Orissa High Court

Afr Subashini Patnaik vs For on 26 April, 2023

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C) No. 22660 of 2016

        Application under Articles 226 and 227 of the Constitution
        of India.
                                  ---------------
AFR     Subashini Patnaik                    ......          Petitioner

                                     -Versus-

        State of Orissa & others           .......          Opp.Parties

        Advocate(s) appeared in this case:-
        __________________________________________________________
            For Petitioner   : M/s. L.K. Mohanty, B. Barik,
                               P. Shagat, P.M. Rao & Advocates

            For Opp. Parties: Mr. N. Pratap,
                              Addl. Standing Counsel.
        __________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

26th April, 2023

SASHIKANTA MISHRA, J. The petitioner has approached this

Court with the following prayer:

"The petitioner, therefore, most humbly prays that this Hon'ble Court may graciously be pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ(s)/direction(s)/order(s) by directing the opposite party Nos.1 to 4 to release the pensionary benefits in favour of the petitioner as the petitioner is only the legal heir and widow of Late Sarat Chandra Patnaik who was working

as a M.E. School teacher, died on 08.01.1974 and to pay the same so as to maintain herself;

And further the Hon'ble Court be graciously pleased to direct the opposite party Nos. 3 & 4 to pay the arrear dues/pensionary benefits to the petitioner within a stipulated period as would be deemed fit and proper in the facts and circumstances of this case;

And for this act of kindness the petitioner shall as in duty bound ever pray."

2. The facts of the case are that the husband of

the petitioner, late Sarat Chandra Patnaik joined as

Assistant Teacher in Loknath M.E. School, Mahagab on

01.08.1948, which is an Aided Educational Institution. He

died on 08.01.1974 while continuing in service. As per the

Odisha Aided Educational Institutions Employees'

Retirement Benefit Rules, 1981, (in short '1981 Rules') the

benefit of pension was made available to Aided Primary

School Teachers w.e.f. 01.04.1982. Further, benefit of

family pension to the family of the teachers was introduced

w.e.f. 01.09.1988. By another resolution dated 23.03.1989,

pension and pensionary benefits were granted to Primary

School Teachers of Aided Institutions at par with their

counter parts in Government Schools. By another

notification dated 18.10.2001 the benefit of family pension

was extended to the family of teachers who died on or after

01.09.1988. A Single Judge of this Court in the case of

Subarna Dibya and 61 others vs. State of Orissa and

others, reported in 2005 (1) OLR 168 held that family

members of teachers dying in harness shall also be entitled

to family pension. The petitioner submitted representation

for grant of family pension but the same was not

considered, for which she approached this Court in W.P.(C)

No. 9097 of 2003. This Court, vide order dated 18.01.2005

directed the petitioner to file another representation and

also directed the opposite parties to dispose of the same by

passing a reasoned order in light of the ratio of the decision

in Subarna Dibya (supra). The opposite party authorities

did not act upon such order, for which the petitioner filed

CONTC No.1135 of 2005 before this Court, wherein the

present opposite party No.1 appeared and submitted that

the representation of the petitioner had been disposed of on

the ground that the judgment in Subarna Dibya (supra)

had been challenged before the Supreme Court of India in

SLP(C)CC No.5993-6054/2005 (State of Odisha vs.

Subarna Dibya & 61 others) and that the Supreme Court

had stayed operation of the same. The petitioner was thus

asked to wait till disposal of the SLP. Ultimately, the SLP

was dismissed by order dated 19.02.2015. Despite such

dismissal of SLP, as the opposite parties did not grant her

family pension, she was constrained to approach this Court

in the present writ application.

3. The stand of the opposite parties is that the

husband of the petitioner died much prior to coming into

force of the 1981 Rules, whereas the said Rules are

applicable only to the employees of Aided Educational

Institutions under the Direct Payment Scheme receiving

full grant-in-aid and retiring on or after 01.04.1982. The

benefit of family pension was introduced for the first time

vide Notification dated 05.12.1989 amending the 1981

Rules. The same was also applicable to persons who retired

or died on or after 01.09.1988. The said Notification was

however, quashed by this Court in the case of Bhimsen

Prusty and Others vs. State of Odisha and Others

reported in 1994 I OLR 439 : 78 (1984) CLT 357. As such,

there was no provision applicable under the 1981 Rules to

grant family pension. By way of an amendment in the year

2001, Rule-8(2)(b) of the 1981 Rules was amended to make

the family of a pensioner or the family of an employee, who

died on or after 01.09.1988, entitled to family pension.

In Subarna Dibya (supra), this Court has

defined the meaning of 'pensioner' which implies pensioner

under the Odisha Aided Educational Institutions (Non-

Government Fully Aided Primary School Teachers)

Retirement Benefit Rules, 1986 (in short '1986 Rules') and

also includes pensioners under the 1981 Rules, which was

applicable to Primary School Teachers from 01.04.1982 till

01.04.1985, the date on which 1986 Rules came into force.

The 1981 Rules therefore, ceased to apply to the persons

specified in sub- Rule(1) w.e.f. 01.04.1985. The husband of

the petitioner having died much earlier, i.e., in the year

1974 was not eligible as on the date of his death to receive

pension and thus, cannot be treated as pensioner within

the meaning of the Rules. Such being the factual position,

his family members would also not be eligible to receive

family pension.

4. Heard Mr. L.K.Mohanty, learned counsel for

the petitioner and Mr. N. Pratap, learned Additional

Standing Counsel for the State.

5. Mr. Mohanty has heavily relied upon the

observations made in Subarna Dibya (supra) in paragraphs

18 and 19 to buttress his argument that had the husband

of the petitioner not died, he would have superannuated in

April, 1986, which is after 01.04.1982. As such, he would

have been eligible to receive pension as per 1981 Rules. In

such view of the matter, the petitioner being his widow

cannot be deprived of family pension more so, as the

judgment in Subarna Dibya (supra) has been confirmed by

the Apex Court in view of the judgment in SLP filed against

it by the State.

6. Mr. N. Pratap, on the other hand, submits that

since the fact of death of the deceased on 08.01.1974 is not

disputed, the question is, was he eligible to receive pension

as on that date. According to Mr. Pratap, the answer can

only be in the negative. Such being the fact, the petitioner

cannot be held eligible to receive family pension.

7. This Court finds that the issue relating to

grant of pension and family pension to the employees of

recognized non-Government Educational Institutions and

their family members was the subject matter in the case of

Subarna Dibya (supra). After examining the relevant Rules

and Notifications issued by the Government in this regard

as also the earlier decisions of this Court and the Apex

Court, the Court ultimately held that in view of the

amendment of Rule-8(2)(b) in the 1981 Rules in the year

2001, the family of a pensioner and the family of an

employee, who died on or after 01.09.1988, would be

entitled to family pension. For immediate reference, the

relevant paragraph of the judgment is quoted herein below:

"16. Heard the learned counsel for the parties patiently, noticed the submissions carefully, perused the materials meticulously and considered the matter diligently. It is well settled rule of interpretation that the Court while interpreting a rule should as far as possible avoid the construction which attributes irrationality and the Court must obviously prefer a construction which renders a statutory provision constitutionally valid, viable and operative rather than that which makes it void and inoperative. The amendment to the

1981 Rules introduced by the impugned Notification dated 18th October, 2001 substituting Rule 8(2)(b) clearly stipulates :-

"The family of a pensioner or the family of an employee who died on or after the 1st September, 1988 shall be entitled to get family pension as admissible to the family of his counterpart in the State Government Service."

( Emphasis supplied) Thus, there are two categories of persons who are entitled or eligible to receive family pension. The first category is the family of a pensioner and the second category is the family of an employee, who died on or after 1st of September, 1988. Any person, who satisfies either of the above two criteria would be eligible to receive family pension. The word 'pensioner' used in the aforesaid Rule shall mean a primary school teacher of an aided educational institution who was receiving pension and shall also include one who was otherwise eligible to receive pension, but for some reason or other pension was not paid to him. In other words, 'pensioner' shall also bring within its ambit an employee who was entitled and/or in consonance with the Rules was eligible to be covered under the pension scheme. According to the 2001 Amended Rules, the family members of such employees shall be entitled to receive family pension. I, therefore, find no ambiguity in the aforesaid Amended Rules."

8. What is relevant to note from the aforesaid

observation is that an extended meaning was given to the

word 'pensioner' to include in its ambit an employee who

was entitled and/or in consonance with the rules was

eligible to be covered in the pension scheme. In the instant

case there is no dispute that the husband of the petitioner

was not a pensioner as on the date of his death and he died

much before, i.e. on 01.09.1988. However, the question is,

would he have been eligible to receive pension had he lived.

As already stated, the husband of the petitioner joined in

service on 01.08.1948. His date of birth is said to be

10.08.1926. As such, had he lived, he would have retired in

August 1984, which is after 01.04.1982.

9. In Subarna Dibya (supra) this Court also

considered the case of the family members of an employee,

who died in harness and observed as follows:

"18. The only other question, which needs to be answered, is as to whether the family members of an employee who died in harness would be eligible to receive family pension or not. In such eventuality, the decision will differ from case to case. It is needless to say that in consonance with the Orissa Pension Rules and other provisions the family of an employee who dies in harness would be entitled to pension or proportionate pension as would be admissible taking into consideration the number of years of service rendered by him and other eventualities. Rule 8 of the 1986 Rules stipulates that an employee shall be eligible for pension, gratuity or death-cum-retirement gratuity as the case may be in certain eventualities; one of the same being retirement before superannuation on medical ground or permanent incapacity for further service. If an employee is entitled to pension having retired prematurely on being permanently incapacitated, there can be no reason to extend the benefit of family pension to an employee who

dies in harness. In such cases, the authorities shall first decide as to whether the employee was eligible to receive proportionate pension in consonance with the Rules and if it is found that, in fact, the employee was entitled to receive pension, take a decision with regard to extending the benefit of family pension to the family of such employee, who was otherwise eligible to receive pension if he would have superannuated in usual course, but unfortunately died in harness in the light of Rule 4(3) of the 1986 Rules."

10. This Court has already held that had the

petitioner not died in harness, he would have

superannuated ordinarily in August 1984. By such time

the benefit of family pension granted as per the 1981 Rules

w.e.f. 01.04.1982 had already come into force. As such, he

would have been eligible to receive pension. As a natural

corollary thereof, the petitioner would be entitled to family

pension as per the Rules.

11. For the foregoing reasons therefore, this Court

holds that the petitioner has made out a good case for

grant of the relief claimed.

12. Resultantly, the writ petition is allowed. The