Orissa High Court

Hemalata Barik vs State Of Odisha And Ors on 5 August, 2022

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                   W.P.(C) No.18059 of 2022

        Hemalata Barik                     ....          Petitioner
                              Mr. Subash Chandra Puspalaka, Adv.
                                 -versus-
        State of Odisha and Ors.          ....    Opposite Parties
                                        Mr. Debasis Mohapatra, SC
                                              (for S & ME Deptt.)

                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI

Order                            ORDER
No.                             05.08.2022

 01.    1. This matter is taken up through hybrid arrangement.

        2. Heard.

        3. The petitioner, in this Writ Petition, challenges the

        order dated 26.07.2021 passed by the opposite party

        No.2-   Director   of   Elementary   Education,    Odisha,

        Bhubaneswar rejecting her prayer for sanction of pension

        and family pension on the ground that the qualifying

        service of the deceased husband of the petitioner was

        more than 7 years but less than 10 years.

        4. Learned counsel for the petitioner submit that in the

        impugned order it has been stated that as per Sub-Rule-2

        (b) of Rule 47 of Orissa Civil Services (Pension) Rules,

        1992 the deceased husband of the petitioner was not

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eligible to get the pension as he had not completed 10

years of qualifying service and in view of that the

petitioner is not eligible to get the family pension. Being

aggrieved, the petitioner has filed the present Writ

Petition praying for quashment of the impugned order

dated 26.07.2021 passed by the opposite party No.2-

Director of Elementary Education, Odisha, Bhubaneswar

with a direction to the opposite parties to consider her

case for grant of pension in favour of her husband and

family pension in her favour by taking into account the

past service rendered by her husband as Sikhya Karmi

before regularization of his service against the post of

regular primary teacher.

5. He further submits that the petitioner is the widow of

one Golekha Charan Barik who was serving as the

Assistant teacher under the then District Inspector of

Schools, Patamundai and was retired from his service

upon attaining the age of superannuation on 31.10.2002

from Kirtanpur Primary school under Jagatsinghpur

district. Grievance of the petitioner is that her husband

was eligible to get pension and after his death being the

widow, she is entitled for family pension. But the said

benefit has not been extended to her.


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6. He further submits that the husband of the petitioner

having requisites qualification was appointed as Siskhya

Karmi on 13.10.1990 at Balavadrapur U.G.M.E. School

vide order dated 12.10.1990 issued by the then District

Inspector of School Pattamundai.          Thereafter, pursuant

to the letter No.4356 dated 21.03.1995 of the Director of

Elementary Education, Orissa, Bhubaneswar and with

reference to the office letter No.5054 dated 22.12.1994

addressed     by    the   District      Inspector   of    Schools,

Pattamundai to the Director, the husband of the

petitioner was appointed as a regular Primary School

teacher in the scale of pay 1080-30-1440-E.B-30-1800 with

usual D.A with effect from the date the husband of the

petitioner joined in the school as notified. In response to

the order dated 20.04.1995, the husband of the petitioner

joined   as   a    regular   Primary       School   Teacher      at

Balabhadrapur U.G.M.E. School on 22.04.1995 and upon

attaining the age of superannuation, he retired from his

service on 31.12.2002 from Kirtanpur Primary School in

the district of Jagatsinghpur.

7. It is also submitted that after regularization of service

her husband and others filed O.A.NO.391 of 1996 before

the Orissa State Administrative Tribunal, Bhubaneswar

Bench, Bhubaneswar with a prayer to direct the opposite
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parties/ respondents to give the salary for the period they

had worked as Sikhya Karmi at par with the salary

admissible to the regular primary school teachers and the

Hon'ble Tribunal allowed the same and against that order

the State preferred an appeal before the Supreme court

which was dismissed.

8. Learned counsel for the petitioner further submits that

by virtue of that judgment the service rendered by the

husband of the petitioner and others as Siskhya Karmi

was counted towards regular service and the benefit for

that period was given to them and it was also counted

towards the pension. The husband of the petitioner

submitted the pension papers for sanction and release of

the pension immediately after his retirement and when

the same was pending for consideration, he passed away

on 10.08.2013.

9. After the death of her husband, the petitioner

approached the authority for sanction of pension of her

husband and for family pension time and again. But till

date her grievance has not been considered.

10. It is further submitted that the husband of the

petitioner was eligible for pension from 01.11.2002 to

09.08.2013 and from 10.8.2013 onwards, the petitioner is

eligible for family pension as per Rule-56 of the Orissa

// 5 //

Civil Services (Pension) Rules, 1992. But the same weas

not granted to her husband during his life time and to the

petitioner after the death of her husband.

11. It is also submitted that as the claim of the petitioner

was not considered for sanction and release of pension in

favour of her husband and family pension in her favour,

she approached this Court in W.P.(C) No.24136 of 2020

with a prayer to direct the opposite parties to consider

her grievance and sanction and release the pension for

the period from 01.11.2002 to 09.08.2013 and the family

pension from 10.08.2013 to onwards. This Court vide

order dated 02.11.2020 disposed of the said Writ Petition

directing the opposite party No.2- Director Elementary

Education, Odisha, Bhubaneswar to take a decision

within a period of one and half months from the date of

communication of the order along with the copy of the

Writ Petition. As no action was taken by the opposite

party No.2- Director Elementary Education, Odisha,

Bhubaneswar to comply the order dated 02.11.2020

passed in W.P.(C) No.24136 of 2020, the petitioner filed

CONTC No. 1794 of 2021 which was disposed of vide

order dated 31.03.2021 with a direction that if the earlier

order dated 02.11.2020 has not been complied with in the

meantime, the same may be complied with within a

// 6 //

period of three months from the date of

communication/production of the certified copy of the

order. In the meantime, opposite party No.2- Director

Elementary Education, Odisha, Bhubaneswar has

considered the grievance of the petitioner and rejected

the same on the ground that the husband of the petitioner

has not rendered 10 years of qualifying service to get the

pension/ family pension as per Sub-Rule-2 (b) of Rule- 47

of Orissa Civil Services (Pension) Rules, 1992.

12. Learned counsel for the petitioner contends that the

husband of the petitioner joined as a Sikhya Karmi on

13.10.1990 and retired from service on 31.12.2002.

Therefore, he had completed more than 10 years of

service and he was eligible to get the pension and the

petitioner after the death of her husband is eligible to get

the family pension.

13. Learned Standing Counsel for the Department of

School and mass Education submits that though the

husband of the petitioner had serve for more than ten

years, but he had not served as a regular teacher for that

period. He served as a regular teacher only for more than

seven years i.e. from 22.04.1995 till 31.12.2002. Therefore,

he was not entitled to get the pension as per Sub-Rule-2

(b) of Rule- 47 of Orissa Civil Services (Pension) Rules,

// 7 //

1992 and accordingly, the petitioner is also not entitled to

get family pension.

14. It is apposite to refer to Sub-Rule-2 (b) of Rule- 47 of

Orissa Civil Services (Pension) Rules, 1992 to understand

the provisions for recipient of the financial benefits

arising out of the service of the deceased. The same is

quoted hereunder:

"47. Amount of pension- the amount of pension that may be granted shall be determined by the length of completed six monthly periods of service rendered by the retired Government servant.

(2) xx xx xx xx

(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (1) and in no case amount of pension shall be less than [ rupees one thousand two hundred seventy-five]