Bombay High Court: The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.
Question for Determination
Whether the employee can seek condonation of interruption in service to enhance the pension where the employee has qualifying service for pension?
Factual Background
The petitioners were permanent in service as teachers in Municipal Corporation. However, before permanency, there were interruptions in their service from the date of their first temporary appointments.
The Maharashtra Civil Services (Pension) Rules, 1982 were made applicable to the employees of Aurangabad Municipal Corporation.
Qualifying service is sine qua non for pension.
‘Qualifying service’ means a service that may be considered in determining whether an employee is eligible by the length of service for a pension.
It was noted that as per Rule 30 of the Pension Rules, ten years of qualifying service is a condition precedent for the entitlement of pension. Where the employee retires on superannuation or is declared permanently incapacitated for further service, or voluntarily retires after twenty years of service, the employees’ service is to be counted for qualifying service for pension. The servant, at the time of retirement, shall hold substantively a permanent post.
Condonation of breaks in service for enhancement of pension and other retiral benefits
The appointing authority has a discretionary power to condone the interruption in service provided, the interruptions should have been caused by reasons beyond the control of the Government servant.
In view of the pension scheme, where the employee in substantive service has rendered the service less than ten years, then his previous temporary or officiating service is counted for completing the minimum ten years of service subject to the other rules and his personal service record.
Conjoint Reading Rules 30, 33, 48 and 110 of Pension Rules elucidate that the pension scheme is for the benefit of the employee, and the amount of pension is determined by the length of qualifying service.
High Court opined that, if the service of an employee at his superannuation is less than ten years, then the previous temporary or officiating service needed to be counted for the qualifying service for pension.
Bench also added that, the purpose of condoning the interruptions in service is to make an employee entitled to the pension by adding the days of his service and not to enhance the pension for the reason that the pension is to be calculated and paid on the basis of last salary drawn on the substantive permanent post.
Hence, the petitioners were eligible for pension as per the Pension Rules and not entitled to claim the condonation of the interruption in their services to enhance their pension.
In view of the above, petitions were dismissed. [Muktabai v. State of Maharashtra, 2022 SCC OnLine Bom 887, decided on 22-4-2022]
Advocates before the Court:
Mr. D.R. Irale Patil, Advocate for the Petitioners.
Ms. R.P. Gaur, AGP for respondent/State.
Mr. A.P. Bhandari, Advocate for Respondent Nos.2 &