Nita Bhagwan Ware vs The State of Maharashtra & Ors.

Heard. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

This Petition is filed with the

following prayers:

B] By issuing appropriate writ, directions, order it may pleased be declared that deceased Bhagan Ware shall be considered as Full time Liberian from the date of his initial appointment i.e. 24/6/1996 in view of the fact that the strength of students was more that 1000 as stated in government resolution dated 28/6/1994.

C] By issuing appropriate writ, direction, order it may pleased be declare that the date on which the

decease Bhagwan Ashruba Ware was appointed i.e. 24/6/1996 shall be consider for notional pay fixation and for other retiral and pensionary benefits.

D] By issuing appropriate writ, direction, order the impugned communications dated 26/9/2014 and 4/6/2015 may kindly be quashed and set aside.

E] By issuing appropriate writ, direction, order, respondent authorities may kindly be directed to grant family pension to the petitioner by considering the initial date of the appointment i.e. 24/6/1996 of the deceased Bhagwan Ashruba Ware as a full time Liberian and to grant pensionary benefits accordingly.

Brief facts leading for filing the

Writ Petition are as under:

It is the case of the petitioner

that the husband of the petitioner, namely,

Bhagwan Ashruba Ware, came to be appointed on

24.06.1996 as a Part Time Librarian with

respondent no.4-school. His services came to

be confirmed on 22.06.1998. The services of

the husband of the petitioner came to be

confirmed as a Full Time Librarian with

respondent no.4-school on 14.03.2007.

Respondent no.3 has also approved upgradation

from Part Time Librarian to Full Time

Librarian with effect from 14.03.2007, vide

its approval letter dated 16.03.2007. It is

further the case of the petitioner that the

husband of the petitioner expired on

14.01.2011, while discharging his duties as

Librarian. The petitioner has also challenged

the order of withdrawal of the approval given

to the deceased husband of the petitioner in

the scale of trained graduate teacher by

filing Writ Petition No.7970/2011. The said

Writ Petition came to be allowed. The

Accounts Officer, Education Department, Zilla

Parishad, Beed, vide its order dated

23.07.2012, revised the pay scale of the

husband of the petitioner and made fixation

of the husband of the petitioner in the pay

scale of trained graduate. The office of

respondent no.5 has also approved family

pension in favour of the present petitioner.

It is further the case of the

petitioner that the petitioner was receiving

monthly family pension regularly from

07.09.2012 till January, 2014. The office of

respondent no.5 has issued communication

dated 19.02.2014 pointing out that the

husband of the petitioner was appointed as

Librarian on part-time basis with effect from

24.06.1996. As per the Secondary School Code,

it has been clearly stated that only full

time service is countable for pension/family

pension. However, after excluding the part

time service period, the actual service

starts from 01.04.2006 which is after the

stipulated date of 01.11.2005 from which

pensionary benefits in terms of the

Maharashtra Civil Services [Pension] Rules,

1982. Thus, in view of the Government

Resolution dated 31.10.2005, the husband of

the petitioner is not eligible for pensionary

benefits. The above-referred communication

was forwarded to respondent no.5 and present

petitioner by respondent no.3, vide its

letter dated 14.07.2014. The office of

respondent no.5, vide its letter dated

26.09.2014 giving reference of earlier letter

dated 19.02.2014, directed the Treasury

Officer, Beed, to stop the family pension of

the present petitioner. On the basis of above

mentioned letters, respondent no.3 directed

respondent no.4 school to initiate recovery

as against the amount given to the petitioner

under the family pension.

Learned counsel appearing for the

petitioner submits that the State of

Maharashtra had constituted Chiplunkar

Committee for recommending the staffing

pattern of non-teaching employees in the

schools based upon strength of the students.

The staffing pattern prescribed in the

Secondary School Code was found to be

inappropriate and efficiency of

administration was adversely affected. The

said Committee had submitted its report to

the State Government, and after the said

report was accepted; the State Government had

issued Government Resolution dated

28.06.1994. As per the Government Resolution

dated 28.06.1994, the up-gradation of part

time post to full time post was automatic

once the strength of the students had become

1000 or above. Hence, it was obligatory for

the respondents to grant status of full time

Librarian to the husband of the petitioner

from due date i.e. the date on which strength

of the students had become 1000 or above in

the school, along with all consequential

benefits, pay fixation from due date, arrears

of salary, time bound promotions and

pensionary benefits. It is submitted that

from the date of initial appointment of the

husband of the petitioner, the strength of

the students was more than 1000. Respondent

no.4 had issued certificate dated 13.08.2015,

certifying that from the educational year

1996-97 till 2006-07 the strength of students

was more than 1000. The State Government,

thereafter, had issued Government Resolution

dated 03.08.2006 relying upon the Government

Resolution dated 28.06.1994. It was

specifically admitted that the Government has

already granted its approval for creation of

284 posts of full time Librarians in the

Government Resolution dated 28.06.1994. In

view of the Government Resolution dated

03.08.2006, the State Government had up-

graded posts of part time Librarians of 924

schools to full time Librarians mentioned

that it would be fresh appointment as

Librarian. Similarly, it was also mentioned

that the services rendered as part time

Librarian would not be counted for pay

fixation.

It is submitted that the conditions

mentioned in the Government Resolution dated

03.08.2006 were subject matter of various

Writ Petitions filed before the High Court.

The Nagpur Bench of the Bombay High Court has

allowed the Writ Petitions and thereby

granted all benefits to the said employees by

treating them to be entitled as full time

Librarian from the initial date of

appointment when strength of students had

exceeded 1000 relying on the Government

Resolution dated 28.06.1994. Similarly, one

more Petition was filed challenging the same

issue before this High Court and the same was

allowed, relying on the order dated

28.01.2015 passed in Writ Petition

No.6630/2013 [Kiran Keshavrao Girhe & others

Vs. State of Maharashtra & others] along with

connected Writ Petitions. It is submitted

that the appointment of the husband of the

petitioner has been made in the year 1996,

according to the Maharashtra Employees of

Private Schools Rules, the right has been

created in favour of the husband of the

petitioner to seek implementation of the

policy decision based upon the

recommendations of the Chiplunkar Committee.

On the basis of the Government Resolution

dated 28.06.1994, the post of the petitioner

was automatically become full-time Librarian

on the basis of the strength of the students

was more than 1000 every year from the date

of initial appointment of the husband of the

petitioner. The respondent authorities ought

to have considered the fact that the impugned

communication was issued on the basis of

Government Resolution dated 03.08.2006, which

is inconsistent with their earlier Government

Resolution dated 28.06.1994. The condition of

up-gradation of the post as fresh appointment

is incorporated in the Government Resolution

dated 03.08.2006 with a view to deprive the

persons like the husband of the petitioner

from getting pensionary benefits, was held to

be unconstitutional in earlier Writ Petition

filed before the High Court. It was further

held that the condition mentioned in the

Government Resolution dated 28.06.1996 would

be the date for considering the effect of

service as full time Librarian and for

granting the service benefits to the persons

i.e. husband of the petitioner. The Supreme

Court, in the catena of judgments, has held

that the pensionary benefits, which was given

to the persons, cannot be withdrawn if those

are not granted on the basis of

misrepresentation or false information. The

Supreme Court has also issued guidelines

about recovery of pensionary benefits already

given to the petitioners. Therefore, the

impugned communications are illegal, unjust

and hence same requires to be quashed and set

aside.

Pursuant to the notices issued to

the respondents, respondent no.3 has filed

affidavit-in-reply. It is stated in the said

affidavit-in-reply that the husband of the

petitioner is not entitled for family

pension, as he rendered services as part-time

Librarian from 24th June, 1996 to 31st March,

2006. The office of Accountant General is

communicated that the family pension is

applicable only to the full-time Librarian

and not to the part-time Librarian, as per

the Secondary School Code, 2003. It is

submitted by the learned AGP that the

petitioner became eligible for the benefit of

the full-time Librarian in the year 2006,

vide Government Resolution dated 8th November,

2005; the employees, who are recruited after

01.11.2005, are entitled for D.C.P.S. scheme.

The husband of the petitioner was getting the

benefits of full time Librarian from

01.04.2006 i.e. after the issuance of the

Government Resolution dated 08.11.2005.

Hence, the husband of the petitioner is not

entitled for regular family pension.

We have given careful consideration

to the submissions of the learned counsel

appearing for the parties. With their able

assistance, we have perused the pleadings in

the Petition, grounds taken therein and

annexures thereto, and also the affidavit-in-

reply filed on behalf of respondent no.3. It

appears that the husband of the petitioner,

namely, Bhagwan Ashruba Ware, was initially

appointed as part-time Librarian on 24th June,

1996, and thereafter, his services were

confirmed on 22nd June, 1998. It further

appears that thereafter he rendered services

continuously, and then he was appointed as

full-time Librarian with respondent no.4

school on 14th March, 2007. Respondent no.3

has also approved up-gradation from part-time

Librarian to full-time Librarian with effect

from 14th March, 2007, vide its approval

letter dated 16th March, 2007. The husband of

the petitioner died while in employment on

14th January, 2011. The petitioner also

started receiving pensionary benefits,

however, those benefits were stopped

subsequently. The petitioner has placed on

record certificate dated 13th August, 2015,

issued by the Head Master of the Sham

Vidyalaya, Dahiphal Wadmauli, Taluka Kaij,

District Beed. The said certificate reads

thus: "VERNACULAR MATTER OMITTED"

In the affidavit-in-reply filed on

behalf of respondent no.3, there is no denial

to the strength of the students shown in

every year from the year 1996-97. The husband

of the petitioner was only part-time

Librarian, serving in the said school.

Perusal of the said certificate would make it

abundantly clear that the strength of the

students from the year 1996 till 2007 is more

than 1000 every year. The Division Bench of

the Bombay High Court Bench at Nagpur [Coram:

B.P.Dharmadhikari & A.S.Chandurkar, JJ.] in

Writ Petition No.6630/2013 [Kiran Keshavrao

Girhe & others Vs. State of Maharashtra &

others] had occasioned to interpret the

Government Resolution dated 28th June, 1994,

issued by School Education Department and

considering the prayer of the petitioners

therein seeking relief of up-gradation of the

post of part-time Librarian to full-time

Librarian, the Court held that in terms of

the aforesaid Government Resolution, on

number of students exceeding 1000, post of

Part Time Librarian is upgraded to the post

of Full Time Librarian. In the facts of that

case, the Court held that though the

petitioners therein have been upgraded on the

post of Full Time Librarian with effect from

1st April, 2006, they are entitled for similar

treatment as has been granted by order dated

9th February, 2012, in respect of the

similarly situated employees. Therefore, the

Petition was allowed, however, it appears

that in the said case the petitioners therein

have given up the claim of arrears of salary.

It is made clear that the benefits of

granting approval to the post of Full-Time

Librarian from the initial date of

appointment would be available only for the

purpose of notional pay fixation, time bound

promotion and pensionary benefits in

accordance with the Rules. Accordingly, it

was ordered that the petitioners therein are

entitled to grant of upgradation to the post

of Full Time Librarian with effect from their

initial date of appointment.

Yet in another case in the case of

Ravindra Nana Patil Vs. The State of

Maharsahtra and others in Writ Petition

No.7779 of 2012, decided on 9th March, 2015,

the Division Bench of the Bombay High Court

Bench at Aurangabad [Coram: S.V.Gangapurwala

and V.L.Achliya, JJ.], dealing with the

similar facts situation, ordered as under:

I. The Petitioner shall be considered as a Full Time Librarian from the date of his initial appointment i.e. 1st March, 1998, in view of the fact that the strength of the students was more than one thousand. The said date shall be considered for notional pay fixation so also for time bound promotion and other retiral and pensionary benefits. However, the Petitioner would not be entitled for the difference of salary from 1998 till 2006.

As already observed, in the present

case also, from the date of the appointment

of the petitioner, the strength of the

students is continuously more than 1000 every

year, and therefore, the husband of the

petitioner shall be considered as Full-Time

Librarian from the date of initial

appointment i.e. 24th June, 1996, in view of

the fact that the strength of the students

was more than 1000. The said date shall be

considered for notional pay fixation so also

for time bound promotion and other retiral

and pensionary benefits. However, the husband

of the petitioner would not be entitled for

the difference of salary from 1996 till 2006.

Accordingly, Writ Petition is

allowed in terms of prayer clauses-B, C, D

and E and the same stands disposed of.