The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21216 of 2019 State of Odisha and others Petitioners Mr. Biplab Mohanty, Additional Government Advocate …. Dr. Khirendra Nath Misra and others -versus- …. Opposite Parties Mr. M. Pratap, Advocate for O.P. No.1 CORAM: ACTING CHIEF JUSTICE DR. B. R. SARANGI
Decision
ORDER 22.01.2024 1. The matter is taken up through hybrid mode. 2. Heard Mr. Biplab Mohanty, learned Additional Government Advocate (AGA) for the State functionaries—Petitioners and Mr. M. Pratap, learned counsel for Opposite Party No.1. 3. The writ petition has been filed by the State functionaries- Petitioners challenging the order dated 6th February, 2019 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar (in short ‘Tribunal’) in O.A. No.1608 of 2014. 4. The brief facts of the case are that Opposite Party No.1, who was a Government employee and retired from service on 31st October, 2008 as Additional Veterinary Assistant Surgeon (AVAS) at Tangi on attaining the age of superannuation, had approached the Page 1 of 6 authority for counting his post-Military service as qualifying service under the State Government for the purpose of pension and disbursed final pension and gratuity, which was rejected by order dated 30th August, 2013. Being aggrieved by such rejection, he approached the Tribunal by filing O.A. No.1608 of 2014. After due adjudication, the Tribunal directed the present Petitioners to count and add the service of Opposite Party No.1 rendered in Military as qualifying service for pension in terms of Rule—30(1)(b) of the OCS (Pension) Rules, 1992 (in short ‘1992 Rules’) and grant pension and other retiral dues, as admissible to him. 5. Mr. Mohanty, learned AGA while not disputing that Opposite Party No.1 has rendered service in Military; consequent upon release from Army service, he was appointed as Junior Veterinary in State Government Service and was promoted to the post of AVAS; and on attaining the age of superannuation, he was retired from Government service on 31st October, 2008 has raised a question on the direction of the Tribunal that his past service rendered in Military should be taken into consideration for determination of pension and gratuity. He has contended that the above direction of the Tribunal cannot be complied with as after joining in the State service, Opposite Party No.1 has not exercised Page 2 of 6 his option as per sub-Rule (2) of Rule-30 of 1992 Rules intimating the authority within a period of six months with regard to his past service and, therefore, he is not entitled to get the benefit he claimed. It is contended that the consideration of the Tribunal to the above extent cannot be sustained and the impugned order should be quashed. 6. Mr. Pratap, learned counsel for Opposite Party No.1, has vehemently contended that the Opposite Party was selected for Short Service Commission for appointment as Lieutenant in the Remount Veterinary Corps and he joined in the said post on 7th January, 1974. He was released from Army Service on 13th May, 1979 on completion of five years of service. It is submitted that consequent upon release from Army service, he was only paid the terminal gratuity of Rs.5,000/- and was not paid any pension and other retiral benefits. After being sponsored by the Employment Exchange, OUAT, he was called upon to attend the interview for the post of Junior Veterinary Officer on 27th July, 1991 and after being selected, he was appointed in the said post on 19th September, 1991. Thereafter, he was promoted to the post of AVAS (O.V.S.- Group-B) and retired from Government service on 31st October, 2008 on attaining the age of superannuation. It is submitted that Page 3 of 6 prior to his retirement, he had made a representation on 20th March, 2008 to the Government for counting his Military service period in the State Government service towards qualifying service for the purpose of his pension. As he was only granted the provisional pension and the aforementioned representation was rejected on 30th August 2013, he approached the Tribunal by filing the OA. It is further submitted that the Tribunal after due adjudication has passed the impugned order extending the benefits to the Opposite Party, which cannot be faulted with. 7. Being aggrieved by the impugned order, the State Government has filed the present petition contending that the Opposite Party is not entitled to the benefits so extended by the Tribunal. 8. Having heard learned counsel for the parties and after going through the materials available on record, it is not disputed that the Opposite Party has joined the State Government service after retirement from Military service and also got promotion. Since his past service rendered in the Military had not been taken into consideration in the State Government service towards qualifying service for the purpose of pension, he made a representation for consideration of the same, which was rejected on the ground that after joining in the State service, he had not intimated the authority Page 4 of 6 about his past service within six months of the date of his joining and, therefore, he was not entitled to the pension. The fact remains that the Opposite Party joined the State service after retirement from Military service and the source of his appointment is known to the State authority. Even if a communication has not been made by the Opposite Party to the State authority, the State authority being the appointing authority, it is well within their knowledge that the Opposite Party after retiring from Military service has joined in the State service. Therefore, it is incumbent upon the State authority, being the model employer, to count his past service rendered in the Military as qualifying service under the State Government for the purpose of pension and more so, now the responsibility has been shifted to Opposite Party stating that he has not communicated his past service rendered in Military and after being retired from the said post, he joined the present service. However, if such intimation has not been made by the Opposite Party, the Petitioners should have communicated the Opposite Party to make application for such purpose. Otherwise also, when the recruitment was made, it was known to the State authority that the Opposite Party is coming from a different source of recruitment i.e. from Military service. Therefore, the grounds taken in the present application while rejecting the representation filed by the Opposite Party cannot have Page 5 of 6 a justification and the Tribunal is well justified in setting aside the order of rejection of representation passed by the authority and directing for grant of pension in terms of Rule-30(1)(b) of the 1992 Rules and other retiral dues as admissible to be calculated and disbursed in favour of the Opposite Party. 9. In view of such position, this Court does not find any error apparent on the face of the record so as to warrant interference with the impugned order of the Tribunal. The writ petition merits no consideration and it is accordingly dismissed. As a result, the Petitioners are directed to comply with the order of the Tribunal and complete the entire exercise within a period of three months from the date of receipt of certified copy of this order. (DR. B. R. SARANGI) ACTING CHIEF JUSTICE JUDGE (M. S. RAMAN) M. Panda, Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: Orissa, High Court, Cuttack Date: 24-Jan-2024 16:55:48 Page 6 of 6