Judgment :- Smt. R.P. SondurBaldota, J. 1. Rule. Rule made returnable forthwith. By consent, the petition is taken up on board for final hearing. Heard the counsel. 2. The petitioner was working as a part time teacher for deaf students in respondent no.1-corporation during the period 1st January, 1986 to 31st January, 2010. Initially she was on the establishment of respondent no.2 i.e. Topiwala National Medical College and B.Y.L. Nair Charitable Hospital during the period 1st January, 1986 to 31st January, 2008 and thereafter transferred to the establishment of respondent no.3, Lokmanya Tilak Municipal Medical College, Sion, Mumbai from 1st February, 2008 till 31st January, 2010, the date of her superannuation. During the total period of 24 years of her service as “part time teacher”, for a period of six months, she had worked, on ad-hoc basis in leave vacancy, as “full time teacher”. While in service, she had applied for the post of a full time teacher, but could not get it for want of existence of such a post. Thus, she continued as a part time teacher throughout. 3. On her retirement from service, the petitioner made an application to respondent no.1 for pension contending that she deserves to be treated as a full time employee since she has unbroken service record of 24 years with the respondent no.1 and since she had not been engaged in any other occupation/profession/activity apart from her services with the respondents. She claims to have exclusively devoted her time to the duty of the offices of the respondents. When her request was not accepted, she filed the petition herein for a writ in the nature of mandamus or any other order or direction in the nature of mandamus directing the respondents to pay pension to her from the date of her retirement along with the arrears with interest @ 18% p.a. After filing of the petition, the representation made by the petitioner came to be considered and decided by respondent no.1. Therefore, she amended the petition to include the prayers at (aa) and (ab) to inter alia, seek declaration that the action on the part of the respondents in continuing her on part time basis was with the object of depriving her of permanency benefits in the post of teacher for the deaf and a direction to respondent no.1 to treat her as a full time teacher with effect from the year 1993 and for the benefits of permanency including the retirement benefits. By prayer clause (b), the petitioner seeks a direction to the respondents to pay provident fund to her from the date of her retirement with interest @ 18% p.a. 4. Respondent no.1 has filed affidavit-in-reply of its Administrative Officer to contend that the petitioner cannot be treated as a full time teacher for the deaf since there is no such post in existence. According to the respondent, she can also not be given pension benefits since there is no provision for pension to a part time employee. Further, as per the Municipal Provident Fund Rules, she is not eligible for provident fund. Mr. Puranik, learned counsel for respondent nos.1 to 3, submits that the petitioner cannot be granted pensionary benefits since there is no provision made for the purpose in the rules framed by respondent no.1. The relevant provision in Mumbai Municipal Corporation Pension Rules, (1953), reads as follows: SECTION I – PRELIMINARY 1. These rules may be called the Mumbai Municipal Corporation Pension Rules, (1953). [2. (1) Except where it is otherwise expressed or implied and subject to the provisions of Sub-Rule (2) of this rule, these rules shall apply to all Municipal servants who hold a lien on a permanent post or would hold a lien on such a post had their lien not been suspended under the Municipal Service Regulations. (Effect is given from 31-1-2000)]. (2) Unless in any case it be otherwise distinctly provided for by or under these rules, these rules do not apply to - (a) Municipal servants on daily wages : (b) Municipal servants whose time is not exclusively devoted to the duties of their offices : (c) Government servants in Municipal employ; and (d) Municipal servants subscribing to any Contributory Provident Fund or qualifying or qualified for the benefit of the Pension Rules of any other Public Body. According to the learned counsel for the respondents, Rule (2)(b) specifically excludes the petitioner herein. Relying upon a decision of the Apex Court in the case of Union of India & Ors. Vs. Rakesh Kumar, reported in 2001 LAB.I.C. 1406, he submits that no pensionary benefits can be given to a person without the relevant rules specifically providing for the same. He draws our attention to the following observations from the decision cited:- “21. …............................... It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is dehors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If rules are not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but Court cannot direct payment of pension on the ground of so called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a Government servant who is required to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions.” [Emphasis supplied] 5. Mr. Bakore, learned counsel for the petitioner, submits that resort to Rule (2)(b) above by respondent no.1 for rejection of the petitioner's application for grant of pensionary benefits is not correct. He submits that the petitioner has exclusively devoted her time to her duties as a part time teacher for deaf. She has not taken up any other occupation or activity during her service. In our opinion, the submission advanced by the learned counsel for the petitioner cannot be accepted. Merely because the petitioner, in the remaining time available to her, did not take up any other work or occupation, it cannot mean that she was full time working with respondent no.1. The test is not whether the petitioner actually worked at two or more places as a part time. The test is the actual time spent by the petitioner in her services with the respondent no.1, and the availability of the remaining time for her to work anywhere else. The test is not whether the petitioner actually worked at two or more places as a part time. The test is the actual time spent by the petitioner in her services with the respondent no.1, and the availability of the remaining time for her to work anywhere else. In the circumstances, the respondents have correctly relied upon the provision of Rule (2)(b) for rejection of her request for pension. Besides, as has been held by the Apex Court, in the absence of specific provision in the rules for grant of pensionary benefits, this Court cannot issue a writ directing the respondent nos.1 to 3 to grant pensionary benefits to the petitioner contrary to the statutory rules. 6. Hence, we find no substance in the petition. The petition is dismissed. No order as to costs.