Writ petition challenging the Odisha Administrative Tribunal's order dismissing an application for full pension, where job contract service wasn't counted due to insufficient regular service under Rule 18 of OCS (Pension) Rules.
Writ application dismissed as the petitioner is not eligible for full pension based on relevant sections of pension rules.
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W.P.(C) No.30706 of 2011
PRESENT: SHRI S.K. MISHRA,J. AND MISS SAVITRI RATHO,J.
Alekhabihari Beura … Petitioner
vs.
State of Odisha and others … Opposite Parties For the petitioner … Mr. Bhubanananda Lenka For the opp. parties … Mr. Manoj Kumar Khuntia Addl. Government Advocate
This matter is taken up through Hybrid mode.
On the oral submission of the learned counsel for the petitioner, a correction is made in the cause title page of the writ petition.
Heard Mr. B. Lenka, learned counsel for the sole petitioner and Mr. Manoj Kumar Khuntia, learned Addl. Government Advocate.
In this writ application, the petitioner, being the applicant before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack assails the final order passed by the Tribunal on 28.10.2011 in O.A. No.2047(C) of 2008 dismissing his application for grant of full pension to him.
The petitioner was working as General Moharir in the administrative control of the opposite party-respondent nos. 3 and 4 in the job contract establishment and at a later stage brought into the regular establishment. He filed this application with a prayer to direct the respondents/opposite parties to consider his case for grant of full pension counting the period of service rendered by him under the job contract establishment towards
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qualifying service in the light of the equal retiral benefit extended to Dukhishyam Panigrahi and Bhagaban Pattanaik.
The facts of the case are not in dispute. The applicantpetitioner entered into service as General Moharir on 24.02.1966 under the administrative control of respondent nos. 3 and 4 in the job contract establishment. While continuing as such, he was brought into regular service vide order dated 30.04.1987. He retired from Government service on attaining the superannuation on 31.07.2004. As such, he has rendered 17 years of regular service under the administrative control of respondent nos. 3 and 4. Since the pension has been disbursed in his favour taking into consideration the period of regular service rendered by him after 30.04.1987, and the period of service rendered by him in the job contract establishment has not been counted for giving him full pension, the petitioner approached the Tribunal. However, the learned Tribunal took into consideration the rules governing the field and came to the conclusion that the service during job contract period rendered by him under opposite party nos. 3 and 4 is not eligible to be counted for the purpose of calculation of his pension.
The learned counsel for the petitioner submits that the order passed by the learned Tribunal is incorrect in view of the fact that his case has not been treated equally with that of Dukhishyam Panigrahi and Bhagaban Pattnaik to whom benefit was granted. The learned Addl. Government Advocate, on the other hand, relies upon the Rule 18 of the Orissa Civil Services (Pension) Rules, 1992, which reads as follows:
“ 18. Conditions subject to which service qualifies.-. (1) Service does not qualify for pension rules unless it is rendered in a pensionable establishment post.
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(2) The entire continuous temporary or officiating service under Government without interruption in the same post or any other post, shall count for the purpose of pension in respect of all categories of Government servants except in the following cases, namely:
(i) Period of service in an non-pensionable establishment; (ii) Period of service in the work-charged establishment;
(iii) Period of service paid from contingencies;
(iv) Where the employee concerned resigns and is not again appointed to service under Government or is removed/dismissed from public service;
(v) A probationer who is discharged from service for failure to pass the prescribed test or examination;
(vi) Re-employed pensioner Government servants engaged on contract and Government servants not in whole time employment of Government;
(vii) Service paid from Local Fund or Trust Fund;
(viii) Service in an office paid by fees whether levied by law or under authority of the Government or by Commission; and
(ix) Service paid out of the grant in accordance with Law or Custom.
(3) Notwithstanding anything contained in Clauses (i) and (ii) of Sub-rule (2) a person who is initially appointed by the Government in a work-charged establishment for a period of five years or more and is subsequently appointed to the same or another post in a temporary or substantive capacity in a pensionable establishment without interruption of duty, the period of service so rendered in work-charged establishment shall qualify for pension under this rule.
(4) Notwithstanding anything contained in Sub-rule (1)
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Government may, by general or special order; prescribe any class of service or post which were previously born under work-charged establishment or paid from contingencies to be pensionable.
(5) Notwithstanding anything contained in Sub-rules (1) and (2) in case of a Government servant belonging to Government of India or other State Government on his permanent transfer to the State Government the continuous service rendered by him under pensionable establishment of Government of India or any other State Government, as the case may be, shall count as qualifying service for pension.
[(6) Notwithstanding anything contained in Clauses (i) and (iii) of Sub-rule (2), a person who is initially appointed in a job contract establishment and is subsequently brought over to the post created under regular/pensionable establishment, so much of his job contract service period shall be added to the period of his qualifying service in regular establishment and would render him eligible for pension.]”.
Sub-Rule (3) of the aforesaid Rules, 1992 is of importance in this case. It lays down for inclusion of temporary or officiating service under Government without interruption for calculating the period of qualifying service for pension to make him qualify the pension.
Sub-Rule (6) which has been introduced by way of amendment in 2001 provides that for adding of portion of job contract period to the period of qualifying service in regular establishment so as to render him eligible for pension.
The position has been further clarified by the Finance Department vide memo no.17562 dtd. 02.04.2005 stating that total qualifying service of an employee under regular establishment is more than 10 years and who is already eligible for minimum pensionary benefits in accordance with the Sub-Rule 2(a) of Rule 47 of OCS (Pension) Rules, 1992, no job contract
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period of his service shall be added with his service under regular establishment in terms of sub-Rule 6 of Rule 18 of OCS (Pension) Rules, 1992. So far as a job contract employee is concerned, he is not eligible to get pension unless he is regularized. In case of regularization, if 10 years of service in the regular establishment is not completed by a job contract employee, he shall not be eligible for pensionary benefit.
Mr. B. Lenka, learned counsel for the sole petitioner submits that pension under the provision means full pension and not the minimum pension or the pension available to the petitioner on regularization of his services. We are unable to accept the contention of Mr. B. Lenka.
We do not find that the order passed by the learned Tribunal in any way suffers from any jurisdictional error or defect and hence not liable for interference.
Hence, there is no merit in the writ application and the same is, therefore, dismissed being devoid of merit.
As the restrictions due to the COVID-19 situation are continuing, the learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25th March, 2020.
pcd
……………………
S.K. Mishra,J.
……………………… Savitri Ratho,J.
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pcd
3 issues framed by the court
Whether the Tribunal was correct in holding that job contract service under the opposite party before regularization is not eligible for counting towards full pension.
Whether the petitioner is entitled to equal treatment as other officials granted full pension for job contract service when he has less than 10 years of regular service.
Whether the Tribunal's order dismissing the application for grant of full pension suffers from any jurisdictional error or defect.
1 provisions across 1 enactments
Alekhabihari Beura
State of Odisha
S.K. Mishra
Savitri Ratho
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
