VBC 1/5 wp415.12-26.7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.415 OF 2012
Anuradha Jayant Gangakhedkar. ...Petitioner. Vs.
Brihanmumbai Municipal Corporation & Ors. ...Respondents. ....
Mr.Kiran S.Bapat with Mr.Jayesh Desai and Mr.T.R.Yadav i/b. M/s.Desai & Desai Associates for the Petitioner.
Mr.Anil Singh with Mr.Anil Yadav and Ms.Geeta Joglekar for Respondent Nos.1 and 2.
Mr.Ravindra J.Dhond for Respondent Nos.3 and 4.
Ms.Snidha Sreedharan, AGP for Respondent No.5.
CORAM : DR.D.Y.CHANDRACHUD AND
July 26, 2012.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
2. The Petitioner was appointed as an Assistant Teacher on 7 June 1982 in a Marathi Medium Primary School, namely, D.D.@ Babasaheb Deshpande D.S. High School (Primary School). There is no dispute about the fact that the Petitioner had the requisite qualifications. Her appointment was duly approved by the Municipal Corporation. She retired from service upon attaining the age of 58 years on 30 June 2011, after a long service of 28 years. At the time of her appointment, the School which was conducted by the Third Respondent did not receive any grant-in-aid from the Municipal Corporation. In 2001, the School received 20% grant-in-aid, which was progressively increased in a similar proportion so that by 2005 the school was in receipt of full grant-in-aid. The Petitioner submitted a representation on 14 November 2011 for the grant of pension and a query under the Right to VBC 2/5 wp415.12-26.7
Information Act, 2005 seeking the reasons on the basis of which pension was denied. Eventually, these proceedings have been instituted under Article 226 of the Constitution seeking release of pensionary benefits with effect from the date of retirement.
3. The Municipal Corporation of Greater Mumbai has in its Education Department notified by a circular dated 31 October 1997, a Pension Scheme to the approved staff of Private Primary Aided Schools in Greater Mumbai. The scheme came into effect from 1 April 1979. Clause 5(ii) of the circular specifies the application of the scheme:
"This scheme shall apply to full time confirmed and approved teaching and non-teaching staff of private primary aided schools of Greater Mumbai whose salaries and allowances are held admissible for Grant-in-aid and claimed regularly by the school from the Municipal Corporation of Greater Mumbai and subject to the condition that each such Private Primary Aided School has obtained exemption under Section 16(2)of the Employees Provident Funds and Misc. Provisions Act, 1952."
Clause 5(iv) provides that for the purpose of the scheme, the expression "Private Primary Aided School" "means a private primary school recognised and registered under the Grant-in-aid Code framed by the Mumbai Municipal Corporation and approved by the State Government and receiving Grant-in- Aid from the Municipal Corporation of Greater Mumbai". The age of superannuation for the purpose of the scheme is 58 years. Sub-clause (xi) provides that in computing the length of qualifying service for pension under this scheme, all previous service whether temporary, officiating or permanent either in one or more than one private Primary Aided Schools in Greater Mumbai shall alone be taken into account. Clause 8 which provides for the procedure for calculation of pension, gratuity and family pension to the approved staff of the private primary aided school in Mumbai is as follows : "a) Amount of Pension :
i) In case of the employees working in the private primary aided VBC 3/5 wp415.12-26.7
schools retiring in accordance with the provisions of B.M.C. Pension Rules (1953) after completing a qualifying service of not less than 33 years, the amount of basic pension shall be at 50% of the pensionable pay subject to the minimum of Rs.375/- + Admissible Dearness Relief p.m. and the maximum of Rs.4000/- + Admissible Dearness Relief p.m.
ii) In case of the employees working in the private primary aided schools retiring in accordance with the provisions of the B.M.C. Pension Rules, 1953, who have rendered qualifying service of 10 years or more, but less than 33 years, the amount of pension will be in such proportion of the maximum pension admissible under clause (i) above on the qualifying service rendered by them will bear to the qualifying service of 33 years subject to the minimum of rs.375/- + Admissible Dearness Relief per month and the maximum of Rs.4000/- +Admissible Dearness relief p.m."
The expression "qualifying service" is defined in Rule 5(1)(f) of the Mumbai Municipal Corporation Pension Rules, 1953 to mean and include among others duty performed in a permanent post. The Education Officer (primary) has recently issued a circular on 20 July 2012 stating that it is only service which is rendered after the school came into receipt of hundred per cent grant-in-aid that would count as qualifying service.
4. The submission which has been urged on behalf of the Petitioner is that: (i) The pension scheme is to apply to full time confirmed and approved teaching and non-teaching staff of Private Primary Aided Schools; (ii) There is no dispute about the fact that the school in which the Petitioner worked and from which she retired, was recognised and registered under the Grant-in-Aid Code; (iii) No restriction is contained either in the Pension Rules or in the circular notifying the pension scheme to the effect that for the purposes of computing qualifying service, the service rendered by an employee prior to the receipt of grant-in-aid by the school would have to be excluded; (iv) The VBC 4/5 wp415.12-26.7
test is as to whether an employee was a full time and approved member of the teaching and non-teaching staff of a Private Primary Aided School in Greater Mumbai. If that test is satisfied, there is no statutory provision which excludes, for computing the period of qualifying service, the service which was rendered during the period when the school was not in receipt of grant- in-aid.
5. On the other hand, it has been urged on behalf of the Municipal Corporation by Counsel that: (i) Qualifying service must be construed to be service rendered to an aided school; (ii) Hence, the service which has been rendered by an employee before the school came in receipt of grant-in-aid would have to be excluded for computing qualifying service; (iii) Rule 48 of the Pension Rules provides that a Municipal employee retiring on superannuation before completing qualifying service of ten years is only entitled to service gratuity of half month's pay for each completed six monthly period of qualifying service.
6. The Pension Scheme which has been framed by the Municipal Corporation applies to full time confirmed and approved teaching and non- teaching staff of private primary aided schools of Greater Mumbai whose salaries and allowances are held admissible for grant-in-aid and claimed regularly by the School from the Municipal Corporation subject to the condition that the School has obtained an exemption under Section 16(2) of the EPF Act, 1952. The expression "Private Primary School" is defined to mean a private primary school recognized by the Government and receiving grant-in-aid from the Corporation. Clause 8 of the Scheme which provides for the computation of pension requires a qualifying service not less than 33 years. In the case of an employee who has rendered qualifying service of ten years or more, but less than 33 years, a pro rata computation is provided for. The definition of the expression "qualifying service" in the Pension Rules refers to service rendered in a permanent post. In the present case, there is no dispute about the position that the Petitioner worked in a post which was sanctioned. Her services were duly approved by the Education Officer. VBC 5/5 wp415.12-26.7
The test which must be applied is as to whether an employee was a full time confirmed and approved member of the teaching or non-teaching staff of a private primary aided school on the date of her retirement. If that test is satisfied, the Pension Scheme is made applicable by virtue of the provisions of clause 5(ii). There is no warrant in the Pension Scheme or the Pension Rules 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 application of the Pension Scheme would be attracted. The Petitioner was an employee of a private primary aided school on the date of retirement and was hence eligible.
7. For these reasons we are of the view that the Municipal Corporation is required to release pensionary benefits to the Petitioner. We direct that the Third and Fourth Respondents shall complete the pension papers pertaining to the Petitioner and submit them to the Education Officer (Primary) of the Mumbai Municipal Corporation within a period of two weeks from today, unless the papers have already been submitted. In the event that the Education Officer requires any further information, he shall make a requisition to the School within one week which shall comply with the requirements within a period of one week thereafter. The arrears of pension shall be released to the Petitioner within a period of one month from today. Relief for the award of interest is not pressed.
8. Rule is made absolute in the above terms. There shall be no order as to costs.
( Dr.D.Y.Chandrachud, J.)
( R.D. Dhanuka, J. )