(1) JUD-815.2011-WP IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 815 OF 2011 Syed Afzaluddin Ustad S/o Abdul Samad Age : 65 years, Occu.: Nil, Resident of 7 Bhai Masjid, Hadkali Galli, Ustad Kirana Udgir, District Latur PETITIONER VERSUS 1. The State of Maharashtra Through Secretary Nagar Vikas Vibhag Department Mantralaya, Mumbai-400 032. (Copy to be served on Government Pleader, High Court, Aurangabad) 2. The Chief Officer, Municipality Udgir, Taluka Udgir, District Latur RESPONDENTS ..... Mrs. A.N. Ansari, Advocate for the Petitioner. Mr. V.D. Rakh, A.G.P. for the Respondent-State. Mr. P.V. Barde, Advocate for the respondent no.2 ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 24TH AUGUST, 2011 JUDGMENT (PER - M.T. JOSHI, J.): 1. Rule. Rule made returnable forthwith. Heard by consent. 2. The petitioner seeks a declaration that his (2) JUD-815.2011-WP services as daily wages on the establishment of respondent no.2 Municipal Council, Udgir be counted as per Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982 (for short "the said Rules") and be held as completed qualifying service of more than 10 years. A consequential declaration is also sought that the impugned orders dated 24.1.2006 and 12.3.2008 rejecting his claim be quashed and set aside. 3. The petitioner was Class-IV employee on daily wages with the respondent no.2 since the year 1987. His services came to be regularised alongwith number of other similarly situated employees vide respondent no.1-Government of Maharashtra's direction dated 29.12.2000. He was superannuated on 31.8.2005. At the time of regularising the services, the respondent no.1 had declared that none of the employees shall claim any financial or other benefits by counting the earlier service rendered by them on daily wages. Therefore, the request of the petitioner for grant of pension was refused. 4. The respondent no.2 submits that since at (3) JUD-815.2011-WP the time of regularisation of the services, the petitioner agreed that his past services would not be counted for any purposes and now he is not entitled for any pensionary benefits by computing his earlier service. Mr. Barde, learned counsel for the respondent no.2 submitted that the petitioner is now estopped from claiming the benefit, as he has accepted the condition to regularisation of the services that he would not claim any benefit of the past services. Reliance is placed in the cases of (i) Steel Authority of India Ltd. Vs. Union of India and ors. AIR 2006 S.C. 3229, (ii) Krishna Bahadur v. M/s. Purna Theatre and ors. AIR 2004 S.C. 4282, (iii) State of Tripura and ors. Vs. K.K. Roy AIR 2004 S.C. 1249 and (iv) Prabhakar S/o Marotirao Dalal Vs. State of Maharashtra and anr. 2008(5) ALL MR 306. In all the cases, the principle of estoppel was held to be operative against the concerned persons since they on fact had agreed contrary to their claims made in the Court. 5. In the present case, the petitioner is relying over the provisions of Rule 57 and more particularly note 1 of the said Rules for computation of past (4) JUD-815.2011-WP services. Therefore, there cannot be estoppel against the statutory instrument. 6. Besides this, the petitioner has relied in the similar declaration made by the Division Bench of this Court presided over by the Hon'ble the Chief Justice in Writ Petition no. 1542 of 2008 dated 25.8.2010. In the said case, another employee of respondent no.2-Municipal Council, Udgir sought the similar relief, whose services were also regularised by the respondent no.2. When his similar claim was refused by the respondent no.2 in the Writ Petition, he relied over the provisions of Rule 57 Note 1 of the said Rules and this Court has allowed the Petition. 7. In view of the above circumstances, the Petition will have to be allowed and the benefits of provisions of note 1 of Rule 57 of the said Rules will be applicable in his case. Accordingly, we hold that the half of the services of the petitioner rendered between 16.2.1987 to 29.12.2000 are entitled to be counted for determining the pensionable service of the petitioner. If that is counted, the service (5) JUD-815.2011-WP of the petitioner comes to more than 10 years. In that view of the matter, we hold that the petitioner is entitled to pensionary benefits. The respondents shall take necessary steps for giving the pensionary benefits to the petitioner within a period of two (2) months from today and start making actual payment of the pension within a period of three (3) months from today. 8. It is further directed that all arrears of the pension shall be cleared within a period of six (6) months from today. Rule is made absolute in the above terms. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/