High Court of Bombay

Umabai and Ors. Vs. The State of Maharashtra and Ors.

MANU/MH/1765/2019

04.07.2019

Service

Executive Instructions cannot override statutory rules

The Petitioners assail the Government Resolution dated 4th October, 1983 and orders issued by Respondent Nos. 1 and 3 denying the pension and pensionary benefits to Petitioners. The Petitioners are denied the pensionary benefits on the ground that they did not possess the qualification of trained teacher. Under the Government Resolution dated 04th October, 1983, the Government took a decision that, assistant teachers appointed on or before 1972, not possessing D. Ed. qualification, but possessing only S.S.C. qualification shall be deemed to be trained teachers. The petitioners are appointed after the year 1972.

The learned counsel for Petitioners submit that, providing the cut off date i.e. teachers appointed prior to 1st July, 1972 and not possessing qualification of D. Ed. shall be treated as deemed trained teachers thereby leaving out the teachers appointed after 1st July, 1972 is illegal and erroneous.

It has been time and again reiterated by the Apex Court that, pension is neither a bounty, nor matter of grace depending upon the sweet will of the employer and that it creates vested right. Pension is not ex-gratia payment, but it is a payment for the past service rendered. It is a secured health and support to an ex-employee who is no more in a position to work and earn after devoting his prime time of life to the service of the State.

The Maharashtra Civil Services (Pension) Rules, 1982 nowhere provide that if a person is working on substantive post and is regularly appointed, but does not possess the qualification of a trained teacher is not eligible for pension. The Executive Instructions cannot override the statutory rules.

It is not disputed by Respondents that, the Petitioners were duly appointed on a substantive and sanctioned posts. They have completed the minimum period of qualifying service. In fact, most of the Petitioners have completed more than 30 years of service and honourably retired on attaining age of superannuation. They were treated as regular employees, were paid the regular salary, their appointments are approved as per their qualification. No rule exists in the Pension Rules that, would deny the Petitioners right to claim pension. The posts these Petitioners were holding, were never declared to be non pensionable or that the posts created by it shall not be qualifying service for pension. In absence of any rules, denying the right to get pension to the petitioners will not be permissible.

The Government Resolution dated 4th October, 1983 prescribing that those appointed prior to the cut off date i.e. 1st July, 1972 and possessing only S.S.C. qualification would be deemed trained teachers not those appointed till the date of Government resolution is unreasonable classification.

The Petitioners would be entitled for pension and pensionary benefits. The respondents shall consider case of the petitioners for pensionary benefits and shall not refuse to grant pensionary benefits to the petitioners on the ground that they did not possess the necessary qualification.

Tags : Pensionary benefits Denial Legality

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