The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.28521 of 2019 State of Odisha and others …. Petitioners Mr. Biplab Mohanty, A.G.A. -versus- Smt. Sanjukta Naik and another …. Opposite Parties Mr. B.K. Nayak, Advocate for OP No.1
Legal Reasoning
CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN Order No.
Decision
ORDER 22.11.2023 08. 1. This matter is taken up through Hybrid mode. 2. Heard Mr. Biplab Mohanty, learned Additional Government Advocate (AGA) for the Petitioners-State and Mr. B.K. Nayak, learned counsel appearing for Opposite Party No.1. 3. The Petitioners being the State functionaries have filed this writ petition challenging the order dated 05.05.2018 passed by the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.3619(C) of 2012, by which the service rendered by Opposite Party No.1 in the aided educational institution from 14.08.1970 to 30.04.1980 has been directed to be taken into Page 1 of 6 consideration for computation of qualifying service for the purpose of pension. 4. Mr. Biplab Mohanty, learned AGA contends that the Tribunal has committed an error by directing that the period from 14.08.1970 to 30.04.1980 during which Opposite Party No.1 had rendered service in the aided educational institution, shall be taken into consideration as qualifying service for the purpose of pension thereby the order of the learned Tribunal should be set aside. 5. Mr. B.K. Nayak, learned counsel for Opposite Party No.1 contends that the contentions raised by the learned AGA may not be correct in view of the ratio decided by this Court in Brusasan Nayak v. State of Orissa 2010 (I) OLR- 627, where the Petitioner was an Assistant Teacher in an aided institution and his service rendered in the aided institution had also been taken into consideration relying upon Rule-6(1) of the Orissa Aided Educational Institutions’ Employees Retirement Benefit Rules, 1981 read with resolution dated 18.12.1993 which was referred to in the said decision. 6. Having heard learned counsel for the parties and after going through the materials available on record, it appears that Opposite Page 2 of 6 Party No.1 had joined in service as a Teacher in Ramachandi Sahi Girls’ M.E. School, which is an aided institution during 14.08.1970 to 30.04.1980. Thereafter, she tendered her resignation on 30.04.1980 so as to enable her to join in Govt. Girls High School on 01.05.1980. Though Opposite Party No.1 approached the authority to treat the period from 14.08.1970 to 30.04.1980 as qualifying service for computing her pension and other retiral benefits, the same has been denied. Thereafter, she approached the Tribunal and the Tribunal, vide the impugned order dated 05.05.2018 allowed the original application and directed to treat the period of service rendered in the aided institution from14.08.1970 to 30.04.1980 as qualifying service as was observed by the Tribunal in a case related to similarly situated person in O.A. No.1227(C) of 2006 and the said order is directed to be complied within a period of two months. 7. The State has assailed the same stating that since the Opposite Party No.1 has rendered the service in an aided institution, the service condition of the Opposite Party No.1 is regulated by the rules applicable to the aided institutions. Therefore, the said period could not have been directed to be taken into consideration. But, similar question has come up for consideration before this Court in Brusasan Nayak (supra) and this Court had taken into Page 3 of 6 consideration the Rule 6(1) of the Orissa Aided Educational Institutions’ Employees Retirement Benefit Rules, 1981 as well as the clarification made vide resolution dated 18.12.1993. The point of doubt and clarification, which are relevant to take a decision in the case, are extracted below: Point of doubt Clarification by (a) Whether the total period of an rendered service employee both under the aided educational institutions and government will be clubbed together and counted for calculation of pension and D.C.R.G. and sent to the A.G., Orissa for sanction. (a) and The minimum maximum years of qualifying service for the purpose of pension shall be determined by taking into account the total period of qualifying service rendered under the aided institutions and Govt. provided the total qualifying service of the Govt. falls short of 33 years. 8. Therefore, since Opposite Party No.1 was serving in an aided institution and thereafter, left the service and joined in the Government School, the benefit has been directed to be extended to count the past period rendered in the aided institution. Reliance has been placed on the decision of this Court in State of Orissa v. Dr. N.N. Swami, 2006 (Suppl.-II) OLR 912, paragraphs 10 and 11 of which reads as under: “10. It appears that the benefits of 1981 Rules were given to the teaching and non-teaching staff of the Aided Educational Institutions taken over by the Government because of the reasons that if a member of Page 4 of 6 the staff does not complete qualifying service period after taking over the institution and retires before that period and had rendered services in the Aided Educational Institutions for a quite long time, he may not be deprived of getting pensionary benefit because of taking over the institution, besides this, it may be a factor that the members of the teaching and non- teaching staff of aided Educational Institutions would have retired. As such, had the Institution not been taken over, they would have got the benefit of 1981 Rules and because of taking over of the institutions, they should not be deprived of getting such benefit and the government could not have awarded the benefit of 1981 Rules to those teaching and non-teaching staff members vide the above quoted resolution dated 26.10.1990. 11. In view of the facts and circumstances, though we feel that the Tribunal has quoted the subsequent Government resolution dated 18.12.1993 but since some of the O.Ps are retired from service before the enforcement of that subsequent notification, it cannot be said that they are entitled to get the benefit by the subsequent resolution. Therefore, we are of the opinion that those O.Ps who had retired after the resolution dated 26.10.1990 came into force, would be entitled to get the benefit of that resolution and in their cases, the provisions of the 1981 Rules, would be applicable and as such, they would be entitled to get their service counted which they render as a member of teaching and non-teaching staff of the aided institutions taken over by the Government subsequently.” 9. Therefore, in view of the judgments rendered by this Court in Brusasan Nayak (supra) and Dr. N.N. Swami (supra), the learned Tribunal is well justified by directing the State-authority to treat the period of service rendered in the aided institution from 14.08.1970 to 30.04.1980 as qualifying service as was observed by the Tribunal Page 5 of 6 in O.A. No.1227(C) of 2006 and to comply with the same within a period of two months. 10. Therefore, this Court does not find any error apparent on the face of the record so as to interfere with the same. 11. Accordingly, the writ petition stands dismissed. The interim order passed earlier stands vacated. The impugned order shall be complied with within two months hence. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) S.K. Guin/PA (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Nov-2023 17:52:30 Page 6 of 6