The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10335 OF 2018 (An application under Articles 226 and 227 of the Constitution of India) Dr.Nalilni Kanta Mishra … Petitioner -versus- Board of Secondary Education, Odisha and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.Kalyan Patnaik, Advocate -versus- For Opposite Parties : Mr.S.S.Rao, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 05.5.2023. Sashikanta Mishra,J. The Petitioner has approached this Court with the following prayer; Page 1 of 9 <Therefore, it is prayed that your Lordships would be graciously pleased to issue rule nisi calling upon the opposite parties to show cause as to why the impugned order under Annexure-1 for provisional pension and gratuity should not be revised why opp. parties are not commanded to compute pensionary benefit including his past service rendered in Solapasta High School, Solapata and aided educational institutions recognized by Board prior to his joining in service of the Board within a period fixed by this Hon’ble Court.= 2. The facts of the case are that the Petitioner joined as an Asst. Teacher in Solapata High School in the district of Nayagarh on 2nd January, 1978 and served as such till 4th May, 1989. Being selected and appointed as a Junior Subject Expert (Math) in the Board of Secondary Education, he joined as such on 5th May, 1989. He superannuated from service on 31st May, 2014. He applied for pension with all relevant papers and documents and provisional pension was sanctioned on 18th October, 2014. It is his grievance that the period of 11 years of service rendered by him in Solapata High School was not taken into account for W.P.(C) No. 10335 of 2018 Page 2 of 9 calculating his pension and gratuity. He submitted representations to the authorities, but no action was taken thereon. Relying upon Clause-22 of the Board of Secondary Education Regulations as amended in 1997, the Petitioner claims that his past services have been unjustly deleted resulting in grant of less pension and non-payment of gratuity. 3. The stand of the Board of Secondary Education as revealed from their counter affidavit is, the claim of the Petitioner is not maintainable as the previous service was rendered in a non-pensionable establishment. Further, as per Orissa Pension Rules, the Petitioner did not exercise option within the stipulated period for coming under the Government Pension Scheme for which he is deemed to have opted for the contributory provident fund benefit. The Petitioner has filed a rejoinder refuting the stand taken in the counter. It is stated that having allowed provisional pension to him w.e.f. July, 2015, it is no longer open to the Board to take a different stand W.P.(C) No. 10335 of 2018 Page 3 of 9 at this stage. Further, this Court in several decisions has held that the OCS Pension Rules, 1992 is not required to be taken into account in view of the amendment to the Board of Secondary Education Regulations in 1997. 4.
Legal Reasoning
pension. There is no dispute that Solapata High School was a recognized educational institution at the relevant time. In the case of R.N.Padhi (supra), this Court taking note of the provisions of the regulations referred above has held that the past services should be countable towards pension and pensionary benefits. The Court held as follows; “The argument of the learned counsel for the opposite parties is that there shall be a conjoint reading of Rule 2(r) of the OCS (Pension) Rules, 1992, which defines "qualifying service" and Rule 18 of OCS (Pension) Rules 1992, which speaks that service does not is for pension unless qualify it W.P.(C) No. 10335 of 2018 Page 6 of 9 a in read Education rendered pensionable establishment post. The interpretation of learned counsel for the opposite parties that the aforesaid Rule 2(r) and conjointly with Rule 18 the Board of Regulation 22 of Secondary Orissa (Amendment) Regulations, 1997 is not acceptable because I am of the opinion that the Regulations of the Board, which was subsequently amended in 1997 is clear and unambiguous. There is no need to take the help of OCS (Pension) Rules, the interpretation of Board Regulation, 1997 so also there is no need for a conjoint reading of Board Regulation, 1997 and OCS Rules to interpret the former and to decide whether the petitioner is entitled to get the benefit the amending Regulations and of whether his service elsewhere would be counted for the purpose of pension.= 1992 for It is also stated that the bar that the said decision was followed by several other judgments of this Court and confirmed in Writ Appeal as also by the Apex Court. This Court therefore, finds no reason to differ from the ratio laid down in R.N.Padhi (supra). 9. It may also be stated in passing that the stand taken by the Board with reference to Rule 44 of the OCS Pension Rules is entirely fallacious for the reason W.P.(C) No. 10335 of 2018 Page 7 of 9 that having once allowed provisional pension to the Petitioner way back in the year 2015, it cannot turn around at this belated stage to take the view that the Petitioner had not exercised option at the relevant time. Thus, by granting provisional pension the Board must be deemed to have waived the stipulation contained in Rule 44 of the OCS Pension Rules. 10. Thus, from a conspectus of the analysis and the discussion made herein before, this Court is of the firm view that the Petitioner’s service of 11 years rendered in Solapata High School has to be taken into consideration for calculation of his pension and pensionary benefits including gratuity. 11. For the foregoing reasons therefore, the Writ Petition is allowed. The Opp.Parties are directed to finalize the pension of the Petitioner after taking into account his past service rendered in Solapata High School and to release the same in his favour as early as possible, preferably within a period of two months. Similarly, the amount due towards gratuity to the W.P.(C) No. 10335 of 2018 Page 8 of 9 Petitioner being determined on the above basis, should also be released in his favour within a period of three months. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera ASHOK KUMAR BEHERA Digitally signed by ASHOK KUMAR BEHERA Date: 2023.05.05 18:28:21 +05'30' W.P.(C) No. 10335 of 2018 Page 9 of 9 W.P.(C) No. 10335 of 2018 Page 10 of 9 W.P.(C) No. 10335 of 2018 Page 11 of 9
Arguments
Heard Mr. K. Patnaik, learned counsel for the Petitioner and Mr. S.S.Rao, learned counsel appearing for the Board of Secondary Education, Odisha. 5. Mr. Patnaik would argue that once the Board of Secondary Education Regulations was amended (in 1997) to include service rendered in a recognized educational institution, the Petitioner becomes entitled to count his service in Solapata High School, which is a recognized educational institution. Mr. Patnaik further argues that in the case of Rama Narayan Padhy v. State of Orissa and another; reported in 2006 (1) OLR 293, this Court has already held that there is no need to take the help of OCS Pension Rules, 1992 for the interpretation of Board Regulations, 1997 and thus held that the past service rendered in a W.P.(C) No. 10335 of 2018 Page 4 of 9 recognized educational institution shall be counted towards pension and pensionary benefits. 6. Sri S.S.Rao, on the other hand, argues that unless the previous establishment is a pensionable establishment, the service rendered in such establishment cannot be included. Moreover, at the time of joining the services of the Board, it was incumbent upon the Petitioner to exercise option either to avail the CPF benefits or the Government scheme within a year but he did not exercise any such option within the stipulated period. Therefore, according to Mr. Rao, he is deemed to have opted for the CPF benefit. 7. In order to appreciate the rival contentions, it would be proper to refer to the relevant provisions of the Board of Secondary Education Regulations as amended in 1997, which are quoted herein below; <22.The period of qualifying service rendered by an employee under any of the following institutions shall count for the purpose of pension; (a) Central Government W.P.(C) No. 10335 of 2018 Page 5 of 9 (b) State Government (c) Any Indian University (d) Any college affiliated to any University of the state and aided by the State Government. (e) Any Educational Institution recognized by the Board and/or any Research Institutions aided by the State/Central Government and (f) The previous service in any institution on the basis of which such persons have been appointed in the Board.= 8. Regulation 22(e) clearly shows that past service in a recognized educational institution shall be counted towards qualifying service for the purpose of