Rajesh Dnyaneshwar Mirge And Others v. The State Of Maharashtra, Thr. Secretary, Higher And Technical Education Dept., Mumbai And Others

2025:BHC-NAG:8206-DB 1 918-J-WP-669-2024.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.669 OF 2024 PETITIONERS : 1. Dr. Rajesh Dnyaneshwar Mirge, Aged about 47 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Amravati, Ta. & Dist. Amravati.

2. Dr. Yogita Sahebrao Thakre, Aged about 41 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

3. Dr. Hemant Prabhakarrao Sapkal, Aged about 47 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

4. Dr. Ananda Bhikuji Kale, Aged about 56 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

5. Dr. Milind Rajesh Belkhedkar, Aged about 43 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

6. Dr. Sharayu Manoj Thorat, Aged about 56 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

7. Dr. Gajanan Wasudeorao Belsare, Aged about 51 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

8. Dr. Ganpat Dewaji Deshmukh, Aged about 48 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Akola, Ta. & Dist. Akola.

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9. Dr. Rajesh Pundlikrao Ganorkar, Aged about 48 years, Occ. Service, R/o. C/o. Mahatma Fule Arts & Commerce College, Warud, Dist. Amravati.

10. Dr. Sunil Ramkrushna Kondulkar, Aged about 51 years, Occ. Service, R/o. C/o. Mahatma Fule Arts & Commerce College, Warud, Dist. Amravati.

11. Prof. Madhuri Rajendra Umekar, Aged about 54 years, Occ. Service, R/o. C/o. Mahatma Fule Arts & Commerce College, Warud, Dist. Amravati.

12. Dr. Punam Vijaykumar Barabde, Aged about 47 years, Occ. Service, R/o. C/o. Shri Shivaji Arts & Commerce College, Amravati, Ta. & Dist. Amravati.

13. Prof. Sarika Dadarao Pachraut, Aged about 50 years, Occ. Service, R/o. C/o. Shri Gopalrao Khedkar College, (Gadegaon) Telhara, Dist. Akola.

14. Dr. Nandkishor Sahadeorao Gopakar, Aged about 50 years, Occ. Service, R/o. C/o. J. D. Patil Sanguldkar College, Daryapur, Dist. Amravati.

15. Dr. Santosh Narayan Patole, Aged about 54 years, Occ. Service, R/o. C/o. Shri Shivaji Arts, Commerce Science College, Akot, Dist. Akola.

16. Dr. Manisha Marotrao Kodape, Aged about 42 years, Occ. Service, R/o. C/o. Chemistry Department of Sant Gadge Baba Amravati University, Amravati.

17. Dr. Anil Rameshwar Somawanshi, Aged about 47 years, Occ. Service, R/o. C/o. J. D. Patil Sanguldkar College, Daryapur, Dist. Amravati.

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18. Dr. Jyotsna Sambhaji Pusate, Aged about 52 years, Occ. Service, R/o. C/o. J. D. Patil Sanguldkar College, Daryapur, Dist. Amravati.

19. Dr. Avinash Sharadrao Dhobe, Aged about 42 years, Occ. Service, R/o. C/o. Shyamaprasad Mukherjee College, Shendurjana Ghat, Tq. Warud, Dist. Amravati.

20. Dr. Kalpana Narayanrao Pawar, Aged about 49 years, Occ. Service, R/o. C/o. Science College, Congress Nagar, Nagpur.

21. Dr. Vishwanath Akoji Kodape, Aged about 52 years, Occ. Service, R/o. C/o. Science College, Pauni, Dist. Bhandara.

22. Dr. Atulkumar Biharilal Sahare, Aged about 43 years, Occ. Service, R/o. C/o. Science College, Pauni, Dist. Bhandara.

23. Dr. Ravindrakumar Sahebrao Dhande, Aged about 46 years, Occ. Service, R/o. C/o. Shri S. R. Lahoti Science College, Morshi, Dist. Amravati.

24. Dr. Sanjay Janardhan Aglawe, Aged about 50 years, Occ. Service, R/o. C/o. J. D. Patil Sanguldkar College, Daryapur, Dist. Amravati.

25. Dr. Manisha Shankar Yadav, Aged about 45 years, Occ. Service, R/o. C/o. Shri Gadge Maharaj College, Karanja Road, Murtizapur, Dist. Akola.

26. Dr. Kishor Marotrao Taksande, Aged about 51 years, Occ. Service, R/o. C/o. Arts & Science College, Kurha, Tq. Teosa, Dist. Amravati.

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27. Dr. Anant Madan Awati, Aged about 44 years, Occ. Service, R/o. C/o.Shri Vyankatesh Arts, Commerce & Science College, Deulgaon Raja, Dist. Buldhana.

28. Prof. Sandip Bhaskarrao Jagtap, Aged about 60 years, Occ. Service, R/o. C/o.Shri Vyankatesh Arts, Commerce & Science College, Deulgaon Raja, Dist. Buldhana.

V E R S U S RESPONDENTS :

1. The State of Maharashtra, Through its Secretary, Higher and Technical Education Department, Mantralaya, Mumbai-440032.

2. The Director of Higher Education, State of Maharashtra, Central Building, Pune-01.

3. The Joint Director of Higher Education, Amravati Division, Amravati.

4. The Joint Director of Higher Education, Nagpur Division, Nagpur.

------------------------------------------------------------------------------------------- Shri A. I. Sheikh, Advocate for petitioners.

Shri A. S. Fulzele, Additional Government Pleader for respondent Nos.1 to 4.

------------------------------------------------------------------------------------------- CORAM: SMT. M. S. JAWALKAR AND PRAVIN S. PATIL, JJ.

DATE : 13/08/2025.

ORAL JUDGMENT : (PER : PRAVIN S. PATIL, J.) 1.

Rule. Rule made returnable forthwith. By consent of learned Counsel for the parties, the matter is taken up for final disposal.

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By this petition, the prayer is made by the petitioners to declare that the petitioners are governed by the provisions of Old Pension Scheme and their services shall not be governed by the provisions of New Defined Contributory Pension Scheme (DCPS) introduced by the Government Resolution dated 31/10/2005. 3.

It is undisputed fact that in the present petition, petitioners are working as a full time approved lecturers and serving at Aided Colleges, which are Affiliated to the NonAgricultural Universities. 4.

Petitioners to substantiate their submission that the recruitment exercise was initiated before cut off date prescribed in Government Resolution dated 31/10/2005, provided the details of date of advertisement and date of appointment are as under :- Sr.

No.

Name of Teacher Date of Advertisement Date of Appointment order 1 Dr. Rajesh D. Mirge 20/10/2005 10/02/2006 2 Dr. Yogita S. Thakare 20/10/2005 13/02/2006 3 Dr. Hemant Prabhakarrao Sapkal 20/10/2005 23/03/2006 4 Dr. Ananda B. Kale 20/10/2005 08/02/2006 5 Dr. M. R. Belkhedkar 20/10/2005 08/02/2006 6 Dr. Sharyu M. Thorat (Ku. S. K. Deshmukh) 20/10/2005 08/02/2006 7 Dr. G. W. Belsare 20/10/2005 10/02/2006 8 Dr. Ganpat D. Deshmukh 20/10/2005 20/02/2006

6 918-J-WP-669-2024.doc 9 Dr. Rajesh P. Ganorkar 20/10/2005 22/03/2006 10 Dr. Sunil R. Kondakar 20/10/2005 10/02/2006 11 Prof. Madhuri R. Umekar 20/10/2005 10/02/2006 12 Dr. Punam V. Barabdhe 20/10/2005 10/02/2006 13 Prof. Sarika D. Pachraut 20/10/2005 10/02/2006 14 Dr. Nandkishor S. Gopakar 20/10/2005 22/03/2006 15 Dr. Santosh N. Patole 20/10/2005 10/02/2006 16 Dr. Manisha M. Kodape 20/10/2005 13/02/2006 17 Dr. Anil R. Somavanshi 20/10/2005 23/02/2006 18 Dr. Jyotsna S. Pusate 20/10/2005 13/02/2006 19 Dr. Avinash S. Dhobe 30/06/2005 19/11/2005 20 Dr. Kalpana N. Pawar 20/10/2005 16/02/2006 21 Dr. V. A. Kodape 20/10/2005 13/02/2006 22 Dr. Atul B. Sahare 20/10/2005 28/03/2006 23 Dr. R. S. Dhande 20/10/2005 17/02/2006 24 Dr. Sanjay J. Aglawe 20/10/2005 13/02/2006 25 Dr. Manisha S. Yadav 04/10/2005 25/01/2006 26 Dr. Kishor M. Taksande 28/09/2005 01/12/2005 27 Dr. Anant M. Awati 20/09/2005 14/11/2005 28 Prof. Sandip B. Jagtap 20/09/2005 14/11/2005 5.

In view of above, it is the submission of petitioners that they are entitled for benefit of old pension scheme in terms of subsequent Government Resolution dated 02/02/2024 wherein it is made clear that the recruitment exercise initiated before cut off date and appointed subsequently are entitled for old pension scheme. Hence, to seek the declaration as stated above, the present petition came to be filed.

7 918-J-WP-669-2024.doc 6.

Per contra, learned Additional Government Pleader has strongly opposed the petition by stating that the policy framed by the Government is not applicable to the University teachers as they do not fall in the definition of "Government Servants" and accordingly, it is his submission that the policy framed by the State Government is not applicable to them.

7.

It is further stated that the advertisement, selection process, approval and the appointment of the petitioners are not the subject of answering respondent. The entire process is within the competence of management / society of the petitioners and therefore, considering the fact that the appointments were made by the respective management / society, Higher and Technical Education Department cannot be held responsible in the matter and accordingly, DCPS scheme cannot be made applicable to the petitioners.

8.

We have heard learned counsel for the parties and considered the documents placed on record. It is clear from the Government Resolution dated 31/10/2005 that same would be applicable to the employees who are recruited on or after 01/11/2005 in the service of the Recognized and Aided Educational Institutions, Non-Agricultural Universities and

8 918-J-WP-669-2024.doc Affiliated Non-Governmental Colleges and Agricultural Universities, etc. Hence, considering the policy framed by the State Government, it is clear that the same was made applicable to the employees of Non-Agricultural Universities. Therefore, objection raised by Respondent is not sustainable in the eyes of law. 9.

In the present petition, the Government Resolution dated 02/02/2024 is produced on record. Accordingly, Government itself clarified that if the recruitment exercise is started before the cut off date i.e. 01/11/2005, and employees were appointed, thereafter in pursuance of that recruitment exercise, will be entitled for the benefit of Old Pension Scheme. 10.

Furthermore, this Court in Writ Petition No.3715/2022 has dealt with the identical issue and recorded the findings in Para Nos.7 and 8 which are reproduced as under :- "7. The issue is not res integra. The Principal Bench of this Court in the case of Khilari Rajendra Eknath and others v. The State of Maharashtra and others in Writ Petition No.2270 of 2021 has already dealt with this issue and it will be advantageous to reproduce paragraphs 27 and 28 of the said judgment, which read thus - "27. Sub-Rule (2) of Rule 2 of the M.C.S.(Pension) Rules, 1982 states that these rules would not apply to the Government Servants who are

9 918-J-WP-669-2024.doc recruited on or after 01.11.2005. Rules 1982 are the beneficial piece of legislation governing the post retiral benefits to a government employee. It has been held time and again that pension is not a bounty. Rules 1982 are not made applicable to the government servants who are recruited on or after 01.11.2005. Though the amendment to the Rules 1982 by the State Government are based upon the amendment carried out in the Central Civil Services (Pension) Rules, 1972 there is a subtle difference between the two. The Central Civil Services (Pension) Rules, 1972 apply to the Government Servants appointed on or before 31.12.2003 meaning thereby that it would not apply to the government servants appointed on or after 1st day of January, 2004. Whereas under the said M.C.S. (Pension) Rules, 1982, the wordings are '

the Rules shall not apply to government servants who are recruited on or after 01.11.2005'

. The phraseology "Recruitment" and "Appointment" are not synonymous. There is a marked distinction between "Recruitment" and "Appointment". Recruitment is a stage prior to appointment. Recruitment is the process which entails selection of candidates. Selection is a process of picking the candidates from the short listed candidates. An appointment means an actual act of posting a person to a particular office.

8. Thus, as per Pension Rules, Old Pension Scheme would not apply to the persons whose recruitment process had

10 918-J-WP-669-2024.doc commenced after 01/11/2005, meaning thereby the Old Pension Scheme shall apply to the persons, who are recruited in the government services prior to 01/11/2005. Appointment does not mean recruitment. Recruitment entails selection process. In the present petitions though the appointments were made after 01/11/2005, the selection process started prior to 01/11/2005 by publishing the advertisement. Admittedly, the advertisements in this batch of petitions were issued prior to 01/11/2005, however, the appointment orders of the petitioners were issued after cutoff date i.e. 01/11/2005 on which date DCPS is made applicable to all government servant as per GR dated 31/10/2005 and Pension Rules. Therefore, the petitioners shall be entitled to be governed by the Old Pension Scheme and General Provident Fund Scheme which were in vogue prior to 01/11/2005. Resultantly, the petitions succeeded." 11.

In view of above, we are of the view that the petitioners are entitled to get the benefit of Old Pension Scheme as their recruitment was started before the cut off date issued by the Government Resolution as indicated in the abovementioned chart. Accordingly, we pass following order :-

ORDER

i] Writ Petition is allowed.

ii] It is declared that the petitioners shall be governed by the provisions of Old Pension Scheme which was in vogue prior to 01/11/2005 and accordingly, necessary steps be taken by the

11 918-J-WP-669-2024.doc respondents to accord benefits of Old Pension Scheme to the petitioners within a period of three months. iii] Rule is made absolute in above terms with no order as to costs.

[PRAVIN S. PATIL, J.] [SMT. M. S. JAWALKAR, J.] Choulwar