Brusasan Nayak vs State of Orissa and Others

Heard Mr. J. Rath, learned senior counsel for the petitioner and learned Counsel for the State.

The petitioner has filed this writ petition challenging the order dated 5.1.2009 passed by the Orissa Administrative Tribunal, Cuttack Bench, in O.A. No. 683(C)/2001.

The case of the petitioner before the Tribunal that he was appointed as an Assistant Teacher by the erstwhile Managing Committee of Kothar High School Kothar in the district of Balasore vide their resolution dated 17.5.1953 and joined in that school as an Assistant Teacher on 17.5.1953. While continuing as an Assistant Teacher of that school, he was directed by the Managing Committee to remain in charge of Headmaster of that school with effect from 20.7.1954 and was promoted to the rank of Headmaster from 1.8.1956 and discharges is duty as Headmaster till 20.11.1961 in the said school. By that time, Kothar High School, Kothar, was an Aided Educational Institution. Thereafter, the applicant was appointed as an Assistant Teacher (trained Graduate) in Bhalulata Training Centre in the district of Sundargarh as per the order of the Government of Orissa, Tribal and Rural Development Department dated 14th November, 1961 and joined in his post on 23.11.1961. After discharging the duties in different schools as an Assistant Teacher and Headmaster, the applicant retired from Government service on attaining the age of superannuation on 31.5.1984.

The grievance of the petitioner before the Tribunal was that the service period rendered in Kothar High School, Kothar from 18.5.1953 to 20.11.1961 was not taken into account while sanctioning his pensionary benefits. The petitioner submitted number of representations before the O.Ps. to grant him benefits of pension for the service rendered in Kothar High School, Kothar. But as no step was taken by the respondents, the petitioner filed O.A. No. 1131 (c)/1999 before the Tribunal which was disposed of vide Annexure-4 dated 31.12.1999, with a direction to O.P.1 to consider and pass appropriate order within a period of four months from the date of receipt of a copy of this order. In pursuance of the direction of this Tribunal, the Government of Orissa in S.C. & S.T. Development Department in Annexure-5 letter dated 8.6.2000 have rejected the representation of the petitioner. Hence, the petitioner again approached the Tribunal with a prayer to take into account his service rendered as an Assistant Teacher and Headmaster from 17.5.1953 to 20.11.1961 in Kothar High School, Kothar and to quash the order of rejection of his representation.

The Tribunal thereafter dismissed O.A. No. 683(C)/2001 holding that since the service of the petitioner was not serving in Kothar High School, Kothar, when the school was taken over and has entered into Government service on 23.11.1961 leaving his service in Kothar High School, he is not entitled for the relief claimed in the Original Application.

The case of the petitioner is that the order of the Tribunal is not in consonance with the provision of law and the Tribunal has proceeded in the matter without considering the resolution of the Government dated 18.12.1993.

A counter affidavit sworn to by the Under Secretary to Government in S.C. & S.T. Development Department, has been filed on behalf of O.Ps.1 & 2. The stand taken in the said, counter affidavit is as follows:

That, the facts of the case are that the petitioner was appointed as an Assistant Teacher by the Managing Committee of Kothar High School, Kothar, in the undivided district of Balasore (Bhadrak at present), vide their resolution dated 17.5.1953. The petitioner joined in the school as an Assistant Teacher on 18.5.1953 as indicated in the service book which has been annexed to the writ petition as Annexure-1. While continuing as such the petitioner was asked by the Managing committee to remain in charge of Headmaster of that school from 20.7.1954 and was promoted to the rank of Headmaster from 1.8.1956 and continued as Headmaster till 20.11.1061.

That, it is humbly submitted that the petitioner left his job in Kothar High School under then Education and Youth Services Department and went on to join as an Assistant Teacher in a Government School, i.e., Bhalulata Training Centre in the District of Sundargarh under the erstwhile Tribal Rural Welfare Department.

That, it is humbly submitted that the petitioner on 20.11.1961 left the Kothar High School and joined the Government Institution, i.e., Bhalulata Training Centre in the District of Sundargarh. Therefore, the resolution dtd. 26.10.1990 which clarified the OAEI Retirement Benefit Rules, 1981 was meant for persons who were continuing in Aided Educational Institutions and came into force from 1.4.1982 is not applicable to the petitioner who had left his service in the Aided Institution and joined afresh in a Government Institution in 1961. Before filing the verified counter before the learned Tribunal, petitioner''s case was referred to the present School and Mass Education Department for consideration of his claim and the Department was of the considered view that the Orissa Aided Educational Institutions Employees Retirement Benefits Rules, 1981 came into force with effect from on 1.4.1982 and prior to that the petitioner had already joined in Government Service on 23.11.1961. The aforesaid Government order dtd. 26.10.1990 will not be applicable to the case of the petitioner.

Learned Counsel for the State further draws out attention to Annexure-A/1 to the counter affidavit, which is a resolution dated 26th October, 1990 passed by the Education & Youth Services Department. In this regard, we sought for the assistance of Mr. J. Rath, learned senior counsel for the petitioner, who has drawn out attention to Rule 6(1) of the Orissa Aided Educational Institutions'' Employees Retirement Benefit Rules, 1981, as well as the clarification made vide Annexure-3, i.e., resolution dated 18.12.1993. The point of doubt and clarification, which are relevant for taking a decision on this case, are extracted herein below.

Point of doubt Clarification

(a) Whether the total period of service (a) The minimum and maximum rendered by an employee both years of qualifying service for under the aided educational the purpose of pension shall institutions and government will be determined by taking into be clubbed together and counted account the total period of for calculation of pension and qualifying service rendered under D.C.R.G. and sent to the A.G., the aided institutions and Govt. Orissa for sanction. provided the total qualifying service of the Govt. falls short of 33 years.

Facts remains that the petitioner was serving in an aided education institution till 20.11.1961 and thereafter he left the service and three days after, he joined on 23.11.1961 in Bhalulata Training centre in the district of Sundargarh, which is a training centre under the S.T. & S.C. Development Department. So according to the petitioner, the period of service rendered by him in the aided educational institution should have been considered for the purpose of his pension.

Learned Counsel for the State submits that the period, for which the petitioner had served in the Government school, has been duly taken into account for calculating his pensionary benefits. It is submitted that had the petitioner worked in the aided educational institution till the school was taken over, he would have got the benefit, as claimed now. But then, it is not disputed that had the educational institution been taken over when the petitioner was working there, it would not have changed the date of superannuation of the petitioner.

Our attention has been drawn to the decision of this Court in State of Orissa and Anr. v. Dr. N.N. Swami and Ors. 2006 (Supp.-II) OLR 912. The point raised in this writ petition was the subject matter of the aforesaid decision, in which this Court has exhaustively dealt with the same question and has arrived at the following conclusion:

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 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.

In view of the facts and circumstance, 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.

In view of the decision in Dr. N.N. Swami (supra), there is nothing to be decided in the present writ petition. Accordingly, we set aside the order dated 5.1.2009 passed by the Orissa Administrative Tribunal, Cuttack Bench, in O.A. No. 683(C)/2001 and direct the O.Ps. to calculate the pensionary benefit of the petitioner for a maximum period of 33 years taking into consideration his past service rendered in Kothar High School, Kothar in the district of Balasore and pay the same to him. The entire exercise shall be completed within a period of three months from the date of communication of this order.

The writ petition is accordingly allowed.

Issue urgent certified copy.