Dr. Pramila Ashok Divate vs State Of Maharashtra & Ors.

Rule. Rule is made returnable forthwith. With the consent of the parties, the writ petition is heard finally at the stage of admission.

By this writ petition filed under Article 226 of the Constitution of India, the petitioner has put forth the following substantive prayers:

It is the case of the petitioner that she possesses the qualifications of Ayurveda Wachaspati (M.D. Ayurvedic) in the Sharir Rachna and Kayachikitsa as well as Ph.D. in the subject of Sharir Rachana. On 11.06.2004, respondent No. 5 published an advertisement for recruitment to the post of Professor in the subject of Sharir Rachna from the Open Category. She applied for the said post. On 25.02.2005, respondent No. 5 issued a call letter to the petitioner for an interview, which was scheduled to be held on 14.03.2005. The petitioner accordingly appeared for the interview before the Selection Committee. However, she was not interviewed on the ground that she was age-barred. She approached this Court by filing Writ Petition No.3139/2005 seeking direction that, she be interviewed. This Court, by order dated 09.03.2006, directed respondent No. 5 to interview her and, if found eligible, to issue her an appointment order. Though the order dated 09.03.2006 was sought to be reviewed at the behest of one Vikas Mahadev Ghutke, this Court dismissed the said review application by order dated 30.09.2006. Accordingly, on 10.07.2006, she was interviewed and selected for the post of Professor. Respondent No. 5, on 11.07.2006, issued her an appointment order. Respondent No. 4 approved her services. The petitioner stood superannuated in the year 2022. The respondents, by virtue of Government Resolution dated 31.10.2005, made the Defined Contribution Pension Scheme (DCPS) applicable to the petitioner under the pretext that, she was appointed after 01.11.2005. The petitioner, therefore, has approached this Court.

Learned counsel for the petitioner submits that though the respondent no.5 had issued appointment order in favour of the petitioner on 11.07.2006, however, the recruitment process pursuant to which she was appointed had commenced on 11.06.2004, in that view of the matter the petitioner is governed by Old Pension Scheme as per the provisions of the Maharashtra Civil Services (Pension) Rules, 1982. To buttress his submission, he has relied upon the judgment of this Court at the Principal Seat in Writ Petition No. 2270/2021, in the case of Khilari Rajendra Eknath and Others Vs. The State of Maharashtra and Others, decided on 28.04.2003.

Per contra, learned AGP strenuously contends that the petitioner's case would not be governed by the Old Pension Scheme, as the petitioner was appointed on 10.07.2006, i.e. after 01.11.2005. He further submits that though the pension proposal of gratuity and pensionary benefits, as per the Old Pension Scheme, there is no specific Government Policy as regards employees working in aided Ayurvedic colleges. Respondent No.3 has, therefore, sought guidance from the State Government and there is no policy decision taken so far in that regard. He, therefore, urged that the petition deserves to be dismissed.

We have heard learned counsel for the petitioner, learned AGP and perused the record.

Indisputably, the recruitment process to the post of Associate Professor had commenced on 11.06.2004, when the Respondent No.5 issued the advertisement. Pursuant to the said advertisement, the petitioner was called for an interview on 14.03.2005, however she was not interviewed on that day. It is under the orders of this Court that the petitioner was interviewed on 10.07.2006 and was appointed on 11.07.2006. We find that the petitioner cannot be faulted with that, she was not issued an appointment order immediately. Be that as it may, the fact remains that, the petitioner has been appointed pursuant to the recruitment process that had commenced prior to 01.11.2005. We are therefore of the considered view that, the petitioner is entitled for the benefits of Old Pension Scheme.

The issue involved in this Writ Petition had fallen for consideration before this Court at Principal Seat in the case of Khilari Rajendra Eknath (supra) wherein this Court while interpreting the words ‘recruitment’ and ‘appointment’ held that, ‘recruitment’ is a stage prior to appointment which entails selection of the candidates. ‘Selection’ is a process of picking a candidate from the short listed candidates. An appointment means the actual act of posting a person to a particular office. The relevant observations of this court reads thus :

In view of the aforesaid discussion and in the light of the observations of this Court in the case of Khilari Rajendra Eknath (supra) we find that the Writ Petition deserves to be allowed. In the result, we pass the following order.