The High Court · 1995
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 22614 of 2017 Ganga Rani Behera …. Petitioner Mr. S. Udgata, Advocate -Versus - State of Odisha and others ….
Legal Reasoning
Opposite Parties Mr.S. Pattanaik, Additional Government Advocate CORAM: JUSTICE SASHIKANTA MISHRA ORDER_ 16.08.2023 Order No. 10. 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the petitioner and learned counsel for the State. 3. The petitioner has approached this Court seeking the following relief.:- “In the facts and circumstances narrated above and in the interest of justice, this Hon’ble Court may graciously be pleased to issue notice to the opposite parties, call for the record and after hearing the parties issue writs/directions/declaration: Quash the impugned order passed in Annexure-12 to the writ application. pleased further be to ii) Direction directing the opposite party to sanction family pension with effect from 1.9.88 and temporary increase in family pension with effect from 1.10.1995. i) And all the writ application with cost. And grant such other relief(s) as this Hon’ble Court may deem fit and proper. And for this act kindness the petitioner shall as in duty Page 1 of 5 bound every pray.” 4. The facts of the case are that the petitioner’s husband was working as Lecturer in English in Hinjilicut Science College, Ganjam and died in the harness on 07.11.1979. Since he was born on 01.04.1935 he would have retired on attaining the age of superannuation of sixty years in ordinary course on 31st March 1995 and therefore, would have been eligible for pension as per the Orissa Aided Educational Institutions Employees Retirement Benefits Rules, 1981. It is the case of the petitioner that despite repeated requests including approach to this Court in OJC No.11634 of 2001 and CONTC No. 6923 of 2005, the family pension, to which the petitioner is entitled to, has not been released. Further as per order dated 01.02.2016 (Annexure-12), the Principal Secretary to Government in the Department of Higher Education rejected the claim of the petitioner on the ground that the petitioner’s husband was not a pensioner and did not come within the purview of the 1981 Rules as he had expired prior to coming into force of the said rules. 3. In course of argument, Mr. S. Udgata learned counsel for the petitioner relies upon a judgment passed by this Court in the case of Subashini Patnaik v. State of Orissa and others, reported in 2023 (II) CUT 247 wherein it was held under Paragraphs- 8 to 10 as follows:- “8. What is relevant to note from the aforesaid observation is that an extended meaning was given to the word ‘pensioner’ to include in its ambit an employee who was entitled and/or in consonance with the rules was eligible to be covered in the pension scheme. In the Page 2 of 5 instant case there is no dispute that the husband of the petitioner was not a pensioner as on the date of his death and he died much before, i.e. on 01.09.1988. However, the question is, would he have been eligible to receive pension had he lived. As already stated, the husband of the petitioner joined in service on 01.08.1948. His date of birth is said to be 10.08.1926. As such, had he lived, he would have retired in August 1984, which is after 01.04.1982. 9. In Subarna Dibya (supra) this Court also considered the case of the family members of an employee, who died in harness and observed as follows:- taking “18. The only other question, which needs to be answered, is as to whether the family members of an employee who died in harness would be eligible to receive family pension or not. In such eventuality, the decision will differ from case to case. It is needless to say that in consonance with the Orissa Pension Rules and other provisions the family of an employee who dies in harness would be entitled to pension or proportionate pension as would be admissible into consideration the number of years of service rendered by him and other eventualities. Rule 8 of the 1986 Rules stipulates that an employee shall be eligible for pension, gratuity or death-cum-retirement gratuity as the case may be in certain eventualities; one of retirement before superannuation on medical ground or permanent incapacity for further service. If an employee is entitled to pension having retired prematurely on being permanently incapacitated, there can be no reason to extend the benefit of family pension to an employee who dies in harness. In such cases, to the authorities shall first decide as same being the Page 3 of 5 whether the employee was eligible to receive proportionate pension in consonance with the Rules and if it is found that, in fact, the employee was entitled to receive pension, take a decision with regard to extending the benefit of family pension to the family of such employee, who was otherwise eligible to have if receive superannuated but unfortunately died in harness in the light of Rule 4(3) of the 1986 Rules.” he would pension course, usual in 10. This Court has already held that had the petitioner not died in harness, he would have superannuated ordinarily in August 1984. By such time the benefit of family pension granted as per the 1981 Rules w.e.f. 01.04.1982 had already come into force. As such, he would have been eligible to receive pension. As a natural corollary thereof, the petitioner would be entitled to family pension as per the Rules.” According to Mr. Udgata the facts of the said case are entirely comparable to the facts of the present case. 5. Mr. Suvashish Pattanaik, learned Additional Government Advocate fairly submits that the case of Subashini Patnaik (supra) are similar to the facts of the present case. Since this Court has also found that the facts of the present case are similar to the facts of Subashini Patnaik (supra), there can be no hesitation in holding that the rejection of the petitioner’s claim as per the impugned order under Annexure-12 cannot be sustained in the eye of law. 6.
Decision
The writ petition is therefore, allowed. The impugned order under Annexure-12 is quashed. The opposite parties authorities are directed to pass necessary orders extending the benefit of family pension to the petitioner in accordance with the Rules, if there is no Page 4 of 5 other legal impediment. Having regard to the fact the petitioner is an old lady, aged about 80 years, necessary order shall passed as directed within a period of four weeks. (Sashikanta Mishra) Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2023 12:20:52 Page 5 of 5