Dr. Krushna Chandra Jena v. State of Odisha) directing the
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1 of 2023 Dr. Krushna Chandra Jena … Appellant Mr. Jayant Ku. Rath, Senior Advocate along with Mr. D.N. Rath, Advocate -versus- State of Odisha and Others Respondents Mr. M.K. Khuntia, Addl. Govt. Advocate … CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY Order No.
Decision
ORDER 19.04.2023 Dr. S. Muralidhar, CJ. 02. 1. The challenge in the present writ appeal is to an order dated 26th August, 2022 passed by the learned Single Judge in W.P.(C) No.6122 of 2021 filed by the present Appellant. 2. The question in the writ petition was whether the Respondent- Sambalpur University was justified in declining the prayer of the Appellant, who retired as a Professor in Law of the P.G. Department, for pension. 3. The aforementioned writ petition was the second round of litigation before the learned Single Judge. Initially, the Petitioner had filed W.P.(C) No.19656 of 2015 which came to be disposed of on 14th October, 2019 (Dr. Krushna Chandra Jena v. State of Odisha) directing the Appellant to make a fresh representation to the Vice Chancellor (VC) of Sambalpur University. The Appellant Page 1 of 6 then made a representation on 23rd October, 2019. After considering it and giving a hearing to the Appellant an order was passed on the basis of the resolution of the Syndicate dated 19th September, 2020 rejecting his representation. This was then challenged by the Appellant in W.P.(C) No.6122 of 2021. 4. The case of the Appellant was that he had served in the Sambalpur University first as a Principal of an affiliated LR Law College and later as Professor of the PG Department for a total period of 8 years 6 months and 11 days. Prior thereto, he had served in various colleges affiliated to the Utkal University for a period of 6 years 3 months and 21 days. If both these periods were counted together, he would have completed a total tenure of 14 years 10 months and 2 days and was, therefore, eligible for pension as he had completed more than ten years of teaching. 5. Reliance was placed by the Appellant himself on three statutory provisions i.e. Clause 260 of the Odisha University First Statute, 1990 which deals with ‘counting of past service’ and which read as under: “Clause 260 of the Orissa University First Statute 1990 260. Counting of past service “The period of qualifying service rendered by an employee under any of the following institutions shall count for the purpose of gratuity and pension: (a) State Government (b) Any Indian University (c) Any College affiliated to any University of the State and aided by the State Government (d) Board of Secondary Education, Orissa (e) Council of Higher Page 2 of 6 Secondary Education, Orissa; (f) Any recognized institution of higher education and/or research aided by the State/Central Government…” 6. The other provisions were Rule 47 of the Orissa Civil Service (Pension) Rules, 1992 and Rule 6(1) of the Odisha Aided Educational Institutions Employees Retirement Benefit Rules, 1981, which read as under: “Rule 47 of Orissa Civil Service (Pension) Rules, 1992 47(5)(i) In the case of a Government Servant retiring in accordance with the provisions of these rules before completion of the minimum qualifying service of ten years shall not be entitled for pension, but he shall be entitled to service gratuity to be paid at a uniform rate of half month’s emoluments for every completed six monthly period of service.” (Substituted vide Finance Department Notification No.24142/F., dtd. 04.09.2015). the Odisha Aided Educational Rule 6(1) of Institutions Employees Retirement Benefit Rules, 1981 (Inserted by Notification of Dept. of Higher Education dated 26th November, 2016) 6(1) In computing the length of qualifying service of an employee retiring on or after the 1 day of April, 1982 from an aided educational institution, all previous services rendered both in any one or more than one aided educational institution(s) as well as in Government establishment, except those rendered prior to the attaining the age of 18 years, whether temporary, officiating or permanent, shall, subject to the conditions specified in sub-rules (2), (3), (4), and (5), be taken into account for the purpose of retirement benefits under these rules.” 7. For the purposes of Clause 260 one of the categories of the institutions where an employee had to render service for the Page 3 of 6 purpose of ‘qualifying service’ for gratuity and pension was “any college affiliated to any University of the State and aided by the State Government”. On the Appellant’s own showing and as indicated by him in his written notes of submissions before the learned Single Judge, he served in several institutions affiliated to the Utkal University between 5th July, 1982 and 21st December, 2004. This included the Capital Law College, the Jagjiban Ram Law College, the GNM Law College and lastly the University Law College first as part time Lecturer and thereafter as Lecturer. 8. In a preliminary counter affidavit filed before the learned Single Judge, it was pointed out by the Sambalpur University that the Appellant did not possess the qualifying service of 10 years inasmuch as “he was appointed temporarily on monthly consolidated basis for a limited time in non-pensionable service in an unaided establishment with broken service” and, therefore, he was not entitled to any pension as per the relevant provisions of the OCS (Pension) Rules and the Odisha University First Statute, 1990. Apart from rejecting the Appellant’s representation on the ground that the institutions served were not an aided institutions and the Sambalpur University took the stand that the Appellant was not appointed on regular basis against the sanctioned posts and, therefore, he did not qualify for pensionable service. 9. The learned Single Judge has, in the impugned order, referred to the decision of the Supreme Court of India in P. Bandopadhya v. Union of India 2019 (I) ILR -CUT 641 (SC) where it was observed that unless the minimum qualifying service of 10 years Page 4 of 6 was rendered, the employee would not be entitled to pension in terms of the CCS (Pension) Rules, 1962. 10. Mr. Jayant Ku. Rath, learned Senior Counsel, appearing for the Appellant, argued that there was nothing in Clause 260 of the Statutes that mandated service against a ‘sanctioned post’ or on regular basis. He, accordingly, submitted that this could not be a ground for rejecting the plea of the Appellant for pension. 11. A reading of Clause 260 of the Orissa University First Statute which talks of counting of past service, makes it clear that for the purpose of qualifying service, the employee in question had to necessarily serve in a college not only affiliated to the University but also be ‘aided by the State Government’. With Sambalpur University clearly taking a stand that the service rendered by the Appellant prior to joining in the Sambalpur University, was in ‘unaided’ institutions, the burden shifted to the Appellant to show that the said institutions, affiliated to the Utkal University, were in fact ‘aided’ institutions i.e. aided by the State Government. Despite, the Sambalpur University stated on affidavit in reply to the writ petition that the said institutions were ‘unaided’, no rejoinder was filed by the Appellant to dispute the above averment. In fact, even in the written note of submissions filed before the learned Single Judge, the Appellant does not state that he had served in institutions that were aided by the State Government prior to joining the Sambalpur University. Page 5 of 6 12. In that view of the matter, it could not be said that the Sambalpur University erred in rejecting the Appellant’s representation for grant of pension. 13. The Court is, therefore, unable to find any error having been committed by the learned Single Judge in dismissing the Appellant’s writ petition. The writ appeal is accordingly dismissed. Chief Justice (Dr. S. Muralidhar) (G. Satapathy) Judge S.K. Jena/Secy. Page 6 of 6