The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15349 of 2023 Gourang Charan Mohapatra …. Mr. G.P. Jena, Advocate Petitioner -versus- State of Odisha and others …. Opposite Parties Mr. P.C. Das, A.S.C. Mr. Amitav Tripathy, Advocate for O.P. No.2 CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 13.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioners with the following prayer:- “The petitioner therefore, most humbly prays that, your Lordships may be graciously be pleased to kindly issue notice to the opposite parties and after hearing both the parties, be pleased to quash the letter issued by the opposite party No.1 as per Annexure-15 and while quashing the same, be pleased to direct the opposite party No.1 to sanction the pension as admissible to the petitioner at an early date.” // 2 // 4. Learned counsel for the Petitioner, at the outset, submitted that the Petitioner was initially appointed as L.D. Assistant in the office of the Transport Controller, Odisha, Cuttack vide order dated 6th November, 1964. While working as such, he was promoted to the post of Grade-II Assistant (Now Senior Assistant). He further contended that although the post of Transport Controller was redesignated as Director, S.T.S., the Petitioner continued to work as Grade-II Assistant under the Director, S.T.S. In the year 1974, the Odisha State Road Transport Corporation was formed and the said Corporation took over all assets and liabilities as well as employees of the erstwhile S.T.S. w.e.f. 14.05.1974. Accordingly, the Petitioner was transferred to OSRTC as a Grade-II Assistant. 5. Learned counsel for the Petitioner further contended that while working in the Corporation, the Petitioner due to his health condition and personal difficulties was unable to continue in service any further. Accordingly, the Petitioner intended to resign from service. Finally, the Petitioner tendered his resignation which was accepted by the Opposite Party- Corporation w.e.f. 31.07.1976 vide order dated 26.07.1976 pursuant to the order under Annexure-3 to the writ petition. Learned counsel for the Petitioner further contended that although the Petitioner has tendered his resignation and such resignation has been accepted, however, the pensionary benefits has not been paid the Petitioner as is due and admissible to him. Learned counsel for the Petitioner further contended that although the Petitioner is covered under the New Pension // 3 // Scheme of the year 1951, however, the Opposite Parties have rejected the claim of the Petitioner for pensionary benefits by considering the same under the OCS (Pension) Rules, 1992 vide impugned order dated 21.02.2023 under Annexure-15 to the writ petition. 6. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that pursuant to the order dated 17.08.2022 passed by this Court in W.P.(C) No.17440 of 2019, the case of the Petitioner was duly considered by the Opposite Party No.1. He further contended that the case of the Petitioner for grant of pensionary benefits was duly considered as per Rule-34(1) of OCS (Pension) Rules, 1992 and vide order dated 21.02.2023 under Annexure-15, the representation of the Petitioner has been rejected by the Opposite Party No.1. In such view of the matter, learned Additional Standing Counsel submitted that the present writ petition is devoid of merit and, accordingly, the same should be dismissed. 7. Mr. Amitav Tripathy, learned counsel appearing for the Opposite Party No.2-Corporation submitted that the Petitioner was employed under the Government. Therefore, all dues are to be considered by the State-Opposite Parties. In such view of the matter, learned counsel for the Opposite Party No.2-Corporation submitted that the present writ petition against the Opposite Party No.2-Corporation is not maintainable. Moreover, the Petitioner has not made any specific prayer against the Opposite Party No.2. 8. Upon a careful consideration of the submissions made by the learned counsel appearing for the respective parties and on a // 4 // careful examination of the background facts as well as the materials on record, this Court observes that the Petitioner has approached this Court challenging the order dated 21.02.2023 of the Principal Secretary to Government, Commerce and Transport (Transport) Department under Anneuxre-15. The impugned order dated 21.02.2023 reveals that the case of the Petitioner has been rejected under the OCS (Pension Rules), 1992. On a careful examination of the materials on record as well as the facts of this case, this Court observes that the Petitioner had tendered his resignation and such resignation has been accepted by the Opposite Parties w.e.f. 31.07.1976 under Annexure-3 to the writ petition. Such factual position of the present writ petition is not disputed by either parties. Therefore, this Court is required to determine as to under which pension rule the case of the Petitioner is to be considered. Learned counsel for the Petitioner in course of his submission referred to an order dated 23.03.2018 passed in W.P.(C) No.7666 of 2012 by a Division Bench of this Court. On perusal of the said order under Annexure-9 to the writ petition, this Court found that the Division Bench of this Court in an identical case where the employee had tendered his resignation and the same was accepted on 04.03.1961 has approached this Court challenging the illegal conduct of the Opposite Parties in rejecting his claim. The Division Bench of this Court during the pendency of this application asked the Government Advocate to take specific instruction as to under which pension rule the case of the Petitioner is to be considered. On perusal of the order dated 23.03.2018, it is further revealed that on instruction, the learned // 5 // Additional Government Advocate submitted that the case of the Petitioner would be governed under the New Pension Rule, 1951. Accordingly, the Division Bench directed the Collector, Cuttack, the Opposite Party No.2 to send the pension papers of the Petitioner to the office of the Accountant General, Odisha within the period of three weeks with a further direction to the Accountant General, Odisha to consider the case of the Petitioner under the New Pension Rules, 1951 within a stipulated period of time. 9. Keeping in view the aforesaid analysis of the legal position as well as the facts of the present case, this Court by taking into consideration the documents under Annexure-3 and the date of acceptance of Petitioner’s resignation, i.e. 31.07.1976 is of the considered view that the case of the Petitioner is required to be considered under the New Pension Rules, 1951. 10. Accordingly, the writ petition is disposed of with a direction to the Opposite Party No.1 to forward the pension papers of the Petitioner to the office of the Accountant General, Odisha, Opposite Party No.3, within a period of four weeks from the date of production of a certified copy of this order by the Petitioner. In the event the pension papers are forwarded to the office of the Opposite Party No.3, the Opposite Party No.3 shall do well to consider the case of the Petitioner under the New Pension Rules, 1951 and pursuant to such consideration, the Opposite Party No.3 shall pass necessary orders in accordance with law within a period of four weeks from the date of receiving the pension papers. In the event the Opposite Parties come to a conclusion that the Petitioner is entitled to the // 6 // pensionary benefits under the New Pension Rule, 1951, then necessary steps be taken for early sanction and disbursal of such amount in favour of the Petitioner, preferably within two months from the date of communication of a certified copy of this order. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 15-Feb-2024 19:34:01