1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.7560 of 2004 Smt.Vijaya Vinayak Soman .. .. Petitioner v/s. The State of Maharashtra & ors .. .. Respondents Mr.V.G. Mujumdar for petitioner. Mrs.M.P.Thakur , AGP. ---- CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Dated : 18 th January 2008 P.C. : 1. This is a petition of 2004. Petitioner's case is that she was appointed on 2.8.1978 as part- time clerk in Adarsh Marathi Shala at Satara. The said school is managed by Hingne Stree Shikshan Sanstha, Pune. On 15.3.1986, respondent No.5- Secretary, Hingne Stree Shikshan Sanstha sent a letter to the department of education and recommended that appointment of the petitioner as full time clerk in the said post be approved. The petitioner was then appointed as full time clerk with effect from 15.3.1986. It appears that 2 thereafter the petitioner's services were terminated by order dated 23.6.1987. The petitioner challenged her termination. She was ordered to be reinstated by the School Tribunal. The School Tribunal while reinstating the petitioner directed that the petitioner be continued in service as a full time clerk. The respondents challenged the order of the School Tribunal in the High Court. The High Court dismissed the writ petition. The order of the School Tribunal was confirmed by the High Court. However, after reinstating the petitioner, the respondents did not pay to the petitioner her salary arrears, D.A., HRA, gratuity, etc and her pension papers were not prepared in time. On 19.3.1998, a letter was sent to the petitioner informing her that since her qualifying service was less than ten years she was not entitled to the pension. The petitioner is aggrieved by denial of pension to her. According to her, she was a part time clerk in a substantive post from 2.8.1978 to 12.8.1982 as a probationer. She was deemed to be confirmed after 12.8.1980. From 15.3.1986 to 31.3.1987 and till 1.6.1998 3 when she reached her superannuation her appointment as full time clerk was against a permanent vacancy and since the date of her initial appointment i.e. 2.8.1978 her total qualifying service was nearly 16 years and, therefore, she is entitled to pension. 2. The case of the respondents as stated in the affidavit filed by Mr.Sarjerao Krishna Jadhav, Deputy Director of Education, Kolhapur Region, Kolhapur appears to be that employment of the petitioner as part time clerk was never approved by the Government. She has worked from 2.8.1978. The part time post which she held from 12.8.1978 to 14.3.1986 was not an approved and sanctioned post. The management had appointed the petitioner of their own as part time clerk and paid honourium to her and, therefore, that period cannot be included in her qualifying period for payment of pension. 2. Learned counsel for the petitioner has drawn our attention to an order of this court in Writ Petition No.2595 of 2000 dated 25 th September 2000 passed by a Division Bench of this court consisting of B.P.Singh , C.J. & 4 Dr.D.Y. Chandrachud, J. In that order, undoubtedly, reference is made to Note 1 of Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982. However, the Division Bench has not laid down any proposition that such a service should be counted as a qualifying service for pension. Referring to the rule on which learned counsel has placed reliance, the Government was directed to consider the representation of the petitioner. In the facts of this case, we feel that we should do likewise. Learned counsel for the petitioner states that the petitioner will make a representation to the State Government within a period of six weeks from today. If such representation is made, the State Government shall consider it in accordance with law, more particularly having regard to Rule 57 Note 1 of the Maharashtra Civil Services (Pension) Rules, 1982 and communicate result thereof to the petitioner. We make it clear that we have not expressed any opinion on the merits of the case. The State Government shall take its decision independently. 5 3. The petition is disposed of in the aforestated terms. (SMT.RANJANA DESAI, J.) (SMT.ROSHAN DALVI, J.)