1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2016 of 2010 1. Shivaji s/o Jyotiba Pawar, Age: 74 years, Occ. Service (Retired - Mistry, Tq. Rahuri, Dist. Ahmadnagar) R/o.MPKV Post, Vidyapith, Tq. Rahuri, Dist. Ahmadnagar. 2. Chabu s/o Kishan Gayke, Age 72 years, Occ. Service ( Retired - Mistry, Tq. Rahuri, Dist. Ahmadnagar), r/o. Khadambe BK. Vidyapith, Tq.Rahuri, Dist. Ahmadnagar. ...PETITIONERS VERSUS 1. The State of Maharashtra, Through Its Principal Secretary, Agriculture and Animal Husbandry, Dairy Development & Fisheries Dept., Mantralaya, Mumbai 32. 2. The Principal Secretary, Finance Department, Mantralaya, Mumbai 32. 3. The Director General, Maharashtra Agriculture Education and Research Council, Pune. 2 4. The Vice Chancellor, Mahatma Fule Krishi Vidyapith Post Vidyapith Tq.Rahuri, Dist. Ahmadnagar. 5. The Vice Chancellor, Marathwada Krishi Vidyapith, Parbhani, Dist. Parbhani. ...RESPONDENTS ... Mr.(Dr.) S.K.Patil, Adv., for the petitioners. Mr.K.M.Suryawanshi, AGP, for respondent Nos. 1 to 3. Mr.Manish N.Navandar, Adv., for respondent No.4. Mr.S.K.Kadam, Adv., for respondent no.5. ... CORAM: B.R.GAVAI AND K.U.CHANDIWAL, JJ. DATE :21/9/2010 *** COURT's ORDER: (Per B.R.Gavai, J.) 1. Rule. Rule made returnable and heard forthwith. 2. By way of present petition, the petitioners pray for direction to the respondents to calculate the service rendered by them between 30th April 1971 to 29th Oct.,1983 and treating the 50 per cent of the service earlier rendered 3 admissible for pensionable service. 3. Undisputed facts, giving rise to the present petition, are as under: 4. Petitioners were working on Work Charge basis w.e.f. 30th April 1971 to 29th Oct.,1983. Vide order dt.29th Oct.,1983, respondent no.4 appointed the petitioners on regular establishment in the newly sanctioned post. The petitioners retired on superannuation on 31.5.1992 and 31st Dec.,1996, respectively. Since the petitioners were not given pensionery benefits, they made various representations. When the petitioners' representations were not considered, petitioners filed writ petition nos. 5321/2006 and 5322/2006 before this Court. The said petitions were disposed of by this Court vide order dt.3rd Feb.,2009. The respondent University had made a statement before this Court that the University had sought a clarification from the Government as to whether the petitioners could be given advantage of the pensions or not. In the light of this statement, the petitions were disposed of with a direction to the State Government to decide the issue within four months from the date of the order. The State Government, vide order dt.6th August, 2009, informed the University that the pensionery benefits could not be made applicable to the 4 petitioners. Hence, the present petition. 5. Shri (Dr.) S.K.Patil, learned Counsel appearing on behalf of the petitioners, states that in view of Rule 57(c) and Note (1) thereof, of Maharashtra Civil Services (Pension) Rules, 1982, half service rendered by the petitioners prior to the petitioners being brought on regular pensionable establishment is liable to be included for the purpose of grant of pensionery benefits. He submits that if this is done, the service of the petitioners would be more than ten years and they would be entitled to the pension. Learned Counsel relies on the judgment of the Division Bench of this Court in Writ Petition No. 1542/2008, dt.25th August, 2010 (Waliuddin s/o Pashasaheb), and in the cases of Parshuram Vithoba Bhandare Vs. State of Maharashtra and another ( 2001(4) Mh.L.J.587) and Shivappa s/o Bhujangappa Bembale Vs. State of Maharashtra and another ( 2005(3) Mh.L.J. 709). 6. Shri M.N.Nawandar, learned Counsel appearing on behalf of the respondent University and Shri K.M.Suryawanshi, learned A.G.P. appearing on behalf of respondent State, vehemently opposed the petition. It is submitted by them that the posts on which the petitioners were given fresh appointment in 1983 were not the posts converted but were newly sanctioned posts 5 and, as such, the petitioners were not entitled for the benefit of Rule 57(c). 7. Rule 57 and Note (1) of the Maharashtra Civil Services (Pension) Rules, 1982, reads thus: "57. Non Pensionable Service: As exceptions to Rule 30, the following are not in pensionable service: (a) Government servants who are paid for work done for Government but whose whole time is not retained for the public service, (b) Government servants who are not in receipt of pay but are remunerated by honoraria, (c) Government servants who are paid from contingencies, (d) Government servants holding posts which have been declared by the authority which created them to be non- pensionable, (e) Holder of all tenure posts in the Medical Department, whether private practice is allowed to them or not, when they do not have an active or suspended lien on any other permanent posts under Government. NOTE 1: In case of employees paid from contingencies who are subsequently brought on a regular pensionable establishment by conversion of their 6 posts, one-half of their previous continuous service shall be allowed to count for pension." 8. It can, thus, be seen that the Government servants who are paid from the Contingency, are not entitled for the pensionery benefits. However, perusal of Note (1) would make it clear that, in case of employees who are paid from Contingencies, who are subsequently brought on regular establishment by conversion of posts, one half of the previous continuous services shall be entitled to be counted for the purpose of pensionery benefits. Perusal of the order dt.29th Oct.,1983, would reveal that the petitioners, who were earlier working as Mistri, on Work Charge Establishment, were given appointment by protecting their pay scale and grade, on regular establishment, in the newly sanctioned posts. It can, thus, clearly be seen that even prior to order dt.29th Oct.,1983, the petitioners were working as Mistri and, subsequently, again, after their appointment on regular basis, they were working on the post of Mistri. It is, thus, clear that the posts on which the petitioners were working as Mistri, were converted into regular posts on which the petitioners were appointed. It is, thus, clear that in view of this factual position, the petitioners are entitled to benefit of Note (1) 7 of Rule 57 of the said Rules. The reliance placed by the learned Counsel on the aforesaid judgment of the Division Bench of this Court, cited supra, is well placed. We are unable to accept the contention of the respondents that the posts of the petitioners were not converted, their appointments were fresh on the newly created posts. For the reasons which we have given here-in-above, we are unable to accept the contention. In that view of the matter, petition succeeds. 9. The respondent no.4 is directed to calculate the services rendered by the petitioners on Work Charge basis prior to regular appointment on 29th Oct.,1983, and calculate half of such service for calculating the pensionery service of the petitioners and give them the benefits of Pension in accordance with law. Rule made absolute in above terms. (K.U.CHANDIWAL) (B.R.GAVAI) JUDGE JUDGE ... AGP/2016-10wp