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2009 DIGILAW 319 (ORI)

LAXMIPRIYA MISHRA v. STATE OF ORISSA

2009-04-09

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - Late husband of the Petitioner, Bhikari Charan Mishra, retired as a Headmaster from R.D. High School, Kishoreganj in the district of Dhenkanal on 31.1.1986 on attaining the age of superannuation. The Petitioner has alleged that after retirement of her husband, he was not paid dearness pay as well as interim relief as provided under Retirement Benefit (Amendment) Rules, 1996 for the period for which he is entitled to. It appears that due to such non-payment, the deceased husband of the Petitioner approached this Court in OJC No. 8551 of 1999. A counter affidavit was filed by the opp. parties 1 to 3 in the said writ application indicating therein that the grievance of the Petitioner (deceased husband of the present Petitioner) may not be mitigated by the Inspector of Schools as the same can only be decided by the Controller of Accounts. Taking into consideration the said assertions made in the counter affidavit, the writ application was disposed of by this Court by order dated 7.11.2003 with a direction to the Inspector of Schools as well as to the Controller of Accounts to take a decision on the claim of the Petitioner within a period of four months from the date of receipt of the said order. In pursuance to the said order passed by this Court, the Controller of Accounts, Orissa, Bhuaneswar by his order dated 2.1.2003 under Annexure-1 to the writ petition rejected the case of the deceased husband of the Petitioner. The said order under Annexure-1 is quoted herein below. Office of the Controller of Accounts, Orissa, Bhubaneswar. No. Pen-1-5-350/98. 10/CA. To Sri Bhikari Ch. Mishra, Retd. Teacher, High Court Colony, Arunodaya Market, Cuttack-12. Sub: Disposal of your representation dt. 24.11.03 and decision thereon pursuant to direction of the Hon'ble High Court. Bhubaneswar, the 2nd/Jany,/2004 Sir, Pursuant to the direction of the Hon'ble Orissa High Court in their order dt. 7.11.03 in OJC 8551 of 99, the undersigned is directed to communicate the decision on the matter of relief (s) sought for in your representation as well as in your writ-petition. That you have claimed for revision of pension adding dearness pay on the last pay. (2) for payment of T.I. on pension with effect from 1.2.86 and (3) admissibility of Interim Relief sanctioned by the Government from time to time. That you have claimed for revision of pension adding dearness pay on the last pay. (2) for payment of T.I. on pension with effect from 1.2.86 and (3) admissibility of Interim Relief sanctioned by the Government from time to time. Further you have added in your representation for grant of 18 months salary as gratuity and for fixation of pay in the revised scale of pay. In this connection it is noticed on verification of relevant records as well as your service book that you have retired from service on 31.1.86 while working as Headmaster in an Aided High School. Hence your pension case is governed under the provisions of Orissa Aided Educational Institutions Employees Retirement Benefits Rules 1981 framed by the Govt. in Education Deptt. who is the rule making authority in respect of the retired employees/teachers of the aided Institutions. The orders/circulars issued from time to time by the Govt. in Finance Deptt. for the State Govt. pensioner covered under Orissa Pension Rules 1977 and Orissa Civil Service (Pension) Rules 1992 are not applicable in the case of Aided pensioners covered under 1981 Rules (supra). As regards your claim for inclusion of D.P. in the last pay for calculation of pension, orders/circulars to that effect have not been issued by the Govt. in Education Deptt. for calculation of pensionary benefits in respect of the employees/teachers of the Aided Educational Institutions taking the dearness pay as part of the pay as has been done in the case of Non-Govt. Pry. School teachers vide erstwhile Education and Youth Services Deptt. letter No. 16267/EY and S., dt. 30.3.91. As regards payment of T.I. on pension w.e.f. 1.2.86, it may be mentioned here again that your pension case is covered under 1981 rules (supra). There was no provision initially for payment of T.I. on pension in respect of the Aided pensioners under 1981 rules (supra). The provision of T.I. was extended to the pensioners of the Aided Educational Institutions w.e.f. 1.10.95 by OAEIERB (Amendment) Rules 1996 published vide SRO 557/96. Accordingly you are eligible to get T.I. on pension with effect from 1.10.95. As regards the claim for payment of interim relief, Govt. in Finance Deptt. in their O.M. No. 45961 dt. 23.11.95 had sanctioned I.R. for the State Govt. pensioners covered under O.P.R. 1977 and O.C.S. (P) Rules 1992. Further, Govt. in Finance Deptt. Accordingly you are eligible to get T.I. on pension with effect from 1.10.95. As regards the claim for payment of interim relief, Govt. in Finance Deptt. in their O.M. No. 45961 dt. 23.11.95 had sanctioned I.R. for the State Govt. pensioners covered under O.P.R. 1977 and O.C.S. (P) Rules 1992. Further, Govt. in Finance Deptt. has clarified in their letter No. 2083 dt. 12.1.96 that the Pry. School Teachers and the employees of taken over institutions who are authorized with pension after retirement as State Govt. pensioner, shall be eligible to get I.R. sanctioned by the Finance Deptt. As you have retired as a teacher of a Non-Govt. aided educational institutions and pension has been authorized by this office as admissible to such pensioners, I.R. sanctioned by the Finance Deptt. is not admissible in your case. Further as regards the other claims, it is stated that there is no provision for grant of 18 months salary as gratuity in any pension rules of the State. Further the revision of pension w.e.f. 1.1.96 would have been effected in your case at your concerned Treasury in terms of resolution No. 20257 dt. 9.7.99 issued by the S and ME. Deptt. The above facts are communicated as per direction of the Hon'ble High Court in their order dt. 7.11.03. in OJC 8551 of 99. Yours faithfully Sd/ - illegible 2.1.03 Asst. Controller of Accounts. 2. The husband of the Petitioner expired on 5.4.2004 as is evident from the death certificate under Annexure-2 and the Petitioner obtained a legal heir certificate as at Annexure-3. The Petitioner thereafter made a representation on 27.9.2004 to the Treasury Officer, Cuttack to release her pension and arrear amounts. 3. It has been alleged by the Petitioner that similarly situated retired employees who have retired along with the Petitioner's husband have been allowed dearness pay and interim relief whereas the case of the husband of the Petitioner has been rejected illegally. 4. In essence, therefore, the Petitioner has alleged that her deceased husband is entitled to dearness pay and interim relief for the period from the date of his retirement i.e. 31.1.1986 till his death on 5.4.2004. Being aggrieved by the order of rejection dated 2.1.2003 passed by the Controller of Accounts-opp. party No. 4, the Petitioner has preferred this writ petition seeking appropriate remedy. 5. A counter affidavit has been filed on behalf of opp. Being aggrieved by the order of rejection dated 2.1.2003 passed by the Controller of Accounts-opp. party No. 4, the Petitioner has preferred this writ petition seeking appropriate remedy. 5. A counter affidavit has been filed on behalf of opp. party No. 3-Inspector of Schools. However, the Controller of Accounts has not filed any return to the writ petition. The stand taken by the Inspector of Schools in the counter affidavit is that, pursuant to the directions of this Court on 7.11.2003 in OJC No. 8551 of 1999, the Controller of Accounts, Orissa, Bhubaneswar has disposed of the representation of the Petitioner and the order was served on the deceased husband of the Petitioner. While denying the said allegation, it has been stated in the counter affidavit that as to particulars of person similarly placed like the deceased husband of the Petitioner having been given in the writ petition, it is not possible to answer the said allegation and the Controller of Accounts has rightly rejected the prayer of the Petitioner with regard to allowing dearness pay and interim relief to the deceased husband of the Petitioner. After filing of the aforesaid counter affidavit, the Petitioner filed a rejoinder affidavit stating that all the employees of R.D. High School have received dearness pay at the rate of 10% with effect from 1.1.1986 and since such benefit has already been extended to the employees of the aided educational institution after retirement of the husband of the Petitioner, her husband is also entitled to such benefit. It is further averred that the Controller of Accounts is the sole authority of the State to finalize the pension case of the employees of the aided educational institution but the claim of the husband of the Petitioner being in relation to a period prior to his retirement, it is the Inspector of Schools who was re-fixed the pay. In paragraph-5 of the rejoinder affidavit, the Petitioner has stated the names of the employees of R.D. High School, who have been granted dearness pay with effect from 1.1.1986 were similarly placed like the husband of the Petitioner. 6. A further counter affidavit was filed by the opp. party No. 3-Inspector of Schools to the said rejoinder affidavit wherein it has been averred in paragraphs-3 and 4 as follows: 3. 6. A further counter affidavit was filed by the opp. party No. 3-Inspector of Schools to the said rejoinder affidavit wherein it has been averred in paragraphs-3 and 4 as follows: 3. That in reply to the averments made in para 1 to 4 of the rejoinder, it is humbly submitted that Government of Orissa in the Finance Department in their Office Memorandum No. CS-IV-1/86-37026/F dt. 15.7.86 have sanctioned one installment of Dearness Allowance in the revised scale of pay w.e.f. 1.1.86. The Petitioner's husband has already been paid salary as per the rate of D.A., sanctioned by the Government w.e.f. 1.1.86 accordingly. Moreover, it is submitted that Govt. of Orissa have not sanctioned Dearness Pay to the employees w.e.f. 1.1.86 at any point of time rather the employees have been sanctioned D.P. w.e.f. 1.7.86 in Finance Department memorandum No. 17729/F dt. 13.4.87. 4. That in reply to the averments made in para-5 of the rejoinder, it is humbly submitted that all the employees whose names are mentioned in the para were continuing in service then (as on 1.7.86) and as such were allowed to get D.P. w.e.f. 1.7.86 and not that w.e.f. 1.1.86. The Petitioner's husband was not in service on 1.7.86 and as such was not entitled to get D.P. as has been allowed to other employees. 7. In Annexure-5 to the rejoinder affidavit filed by the Petitioner, which is the office memorandum dated 15.7.1986 issued by the Government of Orissa in its Finance Department, it is provided in paragraph-7(d) as follows: 7. The mode of payment of increased Dearness Allowance/ Additional Dearness Allowance as mentioned in paragraphs 2.4 and 5 above, over and above the rates admissible till 1.1.1986 will be as follows: (a) to (c) xxx xxx xxx (d) The dues on account of enhanced Dearness Allowance/ Additional Dearness Allowance in respect of the employees who have already retired or ceased to be in Government service or have no General Provident Fund Account may be paid in cash. xxx xxx xxx 8. In Annexure-B/3 to the additional counter affidavit filed on behalf of opp. party No. 3, it has been stated in paragraph-3 thereof as follows: 3. Pension and Gratuities - In case of employees who have retired on or after 1.7.1986, the Dearness Pay shall count as emoluments for pension and gratuity in terms of Rule 73 of the Orissa Pension Rules 1977. party No. 3, it has been stated in paragraph-3 thereof as follows: 3. Pension and Gratuities - In case of employees who have retired on or after 1.7.1986, the Dearness Pay shall count as emoluments for pension and gratuity in terms of Rule 73 of the Orissa Pension Rules 1977. The doses of temporary increase totalling to 8% of the pension subject to minimum of Rs. 25 and maximum of Rs. 80 will not however be admissible in these cases. These pensioners shall be entitled to further does of temporary increase as may be declared effective after 1.1.1986 from time to time. If however, the pension admissible without taking into account the Dearness Pay but the adhoc increase in pension is more favourable than the benefit under this order the individual can be granted the former. The Dearness Pay will also count as pay for the purpose of Family Pension Scheme, as amended from time to time. Contributory Provident Fund - For calculating the amount of subscription by Government servants and Government contribution to the Contributory Provident Funds, the Dearness Pay, appropriate to the pay on which these contributions are based, shall be treated as part of such pay. General Provident Fund - The Dearness Pay will count as pay for the purpose of subscription to the General Provident Fund as well as advances/withdrawals from the Fund. The Dearness Pay will be treated as pay for the following purposes: (a) Unhealthy locality allowances. (b) House Rent Allowance (c) Project Allowance (d) Non-practising Allowance Recovery of Rent - The Dearness Pay will also be treated as part of the emoluments as defined under Rule 111(c) of Orissa Service Code for the purpose of recovery of rent for Government residence. Except as specified in these orders, the Dearness Pay will not be treated as pay for any other purpose. These orders shall take effect from 1.7.1986. 9. In the note to Rule 8(2) of the Orissa Aided Educational Institution Employees Retirement Benefit Rules, 1981, which governs the case of the Petitioner's husband, who retired on 31.1.1986, it is prescribed that for the purpose of calculating the pension and gratuity, only completed years of qualifying service shall be taken into account and fraction of a year shall be ignored. In calculation of pension under this Rule, "the formula applicable to State Government employees shall be followed. (emphasis supplied) 10. In calculation of pension under this Rule, "the formula applicable to State Government employees shall be followed. (emphasis supplied) 10. From a reading of the aforesaid memorandum of the Finance Department in Annexure-5 and Annexure-B/3, as quoted above, it is clear that the husband of the Petitioner for the period from his date of retirement till his date of death is entitled to the Dearness Allowance which is considered as Dearness Pay and Temporary Increase (T.I.) in terms of Rule 73 of the Orissa Pension Rules, 1977 as specifically provided in Annexure-B/3. 11. In view of the notes to Rule 8(2) of the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981, the Petitioners husband was entitled to such Dearness Pay and T.I. to which his counterparts in Government service were entitled to. Since it is found that the late husband of the Petitioner was entitled to such Dearness Pay and T.I. as observed above, such amount is found payable to the Petitioner and due to such amount being found payable for the period from the date of retirement of the husband of the Petitioner, i.e. 31.3.1986 till his death on 5.4.2004. By necessary implication, the amount of family pension payable/being paid to the Petitioner shall also be proportionately increased. 12. The writ petition is, therefore, disposed of directing the opp. parties to calculate the amount of Dearness Pay and T.I. which was payable to the deceased husband of the Petitioner for the aforesaid period from 31.3.1986 till.'5.4.2004 and make payment of the same to the Petitioner within a period of two months from the date of communication of this order. It is also further directed that on account of such increase in payment of pension of the deceased husband of the Petitioner, the family pension, will be proportionately increased as found admissible. The arrear amount towards family pension, which has not yet been paid to the Petitioner from the date of death of her husband, i.e. from 31.3.1986, shall also be paid to the Petitioner within a period of two months as stipulated above. It is needless to mention that the Petitioner shall thereafter be paid the family pension at such increased rate as would be calculated.