High Court · 2025

1 WP-9159-22.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9159 OF 20221.Mangal w/o. Bapusaheb Ghotekar,Age 36 years, Occu. Household, R/o. Muley Nagar, Near Aksharnandan School,Nalegaon Road, Udgir, Taluka Udgir,District Latur2.Mayuri d/o. Bapusaheb Ghotekar,Age 17 years, Occu. Education, Minor U/G of Petitioner No.1/motherR/o. Muley Nagar, Near Aksharnandan School,Nalegaon Road, Udgir, Taluka Udgir, District Latur3.Madhura d/o. Bapusaheb Ghotekar,Age 11 years, Occu. Education, Minor U/G. of Petitioner No.1/motherR/o. Muley Nagar, Near Aksharnandan School,Nalegaon Road, Udgir, Taluka Udgir,District Latur..PetitionersVersus1.The State of MaharashtraThrough the Upper Secretary,Department of Higher andTechnical Education, Mantralaya,Mumbai-322.The Director of Higher Education,Maharashtra State Pune3.The Joint Director of Higher Education,Nanded Regional Office, Nanded4.Swami Ramanand Teerth MarathwadaUniversity through its Registrar,Nanded5.Maharashtra Udaygiri CollegeThrough its Principal, Udgir,Taluka Udgir, District Latur..Respondents 2 WP-9159-22.odtDr. Mr. R. R. Deshpande, Advocate instructed by Ms. Priyanka R. Deshpande, Advocate for Petitioners;Mr. D. R. Korade, A.G.P. for Respondents No.1 to 3;Mr. V. P. Latange, Advocate for Respondent No.4;Mr. K. P. Rodge, Advocate holding for Mr. P. G. Rodge, Advocate forRespondent No.5 CORAM : S. G. MEHARE & SHAILESH P. BRAHME, JJ. Reserved on : 21-02-2025 Pronounced on : 17-03-2025JUDGMENT (PER: S. G. MEHARE, J.) :-1.Rule. Rule made returnable forthwith. Heard finally withconsent of the learned counsel appearing for the parties.2.The petitioners are the legal heirs of deceased BapusahebDudhaji Ghotekar (here-in-after, referred to as the “deceasedemployee”). They have filed this writ petition against thecommunication dated 11.01.2022 of the Joint Director HigherEducation, Nanded Region, Nanded / respondent No.3 rejecting thefamily pension. The petitioners are also seeking the directionagainst respondents No.1 to 5 to sanction and disburse the familypension and other retiral benefits.3.The deceased employee was Lecturer with respondent No.5 /College. On 28.09.2000, he was appointed as Lecturer for PoliticalScience in Senior College. He died in harness on 17.04.2021. Hisservice was without break. Respondent No.4/University grantedhim a permanent approval on 01.03.2001, subject to condition that 3 WP-9159-22.odtthe deceased must qualify the National Eligibility Test (NET) / StateEligibility Test (SET) examination. His approval was ad-hoc.Though, it was ad-hoc, no specific time was determined.Respondent No.4 again granted approval vide communicationdated 24.10.2007 subject to condition that he (deceased) mustqualify NET or SET examination within two years from the date ofgranting exemption. He was rendering services as regular andpermanent employee without interruption. However, PandemicCOVID-2019 claimed his life. After his death, respondent No.5College sent proposal for family pension. However, respondentNo.3 had rejected the proposal on the ground that in view of thecommunication of the Government dated 11.01.2022, theemployees appointed in between 23.10.1992 to 03.04.2000 shouldbe granted retirement benefits. However, the deceased employeewas appointed after the said date. He did not possess NET/SET orPh.D. Therefore, the family pension is not permissible.4.Respondent No.3 has filed affidavit-in-reply. In the nut-shell,he has a case that since the deceased employee did not qualifyNET/SET examination on cut-off date, he was not regularemployee, though he had rendered the uninterrupted services tillhis death. From time to time, the University Grants Commission(UGC) has issued the directions not to appoint the Lecturer whodoes not possess the qualification. The specific directions wereissued by the Government Resolution dated 13.06.2000 not to 4 WP-9159-22.odtappoint non-qualified candidates on the post of Lecturers in theColleges/Universities and if such appointments are made, noapproval/grants could be given to them. If any appointments assuch are given, it should be cancelled immediately. Thecommunication of respondent dated 13.01.2005 does not apply tothe petitioners, because it was clarification letter mentioningconditions.5.The Government Resolution dated 25.08.2005 was issuedpursuant to the directions of the Hon’ble Supreme Court. TheHon’ble Supreme Court laid down the parameters forregularization of the employees. The deceased did not fall underthose parameters. Again, by Government Resolution dated08.09.2010, it was made clear that the condition laid down in theGovernment Resolution dated 18.10.2001 i.e. from 1991 onward,the candidates must possess NET/SET qualification for appointingas a Lecturer and it was obligatory. Giving reference of the variouswrit petitions of the High Court against the norms of appointmentas a Lecturer, clarifications were reproduced. By GovernmentResolution dated 27.06.2013, the services of only those candidateswho were appointed between 23.10.1992 to 03.04.2000 wereregularized and who did not complete the NET/SET or M.Phil.Examination, vide Government Resolution dated 29.10.2021, theGovernment adopted application of benefit of old pension schemeto the said candidates. However, the State Government does not 5 WP-9159-22.odtapply the Government Resolution dated 29.10.2021 to thedeceased employee, as his appointment was after 04.04.2000.Again, as per the Government decision dated 12.07.1999 aboutretirement salary and gratuity scheme has been referred to, andpointed out that it would apply for non-teaching employeesappointed in non-government aided colleges as per theGovernment/University average standards. Rule 30 of theMaharashtra Civil Services (Pension) Rules, 1982 (for short, “Rules,1982”) requires the permanent post at the time of the retirementto avail the retirement benefits. Since the deceased employee wasnot on the permanent post at the time of retirement, no benefitscould be granted as claimed by the petitioners. As per Rule 31 ofthe Rules, 1982, it has been provided that if the duties and thesalary of the employee is not regulated by the Government or thecondition prescribed by the Government, the services of suchemployee would not be qualified for pension.6.Both learned counsels have reiterated the arguments as pertheir contentions of the petition and the affidavit-in-reply.7.The learned counsel for the petitioners would submit thatsince the services of the deceased employee were uninterruptedand approved by respondent/University, his family cannot bedeprived of pension and other benefits. The deceased employeewas rendering services as a permanent Lecturer. His appointmentwas not a back door entry, even not irregular. 6 WP-9159-22.odt8.He has referred to the circular/office memorandum of theCentral Government dated 05.05.2009 which was about additionalrelief on disability of the Government servants covered by theDefined Contribution Pension Scheme (NPS). Referring to thevarious Government Resolutions mentioned above, he submitsthat not qualifying NET/SET was never an impediment forrendering services as a Lecturer. Neither the University nor theGovernment raised an objection on his appointment in time, evenhis services were never terminated. The word “ad-hocappointment” was formal, but it was never intended that hisservices were temporary.9.He has placed reliance on the case of Gangasagar w/o.Umrao Kawale and others vs. The State of Maharashtra,Writ Petition No.10170 of 2021 dated 05.02.2024. In thatcase, on the basis of facts, after deceased Umrao was appointed in2006, he had completed M.Phil degree in 2009 and was awardedPh.D. on 14th October 2017. In those set of facts, the Co-ordinateBench of this Court held that since the University had grantedapproval on 13th December 2017 and the fact that the deceasedhad pensionable service, the pensionary benefits are permissible.10.He further relied on the case of Shri Pradip NilkanthraoDhote vs. The State of Maharashtra and others, WritPetition No.637 of 2022 dated 13.11.2024. In that case, theratio laid down by the Co-ordinate Bench, the ratio laid down in 7 WP-9159-22.odtGangasagar w/o. Umrao Kawale (supra) was followed and thewrit petition was allowed.11.He also relied on the judgment of the Hon’ble Supreme Courtin the case of The State of Gujarat and others vs. TalsibhaiDhanjibhai Patel, Petition for Special Leave to Appeal (C)No.1109 of 2022 (Arising out of impugned final judgment andorder dated 13.10.2020 in LPA No.762 of 2020 passed by the HighCourt of Gujarat at Ahmedabad) dated 18.02.2022. In that case, ithas been held that only on the basis of fact that the originalpetitioner had rendered services for 30 years as an ad-hoc, theState cannot be permitted to take the benefit of its own wrong.Considering his continuous service of 30 years, he was grantedpension/pensionary benefits.12.He relied on Rajkaran Singh and others vs. Union ofInddia and others, Civil Appeal No. of 2024 (Arising out ofSLP (Civil) No. 30976 of 2017 dated 22.08.2024. The appellants ofthat case were appointed on running pay scales. Those weregranted other allowances and salary as per 4th and 5th Central PayCommissions (CPC). 6th Central Pay Commission was madeapplicable to the Government Employees of the Special FrontierForce (SFF) where they were employed. However, 6th PayCommission was not extended to them. They had given ad-hocamount of Rs.3,000/- per month. Upon attaining the age of 8 WP-9159-22.odtsuperannuation, they claimed pensionary benefits under 6th CPC.However, it was rejected on the ground that he was not aGovernment employee and had not been appointed by followingany Recruitment Rules, and therefore, the Central Civil Services(Pension) Rules, 1972 would not apply to him. Under thesepremise, the Hon’ble Supreme Court, based upon the materialavailable, held that the appellants meet the characteristics ofregular government servants. It was not disputed in that case thatthe appellants were appointed on a regular pay scale, which heldto a formalised employee-employer relationship akin to permanentgovernment employees. The appellants were also givenincrements and promotions comparable to those of otheremployees. The appellants had rendered services for over threedecades. Under these premise, it has been held that while theduration of service alone may not be determinative, it is asignificant factor when considered in conjunction with the otheraspects of their employment. Such long-term service suggests alevel of permanence and integration into the governmentalstructure that belies their classification as temporary employees.This similarity in job functions further blurs the line between theappellants’ status and that of regular government employees,suggesting that the distinction may be more formal thansubstantive. Considering the totality of circumstances, it has beenheld that the denial of pensionary benefits solely on the basis of 9 WP-9159-22.odttheir temporary status, without due consideration of these factors,appears to be an oversimplification of their employmentrelationship with the government.13.He relied on the case of Shri. Sudhir Satuji Murkute vs.State of Maharashtra and others, Writ Petiton No.9187 of2022 dated 20.02.2024. The facts, in brief, were that thepetitioner was appointed as a Library Clerk in 1982. On16.03.1989, he was promoted as Assistant Librarian pursuant tothe instructions given in the Circular dated 10.08.1981 andGovernment Resolution dated 18.09.1980. After rendering servicefor almost 20 years, he was promoted to the post of Librarian. Heretired on 30.01.2020. However, the retirement benefits wererefused. In that case, against uninterrupted services for decadestogether were considered along with the fact of deduction ofvarious amounts from his salary and promotions granted to him.The doctrine of “legitimate expectation” was applied. Theobjection to his initial appointment was not in accordance with theprocedure. The Court rejected such a contention and gave relief tothe employee, in the case relying upon the pronouncements of theHon’ble Supreme Court;(a)Harijan Paniben Dudabhai vs. State of Gujarat,(2016) 12 SCC 801;(b)Man Singh vs. State of U.P., (2022) SCC OnLine SC726;(c)Porbandar Municipality vs. State of Gujarat andothers, 2018 SCC OnLine 475. 10 WP-9159-22.odtand finally the writ petition was allowed. 14.Other case law relied upon by the petitioners on the similarissue involved in the case of Vishwaprakash s/o. LaxmanSirsath and others vs. State of Maharashtra and others,2003 (2) Mh.L.J. 176. In this matter, the doctrine of “legitimateexpectation” was considered. The Government Resolution dated18th October 2001 was under consideration. The State Governmentput conditions of NET/SET qualification. Sub-clause (b) states thatthe Lecturers who did not possess NET/SET qualifications byDecember 2003 and who were appointed during the period from19th September 1991 to 31st December 1993, would be continuedtill their retirement. It has been observed that if the Commissiondoes not provide for such a clause in its Regulations, the StateGovernment cannot deviate from said Regulations, in caseappointees upto 11th December, 1999 failed to obtain NET/SETqualification by December 2003. It was held that the Governmentdecision of granting concession as set out in Clause 2(b) of theimpugned Government Resolution cannot be sustained. TheGovernment Resolution dated 18th October 2001 was underchallenge in that case, on the ground that clause protecting theemployees who were appointed from 19th September, 1991 to 11thDecember 1999 and without possessing qualifications of NET/SET,would be protected and they would have to obtain the saidqualifications by December, 2003 or before and in case they fail to 11 WP-9159-22.odtacquire these requisite qualifications within the said period, theywould be entitled for pay scale of Rs.8000-13500 till theirsuperannuation. The said clause is discriminatory and, thus,violating the guarantee provided under Article 14 of theConstitution. Under these premises, the Co-ordinate Benchrejected petition summarily observing that clause 2(b) of theimpugned Government Resolution dated 18th October, 2001 isunsustainable and the same was quashed and set aside. It wasalso held that the cases of candidates appointed from 12thDecember, 1999 till 18th October, 2001 were required to beexamined so as to ascertain the applicability of the first proviso toclause (2) of the 1991 Regulations as well as 2000 Regulationsbefore their services were sought to be terminated by theirrespective Universities and/or Colleges/Institutions.15.To counter the arguments of the learned counsel for thepetitioners, the learned A.G.P. has reiterated the facts of the case.He has vehemently argued that the deceased did not havequalifying services for pension. He cannot take the benefit of theGovernment Resolution to put into service for the reason that hisappointment was not as permanent employee and he wasappointed on 04.04.2000. Therefore, Government Resolution dated29.10.2021 would not apply to him. Since his appointment wasnot made on regular basis, there was no scope for regularizing hisservice. The regularization cannot be given to the employees 12 WP-9159-22.odtwhose services were ad-hoc. He has referred to the Notification ofthe UGC dated 04.04.2000 and the Government Resolution dated13.06.2000 to show that a specific direction was issued by theUGC not to appoint the Lecturers who did not possess the requisiteNET/SET qualifications. Since it was made mandatory from 1991,the specific directions were also issued to remove from services, ifany such Lecturer has been appointed. In a nut-shell, he wouldsubmit that though there were regulations and directions of theUGC, the deceased employee was appointed. The University nevergranted him a permanent approval. The deceased employee wasknowing well that he had not been granted permanent approval.Even then, at his own risk, he was rendering services. In thissituation, he could not be equated as a permanent employee. Aconditional approval was also granted to him to get NET/SETqualified, even that condition was not fulfilled. Therefore, hisservices would not be qualified for pension. He would submit thatRules 30 and 31 of the Rules, 1982 would apply to this case. Theimpugned order is legal, proper and correct. Granting pension tosuch employee would unnecessarily burden the exchequer. Hisappointment was basically not legal and proper. Therefore, anuninterrupted service of the deceased employee may not be aground to consider the claim of the petitioners and grant thempension.16.There is no quarrel on the fact that the approval to the 13 WP-9159-22.odtappointment of the deceased employee was ad-hoc andconditional. His approvals dated 01.03.2001 and 24.10.2007 weread-hoc and conditional. The UGC having enabling powers hasdetermined the qualification for the post of Lecturer. NET/SET wasthe compulsory qualification to be appointed as the Lecturers inthe college. There were many appointments of Lecturers between19.09.1991 to 11.12.1999 who did not possess the NET/SETqualification. Considering the large number of appointments, theGovernment has passed Resolution dated 18.10.2001. TheGovernment has taken a policy decision about the appointmentsafter 19.09.1991 till 11.12.1999 that the orders of the Governmentof Higher and Technical Education dated 22.12.1995 was cancelledand protected the services of the Lecturers appointed during theabove period on the condition that they should complete NET/SETexamination till December 2003. Whoever could not qualify thisexamination, their services were also protected. However, someservice benefits were denied. It is specifically mentioned in thatGovernment policy that the Lecturers appointed after 1999, thatpolicy would not apply to them. A specific direction was issued tothe Educational Institutions that after 04.04.2000 there should beno appointment of the Lecturers. The petitioners are trying to getbenefit of this Government Resolution contending that thedeceased employee had rendered his services uninterruptedly formore than 20 years. However, his appointment of 28.09.2000 is 14 WP-9159-22.odtapparently after the cut-off date. Under this premise, it is to beanswered, whether the petitioners are entitled to pension andother service benefit for rendering his uninterrupted services.17.The foremost condition to receive the pension is that theemployee should be a permanent employee. Admittedly, theUniversity has granted approval to his posting in the year 2001and 2007. It has been tried to argue that no objections wereraised either by University or the Government, then they cannotdeny the status of permanency to the service of the deceasedemployee. It is also not disputed that the UGC has issued thestrict instructions to the institution on appointment of thecandidate who does not possess the qualification determined by it.Admittedly, the approvals were conditional. In the first approval itwas a condition that his appointment was ad-hoc till he qualifyNET/SET. The College had sent another proposal for approval tothe University for exempting the deceased from qualifyingNET/SET examination. This order has reference of the order ofUGC dated 09.08.2007. The College was informed the decision ofUGC that it was of the view that since no NET qualified candidateswere available at the time of interview, exemption was granted,subject to the condition that NET exemption should be cleared inthe relevant subject within two years from the date of saidcommunication. In other words, the conditional exemption wasgranted that such candidate who does not possess the NET 15 WP-9159-22.odtqualification should clear it within two years. The deceasedemployee accepted this communication. However, he did notcomplete NET.18.In view of the earlier approval, the management continuedhis services. The first approval of the University was conditionaland ad-hoc. It has been argued that though the approval was notfor a specific period, the approval order itself falsify contention ofthe petitioners that it was not for a specific period. Theappointment was approved till the deceased employee qualifyNET/SET examination. Therefore, it would not lie in the mouth ofthe petitioners that though the approval was ad-hoc, it was not fora specific period. It was the deceased employee knowing well thathe had to clear the NET/SET but did not clear the same. In such asituation, it would be difficult to accept that rendering the servicesuninterruptedly for more than 20 years were the services like apermanent employee. The document i.e. copies of the servicebook placed on record shows that from time to time yearlyincrements were granted to him. It is in these set of facts, we areof the opinion that barely granting increment would not mean, thedeceased got the permanency. Increments were grantedconsidering the inflation.19.So far as the case of the petitioners that the GovernmentResolution dated 18.10.2001 would apply and protect the service 16 WP-9159-22.odtof the deceased employee, the learned A.G.P. is correct in pointingout that the appointment of the deceased employee was after thecut-off date i.e. 11.12.1999 / 04.04.2000. To get the exemptionfrom NET/SET and protection to the services, the UGC hadintimated from time to time to all the concerned not to continueservice of such employee who does not possess the requisitequalification and their services should be terminated. However,the Management in its adamancy may have turned blind eye anddid not terminate the services. This seems to be deliberatedefiance of the direction of the highest institution of the education.20.The Hon’ble Supreme Court in various cases relied upon bythe petitioners took a view that rendering the services foruninterrupted period without any objection by the Government orUniversity as the employee should be granted the compensationand pensionary benefits. 21.Here the facts of the case reveal that the deceasedemployee was well aware of the nature of his appointment andconditions imposed upon him. It appears from the record that thecondition to qualify NET/SET in his first approval was not compliedwith but an attempt was made through the Management to seekexemption. On that request also, again the University intimatedthe Management that if any such appointment is there, they musthave to qualify NET/SET within two years. It was a second 17 WP-9159-22.odtintimation to the deceased that his services were not permanent,but as it is seen in many matters, the appointments in the privatecolleges are collusive and the persons interested are appointedand the services are allowed to be rendered for a long period. Noone should take the benefit of their deliberate acts. The facts ofthe case at hand reveals that the Management deliberately did notterminate the services of the deceased after the period granted tohim by UGC as well as the Government to qualify NET/SET. Thisseems to be not fair. Granting pension and pensionary benefits. Itis a burden on the Government exchequer. The Governmentexchequer should not be burdened for the wrongs committed bythe parties. 22.Chapter V of the Rules, 1982 is regarding the qualifyingservice for pension. Rule 30 of the Rules, 1982 which has beenpressed into service by the learned A.G.P. speaks of“commencement of qualifying service”. The qualifying service of aGovernment servant shall commence from the date he takescharge of the post to which he is first appointed eithersubstantively or in an officiating or temporary capacity. Providedthat at the time of retirement, he shall hold substantively apermanent post in Government service or hold a suspended lien orcertificate of permanency. Rule 31 of the Rules, 1982 is about“conditions subject to which service qualifies”. The service of aGovernment servant shall not qualify unless his duties and pay are 18 WP-9159-22.odtregulated by the Government or under conditions determined bythe Government.23.Reading these two Rules, there appears force in thearguments of the learned A.G.P. that since the deceased was notpermanent in service, he has no qualifying service for pension. Inview of the basic defect in the appointment of the deceasedemployee, which in fact an illegal appointment, it would beunjustifiable to show sympathy towards the family who lost theirearning member. It seems to be wilful default of the Managementand the deceased employee in not getting qualified for thepermanent post of Lecturer. We are bound by the law, hence,cannot travel beyond the law and exercise discretion. Pensionsare governed by the Rules, 1982 the Court should adhere thereto.In such a situation, the discretionary relief could also not begranted to the petitioners. To sum-up, we have express our opinionthat though the deceased employee had rendered uninterruptedservice for more than 20 years, the petitioners are not entitled tothe pension and pensionary benefits except the benefitsreceivable under Law. 24.For the above reasons, we dismiss the writ petition. Rulestands discharged. No order as to costs. [ SHAILESH P. BRAHME ] [ S. G. MEHARE ] JUDGE JUDGErrd