1 wp2074.10(1) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2074 OF 2010 Dr. Bhimrao Trimbakrao Munde, Age : 67 years, Occ : Nil-Retired, R/o Survey no. 22, Plot No. 39, Balaji Nagar, Jijamata Chowk, Dhankawaki, Satara Road, Pune-411 043. ..PETITIONER -VERSUS- 1. The Marathwada Agricultural University, Parbhani, through its Registrar. 2. The State of Maharashtra, Through the Secretary, Agriculture & Cooperation Department, Mantralaya, Mumbai-400 032. ..RESPONDENTS ..... Shri A.S. Deshpande, advocate for the petitioner Shri S.K. Kadam, A.G.P. for the respondent/State Shri M.M. Nawandar, advocate for the respondent no.1 ..... (CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. Date : 3rd August, 2011. ORAL JUDGMENT (PER SMT. MHATRE, J.) Rule. Rule returnable forthwith, by consent. 1. The Petition has been filed by a retired employee of the Respondent no.1-University for payment of his pension in accordance with the Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter 2 wp2074.10(1) referred to as "the Pension Rules"). 2. The brief facts giving rise to the present Petition are as follows : The petitioner joined the services as a Medical Officer on 15th February, 1979 with the University. Though the appointment of the petitioner was on a temporary basis, he was continued in service every year with a technical break up to the year 1992. In June, 1992, the petitioner was not continued in service. He was replaced by a temporary employee. He, therefore, preferred Writ Petition no. 1352 of 1992, challenging that order. Due to the interim relief granted by this Court, the petitioner continued in service on the same terms and conditions. The Writ Petition was finally heard on 14th September, 2004. The Division Bench of this Court has directed as follows : "We direct the Respondent No.1 to calculate his service in the University from 16.06.1992 and fix up the pension and or retirement benefit of the Petitioner accordingly. There is some justification in the contention of Shri Sakolkar that the prayers made in the Petition, are in respect of regularization of services of the Petitioner as Medical Officer, the Petitioner has not amended the Petition nor he sought any injunction against the Respondent to continue the Petitioner in the post of Medical Officer. On his own, a statement is made in Civil application, by which Petitioner has virtually accepted the post of Lecturer in Public Health without demur. 6. Therefore, in our view, a writ has to be issued 3 wp2074.10(1) against Respondent No.1 to regularize the Petitioner's services in the post of Lecturer in Public Health from 16.06.1992 and shall also finalize the pension etc. of the Petitioner on that basis, as per Rules from the date of his posting as Lecturer in Public Health in the University from 16.06.1992." 3. During the pendency of the aforesaid Writ Petition, the petitioner retired with effect from 31st October, 2000 on attaining the age of superannuation. An order was passed on 1st January, 2005 by the University regularizing the services of the petitioner as a Lecturer in Public Health from 16th June, 1992. The University further directed that the period of absence from 9th February, 2000 to 7th June, 2000, during which the petitioner was not permitted to join duty by the Principal, GTC, Parbhani as a Lecturer in Public Health, be regularised. This was to be effected by granting him leave due and admissible to him along with extra ordinary leave if any with effect from 16.06.1992 onwards to the date of his retirement. Intermittent breaks of adhoc service were also to be regularised in this manner. Thus, the petitioner's service from 16th June, 1992 to 31st October, 2000 has indisputably been regularised. According to the petitioner, although he is entitled to pension payable in accordance with the Pension Rules, he has not been paid any amount on the ground that he had not completed the qualifying service for being eligible for drawing pension. Hence, the present Petition. 4. It appears that after Writ Petition no. 1352 of 1992 was decided, 4 wp2074.10(1) a Review Application was preferred by the petitioner being Review Application Stamp No. 10601 of 2007. That Review Application was dismissed. Thereafter, on 29th November, 2010, an order was passed by this Court in the present Petition, permitting the petitioner to seek a clarification from the Division Bench of its order passed on 24th September, 2009 in the Review Application. Accordingly that clarification has been granted in Civil Application No. 18122 of 2010 on 22nd December, 2010. The Division Bench has held that since in the Review Application, the petitioner had sought relief which he had not prayed for in the Writ Petition no. 1352 of 1992, the Court had not considered whether the earlier service rendered by the petitioner could be tagged along with the service rendered by him after regularisation. Therefore, that Review Application was dismissed on the ground that the relief prayed for in the Review Application was not sought in the substantive Writ Petition filed earlier. In these circumstances, in our opinion, there is no impediment for the petitioner to urge the contentions raised in the present Writ Petition. 5. Shri Deshpande, the learned Advocate for the petitioner has drawn our attention to Rules 33 and 57 of the Pension Rules, 1982, which permit the clubbing of service rendered by an employee on temporary basis together with his regular employment on the establishment. He states that since the petitioner has worked from 15th February, 1979 on a temporary basis, that period of his employment must be clubbed together with his regular service i.e. from 16th June, 5 wp2074.10(1) 1992 to 31st October, 2000. The learned Advocate points out that if these two periods of service are taken together, the petitioner will qualify for the payment of pension. Shri Deshpande has placed reliance on various judgements of this Court, which we will presently advert to. 6. The University has filed an affidavit in reply to the Petition reiterating its contention that the petitioner had not completed the qualifying service for being eligible for payment of pension, and therefore, was not entitled to pension. 7. Shri Navandar, the learned Advocate for the University states that the petitioner was not in regular employment on the date when he retired from the service, and therefore, he would not be entitled to pension. He states that the petitioner's regularisation in service, due to the orders passed by this Court, was effected much after he retired and thus he would not be entitled to pension. He points out that the petitioner was selected as a Lecturer only on 28th January, 2000. However, he did not join service, and therefore, was not entitled to pension. The learned Advocate has placed reliance on the interim orders passed by this Court in Writ Petition no. 1352 of 1992 and states that it was only because of the interim order that the petitioner was permitted to continue in service. According to him, till the date of retirement, the petitioner was not on the regular establishment of the University, and therefore, he was not entitled to pension. Shri Navandar 6 wp2074.10(1) has pointed out to us that the petitioner did not bother to attend duty although he was selected to the post of Lecturer from 28th January, 2000. However, this fact is not borne out from the correspondence, which has been placed before us by the petitioner and which is annexed to the Affidavit in Rejoinder filed by him. Considering this correspondence, it is obvious that the University, in order to lend a quietus to the controversy has directed that the period of absence of the petitioner from 9th February, 2000 to 7th June, 2000 should be regularised and admissible as leave. 8. Rule 33 of the Maharashtra Civil Services (Pension) Rules, 1982, which are made applicable to the staff of the University reads as follows : "Rule 33 : Service rendered under Government followed without interruption by confirmation counts in full as service qualifying for pension : A Government servant who holds a permanent post substantively or holds a lien or a suspended lien or a certificate of permanency on the date of his retirement, the entire temporary or officiating service rendered under Government followed without interruption by confirmation in the same or another post, shall count in full as service qualifying for pension except the service rendered against 7 wp2074.10(1) one of the posts mentioned in rule 57. Note :- The benefit of above rule should also be extended to Government servants who have rendered service in temporary posts in the former Civil supplies department including those re-employed after the break, provided they agree to refund the terminal gratuity, if any, received by them on their retrenchment from the former civil supplies Department (In order to avoid hardship, the gratuity may be refunded in monthly instalments not exceeding twenty). Competent authorities are authorized to condone where necessary, breaks not exceeding 3 years. In cases where break exists, the terminal gratuity referred to above should be refunded within three months from the date of order of the competent authority condoning the break and the right to count the service under above rule does not accrue until the gratuity is wholly refunded. The condonation should be postponed until the Ex-Civil Supplies Department personnel actually pass the examination, if any, required for confirmation and are actually confirmed. The benefit of condonation of break should be allowed only in those cases in which break have occurred on account of discharge from service for want of post and not on any other ground, e.g. voluntary resignation etc. and in computing the period of 8 wp2074.10(1) break, the terminal leave availed of by the persons concerned, should also be taken into account. The leave salary is not, however, refundable." 9. Rule 30 provides that the qualifying service commences from the date when an employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. However, at the time of retirement, he must hold a substantive or permanent post in service. 10. Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982, which enumerate the exceptions to Section 30, reads thus : "Rule 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, 9 wp2074.10(1) (d) Government servants holding posts which have been declared by the authority which created them to be non-pensionable, (e) Holders 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. Note 1- In cases 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. Note 2- In the case of persons who were holding the posts of Attendants prior to 1st April, 1966, one-half of their previous continuous service as Attendants, shall be allowed to count for pension. " 11. Thus, reading the aforesaid Rules in conjunction, it is apparent that the Government servant is entitled to club the service rendered by him as a temporary employee or in an officiating capacity together with his service as a permanent employee, if, there is no interruption in his 10 wp2074.10(1) service. He is entitled to pension on the basis of his qualifying service, which commences from the date he joins service in any capacity and not only as a permanent employee. The Maharashtra Civil Services (Pension) Rules, are undoubtedly applicable to the petitioner. Therefore, the aforesaid Rules indicate that the petitioner's service from 15 February, 1979 when he joined the service as a Medical Officer till he retired from service on 31st October, 2000 as a permanent employee has to be reckoned for the purposes of ascertaining whether he had the qualifying service for payment of the pension. The exceptions contained in Rule 57 are not applicable to the petitioner. In our opinion, therefore, the petitioner would be entitled to pension by taking into account his service from 15th February, 1979 till he retired from service. 12. The submission of the learned Advocate for the respondent- University that it was only because of orders of this Court that the petitioner was regularised in service, and was therefore not entitled to pension, is without merit. The fact that the petitioner was regularised in service cannot be disputed. In fact, his service from 16th June, 1992 onwards till he retired on attaining the age of superannuation has been regularised. Therefore, whether the regularisation was because of the orders of this Court or otherwise is immaterial. Further the contention that the petitioner had not retired while in a permanent service, and therefore, would not be entitled for payment, is also unsustainable. The Division Bench has in the aforesaid Writ Petition held that the entire 11 wp2074.10(1) period of service from 16th June, 1992 till the age of superannuation was to be regularized. In fact, after the order was passed by this Court, the University has issued an order indicating that the petitioner's service had been regularised for the aforesaid period and that the intermittent breaks of service had been condoned. Therefore, we see no reason, why the petitioner ought not to be paid pension in accordance with the Maharashtra Civil Services (Pension) Rules. 13. We are fortified in the view, that we have taken by judgements of this Court in which the Rules 30 and 57 have been interpreted. 14. In the case of "Parshuram Vithoba Bhandare V/s State of Maharashtra and another" reported at " 2001(4) Mh.L.J. 587", this Court has considered Rule 30 of the Maharashtra Civil Services (Pension) Rules, 1982. It has been held that where an employee had completed more than 10 years continuous service as a labour supervisor and his salary has not been drawn from the contingency fund of the State, he was entitled to the pension. 15. In the case of "Shivappa S/o Bhujangappa V/s State of Maharashtra" reported at "2005(3) Mh.L.J. 709" considering the factual aspects of the case before it, the Division Bench has held that the petitioner in that case was entitled to the pension as his service did not fall within the exceptions carved out in Rule 57. 12 wp2074.10(1) 16. Similarly, in the case of "Waliuddin S/o Pashasaheb V/s The State of Maharashtra and another" in "Writ Petition No. 1542 of 2008 decided on 25th August, 2010, the Division Bench has after considering the judgements in the case of Parsuram (Supra), Shivappa (Supra) and in another case "Shankarlal Nandkishore Dhamat V/s State of Maharashtra & another reported at "2003(2) Bom.C.R., 294)", has held that the service rendered by an employee of the Municipal Council on a temporary basis must be clubbed with his service as a permanent employee for the purposes of the payment of pension. 17. In the case of "Shivaji S/o Jyotiba Pawar V/s The State of Maharashtra in Writ Petition No. 2016 of 2010, decided on 21st September, 2010, the Division Bench has relied on the judgements cited above. In view of the factual position in that case, the Division Bench has held that the petitioners were entitled to pension considering note No.1 of Rule 57 of the Maharashtra Civil Services (Pension) Rules. It has therefore held that a work charged employee is entitled to club the period of service rendered on that basis with the period spent by him in regular service for computing his pensionary benefits. 18. In the case of "Punjab State Electricity Board and another V/s Narata Singh and another" reported in "(2010) 4 Supreme Court Cases 317", considering the Rules applicable to an employee of the 13 wp2074.10(1) Punjab State Electricity Board, the Supreme Court held that the service rendered as a temporary employee must be clubbed together with the service as a permanent employee for computing pension. 19. Thus, considering the factual matrix of the case before us, there can be no doubt that the petitioner is entitled to club the years of service that he rendered as a Medical Officer on a temporary basis together with his service as a Lecturer, which was regularised w.e.f. 16th June, 1992 till the date of his retirement. The decision of the University dated 3rd January, 2006 not to grant the petitioner any pension is therefore, incorrect and illegal and has to be set aside. 20. Rule made absolute with costs. The petitioner's pension will be calculated and paid to him within four months from today. (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) ga s/2074.10(1)