Allowed

Jagjeevan Jaikumar Sanghai v. Parbhani Municipal Corp. and Ors.

Bombay HC14 Mar 2018WP/933/2012

Case brief

AI extract

What is this about?

This Writ Petition was allowed computing half of the petitioner's ad-hoc service period for pensionary benefits. The court held that statutory rules governing pension computation prevail over conditions accepted during regularization.

What did the court decide?

The writ petition is allowed; half of ad-hoc service counted for pension; pension and arrears to be paid to legal heirs within three to six months.

Jagjeevan Jaikumar Sanghai Vs Parbhani… — Pension and Retirement Benefits | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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WRIT PETITION NO.933 OF 2012

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Jagjeevan Jaikumar Sanghai,
Age-63 years, Occu:Nil-Retired,
R/o-Subhash Road,
Near Marwadi Jain Mandir,
Parbhani-431 401,

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(Petitioner since deceased

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through Legal Heirs:)

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1) Smt. Asha w/o Jagjeevanrao Sanghai, Age-58 years, Occu:Nil, R/o-Subhash Road,

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 Near Marwadi Jain Mandir,
 Parbhani-431 401,

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2) Govind s/o Jagjeevanrao Sanghai, Age-39 years, Occu:Service, R/o-Subhash Road, Near Marwadi Jain Mandir, Parbhani-431 401,

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...PETITIONERS

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 VERSUS

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1) Parbhani Municipal Corporation, Parbhani, Through its Commissioner,

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2) The Divisional Commissioner, Aurangabad Revenue Division, Aurangabad AND the Regional Director of

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Municipal Administration, Aurangabad,

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3) The State of Maharashtra,
 Through the Secretary,
 Urban Development Department,
 Mantralaya, Mumbai-400 032.

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...RESPONDENTS

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...

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 Mr.Ajay S. Deshpande Advocate for Petitioners.
 Mr.S.S. Bora Advocate for Respondent No.1.
 Mrs.V.S. Chaudhari, A.G.P. for Respondent
 Nos.2 and 3.

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...

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CORAM: S.S. SHINDE AND

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 S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 21ST FEBRUARY, 2018

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 DATE OF PRONOUNCING JUDGMENT: 14TH MARCH, 2018

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. This Petition under Article 226 of the

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Constitution of India is filed with following
substantive prayer:

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"By appropriate writ, order or
direction, the impugned communication
dated 28.3.2011 at Exh.'I' issued by
the erstwhile Chief Officer, Municipal
Council, Parbhani - now R-1 herein, may

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kindly be quashed and set aside by
directing R-1 to calculate the pension
and pensionary benefits to the
Petitioner by taking into account past
service of the petitioner rendered on
adhoc basis form January, 1989 till
August, 2001, which was eventually
followed by his permanent absorption in
a substantive capacity by an order
dated 31.8.2001, by extending him the
benefits of upgradation of pay and
pension as per the revised pay scales
of VI Pay Commission."

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2.It is the case of the Petitioner -

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Jagjeevan Jaikumar Sanghai that his father was
working under Respondent No.1 which was then
Municipal Council. In order to provide a source of
livelihood to the family after the death of his
father, the Petitioner came to be appointed, in
January, 1989. The initial appointment of the
Petitioner was as Junior Clerk on temporary basis,

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and on daily wages. The Petitioner's appointment
was continued on ad-hoc basis only in view of the

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Resolution passed by the Standing Committee on 2nd
September, 1991 to that effect, and also by the
general body of the erstwhile Municipal Council
dated 5th August, 1992. It is submitted that since
1991 the services of the Petitioner although
continued to be ad-hoc, were without any
interruption and without any break. It is further
submitted that under the orders dated 31st August,
2001, issued by the Divisional Commissioner,
Aurangabad Revenue Division, Aurangabad and the
Regional Director of Municipal Administration,
Aurangabad, the services of the Petitioner were

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regularized/ absorbed on the establishment of then
Parbhani Municipal Corporation, in pursuance of
the provisions of Section 76(1) and (2) of the
Maharashtra Nagar Parishads, Panchayat Samitees
and Industrial Township Act, 1965 (for short "Act

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of 1965"). In furtherance of the said order of
absorption, the Municipal Council, Parbhani has

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issued an office order dated 27th September, 2001,

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thereby appointing the Petitioner on permanent

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basis as clerk in Class-III in the pay-scale of
Rs.3050-75-3950-80-4590. It has been stated in the

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order of permanent absorption of the Petitioner
that, no benefits either financial or services
rendered on daily wages, would be considered.

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3.It is further submitted on behalf of the

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Petitioner that after the Petitioner was brought
on regular establishment vide order dated 27th

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September, 2001, thereafter he retired on
attaining the age of superannuation on 31st July,
2006. As some of the employees of the erstwhile

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Municipal Council were extended the benefit of
pension, which was not extended to the Petitioner,
he submitted representation to the Chief Officer,
Parbhani Municipal Council, Parbhani, requesting
to extend the benefit of pension by taking into
account the services rendered on daily wages from
January, 1989. However, the Petitioner has not

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been paid any terminal benefits or pensionary
benefits, upon his retirement on attaining the age

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of superannuation in July, 2006.

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4.It is further submitted on behalf of the

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Petitioner that, in order to entitle an incumbent
to receive pension under the Maharashtra Civil
Services (Pension) Rule, 1982 (for short "MCS
Rules"), especially Rule 33 thereof provides that
servicesrenderedcontinuouslywithout
interruption by confirmation counts in full as
qualifying for pension. The only exceptions for
counting such services have been carved out under

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Rule 57 of the MCS Rules which has been

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incorporated as an Exception to Rule 30. In the
Rules, the only requirement is that, at the time
of retirement the incumbent should hold a
permanent post substantively. It is further
submitted that the claim of the Petitioner for

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pensionery benefits has been rejected by
Respondent No.1 vide communication dated 28th
March, 2011. Hence this Petition is filed by the
Petitioner.

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5. Learned counsel appearing for the

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Petitioner submits that in the year 1989 the

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Petitioner came to be appointed as a clerk on
daily wages, on ad-hoc basis. By a Resolution of

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the Standing Committee of Respondent No.1-
Municipal Corporation, the services of the
Petitioner came to be continued on ad-hoc basis
and since then the Petitioner has rendered
uninterrupted services without any break till he

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was absorbed by order dated 31st August, 2001. It
is further submitted that on 31st July, 2006, the

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Petitioner retired on attaining the age of
superannuation, but the Petitioner was not given
the pensionery benefits. It is submitted that by

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order dated 28th March, 2011, Respondent No.1
conveyed the Petitioner that his services having

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been regularized as a special case with a specific
condition that he shall not be entitled to benefit

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of past service, the Petitioner cannot be granted
pension. Learned counsel submits that as per the

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provisions of MCS Rules and especially Rules 30
and 57, the Petitioner is entitled to pension and
pensionery benefits, by counting his earlier
service rendered from January, 1989 till August,
2001. Learned counsel therefore submits that the
Petition deserves to be allowed. In support of his
submissions, learned counsel placed reliance upon
the exposition of law by the Supreme Court in the
case of State of U.P. and another vs. Narendra
Bahadur Singh and others1. Learned counsel also
placed reliance upon the exposition of law by the
Division Bench of this Court in Judgment dated
31st March, 2015, in the case of Satish Ganpatrao
Patil and others vs. the State of Maharashtra and
others (Writ Petition No.2311 of 2013), Judgment
dated 21st September, 2010, in Shivaji s/o Jyotiba
Pawar and another vs. the State of Maharashtra and
others (Writ Petition No.2016 of 2010), Judgment
dated 24th August, 2011, in Syed Afzaluddin Ustad

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s/o Abdul Samad vs. the State of Maharashtra and

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12011(12) SCC 474

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another (Writ Petition No.815 of 2011), in
Parshuram Vithoba Bhandare vs. State of
Maharashtra and another2.

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6.On the other hand, learned counsel
appearingforRespondentNo.1Municipal
Corporation, referring to the affidavit in reply
filed, submits that the Petitioner was initially
appointed on humanitarian grounds and that too on
purely temporary basis for the period of 45 days
only and thereafter his services were discontinued
and again, in the year 1991, by way of resolution

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passed by the then Municipal Council, Parbhani, he
was appointed on compassionate ground, that too on
daily wages. Since the date of his appointment on
daily wages, the Petitioner has been continued
from time to time by issuing fresh orders for the
particular period only. In the year 2001, a policy
decision was taken by the State Government whereby

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it was decided to absorb 252 employees of the

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22001(4) Mh.L.J. 587

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Municipal Council, Parbhani, who were working on
daily wages in the permanent post, on certain
conditions, which the concerned employees were
required to accept as a precondition for the
appointment on the permanent post. One of the
condition was that, the employees will not claim
any monetary or service benefit of the past
service rendered by them on daily wages and all
the employees have given sworn in affidavits, to
that effect. The Petitioner has also tendered such
affidavit, and as such now the Petitioner is not
entitled to claim the pension on the basis of the
service rendered by him on daily wages.

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7.Learned counsel further submitted that

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in fact the Petitioner has alternative and

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efficacious remedy as available in law for
redressal of his grievances and therefore the
present Petition is not tenable. It is further

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submitted that the claim of petitioner in respect
of 6th Pay Commission for the period of 7 months

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is concerned, the same is under consideration of
Respondent No.1 and the process of preparing the
bill of difference is in progress and same will be
paid as soon as the funds are available. It is
further submitted that there is delay of almost
six years in approaching this Court and the same
has not been explained by the Petitioner and
therefore it is submitted that the Petition
deserves to be dismissed. Learned counsel further

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submits that if today the Petitioner is allowed to
claim benefits of his past service as daily wager,

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that too, against his acceptance of service
condition, then other 252 employees who are
similarly situated, will also claim the said
benefit and there will be heavy financial burden

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and as such the said prayer of the Petitioner
cannot be accepted. Learned counsel therefore
prayed that the Writ Petition may be rejected. In
support of his aforesaid submissions, learned

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counsel placed reliance upon the exposition of law

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by the Supreme Court in the case of Union of India

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vs. Keshab Lal Roy3.

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8.We have considered the submissions of the
learned counsel appearing for the Petitioner,
learned counsel appearing for Respondent No.1
Municipal Corporation and also learned A.G.P.
appearing for Respondent Nos.2 and 3. With their
able assistance, we have carefully perused the
pleadings, averments in the Petition, annexures
thereto, the reply filed on behalf of Respondent
No.1, annexures thereto, the exposition of law
laid down in the reported and unreported
Judgments, copies of which are placed on record.

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9.It is pertinent to note that similar

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issue was raised before the Division Bench of this
Court (CORAM: B.R. GAVAI AND M.T. JOSHI, JJ.), in
Writ Petition No.815 of 2011 (Syed Afzaluddin
Ustad s/o Abdul Samad vs. the State of Maharashtra
and another). The brief facts in the case of Syed

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31996(10) SCC 326

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Afzaluddin Ustad, referred above, were that, the
Petitioner therein was Class-IV employee on daily
wages with Respondent No.2 - Municipal Council,
Udgir since the year 1987. His services came to be
regularized along with number of other similarly
situated employees vide Respondent No.1 -
Government of Maharashtra's direction dated 29th
December, 2000. He was superannuated on 31st
August, 2005. At the time of regularizing the
services, Respondent No.1 had declared that none
of the employees shall claim any financial or
other benefits by counting the earlier service

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rendered by them on daily wages. Therefore, the
request of the Petitioner, therein, for grant of
pension was refused.

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10. Division Bench of this Court (CORAM:
B.R. GAVAI AND M.T. JOSHI, JJ.), in Writ Petition
No.815 of 2011, referred above, in Para Nos.5, 6,
7 and 8 of the Judgment dated 24th August, 2011,
held as under:

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"5. In the present case, the petitioner is
relying over the provisions of Rule 57 and
more particularly note 1 of the said Rules
for computation of past services.
Therefore, there cannot be estoppel against
the statutory instrument.

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6. Besides this, the petitioner has relied
in the similar declaration made by the
Division Bench of this Court presided over
by the Hon'ble the Chief Justice in Writ
Petition no. 1542 of 2008 dated 25.8.2010.
In the said case, another employee of
respondent no.2-Municipal Council, Udgir
sought the similar relief, whose services
were also regularised by the respondent
no.2. When his similar claim was refused by
the respondent no.2 in the Writ Petition,
he relied over the provisions of Rule 57
Note 1 of the said Rules and this Court has
allowed the Petition.

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7. In view of the above circumstances, the
Petition will have to be allowed and the
benefits of provisions of note 1 of Rule 57
of the said Rules will be applicable in his
case. Accordingly, we hold that the half of
the services of the petitioner rendered

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between 16.2.1987 to 29.12.2000 are
entitled to be counted for determining the
pensionable service of the petitioner. If
that is counted, the service of the
petitioner comes to more than 10 years. In
that view of the matter, we hold that the
petitioner is entitled to pensionary
benefits. The respondents shall take
necessary steps for giving the pensionary
benefits to the petitioner within a period
of two (2) months from today and start
making actual payment of the pension within
a period of three (3) months from today.

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8. It is further directed that all arrears of the pension shall be cleared within a period of six (6) months from today. Rule is made absolute in the above terms."

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11.The facts in the present case are similar

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to that of the facts in Writ Petition No.815 of
2011, referred above. The Petitioner herein was
also working on daily wages since 1989 and his
services were regularized by order dated 31st
August, 2001 and the Petitioner stood retired on
attaining the age of superannuation on 31st July,

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2006. His earlier service before regularization
was not counted and he was denied the pensionery
benefits. However, during the pendency of this
Petition, the Petitioner - Jagjeevan Jaikumar
Sanghai expired and his legal representatives are
brought on record.

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12.Taking the same view and for the same
reasons as stated in the Judgment and Order dated
24th August, 2011 passed in Writ Petition No.815
of 2011, referred above, we pass following order:

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O R D E R

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(I) The Writ Petition is allowed.

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(II) We hold that half of the services
of the Petitioner - Jagjeevan Jaikumar
Sanghai, rendered between 10th January,
1989 to 31st August, 2001 are entitled
to be counted for determining the
pensionable service of the Petitioner.
If that is counted, the service of the
Petitioner comes to more than 10 years.

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In that view of the matter, we hold
that the Petitioner- Jagjeevan Jaikumar
Sanghai, is entitled to pensionery
benefits.

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(III) The Respondents shall take
necessary steps for giving pensionery
benefits of the Petitioner within a
period of two (2) months from today and
start making actual payment of the
pension, to the legal heir of the
Petitioner-JagjeevanJaikumar
Sanghai, within three (3) months from
today.

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(IV) It is further directed that all
the arrears of the pension shall be
cleared within a period of six (6)
months from today.

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(V) Rule is made absolute on above
terms. The Writ Petition stands
disposed of, accordingly.

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[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

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asb/MAR18

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. After pronouncement of the Judgment,
learned counsel appearing for Respondent No.1
prays for stay to the effect and implementation of
the Judgment and order pronounced today. The
prayer is vehemently opposed by learned counsel
appearing for the Petitioner. As the legal heirs
of the Petitioner are waiting since long, we are
not inclined to entertain the prayer for stay.
Hence the said prayer stands rejected.

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[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

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asb/MAR18

Jagjeevan Jaikumar Sanghai v. Parbhani Municipal Corp. and Ors.

Case brief

What is this about?

What did the court decide?

Jagjeevan Jaikumar Sanghai v. Parbhani Municipal Corp. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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