( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Civil Application No. 11745 of 2005 (For Review) (In Writ Petition No. 1829 of 1992) Smt. Shobha Subhash Kshirsagar, Age : 55 years, Occupation : - , R/o. Lendkar Mala, .. Applicant Balikashram Road, (Original Ahmednagar. respondent no.6) versus 1. The State of Maharashtra, through Secretary, Education Department, Mantralaya, Mumbai - 32. 2. The Deputy Director of Education, 17, Ambedkar Road, Pune. 3. The Education Officer, Zilla Parishad, Ahmednagar. 4. The Chairman, Balikashram Sanstha, Delhi Gate, Ahmednagar. 5. The Head Mistress, Balikashram High School, Delhi Gate, Ahmednagar. ( 2 ) 6. Vasant Dattatraya Kulkarni, .. Non-applicants Age : 43 years, (Nos.1 to 5 - Occupation : Service, Original respondents R/o. Balikashram High School, & Ahmednagar. No.6 - Original petitioner.) ............................. Mr. S.P. Deshmukh, Advocate, for the applicant. Mr. N.B. Patil, Assistant Government Pleader, for non-applicant nos.1 and 2. Respondent no.3 served (Absent). Mr. V.S. Bedre, Advocate, for non-applicant nos.4 and 5. Mr. A.K. Gawali, Advocate, for non-applicant no.6 (writ petitioner). ................................. CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 20TH JULY 2010 COURT'S ORDER (Per B.R. Gavai, J.) : 1. This is an application, on behalf of respondent no.6 in the Writ Petition, seeking review of the judgment and order ( 3 ) passed by this Court, dated 9th March 2004, in Writ Petition No. 1829/1992. 2. Mr. S.P. Deshmukh, learned Counsel appearing for the applicant, submits that in the judgment under review, this Court has not considered the fact regarding accommodating the applicant on the post of Peon, which would have fallen vacant after the writ petitioner in the petition was appointed as a Junior Clerk in place of the petitioner. 3. The Writ Petition No. 1829/1992 was filed by the writ petitioner (non-applicant no.6 herein), challenging the order issued by the non-applicant no.4, thereby appointing the applicant herein, to the post of Clerk, and the order dated 13th July 1992, passed by the Deputy Director of Education, Pune, thereby granting approval to the appointment of the present applicant. 4. The non-applicant no.6 (writ petitioner) was appointed as a Peon in the respondent no.5 / College, on 12th December 1981. On 16th March 1989, the State Government had issued directions to the private managements to promote Class-IV employees as Class-III employees who possessed the requisite qualification. However, in defiance to the said directions, the applicant herein came to be appointed as Junior ( 4 ) Clerk on 1-6-1990. 5. We find that the appointment of the applicant, as a Clerk, directly, was not justified and, therefore, we see no reason to interfere with the findings recorded by the Division Bench of this Court, dated 9th March 2004, to the extent it quashes and sets aside the appointment order of the applicant and directs appointment of the present non-applicant no.6 (writ petitioner). However, we find that in order to work out the equities, it is necessary, in the interest of justice, that the applicant be accommodated on the post of Peon, falling vacant on account of promotion of the writ petitioner. However, now, by passage of time, the applicant has already been superannuated on 10-11-2009 and, as such, it is not possible, to physically restore her to the post of Peon. 6. In the peculiar facts and circumstances of the case, we find that the applicant is entitled to the pensionary benefits in view of Rule 62(4) of the Maharashtra Civil Services (Pension) Rules, 1982 (For short, "Pension Rules"), which undoubtedly, are applicable to the employees of the aided schools in view of Rule 19 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. 7. Mr. N.B. Patil, learned Assistant Government Pleader ( 5 ) appearing for non-applicant nos.1 and 2, vehemently opposes the prayer of the applicant, for pensionary benefits, on the ground that the applicant has not completed the qualifying service of 20 years. 8. We find that the Court, while allowing the petition of the writ petitioner, could have considered the claim of the present applicant (respondent no.6 in the petition) regarding absorption of the applicant in the post of Peon falling vacant on account of petition of the writ petitioner being allowed. 9. Rule 62(4) of the Pension Rules deals with the Compensation Pension and reads thus : " Different classes of pensions - The following different classes of pensions may be granted to Government servants or their families :- (1) .......................................................... (2) .......................................................... (3) .......................................................... (4) "Compensation Pension", which is a pension granted to a Government servant who is discharged from Government service otherwise than on medical certificate and for no fault of his own, before earning a Retiring or Superannuation Pension. " ( 6 ) 10. The applicant (original respondent no.6), in the present case, has been discharged from services on 6-5-2004, in pursuance to the orders passed by this Court, dated 9th March 2004. It can, thus, be seen that discharge of the applicant from the services is on no fault of her own. We find that if the equities would have been worked out at the stage of passing of the order dated 9th March 2004, the applicant would have been continued to work as a Peon and, as such, would have been in service till attaining the age of superannuation and, as such, entitled for pensionary benefits. 11. In that view of the matter, we pass the following order : The order dated 9th March 2004, passed by this Court, in Writ Petition No. 1829/1992, is modified. The order of appointing the applicant (original respondent no.6), on the post of Junior Clerk, which is already quashed and set aside, vide order dated 9th March 2004, and the order of directing appointment of the non-applicant no.6 (writ petitioner) to the said post of Junior Clerk, are maintained. However, it is directed that the applicant (original respondent no.6) should be notionally treated to have retired from services on 6th May 2004 ( 7 ) and, thus, entitled to Compensation Pension in view of Rule 62(4) of the Pension Rules. It is made clear that the necessary papers for making applicable pensionary benefits to the applicant shall be submitted by the respondent / management, to respondent no.3, within a period of one month from today. On receipt of the same, the necessary steps shall be taken by the respondent no.3 and the payment of the Compensation Pension shall be started within a period of three months therefrom. It is further made clear, that the arrears of pension from 6th May 2004 shall be paid within a period of six months from today. 12. The Civil Application, for review, is allowed in the above terms. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/11745ca