IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1932 OF 1994 WRIT PETITION NO. 1932 OF 1994 WRIT PETITION NO. 1932 OF 1994 C.R. Mawlankar ...Petitioner V/s. The Victoria Jubilee Technical Institute & Ors. ...Respondents Ms.Gauri Godse for the Petitioner. Mr.J.S. Saluja, AGP for the Respondents. CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J. Date of reserving the judgment : 2nd June, 2008 Date of reserving the judgment : 2nd June, 2008 Date of reserving the judgment : 2nd June, 2008 Date of pronouncing the judgment : 12th June, 2008 Date of pronouncing the judgment : 12th June, 2008 Date of pronouncing the judgment : 12th June, 2008 ORAL JUDGMENT (PER V.M. KANADE, J.) :- ORAL JUDGMENT (PER V.M. KANADE, J.) :- ORAL JUDGMENT (PER V.M. KANADE, J.) :- 1. In this petition, the petitioner is seeking an appropriate writ or direction under Article 226 of the Constitution of India directing the respondents to grant pension to the petitioner on the basis of his service from 17.1.1949 to 1.4.1986 alongwith other consequential benefits as provided under the Maharashtra Civil Services (Pension) Rules, 1982. . Brief facts are as under :- 2. The Petitioner was appointed as Taxi Meter Testing Assistant on 23.12.1948 in the respondent no.1 - 2 - Institute. The petitioner retired on attaining the age of superannuation on 2.4.1985. He was granted extension for a period of one year and accordingly, he retired as a Foreman on 1.4.86. After his retirement, he made an application to the respondent no.1 Institute claiming Provident Fund dues. In the said application, he also stated he was interested in opting pensionary benefits and he was willing to refund respondent no.1’s contribution to the Provident Fund alongwith interest @ 6% p.a. The petitioner’s application for grant of pensionary benefits was not allowed by the respondent no.1 Institute. Being aggrieved by the said action, the petitioner has filed this petition under Article 226 of the Constitution of India. 3. The State of Maharashtra has filed affidavit and has stated therein that by Government Resolution dated 20th February, 1985, the State of Maharashtra has extended the benefits of Pension and Death-cum-Retirement Gratuity Scheme to the teaching and non-teaching employees in the recognised non-Government Aided Engineering, Technical and/or Technological - 3 - College, Polytechnics and Pharmacy Institutes. The Government, however, took a stand that the said GR of 20th February, 1985 was not applicable to the petitioner since the Taxi Meter Testing Section was not receiving recurring grant from the Government. The respondent no.1 also filed an affidavit stating therein that GR of 1985 was not applicable to the petitioner since the department in which the petitioner was working was a self financing department and as such was not receiving grant from the Government and therefore, the said GR was not applicable to the petitioner. It was further contended that there is gross delay in filing the petition and as such, the petitioner was not entitled to the pensionary benefits as the petition was filed after a lapse of almost more than five years from the date of retirement of the petitioner. 4. We have heard the learned Counsel for the petitioner and the learned Counsel for the respondent. In our view, the contentions of the learned Counsel for the respondent has to be accepted. - 4 - 5. It is an admitted position that by G.R. dated 20th February, 1985, pensionary benefits were made applicable by the respondent no.1. The only question which needs to be considered is whether pensionary benefits could be refused to the petitioner on the ground that he was working in a department which was a self financing unit in the respondent no.1 Institute. In order to decide this question, it would be necessary to consider the relevant provision in the GR of 1985. Clause 8 pertains to the option which is to be exercised by the employee for making a pension scheme applicable to him. It would be relevant to examine the said clause which reads as under :- "8. Option : The employees in aided non-Government Technological Colleges, Polytechnics and Pharmacy institutions shall have a right to exercise an option either (a) to continue in Contributory Provident Fund Scheme or (b) to come over to Pension and Death-cum-retirement Gratuity Scheme subject to the following conditions :- (a) those who have superannuated on or after 1st October 1982 and who have received full share of contribution of management together with interest thereon provided they are willing to refund this amount with six percent simple interest thereon till the date of actual refund - 5 - and (b) those who have been employed on or before 30th September 1982 in substantive posts continuously but have not superannuated within a period of six months from the date of this resolution in the form appended to this Resolution. . Those employees who are covered under (b) above, if they do not exercise any option within the time-limit prescribed above shall be deemed to have exercised option in favour of Pension and Death-cum-Retirement Gratuity Scheme sanctioned under this Resolution. . The option once exercised shall be final." 6. From the aforesaid Clause 8, it is evident that clause (b) would be applicable to the case of the petitioner. The petitioner admittedly was employee before 30th September, 1982 and he had not superannuated within six months from the date of Resolution. It is specifically mentioned in the said clause that the employees who are covered under clause (b), if they do not exercise any option within a time limit prescribed, shall be deemed to have exercised the option in favour of Pension and Death-cum-Retirement Gratuity Scheme under the Government Resolution. That being the position, option for Pension Scheme would be applicable - 6 - to the petitioner. It is, therefore, now necessary to consider whether there is any clause restricting the applicability of the GR to self funding departments in an Institute. 7. In the present case, Clause 12 of the GR of 1985 specifically excludes the applicability of the GR in certain cases. Clause 12 reads as under :- "12. The scheme of Pension, Death-cum-Gratuity shall not be applicable in the following cases : i) Teaching & non-teaching staff of the Engineering, technical &/or technological Colleges, Polytechnics & Pharmacy Institutes which are not receiving any recurring grant from Government towards their maintenance. ii) Hostel Staff of the Engineering, technical &/or technological Colleges, Polytechnics & Pharmacy Institutes as the Hostels are expected to be self-sufficient. iii) The employees of the parent body or Society as the case may be ; iv) Workers on Daily wages employed by the Institutes." 8. In the present case, it is an admitted position that the department in which the petitioner was working was a self funding department in the Institute and the - 7 - petitioner was receiving Rs.100 per meter for testing per day. and out of the amount collected in this manner, the salary of the petitioner was paid. Therefore, though the Institute was given grant, no grants were received by the department in which the petitioner was working. Therefore, as a necessary corollary, Clause 12(i) which squarely applies to the case of the petitioner and the respondent, therefore, was justified in rejecting the application of the petitioner on the said ground. 9. Apart from that though the petitioner retired on 2nd April, 1985, he has filed this petition on 21st July, 1994 after a lapse of almost eight years. The only explanation for the delay which has been given by the petitioner in the petition is that the petitioner had written various letters to the respondent authorities for redressal of grievance and only thereafter, the present writ petition has been filed. Though grant of pension is continuous cause of action, it has to be established by the petitioner that there are sufficient grounds explaining the delay caused in - 8 - filing the petition. In the present case, the petitioner on attaining the age of superannuation received the entire Provident Fund and other dues. Thereafter, he has filed the present writ petition after a lapse of nearly 8-9 years and therefore, even on the ground of delay, this petition is not entitled, even otherwise, to claim the relief of pension as per the GR dated 20th February, 1985. There is, therefore, no substance in the submission of the learned Counsel appearing on behalf of the petitioner. 10. The petition, therefore, is liable to be dismissed. Rule, therefore, is discharged. Under the circumstances, there shall be no order as to costs. CHIEF JUSTICE CHIEF JUSTICE CHIEF JUSTICE V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J.