The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.1787 of 2015 Ujwal Singh Nayak ..... Petitioner Mr. P. Sahu, Advocate State of Odisha&Ors. -versus- ..... CORAM: Opposite Parties Mr. S. Jena, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 03.07.2024 Order No. 16 1. This matter is taken up through hybrid mode. 2. Heard Mr. P. Sahu, learned counsel appearing for the Petitioner
Legal Reasoning
the same being not in terms of the direction issued by this Court in Page 4 of 7. its order dtd.22.01.2024, this Court passed the following order on 20.02.2024:- “2. Even though pursuant to the order passed by this Court on 22.01.2024, learned Addl. Government Advocate produced the instruction so provided by the D.E.O., Kandhamal in Court, the same is not in terms of the direction issued by this Court on 22.01.2024. 3. Learned Addl. Government Advocate prays for some further time to obtain instruction as directed in order dtd.22.01.2024. 4. As requested by Mr. H.M. Dhal, learned AGA, list this matter on 4th March, 2024. Instruction provided be kept in record.” 5.2. Subsequently, when further instruction was provided by the learned AGA, this Court passed the following order on 04.03.2024 and 02.04.2024:- Order dt.04.03.2024:- “2. Learned Addl. Govt. Advocate produced the instruction issued by the B.E.O., Baliguda vide letter dtd.27.02.2024 in Court today. The same be kept in record. 3. Basing on the instruction Mr. Dhal, learned Addl. Govt. Advocate contended that copy of letter dtd.13.11.1973 as indicated in the service book of the deceased employee available at Page 13 of the brief is not available in the office of B.E.O., Baliguda. 4. Considering the dispute involved, this Court directs learned Addl. Govt. Advocate to produce the original service book of the deceased employee before this Court on the next date. 5. As requested, list this matter on 2nd April, 2024.” xxx xxx xxx Order dt.02.04.2024:- “2. Pursuant to the order passed by this Court on 04.03.2024, original service book of the deceased employee was produced by the learned State Counsel. Page 5 of 7. 3. This Court after going through the same finds that the deceased employee was appointed in a Govt. U.P. School. Vide order issued by the then D.I. of School, Balliguda on 13.11.1973 with date of joining as 23.11.1973. Since the deceased employee was appointed in a Govt. U.P. School from the very beginning, the ground on which the claim of the Petitioner to treat the period of service rendered by the deceased employee from 13.11.1973 to 21.10.1979 vide Annexure-5 has been rejected is not sustainable in the eye of law. However, in order to provide an opportunity to the learned State Counsel and the request made by Mr. S. Jena, learned Addl. Govt. Advocate, list this matter on 08.04.2024. 4. Original service book be kept with the learned State Counsel till disposal of the matter. Free copy of this order be provided to Mr. S. Jena, learned Addl. Govt. Advocate for compliance.” 6. This Court after going through the original service book so provided by the learned AGA, found that Petitioner was initially engaged as a Primary School Teacher in Govt. U.P. School vide letter issued by the then D.I. of Schools, Baliguda on 13.11.1973 with his date of joining on 23.11.1973. Petitioner thereafter was transferred to different Govt. U.P. Schools till he was relieved on 21.10.1979 for his joining in Govt. M.E. School, where he joined on 22.10.1979. Petitioner while so continuing retired from his service on attaining the age of superannuation on 30.11.2005. 6.1. This Court from the original Service Book so produced also finds that Petitioner after being appointed in Govt. M.E. School was allowed to continue with same G.P.F. Account No. 33783 and same GIS No. 23125, which were allotted in favour of the Petitioner on his joining in Govt. U.P. School. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that in the service book of the Petitioner it has been clearly indicated that Page 6 of 7. Petitioner was appointed in a Govt. U.P. School vide order dt.13.11.1973, where he joined on 23.11.1973. Not only that in the service book so opened, Petitioner was transferred to different Govt. U.P. Schools till he was relieved on 21.10.1979 for his joining in Govt. M.E. School, where he joined on 22.10.1979. Therefore, for the wrong committed by the Petitioner in making the application to treat the period of service rendered from 23.11.1973 to 21.10.1979 as service rendered in aided U.P. School, Petitioner cannot be denied with the benefit as prayed for. 7.1. Therefore, in view of the aforesaid analysis, this Court is inclined to quash the impugned communication so issued by the Opp. Party No. 3on 07.06.2013 under Annexure-5. While quashing the same, this Court directs Opp. Party No. 5 to treat the entire period of service of the Petitioner from 23.11.1973 to 30.11.2005 as qualifying service for the purpose of pension and other pensionary benefits. This Court directs opp. Party No. 3 to resubmit the pension papers accordingly within a period of six (6) weeks from the date of receipt of this order. On such resubmission of the pension papers, Opp. Party No. 3 is directed to take effective step for sanction of the revised pension within a further period of six (6) weeks from the date of receipt of the proposal. Differential entitlement as due and admissible be also released within the aforesaid time period.
Arguments
and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “The Applicant prays that this Hon’ble Tribunal would be graciously pleased to admit this original application and after hearing the counsel for the both parties be pleased to quash the impugned order dated 07.06.2013 passed by the Respondent No. 3 under Annexure-5 and further be pleased to direct the Respondents to allow the pensionary benefits to the from applicant counting his previous 13.11.1973 to 21.10.1979 under Annexure-1; service period ii) Any further be pleased to pass such other order or orders deem(s) proper by this Hon’ble Court so as to give complete relief to the applicant.” 4. It is contended that Petitioner entered into service as a Primary School Teacher, where he joined on 23.11.1973. Petitioner was appointed at Kerubadi Govt. U.P. School to work as Asst. Teacher Page 1 of 7. on deputation vide order issued by the then D.I. of Schools, Baliguda vide his Memo No. 3465 dtd.23.11.1973. The aforesaid fact is also reflected in the service book of the Petitioner. 4.1. Services of the Petitioner w.e.f.23.11.1973 to 31.12.1973, 01.01.1974 to 31.12.1974, 01.01.1975 to 30.11.1975 was duly verified by the then Sub-Inspector of Schools as reflected in the service book. Petitioner while so continuing, he was transferred to Rupangam Govt. U.P. School under Chakapada Police Station vide Memo No. 2943 dtd.22.11.1975 and accordingly Petitioner was relieved from his duty on 06.12.1975. In terms of the said order of transfer, Petitioner joined on 08.12.1975 and his services all through was verified by the concerned Sub-Inspector of Schools. 4.2. It is contended that while so continuing Petitioner was again put under transfer to Govt. U.P. School, Possara vide letter No. 5225 dtd.27.07.1979 of the D.I. of Schools, Baliguda and he was relieved on 31.07.1979. Petitioner thereafter joined on 01.08.1979. 4.3. It is contended that while so continuing in Govt. U.P. School, Possara Petitioner was relieved from service on 21.10.1979 to serve as an Asst. Teacher at Kelapada Govt. M.E. School. Petitioner accordingly joined on 22.10.1979. Petitioner was so appointed as an Asst. Teacher in Kelapada Govt. M.E. School, vide order No. 9880 dt.16.10.1979 of the Inspector of Schools, Boundh-Kandhamal Circle. 4.4. It is contended that Petitioner while so continuing, he retired from his service on attaining the age of superannuation on 30.11.2005. However, it is contended that even though w.e.f.23.11.1973 Petitioner continued in a Govt. U.P. School and w.e.f.22.10.1979 Petitioner continued in a Govt. M.E. School, but Page 2 of 7. the period of service rendered by the Petitioner on 23.11.1973 to 21.10.1979 in different Govt. U.P. School was not taken as qualifying service for the purpose of sanction of pension. The period of service rendered by the Petitioner as an Asst. Teacher in Govt. M.E. School w.e.f.22.10.1979 to 30.11.2005 was taken as qualifying service for the purpose of pension and other pensionary benefits in terms of the provisions contained under OCS (Pension) Rules, 1992. 4.5. Learned counsel for the Petitioner contended that even though Petitioner w.e.f.23.11.1973 continued in a Govt. U.P. School till he was relieved on 21.10.1979 and thereafter joined on 22.10.1979 in Govt. M.E. School without any break in service, but on misconception the period of service from 23.11.1973 to 21.10.1979 when was not taken as qualifying service, Petitioner raised a claim to treat the same as qualifying service but with a wrong plea that he was continuing in Aided U.P. Schools. 4.6. However, claim of the Petitioner when was forwarded by the Inspector of Schools, Boudh-Kandhamal Circle, Phulbani vide letter dtd.22.06.2009, Controller of Accounts, Odisha vide the impugned order dtd.07.06.2013 under Annexure-5 while sending back the pension papers, came to a finding that since the Petitioner for the period from 23.11.1973 to 21.10.1979 continued in Aided U.P. School, the said period cannot be taken as qualifying service in view of the fact that Odisha Education Employees’ Retirement Benefit Rules, 1981, came into force w.e.f.01.04.1982. 4.7. Learned counsel for the Petitioner contended that since the Petitioner all through continued in Govt. U.P. School for the period from 23.11.1973 to 21.10.1979 and in Govt. M.E. School w.e.f.22.10.1979 to 30.11.2005, the entire period should have been Page 3 of 7. taken as qualifying service for the purpose of pension and other pensionary benefits. But because of the wrong committed by the Petitioner in making an application to treat the period 23.11.1973 to 21.10.1979 as period of service rendered in Aided U.P. School, the impugned communication was issued by the Controller of Accounts- Opp. Party No. 3 under Annexure-5. It is accordingly contended that since there is no dispute that Petitioner continued all through in Govt. U.P. School and Govt. M.E. School for the period from 23.11.1973 to 30.11.2005, the entire period be taken as qualifying service for the purpose of pension and pensionary benefits. But by treating the period of service from 22.10.1979 to 30.11.2005 as qualifying service, Petitioner has been sanctioned with pension and other pensionary benefits and because of that Petitioner was prejudiced. 5. Mr. S. Jena, learned Addl. Govt. Advocate while supporting the impugned communication when contended that Petitioner continued in Aided U.P. Schools for the period from 23.11.1973 to 21.10.1979 and Petitioner has also accepted the same while raising the claim, this Court passed the following order on 22.01.2024:- “2. Heard learned counsel appearing for the Parties. 3. Considering the entry made in the service book of the Petitioner vide Annexure-1 at Page-13, learned Addl. Government Advocate for the State is directed to produce the copy of the letter dtd.13.11.1973 so issued by the then D.I. of School, Balliguda on the next date. 4. As requested, list this matter on 5th February, 2024. 5. Rejoinder affidavit, if any, be filed in the meantime.” 5.1. Pursuant to the said order, learned Addl. Govt. Advocate when produced the instruction so provided by the B.E.O., Kandhamal, but
Decision
8. The writ petition is disposed of with the aforesaid observation and direction. Signature Not Verified Sneha Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 18:10:00 (BIRAJA PRASANNA SATAPATHY) Judge Page 7 of 7.