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. 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 hold and declare that, the petitioner is governed under the Old Pension Scheme i.e. Maharashtra Civil Services (Pension) Rules, 1982 and 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.
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 direct the respondents to extent the benefits of the old pension scheme to the petitioner and shall not deduct any amount from the salary of the petitioner by applying the Defined Contribution Pension Scheme (DCPS) or National Pension Scheme (NPS).
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 refund the deducted amount of the petitioner with interest by applying the DCPS or NPS by respondents, within a period of four weeks.”
It is the case of the petitioner that he was appointed as a full-time Assistant Teacher on 18.08.2004 by the private institution viz. Shri Shivaji Shikshan Prasarak Mandal against a clear vacant post in Arts, Science and Commerce College, Tq. Rahuri, Dist. Ahilyanagar to teach in a division which was on no-grant basis. The College in which the petitioner was teaching, started receiving grant-in-aid in the year 1979-1980 itself. The petitioner, therefore, submits that since he was appointed in a division on no-grant basis prior to the cut off date, i.e 01.11.2005 and as the said division started receiving 100% grant-in-aid in the year 2009-2010, after the cut-off date, he is entitled to the benefit of the Old Pension Scheme (for short, ‘the OPS’).
Learned counsel for the petitioner submits that merely because the initial appointment of the petitioner was made to teach in a division which was not receiving grant-in-aid and started receiving grant-in-aid after the cut-off date, the petitioner cannot be deprived of the benefit of the OPS. He submits that the case of the petitioner is squarely covered by the judgment of this Court in the case of Nilesh Namdev Gurav vs. The State of Maharashtra reported in 2022(3) Mh.L.J.615.
Learned counsel for the petitioner has also 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 Coordinate 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 along with connected petitions, decided on 19.07.2024
iii) The judgment of the Coordinate Bench of this Court in Dattatrya Patingrao Borse vs. The State of Maharashtra and Others in Writ Petition No.8548 of 2022 along with connected Writ Petitions.
iv) The judgment of the Coordinate Bench of this Court at Nagpur in Ramashankar Ramadhar Mishra vs. State of Maharashtra and Others in Writ Petition No.2495 of 2024 along with connected petitions.
Per contra, learned AGP has opposed the Writ Petition on the ground that, the appointment of the petitioner was made to teach in a division which was on a permanent no-grant-in-aid basis and that the said division started receiving 100% grant-in-aid for the first time in the year 2009-2010, i.e. after the cut-off date of 01.11.2005 and therefore, the petitioner is not entitled to the benefit of the OPS. He, therefore, urged that the Writ Petition is devoid of any substance and the same deserves to be dismissed.
We have heard learned counsel for the petitioner, learned AGP for the State and perused the record.
Admittedly, the College in which the petitioner was initially appointed, started receiving 100% grant-in-aid since year 1979-1980 itself i.e., prior to the cut-off date. We thus find that merely because the division in which the petitioner was initially appointed was not receiving grants-in-aid and started receiving grants-in-aid after 01.11.2005, would not disentitle him from claiming the benefit of the OPS. The issue involved in this writ petition is no longer res integra, in the light of the judgment of this Court in the case of Nilesh Namdev Gurav (supra) which has been consistently followed by this Court in subsequent judgments. In the case of Prashant Dnyaneshwar Chimne (supra), the Coordinate 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 Dattatrya 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
Writ Petition is allowed in terms of prayer clauses ‘B’, ‘C’ and ‘D’.
ii) Rule is made absolute in the above terms.