1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4639 OF 2005 1. STATE OF MAHARASHTRA ) through the Ministry of ) Education, Mantralaya, ) MUMBAI 400 032 ) 2. Director, ) Vocational Education and ) Training, Mahapalika Marg, ) C/o Elphinstone Technical ) High School, Mumbai 400 001 ) .. PETITIONERS VERSUS SHRI M. G. DINGANKAR ) Ex-Group Instructor in the ) Office of the Principal, ) Industrial Training Institute, ) Ratnagiri and Residing at C-2 ) Jayant Residency, Mali Colony ) Rajarampuri, Kolhapur ) .. RESPONDENT Mr. P. P. Kakade, AGP Mr. Anurag Jain for respondent CORAM: SMT. RANJANA DESAI & SMT. R. S. DALVI,JJ. 2 DATE ON WHICH THE JUDGMENT IS RESERVED:-13TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 4TH MARCH, 2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The State of Maharashtra has challenged in this writ petition filed under Article 227 of the Constitution of India judgment and order dated 23/11/04 delivered by the Maharashtra Administrative Tribunal ("the Tribunal" for short) in Original Application No. 759 of 2003. We must begin with the gist of the facts. 2. The respondent was appointed as Electrician Instructor in the Government of Maharashtra in December, 1959. He submitted his resignation on 30/10/74 with a month’s notice while he was working as a Group Instructor. The said resignation was accepted. According to the respondent he had preferred a representation to the Government of Maharashtra requesting that his case be considered for pension. However, the representation was not favourably considered. The respondent contends that though he had resigned he has to be treated as having been retired from service. His case is that 3 he had served on a substantive post with the Government for 15 years and as per provisions of the Bombay Civil Services Rules, 1959 ("BCS Rules" for short) and as per the Maharashtra Civil Service (Pension) Rules, 1982 ("MCS Rules" for short) he is entitled to some kind of pension. On this basis the respondent filed original application praying that a suitable direction be given to the Government of Maharashtra to grant him pension. The petitioners contested the application. The petitioners filed their affidavit-in-reply. The petitioners contended that the respondent had voluntarily resigned and hence he was not eligible for grant of pension. 3. The Tribunal by the impugned order directed the State Government to consider the case of the respondent under Rule 23 of the MCS Rules and grant the respondent pension in accordance with the said rules within three months from the date of the order. 4. We have heard Mr. Kakade, learned AGP in support of the petition. Learned AGP submitted that the Tribunal erred in giving a direction to the State Government to consider the respondent’s 4 case under Section 23 of the MCS Rules. He submitted that the respondent had resigned from service before completing 20 years and as such he is not entitled to pension. Learned AGP pointed out that the respondent had resigned in the year 1974 and, therefore, he is governed by the BCS Rules and not MCS Rules. Therefore, Rule 23 can have no application to the present case. 5. As against this learned counsel for the respondent submitted that no interference is necessary with the impugned order. He placed heavy reliance on the judgment of this court in State of Maharashtra & Ors. v. Sashikant S. Patil in Writ Petition No. 8484 of 2003, decided on 17/8/04. He also relied on judgment of this court in Gajanan Dattatraya Nampurkar v. State of Maharashtra in Writ Petition No. 1312 of 2002 decided on 29/8/02. Learned counsel also relied on judgment of this court in Nirmala Gole v. State of Maharashtra decided on 20/1/02 by Divison Bench of this court (R. M. Lodha & S.A. Bobade, JJ.) in Writ Petition No. 3274 of 2001. Learned counsel submitted that in exceptional or extremely hard cases, rules needs to be relaxed and pensionery benefit must be granted to the deserving person in 5 the light of the above judgments. He submitted that since the Tribunal found this to be a fit case, necessary direction has been given to consider the respondent’s case which does not deserve to be disturbed. 6. Admittedly the respondent resigned on 30/10/74. At that time he was governed by BCS Rules. The respondent had not even completed 20 years’ qualifying service. The Tribunal has rightly observed that there was no provision in the BCS Rules for granting pensionery benefits to a person who had resigned from Government service and who had put in less than 20 years of qualifying service. 7. It is pertinent to note that all the cases on which reliance is placed by the learned counsel for the respondent pertain to MCS Rules. Therefore, they will have no application to the respondent’s case which is governed by BCS Rules. 8. In Nirmala Gole’s case (supra) the petitioner therein had made out hard and exceptional case. She was a widow who was forced to resign from service on account of ill-health. This case was 6 again governed by the MCS Rules. The facts of the said case cannot be equated with the facts of the present case. In this case the respondent has not even completed 20 years qualifying service. In this connection reference may also be made to the judgment of this court in Ilyas Yusuf Naikwadi v. State of Maharashtra & Ors, 2006 (6), MLJ 450, where learned Single Judge of this court was considering a case where the petitioner had resigned from service and thereafter claimed pensionery benefits. He was governed by BCS Rules. Learned Single Judge observed that matters relating to pension were dealt with under Chapter XI of the BCS Rules. None of the rules contained therein provided for pensionery benefits to the person who had resigned from the service. Learned Single Judge referred to judgment of the Supreme Court in UCO Bank & Ors. v. Sanwar Mal, AIR 2004 SC 2135, where the Supreme Court has observed that resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains relationship for the purpose of grant of retiral benefits in view of the past service. Learned Single Judge observed that a person who had resigned in the year 1978 i.e. a person who was governed by BCS Rules in view of the 7 absence of pensionery benefits being made available under the statutory provision to such person could not claim pensionery benefits. Facts of this case are similar as the respondent herein had resigned on 30/10/74 and was governed by BCS Rules. In the above circumstances, therefore, the Tribunal erred in giving a direction to the State to consider his case under Rule 23 of the MCS Rules. The impugned judgment and order cannot be sustained. 9. In the circumstances the petition succeeds. The impugned judgment and order dated 23/11/04 delivered by the Maharashtra Administrative Tribunal is quashed and set aside. Petition is disposed of. JUDGE JUDGE 8 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 4639 OF 2005 DATE ON WHICH THE JUDGMENT IS RESERVED: 13TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:___TH FEBRUARY,2008 THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE (SMT.) JUSTICE R. S. DALVI: 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters or ) not? ) 3. Whether Their Lordships wish to ) see the fair copy of the Judgment? ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? ) 9 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? )