(1) 25 & 28 -WP-4180-2018 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4180/2018 SUDHAKAR RAMDAS BRAMHE VS THE STATE OF MAHARASHTRA AND OTHERS AND WRIT PETITION NO. 8402/2018 SMT. VARSHA WD/O BABAN NALGUNDWAR VS STATE OF MAHARASHTRA AND OTHERS --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Mr. B.G. Kulkarni, Advocate for the Petitioner (s). Mr. N.R. Patil, AGP, for the Respondent Nos. 1 to 4in WP/4180/2018. Mr. S.B. Bissa, AGP, for the Respondent Nos. 1 to 4 in WP/8402/2018. CORAM : ANIL L. PANSARE AND NIVEDITA P. MEHTA, JJ. DATE : SEPTEMBER 16, 2026. 1. Heard. 2. On 03.09.2026, we have passed the following order in Writ Petition No. 8402/2018: “1. Heard. 2. The substantive prayer reads as under: “(i) by a writ of mandamus or by a suitable writ, order or direction respondent Nos.1 to 5, the State of Maharashtra and others be directed to grant notional upgradation to Late Shri. Babanrao Kisanji Nalgundwar as full time Librarian in respondent No.5 school with effect from 01.07.1994 as per the provisions of Government Resolution dated 28.06.1994 (Annexure- B) and to carry out the pay fixation in the scale of full time Librarian w.e.f. 01.07.1994 till 30.06.2009 alongwith the benefit of time bound promotion within a period of three months from the date of order.” 3. Thus, the petitioner is seeking directions to Respondent Nos. 1 to 5 to grant notional upgradation to the petitioner’s husband as a full-time Librarian in Respondent No. 5-school as per the Government Resolution (GR) dated 28.06.1994 and accordingly, to extend the benefits of pay with effect from 01.07.1994 till 30.06.2009 along with the benefit of time-bound promotion. 4. Since the petitioner is claiming notional upgradation for the purpose of pensionary benefits, it is obvious that she is not claiming backwages and/or arrears of salary. Even otherwise, in Para 10 of the petition, the petitioner has averred that she is not claiming backwages/arrears of salary payable to her husband for the period from 01.04.1994 to 30.06.2009. Similarly, she is not claiming arrears of pension for the period from 01.07.2009 to 06.04.2016. The relief sought is limited for the purpose of determining the amount of gratuity payable to her husband, treating him as full-time Librarian for the period from 01.07.1994 to 30.06.2009 by granting notional Kartikeya 2026:BHC-NAG:12306-DB (2) 25 & 28 -WP-4180-2018 upgradation and notional pay fixation and further extending family pension as payable with effect from 07.04.2016. 5. In support, the petitioner has relied upon the order dated 28.01.2015 in the case of Kiran Keshavrao Girhe & Ors. v. The State of Maharashtra & Ors. (Writ Petition No. 6630 of 2013) along with connected petitions, wherein the petitioners sought similar relief, viz. upgradation of the post of part-time Librarian to full-time Librarian in terms of the GR dated 28.06.1994. 6. The Division Bench, considering the stand taken by the Government, passed the following order: “...Hence, by accepting the stand of the State Government as reflected in the order dated 09.02.2012 passed in the case of Vatsala Nana Desai along with consequential order dated 24.02.2012, the petitioners would be entitled to similar treatment. However, as the petitioners have given up the claim of arrears of salary, aforesaid benefits would be available only for the purposes of notional pay fixation, time bound promotion and pensionary benefits in accordance with the Rules. Hence, the following order is passed: The petitioners are held entitled to grant of upgradation to the post of Full Time Librarian in terms of dates as mentioned in Annexure A to the petition Rule is made absolute accordingly in terms of prayer clause (ii) in the petition. However, there shall be no order as to costs.” 7. Thus, the Court held the petitioners entitled to upgradation to the post of full- time Librarian. 8. Mr. Kulkarni, learned counsel appearing for the petitioner, has then invited our attention to the judgment dated 06.05.2022 passed by the Division Bench at Aurangabad in Writ Petition No. 12902 of 2018 (Punjahari Baburao Dighe & Ors. v. The State of Maharashtra & Ors.). 9. Here also, the petitioners sought upgradation to the post of full-time Librarian in terms of the provisions of the GR dated 28.06.1994. The petitioners had also challenged the GR dated 03.08.2006, restricting upgradation as full-time Librarian from 01.04.2006 and treating the upgradation as a fresh appointment and forfeiting the benefits of past services as part-time Librarian, saying that it is ultra vires the provisions of the basic GR dated 28.06.1994 and also contrary to Rules 30 and 33 of the Maharashtra Civil Services (Pension) Rules, 1982. 10. The Division Bench, considering the rival submissions, held thus: “57. In our view, the State Government while issuing Government Resolution dated 3rd August 2006 could not have been taken away the benefits granted under the Government Resolution dated 28th June 1994 which were granted pursuant to the acceptance of Shri V. V. Chiplunkar Committee Report. The said Government Resolution dated 3rd August 2006 could not have been issued inconsistent with the provisions of Secondary School Code. In our view, by the said Government Resolution dated 28 th June 1994 there was only up-gradation of approved part time posts of part time librarians to the post of full time librarians and such up-gradation was automatic once the strength of students had become 1000 or above. The respondents were thus obliged to grant status of full time librarian to the petitioners on the date of strength of the students had become 1000 or more alongwith all consequential benefits, pay fixation from due date. 58. The learned Additional Government Pleader did not dispute that the schools in which each of these petitioners have been appointed initially as part time librarian and thereafter as full time librarian had already 1000 or more students prior to their appointment as full time librarian. It is submitted by the learned Additional Government Pleader that in none of the judgments relied upon by the petitioners, the Government Resolution of 2006 was considered and these judgments are thus per incuriam. 59. The respondents are required to compute 50% of the services rendered as part time librarian along with period of 100% service rendered as full time librarian for computing pensionable service. Kartikeya (3) 25 & 28 -WP-4180-2018 60. There is no substance in the submission of the State Government that there would be any discrimination between the part time librarian given status of full time librarian on the date of the strength of the students having reached 1000 or more and the full time librarian appointed after D. C. P. S. scheme came into force. The said Government Resolution dated 03.08.2006 taking away the rights vested in employees under G. R. dated 28.06.1994 is illegal, arbitrary and in violation of Article 14 of the Constitution of India. The judgments relied upon by the learned Additional Government Pleader are distinguishable on facts and would not assist the case of the State Government.” 11. Thus, the GR dated 03.08.2006 has been declared illegal, arbitrary and in violation of Article 14 of the Constitution of India. Accordingly, the Division Bench extended the benefits to the petitioners therein in terms of the provisions of the GR dated 28.06.1994. 12. Learned counsel appearing for Respondent No. 5 is supporting the petitioner’s case and has, in fact, forwarded the proposal to the State Government, which came to be rejected. 13. Despite such status, learned AGP has relied upon the judgment dated 01.08.2023 passed by the Division Bench in the case of Sunil Subhash Ekhande v. State of Maharashtra & Ors. (Writ Petition No. 11525 of 2018). The judgment has been passed relying on the GR dated 03.08.2006, which has been declared ultra vires Article 14 of the Constitution of India in Punjahari Dighe’s case (supra), which judgment was not brought to the notice of the Court. 14. Learned AGP was insisting to refer to the finding rendered by the Division Bench; however, we have repeatedly pointed out to him that since the finding is based on the GR dated 03.08.2006, which has been declared ultra vires, cannot be relied upon. He, however, submits that the judgment in Sunil Ekhande’s case (supra), being later in time, will hold the field. 15. We find such submission to be contrary to the law of precedent. 16. Learned AGP shall, accordingly, examine the issue and make submissions. 17. Respondent No.1 shall also file affidavit as to how can the judgment in Sunil Ekhande’s case (supra) be relied upon to deny the relief to the petitioner in a case where the law is well-settled in terms of the judgment in Kiran Keshavrao Girhe and Punjahari Dighe’s case (supra). 18. List on 16.09.2026. 19. In the meantime, respondent may take corrective steps.” 3. In response, the learned AGP submits that the issue has been examined and is covered by the judgment in the case of Punjahari Baburao Dighe & Ors. v. The State of Maharashtra & Ors. (Writ Petition No. 12902/2018). 4. It is suggested that the petitioners are entitled for the benefits in terms of the provisions of the Government Resolution dated 28.06.1994. 5. Learned AGP submits that necessary benefits will be extended within short time. Kartikeya (4) 25 & 28 -WP-4180-2018 6. We expect the respondents to take necessary steps as expeditiously as possible and preferably within three months from today. 7. Accordingly, the respondents shall extend the benefit in terms of the prayers made in the respective petitions, if there is no other legal impediment. 8. The petitions are disposed of in terms of above. (JUDGE) (JUDGE) Kartikeya