The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9179 of 2024 Ratnakar Padhi …. Petitioner State of Odisha& Others …. Opposite Parties -versus- Advocates appeared in the case:- For Petitioner : Mr. Khirod Ch. Mohapatra, Advocate For Opposite Parties :
Legal Reasoning
Mr. Debakanta Mohanty, AGA CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN JUDGEMENT 14.05.2024 Chakradhari Sharan Singh, C.J. 1. The petitioner, in the present writ petition has put to challenge the validity of Rule 47(4) (c) of Odisha Civil Services (Pension) Rules, 1992 (for short, “the Rules of 1992”) on the ground that language used therein is ambiguous and does not disclose real purport of the said provision, which allows additional pension to the State Government employees after completion of 80 years of age. 1.1. The said Rule 47(4)(c) of Odisha Civil Services (Pension) Rules, 1992 reads as follows:- “(4)(c) In addition to the pension calculated above, the quantum of pension payable to the old pensioners shall be increased w.e.f. dtd.01.12.2008 in case of State Government employees and Page 1 of 8 w.e.f. dtd.01.01.2006 in case of State Judicial Officers after completion of eighty years of age or above in the following manner:- Age of pensioner Additional quantum of pension From 80 years (on completion) to less than 85 years From 85 years (on completion) to less than 90 years From 90 years (on completion) to less than 95 years From 95 years (on completion) to less than 100 years 100 years (on completion) or more 20% of the basic pension. 30% of the basic pension. 40% of the basic pension. 50% of the basic pension. 100 % of the basic pension.” 2. Notably, the petitioner had earlier approached this Court by filing a writ petition giving rise to W.P.(C) No.15970 of 2023 claiming additional pension on attaining age of 80 years. The said writ petition was disposed of by this Court by an order dated 18.05.2023 with the following direction:- “6. Considering the submissions made, the limited nature of grievance involved in the present writ petition, keeping in view the case of the petitioner, this Court deems it proper to dispose of the writ petition at the stage of admission with a direction to the Secretary, Department of Home, Bhubaneswar-Opposite Party No.1 to consider the representation of the petitioner under Annexure-4 in accordance with law taking into consideration the judgment of the Hon‟ble Supreme Court of India in the case of Union of India and others vrs. Virendra Dutt Gyani in Special Leave Petition (Civil) Diary No.18133 of 2019 disposed of on 08.07.2019 as well as keeping in view the judgment of Gauhati High Court relied upon by the petitioner within a period of four weeks from the date of production of certified copy of this order. It is needless to mention here that the representation of the petitioner shall be considered and disposed of by passing a speaking and reasoned order. Decision so taken on the said representation shall be communicated to the petitioner within a period of two weeks thereafter.” Page 2 of 8 3. In the light of this Court‟s order dated 18.05.2023, upon considering the petitioner‟s case, the Additional Chief Secretary to the Govt., Home Department, passed an office order on 30.06.2023 recording that the petitioner had retired from Government service with effect from 31.01.2000 on attaining the age of superannuation and was receiving pension in accordance with the Rules, 1992. He, further, recorded in his order that the petitioner was entitled to additional pension in terms of Rule 47 (4)(c) of the Odisha Civil Services (Pension) Rules, 1992 upon „completion‟ of 80 years of age. Accordingly, the Additional Chief Secretary rejected the petitioner‟s representation. 4. In that background, the petitioner has challenged the very legality of Rule 47 (4)(c) of the Rules, 1992 relying on a Gauhati High Court decision in the case of Virendra Dutt Gyani vs. The Union of India and 5 others rendered on 15.03.2018 in WP(C) No.4224 of 2016. It is the petitioner‟s case that a i.e. Special Leave being SLP (C) Diary No.18133 of 2019 before the Supreme Court against the aforesaid decision of the Gauhati High Court has been dismissed on 08.07.2019. 5. Learned counsel appearing on behalf of the petitioner has drawn our attention to paragraphs-28 and 29 of the decision in case of Virendra Dutt Gyani (supra), which reads thus:- “28. If we look at the first two slabs, we find that the first slab is from 80 years to less than 85 years and the second slab is from 85 years to less than 90 years. The second expression in both the slabs is quite clear: it is either less than 85 years or less than 90 years. Now, if we apply the interpretation given by the respondents to the first expression i.e., from 80 years and from Page 3 of 8 85 years, consequence would be that on completion of 80 years to less than 85 years a retired judge would be entitled to the first scale of additional pension and again on completion of 85 years to less than 90 years, the retired judge would be entitled to the second scale of additional pension. In this process, not only the 80th year would stand excluded, even the 85th and 90th years would be excluded. Likewise, the 95th year as well as the 100th year would also be excluded. This could not be and certainly was not the intention of the law makers. Therefore, by applying purposive interpretation, we have no hesitation in our mind that the interpretation put forward by the respondents is not only unreasonable and irrational leading to an anomalous situation, it would also defeat the very object behind insertion of Section 17B in the Act. 29. This question can also be looked at from another angle. When we say “from 2016 onwards” what do we mean? Whether it would be from 01-01-2016 i.e., from the first day of the year 2016 or on completion of the year 2016 on 31-12- 2016? The answer is quite apparent; it has to be from the first day of the year itself.” 5.1. He has also submitted that the provision incorporated in Rule 47 (4)(c) of the Odisha Civil Services (Pension) Rules, 1992 by virtue of Notification No.Pen.162/2015/24142, dated 04.09.2015 is contrary to the law as declared by the Gauhati High Court in case of Virendra Dutt Gyani (supra) at paragraphs 28 and 29 of the said judgment, which has been affirmed by the High Court. 6. We are of the view that challenge to the provision under Rule 47(4)(c) of the Rules, 1992 as noted above on the ground of the same being ambiguous is per se not sustainable. Firstly, as statutory provision cannot be questioned on the ground of ambiguity in language. Secondly, we are of the view that the language of the said provision suffers from no ambiguity. It clearly mentions, as can be seen on a plain reading of Rule 47 (4)(c) that 80 Page 4 of 8 years would mean „upon completion of 80 years‟. For the age- bracket 80 years to 85 years, 85 years has also been clearly defined as “less than 85 years.” In continuity, for the age bracket 85 to 90 years, 85 years has definite description i.e. on completion of 85 years to less than 90 years, so on and so for. 7. The Gauhati High Court‟s decision in case of Virendra Dutt Gyani (supra) is clearly distinguishable for the reason that in the said case, interpretation of Section 17B of the High Court Judges (Salaries and Conditions of Service) Act, 1954 was under consideration. The said provision as quoted in paragraph-16 of the said decision. Paragraph-16 of the decision, is being reproduced herein below:- “The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2009 was enacted to amend the Act and also the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958. As per Section 4 of this Act, after Section 17A in the Act, the following section should be inserted as Section 17 B:- “17-B. Additional quantum of pension or family pension- Every retired Judge or after his death, the family, as the case may be, shall be entitled to an additional quantum of pension or family pension in accordance with the following scale:- Age of pensioner or family pensioner Additional quantum of pension From eighty years to less than eighty five years From eighty five years to less than ninety years From ninety years to less than ninety five years or family pension Twenty percent of basic pension or Family pension Thirty percent of basic pension or family pension Forty percent of basic pension or family pension From ninety five years to less than hundred years Fifty percent of basic pension or family pension Page 5 of 8 From hundred years or more Hundred percent of basic pension or family pension.” 8. There is clear distinction between the provision which was under consideration before the Gauhati Court and the provision under Rule 47 (4)(c) of the Rules, 1992. In the Rules of 1992, there being specific stipulation that additional pension shall be admissible upon „completion‟ of 80 years, 85 years, 90 years, 95 years and 100 years, and so on the petitioner cannot claim that the same is ultra vires Article 14 of the Constitution. The plea that additional pension should be allowed “from” the date the pensioner entered the age of 80 years, 85 years, 90 years, 95 years or 100 years is wholly misconceived. 9. Our view finds support from the Supreme Court‟s decision in case of Prabhu Dayal Sesma v. State of Rajasthan reported in (1986) 4 SCC 59. In the said case, the interpretation of Rule 11-B of Rajasthan State and Sub-ordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 had fallen for consideration, which laid down the age criteria with the stipulation that a candidate must have attained the age of 21 years and must not have attained the age of 28 years on the 1st day of January and next following the last date fixed for receipt of the application. The Supreme Court noticed paragraph 178 at page 100 of Halsbury‟s Laws of England, 3rd edn., vol. 37, which stated the law as under: “In computing a period of time, at any rate when counted in years or months, no regard is, as a general rule, paid to fractions of a day, in the sense that the period is regarded as complete although it is short to the extent of a fraction of a day.... Similarly, in calculating a person's age the day of his Page 6 of 8 birth counts as a whole day; and he attains a specified age on the day next before the anniversary of his birthday.” 10. It would be beneficial to notice the discussion made in paragraphs 11 and 12 of Prabhu Dayal Sesma (supra), which read as under: “11. We have come across two English decisions on the point. In Rex v. Scoffin [LR (1930) 1 KB 741] , the question was whether the accused had or had not completed 21 years of age. Section 10(1) of the Criminal Justice Administration Act, 1914 provides that a person might be sent to Borstal if it appears to the court that he is not more than 21 years of age. The accused was born on February 17, 1909. Lord Hewart, C.J., held that the accused completed 21 years of age on February 16, 1930 and that he was one day more than 21 years of age on February 17, 1930 which was the Commission day of Manchester Assizes. 12. In Re Shurey Savory v. Shurey [LR (1918) 1 Ch 263] the question that arose for decision was this: Does a person attain a specified age in law on the anniversary of his or her birthday, or on the day preceding that anniversary? After reviewing the earlier decisions, Sargant. J. said that law does not take cognizance of part of a day and the consequence is that person attains the age of twenty-one years or of twenty-five years, or any specified age, on the day preceding the anniversary of his twenty-first or twenty-fifth birthday or other birthday, as the case may be.” 11. It is an admitted position that the petitioner retired upon completion of 60 years of his age which is the age of superannuation under the service rules and not when he entered the 60th year of his age. 12. Further, it is well settled law that a Government servant is entitled to pension in accordance with the pension rules. There being no ambiguity in the language of the provision, validity of Page 7 of 8 which has been challenged in the present writ petition, we do not find any merit in the present writ petition. 13. Significantly, learned counsel for the petitioner has not been able to point out as to which provision of the Constitution or statutory provision is violated. 14. In such view of the matter, we do not find any merit in this application, which is accordingly dismissed. (Chakradhari Sharan Singh) Chief Justice Suchitra/Aswini (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-May-2024 17:48:13 Page 8 of 8