1 WP 7170.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7170 OF 2010 Mohd. Khaja S/o Abdul Hakim Age : 60 Years, Occ. Nil Retired from service, R/o : Lendi Galli, Aurangpura Choubara Road, Udgir, Tq. Udgir, Dist. Latur. .... PETITIONER VERSUS 1. Maharashtra Animal & Fishery Sciences University, Through Registrar, High Land Drive, Seminary Hills, Nagpur. 2. Marathwada Krishi Vidyapeeth Parbhani, Through Registrar, Dist. Parbhani. 3. Associate Dean Veterinary College, Udgir, Tq. Udgir, Dist. Latur. .... RESPONDENTS Mr. K.T.Shirrurkar,Advocate for the petitioner. Mr. N.B.Khandare, Govt. Pleader for State. Mr. P.G. Rodge, Advocate for Resp. No. 1 & 3. 2 WP 7170.2010 - ( J ) CORAM : NARESH H. PATIL & S.V. GANGAPURWALA, JJ. DATE OF JUDGMENT : 22/02/2011 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for respective parties, taken up for final hearing. 2. By present Writ Petition, the petitioner seeks direction against respondent No. 1 University to consider one-half of petitioner’s previous continuous service for pension, gratuity and all other retiral and consequential benefits, so also seeks direction against the respondents to treat the petitioner as a deemed permanent absorbed employee of the respondents on regular pensionable establishment w.e.f. 15/6/2000. 3. Mr. K.T.Shirrurkar, learned counsel for petitioner submits that right since 1974-75, the petitioner was working under respondent no. 3 on monthly wages. On or about 21/8/1991, the petitioner received payment of difference of wages under the orders of learned Labour Judge, Latur. The learned counsel further contended that on 18/4/2007, the petitioner’s services were absorbed on regular pensionable establishment under control of respondent no. 3. The petitioner retired from services of respondent no. 1 on 3/1/2010, however petitioner’s claim for pension, gratuity and Earned 3 WP 7170.2010 - ( J ) Leave is not considered by the respondents. The learned counsel submits that it is erroneous on the part of the respondents not to grant pension to the petitioner. According to the learned counsel, as per Rule 57 and Note 1 of the Maharashtra Civil Services ( Pension ) Rules, 1982, if the employees paid from contingency are subsequently brought on regular pensionable establishment by conversion of their post, one-half of the previous continuous service shall be counted for pension. As such, according to the learned counsel, one-half of his earlier service rendered since 1974-75 till 2007 shall be considered for calculating pension and from 18/4/2007 till the date of retirement, the said service shall also be considered. As such, the petitioner would be deemed to have completed 18 years of service and as per said M.C.S.R. Rules, 10 years service is the qualifying service to be eligible for pension. 4. Mr. P.G.Rodge, learned counsel for respondent nos. 1 and 3 resisted the contentions raised by the petitioner. According to the learned counsel, the services of the petitioner under respondent no. 2 were on daily wages or on contract basis against the non permanent and non sanctioned post. As such, the said service can not be considered and if the said services are not considered, then the petitioner has not rendered the qualifying services to be eligible for pension. According to the learned counsel, the payment of wages to the petitioner was not from contingency fund. On that 4 WP 7170.2010 - ( J ) count also, the earlier service can not be considered. 5. Before proceeding further to deal with the arguments canvassed by the learned counsel, it would be appropriate to reproduce Rule 57 Note 1 : “57. Non pensionable service : As exceptions to Rule 30, the following are not in pensionable service : (a) Government servants who are paid for work done for Government but whose whole time is not retained for the public service, (b) Government servants who are not in receipt of pay but are remunerated by honoraria, (c) Government servants who are paid from contingencies, (d) Government servants holding posts which have been declared by the authority which created them to be non-pensionable, (e) Holder of all tenure posts in the Medical Department, whether private practice is allowed to them or not, when they do not have an active or suspended lien on any other permanent posts under Government. 5 WP 7170.2010 - ( J ) NOTE 1 : 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 ”. 6. From the perusal of Note 1 Rule 57, it is clear that in case of employees, who are paid from contingencies and who are subsequently brought on regular establishment by the conversion of post, one-half of the previous continuous service is required to be counted for the purpose of pensionery benefits. From the perusal of the Order dated 18/4/2007, it is clear that the petitioner was absorbed on the regular establishment. It was not through the selection process that the petitioner was appointed in the year 2007, so also, the letter dated 20/3/1993 issued by the Registrar of the respondent no. 2 – University, shows that the petitioner is required to be absorbed in regular permanent establishment according to his seniority and the availability of the post. It would be seen that even prior to the order dated 18/4/2007, by virtue of which the petitioners were absorbed/appointed on permanent regular establishment, the petitioner was working as Animal Attendant. It is thus clear that in view of these factual circumstances, the petitioner is entitled to the benefit of Note 1 of Rule 57 of the said Rules. Even it is clear from letter dated 11/1/2011 6 WP 7170.2010 - ( J ) placed on record that since 1972 till 2003 the petitioner was paid wages under the head contingencies. 7. In the result, the Writ Petition deserves to be allowed and the respondents are directed to forward the proposal of the petitioner for grant of pension and other retiral benefits treating one-half of earlier service from the year 1974-75 till the absorption on 18/4/2007 on the permanent regular establishment and full service from 18/4/2007 till the date of retirement, within a period of eight ( 8 ) weeks. 8. Rule is made absolute on above terms, however with no order as to costs. [S.V. GANGAPURWALA, J.] [NARESH H. PATIL,J.] knp/WP 7170.2010