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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12435 OF 2022
Rajendrakumar Gore
Age -61 years
Residing at -11, Emora, Chinchpada Road, Godavari Nagar, Vadgaon, Pen- 402 107, District – Raigad … Petitioner
Though its Principal Secretary
Higher & Technical Education Department, Mantralaya Annex, Mumbai – 400 032.
2) The Director of Higher Education
Maharashtra State, Central Building, Pune, District – Pune
3) The Joint Director of Higher Education, Konkan Division, Having office at – Govt.
B.Ed, College Campus Panvel, Dist- Raigad 410 206.
4) Pen Education Society’s Bhausaheb Nene
Arts, Science and Commerce College, Pen Through the Principal, Having Office at- District – Raigad 402 107.
5) Pen Education Society
Through the Secretary, Having office at – District – Raigad 402 107
… Respondents
…
Ms.Devyani Kulkarni with Ms.Sanskruti Yagnik for the Petitioner.
Mr.P.P.Kakade, Addl.GP with Mr.Y.D. Patil, AGP for the Respondent -State. ...
ORAL JUDGMENT
1. This Petition is listed in the Special Pension Category Board.
2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
3. The Petitioner has put forth prayer clauses (a) and (b), as under: “a. That this Honorable Court be pleased to issue a writ of mandamus and/or any other order or direction in the nature of mandamus to direct the Respondent No.1, 2 & 3 to grant and release the retirement benefits to the Petitioner including his pension and gratuity etc. on the basis of his last drawn salary considering his service period from 21.06.1991 to 30.09.2021 as per the provisions of the old pension scheme of 1983, with interest at the rate of 18% per annum from the date of superannuation till the actual payment of the same and by treating the Petitioner as fully qualified from his initial date of appointment and by treating his last drawn wages as the wages on which Pension and other retirement dues will be computed. b. That this Honorable Court be pleased to issue a writ of mandamus and/or any other order or direction in the nature of mandamus to direct the concerned Respondents to grant the retirement benefits to the Petitioner including pension and gratuity as per the provisions of the old pension scheme of 1983 which was brought into effect vide the GR dated 21.07.1983 and by treating him as fully qualified from the date of his initial appointment and treating his last drawn salary as the salary which will be used for computing his pension.”
4. We have perused the Petition paper book in the light of the submissions of the learned Advocates for the respective sides.
5. Respondent Nos. 4 and 5, College are not the contesting Respondents and they have not taken a stand against the claim of the Petitioner.
6. The dates and sequence of events in this matter, are as under: (a) On 7th September 1990, the Petitioner was appointed on Clock Hour Basis in Konkan Unnati College, for the Hindi subject. The appointment was approved by the University vide order dated 18th March, 1992; (b) On 21st June 1991, the Petitioner was appointed on a part time basis at the same college pursuant to the advertisement, dated 3rd June 1991. His service was approved by the University vide order dated 24th August, 1992;
(c) On 14th June 1992, an advertisement was issued for the post of Full Time Lecturer at Respondent No.4 College;
(d) The Petitioner applied in pursuance to the advertisement and was appointed on 14th July, 1992; (e) On 22nd November 1992, the Petitioner was interviewed by the Local Selection Committee as the University Selection Committee was not available. He was then interviewed after the Committee became available and his service was confirmed by Respondent No.4; (f) The University, by order dated 22nd October 1992, approved the Petitioner's appointment as a Full-Time Lecturer in Hindi on a temporary basis for the period from 14th July 1992 to 19th November 1992, and thereafter, on probation with effect from 20th November 1992, in accordance with the Circular dated 1st March 1996. (g) The Petitioner’s service was confirmed on 26th December, 2001; (h) On 27th July 1998, the Petitioner was granted the benefits of the senior scale after completing six years as a Lecturer, this being related to the appointment in July, 1992;
(i) On 27th July 2003, the Petitioner was granted the benefits of selection grade after completing five years on senior scale; (j) On 1st January 2006, the Petitioner was designated as an Associate Professor and was granted increments in accordance with the recommendations of the Fifth, Sixth, and Seventh Pay Commissions; (k) On 30th September 2021, the Petitioner superannuated. Prior thereto, the proposal for pension was submitted to Respondent No.3 on 9th June, 2021;
(l) On 6th August 2021, Respondent No.3 directed Respondent
(m) Respondent No.4 replied on 23rd August, 2021 explaining that the GRs were not applicable to the Petitioner; (n) On 12th April 2022, Respondent No. 3 again directed Respondent No. 4 to submit a proposal in accordance with the Government Resolution dated 29th October, 2021; (o) Respondent No. 4 replied on 20th April 2022, stating that the Government Resolutions were not applicable to the Petitioner; (p) On 5th July 2022, the Petitioner explained why these Government Resolutions were not applicable. Since then, Respondent No. 3 has been silent; (q) The University issued a Circular dated 1st March 1996, following the UGC Regulations dated 19th September 1991, which were accepted by the State of Maharashtra on 23rd October, 1992. This Circular exempted Lecturers appointed prior to 19th September 1991, from the NET/SET requirement. Additionally, the Government Resolution dated 27th June 2013, regularized the services of teachers who did not possess NET/SET, but were appointed between 23rd October 1992 and 3rd April 2000; (r) A subsequent Government Resolution dated 29th October, 2021 clarified that clause 8 of the GR dated 27th June 2013, which made the new DCPS applicable, was deleted; (s) By judgment dated 3rd October, 2018 in Writ Petition NO. 13166 of 2017 (Shri Maruti Dattatraya Patil Vs. The State of Maharashtra and Ors.), it was held that the Petitioner, who was appointed as a Junior Clerk on 10th June, 1971 and as a Full-Time Lecturer on 20th September 1999, was entitled to pension based on the last drawn salary. The date of appointment for pension purposes was construed as 20th September, 1999. The Special Leave Petition challenging this order was dismissed on 1st July 2019; (t) On 9th April 2019, this Court allowed Writ Petition No. 755 of 2019 (Ranpise Vijaykumar Baburao vs. The State of Maharashtra & Ors.), considering the appointment of the Petitioner as a Lecturer on 14th August, 1995 in light of the University Circular dated 27th March 2010, which exempted certain teachers from acquiring NET/SET qualifications. Accordingly, the Petitioner’s appointment date 16th August 1995, was taken into consideration; (u) In the same order dated 9th April 2019, the contention that the Petitioner did not possess NET/SET qualifications was rejected, and the Court followed the earlier judgment in Shri Maruti Dattatraya Patil (supra). It was recorded that the Petitioner’s appointment was approved and that he was granted the necessary exemption.
7. The Petitioner, appointed on 14th July 1992, received the CAS benefits after completing 12 years of service, despite not possessing the NET/SET qualification.
8. In the affidavit in reply filed by the Joint Director of Higher Education, Konkan Region, Panvel, dated 8th August 2023, this Petition was strongly opposed. It was contended that the Petitioner’s appointment on a clock-hour basis dated 7th September, 1990 should be considered. Furthermore, his appointment on 20th April 1991, which was on a part-time basis, also deserves approval. However, his full-time appointment as a Lecturer by the order dated 14th July 1992, needs to be disapproved. Since teachers regularized after 1st November, 2005 were made eligible for the New Defined Contributory Pension Scheme (DCPS), the claim of the Petitioner deserves to be rejected. A reference was made to the directives of the Hon’ble Supreme Court and the order of this Court dated 23rd December 2015, delivered in Writ Petition No. 2082 of 2013, wherein it was held that teachers who have not acquired NET/SET qualifications and were appointed between 24th October, 1992 and 3rd April, 2000 are not entitled to Career Advancement Scheme (CAS) benefits. The Petitioner was wrongly granted such benefits.
9. It is undisputed that the Petitioner was granted the CAS benefits after completing 12 years in 2004 and no order has been passed by the State Authorities declaring that the Petitioner was wrongly paid the said benefits.
10. In view of the above, two issues are put to rest. Firstly, the University of Mumbai issued an approval order dated 22nd October 1992, which, in a chart listing out total of 26 persons, specifically mentions the Petitioner as a full-time Lecturer in Hindi on a temporary basis from 14th July 1992 to 19th November 1992, with probation commencing from 20th November 1992, for which the University granted approval. On the internal page three of the said document, at clause (d), the University refers to the Petitioner’s case and observes as follows: “(d) the appointment/ s mentioned at Sr. No./s. 3________ has / have been approved by the University on probation as he/ she/ they has/have been appointed prior to 19.9.1991 as per circular No. CONCOL/ VCD/ 116, dated 1.3.1996.” Secondly, the fact that the Petitioner was granted CAS benefits after completing 12 years in July 2004 indicates that his service was reckoned with from July 1992, and the 12 years were calculated accordingly, thereby making him entitled to CAS benefits, in July 2004.
11. The above factors can neither be ignored nor glossed over by contending that the University committed a mistake. The Petitioner was granted an exemption as long ago as in the mid-1990s, since he did not have the NET/SET qualification and was appointed prior to the NET/SET requirement becoming mandatory. Similarly, the CAS benefits he received in 2004, were granted 21 years ago. There is no allegation against him that he orchestrated the exemption order or the order extending CAS benefits. There is no claim that the Petitioner acted with an oblique motive or engaged in deceitful conduct. Additionally, no order has been passed cancelling the exemption granted to him or revoking the CAS benefits extended.
12. Such cases have to be treated as special cases with peculiar facts. While granting approval, because the University did not have a constituted committee, the approval was granted on his temporary appointment by acknowledging that the Petitioner has been appointed on the said date and the formality of a re-interview was conducted by the University constituted committee six months thereafter.
13. Recently, this Court has interpreted the Government Resolution dated 1st November, 2005 and held that employees whose selection and appointment process commenced prior to 31st October 2005, but who were actually issued appointment orders after that date, are also entitled to the Old Pension Scheme (OPS).
14. Taking a holistic view of the above factors, we find that the Petitioner has made out a case. Since the Petitioner’s appointment is pursuant to the advertisement and was made on 14th July 1992, he is entitled to receive the benefits from the date of his appointment. He is, therefore, entitled to the benefits of the OPS and gratuity which has not yet been paid to him. The Petitioner superannuated on 30th September, 2021 and is yet to receive these benefits.
15. In view of the above, this Writ Petition is allowed. The Petitioner shall be entitled to the OPS and shall also be entitled to gratuity.
16. As a consequence of the above, the Petitioner would be entitled to statutory interest on the delayed payment of pension, as well as the gratuity. We direct that the pension papers shall be cleared by all concerned authorities, along with the gratuity proposal, and the payment of pension shall commence within a period of 60 days from today. The gratuity, along with arrears of pension with statutory interest, would also be paid to the Petitioner within a period of 60 days from today.
17. Rule is made absolute in the above terms. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)