The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) NO.5124 of 2023 Fakir Charan Nayak …. Petitioner Mr. S.K. Patra, Adv. -versus- State of Orissa & Others … Opp. Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 23.11.2023 12. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S.K. Patra, learned counsel for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State-Opp. Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer. <Issue Rule Nisi calling upon the Opp. Parties as to why the writ in the nature of mandamus or any other writ(s) direction(s) shall not be issued to the Opp. Parties to show cause or to fail or show insufficient cause the said rule made absolute and direction may made to the Opp. Parties to pay the pension with interest to the Petitioner within a short period from the date of his entitlement i.e. from acceptance of technical resignation.= 4. It is contended that Petitioner while continuing as a Hindi Teacher in Kapilamuni High School, Pikirali, he was allowed by the Managing Committee of the School to go on deputation to Jawahar Navodaya Vidyalaya, Mundali, Cuttack w.e.f 27.11.1986 with due approval by the then Inspector of Schools, Cuttack vide his letter No.19789 dt.28.11.1986. 4.1. It is contended that his deputation to Jawahar Navodaya Vidyalaya was also extended for the period from 28.11.1988 to 27.11.1989 in terms of the letter issued by the Director // 2 // Secondary Education vide letter No.36723 dtd.01.11.1988 and finally Petitioner was permanently absorbed in Jawahar Navodaya Vidyalaya, Mundali w.e.f 01.05.1989 vide office order dtd.17.04.1991 of the Deputy Director, Nabodaya Vidyalaya Samiti, Bhopal, consequent upon acceptance of his technical resignation from Kapilamuni High School, Pikirali. 4.2. Learned counsel appearing for the Petitioner contended that Petitioner was appointed as a Hindi Teacher in Kapilamuni High School, Pikirali which is an aided educational institution and governed under the provisions contained under the Odisha Education (Recruitment & Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. It is also contended that since Petitioner’s resignation was a technical one, Petitioner become eligible to get the benefit of pension and pensionary benefits for the period he rendered his service in the school from 11.02.1970 to 28.11.1986. It is further contended that Opp. Party NO.2 vide his letter dt.01.07.2019 under Annexure-12 though recommended his claim to the Government for sanction of pension and pensionary benefits, but when the same was not acted upon, the present Writ Petition was filed. 4.3. It is contended by the learned counsel appearing for the Petitioner that since Petitioner with due approval of Inspector of Schools, Cuttack was allowed to go on deputation and his resignation was duly accepted, being a technical one, the Petitioner is eligible and entitled to get the benefit of pension and other pensionary benefits by taking the period of service he served in the school in question as qualifying service. Not only that, taking into account the date of retirement of the Petitioner on 30.09.2010, Petitioner is eligible to get the pension w.e.f 01.10.2010 in terms of the provision contained under the Page 2 of 7 // 3 // Orissa Aided Educational Institutions Retirement Benefit Rules, 1981 (in short, <1981 Rules=). 4.4. In support of his aforesaid submission, Mr. Patra, learned counsel relied on a decision of this Court passed on 06.12.2021 in W.P.C (OA) No.1528 of 2003. This Court in Paragraph Nos.5,6 & 7 has held as follows. 5. Having heard learned counsel for the parties and after going through the records, this Court finds that the Petitioner was working as Medical Officer in E.S.I scheme under the Labour and Employment Department w.e.f 03.08.1980 and continued till 19.05.1994 for a total period of 13 years 9 months 16 days. But pursuant to advertisement issued by the Steel Authority of India Limited, Rourkela, a public sector undertaking, the Petitioner applied for the post of Specialist in Chest Diseases, through opposite party no.1, who forwarded his application to appear in the said interview. Thereafter, the petitioner appeared in the examination and was selected. Consequentially, the petitioner was joined in the post with leave of the State Government. Therefore, it cannot be construed that the Petitioner, on his own volition, joined in the public sector undertaking, namely, Steel Authority of India Limited, Rourkela and is not entitled to get the pensionary benfits as due and admissible to him in accordance with law. Such contention of opposite party cannot sustain in view of the provisions contained under Rule-43 of the O.C.S (Pension) Rules, 1992 which is extracted hereunder:- “43. Pension on absorption in or under a Corporation and public undertakings- (1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Public Undertaking wholly or the substantially owned or controlled by jointly Government controlled by the Government and Central Government or by the Government or any other State Government to be in the public interest be deemed to have retired from service from the date of such absorption, i.e., the date on which he actually joins that Corporation or Public undertakings or Joint Sector Undertakings and shall be eligible to receive retirement benefits. or an undertaking 6. Perusal of above mentioned Rules, makes it clear that a Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Public Sector Undertaking wholly or substantially owned or controlled by the Government or an undertaking jointly controlled by the State Government and Central Government or by the Government or any other State Governments to be in the public interest, be deemed to have retired from service from the date of such absorption, i.e., the date on which the actually joins that Corporation or Public Sector Undertakings or Joint Sector Undertakings and shall be eligible to receive retirement benefits. Therefore, the Petitioner, who was Page 3 of 7 // 4 // working as a Medical Officer in E.S.I scheme under the Labour and Employment Department and applied for the post advertised in Steel Authority of India, Rourkela and duly permitted by opposite party no.1 and consequence thereof the petitioner appeared in the examination and got selected, pursuant to which he joined in the Steel Authority of India, Rourkela. Thereby, now the Government cannot turn around and say that the Petitioner is not entitled to the benefits as per Rule-43 of the O.C.S (Pension) Rules, 1992. Rather, being a model employer, the Government should extend the benefits in terms of Rule-43 of the O.C.S (Pension) Rules, 1992. In the counter affidavit, stand has been taken that on own volition, the petitioner had left the job. But the same cannot have any justification in view of the fact that opposite party no.1 permitted the petitioner to participate in the process of selection and, as such, the petitioner having been selected by following due procedure, was permitted to leave the job in order to join in the public sector undertakings. Therefore, the stand taken in the counter affidavit cannot sustain in the eye of law. Therefore, this Court is of the considered view that the Petitioner is entitled to retirement benefit as per Rule-43 of the O.C.S (Pension) Rules, 1992 and directs accordingly. So far as leave salary is concerned, since clause-4(b)- 7. (IX) of office memorandum no.55423/F dated 14.11.1986 is not applicable to the Petitioner, as per clause-(c) of the office memorandum dated 14.11.1986, the petitioner is only entitled to get the benefit of leave encashment to the extend of equivalent to half of such leave at his credit subject to maximum of 120 days. Thereby, the claim made by the Petitioner to extend the leave salary for encashment of 186 days, cannot sustain in the eye of law. If authority has already extended the benefit for 93 days, the benefit of balance days excluding 120 days be extended in favour of the Petitioner. The entire exercise shall be completed within a period of four months from the date of production of certified copy of this order.= 4.5. Mr. Patra, learned counsel also relied on another decision of this Court so passed on 18.11.2022 in W.P.(C ) No.1312 of 2015. This Court on the question of technical resignation in Para 15 has held as follows: 15. This Court is of the view that the grounds taken by the learned Tribunal while dismissing the Original Application is not legally sustainable as the order passed initially vide Memorandum dated 04.09.2009 is not supported by any reason whatsoever. This Court is also not inclined to accept the submission made by the learned counsel appearing for Opposite Party No.2 that since the resignation tendered by the Petitioner is not a technical resignation, in view of guideline contained in F.R-22, the same cannot be accepted. Since the resignation tendered by the Petitioner has been duly accepted by the Registrar, Civil Courts, Puri, the ground on which the prayer was rejected vide Memorandum dated 04.09.2009 and thereafter by the learned Tribunal vide the impugned order dated 09.07.2014, cannot sustain law. Accordingly, while quashing both the orders, this Court directs Opposite Party No.2 to treat the period of service of the the eye of in Page 4 of 7 // 5 // Petitioner from 12.12.1990 to 06.03.1993 as qualifying service and extend the benefit as due and admissible.= 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. At the outset, Mr. Jena, learned Addl. Govt. Advocate contended that the recommendation made by the Dy. Director under Annexure-12 though was rejected by the Government- Opp. Party No.1 vide communication dtd.08.11.2019 under Annexure-B/4 and the Petitioner since has never challenged the rejection of his claim, the prayer as made in the Writ Petition cannot be entertained. 5.1. It is also contended that after receipt of the proposal from the Director under Annexure-12, the matter was referred to the Finance Department. But the Finance Department contended that the Petitioner since has tendered his resignation on his own will, he is not eligible to get the benefit of pension and other pensionary benefits in accordance with the provisions contained under the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981. Accordingly, Petitioner’s claim was rejected by the Govt vide letter dt.08.11.2019 under Annexure-B/4. It is contended that since the Petitioner tendered his resignation on his own will, in view of the decision of the Finance Department, the Petitioner’s claim has been rightly rejected. It is also contended that the claim of the Petitioner since is not coming within the purview of Rule-4 of the aforesaid 1981 Rules, Petitioner is not eligible to get the benefit of pension and other pensionary benefits. It is accordingly contended that Petitioner is not eligible and entitled
Decision
to get the benefit as prayed for in the Writ Petition. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Petitioner entered into service as a Hindi Teacher in Kapilamuni High School, Pikirali where he joined on Page 5 of 7 // 6 // 11.02.1970. It is also found that while continuing as such and with due approval of the Inspector of School, Cuttack, he was allowed to go on deputation w.e.f 26.11.1986 to Jawahar Navodaya Vidyalaya, Mundali. It is also found from the record that the Petitioner was allowed to continue on deputation basing on the permission accorded by the Director, Secondary Education dtd.01.11.1988 and the Petitioner was also absorbed in Jawahar Navodaya Vidyalaya w.e.f 01.05.1989 basing on the office order passed by the Dy. Director, Navodaya Vidyalaya Samiti on 07.04.1991. On such absorption of the Petitioner in Jawahar Navodaya Vidyalaya, he was allowed to take resignation from Kapilamuni High School, Pikirali. But it is found that the Finance Department while rejecting the claim has taken a stand that the Petitioner tendered his resignation on his own will and he is accordingly not entitled to get the benefit of pension. As per the considered view of this Court, such a stand taken by the Finance Department and reflected in the letter dtd.08.11.2019 under Annexure-B/4 is not sustainable in the eye of law as it is contrary to the record. 6.1. Not only that since the rejection of the Petitioner’s claim was never communicated to the Petitioner at any point of time as found from Annexure-B/4, the said rejection is not sustainable and liable to be quashed and quashed accordingly. 6.2. Since from the record, it is found that the Petitioner was allowed to take technical resignation from Kapilamuni High School w.e.f 26.11.1986, this Court placing reliance on the decisions cited supra, is of the view that the Petitioner is eligible and entitled to get pension and other pensionary benefits by taking the period of service he rendered in Kapilamuni High School, Pikirali as qualifying service. This Court while holding so, directs Opp. Party Nos.4 & 5 to take effective steps for sanctions of pension and other pensionary benefits as due and admissible in favour of the Petitioner in accordance with the provisions contained under the 1981 Rules. The entire exercise Page 6 of 7 // 7 // shall be undertaken and completed by Opp. Party NO.4 & 5 within a period of four (4) months from the date of receipt of this order. The Writ Petition is accordingly disposed of. sangita (Biraja Prasanna Satapathy) Judge Page 7 of 7