Writ Petition No.725 of 2006

14th July, 2017.

Petitioner Counsel: Mr. SHASHIKANT BORKAR
Respondent Counsel: Mr. V.P. MALDHURE

JUDGMENT

MRS. SWAPNA JOSHI, J. :- Heard Shri Shashikant Borkar, learned counsel for the petitioner and Shri V.P. Maldhure, learned Assistant Government Pleader for respondent nos.1 and 3.

2. By this petition, the petitioner, inter alia, prays as under :

"(i) By suitable writ or directions the respondent be kindly directed to fix the pension of the petitioner as per rules showing the date of retirement as 24.5.2002, or at any rate 24.5.1999 when the School was closed.

(ii) They be directed to make payment of amount of pension, gratuity and all other retiral benefits including contribution by State in GPF along with interest thereof at the rate of 12% per annum."

3. The petitioner was working as an Assistant Teacher in a School run by respondent no.2-Sanstha from 1969 till the school was de-recognised in the year 1997 and the School was closed down on 24.05.1999. According to the petitioner, he was declared surplus after the School was de-recognised. The name of the petitioner was included in the waiting list for absorption in some other School, vide letter dated 05.05.2000. The petitioner claims that he is entitled for pension along with other retiral benefits. The petitioner contended that he has rendered services for 28-years in the respondent no.2-Sanstha and as per the provisions under the Rule 25A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, the petitioner was entitled for absorption in other School as a surplus employee on termination upon closure of school.

4. Learned A.G.P. did not dispute the factual position of the petitioner rendering 28-years of service in aided School and the closure of the School on account of de-recognition. It is also not in dispute that the petitioner was qualified for pension and had rendered pensionable service of 20 years.

5. It would be advantageous to go through the provisions under Rule 25A of the Rules of 1981, which is couched in the following terms :-

"25A. Termination of Service on account of abolition of posts.

(1) The services of permanent employee may be terminated by the Management on account of abolition of posts due to closure of the school after giving him advance intimation of three months to the effect that in the event of closure of the school his services shall be automatically stand terminated. In the case of closure of school due to de-recognition, such advance intimation of three months shall be given by the management to the permanent employees after receipt of a show cause notice from Deputy Director.

Explanation: For the purposes of this subrule, the expression 'closure of the school' shall include -

(i) Voluntary closure by the management of the entire School if it is imparting instruction through one medium or a part of the school comprising one or more media of instruction if it is imparting instruction through more than one medium; and

(ii) closure of the school due to de-recognition by the Department.

(2) The names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) on account of de-recognition and who are not directly responsible for such de-recognition shall be taken on a waiting list by the Education Officer in the case of primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior college of Education and same shall be recommended by him to the managements of newly opened aided Schools or of the existing aided schools which are allowed to open additional Division or classes for consideration."

6. There is nothing on record to show that the petitioner was responsible for de-recognition of School; but it was because of the order issued by the Education Department. This has resulted in termination of services under sub-rule (1) of Rule 25A reproduced above. Undisputedly, the petitioner's name was included in the waiting list which was recommended by the Education Officer to the Management of aided schools.

7. Rule 6 (1) of the Maharashtra Civil Services (Pension) Rules, 1982 which is applicable in this case, stipulates as under :

"6(1): Any claim to pension or Family Pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or dies, as the case may be :

Provided that, if during his service, changes disadvantageous to him are introduced in the rules, to which he became subject on entry into the service of Government, his pension shall not be less than that which would have been admissible but for the introduction of such changes."

Under Rule 6(1), the entitlement to pension or family pension is upon (1) retirement, or (2) discharge, or (3) death of an employee.

8. Rule 18 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 stipulates that the Discharge Certificate is to be issued by the Head of the School in the form in Schedule 'H' to an employee whose services are terminated, after due notice to him. Once the petitioner is terminated under sub-rule (1) of Rule 25A, he is to be discharged under Rule 18 by issuing Discharge Certificate in form 'H'. The petitioner in this case acquires a status of an employee who is discharged under Rule 18. Hence, Rule 18 of the MCS (Pension) Rules applies.

9. On a plain reading of the above-said provisions, it is amply clear that if the services of the employee comes to an end due to the de-recognition of the School, the employee is entitled for pension or family pension when he is retired, discharged or dies. The petitioner was discharged from the services as he was declared surplus. In view thereof, the petitioner is entitled for pensionary benefits in the following terms :-

(i) The petitioner is entitled for pension from 24.05.1999 when he stood discharged from School upon de-recognition in the year 1997.

(ii) The respondents are directed to make payment of pension, gratuity and other retiral benefits accordingly along with interest at the rate of eight per cent per annum.

10. Rule is made absolute in the aforesaid terms. However, there shall be no order as to costs.

Ordered accordingly.