Orissa High Court
Shri Bipin Bihari Jena vs Principal Of Indira Gandhi Institute ... on 30 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 27116 of 2011
An application under Articles 226 and 227 of the Constitution of
India.
--------------
Shri Bipin Bihari Jena ...... Petitioner
-Versus-
Principal of Indira Gandhi Institute Opp. Parties
of Technology, Sarang and Others
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. S.K. Dey &
N. Pattanaik, Advocates
For Opp. Parties : Mr. S. Behera,
[Addl. Government Advocate]
M/s. D.K. Mohanty &
A.K. Das, Advocates
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
30.01.2025
SASHIKANTA MISHRA, J.
The petitioner was working as office Peon in ITI,
Rourkela. He was transferred to ITI, Talcher being
appointed as Dresser with effect from 01.10.1966. He was
transferred to ITI, Balasore and thereafter to Modern
Polytechnic, Talcher. While working as such he was
allowed to draw his pay against the vacant post of
Compounder.
2. The Government of Odisha in the Industries
Department notification dated 24.09.1987 decided to
transfer the ownership and the management of Modern
Polytechnic to the control of Indira Gandhi Institute of
Technology (IGIT), Sarang, Talcher for better management
of the institution. As per the said notification, the officers
and staff working in the Polytechnic were deemed to be on
deputation to IGIT with permissibility of being
permanently absorbed in IGIT.
3. Accordingly, by order dated 03.11.1987, the Principal
of Modern Polytechnic placed the services of the petitioner
under the disposal of the Principal, IGIT with effect from
01.11.1987. The Director of Technical Education and
Training (DTET), vide order dated 27.05.1988 notified that
consequent upon such transfer of the Management, the
services of the staff were placed at the disposal of the
Principal, IGIT on the terms and conditions of deputation
in accordance with Rule- 212 (b) read with Item-9 of
Appendix-1 of Odisha Service Code till final absorption in
IGIT. Again by order dated 03.04.1989, the DTET notified
that the Class-IV staff, who were deputed to IGIT, Sarang
for the period from 01.04.1987 to 31.03.1989 were
relieved from Government Service with effect from
15.03.1989 for their permanent absorption under IGIT as
per option exercised by them. The petitioner was one of
such employees.
4. By order dated 28.07.1989, the services of the
petitioner and others were finally absorbed in IGIT with
effect from 16.03.1989 in the scale of pay of Rs.625-12-
709-8B-12-745-15-790-EB-15-940 in addition to DA as
sanctioned by the Board of Governors from time to time.
Said employees were to be governed by the By-laws of the
IGIT relating to the service conditions of the employees.
5. With regard to pension, the By-laws provided that
an employee who opts for pension scheme shall be
entitled to the pensionary benefits including family
pension and the gratuity including death-cum-retirement
gratuity as applicable from time to time to the State
Government employees. The petitioner retired on
superannuation on 31.08.2001. Thus, the period of
service of the petitioner under the Government was from
10.10.1961 to 15.03.1989 and under the IGIT, from
16.03.1989 to 31.08.2001.
6. In the meantime, pursuant to order dated
09.05.2003 passed in OJC No. 10000 of 1998, the
petitioner was held entitled to the salary of a Dresser in
the scale of pay of Rs. 950 to Rs.1500/- as admissible to
a Dresser working in R.E.C College and all other service
benefits. Since the order was not complied with, the
petitioner filed CONTC No. 685 of 2003 during pendency
of which provisional pension @ Rs.1275/- for the period of
services under the Government was sanctioned by the
DTET vide letter dated 10.10.2003. Subsequently, by
letter dated 25.08.2005, the Principal IGIT sanctioned
further provisional pension @Rs.563/- in favour of the
petitioner for the period of services rendered with IGIT.
According to the petitioner, grant of pension @Rs.563/-
per month by IGIT is wrong as the same ought to have
been at the rate of minimum pension, i.e., Rs.1275/- in
view of the Government Resolution dated 15.07.1998.
According to the petitioner, the employees retiring on or
after 1996 are entitled to pension calculated at 50 percent
of the last emoluments drawn subject to minimum of
Rs.1275/- per month. The above fact was brought to the
notice of this Court in the aforementioned contempt
proceeding, which was disposed of granting liberty to the
petitioner to agitate the same before the appropriate
forum. The petitioner submitted representation to the
authority but as the same did not evoke any response, he
has approached this Court in the present writ petition
seeking the following relief:-
"In the premises stated above it is
responsibility prayed that the this Hon'ble
Court may be graciously pleased to issue a
Rule NISI calling upon the Opp. Parties to show
cause as to why a writ in the nature of
mandamus or any other appropriate writ/writs
shall not be issued directing the Opp. parties
to accord minimum [email protected]/-per
month to the petitioner for the period of services
of the petitioner with the opposite party No.1
with effect from the date of the superannuation
and as to why the opp. parties shall not be
directed to pay interest @18% per annum on
accordance with the letter of the Govt. in Letter
No. Pen(Adv)35/99, 2092(210) PG & P.A.
Bhubaneswar dt. 31.12.99 for the
unauthorized detention of the retirement
benefits payable to the petitioner from the date
it becomes due till it is paid and if the opp.
parties falls to show cause or show insufficient
cause the rule be made absolute.
Cost be granted.
And for this act of kindness the petitioner
shall as in duty bound every pray."
The stand of IGIT as reflected in the counter and
additional counter filed by it is that on the basis of option
exercised by the petitioner, he was relieved from
Government service and permanently absorbed in IGIT
with effect from 16.03.1989. The petitioner's pension was
sanctioned on 25.08.2005 but same was not released due
to non-receipt of No Due Certificate (NDC) and non-
vacation of quarter occupied by him and also due to
pendency of the contempt proceeding. It is only after the
petitioner vacated the quarter on 23.12.2008, his
entitlements were worked out and the benefits were
released on 31.03.2009. As regards the claim of the
petitioner for grant of minimum pension @ Rs.1275/- per
month, it is stated that IGIT is following the Odisha Civil
Services (Pension) Rules, 1992, Rule-9 of which provides
that no Government servant shall earn two pensions in
the same service or post at the same time. As such, the
petitioner is not entitled to get two minimum pensions. He
has been extended with minimum pension by the
Government for the period of service under the
Government and proportionate pension by the IGIT for the
period of service under IGIT. Accordingly, proportionate
pension of Rs.563/- has been sanctioned. Further, as per
the service record and last pay of the petitioner, the
pensionable amount comes to Rs.1,838/- per month of
which Rs.1,275/- is being paid by the Government and
the balance amount of Rs.563/- was sanctioned by IGIT.
7. Heard Mr. S.K. Dey, learned counsel for the
petitioner, Mr. S. Behera, learned Addl. Government
Advocate for the State and Mr. D.K. Mohanty, learned
counsel appearing for the IGIT.
8. Mr. S.K. Dey would argue that as per Resolution of
the Government in Finance Department dated 15.07.1998
the minimum pension to a Government servant retiring
after 01.01.1996 shall be Rs.1275/- per month. In the
instant case, the Government sanctioned minimum
pension of Rs.1275/- in favour of the petitioner for the
period of service rendered under DTET. Since the OCS
(Pension) Rules are applicable to the petitioner, the IGIT
also ought to have sanctioned minimum pension of
Rs.1275/- per month instead of Rs.583/-. According to
Mr. Dey, sanction of such less amount is contrary to the
provision of the notification dated 24.09.1987.
9. Mr. Behera, learned State Counsel submits that
the Government, adhering to the Resolution dated
15.07.1998 has sanctioned minimum pension of
Rs.1275/- for the period of service rendered by the
petitioner under the Government. As regards the period of
service rendered under IGIT, it is the latter which is to
take a decision and the Government has no say in the
matter.
10. Mr. Mohanty, learned counsel appearing for IGIT
would argue that if the petitioner's claim is to be accepted
it would amount to granting him two pensions, which is
not permissible as per Rule-9 of the OCS, (Pension) Rule.
Moreover, his pensionary entitlement was calculated at
Rs.1838/- per month, which is more than the minimum
amount of Rs.1275/-. As per the notification dated
24.09.1987, Government is to pay the pension due to the
petitioner for the period of service rendered under
Government and the balance amount is to be
proportionately paid by IGIT.
11. The facts of the case are not disputed. Reference
to the notification dated 24.09.1987 by which the
employees of Modern Polytechnic including the petitioner
were deputed to IGIT provided that all such employees
shall exercise their option within a period of one year from
01.04.1987 either to be finally absorbed as employees of
IGIT or to be reverted to Government. It is not disputed
that the petitioner opted to be absorbed in IGIT and
accordingly, appropriate order was issued. Thus, that on
and from 16.03.1989, the petitioner became a full-fledged
employee of IGIT. As regards pension, Clause -9 of
notification dated 24.09.1987 is relevant and is quoted
below:-
"(9) One of the following alternative
retirement benefits as may be opted for by the
temporary and permanent employees
excluding, those mentioned under para 2 and
by way of final absorption in the Society or on
termination of their services from the State
Government as the may be shall be admissible
to them, provided that the benefits shall not be
admissible to those employees whose service
have been terminate as a measure of
punishment in disciplinary proceedings.
a)(i) Employees will be given option to take
pension proportionate to the length of
pensionable service as per existing rules,
rendered by them under Government up to the
date of their ceasing to be in the Government
on account of abolition of their posts under the
Government. In respect of such employees, the
pension will be payable with effect from the
date of their ceasing to be in the service of the
society when they will be eligible to draw such
pension from Government.
(ii) In the case of those drawing pension under
sub-clause (1) above, the benefits of the Orissa
Civil Services Family pension Rules, 1954 as
amended from time to time will be admissible
to their family members.
(iii) Death-cum-retirement Gratuity in respect of
services rendered under the State Government
will also be admissible to the employees
exercising option under this clause, on
termination of their service under Government
due to abolition of posts, but such gratuity
shall be payable only on their ceasing to be in
employ under the society. Those who have
completed less than 10 years of pensionable
service on the date of termination of their
service under Government or on their
absorption in the Society will be given Death-
cum-retirement gratuity and/or service gratuity
as admissible under the rules of the State
Government and those are payable to them in
the manner applicable to those having more
than 10 years of pensionable service as
mentioned above.
xxx xxx xxx"
12. A plain reading of the afore quoted clause makes
it abundantly clear that employees finally absorbed as
per their option are entitled to the retirement benefits
including pension as admissible under the rules of the
State Government. It is also provided that the Government
will grant pension for the period of service rendered by
such employee under DTET but the remaining amount
shall obviously be paid by the IGIT. The same was
indicated in the office order dated 21.06.2004 issued by
the DTET with direction to IGIT to take decision regarding
retirement benefits of the petitioner for the subsequent
period in accordance with the guidelines. A sum of
Rs.1275/- per month was thus sanctioned as provisional
pension by the Government for the period from
10.10.1961 to 15.03.1989. The petitioner's pensionable
amount was calculated by IGIT as being Rs.1838/- per
month. According to the petitioner, the same should have
been calculated by granting minimum pension of
Rs.1275/- also for the period of service under IGIT that is,
16.03.1989 to 31.08.2001. How far such claim is legally
tenable is to be examined now.
13. The amount of pension is to be determined as per
Rule 47 of the OCS (Pension) Rules, 1992, which as it
stood in the year, 2001 reads as follows:-
"47. Amount of Pension- The amount of pension that
may be granted shall be determined by the length of
completed six monthly periods of service rendered by the
retired Government servant.
(2) (a) In the case of a Government servant retiring in
accordance with the provisions of these rules after
completing qualifying service of not less than thirty-three
years, the amount of pension shall be calculated at 50
percent of the emoluments last drawn preceding to
retirement.
(b) In the case of a Government servant retiring in
accordance with the provisions of these rules before
completing qualifying service of thirty-three years, but
after completing qualifying service of ten years, the
amount of pension shall be proportionate to the amount of
pension admissible under Clause (1) and in no case
amount of pension shall be less than [rupees one thousand
two hundred seventy-five].
(c) Notwithstanding anything contained in Clause (a)
and Clause (b) the amount of invalid pension shall be less
than the amount of family pension admissible under
Clause-(c) of Sub-rule (2) of Rule 56.
(3) In calculating the length of qualifying service, a
fraction of a year equal to three months and above but less
than six month shall be treated as a completed one-half
year and the period of six months and above shall be
reckoned as two-half years.
(4) (a) The amount of pension finally determined under
Clause (a) or Clause (b) of Sub-rule (2) shall be expressed
in whole rupees and where pension contains a fraction of
a rupee, it shall be rounded off to the next higher rupee.
(b) Where the pension paid for a part of the month due
to the death of the pensioner or pension paid for a part of
the month to the Government servant for any reason if
worked out in fraction of a rupee, the said pension may be
rounded off to the next higher rupees.
(5) (i) In the case of a Government servant retiring in
accordance with the provisions of these rules before
completing qualifying service of ten years, the amount of
service gratuity shall be paid at a uniform rate of half
month's emoluments for every completed six monthly
period of service.
(ii) The amount of service gratuity as finally calculated
shall be rounded off to the next higher rupee."
14. Plainly understood, for a Government servant
retiring after completing the qualifying service of not less
than 33 years, the amount of pension is to be calculated
at 50 percent of the emoluments last drawn preceding to
retirement. This is an important aspect to be considered
for determination of the petitioner's pensionary
entitlement. After considering the rival contentions, it
would appear that the petitioner is harboring a
misconception that he ought to be paid Rs.1275/- per
month as pension, even for the period of service rendered
under IGIT. As already stated the amount of pension is
always to be calculated on the basis of his last
emoluments drawn. Reference by the petitioner to the
Government Resolution dated 15.07.1998 also appears to
be quite misconceived inasmuch as the same only
provides that the minimum pension in respect of those
who have retired on or after 01.01.1996 shall be revised
subject to minimum of Rs.1275/- per month. Reference
has also been made in said Resolution Rule-47(2)(b), is
the meaning of 'emoluments' has also been delineated
under paragraph -5 of the Resolution. In the instant case,
the Government sanctioned Rs.1275/- as provisional
pension obviously in terms of the Resolution dated
15.07.1998 pending sanction of final pension. It was
therefore, the task of IGIT, to calculate the final pension
by following the provision under Rule-47 of the OCS
(Pension) Rule. The total amount thus worked out cannot
be less than Rs.1275/- per month. This is the purport of
the Resolution dated 15.07.1998. If the contention
advanced by the petitioner is to be accepted, it would
amount to segregating the total length of service rendered
by the petitioner into two segments, one under the
Government and second under the IGIT. The pensionary
entitlement cannot be segregated and calculated
differently. In so far as the element of proportional
amount of the pension by the Government and IGIT is
concerned, the same is for the purpose of determining the
source from which the total pensionary amount is to be
paid. In other words, in view of the notification dated
24.09.1987, the total pension payable to an employee like
the petitioner is to be shared proportionately by the
Government and IGIT. It cannot and does not mean that
the petitioner would be entitled to two different pensions,
which in any case is not permissible as per Rule-9 of the
OCS (Pension) Rules. Who pays what amount is an
internal matter over which the petitioner cannot have any
say. The arguments advanced on such score are therefore,
not tenable.
15. For the foregoing reason therefore, this Court is
unable to accept the contentions advanced by the
petitioner and holds that he shall be entitled to pension
calculated as per the relevant provision of the OCS
(Pension) Rules read with Clause-9 of the notification
dated 24.09.1987 and Resolution dated 15.07.1998.The
relief claimed by the petitioner cannot therefore, be
granted.
16. However, the writ petition is disposed of directing
the authorities of IGIT as well as Government to calculate
the final pensionary dues, strictly in consonance with the
provisions of OCS (Pension) Rules and other relevant
Government resolutions read with the notification dated
24.09.1987 as early as possible, preferably within two
months.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 30th January , 2025/ B.C. Tudu
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa High Court, Cuttack
Date: 30-Jan-2025 19:04:32
