266wp825.09.sxw 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.825 of 2009 (Damodhar s/o. Ramaji Vaidya .vs. The Head Master, Shri Datta Vidyalaya and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha & A. P. Bhangale, JJ. Date : 26/06/2009. Heard Mr. P. D. Randive, Adv. for petitioner and Mr.Fulzele, Assistant Government Pleader for respondent nos. 2 to 4. In the instant petition, the grievance of petitioner is in respect of non-grant of pension and pensionary benefits. Counsel for petitioner states that the petitioner was appointed as an Assistant teacher in the year 1986 and superannuated in 2008. It is submitted that the petitioner, therefore, has ten years’ qualified service at his credit and hence, petitioner was entitled for pension and pensionary benefits. Counsel for petitioner has submitted that the petitioner earlier was appointed on year to year/temporary basis from 1986 to 1999; however, in view of Rule 30 of the Maharashtra Civil Services (Pension) Rules, 1982, said service of petitioner was required to be counted for the purpose of considering pension and pensionary benefits. It is contended that the petitioner was confirmed in the year 2004 and hence, provisions of Rule 30 are attracted. It is, therefore, submitted that the action of 266wp825.09.sxw 2 . respondents in refusing to grant pension and pensionary benefits to petitioner is bad in law. The Assistant Government Pleader, on the other hand, has submitted that, the petitioner, at the time of appointment, which was made in the year 1994, was an untrained teacher and was holding qualification B.Sc. (Bio) only and did not possess B.Ed. Qualification. It is contended that the appointment of petitioner from 1994 onwards till 1998 was on yearly basis and on a fixed pay. It is further contended that, the petitioner, for the first time, acquired B.Ed. Qualification in the year 1999 and at the relevant time, he was out of service and was not discharging the duties as an Assistant teacher. It is further contended that the petitioner was selected and given order of appointment as a Shikshan Sevak w.e.f. 2.7.2001 vide letter dt. 2.11.2001. The appointment was a fresh appointment which has nothing to do with the earlier service : temporary or otherwise, rendered by the petitioner and as per the Scheme of Shikshan Sevak, after completion of three years as a Shikshan Sevak, petitioner was appointed on regular basis as an Assistant teacher in the pay scale of Rs. 5500-9000 w.e.f. 2.7.2004 and since then, he has worked on the said post till his retirement. It is further contended that, in view of these facts, Rule 30 is not attracted and therefore, petitioner is also not eligible for pension and pensionary benefits for want of qualifying service. Considered the rival contentions canvassed by the respective counsel. Perused Rule 30 of the Maharashtra Civil Services (Pension) 266wp825.09.sxw 3 . Rules, 1982. In the instant case, since the petitioner, at the time of appointment as an Assistant teacher in the year 1994, did not possess B.Ed. qualification which is an essential qualification, therefore, he could not be called as a ‘qualified teacher’, though he was appointed on a year to year basis. Petitioner, for the first time, acquired B.Ed. Qualification in the year 1999. However, at the relevant time, he was not in the employment and at a latter point of time, was appointed as a Shikshan Sevak which is under the Scheme floated by the State Government and therefore, the appointment, undoubtedly, was fresh a appointment. Rule 30 of the MCSR (Pension) Rules contemplates that qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. It is, therefore, evident that this rule will be attracted in a case of a person who is basically qualified to be appointed as a teacher. However, even if he is appointed on a substantive post or in an officiating capacity or temporarily, it would not matter if the candidate is qualified as per the qualification prescribed for the post. In the instant case, it is not in dispute that, till 1999, petitioner was not qualified and therefore, the Rule is not attracted. Even otherwise, in the instant case, there is no material placed on record to hold that, after appointment of petitioner as a Shikshan Sevak, earlier service which was rendered by the petitioner as an untrained teacher is required to be counted for the purpose of considering entitlement for pension as well as pensionary benefits. In that 266wp825.09.sxw 4 . view of the matter, no case is made out for showing indulgence. Hence, the petition is dismissed. JUDGE JUDGE jais