State Vs Biraja Ku.Das

Heard Mr. R.N. Mishra, learned Addl. Government Advocate appearing for the State-petitioners and Mr. P.R. Pattnaik, learned counsel appearing for the opposite party.

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The State and its functionaries have filed this writ petition challenging the order dated 12.12.2013 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No.934 of 2013 under Annexure-1, by which the tribunal allowed the original application filed by the opposite party and directed the petitioners to count the service of the opposite party as Secretary, Orissa State Board of Homoeopathic Medicine, Bhubaneswar as pensionable service as a Govt. employee along with the service rendered by him as Planning Officer and sanction and disburse the pensionary benefits such as regular pension, un-utilized leave salary, gratuity, commuted value of pension along with arrear pension to the opposite party, as due and admissible to him within a period of two months. The tribunal further directed the petitioners to grant interest @7% per annum on the amount of gratuity from 01.02.2006 till the date of actual payment under Rule-49(5)(a) of the O.C.S. (Pension) Rules 1992 and that the opposite party is also entitled to interest @10% per annum on the un-utilized leave salary,

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commuted value of pension along with arrear pension from the date of those amounts fall due till the date of actual payment and in case the entire exercise is not completed within a period two months, the opposite party shall be entitled for penal interest @12.5% per annum and differential amount of interest payable to the opposite party shall be recovered from the erring officials for whose negligence such delay occurred.

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Mr. R.N. Mishra, learned Addl. Government Advocate appearing for the State-petitioners vehemently contended that the opposite party has not exercised the option for GPF within one year as per the period prescribed under the statute. Therefore, the opposite party was not brought under the scheme of GPF entitling him to get the benefit. But the tribunal has failed to take into consideration this aspect and passed the order impugned, which cannot be sustained in the eye of law.

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Mr. P.R. Pattnaik, learned counsel appearing for the opposite party vehemently contended that since the opposite party is an employee under the State authority and he being a civil servant and appointed prior to 01.01.2005, the new pension scheme, i.e., CPF is not applicable to him and, as such, he is entitled to the benefits of pension in accordance with law. It is contended that during course of service the opposite party was called upon to covert to CPF. But when the opposite party is a civil servant and appointed prior to the cut-off date, i.e., 01.01.2005, he is entitled to get the pension and pensionary benefits irrespective of the fact that he has opted for CPF.

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Having heard learned counsel for the parties and after going through the records, this Court finds that pursuant to letter dated 24.12.1971 of the erstwhile Health and Family Planning Department, the opposite party was initially appointed as Secretary, Orissa State Board of Homoeopathic Medicine, Bhubaneswar in the scale of pay of Rs.260-15-320-20-420-EB30-540/- with usual D.A. admissible as per Rules. On 28.12.1971, the opposite party, who was working as Auditor in the Central Government, submitted his terms and conditions for his appointment to the petitioner no.1.

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On 18.01.1972, a communication was sent to the opposite party by petitioner no.1 referring to letter dated 28.12.1971 requesting him to take over the charge of the office of the Secretary in the State Homoeopathic Board, Bhubaneswar. Accordingly, the opposite party took over the charge of the post of Secretary in the State Homoeopathic Board, Bhubaneswar on 24.01.1972. On 09.05.1980, a letter was sent from President, Orissa State Board of Homoeopathic Medicine, Bhubaneswar to the petitioner no.1 indicating therein that since Government has asked the opposite party to join subsequent to his communication relating to terms and conditions of joining in his letter dated 28.12.1971, the same will amount to his terms and conditions being accepted by the Government. It is also mentioned therein that as per Section 12(1) of the Orissa Homoeopathic Act, 1956, the Secretary to the Board shall be appointed by the State Government. In the said letter, it was also mentioned that the opposite party is entitled to a regular class-II scale of pay and also all benefits of conditions of service of class-II State Government servants. It is contended that the opposite party, while continuing as Secretary of the Board, was appointed in a regular classII post as Planning Officer. On 25.01.1990, the opposite party was placed under suspension and challenging the said order the opposite party had filed O.A. No.113 of 1990 on 29.01.1990 and vide order dated 15.03.1990 the tribunal held that the opposite party is holder of a civil post and, therefore, the opposite party is entitled to all retiral benefits including regular pension as due and admissible to an officer of class-II State service. Since the petitioner has not opted either CPF or GPF benefits, it is contended that the petitioner can only be entitled to CPF benefits automatically and accordingly he has been brought under the purview of CPF benefits. But it is found that the opposite party had rendered more than 33 years of service under the Govt. of Orissa till he attained the age of superannuation, i.e., 31.01.2005. Since the period of service rendered as Secretary in Orissa State Board of Homoeopathic Medicine has not been taken into account for computation of

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pension, the opposite party has been deprived of getting the benefit as due and admissible to him. As it reveals, the appointment of the opposite party to the post of Secretary, Orissa State Board of Homoeopathic Medicine has not been made under Section 12(1) of the Odisha Homoeopathic Act, 1956 inasmuch as the same has not been mentioned anywhere in the appointment letter. More so, his increments from time to time has been sanctioned by the petitioner no.1 and, as such, the periodical increment certificate also indicates that the opposite party, as a Government servant who is entitled to get periodical increments from time to time. Subsequently, on 15.02.1997, by order of petitioner no.1, after consultation with the Odisha Public Service Commission, the opposite party had been appointed as a Planning Officer in class-II rank in the office of the Director, Indian Medicine and Homoeopathy, Odisha, Bhubaneswar. In the said order he was directed to act as Planning Officer-cum-Ex-Officio Secretary of the Board and he retired from the said post on superannuation on 31.01.2005. As such, the service book does not indicate the resolution passed by the Board and there is no mention about the resolution of the Board accepting the appointment made by the Government as Secretary to the Board. Therefore, it is made clear that the opposite party was a pensionable government employee and not a nonpensionable Board employee. As such, the terms and conditions of his initial appointment when he came from Central Government employment to the Board, are not seen to have been fixed anywhere. In any case, since the opposite party has been declared as a civil servant and rendering service as government servant, he should have come within the purview of GPF system instead of CPF. The contention, which has been raised by Mr. R.N. Mishra, learned Addl. Government Advocate appearing for the State-petitioners, that opposite party has accepted CPF benefit after his superannuation and in the event this Court upheld the order passed by the tribunal and the opposite party brings to the purview of the GPF, then the petitioner has to refund the amount and to be adjusted to bring him within the fold of GPF scheme. But

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fact remains, if he has been treated as a civil servant and continued in service, now question of continuance under CPF does not arise. Therefore, the service of the opposite party should be brought to GPF scheme and all benefits due and admissible to him should be extended in accordance with the order dated 12.12.2013 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No.934 of 2013 as expeditiously as possible, preferably within a period of two months from the date of communication of this order. Further with regard to the observation made by the tribunal, that the differential amount of interest payable to the opposite party shall be recovered from the erring official for whose negligence such delay occurred, this Court is not inclined to shift the responsibility to any official, rather it is the obligation on the part of the State if the opposite party is brought within the fold of GPF, all modalities have to be followed so as to pay the same to him within the time stipulated by this Court. If the order of this Court is not complied with within the time stipulated, the opposite party is entitled to the penal interest as per the direction given by the tribunal.

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The order dated 12.12.2013 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No.934 of 2013 is modified to the above extent.

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With the aforesaid observations and directions, the writ petition stands disposed of.

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(DR. B.R. SARANGI) JUDGE

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Ashok

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Ashok (G. SATAPATHY) Signature Not Verified JUDGE

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Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA Date: 02-Jul-2024 14:28:10

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State v. Biraja Ku.Das

Case brief

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State v. Biraja Ku.Das

Case brief

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