### Reinstatement with Continuity of Service Mandates Inclusion of Such Period for Pensionary Benefits Calculation

In brief

The question

1. Whether the period of service between termination (1988) and reinstatement (2004) should be counted for pensionary benefits given the judicial order of continuity of service.

The court held

The Court allowed the Writ Petition, answering that the Petitioner is entitled to pensionary benefits by treating the period from February 13, 1988, to May 18, 2004, as qualifying service.

It also directed

The Court quashed and set aside the orders dated September 16, 2011, and December 15, 2014, directing Respondents to grant pensionary benefits and refusing stay on the judgment.

01Facts

The Petitioner, a 'Junior Assistant' with Zilla Parishad (ZP) Solapur since 1970, was terminated on February 12, 1988, following an inquiry.

¶ 2

The Labour Court, Solapur, allowed his complaint (ULP No. 32 of 1988) on May 4, 1998, directing reinstatement with full back-wages.

¶ 2

After ZP's revision was dismissed by the Industrial Court, they filed Writ Petition No. 2220 of 2004 in the High Court; during its pendency, the Petitioner retired on April 30, 2007.

¶ 2

To facilitate the disposal of the Writ Petition, the Petitioner executed a bond in 2004 waiving back-wages.

¶ 2

On March 30, 2009, the CEO of ZP Solapur clarified that the period from February 13, 1988, to May 18, 2004, would be counted as "Continued Services".

¶ 3

The Divisional Commissioner, Pune, rejected the Petitioner's claim for pensionary benefits via order dated December 15, 2014, leading to the present petition.

¶ 2-3

02Issues

i.1. Whether the period of service between termination (1988) and reinstatement (2004) should be counted for pensionary benefits given the judicial order of continuity of service.

¶ 3/6

ii.2. Whether the bond waiving back-wages and Rule 48 of the Pension Rules deprive the Petitioner of qualifying service for pension.

¶ 5/6

03Law Applied

Rules 44(2) and 48 of the Maharashtra Civil Services (Pension) Rules, 1982, regarding the counting of past service on reinstatement and the effect of interruptions.

¶ 5

Board of Trustees of Port of Kandla v. Hargovind Jaisraj & Anr., which holds that a judicial order remains binding until it is modified, reversed, or set aside by a competent court.

¶ 6

04Reasoning

The Court reasoned that the Labour Court’s 1998 order directing reinstatement with full back-wages attained finality as it was never set aside or modified by the High Court in the previous litigation.

¶ 2/6

The Zilla Parishad’s own order dated March 30, 2009, expressly recognized the period from 1988 to 2004 as "Continuity in Service".

¶ 6

The Court rejected the Respondents' reliance on Rule 48 (regarding interruptions not counting as qualifying service), noting that since the termination was judicially invalidated and service was termed "continued," there was no legal interruption to condone.

¶ 6

The Petitioner’s voluntary waiver of back-wages via bond did not equate to a waiver of pensionary rights or qualifying service.

¶ 4/6

The Court held that once continuity was established, the ZP could not selectively apply it for service records but deny it for pension.

¶ 6

05Holding

The Court allowed the Writ Petition, answering that the Petitioner is entitled to pensionary benefits by treating the period from February 13, 1988, to May 18, 2004, as qualifying service.

¶ 6

The Court quashed and set aside the orders dated September 16, 2011, and December 15, 2014, directing Respondents to grant pensionary benefits and refusing stay on the judgment.

Order (i) and para. 7

LawLens.Bombay High Court

Original Court PDF