A.M. Dhavale JUDGMENT
S.V. Gangapurwala, J.
1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The petitioners assail the Government Resolution dated 04.10.1983 and the letters dated 02.03.2007 and 09.03.2010, so also order dated 19th July, 2014 issued by respondent Nos. 1 and 3 denying the pension and pensionary benefits to petitioners.
3. All these petitioners except petitioner No. 5 are appointed prior to the impugned Government Resolution dated 04.10.1983. All the petitioners possess S.S.C. qualification, however, did not possess D. Ed. qualification. All these petitioners retired on attaining age of superannuation. These 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.
4. The learned counsel for petitioners submit that, providing the cut off date i.e. teachers appointed prior to 01.07.1972 and not possessing qualification of D. Ed. shall be treated as deemed trained teachers thereby leaving out the teachers appointed after 01.07.1972 is illegal and erroneous. The said cut off date could not have been provided. The cut off date 01.07.1972 provided in the impugned Government Resolution is unreasonable, arbitrary and illegal. The learned counsel rely on the judgment of the Apex Court in a case of D.S. Nakara and others Vs. Union of India reported in MANU/SC/0237/1982 : (1983) 1 SCC 305. The learned counsel also rely on the judgment of the Division Bench of this Court in a case of Smt. Gokula Vilas Patil Vs. The Education Officer (Primary) and others reported in Writ Petition No. 5110 of 2012 decided on 13.12.2017. According to the learned counsel the Maharashtra Civil Services (Pension) Rules 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. The learned counsel rely on the judgment of the Apex Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another reported in MANU/SC/0801/2013 : (2013) 12 SCC 210 and the judgment of this Court in Writ Petition No. 3680 of 2004 decided on 25.02.2005 Nishad Sadashiv Pawar and others Vs. Dnyansadhana College and others and judgment of the Apex Court in the case of P. Dulsi Das and others Vs. Govt. of A.P. and others reported in MANU/SC/0899/2002 : 2003 AIR (SC) 43. According to the learned counsel, the pension is not a bounty or concession, but the property and a right. The learned counsel rely on the judgment of the Apex Court in the case of Kerala State Road Transport Corporation Vs. K.O. Varghese and others reported in MANU/SC/0325/2003 : (2003) 12 SCC 293. Pension is fundamental right within the meaning of Article 21 of the Constitution of India. Reliance is placed by the learned counsel for petitioners on the judgment of the Apex Court in a case of Salabuddin Mohamed Yunus Vs. State of Andhra Pradesh reported in reporte........