Writ Petition No.2876 of 1991

12th April, 2002

Petitioner Counsel: Shri. S. S. CHOUDHARI
Respondent Counsel: Shri. K. B. CHOUDHARI, A.G.P.,Shri. U. K. PATIL

Cases Cited:
State of Punjab Vs. Boota Singh, (2000) 3 SCC 733 [Para 2]
Ramkishor Kundanlal Pashine Vs. The State of Maharashtra, W.P. No.668/1987 [Para 3]
Shalla D. Varerkar Vs. State of Maharashtra, 1999 II CLR 282 [Para 3]

JUDGMENT

MARLAPALLE, J.:- The Petitioner was born on 20th July, 1940. He completed his B.Sc. degree course in 1962. He obtained his M.Sc. degree in 1964 and came to be appointed as Lecturer in Botany at Dayanand Science College, Latur on 20th June, 1964. He came to be appointed as Vice Principal of Shri. Mahatma Basweshwar College, Latur on 20th June, 1970 and became the Principal of the said college with effect from 7th June, 1971. The Petitioner could have reached the age of superannuation in July, 2000. However, he made an application for voluntary retirement and the same was accepted with effect from 1st July, 1989 though he had opted for such retirement from 1st April, 1989. In the meanwhile, the Government of Maharashtra issued a resolution dated 21st July, 1983 directing that the pension, gratuity and other retirement benefits admissible to the Maharashtra State Government Servants under the Maharashtra Civil Services (Pension) Rules, 1982, including the family pension, 1984 contained therein should be made applicable to the full time approved teaching and non-teaching staff in recognised aided non-government Arts, Science, Commerce and Education Colleges and the nonagricultural universities in the State who retired on or after 1st October, 1982. Consequent to a decision of this Court the cut off date of 1st of October, 1982 was changed to 1st January, 1973 and accordingly the resolution dated 21st July, 1983 was made applicable to all those employees who retired on or after 1st January, 1973 from recognised aided non-government Arts, Science, Commerce and Education Colleges and the nonagricultural universities in the State. Obviously, when the Petitioner's request for voluntary retirement was accepted with effect from 1st July, 1989 he had not reached the age of superannuation and, therefore, superannuation pension was not applicable to him in view of Rule 63 of the Maharashtra Civil Services (Pension) Rules, 1982 (Pension Rules, for short). Being aware of this position he had submitted an application dated 1st April, 1989 praying for voluntary retirement and the benefits thereof in terms of Rule 66 of the Pension Rules. Though he was allowed to retire voluntarily he was not given the benefit of Rule 66 of the Pension Rules as communicated to the Respondent No.4 college vide letter dated 20th May, 1991 by the Government of Maharashtra. The Respondent No.4, therefore, submitted a representation to the Honourable Chief Minister on 22nd/25th June, 1991. By a communication dated 30th/31st July, 1991 the Respondent No.3 intimated to Respondent No.4 that the request made by him cannot be considered so as to extend the benefit of voluntary retirement to the Petitioner. The Petitioner has, therefore, approached this Court and challenged the legality of the communication dated 20th May, 1991 as well as 31st July, 1991.

2. The Administrative Officer, High Education Grants, Aurangabad has filed affidavit in reply and opposed the Petition. It has been reiterated that for being eligible for the pensionary benefits under the Pension Rules one has to put in a minimum of ten years service and has to reach the age of superannuation, as prescribed. The Petitioner was to retire on reaching the age of 60 years and he retired at the age of 49 years and though he had put in more than 10 years of service he was not entitled for the pensionary benefits under the Pension Rules in terms of the Government Resolution dated 21st July, 1983. It is further submitted that the benefit of Rule 66 of the Pension Rules was not applicable to the employees of recognised aided non-government colleges and universities till the Government issued subsequent resolution dated 7th March, 1990 by which time the Petitioner had already retired voluntarily. As the Government extended the benefit of Rule 66 of the Pension Rules vide resolution dated 7th March, 1990, i.e. after the voluntary retirement of the Petitioner, the benefit of the said decision cannot be made applicable to the Petitioner. The learned A.G.P., in this regard, has relied upon a decision of the Supreme Court in the case of "State of Punjab and others Vs. Boota Singh and another" [(2000) 3 SCC 733].

3. The Petitioner has relied upon a Division Bench judgment of this Court in the case of "Ramkishor Kundanlal Pashine Vs. The State of Maharashtra and others" [Writ Petition No.668 of 1987] as well as "Shalla D. Varerkar Vs. State of Maharashtra and another" [1999 II CLR 282]. Shri. Choudhari, the learned A.G.P. conceded that these decisions of two different Division Benches of this Court are applicable to the Petitioner's case; but they are per incuriam inasmuch as the Government Resolution dated 20th June, 1984 was not considered and from the said circular it is clear that the benefit of voluntary retirement on completion of 20 years qualifying service under Rule 66 of the Pension Rules was not applicable to the employees of the aided non government colleges and nonagricultural universities till the Government Resolution dated 7th March, 1990 was issued. We are not impressed by these arguments and we do not find any substance in the contentions that the earlier decisions of this Court in the case of Ramkishor Kundanla Pashine (supra) and Shall D. Vererkar (supra) are per incuriam.

4. The first resolution dated 21st July, 1983 clearly stated "government is now pleased to direct that the Pension, Gratuity and other retirement benefits admissible to the Maharashtra State Government Servants under the Maharashtra Civil Service (Pension) Rules, 1982, including the family pension scheme, 1984 contained therein should be made applicable to the full time approved teaching and non-teaching staff in recognised aided non-government Arts, Science, Commerce and Education colleges and the nonagricultural universities in the State. ... ..." The term "pension, gratuity and other retirement benefits admissible to the Maharashtra State Government Servants under the Maharashtra Civil Service (Pension) Rules, 1982" will clearly indicate that all the benefits available under the Pension Rules were extended to the employees in recognised aided non-government colleges as well as nonagricultural universities throughout the State. The clarification purportedly given vide circular dated 20th June, 1984 cannot be accepted to be a reason to say that the benefits of Rule 66 of the Pension Rules were not applicable to such employees inspite of the language employed in the resolution dated 21st July, 1983. The clarifications given by a circular, which is administrative in nature, cannot alter, vary or supersede the terms of a Government Resolution. Even though the Government of Maharashtra issued another resolution on 7th March, 1990 and stated that the benefits of Rule 66 of the Pension Rules are made applicable to the employees, like the petitioner, it cannot be accepted that the said benefit was extended for the first time with effect from 7th March, 1990. We will have to follow the language employed in the resolution dated 21st July, 1983 which is the foundation for extending the pensionary benefits to such employees who retired on or after 1st January, 1973. Rule 66(1) of the Pension Rules reads, thus :

"At any time if a Government Servant has completed 20 years qualifying service, he may, by giving notice of three months in writing to the appointing authority, retire from service."

When the Petitioner submitted his application for voluntary retirement on 1st April, 1989 he had admittedly completed about 25 years of service and in no uncertain words he had requested to accept his case for voluntary retirement and pensionary benefits under Rule 66 of the Pension Rules. The contentions of the Government that the voluntary retirement benefits came to be extended to such employees only from 7th of March, 1990 within the meaning of Rule 66 of the Pension Rules cannot be accepted on the face of the language employed in the first resolution dated 21st July, 1983 and issuance of the Government Circular dated 20th June, 1984, as well as the Resolution dated 7th March, 1990, would not vary the term of the resolution dated 21st July, 1983.

In the case of State of Punjab and others (supra) the Supreme Court in para 7 observed, thus :

"7. On merits we find that the retirement benefits which are claimed by the Respondent are benefits which are conferred by subsequent orders/notifications. Therefore, persons who retired after the coming into force of these notifications and orders are governed by different rules of retirement than those who retired under the old rules and were governed by the old rules. The two categories of persons, who retired were governed by two different sets of rules. They cannot, therefore, be equated. Further, granting of additional benefits has financial implications also. Hence, specifying the date for the conferment of such additional benefits cannot be considered as arbitrary."

5. Relying upon the same observations the learned A.G.P. submitted that as the Petitioner has retired prior to the Government Resolution dated 7th March, 1990 the said benefits of Rule 66 of the Pension Rules cannot be made applicable to him and granting of such benefits as also financial implications on the State exchequer. We are not examining the issue of specifying a particular date for the conferment of additional benefits; the basic Resolution dated 21st July, 1983 itself was clear in its contents and it included the applicability of all the provisions of the Pension Rules and, therefore, it cannot be accepted that the said benefit of voluntary retirement within the meaning of Rule 66 was carved out or was not made applicable on the basis of the clarifications given vide circular dated 20th June, 1984. The contents of the Government Resolution dated 21st July, 1983 cannot be made nugatory/redundant by such clarifications. It is for these reasons that the reliance placed by the learned A.G.P. on the decision of the Apex Court in the case of "State of Punjab" (supra) is misplaced.

6. In the result, we allow the Petition and hold that the Petitioner was entitled for the benefit of Rule 66 of the Pension Rules. We direct the Respondent Nos.1 to 3 to process the Petitioner's case under Rule 66, as expeditiously as possible, and the pensionary benefits on account of voluntary retirement shall be released within a period of three months from today, including the arrears therein. Undoubtedly, the Petitioner shall be entitled for payment of interest under Rule 129-B of the Pension Rules. Rule made absolute accordingly with no orders as to costs.

Petition allowed.