Basanta Kumar Sahoo vs State Of Odisha And Ors
2022 Latest Caselaw 2771 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK
             WPC(OAC) No.2822 of 2014
(In the matter of an application under Articles 226 and
227 of the Constitution of India, 1950).

Basanta Kumar Sahoo                       ....          Petitioner
                            -versus-
State of Odisha and Ors.                  ....         Opp. Parties


 Advocates appeared in the case through Hybrid Mode:
For Petitioners         :   Mr. K.K. Swain, Adv.

                            -versus-
For Opp. Parties            :   Mr. Biswajit Mohanty, SC
                                (for S & ME Deptt.)

        CORAM:
        MR. JUSTICE S.K. PANIGRAHI

          DATE OF HEARING:-13.05.2022
         DATE OF JUDGMENT:-27.05.2022
  S.K. Panigrahi, J.

1. This matter is taken up through hybrid mode.

2. In this writ petition, the petitioner has prayed for a direction from this Court to the opposite parties to sanction and grant pensionary benefits and other retiral benefits i.e. gratuity, leave salary to him taking into account his Non-Formal period of service as qualifying service.

3. The facts of the case are that the petitioner was initially appointed as a Non-Formal Facilitator vide order dated 17.02.1982 of the District Inspector of Schools, Jagatsinghpur and he is continuing as such

and discharging his duties to the satisfaction of all concerned. The petitioner while continuing as such, as per the Scheme/circular issued by the State Government to absorb all Non Formal Facilitators having three years of service and having C.T. qualification as regular Primary School Teachers, the petitioner accordingly was absorbed as regular Primary School Teacher by virtue of order dated 19.07.1997 issued by the District Inspector of Schools, Jagatsinghpur. Pursuant to the aforesaid order dated 19.07.1997 of the District Inspector of Schools, Jagatsinghpur, the Block Development Officer, Jagatisnghpur vide his office order No.1913 dated 26.7.1997 issued appointment order in favour of the petitioner.

4. Pursuant to the said order of appointment, he joined as an Assistant Teacher on 24.07.1997 which is evident from the relevant pages of the Service Book. However, while the petitioner was serving as Assistant Teacher, his services were terminated abruptly with effect from 30.11.2006 vide order dated 30.11.2006 passed by the District Inspector of Schools, Jagatsinghpur. The petitioner challenged the said order dated 30.11.2006 by filing an O.A. No.2764 (C) of 2006 before the State Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as "the Tribunal" for brevity). The Tribunal vide order dated

14.12.2006 passed in batch of cases including the O.A. No.2764(C) of 2006 filed by the petitioner and stayed order of termination dated 30.11.2006 and directed to restore of status of the petitioners therein as on 30.11.2006. The relevant portion of the order dated 14.12.2006 passed by the Tribunal in the aforesaid batch of cases is as follows:

"In the meantime, the order of termination dated 30.11.2006 is stayed until 18.11.2007 and the applicant be restored back to the status as on 30.11.2006 and if the post is already occupied, then she be shown against supernumerary post created specifically for this purpose in compliance of the orders of the Tribunal. The opposite parties would also be competent to relocate the vacancies wherever they can to adjust those persons whose service have been terminated by the order dated 30.11.2006. We also clarify that no one who is recruited in pursuance of the recruitment process initiated in March, 1996 will in any manner be affected by the location of the vacancies for the applicants i.e. NFE Instructors/ Supervisors. Any direct recruit of NFE Instructor/ Supervisor who does not conform to the qualification prescribed would not be covered by these orders."

5. Pursuant to the aforesaid order dated 14.12.2006 passed in 0.A. No.2764 (C) of 2006, the petitioner was reinstated in service and he was allowed to retire from service with effect from 31.05.2007 on attaining the age of superannuation.

6. Learned counsel for the petitioner submitted that even though the petitioner was allowed to retire from service with effect from 31.05.2007, he was not provided with pension and other retiral benefits on the ground that he has not completed 10 years of qualifying service as a Primary School Teacher. It was further submitted that admittedly the petitioner had rendered 9 years and 10 months of service as a regular Primary School Teacher for which he has not been granted pension.

7. Learned counsel for the petitioner further contended that since the petitioner has rendered 14 years of service as a Non-Formal Facilitator and as per the Government circular governing the field, he being a trained Non-Formal Facilitator, he was absorbed as a regular Primary School Teacher. His qualifying service ought to have been taken into consideration by adding the service period rendered by him as Non-Formal Facilitator. Curiously, the authorities have failed to take into consideration the service period rendered by him as Non-Formal Facilitator and have also rounded of the qualifying service bereft of Non-Formal period to 10 years although he has rendered 9 years and 10 months of service exclusively as a regular Primary School Teacher. Therefore, it is imperative that the Opposite Parties should count the service rendered by the petitioner as Non-Formal Facilitator and by adding

the same to his qualifying service, his pension and other retiral benefits should have been paid.

8. On the contrary, learned Standing Counsel for the Department of School and Education submitted that the averment made by the petitioner in the writ petition is that the order of termination dated 30.112006 has been quashed by the Tribunal vide order dated 14.12.2006 passed in O.A. 2764(C) of 2006 is not correct. In fact, the Tribunal has admitted the O.A. 2764 (C) of 2006 filed by the petitioner along with other batch of cases and issued notice to the opposite parties, as would be evident from the order dated 14.12.2006. There was to file their reply by fixing the next date of hearing to 18.01.2007. The said order does not reveal that the order of termination of the petitioner has been quashed and further no direction whatsoever has been passed to reinstate the petitioner. Rather, an interim order has been passed to maintain status of the petitioner as on 30.11.2006 subject to condition that if the post occupied by the petitioner is not already occupied and if occupied he be shown against supernumerary post in the event he conforms to the qualification prescribed for absorption of N.F.Es. in the post of Primary School Teacher.

9. As a matter of fact the petitioner had already been relieved from service with effect from 30.11.2006 and no supernumerary post was created for his adjustment

and he was not allowed to continue after 30.11.2006 in compliance of the interim order dated 14.12.2006 of the Tribunal. Since he did not satisfy other conditions stipulated therein, hence it is not correct to say that the petitioner was re-instated is service and was allowed to retire from service with effect from 31.05.2007.

10. Moreover, the petitioner has not filed the document/ order purportedly under which he was allowed to retire on 31.05.2007. He, further, submitted that when the petitioner has been terminated from service on 30.11.2006 and he has neither been re- instated nor allowed to retire with effect from 31.05.2007, the petitioner has only qualifying period of service for 9 years 4 months and 6 days to his credit. Since the petitioner has not served for 10 years of minimum qualifying period of service, as per Rule 47(2) (b) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as "the Rules" for brevity"), he is not entitled to any pension or other pensionary benefits. He further submitted that the Rules do not provide any provision to count the period of service rendered as N.F.E. towards qualification service. Moreover, the post of N.F.E. Instructor is not a civil post, rather it is a centrally sponsored schematic post. Therefore, in no circumstances, the period of

service rendered as N.F.E can be taken as service period in pensionable establishment.

11. A rejoinder affidavit to the counter has been filed by petitioner. In his rejoinder affidavit the petitioner stated that he being a Non-Formal Facilitator was appointed as a Primary School Teacher by virtue of the order dated 19.07.1997 of the District Inspector of Schools, Jagatsinghpur. Accordingly, the petitioner joined the said post on 24.07.1997 and continued to discharge his duties.

12. The petitioner while continuing as such, his services were terminated by virtue of the order dated 30.11.2006 of the District Inspector of Schools, Jagatsinghpur with effect from 30.11.2006. Thereafter, the petitioner filed O.A. No. 2764 (C) of 2006 along with other similarly situated teachers whose services were terminated. Pursuant to the order dated 14.12.2006 passed in O.A. No. 2764 (C) of 2006 and a batch of cases, 122 numbers of Ex-Non-formal Instructors under Jagatsinghpur and Tirtol Education District were reinstated in service by virtue of the office order dated 04.05.2009 of the District Inspector of Schools, Jagatsinghpur. Similarly situated Assistant Teachers who were terminated from service with effect from 30.11.2006 were reinstated in service by virtue of the order dated 04.05.2009 of the District Inspector of Schools, Jagatsinghpur. Since the petitioner retired

from service on attaining the age of superannuation with effect from 31.05.2007, he is also entitled to get the same benefit on the basis of the order passed by the Tribunal.

13. The petitioner has completed 9 years and 10 months of qualifying service, he is entitled to get pension and if, at all, there is any short fall, the same is to be adjusted from the service rendered by the petitioner in the capacity of non-formal Facilitator. Therefore, the plea taken in the counter affidavit that the petitioner was not reinstated in service nor allowed to retire from service with effect from 31.05.2007 is not at all correct particularly when similarly situated Assistant Teachers who were terminated from service with effect from 30.11.2006 were taken back to the service, which is evident from the order dated 04.05.2009 passed in favour of one Smt. Bijayalaxmi Mohapatra, who was one out of 122 numbers of teachers who was terminated from service with effect from 30.11.2006 as per Annexure-8. Besides, in the case of Grama Panchayat Secretary, who was appointed/ promoted to the post of V.L.W., her services in the capacity of Grama Panchayat Secretary were taken into consideration for the purpose of grant of pension. Therefore, applying the same logic, the service rendered by the petitioner during the period of Non-Formal Facilitator should

have been taken into consideration for the purpose of counting the qualifying service period for grant of pension.

14. Similar facts have been quite well articulated in the case of State Bank of Patiala vs. Pritam Singh Bedi & Ors.1 and Indian Bank vs. G.Ramachandran2 and a few months shortage of the minimum years of service to be reckoned for completion of the minimum service period, the said shortage period can be rounded off and the benefits can be granted in favour of the employees.

15. In view of the finding recorded above, the Writ Petition is allowed.

16. The Opposite Parties are directed to take immediate steps for releasing the pension to the petitioner as per procedure preferably within three months from the date of receipt of the copy of this order. No order as to costs.

17. As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of.

( S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 27th of May, 2022/B. Jhankar

(2014)13 SCC 474

(2008) SCC 711