Orissa High Court
Ganga Rani Behera vs State Of Odisha And Others on 16 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 22614 of 2017
Ganga Rani Behera .... Petitioner
Mr. S. Udgata, Advocate
-Versus -
State of Odisha and others .... Opposite Parties
Mr.S. Pattanaik,
Additional Government
Advocate
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER_
16.08.2023
Order No. 1. This matter is taken up through hybrid mode.
10. 2. Heard learned counsel for the petitioner and learned counsel
for the State.
3. The petitioner has approached this Court seeking the following
relief.:-
"In the facts and circumstances narrated above
and in the interest of justice, this Hon'ble Court may
graciously be pleased to issue notice to the opposite
parties, call for the record and after hearing the
parties be further pleased to issue
writs/directions/declaration:
i) Quash the impugned order passed in Annexure-12 to
the writ application.
ii) Direction directing the opposite party to sanction
family pension with effect from 1.9.88 and temporary
increase in family pension with effect from 1.10.1995.
And all the writ application with cost.
And grant such other relief(s) as this Hon'ble Court
may deem fit and proper.
And for this act kindness the petitioner shall as in duty
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bound every pray."
4. The facts of the case are that the petitioner's husband was
working as Lecturer in English in Hinjilicut Science College,
Ganjam and died in the harness on 07.11.1979. Since he was born
on 01.04.1935 he would have retired on attaining the age of
superannuation of sixty years in ordinary course on 31st March
1995 and therefore, would have been eligible for pension as per the
Orissa Aided Educational Institutions Employees Retirement
Benefits Rules, 1981. It is the case of the petitioner that despite
repeated requests including approach to this Court in OJC
No.11634 of 2001 and CONTC No. 6923 of 2005, the family
pension, to which the petitioner is entitled to, has not been released.
Further as per order dated 01.02.2016 (Annexure-12), the Principal
Secretary to Government in the Department of Higher Education
rejected the claim of the petitioner on the ground that the
petitioner's husband was not a pensioner and did not come within
the purview of the 1981 Rules as he had expired prior to coming
into force of the said rules.
3. In course of argument, Mr. S. Udgata learned counsel for
the petitioner relies upon a judgment passed by this Court in the
case of Subashini Patnaik v. State of Orissa and others, reported
in 2023 (II) CUT 247 wherein it was held under Paragraphs- 8 to 10
as follows:-
"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
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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."
According to Mr. Udgata the facts of the said case are
entirely comparable to the facts of the present case.
5. Mr. Suvashish Pattanaik, learned Additional Government
Advocate fairly submits that the case of Subashini Patnaik (supra)
are similar to the facts of the present case. Since this Court has also
found that the facts of the present case are similar to the facts of
Subashini Patnaik (supra), there can be no hesitation in holding
that the rejection of the petitioner's claim as per the impugned order
under Annexure-12 cannot be sustained in the eye of law.
6. The writ petition is therefore, allowed. The impugned order
under Annexure-12 is quashed. The opposite parties authorities are
directed to pass necessary orders extending the benefit of family
pension to the petitioner in accordance with the Rules, if there is no
other legal impediment. Having regard to the fact the petitioner is
an old lady, aged about 80 years, necessary order shall passed as
directed within a period of four weeks.
(Sashikanta Mishra)
Judge
B.C. Tudu
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 21-Aug-2023 12:20:52
