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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD946 WRIT PETITION NO.3866 OF 2023Mala Sreenivasan T.K.,Age 63 yrs., Occ. Retired as Assistant Teacher,R/o; C/o Shobha Arvind, 76, Jyoti,Ruikar Colony, Gur Market Yard,Kolhapur, Maharashtra. … Petitioner… Versus …1The State of Maharashtra,Through it’s Principal Secretary,School Education Department,Mantralaya, Mumbai - 32. 2The Education Officer (Secondary),Zilla Parishad, Aurangabad. 3St. Francis De sales Education Society,Through it’s Secretary,Jalna Road, Aurangabad. 4The Head Master,St. Francis De sales High School,Jalna Road, Aurangabad. … Respondents...Mr. R.A. Joshi, Advocate for petitionerMr. P.S. Patil, AGP for respondent Nos.1 and 2Respondent Nos.3 and 4 - served... 2WP_3866_2023CORAM :SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE:13th MARCH, 2024ORDER : [PER : SMT. VIBHA KANKANWADI, J.]1The petitioner seeks directions to hold and declare that she isentitled for pension as per Maharashtra Civil Services (Pension) Rules, 1982(hereinafter referred to as “MCS (Pension) Rules”) for rendering qualifyingservice of 25 years in respondent No.3 Educational Institute. Theconsequential prayers of directing respondent No.2 to forward the pensionpapers and to decide her representation has been prayed. 2The factual matrix leading to the petition are that the petitionercame to be appointed as Assistant Teacher in Saint Xavier High School onnon grant-in-aid post on 01.09.1992. She stood retired from the service onattainment of age of superannuation on 30.07.2017. Salary certificate hasalso been issued by the Head Master. The petitioner as well as one Smt.Chitra Kulkarni from the same school were transferred on administrativeground on 07.06.2006 to respondent No.4. The said school was recognizedand aided. When proposal of seeking approval to their transfer wasconsidered and sanctioned by respondent authorities from 25.01.2007, it waschallenged in Writ Petition No.7284 of 2011. In fact, prior to that upon the
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3WP_3866_2023instructions by the Management they both had tendered resignation on16.09.2006 and came to be immediately appointed on the aided post on25.01.2007. The petition filed by the petitioner and said Smt. ChitraKulkarni came to be partly allowed. In respect of prayer clause ‘B’ this Courtdeclined the relief by stating that the grant-in-aid post was given to thepetitioner on 07.06.2006 and the cut off date for the new pension schemewas 01.11.2005. Respondent No.4 had failed to take her contributiontowards DCPS during the period from her appointment till she retired. Now,she is getting a very meagre amount as pension and, therefore, she has filedthe present petition. 3Affidavit-in-reply has been filed by Mr. Madhukar DharmnathAvad, working as Superintendent, Pay and Provident Fund (Secondary),Chhatrapati Sambhajinagar on behalf of respondent No.2. He relies on theobservations by this Court in the earlier writ petition and submitted thatprayer in respect of opening of GPF account was already rejected by thisCourt. It was taken that the petitioner was appointed in the grant-in-aid postsince 07.06.2006 which is beyond the cut off date for applicability of the newpension scheme i.e. on 01.11.2005. Taking into consideration the fact thatthe petitioner worked on the said post from grant-in-aid from 01.07.2006 to30.07.2017, it is only 11 years and 29 days, whereas the qualifying service 4WP_3866_2023for getting pension is 20 years. Therefore, petitioner is not eligible for anypensionary benefits. 4Heard learned Advocate Mr. R.A. Joshi for petitioner and learnedAGP Mr. P.S. Patil for respondent Nos.1 and 2. 5Learned Advocate for the petitioner reiterating the same factsand taking us through the documents on record submitted that the proposalof the co-petitioner Smt. Chitra Kulkarni has been accepted and, therefore,petitioner cannot be singled out. The petitioner’s service was in fact from01.09.1992. In spite of serving for requisite years the petitioner is unable toget the benefits. Though the fresh appointment is shown from 01.07.2006 bythe respondent Management; yet, neither the Defined Contributory PensionScheme (DCPS) was made applicable to the petitioner nor the GPF Accountwas opened in her name. 6At the outset, merely because co-petitioner is now getting somebenefit, it cannot be made applicable to the petitioner unless there isentitlement. The petitioner cannot rely upon the Judgment passed by thisCourt in her matter earlier i.e. Writ Petition No.7284 of 2011 decided on10.07.2015. This Court while concluding the said petition observed that -there is no hesitation to conclude that the petitioners are continuously in 5WP_3866_2023service since the year 1992 till 07.06.2006 on non grant-in-aid post and from07.06.2006 towards grant-in-aid post. Therefore, prayer clause ‘A’ wasgranted, however, as regards prayer clause ‘B’ which was in respect ofopening of GPF Account it was observed that – it cannot be consideredDefined Contributory Pension Scheme (DCPS). The petitioner was broughton grant-in-aid post on 07.06.2006 and the cut off date is 01.11.2005. Up to07.06.2006 petitioner was working on non grant-in-aid post. This orderpassed by this Court was never then challenged by the petitioner before theHon’ble Apex Court. This Court cannot sit as an Appellate Court to decidethe same point again. Another fact to be noted is that said order in earlierpetition was passed on 10.07.2015. The petitioner stood retired on30.07.2017, but till 12.01.2023 she has not filed any representation oragitated her pension order. The present petition has been filed on12.03.2023. The learned Advocate for the petitioner submitted that it can bepresumed when no contribution has been taken or deducted from thepetitioner towards her share in DCPS, then it can be presumed that, thatamount has been received or abrogated to the petitioner. But then theGovernment should give its share to her. We do not accept the saidsubmission for the simple reason that DCPS is not only for deducting thecontribution plus adding contribution and then giving it to the employeeconcerned. The said scheme requires that the contribution deducted from 6WP_3866_2023the salary of the employee would then be invested by the Government andthen at the time of retirement the benefit of the same to be given to theemployee. Here, since the petitioner’s salary was not deducted at all and atthat time i.e. since 01.07.2006 till retirement on 30.07.2017 the petitionernever complained of about the non deduction of her salary, we cannot nowsay that the amount equivalent to the said amount should be treated asabrogated. 7We do not find this to be a fit case where we should exercise ourconstitutional powers, when this Court at the time of deciding the earlierpetition had refused to consider the case of the petitioner under old pensionscheme. Writ Petition stands dismissed. ( S.G. CHAPALGAONKAR, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd