- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION No. 1142 OF 2007 1. Anil Sitaram Ajgaonkar ) Residing at 201, Nimita Gurumandir ) Road, Saraswati Colony, ) Dombivli (E)-421 201. ) 2. Dayanand Baburao Ambhire, ) Residing at B/305, Sagar Samrat, ) M.N.M. Mangela CHS Limited, ) Mahim Causeway, Mumbai 400016 ) 3. Ashok Vasant Kinge, ) Residing at P.S. Mhatre Compound ) Near D.N.C. School, Dombivli (E) ) District Thane-421 201. ... Petitioners Vs. 1. The Jt. Director of Higher and ) Technical Education, Elphinstone ) Technical Institute, Mahapalika ) Marg, Dhobi Talao, Mumbai 400001) 2. State of Maharashtra, ) through the Secretary. Department ) of Higher & Technical Education, ) Mantralaya Annexe, Mumbai-32. ) 3. Chembur Trombay Education ) Society, through its Secretary, ) having its office at N.G. Acharya ) & D.K. Marathe College of Arts, ) Science & Commerce, Chembur, ) - 2 - Mumbai-400 071. ) 4. N. G. Acharya & D.K. Marathe ) College of Arts, Science & Commerce ) through the Principal, Chembur, ) Mumbai-400 071. ) 5. Peoples' Education Society ) Through the Secretary, C/o. Dr. ) Ambedkar College of Commerce & ) Economics, Wadala, Mumbai-031. ) ... Respondents Mr. Mihir Desai, for the petitioners. Mr. M. D. Naik, AGP, for the respondent Nos. 1 and 2. Mr. A. L. Patki, for the respondent Nos. 3 & 4. CORAM : F. I. REBELLO, & : A. A. KUMBHAKONI, JJ. DATE : OCTOBER 7th , 2008. JUDGMENT [ PER : A. A. KUMBHAKONI, J.] 1. Rule. Rule made returnable forthwith, in view of very short question involved in the matter. The learned counsels appearing on behalf of the respondents waive service of rule. Heard both sides by consent for final disposal. 2. Three petitioners have filed the present writ petition, seeking appropriate direction against the respondents, directing them to pay gratuity and pension to the petitioners on their respective due dates on which they became eligible for pension without insisting for Management's contribution to the provident fund for the period 1st May 1988 to 31st October, 1993. In as much as the first petitioner is concerned, an additional separate relief is sought for to the effect that the service of the first petitioner for the period 16th June, 1973 to 7th - 3 - August 1978, rendered by him at 5th respondent college be also included in the service tenure of the first petitioner for calculating his pension and gratuity. 3. The 3rd respondent is a Public Trust and a Society, which conducts 4th respondent degree college. The 5th respondent is also a trust which conducts another degree college known as Dr. Ambedkar College. Admittedly, both these colleges are not only recognised but are also fully aided by the second respondent State. 4. First relevant facts that are not in dispute. The 1st petitioner joined Dr. Ambedkar College on 16th June, 1973 as full time lecturer and continued to work there till 6th August, 1978. On 7th August 1978 he joined 4th respondent as full time lecturer where he was working till 31st May 2006, the date on which he is superannuated. His entire service is approved by the University and has been considered admissible to grant-in-aid by the second respondent State. . The 2nd petitioner joined 4th respondent on 2nd July, 1979 as full time lecturer and was confirmed on 9th July, 1985. He is due to retire on 30th November, 2008. . The 3rd petitioner joined 4th respondent college as junior clerk with effect from 1st August, 1979 and was appointed after various promotions as Registrar on 1st September, 1993, where he continues to work till date. He is due to retire on 31st October, 2012. 5. In the State of Maharashtra, all the employees of aided degree - 4 - colleges were initially governed by Contributory Provident Fund Scheme. Their contribution was being deducted from their salary and an equal amount was being paid by the Management. The aggregate amount of such contribution was being paid into a Consolidated Fund Account by the College Provident Fund Committee. It is admitted fact that this contribution which the Management was making was fully grantable and the second respondent State was paying to the Management this amount of contribution which in turn Management was paying into the Consolidated Provident Fund Account as aforesaid. 6. By a Government Resolution dated 21st July, 1983 for the first time the second respondent made Pension Scheme applicable and consequently the pension, gratuity and retirement benefits admissible to the Government servants under Maharashtra Civil Services Pension Rules, 1982, became admissible even to the full time approved teaching and non-teaching staff, of the aided and non aided Government colleges, who retire on or about to retire on 1st October, 1982. Consequently, all such employees who were in service as on 1st Octoer 1982 and who were eligible for Contributory Provident Fund Scheme were required to exercise option in the prescribed form, either to elect to continue with the provident fund scheme or to be governed by the Pension Scheme. The employees were required to exercise such an option in writing, firstly on or before 31st January, 1984. However, this date for exercise of option was extended from time to time till 31st October, 1993. By the Government resolution dated 10th August, 1994 the said pension scheme was made applicable to all such employees compulsorily whether or not they have exercised their option. However, the said scheme was made so applicable provided the Management - 5 - deposits contribution with interest with the State Government at the rate that the State Government may prescribe from time to time. 7. In the light of the aforesaid admitted aspects of the matter, it is the case of the petitioners that the petitioners and few other employees initially did not exercise the option for the pension scheme. However, 5 employees including the 3 petitioners ultimately exercised their option to be the part of the pension scheme on or about May 1998 and these option forms duly signed by them, including the petitioners, were forwarded by the 4th respondent college to the Administrative Officer, Higher Education Grants, Bombay Region Bombay along with a covering letter dated 14th May, 1998. It is most crucial and important to note that admittedly this letter dated 14th May 1998 was received by the clerk in the Administrative Office as Officer, Higher Education, Grants Region Bombay, Bombay on 17th May, 1998. 8. It is also an admitted fact that from May 1998 the fourth respondent college did not receive any grants whatsoever concerning the Management's contribution to the provident fund, in regard to these 5 employees. Consequently, the Management of the 4th respondent College did not pay/ contribute any amount to the provident fund, as the share of the Management. . It is also pertinent to note that admittedly all the petitioners were given GPF numbers in 1988 itself. 9. It appears that there was some problem concerning pension option forms and therefore, the Principal of the 4th respondent College re-submitted the - 6 - option forms of the petitioners and others in 1993. The first petitioner retired on 31st May, 2006 when his pension papers were being processed, the Jt. Director, Higher & Technical Education, the first respondent herein, took a view that the option forms were received from the petitioners only in 1993 and therefore, the petitioners were required to deposit Management's contribution of the provident fund from the year 1988 to 1993 with the State Government along with interest. The contesting respondent therefore, took a stand that unless such deposits are made, appropriate action in regard to payment of pension to the first petitioner will not be taken. The other two petitioners also apprehend that similar objection is bound to be raised in their cases as well as and when they will become eligible to claim pension on their retirement. Therefore, all the petitioners have approached this Court seeking appropriate reliefs, as sought for by the present petition and as set out hereinabove, at the threshold of this judgement. 10. The 4th respondent Management has filed an affidavit-in-reply fully supporting the case of the petitioner. It is categorically stated in this affidavit in reply that along with the communication dated 14th May, 1988 itself the option forms submitted by all the petitioners in writing were submitted with the concerned authorities of the State Government. It is also further pointed out that the Management has not been paid amount equivalent to the Management's contribution as part of the grant-in-aid by the State. It is contended that since along with grant-in-aid this amount was not paid by the State to the Management, the Management in turn did not deposit this amount with the fund. This affidavit also supports the case of the petitioner that all the petitioners were allotted GPF numbers in 1988 itself, which would not have been allotted to them, had they not - 7 - opted for the scheme in 1988 itself. The Management therefore, is also opposing the claim of the contesting respondents that it is necessary to deposit first the Management's contribution for the period 1-5-1988 to 31-10-1993 to enable the Petitioners for claiming the benefit of the Pension Scheme. 11. On behalf of the first and second respondent identical affidavits have been filed, opposing the petition. However, both these affidavits candidly admit that the communication dated 14th May, 1998 has been received by the office of the Administrative Officer, Higher Education Grants, Bombay Region, Bombay at that time itself. However a curious case is tried to be made out that along with the letter of 14th May, 1998 the duly filled forms in writing of the petitioners, exercising option in terms of the Government Resolution dated 18th February, 1988 were not received. It is submitted that such duly filled forms were received only in 1993 and therefore, the petitioners were required to deposit the Management's contribution along with interest for the period 1st September, 1998 to 26th October, 1993 and that unless such deposit is made, no further action will be taken towards payment of pension to the petitioners. 12. After considering the rival submissions of both parties, we are of the view that the petition deserves to be allowed, accepting the claim of the petitioners. The 1st & 2nd respondent do not dispute receipt of the communication sent by the Management, the 4th respondent herein, to the concerned officer dated 14th May, 1988. This communication reads thus :- “AM/105/88-89 14th May, 1988 - 8 - To, The Administrative Officer, Higher Education Grants, Bombay Region Bombay. Sir, I am forwarding herewith options enclosed under Government Resolution Education and Employment Department No. NGC/1284(928)-UNI-4 dated 18th February, 1988 of the following staff members. 1. Shri A. S. Ajgaonkar, 2. Shri D. B. Ambhire, 3. Shri S. G. Pimpale, 4. Shri B. R. Patil, 5. Shri A. V. Kinge. Kindly do the needful and oblige. Thanking you. Yours sincerely, Sd/- Principal Sd/- 17.5.1988 Clerk, Administrative Officer, Higher Education Grants, Bombay Region, Bombay. 13. A perusal of the aforesaid communication clearly demonstrates that the same was received by the appropriate office on 17th May 2988 itself and that the same specifically states that it was sent to forward the forms filled in by the Petitioners. If the case of first and second respondents that they received only - 9 - this covering letter without the option forms, which were forwarded along with the said letter dated 14th May, 1988, is correct then there is no explanation whatsoever as to why at that time itself i.e. in the year 1988 or thereabout or even till 1993 the Management was not called upon by the concerned Officer to re- send such option forms. It is not the case of the 1st & 2nd respondent that at any time from the date of receipt of this communication i.e. from 17th May 1988, it was brought to the notice of the 4th respondent Management by the concerned office that though such a covering letter dated 14th May 1988 was received on 17th May, 1988 the option forms filled in by the petitioners were not found enclosed therewith. This inaction on the part of the 1st & 2nd respondent leads us to hold that along with the said covering letter dated 14th May, 1988 the concerned Office must have on 17th May 1988 itself received option forms duly filled in by the petitioners in terms of the Government Resolution dated 18th February, 1988, as is set out in the said communication itself. 14. Two other very important circumstances which support the aforesaid conclusions are set out hereunder. It is pertinent to note that there is not even a whisper, muchless an explanation, in regard to both these aspects in the two affidavits-in-reply filed by the first and the second respondent. Firstly, admittedly all the petitioners were allotted GPF numbers in 1988 itself. Had the petitioners not submitted such option forms, certainly they could and would not have been allotted GPF numbers in 1988 itself. Secondly, though the 4th respondent continued to receive grant-in-aid in respect of all other aspects that were admissible in the grants, the - 10 - Management did not receive amounts from the State Government equivalent to that of employer's contribution towards the provident fund, in regard to the petitioners. This is more important because admittedly till 1988 the 4th respondent Management did receive the appropriate amounts towards Management's contribution in regard to the petitioners and that the Management did deposit the same with the fund. Such payment of amount as part of grant-in-aid to the Management's from the State completely stopped only from and after 1988. Had the petitioners not exercised their option by submitting the forms in 1988 itself, as is the case of the first and second respondent, the State Government would have continued to remit to the 4th respondent Management appropriate amounts towards employee's contribution in regard to the petitioners' provident fund. 15. In the light of the aforesaid discussion and findings, it becomes clear that the contention of the contesting respondent Nos. 1 and 2 that the 4th respondent Management ought to have deposited with the State Government Employer's contribution in regard to the petitioners for the aforesaid period in issue is wholly without any substance. Admittedly the State Government was sending as a part of grant-in-aid the amount of employer's contribution in regard to the petitioners provident fund to the Management which Management was then depositing with the fund. Had the Management continued to receive these amounts, even after 1988 and still if they were not deposited by the Management, then certainly we would have found some substance in the contention of the contesting respondent Nos. 1 and 2. 16. In our view therefore, in the aforesaid facts and circumstances of the - 11 - case, it cannot be said that unless the petitioners deposit with interest an appropriate amount towards the Management's contribution for the period in issue i.e. from 1st May 1988 to 31st August, 1993, the petitioners cannot be held entitled to enjoy the benefit of the pension scheme. In any case we fail to understand as to why this technicality should detain the 1st and 2nd respondents from holding the petitioners entitled to enjoy the benefit of the pension scheme, as is clear that the amount of employer's contribution towards pension fund in regard to the petitioners was coming from the State Government itself in the form of grant-in-aid, upon the receipt of which the Management was re-depositing the same with the State Government authorities as and by way of, as also in the nature of employer's contribution. Since the Management did not receive these amounts, it did not deposit the same back. We do not find any fault with the Management either under the given circumstances and we hold that it is not necessary for the petitioners to deposit the amount of Management's contribution for the period 1st May, 1988 to 31st October 1993 to be entitled and eligible to receive the benefits of the pension scheme, if otherwise found entitled. 17. In as much as the 1st petitioner is concerned, he had made out a grievance separate from the others, in regard to his services for the period 16-6- 1973 to 7-8-1978. Admittedly the first petitioner has rendered services during this period with Dr. Ambedkar College of Commerce and Economics, conducted by the 5th respondent. Admittedly, this College at the relevant time was not only recognised but was also receiving grant-in-aid. There is no dispute that the service of the petitioner at this college was also recognised and approved. Only because after the aforesaid period the petitioner shifted to another college i.e. the - 12 - 4th respondent college, run by the 3rd respondent Management, it cannot be said that the aforesaid services rendered by the petitioner for the period 16-6-1978 to 7-8-1978 can not be considered for the purpose of computing his pension and gratuity. At once we must note that the 1st and 2nd respondent have not at all dealt with this aspect of the matter at all in their two identical affidavits-in-reply. Even otherwise perusal of the relevant Government Resolution dated 21st March, 1983 and others on record do not disclose any provision which requires an employee to continue to serve in one and the same institution, for rendering his service admissible for the purpose of computing his pension and gratuity. We therefore, hold that the 1st and 2nd respondents are liable to include services rendered by the 1st petitioner from 16-6-1978 to 7-8-1978 at Dr. Ambedkar College of Commerce & Economics, for the purpose of computing his pension and gratuity. 18. We hereby allow the petition. Rule is made absolute in terms of prayer Clause (a) and (b) of the petition, with no order as to costs. Sd/- Sd/- [A. A. KUMBHAKONI, J.] [ A. A. REBELLO, J.]