The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK In the matter of an application under Articles 226 & 227 of the Constitution of India. W.P.(C) No.5015 of 2014 & W.P.C (OAS) No.39 of 2018 Basanta Manjari Behera …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. S.K. Purohit, A.K. Das, D.Sukla & D.D. Kar. For Opp. Parties :M/s. S. Rath, Additional Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing and Date of Judgment: 02.09.2024 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. // 2 // 3.
Legal Reasoning
Learned counsel for the Petitioner contended that on the death of her husband on 04.06.1981, Petitioner on being found eligible sanctioned with the benefit of family pension w.e.f. 05.06.1981 vide office
Decision
order dtd.13.09.2006 under Annexure-4. 3.1. It is contended that while in receipt of such family pension w.e.f. 05.06.1981 in terms of the order issued under Annexure-4, when objection was raised with regard to entitlement of the Petitioner to get the benefit of family pension by the Controller of Accounts-Opposite Party No.4 vide letter dtd.06.11.2013 under Annexure-5, challenging such communication, Petitioner approached this Court by filing W.P.(C) No.5015 of 2014. 3.2. It is contended that during pendency of the writ petition before this Court with issuance of the notice vide order dtd.19.03.2014, when the impugned office order dtd.07.04.2017 under Annexure-6 was issued by Opposite Party No.4, WPC (OAS) No.39 of 2018 was filed challenging the said order. 3.3. Learned counsel for the Petitioner contended that husband of the Petitioner entered into service where he joined on 06.07.1971 as reflected in the service book enclosed vide Annexure-1. 3.4. It is further contended that taking into account the date of birth of the deceased employee so recorded in his Page 2 of 9 // 3 // service book, in normal course he would have retired on attaining the age of superannuation on 31.03.2008. But by holding that Petitioner is not eligible to get the benefit of family pension so sanctioned in her favour vide order under Annexure-4 and placing reliance on the provisions contained under the Orissa Aided Educational Institutions’ Employees (Retirement Benefit Rules, 1981) (in short Rules) objection was raised by Opposite Party No.4 vide letter dtd. 06.11.2013 under Annexure-5 with regard to entitlement of the Petitioner to get the benefit of family pension. 3.5. Learned counsel for the Petitioner contended that in view of the decision rendered by this Court in the case of Bhimasen Prusty and Others vs. State of Orissa & Others, reported in (1994) 1 OLR-439 and subsequent decision rendered by this Court in the case of Subarna Dibya & Others vs. State of Orissa & Others, reported in (2005) 1 OriLawRev-168, since the deceased employee would have attained the age of superannuation on 31.03.2008, the cut-off date 01.09.1988 basing on which the objection was raised under Annexure-5, is not sustainable in the eye of law and so also consequential order passed on that ground vide office order dtd.07.04.2017 under Annexure-6. 3.6. This Court in Para-3 of the decision in the case of Bhimasen Prusty and Others and Para-18 of the Page 3 of 9 // 4 // decision in the case of Subarna Dibya & Others has held as follows:- “3. The cause shown to treat 1-9-1988 as the cut-off date can hardly be taken as an intelligible dividing line. Law is well settled that between one homogenous class artificial discrimination cannot be made in the matter of grant of pensionary rights and that once any revised scheme of pension is introduced, it becomes equally applicable to all existing pensioners. So far as gratuity is concerned, it being an one- time payment, the quantum of it payable by any particular date or revision of it is not retrospectively applicable to the existing pensioners. Law has been fully brought out in AIR 1986 SC 1907 (State Govern- ment Pensioners' Association and others v. State of Andhra Pradesh) where their Lordships said, after referring to famous Nakara's Case AIR 1983 SC 130 (D. S. Nakara v. Union of India), that since the revised scheme was operative from the date mentioned in the scheme, i. e. 1-4- 1978, the continuing rights of the pensioners to receive pension and family pension must also be revised according to that scheme. Hence, whenever there is an introduction or revision in the family pension scheme, it becomes applicable to all the existing pensioners, and there cannot be any reason to confine the right to get the family pension to only families of teachers retired after 1- 9-1983. Hence the amendment to the rule in Annexure-3 has to be interpreted that way and held as having not introduced any such discrimination. Even so it is to be made clear that since the Rules have come into force with effect fom 1-9-1988, no arrear payment of pension is permissible but the families of such teachers who are retired prior to 1-9-1988 and have otherwise become entitled to family pension in accordance with the Orissa Pension Rules, shall be entitled to get the family pension in accordance with those Rules for the period for which payment is payble. xxx xxx xxx 18. The only other question, which needs to be answered, is as to whether the family members of an employee who died in harness would be eligible to receive family pension or not. In such eventuality, the decision will differ from case to case. It is needless to say that in consonance with Page 4 of 9 // 5 // the Orissa Pension Rules and other provisions the family of an employee who dies in harness would be entitled to pension or proportionate pension as would be admissible taking into consideration the number of years of service rendered by him and other eventualities. Rule 8 of the 1986 Rules stipulates that an employee shall be eligible for pension, gratuity or death-cum-retirement gratuity as the case may be in certain eventualities; one of the same being retirement before superannuation on medical ground or permanent incapacity for further service. If an employee is entitled to pension having retired prematurely on being permanently incapacitated, there can be no reason to extend the benefit of family pension to an employee who dies in harness. In such cases, the authorities shall first decide as to whether the employee was eligible to receive proportionate pension in consonance with the Rules and if it is found that, in fact, the employee was entitled to receive pension, take a decision with regard to extending the benefit of family pension to the family of such employee, who was otherwise eligible to receive pension if he would have superannuated in usual course, but unfortunately died in harness in the light of Rule 4(3) of the 1986 Rules. 3.7. It is also contended that in view of the impugned order passed on 07.04.2017 under Annexure-6, Petitioner was not released with the family pension w.e.f. April, 2017. 3.8. It is accordingly contended that the impugned order so passed by Opposite Party No.4 under Annexure-6 is not sustainable in the eye of law and it requires interference of this Court. 4. Learned Addl. Standing Counsel for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.3. Page 5 of 9 // 6 // 4.1. It is contended that even though on the death of the deceased employee on 04.06.1981, Petitioner was sanctioned with the family pension w.e.f. 05.06.1981 vide order dtd.13.09.2016 under Annexure-4, but in view of the stipulation contained under the 1981 Rules, which came into force w.e.f. 01.09.1988, Opposite Party No.3 raised objection with regard to entitlement of the Petitioner to get the benefit of family pension vide letter dtd.06.11.2013 under Annexure-5. Since in terms of the provisions contained under the aforesaid 1981 Rules, Petitioner was not eligible to get the benefit, the same was withdrawn vide the impugned order dtd.07.04.2017 under Annexure-6. The stand taken in Para-5 & 6 of the counter affidavit has held as follows:- it that, Institution(Non-Govt. is humbly submitted “5. That the State Government had been pleased to commence the Odisha Aided Educational fully aided Primary School Teachers) Retirement Benefit Rule's 1986 and amendment Rule's there on in the Year 2001 and 2017 which shall be deemed to have come in to force on the 1st day of Sept.1988. It has been categorically clarified that clause(B) of the Sub- Rule(2) of Rule-8 of the above rules that "The family of a Pensioner or an employee who died on or after the 1st day of April-1982 and otherwise eligible to receive the pension under the Odisha Aided fully Aided Primary Educational School Teachers) Retirement Benefit Rules 1986, shall be entitled to get family pension as admissible. The financial benefits shall be made effective prospectively from the date of commencement of this amendment on the Rules. The copies of the Notification No: 8904/SME dated: 20.05.2017 and No: 8908/SME dated: 20.05.2017is annexure herewith as Annexure A/3 and B/3 respectively. Institution(Non-Govt. Page 6 of 9 // 7 // 6. That it is humbly submitted that, the family pension case of the applicant submitted by the then District Inspector Of Schools, Aska duly sanctioned which has been examined by the Controller of Accounts, Odisha, Bhubaneswar(Respondent No:4) and returned the proposal with the objections that "the case is not coming under the purview of OAEIRB Rules1981.amendment Rule 2001 which come in to force w.e.f 1.9.1988 as the teacher expire on 4.6.1981 i. e prior to commencement of the said Retirement Benefit Rules" A copy of Letter No 60583/OA dated 6.11.2013 of the Controller of Accounts, Odisha, Bhubaneswar is annexed to the writ Petitioner as Annexure-5”. 4.2. It is accordingly contended that since Petitioner’s husband died prior to 01.09.1988, which is the cut-off date for the legal heirs of the employees to get the benefit of family pension, Petitioner’s claim has been rightly rejected. 5. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner’s husband while working as a Primary School Teacher, died while in service on 04.06.1981. On such death of the deceased employee, Petitioner being the wife was sanctioned with the family pension w.e.f. 05.06.1981 vide order dtd.13.09.2006 under Annexure-4. But on the ground of coming into force of the 1981 Amendment Rule, 2001, which came into force w.e.f. 01.09.1988, objection was raised by Opposite Party No.3 vide letter dtd.06.11.2013 with regard to entitlement of the Petitioner to get the benefit of family pension. Thereafter, the impugned order was Page 7 of 9 // 8 // passed on 07.04.2017 under Annexure-6 wherein the benefits of family pension so sanctioned vide office order dtd. 13.09.2006 was revoked. 5.1. This Court placing reliance on the decision in the case of Bhimasen Prusty and Others and further decision passed in the case of Subarna Dibya & Others is of the view that since deceased employee in normal course would have attained the age of superannuation on 31.03.2008, the ground on which objection was raised by Opposite Party No.3 vide letter dtd.06.11.2013 under Annexure-5 and the consequential order passed by Opposite Party No.4 on 07.04.2017 under Annexure-6 are not sustainable in the eye of law. 5.2. Therefore, this Court is inclined to quash the communication dtd.06.11.2013 so issued under Annexure-5 and consequential order dtd.07.04.2017 under Annexure-6. While quashing the same, this Court directs Opposite Party Nos.3 & 4 to release the family pension as due and admissible to the Petitioner starting from April, 2017 and continue with the same. The arrear entitlement till August, 2024, as due and admissible to the Petitioner be sanctioned and released within a period of three (3) months from the date of receipt of this order. However, current family pension be drawn and disbursed from this month onwards. Page 8 of 9 // 9 // 6. With the aforesaid observation and direction, both the Writ Petitions are disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 2nd September, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Sep-2024 18:13:54 Page 9 of 9