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2017 DIGILAW 877 (ORI)

State of Odisha v. Hadibandhu Behera

2017-08-11

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT K.R.MOHAPATRA, J. - This writ petition has been filed by the State of Odisha in the Department of School and Mass Education, assailing the order dated 21.11.2000 (Annexure-6) passed by Odisha Administrative Tribunal, Cuttack Bench, Cuttack (for short ‘the Tribunal’) in O.A. No. 1967 (C) of 1999, whereby learned Tribunal while allowing the Original Application filed by the opposite party, namely, Sri Hadibandhu Behera (opposite party herein), directed to extend pensionary benefits in favour of the opposite party taking into consideration the period of service rendered by the opposite party under the private management of Urmal M.E. School in the district of Mayurbhanj (for short ‘the School’), i.e., for the period from 01.06.1978 to 31.03.1991. O.A. No. 1967 (C) of 1999 was filed by the opposite party before the learned Tribunal with a prayer for regularization of his service under the State Government and to grant consequential benefits. The opposite party had contended inter alia that he was appointed as a Peon on ad hoc basis in the School on 01.06.1978. Different spells of his ad hoc appointments were approved by the District Inspector of Schools from time to time till 31.05.1985. The School was taken over by the Government with effect from 01.04.1991. Since his post was not approved by the Government after the School was taken over, he had moved the learned Tribunal for appropriate direction for approval of his appointment under the State Government. The said Original Application was disposed of in the Lok Adalat dated 31.08.1997 with a direction to the Secretary of the School and Mass Education Department to consider the representation of the opposite party with regard to the regularization of his services. In response to the said order, the Secretary School and Mass Education Department disposed of the representation of the opposite party negating his prayer for regularization of his service under the State Government. He therefore, moved learned Tribunal in O.A. No. 1967 (C) of 1999 for the aforesaid relief. 2. Learned Tribunal, on consideration of materials on record, passed order under Annexure-6, which is impugned in this writ petition. 3. Heard Mr. S.K. Samal, learned Standing Counsel for the School and Mass Education Department for the petitioners and Mr. Debasis Pattnaik, learned counsel on behalf of Mr. D.K. Mishra, learned counsel for the opposite party. 4. The facts narrated above are not disputed. 3. Heard Mr. S.K. Samal, learned Standing Counsel for the School and Mass Education Department for the petitioners and Mr. Debasis Pattnaik, learned counsel on behalf of Mr. D.K. Mishra, learned counsel for the opposite party. 4. The facts narrated above are not disputed. On consent of learned counsel for the parties, the writ petition is disposed of at the stage of admission. 5. Mr. Samal, learned Standing Counsel for SME Department submitted that the opposite party was holding a post of Peon in the School, when the school was an Non-Government Aided Educational Institution. As per the yardstick provided under the Odisha Education Act, 1969 and Rules framed thereunder, the post of Peon (Class IV employee) was not sanctioned for non-Government aided M.E. Schools. Thus, the continuance of the opposite party under the private management of the School cannot be taken in to consideration for regularization of his services under the State Government. Considering the same, his post was not approved by the State Government, when the school was taken over with effect from 01.04.1991. The District Inspector of Schools was not the competent authority to approve the service of the opposite party, when the School was an aided one. Thus, approval of the services of the opposite party by the District Inspector of Schools has no relevance for consideration to regularize his service, when the school was taken over. The opposite party had earlier moved the learned Tribunal for redressal of his grievances and in pursuance to the direction his representation was duly considered by the Secretary, School and Mass Education Department and was rightly rejected. Learned Tribunal, without taking into consideration the same, has passed the impugned order, which is not sustainable in the eyes of law. He further submitted that the case of the opposite party is not covered under the provisions of Rule-4 of the Odisha Aided Educational Institutions’ Employees Retirement Benefit Rules, 1981 (for short, ‘Rules 1981’). Thus, he is not entitled to the relief granted by learned Tribunal. Hence, he prayed for setting aside the order under Annexure-6. 6. Mr. Pattnaik, learned counsel for the opposite party refuting the submissions of Mr. Samal, submitted that the services of the opposite party was duly approved by the District Inspector of Schools from 1978 till 31.03.1991, which has never been withdrawn by the competent authority or challenged in an competent Court of law. 6. Mr. Pattnaik, learned counsel for the opposite party refuting the submissions of Mr. Samal, submitted that the services of the opposite party was duly approved by the District Inspector of Schools from 1978 till 31.03.1991, which has never been withdrawn by the competent authority or challenged in an competent Court of law. The opposite party, during pendency of the O.A. before the learned Tribunal, had attained the age of superannuation. Thus, learned Tribunal, taking into consideration the tenure of service of the opposite party in the School directed to release pensionary benefits in his favour. Thus, he prayed for dismissal of the writ petition. 7. Taking into consideration the submissions of learned counsel for the parties and on scrutiny of record, it reveals that the Government, vide its letter No. EYS. 64/80, 39375 dated 24.09.1980, whereby, the Deputy Secretary of Education and Youth Services Department of the State Government had communicated to the Director of the Department of Education and Youth Services that, the Government had fixed a yardstick for the aided M.E. Schools and High Schools vide Government Order No. 23874 dated 07.07.1977. Accordingly, 3890 numbers of Peons of aided M.E. Schools were found surplus and were about to face retrenchment, as their posts were not in conformity with the yardstick provided. However, the Government, after careful consideration, had decided to continue with the said 3890 numbers of Peons until further orders. Although, no records were available with the Government as to whether the opposite party was one amongst those 3890 numbers of Peons; however, no material to the contrary was available on record. Further, the continuance and approval of the services of the opposite party as a Peon in the School with effect from 01.07.1987, was not disputed by the State. In addition to the above, the opposite party had rendered a pensionable service under the private management in the school. Thus, the case of the opposite party has to be examined under the provisions of the Rules 1981. In addition to the above, the opposite party had rendered a pensionable service under the private management in the school. Thus, the case of the opposite party has to be examined under the provisions of the Rules 1981. Rule-4 of the said Rules, 1981 reads as under: “4.PENSION, GRATUITY AND DEATH-CUM-RETIREMENT GRATUITY- Subject to the conditions in other rules under this Chapter, an employee shall be, eligible for pension or gratuity, as the case may be; (1) on retirement by reason of his attaining the age of superannuation; or (2) on voluntary retirement or retirement by the appointing authority after completion of thirty years of qualifying service or the age of fifty years; or (3) on retirement before the superannuation on medical certificate of permanent incapacity for further service; or (4) on termination of service due to the abolition of the post; or (5) on closure of the College or school, as the case may be, due to withdrawal of recognition of the said College or School or other causes.” In the case at hand, the opposite party had continued as a Peon in the School in question till 1991, when the School was taken over by the Government. As the post was not approved by the State Government, when the School was taken over, the opposite party had to face termination. Thus, the opposite party can be considered to be entitled for retiral benefit under Sub-Rule (4) of the Rule 4 Rules, 1981 as he was continuing in the post of Peon being approved by District Inspect Schools. Further, in view of the communication dated 29.09.1980 referred to above, as many as 3890 number of Peons continuing under different aided M.E. Schools, whose services were treated to be surplus, were allowed to continue until further orders. Thus, there is no reason as to why the opposite party should be denied of the said benefit, particularly when no material to the contrary is available on record. Learned Tribunal, after threadbare discussion, allowed the Original Application with a direction that the opposite party is entitled to the pension taking into consideration the period of service he has rendered under the School as well as well as taking into consideration the contents of letter dated 29.09.1980. 8. In view of the discussion made above, we do not find any reason to interfere with the finding of learned Tribunal. 8. In view of the discussion made above, we do not find any reason to interfere with the finding of learned Tribunal. As such, the writ petition merits no consideration and the same is accordingly dismissed. Petition dismissed.