The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35498 of 2022 Jharana Samanta …. Petitioner Mr. J.K. Mishra, Advocate -versus- Accountant General, A&E, BBSR and Others …. Opposite Parties Mr. C.K. Pradhan, AGA Mr. S.K. Patra, Advocate for O.P. No.1 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 24.01.2025 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Facts
2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the impugned communication dated 08.02.2022 so made by O.P. No.1 under Annexure-5. Vide the impugned communication, claim of the petitioner to get the benefit of Family Pension was returned back with the observation that in view of the notification issued by the Govt. in the School and Mass Education Department on 08.03.2018, since the deceased employee was covered under the Triple Benefit Scheme // 2 // (TBS), 1966, petitioner is not eligible to get the benefit of Family Pension, being the unmarried daughter of the deceased employee. 4. Learned counsel for the petitioner contended that the deceased employee with his date of birth being 10.04.1941, entered into service on 05.04.1965. While so continuing, he died while in service on 07.07.1981. It is contended that taking into account the date of birth of the deceased employee recorded in his service book, in normal course, he would have attained the age of superannuation on 30.04.1999. 4.1. It is contended that since in normal course the deceased employee would have continued till 30.04.1999, in view of the decision of this Court in the case of Bhimsen Prusty and Others Vrs. State of Odisha and Others, reported in 1994 (1) OLR 439 and Subarna Dibya and Others Vrs. State of Odisha and Others, reported in 2005 (1) OLR 168, the deceased employee would have been covered under the provisions of Odisha Aided Educational Institution (Non-Govt. Fully Aided Primary School Teachers) Retirement Benefits (Amendment) Rules, 1986 and the Amended Rules, 1989. 4.2. It is also contended that on the death of the deceased employee when his wife was not extended with the benefit of Family Pension, pursuant to the order
Legal Reasoning
passed by this Court in OJC No.4721 of 1999, wife of the Page 2 of 8 // 3 // deceased employee was extended with the benefit of Family Pension. But after death of the wife of the deceased employee, petitioner being the un-married daughter of the deceased employee, raised her claim to get the benefit of Family Pension. 4.3. It is contended that even though such claim of the petitioner was duly forwarded by O.P. No.3 to O.P. No.1, but O.P. No.1 vide the impugned communication dtd. 08.02.2022 under Annexure-5, returned back the proposal inter alia observing that in view of the notification issued by the Department on 08.03.2018, deceased employee being covered under the Triple Benefit Scheme, 1966 and there is no such provision for sanction of Family Pension in favour of unmarried daughter under the scheme, petitioner is not eligible and entitled to get the benefit. 4.4. It is contended that since in normal course, the deceased employee would have retired on 30.04.1999, in view of the decision in the case of Bhimsen Prusty as well as Subarna Dibya as cited (supra), the deceased employee is covered under the provisions of Odisha Aided Educational Institution (Non-Govt. Fully Aided Primary School Teachers) Retirement Benefits (Amendment) Rules, 1986 and the Amended Rules, 1989. This Court in Para 3 of the Judgment in the case of Bhimsen Prusty has held as follows:- Page 3 of 8 // 4 // “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 on 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 payable.” Similarly, this Court in Para-20 of the decision in the case of Subarna Dibya has held as follows:- “Without entering into the arena of controversy, it would suffice to hold that the family of a member of teaching and non-teaching staff of an aided educational high school, who was otherwise eligible to receive pension, shall receive family pension in consonance with amended Rules.” 4.5. It is accordingly contended that the ground on which the claim of the petitioner was send back vide the impugned communication with the observation indicated therein is not sustainable in the eye of law and O.P. No.3 be directed to re-submit the pension papers of the petitioner, within a stipulated time and for sanction of family pension by O.P.No.1. 5. Even though the writ petition has been filed since 20.12.2022, but no counter affidavit has been filed as yet. But learned Addl. Govt. Advocate so also learned counsel appearing for the O.P. No.1 placing reliance on the Page 4 of 8 // 5 // notification issued by the Govt. in the School and Mass Education Department on 08.03.2018 as well as 01.05.2018, contended that since by the time the deceased employee died on 07.07.1981, there was no provision for grant of Family Pension in favour of unmarried daughter under TBS 1966, proposal submitted by O.P. No.3, has been rightly send back by O.P. No.1. Stipulation contained in Notification dated 08.03.2018 reads as follows:- “Sub- Extension of benefit of family pension to the Unmarried/Widowed/Divorced/Disabled/Widowed/D isabled/divorced deceased daughters employees/Pensioners after the age of 25 years in the employees of Aided Educational respect of Institutions of S&ME Department. of Government of Odisha have extended the benefit of family pension of the Unmarried / Widowed /Divorced/Disabled/Widowed/Disabled/ divorced daughters of deceased employees/Pensioners after the age of 25 years in respect of all the regular State Government employees vide Finance Department Notification No.32745/F dated 23.07.2011 till marriage/re-marriage or death provided that the monthly income of such daughter shall not exceed to Rupees Four thousand four hundred forty per month. The benefit shall be provided to such daughter in order to priority as specified therein. After careful consideration, government have been pleased to extend the benefit of family pension to the Unmarried/ Widowed/Divorced/ Disabled/ Widowed/ Disabled/ divorced daughters of deceased employees/Pensioners after the age of 25 years fulfilling the above mentioned eligibility criteria, in respect of the employees of the Aided Educational Institutions Employees Retirement Benefits, Rules 1981 (OAEIRB Rules, 1981) and the Odisha Aided Educational Institutions (Non-Government Fully aided Primary Schools Teachers’) Retirement Benefit Rules, 1986 (OAEIRB Rules, 1986) subject to condition that the relevant pension Rules together with corresponding amendments are strictly followed for calculation of Page 5 of 8 // 6 // their pensionary dues. This shall come into force from the date of publication of this Notification in the Odisha Gazette. This has been concurred vide UOR No.41-CS-III(M), in by Finance dated Department 22.08.2017.” 5.1. It is also contended that similar claim after being referred to the Govt. by this Court in W.P.(C) No.15782 of 2017 was rejected by the Govt. vide order dated 30.04.2018 basing on the notification issued on 08.03.2018. It is contended that since by the time the deceased employee died on 07.07.1981 benefits in terms of Odisha Aided Educational Institution Employees Benefit Rules, 1981 and Odisha Aided Educational Institutions Retirement Benefit Rules, 1986 read with the amended 1989 Rules were not in operation and there was no such provision for grant of Family Pension under TBS- 1966, no illegality or irregularity can be found with the impugned communication issued on 08.02.2022 under Annexure-5. 5.2 It is also contended that in terms of the earlier order passed in OJC 4721/1999, petitioner’s mother was extended with the benefit of family pension under TBS- 1966 vide PPO No.31882/ S(f) TBS under Annexure-1. Since under TBS-1966, there is no provision for sanction of family pension in favour of unmarried daughters, the proposal submitted in favour of the petitioner by Opp. Party no.3, has been rightly sent back vide Annexure-5 and it requires no interference. Page 6 of 8 // 7 // 6. Having heard learned counsel for the parties and considering the submission made, this Court finds that petitioner’s father with his date of birth being 10.04.1941, entered into service on 05.04.1965. It is not disputed that while so continuing he died on 07.07.1981. Taking into account the date of birth of the deceased employee so recorded, in normal course, he would have attained the age of superannuation on 30.04.1999. Placing reliance on the decision in the case of Bhimsen Prusty as well as Subarna Dibya as cited (supra), it is the view of this Court that since in normal course, the deceased employee would have retired on 30.04.1999 and there is provision for grant of Family in favour of unmarried daughters under the 1981 Rules and 1986 Rules read with the amended 1989 Rules, it is the view of this Court that stipulation contained in the notification dated 08.03.2018 is not applicable to the case of the petitioner. It is also the view of this Court sanction of family pension in favour of the wife of the deceased employee under TBS-1966 will not be a ground to deny the benefit in favour of the petitioner. 6.1. Therefore, this Court is inclined to quash the rejection so available under Annexure-5. While quashing the same, this court held the petitioner entitled to get the benefit of Family Pension in terms of the aforesaid 1981 Rules read with 1986 Rules and the amended 1989 Rules. This Court accordingly directs O.P. No.3 to re- Page 7 of 8 // 8 // submit the pension papers of the petitioner before O.P. No.1 within a period of 6(six) weeks from the date of receipt of this order. On submission of the pension papers, O.P. No.1 is directed to sanction the Family Pension as due and admissible to the petitioner, within a period of 6 (six) weeks thereafter. 7.
Decision
The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 15:17:01 Page 8 of 8