The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 273 of 2021 State of Odisha and others …. Appellants Mr. M.K. Khuntia, Additional Government Advocate -versus- Prafulla Chandra Nayak and others …. Respondents Mr. Jayant Kumar Rath, Senior Advocate CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY Order No. I.A. No.726 of 2021
Decision
ORDER 05.04.2023 03. 1. Since no delay has been pointed out by the Office, the application is disposed of. W.A. No.273 of 2021 2. The challenge in the present writ appeal by the Appellants, i.e., the State of Odisha is to an order dated 28th February, 2020 passed by the learned Single Judge in W.P.(C) No.12258 of 2018 asking the Appellant to re-fix the pension payable to Respondent No.1 by taking into account the service rendered by him between 18th January, 1983 and 30th April, 2014. 3. The background facts are that Respondent No.1 was initially appointed on 18th January, 1983 as Lecturer in Logic and Philosophy by the Lokanath Mohavidyalaya, Patkura. Another person Sri B.C. Jena also joined as Lecturer in Logic and Philosophy in the said college along with Respondent No.1. When their appointments were not being regularized, writ petitions were Page 1 of 5 filed in this Court. One such petition was OJC No.1092 of 1995 in which a direction was sought to the State Government to take a decision on the proposal submitted by the Director of Higher Education to the State Government for approval of the appointment of Respondent No.1 in the second post of Lecturer in the Logic Department in the above college. Following an order dated 30th June, 1994 in OJC No.3874 of 1994, this Court by an interim order dated 13th March, 1996 in OJC No.1092 of 1995 and directed the Department of Higher Education to act upon the above recommendation of the Director for approval of the appointment Respondent No.1 “in the second post of Lecturer of Logic Department of Lokanath Mohavidyalaya, Patkura”. However, ultimately, OJC No.1092 of 1995came to be dismissed on 1st November, 1996 when the Court was informed that the workload in the said college did not justify the creation of a second post of Lecturer. 4. Respondent No.1 then made a representation that he should be adjusted as a Lecturer in Logic and Philosophy Department in any other post in any other college. When no action was taken thereon, Respondent No.1 filed OJC No.2646 of 1997 which was disposed of by this Court on 8th July, 1997 permitting Respondent No.1 herein to make a representation to that effect. 5. Pursuant thereto, a representation was made by Respondent No.1 on 7th August, 1997. Acting on it, an order was issued by the Department of Higher Education on 8th October, 1999 appointing Respondent No.1 “against the vacant direct payment post of Bhimabhoi College in the district of Sambalpur”. Respondent No.1 Page 2 of 5 joined the above post and ultimately retired from that institution on 30th April, 2014. 6. When it came to sanctioning the pension of Respondent No.1, the period served by him between 18th January, 1983 and 13th November, 1999 was treated as ‘non-qualifying service’. 7. Aggrieved by the above decision, W.P.(C) No.12258 of 2018 was filed by Respondent No.1. The said petition was disposed of by the impugned order dated 28th February, 2020 by the learned Single Judge accepting the plea of Respondent No.1 that the period of service from 18th January, 1983 to 12th November, 1999 should be counted for the purposes of fixing his pension. The learned Single Judge relied on Rule 6 (1) of the Orissa Aided Educational Institution Employees Retirement Benefit Rules, 1981 (1981 Rules), which reads as under: “6. (1) In computing the length of qualifying service of an employee retiring on or after the 1st day of April, 1982, all previous services except those rendered prior to his attaining the age of eighteen years, whether temporary, officiating or permanent either in one or more than one recognized educational institutions, shall, subject to the conditions specified in Sub-rules (2), (3), (4) and (5) be taken into account for the purpose retirement benefits under these rules.” 8. Mr. M.K. Khuntia, learned Additional Government Advocate for the Appellants, points out that the above provision would apply only to the services rendered in a ‘sanctioned post’. If the post itself was not sanctioned, the service rendered would not count for the purpose of pension. He refers to a letter dated 1st February, 2016 issued by the Joint Secretary to the Government in the Department of Higher Education, which reads thus: Page 3 of 5 “In inviting a reference to your Letter No.48914 dated 15.12.2015 on the above noted subject, I am directed to say that, since all the benefits are provided to an employee of Aided College from date of approval of the post, computation of length of qualifying service is to be taken from that date.” 9. Mr. Khuntia volunteered that it was the mistake on the part of the Management to engage Respondent No.1 without there being a sanctioned post. In other words, because of the mistake of the Management Respondent No.1 has had to lose almost sixteen years of service rendered by him in the Patkura College for the purposes of fixation of his pension. 10. The facts of the present case are indeed peculiar. Although Respondent No.1 did not succeed in the writ petitions filed by him in the Court for being accommodated against a sanctioned post, he ultimately did get accommodated by the order passed by the Department of Higher Education again pursuant to a direction issued by this Court by virtue of an order dated 8th July, 1997 in OJC No.2646 of 1997. 11. Respondent No.1, is nearly 70 years old now has had to pursue this litigation, for over two decades, for getting his pension re-fixed after having rendered 31 years of service. It is impractical to expect anyone to resist an appointment order issued in 1983 without having any means of knowing whether it was being made against a sanctioned post. In other words, Respondent No.1 should not be made to suffer for the fault of the management of the College in question. 12. At the same time, the Court does see merit in the contention of the Appellant that service rendered whether temporary, ad hoc, or Page 4 of 5 in an officiating capacity, can be counted only if the post is a sanctioned one. Therefore, Rule 6 (1) of the aforementioned Rules will not come to the aid of Respondent No.1. 13. Keeping in view the peculiar facts of the case as noted hereinbefore, the Court clarifies that the impugned order of the learned Single Judge will not be treated as a precedent and will be confined to the peculiar facts of the case. 14. Now, that the impugned order of the learned Single Judge insofar as Respondent No.1 is concerned, is left undisturbed, it should be implemented by the Appellant within a period of eight weeks from today by issuing the appropriate orders re-fixing the pension of Respondent No.1. 15. The writ appeal is disposed of with the above observations and directions. The interim order passed earlier stands vacated. Chief Justice (Dr. S. Muralidhar) Judge S. Behera (G. Satapathy) Page 5 of 5