Writ Petition No. 8000 of 2015. Case: Mahatma Phule Krishi Vidyapeeth Vs Ganpat. High Court of Bombay (India)
| Case Number | Writ Petition No. 8000 of 2015 |
| Counsel | For Appellant: P.L. Shahane, Advocate and For Respondents: P.V. Barde, Advocate, Advocate |
| Judges | R. V. Ghuge, J. |
| Issue | Constitution of India - Articles 226, 227 |
| Judgement Date | March 03, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
R. V. Ghuge, J.
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Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
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The petitioner has challenged the judgment of the Industrial Court dated 31.1.2015 by which Complaint (ULP) No. 81/2005 filed by the respondent herein has been partly allowed and he has been granted pension as per Rule 110 of the Maharashtra Civil Services (Pension) Rules, 1982.
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The contention of Shri Shahane, learned Advocate for the petitioner - Agricultural University, can be summarized as follows:-
a] The respondent has joined the petitioner as a daily wage employee on temporary basis in 1973.
b] He was engaged on daily wages depending upon the availability of the work and was paid wages from the daily wages funds received by the Government.
c] He was never paid wages from the contingency fund.
d] He was appointed on permanent establishment on 17.7.1993.
e] On 30.11.2000, he attained the age of superannuation and retired from service.
f] He has rendered only 7 years 4 months and 14 days on the permanent establishment of the petitioner.
g] He was paid gratuity and death-cum-retirement gratuity of Rs. 21,300/- and Rs. 10,650/-respectively on 14.10.2001.
h] He filed Complaint (ULP) No. 81/2005 after 4 years of retirement praying for directions to be given the pensionary benefits.
i] The Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred to as the 1982 Rules) do not prescribe payment of pension to any daily rated employee, who has not rendered qualifying service of 10 years as a permanent employee.
j] The Government has issued a circular under the signature of the Desk Officer dated 27.12.1993 that the 1982 Pension Rules as well as Rule 57 r/w Note 1 are not applicable to daily rated employees and they are not entitled for pensionary benefits.
k] The Industrial Court has erroneously considered Rule 110 while coming to a conclusion that the daily wage employees are entitled for pension.
l] Rule 110 is not applicable to the respondent since he has not worked for 10 years on permanent establishment.
m] The Industrial Court has mis-directed itself in concluding that the past service of the respondent as a daily wager needs to be added to his service period on permanent establishment for grant of pensionary benefits.
n] Neither Rule 57 r/w Note 1 nor Rule 30 grant any benefits to the respondent.
o] Unless there is a conversion of a temporary post into a permanent post, the past service of a temporary employee cannot be computed while calculating qualifying service.
p] The judgment of the Industrial Court dated 31.1.2015 deserves to be quashed and set aside.
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Shri Shahane has relied upon the following judgments:-
1] Narayan Balkrishna Deshpande v. Pune Zilla Parishad & another (2002 I CLR 736)
2] Motilal Gupta v. Central Administrative Tribunal, Allahabad & others (2002 (93) FLR 284)
3] Sudarsan Moharana v. State of Orissa & others (2007 LAB.I.C. 913)
4] Audit Officer, Local Funds, Mahabubnagar & another v. Ahmed Hussain & another (2001 II CLR 586)
5] State of Punjab & others v. Dev Dutt Kaushal & others (1995 (71) FLR 650
6] State of U.P. & another v. Narendra Bahadur Singh & others (2012 AIR SCW 1393)
7] Shivappa Bhujangappa Bembale v. State of Maharashtra & another (2005(6) Bom.C.R. 437)
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Shri Barde, learned Advocate appearing on behalf of the respondent - employee has supported the impugned judgment. His contentions in brief are as under:-
a] The respondent has joined duties on daily wages with the petitioner on 19.7.1973. Since then he has been working on daily wages.
b] He was paid his daily wages on half monthly basis i.e. for period of 15 days.
c] The respondent is a disabled person.
d] From the category of disabled persons, he was granted regularization in service on 16.7.1993. He retired on attaining the age of superannuation on 30.11.2000.
e] His service from 19.7.1973 till 30.11.2000 needs to be reckoned with for the consideration of pensionary benefits.
f] Since the petitioner failed to grant pensionary benefits, he was compelled to prefer the complaint before the Industrial Court.
g] He was paid gratuity only for 7 years of his permanent service without taking into account his earlier service from 1973.
h] The Industrial Court has rightly considered the fact that his services as a daily wager need to be added to his service post regularization for calculation of retiral and pensionary benefits.
i] Any circular issued by a Desk Officer cannot be read against the rules and cannot have the force of law.
j] This petition is devoid of merit and deserves to be dismissed.
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Shri Barde has relied upon the following judgments:-
1] Shiv Dass v. Union of India & others (2007 (0) BCI 189)
2] Vanita Shankar Agawane v. Deputy Chief Accountant (E/S) & others (2013 (2) Bom.C.R. 281)
3] State of Jharkhand & others v. Jitendra Kumar Srivastava & another (2013 DGLS (Soft) 632)
4] Prabhakar Marotirao Dalal v. State of Maharashtra & another (2008 (5) ALL MR 306)
5] U. Raghavendra Acharya & others v. State of Karnataka & others (AIR 2006 SC 2145)
6] Madhukar v. State of Maharashtra & others.
7] Devidas Bhiku Borker & others v. The State of Maharashtra & another (2011 (7) ALL MR 363)
8] Union of India & another v. Tarsem Singh (2008 DGLS (Soft) 894)
9] Parshuram Vithoba Bhandare v. State of Maharashtra & another (2002 (2) Bom.C.R. 740)
10] Shivaji Jyotiba Pawar v. The State of Maharashtra & others (WP 2106/2010 decided on 21.9.2010 - Aurangabad Bench)
11] Digambar Bhagirath Pagire v. The State of Maharashtra & others (WP 7227/2011 decided on 24.8.2012 - Aurangabad Bench)
12] Dhan Raj & others v. State of J. and K. & others (AIR 1998 SC 1747)
13] Ahmednagar Municipal Corporation v. Bansi Punaji Ghorpade (WP 942/2009 decided on 24.4.2009 - Aurangabad Bench)
14] Ahmednagar Municipal Council v. Sukhdeo Dhondiba Pacharne (WP 3944/2008 decided on 3.10.2008 - Aurangabad Bench)
15] Jayshree Narayan Mhaske v. State of Maharashtra & others (2005 (6) Bom.C.R. 382)
16] Shivappa Bhujangappa Bembale v. State of Maharashtra & another (2005 (6) Bom.C.R. 437)
17] Waliuddin Pashasaheb v. The State of Maharashtra & another (WP 1542/2008 decided on 25.8.2010 - Aurangabad Bench)
18] Syed Afzaluddin Ustad Abdul Samad v. The State of Maharashtra & another (WP 815/2011 decided on 24.8.2011 - Aurangabad Bench)
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I have considered the strenuous submissions of Shri Shahane for the petitioner and Shri Barde on behalf of the respondent, the judgments cited and the 1982 Rules.
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It would be apposite to reproduce Rules 30, 57 alongwith the Notes there below and Rule 110 of the 1982 Rules as under:-
"30. Commencement of qualifying service.-Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that at the time of retirement he shall hold substantively a permanent post of Government or holds a suspended lien or certificate of permanency:
Provided further that, in cases where a temporary Government servant retires on superannuation or on being declared permanently incapacitated for further Government service by the appropriate medical authority after having rendered temporary service of not less than ten years, or voluntarily after completion of twenty years of qualifying service, shall be eligible for grant of superannuation, Invalid or, as the case may be, Retiring Pension; Retirement Gratuity; and Family Pension at the same scales as admissible to a permanent Government servant. Exception.- The rules regarding grant of terminal benefits to temporary Government servants (except those mentioned in the second proviso) who retire without being confirmed in any post in Government service are embodied in
Appendix II.
Note 1.-If a Government servant is holding a temporary post when the permanent post on which he hold a lien is abolished in the circumstances described in rule 81, or if, at or very shortly after the abolition of the permanent post, he is appointed to a newly created temporary post is pensionable service.
Note 2.-In the case of employees of former Indian States who have been absorbed in Government service previous pensionable service rendered by them under the same State should it immediately followed by Government service be taken into account for purposes of pension on his final retirement from Government service, Pensionable...
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