Dismissed

Nagnath Govind Biradar v. the State of Maharashtra and Others

Bombay HC19 Dec 2017WP/7992/2016

Case brief

AI extract

What is this about?

Two petitioners, formerly daily wage laborers regularized under a state policy, sought pension benefits counting prior temporary service as half. The court held that since their appointment orders explicitly incorporated the Defined Contributory Pension Scheme which excluded the old Pension Rules, they were not entitled to count prior service under Rule 57.

What did the court decide?

Petitioners disposed of; no costs.

Nagnath Govind Biradar Vs the State of… — Pension and Retirement Benefits | Bombay HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 7991 OF 2016

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Gajrabai W/o Sonba Andhare .. Petitioner Versus The State of Maharashtra and others .. Respondents

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WITH

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WRIT PETITION NO. 7992 OF 2016

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Nagnath Govind Biradar .. Petitioner Versus The State of Maharashtra and others .. Respondents

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Shri Anand V. Indrale Patil, Advocate for the Petitioner in both matters.

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Shri P. S. Patil, Addl. G. P. for the Respondent No. 1 in both matters.

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Shri M. N. Navandar, Advocate for Respondent Nos. 2 and 3 in both matters.

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CORAM : S. V. GANGAPURWALA AND S. M. GAVHANE, JJ.

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Closed for Orders : 06.12.2017 Order Pronounced on : 19.12.2017

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ORDER :

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. The petitioners seek directions against respondents to grant pensionary benefits to petitioners and other admissible benefits by considering half service rendered by them on temporary basis, in addition to the service rendered by them on

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permanent basis.

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Mr. A. V. Patil, learned advocate for petitioners submits that, petitioner in Writ Petition No. 7991 of 2016 was working with respondent Nos. 2 and 3 as a peon on temporary basis from the year 1978 to 2015. The petitioner in Writ Petition No. 7992 of 2016 was working with respondent Nos. 2 and 3 as a skilled labour on temporary basis from the year 1985 to 2015. The petitioners were made permanent from the date of their respective appointments on sanctioned posts under orders dated 08.12.2015 and 21.12.2015 respectively with retrospective effect. The learned advocate submits that, the services rendered by petitioners are to be counted as half as per Sec. 57 of the Maharashtra Civil Services (Pension) Rules. The learned counsel relies on various judgment/orders passed by this Court in Writ Petition No. 3061 of 2014 dated 29.09.2014, dated 22.02.2011 in Writ Petition No. 7170 of 2010 and order dated 22nd August, 2011 in Writ Petition No. 3271 of 2011. The learned advocate further submits that, the petitioners were made permanent from the date of their appointments on sanctioned posts under orders dated 08.12.2015 and 21.12.2015 with retrospective effect.

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Mr. Navandar, the learned advocate for respondent Nos. 2 and 3 submits that, the petitioners were appointed on the vacant post of peon and skilled labour under university order dated 08.12.2015 and 21.12.2015 pursuant to the Government

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Resolution dated 16.11.2015. The respondents appointed the daily rated labourers and skilled labourers for temporary and seasonal work. The petitioner in W. P. No. 7991 of 2016 was engaged as labourer on daily wages from 16.05.1978 and petitioner in W. P. No. 7992 of 2016 was engaged as a skilled labourer in the year 1985. On 09.11.2000, the petitioners were retrenched as per Sec. 25(f) of the Industrial Disputes Act, 1947. The retrenchment compensation was also paid to petitioners. The petitioners from the retrenched date i. e. 01.04.2001 to 01.05.2005 and 01.04.2001 to 30.04.2006 respectively were not on duty with the university. The petitioner in W. P. No. 7991 of 2016 was re-engaged as a daily paid labourer from 02.05.2005 and the petitioner in W. P. No. 7992 of 2016 was re-engaged from 01.05.2006. The petitioners were not appointed on any sanctioned vacant post. The petitioner in W. P. No. 7991 of 2016 was reengaged on daily wages as labourer from 02.05.2005 to 30.11.2015 and petitioner in W. P. No. 7992 of 2016 was reengaged on daily wages as labourer from 01.05.2006 to 30.11.2015. The re-engagement was by giving technical gap after completion of every three or six months. The Government of Maharashtra took a policy decision to make permanent or regularize the daily wages workers, skilled or semi skilled employees under G. R. dated 24.07.2015 and 16.11.2015 with certain terms and conditions. As per G. R. dated 16.11.2015, the University has regularized 265 daily paid labourers. The petitioners were also made permanent or regularized under

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orders dated 08.12.2015 and 21.12.2015 respectively as per the terms and conditions enumerated in said orders. The petitioner in W. P. No. 7991 of 2016 retired on attaining age of 60 years and the petitioner in W. P. No. 7992 of 2016 has retired on attaining age of 58 years. The petitioners are not entitled for the benefits of pension, gratuity and G. P. F. As per G. R. dated 01.11.2005 new defined contributory pension scheme is invoke. The petitioners had completed only seven months on permanent post.

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Mr. Patil, the learned advocate for petitioners submits that, the petitioners have not received any retrenchment compensation and in case the petitioners are paid retrenchment compensation, the petitioners are ready to return the said amount. The learned counsel submits that, the past services are required to be counted. The learned counsel also relies on the judgment of the Apex Court in a case of Gurumail Singh and others Vs. State of Punjab and others reported in AIR 1993 SC 1388 .

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It appears that, the petitioners were engaged as daily rated labourers in the year 1978 and 1985 respectively and were working upto the year 2000. On or about 09.11.2000 as per G. R. dated 09.11.2000, decision was taken to compulsorily retrench 7444 daily rated labourers such as un-skilled, semi-skilled in all agricultural universities including respondent/university. As per the affidavit filed by respondent Nos. 2 and 3, the petitioner in W. P. No. 7991 of 2016 was paid retrenchment compensation of

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Rs. 10,530/- vide cheque No. 603895 and the petitioner in W. P. No. 7992 of 2016 was paid retrenchment compensation of Rs. 18,720/- vide cheque No. 604007 dated 21.03.2001. It further appears that, subsequently, the petitioners were again engaged as daily wage labourers from 01.05.2005 and 02.05.2006. Thereafter, as per policy decision of the State under G. R. dated 24.07.2015, the petitioners were regularized under university orders dated 08.12.2015 and 21.12.2015.

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Fact remains that, for the period 2000 to 2005 and 2000 to 2006 respectively, petitioners were not on duty. The petitioners were retrenched in the year 2000 and as per the seniority list maintained were again employed on daily wages in the year 2005 and 2006. Under the policy decision of the State as per G. R. dated 24.07.2015, the petitioners were regularized as a peon and unskilled labourer on vacant posts on 08.12.2015 and 21.12.2015.

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The moot question would be, the services rendered by petitioners earlier on daily wages to be counted for the purpose of pensionary benefits.

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It is a matter of record that, the petitioners were retrenched in the year 2000 and were paid retrenchment compensation and thereafter were again re-employed on daily wages in the year 2005 and 2006. From 2000 to 2005/2006, the petitioners were not in service, neither on daily wages or as

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temporary. The petitioners had already received retrenchment compensation.

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In normal course as per Rule 57 of the M. C. S. (Pension) Rules, the services rendered by the petitioners as temporary can be counted as half while considering the length of service for the purpose of pension. In the present matters, the petitioners were retrenched in the year 2000. They were paid the retrenchment compensation and were subsequently re-employed on daily wages in the year 2005 and 2006 respectively. There is gap of five to six years when the petitioners were not in service and were already retrenched.

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The matters have another facet also. The policy decision was taken by the state to regularize such employees and the petitioners were appointed on vacant posts on 08.12.2015 and 21.12.2015 respectively. The Government Resolution dated 24.07.2015 pursuant to which policy decision was taken to regularize such employees states that, those who are regularized as per the Government Resolution would be governed by the Defined Contributory Pension Scheme implemented pursuant to G. R. dated 31.12.2005. Even the order dated 16th November, 2015 giving list of the employees who are regularized also lays down the condition that these employees would be governed by the Defined Contributory Pension Scheme under G. R. dated 31.12.2005 and that the Maharashtra Civil Services (Pension)

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Rules, 1982 and the Maharashtra Civil Services (Commutation of Pension) Rules 1984 will not apply. The permanent appointment orders of the petitioners dated 08.12.2015 and 21.12.2015 accepted by petitioners also specifically lays down the condition that the petitioners would be governed by the Defined Contributory Pension Scheme as per G. R. dated 31.12.2015 and the provisions of the M. C. S. (Pension) Rules would not be applicable.

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The petitioners have not assailed the conditions laid down in their appointment orders dated 08.12.2015 and 21.12.2015, nor have assailed the conditions in the G. R. dated 24.07.2015, pursuant to which the petitioners were given appointment orders. The appointment orders of the petitioners state that, petitioners would not be entitled for the pension and M. C. S. (Pension) Rules would not apply. The said conditions are not assailed. As M. C. S. (Pension) Rules, 1982 are not made applicable, the applicability of Rule 57 of the M. C. S. (Pension) Rules would not arise. The petitioners would be governed by the Defined Contributory Pension Scheme 2005 and would be entitled to the benefits as is laid down in the same.

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The writ petitions as such are disposed of. No costs.

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[S. M. GAVHANE, J.] [S. V. GANGAPURWALA, J.] bsb/Nov. 17

Nagnath Govind Biradar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Nagnath Govind Biradar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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