Allowed

Sibapati Acharya v. Santoshi Panigrahi

Orissa HC11 Mar 2019WP(C)/415/2019

Case brief

AI extract

What is this about?

The High Court of Orissa quashed an order rejecting a petitioner's claim for RACP benefits, finding no evidence she forgo her promotion merely by requesting an extension to join due to illness. The matter was remanded with directions to extend benefits on a notional basis.

What did the court decide?

The order rejecting the claim was quashed. The matter was remanded to the respondent to consider the claim for RACP benefits within three months, with a direction to extend benefits on a notional basi

Sibapati Acharya Vs Santoshi Panigrahi — Pension and Retirement Benefits | Orissa HC (2019)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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WPC (OA) No.415 of 2019

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Smt. Kalyani Mahapatra

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Petitioner

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. Mr. U.C. Mohapatra, Adv.

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-versus-

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. State of Odisha & Others

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Opp. Parties Mr. H.M. Dhal, AGA

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

Order

ORDER

04.03.2024

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

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2. Heard learned counsel for the parties.

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3. Petitioner has filed the present Writ Petition inter alia challenging the rejection of her claim to get the benefit of RACP by Opp. Party No.3 vide order dt.28.05.2018 under Annexure-12.

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4. The claim of the Petitioner to get the benefit of RACP has been rejected only on the ground that since Petitioner had earlier forgone her promotion, she is not entitled to get the benefit.

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4.1 . It is contended that Petitioner while continuing in the cadre of Jr. SES, she was promoted to the post of Sr. SES vide order dt.22.04.2006 so issued by Opp. Party No.2 under Annexure-3. Since during the relevant time, Petitioner was suffering from serious illness, she made an application before Opp. Party No.3 on 29.04.2006 vide Annexure-R/1, praying inter alia to allow some further time to join in her promotional post in terms of the order passed by Opp. Party No.2 on 22.04.2006 under Annexure-3.

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4.2. It is contended that in her application dt . 22.04.2006 vide Annexure-R/1, Petitioner had never indicated the word <Forgo= showing that she has forgone the promotion. Instead in the said application, petitioner prayed for to extend the date of joining, so that she can join in her promotional post. It was also contended that such a prayer is also entertainable in view of the provisions contained under Rule 29 of the Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993. Rule 29 of the said Rules reads as under.

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“29. Failure to join the post on promotion - If any member of the Lower Subordinate Education Service or the Junior grade of the service who on being promoted to a higher post in accordance with the provisions of these rules fails, within such time as may be allowed in the benefit without any good and sufficient reasons, to join the new post he shall be liable to be debarred from any such promotion in future.=

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4.3. It is contended that since the Petitioner at no point of time forgo her promotion while making the application on 29.04.2006 under Annexure-R/1, but by holding that the Petitioner had forgone the same, Opp. Party No.2 in his letter dt.09.05.2006 under Annexure-4 allowed the Petitioner to continue in the cadre of Jr. SES.

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4.4. Learned counsel appearing for the Petitioner contended that while the matter stood thus, Petitioner became entitled to get the benefit of RACP in terms of the resolution issued by the Finance Deptt on 06 . 02.2013 under Annexure-6. When the same was not extended in her favour Petitioner made several applications before Opp. Party No.2 & 3 vide Annexures-10 & 11. But Opp. Party No.3 on the ground that Petitioner had forgone her promotion held the Petitioner not entitled to get the benefit of RACP and rejected the claim vide the impugned order dt.28.05.2018 under Annexure-10.

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4.5. It is contended that since at no point of time petitioner had forgone the promotion and the same was wrongly taken by Opp. Party No.2 while issuing the letter under Annexure4, Petitioner cannot be deprived of the benefit of RACP which she is otherwise entitled to get. Mr. Mohanty, accordingly contended that the impugned order be set aside with passing of an appropriate order on the claim of the petitioner, as made.

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5. Mr.H.M. Dhal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit.

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5.1. It is contended that petitioner was duly promoted vide order dt.22.04.2006 under Annexure-3 and she did not join in the promotional post by forgoing the same. Considering the same, she was allowed to continue in Jr. SES cadre and Opp. Party No2 passed an order to that effect on 09.05.2006 under Annexure-4. In the said order, it was clearly indicated that since Petitioner has forgone the benefit of promotion, she was allowed to continue in the rank of Jr. SES. Learned Addl. Govt. Advocate contended that the order at Annexure-4 was never assailed by the Petitioner. Not only that while making applications to get the benefit of RACP under Annexure-10 as well as under Annexure-A/3 series, petitioner clearly indicated that she has forgone the promotion. It is accordingly contended that since petitioner accept that she has forgone the promotion, claim of the Petitioner to get the benefit of RACP has been rightly rejected by Opp. Party No.3 vide order under Annexure-12 and it requires no interference.

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6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that Petitioner while continuing in the rank of Jr. SES, she was promoted to the rank of Sr. SES vide office

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order dt.22.04.2006 under Annexure-3. Petitioner because of her illness at the relevant point of time made an application before Opp. Party No.3 on 29.04.2006 with a prayer to allow her some further time to join in her promotional post. In the said letter enclosed vide AnnexureR/1 to the rejoinder, Petitioner never used the word <Forgo= and she instead prayed for extension of time to join. As found from Rule 29 of 1993 Rules, such a prayer is also entertainable. But as found, Opp. Party No.2 by taking the plea taken by the Petitioner as a case of <Forgoing of promotion= passed office order dtd. 09.05.2006 under Annexure-4.

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6.1. The claim of the petitioner as found has also been rejected vide order dt.28.05.2018 under Annexure-12 on the plea that since petitioner has forgone the promotion, she is not entitled to get the benefit of RACP. Since in the application submitted by the Petitioner under AnnexureR/1, Petitioner never forgo the Promotion and instead prayed for extension of time to join in the promotional post, the ground taken by Opp. Party No.2 in its order under Annexure-4 which is the basis of rejecting the claim vide order under Annexure-12, as per the considered view of this Court is not sustainable in the eye of law.

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6.2. Therefore, this Court is inclined to quash office order dt. 28.05.2018 so passed by Opp. Party No.3 under Annexure-12. While quashing the same, this Court remits the matter to Opp. Party No.3 to consider the claim of the Petitioner to get the benefit of RACP in terms of the resolution dt.06.02.2013 under Annexure-6 within a period of three(3) months from the date of receipt of this order.

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On such consideration, if it is found that Petitioner is otherwise eligible, the benefit be extended in her favour. But since the petitioner has retired from service w.e.f

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30.09.2016, such benefit be extended on notional basis only. Petitioner will only be entitled to get the benefit of revision of pension and other pensionary benefits as due and admissible.

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The Writ Petition is accordingly disposed of.

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(Biraja Prasanna Satapathy) Judge

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sangita

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Signature Not Verified

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Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cut tack Date: 11-Mar-2024 11:46:18

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