VIDYA VISHWANATH PHALKEversusTHE STATE OF MAHARASHTRA THRU. SECRETARY AND ORS

                                                            901-WP-13034-2025.DOC


Prasad
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION
                   WRIT PETITION NO. 13034 OF 2025
Vidya Vishwanath Phalke,
Age: 58 years, residing at B2/2405,
Wadhawa Complex, Opposite R City Mall,
Ghatkopar (West), Mumbai – 400 086                     …Petitioner
         Versus
1. The State of Maharashtra,
The Principal Secretary,
Department of School Education and Sports, Mantralaya,
Mumbai – 400 032.

2. The Director of Education (Secondary),
Dr. Annie Besant Marg, Madhyavarti Building,
Pune – 411 001

3. Deputy Director of Education, Jawahar Bal Bhavan,
Ground Floor, Netaji Subhash Marg,
Charni Road, Mumbai – 400 004

4. The Education Inspector,
Greater Mumbai, North Zone, Chembur,
Administrative Building, Building No. 2,
2nd Floor, R.C. Marg,
Chembur, Mumbai – 400 071

5. The Superintendent,
Pay and Provident Fund Unit, Mumbai Division,
Administrative Building, Building No. 2, 2nd Floor, R.C. Marg,
Chembur, Mumbai – 400 071

6. The Chairman/Secretary, Harihar Warkari Sant Seva Mandal,
Kurla, Vitthal Mandir, New Mill Road,
Kurla (West), Mumbai – 400 070


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7. The Headmaster/Headmistress,
Prabodhan Kurla Madhyamik Shala, Vitthal Mandir,
New Mill Road, Kurla (West), Mumbai – 400 070

8. The Chairman/Secretary, Abhudya Dnyanvardhini Sanstha,
Parsiwadi, Ghatkopar (West),
Mumbai – 400 086

9. The Headmaster/Headmistress, Abhudya Vidyalay,
Parsiwadi, Ghatkopar (West),
Mumbai – 400 086

10. The Chairman/Secretary,
Samata Shikshan Sanstha, Mohili Village,
Sakinaka, Mumbai – 400 072

11. The Headmaster/Headmistress,
Samata Vidya Mandir, Mohili Village,
Sakinaka, Mumbai – 400 072                            ...Respondents
                                   _______

Mr Suresh Pakale, Senior Advocate, with Mr Nilesh Desai, for Petitioner.

Mr A R Deolekar, AGP for Respondents-State.
                                     _______

                           CORAM:                 G. S. KULKARNI &
                                                  DR. NEELA GOKHALE, JJ.

                        RESERVED ON: 22nd SEPTEMBER 2026
                    PRONOUNCED ON: 30th SEPTEMBER 2026

JUDGMENT (Per Dr Neela Gokhale, J.)

1.    The Petitioner retired on superannuation on 31st July 2025 as the

Headmistress of Respondent No. 7 school. She assails an order dated 11 th July

2025, passed by Respondent No. 4 – the Education Inspector, Brihanmumbai

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(North Zone), which rejected the proposal for her pension under the Maharashtra

Civil Services (Pension) Rules, 1982 (‘Pension Rules’); and seeks a direction for the

release of her pension.


2.     The material facts are not in dispute. On 13 th June 1990, the Petitioner was

appointed as an Assistant Teacher in Respondent No. 11 – Samata Vidya Mandir,

Sakinaka, a fully aided school. Upon completion of her probation, she was granted

a permanent appointment on 7 th August 1991. She enrolled in the pension scheme,

including the family pension scheme, and by order dated 10 th September 1993, she

was assigned a General Provident Fund Account.


3.     On 21st July 1998, the Petitioner joined Respondent No. 9 – Abhudya

Vidyalay, Ghatkopar, a fully aided school, as an Assistant Teacher. Her payments

continued to be credited to the same provident fund account until 13 th June 2000.

Subsequently, on 14th June 2000, she assumed the position of Headmistress at

Respondent No. 7 – Prabodhan Kurla Madhyamik Shala, Kurla, which was then

unaided. Respondent No. 7 school transitioned to a grant-in-aid status only after

1st November 2005, and, as per the impugned order, thereafter qualified for 100%

grant-in-aid by a communication from Respondent No. 4 dated 3 rd November

2009. At no stage was there a break in the Petitioner’s service.


4.     Regarding the Petitioner’s imminent superannuation, Respondent No. 6 –

Management forwarded her pension proposal on 16 th April 2025. By the

impugned order, Respondent No. 4, after recording that the Petitioner had served

in aided schools only from 13th June 1990 to 13th June 2000, rejected the proposal


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and returned it to the Management. The stated reason was that Respondent No. 7

school received a 100% grant only on 3rd November 2009, and in accordance with

the Government Resolution dated 31st October 2005.


5.      Mr Pakale, learned Senior Advocate representing the Petitioner, submitted

that the Petitioner entered pensionable service in 1990 on a sanctioned post in a

fully aided school and was admitted to the pension scheme in 1993. Furthermore,

he contended that the Defined Contribution Pension Scheme (‘DCPS’) pertains

solely to employees recruited on or after 1 st November 2005. He contended that

this Court's judgment in Dattatrya Patingrao Borse v. State of Maharashtra 1

governs the present case. He also relied on this Court's recent decision in

Dadasaheb Sada Kadam v. State of Maharashtra .2 Additionally, he cited this

Court's decision in Anuradha Jayant Gangakhedkar v. Brihanmumbai

Municipal Corporation3, to submit that service rendered before a school started

receiving a grant cannot be disregarded. Alternatively, he submitted that even if the

period from 14th June 2000 to 29th July 2008 is excluded, the Petitioner possesses

approximately 27 years of qualifying service.


6.      Mr Deolekar, learned Additional Government Pleader, relying on the

affidavit in reply of Respondent No. 4, submitted that the Petitioner resigned from

Respondent No. 11 school; that her appointment in Respondent No. 9 school was

a fresh appointment; that she left that school voluntarily and subsequently joined

Respondent No. 7 school having knowledge that it was unaided; that on 1 st

1 BHC:2026-AUG:8401-DB (Writ Petition No. 8548 of 2022, decided on 25th February 2026).
2 (Writ Petition No. 11651 of 2023, decided on 11th September 2026).
3 2012 (5) Mh.L.J. 775.

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November 2005, Respondent No. 7 school was not receiving full grant-in-aid; and

hence she does not qualify for the Old Pension Scheme.


7.      We have heard learned Counsel representing their respective parties and

perused the documents on record.


8.      The DCPS introduced by the Government Resolution dated 31 st October

2005 applies to employees recruited on or after 1 st November 2005. Rule 2(2) of

the Pension Rules similarly excludes from its scope only those employees recruited

on or after that date. The Petitioner was recruited on 13 th June 1990. From that

date, she served on an aided post, and by the order dated 10 th September 1993, she

was admitted to the pension scheme and the General Provident Fund. The

Respondents do not contend that this admission was ever revoked, nor do they

contend that the Petitioner at any time opted for the DCPS.


9.      This Court has consistently held that the initial date of appointment to an

aided post, not the date of a subsequent appointment, determines the applicability

of the Old Pension Scheme. In Renuka Chandrabhan Umredkar v. State of

Maharashtra & Ors.4, this Court held that the petitioner therein’s entitlements

under the Old Pension Scheme would be based on her initial date of appointment

as a part-time Librarian on an aided post and not on the basis of her later

appointment as a full-time Librarian under the DCP Scheme. Furthermore, in

Dadasaheb Sada Kadam (supra), this Court rejected the State’s contention that




4 2021 SCC OnLine Bom 9587.

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the subsequent appointment, being a ‘fresh appointment’, invalidated the earlier

service rendered in the aided post for pension calculations.


10.     Thereafter, in Dattatrya Patingrao Borse (supra), the Aurangabad Bench of

this Court has followed the decision in Nilesh Namdev Gurav v. State of

Maharashtra5. The relevant portion reads as follows:

            “9) The law as declared in the above judgments is that the employees similarly
            placed to the petitioners are entitled to old pension scheme who are appointed
            prior to 1.11.2005 in the 100% aided schools and not the DCP Scheme unless
            specifically opted by the employees. All the employees who have not applied for
            the DCP Scheme and the present petitioners, having not opted for the DCP
            Scheme, ought to have been granted the benefit of the old pension scheme.”

        Thus, employees appointed before 1st November 2005 in 100% aided

schools are entitled to the Old Pension Scheme unless they have explicitly opted for

the DCP Scheme.


11.     In the case in hand, the Petitioner was not merely appointed prior to the

cut-off date. She was appointed to a sanctioned post in a fully aided school, served

on aided posts for ten years, and was enrolled in the pension scheme twelve years

before the inception of the DCPS. When the Government Resolution dated 31 st

October 2005 was issued, she was already a participant in the pension scheme.


12.     In any case, the issue is no longer res integra. The Full Bench decision in

Deshmukh Dilipkumar Bhagwan & Ors v. State of Maharashtra & Ors. 6

concerned employees who, at the time of their appointment, were employed in

schools not receiving a 100% grant-in-aid, and whose schools only began to receive

such aid after 1st November 2005. The fundamental premise is that the
5 2022 (3) Mh.L.J. 615.
6 2019 SCC OnLine Bom 729.

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Government's liability to provide pension benefits to a retired employee of a

private school can arise only if the Government has committed to pay a full grant

to the school. In the case of the Petitioner, the Government assumed this liability

starting from 1990, when she was appointed to a fully aided post, and admitted her

to the pension scheme in 1993. The premise of the Full Bench is therefore satisfied.


13.    The decision of the Full Bench in Deshmukh Dilipkumar Bhagwan

(supra) observed as follows:


         “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.”

                                                             (emphasis supplied)

14.    The Full Bench judgment observed that the service rendered by an

employee of a recognised private school during periods when such school did not

receive a grant would also be considered as qualifying service for pension purposes

upon the employee's retirement from a school that does receive a grant. A similar

standpoint is reflected in the decision in Anuradha Jayant Gangakhedkar (supra),

where a Division Bench of this Court, construing the pension scheme for private

primary aided schools in Greater Mumbai, held that there is no basis in the Pension

Scheme or the Pension Rules to exclude, during the calculation of qualifying

service, the period of service rendered by an employee prior to the school obtaining

grant-in-aid. The Petitioner retired from a school that received 100% grant-in-aid;




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therefore, her service in Respondent No. 7 – school from 14 th June 2000 must also

be included.


15.   Recently, this Court, in its decision in Dadasaheb Sada Kadam (supra), has

considered a series of decisions on the issue involved in the present matter. We

have also referred to the Full Bench's observations in Deshmukh Dilipkumar

Bhagwan (supra). Paragraph 36 of Dadasaheb Kadam (supra) reads thus:

                   “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.”

16.   In view of the aforesaid discussions and the settled legal position, the

impugned order cannot be sustained. We accordingly pass the following order:


      (i)      The order dated 11th July 2025 passed by Respondent No. 4 is
               quashed and set aside.
      (ii)     It is declared that the Petitioner is governed by the Maharashtra Civil
               Services (Pension) Rules, 1982, the Maharashtra Civil Services
               (Commutation of Pension) Rules, 1984 and the General Provident
               Fund.


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                             (iii)   Respondent Nos. 6 and 7 shall submit the Petitioner’s pension
                                     proposal afresh to Respondent No. 4 within two weeks from the date
                                     of this judgment.
                             (iv)    Respondent Nos. 4 and 5 shall process the proposal and sanction the
                                     Petitioner’s pension within four weeks thereafter in accordance with
                                     law.


                       17.   Writ Petition is allowed. No order as to costs.




                       (DR. NEELA GOKHALE, J.)                                 (G. S. KULKARNI, J.)



PRASAD
RAJENDRASING
RAJPUT

 Digitally signed by
 PRASAD
 RAJENDRASING
 RAJPUT
 Date: 2026.10.01
 15:08:37 +0530




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