Dr. Rajendra Shankar Mahamuni v. Fergusson College, Pune & Ors.

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

2. The Petitioner has put forth the following prayers: “(a) That this Hon'ble Court be pleased to issue a Writ of Certiorari or any other Writ in the nature of Certiorari thereby quashing and setting aside the Order/ Letter bearing No. Payfixation-2023 /(1128/23)/Pune Division dated 18th August, 2023 issued by the Respondent No.5 i.e. the Joint Director of the Higher Education denying pension to the Petitioner. (b) That this Hon'ble Court be pleased to issue a Writ of Mandamus or any other Writ in the nature of Mandamus thereby directing the Respondents to grant pension to the Petitioner as per the provisions of Maharashtra Civil Services (Pension) Rules, 1982 by fixing the pay scale of the Petitioner in a time bound manner.”

3. The dates and events germane for deciding this Petition, can be summarized as under: (a) On 7th September 1989, the Petitioner was appointed on a temporary basis. (b) The said temporary appointment continued until the year

1993.

(c) He was thereafter appointed on a temporary basis, as an

(d) A similar appointment was made on 1st July 1995, up to the end of the first term of the academic year 1995–1996. e) Further similar appointments were made for part-terms of various academic years. (f) The Petitioner was terminated from his temporary appointment on 15th July, 1998. (g) The Petitioner approached the College and University Tribunal by filing Appeal No. 38 of 1998. By judgment dated 28th July 2000, the Appeal was allowed and the Petitioner was granted reinstatement in service until an ST candidate was selected and appointed through the regular selection procedure. However, his claim for being treated as a permanent employee with continuity of service, by reckoning his earlier temporary service, was specifically rejected. (h) The college published an advertisement dated 20th June 2005, inviting applications for the post of Lecturer in Physics. The Petitioner was one of the Applicants.

(i) The advertisement was published in largely circulated newspapers, such as Pudhari, Indian Express, and Loksatta, on 20th June, 2005. (j) Interviews were conducted on 24th September, 2005. (k) The Petitioner received an appointment order dated 21st November 2005, specifically referring to the advertisement and the selection process. Possessing the requisite qualifications of M.Sc. and Ph.D., he was appointed on probation from the Open Category.

(l) After completion of the probation period, the Petitioner was granted permanency. He superannuated on 31st January, 2018.

(m) The Petitioner has approached this Court in view of the rejection of the proposal forwarded by the Management for grant of pensionary benefits, by Respondent No. 5, vide the impugned order dated 18th August, 2023. (n) The sole ground for refusal of pensionary benefits is that the Petitioner’s appointment was made after 31st October, 2005.

4. The impugned order passed by the State is based on the Government Resolution (GR) dated 31st October, 2005. It needs to be noted that, by the said GR, the State of Maharashtra took a policy decision that those employees who were appointed, on or before 31st October, 2005 and whose employer was receiving 100% grant-in-aid, would be entitled to the Old Pension Scheme (OPS). Those employees who are not covered by the said Scheme, would be eligible for the Defined Contributory Pension Scheme (DCPS). There is no dispute that the Petitioner’s Employer was 100% grant-in aid prior to the cut-off date.

5. The controversy arose as to whether candidates whose selection process commenced prior to 31st October 2005, but, were appointed thereafter through the said process, would be entitled to the OPS or the DCPS. In Dnyaneshwar Balasaheb Sonawane and Others Versus State of Maharashtra and Others[1], this Court (Coram: Ravindra V. Ghuge and Sandipkumar C. More, JJ.) analyzed the GR dated 31st October, 2005 and concluded as under:

“14. It is thus, clear that recruitment is just an initial process that MAY lead to eventual appointment in service. But, that cannot tantamount to an appointment. In the notification introducing the Amendment Rules, 2005, Rule 2(2) has been introduced by way of an amendment indicating that the Commutation of Pension Rules, 1984 would not apply to government servants who are recruited on or after 1 -11-2005. The term "recruitment" has nowhere been defined in the Pension Rules applicable to the government employees.

15. There is no dispute or contra argument that Marathi language is the official language insofar as the Maharashtra State is concerned. The disentitlement clause for being eligible for the old pension scheme, in the Marathi version is in the Government Resolution dated 31-10-2005, which is at page 385 of the petition paper book. Clause 2(A) of this Government Resolution reads thus:- "२. (अ) शासनाने आता असा निनर्णय घेतला आहे नि १ नोव्हेंबर रोजी किं वा त्यानंतर निनयुक्त होर्णाऱ्या र्मचाऱ्यांसाठी, सध्या अस्ति,तत्वात असलेल्या निनवृत्तीवेतन योजने ऐवजी, ें द्र शासनाच्या धत4वर, नवीन "परिरभानि8त अंशदान निनवृत्तित्तवेतन योजना" (Defined Contribution Pension Scheme) खाली नर्मूद े ल्यानुसार लागू रण्यात येईल"

16. The Marathi word appearing in the Government Resolution dated 31-10-2005 means appointed. The Marathi word does not mean recruitment or process of recruitment. The word "recruitment" in Marathi means which includes the recruitment process, which is the process undertaken for selection and appointment of candidates. We are, therefore, of the view that the Marathi version indicating the word "appointment" would lead to the interpretation of the disentitlement clause as being appointed on or after 1-11-2005. Be that as it may, even if the contention of the learned advocate for the petitioners is accepted, the recruitment process ended on 19-12-2005, which is much after the cut off date 1-11-2005.”

6. This Court (Coram: Ravindra V. Ghuge and Sanjay A. Deshmukh, JJ.) in Review Application No. 233 of 2023 in Writ Petition NO. 1615 of 2023, delivered a judgment at Aurangabad on 12th October, 2023 (Vasantrao Naik Marathwada Krishi Vidyapeeth, Parbhani Versus Ganpat S/o. Maroti Sutare and Another) and interpreted the said GR. It was concluded that since Marathi is the Rajyabhasha (State’s official language), the Marathi version of the GR needs to be followed. This issue attracted the attention of the Court in Ganpat S/o. Maroti Sutare (supra), in view of the English translation issued by the State Government, which erroneously used the word 'recruitment' ("भरती प्रक्रीया") instead of 'appointment' ("निनयुक्ती"), as found in the original Marathi version. The relevant paragraphs of the said judgment read as under: “12. The Marathi version of the Government Resolution, is published in the State language and it is not in dispute that in the event of any discrepancy, the Government Resolution in the State language would prevail. The marathi version was not brought to the notice of the Court in Khilari Rajendra (supra). So also, the judgment delivered in Dnyaneshwar Sonawane (supra) at Aurangabad, wherein the Marathi as well as the English version of the Government Resolution was considered, was not cited before the Court which decided Khilari Rajendra (supra).