SKN 1/30 8387.13-wp .doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8387 OF 2013 [ENTITY] and others. Petitioners V/s. The [ENTITY], Through Chief Secretary, General Administration Department and others. Respondents WITH WRIT PETITION NO.723 OF 2014 WITH WRIT PETITION NO.10671 OF 2017 WITH WRIT PETITION NO.531 OF 2012 WITH WRIT PETITION NO.546 OF 2012 Digitally signed by Sanjay WITH Sanjay Kashinath Kashinath Nanoskar WRIT PETITION NO.862 OF 2014 WITH Date: Nanoskar 2018.09.01 12:02:07 +0530 WRIT PETITION NO.910 OF 2014 WITH WRIT PETITION NO.1197 OF 2014 WITH WRIT PETITION NO.1432 OF 2012 WITH WRIT PETITION NO.1811 OF 2014 WITH WRIT PETITION NO.1910 OF 2011 WITH WRIT PETITION NO.1915 OF 2014 WITH WRIT PETITION NO.2050 OF 2014 WITH WRIT PETITION NO.2075 OF 2011 WITH WRIT PETITION NO.2076 OF 2011 WITH WRIT PETITION NO.2081 OF 2011 WITH SKN 2/30 8387.13-wp .doc WRIT PETITION NO.2192 OF 2014 WITH WRIT PETITION NO.2346 OF 2014 WITH WRIT PETITION NO.2393 OF 2013 WITH WRIT PETITION NO.2499 OF 2011 WITH WRIT PETITION NO.2821 OF 2014 WITH WRIT PETITION NO.2937 OF 2012 WITH WRIT PETITION NO.3280 OF 2014 WITH WRIT PETITION NO.3281 OF 2014 WITH WRIT PETITION NO.3736 OF 2014 WITH WRIT PETITION NO.3737 OF 2014 WITH WRIT PETITION NO.3795 OF 2014 WITH WRIT PETITION NO.3797 OF 2014 WITH WRIT PETITION NO.3955 OF 2014 WITH WRIT PETITION NO.4022 OF 2014 WITH WRIT PETITION NO.4105 OF 2011 WITH WRIT PETITION NO.4220 OF 2011 WITH WRIT PETITION NO.4268 OF 2011 WITH WRIT PETITION NO.4347 OF 2012 WITH WRIT PETITION NO.4358 OF 2012 WITH WRIT PETITION NO.4600 OF 2012 WITH WRIT PETITION NO.4639 OF 2016 WITH WRIT PETITION NO.4960 OF 2017, SKN 3/30 8387.13-wp .doc WITH WRIT PETITION NO.5225 OF 2014 WITH WRIT PETITION NO.5429 OF 2010 WITH WRIT PETITION NO.5439 OF 2010 WITH CIVIL APPLICATION NO.961 OF 2011 WITH WRIT PETITION NO.5487 OF 2010 WITH WRIT PETITION NO.5487 OF 2011 WITH WRIT PETITION NO.5505 OF 2016 WITH WRIT PETITION NO.5724 OF 2010 WITH WRIT PETITION NO.6257 OF 2011 WITH CIVIL APPLICATION (ST) OF 26984 OF 2017 WITH WRIT PETITION NO.6823 OF 2014 WITH WRIT PETITION NO.7066 OF 2010 WITH WRIT PETITION NO.7313 OF 2010, WITH WRIT PETITION NO.7506 OF 2013 WITH WRIT PETITION NO.7613 OF 2010 WITH WRIT PETITION NO.7733 OF 2012 WITH WRIT PETITION NO.7966 OF 2010 WITH WRIT PETITION NO.7974 OF 2011 WITH WRIT PETITION NO.7975 OF 2011 WITH WRIT PETITION NO.7977 OF 2011 WITH WRIT PETITION NO.7993 OF 2016 WITH WRIT PETITION NO.8388 OF 2013 WITH SKN 4/30 8387.13-wp .doc WRIT PETITION NO.8408 OF 2010, WITH WRIT PETITION NO.8760 OF 2010 WITH WRIT PETITION NO.8765 OF 2010 WITH WRIT PETITION NO.9431 OF 2017 WITH WRIT PETITION NO.9432 OF 2017 WITH WRIT PETITION NO.9433 OF 2017 WITH WRIT PETITION NO.10029 OF 2010 WITH WRIT PETITION NO.10042 OF 2010 WITH WRIT PETITION NO.10089 OF 2013 WITH WRIT PETITION NO.10090 OF 2013 WITH WRIT PETITION NO.10091 OF 2013 WITH WRIT PETITION NO.10465 OF 2011 WITH WRIT PETITION NO.10623 OF 2012 WITH WRIT PETITION NO.10720 OF 2012 WITH WRIT PETITION NO.10782 OF 2016 WITH WRIT PETITION NO.11095 OF 2011 WITH WRIT PETITION NO.11381 OF 2016, WITH WRIT PETITION NO.11713 OF 2012 WITH WRIT PETITION NO.12082 OF 2013 WITH WRIT PETITION NO.12579 OF 2016 WITH WRIT PETITION NO.14204 OF 2016 WITH WRIT PETITION (ST) NO.22867 OF 2017 SKN 5/30 8387.13-wp .doc WITH WRIT PETITION NO.3757 OF 2014 WITH WRIT PETITION NO.3987 OF 2014 WITH WRIT PETITION NO.4306 OF 2014 WITH WRIT PETITION NO. 7965 OF 2010 WITH WRIT PETITION NO. 10624 OF 2012 WITH WRIT PETITION NO. 3634 OF 2016 WITH WRIT PETITION NO. 1507 OF 2016 WITH WRIT PETITION NO. 9011 OF 2013 WITH WRIT PETITION NO. 10122 OF 2013 WITH WRIT PETITON NO. 2468 OF 2014 WITH WRIT PETITON NO. 2838 OF 2014 WITH WRIT PETITION NO. 10714 OF 2013 WITH WRIT PETITION NO. 10715 OF 2013 WITH WRIT PETITON NO. 10716 OF 2013 WITH WRIT PETITION NO. 3794 OF 2014 WP/8387/2013 with WP/723/2014, WP/10671/2017, Mr. [ENTITY] a/w Mr. [ENTITY], Mr. [ENTITY] and Mr. [ENTITY] for the petitioner Mr. [ENTITY], Sr. Adv. Special Counsel a/w Mr. [ENTITY], A.G.P. for the Respondent/State in all petitions. SKN 6/30 8387.13-wp .doc WP/2192/2014, WP/531/2012, WP/546/2012, WP/862/2014, WP/1432/2012, WP/1910/2011, WP/1915/2014, WP/2050/2014, WP/2075/2011, WP/2076/2011, WP/2081/2011, WP/2346/2014, WP/2393/2013, WP/2499/2011, WP/2821/2014, WP/2937/2012, WP/3280/2014, WP/3281/2014, WP/3736/2014, WP/3737/2014, WP/3795/2014, WP/3797/2014, WP/3955/2014, WP/4105/2011, WP/4220/2011, WP/4268/2011, WP/4347/2012, WP/4358/2012, WP/4600/2012, WP/4639/2016, WP/4960/2017, WP/5225/2014, WP/5429/2010, WP/5439/2010 with CAW/961/2011, WP/5487/2010, WP/5487/2011, WP/5505/2016, WP/5724/2010 with CAW/971/2011, WP/6257/2011, WP/7066/2010, WP/7506/2013, WP/7613/2010, WP/7733/2012, WP/7965/2010, WP/7966/2010, WP/7974/2011, WP/7975/2011, WP/7977/2011, WP/7993/2016, WP/8388/2013, WP/8408/2010, WP/8760/2010, WP/8765/2010, WP/9431/2017, WP/9432/2017, WP/9433/2017, WP/10029/2010, WP/10042/2010, WP/10089/2013, WP/10090/2013, WP/10091/2013, WP/10465/2011, WP/10623/2012, WP/ 10624/2012, WP/10720/2012, WP/11095/2011, WP/11381/ 2016, WP/11713/2012, WP/12579/2016, WP/14204/2016 Mr. [ENTITY] a/w Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY] for the Petitioner. Mr. [ENTITY], Senior Advocate as Special Counsel with Mr.[ENTITY], AGP for the respondent/State in all petitions. Mr. [ENTITY] for respondent No.11 in WP/546/2012. Mr. [ENTITY] for respondent No.11 in WP/2499/2011 and WP/7975/2011 and respondent Nos. 2 and 4 in WP/4105/2011, for respondent No.7 in WP/4347/2012, for respondent No.10 in WP/4358/2012, for respondent No.4 in WP/7977/2011, for respondent No.9 in WP/6257/2011. Ms.[ENTITY] i/b Mr.[ENTITY] for respondent Nos. 8 & 14 in WP/10090/2013. Mr.[ENTITY] for respondent No.14 in WP/10091/2013 SKN 7/30 8387.13-wp .doc WPST/22867/2017 Mr. [ENTITY] for the petitioner in WPST/22867/2017 Mr. [ENTITY], Sr. Adv. Spl. Counsel a/w Mr. [ENTITY], AGP for the respondent/State WP/1197/2014,WP/6823/2014,WP/3634/2016 MR. [ENTITY], Sr. Adv. Mr. [ENTITY] and Mr. [ENTITY] I/by Ms. [ENTITY] for the petitioner Mr. [ENTITY], Sr. Adv. Spl. Counsel a/w Mr. [ENTITY], AGP for the respondent/State in all petitions. WP/2192/2014, WP/3757/2014 a/w WP/1507/2016, WP/3987/2014 and WP/4306/2014 Mr. [ENTITY] for the petitioners Mr. [ENTITY] for respondent No.4 in WP/4306/2014 Mr. [ENTITY], Sr. Adv. Spl. Counsel with Mr.[ENTITY], AGP for the respondent/State in all petitions. WP/9011/2013,WP/10122/2013, WP/12082/2013, WP/910/ 2014, WP/1811/2014, WP/2468/2014 a/w WP/2838/2014, WP/3795/2014, and WP/4022/2014 Mr. [ENTITY] A/W Mr. [ENTITY] for the petitioner. Mr. [ENTITY], Sr. Adv. Spl. Counsel a/w Mr. [ENTITY], AGP for the respondent/State in all petitions. WP/10714/2013 a/w WP/10715/2013 and WP/10716/2013 Mr. [ENTITY], Senior Advocate withMr.[ENTITY] i/b. Mr. [ENTITY] for the petitioner. Mr. [ENTITY], Senior Advocate as r. Adv. Spl. Counsel a/w Mr. [ENTITY], AGP for the Respondent/State in all petitions. SKN 8/30 8387.13-wp .doc CORAM : [ENTITY] AND [ENTITY], JJ. RESERVED ON : 26th April 2018. PRONOUNCED ON : 30th August 2018. [As [ENTITY], J. is sitting at Nagpur Bench, the signed Judgment is pronounced by [ENTITY], J. as per [SECTION] of the Bombay High Court Appellate side Rules] ORDER :
(Per [ENTITY], J ) As per the order passed by the Hon'ble the Acting Chief Justice dated 7th March 2018, these petitions have been specially assigned to this Bench. Accordingly, the petitions were taken up for final disposal.
2. The issue involved in these petitions concerns applicability of pension scheme to teaching and non-teaching staff employed in recognized schools and colleges of education in the State. The entire controversy revolves around the interpretation of the Government Resolution dated 31st October 2005 (for short "the [CASE NUMBER]") and the Government Resolution dated 29th November 2010 (for short "the [CASE NUMBER]"). By the [CASE NUMBER], the State Government resolved to adopt a Defined Contribution Pension Scheme on the lines of the Government of India notification dated 22nd December 2003. It was resolved that the new Defined Contribution Pension Scheme (for short "New Pension Scheme") would be made applicable to the Government servants who are recruited on or after 1st November 2005 in the State Government SKN 9/30 8387.13-wp .doc service. The said GR records that for the purpose of the implementation of the New Pension Scheme, the State Government would join the new Defined Contribution Pension system introduced by the Government of India under its notification dated 22nd December 2003. Consequently, the [CASE NUMBER] records the decision of the State Government that the provisions of the existing pension scheme under the provisions of the [ACT] (for short "the Pension Rules") and [ACT] (for short "the Commutation of Pension Rules") would not be applicable to the Government servants who are recruited on or after 1 st November 2005.
3. The [CASE NUMBER] deals with procedural aspects of the applicability of the New Pension Scheme to the primary, secondary and higher secondary schools as well as the colleges of Education which are recognized and 100% aided. By the [CASE NUMBER], certain procedural guidelines were issued.
4. The learned counsel appearing for the petitioners stated that these petitions have been filed by the employees who have been recruited on or before 31st October 2005. Before we formulate the issues involved in these petitions, it will be necessary to make a reference to the order dated 9 th February 2018 and, in particular paragraphs-1 and 2 thereof which read thus:
"1 The learned Senior Counsel appearing for the State Government has placed on record a letter dated 8 th SKN 10/30 8387.13-wp .doc February, 2018 addressed to the learned Government Pleader by the Deputy Secretary of School Education and Sports Department. We accept the statements made in this letter. On a query made by this Court, the learned Senior Counsel appearing for the State Government on instructions makes the following statement:-
"The teaching and non-teaching employees in primary, secondary and higher secondary as well as D.Ed. Colleges who are appointed on or before 31st October, 2015 shall not be governed by the notification dated 31st October, 2005 by which the Defined Contribution Pension Scheme was made applicable. He, however, states that only those teaching and non-teaching employees who are appointed in the aforesaid institutions on or before 31st October, 2005 in 100% aided institutions will be entitled to the benefit of pension scheme which was made applicable to the said category of employees before 1st November, 2005."
2. We accept the aforesaid statements made by Shri [ENTITY] on instructions."
(emphasis added) In view of the aforesaid statement made by the learned counsel appearing for the State Government, on instructions, the controversy in these petitions has been narrowed down to some extent. The question involved in these petitions is whether the teaching and non-teaching employees recruited in aided primary, secondary and higher secondary schools as well as in colleges of education who were appointed on or before 31st October 2005 will be governed by the New Pension Scheme under the [CASE NUMBER] on the ground that as on 1st November 2005, the SKN 11/30 8387.13-wp .doc concerned schools and colleges were not receiving 100% aid. From the statement of the learned senior counsel for the State, it appears that in case of teaching and non-teaching employees who were appointed on or before 31st October 2005 in institutions which were 100% aided on or before the said date will be entitled to the benefit of the pension scheme under the Pension Rules (for short "Old Pension Scheme"). An inference can be drawn from the aforesaid statement that according to the State Government, the employees who were working in aided institutions which were not getting 100% grant on 31 st October 2005 will not be governed by the Old Pension Scheme and they will be entitled to the benefits of the New Pension Scheme when the said institutions become 100% aided after 31st October 2005. The real issue to be decided is whether to the employees who were appointed on or before 31 st October 2005 in institutions which were not getting 100% aid or in institutions which were unaided, the Old Pension Scheme or the New Pension Scheme will apply. The main submission of the learned senior counsel representing the State Government is that the aforesaid question which is required to be decided in this group of petitions is no longer res integra and the same has been decided by a Division Bench of this Court in the case of [ENTITY] and others v. State of Maharashtra and others1. It is in the light of the above controversy that a brief reference has to be made to the contentions raised across the bar.
5. The learned counsel Shri [ENTITY] appearing for the petitioners in some of the petitions relied upon the provisions of the 1 2013 (2) Mh.LJ 401 SKN 12/30 8387.13-wp .doc [ACT] (for short "[ACT]") and, in particular [SECTION] thereof. He submitted that [SECTION] of [ACT] confers a right on the employees of private schools within the meaning of the [ACT] (for short "[ACT]") to receive pension. He submitted that [SECTION] talks only about aided secondary schools and aided junior colleges and that [SECTION] does not lay down that only the employees who are employed in schools receiving 100% aid are entitled to pension. He submitted that to those employees who are governed by [ACT], the pension will be payable in accordance with [SECTION] of the [ACT]. Therefore, the employees in the recognized schools who were employed on or before 31st October 2005 in aided schools (whether receiving 100% or less than 100% grant) will be governed by the Old Pension Rules. He relied upon the Government Resolution dated 18th March 1967 under which the pension, gratuity and retirement benefits were made applicable to teaching staff in recognized aided non-government secondary schools. He submitted that under the said GR, the term "aid" is explained which means a school which is recognized by a competent authority for the purpose of receiving grant-in-aid from the Government. He submitted that no distinction can be made between the institution which was partially aided as on 31st October 2005 and an institution which was getting 100% aid on that day. He invited our attention to the decision of this Court in the case of [ENTITY] (supra). He submitted that the issue which arises in this group of petitions never arose before the Division Bench. He pointed out that in the said writ SKN 13/30 8387.13-wp .doc petition, the challenge was to the validity and legality of the [CASE NUMBER]. He invited our attention to the facts of the case. He submitted that the said decision does not lay down any law. He relied upon the decisions of the Apex Court in the cases of [PRECEDENT]; [PRECEDENT] 3; [PRECEDENT]; [PRECEDENT] 5; [PRECEDENT] and [PRECEDENT]. He submitted that the teaching and non-teaching staff in recognized schools and junior colleges which were even partially aided as on 31 st October 2005 will not be governed by the New Pension Scheme and they will be governed by the Old Pension Scheme.
6. Shri [ENTITY], the learned counsel appearing for some of the petitioners, relied upon [SECTION] of the [ACT] as well as [SECTION] thereof. He submitted that an aided school means a school which receives grant-in-aid either from the Government or from a local authority. He submitted that both the Rules do not contemplate that for a school to be an aided school, it should be receiving 100% grant-in-aid. He submitted that [SECTION] will apply to a school which was partially aided. He invited our attention to the various Government Resolutions regarding grant-in-aid to the private schools as he submitted that there 2 [PRECEDENT] 5 [PRECEDENT]-wp .doc are no statutory rules framed by the State Government dealing with the issue of sanction of aid and release of grant-in-aid to private schools. He submitted that as per the Government Resolution dated 10 th February 1989 which underwent modification by the Government Resolutions dated 11th October 2000 and 17th February 2004, the procedure for deciding an eligibility of a private school to receive grant-in-aid has been prescribed. He submitted that once the eligibility criteria is satisfied, then a private school is entitled to grant-in-aid. He urged that even if the eligibility to receive grant-in-aid is declared, as the State Government does not possess sufficient funds, initially 20% grant-in-aid is released which is gradually enhanced to 40%, 60%, 80% and 100% respectively. He submitted that, therefore, there is no basis for treating a private school as an aided school only if it is receiving 100% grant-in-aid.
7. He placed reliance on the provisions of the [ACT] (for short "[ACT]"). He submitted that under the definition of a school under [SECTION] of the [ACT], a school receiving aid or grants to meet whole or part of its expenses is an aided school. He submitted that merely because on a cut-off date, a private school is receiving less than 100% grant-in-aid, it does not cease to be an aided school. He relied upon the interpretation put by this Court to various provisions of the [ACT] in the case of [PRECEDENT]. He submitted that the schools subject matter of this group of petitions will have to be held as aided schools though they were receiving partial aid as on 31st October 2005.
8 2014 (2) Bom CR 241 SKN 15/30 8387.13-wp .doc
8. He submitted that there is no scope to read the word aid used in [SECTION] or [SECTION] of [ACT] as "fully aided" or "100% aided". He submitted that the legislature has advisedly not made a distinction between partially aided schools and fully aided schools. He placed reliance on the decision of the Apex Court in the case of [PRECEDENT]. He submitted that the law is crystal clear that the Court cannot read anything into a statutory provision which is plain and unambiguous. Inviting our attention to the Old Pension Scheme and the New Pension Scheme, he pointed out that the Old Pension Scheme was more advantageous to the employees. He relied upon the decisions of the Apex Court in the cases of [PRECEDENT] and [PRECEDENT].
9. Coming to the decision of the Division Bench in the case of [ENTITY] (supra), he urged that the Division Bench proceeded on the footing that an aided school is the one which is receiving 100% grant-in-aid. He pointed out that submissions which are made in this group of petitions based on [SECTION] and [SECTION] of [ACT] were not canvassed before the Division Bench. Even the provisions of the [ACT] and the decision of this Court in Society of St.Mary's School (supra) was not cited. He urged that the said decision 9 2002 (3) SCC 533 10 AIR 1983 SC 130 11 2011 (11) SCC 702 SKN 16/30 8387.13-wp .doc in [ENTITY] (supra) is per incuriam. He submitted that in any event, the said decision is sub-silentio, hence cannot be relied upon as a binding precedent.
10. He invited our attention to the [CASE NUMBER]. He submitted that no pension scheme was introduced by the [CASE NUMBER]. At that time, the New Pension Scheme was already made applicable to the Government employees. For the recognized private schools, the New Pension Scheme was made applicable for the first time by the [CASE NUMBER]. He submitted that by the said [CASE NUMBER], the New Pension Scheme is sought to be retrospectively made applicable to the employees of private schools with effect from 1st November 2005. On facts, he pointed out that in the petitions in which he is appearing, as on 31 st October 2005, the schools were receiving partial grant-in-aid and before the [CASE NUMBER] came into force, the concerned schools were receiving 100% aid. He submitted that the said [CASE NUMBER] cannot be retrospectively applied to those who are already in the employment as on 31st October 2005.
11. He submitted that the law relating to pension is always a beneficial legislation and, therefore, when two interpretations are possible, the one which would fructify the object and purpose of legislature must be adopted.
12. Shri [ENTITY], the learned senior counsel appearing for some of the petitioners adopted the submissions already canvassed by other SKN 17/30 8387.13-wp .doc learned counsel appearing for the other petitioners. He relied upon the decision of the Apex Court in the case of [PRECEDENT] 12 and in particular, what is held in paragraphs-68 and 69 thereof and in case of [PRECEDENT].
13. The learned senior counsel Shri [ENTITY] representing the State Government pointed out that the validity of [CASE NUMBER] was upheld by a Division Bench of this Court in the case of [ENTITY] (supra) and though SLPs are pending against the same, there is no interim relief granted. He invited our attention to the aforesaid decision in the case of [ENTITY] (supra). He invited our attention to what is held therein. He invited our attention to paragraph-3 which notes the question which arose for consideration before the Division Bench. He pointed out that in paragraph-7, the Division Bench has considered [SECTION] of the [ACT]. He pointed out paragraph-31 of the said decision which shows that the issue which arises in this group of petitions squarely arose before the said Division Bench and was answered. He submitted that as the issue which arises in this group of petitions was directly answered in that case, the issue has been concluded and as such, no interference is called for. He submitted that [SECTION] of [ACT] does not refer to partially aided schools as when the [ACT] were framed, the concept of partially aided schools was unknown. He would, therefore, submit that no interference is called for in this group of petitions and this Court will [PRECEDENT].
SKN 18/30 8387.13-wp .doc have to follow the law laid down in the case of [ENTITY] (supra).
14. We have considered the submissions. In this group of petitions, we are concerned with private schools, junior colleges and D.Ed. Colleges which were recognized and aided as on 31 st October 2005 but were not receiving 100% grant-in-aid. The question is whether the employees of such institutions are entitled to benefit of the Old Pension Scheme or that they will be governed by the New Pension Scheme after they become 100% aided. In paragraph-1 of the said decision ([ENTITY]), the Division Bench has referred to the controversy involved therein. Paragraph-1 of the said judgment reads thus:
"1. The petitioners have approached this Court challenging legality and validity of the Government Resolution dated 29.11.2010. The petitioners in all these petitions are either teachers or non-teaching staff employed by private school managements. Indisputably, when the petitioners were appointed in the schools in which they were appointed initially, were not admissible to hundred percent grant-in-aid at the time of their appointment and also on 1st November 2005. The Government of Maharashtra under various Government Resolution has made applicable the provisions contained in the [ACT] to the full-time teachers and non-teaching staff in the non-Government/private aided schools. The last of such Pension Scheme was framed under the [ACT]."
(emphasis added) SKN 19/30 8387.13-wp .doc The question which was formulated for consideration is reproduced in paragraph-3 of the said decision. Paragraph-3 reads thus:
"3. The question that arises for consideration in the present petition is, as to whether the employees who were appointed in private recognized schools prior to 1st November 2005 and whose services were approved by the Competent Authority but the Schools were not admissible to hundred percent grant-in-aid, would be governed by 1982 Rules or new DCP Scheme."
(emphasis added) In paragraph-7, the Division Bench referred to [SECTION] of the [ACT]. In paragraph-8, the Division Bench has held thus:
"8. It can thus be seen that the said rule is applicable to employees of aided secondary school, primary school and junior college of education working on full-time basis. Employees covered by [SECTION] are eligible for pension at such rates and in accordance with the rules as are sanctioned by Government specifically to the employees of private schools."
In paragraph-13, the Division Bench proceeded to formulate another question for determination. Paragraph-13 reads thus:
"13. Therefore, next question that would fall for consideration is, as to whether decision of the Government of not giving benefit to the employees who were appointed by the private management and whose services were approved but which schools were not admissible to hundred percent grant-in-aid on 1st November 2005 , is sustainable or not."
(emphasis added) SKN 20/30 8387.13-wp .doc Paragraphs-15 to 17 of the said decision read thus:
"15. The State Government has in unequivocal terms stated that it has been policy of the State to make applicable pensionary scheme only to such of the employees who were working in hundred percent aided schools. Notice is also required to be taken that only after school starts receiving hundred percent grant-in-aid, entire salary amount of the employees would be required to be paid by the Government. Till the School is made entitled to receive hundred percent grant-in-aid, the State Government is not enjoined with the responsibility of paying entire salary. It is also a settled principle of law that primary responsibility to make payment of salary to the staff is on the management. In that view of the matter, we find that decision in prescribing cut-off date of 1st November 2005 and providing that only such of the employees who are working on hundred percent aided schools prior to 1st November 2005 being entitled to the benefit of old Scheme cannot be said to be either unreasonable or arbitrary. It is only after the school is brought on hundred percent grant-in- aid basis, the employee of such school would be entitled to be equated with Government employee.
16. We find that had the Government not prescribed such a cut-off date, it would have led to anomalous situation. As already discussed hereinabove, the basic responsibility in an unaided recognized school to pay salary to its employees is on the management of the school. Taking the hypothetical situation as suggested by the counsel for petitioners, if an employee is appointed in 1998 and school comes to hundred percent grant in 2008 the question would be who would pay employer's contribution for a period of ten years. We, therefore, find that Scheme as formulated by the SKN 21/30 8387.13-wp .doc State Government is also totally workable inasmuch as employee who is receiving hundred percent salary from the public exchequer prior to 1st November 2005 is being governed by old Scheme. Had such a cut-off date not being provided for, there would have been discrimination between employees of the State Government who are appointed on or after 1st November 2005 and who are getting hundred percent salary from the State Government and the employees like the petitioner who are not getting full salary from the State Government. The Scheme has also taken care to see to it that a person who, though appointed in a school prior to 2005 and the school receives hundred percent grant-in-aid after 2005, would be entitled to enter into the new scheme as on the date on which the school comes to hundred percent grant- in-aid. In that view of the matter, we are unable to accept the contention of learned counsel for the petitioners that the Scheme is violative of [SECTION] of the [ACT] or unreasonable and arbitrary.
17. Insofar as the judgment of Division Bench of this Court in [ENTITY]'s case (supra) is concerned, the Division Bench was construing the Pension Scheme framed by the Municipal Corporation of Greater Mumbai for its employees. In the said case, the employee was appointed as Assistant Teacher in the year 1982 in a school which was initially not admissible to grant-in-aid and was brought on aided basis in the year 2001. The Corporation, however, held that she was not eligible for pension as she had not completed qualifying service after school became fully aided in the year 2005. The Division Bench held that petitioner worked in a post which was sanctioned and approved by the Education Officer. The Division Bench held that there was no warrant in the Pension Scheme to exclude while computing qualifying service, the service which is rendered by an employee before a school came to be in receipt of grant-in-aid. So long as the school was in SKN 22/30 8387.13-wp .doc receipt of grant-in-aid on the date on which an employee retired from service upon attaining the age of superannuation, the applicability of the Pension Scheme would be attracted. It was held that the petitioner was an employee of a private primary aided school on the date of retirement and was hence eligible. There, the Court was not considering the question as to whether a cut-off date which provided some employees to be governed by an earlier Scheme and some employees to be governed by the new Scheme. As such, in our view, the said judgment would not be applicable to the facts of the present case."
(emphasis added)
15. The first question for our consideration will be whether the decision in the case of [ENTITY] (supra) decides the issue which arises in this group of petitions. If it is held that the said decision decides the issue involved herein, the other question will be whether the said decision is per incuriam or whether it requires re- consideration by a larger Bench. On plain reading of the aforesaid decision and in particular, paragraphs 3 and 13 thereof, it is clear that the questions which arise in this group arose for consideration in the case of [ENTITY] (supra).
16. As far as the terms and conditions of service of the employees of private schools within the meaning of [ACT] are concerned, the same are governed by the [ACT] and [ACT]. [SECTION] of [ACT] reads thus:
"19. Pension: An employee of an aided secondary school and aided Junior College of Education working on full time basis and retiring on or after the 1 st April, 1966 and SKN 23/30 8387.13-wp .doc an employee of an aided primary school working on full time basis and retiring on or after the 1 st April, 1979 but who have opted for pension and the employee appointed on or after the above mentioned respective dates shall be eligible for pension at the rates and in accordance with the rules as are sanctioned by Government specifically to the employees of private schools."
(underlines supplied) [SECTION] is applicable to the employees of an aided secondary school and an aided junior college of education. An aided school which include secondary school and junior college is defined in [SECTION] which reads thus of the said Rules of 1981:
"2. Definitions- (1) In these rules, unless the context otherwise requires,
(b) "aided school" means a school which receives grant-in-aid either from Government or a local authority"
Neither the [ACT] nor the [ACT] contain definition of "grant- in-aid" or "grant". On this aspect, reliance was placed on the decision of the Division Bench of this Court in the case of Society of St.Mary School (supra). In the said decision, this Court considered the meaning of "aid" or "grant" under the provisions of the [ACT] in the context of clause
(n) of section 2 of the [ACT]. [SECTION] of the [ACT] reads thus:
"2. Definitions. In this Act, unless the context otherwise requires,
(n) "school" means any recognised school imparting elementary education and includes
SKN 24/30 8387.13-wp .doc
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"
(emphasis added) In the context of the provisions of the [ACT], it was held that aid or grant to a school within the meaning of the [ACT] has to be for meeting the whole or part of its expenses.
17. The Government Resolution dated 4th November 1968 was issued by which pension, gratuity and other retirement benefits admissible to the Maharashtra State Government servants under the revised [ACT] were made applicable to the full-time teaching staff in recognized and aided non-government secondary schools in the State who were to retire on or after 1 st April 1966. The said Government Resolution dated 4th November 1968 does not throw any light on the meaning of "aid". [SECTION] of the said Government Resolution provides that a non-government secondary school includes an Indian English middle school, a middle school declared as secondary school, a multipurpose higher secondary school, a vocational or technical high school or a higher secondary school managed by a private body, and recognized by a competent authority as SKN 25/30 8387.13-wp .doc such for the purpose of grant-in-aid from the Government. The said Government Resolution does not lay down that for applicability of the pension scheme, the school must be receiving 100% grant-in-aid. Thereafter, another Government Resolution was issued on 14 th February 1972 which essentially deals with the applicability of pension scheme to unaided non-government secondary schools. The said Government Resolution indicates that if such schools are subsequently brought into category of the schools receiving grant-in-aid, the teachers will be entitled to pension scheme subject to the terms and conditions set out in the said Government Resolution. In fact, it provides that in such cases, services rendered by the teachers in the secondary school during the period when it was unaided will have to be taken into consideration for fixing the pension.
18. It will be necessary now to refer to [CASE NUMBER]. Clause- 3 of the said GR states that while making applicable New Pension Scheme to the government employees with effect from 1 st November 2005, the State Government was contemplating of preparing exhaustive scheme dealing with the teaching and non-teaching employees of 100% aided posts in private primary, secondary, higher secondary schools and colleges of education. The said government resolution records that a decision is being taken in respect of those recognized aided primary, secondary, higher secondary schools and colleges of education to which old pension is applicable. In case of employees appointed after 1 st November 2005 or thereafter, an authority is being established. The resolution nowhere deals with the issue whether the employees who SKN 26/30 8387.13-wp .doc were employed prior to 1st November 2005 in aided schools which were receiving less than 100% grant-in aid were eligible for the benefit of the Old Pension Scheme.
19. Now, we turn to the decision of this Court in the case of [ENTITY] (supra). We have quoted the relevant paragraph thereof earlier. In paragraph-11 and 12 of the said decision, the Bench observed thus:
"11. It would be seen that the petitioners are not deprived of right to pension. The only question is, as to whether they would be entitled as a matter of right to be governed by 1982 Rules though the Government has brought into effect new Scheme from 1st November 2005.
12. As already discussed hereinabove, on the basis of [SECTION] of the [ACT], the petitioners at the most can claim right to pension at the rates and in accordance with the rules as are sanctioned by Government specifically to employees of private schools. It is also not in dispute that the Government has abandoned the Scheme as framed under 1982 Rules and has formulated new Scheme vide Government Resolution dated 31st October 2005."
In paragraph-15, the Division Bench recorded the stand of the State Government which reads thus:
"15. The State Government has in unequivocal terms stated that it has been policy of the State to make applicable pensionary scheme only to such of the employees who were working in hundred percent aided schools "
SKN 27/30 8387.13-wp .doc We must note here that in these petitions, the State Government has not placed on record any such policy decision.
20. Prima facie, it appears to us that [CASE NUMBER] does not deal with the issue whether the employees of the schools who were employed prior to 1st November 2005 which were aided but were receiving less than 100% aid are entitled to benefit of the Old Pension Scheme under the Pensions Rules and Commutation of Pension Rules. There are various categories of recognized and aided schools. The first category of schools which were receiving 100% aid on or before 31 st October 2005 does not pose any problem. Admittedly, those who were employed in such schools prior to 1st November 2005 and were otherwise eligible will continue to be governed by the Old Pension Scheme notwithstanding Government Resolutions of the year 2005 and 2010. The second category is of the schools which were aided on 31 st October 2005 but were not receiving 100% grant on the dates on which Government Resolutions of 2005 and 2010 were brought into force. The third category is of schools which were receiving less than 100% grant-in-aid on 1st November 2005 but started receiving 100% grant-in-aid before the [CASE NUMBER] came into force i.e. on or before 29 th November 2010. The [CASE NUMBER] does not deal with employees of schools at all. Therefore, the question will be whether the employees who were employed prior to 1st November 2005 in partially aided schools which became fully aided after 1st November 2005 will be governed by the Old Pension Scheme governed by the Pension Rules or a New Pension Scheme. This issue squarely arises as the State Government has purportedly made the GR of SKN 28/30 8387.13-wp .doc 2005 applicable to the employees of the schools by virtue of the [CASE NUMBER]. We find that the Division Bench in the case of [ENTITY] (supra) has not considered the question whether the word "aid" in [SECTION] of [ACT] means 100% aid. Moreover, the [ACT] do not provide that the benefit of the pension will be available only to the employees of 100% aided schools. Prima facie, it appears to us that the New Pension Scheme was not made applicable to the employees of the aided recognized primary, secondary and higher secondary schools as well as colleges of education till the date of coming into force of the [CASE NUMBER]. All these aspects were not brought to the notice of the Division Bench while deciding the case of [ENTITY].
21. Prima facie, we find that the Old Pension Scheme appears to be more beneficial to the employees than the New Scheme. Considering what we have discussed above, it will be appropriate if the entire issue is considered by a larger Bench. Being a co-ordinate Bench, we are bound by the view taken by [ENTITY] (supra). It will be inappropriate to take a view which is different than the view taken by [ENTITY]. There is a reference in the said decision to [SECTION] of [ACT] and relevant Government Resolutions. Therefore, prima facie, the submission that the said decision is per incuriam or sub silentio cannot be accepted. In any event, considering the importance of the issues, the decision thereon will affect large number of teachers in the State. Hence, We are of the view that it will be more appropriate if the issues are decided by a larger Bench.
SKN 29/30 8387.13-wp .doc
22. We are of the view that following questions deserve to be decided by a larger Bench:
1. Whether only those schools and colleges of education which are receiving 100% aid can be termed as the aided institutions or whether schools and colleges of education receiving less than 100% aid can also be termed as aided institution?
2. Whether the employees who were appointed prior to 1st November 2005 in the aided recognized primary, secondary and higher secondary schools as well as colleges of education which were receiving less than 100% grant-
in-aid as on 1st November 2005 are entitled to the benefit of Old Pension Scheme under the Pension Rules and the Commutation of Pension Rules or whether they will be governed by the New Pension Scheme under the [CASE NUMBER]?
3. Whether the employees who were appointed prior to 1 st November 2005 in the aided recognized primary, secondary and higher secondary schools as well as the colleges of education which were receiving less than 100% grant-in-aid as on 1st November 2005 but which became 100% aided before the date on which the [CASE NUMBER] came into force, are entitled to the benefit of Old Pension SKN 30/30 8387.13-wp .doc Scheme under the Pension Rules and the Commutation of Pension Rules or whether they will be governed by the New Pension Scheme under the [CASE NUMBER]?
23. The ad-interim relief/ interim relief which is operating in this group of petitions will continue to operate till further orders.
24. We direct the Registrar (Judicial-I) to place these petitions before the Hon'ble the Acting Chief Justice in accordance with [SECTION] of the Bombay High Court (Appellate Side) Rules for deciding the question of placing the aforesaid issue before the larger Bench.
([ENTITY], J.) ([ENTITY], J.)