The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21933 OF 2021 In the matter of an application under Article 226 and 227 of the Constitution of India. ……………… Fakir Charan Swain …. Petitioner -versus- The Board of Secondary Education, Odisha & Others …. Opposite Parties For Petitioner :Mr. G. Mishra, Adv. For Opp. Parties :Mr. S.K. Samal, AGA Mr. S.S. Rao, Sr.Adv. (for O.P. No.1) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 09.05.2024 and Date of Judgment: 09.05.2024 ----------------------------------------------------------- -------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the communication dt.12.12.2019 so issued by the Petitioner under Annexure-7. Vide the said communication, prayer of the Petitioner to accept // 2 // the deposit towards his earlier CPF contribution and to treat the period of service rendered by the Petitioner prior to his joining under the Board as qualifying service for the purpose of pension was rejected. 4. It is the case of the Petitioner that Petitioner joined as an Asst. Teacher in a Government High School on 13.09.1974 and he continued as such till 30.06.1989. Petitioner w.e.f 01.07.1989 was allowed to work as a Science Expert on deputation in Board of Secondary Education, Odisha ( in short, “Board”)- Opp. Party No.1. Such continuance on deputation w.e.f 01.07.1989 was regularized with permanent absorption of the Petitioner as Expert in Teaching of Science vide Office Order dt.19.12.1992 under Annexure-1.
Legal Reasoning
Education, Orissa, this Court in paragraph-2 & 3 has held as follows: xxx xxx xxx 2. By a careful reading of regulation 22(e) it is very very simple and there is no ambiguity in the said rule. The said rule speaks that the period of qualifying service rendered by an employee under any educational institution recognized by the Board and/or any research institutions aided by the State of Central Government shall be counted for qualifying service for the purpose Page 8 of 17 // 9 // of pension, which makes it clear that under the regulation pension shall be payable to retired employee taking the number of years of service rendered in the Educational Institutions. The regulation does not contemplate two types of pension payable to the retired employees. 3. The decision in Rama Narayan Padhi’s case (supra) has rightly been applied having regard to the undisputed fact that the first respondent in Kesinga joined as Assistant Teacher Vidyapitha on 5.6.1993 which was recognized by the Board of Secondary Education on 19.05.1962 and subsequently promoted as Headmaster on 7.7.1976 he was appointed as Assistant Secretary in the office f the Board of Secondary Education, Orissa and was retired on superannuation on 30.06.1997 while working as Joint Secretary of the Board. Therefore, the entire period of service the respondent No.1 in aided educational institution which was recognised by the Board i.e. from 5.6.1963 to 18.07.1976 shall be taken into consideration in computing the qualifying service of the Petitioner is the conclusion arrived at by this Court.” rendered by In the case of Smt. Bishnupriya Dei, this Court in Paragraph-7 & 8 has held as follows: to to be extended 7. Though, the matter was settled by this Court as well as by the Hon’ble Apex Court time and again, but then the Board authorities have adopted a discriminating attitude. The law is no more res integra that if a person similarly circumstanced approaches the Tribunal/High Court and gets some relief, the benefit f the judgment ought those persons, who have not approached. The Board of Secondary Education, who ideal employer, ought to have extended the benefits of Rama Narayan Padhy (supra) and Prabodh Kumar Patnaik (supra), to the Petitioner. 8. As a necessary corollary, the order rejecting the representation of the Petitioner under Annexure-4 is hereby quashed. The opposite parties are directed to compute the pensionary benefit of the Petitioner by taking into account the in past services rendered by her Ganeswarpur Girls High School excluding the period from 31.12.1979 to 22.09.1980. The entire exercise shall be completed within a from the date of period of eight weeks is an Page 9 of 17 // 10 // production of a certified copy of this order. On such calculation the differential arrear of pension from the date of superannuation of the Petitioner will date shall be paid to her within a further period of four weeks and she will thereafter continue to receive the pension amount as would be computed as per the direction given above. In the case of Board of Secondary Education, Odisha, this Court in Paragraph- 3.1,7,8,9,11,14 & 36 has held as follows: of his the date one year 3.1 He further contended that under Rule-44 (1)(iii) of the Orissa Civil Services (Pension) Rules, 1992, a Government Servant with Contributory Provident Fund (C.P.F) benefits on permanent absorption in autonomous body, could opt to come under pension scheme, foregoing Government’s share in contribution in Provident Fund contribution within from Page 9 of 32 absorption in the autonomous body. on Respondent no.3, who was absorbed 01.08.1981, had not opted in accordance with the said rule. Therefore, he is entitled to and shall receive Contributory Provident Fund for the period he served in Government from the Government and not from the Board. It is further contended that respondent no.3 had claimed and represented to Director Secondary Education on 22.07.1994 for sanction of pension for the period of 28 years i.e., from 1953 to 1981. He pursued such claim from the Government State Administrative Tribunal. It is also contended that the claim of past services also could not be established by respondent no. 3, as his claim that his services in other institutions earlier was not pensionable one. As such, there was inordinate delay in filing the case. Consequentially, it is contended learned Single Judge has committed gross error by allowing the benefit claimed by respondent no.3, which cannot be sustained in the eye of law and thereby, the same is to be quashed. approaching that the by xxx xxx xxx 7. For a just and proper adjudication of the case in hand, Rule 44 (1) (iii) of the Orissa Civil Service (Pension) Rules, 1992 is quoted hereunder:- Page 10 of 17 // 11 // in or under “44. Pension absorption Autonomous bodies. (1) ( i) Xxx xxx xxx (ii) Xxx xxx xxx servant with (iii) A Government Contributory Provident Fund benefits on permanent absorption in an autonomous body will have the option either to receive Contributory Provident Fund benefits which have accrued to him from the Government and Start his service afresh in that body or choose to count service in Government as qualifying rendered service for pension in the autonomous body by foregoing Government’s share in contributory Provident Fund contributions with interest which will be paid to the concerned autonomous body by the concerned Government Department. The option Page 15 of 32 one year from the date of such absorption. If no option is exercised within the stipulated period, employee shall be deemed to have opted to receive contributory Provident Fund benefit. The option once exercised shall be final.” shall be exercised within 8. There was also an amendment to the Regulations of the Board of Secondary Education, Odisha called as the Board of Secondary Education Odisha (Amendment) Regulations, 1997 inserting a new Section, i.e., Section-IV, in Chapter XIII. Section IV contains Regulations 20 to 22, which are as follows:- “20. (1) Every employee retiring on or after the 1st day of January, 1982 shall be entitled either to the benefit of the pension including commutation of pension, gratuity and family pension as applicable to the State Government employees under the provisions of the Orissa Civil Services (Pension) Rules, 1992 and the Orissa Civil Services (Commutation of Pension) Rules, 1993 or to the benefit of contributory provident-cum-gratuity this chapter, as he may opt. (2) In the case of employees opting or deemed to have opted for the pension scheme the amount contribution by the Board to their contributory Provident Fund together with interest accrued thereon till the date of their receiving pension shall be credited to the pension fund of the Board. (3) The employees of the Board under the pension the General scheme shall subscribe provided in to Page 11 of 17 // 12 // Provident Fund Account, which shall be opened and operated in accordance with the provisions contained in the General Provident Fund, Orissa Rules. time when to up the the age Notwithstanding 21. of the period of qualifying superannuation, service of employees other than the class IV employees Page 16 of 32 they complete 58 years of age shall be taken into consideration to determine the quantum of their pension, family pension or commutation of pension. In the case of class IV employees the period of service up to the age of superannuation shall be reckoned for the purpose. 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 (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.” xxx xxx xxx to Education the Regulations, Orissa 9. Admittedly, the Board had no pension Rules of its own and its employees were availing the benefits of contributory provident fund and gratuity till 1997. the Government of Odisha brought an When i.e., Board of amendment (Amendment) Secondary Regulations, 1997, as indicated above, which came into force on 07.05.1997, inserting Section IV to Chapter-XIII, the provisions incorporated in the said Regulations, as quoted above, would show that Regulation 20(1) provides that every employee retiring or Page 17 of 32 1st day of January, 1982 shall be entitled either to the benefit of the pension as applicable the State Government employees or to the benefit of contributory provident-cum-gratuity provided in the said Chapter, as he may opt. Regulation 20(2) provides that in case of employees opting for pension scheme, the amount contributed by the Board to their contributory Provident after to on the Page 12 of 17 // 13 // Fund together with interest shall be credited to the pension fund of the Board. 11. Needless to mention here, respondent no.3 served on deputation for the period from 02.03.1976 to 31.07.1981 and was continuing in the Government service. For that, Board’s Contribution was also deposited in Government Treasury, as required under the guidelines for employees on deputation joining from foreign service. Thereby, the services of respondent in no.3 Government Service, out of which he was in Board on deputation from foreign service from 02.03.1976 to 31.07.1981. He was in Government service till he was permanently absorbed on 01.08.1981 in Board. 14. xxx till 31.07.1981 were from 31.07.1953 xxx xxx The definition of pension in Article 366 (17) of the Constitution which is in the following words does not bring out its essential features:- or not, “Pension' means a pension, whether of any kind contributory whatsoever payable to or in respect of any person, and includes retired pay so payable, a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, or subscription to a provident fund.” Again, the Central Civil Services (Pension) Rules, 1972 defines pension as including gratuity except when the term pension is used in contradiction to gratuity. But the same rule defines the expression “retirement benefit” as including pension or service gratuity and retirement gratuity where admissible. Hence, the meaning of pension as commonly understood in context of service law that a pension is a periodical payment whereas gratuity is a lump sum payment. It has also been observed by the apex Court in U.P. Raghavendra Acharya v State of Karnataka, (2006) 9 SCC 630 as deferred salary. xxx xxx xxx 36. Considering the case from any angle, as mentioned above, this Court does not find any error apparent on the face of the record or any illegality and irregularity committed by the learned Single Judge while passing judgment dated 20.09.2022 in W.P.(C) No. 10 of 2019 requiring any interference by this Court. As such, the writ appeal the Page 13 of 17 // 14 // merits no consideration and the same is liable to be dismissed. Accordingly, by confirming the judgment passed by the learned Single Judge, this writ appeal stands dismissed. However, there shall be no order as to costs.” 5. Mr. S.S. Rao, learned Sr. Counsel appearing for the Opp. Party-Board on the other hand made his submission basing on the stand taken in the counter affidavit. Though it is not disputed that Petitioner prior to his joining in Board’s service w.e.f 01.07.1989 was continuing as a Teacher in a Government High School for the period from w.e.f 13.09.1974 to 30.06.1989 and pursuant to the request made by the Board in terms of letter dt.06.02.2015 under Annexure-2, pro-rata pension amounting to Rs.67,824 was credited to the account of the Petitioner, but Board did not allow the Petitioner to deposit the same as District Education Officer, Cuttack instead of depositing the amount in the Board’s account made the same in the account of the Petitioner. 5.1. It is also contended that in view of the provisions contained under Rule 44 (i) & (ii) of the OCS Pension Rules, 1992, claim of the petitioner to get the benefit of qualifying service for the period he discharged his duty as a Teacher in a Government High School for the period from 13.09.1974 to 30.06.1989 is not permissible. It is accordingly contended that rejection Page 14 of 17 // 15 // available at Annexure-7 has been rightly made and it requires no interference. 6. To the submission made by the learned Sr.Counsel appearing for the Board, learned counsel for the Petitioner contended that in view of the decisions cited supra more particularly the judgment delivered by this Court in W.A. No.1413 of 2022 and the confirmations of the decision in the case of Rama Narayan Padhy and Smt. Bishnupriya Dei by the Hon’ble Apex Court, the issue as raised by the learned Sr. Counsel is no more res intergra and petitioner is eligible and entitled to get the benefit of qualifying service for the period 13.09.1974 to 30.06.1989 with due acceptance of the amount received by him under Annexure-3. 7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that prior to his joining in Board’s service w.e.f 01.07.1989, Petitioner was continuing as a Teacher in Government High School for the period from 13.09.1974 to 30.06.1989. 7.1. In view of the decisions as cited (supra), more particularly the decision in W.A. 1413 of 2022 and the provisions contained under Regulation 22 (e ) & (f) of the Boards’ (Amended) Regulation, 1997, it is the view of this Page 15 of 17 // 16 // Court that services rendered by the Petitioner in Government High School for the period 13.09.1974 to 30.06.1989 is required to be taken as qualifying service for the purpose of pension and other pensionary benefits. 7.2. This Court is also of the view that prayer of the Petitioner to deposit the amount so received by him towards pro-rata pension amounting to Rs.67,824/- under Annexure-3, has been illegally rejected by the Board vide the impugned communication dt.12.12.2019 under Annexure-7. 7.3. Therefore, this Court is inclined to quash the communication dt.12.12.2019 so issued under Annexure- 7 and while quashing the same, directs Opp. Party No.1 to allow the Petitioner to deposit the amount of Rs.67,824/- so received by him under Annexure-3. On such deposit of the amount by the Petitioner, appropriate order be passed to treat the period of service rendered by the Petitioner for the period from 13.09.1974 to 30.06.1989 as qualifying service for the purpose of pension. By treating the period of service as qualifying service, pension and other pensionary benefits be also revised with release of consequential financial benefits as due and admissible to the Petitioner. This Court directs Opp. Party No.1 to Page 16 of 17 // 17 // complete the entire exercise as directed within a period of four (4) months from the date of receipt of this order.
Arguments
4.1. It is contended that after such absorption vide Office Order dt.19.12.1992 under Annexure-1, Opp. Party No.1 vide his letter dt.06.02.2015 under Annexure-2 requested District Education Officer, Cuttack to take appropriate step for payment of pension liability in favour of the Petitioner. Contents of the letter dt.06.02.2015 so issued under Annexure-2 is re-produced hereunder. Xxx xxxx xxx “From The Secretary, Page 2 of 17 // 3 // To Board of Secondary Education, Odisha, Cuttack. The District Education Officer, Cuttack Circle, Cuttack. Sub : Payment of pension liability in favour of Sri Fakir Charan Swain, Ex-Asst. Teacher of M.S. H.S. Baramba. Sir, I am directing to inform you that Sri Fakir Charan Swain, Ex-Asst. Teacher of M.S. High School, Baramba has joined as Junior Subject Expert in Teaching General Science on 01.07.1989 (F.N) in the Board of Secondary Education, Odisha, Cuttack. He has retire from the Boards service on attaining the age of superannuation with effect from 30.11.2010 (A.N). He has submitted one representation on 15.10.2014 to count his past service as Assistant Teacher in the following Govt. High School. He served during the year 13.09.1974 to 30.06.1989 as qualifying service for sanction of pension from the Board of Secondary Education, Odisha. 1. Secondary Trg. School, Narasinghpur – 13.9.1974 to 07.07.1975 2. M.S. H.S. Earamba - 08.7.1975 to 16.07.1976 3. R.N. Training College (M.Ed. Training on leave) - 17.7.1976 to 29.04.1977 4. Salipur High School 5. M.S. H.S. Baramba 6. B.S.E. Odisha, Cuttack (on foreign service terms and condition) - 30.04.1977 to 31.03.1982 - 31.03.1982 to 30.06.1987 -01.7.1987 to 30.06.1989 The sanction of pension in respect of employees of the Board of Secondary Education, Odisha is governed by Odisha Civil Service (Pension) Rules, 1992. In pursuance of Rule-44 of OCS Pension Rules, 1992, you are requested to make necessary arrangements for discharging of pension liabilities in respect of his past service in the aforesaid High Schools for the period from 13.0-9.1974 to 30.06.1989 together with up to date interest accrued thereon as per admissible rate so that the period of service of Sri Swain as “Asst. Teacher” will be treated as qualifying service for the purpose of pension. An early action in this matter will be highly solicited.” Page 3 of 17 // 4 // 4.2. It is contended that District Education Officer, Cuttack on being communicated with the letter dt.06.02.2015 so issued under Annexure-2 found the total liabilities of pro-rata pension at Rs.67,824/- vide Annexure-3. 4.3. Learned counsel for the Petitioner contended that the aforesaid amount so calculated and reflected in Annexure-3 was transferred to the account of the petitioner for enabling him the deposit the same before the Board. Placing reliance on the provisions contained under Regulation 22(e) & (f) of the Board’s (Amended) Regulation, 1997, Petitioner vide his letter dt.27.07.2018 under Annexure-5, requested the Board to allow him to deposit the aforesaid amount of Rs.67,824/- in order to enable him to get the benefit of the period of service rendered from 13.09.1974 to 30.06.1989 as qualifying service for the purpose of pension. 4.4. As request made under Annexure-5 was not considered, Petitioner again made an application on 04.11.2019 under Annexure-6. But without proper appreciation of the provisions contained under Regulation 22(e) and (f) of the Board’s (Amended) Regulation, 1997, Petitioner was not permitted to deposit the pro-rata Page 4 of 17 // 5 // pension amounting of Rs.67,824/- vide the impugned communication dt.12.12.2019 under Annexure-7. 4.5. Learned counsel for the Petitioner contended that in view of the provisions contained under Regulation- 22 (e) & (f) of the Board’s (Amended) Regulation, 1997, period of service rendered by the Petitioner in a Government High School for the period from 13.09.1974 to 30.06.1989 is required to be treated as qualifying service with acceptance of the pro-rata pension amount so deposited in the Petitioner’s account as reflected in Office Order dt.07.07.2018 of District Education Officer, Cuttack under Annexure-3. But in spite of such clear provision, Opp. Party-Board refused permission to the petitioner to deposit the amount and thereby depriving him to get the benefit of qualifying service for the period from 13.09.1974 to 30.06.1989. 4.6. Learned counsel for the Petitioner contended that in view of the decisions governing the field, rejection of the Petitioner’s claim to get the benefit of qualifying service for the purpose of pension with acceptance of the amount in question vide Annexure-7 is not sustainable in the eye of law. It is accordingly contended that the impugned communication dt.12.12.2019 under Annexure-7 is not sustainable in the eye of law and Page 5 of 17 // 6 // requires interference of this Court with a further direction on the Opp. Party-Board to accept the deposit so offered under Annexure-5. 4.7. Learned counsel for the Petitioner relied on the following decisions in support of his aforesaid contention. 1. Rama Narayan Padhy Vs. State of Orissa & Another, 2006 (I) OLR 293. 2. Board of Secondary Education, Orissa Vs. Sri Jatindra Nath Mohanty passed in WA NO.74 of 2006. 3. Smt. Bishnupriya Dei Vs. Board of Secondary Education and Others, 2013 (II) OLR – 662. 4. Board of Secondary Education, Odisha Vs. State of Odisha & Others passed in WA No.1413 of 2022. In the case of Rama Narayan Padhy Vs. State of Orissa & Another, 2006 (I) OLR 293, this Court in paragraph-5,8 & 10 has held as follows: of 5. After hearing the rival contentions of the parties, the question that falls for consideration is whether the Board (Amendment) Secondary Education Regulations, 1997 incorporating the Pension Scheme for employees of the Board will in any way help the petitioner to get the retrial benefits on and from 1.10.1984 he having retired on 30.9.1984, or from 7.5.1997, when the Board of Secondary Education, 1997 was Orissa introduced incorporating the Pension Scheme for the employees of the Board. The Orissa Secondary Education and Administration of Pension Fund) Regulations, 1997, came into force on the 1st day of January, 1982. There was also an amendment to the Board of Secondary Education, Orissa Regulations called as the Board of (Amendment) Regulations, (Constitution, Maintenance Page 6 of 17 // 7 // Education Secondary Regulations, 1997 Section-IV, Regulations 20 to 22, which are as follows : in Chapter XIII. Section Orissa inserting a new Section, (Amendment) i.e., IV contains 20. (1) Every employee retiring on or after the 1st day of January, 1982 shall be entitled either to the benefit of the pension including commutation of pension, gratuity and family pension as applicable to the State Government employees under the provisions of the Orissa Civil Services (Pension) Rules, 1992 and the Orissa Civil Services (Commutation of Pension) Rules, 1993 or to the benefit of contributory provident-cum- gratuity provided in this chapter, as he may opt. (2) In the case of employees opting or deemed to have opted for the pension scheme the amount contribution by the Board to their contributory Provident Fund together with interest accrued thereon till the date of their receiving pension shall be credited to the pension fund of the Board. (3) The employees of the Board under the pension scheme shall subscribe to the General Provident Fund Account, which shall be opened and operated in accordance with the provisions contained in the General Provident Fund, Orissa Rules. 21. Notwithstanding the age of superannuation, the period of qualifying service of employees other than the class IV employees up to the time when they into complete 58 years of age shall be taken consideration to determine the quantum of their pension, family pension or commutation of pension. In the case of class IV employees the period of service up to the age of superannuation shall be reckoned for the purpose. 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 (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 Page 7 of 17 // 8 // (f) The previous service in any institution on the basis of which such persons have been appointed in the Board. xxx xxx xxx is The rendered 8. 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 qualify for pension in a pensionable unless it establishment post. interpretation of learned counsel for the opposite parties that the aforesaid Rule 2 (r) and Rule 18 read conjointly with Regulation 22 of the Board of Secondary Education Orissa (Amendment) Regulations 1997 is not acceptable because I am of the opinion that the Regulations of the Board, which ws subsequently amended in 1997 is clear and unambiguous. There is no need to take the help of OCS (Pension) Rules, 1992 for 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 befit of the amending Regulations and whether his service elsewhere would be counted for the purpose of pension. 10. For the foregoing reasons, I allow this writ application and direct the opposite parties to take the total period of service of the petitioner to be 39 years, one month and 18 days and re- fix his pension along with other retiral benefits from 1.10.1984 and complete this exercise within a period of three months from the date of communication of this judgment. In the case of Board of Secondary
Decision
The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 9th May,2024 /sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 31-May-2024 13:16:09 Page 17 of 17