Ulhas Vishwanath Devhare vs The State Of Maharashtra & Ors.

Heard learned Advocates for the parties.

Rule. Rule made returnable forthwith and by consent heard finally at the stage of admission.

Respondent No.1 is the State of Maharashtra, respondent No.2 is the Deputy Director of Education, respondent No.3 is the Education Officer (Secondary), respondent No.4 is the Superintendent, Pay and PF Unit (Secondary) and respondent Nos. 5 and 6 are the junior college and the management respectively.

Prayer in the petition is to grant the petitioner pension as per the old pension scheme. The facts in short giving rise to the present petition are that the petitioner was appointed as part time Librarian on 30.12.1994. Said appointment was approved by the Education Officer by order dated 07.02.1995 as part time Librarian. On 19.09.2008, he was promoted as full time Librarian by order of the Joint Secretary and transferred to Mahatma Phule Vidyalaya, Dadh (Bk), Taluka Rahata, Dist. Ahmednagar. Thereafter, the school forwarded proposal for upgrading the petitioner as a full time Librarian. The petitioner was even upgraded. Since the petitioner was appointed prior to 2005 though as a part time, it is case of the petitioner that he is entitled to get benefits of old pension scheme, as the school where he was working was fully aided school and the part time service needs to be counted as full time service for 50% of the period, for which he was part time Librarian. The petitioner, thus, made representation dated 10.01.2018 to the Education Officer and prayed for cancellation of Defined Contributory Pension Scheme applied to the petitioner. Since no heed was paid to the petition, he again made another representation dated 17.10.2022 along with other similarly situated employees to the Education Officer. However, still the benefits are not made applicable of the old pension scheme, the petitioner is before this Court.

Learned Advocate for the petitioner has pointed out appointment order dated 30.12.1994, which is not disputed. Approval dated 07.02.1995 is also not disputed. His service was approved is also accepted fact. On 13.01.2009, the Education Officer passed an order granting approval to the upgradation of service of the petitioner as full time. Learned Advocate, thus, submits that 50% of the service rendered as part time, needs to be counted as full time. Learned Advocate for the petitioner relies upon judgment in the case of Satish Ganpatrao Patil Vs. State of Maharashtra, MANU/MH/0547/2015. She submits that even the school at which the petitioner was appointed was receiving 100% grant is also not disputed and for all these reasons, the petitioner is entitled to to receive pension as per the old scheme.

Learned AGP vehemently opposes this petition by relying upon judgment in the case of Sunil Subhash Ekhande Vs. State of Maharashtra, 2023 SCC OnLine Bom 1577. It is case of the respondents that when the petitioner joined service, he joined as part time Librarian. Till 2009 i.e. till upgradation the petitioner was working only as part time. Service of part time cannot be considered as full time. For the purpose of not making old pension scheme applicable, he relied upon judgment in the case of Sunil Subhash Ekhande (supra), as stated earlier.

This Court has considered the submissions. Only question in the present matter is thus as to whether 50% period of the service as part time Librarian can be considered as full time and whether by considering such period, the petitioner can be given benefit of old pension scheme. This Court is no more resintergra. There are catena of decisions on this point. The petitioner has produced about 12 judgments of this Court from the Principal Seat, this Bench, Bench at Nagpur and also from Circuit Bench at Kolhapur, which have considered the legal position in detail to hold that 50% service of Librarian as part time be treated as full time and benefits of old pension scheme can be made applicable.

In the case of Vanita Rajendra Bhadule Vs. State of Maharashtra, Writ Petition (Stamp) No. 18703 of 2024 from Circuit Bench at Kolhapur, it is held that number of years rendered as part time can be considered as 50% of that period of full time and benefits can be granted. In the said judgment, the Court also considered judgment in the case of Satish Ganpatrao Patil (supra).

Even this Court in Mahajan Charushila Sitaram Vs. The State of Maharashtra & Ors., - Writ Petition No. 14716 of 2017, in which one of us [Justice Kishore C. Sant] was a member, has considered the judgment in the case of Satish Ganpatrao Patil (supra) so also judgment in the case of Sunil Subhash Ekhande (supra) and held that 50% service rendered as part time by the petitioner can be considered full time, while computing qualifying service for the purpose of pensionary benefits. It is not shown that any of the judgment is under challenge and is reversed or any stay is granted by the Apex Court.

Very recently this Court at Principal Seat has considered a similar issue in the case of Dadasaheb Sada Kadam Vs. The State of Maharashtra and Ors., Writ Petition No. 11651 of 2023. It is held that part time service needs to be considered as full time service for half of the total period. The said petition also came to be allowed.

So far as judgment in the case of Sunil Subhash Ekhande (supra) is concerned, which is heavily relied upon by the learned AGP, it is seen that the Court considered the GR dated 28.06.1994. It was considered that said GR did not create post. The Government only by GR dated 03.08.2006 acted in furtherance of its earlier resolutions and upgraded the earlier posts to full time posts with conditions. It is only thereafter the post is created of full time Librarian.

Thus, now the position being settled position, this Court has no difficulty in granting prayers in the writ petition.

This Writ Petition is allowed in terms of prayer clauses (B) and (C). Rule made absolute accordingly.