The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.8527 of 2022 ..... Laxmimani Moharana Petitioner Mr. K.K. Swain, Advocate State of Odisha & Ors. -versus- ..... CORAM: Opposite Parties Mr. S. Jena, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 07.08.2024 Order No. 14 1. This matter is taken up through hybrid mode. 2. Heard Mr. K.K. Swain, learned counsel appearing for the
Legal Reasoning
decision in the case of Subarna Dibya so relied on by this Court in its order dt.02.01.2024 in W.P.(C) No. 19938 of 2017 and the Rules governing the field. 6.1. It is observed that if any such application is moved within a period of three (3) weeks hence, Opp. Party No. 1 shall do well to take a lawful decision on the same within a period of three (3) months from the date of receipt of such application. 6.2. It is further observed that while taking such a decision on the claim of the Petitioner, relevancy and effect of the decision in the case of Subarna Dibya so also the stipulation contained under Rule 6(1) and Rule 8(2) of the 1986 Rules shall be taken into consideration, if it is applicable to the claim of the Petitioner.
Arguments
Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the above circumstances, it is humbly prayed that the writ petition may be allowed, And (A) a writ of mandamus or an appropriate writ may be issued commanding the opposite parties to release the family pension and T.I. in favour of the petitioner in terms of Rule-8 (2) of the Odisha Aided Educational Institutions (Non- Government Fully Aided Primary School Teachers) Retirement Benefit Rules, 1986 and her arrear family pension may be calculated and may be paid to her from the date of death of her husband i.e. 06.12.2017 and she may be allowed to avail current monthly family pension regularly, within a time to be stipulated by this Hon'ble Court; (B) And any other order or orders direction/directions may be issued so as to give complete relief to the petitioner; Page 1 of 6. And for this act of kindness, the petitioner shall as in duty bound remain ever pray.” 4. Learned counsel appearing for the Petitioner contended that even though late husband of the Petitioner was appointed by the Managing Committee of Adarsha Durgabati Rastrabhasa Bidyalaya, Baripada vide order of appointment issued on 01.07.1992 and he also joined on the said date, but his services was only approved w.e.f.01.03.2010 vide order dtd.06.06.2012 of the Govt.-Opp. Party No. 1 under Annexure-2. It is contended that while so continuing with due approval of the service Petitioners’ husband died on 06.12.2017. 4.1. Learned counsel for the Petitioner contended that taking into account the date of birth of the deceased employee so recorded in service book, in normal course, the deceased employee would have retired on attaining the age of superannuation on 31.05.2026. It is also contended that had the deceased employee continued till attaining the age of superannuation, he would have been entitled to get the benefit of pension and other pension benefits in terms of the provisions contained under Odisha Aided Educational Institutions (Non-Govt. Fully Aided Primary School Teachers) Retirement Benefit Rules, 1986. As because he died while in service on 06.12.2017 prior to completing the required qualifying service to get the benefit of pension, Petitioner who happens to be the wife of the deceased employee, has not yet been extended with the benefit of family pension. 4.2. Learned counsel for the Petitioner with regard to the short fall of the qualifying service of the deceased employee, placing reliance on the provisions contained under Rule 6(1) vis-à-vis Page 2 of 6. Rule 8(2) of the aforesaid 1986 Rules, contended that services rendered by the deceased employee w.e.f.01.07.1992 is required to be taken as qualifying service for the purpose of sanction of pension and pensionary benefits and so also family pension in favour of the Petitioner. 4.3. With regard to the submission made by the learned counsel for the Petitioner that had the deceased employee continued till his attaining the age of superannuation, he would have been automatically became entitled to get the benefit of pension and other pensionary benefits in terms of 1986 Rules, learned counsel for the Petitioner relied on a decision of this Court passed on 02.01.2024 in W.P.(C) No. 19938 of 2017. This Court placing reliance on the decision rendered in the case of Subarna Dibya & Ors. Vs. State of Odisha & Ors. reported in 2005 (I) OLR 168, which has been upheld by the Hon’ble Apex Court held the Petitioner therein entitled to get the benefit of family pension. Para 18 of the Judgment in the case of Subarna Dibya and Para 6 of order dtd.02.01.2024 are reproduced hereunder:- “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 taking 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 Page 3 of 6. case may be in certain eventualities; one of the same being 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, the authorities shall first decide as to 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 receive pension if he would have superannuated in usual course, but unfortunately died in harness in the light of Rule 4(3) of the 1986 Rules. xxxx xxxx xxxx 6. Having heard learned counsel appearing for the Parties and in view of such position, this Court is inclined to quash the order dt.17.06.2017 so passed by Opp. Party No.4 under Annexure-11. While quashing the same, this Court directs Opp. party No.4 to take consequential action for sanction of family pension in favour of the Petitioners as due and admissible from the date of entitlement and release the same along with arrear family pension within a period of two months from the date of receipt of this order.” 4.4. Making all these submissions learned counsel for the Petitioner contended that appropriate direction be issued to the Opp. Parties to extend the benefit of family pension in favour of the Petitioner by treating the deceased employee to have rendered the required qualifying service for the purpose of sanction of pension and other pensionary benefits. Page 4 of 6. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submissions basing on the stand taken in the counter affidavit so filed by Opp. Party No. 4. Placing reliance of the stand taken in the counter affidavit, learned Addl. Govt. Advocate contended that even though deceased employee was appointed by the Managing Committee vide order dtd.01.07.1992, where he joined on the said date, but since services of the deceased employee was only approved w.e.f.01.03.2010 vide order dtd.06.06.2012 under Annexure-2 and prior to completing the required qualifying service, he died on 06.12.2017, the deceased employee was not eligible to get the benefit of pension and pensionary benefits in view of the provisions contained under the Odisha Aided Educational Institution Employees’ Retirement Benefit Rules, 1981. Since the deceased employee was not eligible to get the benefit of pension and pensionary benefits, claim of the Petitioner to get the benefit of family pension also does not arise. The stand taken in the Para 6, 7 & 9 of the counter affidavit reads as follows:- “6. That Adarsha Durgabati Rastrabhasa Vidyalaya, Baripada is/was a Non-Govt. Aided Educational Institution and as such Odisha Aided Educational Employees Retirement Benefit Rules, 1981 for Pension/Family is applicable pension/ and pensionary/family pensionary benefits on retirement/death of an employee under Rule-3 of the said Rules, 1981. 7. That as per Rules-8(2) of the O. Α.Ε.Ι.Ε. Retirement Benefits Rules, 1981 it is defined "An employee shall be eligible for pension if he has completed not less than ten years of qualifying service up to the date of his retirement xxxx" xxx xxx xxx Page 5 of 6. 9. That the husband of the petitioner had rendered qualifying service for a period from 1.3.10 to 6.12.17, the date of his death i.e. for 7 years 9 months and 6 days only as per his service records.” 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court while disposing the writ petition, permits the Petitioner to make an appropriate application before Opp. Party No. 1 to get the benefit of family pension along with all the relevant documents including the
Decision
7. With the aforesaid observation and direction, the writ petition is disposed of. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Sneha Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2024 19:43:02 (BIRAJA PRASANNA SATAPATHY) Judge Page 6 of 6.