1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4578 OF 2009 Dr. Vasudeo s/o Shankarrao Mulate, age 70 years, occupation : retired Govt.Servant, r/of "Aksshar" 858, Sahyadri Nagar, CIDCO, Aurangabad. Petitioner. versus 01. The State of Maharashtra, through the Secretary, Higher Education Department, Mantralaya, Mumbai-32 02. The Director, Higher Education Department, Maharashtra State, Pune-1. 03. The Joint Director,Higher Education, Aurangabad Region, Aurangabad. 04. Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, through its Registrar. 05. The Accountant General (A & E-II), Nagpaur, Maharashtra. 06. The Secretary, Finance Department, Mantralaya, Mumbai-32. Respondents -------------------------------------------------------- Shri P. G. Deshmukh, Advocate, holding for Shri H.A. Joshi, Advocate for Petitioner. Shri D.V. Tele, Assistant Government Pleader for Respondent Nos. 1 to 3, 5 and 6. Shri K.M. Suryawanshi, Advocate, for Respondent No. 4. -------------------------------------------------------- 2 Coram: S.B.Deshmukh & Shrihari P. Davare, JJ. Judgment reserved on : 11th October, 2010. Judgment pronounced on : 14th October, 2010. Judgment (Per: Shrihari P. Davare, J). 01. Rule. Rule made returnable forthwith and with the consent of learned counsel for the parties, petition is taken up for final hearing at the admission stage itself. 02. By the present petition filed under Article 226 of the Constitution of India, the petitioner has prayed as follows; "B. It be held and declared that, the petitioner is entitled for compensatory pension under Rule 62 (4) of the Maharashtra Civil Services (Pension) Rules 1982; C. By issue of Writ of mandamus or any other appropriate writ, order or direction in like nature, the respondent No.1 be directed to regularize the service of the petitioner of 3 the period 30/12/1998 to 31/12/1999 and further respondent No.5 be directed to grant compensation pension to petitioner treating him eligible. C-1. By issue of writ of mandamus or any other writ, order or directions in the like nature, the Respdts. may kindly be directed to grant pension in favour of petitioner treating as "Special Case" as per Rule 23 of the Maharashtra Civil Services (Pension) Rules, 1981." 03. The petitioner is a retired employee of Respondent No.4-University and claims that he worked in various grant-in-aided colleges during his service career i.e. from 23.10.1978 to 18.11.1998. The petitioner also states that on 19.11.1997, he joined as Reader with Respondent No.4-University, on temporary basis for the period of one year and on completion of the said period of one year, Respondent No.4 discharged the petitioner on 18.11.1998 from the services. Respondent No.1 is the State of Maharashtra, represented through the Secretary, Higher Education Department, 4 Mantralaya, Mumbai, and Respondent No.2 is the Director, Higher Education, Maharashtra State, Pune, whereas Respondent No.3 is the Joint Director, Higher Education, Aurangabad Region, Aurangabad, and Respondent No. 4 is Dr. Babasaheb Marathwada University, Aurangabad, represented through its Registrar. Respondent No. 5 is the Accountant General (A and E-II) Nagpur, Maharashtra, whereas Respondent No. 6 is the Secretary, Finance Department, Mantralaya, Mumbai. 04. The Petitioner, by present petition, seeks directions to the Respondents to consider his service as qualifying service for grant of pension under Rule 62(4) of the Maharashtra Civil Services (Pension) Rules, 1982 ("MCS (Pension) Rules" for brevity). Accordingly, proposal for grant of pension to him, as per said Rule 62(4) of the MCS (Pension) Rules, was submitted to Respondent No.1 through proper channel, on 24/4.2002. However, Respondent No.1 raised certain queries in respect of the said proposal, which were satisfactorily complied with by the Petitioner and Respondent Nos.2 to 4. It is the contention of the Petitioner that apparently, Respondent No.1 was convinced about the entitlement of the petitioner to the grant of pension as 5 per said Rule 62(4) of the MCS (Pension) Rules. Accordingly, the said proposal was forwarded to Respondent No.6-Secretary, Finance Department. However, Respondent No. 6 held that the petitioner was not entitled to the grant of pension and took decision to that effect, on 24.7.2007, as the case of the petitioner did not come under the purview of Rule 62(4) of the MCS (Pension) Rules. 05. According to the petitioner, decision of Respondent No.6 is erroneous and unsustainable, since the petitioner was discharged from his services without there being any fault on his part. Moreover, the petitioner was due to retirement on 31.12.1999 on attaining superannuation, but since the approval to his services was only for a period of one year, he was discharged from his duty, on 18.11.1998 and, therefore, the petitioner could not complete 20 years service and hence, it is his contention that he is entitled for grant of pension under Rule 62(4) of the MCS (Pension) Rules as he was discharged from the government service for no fault on his part and hence, it is the contention of the petitioner that his case is covered under the said rule. It is also the contention of the petitioner 6 that Respondent No.6 failed to consider rule 62(4) of the MCS (Pension) Rules in its proper perspective and thus caused injustice to the petitioner. 06. Besides that,the petitioner also contends that he had completed 19 years service and possessed Ph.D. qualification and, therefore, in view of clause 25 of the Govt.Resolution dated 11.12.1999 which says that the incumbent who has acquired Ph.D. at the time of entry in service would get benefit of period upto maximum of three years, and if such benefit of three years is extended to the petitioner, his service would be of 19 years plus 3 years which comes to total service of 22 years,thereby enabling him to get compassionate pension. 07. The petitioner also amended the present petition, and contended that he is a renowned literary person and his 35 books are published and many of his books are referred in the curriculum of colleges, as well as University and, therefore, the Education Department had already recommended his case for grant of pension, as a "special case", under Rule 23 of the MCS (Pension) Rules. Hence, the petitioner has filed the present petition for the prayers as set-out hereinabove. 7 08. Respondent Nos. 1 to 3 have filed affidavit- in-reply which is sworn by one Mohammed Fayyaz, presently working as Joint Director, Higher Education, Aurangabad Region, Aurangabad and thereby denied the claim of the petitioner, contending that as per the administrative procedure of the government, the matter was referred to the Finance Department i.e. Respondent No.6, which has taken a decision holding that the petitioner is not entitled to pension as his case does not come under the purview of Rule 62(4) of the MCS (Pension) Rules. It is also stated by Respondent Nos.1 to 3 that Rule 62 (4) of the MCS (Pension) Rules provides classes of pension and conditions governing their grant, however, petitioner's case is not covered by the classes of pension and conditions as provided under Rule 62(4) of the MCS (Pension) Rules, since the petitioner did not retire on attaining age of superannuation, but was discharged from the duty. Accordingly, Respondent Nos. 1 to 3 submitted that there is no substance in the contentions of the petitioner and,therefore,present petition deserves to be dismissed. 09. Respondent No.4 has also filed affidavit-in- reply, which is affirmed by one Pushpa Baburao 8 Somvanshi, Deputy Registrar, Dr. Babasaheb Ambedkar Marathwada University, Aurangabad and thereby supported the claim of the petitioner. It is submitted by Respondent No.4 that after completion of one year's service as a Reader as mentioned in the order, which was for the period of one year only, the petitioner was relieved by letter dated 18.11.1998, after completion of period of one year and although in the relieving letter dated 18.11.1998 it was mentioned that the services of the petitioner "stands terminated", the University- Respondent No.4, by corrigendum dated 1/15.01.2008, deleted the words "stands terminated" and corrected the the said relieving letter. It is also submitted by Respondent No.4 that, it informed Respondent No.3 that the petitioner, otherwise, would have retired on 31.12.1999 on attaining age of superannuation and requested Respondent No. 3 to forward the proposal for grant of pension to the petitioner, to Respondent No.5. 10. Accordingly, Respondent No.4 submits that as it had appointed the petitioner on the post of Reader for one year and since he was relieved on 18.11.1998, the petitioner was discharged from the service, without there being any fault of him and hence, his case comes 9 under the purview of Rule 62(4) of the MCS (Pension) Rules. 11. Respondent Nos. 1 to 3 also filed additional affidavit-in-reply on 28.9.2010, which is sworn in by Mohammed Fayyaz, presently working as Joint Director, Education, Higher Education, Aurangabad Region, Aurangabad, and stated that the petitioner has filed the present petition, praying for compassionate pension under Rule 62(4) of the MCS (pension) Rules. It is also stated that while hearing the matter on 15.2.2010, this Court had directed Respondent Nos. 1 and 2 as under; "....case of the petitioner cannot be made fit in any of the provisions of either 62(4), 63(10) or 81 of the MCS (Pension) Rules. However, there is one Section 23 of the said rules, wherein it is clearly mentioned that, if the Government thinks fit then in exceptional circumstances, the Government has power to grant pension and may consider the same." 12. Hence, Respondent Nos. 1 to 3 submitted that, in view of directives of this Court as above, the State Government has considered the issue of the services of the petitioner for the period 19.11.1978 to 18.11.1997 10 (excluding period of temporary services from 19.11.1997 to 18.11.1998 on the post of Reader) as admissible for pension purpose, taking into consideration the provisions of Section 23 of the MCS (Pension) Rules. 13. Accordingly, it is stated in the additional affidavit-in-reply that Respondent No. 1 has issued the Govt. Resolution dated 14.9.2010 granting pension to the petitioner, and consequently, it also sent a letter dated 24.9.2010 (Exhibit R-II) to the Registrar of Respondent No.4-University, informing to submit pension papers of petitioner based on the said Govt.Resolution dated 14.9.2010 so as to enable Respondent Nos. 1 to 3 to forward the same to the Accountant General, Nagpur-II i.e. Respondent No.5 for sanction and release of pension. Copies of the said Government Resolution dated 14.9.2010 and the letter dated 24.9.2010 are annexed as Annexures R-1 and R-II respectively, to the additional affidavit-in-reply. It is further stated in the additional reply that after receipt of the proposal in respect of grant of pension from the office of Respondent No.4-University, immediately the same would be forwarded to Respondent No.5-Accountant General, Nagpur for sanction and release of pensionary benefits. 11 14. We have perused the contents of the present petition, annexures thereto, affidavits-in-reply filed by Respondent Nos.1 to 3 and 4, as well as additional affidavit-in-reply and its annexures i.e. the Govt. Resolution dated 14.9.2010 and the letter dated 24.9.2010 as referred to hereinabove,and also considered the submissions advanced by learned counsel for the parties, but after perusal of record and proceedings, we did not find any directions issued by this court on 15.2.2010 as referred in the above referred G.R.dated 14.9.2010.Apart from that,it is amply clear from the additional affidavit-in-reply dated 28.9.2010 filed on behalf of Respondent Nos.1 to 3, and also the Government Resolution dated 14.9.2010 issued by Respondent No.1 and the letter dated 24.9.2010 sent by Respondent No.3 to Respondent 4-University, that those are self explicit which address the grievance of the petitioner and support and serve the cause of the present petition and, therefore, the petition deserves to be allowed partly in terms of prayer clause C-1 and requires to be disposed of, accordingly. However, simultaneously, since the petitioner was required to approach this court,by way of present petition and since Respondent No. 1 has, after substantial period, come out with the 12 aforesaid Govt. Resolution dated 14.9.2010 granting pension to the petitioner as stated therein, the aspect of grant of interest, if any, thereon, is required to be kept open as canvassed by the learned counsel for the petitioner, while disposing of the present writ petition. 15. In the result, in the light of issuance of the Government Resolution dated 14.9.2010 by Respondent No.1 and the letter dated 24.9.2010 by Respondent No. 3 to Respondent No.4, present petition is allowed partly in terms of prayer clause C-1 thereof and stands disposed of accordingly, but keeping open the claim of the petitioner for interest, if any, thereon. 16. In the facts and circumstances, there shall be no order as to costs. Rule made absolutely in aforesaid terms. sd/- sd/- (SHRIHARI P.DAVARE,J.) (S.B.DESHMUKH,J.) /authenticated copy/ (P.N.Deshpande) Private Secretary to Hon'ble Shri Justice Shrihari P. Davare pnd/wp4578.09 13