Orissa High Court
Pratap Kumar Seth vs State Of Odisha & Others on 10 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.32290 of 2020
Pratap Kumar Seth .... Petitioner
Mr.H.B. Dash, Advocate
-versus-
State of Odisha & Others
.... Opposite Parties
Mr. H.M. Dhal, AGA
Mr. P.R. Patnaik, Adv. for F.M.
University
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
10.01.2024
Order No.
01. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. The present Writ Petition has been filed inter alia
challenging the communication issued by the
Government in the Department of Higher Education on
04.11.2020 under Annexure-14.
4. It is the case of the Petitioner that the Petitioner
while continuing as a Senior Assistant (Accountant) in
Orissa Handloom Development Corporation Ltd., he was
put under deputation to Fakir Mohan University, which is
a Government of Odisha undertaking on 04.04.1987.
Petitioner while continuing as such under the
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Corporation, he was put under deputation as Junior
Assistant w.e.f. 02.12.1999.
4.1. It is contended that while so continuing vide
Notification dtd.28.02.2009 under Annexure-2, Petitioner
was absorbed as against the post of Junior Assistant
w.e.f. 22.03.2002.
4.2. It is contended that after being absorbed in the
University, when the Petitioner was not brought under
the provisions of GPF Fund as well as pension Fund
Scheme, Petitioner approached the University for
counting their past service on 10.07.2020 under
Annexure-11, as the claim of the Petitioner was not
considered, Petitioner approached this Court in W.P.(C)
No.19109 of 2020. This Court vide order dtd. 17.08.2020
while disposing the writ petition directed the Opposite
Party No.3 to consider the Petitioner's claim as made in
Annexure-11 in the light of the decision passed by this
Court in the case of Ramesh Chandra Das vs. State of
Orissa & Others as well as the provisions contained
under the Statute-260 and 447 of the University statute.
4.3. It is contended that even though this Court directed
Opposite Party No.2 to consider the claim of the Petitioner
as made in Annexure-11, Opposite Party No.2 instead of
taking a decision on his own referred the matter to the
Government vide letter dtd.21.10.2020 under Annexure-
13. On being so referred, Opposite Party No.1 vide the
impugned communication dtd.04.11.2020 under
Annexure-14. Placing reliance on the provisions
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contained under Statute-260 of the Orissa University
First Statute, 1990 came to a conclusion that the
Petitioner along with two other similarly situated
employees deputed from the Corporation / Society and
subsequently absorbed in the University will not be
counted towards pension and gratuity in the University
services, if the Petitioner being aggrieved by such
communication is before this Court in the present writ
petition.
5. Mr. Das, learned counsel for the Petitioner
contended that as provided under the 2nd proviso to
Statute-260 of the University, Petitioner since while
continuing under the Corporation was governed under
the Provident Fund Scheme, after their absorption in the
University in terms of the notification issued under
Annexure-2 he is eligible and entitled to be covered under
the provisions of Pensions and Gratuity Scheme of the
University.
5.3. Statute-260 of the University of the 1st statute
speaks as follows:-
"260. The period of qualifying service rendered by an employee under
any of the following institutions shall count for the purpose of gratuity
and pension :-
(a) State Government
(b) Any Indian University
(c) Any College affiliated to any University of the State and aided by
the State Government (d) Board of Secondary Education Orissa
(e) Council of Higher Secondary Education, Orissa:
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(1) Any recognized institution of higher education and/or research
aided by the State/Central Government:
Provided that in case of an employee previously governed under the
Pension Scheme of the above institutions, the former employer or the
employee shall pay to the University the amount equivalent to pension
and gratuity payable for the period of service rendered under such
employer:
Provided further that in case of an employee previously governed by
the Contributory Provident Fund Scheme, the concerned former
employer or the employee shall pay to the University the subscription of
the employee along with the employer's contribution and interest
thereon up to the date of payment which shall be deposited in his
account as opening balance if tile employee opts to continue under the
Contributory Provident Fund Scheme. In case the employee opts to be
governed by the Pension Scheme, the employee's subscription along
with the interest thereon shall be deposited in his General Provident
Fund Account and the employer's contribution along with the interest
thereon shall be credited to the Pension Fund of the University:
Provided also that in case of an employee previously governed under
the General Provident Fund Scheme, the former employer shall pay to
the University the General Provident Fund accumulation of the
employee and interest thereon up to the date of payment which shall be
deposited in his account as opening balance;
Provided further that if an employee has already received Provident
Fund accumulations and retirement benefits such as Pension/Gratuity
for his past services under any of the aforesaid institutions, he may, at
his request, be allowed to count such past service when followed by
service qualifying for pension under these Statutes as a part of such
service, provided he deposits with the University such amounts
representing the provident Fund Gratuity and/or Pension, as the case
may be, in suitable installments as may be allowed by the University".
5.4. It is also contended that similarly situated employee
who were absorbed in the University and were working
under Orissa State Commercial Transport Corporation
was extended with the benefit as his claim by the present
Petitioner by the University, pursuant to the order passed
by this Court in W.P.(C) No.20288 of 2012, Ramesh
Chandra Das vs. State of Orissa & Others.
// 5 //
5.5. Learned counsel for the Petitioner also relied on
another order passed by this Court in the case of State
of Orissa & Others vs. Chanda Charan Mohapatra
reported in 2006 (2) OLR-595. In the said judgment,
this Court upheld the order passed by the Tribunal,
wherein the Tribunal has directed the Petitioner therein
i.e, Chanda Charan Mohapatra to get the benefit of
pension and gratuity though he was absorbed in the
University service while continuing as an employee in the
Orissa State Commercial Transport Corporation.
4.6. Learned counsel for the Petitioner contended that
since similar situated employees continuing in Orissa
State Commercial Transport Corporation who were
absorbed subsequently in the university were extended
with the benefit of pension and gratuity, the ground on
which the clarification has been issued under
Annexure-14 by the Government is not sustainable in the
eye of law and it requires interference of this Court.
5. Mr. H.M. Dhal, learned Addl. Government Advocate
for the State placing reliance on the statute provisions
contended under Statute-260 contended that since the
Petitioner is not employee of the Institution, more fully
described in Statute-260 they cannot get the benefit of
the said provision and the 2nd proviso which is mandatory
of the Petitioner is not applicable to the claim of the
Petitioner.
5.1. It is accordingly contended that in view of the
specific provision contained under Statute 260,
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Government-Opposite Party No.1 issued the clarification
under Annexure-14 and it requires no interference.
6. Mr. Patnaik, learned counsel for the University on
the other hand made his submission basing on the stand
taken in the counter affidavit. It is contended that basing
on the instruction issued by the Government in the
Finance Department on 04.10.2007 vide Annexure-E to
the counter, the first service of the employee who was
working in Orissa State Commercial Transport
Corporation were extended with the benefit of pension
and gratuity. Placing reliance on the said circular
dtd.04.10.2007, this Court while allowed the claim of
Ramesh Chandra Das, the University extended benefit
in favour of the said Petitioner.
6.1. Mr. Pattnaik contended that in view of the clear
provisions contained under Statute-260, Petitioner is not
entitled to get the benefit as claimed.
7. Having heard learned counsel for the Parties and
after going through the materials available on record, this
Court finds that Petitioner while continuing as a Senior
Assistant in Orissa State Handloom Development
Corporation, he was sent on deputation on 02.12.1999.
While so continuing, he was absorbed as a Junior
Assistant w.e.f. 22.03.2002 vide Notification
dtd.28.02.2009 under Annexure-2. After being absorbed
by the regular employee of the University, Petitioner's
there is their claim to get the benefit of pension and
gratuity by making the application under Annexure-11.
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This Court in its order dtd.17.08.2020 under
Annexure-12, though directed Opposite Party No.2 to take
a decision on the claim of the Petitioner in terms of the
provisions contained under the Statute-260 and the
decision in the case of Ramesh Chandra Das, but the
matter was referred to the Government. On being
referred, the Government, Opposite Party No.1 placing
reliance on the provisions contained under the statute
260 held that the Petitioner is not entitled to get the
benefit of pension and gratuity. This Court after going
through the materials placed in the writ petition is of the
view that since similarly situated employees working
under Orissa State Commercial Transport Corporation
but the benefit of pension and gratuity in terms of the
decision passed by this Court in the case of Ramesh
Chandra Das as well as the decision of the Tribunal
passed in the case of Chanda Charan Mohapatra so
upheld by this Court in the reported decision in 2006(II)
OLR-595. This Court directs Opposite Party No.1 to take
a fresh decision on the claim of the Petitioner taking into
consideration of the aforesaid two decisions.
8. Therefore, this Court while disposing the writ
petition directs Opposite Party No.1 to take a fresh
decision without being guided by the ground on which the
claim of the Petitioner was earlier rejected vide
Annexure-14. Such a fresh decision be taken within a
period of three (3) months from the date of receipt of this
order.
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9. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
