Oral Judgment:

Ravindra V. Ghuge, J.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The learned Senior Advocate for the Petitioner places on record a photostat copy of the communication dated 30th January, 2026, received by the Petitioner and the briefing Advocate from Professor Dr. Gautam Sonkamble, In-charge Principal of Sir Sitaram and Lady Shantabai Patkar College of Arts and Science and V.P. Varde College of Commerce and Economics, informing the Petitioner that the College does not desire to engage an Advocate as it intends to assist the Petitioner without causing any future financial burden on the Institution. The notice issued vide order dated 8th May, 2024 has been served upon the parties. The photostat copy of the communication dated 30th January, 2026 from Respondent No.5 is taken on record and marked as ‘X’ for identification.

3. The dates and sequence of events are as under :

                   (a) The Petitioner acquired the requisite qualifications of M.Phil. and Ph.D. for appointment as a Lecturer in Botany;

                   (b) On 1st July, 2001, the local Selection Committee selected the Petitioner and appointed her against a post of Lecturer in Botany, reserved for the Backward Category;

                   (c) Between 2001 and 2006, the Petitioner’s appointment as a Full Time Lecturer in Botany on a temporary basis for one academic year at a time, was approved by specific orders passed by the University, which are placed on record from page nos.47 to 61. This is an undisputed position;

                   (d) The Petitioner applied on 3rd May, 2006 to the College seeking a full time appointment as a Lecturer in Botany for the Degree College with Respondent No.5;

                   (e) Pursuant to the interviews conducted by a legally constituted Selection Committee, the Petitioner was appointed on probation for a period of two years with effect from 24th July, 2006;

                   (f) The Petitioner was confirmed in service and continued as such until her superannuation on 31st March, 2023;

                   (g) The Deputy Registrar of the College Teachers Approval Unit of the University of Mumbai conveyed to the College that the technical breaks in the service of the Petitioner for a total duration of 199 days from 13th June, 2002 to 21st August, 2002, 1st May, 2003 to 13th June, 2003, 1st May, 2005 to 12th June, 2005 and 12th June, 2006 to 23rd July, 2006, was condoned for the purpose of pension-cum-gratuity benefits as per the Government Resolution dated 7th March, 1986;

                   (h) The Petitioner was communicated by the Joint Director, Higher Education, Mumbai Division through the Principal of the College vide communication dated 17th February, 2023 that her earlier service with the same College, which is affiliated to the University of Mumbai, cannot be reckoned with, her appointment would be construed as being with effect from 24th July, 2006 and she would not be entitled for the Old Pension Scheme (OPS);

4. The learned AGP tenders a photostat copy (two pages) of the form of application dated 5th September, 2011 for employees appointed on or after 1st November, 2005, and contends that the Petitioner had applied under the new Defined Contributory Pension Scheme (DCPS). The said compilation of two pages is taken on record and marked as ‘Y’ for identification.

5. The learned Senior Advocate Mr. Pakale submits that since the Petitioner’s earlier employment with the same College affiliated to the Mumbai University as on 5th September, 2011, was not reckoned with as a part of her service with Respondent No.5 College, she was left with no option, but to file the application marked as ‘Y’. She had to take a call to apply under the DCPS since there was no other option available to her. It happened subsequently that the University of Mumbai passed an order on 25th August, 2022 condoning the break in service and reckoning her service as a Full Time Lecturer in Botany on year to year basis from 26th November, 2001 onwards, for the purposes of her eligibility for pension-cum- gratuity. In view of the same, the Petitioner became eligible for the OPS on account of such development that recently took place.

6. It is by virtue of the said development that the Petitioner applied to the University for the OPS. The College, therefore, forwarded its proposal dated 4th February, 2023 to the Deputy Director, Higher Education, for seeking benefits of the OPS for the Petitioner. It is in response to the said communication that the Joint Director passed a single sentence order vide the impugned communication dated 17th February, 2023 that the Petitioner cannot be granted the benefits of OPS since her service prior to her regular appointment was on temporary basis. Apparently, the Joint Director was either unaware or preferred to ignore, the decision of the University dated 25th August, 2022 to condone the breaks in service and reckon the earlier service of the Petitioner from 2001 onwards, for the purposes of pension and gratuity.

7. This gives rise to an issue as to whether the University had the jurisdiction and authority to condone the breaks in service. The learned AGP submits that the State Government, through the Education and Employment Department, has issued a GR dated 7th March, 1986 (GR). A photostat copy of the same is tendered to the Court, which is marked as ‘Z’ for identification. We find from clause 3 of the said GR that the number of breaks condonable would be six and the total period of such breaks to be condoned should not exceed a period of two years. Each break shall not be for more than a year.

8. As such, it is apparent that the breaks in service to the maximum of six breaks and the maximum days of not more than two years, are condonable. Clause 1 of the said GR marked as ‘Z’ clearly indicates that the power to condone the breaks in service would remain with the Universities. In case an employee serving in a Senior College joins another Senior College affiliated to the same University and retires, the University to which the Colleges stand affiliated, shall be the competent Authority to condone the breaks referred to therein.

9. For clarity, we are reproducing clauses 1 to 3, for ready reference, hereunder :

                   1. In Government letter No. NGC 1283/132732/ (865) UNI-4, dated 29-5-84 addressed to the Accountant General, Maharashtra State, Bombay, clarification given in point (a) vests the powers of condonation of breaks in service in the Universities. It is however clarified now that in case an employee serving in a Senior College joins another senior college affiliated to the same university and retires, the University to which the colleges stand affiliated shall be the competent authority to condone the breaks referred to therein. The University's powers in this behalf stand, therefore, restricted to the cases mentioned above. In case an employee after putting in certain services in a secondary school or schools joins a senior college and retires, the Director of Education (Higher Education), Maharashtra State, Pune shall be the competent authority to condone break or breaks in service.

                   2. If an employee leaves one college and joins another college under the jurisdiction of different universities or leaves the service of one university and joins another university, the Director of Education (Higher Education), Maharashtra State, Pune shall be the component authority to condone break or breaks in service.

                   3. The maximum number of breaks condonable shall be six in all. The total period of such breaks shall not exceed the period of two year and each break shall not be more than a year. Out of the total number of six breaks, not more than three breaks due to resignations shall be condoned.

10. It is, therefore, undisputed that it was the University which had the jurisdiction to condone the breaks in service in the light of the GR dated 7th March, 1986 which has been very specifically referred to by the competent Authority of the University in its order dated 25th August, 2022 which reads as under :

                   Please refer to your letter No. DC/131 dated 23rd May, 2022 received to the University on 23rd May, 2022 requesting therein to condone the break in services in respect of Dr. (Smt) Sushmita Negi for the purpose of getting continuous service benefits.

                   In this connection, I am directed to inform you that the actual break in services in respect of Dr. (Smt) Sushmita Negi has been condoned by the University for 199 days from 13/06/2002 to 21/08/2002, 01/05/2003 to 13/06/2003, 01/05/2005 to 12/06/2005, 12/06/2006 to 23/07/2006 for the purpose of pension-cum- gratuity benefits as per the Government Resolution No. NGC/1283/(365)/UNI-4, dated 7th March, 1986.

                   The earlier communications made by this office vide letter No.CTAJ/IS/ECD/2021-22/20597 dated 18th May, 2022 in respect of Dr. (Smt) Sushmita Negi Lecturer in Botany be treated as cancelled.

11. It is noteworthy that the Petitioner’s earlier service from November, 2001 until her full-fledged selection and appointment as a Lecturer in Botany, was with the same Respondent No.5 College which was affiliated to the Mumbai University. It is not a case of the Petitioner having worked with different Colleges and joined Respondent No.5 for the first time in 2006. All along, she was working on a full time permanent vacant post. The only aspect as canvassed by the learned AGP is that she was working for almost five years on a permanent vacant post which was reserved for a Scheduled Tribe category.

12. Having perused the appointment orders and the approvals of the competent Authority, it is obvious that because the College was not able to get a candidate from the Scheduled Tribe category, the Petitioner was continuously selected and appointed for each academic year from 2001-2002 till 2005-2006. Having put in five years in employment with the same College on a permanent full time vacancy, which eventually was filled in by appointing the Petitioner after it was converted into an open category post, the condonation of break is the decisive factor.

13. Since the competent Authority having jurisdiction vested in it by law has condoned the breaks, the appointment of the Petitioner on a full time permanent vacant post of Lecturer in Botany from November, 2001 will have to be reckoned with, as being continuous service until her superannuation. She was also paid her salary as per the scale made applicable and mentioned in each of the appointment orders, from grant-in-aid. It was only on one occasion in 2003 that a condition was included in the appointment order to the effect that she will be paid remuneration on lecture basis by the Management. All along, her services were governed by the statutes, ordinances and regulations of the Mumbai University as is set out in her appointment orders.

14. In the State of Jharkhand and Ors. v/s. Jitendra Kumar Srivastava and Anr.(2013 (12) SCC 210), the Hon’ble Supreme Court concluded that a right is created in an employee to seek retirement and pensionary benefits after putting in qualifying service and such benefits would amount to a ‘property’. An employee cannot be deprived of such property considering Article 300-A of the Constitution.

15. In view of the above, as a natural consequence of the earlier service of the Petitioner having been reckoned with by the competent Authority for the purpose of pension and gratuity benefits, vide order dated 25th August, 2022, we find that the Petitioner would be entitled to the OPS. Her contribution to the DCPS which was out of compulsion, would not defeat her claim for OPS. If she has a right, an option accepted out of compulsion cannot be used to her disadvantage and to neutralize a right which vests in her.

16. This Petition is, therefore, allowed. The impugned order dated 17th February, 2023 is quashed and set aside, with the following directions :

                   (a) The College shall forward the proposal of the Petitioner by following the due procedure, to the competent Authority, along with the bills for arrears of pension as per the OPS, within a period of 30 days from today;

                   (b) The competent Authority would clear the proposal of the Petitioner within a further period of 30 days thereafter;

                   (c) The commencement of payment of pension as per the OPS would take effect within 75 days from today;

                   (d) The contribution made by the Petitioner towards the DCPS, be returned to the Petitioner with accrued interest only to the extent of the contribution made by the Petitioner, within a period of 45 days from today. For clarity, we state that the interest that may have automatically accrued only on the share contributed by the Petitioner under the DCPS, shall be paid to the Petitioner. The interest accrued on the contribution of the State Government would remain with the State Government;

                   (e) Since gratuity has not been paid by the State Government to the Petitioner and the same became automatically payable after 30 days from the date of retirement of the Petitioner, i.e., with effect from 1st May, 2023, and since the Government was under an obligation to offer gratuity to the Petitioner instead of waiting for her to beg for the same, we are granting statutory interest at the rate of 10% on the gratuity amount with effect from 1st May, 2023 till it is paid to the Petitioner, within a period of 45 days from today;

                   (f) Insofar as the interest on the pension amount under OPS is concerned, we can appreciate the dilemma of the Government that the breaks in service were condoned by the competent Authority in terms of its own Government Resolution, which was overlooked while issuing the impugned order. We are, therefore, granting simple interest at the rate of 4% per annum on the pension amount with effect from 1st April, 2023.

17. Rule is made absolute in the above terms.