: 1 : wp-3238-10=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3238 OF 2010 Ms. Banubi Abubakar Bagwan .. Petitioner v/s. State of Maharashtra & Ors. .. Respondents ......... Mr. Uday Warunjikar for the petitioner Mrs. Molina Thakur, AGP for respondent nos. 1 and 2. Mr. S.J. Ghogre for respondent nos. 3 and 4. ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 22nd JUNE 2011. P.C. : 1. Heard Counsel for the parties. Counsel for the petitioner contends that the Government could have condoned the deficit of around 2 years and 3 months to make the petitioner eligible for pensionary benefits, considering the fact that the petitioner had worked as part time teacher for almost over 12 years in the same college, from where she eventually retired on 31st October, 2004. She was appointed as a part time teacher on 15th November, 1984; and as full time teacher from 20th June, 1997. The impugned decision passed by the Divisional Joint Director, dated 4th September, 2009 merely refers to the fact that the petitioner is ineligible to get the pensionary benefits in terms of : 2 : wp-3238-10=.doc Maharashtra Civil Services (Pension) Rules, 1982, as she did not have qualifying service for the period 10 years and above. Indeed, power of condonation is provided in Rule 54 of the same Rules. That power can be exercised by the Government for special reasons to be recorded to condone the deficiency, which does not ordinarily exceed one year for the period of service qualifying for pension. In the present case, admittedly, the deficit period in the case of petitioner is over 2 years and 3 months. Realising this position, the argument of the petitioner is that the Government could have exercised power under Rule 4 to relax the eligibility criteria qua the petitioner, in the peculiar facts of the present case, and more so, because the petitioner had served as part time teacher for over 12 years in the same institution. There is no difficulty in acceding to the argument of the petitioner that the Government has power to relax the operation of any of the Rules, which causes or is likely to cause undue hardship in the case of any Government Servant or Class of Government Servants. 2. The argument though attractive at the first blush, deserves to be stated to be rejected. The Government in exercise of power under Rule 4 cannot, however, act contrary to the express provision contained in Rule 54, which confers circumscribed power on the Government to condone the deficit to the extent provided therein. Besides, the : 3 : wp-3238-10=.doc petitioner having worked as part time teacher, that service cannot be reckoned as employee of the institution. Inasmuch as, the Government Resolution specifies that an employee must be a full time professor, lecturer etc. In that sense, the service rendered by the petitioner as part time teacher cannot be considered as having served as an employee within the meaning of the said definition. Suffice it to observe that if the argument of relaxation as advanced by the petitioner were to be taken forward, it would result in requiring the Government to take decision in breach of Rule 54 of the Rules. The operation of Rule 4 will, therefore, have to be harmonised with the mandate of Rule 54 of the Rules. 3. Accordingly, in our opinion, even if the Court were to express sympathy for the situation encountered by the petitioner, no relief can be granted to the petitioner, which would be contrary to the mandate of the Rules of 1982. 4. Hence, dismissed. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)