Judgment:
C.K. Thakker, C.J.
1. Rule. Mr. V. P. Malvankar, Assistant Government Pleader, appears and waives service of rule on behalf of the respondents. In the facts and circumstances, the matter is taken up for final hearing today.
2. This petition is filed by the petitioner for quashing and setting aside an order dated September 29, 2001 directing the respondents to extend benefits of past service to the petitioner and consider all retiral benefits on that basis.
3. It is not in dispute by and between the parties that the petitioner retired as a Director of Arts. He was serving with the Government from December 5, 1994 upto May 31, 1999. It is, however, his case that from August 27, 1967 to December 4, 1994, he had worked in Abhinav Kala Mahavidyalay, an art institution. It was a private but aided art institution.
4. The service of the petitioner in the said institution had not been taken into account and hence, he was not held entitled to retiral benefits, including pensionary benefits on that basis. He has, therefore, approached this Court.
5. We have heard the learned counsel for the parties.
6. The learned counsel for the petitioner contended that the prayer of the petitioner was rejected by the authorities on the ground that since between 1967 and 1994, he had served in a private aided art institution, he would not be entitled to the benefits as per Government Resolution, Higher and Technical Education Department, dated August 21, 1995.
7. The petitioner relied on an instance of Mr. Bele, Lecturer in Sir J. J. School of Arts, who had also rendered services in non-government secondary school, and his services were considered for pensionary benefits. The contention of the learned counsel for the petitioner is that his case is similar to Bele, and hence, the petitioner is also entitled to similar treatment and pensionary benefits.
8. An affidavit-in-reply is filed by the Director of Art, Maharashtra. In paragraph 1, it was stated that the petitioner had not put in minimum service of ten years to be eligible for pension as per the Maharashtra Civil Services (Pension) Rules.
9. In paragraph 3, it was stated that the case of Bele was different, inasmuch as he had rendered earlier service in non-government secondary school, which had been counted for the purpose of pensionary benefits as per Government Resolution, dated August 21, 1995. The case of the petitioner was different, and as his earlier service was not in a 'secondary school', but in an aided art institution, he was not held eligible. A conscious decision was taken by the Government not to consider past services rendered by an employee in aided art institution.
10. A similar stand is taken at the time of hearing by the learned Assistant Government Pleader. Our attention was also invited to the Resolution passed by the Government.
11. The question for our consideration, therefore, is whether the petitioner is eligible for pension and whether his case is similar to that of Bele.
12. The learned counsel for the petitioner, in this connection, relied on the definition of 'school' in the Maharashtra Employees of Private Schools Regulation Act, 1977 (hereinafter referred to as 'the Act'). Sub-section (24) of Section 2 defines 'school', and reads as under:--
' 'School' means a primary school, secondary school, higher secondary school, Junior college of education or any other institution by whatever name called, including technical, vocational or art institution or part of any such school, college or institution, which imparts general, technical, vocational, art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level.'
13. The counsel conceded that the Government Resolution does not include an employee of 'art institution', but when the legislature has defined 'school', and in its inclusive part, 'art institution' was expressly referred to, it is not open to the State Government to ignore the said class and deprive it of pensionary benefits. To that extent, therefore, the action of the authorities cannot be said to be legal or valid. 'School', thus, would include an 'art institution'. All benefits, which are otherwise available to employees, who had served in any aided private school, must also be made available to employees of 'art institution' as well.
14. In our opinion, therefore, the petition deserves to be allowed and is accordingly, allowed. The order passed by the State Government is declared illegal and is hereby set aside. It is directed that the respondents will consider past services rendered by the petitioner in Mahavidyalaya - 'art institution' - as defined in Sub-section (24) of Section 2 of the Act and extend all benefits in accordance with law. Such benefits will be calculated and paid to the petitioner as expeditiously as possible, preferably within three months from today.
15. Rule is made absolute in the above terms. In the facts and circumstances, however, there shall be no order as to costs.
16. Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.