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2015 DIGILAW 275 (ORI)

Jogendra Behera v. Chairman, Grid Co. Ltd.

2015-04-23

S.N.PRASAD

body2015
ORDER : S.N. Prasad, J. 1. The petitioner has challenged the order dated 26.5.2009 passed by the Senior General Manager(HR),Central Electricity Supply Utility of Orissa by which period of service rendered by him under work-charged establishment has not been calculated for consideration to be entitled to get full pension. Brief facts of the case that the petitioner was initially engaged on 1.6.1966 under the work-charged establishment and remained in the said establishment to 21.7.1969 and thereafter he was taken to regular establishment with effect from 22.7.1969 and started discharging his duties and thereafter he was superannuated from service with effect from 30.4.1999. 2. As per the Orissa Civil Services(Pension) Rules, 1992 a retired employee will get full pension after completion of 33 years of continuous service under the permanent establishment but since there is short fall of 3 years, 1 month and 21 days, hence the petitioner has not been found qualified for getting full pension. 3. Accordingly, he approached before this Court by way of preferring writ petition being O.J.C. No. 16292 of 2001 which was disposed of on 5.1.2009 giving liberty to the petitioner to file representation before the Chief Executive Officer, CESU for taking a decision in accordance with law and accordingly a decision has been taken vide order communicated as contained in letter dated 26.5.2009(Annexure-13) whereby and whereunder claim of the petitioner for making him entitled for getting full pension has been rejected on the ground that the petitioner has only completed 29 years 9 months and 9 days service. 4. Case of the petitioner that the period of service rendered by him under work-charged establishment from 1.6.1966 to 21.7.1969 ought to have been calculated for the purpose of entitling him for full pension, but that has not been given on the pretext that Rule 18(3) of the Orissa Civil Services(Pension) Rules, 1992 which provides that the period of service rendered under the work-charged establishment will be calculated only if he discharged his duty under the work-charged establishment for a period of five years or more, then the said period will be calculated. In this case, the petitioner has rendered service for 3 years, 1 month and 21 days in the work-charged establishment and as such in view of Rule 18(3) of the of the Orissa Civil Services(Pension) Rules, 1992 the period of service rendered under the work-charged establishment has not been calculated. 5. In this case, the petitioner has rendered service for 3 years, 1 month and 21 days in the work-charged establishment and as such in view of Rule 18(3) of the of the Orissa Civil Services(Pension) Rules, 1992 the period of service rendered under the work-charged establishment has not been calculated. 5. According to the petitioner that in view of the provisions as contained under Rule 47 of the of the Orissa Civil Services(Pension) Rules, 1992 provision has been given for calculating service rendered in other establishment and regular establishment and the authorities have not passed the order taking into consideration the provisions of Rule 47 of the of the Orissa Civil Services(Pension) Rules, 1992 rather the order has been passed on the basis of the Rule 18(3) of the of the Orissa Civil Services(Pension) Rules, 1992 and as such the impugned order cannot be said to be justified order. 6. The petitioner has placed reliance upon the order passed by this Court in O.J.C. No. 11896 of 2001 (Dharanidhar Barik v. The Chairman, GRID Corporation Ltd. and others) wherein direction has been given to the authorities to calculate the period of service on the basis of Rule 47 of the of the Orissa Civil Services(Pension) Rules, 1992 and it has been submitted by learned counsel for the petitioner that this case is to be looked into in the light of the Rule 47 of the of the Orissa Civil Services(Pension) Rules, 1992 and decision in O.J.C. No. 11896 of 2001 in which similar to the case of the petitioner. 7. On the other hand, learned counsel for the opposite parties has submitted that the order dated 26.5.2009 has been passed on the basis of the provisions as contained in Rule 18 of the of the Orissa Civil Services (Pension) Rules, 1992 which specifically bars to calculate the period of work-charged establishment if service period of an employee is less than five years since it has been provided in the Rule "for a period of five years or more". Since the petitioner is not coming under the parameter of Rule 18 of the of the Orissa Civil Services(Pension) Rules, 1992, hence the authorities after taking into consideration of this aspect, has passed order and as such there is no infirmity in the impugned order. 8. Heard learned counsel for the parties and perused the documents available on record. 9. Since the petitioner is not coming under the parameter of Rule 18 of the of the Orissa Civil Services(Pension) Rules, 1992, hence the authorities after taking into consideration of this aspect, has passed order and as such there is no infirmity in the impugned order. 8. Heard learned counsel for the parties and perused the documents available on record. 9. Admitted fact is that the petitioner was engaged under the work-charged establishment on 1.6.1966 and remained in the said establishment till 21.7.1969. Thereafter the petitioner was taken to regular establishment with effect from 22.7.1969 and superannuated from service with effect from 30.4.1999. 10. So far as the contention of the learned counsel for the petitioner that the impugned order dated 26.5.2009 has been passed without considering the provisions as contained in the of the Orissa Civil Services(Pension) Rules, 1992. For adjudicating this issue it is important to see the provisions as contained in Rule 18 of the of the Orissa Civil Services(Pension) Rules, 1992 which is being quoted below: "Conditions subject to which service qualifies:-- (1) Service does not qualify for pension unless it is rendered in a pensionable establishment post. (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-pension able 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 pension able 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) 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 pension able. (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 pension able 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/pension able 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." 11. From perusal of the provisions as contained in Rule 18(2) the entire continuous service in the work-charged establishment shall not be counted for the purpose of pension. 12. From perusal of Rule 18(3) of the of the Orissa Civil Services (Pension) Rules, 1992 exception has been given that if an employee will discharge his duty in the work-charged establishment for a period of five years or more and subsequently appointed to the same or another post in a temporary or substantive capacity in a pension able establishment without interruption of duty, the period of service so rendered in work-charged establishment shall quality for pension under this rule. 13. 13. From perusal of the provisions it is apparent that if an employee has discharged duty under the work-charged establishment for a period of five years or more, the said period shall be counted for the purpose of calculating pension otherwise the said period shall not be counted which give embargo as has been provided under the provisions as contained in Rule 18(3) as quoted above. 14. In this case, the petitioner has discharged his duty under the work-charged establishment for a period of 3 years, 1 moth and 21 days and as such the petitioner cannot be given any benefit as provided under Rule 18(3) which provides for ignoring the period of service rendered in the work-charged establishment if the period of service is not 5 years or more. 15. Since the petitioner has discharged his duty in the work-charged establishment for a period of 3 years, 1 month and 21 days, hence the petitioner cannot be said to be entitled to be given benefit period of service rendered in the work-charged establishment. 16. So far as the reliance placed by learned counsel for the petitioner in O.J.C. No. 111896 of 2001 wherein same issue has been dealt with and order has been passed directing the authorities to calculate pension of the writ petition on the ground that the petitioner in the said writ petition has performed his duty in the work-charged establishment for 4 years, 11 months and 21 days, according to the petitioner his case is covered by the judgment. 17. From perusal of the order rendered in OJC No. 11896 of 2001 it is apparent that the provision as contained in Rule 18(3) of the of the Orissa Civil Services (Pension) Rules, 1992 has not been placed before the Hon'ble Court while adjudicating this issue, rather due to that reason no finding has been given under the provisions as contained in Rule 18(3) of the of the Orissa Civil Services (Pension) Rules, 1992. 18. 18. Since the order passed by this Court in OJC No. 11896 of 2001 is based upon the provisions as contained in Rule 47 of the of the Orissa Civil Services(Pension) Rules, 1992 and without considering Rule 18 of the of the Orissa Civil Services(Pension) Rules, 1992, hence the said judgment is distinguishable on the ground of non-consideration of statutory provision as contained in Rule 18(3) of the of the Orissa Civil Services(Pension) Rules, 1992, hence the petitioner cannot be given benefit on the basis of the said judgment and also on the ground that in that case, no order having been passed by authority was under challenge, hence matter was referred before the authority to take a decision on the ground of equity but in this case there is a decision having been taken by the authority which has been impugned. 19. Moreover, when any order has been passed by the authority and subjected to judicial scrutiny then the court is to see the order as to whether order passed by authority is in terms of the statutory provision or not?. 20. Here, in this case the authority has given a specific finding relying upon the provisions of Rule 18(2)(ii) of the Orissa Civil Services(Pension) Rules, 1992 and as such, the propriety of the order is to be seen. Since there is specific bar for computing service rendered by an employee in the work-charged establishment is less than five years, it cannot be calculated on the basis of qualifying the said period for fixing full pension, but in this case the petitioner since has not rendered five years or more service under the work-charged establishment, rather has rendered under the work-charged establishment for a period of 3 years, 1 month and 21 days and in view of the provisions as contained in Rule 18(3) read with 18(2)(ii) of the of the Orissa Civil Services(Pension) Rules, 1992 which is quoted herein above, in my considered view, the petitioner cannot be granted benefit of service rendered under the work-charged establishment. In view of the above reasons, I am not inclined to interfere with the impugned order. Accordingly, the writ petition is dismissed being devoid of merit.