High Court · 2024
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wp-10170.211 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.10170 OF 20211) Gangasagar W/o Umrao Kawale, Age-40 years, Occu:Household, R/o-Patil Nagar, Vasmat, District-Hingoli,2) Vikas S/o Umrao Kawale, Age-16 years, Occu:Education, R/o-Patil Nagar, Vasmat, District-Hingoli,3) Janhavi D/o Umrao Kawale, Age-18 years, Occu:Education, R/o-Patil Nagar, Vasmat, District-Hingoli, ...PETITIONERS VERSUS 1) The State of Maharashtra, Through the Secretary of Higher Education Department, Mantralaya, Mumbai-32,2) The Director, Higher Education, Maharashtra State, Pune,3) The Joint Director, Higher Education, Nanded Regional Office, Nanded,4) Accounts Officer (Grants), Office of the Joint Director, Higher Education, Nanded Region, Nanded, District-Nanded,
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wp-10170.2125) Swami Ramanand Tirth Marathwada University, Through its Registrar, Dnyantirth, Vishnupuri, Nanded, District-Nanded,6) Shri. Yoganand Swami College, Through its Principal, Vasmat Nagar, District-Hingoli. ...RESPONDENTS ... Mr. R.R. Deshpande Advocate h/f. Ms. P.R. Deshpande Advocate for Petitioner. Mr. S.K. Shirse, A.G.P. for Respondent Nos. 1 to 3. Mr. U.S. Malte Advocate for Respondent No.5 present through Video Conferencing. None present for Respondent No.6. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 11th JANUARY 2024DATE OF PRONOUNCING JUDGMENT : 5th FEBRUARY 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Present Petition has been filed by the legal representativesof deceased Umrao Vitthalrao Kawale, who died on 26th May2021 at Secunderabad due to Covid-19, for following reliefs:-“B]By issuing the writ of certiorari or any other appropriatewrit or order or direction in the like nature, the communicationdated 23-07-2021 issued by the respondent No.4 namelyAccounts Officer (Grants), Office of the Joint Director Higher wp-10170.213Education, Nanded Region, Nanded, may kindly be quashed andset aside.C]By issuing the writ of certiorari or any other appropriatewrit or order or direction in the like nature, the respondent Nos. 1to 6 may kindly be directed to process, sanction and disburse thefamily pension and other retirement benefits to the petitioners inconsonance with the Rules and Regulations, within the stipulatedperiod which this Hon’ble High Court would deem fit and proper.E]By issuing the writ of certiorari or any other appropriatewrit or order or direction in the like nature, the respondent Nos.1to 6 may kindly be directed to pay all the arrears of thepensionary benefits as well as the other retirement benefits inrespect of the deceased to the petitioners with 15% interest p.a.till its realization.” 2.It is the case of the petitioners that deceased Umrao wasserving as assistant professor in respondent No.6 college. Hecame to be appointed in pursuant to the advertisementpublished by respondent No.5 on 5th June 2001. He came to beselected by the selection committee duly constituted for thepurpose of making appointment in furtherance of theadvertisement. Pursuant to order dated 9th March 2002,deceased Umrao was appointed as full time assistant lecturer. Hehad successfully completed his probation of two years after theappointment. Respondent No.5 had accorded approval to theservices of deceased Umrao by letter dated 24th August 2006 wp-10170.214from the date of joining i.e. 11th March 2002, subject to passingof NET / SET Examination. While in service the deceased hassuccessfully completed his M.Phil degree in Sociology as on 3rdAugust 2009. The respondent authorities even granted additionalincrement on account of his said achievement in getting M.Phil.Degree from 3rd August 2009. The deceased acquired theadditional higher qualification of Ph.D. in Sociology on 14thOctober 2017 from respondent No.5 University. Even additionalthree increments on account of the same came to be grantedfrom 14th October 2017. Permanent appointment order came tobe issued by respondent No.6 college on 6th November 2017,which again confirmed that the services rendered by thedeceased from 11th March 2002 have been regularized.Deceased expired at the age of 44 years. Respondent No.6 wasrequested to forward proposal for the family pension.Accordingly, the proposal was forwarded in consonance with theprovisions of the Maharashtra Civil Services (Pension) Rules torespondent Nos.3 and 4. However respondent No.4 declined tosanction the family pension on the ground that deceased had notacquired the requisite qualification within the prescribed period.It was stated that the deceased was not holding the requisitequalification of NET / SET Examination and had also not obtained wp-10170.215the same within the prescribed period nor the higherqualification as an exemption for the condition of passing theNET / SET Examination. In fact the deceased has renderedpensionable service. His services have been approved. Similarlysituated lecturer, namely, Vijaykumar Baburao Ranpise, whocame to be appointed on 14th August 1995 for the subjecthistory, who had retired on 30th February 2018, when refused togive pension, had approached this Court by filing Writ PetitionNo.755 of 2019 and his Petition came to be allowed on 9th April2019. Further, similarly situated other lecturers have also beengranted pension, of whom names have been given with otherdetails, in the Petition and therefore, the petitioners prayed thatsimilar treatment be given to them. 3.Dr. Vitthal Ramrao More, Joint Director Higher Education,Nanded Region, Nanded has filed affidavit-in-reply on behalf ofrespondent Nos.1 to 3. The other facts are admitted but it is saidthat on the date of appointment the deceased was holdingeducational qualification of M.A. only. Deceased completedM.Phil. on 3rd August 2009 and Ph.D. on 14th October 2017. Asper the notification of the University Grands Commission dated19th September 1991 it was mandatory to possess the NET / SET wp-10170.216qualification for getting an appointment as lecturer in non-agricultural Universities and affiliated colleges. Appointment ofthe deceased in respondent No.6 college is not as per the saidqualification. Government Resolution dated 27th June 2013prescribes that the approval would be granted to the services ofthose non-NET/SET teachers appointed during the period from23rd October 1992 to 3rd April 2000. Taking into consideration thedate of appointment of the deceased, the said Resolution dated27th June 2013 is not applicable to him. The cases in respect ofallegedly similarly situated lecturers are concerned, this Courthad come to the conclusion that they were fulfilling the criteria ofGovernment Resolution dated 27th June 2013. Rule 31 of theMaharashtra Civil Services Rules 1982 mentions that if the dutiesand salary of the employee is not being regulated by theGovernment or the conditions prescribed by the Government,then the service will not qualify for pension. The acquisition ofthe higher qualification by the deceased is after the cut-off datesand therefore, the family pension cannot be granted. 4.Heard learned Advocate Mr. R.R. Deshpande holding forlearned Advocate Ms. P.R. Deshpande for the petitioner, learned wp-10170.217AGP Mr. Shirse for respondent Nos.1 to 3 and learned AdvocateMr. Malte for respondent No.5, through Video Conferencing.5.In order to cut short, it can be said that all the learnedAdvocates have argued in support of their respectivecontentions.6.At the outset we would like to say that the decisions whichhave been relied on by the learned Advocate for the petitionercontended different set of facts. In those petitions theappointment of the petitioners therein was prior to 23rd October1992 and therefore, it was held that they were covered byUniversity Grants Commission Resolution dated 19th September1991 which came to be implemented in the State on 30thOctober 1992. Here the facts are already stated, however torecapture, it can be said that the appointment of the deceasedwas on 9th March 2002. The approval was granted by theUniversity on 24th August 2006 which was subject to passing ofNET / SET Examination and it was temporary approval. Thedeceased completed his M.Phil on 3rd August 2009 and he wasawarded Ph.D. on 14th October 2017. Thereafter the institutewherein the deceased was serving i.e. respondent No.6 had wp-10170.218forwarded proposal to grant permanency to the deceased, whichcame to be approved by the University on 13th December 2017.Entry was taken in his service book to that effect. Now, it is tobe noted that there is a presumption that when University grantsapproval to the permanency then it has considered all therequirements / rules / regulations. The said approval granted bythe University was never challenged by anybody. Unfortunately,the deceased expired on 26th May 2021. Now the petitionerscannot be asked to answer the deficiencies. 7.Since the University has granted approval on 13thDecember 2017 and the fact that the deceased had put inpensionable service, definitely the Petition deserves to beallowed.8.At the cost of repetition, we are saying that it is since theUniversity has granted approval, who was required to considerwhether the appointment was proper or not and the Governmentcannot raise objection to that effect at a later stage; we areconstrained allow the Petition. Accordingly, the Writ Petition isallowed. wp-10170.2199.We direct that petitioner No.1 would be entitled for pensionand pensionary benefits. The respondents shall consider the caseof the petitioners for pensionary benefits and shall not refuse togrant pensionary benefits to them on the ground that thedeceased had not possessed the necessary qualification.Therefore, we set aside the order dated 23rd July 2021 issued byrespondent No.4. Respondent Nos. 1 to 6 to process andsanction the family pension and other retirement benefits topetitioner No.1 in consonance with the rules and regulations,expeditiously and preferably within a period of SIX MONTHSfrom the date of this order. It should also include the arrears, ifany.9.Rule is made absolute in the above terms. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/JAN24