Petitioner
Versus
State of Maharashtra, through its Secretary, Education Department and Anrs. – Respondents
Writ Petition No. 2758 of 2008
Decided On : 30-06-2023
Pension Scheme - Old Pension Scheme - Maharashtra Civil Services (Pension) Rules 1982 - 2019(3) Mh.L.J. 903 - The court discussed the applicability of the Old Pension Scheme to employees appointed prior to 01-11-2005 in recognized primary, secondary schools or colleges of education receiving 100% grant-in-aid as on 01-11-2005. The court held that the employees working in fully aided posts prior to 01-11-2005 would be governed by the Old Pension Scheme. The court also emphasized that the date of approval of appointment is not relevant for considering the applicability of the pension scheme, and the original date of appointment is what matters for determining the scheme's applicability.
Fact of the Case:
The petitioner was denied the benefit of the Old Pension Scheme after being appointed as a Lecturer in an aided educational institution. The appointment was initially treated as a transfer to a 100% aided post, and subsequent approvals were granted on a year-to-year basis due to the existence of backlog in recruitment.
Finding of the Court:
The court found that the petitioner was appointed in a school receiving 100% grant-in-aid prior to 01-11-2005 and was entitled to the benefit of the Old Pension Scheme. The court quashed the communication denying the petitioner the benefit of the Old Pension Scheme and declared the petitioner's entitlement to the scheme.
Issues: The issues revolved around the applicability of the Old Pension Scheme to employees appointed in aided educational institutions prior to 01-11-2005, the relevance of the date of approval of appointment, and the impact of backlog in recruitment on the approval of appointments.
Ratio Decidendi: The court held that employees working in fully aided posts prior to 01-11-2005 would be governed by the Old Pension Scheme. The court also emphasized that the date of approval of appointment is not relevant for considering the applicability of the pension scheme, and the original date of appointment is what matters for determining the scheme's applicability.
Final Decision: The court quashed the communication denying the petitioner the benefit of the Old Pension Scheme and declared the petitioner's entitlement to the scheme. Any monetary benefit received under the Defined Contributory Pension Scheme (DCPS) was to be refunded or adjusted against the benefits receivable under the Old Pension Scheme.
JUDGMENT :
R.B. DEO, J.
Widely worded as the prayer clause is, the grievance which is agitated during the course of hearing is that the petitioner is denied the benefit of the Old Pension Scheme.
2. The State Government issued Government Resolution dated 31-10-2005 which applied the Defined Contributory Pension Scheme (DCPS) replacing the existing Pension Scheme, to Government servants who are recruited on or after 01-11-2005 in State Government service. Clause 4(b) of the Government Resolution dated 31-10-2005 made applicable the DCPS to the employees, who are recruited on or after 01-11-2005, in the services of the Recognized and Aided Educational Institutions, Non-Agricultural Universities and affiliated Non-Government Colleges and Agricultural Universities etc., to whom the existing pension scheme and General Provident Fund Scheme is applicable.
3. The Full Bench of this High Court has held that the Old Pension Scheme shall apply only to employees who were appointed prior to 01-11-2005 in recognized primary, secondary schools or colleges of education which were receiving 100% grant-in- aid as on 01-11-2005 (Deshmukh Dilipkumar Bhagwan and others v. State of Maharashtra and others, 2019(3) Mh.L.J. 903.
4. The grounds on which the benefit of Old Pension Scheme is denied are discernible from communication dated 07-8-2006 addressed by the Deputy Director, Vocational Education and Training, Regional Office, Nagpur to the petitioner and her employer school. We may extract the relevant portion of the said communication -
Since, the above approval is accorded with effect from the date after 01-11-2005 and as per the provisions of letter at Sr.No.8 under reference, the provisions of Terminology of contributory Pension Scheme has been made applicable, the provisions of Maharashtra Civil Services (Pension) Rules 1982 will not be applicable.”
5. It would be necessary to note broad facts in order to address the grievance raised in the petition.
a) The petitioner was initially appointed as Lecturer in Electronics on the establishment of Somalwar Junior College, Khamla Branch, Nagpur which is administered by respondent 3- institution, with effect from 01-10-1988. The said college was then unaided.
b) Somalwar Junior College, Ramdaspeth, Nagpur is also administered by respondent 3-institution. In the said college, one vacancy of Lecturer in Electronics occurred in 1997 due to the resignation of Mrs. M.D. Keskar who was working as Lecturer in Electronic, which post was receiving 100% grant-in-aid. The petitioner was transferred to the aided post which felt vacant due to the resignation of Mrs. M.D. Keskar.
c) The management sought approval from the appropriate authority to transfer an appointment of the petitioner to the 100% aided post which felt vacant due to the resignation of Mrs. M.D. Keskar. Contemporaneously, the management intimated the occurrence of the vacancy to the Employment Exchange and the Social Welfare Officer. Respondent 2-Deputy Director of Vocational Education and Training was also requested to forward the name of any surplus teacher who may be eligible and interested in applying for the vacant post.
d) While respondent 2 did communicate the name of Mr. Pravin Padalwar who belonged to the Scheduled Tribe Category, and the management did invite Mr. Pravin Padalwar to attend the interview, he did not turn up.
e) The management addressed communication dated 26-9-1997 to respondent 2 that Mr. Pravin Padalwar did not report and sought permission to transfer the petitio
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