- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5461/1998 Bhaga @ Bhagwan s/o Shankar Bagul, age 68 yrs., occu.nil, r/o Navegaon, Bhimnagar, at post & Tal.Chalisgaon Dist.Jalgaon. Since deceased through L.R. Smt.Vimalbai w/o Bhagwan Bagul, age 68 yrs., occu.household, r/o c/o Suchita Bhagwan Bagul, Sapta Shrungi Nagar, Bhadgaon Road, Takli (Pracha), Chalisgaon. Tq.Chalisgaon Dist.Jalgaaon. ...Petitioner.. Versus 1] The State of Maharashtra. 2] The Administrative Officer, Nagar Parishad Shikshan Mandal, Chalisgaon Tq.Chalisgaon Dist.Jalgaon. 3] Deputy Chief Auditor (Lower Grade), Local Fund Audit, Late Bhikamchand Jain Market, IInd Floor, Chalisgaon, Jalgaon. Dist.Jalgaon. 4] Deputy Chief Auditor, Local Funds Audit, Kokan Bhavan, 6th Floor, New Mumbai – 400 614. ...Respondents... - 2 - ..... Shri P.R. Patil, Advocate for petitioner. Smt.Rekha K. Ladda, AGP for respondent nos.1 to 4. ..... CORAM: B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE: 05.08.2010 ORAL JUDGMENT (Per Gavai, J.): 1] Heard counsel for the parties. 2] By way of present petition, the petitioner claims for grant of pension to the petitioner and for direction to pay the arrears towards pension with increments and consequential benefits from 1.2.1978. Since the original petitioner has died, the present petition is prosecuted by wife of the present petitioner. Since the claim involved is pecuniary in nature, wife of the petitioner has been permitted to prosecute the present petition. 3] The petitioner was working with the respondent no.2 as Assistant Primary Teacher. On 30.1.1978, the petitioner submitted an application for voluntary retirement, which came to be sanctioned vide the resolution of the respondent no.2 – Municipal Council dated 18.2.1978. It is pertinent to note that along with the - 3 - application, the application of one Shri Jagtap, who had also taken voluntary retirement, was also sanctioned. The petitioner thereafter was granted interim pension of Rs.50/- per month. However, on 30.6.1978, the respondent no.3 raised an objection that the petitioner was not entitled for pension treating his application as resignation. The petitioner received communication from respondent no.2 dated 8.8.1978 informing him about the decision of respondent no.3. 4] The petitioner thereafter made various representations for grant of pension and there was some communication between the respondent nos.2 & 3. Since the petitioner was not granted pension, the petitioner has approached this Court. 5] Shri P.R. Patil, learned counsel appearing on behalf of the petitioner, submits that the pension scheme was made applicable to the employees of Municipal Council in the year 1965. He submits that vide the Government resolution dated 4.3.1978, a scheme of voluntary retirement for Government employees was introduced wherein a Government employee could take a voluntary retirement after completion of 30 years. He submits that since the rules regarding pension were already applicable to the employees of Municipal Council, the Government resolution dated 4.3.1978 was also equally applicable. He further submits that vide the circular dated 21.7.1990, the scheme of voluntary retirement has been specifically made applicable to the teachers working in the Municipal schools. - 4 - 6] Relying on the judgment of the Apex Court in the case of D.S. Nakara & others V/s Union of India (AIR 1983 SC, 130), the learned counsel submits that an artificial cut off, which denies the benefit to the persons retiring after the cut off is not permissible in law. The learned counsel further submits, relying on the judgment of Division Bench of this Court in the case of Trimbak Sangramappa Kadge V/s State of Maharashtra & others [ 2003(2) Bombay Cases Reporter, 231 ], that since 1978 Government resolution would be automatically applicable to the employees of the Municipal Council, the denial of benefit of voluntary retirement scheme on the ground that the scheme after completion of 20 years of service is made applicable only by 1990 resolution, is not sustainable in law. 7] Smt.Rekha K. Ladda, learned AGP appearing on behalf of the respondents, submits that since the petitioner was not found eligible in accordance with the Government resolution, the petitioner has rightly been denied the pensionary benefits. 8] Without going into the rival issues raised by the petitioner, we find that the petition is required to be allowed on a short ground. It is to be noted that the petitioner as well as one Trimbak Mahala Jagtap had tendered their voluntary resignations simultaneously. The resolution was also passed by the respondent no.2 on the same date i.e. 18.2.1978 thereby accepting their voluntary retirement. It is pertinent to note that an identical objection was raised by the respondent no.3 in respect of said Shri Jagtap so also the present petitioner on the ground that the - 5 - petitioner and said Shri Jagtap had not taken voluntary retirement, but had resigned from the services and as such they are not entitled to grant of pension. It further appears that said Shri Jagtap had threatened to go on hunger strike. It, thus, appears that the respondent no.2 had moved the respondent no.4 with respect to the case of said Shri Jagtap. Vide their letter dated 31.12.1980, the respondent no.4 has communicated the respondent no.2 that necessary corrections were carried out in respect of said Shri T.M. Jagtap and paragraph 6(A) has been deleted from the audit report of the year 1977-78. It can be seen from the said communication that it has been stated that on perusal of the documents, it revealed that said Shri Jagtap had not given resignation as per his own wish. It is further stated that in the said application itself, said Shri Jagtap had requested for retirement and grant of pension. We have perused the application of the present petitioner. It is pari materia same with the application made by said Shri Jagtap. The petitioner had also specifically stated in the application that he is giving up his services on his own accord and seeking voluntary retirement. He has also specifically requested in the said communication that necessary steps for grant of terminal benefits and pension should be taken. The perusal of the document, which is annexed as Annexure R-4 to the affidavit in reply filed on behalf of the State, would reveal that the objection taken by the respondent no.3 is identical, both in the case of said Shri Jagtap and in the case of the petitioner. We find that when in similar circumstances, the respondents have found that said Shri Jagtap was entitled for pensionary benefits, it was not permissible to deny the same to the petitioner. In our view, this would be totally discriminatory and as such violative of - 6 - Article 14 of the Constitution of India. On this short ground, we are inclined to allow the petition. 9] In the facts and circumstances of the present case, we are not inclined to issue any direction regarding payment of arrears since the petitioner has already expired. 10] The Rule is, therefore, made absolute by directing the respondents to immediately make applicable pensionary benefits to wife of the deceased petitioner along with increments and consequential benefits, if any. It is clarified that the pensionary benefits that are being granted to the petitioner now would be on par with those which were granted in case of said Shri Jagtap, except the payment of arrears. Necessary action in this regard shall be taken within a period of three months from today. In the facts and circumstances of the present case, no order as to costs. (S.V. Gangapurwala, J.) (B.R. Gavai, J.) ndk/c58109