Suvarna Harishchandra Chavan v. State of Maharashtra

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. We have considered the strenuous submissions of the learned Advocates appearing for the parties. The question is as to whether the Petitioner was working in an Institution which received 100% grants-in-aid from the Government, prior to the cut-off date of 01.11.2005, in the light of the Government Resolution dated 31.10.2005, so as to make him eligible for Pension as per the Old Pension Scheme.

3. The Petitioner has put forth prayer clauses (a), (b) and (c), as under:- “a] This Hon'ble Court may after considering legality validity and proprietary of the order dated 29/12/2015[Exhibit J] thereby returning Pension proposal issued by Respondent no and be pleased to quash and set aside the same b] This Hon. Court may be pleased to issue Writ of Mandamus or any other appropriate Writ or direction and thereby direct the Respondent no.1 to 3 to consider Pension proposal of the Petitioner and grant and disburse Pension and other retirement benefits to the Petitioner by considering the service of the Petitioner rendered as Full time Art teacher from 1/12/1998 upto 10.10.2002 on unaided post along with service rendered full time teacher from 11.10.2002 till retirement by superannuation on 31/03/2012 on aided basis in Respondent no 6 special school as e qualifying service c] This Hon. Court may be pleased to issue Writ of Mandamus or any other appropriate Writ or direction thereby directs Respondent no 1 to consider and sanction proposal of the Pension of the Petitioner by superannuation as special case by considering service rendered from 11.10.2002 to 31.03.2012 which constituted 9 years 5 months 18 days as qualifying service for the pension.”

4. The Petitioner has not been granted the pension by the competent authority, concluding that he has not put in qualifying service, only by reckoning his confirmed service in a 100% grant-in-aid Institution rendered from 11.10.2002 to 31.03.2012, which is 9 years, 5 months and 18 days.

5. There is no dispute that the Petitioner had earlier joined employment on 01.10.1994 as a temporary Full-time Art Teacher on a permanent post. The Respondent No.6 School received Government sanction on unaided basis on 02.12.1998. The Petitioner worked as a permanent Full-time Art Teacher on the sanctioned unaided post and received an approval. On 11.10.2002, the post on which the Petitioner was working, received 100% grants. The Petitioner superannuated on 31.03.2012.

6. Respondent No.2, by an order passed on 25.03.2013, returned the proposal for pension of the Petitioner. On 03.11.2015, Respondent No.4 granted administrative sanction under the Special School Code and submitted the Petitioner’s proposal. The said proposal was returned by Respondent No.2 by communication dated 29.12.2015, on the ground that the Petitioner’s service on unaided post cannot be taken into account / cannot be reckoned for the purpose of calculating qualifying service.

7. This issue is directly answered by the Full Bench of this Court in Deshmukh Dilipkumar Bhagwan and Ors. Vs. State of Maharashtra and Ors. 2019 (3) Mh.L.J. 903, in the observations set out in paragraph Nos. 33, 34 and 37 which read as under:- “33. It is true that the relevant rules under grant-inaid 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.

34. 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. dated 8-4-2018 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.

37. Under these circumstances, we answer the Reference as under:- Question No. 1: 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. Question No. 2: 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. Question No. 3: 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.”

8. As such, the Full Bench concluded that the relevant rules under grant-in-aid Code refer to an aided school and do not make a distinction between a partially or fully aided school. The liability of the Government to pay pensionary benefits to a retired employee of a private school crystallizes only if the Government has undertaken to pay 100% grant to the school, prior to the cut-off date.

9. It is also concluded that the service put in by an employee of a recognized private school during the time when such school was not receiving grants, would also count towards the qualifying service for pension when such employee retires from a school which receives 100% grants. While answering question Nos. 1 & 2, it is clear that the law has been settled in order to accept a case for pensionary benefits of a candidate who was in a school receiving 100 % grant-in-aid on or before 31.10.2005. We, therefore, conclude that in such situation, the earlier part-time service can be reckoned with for computing the qualifying service, from the date the school has received sanction. The Respondent No.6 School received Government sanction on unaided basis on 02.12.1998. From such date, the earlier service of the Petitioner can be added up to his 100% grant-in-aid service.

10. In view of the above, this Petition is partly allowed in terms of prayer clauses (a) & (b), however, with the rider that the service of the Petitioner from 02.12.1998, would be considered as qualifying service for the purpose of grant of pension.

11. We, therefore, direct Respondent No.1 to sanction the pension proposal of the Petitioner as per the Old Pension Scheme by taking into account his earlier permanent service on unaided basis from 02.12.1998 until his superannuation on 31.03.2012.

12. On the point of quantum of interest on the unpaid pensionary benefits, the learned AGP Mr. S.H. Kankal has strenuously opposed the grant of interest. In the alternative, he submits that interest could be considered only for a period of 3 years preceding the date of the lodging of the Petition in the light of the Judgment of the Hon’ble Supreme Court delivered in Gagan Bihari Prusty Vs. Paradip Port Trust & Ors.[1] 1 SLP (C) No. 4468 of 2022

13. In Union of India and Ors. V/s. Tarsem Singh, 2008 (8) SCC 648, the Hon’ble Supreme Court has held in Paragraph No.5, as under:-