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2015 DIGILAW 5 (ORI)

State of Orissa v. M. V. Sharma

2015-01-06

A.K.RATH, AMITAVA ROY

body2015
JUDGMENT Amitava Roy, J. 1. Heard Mr Muduli, learned Addl. Standing Counsel for the State-petitioner. 2. The judgment and order dated 8.6.2005 passed by the learned the O.A.T. Bhubaneswar in Original Application No. 2577/99 constitutes the subject matter of assailment in the instant petition. 3. Brief outline of the pertinent facts is essential. The opposite party herein was appointed as Laboratory Assistant with the S.C.S. College, Puri and served in the said capacity from 3.7.1958 to 17.3.1962 i.e. for a period of 3 years 8 months and 14 days, whereafter he joined the University College of Engineering, Burla, which was under the administrative control of Utkal University, and served therefrom 19.3.1962 to 11.5.1968. The opposite party thereafter joined Govt. service on 12.5.1968 and retired on 31.10.1996 as Executive Engineer (Electrical) under the Energy Department of the Government of Orissa. 4. Subsequent thereto, he represented to the Government to count his past services under the S.C.S. College and the University College of Engineering, Burla, towards qualifying service, but, as the same remained unheeded, he eventually approached the Tribunal in O.A. No.933/99, which was disposed of on 13.5.1999 requiring the petitioner herein to dispose of his representation within a period of three months. The representation having been rejected and the decision to that effect being communicated to the opposite party by letter No. ELEE Case No.61/99-13079/Bhubanewar dated 29.9.1999, he returned to the Tribunal with O.A. No.2577/99. He contended therein that he was entitled to have his past services of 9 years 10 months 6 days cumulatively with S.C.S. College, Puri and the University College of Engineering, Burla, added to the length of qualifying service for his pension and other retiral benefits. While admitting that he had been sanctioned pension on the basis of his service with the Government from 12.5.1968, the opposite party insisted that there is no provision in law and more particularly in the Orissa Civil Services (Pension) Rules, 1992 (for short, hereinafter referred to as “the Rules”) to deny him the benefit of the past services as claimed by him. He averred as well that there being no interruption in his services due to resignation, dismissal or removal, he was indeed entitled to the benefits of his past service in the S.C.S. College, Puri, and University College of Engineering, Burla, on the basis of circular No.2276-Pen-32/ 88-F dated 20.1.1990 of the State Government to the effect that on the absorption of employees of the autonomous bodies in the Government and/or vice versa their services would count for pension. The opposite party in his application asserted that he had never resigned from service in any of the institutions that he had served and that he had been duly relieved by the S.C.S. College, Puri and Utkal University to join the Govt. Service. 5. The petitioner-State in its written statement, pleaded that the opposite party was not a civil servant during his service with the University College of Engineering, Burla. Further, to treat his service period with the S.C.S. College, Puri, he ought to have rendered service at least five years therein before switching over to his new assignment. The petitioner-State averred as well that the opposite party ought to have taken prior permission to change over to any other civil service and that his service records did not indicate about these aspects for he was not entitled to the accretion of his services with the S.C.S. College, Puri and the University Engineering College, Burla to the length of the qualifying service for the purpose of pension under the Rules. 6. The opposite party in his rejoinder maintained with particular reference to Rule 36(b) of the Rules that he was entitled in law to claim the benefit of the services with the S.C.S. College, Puri and the University Engineering College, Burla. He emphasized that Utkal University was an autonomous body and that service under it by no means could be construed as interruption as contemplated in law, more particularly, as there was no resignation, removal or dismissal, as he had neither resigned, nor was removed or dismissed from service at any point of time. The opposite party clarified that he had applied for the new post to the concerned authority of the academic institutions, which duly forwarded the same, and that after his selection he was relieved by the S.C.S. College, Puri to join the University College of Engineering, Burla. 7. The opposite party clarified that he had applied for the new post to the concerned authority of the academic institutions, which duly forwarded the same, and that after his selection he was relieved by the S.C.S. College, Puri to join the University College of Engineering, Burla. 7. Learned Tribunal on the basis of the pleadings and documents on record, by the impugned decision held that the opposite party was entitled in law for the benefits of his service rendered to the S.C.S. College, Puri, but rejected the claim vis-a-vis his service with the University College of Engineering, Burla. In reaching this conclusion, the learned Tribunal noted that the petitioner-State had not denied that he had been working as Laboratory Assistant in the S.C.S. College, Puri and that no provision in the Rules or any circular had been cited to demonstrate that either a permission was required to switch over from that post to any other post or that the opposite party to be entitled to the benefit to the service rendered with the S.C.S. College, Puri, the duration thereof essentially ought to have been for at least five years. As the opposite party has left unchallenged the finding of the learned Tribunal rejecting his claim for the past services under the University College Engineering, Bural, it is considered inessential to dilate of this aspect of the lis. 8. Mr Muduli has emphatically argued with reference to Rules, 11, 32, 35 and 36 of the Rules that as the opposite party had failed to establish that his changeover from the S.C.S. College, Puri to the University College of Engineering, Burla, had been preceded by permission duly granted by the earlier institution and that it being apparent that the duration of his service with the S.C.S. College, Puri, had been less than five years, he was not entitled to the benefit of the service rendered to the S.C.S. College, Puri and thus the impugned judgment and order being repugnant to the Rules is nonest in law. 9. We have traversed the pleaded facts, referred to the documents on record and the arguments advanced, Rule 11 of the Rules prescribes the features of qualifying service i.e. (1) the service must be under the Government; (2) the employment must be in a pensionable establishment/post; and (3) service must be paid by the government. No dissension in this regard is noticeable. 10. No dissension in this regard is noticeable. 10. It is apparent from Rule 22 that service paid from the consolidated fund qualifies for pension. The opposite party in his Original Application had averred that he had been paid from the consolidated fund of the State vis-à-vis the service rendered by him to the S.C.S. College, Puri and thus the same is pensionable. There is as such no categorical denial by the petitioner-State to this assertion. As a matter of fact, the only reservation expressed by it is that his records do not clearly evince that he had taken prior permission of the S.C.S. College, Puri to switchover to the University College of Engineering, Burla and that his period of service with the S.C.S. College, Puri is less than five years. There is also no controversy that the opposite party that neither had resigned from any of the services nor had been removed or dismissed therefrom by any of the institutions. 11. The relevant excerpt of Rule 32 on which great emphasis has been laid by the learned counsel for the petitioner is quoted as hereunder: “32. Addition to qualifying service in exceptional circumstances – (1) The State Government may, in exceptional circumstances as noted hereunder add to the service of a Government servant for qualifying superannuation pension only a period not exceeding one-fourth of the length of his service or the actual period by which his age at the time of recruitment exceeds thirty-two years or a period of five years whichever is least (a) The service or post for which post graduate research or specialist qualification or experience in scientific, technological or professional field is essential. (b) To which candidate of more than thirty-two years of age are normally recruited.” 12. Reading between the lines, according to us, this provision does not mandate that for an incumbent to be entitled to addition to his/her service for qualifying superannuation pension, he/she has to inviolably put in five years of service in the minimum in the service or post, as referred to in Clause (a) & (b) above. The reference of five years is to indicate the length of the period, which can be added to the duration of qualifying service, if least out of the situations envisaged. The reference of five years is to indicate the length of the period, which can be added to the duration of qualifying service, if least out of the situations envisaged. This period of five years, however, is qualified by the two preceding contingencies as integrated in Rule 32(1) of the Rules with the legislative enjoinment that the least of the periods, in the situations contemplated would be available to the incumbent to be added to the qualifying service. The period of five years, in our comprehension, does not, in any view of the matter, denote the minimum length of service to be rendered to qualify a government servant to be entitled to the benefit of addition of his past services in the situations as envisaged in Rule 32(1) of the Rules. The plea of the petitioner-State based on Rule 32(1) of the Rules thus does not merit acceptance. 13. Aside the fact that the opposite party’s averment that he had neither resigned from any of the services nor had been removed or dismissed from any of the institutions has remained uncontroverted, we are also left unpersuaded to hold in the face of the sequence of events constituting his service profile that there had been any interruption in service as contemplated in Rules 35 and 36 of the Rules. Rule 36(b) in our estimate deserves to be extracted as hereunder: “36. (b) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government shall be treated as automatically condoned and the pre-interruption service treated as qualifying service. The period of interruptions itself shall not count as qualifying service.” 14. There is nothing on record to demonstrate that there had been an interruption between two spells of civil service not automatically condonable qua the opposite party as legislatively predicated by Rule 36(b). This is, more so, in view of the categorical assertion by him that on both the occasions he had duly applied for the new posts while serving the S.C.S. College, Puri and the University College of Engineering, Burla and that he had been relieved following his selection. The certificate dated 9.8.1997 (Anexure-2) issued by the Principal of the S.C.S College, Puri, thus attest the correctness of the plea qua that institution. 15. The certificate dated 9.8.1997 (Anexure-2) issued by the Principal of the S.C.S College, Puri, thus attest the correctness of the plea qua that institution. 15. It is not the case of the petitioner-State that no such permission was taken by the opposite party and instead it had only contended that his records were silent to that effect. On a cumulative consideration of the materials available, we are thus not inclined to disqualify the opposite party from the benefit of the service rendered with the S.C.S. College, Puri on this count. The certificate referred to herein above does unmistakably demonstrate the knowledge and approval of the S.C.S. College, Puri, of the transition of the apposition therefrom to join the University College of Engineering, Burla. In the absence of any overwhelming material to the contrary, we thus see no compelling and cogent reason to overturn the conclusion recorded by the learned Tribunal. The challenge fails and consequentially the petition is dismissed.