Partly allowed

Mohd Amanullah Khan Mohd Bakshullah Khan Durani v. the State of Maharashtra and Another

Bombay HC5 Sept 2018WP/11309/2017

Case brief

AI extract

What is this about?

Writ petition filed by a retired government employee seeking directions to count daily wage service prior to regularization for pension and time-bound promotion. Court held daily wage service counts as half for pension but not for promotion.

What did the court decide?

Service rendered on daily wages counted as half for pension benefits; order denying promotion benefits based on pre-regularization service upholds.

Mohd Amanullah Khan Mohd Bakshullah Khan… — Pension and Retirement Benefits | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 11309 OF 2017

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Mohd. Amanullah Khan s/o
Mohd. Bakshullah Khan Durani,
Age: 58 Years, Occu.: Retired,
R/o.: Yusuf Colony, Near Aksa Function
Hall, Old Jalna, Tq. And Dist.: Jalna

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..Petitioner

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Versus

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1. The State of Maharashtra, Through Secretary, Urban Development Department, Mantralaya, Mumbai - 32

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2. The Municipal Council, Jalna, Tq. and Dist.: Jalna, Through its Chief Officer .. Respondents

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Shri Vivek J. Dhage, Advocate for the Petitioner.
Shri P. N. Kutti, A.G.P. for Respondent No. 1.
Shri J. J. Patil, Advocate for Respondent No. 2.

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Coram: S. V. GANGAPURWALA &

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SUNIL K. KOTWAL, JJ.

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Reserved for Orders on: 10th July, 2018 th Order pronounced on: 5 September, 2018

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ORDER(Per S. V. Gangapurwala, J.):

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1. The present writ petition is filed seeking

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directions against the respondent to count the
service of the petitioner from the date of initial
appointment for the purpose of pensionary benefits
and time bound promotion.

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2.Mr. Dhage, learned counsel for the petitioner
submits that the petitioner was appointed on daily
wages as an 'Electric Pump Operator' continuously
till 7th July, 1999. On 7th July, 1999, the
petitioner has been made permanent employee of
respondent no. 2 as an 'Electric Pump Operator'.
On 30th June, 2017, the petitioner stood retired on
attaining the age of superannuation from the post
of 'Electric Pump Operator'. The learned counsel
submits that as the petitioner has completed 12
years of service on a permanent post, he is
entitled for time bound promotional pay scale.
The learned counsel submits that, time and again
he made representations to count his services from

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the initial date of appointment on daily wages,
the same is not considered. The learned counsel

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relies on Rule 57 of the Maharashtra Civil

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Services (Pension) Rules, 1982 . The learned

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counsel also relies on the judgment of the Apex
Court in a case of State of Tripura and others Vs.
K. K. Roy reported in 2004 AIR SCW 1, so also, the
judgment in a case of Union Public Service
Commission Vs. Dr. Jamuna Kurup and others
reported in 2008 AIR SCW 3780. The learned counsel
further relies on the judgment of the Division
Bench of this court in a case of Shivappa
Bhujangappa Bembale Vs. State of Maharashtra and

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another reported in 2005 (3) Mh. L. J. 709 and another judgment in Writ Petition No. 7170 of 2010 [ Mohd. Khaja S/o Abdul Hakim Vs. Maharashtra Animal & Fishery Sciences University and others ] dated 22^nd February, 2011, and in Writ Petition No. 2016 of 2010 [ Shivaji s/o Jyotiba Pawar and another Vs. The State of Maharashtra and others ] dated 21^st September, 2010, to submit that the services rendered on daily wages ought to be

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counted half for the purpose of pensionary
benefits.

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3.Mr. Patil, learned counsel for respondent

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no. 2 submits that the petitioner initially was
appointed as an 'Electric Pump Operator' on daily
wages and his services were regularised on 7th
July, 1999, by respondent no. 2 in the light of
the Government Policy. His services for all
purposes would be counted from the date of his
regularisation viz. 7Th July, 1999. The time bound
promotional benefits have been given to the
petitioner on 27th December, 2012. The learned
counsel further submits that, as per Government
Resolution dated 8th March, 1999, issued by the
General Administration Department, the seniority

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of the employees whose services have been
regularised will be counted from the date of order
of regularisation of their services. The same
Government Resolution further states that benefit

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of the affected services will not be given / counted for any purpose. The learned counsel further submits that, Rule 57 – non-pensionable service of the Maharashtra Civil Services

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(Pension) Rules, 1982 would not benefit the petitioner. The same will have to be read in consonance with Rule 9 (39) – pensionable service, Rule 30 - commencement of qualifying service, Rule 47 – effect of interruption in service. The learned counsel relies on the judgment of the Apex Court in a case of State of Haryana and others Vs. Piara Singh and others reported in AIR 1992 SC 2130, to submit that the Government can issue orders with regard to regularisation prescribing date by which prescribed period of service should have been put in. It is open for the Government to put forth the terms and conditions of regularisation. The learned counsel submits that the petitioner has no case, the same be dismissed.

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4.We have considered the submissions canvassed
by the learned counsel for respective parties.

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5.It is not a matter of debate that the

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petitioner was initially appointed as an 'Electric
Pump Operator' on daily wages on or about 12th

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August, 1985. It is also not a disputed fact that
since 12thAugust, 1985 the petitioner was
continuously working on daily wages as an
'Electric Pump Operator' with respondent no. 2
till 07th July, 1999, and on 07th July, 1999 the
petitioner was regularised in service as an
'Electric Pump Operator' in the pay scale of
Rs.750-12-870. Since the said date the petitioner
was serving as a regular employee till the date of
his superannuation on 30th June, 2017.

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6.The petitioner seeks directions against the
respondent to count his service from the date of
initial appointment viz. 12th August, 1985 for the
purpose of time bound promotion, as well as,
pensionary benefits.

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7. Rule 9(39) of the Maharashtra Civil Services (Pension) Rules, 1982 defines pensionable service as service which qualifies the government servant performing it to receive the pension from the Consolidated Fund. Rule 30 provides that the

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qualifying service of a government servant shall
commence from the date he takes charge of the post
to which he is first appointed either
substantively or in an officiating or temporary
capacity, provided that at the time of retirement
he shall hold substantively permanent post in
government service or holds a suspended lien or
certificate of permanency. It is not disputed that

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the petitioner is made permanent under the
appointment order dated 07th July, 1999.

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8. Note - 1 of Rule - 57 of the Maharashtra

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Civil Services (Pension) Rules, 1982 provides that in cases of employees paid from contingencies who are subsequently brought on a regular pensionable establishment by conversion of their posts, onehalf of their previous continuous service shall be allowed to be counted for pension. The petitioner

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it appears was paid his emoluments from the
contingency while working on daily wages. The
appointment order no where provides that the
earlier service rendered by the petitioner on

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daily wages is excluded or is brought outside the purview of Note - 1 of Rule - 57 of the Maharashtra Civil Services (Pension) Rules, 1982. The respondents are harping upon the Government

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Resolution dated 8thMarch, 1999. The said
Government Resolution is in a regional language.
Clause 'E' reads thus -

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“ ¼bZ½ vHkkfor fu;qDrhpk Qk;nk dqBY;kgh iz;ktukFks [email protected]

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ns.;kr ;s.kkj ukgh- ”

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The same is not incorporated in appointment
order dated 07th July, 1999. It does not appear

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that the said clause was made known to the
petitioner.

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9. Be that as it may, the said clause nowhere states that Note - 1, Rule – 57 of the Maharashtra Civil Services (Pension) Rules, 1982 would not be applicable, so also, the appointment order also does not lay down any exception from considering the services rendered on daily wages for pensionable purpose as provided in Note - 1, Rule

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- 57 of the Maharashtra Civil Services (Pension) Rules, 1982. Reading the Maharashtra Civil Services (Pension) Rules, 1982. I t is manifest that the services rendered by the petitioner on daily wages shall be counted as half for the purpose of pension.

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10.The other grievance of the petitioner for
counting the service from the year - 1985 for time
bound promotional pay scale does not appear to be
in consonance with the Rules. The time bound
promotional pay scale is awarded to an employee
with continuity to remove stagnation. The services
rendered from the year – 1985 were on daily wages
and not as a regular permanent employee. The
petitioner could not have thought of any
promotional avenue while on daily wages. The time
bound promotional pay scale is made applicable
with a view that within 12 years of the
appointment the petitioner cannot be promoted
because of the unavailability of the post or
otherwise though the petitioner is eligible. The

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appointment of the petitioner in the year – 1985
was purely on daily wages. The petitioner can
think of taking benefit of a promotional post only
after he has been made permanent and regularised
in service and the said date is 07th July, 1999.
The petitioner has been awarded time bound
promotional pay scale on 27th December, 2012, on
completion of 12 years after the petitioner was
regularised. In view of that, the petitioner is
not entitled to count his services from the year –
1985 for time bound promotional pay scale.

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11.In the result, we pass following order -

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ORDER

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I]The petitioner is not entitled for time
bound promotional pay scale considering his
service from the year – 1985, and the time
bound promotional pay scale granted to him in
December – 2012 considering his regular
service from 7th July, 1999 is proper.

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II]The service rendered by the petitioner on
daily wages from the year – 1985 till the

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date the petitioner is regularised shall be
counted half for the purpose of pensionary
benefits.

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12.Writ Petition accordingly partly allowed. No

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costs.

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[SUNIL K. KOTWAL, J.] [S. V. GANGAPURWALA, J.]

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marathe

Mohd Amanullah Khan Mohd Bakshullah Khan Durani v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Mohd Amanullah Khan Mohd Bakshullah Khan Durani v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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