Anuradha Choudhury vs State Of Odisha And
2023 Latest Caselaw 6273 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                        W.P.(C) No.13270 of 2023
        Anuradha Choudhury                   ....                    Petitioner
                                                     Mr. L. Mohanty, Advocate

                                          -versus-
        State of Odisha and
        Others                               ....              Opposite Parties
                                                       Mr. H.K. Panigrahi, ASC


                           CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                            ORDER

17.05.2023 Order No.

02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. L. Mohanty, learned counsel for the Petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State.

3. Petitioner has filed the present Writ Petition inter alia with the following prayer:-

<It is, therefore, prayed that this Hon'ble Court may graciously be pleased to issue notice to the opp. parties calling upon them to file show cause as to why a direction shall not be issued to release pension and pensionary benefits in favour of the petitioner with effect from 1.3.2023 by counting her period of service from 29.9.1986 to 28.02.2023 as per the judgment of this Hon'ble Court in the case of Rabindra Kumar Patel Versus State of Orissa and others reported in 2023 (1) OLR 502. And after hearing the parties be pleased to direct the opp. parties to release pension and pensionary benefit of the petitioner by counting her period of service from 29.9.1986 to 28.02.2023. The opp. parties be directed to release all the pensionary dues; within a date to be fixed by this Hon'ble Court.

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And further direction be issued to the opp. parties to calculate the arrears and release the same in favour of the petitioner.

And pass such other order/orders granting complete relief to the petitioner.=

4. Learned counsel for the Petitioner contended that the petitioner entered into service as an Assistant Teacher, where she joined on 29.09.1986. It is contended that because of her family problem and on completion of 20 years of regular service, the petitioner made an application on 17.09.2013 under Annexure-3 expressing her intention to take Voluntary Retirement from Service in terms of the provisions contained under Rule-42 of the OCS Pension Rules, 1992. Even though, the said application was duly submitted before the Block Education Officer, Turikela-O.P. No.4 under Annexure-3, but when no action was taken and nothing was communicated, the petitioner moved a further application before the self-same O.P. No.4 on 17.02.2014 indicating therein that in view of the provisions contained under Rule-42 the date of voluntary retirement of the petitioner will commence from 11.12.2013. Inspite of such communication and the communication made by the Government under Annexure-5 dated 30.10.2014, no further action was taken in terms of the provisions contained under Rule-42. The petitioner accordingly remained under the bonafide impression that the application submitted under Annexure-3 has been duly accepted. However, no communication was ever made to the petitioner and in the meantime the petitioner also attained the age of superannuation on 28.02.2023. Inspite

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of attaining the age of superannuation when the pensionary benefits of the petitioner was also not released, the petitioner is before this Court in the present Writ Petition.

5. Taking into account the peculiar facts and circumstances of the case, this Court vide order dated 04.05.2023 directed the learned State Counsel to obtain instruction in the matter, Mr. Panigrahi, learned Addl. Standing Counsel produced before this Court the letter issued by the Block Education Officer, Turikela-Opposite Party No.4 on 15.05.2023. From the said instruction, it is found that since the petitioner by the time she submitted the application for Voluntary Retirement, she had not completed the required 20 years of qualifying service, her application was not considered nor accepted. It is also contended that after making the application to take Voluntary Retirement from Service under Annexure-3 in absence of its acceptance, since the petitioner never joined in her duty and period from the date of submission of the application till the petitioner attained the age of superannuation was never regularized. However, it is fairly admitted by the Opposite Party No.4 that for such absence of the petitioner, after submission of her application under Annexure-3, no proceeding was initiated nor any action was taken till the petitioner attained the age of superannuation on 28.02.2023. It is also contended that the order passed by this Court 02.01.2020 for consideration of the claim of the petitioner to get the benefit of pension and other pensionary benefits has been rejected vide office order dated 19.07.2021.

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6. Heard learned counsel for the parties. Perused the materials available on record as well as the instruction provided by Opposite Party No.4 vide letter dated 15.05.2023. From the record, it is found that the petitioner entered into service on 29.09.1986 and by that time she submitted her application for voluntary retirement on 17.09.2013 under Annexure-3. She had already completed 20 years of qualifying service. Therefore, the plea taken by the Opposite Party No.4 that by the time the petitioner made the application to take Voluntary Retirement, she had not completed the required 20 years of qualifying service and accordingly the application was not considered is not acceptable.

7. In view of the fact that the petitioner made her application to take Voluntary Retirement on 17.09.2013 under Annexure-3 and taking into account the communication made by the Petitioner on 17.02.2014 under Annexure-4 and the letter issued by the Government on 30.10.2014 under Annexure-5, it is to be held that the application of the petitioner to take Voluntary Retirement has been accepted under the deeming provision contained under the proviso to Rule-42 of OCS (Pension) Rules, 1992. Rule 42 of the OCS (Pension) Rules, 1992 is reproduced hereunder:-

<42.Voluntary Retirement on completion of 20 years Qualifying Service-

(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

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(2) The notice of voluntary retirement given under sub- rule (1) shall require acceptance by the appointing authority.

NOTE-Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case or (b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained:

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period.

(3) (a) A Government servant desirous of retiring under sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reason therefor.

(b) On receipt of a request under clause (a), the appointing authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

(4) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.

Explanation-For the purpose of the rule the expression <appointing authority= shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement.

(5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total qualifying service rendered by the

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Government servant does not any case exceed twenty five years and it does not take him beyond the date of superannuation with effect from 01.12.2008. (Vide Finance Department Notification No.24142/F., dtd.04.09.2015) (6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity."

8. In view of such position, this Court is of the opinion that the Voluntary Retirement application submitted by the petitioner on 17.09.2013 is deemed to have been accepted on completion of 3 (three) months from the date of such submission i.e. 17.12.2013. By taking the date 17.12.2013 as the date of Voluntary Retirement of the petitioner, Opposite Party No.4 is directed to extend the benefit of pension and other pensionary benefits in terms of the provisions contained under Rule 42 of the OCS Pension Rules in favour of the petitioner. The entire exercise is to be undertaken and completed within a period of 3 (three) months from the date of receipt of this order.

9. Instruction provided by learned Addl. Standing Counsel, be kept in record.

10. The Writ Petition is disposed of.

(Biraja Prasanna Satapathy) Judge

Basudev

Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: Jr. Stenographer Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 18-May-2023 19:06:59