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Judgment
(Per Abasaheb D. Shinde, J.)
Rule. Rule made returnable forthwith. With the consent of the parties, Writ Petition is taken up for final hearing at the stage of admission.
By this Writ Petition under Article 226 of the Constitution of India, the petitioner has put forth the following prayers :
"B) By issuing a Writ of Mandamus or any other writ, order or directions in the like nature, this Hon'ble Court may kindly be pleased to quash and set aside the impugned communication/order dated 27.06.2022 issued by the respondent No.5 as Exh.–"C".
C) By issuing a Writ of Mandamus or any other writ, order or directions in the like nature, this Hon'ble Court may kindly be pleased to hold and declare that, the petitioner is governed under the Old Pension Scheme i.e. Maharashtra Civil and Services (Pension) Rules, 1982 Maharashtra Civil Services (Commutation of Pension) Rules, 1984 and General Provident Fund which are applicable to the Assistant Teachers, who are appointed prior to 01/11/2005.
D) By issuing a Writ of Mandamus or any other writ, order or directions in the like nature this Hon'ble Court may kindly be pleased to direct the respondents to release the pensionary benefits as admissible under the Maharashtra Civil Services (Pension) Rules, 1982 and Maharashtra Civil Services (Commutation of Pension) Rules, 1984."
It is the case of the petitioner that, on 22.06.1996, she was appointed by the private institution viz. Shri Shivaji Shikshan Prasarak Mandal against a clear vacant post of 'Full time Assistant Teacher' in Vitthal Madhyamik Vidyalaya, Aradgaon Tq. Rahuri, Dist. Ahilyanagar. Her services were terminated by the management on 26.04.2000. Being aggrieved she filed an appeal before the School Tribunal, Solapur which came to be allowed on 18.03.2002 by setting aside the termination of the petitioner and directing the management to reinstate her. The said order of the School Tribunal was assailed before this Court; however, this Court refused to grant interim relief.
The petitioner contends that, the management on 26.02.2003 reinstated her in a school which was receiving 100% grants-in-aid. On 25.02.2004, the Education Officer approved her services against a post receiving 20% grants-in-aid. Thereafter, on 01.03.2007, her services were approved as Full-time Assistant Teacher in a division receiving 100% grants-in-aid.
The petitioner further contends that, she stood superannuated on 31.05.2022. The proposal for grant of her pensionary benefits was submitted to respondent No.5; however, by the impugned order the same is turned down on the ground that her initial appointment was on a no-grant basis and her services on 100% grants-in-aid division were approved for the first time on 01.03.2007, i.e. after the cut-off date of 01.11.2005. The petitioner, therefore, has approached this Court.
Learned counsel for the petitioner submits that, though the petitioner was appointed as Assistant Teacher in unaided division prior to the cut-off date and started receiving 100% grants-in-aid after the cut-off date, however, the school in which the petitioner was working was receiving 100% grants-in-aid even before the cut-off date and therefore, the petitioner is entitled to the benefit of the Old Pension Scheme (OPS). To substantiate his submission, he has relied upon the following judgments :
Nilesh Namdev Gurav and Others vs. The State of Maharashtra reported in 2022(3) Mh.L.J.615.
ii) The judgment of the Co-ordinate Bench of this Court at Nagpur in Prashant Dnyaneshwar Chimne and others vs. The State of Maharashtra and Others in Writ Petition No.4532 of 2023 alongwith connected petitions, decided on 19.07.2024
iii) The judgment of the Co-ordinate Bench of this Court in Dattatrya Patingrao Borse vs. The State of Maharashtra and Others in Writ Petition No.8548 of 2022 alongwith connected Writ Petitions.
iv) The judgment of Co-ordinate Bench of this Court at Nagpur in Ramashankar Ramadhar Mishra vs. State of Maharashtra and Others in Writ Petition No.2495 of 2024 alongwith connected petitions.
Per contra, learned AGP would submit that since initial appointment of the petitioner was on no grant basis prior to the cut-off date and her services were approved in 100% grants-in-aid division after the cut-off date, the petitioner is not entitled for the benefit of the OPS and respondent No.5 has, therefore, rightly rejected the proposal of the petitioner seeking the benefit of the OPS.
We have heard learned counsel for the petitioner and learned AGP for respondent/State, and have gone through the record as well as the judgments relied upon by the learned counsel for the petitioner. Indisputably, when the petitioner was reinstated on 26.02.2003, the school in which he was working started receiving 100% grant-in-aid before cut-off date of 01.11.2005, irrespective of the fact that the division to which the petitioner was teaching was partially aided.
The issue involved in this Writ Petition is no longer res integra and has been conclusively decided in the case of Nilesh Namdev Gurav (supra). The same view has consistently been followed by this Court in various judgments. In the case of Prashant Dnyaneshwar Chimne (supra), the Co-ordinate Bench of this Court has observed thus:
"12.This issue fell for consideration in various subsequent petitions wherein consistently it has been ruled that irrespective of the division, if the School is receiving 100% grant on cut of date and the employees are appointed prior to the said date, they are governed by the old pension scheme. To quote few, such view is reiterated by this Court in cases of Prabha V/s. State of Mah, and ors. [Writ Petition No. 5463/2021, decided on 23/06/2022], Rajesh S/o. Anant Tumsare V/s. State of Mah. and ors. [Writ Petition No.4338/2022 along with connected matters, decided on 29/07/2022], Nilima Harishchandra Katole and ors. V/s. State of Mah. and ors. [Writ Petition No. 1534/2020, decided on 08/03/2023], Shirin Bano Sheikh Mehboob V/s. State of Mah. and ors. [Writ Petition No. 262/2023, decided on 30/06/2023], Pradeep Rangrao Nalawde (Dr) V/s. Poona College of Pharmacy and ors. [Writ Petition No. 2187/2022, decided on 03/07/2023], Govardhan S/o. Waman Lanje V/s. State of Mah. and ors. [Writ Petition No. 328/2023, decided on 31/07/2023], Baban S/o. Gulabrao Koradkar V/s. State of Mah. And ors. [Writ Petition No. 2596/2022 along with connected matters, decided on 05/07/2023], Rajesh S/o. Anant Tumsare and ors. V/s. State of Mah. and ors. [Writ Petition No. 4623/2023, decided on 04/09/2023] and Smt. Jotsna Wd/o. Sanjay Katait V/s. State of Mah. and ors. [Writ Petition No. 8083/2022 along with connected matter, decided on 25/09/2023]."
A similar view has been taken by the Co-ordinate Bench at Nagpur in the case of Ramashankar Ramadhar Mishra (supra), wherein the following observations are made :
"3.Thus, the Division Bench held that the employees similarly situated to the petitioners therein, who were appointed prior to the cut-off date and whose division was brought under the 100% grant-in-aid scheme subsequent to the cut-off date, are entitled to the benefit of the Old Pension Scheme, similar to those who were appointed prior to the cut-off date in 100% aided schools. The only rider is that the employees ought not to have applied for the DCPS Scheme. In the present case, when inquired learned Counsel for the petitioners makes a statement that none of the petitioners have applied for the DCPS Scheme. The statement is accepted. In that view of the matter and for the reasons noted by Division Bench at Aurangabad, we are inclined to allow the petitions.
4.Learned AGP submits that the issue involved is pending before the Hon'ble Supreme Court in the case of Pradip Madhorao Mahalle and others vs State of Maharashtra, through its Secretary Finance Department and others, Civil Appeal No(s). 9512/2018 and therefore matter may be adjourned sine die. This plea cannot be accepted. In Dattatraya Patingrao Borse's case, similar such plea was taken but was declared by the Division Bench in paragraph 7 of the judgment, which we have reproduced above."
In view of the above, we are of the considered view that, the case of the petitioner is squarely covered by the judgments cited supra. Therefore, by adopting a similar view, we pass the following order :
ORDER
The Writ Petition is allowed in terms of prayer clauses 'B', 'C' and 'D'.
ii) Rule is made absolute in the above terms.