Writ Petition No. 3458 of 2012,Writ Petition No.5078 of 2012,Writ Petition No.2829 of 2012,Writ Petition No. 2712 of 2011,Writ Petition No.3403 of 2011,Writ Petition No.3124 of 2011,Writ Petition No.3059 of 2011

20th November, 2012

Petitioner Counsel: Mr. Anand Parchure
Respondent Counsel: Ms. Bharti Dangre,Mr. Pankaj Navlani

Cases Cited:
Anuradha Jayant Gangakhedkar Vs. Brihan-mumbai Municipal Corporation, 2013(1) ALL MR 201=2012 (5) Mh. L. J. 775 [Para 4,17]
D. S. Nakara & ors. Vs. Union of India, 2007 ALL SCR (O.C.C.) 38 : AIR 1983 SC 130 [Para 6]
Deoki Nandan Prasad Vs. State of Bihar, AIR 1971 SC 1409 [Para 6]

JUDGMENT

B. R. Gavai, J. :- The petitioners have approached this Court challenging legality and validity of the Government Resolution dated 29.11.2010. The petitioners in all these petitions are either teachers or nonteaching staff employed by private school managements. Indisputably, when the petitioners were appointed in the schools in which they were appointed initially, were not admissible to hundred percent grantinaid at the time of their appointment and also on 1st November 2005. The Government of Maharashtra under various Government Resolutions has made applicable the provisions contained in the Maharashtra Civil Services (Pension) Rules to the fulltime teachers and nonteaching staff in the nonGovernment/ private aided schools. The last of such Pension Scheme was framed under the Maharashtra Civil Services (Pension) Rules, 1982.

2. The Union of India vide Notification issued by its Finance Department dated 22.12.2003 has made applicable Defined Contributory Pension Scheme (for short, the "DCP Scheme") to the employees who are appointed on or after 1.1.2005. The Union of India has also appointed a Committee for the said purpose. The Government of Maharashtra vide Resolution dated 31st October 2005 had resolved to make similar DCP Scheme applicable to the employees appointed in the services of the State of Maharashtra on or after 1st November 2005. The question regarding applicability of the said Scheme to the teaching and non-teaching staff employed in the recognised non-Government (private) aided primary, secondary and higher secondary schools so also Junior College of education was pending consideration before the State Government. Vide Government Resolution dated 29th November 2010, the Government of Maharashtra through its School Education and Sports Department has resolved that teachers and non-teaching staff appointed in the recognized nonGovernment (private) aided primary, secondary and higher secondary schools as also junior college of education on or after 1st November 2005 shall be governed by the new DCP Scheme. There was also a doubt as to whether the Shikshan Sevaks who were appointed prior to 1st November 2005 in recognized and hundred percent aided non-Government schools would be governed by the old Scheme or the new Scheme. However, such doubt has been clarified by Government Resolution dated 19.2.2011, by which it has been clarified that such Shikshan Sevaks who were appointed prior to 1st November 2005 would be governed by 1982 Rules.

3. The question that arises for consideration in the present petition is, as to whether the employees who were appointed in private recognized schools prior to 1st November 2005 and whose services were approved by the Competent Authority but the Schools were not admissible to hundred percent grant-in-aid, would be governed by 1982 Rules or new DCP Scheme.

4. Mr Anand Parchure, learned counsel appearing for petitioners submits that the cutoff date prescribing that only such of the employees who are working in private recognized schools which are receiving hundred percent grantinaid prior to 1st November 2005 for being eligible to the benefits of the 1982 Pension Rules, is totally arbitrary, unreasonable and not sustainable in law. Learned counsel further submits that though most of the petitioners were appointed prior to 1.11.2005 and although their services were also approved by the Competent Authority and though in most of the cases, they are entitled to some grants from the Government, they woulds be deprived of the benefits under the old Scheme which, according to the petitioners, was more beneficial. Learned counsel submits that the said Government policy is totally discriminatory. An hypothetical illustration is given by learned counsel for the petitioners that an employee though appointed in 1998 but if the School receives hundred percent grant-in-aid in 2008 would be governed by the DCP Scheme whereas an employee appointed much after him on 31st October 2005 in a school receiving hundred percent grant-in-aid would be governed by the old 1982 Rules. It is submitted on behalf of the petitioners that in view of the provisions of rule 19 of the MEPS Rules, right is created in favour of an employee appointed in a private recognized school who has retired on or after 1st April 1966. Learned counsel relies on the judgment of the Division Bench of this Court in the case of Anuradha Jayant Gangakhedkar v. Brihan-mumbai Municipal Corporation reported in 2012 (5) Mh. L. J. 775 : [2013(1) ALL MR 201] in support of the proposition that the service rendered by an employee in a private recognized aided school, even for the period during which the said school was not admissible to grant, is required to be taken into consideration while considering the question of the applicability of the pensionary benefits.

5. Ms Bharti Dangre, learned Additional Government Pleader, on the contrary, submits that the pension scheme was made applicable for the first time to the full-time teaching staff in recognized aided non-Government secondary schools who would retire on or after 1st April 1966, vide Government Resolution No. SSN 3365G dated 4th November 1968. Learned Additional Government Pleader submits that it is the policy of the State Government to make applicable the Pension Scheme only to such of the employees who are working in hundred percent non-Government aided schools. It is submitted that even 1982 Rules were made applicable only to such of the employees who were working in hundred percent non-Government aided schools. Learned Addl. GP submits that 1982 Rules were made not applicable to the employees who are working in non-aided schools or which are receiving grant-in-aid in part. She submits that only after the school comes to hundred percent grant-in-aid, the entire salary is being paid by the State Government and the State Government can contribute its share in the pension scheme. She further submits that the Government has taken a policy decision vide Government Resolution dated 31st October 2005 that the DCP Scheme would be made applicable to all such employees or officers who are appointed on or after 1st November 2005. It is submitted that since only such of the employees who are working in hundred percent private recognized Government aided schools are entitled to be considered as Government employees. Learned Addl. Government Pleader submits that cut off date, therefore, is on rational basis so as to bring parity between the Government employees and the employees working in private recognized Government aided schools.

6. By now, the position in this behalf is well-settled. The Constitution Bench of the Apex Court in D. S. Nakara & ors v. Union of India reported in AIR 1983 SC 130 : [2007 ALL SCR (O.C.C.) 38] where the Supreme Court had an occasion to consider the question as to whether pension is a bounty and a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and as to whether the same can be enforced through Court. The Apex Court relying upon its earlier Constitution Bench judgment in the case of Deoki Nandan Prasad v. State of Bihar reported in AIR 1971 SC 1409, has held that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. In this view of the matter, we will have to consider the claim of the petitioners in the present case.

7. Undisputedly, the right to pension of the petitioners who are working in private recognized schools which were admissible to hundred percent grant-in-aid flows from rule 19 of the MEPS Rules, 1981. Rule 19 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 reads as under:

"19. Pension.

An employee of an aided secondary school and aided Junior College of Education working on full time basis and retiring on or after 1st April 1966 and an employee of an aided primary school working on full time basis and retiring on or after the 1st April 1979 but who have opted for pension and the employee appointed on or after the abovementioned respective dates shall be eligible for pension at the rates and in accordance with the rules as are sanctioned by Government specifically to the employees of private schools."

8. It can thus be seen that the said rule is applicable to employees of aided secondary school, primary school and junior college of education working on fulltime basis. Employees covered by rule 19 are eligible for pension at such rates and in accordance with the rules as are sanctioned by Government specifically to the employees of private schools.

9. Further, it will be relevant to read preamble of the Government Resolution dated 4th November 1968. The said preamble is reproduced as under:

"RESOLUTION : I. The question of application of pension, gratuity and other retirement benefits to the teaching staff in recognized and aided non-Government secondary schools in Maharashtra was under the consideration of Government for some time past. Government is now pleased to direct that the pension, gratuity and other retirement benefits admissible to the Maharashtra State Government Servant under the Revised Pension Rules, 1950, contained in Appendix XIVC of Bombay Civil Services Rules, Volume-II as amended from time to time, the Family Pension Scheme sanctioned in Government Resolution, Finance Department No. PE-1464/ 3-64-X, dated 8th May, 1964, as amended from time to time should be made applicable to the fulltime teaching staff in recognised and aided non-Government secondary schools in the State who retire on or after 1st April 1966."

10. It is thus clear that the Government vide above resolution dated 4th November 1968 itself has made applicable Revised Pension Rules, 1950 applicable to the full-time teaching staff in recognized and aided non-Government secondary schools in the State who would retire on or after 1st April 1966. It is also not in dispute that the 1950 Rules came to be amended from time to time and lastly 1982 Rules were in vogue till the Government Resolution dated 31st October 2005 came into effect.

11. It would be seen that the petitioners are not deprived of right to pension. The only question is, as to whether they would be entitled as a matter of right to be governed by 1982 Rules though the Government has brought into effect new Scheme from 1st November 2005.

12. As already discussed hereinabove, on the basis of rule 19 of the MEPS Rules, the petitioners at the most can claim right to pension at the rates and in accordance with the rules as are sanctioned by Government specifically to employees of private schools. It is also not in dispute that the Government has abandoned the Scheme as framed under 1982 Rules and has formulated new Scheme vide Government Resolution dated 31st October 2005.

13. Therefore, next question that would fall for consideration is, as to whether decision of the Government of not giving benefit to the employees who were appointed by the private management and whose services were approved but which schools were not admissible to hundred percent grantinaid on 1st November 2005 , is sustainable or not.

14. By now, it is settled position of law that a cutoff is permissible. The only requirement in law is that basis for such a cutoff should not be unreasonable, arbitrary and violative of Article 14 of the Constitution of India. On the touchstone of these principles, we will have to examine the decision of the Government.

15. The State Government has in unequivocal terms stated that it has been policy of the State to make applicable pensionary scheme only to such of the employees who were working in hundred percent aided schools. Notice is also required to be taken that only after school starts receiving hundred percent grant-in-aid, entire salary amount of the employees would be required to be paid by the Government. Till the School is made entitled to receive hundred percent grant-in-aid, the State Government is not enjoined with the responsibility of paying entire salary. It is also a settled principle of law that primary responsibility to make payment of salary to the staff is on the management. In that view of the matter, we find that decision in prescribing cutoff date of 1st November 2005 and providing that only such of the employees who are working on hundred percent aided schools prior to 1st November 2005 being entitled to the benefit of old Scheme cannot be said to be either unreasonable or arbitrary. It is only after the school is brought on hundred percent grant-in-aid basis, the employee of such school would be entitled to be equated with Government employee.

16. We find that had the Government not prescribed such a cutoff date, it would have led to anomalous situation. As already discussed hereinabove, the basic responsibility in an unaided recognized school to pay salary to its employees is on the management of the school. Taking the hypothetical situation as suggested by the counsel for petitioners, if an employee is appointed in 1998 and school comes to hundred percent grant in 2008 the question would be who would pay employer's contribution for a period of ten years. We, therefore, find that Scheme as formulated by the State Government is also totally workable inasmuch as employee who is receiving hundred percent salary from the public exchequere prior to 1st November 2005 is being governed by old Scheme. Had such a cutoff date not being provided for, there would have been discrimination between employees of the State Government who are appointed on or after 1st November 2005 and who are getting hundred percent salary from the State Government and the employees like the petitioner who are not getting full salary from the State Government. The Scheme has also taken care to see to it that a person who, though appointed in a school prior to 2005 and the school receives hundred percent grant-in-aid after 2005, would be entitled to enter into the new scheme as on the date on which the school comes to hundred percent grant-in-aid. In that view of the matter, we are unable to accept the contention of learned counsel for the petitioners that the Scheme is violative of Article 14 of the Constitution of India or unreasonable and arbitrary.

17. Insofar as the judgment of Division Bench of this Court in Anuradha Gangakhedkar's, [2013(1) ALL MR 201] case (supra) is concerned, the Division Bench was construing the Pension Scheme framed by the Municipal Corporation of Greater Mumbai for its employees. In the said case, the employee was appointed as Assistant Teacher in the year 1982 in a school which was initially not admissible to grant-in-aid and was brought on aided basis in the year 2001. The Corporation, however, held that she was not eligible for pension as she had not completed qualifying service after school became fully aided in the year 2005. The Division Bench held that petitioner worked in a post which was sanctioned and approved by the Education Officer. The Division Bench held that there was no warrant in the Pension Scheme to exclude while computing qualifying service, the service which is rendered by an employee before a school came to be in receipt of grant-in-aid. So long as the school was in receipt of grant-in-aid on the date on which an employee retired from service upon attaining the age of superannuation, the applicability of the Pension Scheme would be attracted. It was held that the petitioner was an employee of a private primary aided school on the date of retirement and was hence eligible. There, the Court was not considering the question as to whether a cutoff date which provided some employees to be governed by an earlier Scheme and some employees to be governed by the new Scheme. As such, in our view, the said judgment would not be applicable to the facts of the present case.

18. It is a different matter as to whether while considering the question as to whether an employee who is working in an aided school on the date of retirement, would be entitled to benefit of services rendered by him in the said School during the period when the school was not admissible to grant-in-aid. Petitioners have also placed on record Government Resolution dated 14th February 1972 which provides that when a teacher retires from an aided non-Government secondary school and is prima facie covered by the Pension Scheme for teachers in an aided non-Government secondary schools, the service rendered by him in the same school if and when it was unaided or in other unaided secondary schools where he might have previously worked, should be allowed to be counted as qualifying service for the purposes of pension on the conditions stated in the said resolution. This is not a case before us. If an employee is denied pensionary benefit on the ground that his services after the school was brought on hundred percent grant-in-aid are not sufficient to qualify and the Authorities refuse to take into consideration the services rendered by him in such school while the said school was on unaided basis, such an employee would undoubtedly be entitled to benefit of Government Resolution 14th February 1972 and would also be entitled to derive the support from the Division Bench of this Court referred to above.

19. In that view of the matter, we find that challenge as raised to the validity of the Government Resolution dated 29.11.2010 is without any substance and as such petitions fail. Rule is accordingly discharged in all these petitions with no order as to costs.

Ordered accordingly.