R.M. Lod that tha, J.
1. The Division Bench, by the order dated 27th April, 2006, opined that the Writ Petition should be referred to larger Bench. This is what the Division Bench said in its order dated 27th April, 2006 :
21. From what we have noted above, it is seen that four judgments rendered by the learned single Judges took the view that part-timers working in two colleges of two different managements were entitled to receive salary equivalent to a full time lecturer as also all retirement benefits. As against that, a Division Bench has declined to give the same benefits in the order rejecting Writ Petition No. 1355 of 2002 at the admission stage. The order passed by the Division Bench is a short order which refers to the Government Resolution dated 21-7-1983 and having looked into it, has declined to give the benefits as sought by a part-time lecturer working in two colleges. It has however so transpired that the judgments rendered by the learned single Judge in four matters referred to above taking a contrary view do not appear to have been brought to the notice of the Division Bench. We are told that now the appointments of part-timers are no longer made as far as possible and probably different considerations will govern their service conditions. However, as far as the petitioner is concerned, he has worked much earlier as a part-timer in two different colleges and is claiming the benefits for his services rendered in the N. M. College from 16-7-1977 onwards. In his case, the question will arise as to whether he will be governed by the rules that operated at that time and whether he should get the benefits of the judgments rendered by the learned single Judges interpreting the rules as they stood at that time.
22. However, judicial discipline requires us not to disregard the order of another Division Bench, though passed at an admission stage. At the same time, we are of the opinion that in view of the factors which are noted above, it is perhaps possible to take a view different from the one which the Division Bench has taken in Writ Petition No. 1355 of 2002. However, as we are sitting in Division Bench, it is not possible for us to take that view. We are, therefore, of the opinion that the matter should be referred to a larger Bench which may examine the issue and decide this position after considering the views rendered by the learned single Judges in four judgments referred to above at the final hearing and the view taken by the Division Bench in a subsequent matter at the admission stage.
2. Hon'ble The Chief Justice has constituted the present Bench for consideration of the matter referred to by the Division Bench.
3. Mr. C.U. Singh, the senior counsel for the petitioner, at the outset, prayed for leave to amend the Writ Petition. He also submitted that the entire Writ Petition may not be considered by us. He would submit that the Full Bench may consider the question of law only. According to him the question of law that needs to be considered by the Full Bench is : whether the intent of the Government of Maharashtra in issuing the Circular dated 21st July, 1983, was to exclude the part-time teachers who, for all intents and purposes, are full-time teachers and also otherwise get the benefits of salary of full-time teachers.
4. We find ourselves in agreement with the submission of the senior counsel for the petitioner that the entire Writ Petition need not be heard by us. We confine ourselves to the question of law suggested the senior counsel.
5. The facts in which the aforesaid question arises may be noticed by us briefly.
6. The petitioner has worked as part-time lecturer of Hindi in Elphinstone College from 1st July, 1970 to 30th July, 2002. He also worked as part-time lecturer of Hindi in different institutions, namely, in the senior college of Anjuman College from 16th July, 1970 to 15th June, 1972; Narsee Monjee College (senior college) from 21st August, 1972 to 16th June, 1977 and Narsee Monjee (junior college) from 16th June, 1977 to 18th June, 1979. The petitioner claims to have worked as full-time lecturer in junior college of Narsee Monjee from 13th August, 1981 to 20th June, 1983. His services in the junior college of Narsee Monjee were terminated on 20th June, 1983. The petitioner challenged the order of termination dated 20th June, 1983 by filing an Appeal to the School Tribunal. The said Appeal came to be dismissed as not maintainable. The petitioner approached this Court by filing Writ Petition No. 1699 of 1985 which was allowed by the learned single Judge by the order dated 19th February, 1987 and the petitioner was reinstated with effect from 20th June, 1983. In the Appeal challenging the order dated 19th February, 1987, the Division Bench by its judgment and order dated 12th April, 1990 set aside the order of the learned single Judge and it was held that the petitioner was not entitled to the post of full-time lecturer, rather, he was entitled to the post of part-time lecturer. Admittedly the petitioner held part time post of lecturer from 1st June, 1990 upto 31st December, 2002.
7. Factually thus, the petitioner worked as part-time lecturer in Elphinstone College from 1st July, 1970 to 30th April, 2002 and he also worked as part-time lecturer in different institutions from time to time and lastly in Narsee Monjee College (junior college) from 1st June, 1990 until 31st December, 2002.
8. On 31st March, 1970, the Circular was issued by the University of Bombay in respect of emoluments, inter alia, of the part-time teachers. It reads thus:
UNIVERSITY OF BOMBAY
No. Aff/Recog/174 of 1970
CIRCULAR
In supersession of this office circulars No. Aff/Recog/405 dated 13th July, 1968 and No. Aff/Recog/864 dated 30th May, 1969 on the subject, the principals of constituent colleges in Arts (including education), Science and Commerce, are hereby informed that the Senate at their meeting held on 13th March, 1970 laid down that with retrospective effect from 1st November, 1969, the emoluments of part-time teachers, part-time demonstrator and part-time tutors shall be as under:
(i) the total emoluments of a part-time teacher in an Arts (including education), a Science or a Commerce College shall be half of the pay plus half of the Dearness Allowance admissible on the pay of a full-time teacher at every stage of the grade in the corresponding category, provided that in the case of a person who works as a part-time teacher in two colleges irrespective of whether the two colleges are conducted by the same managing body/society or not, the total emoluments of the person in the two colleges taken together shall be the same as total emoluments of a full-time teacher in a college.
(ii) the total emoluments of a part-time Demonstrator as also the total emoluments of a part-time Tutor in an arts (including Education), a Science or a Commerce College shall be half of the pay plus half of the Dearness Allowance admissible on the pay of a full-time Demonstrator or a full-time Tutor as the case may be, at every stage of the grade. Bombay, Sd/- T. V. Chidambaram31st March, 1970 University Registrar
9. On 1st June, 1981, the Government Resolution was issued, amongst others, providing for workload of full-time college teachers and the workload of part-time college teachers. The relevant portion thereof is as follows:
1. Work-load of Full Time College Teachers
2. (e) - In a multi-teacher Department, the work-load should be distributed on the basis of 17 lectures plus three tutorials per week per teacher. If the last teacher has a work-load of less than 12 periods, then alone he should be regarded as a part-timer.
II. Workload of Part-Time College Teachers
5. Orders have already been issued prescribing a regular pay scale for part-time teachers, which is equivalent to half the pay scale applicable to full-time teachers. It is hereby clarified that the maximum workload of a part-time teacher in college should be more than half of the workload of full-time teacher viz. 11 periods of 45 minutes, subject to a teaching work of minimum 8 periods of 45 minutes per week. This would mean a part-time teacher entitled to the revised time scale will be engaging minimum of 8 and maximum of 11 periods per week.
10. Having noticed the Circular issued by the University of Bombay on 31st March, 1970 and the relevant portion of the Government Resolution dated 1st June, 1981, we may now turn to the Government Resolution dated 2Ist July, 1983 which is the bone of contention in the matter. We do not deem it necessary to reproduce the entire Resolution, but part thereof to the extent it is necessary and relevant may be reproduced by us. The relevant portion reads thus:
The question of application of Pension, Gratuity and other retirement benefits to the teaching and the non-teaching staff in the non-Government Colleges and the non-Agricultural Universities was under the consideration of Government for some time past. Government is now pleased to direct that the Pension, Gratuity and other retirement benefits admissible to the Maharashtra State Government Servants under The Maharashtra Civil Services (Pension) Rules, 1982, including the Family Pension, 1964 contained therein should be made applicable to the full time approved teaching and the non-teaching staff in recognised aided non-Government Arts, Science, Commerce and Education Colleges and the non-Agricultural Universities in the State who retired or retire on or after 1st October, 1982.
2. (1) For the purpose of this scheme.
(a) A non-Government College includes the Arts, Science, Commerce and Education Colleges managed by a Private body, recognised by the Department of Education and affiliated to a non-Agricultural University in the State and which receive grant-in-aid from a competent authority. The colleges managed by corporate bodies stand excluded from the purview of this scheme.
(b) An employee means a full-time Professor, Reader, Lecturer, Demonstrator, Tutor, Method Master, Registrar, Deputy Registrar, Superintendent, Head Clerk, Sr. Clerk, Jr. Clerk, Peons and other categories as are working in the non-Government Colleges, as well as Universities in the pattern approved by the State Government and included in the Salary Payment Scheme operated through the State Government....
11. At this stage we may also refer to the judgments of the learned single Judge noticed by the Division Bench in the Reference order.
12. In the case of Bombay University College Teachers Union and Ors. v. The State of Maharashtra and Ors. Writ Petition No. 335 of 1984 decided on 23rd January, 1985, the question before the learned single Judge was for re-fixation of the third petitioner's salary in the light of the Government Resolution dated 17th September, 1982. The 17th September, 1982 Government Resolution as reproduced by the learned single Judge in his order reads thus :
A teacher/Demonstrator/Tutor leaving one college/University and joining another college/University shall be entitled to annual increment on completion of one year's service in the old as well as the new post. In other words, the one year's period for increment should be calculated on the basis of the total service put in by teacher in the new post as well as the old post taken together. The increment should be mentioned after such a teacher completed one year's service calculated in this manner, on the same stage of his time scale of pay. If there is a break in service while joining new post, such period may not be counted for purpose of increment, unless it is condoned by the University.
13. The learned single Judge considered the aforesaid Government Resolution dated 17th September, 1982, the relevant provisions of the Bombay University Act, 1974 and the statutes framed under the Bombay University Act, 1974 and held that the expression 'teacher' occurring in the Government Resolution dated 17th September, 1982 would include part-time teacher and that he was eligible for fixation of his basic salary accordingly. In other words, the single Judge held that the Government Resolution dated 17th September, 1982 was applicable to a part-time teacher.
14. We are unable to find any relevance of the aforenoted judgment in the case of Bombay University College Teachers Union for consideration of the issue involved before us. In the Resolution dated 17th September, 1982, the expression 'teacher' is not defined and the learned single Judge referred to the definition of 'teacher' occurring in Section 2(30) of the Bombay University Act, 1974 which included a teacher serving full-time or part-time or in honorary capacity who are designated to be teachers by the statute made on the recommendation of the Academic Council. The Government Resolution dated 21st July, 1983 provides that an employee means a full-time Professor, Reader, Lecturer, Demonstrator, Tutor, Method Master, Registrar, Deputy Registrar, Superintendent, Head Clerk, Senior Clerk, Junior Clerk, Peons etc. The definition of 'teacher' in Section 2(30) of the Bombay University Act, 1974 cannot be imported in the Government Resolution dated 21st July, 1983 when the term 'employee' is defined in the Resolution itself which provides for retiral benefits to the full-time approved teaching staff in the recognised aided non-Government Arts, Science Commerce and Education Colleges.
15. The second case referred to in the order of Reference is in the matter Prof. C.S. Bhave v. State of Maharashtra and Ors. Writ Petition No. 1073 of 1986. In the case of Prof. C. S. Bhave, the learned single Judge relied upon the decision given by the other learned single Judge in the present petitioner's own case decided on 19th September, 1987. It is pertinent to notice that the said decision dated 19th February, 1987 has been set aside by the Division Bench by the order dated April 12, 1990 in Appeal No. 843 of 1987. Obviously, the judgment of the learned single Judge dated 21st June, 1988 being based on petitioner's own case in Writ Petition No. 1699 of 1986 decided by the learned single Judge which has been set aside by the Division Bench cannot be said to have any legal efficacy. Even otherwise, the single Judge in the case of Prof. C. S. Bhave relied upon the definition of 'teacher' in Section 2(30) of the Bombay University Act, 1974 and the judgment of the learned single Judge of this Court in the case of Bombay University College Teachers Union (supra) which, we have already indicated, has no application for decision in the present case and consequently, the judgment of the learned single Judge in the case of Prof. C. S. Bhave also cannot be applied.
16. The third judgment of the learned single Judge which is referred to in the order of Reference is in the case of Ramkrishna Purshottam Dalai v. State of Maharashtra and Ors. Writ Petition No. 1629 of 1985 decided on 20th July, 1988. In that case, the learned single Judge referred to and relied upon Government Resolution dated 27th April, 1981 which directed that 'all college teachers (lecturers) who were in service as on 7th February, 1975 in clear vacancies (as distinct from leave, tenure, deputation, etc. vacancies) should be held eligible for protection in the matter of their status as well as eligibility to revised UGC recommended pay scales of a college lecturer viz. 700-1600 and all benefits accruing from such protection.' This Resolution was held applicable to the petitioner therein as he was confirmed in the service in both the colleges prior to 7th February, 1975 and he had also completed two years service in both the colleges in clear vacancies as on 7th February, 1975. The learned single Judge held that on both these counts his status and eligibility for revised University Grants Commission recommended scales are protected. The learned single Judge relied upon a previous judgment in the case of Prof. C. S. Bhave (supra) in holding that there was nothing in the Government Resolution of 27th April, 1981 that prevented a part-time teacher in two different colleges drawing the salary of a full-time teacher on 7th February, 1975 from being given the benefit of the Resolution dated 27th April, 1981. Firstly, we are not concerned with the applicability of the Government Resolution dated 27th April, 1981 in the present case and, therefore, the judgment of the learned single Judge in Ramkrishna Purshottam Dalai cannot be applied. More importantly, the Government Resolution dated 21st July, 1983 with which we are not concerned, is distinct and different in contents and purpose from the Government Resolution dated 27th April, 1981. Besides that, we have already observed that the judgment in the case of C.S. Bhave upon which the learned single Judge has relied while deciding the case of Ramkrishna Purshottam Dalai has no application. For all these reasons Ramkrishna Purshottam Dalai does not help the case of the petitioner for consideration of the question afore-referred.
17. The fourth and the last judgment referred to by the Division Bench in the Reference order is the judgment in the case of Gajanan Kashinath Raote v. State of Maharashtra and Ors. Writ Petition No. 1091 of 1991 decided on 10th August, 1994. In that case, the principal question before the learned single Judge was whether the petitioner was confirmed teacher with effect from 20th July, 1974 and, if so. whether he was entitled to the benefit of pay scale prevailing on 20th July, 1974. An ancillary question involved therein was whether the petitioner was entitled to the benefit of Pension-cum-Gratuity Scheme framed by the Government on the ground that he was confirmed teacher with effect from 20th July, 1974. In that case the learned single Judge proceeded on the basis of the finding recorded by the College Tribunal that the petitioner was a full-time teacher and found as a matter of fact that the petitioner was a full-time lecturer under Clause (c) of the Government Resolution dated 21st July, 1983. Based on that the learned single Judge held that he was entitled to Pension-cum-Gratuity under the various Government Resolutions. In the present case, admittedly, the petitioner was only part-time lecturer in Elphinstone College from 1st July, 1970 to 30th April, 2002 and also in part-time service of various institutions from time to time, particularly he worked continuously as part-time lecturer in N. M. College from 1st June, 1990 to 31st December, 2002. His status as full-time teacher has not been accepted by the Division Bench in its judgment dated 12th April, 1990. The Division Bench has categorically held in paragraph 8 of the judgment dated 12th April, 1990 that the petitioner was not entitled to the post of full-time lecturer; he is entitled to be posted as part-time lecturer. In the backdrop of this position, the judgment of the learned single Judge in the case of Gajanan Kashinath Raote is also of no help to the petitioner.
18. What has been done by the Circular issued by the University of Bombay on 31st March, 1970, inter alia, is that in the case of a person who works as a part-time teacher in two colleges conducted by different Managing Bodies or society, such person is held to be entitled to the total emoluments of full-time teacher in a college by taking together the total emoluments of that person in the two colleges. In other words, the total emoluments of the part time teacher in the two colleges taken together shall be total emoluments of full-lime teacher in a college. The Government Resolution dated 1st June, 1981, inter alia, provides for workload of full-time college teachers and part-time college teachers and it notices that regular pay-scale for part-time teachers has been prescribed which is equivalent to half the pay-scale applicable to full-time teachers. The Government Resolution dated 21st July, 1983 extends Pension-cum-Gratuity Scheme to the teaching and non-teaching staff of the non-Agricultural Universities and the affiliated non-Government colleges. For the purpose of this Scheme, an employee means a full-time Professor, Reader, Lecturer, Demonstrator, Tutor, Method Master, Registrar, Deputy Registrar, Superintendent, Head Clerk, Senior Clerk, Junior Clerk, Peons etc. The petitioner was a part-time lecturer in two colleges conducted by two different Management. Part-time lecturer in two colleges cannot be said to be covered by the Scheme and from the definition of employee provided therein, it does not seem that part-time teacher was intended to be covered. Merely because the part-time teacher working in two colleges is entitled to the emoluments of full-time teacher by virtue of the Circular issued by the University of Mumbai on 31st March, 1970, in our view, such part-time teacher cannot be held to be full-time lecturer for the purpose of the Government Resolution dated 21st July, 1983. We have already noticed above that in the petitioner's own case it has been specifically held by the Division Bench that the petitioner was not entitled to the post of full-time lecturer. We are unable to hold that the petitioner is covered by the Government Resolution dated 21st July, 1983.
19. Mr. C.U. Singh, the senior counsel for the petitioner submitted that if the Government Resolution dated 21st July, 1983, is to be read to be applicable to the former full-time teachers only then the said Circular is unconstitutional and void. He relied upon the judgment of the Supreme Court in the case of D.S. Nakara and Ors. v. Union of India : (1983)ILLJ104SC He also submitted that when the Court looks at the classification, it must consider the purpose.
20. It is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. However, the right of pension is always subject to the rules. It is not inherent in the employment. Though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. We have already referred to the Government Resolution dated 21st July, 1983 and held that the said Scheme is only applicable to the employees covered therein. A part-time teacher, unfortunately, is not covered by the said Scheme and, therefore, not entitled.
21. The part-time lecturers form a class by themselves and the said classification cannot be said to be unconstitutional or bad in law. Nakara's case has been explained by the Supreme Court in Krishna v. Union of India : (1991)ILLJ191SC and also in the case of A.I.R. B.R.O.A. v. Union of India : AIR1992SC767 and it was held that Nakara's case did not lay down that all retirees formed one class and no further classification was permissible. As a matter of fact, there is no challenge to the legality and validity of the Government Resolution dated 21st July, 1983. There is no direct or indirect ground set out in the entire writ petition is this regard.
22. Our attention was invited to the judgment in the case of Vaidya Bharti P. Shah v. State of Maharashtra, 1991 L.I.C. 907, wherein the learned single Judge heldhe part-time employees in Government Controlled Medical College having put in 12 to 34 years of service cannot be denied benefits available to permanent employees in respect of service conditions such as promotions, pay-scales, dearness allowance etc. applicable to other part-time permanent employees in Arts, Science, Commerce and Education. The question before the learned single Judge in the case of Vaidya Bharati P. Shah was concerning termination of part-time employees in the Government Medical College who had put in 12 to 34 years of service. The learned single Judge held that attempt to terminate their services to accommodate full time teachers in view of policy decision to that effect and refusal to follow rule of equal pay for equal work would be violative of Articles 14, 16 and 311 of the Constitution. It is pertinent to note that in the appeal arising from the said judgment being Appeal No. 1154 of 1990 and other connected matters decided by the Division Bench on February 5, 1993, the Division Bench clarified that the decision of the learned single Judge shall not operate as a precedent hereafter. What more needs to be said about the judgment of the learned single Judge in Vaidya Bharati P. Shah in this view of the matter.
23. In a brief order passed by the Division Bench in C. A. No. 1070 of 1999 an observation has been made that the issue as to whether the part-time service could be counted for the purpose of pension is concluded by the judgment of the learned single Judge (Kantharia, J.) of this Court. If the judgment of Kantharia, J. referred to in the short order is the judgment passed by him in the case of Vaidya Bharati P. Shall, suffice it to say that in the case of Vaidya Bharati P. Shah, the issue of pension was not at all involved. Besides that, the Division Bench in the judgment dated February 5, 1993 in Appeal No. 1154 of 1990 and other connected matters has already held that the said judgment shall not operate as a precedent.
24. The Supreme Court in Civil Appeal No. 5778-5779 of 2000 State of Maharashtra and Ors. v. Vaidya Vasudev V. Vyas said thus :
The learned Counsel for the respondent urged that the issue as to whether the part-time service could be counted for the purpose of pension is concluded by the judgment of the learned single Judge. According to him, the said judgment was affirmed by the Division Bench of the High Court and S.L.P. preferred against the order of the Division Bench was also dismissed by this Court. The learned Counsel for the appellant sought to distinguish the said judgment. In these circumstances, we leave it open to both the sides to urge all the contentions available to them in the main writ petition pending before the High Court including the question whether part-time service could be counted for the purpose of pension is already concluded by the earlier judgment or not.
25. The aforesaid observation of the Supreme Court would show that there is no concluded judgment of the learned single Judge holding that part-time service could be counted for the purpose of pension. It was clarified in that order that this aspect is needed to be considered at the time of hearing of the main writ petitions.
26. In what we have discussed above, we have no hesitation in holding that part-time lecturers are not covered by the Government Resolution dated 21st July, 1983 and, accordingly, the petitioner is not entitled to the benefit of the Pension-cum-gratuity Scheme provided therein having retired as part-time lecturer in two institutions managed by two different Managements.
27. Let the writ petition be now placed for hearing and disposal before the Division Bench accordingly.