High Court · 2025
Legal Reasoning
Writ Petition No.5752/2022:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5752 OF 2022Smt. Gulabbee wd/o Syed PashaAge 61 years, Occu. Household,R/o Taru Pimpalwadi,Tq. Paithan, Dist. Aurangabad … PETITIONERVERSUS1.The State of Maharashtra through its Principal Secretary,Rural Development Department,Mantralaya,Mumbai – 32 2.The Additional Chief Secretary,Finance Department,Mantralaya, Mumbai – 32 3.The Chief Executive Officer,Zilla Parishad, Aurangabad,District Aurangabad4.The Chief Engineer,Public Works Department,Zilla Parishad, Aurangabad Tq. & Dist. Aurangabad 5.Deputy Chief Accounts and FinanceOfficer, Zilla Parishad, Aurangabad,Tq. & Dist. Aurangabad… RESPONDENTS.......Mr. V.G. Salgare, Advocate for petitioner Mr. A.S. Shinde, A.G.P. for State Mr. Avinash S. Deshmukh, Advocate (as amicus curiae to assist Court) Writ Petition No.5752/2022:: 2 ::....… CORAM : R.G. AVACHAT ANDSANDIPKUMAR C. MORE, JJ.Date of reserving judgment : 22nd April 2025.Date of pronouncing judgment : 6th May, 2025J U D G M E N T (PER R.G. AVACHAT, J.) :Rule. Rule made returnable forthwith and heardfinally with the consent of learned counsel for the parties.2.This petition under Article 226 of the Constitution ofIndia, is filed for the following main relief :“E-1)By writ, order or directions, the impugned letter dated01/12/2021 issued by the respondent No.5 to therespondent No.4 and the impugned Government Circulardated 25/10/2011 issued by the respondent No.2 maykindly be quashed and set aside to the extent of the case ofthe petitioner and the respondent No.1 to 4 may kindly bedirected to grant family pension, death gratuity and otherpensionary benefits to the petitioner as per 6th PayCommission as provided under G.R. dated 27/12/2018considering the period of 300 days of earned leave, 73days of commuted leave and 911 days of extra-ordinaryleave on medical ground granted by the competentauthority after the death of her husband as qualifyingservice for the purpose of pension, death gratuity, andother pensionary benefits in view of the provisions underRule 35 of Maharashtra Civil Services (Pension) Rules,1982 in the interest of justice.” Writ Petition No.5752/2022:: 3 ::3.Facts, not in dispute, are as follows :-Syed Pasha was the husband of the petitioner –Gulabbi. He was appointed on the post of Driver with theoffice of Zilla Parishad, Aurangabad on 10/8/1985. He (SyedPasha) breathed his last on 30/4/2007. He was not keepingwell. The details of leave availed by him immediately beforehis passing away are as under :1)Medical Leave :09/07/2001 to 29/07/200112/11/2001 to 26/11/2001Total 38 days.2)Earned Leave :11/11/2002 to 06/09/2003Total 300 days. 3)Commuted leave : 07/09/2003 to 19/10/200301/10/2004 to 20/10/2004Total 73 days.4)Extra-ordinary Leave:30/10/2004 to 29/04/2007(Medical)Total 911 days. 4.Syed Pasha had rendered total service of 21 years8 months and 20 days. His widow, the petitioner, had beensanctioned family pension in terms of 5th Pay Commissionrecommendations on 16/8/2007. Writ Petition No.5752/2022:: 4 ::5.Since Syed Pasha passed away post 6th PayCommission recommendations made applicable, the petitionerapplied for grant of family pension in terms of 6th PayCommission recommendations. Her claim has been turneddown relying on the Government Circular, under challenge,dated 25/10/2011, whereunder the employees on extraordinaryleave since before 1/1/2006 and died thereafter were held tobe not entitled to the benefits of the 6th Pay Commissionrecommendations.6.Heard. At the outset, we acknowledge assistancerendered by learned counsel Mr. Avinash S. Deshmukh,appointed to assist us in the matter. He would submit that, theMaharashtra Civil Services (Pension) Rules, 1982 (M.C.S. PayRules) are in the nature of beneficial legislation. He advertedour attention to clause (2) of the Maharashtra Civil Services(Revised Pay) Rules, 2009 (M.C.S. Revised Pension Rules) tosubmit that, the employees on extraordinary leave without payhave not been excluded from applicability of the rules. Hewould support the petitioner’s cause.7.Learned counsel for the petitioner relied on Rule 35 Writ Petition No.5752/2022:: 5 ::of the M.C.S. Pension Rules to submit that, all leave excludingextraordinary leave during the period of continuous serviceshall count as qualifying service for pension. He would furthersubmit that, the State Government cannot withdrawretrospectively the benefits which have already been accruedto the deceased and on his demise, to the petitioner. 8.The learned A.G.P. would, on the other hand,submit that, the relevant M.C.S. Pension Rules and the M.C.S.Revised Pay Rules have not been challenged. TheGovernment Circular dated 25/10/2011 is in consonance withthe M.C.S. Pension Rules and M.C.S. Revised Pay Rules.The M.C.S. Revised Pay Rules specifically empower theGovernor to exclude certain category of employees fromapplicability of the said Rules. In exercise of the said powers,the Circular dated 25/10/2011 has been issued. The learnedA.G.P. would, therefore, submit that the claim of the petitionerhas rightly been turned down. He, therefore, urged fordismissal of the petition.9.We have considered the submissions advanced.Perused the relevant rules under the M.C.S. Pension Rules,
Decision
Writ Petition No.5752/2022:: 6 ::MCS (Leave) Rules and the M.C.S. Revised Pay Rulesbesides the Circular dated 25/10/2011.10.Chapter VI of the M.C.S. Pension Rules speaks ofpensionable pay. Rule 60 thereof is relevant for the purpose.Rule 9(36) defines the term ‘pay’ to mean the amount drawnmonthly by a Government servant. Clause (v) has beenintroduced therein vide amendment dated 18/1/2016 to includetherein the following :“(v)in the 6th Pay Commission, the pay drawn inthe prescribed pay band plus applicable grade paybut does not include any other type of pay likespecial pay, which the Government servant wasreceiving immediately before his retirement or onthe date of his death.”11.We are not much concerned with the M.C.S.Pension Rules, 1982 since the claim in the Writ Petition is forrevision of pay and pension in terms of 6th Pay Commissionrecommendations.12.The 6th Pay Commission recommendations havebeen made applicable w.e.f. 1/1/2006. Extraordinary leavewithout pay is one of the leaves admissible to the Government Writ Petition No.5752/2022:: 7 ::employee. True, in view of Rule 17(4) of the M.C.S. (Leave)Rules, 1981 a Government servant on extraordinary leave isnot entitled to any leave salary.13.For implementation of the 6th Pay Commissionrecommendations, the State Government, vide notificationdated 22/4/2009, brought into force the M.C.S. Revised PayRules to be made applicable w.e.f. 1st day of January, 2006.Clause (h) of sub-rule (2) of Rule 2 of the M.C.S. Revised PayRules is heavily relied on by the learned A.G.P. The clausereads thus : “(h)Government servants specifically excludedwholly or in part by the Governor of Maharashtrafrom the operation of these rules.”14.True, the Circular dated 25/10/2011 is said to havebeen issued by the Governor in exercise of powers underclause (h) above. Clause (3) of the Circular reads thus :"३. शशसनशननयशवरववचशरकनलशअससन, शशसनआतश असशखखलशसशकररतआहनकक, जनकररचशररवद. १जशननवशरर २००६पसवरपशससनअसशधशरणरजनवरवककवशवनलकबनशखशलर हहतनवजनपतयकशतवद. १जशननवशरर२००६नकतर असशधशरणरजनवरअसतशकनशसनवशवनववतवककवशरवतयसपशवलन असतरलवककवशवनलकबनशधरनअसतशकनशसनवशवनववतझशलन/ करणयशतआलनअसतरलतरअशशकररचशऱयशकनशर.नश.सन.(सख.वन.) वनयर२००९चशलशभअनखजनयनशहर.” Writ Petition No.5752/2022:: 8 ::15.The petitioner obtained an extract of endorsementmade in the Service Book of her deceased husband. Theendorsement reads thus :-"रश. रखखयकशयरकशररअधधकशरर, धजलहशपररषद, औरकगशबशदयशकचनआदनशक.धजपऔ/बशकध/असश/शन/कशवर/ २००८वद. १३/५/ २००८शरसययदपशशशअबदखल रहनरशनवशहनचशलकधजप(बशक) उपववभशग, धसलहडयशकचरखशलरलपरशणनरजशरकजसर करणयशतआलरआहन. वदनशकक११/११/ २००२तन६/९/ २००३ ३००वदवसअधजरतरजश वदनशकक७/९/ २००३तन१९/१०/ २००३ ४३वदवसपररववतरतरजश वदनशकक११/१०/ २००४तन३०/१०/ २००४ ३०वदवस--"-- वदनशकक३१/१०/ २००४तन२९/४/ २००७ ९११वदवसअसशधशरणरजश सकबकधधतशकचरएकसण१२८४वदवसशचरवररलपरशणनरजशरकजसरकरणयशतयनतआहन. सकबकधधतहनवदनशकक३०/४/ २००७रहजररयतझशलनआहनत.” 16.The aforesaid record indicates that, late SyedPasha was constrained to avail extraordinary leave, as he wasnot keeping good health. The period of leave indicates that hishealth condition must have been such which made himphysically disabled to render the service. This is nothing shortof a case of a person acquiring physical disability duringservice. Admittedly, he breathed his last due to ill health on Writ Petition No.5752/2022:: 9 ::30/4/2007 i.e. after 6th Pay Commission recommendationsmade applicable. A reference to clause (iii) of Note (1) ofM.C.S. Revised Pay Rules would not be out of place thoughnot strictly applicable. Sub-clause (iii) reads thus :“(iii)A Government servant who is onextraordinary leave for other than medical reasonsprior to the 1st day of January 2016 and retired onor after the 1st day of January 2016 withoutresuming his office, shall not be entitled for thebenefits of these rules, however, his pensionarybenefits shall be granted as per the applicable rulesin unrevised pay structure.”17.This clause makes applicable 7th Pay Commissionrecommendations to the employees on extraordinary leave formedical reasons even from prior to 1st day of January 2016and retired thereafter without resuming his office.18.It is reiterated that, Syed Pasha was constrained toavail extraordinary leave without pay for medical reasons.When the M.C.S. Revised Pay Rules were notified on22/4/2009, making them applicable w.e.f. 1/1/2006, the StateGovernment/ Governor had not specifically excluded anyGovernment servant from application of the M.C.S. RevisedPay Rules. The Rules were made applicable to all persons Writ Petition No.5752/2022:: 10 ::who were under the Rule making control of the Government ofMaharashtra, true, except certain categories of Governmentservants enumerated in sub-clause (2). It is reiterated that, onthe day on which Syed Pasha passed away, he was notspecifically excluded from applicability of the M.C.S. RevisedPay Rules. It is only two years after his demise, theGovernment Circular dated 25/10/2011 came into being,excluding the persons on extraordinary leave from applicabilityof the M.C.S. Revised Pay Rules. 19.In our view, when the benefit had already beenaccrued to Syed Pasha, and on his demise to the petitioner,the same ought not to have been withdrawn vide impugnedCircular dated 25/10/2011. Right to receive retiral benefits isconsidered to be a right under Article 300A of the Constitutionof India. With an executive fiat it cannot be withdrawnretrospectively. It is the delay caused by the employees of theconcerned Department in not releasing the benefits in favour ofthe petitioner before 25/10/2011. Had the claim of thepetitioner been processed immediately, the actual benefitswould have been paid to the petitioner, but for the impugned Writ Petition No.5752/2022:: 11 ::Circular. Had the benefits been actually received by thepetitioner, those could not have been legally recoverable in theCourts of law, on the strength of the Circular dated 25/10/2011.We, therefore, set aside the said Circular dated 25/10/2011 tothe extent of the petitioner’s case and direct the respondentauthorities to release in favour of the petitioner all themonetary benefits accrued in terms of 6th Pay Commissionrecommendations on account of her husband’s death inharness. It is made clear that, the petitioner shall not be paidthe actual monetary benefits during which late Syed Pashawas on extraordinary leave without pay.20.Writ Petition is allowed accordingly. Rule madeabsolute in above terms. (SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.) fmp/-