Bombay High Court

DADASAHEB SADA KADAMversusSTATE OF MAHARASHTRA THRU PRIN. SECRETARY, FINANCE DEPT. AND ORS

Decided: 11 September 2026
Disposal: Allowed

Holding

The Court held that 50 % of the petitioner’s part‑time service must be counted together with his full‑time service, making him eligible for pension under the old pension scheme.

Summary

The petitioner, a part‑time librarian appointed in 1995 and later upgraded to a full‑time post in 2006, sought a declaration that he was governed by the Old Pension Scheme and entitled to pension under the Maharashtra Civil Services (Pension) Rules, 1982. The State argued that his full‑time appointment post‑dated the cut‑off of 1 November 2005, making him subject to the Defined Contribution Pension Scheme. The Court examined the relevant government resolutions of 2005 and 2006, Rule 57 Note 1 of the pension rules, and a series of precedents holding that part‑time service in fully‑aided schools counts (at 50%) towards qualifying service. Applying these provisions, the Court concluded that the petitioner’s part‑time service from 1995 to 2006 must be half‑counted, rendering him eligible for the Old Pension Scheme. Consequently, the petition was allowed and the respondents were directed to process his pension and arrears.

Issues considered

Whether service rendered as a part‑time librarian before 1 November 2005 should be counted towards qualifying service for the Old Pension Scheme.
Whether the Government Resolution dated 3 August 2006, treating the full‑time appointment as a fresh appointment, bars the petitioner from Old Pension Scheme benefits.
Interpretation of Rule 57 Note 1 of the Maharashtra Civil Services (Pension) Rules, 1982 in the context of part‑time service in fully‑aided schools.

Legislation cited

Subjects

Old Pension Scheme
Defined Contribution Pension Scheme
Part‑time service
Qualifying service
Rule 57 Note 1
Private aided school
Maharashtra Civil Services (Pension) Rules
Government Resolution 2005
Government Resolution 2006
Pension entitlement

Judgment

Digitally signed
PRASHANT by PRASHANT
VILAS RANE WP 11651-23.DOC
VILAS Date:
RANE 2026.09.11
22:22:07 +0530

Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 11651 OF 2023

Dadasaheb Sada Kadam )
Age: 57 years., Occ. Service )
As Librarian with Swami Vivekanand )
Vidyalaya, Yesgaon Bk., Tal. Malegaon, )
Dist. Nashik )
R/o. S.No. 145/1A/1B/2/2, )
Plot No. 22, Vijay Nagar, Opp. )
Pooja Bar, Malegaon-camp, )
Tal. Malegaon, Dist. Nashik-423 105 ) ...Petitioner
Vs.
1. State of Maharashtra through )
Principal Secretary, Finance Department )
State of Maharashtra, Mantralay, )
Mumbai – 32. )

2. The Secretary, )
School Education and Sports )
Department, Mantralaya, Mumbai-32 )

3. The Dy. Director of Education, )
Nashik Region, Nashik )

4. The Education Officer [Secondary] )
Zilla Parishad, Nashik, Dist. Nashik )

5. The Superintendent [Secondary] )
Pay and Provident Fund Unit )
Nashik, Dist. Nashik )

6. Headmaster, )
Swami Vivekananda Vidyalaya )
R/o. Yesgaon BK, )
Tal. Malegaon, Dist. Nashik )

7. The President/Secretary )
Pujya Sane Guruji Education Society’s )
Yesgaon (Budruk), )
Tal. Malegaon, Dist. Nashik ) ...Respondents
_________

Page 1 of 44
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Mr. Jayendra Khairnar (through V.C.) with Ms. Gauri Kulkarni for Petitioner.
Mrs. Nisha Mehra, AGP for State.
Mr. Harsh Nishar for Respondent No.6.
__________

CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.

RESERVED ON: 20 AUGUST 2026.
PRONOUNCED ON: 11SEPTEMBER 2026.

Judgment (Per G. S. Kulkarni, J.) :-

1. Rule. Rule made returnable forthwith. By consent of the parties, heard

finally.

2. This petition under Article 226 of the Constitution of India seeks a

declaration that the petitioner is entitled to the benefit of the Old Pension

Scheme, as governed by the Maharashtra Civil Services (Pension) Rules, 1982,

[for short, “MCS (Pension) Rules”] along with the benefit of the General

Provident Fund (GPF), which are applicable to teaching and non-teaching

employees appointed prior to 1 November 2005. The substantive prayers as

made in the petition are required to be noted which read thus:-

“(a) Rule

(b) That this Hon'ble Court be pleased to declare that Petitioner is
governed under the old pension scheme i.e. Maharashtra Civil Services
[Pension] Rules, 1982 and General Provident Fund which are applicable to
the Assistant Teachers and who are Non-Teaching employees, appointed
prior to 1st November 2005.

(c) That this Hon'ble Court be pleased to issue writ of Mandamus
and/or any other appropriate Writ, Order and/or direction, thereby
directing Respondent Nos. 1 to 5 to continue to extend the benefits of old
pension scheme to the Petitioner.”

Page 2 of 44
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3. The relevant facts are required to be noted:- On 12 June 1995, the

petitioner was appointed as a part-time librarian for a period of one year. The said

appointment was approved by the Education Officer (Secondary), Zilla Parishad,

Nashik, by a communication dated 08 November 1995. Thereafter on 12 June

1998, the petitioner was made permanent on the post of part-time librarian,

which was also approved by the Education Officer [Secondary], Zilla Parishad,

Nashik.

4. It is the petitioner's case that the State Government had issued a

Government Resolution (G.R.) dated 03 August 2006 by virtue of which the

employees who fulfilled the terms and conditions mentioned in the G.R. were

upgraded to the post of full time librarian. It is stated that the said G.R. was

issued for upgradation of the post of 924 part time librarians in “non Government

aided Secondary Schools” having student strength of more than 1000, where such

employees should have served for more than five years, on the approved post of

part-time librarian. Clause 4 of the said G.R. stipulates that such appointment

would be a fresh appointment with a probationary period of two years, as the

concerned employee would be appointed in the basic pay scale admissible for the

post of librarian. The said clause also provided that the service rendered by such

person as the part time librarian will not be eligible for “advance increment” in the

new full-time post. Hence, the said clause did not provide anything in respect of

the pensionable service. Further Clause 5 of the said G.R. stipulates that 924

posts of full-time librarians were being created by upgradation from the financial

year 2006-07, by virtue of which the post of part-time librarians in regular service,

Page 3 of 44
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on approval by the competent authority, the salary as payable will be admissible as

per the pay scale of the full time post from 01 April 2006. The said G.R. was not

made applicable with retrospective effect and no arrears of salary were to be paid.

5. Clauses 4 and 5 of the said G.R. are required to be noted which read thus:-

“(Official Translation of a photocopy of Point Nos.4 and 5 of G.R. dated 03
August 2006)
4) Since the appointment to the aforesaid post is a fresh appointment
subject to a probationary period of two (2) years, the candidate concerned
shall be appointed at the minimum pay stage of the original pay scale
admissible for the post of Librarian. However, the regular service rendered
by the said candidate as a part-time Librarian shall not be taken into
consideration for the grant of advance increments on the new full-time post.
5) The said 924 full-time posts of Librarians are being created by up-
gradation with effect from the financial year 2006–07. Upon the
appointment of eligible part-time Librarians who are in regular service,
possessing the prescribed qualifications, to the post of full-time Librarian
and following due approval by the Competent Authority thereto, salary as
per the pay scale applicable to the full-time post shall be admissible with
effect from the date 1st April, 2006. Under no circumstances, the provisions
of this Government Resolution shall be applicable with retrospective effect
nor shall any arrears be payable.”
(emphasis supplied)

6. In pursuance of the aforesaid G.R. (dated 03 August 2006), the Education

Officer (Secondary), Zilla Parishad, Nashik, issued an appointment order dated

07 March 2007 in favour of the petitioner, setting out the terms and conditions of

the appointment under which the petitioner was being appointed as a full time

librarian. Such appointment was duly accepted by the petitioner.

7. It is the petitioner's case that prior thereto, on 31 October 2005, the State

Government issued a G.R. adopting the Defined Contribution Pension Scheme

(“DCPS”) by replacing the old pension scheme to be made applicable to the

Government servants, who were recruited on or after 1 November 2005. By such

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G.R., a detailed procedure to be followed for allotment of Pension Account

Number, recovery of contribution from the employees, for equal amount of

Government contribution to be credited in the Government account by Zilla

Parishad, etc. were set out.

8. The petitioner has contended that as per the G.R. dated 03 August 2006

(supra), under which the petitioner was appointed as full time librarian from 01

April 2006, which being the date of appointment as a Full Time librarian, the

date of appointment fell after the cut off date of 01 November 2005, respondent

nos.3 and 4 held the petitioner to be not entitled to be governed by Old Pension

Scheme. It is in these circumstances, the petitioner on 02 September 2023 filed

the present petition.

9. The petitioner's contention is that the said cut-off date of 1 November,

2005 as prescribed under the GR dated 31 October 2005 would not be applicable

to the petitioner inasmuch as the petitioner was in service on the post of part-time

librarian from 12 June 1995 on an aided post. It is his case that G.R. dated 03

August 2006 does not provide that the earlier service as rendered by the

petitioner from 12 June 1995 till 31 March 2006 should be discarded and/or not

to be taken into consideration, so as to hold the petitioner ineligible for the

benefit of the Old Pension Scheme.

10. The petitioner, in such context, has contended that, in view of the

provisions laid down in the G.R. dated 03 August 2006, particularly Clauses 4

and 5 thereof (supra), the communication dated 07 March 2007 could not have

Page 5 of 44
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been addressed by the Education Officer (Secondary), Zilla Parishad, Nashik, to

deny the benefit of old pension scheme to the petitioner, hence the same is

arbitrary and untenable. According to the petitioner, merely because the

petitioner was approved as a full-time librarian with effect from 01 April 2006,

i.e. after the cut-off date of 1 November 2005, respondent nos. 1 to 5 could not

have adopted an approach to deny the benefit of old pension scheme to the

petitioner.

11. The petitioner has contended that under Rule 19 of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981 (for short,

“1981 Rules”), full-time staff in recognized aided schools would be entitled to

pensionary benefits. It is submitted that in several decisions of this Court, it has

been held and affirmed that the service on a part-time aided post in relation to

any appointment made prior to 01 November 2005 qualifies for pension under

the Old Pension Scheme, whereas later recruits fall under DCPS.

12. The petitioner has contended that respondent no.6-Swami Vivekananda

Vidyalaya was receiving 100% grant in aid prior to the appointment of the

petitioner in the said school, as also the petitioner was appointed on a 100% aided

post. The petitioner has contended that after a span of 28 years and 5 months of

service, the petitioner on the date of filing of this petition would be retiring

within three months. He has now retired in November 2023. Hence, the

petitioner cannot be treated to be an employee who would not be eligible for

pension under the Old Pension Scheme.

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13. In supporting the petitioner's case that the petitioner becomes entitled for

counting the part-time service on an aided post, as also the tenure of service on

the full time post, which was also on an aided post, has placed reliance on the

decision of the Full Bench in Dilipkumar Bhagwan Deshmukh vs. State of

Maharashtra1 in which the Full Bench in paragraph 34 has held that the service

put in by an employee of a recognized private school, during the time when such

school was not receiving grant-in-aid, would also count towards the qualifying

service for pension, when such employee retires from a school, which at the time

of his retirement was receiving grant. The petitioner has also placed reliance on

the decision of this Court in Purushottam Harishchandra Shirsekar & Anr. vs.

The State of Maharashtra & Ors. 2 as also on the decision in case of Nilesh s/o.

Namdev Gurav & Ors. vs. The State of Maharashtra & Ors. 3. It is thus, the

petitioner's case that the petitioner has become entitled for grant of pension under

the Old Pension Scheme, as the entire tenure of the service of the petitioner on

the part time post till the petitioner was absorbed as a full time librarian under

G.R. dated 03 August 2006 would be required to be taken into consideration as

per Rules, in counting the qualifying service of the petitioner for the purpose of

pension.

14. Mr. Khairnar, learned counsel for the petitioner, has made elaborate

submissions on what has been noted by us hereinabove, including the reliance

placed on the relevant rules as also the decisions as noted hereinabove.

1 Writ Petition No. 8387 of 2013, decided on 26 August 2019
2 Writ Petition No. 2538 of 2021, decided on 07 September 2021
3 Writ Petition No. 4748 of 2019, decided on 01 October 2021
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15. On the other hand, Ms. Mehra, learned AGP, in opposing this petition, has

placed reliance on the reply of Shri. Pravin Patil, District Education Officer

(Secondary), Zilla Parishad, Nashik, to contend that initially the appointment of

the petitioner was on 12 June 1995, which was on a part time post. It is

contended that it is not in dispute that the petitioner had served as a part time

librarian from the academic year 1995-96 to 2005-06 and it is only on 01 April

2006, the petitioner came to be appointed as a full-time librarian. It is submitted

that considering such date of appointment, the new pension scheme-DCPS would

become applicable to the petitioner, as applicable to those full-time employees

who were appointed with effect from 01 November 2005 onwards. It is

contended that the date of appointment of the petitioner as a full-time librarian

falls after the cut-off date of 01 November 2005, hence the petitioner would not

be entitled to be governed by the old pension scheme. For such reason, the

petitioner's case that the petitioner's service tenure between the period 1995-96

to 2005-06 on the post of a part-time librarian, should be taken into

consideration, and be counted towards the qualifying service for the purpose of

pension as an entitlement to old pension scheme, is not a correct proposition. It is

also contended that prior to cut off date of 1 November 2005, the petitioner was

not a full-time employee and was a part-time employee and in the capacity as a

part-time employee, he was not eligible for the pensionary benefits available to a

full time employee. Also the State Government has not extended the benefits of

old pension scheme to those employees who were appointed after 01 November

2005. Hence the case of the petitioner for pension needs to be considered as per

Page 8 of 44
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the terms and conditions of the G.R. dated 31 October 2005. Also that the

petitioner’s full-time appointment as a librarian was approved in the light of the

provisions of the G.R. dated 03 August 2006 under which the petitioner's full-

time appointment can be recognized only from 01 April 2006. In such context,

emphasis is laid on condition no.5 of the approval letter dated 07 March 2007

issued to the petitioner. It is hence submitted that the petitioner is not entitled to

seek the benefit of his part-time service having been appointed and approved as a

full-time librarian with effect from 01 April 2006. Also the petitioner's

appointment as full-time librarian is considered to be a fresh appointment and for

such reason also, the benefit of his part-time service for pension purpose would

not be available. This also for the reason that the said appointment of the

petitioner as a full-time librarian was exempt from following the recruitment

procedure as laid down in the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act 1977 (for short, “MEPS Act”), as also it

was not a promotion. It is hence submitted that, having taken the benefit of such

full-time employment, the petitioner now cannot seek benefit of the old pension

scheme. Referring to Rule 19 of the 1981 Rules, it is contended that only the full-

time employees in aided schools are entitled to pensionary benefits. Accordingly,

only those employees appointed on full-time basis on fixed honorarium per

month prior to 01 November 2005 and in continuous appointment and

subsequently appointed in regular pay scale are held eligible for the old pension

scheme. In supporting these contentions, Ms. Mehra, has also placed reliance on

the decision of the co-ordinate Bench of this Court in Sunil Subhash Ekhande vs.

Page 9 of 44
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State of Maharashtra & Ors.4 (Civil Writ Petition No. 11525 of 2018) to contend

that the petitioner is not entitled to the benefit of the old pension scheme. She,

thus, submits that the petition deserves to be dismissed.

16. Mr. Khairnar, learned Counsel for the petitioner, countering the

submission of Ms. Mehra, would submit that such contentions are contrary to the

decision of the Full Bench of this Court. It is also his submission that the reliance

on behalf of the State on the decision of the Division Bench of this Court in Sunil

Subhash Ekhande vs. State of Maharashtra & Ors. 5 (supra) would not assist the

State for many reasons. He submits that in the said case the petitioners although

were initially appointed as part-time librarian in various institutions, sought a

relief that from the dates of their initial appointments as part-time librarians, they

should be held to be full-time librarians. They contended that although the claim

was only notional, however, their appointment as full time librarians was required

to be reckoned from the date of their initial appointment as part-time librarians.

It is submitted that the Division Bench did not accept the said case, as it was held

to be contrary to the provisions of the G.R. dated 03 August 2006. Mr. Khairnar

has submitted that also the said decision is not a case where adjudication of purely

a pension issue as per the Rules had fallen for adjudication of the Court. It is also

submitted that the decision of the Full Bench in Dilipkumar Bhagwan Deshmukh

(supra) has not been taken into consideration by the Division Bench which

categorically holds that in regard to the non-teaching post in an aided institution,

tenure of an employee on a part-time appointment would be required to be taken

4 2023 SCC OnLine Bom 1577
5 2023 SCC OnLine Bom 1577
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into consideration for counting the qualifying service for the purpose of pension.

It is also submitted that recently the Division Bench of this Court at Aurangabad

in Sunanda Sahatragun Ingale vs. State of Maharashtra & Ors. 6 has considered the

decision of the Division Bench in Sunil Subhash Ekhande (supra) wherein the

Division Bench has observed that in the said decision, there was a challenge to the

G.R. dated 03 August 2006 on the ground that the same is illegal and contrary to

the report of the Chiplunkar Committee in which the petitioners therein had

sought a relief that they be considered as full time librarians from the day of their

initial appointments as part time librarians. Further, it was also observed that in

Sunil Subhash Ekhande (supra), the subject matter of the decision was not the

applicability of Rule 30, Rule 57 Note 1 and Rule 110 of the MCS (Pension)

Rules requiring that 50% of the Part Time service shall be taken into

consideration for the purpose of determining the entitlement to the pension and

hence, the decision in Sunil Subhash Ekhande (supra) would not be applicable.

17. Reply affidavit is filed on behalf of respondent no.6-Institute through Shri.

Sanjay Pundlik Deore, who is the Headmaster of the school, to state that the

proposal of the petitioner was required to be forwarded for the disbursement of

pension and that the proposal accordingly shall be forwarded as may be directed

by this Court.

Analysis

18. We have heard learned counsel for the parties. We have perused the record

as also different decisions which are relied on behalf of the parties.

6 Writ Petition No. 10036 of 2010, decided on 07 April 2026
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19. The question which falls for determination is whether the petitioner would

become entitled for pension under the old pension scheme by taking into

consideration the petitioner's part time employment as librarian during the period

from 1995-96 to 2005-06.

20. At the outset, we note some of the admitted facts. It is not in dispute that

the petitioner was initially appointed on 12 June 1995 as a part-time librarian on

an aided post. The school was having more than 1000 students. His appointment

on the part-time post was also approved by the Education Officer. It is also not in

dispute that the petitioner continued on the part-time post from the date of his

appointment i.e. academic year 1995-96 being a period of almost 10 years i.e.

upto 2005-06, when by virtue of the G.R. dated 03 August 2006, the petitioner

was absorbed/appointed as a full-time librarian on a fully aided post. Thus, the

petitioner was working on the part-time post for almost 10 years and for a period

of almost 20 years on the post of a full-time librarian, i.e., having discharged

almost 30 years of service in a fully aided school.

21. The case of respondent Nos.3 and 4 is that the petitioner is not eligible for

pension under the old pension scheme, but he would become eligible for the

DCPS as introduced by Government Resolution dated 31 October, 2005.

Considering such conspectus, we may at the very inception observe that the terms

and conditions of service of an employee of a private school are governed by the

MEPS Act and the Rules framed thereunder namely the MCS (Pension) Rules.

Section 4 of the MEPS Act provides for ‘terms and conditions of service of

employees of private schools’ which takes in its ambit post-retirement and other

Page 12 of 44
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benefits which read thus:-

“Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977

“Section 4. Terms and conditions of service of employees of private schools
(1) Subject to the provisions of this section, the State Government may
make rules providing for the minimum qualifications for recruitment
(including its procedure), duties, pay, allowances, post-retirement and other
benefits, and other conditions of service of employees of private schools and
for reservation of adequate number of posts for members of the backward
classes:

Provided that, neither the pay nor the rights in respect of leave of
absence, age of retirement and post-retirement benefits and other monetary
benefits of an employee in the employment of an existing private school on
the appointed date shall be varied to the disadvantage of such employee by
any such rules.

(2) Every employee of a private school shall be governed by such code
of conduct as may be prescribed. On the violation of any provision of such
code of conduct the employee shall be liable to disciplinary action after
conducting an in enquiry such manner as may be prescribed.

(3) If the scales of pay and allowances, post-retirement and other
benefits of the employees of any private school are less favourable than
those provided by the rules made under sub-section (1), the Director shall
direct in writing the Management of such school to bring the same up to the
level provided by the said rules, within such period or extended period as
may be specified by him.

(4) Failure to comply with any direction given by the Director in
pursuance of sub-section (3) may result in the recognition of the school
concerned being withdrawn, provided that the recognition shall not be
withdrawn unless the Management of the school concerned has been given
a reasonable opportunity of being heard.

(5) No employee working in a private school shall work in any coaching
class. If any employee, in contravention of this provision, works in any
coaching class, his services shall be liable to be terminated by the
Management, provided that no such order of termination shall be issued
unless the employee concerned has been given a reasonable opportunity of
being heard.

(6) No employee of a private school shall be suspended, dismissed or
removed or his services shall not be otherwise terminated or he shall not be
reduced in rank by the Management, except in accordance with the
provisions of this Act and the rules made in that behalf.”

(emphasis supplied)

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22. Insofar as the entitlement to pension is concerned, the same is provided for

under Rule 19 of the MEPS Rules 1981, which reads thus:-

“Rule 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 the 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 above mentioned 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.”

23. Thus, on a conjoint reading of Section 4 read with Rule 19, an employee

of an aided school whether secondary or primary, who was working on a full-time

basis and retiring on or after the cut-off date as specified in the said Rule would

become entitled to pension in accordance with the rules as sanctioned by

Government specifically to the employees of private schools. The grant of

pension would stand governed by the MCS (Pension) Rules.

24. Rule 30 of the MCS (Pension) Rules provides for ‘commencement of

qualifying service, Rule 31 provides for ‘conditions subject to which service

qualifies’, Rule 33 provides for ‘service rendered under Government followed

without interruption by confirmation, counts in full as service qualifying for

pension’, Rule 38 provides for ‘counting of service on contract’, Rule 57 provides

for ‘non-pensionable service’ and Rule 110 provides for ‘amount of pension’. For

the purposes of the present proceedings, Rules 30, 31, 33, 38, 57, 100 and 110 are

relevant which read thus:-

“Maharashtra Civil Services (Pension) Rules, 1982

“Rule 30. Commencement of qualifying service. Subject to the provisions

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of these rules, qualifying service of a Government servant shall commence
from the date he takes charge of the post to which he is first appointed either
substantively or in an officiating or temporary capacity:

Provided that at the time of retirement he shall hold substantively a
permanent post in Government service or holds a suspended lien or
certificate of permanency :

[Provided further that, in cases where a temporary Government
servant retires on superannuation or on being declared permanently
incapacitated for further Government service by the appropriate medical
authority after having rendered temporary service of not less than ten years,
or voluntarily after completion of twenty years of qualifying service, shall be
eligible for grant of superannuation, Invalid or, as the case may be, Retiring
Pension; Retirement Gratuity; and Family Pension at the same scales as
admissible to a permanent Government servant.]
Exception. The rules regarding grant of terminal benefits to temporary
Government servants 1[except those mentioned in the second proviso] who
retire without being confirmed in any post in Government service are
embodied in Appendix II.

Note 1. If a Government servant is holding a temporary post when the
permanent post on which he holds a lien is abolished in the circums- tances
described in Rule 81, or if, at or very shortly after the abolition of the
permanent post, he is appointed to a newly created temporary post, his
service in the temporary post is pensionable service.

Note 2.-In the case of employees of former Indian States who have been
absorbed in Government service previous pensionable service rendered by
them under the same State should it immediately followed by Government
service be taken into account for purposes of pension on his final retirement
from Government service, Pensionable service rendered under different
States should be taken into account for purposes of pension provided that
the employees were transferred or sent on deputation from one State to
another under a written agreement between the Governments of the States
concerned.

The term "immediately" appearing in Note 2 above includes a break in
service if it does not exceed six months, between the date on which the
service was terminated and the date of his re-employment in service.

The question whether the previous service in Indian States is pensionable or
not should be determined in accordance with these rules as if those rules
were applicable to that service.

Rule 31. Conditions subject to which service qualifies. (1) The service of a
Government servant shall not qualify unless his duties and pay are regulated
by the Government or under conditions determined by the Government.

(2) For the purposes of sub-rule (1), the expression "service" means service
under Government and paid by Government from the Consolidated Fund
of State or a Local Fund administered by Government but does not include
service in a non-pensionable establishment unless such service is treated as
qualifying service by Government.

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(3) In the case of a Government servant belonging to the Central
Government, who is permanently transferred to a service or post to which
these rules apply, the continuous service rendered under the Central
Government in an officiating or temporary capacity, if any, followed without
interruption by substantive appointment, or the continuous service rendered
under that Government in an officiating or temporary capacity, as the case
may be, shall qualify:

Provided that nothing contained in this sub-rule shall apply to any such
Government servant who is appointed otherwise than by deputation to a
service or post to which these rules apply.

Rule 33. Service rendered under Government followed without interruption
by confirmation counts in full as service qualifying for pension.- A
Government servant who holds a permanent post substantively or holds a
lien or a suspended lien or a certificate of permanency on the date of his
retirement, the entire temporary or officiating service rendered under
Government followed without interruption by confirmation in the same or
another post, shall count in full as service qualifying for pension except the
service rendered against one of the posts mentioned in rule 57.

Note. The benefit of above rule should also be extended to Government
servants who have rendered service in temporary post in the former Civil
Supplies Department including those re-employed after the break, provided
they agree to refund the terminal gratuity, if any, received by them on their
retrenchment from the former Civil Supplies Department (In order to avoid
hardship, the gratuity may be refunded in monthly instalments not
exceeding rupees twenty). Competent authorities are authorised to condone
where necessary, breaks not exceeding 3 years. In cases where break exists,
the terminal gratuity referred to above should be refunded within three
months from the date of the order of the competent authority condoning the
break and the right to count the service under the above rule does not accrue
until the gratuity is wholly refunded. The condonation should be postponed
until the Ex-Civil Supplies Department personnel actually pass the
examination, if any, required for confirmation and are actually confirmed.
The benefit of condonation of break should be allowed only in those cases in
which breaks have occurred on account of discharge from service for want of
post and not on any other ground, e.g., voluntary resignation etc. and in
computing the period of break, the terminal leave availed of by the persons
concerned, should also be taken into account. The leave salary is not,
however, refundable.
…...
Rule 38. Counting of service on contract. (1) A person who is initially
engaged by Government on a contract for a specified period and is
subsequently appointed to the same or another post in a substantive capacity
in a pensionable establishment without interruption of duty, may opt
either :-
(a) to retain the Government contribution in the Contributory Provident
Fund with interest thereon including any other compensation for that
service; or

(b) to agree to refund to Government the monetary benefits referred to in
Clause (a) or to forgo the same if they have not been paid to him and count

Page 16 of 44
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in lieu thereof the service for which the aforesaid monetary benefits may
have been payable.

(2) The option under sub-rule (1) shall be communicated to the appointing
authority under intimation to the Audit Officer within a period of three
months from the date of issue of the order of permanent transfer to
pensionable service, or if the Government servant is on leave on that day,
within three months of his return from leave, whichever is later.

(3) If no communication is received by the appointing authority within the
period referred to in sub-rule (2), the Government servant shall be deemed
to have opted for the retention of the monetary benefits payable or paid to
him on account of service rendered on contract.
…….

Rule 57. Non-pensionable service. As exceptions to Rule 30, the following
are not in pensionable service :-

(a) Government servants who are paid for work done for Government but
whose whole-time is not retained for the public service,

(b) Government servants who are not in receipt of pay but are remunerated
by honoraria,

(d) Government servants holding posts which have been declared by the
authority which created them to be non-pensionable,

(e) Holders of all tenure posts in the Medical Department, whether private
practice is allowed to them or not, when they do not have an active or
suspended lien on any other permanent posts under Government.

Note 1.-In case of employees paid from contingencies who are subsequently
brought on a regular pensionable establishment by conversion of their posts,
one-half of their previous continuous service shall be allowed to count for
pension.

Note 2.-In the case of persons who were holding the posts of attendants
prior to 1st April, 1966, one-half of their previous continuous service as
attendants, shall be allowed to count for pension.
Rule 100 - Compulsory Retirement Pension. (1) A Government servant
compulsorily retired from service as a penalty may be granted, by the
authority competent to impose such penalty, pension or gratuity or both at
the rate not less than two-third and not more than full compensation
pension or gratuity or both admissible to him on the date of his compulsory
retirement.

(2) Whenever in the case of a Government servant the Government passes
an order (whether original, appellate or in exercise of the power of review)
awarding a pension less than the full compensation pension admissible
under these rules, the Maharashtra Public Service Commission shall be
consulted before such order is passed.

Page 17 of 44
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Explanation. In this sub-rule, the expression “Pension" includes gratuity.

(3) A pension granted under sub-rule (1) shall not be less than the minimum
pension as fixed by Government.
110. Amount of pension.-[(1) In the case of a Government servant retiring
on Superannuation, Retiring, Invalid or Compensation Pension before
completing qualifying service of ten years, the amount of service gratuity
shall be calculated at the rate of half month's pay for every completed six
monthly period of qualifying service.]

2[(2)(a) In case of Government servant retiring on Superannuation,
Retiring, Invalid or Compensation Pension in accordance with the
provisions of these rules after completing qualifying service of not less than
twenty years, the amount of pension shall be calculated at fifty per cent of
the 'Pensionable Pay' subject to maximum of Rs.67,000 plus admissible
grade pay.

(b) In the case of a Government servant retiring on Superannuation,
Retiring, Invalid or Compensation Pension in accordance with the
provisions of these rules before completing qualifying service of twenty years
but after completing qualifying service of ten years, the amount of pension
shall be calculated at fifty per cent of the ‘Pensionable Pay' subject to
maximum of Rs. 67,000 plus admissible grade pay and in no case the
amount of pension shall not be less than Rupees One Thousand Nine
Hundred and Thirteen per month.]

(3) In calculating the length of qualifying service, fraction of a year equal to
3[three months] and above shall be treated as a completed one- half year and
reckoned as qualifying service.

(4) The amount of pension finally determined under clause (a) or clause (b)
of sub-rule (2), shall be expressed in whole rupee and where the pension
contains a fraction of a rupee it shall be rounded off to the next higher
rupee.”
(emphasis supplied)

25. A cumulative reading of the aforesaid rules would indicate that such rules

have taken into consideration every possible situation in regard to the counting of

qualifying services, which even includes an employee holding a temporary

Government servant post rendered without interruption by confirmation,

counting of service on contract etc. Also in regard to the employees who are

subsequently brought on a regular pensionable establishment by conversion of

their posts, one-half of their previous continuous service is allowed to be counted

for pension as provided under Note 1 to Rule 57 of the MCS (Pension) Rules.

Page 18 of 44
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26. In our opinion, applying the aforesaid rules, necessarily the part-time

service of the petitioner rendered from the year 1995 till 31 March 2006 (i.e. till

his upgradation to the full-time post of librarian) was required to be reckoned for

the purpose of considering his qualifying service for pension. Thus, notionally

such service of 11 years (i.e. from 12 June 1995 till 31 March 2006) will be

required to be counted/considered on applicability of Rule 57 of the MCS

(Pension) Rules, read with Note 1 by taking into consideration half of such

service i.e. period of approximately 5 years 4 months would be required to be

notionally accepted and counted towards the petitioner's pensionable service and

not from 01 April 2006 as contended by respondent nos. 3 and 4. Accordingly,

the period of about more than 5 years 4 months anterior to 31 March 2006 was

required to be considered to calculate the qualifying service of the petitioner for

grant of pension. This would bring about a situation that the petitioner had

become eligible/qualified for pension from or about November 2000, which was

certainly prior to the cut off date 1 November, 2005.

27. If this be so, to say that the petitioner's qualifying service would be

required to be taken into consideration from 01 April 2006 i.e. the date he was

absorbed on the post of full-time librarian, would in fact become contrary to the

provisions of the MCS (Pension) Rules as noted by us hereinabove and

particularly of Rule 57, Note 1. Thus, in our clear opinion, the petitioner had

become entitled for pension under the old pension scheme from the period in or

about November 2000.

Page 19 of 44
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28. Our aforesaid conclusion would also stand supported by several decisions

rendered by the Court, which we discuss hereinbelow.

29. More than two decades back, the Division Bench of this Court in Shivappa

s/o. Bhujangappa Bembale vs. State of Maharashtra 7 was considering the case of

the petitioner therein, who was initially appointed on 24 July 1970 as part-time

Peon who continued as such till 10 July 1990. By an order of the Chief Executive

Officer dated 06 July 1990, he was taken on the regular cadre. As the said

petitioner had already worked as a part-time Peon and thereafter regularized in

the regular pay scale of Class-IV servant, the question which arose for

consideration before the Court was whether it was lawful for the Zilla Parishad to

reject the claim of the petitioner for grant of pension. The Division Bench

considered the applicability of Rules 30, 57 and 110 of the MCS (Pension) Rules

and held that the petitioner was entitled for grant of pension as his part-time

services would be required to be taken into consideration by applicability of Rule

57 read with Note 1 thereunder. The relevant observations of the Court are

required to be noted which read thus:-

“9. The only crux in the present matter as the Zilla Parishad authorities
has rejected the claim of present petitioner relying on Note 2, however,
considering the factual aspect from the present case as it is seen that the
initial appointment order of the present petitioner as part time Peon is 24-7-
1970; he continued as part time Peon till 10-7-1990 and thereafter by order
dated 6-7-1990 the petitioner was taken on regular cadre in the pay scale of
Rs. 750-12-870-DR-14-940 by the Chief Executive Officer, Zilla Parishad.
The order passed by the Chief Executive Officer, Zilla Parishad is also on
record and the very wording of the said order safely makes it clear that the
persons who are working as part time and salary being paid from
contingency, those persons are being taken on regular cadre in class-4 and
being fixed in the pay scale of Rs. 750-12-870-DR-14-940. After going
through the order dated 7-7 -1990 it can be said that it is the fresh order
giving regular employment to the petitioner, however, as he was already

7 2005(3) Mh LJ 709
Page 20 of 44
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worked as part time Peon and being paid from contingency the services
being regularised in the pay scale in class-4 servant. We have gone through
the Note 1 and Note 2 of Rule 57 and we find that the Zilla Parishad has
wrongly applied Note 2 in the present matter while rejecting the claim of the
petitioner to grant pension, as in fact in the present case, Note 1 of Rule 57
is applicable. Therefore, we find that the claim as set up by the present
petitioner that he is entitled for pensionary benefits, is definitely justified.”

(emphasis supplied)

30. In Mukund s/o Bapurao Dhadkar vs. State of Maharashtra & Ors. 8, the

Court was concerned with the case of the petitioner therein, which was quite

similar to the facts in hand. Mukund, the petitioner therein, had rendered

services as part time librarian with respondent no.5-school from 16 August 1977

to 31 July 1991 and thereafter from 01 August 1991 to 31 July 2008 as full time

librarian till the date of his superannuation i.e. 31 July 2008. The Court

considering the applicability of Rule 57 Note 1 held that the services rendered by

the petitioner as a part-time librarian, half of the period of said services will have

to be taken into consideration in addition to the period for which the petitioner

has worked as a full-time librarian, and accordingly, the petitioner was held

entitled for the pensionary benefits. In reaching to such conclusion, the Court

referred to the earlier decision in case of Shalini Asaram Akkarbote vs. State of

Maharashtra9. The following observations as made by the Court are required to

be noted which read thus:-

“8. ….. The fact that the petitioner was appointed as part time
Librarian, and thereafter, as full time Librarian for the afore-mentioned
period is not disputed by the respondents. Therefore, it is abundantly clear
that, the petitioner was appointed as part time Librarian and thereafter as full
time Librarian. It further appears that, while granting pensionary benefits to
the petitioner, the respondents have not considered the service rendered by
the petitioner as part time Librarian from the year 1977 till 1991. The

8 2016 SCC OnLine Bom 98
9 Writ Petition No. 8289 of 2013, decided on 29 April 2014
Page 21 of 44
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Bombay High Court Bench at Aurangabad in the case of Shalini Asaram
Akkarbote [cited supra] had occasion to consider the similar controversy. In
para 9 to 11 of the said Judgment, High Court held thus:
“9. This Court in the case of Shivappa Bhujangappa Bembale, supra,
while interpreting Rule 57 and also other relevant Rules of Maharashtra
Civil Services [Pension] Rules, 1982, in paragraph nos.6 to 8 held thus:

6. The only crux in the present matter as the Zilla Parishad
authorities has rejected the claim of present petitioner relying on
Note 2, however, considering the factual aspect from the present
case as it is seen that the initial appointment order of the present
petitioner as part time peon is 24.7.1970; he continued as part
time peon till 10.7.1990 and thereafter by order dated 6-7-1990
the petitioner was taken on regular cadre in the pay scale of
Rs.750-12-870-DR-14-940 by the Chief Executive Officer, Zilla
Parishad. The order passed by the Chief Executive Officer, Zilla
Parishad is also on record and the very wording of the said order
safely makes it clear that the persons who are working as part time
and salary being paid from contingency, those persons are being
taken on regular cadre in Class-4 and being fixed in the pay scale
of Rs.750-12-870-DR-14-940. After going through the order
dated 7-7-1990 it can be said that it is the fresh order giving
regular employment to the petitioner, however, as he was already
worked as part time peon and being paid from contingency the
services being regularised in the pay scale in Class-4 servant. We
have gone through the Note 1 and Note 2 of Rule 57 and we find
that the Zilla Parishad has wrongly applied Note 2 in the present
matter while rejecting the claim of the petitioner to grant pension,
as in fact in the present case, Note 1 of Rule 57 is applicable.
Therefore, we find that the claim as set up by the present
petitioner that he is entitled for pensionary benefits, is definitely
justified.”

“7. Mr. Dhage, Advocate, has made reference in respect of order
passed in Writ Petition No. 3472/1996 and in a same situation
this Court in the said writ petition, has given direction to the
respondents to consider the case of petitioner for pensionary
benefits within a period of three months and also directed for
payment of arrears. We have gone through the said order wherein
a reliance is placed on Note 1 of Rule 57 of the Maharashtra Civil
Services (Pension) Rules, 1982. Considering the factual aspects in
the present case we also find that in the present case Note 1 of
Rule 57 is applicable.”

“8. We, thus, accordingly direct the respondent No.2 Zilla
Parishad to consider the case of present petitioner for giving
terminal benefits in view of the above rule and to decide the same
within three months from today and the necessary arrears which
the petitioner is entitled be accordingly paid.”

10. Upon careful perusal of paragraph nos.6 to 8 from the said
judgment, supra, the High Court in no uncertain words held that the
part-time service on regular cadre as a peon is required to be taken into

Page 22 of 44
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consideration for the purposes of granting pensionary benefits by taking
half of the said period into account coupled with the period for which
the employee has worked on full time post. In the facts of that case, the
petitioner therein was appointed as a part time peon in the School from
24.07.1970 till 10.07.1990, and thereafter, on regular cadre as a peon till
his retirement on 30.04.1993. In the facts of that case, the High Court
considered the total length of service as a part-time peon, which was 20
years, and for the purpose of counting the said period for pensionary
benefits has counted half of the period i.e. 10 years, and held that the
petitioner therein has spent total period of 13 years in service for the
entitlement to pensionary benefits.

11. In case of Jayshree Narayan Mhaske, supra, High Court in paragraph
nos.7 and 8, held thus:-

“7. Petitioners husband was appointed as a part-time servant vide
order dated 1st April, 1971 on a fixed pay of Rs.30/- per month.
This order does not speak that the amount of Rs.30/- which was
being paid to him, was a honorarium, but same is described as his
fixed pay. The order further speaks that his services are purely
temporary, and liable for termination without notice. So, he was a
part-time temporary Government servant. There is no dispute that
subsequently, he was brought on regular establishment.
Respondents did not produce on record the order by which he was
brought on regular establishment. However, they have produced
relevant entry from the service-book, which states that he has been
promoted from part-time employee to peon, by order dated 23 rd
June, 1983 in the regular pay scale stated above. No document is
produced on record to show that payment was made to him out of
contingent funds. The entry int he service-book makes mention
that he was promoted. Note No.1 deals the cases of employees who
were brought on regular pensionable establishment by conversion
of their posts. Here in the present case, the petitioners husband is
shown to have been promoted and posted as a peon. So, from this
order, inference can be drawn that he was in regular employment
on substantive post. There was no break in his services since his
appointment on 1st April, 1971. Even if it is accepted that as a
part-time employee, he was paid out of contingent funds, the fact
remains that he was brought on regular establishment in 1983 by
way of promotion. So, his case is covered by Note No.1 of Rule 57
of the Pension Rules and the services rendered by him before he
was brought on regular establishment needs to be counted while
computing his qualifying service.

There appears no specific provision under the Pension
Rules which deals the cases of part-time employees. Present
petitioners husband was appointed in 1971 as a part-time Class-IV
worker and he was promoted and brought on regular
establishment by order dated 28-6-1993. In view of this order of
promotion, it can be inferred that he was holding a substantive
post. If his case is viewed by this angle in view of Rule 20 as he was
brought to a post for which these Pension Rules apply, his service
shall be subject to Pension Rules. His past service rendered as part-
time employee on substantive post needs to be taken into

Page 23 of 44
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consideration in view of Note [1] of Rule 57 of the Pension Rules.
The respondents admitted that he was on regular establishment
from 28-6-1983 to 20-11-1990 and had completed total service of
seven years, four months and twenty two days. Subsequently, he
was retired compulsorily in 1993 and his absence was also
regularised and two weeks period was ordered to be treated as leave
and remaining period should be treated as an unauthorised
absence. He has rendered about twelve years of service as part-time
employee on substantive post. One half of such service needs to be
taken into consideration in view of Note [1] of Rule 57 of Pension
Rules for the purpose of determination of qualifying service. By
addition of such service with regular service, the total service will
be more than thirteen years. So, deceased employee was entitled to
receive pension as his qualifying service would have been more
than ten years.”
“8. In view of the above facts and relevant Rules, it is clear that
deceased was entitled to retiring pension under Rule 100 of the Pension
Rules, which covers the cases of grant of retirement pension to Government
servants who have been compulsorily retired. As the deceased husband of
the petitioner was entitled to the pension, the petitioner is entitled to receive
family pension. So, the decision of the authorities that the deceased was not
entitled to the retiring pension and the petitioner also is not entitled to
family pension, is not justified and needs to be set aside by giving directions
to the respondents to grant family pension to the petitioner considering the
service rendered by her deceased husband from 1 st April, 1971 onwards till
he was brought on regular establishment by order dated 23rd June, 1983.”
Upon conjoint reading of paragraph nos.7 and 8 above, in the facts of that
case, the petitioner therein did rendered services as a part-time employee on
fixed pay of Rs.30/- per month from 01.04.1971 and he was taken on regular
establishment as a peon on 23.06.1983, and he was asked to compulsorily
retire on 19.05.1993. While considering the facts of that case, the High
Court held that the petitioner therein was appointed as a part-time servant
vide order dated 01.04.1971 on fix pay of Rs.30/- per month and he was
continued on the said post till he was taken in regular pay scale by order
dated 23.06.1983. The Court in paragraph no.7, supra, observed that even if
it is accepted that as a part-time employee, he was paid out of contingent
funds, the fact remains that he was brought on regular establishment in 1983
by way of promotion. So, his case is covered by Note No.1 of Rule 57 of the
Pension Rules and the services rendered by him before he was brought on
regular establishment needs to be counted while computing his qualifying
service.”
9] In the facts of the present case also, indisputably the petitioner
herein has rendered services as part-time Librarian with respondent no.5-
School from 16.08.1977 to 31.07.1991 as part time Librarian and from
01.08.1991 to 31.07.2008 as full-time Librarian till the date of his
superannuation i.e. 31.07.2008. Therefore, the services rendered by the
petitioner as a part-time Librarian, half of the period of said services will
have to be taken into consideration in addition to the period for which the
petitioner has worked as full-time Librarian, and accordingly, the petitioner
will have to be held entitled for the pensionary benefits.”
(emphasis supplied)

Page 24 of 44
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31. A Full Bench of this Court in its decision on a batch of petitions in

Deshmukh Dilipkumar Bhagwan & Ors. (supra) was dealing with a case wherein

the petitioners were teachers and non-teaching staff regularly appointed in various

recognized aided schools in the State of Maharashtra. The respective schools were

receiving 100% grant-in-aid from the State Government. All the employees were

appointed prior to 01 November 2005. However, at the time of their

appointments, the schools were not receiving 100% grant-in-aid and admitted

position was that all the schools started receiving 100% grant-in-aid only after 01

November 2005. The significance of the cut off date of 01 November 2005 was

to the effect that the Government of Maharashtra had introduced the DCPS with

effect from 01 November 2005 for the State Government employees as well as for

the staff of private aided schools and colleges replacing the existing pension

scheme. The claim of the petitioners was that as they were recruited prior to 01

November 2005, hence they would be governed by the old pension scheme

irrespective of the fact that the schools in which they were appointed, started

receiving 100% government grant after 01 November 2005. On the other hand,

Government contended that an employee of a private school recruited prior to 01

November 2005 was governed by the DCPS, if the school in which he was

appointed, started receiving 100% grant-in-aid only after 01 November 2005.

The Full Bench examined the provisions of the MEPS Act and the rules and more

particularly Rule 19 of the 1981 Rules and the MCS (Pension) Rules framed

under Article 309 of the Constitution of India. In such context, the Court framed

questions for consideration of the Larger Bench inter alia whether only those

Page 25 of 44
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schools and colleges of education which are receiving 100% aid can be termed as

aided institutions or whether schools and colleges of education receiving less than

100% aid can also be termed as aided institution? Also a question was framed

whether the employees who were appointed prior to 1 November 2005 in the

aided recognized primary, secondary and higher secondary schools as well as

colleges of education, which were receiving less than 100% grant-in-aid as on 01

November 2005 were entitled to the benefits of the Old Pension Scheme under

the MCS (Pension) Rules and the Commutation of Pension Rules or whether they

will be governed by the New Pension Scheme/DCPS under the GR of 2005? A

specific question was also framed whether the employees who were appointed

prior to 01 November 2005 in aided recognized primary, secondary and higher

secondary schools as well as the colleges of education which were receiving less

than 100% grant-in-aid as on 01 November 2005, but which became 100% aided

before the date on which the GR of 2010 came into force, were entitled to the

benefit of Old Pension Scheme under the MCS (Pension) Rules and the

Commutation of Pension Rules or whether they would be governed by the New

Pension Scheme/DCPS under the GR of 2005?

32. The Full Bench (supra) taking a review of the decisions of this Court as

also the Supreme Court answered the said questions when it inter alia held that

only those employees of private recognized aided schools who were recruited

prior to 01 November 2005 in schools receiving 100% grant-in-aid would

continue to be governed by the old pension scheme was the correct and valid

interpretation. Referring to Rule 19 of the 1981 Rules, it was held that it

Page 26 of 44
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recognized the rights of the employees of the aided schools and colleges to receive

pension at the rates and in accordance with the rules as sanctioned by the

Government to the employees of such schools. It was observed that by G.R. dated

31 October 2005, the State Government replaced the existing pension scheme by

the DCPS which would be applicable to certain class of employees. It was

observed that Rule 19 of the 1981 Rules does not prescribe any specific pension

scheme, it only refers to payment of pension at the rates and in accordance with

the rules as sanctioned by the State Government. It was further observed that the

DCPS which replaced the existing pension scheme would also be in consonance

with Rule 19 of the 1981 Rules and as per the said rule, it was within the powers

of the State Government to prescribe the rates and the rules in accordance with

which the employees would become eligible to receive pension. It was further

held that the relevant rules under the grant-in-aid code refer to an aided school

and does not make a distinction between a partially or fully aided school. It was

observed that nevertheless, the liability of the Government to pay pensionary

benefits to a retired employee of a private school can arise only if the Government

has undertaken to pay 100% grant to the school. The Full Bench held that the

service put in by an employee of a recognized private school during the time

when such school was not receiving grant, would also count towards the

qualifying service for pension when such employee retires from a school which

receives grant, which was also in the context of G.R. dated 08 April 2018. It was

held that this, however, would not mean that the employee appointed in a school

can claim to be governed by the pension scheme till the school starts receiving

Page 27 of 44
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100% grant. The following observations as made by the Court are required to be

noted which read thus:-

“32. Rule 19 of the Rules of 1981 only recognizes the right of employees
of the aided schools and colleges to receive pension at the rates and in
accordance with the rules as sanctioned by the Government to the
employees of such schools. Under GR dated 31.10.2005, the Government
replaced the existing pension scheme by the DCP scheme which would be
applicable to certain class of employees. Rule 19 of the Rules of 1981 does
not prescribe any specific pension scheme, it only refers to payment of
pension at the rates and in accordance with the rules as sanctioned by the
Government. The DCP scheme which replaced the existing pension scheme
would also be in consonance with Rule 19 of the Rules of 1981. As per this
rule, it was within the powers of the Government to prescribe the rates and
the rules in accordance with which the employees would be eligible to
receive pension. The contention of the learned counsel for the petitioners,
therefore, that the DCP scheme could not have been implemented without
amending Rule 19 of the Rules of 1981 cannot be accepted.

33. It is true that the relevant rules under grant-in-aid code refer to an
aided school and does not make a distinction between a partially or fully
aided school. Nevertheless, the liability of the Government to pay
pensionary benefits to a retired employee of a private school can arise only if
the Government has undertaken to pay 100% grant to the school. As noted,
very concept of expecting the Government to pay such pension even in a
case where the Government has so far not undertaken the liability to pay
100% grant is abhorrent to the basic principle of service law.

34. It is true that the service put in by an employee of a recognized
private school during the time when such school was not receiving grant,
would also count towards the qualifying service for pension when such
employee retires from a school which receives grant. This was also the
context of G.R. dated 8.4.2018 noted earlier. This, however, would not
mean that the employee appointed in a school can claim to be governed by
the pension scheme till the school starts receiving 100% grant.

36. The petitioners had also argued that right of retired Government
servants to receive pension is a vested right. It is neither bounty nor a
largesse to be given by the employer. To this proposition, there can be no
quarrel. However, right to receive post-retiral benefits flow from the scheme
provided by the employer. In the present case, as discussed earlier, the
existing pension scheme is replaced by new pension scheme. No vested right
of the employees is being taken away.

37. Under these circumstances, we answer the Reference as under:-

Question No. 1:

In the context of the right of an employee of private school or college of
education to receive pensionary benefits and the corresponding liability of
the Government to pay the same, only those schools and colleges of
education which are receiving 100% grant-in-aid can be termed as aided
institutions.

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Question No. 2 :

The employees who were appointed prior to 1.11.2005 in aided recognized
primary, secondary schools as well as colleges of education which were
receiving less than 100% grant-in-aid as on 1.11.2005 would be governed by
the DCP scheme.

Question No. 3:

Similar will be the situation of the employees who were appointed prior to
1.11.2005 in aided primary, secondary and higher secondary schools as well
as the colleges of education which were receiving less than 100% grant-in-
aid as on 1.11.2005 but which became 100% aided before 29.11.2010 would
also be governed by the DCP scheme.”

33. We find that the decision of the Full Bench was thereafter followed in

similar circumstances by the co-ordinate Benches of this Court in Purushottam

Harishchandra Shirsekar & Anr. vs. The State of Maharashtra & Ors. (supra). In

case of Nilesh s/o. Namdev Gurav & Ors. vs. The State of Maharashtra & Ors.

(supra) (batch of petitions), the Division Bench was considering the case of the

petitioners who were appointed prior to 01 November 2005 on part-time posts.

Almost all the petitioners were teaching employees (Assistant Teachers) and one

of the petitioners was a non-teaching employee. They were employed in fully

aided schools and thus, they had claimed that they are entitled to the old pension

scheme and the respondents were directed to extend the benefits of the old

pension scheme to the petitioners, which was denied to them. The Division

Bench considering the decision of the Full Bench (supra) and the other decisions

held that the issue arising in the petitions was no longer res integra. The

petitioners were accordingly held entitled for pension. The following

observations as made by the Division Bench of this Court are required to be noted

which read thus:-

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“12. Having considered these submissions, it is to be noted that the
Petitioners were appointed as employees on part-time posts in education
institutions which were fully aided educational institutions i.e. receiving
100% grant-in-aid prior to 1st November 2005.

13. We are of the view that the issue arising in these Petitions is no
longer res integra. There has been a consistent stand taken by this Court in
the decisions referred to and relied upon by the learned Counsel for the
Petitioners that the service of the employees of educational institutions is to
be counted from the first date of appointment irrespective of whether it is on
part-time or full time basis. This stand has been made clear by this Division
Bench in Renuka Chandrabhan Umredkar (supra), wherein the Government
Resolution dated 31st October 2005 as well as the Full Bench decision of
this Court in case of Deshmukh Dilipkumar Bhagwan (supra) and prior
decision of Division Bench of this Court in case of Shri Purushottam
Harishchandra Shirsekar (supra) amongst other decisions were considered.
This Court had upon considering the Government Resolution dated 31 st
October 2005 and in particular Clause 4 thereof observed that as per
Government Resolution, employees recruited on or after 1st November
2005 in the services of the recognized aided educational institutions, the
new pension scheme i.e. DCP Scheme has been made applicable

14. The Full Bench decision of this Court in the case of Deshmukh
Dilipkumar Bhagwan (supra) had held that employees appointed prior to 1st
November 2005 in aided educational institution and receiving 100% grant-
in-aid prior to 1st November 2005 shall be governed by the old pension
scheme. It was held that since employees in that matter had been appointed
prior to 1st November 2005 and occupied a part time fully aided post i.e.
receiving 100% grant-in-aid from the State Government, the old pension
scheme would be made applicable to such employees. This decision has been
followed in the subsequent decision in Shri Purushottam Harishchandra
Shirsekar (supra) wherein this Division Bench held that the Petitioner had
been appointed as part time Shikshan Sevak on 11th September 2001 on the
post which was a sanctioned aided post in the school. The Petitioner’s
services were granted approval by the Education Officer and the services
continued. The employee was thereafter, appointed as part time teacher and
upgraded to full time teacher in the said school on 15 th June 2015 which post
was a sanctioned aided post. It was accordingly, held that the Petitioner
would be entitled to the benefits of the old pension scheme and the relevant
date of the service of the employee is to be counted from the first date of
appointment irrespective of whether it is on a part-time or full time posts.

15. The Division Bench in the recent decision in Renuka Chandrabhan
Umredkar (supra) after referring to the above referred decisions held that the
Respondent-State could not overlook the fact that the Petitioner therein was
appointed as part-time Librarian on aided post in 100% aided school and the
said appointment was duly approved by the Education Officer. The
Respondents-State thus, could not refuse to give benefit of 50% of services
rendered by the Petitioner therein as part-time Librarian prior to 1st
November 2005 for computation of pensionable services along with the
services rendered by the Petitioners on full time basis after 31st October
2005. The entitlement of the Petitioner for pension under the old pension
scheme would be on the basis of initial date of appointment as part-time
Librarian on aided post and not on the basis of appointment as full time

Page 30 of 44
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Librarian under DCP Scheme. It has accordingly, been held that the
Petitioner would be governed by the old pension scheme and not DCP
Scheme introduced on 31st October 2005.
16. We are of the view that the present case of all the Petitioners are
similar as to the Petitioners in the above referred decisions as they were
appointed prior to 1 st November 2005 in fully aided education institutions
albeit on part-time basis. It is clear from the Affidavit in Reply of
Respondent No. 5 fled in Writ Petition No. 4748 of 2019 and Writ Petition
No. 4749 of 2019 that the only contention of the Respondents is that the
Petitioners were not appointed as full-time employees prior to 1st November
2005 and were appointed as part-time employees and thus, not extended the
old pension scheme. However, it has not been disputed that the Petitioners
were employees in educational institutions which were fully aided
institutions prior to 1st November 2005.”

(emphasis supplied)

34. In Renuka Chandrabhan Umredkar vs. State of Maharashtra & Ors. 10, the

Division Bench of this Court was considering a similar challenge as raised in the

present proceedings, namely, the petitioner therein being appointed on 15 April,

1996 as a librarian (Part Time) in the employment of respondent no. 8-School,

which was approved by the Education authorities. The school was 100% aided

school. The part time post was upgraded to the post of full time librarian as per

the policy of the Government and an appointment order dated 11 December,

2007 came to be issued to the petitioner being appointed as full time librarian

w.e.f. 1 April, 2006. The school thereafter had forwarded a proposal to the

Education Authorities for approval of the petitioner to the post of full time

librarian w.e.f. 1 April, 2006. The petitioner retired on 31 July, 2019. The

petitioner on her retirement was denied pension under the old pension scheme, as

the petitioner was being categorized to be falling under the Government

Resolution dated 31 October, 2005 under which it was provided that the

employees employed after 1 November, 2005 would be covered by the Defined

10 2021 SCC OnLine Bom 9587
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Contributory Pension Scheme (DCPS) and would not be entitled to the benefits

of the MCS (Pension) Rules. It is in such circumstances, the petitioner contended

that although the petitioner was appointed in the year 1996 as a part time

librarian, she was entitled to be governed by the MCS (Pension) Rules and

accordingly, the petitioner had approached this Court. The Division Bench of

this Court after taking into account several decisions on the issue and more

particularly the decision of Full Bench of this Court in Deshmukh Dilipkumar

Bhagwan vs. State of Maharashtra (supra), held that the petitioner therein would

become entitled for the pension under the old pension scheme. The relevant

observations as made by the Court in that regard are required to be noted, which

read thus:

“15. Division Bench of this Court (Coram : Shri R.D. Dhanuka and R.I.
Chagla, JJ.) in the case of Smt.Kalpana Jagatrao Dahiwale (supra) after
adverting to the judgment of this Court in the case of Jyoti Prakash
Chougule (supra) and in the case of Abaso Ganpati Aoute Vs. State of
Maharashtra in Writ Petition No.8832 of 2015 delivered on 22nd July
2016 has held that the petitioner in that matter having completed more
than 10 years 3 months as part time Librarian and completed more than 9
years and 11 months as full time Librarian, 50% of the services rendered as
part time will have to be considered for the purpose of computation of
pensionable services. In that matter also, the petitioner was appointed as
part time Librarian on 26 th December 1995 and was appointed as full time
Librarian on 1 st April 2006 by up-gradation of part time post as full time
post. The petitioner therein was appointed on full time post after the
Government Resolution dated 31st October 2005 came to be issued. The
judgments of this Court in the cases of Shri Purushottam Harishchandra
Shirsekar (supra) and Smt.Kalpana Jagatrao Dahiwale (supra) apply to the
facts of this case.

16. It is not disputed by the respondents that the said school was 100%
aided school when the petitioner was appointed on aided post initially as a
part time Librarian prior to 31st October 2005 and as a full time Librarian
after 31st October 2005. In our view, the petitioner cannot be denied the
pensionary benefits under the old pension scheme on the ground that the
petitioner was appointed as full time Librarian only after 31st October
2005.

17. The respondents cannot overlook the admitted fact that the
petitioner was already appointed as part time Librarian on the aided post in

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the 100% aided school and the said appointment was duly approved by the
Education Officer. It was not the case of the respondents that the petitioner
was appointed for the first time in the said 100% aided school on the aided
post only after 31st October 2005 and that also under different
managements or different schools or institutions. The respondents cannot
refuse to give benefits of 50% of the services rendered by the petitioner as
part time Librarian appointed prior to 31 st October 2005 for computation
of pensionable services along with the services rendered by the petitioner on
full time basis after 31 st October 2005. The entitlement of the petitioner
for pension under Old Pension Scheme would be on the basis of her initial
date of appointment as part time Librarian on aided post and not on the
basis of her appointment as full time Librarian under DCP Scheme.”

(emphasis supplied)

35. .We may also refer to the decision of the Division Bench in Dilip Rana

Randive vs. State of Maharashtra & Ors. 11. The facts of the said case are identical

to the present case. In the said case, the petitioner had challenged an order dated

14 September 2022 passed by the Education Officer (Secondary), Pune Zilla

Parishad, Pune, whereby it was held that the petitioner was not entitled for the

pension benefit under the MCS (Pension) Rules, on the ground that the initial

service of the petitioner was part time. The petitioner therein was initially

appointed as a ‘part time librarian’ at Shree Sant Muktabai Vidyalaya, Shelgaon,

Taluka – Indapur, District – Pune, a school run by the Rayat Shikshan Sanstha, on

17 April 1995. His appointment was approved by the then Education Officer

(Secondary), Zilla Parishad, Pune, by an order dated 28 July 1997. The petitioner

retired on 30 April 2022 from the post of full time librarian. In the intervening

period, he was transferred as a full time librarian to one of the schools run by the

management/respondent no.4 therein. The Education Institution had also

forwarded a proposal to the Education Officer (Secondary), Pune Zilla Parishad,

Pune, for grant of the pension benefit. However, by an order dated 14 September

11 Writ Petition No. 14880 of 2022, decided on 06 December 2023
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2022, the Education Officer held that the petitioner was not entitled for the

pension benefit under the MCS (Pension) Rules, on the ground that the initial

service of the petitioner was on a part time post. The Division Bench held that

the said reason given by Education Officer could not be sustained in the light of

the settled principles of law, which were to the contrary. This more particularly

having regard to the facts of the case, that the petitioner had rendered part time

service from 17 April 1995 till his transfer as a full time librarian on 25 April

2007, i.e. for approximately 12 years, and thereafter rendered full time service

from 25 April 2007 till 30 April 2022, i.e., for approximately 15 years, when he

attained the age of superannuation. The Court observed that as per the MCS

(Pension) Rules, for counting the services for pension benefit, half of the period

of the part time service has to be treated as full time i.e. six years and full time

service of fifteen years was required to be considered. Accordingly, the total

service of the petitioner for pension benefit was held to be six years plus fifteen

years i.e. twenty one years. The relevant observations as made by the Court are

required to be noted which read thus:-

“6. Thus, the total Part Time service of the Petitioner from 17 th April
1995 till his transfer as a Full Time Librarian on 25th April 2007 was
twelve years and his service as a Full Time Librarian from 25th April 2007
till 30th April 2022 was fifteen years. It is the case of the Petitioner that, as
per the Maharashtra Civil Services (Pension) Rules, 1982, for counting the
services for pension benefit, half of the period of the Part Time service has
to be treated as Full Time i.e. six years and Full Time service of fifteen years
was also to be considered. Accordingly, the total service of the Petitioner for
pension benefit is six years plus fifteen years i.e. twenty one years. It is also
the case of the Petitioner that therefore he is clearly entitled to pension
benefits as per the Maharashtra Civil Services (Pension) Rules, 1982.
8. By an Order dated 14th September 2022, Respondent no.3 held
that the Petitioner was not entitled for the pension benefit under the
Maharashtra Civil Services (Pension) Rules, 1982, on the ground that the
initial service of the Petitioner was on a part time post.

Page 34 of 44
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9. The said reason given by Respondent no.3 cannot be sustained in
the light of the settled law to the contrary. The settled position in law is that
the date of appointment on Part Time basis is required to be treated as the
date of entry into service for the purpose of applicability of the pension
scheme under the Maharashtra Civil Services (Pension) Rules, 1982, and
that further, even in respect of part time employees, their part time services
have to count towards qualifying service for pension, albeit only 50%. This
settled position of law has been laid down in various judgments of this
Court. However, in order not to burden this judgment, we would like to
refer to the following judgments; (i) Anil Popat Chobhe v. State of
Maharashtra1 and (ii) Pratibha Prakash Almast and Others vs. State of
Maharashtra and Ors.2 which have been cited on behalf of the Petitioner,
which uphold the aforesaid position in law.”

36. From the aforesaid discussion, it is clear that various decisions as rendered

by this Court have taken into consideration the applicability of the 1981 Rules as

also MCS (Pension) Rules to hold that in situations when initially an appointment

is on a post which is a part-time post, in an aided institution and subsequently

followed by regular appointment, the period spent by the employee on the part-

time appointment necessarily would be taken into consideration for the purpose

of calculating the qualifying service, for the purpose of pension. Similarly, in case

of an employee of a recognized private aided school, appointed during the time

when school was not receiving grant and the tenure on such position also would

be counted towards the qualifying service for pension, when such an employee

retires from a school receiving grant-in-aid. This is in pursuance of the policy

decision dated 08 April 2018 in G.R. dated 20 April 2018 as considered by the

Full Bench when it held that an employee appointed in a school could be

governed by the pension scheme not merely from the time the school starts

receiving 100% grant as held by the Full Bench.

37. On the aforesaid backdrop, we consider the contentions urged on behalf of

the respondents by Ms. Mehra. The main plank of her argument is that the
Page 35 of 44
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petitioner would not become entitled for pension under the old pension scheme

relying on the decision of the Division Bench of this Court in Sunil Subhash

Ekhande vs. State of Maharashtra & Ors. (supra) wherein according to her, the

Court has held that G.R. dated 03 August 2006 was a one time measure, under

which the post of part-time librarian was upgraded to a full-time post in aided

institutions. It is hence contended that considering the context of the said G.R.

and more particularly considering Clauses 4 and 5 of the said G.R., it would not

be open to the petitioner to assert that the service rendered by the petitioner on

the part-time post be counted in the qualifying service for the purposes of

pension, as the appointment of the petitioner as full-time librarian was a fresh

appointment. In short, the contention of Ms. Mehra is that the principle of

estoppel applies against the petitioner when the petitioner makes a claim for the

period of service rendered on the part-time post to be counted in the qualifying

service to be reckoned for the purposes of the pensionary benefits and more

particularly when the appointment of the petitioner according to her, is fresh

appointment on the post of the full-time librarian.

38. We are not in agreement with Ms. Mehra when she contends that the

petitioner would not be entitled to the reliefs in view of the decision of the

Division Bench in Sunil Subhash Ekhande vs. State of Maharashtra & Ors.

(supra). In our opinion, as rightly contended by Mr. Khairnar (see paragraph 15)

this decision certainly is not applicable to the facts in hand as the decision is not

an authority which would decide the issue in hand. The issue which fell for

adjudication before the Division Bench in Sunil Subhash Ekhande vs. State of

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Maharashtra & Ors. (supra) was the challenge to Clauses 1, 3 and 4 of the G.R.

dated 03 August 2006 being illegal and contrary to the recommendations of the

Chiplunkar Committee accepted by the State. The petitioners therein claimed

that they should be regularized and be appointed as full-time employees from the

date of their appointment as a part-time employees. The Court rejected such

contention and upheld the said G.R. The said decision is also certainly not a

decision which decides an issue attracting the provisions of Rule 19 of the 1981

Rules read with the provisions of the MCS (Pension) Rules, as in the present case.

In the context of a challenge to the said G.R., the Court in paragraph 29 of the

said decision observed that the assailed clauses of the G.R. dated 03 August 2006

are not in any way arbitrary or in violation of Articles 14 or 21 of the Constitution

of India.

39. We may also observe that a contention similar to the one raised by Ms.

Mehra relying on the decision in Sunil Subhash Ekhande vs. State of Maharashtra

& Ors. (supra) was raised on behalf of the State, before the Augrangabad Bench of

this Court in Sunanda Sahatragun Ingale vs. The State of Maharashtra & Ors.

(supra) wherein the Division Bench considering a similar challenge as in the

present proceedings i.e. prayer of the petitioner for issuance of a writ of

mandamus to the respondents therein, to grant the family pension to the

petitioner, by considering the part-time service of the deceased husband of the

petitioner, as a “Librarian” from 04 August 1975 to 01 April 2006 and full time

service as a Librarian from 01 April 2006 till 2011 the date of retirement totaling

20 years 6 months, as qualifying service of the deceased. It is in such context, the

Page 37 of 44
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Court observed that the contentions as urged on behalf of the State relying on the

decision in Sunil Subhash Ekhande vs. State of Maharashtra & Ors. (supra) would

not assist the respondent, as in such decision, the Court was not considering the

applicability of Rules 30, 57 Note 1 and 110 of the MCS (Pension) Rules,

whereby 50% of part-time service would require consideration for calculating

pension. The Division Bench considering different decisions and applying the

decision of the Division Bench in Punjahari Baburao Dighe And Others Vs The

State Of Maharashtra And Others12, held that as the husband of petitioner therein

had served as a part time librarian between the period 04 August 1975 to 09

January 2007 with Respondent no. 4/School and thereafter, he was granted

approval as full time librarian from 09 January 2007. In such circumstances, it

was held that 50% of the service rendered by the husband of the petitioner as a

part time librarian would be required to be reckoned for the purpose of

computing the qualifying service, for the purpose of pension, along with the

entire service rendered as a full time employee. The relevant observations of the

Court are required to be noted which read thus:-

“9. Per contra, learned AGP for the State authorities and learned
Advocate for respondent No.4/school vehemently opposed the petition.
Learned AGP places reliance upon the judgment of this Court in Sunil
Subhash Ekhande Vs. State of Maharashtra and others, reported in AIR
Online 2023 Bom. 1633, wherein this Court dismissed the identical writ
petition by placing reliance upon the judgment delivered in Satish
Ganpatrao Patil and Ors. Vs. State of Maharashtra and others, AIR Online
2015 Bom. 104. In the said judgment, there was challenge to the
Government Resolution dated 03/08/2006 on the ground that the same is
illegal and contrary to the report of the Chiplunkar Samiti. The petitioners
therein had sought relief that they be considered as Full Time Librarian from
the day of their initial appointments as Part Time Librarian. Thus, learned
AGP prays for dismissal of this writ petition.

12 Writ Petition No. 12902 of 2018, decided on 06 May 2022 (Aurangabad Bench)
Page 38 of 44
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10. After hearing learned Advocates for the respective parties, we have
gone through the record available with the Court. We find that the petitioner
relying on Rule 30, Rule 57 Note 1 and Rule 110 of Maharashtra Civil
Services (Pension) Rules prays for considering 50% of the Part Time service
for calculating the pension which was not the subject matter in Sunil
Subhash Ekhande (supra) and Satish Ganpatrao Patil (supra) aforesaid
judgments. Claiming Full Time Librarian status from first day of part time
service and claiming 50% service of part time service as full time service are
two different issues. Thus, the husband of Petitioner had rendered 31 years
of service as a Part Time Librarian and 4 years of Full Time Librarian till his
unnatural death, can be said to be legally justified for the entitlement of the
regular 10036.10wp.odt pensionary benefits. In that view of the matter, it is
also equally important to place reliance on the following judgments:

(I) Shivappa Bhujangappa Bembale Vs. State of Maharashtra & Anr.,
2005(3) Mh.L.J. 709;

(II) Anil Popat Chobhe Vs. State of Maharashtra and others, (2022) SCC
Online Bom. 1726; and

(III) Pratibha Prakash Almast and others Vs. State of Maharashtra and
others, (2023) SCC Online Bom. 1262.

11. In Writ Petition No.12902 Of 2018 (Punjahari Baburao Dighe And
Others Vs The State Of Maharashtra And Others), on 6 May, 2022,
Aurangabad Bench, observed as under:-

"40. The learned Additional Government Pleader placed reliance on
the judgment of the Supreme Court in the case of Rajasthan Public
Service Commission with State of Rajasthan Vs. Harish Kumar
Purohit and Kishanlal Banshal (supra) and more particularly para No.
18 and would submit that if this Court is of the view that the
judgment delivered by the co-ordinate bench of this Court in the case
of Satish Ganpatrao Patil and Others Vs. The State of Maharashtra
and others (supra) is not correct view, the matter has to be referred to
the larger bench for resolving the conflict.

41. It is not in dispute that some time prior to 1994 the State
Government had constituted Shri. V. V. Chiplunkar Committee for
recommending staffing pattern of non teaching employees for the
schools, high schools and junior colleges based upon the strength of
the students. The staffing pattern prescribed in the Secondary School
Code was found to be inappropriate and efficiency of the
administration was adversely affected. Shri. V.V. Chiplunkar
Committee submitted its report to the State Government. It is not in
dispute that pursuant to the report of Shri. V.V. Chiplunkar
Committee, the State Government issued Government Resolution
dated 28th June 1994. In the said report, insofar as the post of part
time librarian and full time librarian is concerned, considering the
10036.10wp.odt number of students in each school, post of such part
time librarian and full time librarian were recommended.

Page 39 of 44
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42. In view of the said Government Resolution dated 28th June
1994, the staffing pattern of non teaching employees in the school was
governed by the provisions of the Secondary School Code. Clause 4 of
the said Government Resolution dated 28 th June 1994 clearly
provided that for filling up the posts of non teaching staff in the
secondary school, it should be presumed that the existing norms
prescribed in the Secondary School Code were changed accordingly.
The Director of Education, Maharashtra State, Pune should submit a
draft of necessary amendment to Secondary School Code to the
Government. New norms prescribed in the Secondary School Code
were accordingly changed. The Education Officer (Secondary) of each
district was directed to evaluate strength of each school and submit the
report as to in which school the post of full time librarian would
become available and from which year the post of full time librarian
was required to be approved.

43. The State Government issued Government Resolution dated 03rd
August, 2006, by relying upon the Government Resolution dated
28th June, 1994. It was clearly provided in the said Government
Resolution that the Government had already granted approval for
creation of 284 posts of full time librarian in the Government
Resolution dated 28.06.1994. The State Government up-graded posts
of part time librarian of 924 schools to full time librarians contending
that it would be a fresh appointment as full time librarian and
accordingly the period of services rendered by part time librarian
would not be counted for pay fixation and that the appointment
would be on the lowest scale as basic as full time librarian with effect
from 01st April, 2006. A perusal of the said Government Resolution
dated 28th June 1994 would indicate that based on the report
submitted by Shri. V.V. Chiplunkar Committee, the posts of part time
librarian and full time librarian were prescribed in the said
Government Resolution.

44. Nagpur Bench of this Court delivered a judgment on 22nd
July 2005 in Writ Petition No. 1197/2005 filed by one of the part
time librarian pursuant to the directions issued by this Court in the
said matter. The Education Officer in that case passed order dated
12th September 2009, granting approval to the said petitioner as full
time librarian with effect from 1st July 1994 on the basis that the
strength of the students in the concerned school had become more
than 1000 from the year 1994-95.
45. Large number of such employees who were initially
appointed as part time librarian and were subsequently appointed as
full time librarian were not granted the pension under the MCS
(Pension) Rules, 1982, by computing 50% of their service as part time
librarian alongwith their 100% of service as full time librarian.
Nagpur Bench of this Court in the said judgment had considered the
fact that the petitioner was working as librarian on part time basis on
7th December 1992 and at that time the total strength of the students
of the school was less than 1000 and in or about the year 1999 the
strength of the students had exceed to 1000. After considering the
Government Resolution dated 28th June 1994 and after considering
the effect of Shri V.V. Chiplunkar Committee Report, this Court

Page 40 of 44
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directed the petitioner therein to make fresh application to the
respondent 10036.10wp.odt No.2 to make enquiry and pass
appropriate order. The respondent No. 2 had thereafter granted
approval to the appointment of the petitioner as full time librarian
with effect from the date of the strength of the students in the school
exceeding to 1000.
56. Insofar as the judgment of this Court in the case of Satish
Ganpatrao Patil (supra) relied upon by the learned Additional
Government Pleader is concerned, a perusal of the prayers made in
the said writ petition with the judgment would clearly indicate that
the Division Bench of this Court was considering alterate prayer for
quashing and setting aside the word 'fresh' in the impugned
Government Resolution dated 3rd August 2006 by substituting or
deleting the same and held that the petitioners therein were promoted
from part time librarians to full time librarians. In that context, this
Court held that the petitioners had accepted the benefits of the said
Government Resolution dated 3rd August 2006 and had accepted
without any protest. Large number of judgments delivered by this
Court taking different view prior to the said judgment in case of
Satish Ganpatrao Patil (supra) were not brought to the notice of this
Court. Be that as it may, the facts in the case of Satish Ganpatrao Patil
(supra) were totally different and are distinguishable on facts. The said
judgment is already distinguished by Division Bench of this Court
recently in case of Ganesh Narhar Chavan (supra) and would not
advance case of the respondents. We are thus not required to refer the
issue to Larger Bench.
57. In our view, the State Government while issuing
Government Resolution dated 3rd August 2006 could not have been
taken away the benefits granted under the Government Resolution
dated 28th June 1994 which were granted pursuant to the acceptance
of Shri V. V. Chiplunkar Committee Report. The said Government
Resolution dated 3rd August 2006 could not have been issued
inconsistent with the provisions of Secondary School Code. In our
view, by the said Government Resolution dated 28 th June 1994 there
was only up-gradation of approved part time posts of part time
librarians to the post of full time librarians and such up- gradation was
automatic once the strength of students had become 1000 or above.
The respondents were thus obliged to grant status of full time
librarian to the petitioners on the date of strength of the students had
become 1000 or more WP No.12902/18 & Ors. alongwith all
consequential benefits, pay fixation from due date.
59. The respondents are required to compute 50% of the
services rendered as part time librarian along with period of 100%
service rendered as full time librarian for computing pensionable
service.
60. There is no substance in the submission of the State
Government that there would be any discrimination between the part
time librarian given status of full time librarian on the date of the
strength of the students having reached 1000 or more and the full
time librarian appointed after D. C. P. S. scheme came into force. The
said Government Resolution dated 03.08.2006 taking away the rights
vested in employees under G. R. dated 28.06.1994 is illegal, arbitrary
and in violation of Article 14 of the Constitution of India. The
judgments relied upon by the learned Additional Government
Pleader are distinguishable on facts and would not assist the case of

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the State Government.
12. In the case in hand, the husband of petitioner has admittedly served
as Librarian (Part Time) on 04/08/1975 to 09/01/2007 in Respondent no.
4/School. Thereafter, he was granted approval as Full Time Librarian from
09/01/2007.
13. In view of the settled legal position consistently laid down by this
Court, it is no longer res integra that 50% of the service rendered as a Part
Time Librarian is liable to be reckoned for the purpose of computing
qualifying service for pension, along with the entire service rendered as a full
time employee. The distinction sought to be drawn by the respondents
between part-time and full-time service, to the extent of denying pensionary
benefits, has been repeatedly rejected. In the present case, the husband of the
petitioner had rendered long years of service, first as a part-time Librarian
and thereafter as a full-time Librarian, and therefore, the petitioner, being his
widow, cannot be deprived of family pension. Denial of such benefit would
defeat the very object of social security underlying the pension scheme.
Therefore, we are of the view that the petitioner is entitled for family
pension as per the relief sought by her vide prayer clause (C-1.)”
(emphasis supplied)

40. Further recently a co-ordinate Bench of this Court at the Kolhapur Circuit

Bench in Smt. Vanita Rajendra Bhadule (Aka. Vanita Somnath Dikole) vs. The

State of Maharashtra & Ors. 13, also considered a similar contention as urged on

behalf of the State relying on the decision in Sunil Subhash Ekhande (supra). In

the said case also, the challenge as mounted by the petitioner was to an order

dated 16 February 2024 passed by the Deputy Director of Education, Kolhapur,

denying the benefit of the MCS (Pension) Rules, i.e. Old Pension Scheme to the

petitioner, who had claimed to be entitled to pension under the Old Pension

Scheme, on the ground that initially she was appointed as part-time teacher on 06

June 1998 in the Commerce Faculty and thereafter from the year 2006, she was

appointed as a full-time teacher on the sanctioned post in an institution receiving

aid. It is in these circumstances, the Court following the principles of law as

discussed by us hereinabove, allowed the said writ petition thereby declaring that

the petitioner was entitled to receive pensionary benefits as per the MCS

13 Writ Petition (Stamp) No. 18703 of 2024, decided on 25 June 2026
Page 42 of 44
WP 11651-23.DOC

(Pension) Rules i.e. the old pension scheme, considering that her total tenure on

the post was 20 years and 3 months including 16 years as a full time Assistant

Teacher and half of the continuous qualifying service to the post of part-time

Teacher i.e. 4 years and 1 month and accordingly the respondents were directed to

release in favour of the petitioner all pensionary benefits as per the old pension

scheme within a period of three months from the date of the said order. In

reaching to such conclusion, the Division Bench observed that the decision of the

Division Bench in Sunil Subhash Ekhande (supra) would not be applicable in

relation to the controversy as involved which was also similar to one raised in the

present proceedings.

41. In the light of the above discussion, in our opinion, it is quite clear that, in

the facts and circumstances of the present case, it would be arbitrary on the part of

the respondent to exclude the period of service rendered by the petitioner from 12

June 1995 to 31 March 2006 on the post of part-time librarian for the purpose of

determining the qualifying service. In our opinion, Rule 57 Note 1 of the MCS

(Pension) Rules would thus become applicable, and 50% of the period of part-

time service rendered by the petitioner would be required to be taken into

consideration for calculating the qualifying service for the purpose of pension.

Accordingly, the petitioner would become entitled to pension under the old

pension scheme, by taking into consideration 50% of the period of service

rendered as a part-time librarian together with the period of service spent on the

full-time post of librarian, for determining the petitioner's pensionable service.

Accordingly, the petitioner's qualifying service for the purpose of pension would

Page 43 of 44
WP 11651-23.DOC

be about 23 years (i.e approximately 5 years 4 months, i.e. , 50 % of service as

part time librarian and 17 years 8 months as full time librarian) which is a period

of about 5 years prior to the cut of date of 1 November 2005 being reckoned

towards the qualifying service for the grant of pension.

42. In this view of the matter, the writ petition is allowed in terms of the
following order:-
ORDER

i. It is declared that 50% of the service rendered by the petitioner as a part-
time librarian shall be taken into consideration along with the entire service
rendered as a full-time librarian for the purpose of qualifying service for
pensionary benefits. Accordingly, the petitioner is entitled to pension under the
Old Pension Scheme.

ii. Respondent no.6 is directed to submit the petitioner's pension proposal to
respondent nos. 3 and 4 within a period of three weeks from today and on the
same being received, respondent nos.3 and 4 shall take further steps to disburse
the pension to the petitioner under the Old Pension Scheme.
iii. Let the arrears of pension be disbursed to the petitioner within a period of
six weeks with interest at the rate of 8% per annum by adjusting any amounts
which would be required to be returned by the petitioner to the State
Government in the event a conversion was made under the DCPS.
iv. The petitioner shall accordingly be paid pension on a monthly basis, in
accordance with the rules.
v. In the event any other retirement dues as legitimately entitled to the
petitioner are not disbursed ,the same be disbursed to the petitioner within four
weeks from today.
vi. Rule is made absolute in the aforesaid terms. No costs.

(AARTI SATHE, J.) (G. S. KULKARNI, J.)

Page 44 of 44

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