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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 77 OF 2022
Smt. Anjali Anand Khare. … Petitioner.
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Mr. A.V. Anturkar, Senior Advocate a/w. Mr. Yash Agarwal, i/b. Mr. Vaibhav Kulkarni, for the Petitioner.
Mr. Rajendra Anbhule a/w. Ms. Nisha Ahire, Ms. Pooja Pal, for
Respondent No. 4.
Ms. S.S. Bhende, AGP for Respondent/State.
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JUDGMENT
1. Leave to add prayer clause (d-1) with regard to the claim for pension. Addition be carried out forthwith.
2. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
3. The learned Advocate for the Petitioner submits on instructions that since the Petitioner would superannuate in March, 2025, SANDEEP TALWALKAR prayer clause (d) will not be pressed. The learned Senior Advocate on instructions submits that the Petitioner is now concerned with the Pension since she would be helpless after superannuation if the pension is not paid. All other issues are not significant for her considering the importance of pension.
4. The Petitioner has put forth prayer clauses (a), (b) & (d-1) which read as under: “a) That this Hon'ble Court be pleased to issue a writ of Mandamus or any other appropriate writ direction or order under Article 226 of the Constitution of India, 1950 directing the Respondent No. 2 & 3 to condone/set aside all the objections raised against her and her services be regularised under the salary head of the Maharashtra.State Government - Grant-in-Aid Salary budget. b) That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ, order or direction in the nature of Mandamus under Article 226 directing the Respondent No. 3 to continue the payment of salary grant to the Respondent No. 4 since date of joining of the Petitioner. d-1) That the Hon'ble Court be pleased to issue an appropriate writ, order or direction directing Respondent Nos. 1,2,[3] to disburse the pension to the Petitioner on her superannuation and all other post retiral benefits in a time bound manner.”
5. The dates and sequence of events are relevant in this case which bring up peculiar facts and circumstances. We would summarise the same as under: (a) The State Government is said to have introduced a Government Resolution dated 4.9.1986 with the title as under: "खर्चा मध्ये का टकासर मत्ये आणि सवा नि वात्ती मळे रिरका म्ये हो -ये पदा वार सरळे सवा प्रवाशा म का कारण्ये वार बं$दा.” (b) The University issued an order of appointment to the Petitioner on the post of Assistant, on 14.2.1987.
(c) The Petitioner received a time bound promotion after 12
(d) The Joint Director of Higher Education, Respondent No. 3, informed the University, Respondent No. 4, vide its Communication dated 12.11.2003, that the salary expenditure incurred on the salaries of 36 employees, is being refused by the Government and that they cannot be accommodated under the Grant-in-aid Salary Budget. (e) Respondent No. 2 Director of Higher Education, Maharashtra State, informed Respondent No. 3 on 31.12.2003 and addressed a copy to Respondent No. 4 University, that out of the 36 cases, 32 cases would be regularised and 4 cases would be excluded from the regularization. The Petitioner is included in these 4 excluded cases. (f) The University requested the Government vide its Communication dated 17.3.2004, to regularize the cases of the 4 excluded employees. (g) On 8.7.2009, the Petitioner was promoted as a Senior Assistant and a confirmation order was issued on 26.3.2011. (h) On 21.3.2012, the Petitioner received the benefit of “Assured Career Progression Scheme” (second benefit).
(i) On 8.1.2015, the Petitioner was promoted as an Assistant
Section Officer. (j) On 23.5.2018, the University informed the Petitioner that the Department of Higher and Technical Education has taken an objection on the appointment of the Petitioner, as in 1987, on the ground that she was recruited when there was a ban period. (k) On 28.2.2020, the University informed the Petitioner that the Government has declined to enter her name in the Shalarth Pranali.
(l) On 30.3.2021, Respondent No. 2 informed the Divisional
Joint Director, Higher and Technical Education, Pune to convey to the University that it can absorb the Petitioner under University’s funds instead of State’s Grant-in-aid.
(m) On 21.6.2021, Respondent No. 3 informed the University that the State Government cannot accept the liability of the Petitioner’s salary and her post retiral benefits under the State’s Grant-in-aid budget and that the University may absorb the Petitioner. (n) On 30.8.2021, the Petitioner received a communication from the University informing her that the Management Council has refused to accept the liability towards salary and post retiral benefits. (n) The learned Advocate for the Petitioner submits on instructions that the other 3 candidates who were also refused the benefits of regular employees, are now receiving pension from the State Government.
6. The learned Advocate representing the University has relied upon the affidavit in reply filed by Smt. Sushma Kishore Surve, 7.11.2022, more particularly paragraph 10, which reads as under:
10) I say that the name of the Petitioner was not included in the Sevarth System of the State Government as her fixation of pay was not approved by the State Government. As the salary grant towards the salary of the Petitioner is not being paid by the State Government, her salary is being paid by the Respondent University through its own fund. The said facts have been communicated to the Petitioner by the Respondent University vide letter dated 28.02.2020. A copy of the said letter dated 28.02.2020 is annexed herewith as Exhibit C collectively.
7. The learned Advocate further submits that the University is never bound to pay pension to its employees under the Rules. Pension is always paid by the State Government. The burden of paying pension cannot be placed on the shoulders of the University.
8. The learned Senior Advocate Shri Anturkar takes a strong exception to the contents of paragraph 10. To disprove the said averment, he relies upon the appointment order of the Petitioner, dated 27.10.1989 and the order of confirmation, dated 4.4.1991, issued by the University through its Registrar. He points out that the order of confirmation dated 4.4.1991, clearly indicates that the Petitioner was appointed on 15.2.1989 for a period of 2 years of probation and after her satisfactory completion of probation, the order dated 4.4.1991, granting regularization to the Petitioner, was issued.
9. He then refers to a communication dated 8.1.2025, addressed by the Assistant Finance Officer of the University to the Petitioner, indicating that the Petitioner was receiving salary from the Government grants until February, 2016. From March, 2016, because her name was not entered in Shalarth Pranali, that the payment was stopped from the Government Grants. On 21.4.1999, the University issued an order setting forth the scale vide which she would be receiving her salary.
10. We have perused the G.R. dated 4.9.1986, more particularly, Clause 4, which is relevant for deciding this case. The said clause reads as under: ४. र ज्ये शा स काडू अ दा निमळे -ये निवानिवाध शा*क्षणि का स$स्था वा कानि. वा निबंगर कानि. निवाद्या निपठे ये मध ल पदा भरण्ये बं बंत अशा र्चा प्रका रर्चा बं$दा ल ग कारण्ये बं बंतर्चा आदाशा, णिशाक्ष वा सवा ये ज निवाभ ग वा कानि. वा सहोका र निवाभ ग ये $ नि गनिमत कार वात.
11. The learned AGP has relied upon the affidavit in reply dated (Undated), which was notarised on 28.2.2022, to oppose this Petition by adverting to paragraph Nos. 4 and 5, which read as under:
12. We find in this case, that the whole issue would turn upon the effect of the G.R. No. 4.9.1986. At the same time, based on the documents before us, we cannot ignore that the Petitioner was being paid her salary from the Government grants from 1989 till 2016. If the Petitioner’s appointment as in 1989 was illegal, the Government could have taken the stand expeditiously.
13. What we find from Clause 4 of the G.R. dated 4.9.1986, is that the State Government has indicated that those Educational Institutions, Agricultural and non-agricultural Universities, who are receiving grants from the Government, would be subjected to a similar ban if a specific ban order is issued by the Education/Agriculture/Cooperation Department etc.. It is nobody’s case before us that any such ban order was issued by the Department of Higher Education which monitors the Universities.
14. The G.R. dated 4.9.1986, has been issued by the Finance Department with the intention of prohibiting recruitment through direct appointment on posts which have fallen vacant on account of the death or superannuation of an employee. This G.R. has to be restricted to the Finance Department keeping in view that Clause 4 mandates that if such ban is be made applicable to the non-agricultural Universities, the concerned Department of Higher Education has to issue such a ban order. No such ban order has been placed before us and it is not the case, either of the Government of Maharashtra or the University, that such a ban order was issued by the Department of Higher Education to be made applicable to the non-agricultural Universities.
15. In our view, the contention of the State that the Petitioner’s appointment was prohibited by the ban can be said to be purely inferential in the absence of there being no specific order issued by the Department of Higher Education. Such bans cannot be made applicable by drawing inferences or on assumptions.
16. In the above backdrop, we find that the Petitioner’s salary was being paid till 2016 by the State Government through its grants. This aspect is not denied by the State Government. It is an admitted position that the State Government laboured under the impression that the G.R. introducing a ban, may have automatically been applicable to the non-agricultural Universities in the State of Maharashtra.
17. In view of the above facts, this Petition can be allowed for reasons, more that one. Firstly, that the ban was not made applicable to the State Government in the absence of any specific order by the Department of Higher Education (no such order having been placed before us and no such defence having been taken in the affidavit in reply by the State Government). We have no other alternative, but, to conclude that there was no such ban imposed on the recruitment in the Pune University. Secondly, that the Petitioner completed her probation, was granted regularization, was granted the time bound promotion benefit on 21.4.1999 after completing 12 years in service, was promoted on 3 occasions and finally occupied the post of Assistant Section Officer vide promotion order dated 8.1.2015. Thirdly, the Assistant Finance Officer of the University has informed in writing on 8.1.2025, to the Petitioner that her salary up to February, 2016 was being paid from the salary grants extended by the State Government. The same was stopped since Government took a stand that she cannot be brought on the Sevarth Pranali only for the reason that she was recruited during the 1986 ban.
18. Considering the above and in the light of the documents, it is obvious that the statement made by the University in paragraph 10, is not appropriately worded. The factum of the Petitioner receiving the salary from the salary grants until February, 2016 should have been mentioned in paragraph10. Be that as it may, the said paragraph neither advances the case of the University, nor does it defeat the cause of the Petitioner.
19. We have recorded the statement made by the learned Senior Advocate on instructions from the briefing Advocate and the Petitioner, that the Petitioner is not pressing the other prayers, save and except, prayer clause (d-1), only for the purpose of drawing pension considering that she would superannuate in March, 2025.
20. This Petition is partly allowed. It is declared that the Petitioner was in the regular service of the University and would be entitled for the pensionary benefits to be paid by the State Government, considering that she has been working from 1989 on a permanent vacant post, having received 4 promotions and having continued in service for a period of 36 years. Hence, we further direct the University that the Pension proposal of the Petitioner be forwarded to the appropriate authority of the State Government and we expect the authorities to clear the pension proposal in order to ensure that the Petitioner gets pension and all retirement benefits like gratuity, provident fund etc. from the first month post her superannuation from service.
21. Rule is made partly absolute in the above terms. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)