ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 3827 OF 2006 In the matter of an application under Article 226 of the Constitution of India. ------------- Sri Sarat Chandra Swain …… Petitioner -Versus- State of Orissa and others. …… Opp. Parties For Petitioner: M/s. S.C. Samantray, S.K. Panda, S.Swain, T.K. Mohanta, G.S.Namotar & U.K.Mishra. For Opp. Parties: Addl. Standing Counsel (for O.Ps 1 & 2) M/s. B.Mohanty, S.Mohanty, B.Moharana & D.Chhotray. (for O.P. 3 ) ----------------------- Date of judgment- 16.11.2010 ------------------------ P R E S E N T : THE HONOURABLE SHRI JUSTICE M.M. DAS -------------------------------------------------------------------------------------------------------- M. M. DAS, J. The petitioner in this writ petition has sought for issuance of a writ of mandamus directing the opp. party no. 1 – State to release his final pension and other retiral benefits as due to him and pending such release, to pay provisional pension, which was being paid to him earlier and was stopped from the month of December, 2005. 2. The case of the petitioner is that he was initially appointed as Dark Room Assistant on 19.2.1968 and subsequently promoted to the post of Radiographer on 24.4.1971 at S.C.B. Medical College and Hospital, Cuttack. In the year 1983, the cancer wing of S.C.B. Medical College was placed under a Society called “Acharya Harihar Regional Cantre” for cancer research and treatment. It being an autonomous body, the petitioner and many others were sent on deputation to the said society. On 24.9.1998, the Director under Annexure-1 issued an instruction to exercise option for permanent absorption and the petitioner gave his option for his absorption, which was finally accepted by the opp. party no. 3 on 25.1.1999. On 12.6.1981, a resolution has been made under Annexure-3 by the Director and as per paragraph – 7 (a) of the resolution, the petitioner was called on 5.2.1999 to sign the form for exercising option under Annexure-4. On 8.1.1999, the said option for monthly pension and retirement benefit was accepted. On 31.1.1999, the petitioner retired on absorption from S.C.B. Medical College after completion of 31 years of service. He continued in the Acharya Harihar Regional Centre for Cancer, Cuttack till attaining 58th years, i.e., the age of superannuation. After his retirement from Acharya Harihar Regional Centre for Cancer, the petitioner received all his retirement benefits from the autonomous body for the period for which he served under that body and thus, there remains no dispute against Acharya 2 Harihar Regional Centre for Cancer, Cuttack. While continuing his service in the cancer wing under deputation, as per order No. 2788 dated 24.9.1998 under Annexure-1, the opp. party no. 3 asked for fresh and final option in the prescribed form in triplicate for permanent absorption in the service of the autonomous body, i.e., Acharya Harihar Regional Centre for Cancer, Cuttack on or before 8.10.1998. It is the further case of the petitioner that consequent upon permanent absorption with effect from 1.2.1999, the petitioner applied to the Government for his retirement benefit for the period of his Government service which he had rendered from 19.2.1968 to 31.1.1999. As till date, the final pension has not been granted in favour of the petitioner though by letter dated 20.1.2003 the opp. party no. 2 sanctioned provisional pension in his favour which he received from February, 1999 till December, 2005 and thereafter, the said provisional pension was suddenly stopped from the month of January, 2006 without any office order. He represented on 24.2.2006 demanding the provisional pension from January, 2006, but did not get any response. ;The petitioner, therefore, claims that he is entitled to his pension for his service rendered to the Government for a period of more than 31 years and being aggrieved by non-payment of such pension has approached this Court in the present writ petition. 3 3. A counter affidavit has been filed by the opp. party no. 1 – State, inter alia, stating that the Government resolution dated 12.6.1981 under Annexure-3 clearly stipulates that permanent absorption of a Government servant in an undertaking will be sanctioned by the appointing authority. Where sanction is so accorded, the employee would be deemed to have retired from Government service and it would not be necessary for him to submit a formal resignation. The pay of a Government servant permanently absorbed in an undertaking would be re-fixed as a re-employed pensioner with effect from the date from which he becomes eligible to draw pro-rata by the appointing authority to the undertaking and the Government servant. The Government servant would be required to exercise option within six months from the date of absorption for one of the alternatives, such as: (a) monthly pension and death-cum-retirement gratuity under usual Government arrangement, or; (b) Gratuity and a lump sum amount in lieu of pension where no option is exercised within the prescribed period, the Government servant would automatically be governed by alternative (b). The option shall be exercised in writing and communicated by the Government servant to the appointing authority and the undertaking. 4 Reference is also made in the counter affidavit to Rule 44 (2)(i) of O.C.S. Pension Rules, 1992 which reads as follows:- “44.Pension absorption in or under Autonomous Bodies- (1) xx xx xx (2) (i) A Government servant borne on pensionable establishment, on absorption under an autonomous body where pension scheme is not in operation, shall be deemed to have retired from Government service from the date of such absorption and be allowed by the Government, in respect of his previous pensionable service rendered under Government a retirement benefit equal to an amount that Government would have contributed excluding interest had he been on Contributory Provident Fund terms under Government together with simple interest thereon at two per cent per annum for the period of his pensionable service and this may be credited to his Contributory Provident Fund account with the said body as an opening balance on the date of permanent absorption and the Government’s liability of his pensionable service under them treated as extinguished by this payment: Provided that this concession may be allowed by Government only, if such permanent absorption is in the public interest. Provided further that the Government shall have no liability for the payment of family pension in such case. xx xx xx” 4. The relevant portion of the counter affidavit of opp. party no. 1 for the purpose of adjudication of the writ petition is as follows:- “ That for better appreciation of Hon’ble Court, it is humbly submitted that the Finance Department have categorically communicated their decisions in their letter No. 22350 dated 24.4.2002 to the Accountant General, Orissa indicating therein that the pension cases of the employees of Acharya Harihara Regional Cancer Centre, Cuttack who were working under the Administrative control of the state 5 Government and finally absorbed in the Cancer Institute on dated 1.2.1999 are to be governed by Rule 44 (2)(i) of O.C.S. (Pension) Rules, 1992. The Finance Department further clarified that as the employees were allowed to be absorbed finally in the cancer Institute with effect from 1.2.1999, the date of their permanent absorption is to be taken as 1.2.1999. The instant case being a case where no option has been exercised, the employee is to receive CPF benefit in respect of his service rendered under the autonomous body as per para 3(b)(1) of the Finance Department O.M. No. 2276/F. dated 20.1.1990 read with rule 44(2)(i) of O.C.S. (Pension) Rules, 1992. As per the said provision, the State Government would have contributed excluding interest had they been on CPF terms under the Government together with simple interest thereon at 2% per annum for the period of their pensionable service. To this effect, a copy of Finance Department letter issued on dt. 24.4.2002 is annexed as Annexure-A/1 to this reply since the case of the present petitioner will be disposed of in light of the decision of Finance department as submitted above.” 5. The State has justified its action on the ground that the provisional pension sanctioned in favour of the petitioner has been stopped as he was wrongly allowed that benefit since 2003. The case of the petitioner could have been considered in accordance with Rule 44 (2)(i) of the O.C.S. Pension Rules, 1992 read with Finance Department office memorandum No. 2276/F dated 20.1.1990, as the petitioner was permanently absorbed in the autonomous institution, where no pension scheme is applicable. As such, the decision of the opp. party no. 2 in disallowing further provisional pension to the petitioner is just and proper, as necessary decision is yet to be taken for allowing him such benefits along with other similarly situated persons. 6 6. A bare reading of Annexure-3 shows that in the said resolution dated 12.6.1981, it was resolved by the Government that the benefit stipulated therein would be available to Government servants permanently transferred to undertakings in the public interest, i.e., at the instance of the Government or the organization concerned. The Government servant borne in a pensionable establishment would, on absorption, in an undertaking, be eligible for pro-rata pension and gratuity on the basis of the length of qualifying service till the date of absorption. The pension and retirement gratuity would be determined in accordance with the Orissa Pension Rules and would become due and payable from the date of absorption of the employee on giving an undertaking that in the event of termination of his service at the instance of the employer or at his own instance within a period of two years from the date of absorption, approval of the Government shall be obtained by him before taking up any private employment. The Government servants having less than ten years qualifying service, who are ordinarily not eligible for pro-rata pension, would get proportionate service gratuity and/or retirement gratuity on the basis of length of service. The appointing authority shall identify the employees to be permanently absorbed in undertakings and ask them to exercise option in the enclosed form for absorption. Persons who do not opt for permanent 7 absorption and seek reversion to their parent departments, may if it is not possible to provide employment to them on account of abolition or reduction of the establishment or on any other ground, be retired from service on payment of compensation/ pension/gratuity in accordance with the Pension Rules. 7. In the facts of the present case, it is clear that the petitioner gave his option for absorption under Acharya Harihar Regional Cancer Centre, Cuttack pursuant to the letter of the Director of the said Institute dated 24.9. 1998 under Annexure-1. The same was accepted on 25.1.1999. Admittedly, the petitioner has rendered 31 years of service under the Government. The petitioner also exercised his option on 5.2.1999 for monthly pension and D.C.R.G. as per the resolution dated 12.6.1981 under Annexure-3. Hence, it is found that the petitioner having rendered pensionable service and having exercised his option for monthly pension and D.C.R.G. under usual Government arrangement, will be entitled to such benefits. This Court, therefore, finds that the petitioner was being paid provisional pension till the month of January, 2006 and his pension and other benefits under the said resolution under Annexure-3 as well as the OCS Pension Rules, 1992 has not been finally calculated, to which he is entitled to. 8. It is, therefore, directed that the entitlement of the petitioner towards pension and other pensionery benefits in 8 accordance with the resolution under Annexure-3 as well as the OCS Pension Rules, 1992 shall be computed by the opp. party no. 1 for the period of his service rendered under the Government at S.C.B. Medical College and Hospital, Cuttack and he shall be paid such monthly pension as well as other pensionery benefits. As the petitioner has admittedly received provisional pension from February, 1999 till December, 2005, the arrear pension for the aforesaid period, less the provisional pension already paid to him, shall be paid to him by the end of March, 2011. Arrear pension from January, 2006 till November, 2010 shall also be paid to him by the end of March, 2011 along with all other pensionery and retiral benefits. Monthly pension shall be paid to the petitioner from the month of December, 2010 regularly. 9. The writ petition is accordingly allowed. There shall be no order as to costs. ……………………. M. M. Das, J. Orissa High Court, Cuttack November 16th ,2010/Biswal 9 10 11 12 13 14