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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 27116 of 2011 An application under Articles 226 and 227 of the Constitution of India. Shri Bipin Bihari Jena ...… Petitioner -------------- -Versus- Principal of Indira Gandhi Institute Opp. Parties of Technology, Sarang and Others Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : M/s. S.K. Dey & N. Pattanaik, Advocates For Opp. Parties : Mr. S. Behera, [Addl. Government Advocate] M/s. D.K. Mohanty & A.K. Das, Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 30.01.2025 SASHIKANTA MISHRA, J. The petitioner was working as office Peon in ITI, Rourkela. He was transferred to ITI, Talcher being appointed as Dresser with effect from 01.10.1966. He was Page 1 of 16 transferred to ITI, Balasore and thereafter to Modern Polytechnic, Talcher. While working as such he was allowed to draw his pay against the vacant post of Compounder. 2. The Government of Odisha in the Industries Department notification dated 24.09.1987 decided to transfer the ownership and the management of Modern Polytechnic to the control of Indira Gandhi Institute of Technology (IGIT), Sarang, Talcher for better management of the institution. As per the said notification, the officers and staff working in the Polytechnic were deemed to be on deputation to IGIT with permissibility of being permanently absorbed in IGIT. 3. Accordingly, by order dated 03.11.1987, the Principal of Modern Polytechnic placed the services of the petitioner under the disposal of the Principal, IGIT with effect from 01.11.1987. The Director of Technical Education and Training (DTET), vide order dated 27.05.1988 notified that consequent upon such transfer of the Management, the services of the staff were placed at the disposal of the Principal, IGIT on the terms and conditions of deputation Page 2 of 16 in accordance with Rule- 212 (b) read with Item-9 of Appendix-1 of Odisha Service Code till final absorption in IGIT. Again by order dated 03.04.1989, the DTET notified that the Class-IV staff, who were deputed to IGIT, Sarang for the period from 01.04.1987 to 31.03.1989 were relieved from Government Service with effect from 15.03.1989 for their permanent absorption under IGIT as per option exercised by them. The petitioner was one of such employees. 4. By order dated 28.07.1989, the services of the petitioner and others were finally absorbed in IGIT with effect from 16.03.1989 in the scale of pay of Rs.625-12- 709-8B-12-745-15-790-EB-15-940 in addition to DA as sanctioned by the Board of Governors from time to time. Said employees were to be governed by the By-laws of the IGIT relating to the service conditions of the employees. 5. With regard to pension, the By-laws provided that an employee who opts for pension scheme shall be entitled to the pensionary benefits including family pension and the gratuity including death-cum-retirement gratuity as applicable from time to time to the State Page 3 of 16 Government employees. The petitioner retired on superannuation on 31.08.2001. Thus, the period of service of the petitioner under the Government was from 10.10.1961 to 15.03.1989 and under the IGIT, from 16.03.1989 to 31.08.2001. 6. In the meantime, pursuant to order dated 09.05.2003 passed in OJC No. 10000 of 1998, the petitioner was held entitled to the salary of a Dresser in the scale of pay of Rs. 950 to Rs.1500/- as admissible to a Dresser working in R.E.C College and all other service benefits. Since the order was not complied with, the petitioner filed CONTC No. 685 of 2003 during pendency of which provisional pension @ Rs.1275/- for the period of services under the Government was sanctioned by the DTET vide letter dated 10.10.2003. Subsequently, by letter dated 25.08.2005, the Principal IGIT sanctioned further provisional pension @Rs.563/- in favour of the petitioner for the period of services rendered with IGIT. According to the petitioner, grant of pension @Rs.563/- per month by IGIT is wrong as the same ought to have been at the rate of minimum pension, i.e., Rs.1275/- in Page 4 of 16 view of the Government Resolution dated 15.07.1998. According to the petitioner, the employees retiring on or after 1996 are entitled to pension calculated at 50 percent of the last emoluments drawn subject to minimum of Rs.1275/- per month. The above fact was brought to the notice of this Court in the aforementioned contempt
Decision
proceeding, which was disposed of granting liberty to the petitioner to agitate the same before the appropriate forum. The petitioner submitted representation to the authority but as the same did not evoke any response, he has approached this Court in the present writ petition seeking the following relief:- it “In is the premises stated above responsibility prayed that the this Hon’ble Court may be graciously pleased to issue a Rule NISI calling upon the Opp. Parties to show cause as to why a writ in the nature of mandamus or any other appropriate writ/writs shall not be issued directing the Opp. parties to accord minimum [email protected]/-per month to the petitioner for the period of services of the petitioner with the opposite party No.1 with effect from the date of the superannuation and as to why the opp. parties shall not be directed to pay interest @18% per annum on accordance with the letter of the Govt. in Letter No. Pen(Adv)35/99, 2092(210) PG & P.A. for Bhubaneswar the retirement unauthorized detention of 31.12.99 the dt. Page 5 of 16 benefits payable to the petitioner from the date it becomes due till it is paid and if the opp. parties falls to show cause or show insufficient cause the rule be made absolute. Cost be granted. And for this act of kindness the petitioner shall as in duty bound every pray.” The stand of IGIT as reflected in the counter and additional counter filed by it is that on the basis of option exercised by the petitioner, he was relieved from Government service and permanently absorbed in IGIT with effect from 16.03.1989. The petitioner’s pension was sanctioned on 25.08.2005 but same was not released due to non-receipt of No Due Certificate (NDC) and non- vacation of quarter occupied by him and also due to pendency of the contempt proceeding. It is only after the petitioner vacated the quarter on 23.12.2008, his entitlements were worked out and the benefits were released on 31.03.2009. As regards the claim of the petitioner for grant of minimum pension @ Rs.1275/- per month, it is stated that IGIT is following the Odisha Civil Services (Pension) Rules, 1992, Rule-9 of which provides that no Government servant shall earn two pensions in Page 6 of 16 the same service or post at the same time. As such, the petitioner is not entitled to get two minimum pensions. He has been extended with minimum pension by the Government for the period of service under the Government and proportionate pension by the IGIT for the period of service under IGIT. Accordingly, proportionate pension of Rs.563/- has been sanctioned. Further, as per the service record and last pay of the petitioner, the pensionable amount comes to Rs.1,838/- per month of which Rs.1,275/- is being paid by the Government and the balance amount of Rs.563/- was sanctioned by IGIT. 7. Heard Mr. S.K. Dey, learned counsel for the petitioner, Mr. S. Behera, learned Addl. Government Advocate for the State and Mr. D.K. Mohanty, learned counsel appearing for the IGIT. 8. Mr. S.K. Dey would argue that as per Resolution of the Government in Finance Department dated 15.07.1998 the minimum pension to a Government servant retiring after 01.01.1996 shall be Rs.1275/- per month. In the instant case, the Government sanctioned minimum pension of Rs.1275/- in favour of the petitioner for the Page 7 of 16 period of service rendered under DTET. Since the OCS (Pension) Rules are applicable to the petitioner, the IGIT also ought to have sanctioned minimum pension of Rs.1275/- per month instead of Rs.583/-. According to Mr. Dey, sanction of such less amount is contrary to the provision of the notification dated 24.09.1987. 9. Mr. Behera, learned State Counsel submits that the Government, adhering to the Resolution dated 15.07.1998 has sanctioned minimum pension of Rs.1275/- for the period of service rendered by the petitioner under the Government. As regards the period of service rendered under IGIT, it is the latter which is to take a decision and the Government has no say in the matter. 10. Mr. Mohanty, learned counsel appearing for IGIT would argue that if the petitioner’s claim is to be accepted it would amount to granting him two pensions, which is not permissible as per Rule-9 of the OCS, (Pension) Rule. Moreover, his pensionary entitlement was calculated at Rs.1838/- per month, which is more than the minimum amount of Rs.1275/-. As per the notification dated Page 8 of 16 24.09.1987, Government is to pay the pension due to the petitioner for the period of service rendered under Government and the balance amount is to be proportionately paid by IGIT. 11. The facts of the case are not disputed. Reference to the notification dated 24.09.1987 by which the employees of Modern Polytechnic including the petitioner were deputed to IGIT provided that all such employees shall exercise their option within a period of one year from 01.04.1987 either to be finally absorbed as employees of IGIT or to be reverted to Government. It is not disputed that the petitioner opted to be absorbed in IGIT and accordingly, appropriate order was issued. Thus, that on and from 16.03.1989, the petitioner became a full-fledged employee of IGIT. As regards pension, Clause -9 of notification dated 24.09.1987 is relevant and is quoted below:- the and “(9) One of following alternative retirement benefits as may be opted for by the temporary employees excluding, those mentioned under para 2 and by way of final absorption in the Society or on termination of their services from the State Government as the may be shall be admissible permanent Page 9 of 16 to them, provided that the benefits shall not be admissible to those employees whose service terminate as a measure of have been punishment in disciplinary proceedings. to the a)(i) Employees will be given option to take pension proportionate length of pensionable service as per existing rules, rendered by them under Government up to the date of their ceasing to be in the Government on account of abolition of their posts under the Government. In respect of such employees, the pension will be payable with effect from the date of their ceasing to be in the service of the society when they will be eligible to draw such pension from Government. (ii) In the case of those drawing pension under sub-clause (1) above, the benefits of the Orissa Civil Services Family pension Rules, 1954 as amended from time to time will be admissible to their family members. (iii) Death-cum-retirement Gratuity in respect of services rendered under the State Government will also be admissible to the employees exercising option under this clause, on termination of their service under Government due to abolition of posts, but such gratuity shall be payable only on their ceasing to be in employ under the society. Those who have completed less than 10 years of pensionable service on the date of termination of their their service under Government or on absorption in the Society will be given Death- cum-retirement gratuity and/or service gratuity as admissible under the rules of the State Government and those are payable to them in the manner applicable to those having more than 10 years of pensionable service as mentioned above. xxx xxx xxx” Page 10 of 16 12. A plain reading of the afore quoted clause makes it abundantly clear that employees finally absorbed as per their option are entitled to the retirement benefits including pension as admissible under the rules of the State Government. It is also provided that the Government will grant pension for the period of service rendered by such employee under DTET but the remaining amount shall obviously be paid by the IGIT. The same was indicated in the office order dated 21.06.2004 issued by the DTET with direction to IGIT to take decision regarding retirement benefits of the petitioner for the subsequent period in accordance with the guidelines. A sum of Rs.1275/- per month was thus sanctioned as provisional pension by the Government for the period from 10.10.1961 to 15.03.1989. The petitioner’s pensionable amount was calculated by IGIT as being Rs.1838/- per month. According to the petitioner, the same should have been calculated by granting minimum pension of Rs.1275/- also for the period of service under IGIT that is, 16.03.1989 to 31.08.2001. How far such claim is legally tenable is to be examined now. Page 11 of 16 13. The amount of pension is to be determined as per Rule 47 of the OCS (Pension) Rules, 1992, which as it stood in the year, 2001 reads as follows:- “47. Amount of Pension- The amount of pension that may be granted shall be determined by the length of completed six monthly periods of service rendered by the retired Government servant. (2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at 50 percent of the emoluments last drawn preceding to retirement. (b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (1) and in no case amount of pension shall be less than [rupees one thousand two hundred seventy-five]. (c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall be less than the amount of family pension admissible under Clause-(c) of Sub-rule (2) of Rule 56. (3) In calculating the length of qualifying service, a fraction of a year equal to three months and above but less than six month shall be treated as a completed one-half year and the period of six months and above shall be reckoned as two-half years. (4) (a) The amount of pension finally determined under Clause (a) or Clause (b) of Sub-rule (2) shall be expressed in whole rupees and where pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee. (b) Where the pension paid for a part of the month due to the death of the pensioner or pension paid for a part of the month to the Government servant for any reason if worked out in fraction of a rupee, the said pension may be rounded off to the next higher rupees. Page 12 of 16 (5) (i) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be paid at a uniform rate of half month’s emoluments for every completed six monthly period of service. (ii) The amount of service gratuity as finally calculated shall be rounded off to the next higher rupee.” 14. Plainly understood, for a Government servant retiring after completing the qualifying service of not less than 33 years, the amount of pension is to be calculated at 50 percent of the emoluments last drawn preceding to retirement. This is an important aspect to be considered for determination of the petitioner’s pensionary entitlement. After considering the rival contentions, it would appear that the petitioner is harboring a misconception that he ought to be paid Rs.1275/- per month as pension, even for the period of service rendered under IGIT. As already stated the amount of pension is always to be calculated on the basis of his last emoluments drawn. Reference by the petitioner to the Government Resolution dated 15.07.1998 also appears to be quite misconceived inasmuch as the same only provides that the minimum pension in respect of those Page 13 of 16 who have retired on or after 01.01.1996 shall be revised subject to minimum of Rs.1275/- per month. Reference has also been made in said Resolution Rule-47(2)(b), is the meaning of ‘emoluments’ has also been delineated under paragraph -5 of the Resolution. In the instant case, the Government sanctioned Rs.1275/- as provisional pension obviously in terms of the Resolution dated 15.07.1998 pending sanction of final pension. It was therefore, the task of IGIT, to calculate the final pension by following the provision under Rule-47 of the OCS (Pension) Rule. The total amount thus worked out cannot be less than Rs.1275/- per month. This is the purport of the Resolution dated 15.07.1998. If the contention advanced by the petitioner is to be accepted, it would amount to segregating the total length of service rendered by the petitioner into two segments, one under the Government and second under the IGIT. The pensionary entitlement cannot be segregated and calculated differently. In so far as the element of proportional amount of the pension by the Government and IGIT is concerned, the same is for the purpose of determining the Page 14 of 16 source from which the total pensionary amount is to be paid. In other words, in view of the notification dated 24.09.1987, the total pension payable to an employee like the petitioner is to be shared proportionately by the Government and IGIT. It cannot and does not mean that the petitioner would be entitled to two different pensions, which in any case is not permissible as per Rule-9 of the OCS (Pension) Rules. Who pays what amount is an internal matter over which the petitioner cannot have any say. The arguments advanced on such score are therefore, not tenable. 15. For the foregoing reason therefore, this Court is unable to accept the contentions advanced by the petitioner and holds that he shall be entitled to pension calculated as per the relevant provision of the OCS (Pension) Rules read with Clause-9 of the notification dated 24.09.1987 and Resolution dated 15.07.1998.The relief claimed by the petitioner cannot therefore, be granted. 16. However, the writ petition is disposed of directing the authorities of IGIT as well as Government to calculate Page 15 of 16 the final pensionary dues, strictly in consonance with the provisions of OCS (Pension) Rules and other relevant Government resolutions read with the notification dated 24.09.1987 as early as possible, preferably within two months. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 30th January , 2025/ B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-Jan-2025 19:04:32 Page 16 of 16