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Synopsis

A division bench of the Bombay High Court comprising Justice GS Patel and Justice Neela Gokhale has recently observed that the right of pension is a valuable right vested in a government servant.

"The right of pension is a valuable right vested in a government servant. It is a social welfare measure as a post retirement entitlement to maintain the dignity of an employee. Pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to the Rules, but the very basis for grant of pension must be kept in mind, i.e., to facilitate a retired government employee to live with dignity in the winter of his life and thus such benefit should not be unreasonably denied to an employee, more so on technicalities" the bench observed. 

The high court was hearing a plea filed by an Assistant Professor of Poonam College of Pharmacy in Pune seeking directions from the court to direct the college to condone the gap in his service that would entitle him to retirement benefits. 

The petitioner had served as a Principal in Maharashtra College of Pharmacy from 19th April 1987 to 18th August 1991. Thereafter, he served as Principal at the Institute of Pharmacy run by the Shivajinagar Vidya Prasarak Mandal, for two years on a probation period after which his services were confirmed. He served there for 7 years and 11 months followed by an appointment as Principal in the Modern College of Pharmacy, Nigdi, Pune for another period of 1 year and 3 months.

The petitioner was then appointed as a lecturer in the Poonam College as a lecturer in Pharmaceutics from 4th October 1999 till 15th April 2000 which was approved by the Directorate of Technical Education. Thereafter, the petitioner continued in service on the said post although being given technical intermittent breaks in the service for a certain period.

Every time, the petitioner was given fresh appointment letters and this procedure of engagement continued till 30th April 2009. The petitioner served on this post from 4th October 1999 till 30th April 2009 with intermittent breaks. The reason for such breaks was that the post was reserved for candidates from the scheduled tribe community and services of the Petitioner were being used for want of an eligible candidate from the ST community. 

On 11th July 2009, the Petitioner was finally appointed in an open category vacancy on the post, and he has thereafter rendered unbroken service till the date of his superannuation, i.e., till 30th September 2020. 

There was a gap of 674 days in the petitioner’s service, partly due to technical breaks given earlier and partly on account of vacations. Thus, there is a shortage of only one month and 16 days in the computation of the petitioner’s qualifying service. Based on this the Directorate of Technical Education refused to grant pensionary benefits to the petitioner. 

Senior Advocate NV Bhandiwadekar appearing for the petitioner argued that the petitioner is entitled to condonation of the gap in service as provided in Rule 48 of the Maharashtra Civil Service (Pension) Rules, 1982 (“MCSP Rules”). He further asserted that the petitioner has actually served even during the technical breaks given to him and has also been paid for the said periods and hence there is in fact no gap in service at all.

He also added that the petitioner had completed service of four years and seven months as Principal in Maharashtra College of Pharmacy in Nilanga, which earlier service if added to his service with Poonam College, will run much beyond the required qualifying service and thus, he is entitled to pension benefits.

AGP VM Mali appearing for the State submitted that the petition was relying upon proviso (c) to Rule 48(1) of the MCSP Rules which goes on to reinforce its refusal to condone the service gap saying that the service should be without interruption by confirmation in the same or another post and if there is a break in service, then the interruptions (including two or more interruptions if any), cannot exceed one year.

It was pointed out that since the break in service is 674 days, i.e., beyond one year, the conditions of proviso (c) to Rule 48(1) of the MCSP Rules are not met thus making him ineligible for condonation. 

The court in its order recorded that the Directorate of Technical Education had not considered the delay in deciding the representation of the petitioner before it which if counted would fall within the proviso (c) to Rule 48(1) of the MCSP Rules

"Thus the 3rd Respondent, itself deciding the Petitioner’s representation of 16th October 2017 after a substantial delay, failed to take into account his further service till 30th September 2020. The service from 16th October 2017 counted up to 30th September 2020 makes the gap in service less than four months, ie., less than one year and thus deserves the benefit of clause (c) of the proviso to Rule 48(1). The 3rd Respondent neglected to consider the days of service after the date of representation. Thus the 3rd Respondent has clearly erred in computing the qualifying service of the Petitioner thereby wrongly rendering him ineligible for receiving pension," the court recorded.

The division bench in its order noted that there was an implied contract as the petitioner was receiving consideration as salary

"In the present case, there is acceptance of the proposal in terms of accepting appointment and payment of lawful consideration as salary supported by performance of contract. Hence, we can safely hold the act of the Petitioner’s continued service in consideration of payment of salary as an implied contract. Once existence of the contract is established, whether it is reduced into writing or not is inconsequential to the consequences that follow," the court noted

The high court set aside the order denying pensionary benefits to the petitioner and observed that,

"In our view, the genuine claim of the Petitioner was rejected purely on an incorrect interpretation of law, relying on a provision which is wholly inapplicable. The Petition thus succeeds. The Respondents are directed to disburse the amount of pension to the Petitioner, computed as per Rules, as having completed the period," the court observed.

Case title: Dr Pradeep Rangrao Nalawade vs Poona College of Pharmacy & Ors.