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Judgment
R.K. DESHPANDE, J
The undisputed position from the reply filed by the respondent Nos.1 to 4 and 5, the authorities under the State Government, viz. the Deputy
Director of Education of the concerned Division and the Education Officer (Secondary), in respect of the service details of the petitioner, is narrated
below :
The petitioner obtained his Bachelor's degree in Arts in the year 1980 and Master's degree in Arts in the year 1982. The B.Ed. qualification was
acquired by him in the year 1986. The petitioner worked as a trained graduate teacher for a period of 20 years and 5 days from 26Â6Â1968 to
30Â6Â1988 in the Secondary School, i.e. Nashik Madhyamik Vidyalaya, Gopal Nagar, Nagpur, the grantÂinÂaid School. The said School was
derecognized by the order of the Education Department, passed on 30Â6Â1988. The name of the petitioner was included in the list of surplus
teachers published by the Education Officer (Secondary), Zilla Parishad, Nagpur, for absorption on 25Â10Â1991. The petitioner was absorbed as an
Assistant Teacher in the Secondary School, viz. Dharmaraj Vidyalaya, Pili Nadi, Nagpur, on 1Â8Â1992 and he worked there for 13 years and 2
months up to 30Â9Â2005, when he attained the age of superannuation and was retired.
There was a break in service of the petitioner from 1Â7Â1988 to 31Â7Â1992, i.e. for a period of 4 years and 1 month, as calculated by the
respondents. The service of the petitioner for a period of 13 years and 2 months rendered by the petitioner from 1Â8Â1992 to 30Â9Â2005 in
Dharmaraj Vidyalaya was counted for pension, ignoring his past service of 20 years and 5 days rendered at Nashik Madhyamik Vidyalaya during the
period from 26Â6Â1968 to 30Â6Â1988. The Deputy Director of Education, Nagpur Division, Nagpur, submitted a proposal to the State
Government on 15Â12Â2005 to condone the break in service of 4 years and 1 month and to count the past service of 20 years for the purpose of
grant of pension and other retiral benefits to the petitioner.
The Scheme of Voluntary Retirement from Service is applicable to the teachers working in the aided Secondary Schools as per the Government
Resolution dated 9Â9Â1988, as a result of which, the petitioner working as an Assistant Teacher in the aided Secondary School was entitled to give a
notice of voluntary retirement from service upon completion of 20 years' continuous service in order to get the full pensionary benefits. If the
petitioner had obtained voluntary retirement from service as on 30Â6Â1988 while working at Nashik Madhyamik Vidyalaya, which was deÂ‐
recognized, he would have got the full pensionary and other retiral benefits.
Challenge :
By the communications dated 29Â8Â2006, 20/26Â10Â2006 and 3Â1Â2007, the Department of School Education and Sports of the State
Government rejected the claim of the petitioner to condone the break of 4 years and 1 month on the ground that it is not covered by the policy of the
State Government, relying upon the Government Resolutions dated 12Â11Â1976 and 10Â5Â1989. Hence, all these communications along with the
Government Resolutions are the subjectÂmatter of challenge in this petition. Though the petitioner completed 13 years and 2 months' service in
Dharmaraj Vidyalaya, where he was absorbed, he is deprived of full pensionary benefits because of the break in service from 1Â7Â1988 to 30Â7Â‐
1992, i.e. for a period of 4 years and 1 month.
Contentions :
The petitioner claims counting of his past service of 20 years and 5 days for getting the additional retiral benefits, including enhancement in
pension. The petitioner submits that the total service of 33 years, 2 months and 5 days, rendered by him is required to be taken into consideration for
grant of additional benefits. According to Shri Mohgaonkar, the learned counsel appearing for the petitioner, the object of Rules 25A and 26 of the
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 is common to protect the service of the permanent
employees and merely because the right of absorption is provided to those covered by Rule 26, no discrimination can be made between the employees
absorbed under any of the two Rules.
According to the respondents, the maximum period of break, which can be condoned by the State Government, is of 2 years, including six breaks,
each of not more than six months, as per the policy of the State Government contained in the Government Resolution dated 4Â11Â1968. Even
otherwise, according to the respondents, the Government Resolution dated 12Â11Â1976 clarifies the earlier Government Resolution dated 4Â11Â‐
1968 and it states that the breaks after 30Â9Â1974 in respect of the teachers should not be condoned.
The undisputed factual position in the present case gives rise to the following question of law :
Whether the respondents were right in rejecting the claim of the petitioner to count his past service of 20 years and 5 days for the purpose of pension
and other retiral benefits on the basis of the Government Resolutions dated 4Â11Â1968 and 12Â11Â1976?
Adjudication :
By the Government Resolution dated 4Â11Â1968, the Pension Scheme was made applicable to the employees in nonÂGovernment Secondary
Schools. Para 4 of the Scheme states that the teachers recruited on or after 1st April, 1966 shall automatically be governed by the Scheme and
such teachers will not be allowed to opt for the Contributory Provident Fund Scheme. Para 7 along with Conditions No.(1) and (2) therein, of the said
Government Resolution being relevant, are reproduced below :
“7. In computing the length of qualifying service for pension under this scheme, all previous service, whether temporary, officiating or permanent,
whether in one or more than one nonÂGovernment Secondary School, shall be taken into account. Subject to the general condition that the period of
six breaks hereinafter referred to do not exceed two years, breaks in service on account of any of the reasons listed below not exceeding six in
number, should not be treated as interruptions entailing forfeiture of past service :
(1) Break in service on account of resignation of the teachers from a non Government Secondary School, provided it is followed by his taking up
service as a teacher in another recognized nonÂGovernment Secondary School and is not intervened by his taking employment in any other
capacity. Out of the maximum number of six breaks that can be condoned, not more than breaks should, however, be on account of such
resignation.
(2) Termination of service due to no fault of the teacher or on account of the circumstances beyond the control of the teacher. If the services of a
teacher have been terminated on disciplinary grounds after following the prescribed procedure, such break in service cannot be condoned and the
services rendered by the teacher in the
school from which his services are so terminated on disciplinary grounds will not account for pension.â€
In computing the length of qualified service for pension under the Scheme, all previous service, whether temporary, officiating or permanent, whether
in one or more than one nonÂGovernment Secondary School, has to be taken into account subject to the general condition that the period of each
break does not exceed six months and the total period of six breaks does not exceed two years. The petitioner being appointed after 1Â4Â1966,
was governed by the Pension Scheme. Thus, there cannot be any dispute that normally the past service of 20 years and 5 days rendered by the
petitioner in Nashik Madhyamik Vidyalaya can be taken into consideration in computing the length of qualifying service for pension, though the
petitioner worked in two different Schools before his retirement. The question is whether the break of 4 years and 1 month in the service of the
petitioner from 1Â7Â1988 to 30Â7Â1992 is by itself enough to reject the claim of the petitioner for full pensionary benefits.Â
In terms of Condition No.(2) in Para 7, reproduced above, in our view, the period of 4 years and 1 month is to be treated as interruption in service,
not entailing the forfeiture of past service, as the petitioner was terminated from the previous School on 30Â6Â1988 not because of any fault on his
part, but because the School itself was deÂrecognized, which was the circumstances beyond the control of the petitioner. It cannot be treated as
break in service. In our view, unless there is a forfeiture of past service, which can only be on account of either resignation from service or on
account of dismissal, removal or termination of an employee by way of punishment, it may not be permissible under the Pension Scheme to ignore the
past service rendered in computing the length of qualifying service for pension. We, therefore, hold that the denial on the part of the respondents to
reject the claim of the petitioner on the basis of the Government Resolution dated 4Â11Â1968, was illegal.
The Government Resolution dated 12Â11Â1976 prescribes the additional conditions required to be fulfilled for condonation of breaks in relaxation
of the provisions of Para 7 of the Government Resolution dated 4Â11Â1968. Appendix 'A' to the said Government Resolution provides additional
conditions No.(1) to (6) as under :
“(1) Breaks after 30Â9Â1974 in respect of teachers and after 31Â12Â1974 in respect of nonÂteaching staff should not be condoned.
(2) The number of breaks inclusive of technical breaks should not be exceed 10 of which not more than 4 breaks should be due to resignation.
(3) The interruption in service, should have been caused of any of the following grounds.
(a) UnÂemployment.
(b) PartÂTime service (due to nonÂavailability of full time employment).
(c) Service rendered in Night Schools, Colleges other Institutions, not covered by the pension scheme, of the management and service rendered in
unaided and unrecognised schools.
(d) Participation in freedom struggle.
(4) Service preceding the interruption should not be less than of 5 years duration and in cases where there are two or more interruptions, the total
service, the pensionary benefits, in respect of which will be lost if the interruptions are not condoned, should not be less than 5 years.
(5) The period of all breaks should not be more than 1/5th of the total qualifying service.
(6) The period of any single breaks should not be more than the period of earlier service, subject of course to the overall limits as in (5) above.â€
In terms of Clause (4) above, the service preceding the interruption should not be less than of 5 years' duration. In this case, this condition is
fulfilled, as the petitioner has rendered 20 years and 5 months' service prior to the interruption in service. This Government Resolution, therefore, helps
the petitioner rather than to oppose the claim. The denial to count the past service of 20 years and 5 months for the purpose of pension and other
retiral benefits on the basis of this Government Resolution, therefore, does not survive.
There is no other ground raised in defence by the respondents to deny the claim of the petitioner to count his past service of 20 years and 5 days
rendered in Nashik Madhyamik Vidyalaya during the period from 26Â6Â1968 to 30Â6Â1988. As per the Government Resolutions, referred to
above, the period of 4 years and 1 month during the period from 1Â7Â1988 to 30Â7Â1992, treated as a break in service, was in fact an interruption in
service. In terms of the said Government Resolutions, the petitioner having rendered more than 5 years' continuous service as a permanent full time
employee prior to 1Â7Â1988, the same was, therefore, required to be taken into consideration for the purpose of calculation of pension and other
retiral benefits.
In view of the aforesaid position, we need not consider the effect of Rules 25AÂ and 26 of the MEPS Rules to allow the petition.
In the result, the petition is allowed. The communications dated 29Â8Â2006, 20/26Â10Â2006 and 3Â1Â2007 are hereby quashed and set
aside. The respondents are directed to calculate the past service of the petitioner rendered for 20 years and 5 days during the period from 26Â6Â‐
1968 to 30Â6Â1988 for the purpose of counting the pensionable service and to release him all the pensionary and other retiral benefits accordingly
within a period of three months from the date of this judgment.
Rule is made absolute in the aforesaid terms. No order as to costs.