Orissa High Court

Dr.Nalilni Kanta Mishra vs Board Of Secondary Education on 5 May, 2023

              IN THE HIGH COURT OF ORISSA AT CUTTACK


                         W.P.(C) No.10335 OF 2018

         (An application under Articles 226 and 227 of the Constitution
         of India)


           Dr.Nalilni Kanta Mishra                           ...     Petitioner

                                         -versus-

           Board of Secondary Education,
           Odisha and others
                                                              ... Opposite Parties


           Advocates appeared in the case through hybrid mode:

             For Petitioner                     : Mr.Kalyan Patnaik,
                                                  Advocate
                                         -versus-

             For Opposite Parties                   : Mr.S.S.Rao,
                                                      Advocate

             ---------------------------------------------------------------------------
             CORAM:

                           JUSTICE SASHIKANTA MISHRA

                                     JUDGMENT

05.5.2023.

Sashikanta Mishra,J. The Petitioner has approached this Court

with the following prayer;

<Therefore, it is prayed that your Lordships would be graciously pleased to issue rule nisi calling upon the opposite parties to show cause as to why the impugned order under Annexure-1 for provisional pension and gratuity should not be revised why opp. parties are not commanded to compute pensionary benefit including his past service rendered in Solapasta High School, Solapata and aided educational institutions recognized by Board prior to his joining in service of the Board within a period fixed by this Hon'ble Court.=

2. The facts of the case are that the Petitioner joined

as an Asst. Teacher in Solapata High School in the

district of Nayagarh on 2nd January, 1978 and served

as such till 4th May, 1989. Being selected and

appointed as a Junior Subject Expert (Math) in the

Board of Secondary Education, he joined as such on

5th May, 1989. He superannuated from service on 31st

May, 2014. He applied for pension with all relevant

papers and documents and provisional pension was

sanctioned on 18th October, 2014. It is his grievance

that the period of 11 years of service rendered by him

in Solapata High School was not taken into account for

calculating his pension and gratuity. He submitted

representations to the authorities, but no action was

taken thereon. Relying upon Clause-22 of the Board of

Secondary Education Regulations as amended in 1997,

the Petitioner claims that his past services have been

unjustly deleted resulting in grant of less pension and

non-payment of gratuity.

3. The stand of the Board of Secondary Education

as revealed from their counter affidavit is, the claim of

the Petitioner is not maintainable as the previous

service was rendered in a non-pensionable

establishment. Further, as per Orissa Pension Rules,

the Petitioner did not exercise option within the

stipulated period for coming under the Government

Pension Scheme for which he is deemed to have opted

for the contributory provident fund benefit.

The Petitioner has filed a rejoinder refuting the

stand taken in the counter. It is stated that having

allowed provisional pension to him w.e.f. July, 2015, it

is no longer open to the Board to take a different stand

at this stage. Further, this Court in several decisions

has held that the OCS Pension Rules, 1992 is not

required to be taken into account in view of the

amendment to the Board of Secondary Education

Regulations in 1997.

4. Heard Mr. K. Patnaik, learned counsel for the

Petitioner and Mr. S.S.Rao, learned counsel appearing

for the Board of Secondary Education, Odisha.

5. Mr. Patnaik would argue that once the Board of

Secondary Education Regulations was amended (in

1997) to include service rendered in a recognized

educational institution, the Petitioner becomes entitled

to count his service in Solapata High School, which is

a recognized educational institution. Mr. Patnaik

further argues that in the case of Rama Narayan

Padhy v. State of Orissa and another; reported in

2006 (1) OLR 293, this Court has already held that

there is no need to take the help of OCS Pension Rules,

1992 for the interpretation of Board Regulations, 1997

and thus held that the past service rendered in a

recognized educational institution shall be counted

towards pension and pensionary benefits.

6. Sri S.S.Rao, on the other hand, argues that

unless the previous establishment is a pensionable

establishment, the service rendered in such

establishment cannot be included. Moreover, at the

time of joining the services of the Board, it was

incumbent upon the Petitioner to exercise option either

to avail the CPF benefits or the Government scheme

within a year but he did not exercise any such option

within the stipulated period. Therefore, according to

Mr. Rao, he is deemed to have opted for the CPF

benefit.

7. In order to appreciate the rival contentions, it

would be proper to refer to the relevant provisions of

the Board of Secondary Education Regulations as

amended in 1997, which are quoted herein below;

<22.The period of qualifying service rendered by an employee under any of the following institutions shall count for the purpose of pension;

(a) Central Government

(b) State Government

(c) Any Indian University

(d) Any college affiliated to any University of the state and aided by the State Government.

(e) Any Educational Institution recognized by the Board and/or any Research Institutions aided by the State/Central Government and

(f) The previous service in any institution on the basis of which such persons have been appointed in the Board.=

8. Regulation 22(e) clearly shows that past service

in a recognized educational institution shall be

counted towards qualifying service for the purpose of

pension. There is no dispute that Solapata High School

was a recognized educational institution at the relevant

time. In the case of R.N.Padhi (supra), this Court

taking note of the provisions of the regulations referred

above has held that the past services should be

countable towards pension and pensionary benefits.

The Court held as follows;

"The argument of the learned counsel for the opposite parties is that there shall be a conjoint reading of Rule 2(r) of the OCS (Pension) Rules, 1992, which defines "qualifying service" and Rule 18 of OCS (Pension) Rules 1992, which speaks that service does not qualify for pension unless it is

rendered in a pensionable establishment post. The interpretation of learned counsel for the opposite parties that the aforesaid Rule 2(r) and Rule 18 read conjointly with Regulation 22 of the Board of Secondary Education Orissa (Amendment) Regulations, 1997 is not acceptable because I am of the opinion that the Regulations of the Board, which was subsequently amended in 1997 is clear and unambiguous. There is no need to take the help of OCS (Pension) Rules, 1992 for the interpretation of Board Regulation, 1997 so also there is no need for a conjoint reading of Board Regulation, 1997 and OCS Rules to interpret the former and to decide whether the petitioner is entitled to get the benefit of the amending Regulations and whether his service elsewhere would be counted for the purpose of pension.=

It is also stated that the bar that the said

decision was followed by several other judgments of

this Court and confirmed in Writ Appeal as also by the

Apex Court. This Court therefore, finds no reason to

differ from the ratio laid down in R.N.Padhi (supra).

9. It may also be stated in passing that the stand

taken by the Board with reference to Rule 44 of the

OCS Pension Rules is entirely fallacious for the reason

that having once allowed provisional pension to the

Petitioner way back in the year 2015, it cannot turn

around at this belated stage to take the view that the

Petitioner had not exercised option at the relevant

time. Thus, by granting provisional pension the Board

must be deemed to have waived the stipulation

contained in Rule 44 of the OCS Pension Rules.

10. Thus, from a conspectus of the analysis and the

discussion made herein before, this Court is of the firm