- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1542/2008 Waliuddin s/o Pashasaheb, age 60 yrs., occu.retired resident of Nileban base, near Syed Chand Darga c/o Qamruddin Mauli Saheb, Udgir. Dist.Latur. ...Petitioner.. Versus 1] The State of Maharashtra, through Secretary, Nagar Vikas Vibhag Department, Mantralaya, Mumbai-400 032. 2] The Chief Officer, Municipality, Udgir. Tq.Udgir Dist.Latur. ...Respondents... ..... Smt.Asfia N. Ansari, Advocate for petitioner. Shri K.G. Patil, AGP for respondent no.1. - 2 - Shri P.V. Barde, Advocate h/f Shri S.P. Shah, Advocate for respondent no.2. ..... CORAM: MOHIT S. SHAH, CJ & S.V. GANGAPURWALA, J. DATE: 25.08.2010 ORAL JUDGMENT (Per Chief Justice): 1] Heard learned counsel for the parties. Rule. Rule made returnable forthwith. Counsel for the respondents waive Rule notice. With the consent of learned counsel for the parties, petition is taken up for final hearing. 2] In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 3.5.2007 (Exhibit H) of the respondent no.2 – Municipal Council, Udgir, denying the petitioner’s claim for pensionary benefits on the ground that the petitioner had put in service of only 6 years, 2 months and 27 days on the date of the petitioner’s retirement with effect from 28.2.2007. 3] Mrs.A.N. Ansari, learned counsel for the petitioner, has submitted that there is no dispute of the fact that the petitioner was appointed as Agriculturist on daily wages on 1.11.1973 and continued to render his services till 30.9.1974. Before the petitioner’s services were discontinued, the petitioner had already completed - 3 - 240 days service in a year as provided in Section 17-B of the Industrial Disputes Act, 1947. In the mean time, a reference at the instance of the employees of the Municipal Council came to be registered as Reference (I.T.) No.331/1974 before the Industrial Tribunal Maharashtra at Mumbai. The said reference came to be allowed on 24.1.1983. There were two demands before the Tribunal and they were allowed in the following terms. “ The Municipal Council, Udgir, to pay daily wages to daily rated workmen working in conservancy Department at the rate of 1/26 of the total monthly wages (basic + dearness allowance) paid to the permanent workmen in the corresponding category at the start w.e.f. 01.4.1974. The Council is further directed that those daily rated workmen who have been employed in the vacant post and are engaged to do jobs of permanent nature should be made permanent from the date on which they have completed 240 days in a year in their service and that in future, daily rated workmen should be made permanent on completion of 240 days work in a year. The definition of 240 days in a year should be as provided in the provisions of Industrial Disputes Act, 1947.” It is further stated that in view of the above award, the Municipal Council passed a resolution on 16.9.1986 accepting the award and the Municipal Council - 4 - also implemented the same by office order dated 21.11.1986 (Exhibit D). It was mentioned in the order that the petitioner was made permanent upon completion of 240 days service, but he would be continued as a daily wager employee till the vacancy in the permanent post was available. Accordingly, by order dated 29.12.2000, the petitioner was made permanent with effect from 1.12.2000 as per the order at Exhibit E. The learned counsel for the petitioner, therefore, submits that the petitioner had rendered services from 1.11.1973 to 30.9.1974 and thereafter again from 21.11.1986 till the date of the petitioner’s retirement on 28.2.2007. The learned counsel, therefore, submits that the reference having been allowed by the Tribunal by the award dated 24.1.1983, all the workmen, who were employed with the respondent no.2 – Municipal Council on 1.4.1974 as well as those who were employed subsequently were entitled to get the benefit of permanency upon completion of 240 days in a year, which the petitioner completed before 1974. Thereafter, the petitioner was reinstated in service in compliance with the award and, therefore, the petitioner’s employment must be treated as continuous with effect from 1.11.1973 till the date of his retirement. Without prejudice to the above, it is submitted that in any event, the petitioner admittedly rendered services from 21.11.1986 and, therefore, also the petitioner is entitled to have the services from that date counted for the purposes of pension. Reliance is placed on the following three decisions of this Court: [1] Parshuram Vithoba Bhandare V/s The State of Maharashtra & another [ 2001 (4) All MR 471 ] [2] Shankarlal Nandkishore Dhamat V/s State of Maharashtra & - 5 - another [ 2003 (2) Bom.C.R., 294 ] [3] Shivappa Bhujangappa Bembale V/s State of Maharashtra & another [ 2005 (3) Mh.L.J., 709 ] A reference is also made to Rules 30 and 57 of the Maharashtra Civil Services (Pension) Rules, 1982, under which the qualifying service of a Government servant shall commence from the date of his appointment either substantively or in an officiating or temporary capacity. Note 1 to Rule 57 provides that in case of employees paid from contingencies who are subsequently brought on a regular pensionable establishment by conversion of their posts, one-half of their previous continuous service shall be allowed to count for pension. Relying on the above Rule, it is submitted that even as per the above Rule, the petitioner is entitled to have the services rendered by him from 21.11.1986 till 30.11.2000 for the purposes of pensionable service, which would mean one half of this period, which will be about 50% of 14 years i.e. 7 years service. IT is then submitted that adding about 6 years and 3 months from 1.12.2000 to 28.2.2007, the total service rendered by the petitioner would come to 13 years and 2 months, which certainly fulfills the requirement of minimum qualifying pensionable service of 10 years. 4] Opposing the petition, the learned counsel for the respondent no.2 – Municipal Council has submitted that since efficacious alternative remedy is available to the petitioner by approaching the Industrial Court or by making a revision before the Collector or authorised officer of the State Government, this - 6 - petition under Article 226 of the Constitution can not be entertained. In the alternative, it is submitted that the petitioner had rendered services in the permanent or temporary capacity only from 1.12.2000 and, therefore, prior service can not be taken into consideration. It is also contended that there is nothing on record to show that the petitioner was paid from contingency funds prior to 1.12.2000 and, therefore, Note 1 to Rule 57 would not apply. Reference is also made to one communication dated 17.3.2007 of the Director of Municipalities addressed to the Chief Officer of Udgir Municipal Council, which communication seems to indicate that persons employed prior to 10.3.1993 can not be given monetary benefits, according to the Government policy, for the purposes of the pensionary benefits. 5] The learned Government Pleader appearing for the State of Maharashtra submits that the said communication dated 17.3.2007 apparently does not deal with the controversy, which is the subject matter of the present petition. 6] Having heard the learned counsel for the parties, we have given anxious consideration to the rival submissions. 7] Taking the first preliminary contention urged on behalf of the Municipal Council that the petitioner has an efficacious alternative remedy, as per the settled legal position, availability of alternative remedy does not denude the Court of its discretionary writ jurisdiction. It is always to be asserted in the facts of each case - 7 - whether the Court should entertain the petition on merits or the petitioner should be relegated to an alternative remedy. In the facts of the present case, the petitioner has already retired on superannuation on 28.2.2007 and the broad facts of the case are not in dispute. Apart from the service rendered by the petitioner from 1.11.1973 to 30.9.1974, by which time the petitioner had completed 240 days service, the petitioner was continuously employed by the Municipal Council from 21.11.1986 and was made permanent with effect from 1.12.2007 as per the order dated 29.12.2000 at Exhibit E. The petitioner thereafter retired on 28.2.2007 on reaching the age of superannuation i.e. completion of 60 years. In this factual background, we do not see why the petitioner should be relegated to an alternative remedy, which will take a few more years to get the pensionary benefits after having admittedly rendered about 21 years of service. The only question is whether the services rendered between 1.11.1973 to 30.9.1974 and the services rendered from 21.11.1986 to 30.11.2000 should be considered as pensionable service. 8] The learned counsel for the Municipal Council has urged that since the petitioner has not shown anything to indicate that the petitioner was paid from contingency funds, Note 1 to Rule 57 may not apply. Such an argument, more than going against the petitioner’s case, would assist the petitioner, because Note 1 provides that the services rendered by an employee for which they were paid from contingency funds will be taken account only to the extent of 50% for the purposes of counting pensionable service. However, without entering into that - 8 - controversy, in view of the petitioner’s case that the petitioner was paid from contingency funds, we are of the view that the petitioner is entitled to get a declaration that the petitioner had rendered pensionable service from 21.11.1986 till 30.11.2000 from out of contingency funds and, therefore, 50% of the said length of service should be treated as pensionable service. There is no dispute about the services rendered by the petitioner from 1.12.2000 till 28.2.2007. Aggregating both the period of services, the petitioner has completed more than 10 years qualifying service. 9] The decisions relied upon by the learned counsel for the petitioner would support the petitioner’s case and since we are in agreement with the principles laid down therein, no further discussion is called for. 10] In the result, the writ petition is allowed. The impugned order dated 3.5.2007 at Exhibit H is quashed and set aside. The respondents are directed to compute the pensionary benefits payable to the petitioner on the basis of the observations made in this judgment and on the basis of the findings given hereinabove about the length of pensionable service rendered by the petitioner. The computation shall be made within a period of two months from the date of receipt of this judgment and the arrears of pension and other pensionary benefits, not yet paid to the petitioner, shall be paid within three months from today. If these directions are not carried out within the above time limit, the respondents shall also pay interest at the rate of 8% p.a. on the amount of arrears - 9 - from the date of expiry of three months from today. The respondents shall also continue to pay pension periodically as and when it falls due. Rule is made absolute in the above terms. No order as to costs. CHIEF JUSTICE (S.V. GANGAPURWALA, J.) ndk/c258108