Milind N. Jadhav, J.

1. Rule. Rule is made returnable forthwith. With the consent of the learned counsel appearing for the parties, the petition is taken up for final hearing and disposal.

2. There are three petitioners before this Court in the present petition. All of them have retired upon attaining the age of superannuation. Petitioner Nos. 1 and 2 were appointed in the year 1971, whereas Petitioner No. 3 was appointed in the year 1980. The petitioners challenge communication dated 31st October 2023 addressed by Respondent No.3 rejecting their claim for Pension-Cum-Gratuity Scheme eligibility on the ground fo they having failed to deposit the management’s share/contribution and if so granted it would amount to a loss for the State Exchequer. By the said communication, Respondent No. 3 has, despite the specific directions issued by this Court in its order dated 12th October 2023 passed in Writ Petition No. 1530 of 2010, refused to extend the benefit of the Pension-cum-Gratuity Scheme to the petitioners, though they are otherwise entitled to the same.

3. Mr. Pungliya, learned counsel appearing for the petitioners, submitted that the petitioners' case is squarely covered by Clause 3 of the Government Resolution dated 23rd June 2015. He submitted that although the petitioners had initially opted to continue under the Contributory Provident Fund (CPF) Scheme, they subsequently, by their respective letters dated 4th February 2006, exercised their option to withdraw from the CPF Scheme and to be governed by the Pension-cum-Gratuity Scheme.

4. Briefly stated, Petitioner No. 1 joined as a Lecturer in Janata Shikshan Sanstha's Arts and Commerce College, Wai, District Satara, on 15th June 1971. He was subsequently promoted as the Principal of the said College and retired on 31st May 2008 upon attaining the age of superannuation. Petitioner No. 2 joined the said College as a Lecturer on 2nd August 1971 and retired on 31st October 2007 upon superannuation. Petitioner No. 3 joined the said College as a Lecturer on 1st July 1980 and retired as In-charge Principal on 31st July 2016 upon attaining the age of superannuation.

5. The said College is affiliated to Shivaji University, Kolhapur, and receives 100% salary grants from the State Exchequer. The service conditions of its teaching and non-teaching employees, including the petitioners, are governed by the provisions of the Maharashtra Universities Act, 1994, and the Rules and Regulations framed thereunder.

6. Prior to 1st October 1982, the retirement benefits of teaching and non-teaching employees serving in private aided affiliated colleges were governed by the Contributory Provident Fund (CPF) Scheme, under which both the management and the employee were required to contribute 8.33% of the employee's monthly salary. Upon retirement, the accumulated contribution, together with the applicable interest, became payable to the employee.

7. Subsequently, by Government Resolution dated 21st July 1983, the State Government introduced Pension-cum-Gratuity Scheme for teaching as well as non-teaching employees. The said Scheme was further clarified by Government Resolutions dated 20th June 1984 and 15th December 1984. The said scheme prima facie, is applicable to the petitioners' case. However, a question arose regarding the applicability of the Pension-cum-Gratuity Scheme to those employees who were in service on 1st October 1982 but had either expired or were otherwise unable to exercise the option within the prescribed period for switching over from the Contributory Provident Fund (CPF) Scheme should be given the benefit.

8. In the case of the petitioners, by separate letters dated 4th February 2006, each of the petitioners informed the respondent authorities that although they had opted for the Contributory Provident Fund (CPF) Scheme in March 1984, the Pension-cum-Gratuity Scheme had subsequently been made compulsory for teachers by the Resolution dated 10th August 1994, and, therefore, they requested that the said Scheme be made applicable to them.

9. It is the grievance of the petitioners that Respondent No. 3, by communication dated 19th December 2006 addressed to the Principal of the College, rejected their request for extension of the benefits under the Pension-cum-Gratuity Scheme. Thereafter, the petitioners approached the Director of Higher Education, Kolhapur, seeking clarification regarding the applicability of the said Scheme. They were informed that as many as 31 similarly situated teachers from the same region, particularly from District Satara and District Solapur, had already been granted the benefit of the said Scheme. This according to Petitioners amounted to hostile discrimination.

10. The petitioners, therefore, approached the Director of Higher Education and Technical Education on 11th June 2008, requesting him to direct the Joint Director, Kolhapur Region, to consider their request for extension of the Pension-cum-Gratuity Scheme.

11. It is pertinent to note that the Government Resolution dated 21st July 1983 was also challenged by certain employees who had retired prior to 1st October 1982 in Writ Petition No. 2632 of 1985. The said writ petition was allowed by this Court, and the challenge thereto before the Hon'ble Supreme Court came to be dismissed. Consequently, even those employees who had retired prior to 1st October 1982 and had received benefits under the Contributory Provident Fund (CPF) Scheme were held entitled to the benefits of the Pension-cum-Gratuity Scheme, subject to refund of the amounts received under the CPF Scheme.

12. Learned counsel submitted that several similarly situated teachers have been extended the benefit of the Pension-cum-Gratuity Scheme upon refund of the amounts received under the Contributory Provident Fund (CPF) Scheme, whereas the petitioners alone have been denied similar relief. He further submitted that the petitioners had earlier approached this Court by filing Writ Petition No. 1530 of 2010, wherein this Court, by order dated 12th October 2023, set aside the communication dated 19th December 2006 issued by Respondent No. 3.

13. Despite the aforesaid order, Respondent No. 3, by the impugned communication dated 31st October 2023, once again rejected the petitioners' claim on the grounds that they had failed to deposit the management's share of the contribution received under the Contributory Provident Fund (CPF) Scheme and that extending the benefit of the Pension-cum-Gratuity Scheme to the petitioners would result in financial loss to the State Exchequer.

14. We have considered the submissions advanced by Mr. Pungliya, learned counsel appearing for the petitioners, Mr. Avinash Naik, learned AGP appearing for Respondent Nos. 1 to 3, and Mr. Pravin Gaikwad, learned counsel appearing for Respondent Nos. 4 and 5. We have also perused the material placed on record.

15. Prima facie, we find that the second ground assigned by Respondent No. 3 for refusing to extend the benefit of the Pension-cum-Gratuity Scheme to the petitioners is wholly untenable. The petitioners are entitled to the benefit of a welfare scheme framed by the State Government, and they cannot be discriminated against when similarly situated employees have already been extended the benefit of the said Scheme.

16. The record reveals that several similarly situated teachers, who had earlier opted for the Pension-cum-Gratuity Scheme, were granted the benefit thereof upon refunding the amounts received by them under the Contributory Provident Fund (CPF) Scheme. In order to maintain parity and ensure equal treatment, the petitioners cannot be denied the same benefit.

17. The contention that extension of the Pension-cum-Gratuity Scheme to the petitioners would result in financial loss to the State Exchequer is equally unsustainable. The State Government, after considering all relevant aspects, has already taken a conscious policy decision by issuing the Government Resolution dated 23rd June 2015, whereby the benefit of the Pension-cum-Gratuity Scheme has been extended to employees who were appointed prior to the cut-off date and had exercised the requisite option. Respondent No. 3 cannot act contrary to the said policy decision and deprive the petitioners of their legitimate entitlement on the ground that implementation of the Scheme would entail financial implications for the State.

18. Insofar as the first ground is concerned, if the petitioners have received any amount under the Contributory Provident Fund (CPF) Scheme, and if, under the applicable Rules or Government Resolutions, they are required to refund the same as a condition precedent for availing the benefit of the Pension-cum-Gratuity Scheme, such refund shall necessarily be made in accordance with law. We are, however, not expressing any final opinion as to whether the petitioners would be entitled to adjustment or set-off of the said amount. If such adjustment is permissible under the applicable Rules or Government policy, the respondents shall consider the same in accordance with law.

19. Having regard to the facts and circumstances of the case, particularly the dates of appointment of the petitioners and their specific request for being governed by the Pension-cum-Gratuity Scheme, we direct the respondents to accept the petitioners' request, subject to compliance with the applicable statutory requirements. However, the contention of the petitioners that they are not liable to refund or account for the management's share of the contribution received under the Contributory Provident Fund (CPF) Scheme cannot be accepted as a matter of course. Nevertheless, if it is legally permissible to grant adjustment or set-off of the amount already received by the petitioners towards the management's contribution, the respondents shall extend such benefit in accordance with law.

20. We accordingly direct the respondents to undertake the exercise of extending the benefit of the Pension-cum-Gratuity Scheme to all the three petitioners, recalculate the pensionary and other consequential retiral benefits payable to them, and complete the entire exercise as expeditiously as possible and, in any event, within a period of four months from today.

21. In the event the petitioners are required to refund the management's share of the amount received by them under the Contributory Provident Fund (CPF) Scheme, and they are willing to do so, such amount shall be deposited within two weeks from the date on which the respondents communicate the amount payable after this order is uploaded.

22. If determination of the refundable amount requires issuance of a challan or any other demand notice, the respondents shall issue the same within two weeks from today so as to enable the petitioners to deposit the requisite amount.

23. Upon such compliance, the respondents shall ensure that the Pension-cum-Gratuity Scheme is made applicable to the petitioners and that all consequential retiral benefits admissible thereunder are calculated and disbursed to the petitioners in accordance with law.

24. The aforesaid exercise shall be completed within the stipulated period of four months. Liberty to apply in case of difficulty.

25. The Petition is accordingly partly allowed and disposed of in terms of prayer clauses (b), (c), (d), and (e), together with the aforesaid directions.