In the matter of an application under Articles 226 & 227 of Constitution of v. Vice-Chancellor, Utkal University and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 25156 OF 2013 In the matter of an application under Articles 226 & 227 of Constitution of India. --------------- AFR Pratap Kumar Mohanty …… Petitioner - Versus - Vice-Chancellor, Utkal University and Ors. ...…. Opp. Parties Advocates appeared in the case through hybrid mode: _______________________________________________________________ For Petitioner : M/s. Sanjib Mohanty, S.C. Mohanty, B. Biswal & C. Sethy, Advocates For Opp. Parties : M/s. T. Pattanayak, S. Pattanaik and M. Ojha, Advocates (For O.Ps. No.1 & 2) Addl. Government Advocate (For O.Ps. No.3 to 4)
Legal Reasoning
Mr. S.N. Pattnaik, ________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 13th September, 2024 Page 1 of 8 SASHIKANTA MISHRA, J. Heard Shri Sanjib Mohanty, learned counsel for the petitioner, Shri Tarananda Pattanayak, learned counsel appearing for the Utkal University-opposite parties no.1 & 2, and Shri S.N. Patnaik, learned Addl. Government Advocate for the State-opposite parties no.3 and 4. 2. The petitioner has approached this Court with the following prayer:- “Therefore, it is humbly prayed that this Hon’ble Court may kindly be pleased to admit the case issue notice to the Opp. Parties to file their show cause as to why the case of the petitioner shall not be allowed and after hearing the parties the case of the petitioner be allowed and direction be given to the Opp. Parties more particularly to Opp. Party No.1 & 2 to treat the entire service period of the petitioner as qualifying service and the petitioner be given all other statutory benefit such as pension gratuity, G.P.F., leave dues etc. counting the period of service rendered before regularization.” 3. The facts, relevant only to decide the present application, are that the petitioner was appointed as Junior Assistant in the Utkal University on 01.10.1983 on consolidated wage basis. The petitioner’s service was ultimately regularized as per order dated 26.07.2013. On attaining the age of superannuation, the petitioner was Page 2 of 8 permitted to retire from service on 31.10.2015. Despite rendering more than 30 years of continuous service, the petitioner was not paid pension on the ground that his case would be considered under the new contributory pension scheme dated 13.07.2006 of the Finance Department. 3.1. According to the petitioner, he, having been appointed in the year 1983, should be governed under the provisions of the Odisha Pension Rules, 1977 and his qualifying service ought to have been counted by taking his entire past service into account. Moreover, for the fault of the opposite party-authorities, the petitioner should not be made to suffer inasmuch as despite repeated orders passed by this Court in different writ applications as also the Supreme Court, the authorities took as long as 23 years to regularize the services of the petitioner. Under such circumstances, the petitioner cannot be deprived of his legitimate right to pension under the Odisha Pension Rules. 4. The stand of the University is that the matter of pension was referred to the Government, as petitioner’s emoluments were being paid from out of the grant Page 3 of 8 sanctioned by the Government. Accordingly, on 10.10.2012, the Government in the Department of Higher Education, while concurring with the proposal for regularization of the services of 15 (fifteen) employees, including the petitioner, observed that necessary payment of salary and other allowances shall be made to the said employees by the University from its own resources without any financial burden on Government in future. It was further stipulated that the salary/other dues shall not be part of annual block grant sanctioned by the Government. 5. During pendency of this writ application, on request being made by the Registrar of the University as per letter dated 09.08.2024 for reconsideration of the matter, the Government in Higher Education Department in its communication dated 11.09.2024 reiterated that the salary and other allowances to the petitioner may be paid from the University’s own resources without any financial burden on the Government. The letter dated 11.09.2024 is extracted herein below:- Page 4 of 8 “GOVERNMENT OF ODISHA HIGHER EDUCATION DEPARTMENT No. HE-UE-CASE-0112-2024 35772/HE., Dated the 11.09.2024 From Sri Ramakanta Nayak, OAS (SS) Special Secretary to Government To The Registrar, Utkal University Sub: W.P.(C) No.25156/2013 filed by Pratap Kumar Utkal Vice- Mohanty-Vrs- University and Others. Chancellor, (i) Registrar, Utkal University letter No.195 dated 09.08.2024 (ii) Higher Education Department Letter No. 24956, dt. 10.10.2012 Ref: Sir, In inviting a reference to the subject mentioned above, I am directed to say that vide this Department letter No.24956 dated 10.10.2012 (copy enclosed) it had been directed to make necessary payment of salary and other allowances to the petitioner from the University’s own resources without any financial burden on Government. Hence, the request to reconsider the matter as per your letter no. 195, dt. 09.08.2024 is hereby regretted and you are requested to act as per the decision of this Department letter No.24956, dated 10.10.2012 in making payment of pension and all other dues from your own fund, for all such similar cases, without referring this type of Department. matter henceforward to the Yours faithfully, Sd/- Special Secretary to Government” 6. From the foregoing narrations and the stand taken by the Government, this Court finds that there is nothing left for adjudication in the writ application inasmuch as admittedly, the petitioner was appointed way back in the year 1983, but his services were regularized on Page 5 of 8 the basis of the order dated 10.10.2012 of the Government. Basing on the Government order, the University passed an order on 24.07.2023 specifically mentioning therein that the services of the petitioner are regularized as Junior Assistant with effect from 01.10.1983 in the prevalent scale of pay. The said order is extracted herein below:- “Pursuant to the orders passed by the Hon’ble High court of Orissa in Contc No.2902 of 2012 on 17.07.2023 arising out of W.P.(C) No. 2599 of 2002 the Vice- and subsequent orders passed by Chancellor on 21.07.2023, the service of Sri Pratap Kumar Mohanty is hereby regularized as Jr. Assistant with effect from 01.10.1983 in the scale of pay 255-890 as per ORSP Rules, 1981 with usual dearness allowance and other allowances as admissible under the rules of the University from time to time. He is allowed to draw his salary in the scale applicable to the post of Jr. Assistant in line with the direction of the Hon’ble High Court of Orissa in W.P.(C) No.2599 of 2002.” 7. In view of the specific order quoted above, the petitioner must be deemed to have been a regular employee of the University from 01.10.1983. To such extent therefore, he would be entitled to pension as per the rules applicable to such employees, namely, the Odisha Civil Service (Pension) Rules, 1992. Such being the case, the University obviously cannot take a stand that the financial resources Page 6 of 8 towards salary and other allowances, including pension, are to be provided by the Government. In fact, the Government has made it clear that the University can meet these expenses from its own resources. Since this is a case concerning a regular employee of the University, he cannot obviously be deprived of his legitimate pensionary dues by the University on the ground that his salary and other emoluments are dependent on the grant sanctioned by the Government from time to time. It is needless to mention that once he becomes a regular employee, it is for the University to meet the expenses towards his salary and other allowances. 8. It is a matter of concern that the petitioner, after rendering more than three decades of regular service to the University, retired on superannuation on 30.10.2015 without being granted pension and pensionary benefits. More than 9(nine) years have passed in the meantime and yet he is deprived of his legitimate dues towards pension and pensionary benefits. It is well settled that pension, not Page 7 of 8 being a gratis, cannot be withheld without any justified reason. 9. This Court, after going through the materials available on record and in particular, the communications between the University authorities and the Government, finds no justified reason for the University to have deprived the petitioner from his pension and pensionary benefits. 10. For the foregoing reasons therefore, the writ application is allowed. The University authorities are directed to pass necessary orders to sanction and disburse the pension and other pensionary benefits in favour of the petitioner, as per the provisions of the Odisha Civil Service (Pension) Rules, 1992, without any further delay and in any case, not later than one month from the date of production of certified copy of this order by the petitioner. ……..……………………. Sashikanta Mishra, Judge Signature Not Verified Orissa High Court, Cuttack. The 13th September, 2024/ GDS Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: Orissa High Court, Cuttack Date: 17-Sep-2024 19:25:24 Page 8 of 8