High Court
Facts
12748.21wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.12748 OF 20211.Dipali w/o Nandkishor Patade,Age: 42 years, Occ. Household.2.Sukhada D/o Nandkishor PatadeAge: 19 years, Occ. Education3.Anandi D/o Nandkishor Patade, Age : 15 years, Occ. Education,Minor U/G Petitioner No.1,Dipali N. Patade, 42 years. All R/o Angadrao Dhodiram KaleBehind Pokarna Oil Mill, Moti NagarKarneri Road, Dist-Latur….PETITIONERSVERSUS1]The State of Maharashtra,Through the Secretary of Higher Education Department, Mantralaya, Mumbai-322]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. Dist. Nanded.5]Swami Ramanand Teerth Marathwada University, Through its Registrar,Dnyantirth, Vishnupuri,Nanded, Dist. Nanded. 12748.21wp(2) 6]Nagnath Arts, Commerce & Science College, Aundha Nagnath Through its PrincipalTal. Aundha(Nag.) Dist. Hingoli ….RESPONDENTS ….Mr R. R. Deshpande, Advocate h/f Ms Priyanka Deshpande, Advocate for petitioners Mr S. V. Hange, A.G.P. for respondent Nos.1 to 3Mr S. S. Birajdar, Advocate h/f Mr S. K. Chavan, Advocate for respondent No.6 CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. RESERVED ON : 11th February, 2025 PRONOUNCED ON : 6th May, 2025JUDGMENT (PER : PRAFULLA S. KHUBALKAR, J.) 1.Heard. 2.Rule. Rule made returnable forthwith. Heard finally byconsent of parties.3.The petition takes exception to the decision of therespondents, denying family pension to the legal representatives ofdeceased employee by excluding the petitioners communicated byletter dated 30/08/2021. The denial of family pension is primarily onaccount of failure of the deceased employee to clear National
Legal Reasoning
12748.21wp(6) employees appointed during 23/10/1992 to 03/04/2000. In the instantmatter, the deceased was appointed on 21/06/2001 i.e. not during theperiod from 23/10/1992 to 03/04/2000. It is important to note, theapproval was granted by the University specifically making it subjectto regulations of UGC and State Government issued from time to timeregarding NET/SET qualification. The UGC Regulations 2009prescribes minimum qualification and contains provisions regardingexemption from NET/SET for the candidates possessing Ph.D.qualification. The deceased herein had completed his Ph.D. in 2017,while he was in service. Further, there is no dispute that theappointment was made by a duly constituted selection committee andit was approved by the University and thus, in view of office orderdated 05/11/2008 issued by UGC, the deceased was entitled to claimexemption from NET/SET. Thus, in the facts of the instant case, thedeceased was entitled to claim benefits of regulations and orders ofUGC issued from time to time. 9.The twofold reasons to deny family pension are dealt withby the co-ordinate benches in above-referred judgments. Consideringsimilar situation of appointment dated 09/03/2002, the co-ordinatebench had granted pensionary benefits to the deceased employee vide 12748.21wp(7) judgment dated 05/02/2024 in Writ Petition no.10170/2021 byprimarily considering that the appointment was duly approved.Further, another co-ordinate bench in Writ Petition No.637/2022 hasheld the employee entitled to grant of pensionary benefits byconsidering the order dated 05/11/2008 passed by the UGC which hadgranted exemption from NET/SET examination by primarilyconsidering the fact that the employee was appointed by a dulyconstituted selection committee. 10.Having considered the controversy involved in the instantmatter, we find that the view taken by the co-ordinate bench in WritPetition No.10170/2021 is applicable to it. It is, therefore, profitable toreproduce relevant paragraphs from the said judgment :“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 institute 12748.21wp(8) wherein the deceased was serving i.e. respondent No.6 hadforwarded 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 to benoted 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.”11.This apart, while considering the purport of the orderdated 05/11/2008 passed by the UGC, another co-ordinate bench inWrit Petition No.637/2022 has held the employee entitled topensionary benefits by relying upon the judgment in Writ PetitionNo.10170/2021, of which relevant paragraphs are reproduced below :-“5. Our attention is invited to the order dated 5.11.2008passed by the University Grants Commission (for short"U.G.C.") wherein the petitioner was granted exemption from 12748.21wp(9) appearing in NET/SET examination as the petitioner wasselected by duly constituted Selection Committee.6. In this background, respondent No.2 the Joint Director ofHigher Education has instead of appreciating the exemptiongranted by U.G.C. and also the approval to the appointment ofthe petitioner, proceeded to overwrite the exemption granted byU.G.C. dated 5.11.2008 thereby forming the basis of non-holding NET/SET qualification by the petitioner fordisqualifying him from getting the retirement benefits.7. The aforesaid issue, in our opinion, is covered by thedecision dated 5.2.2024 of Division Bench at Aurangabad inWrit Petition No.10170/2021 (Gangasagar W/o Umrao Kawaleand two others V/s. The State of Maharashtra and others).……..” 12.Having considered the factual aspects of the instant case,we find no reason to take a different view in view of the fact that thedeceased employee had rendered 19 years of service after having beenappointed through the regular selection process. We are of theconsidered view that the decision of the respondents denyingpensionary benefits is unsustainable and the petition deserves to beallowed. Hence, we find it appropriate to quash the impugnedcommunication dated 30/08/2021 issued by respondent No.4 and dated02/09/2021 issued by respondent No.6. We hold that the petitionersare entitled to grant of family pension of deceased Shri. NandkishorSitaram Patade. Accordingly, the respondents are directed to process, 12748.21wp(10) sanction and disburse the family pension and other retiral benefits tothe petitioners, within a period of three months from today.13.The writ petition is allowed in above terms.14.Rule is made absolute.(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk
Arguments
12748.21wp(3) Eligibility Test/State Eligibility Test (NET/SET) examination asrequired by the order of approval of appointment. 4.The petitioners are the legal representatives of deceasedShri. Nandkishor Sitaram Patade, who had worked on the post of‘Librarian’ from 21/06/2001 till his death on 23/04/2021, while inservice, due to Covid-19. The primary contention of the petitioners isthat deceased Shri. Nandkishor Sitaram Patade, husband of petitionerNo.1 and father of petitioner Nos.2 and 3 was appointed on 21/06/2001by regular selection process and his appointment was duly approvedby respondent No.5/University, however, subject to passing ofNET/SET examination. It is their specific case that the deceasedemployee had achieved additional/higher qualification of degree ofPh.D. on 11/04/2017, pursuant to which, he was granted threeadditional increments. After rendering qualifying service for pensionof more than 19 years, he expired at the age of 46 years. Denial offamily pension is mainly on account of non-fulfillment of therequirement to obtain NET/SET qualification; and secondly, on theground that the appointment of the employee was not during the periodfrom 23/10/1992 to 03/04/2000 as stipulated in Clause No.16 of theGovernment Resolution dated 27/06/2013. 12748.21wp(4) 5.Advocate Mr R.R. Deshpande, holding for Advocate MsPriyanka Deshpande, learned counsel for the petitioners vehementlysubmits that the impugned decision denying family pension to thepetitioners is arbitrary and illegal since, undisputedly, the appointmentof the deceased was approved by the University. He strenuouslysubmits that the instant case is covered by the judgment of theco-ordinate bench of this Court, dated 05/02/2024 in Writ PetitionNo.10170/2021 (Gangasagar Umrao Kawale and others Vs. State ofMaharashtra and others), by which, considering the fact of grant ofapproval to the appointment, the employee was held entitled to grantof family pension even in absence of NET/SET qualification. He alsorelies on the judgment in Writ Petition No.10170/2021, another co-ordinate bench of this Court at Nagpur decided Writ PetitionNo.814/2023 (Vanmala Wd/o Gautam Shambharkar and others VS.State of Maharashtra and others) vide judgment dated 14/03/2024 andWrit Petition No.637/2022 (Shri. Pradip Nilkanthrao Dhote Vs. Stateof Maharashtra and others) vide judgment dated 13/11/2024, whereinthe respective employees were held entitled to pensionary benefitseven in absence of NET/SET qualification, by mainly considering thefact that their appointments were duly approved by the University. 12748.21wp(5) 6.Per contra, advocate Mr S. V. Hange, learned A.G.P. forrespondent Nos.1 to 3 and advocate Mr S. S. Birajdar, holding foradvocate Mr Chavan, learned counsel for respondent No.6 vehementlyoppose the petition mainly highlighting that the deceased had notacquired the requisite qualification and was not covered by theGovernment Resolution dated 27/06/2013. Their primary contention isthat the approval was granted to petitioner’s appointment subject tocompliance of orders issued by the University Grant Commission(UGC) and the Government from time to time, including acquiringNET/SET qualification. 7.Having considered the submissions, rival contentions fallfor our consideration.8.The controversy revolves around entitlement of thepetitioners to family pension despite deceased employee having notacquired the NET/SET eligibility. It is pertinent to note that the ordergranting approval to the appointment of the deceased was subject tocompliance with the orders and regulations issued by the UGC and theGovernment from time to time, including acquiring of NET/SETqualification. Relevant to note, Government Resolution dated27/06/2013 provided exemption from NET/SET qualification to the