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2020 DIGILAW 43 (ORI)

Nirupama Nayak v. State of Orissa

2020-02-06

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for quashing of the order dated 31.08.2009 under Annexure-8 and has prayed for direction to the opposite parties to bring the deceased-petitioner into the fold of Pension Rules, 1981 and to allot a GPF account number and deduct GPF instead of CPF from his salary and to grant of consequential benefits under the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981 (in short, 'Pension Rules, 1981') and to his family and count his entire service towards service continuity from the initial date of joining. During the pendency of the writ petition, the original petitioner-Sweta Kumar Nayak died in harness leaving behind the widow and three sons and the legal heirs have been substituted as petitioners in the case. 2. The brief facts as revealed from the writ application are that the deceased-petitioner was initially appointed as a Peon in Ramachandi Sanskrit Vidyalaya, Mundalo, an aided Educational Institution in the year 1987. The Ramachandi Sanskrit Vidyalaya, Mundalo in the district of Kendrapara was established with Prathama Classes in the year 1972 and subsequently Madhyama classes were opened with Government concurrence from the sessions 1989-90. The Madhyama wing comes into grant in aid fold w.e.f. dated 01.06.1994. It is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act (as it has amended from time to time). Upon opening of the Madhyama wing in the institution the Management of the School appointed the petitioner as a peon vide order dated 10.08.1987. He joined the post on dated 12.08.1987. Since then he has been continuing and discharging his duties in the school. The staff members appointed against Madhyama wing of this school were approved by order dated 27.4.1994 of the opposite party No. 4 vide office order dated 27.04.1994. All these teaching staff have got their salary from out of grant in aid from dated 01.06.1994. But the petitioner's appointment was not approved on the plea that there is no post of Peon available in the yardstick In many aided Sanskrit Tols throughout the State and the provisions of Odisha Education Act and the Rules framed there under are made applicable to the Sanskrit Tols, the post of Peon could have been made available to the Madhyama Tols which are equivalent to High Schools. Be that as it may some similarly situated persons have filed writ petitions before this Hon'ble Curt which were disposed of with a direction to the Government to take a decision with regard to creation of the posts of Peon in the Sanskrit Tols The State Government has taken the decision in letter dated 15.12.2008 creating one post of Peon (Class-IV) in each Sanskrit Tols having Madhyama wing as evident from Annexure-3 to the writ petition. The Government vide letter dated 20.01.2012 passed an order sanctioning the post of peon in favour of the petitioner's Institution and the said post was created with the name of the deceased-petitioner as per Annexure-4. In pursuance of the order dated 31.07.2012 approved the appointment of the petitioner and released grant in aid in his favour under direct payment scheme of the government with the prescribed scale of pay as per Annexure-5. Vide order dated 20.01.2016 the deceased-petitioner has received a CPF account number in the GIS scheme instead of GPF account number. Being aggrieved by such action of the Government, the petitioner has approached the authority and the Government vide letter dated 31.08.2009 took a decision clarifying the approval of the post of peon appointed in 15 Prathama/Madhyma Aided Sanskrit Tols. Challenging the legality and propriety of the impugned order dated 31.08.2009, the deceased-petitioner was constrained to approach this Court under Articles, 226 & 227 of the Constitution of India for redressal of their grievances. 3. Mr. S.K. Das, learned counsel for the petitioners has forcefully submitted that since the deceased-petitioner was an employee of fully aided direct payment Sanskrit Tol, Rule-3 of the Odisha Aided Educational Institution Retirement Benefits Rules, 1981 is applicable. The said Rule is applicable to the deceased-petitioner and his family members, those have been substituted as the writ petitioners, in view of the decision of this Court in the case of Sarat Chandra Parida v. State of Odisha and others, reported in 120 (2015) CLT 813 wherein this Court has already settled the law that a person even in receipt of block grant will be entitled to the benefits under the Pension Rules, 1981 if his institution is a fully aided direct payment institution. Learned counsel for the petitioners further submits that the rider in Rule-3-A of the Pension Rules, 1981 is not applicable so as to denude the deceased-petitioner and family members from availing the benefits under the Pension Rules, 1981. Since the deceased-petitioner was appointed on 10.08.1987 and joined on 12.08.1987, his appointment comes well within the purview of Pension Rules, 1981 as it is much prior to the cutoff date, i.e., on 01.01.2005. Learned counsel for the petitioners further submits that note-5 of Rule-4 of the Pension Rule-1981 deals with the qualifying service rendered by an employee for the purpose of pension and Gratuity and such qualifying service is to be calculated only from the date of approval against an approved post in the institution for payment of pension and gratuity. But the note-5 of Rule-4 is of no consequence to the present case in hand. The qualifying service of an employee is required to be calculated for the purpose of calculation of pension only from the date of appointment in service not from the date of approval as claimed. Since Rule-8(1) and 2(a) of the Pension Rules, 1981 deals with the matter relating to grant of pension and gratuity to an employee who retired from service. But the original writ petitioner having died during the pendency of the writ and being substituted by legal heirs and they are only concerned with the grant of family pension as provided under Rule-8(2)(b) of the Pension Rules, 1981 and for the death-cum-Retirement Gratuity. Therefore, for grant of family pension no qualifying service of the deceased employee is required to be counted and thereby the substituted petitioner No. 1 (the wife) is entitled to family pension under Rule-8(2)(b) of the Pension Rules, 1981. Learned counsel for the petitioners further submits that there is no bar or impediment for inclusion of the deceased-petitioner into the Pension Rules, 1981 as he is an employee of a fully aided direct payment Sanskrit Tol and in the decision of Sarat Chandra Parida (supra) this Hon'ble Court directed for inclusion of the said petitioner in the Pension Rules, 1981 notwithstanding his approval and receipt of block grant from 01.02.2009 under GIA Order 2009 which is squarely applicable to this case. Learned counsel for the petitioners further submits that paragraph-8 of the impugned letter under Annexure-8 also reinforce and justifies submission of the learned counsel for the petitioner. Learned counsel for the petitioners further submits that paragraph-8 of the impugned letter under Annexure-8 also reinforce and justifies submission of the learned counsel for the petitioner. The last limb of the argument of the learned counsel for the petitioner is that stipulation in paragraph-3 of the Government letter under Annexure-8 is liable to be quashed and deceased-petitioner's services ought to have been included into pension Rules, 1981 and substituted petitioner No. 1 would get family pension under Rule-8(2)(b) of the Pension Rules, 1981. The legal heirs of the deceased-petitioner are also entitled to the benefits of death-cum-retirement gratuity (DCRG) and other benefits including the appointment under Rehabilitation Assistance Scheme. 4. Controverting the averments made in the writ petition a counter affidavit has been filed by opposite party No. 2 wherein it has been submitted that the Government in School and Mass Education Department vide letter dated 31.08.2009 directed the Superintendent of Sanskrit Studies, Puri to approve the post of peons appointed in fifteen Prathama/Madhama (Aided) Sanskrit Tols stipulating the terms and conditions. Further it has been submitted the post of 45 Nos. of class-iv employees including the post of petitioner was created vide Govt. letter No. 2029/SME dated 20.01.2012. In the said letter, it was instructed to the Superintendent of Sanskrit Studies, Puri to approve the Class-IV posts w.e.f. 15.12.2008 as per the Government letter dated 20.01.2012 is available as per Annexure-4 in the writ petition. Further it has been submitted that the post of the petitioner was approved w.e.f. 15.12.2008 vide order No. 1021 dated 31.07.2012 of the Superintendent of Sanskrit Studies, Puri pursuant to Govt. order dated 20.01.2012 in the scale of pay Rs. 2550-55-3200/- under the ORSP Rules, 1998 stipulating the terms and conditions that the petitioner should not be included into GPF, Retirement benefit, pension fold as there is no scheme for inclusion of such employee of aided institution in the revised pension scheme 2005 and no guidelines has been formulated for contribution to GPF. However, GIS scheme is applicable to such employees, which is at par with the employees of Aided institution of the State and the said has been accepted by the petitioner and he is getting his monthly salary regularly since then. Further it has been submitted that the GIS amount as required to be deducted in respect of the petitioner is Rs. Further it has been submitted that the GIS amount as required to be deducted in respect of the petitioner is Rs. 7500/- which has already been deposited as per norm of Govt. The details of the amount deposited under Group Insurance Scheme has been reflected in prescribed format as available at Annexure-7 of the writ petition. He has not been allotted any GPF/CPF/A/c number as no guidelines has been formulated for contribution to GPF/CPF. The concept of the petitioner regarding receipt of CPF A/c number in the GIS on dated 04.10.2016 instead of GPF A/C number is not correct. Further it has been submitted that one Sachindra Prasad Behera, Peon of Kalandi Charan Sanskrit Vidyalaya, Padhuan in the district of Bahdrak filed W.P.(C) No. 24024 of 2015 before this Hon'ble High Court claiming the similar stand and this Hon'ble Court in their order dated 20.01.2016 directed the opposite party No. 1 to take a decision on the representation filed by the petitioner wherein the Government vide their order dated 11.07.2016 considered the claim of the petitioner and rejected being devoid of merit as per Annexure-A/2 to the counter affidavit. Further it has been submitted that the claim of the petitioner to quash letter dated 31.08.2009 of the opposite party No. 1 and to direct the opposite party No. 2 to bring the petitioner into the fold of the pension Rules 1981 and to allot a GPF account number and deduct GPF contribution instead of CPF from his salary and to grant of consequential benefit under the Pension Rules, 1981. 5. Mr. S. Samal, learned Standing Counsel for the School and Mass Education Department has strenuously submitted that no right accrued to the petitioner prior to 2008 and the appointment of the petitioner was against non sanctioned post, it is not an appointment in the eye of law. Learned Standing Counsel for the School and Mass Education Department further submits that the office order dated 31.07.2012 under Ahnexure-5 clearly mentioned about the conditions and the petitioner was conscious and cognizant of the said condition. Moreover, the petitioner has challenged the said conditions after four years. Learned Standing Counsel for the School and Mass Education Department further submits that the office order dated 31.07.2012 under Ahnexure-5 clearly mentioned about the conditions and the petitioner was conscious and cognizant of the said condition. Moreover, the petitioner has challenged the said conditions after four years. Learned Standing Counsel for the School and Mass Education Department further submits that paragraph-3 of the impugned letter dated 31.08.2009 under Annexure-8 has only reiterated the approval order of the petitioner dated 31.07.2012 under Annexure-5 and the petitioner having accepted those conditions and having enjoyed the benefits flowing out of the order of approval dated 31.08.2012, after lapse of four years has challenged the same in the present writ petition, which is not sustainable on the principle of waiver and estoppels. Learned Standing Counsel for the School and Mass Education Department further submits that so far as the prayer of the petitioner for grant of allotment of GPF account number, the same has become infructuous, since the original petitioner has died during the pendency of the writ petition and there is no occasion of deduction of GPF. 6. After having given thoughtful and anxious consideration to the rivalised submissions and on perusal of the records, the seminal issue which hinges on the hunch of the Bench is as to whether the deceased-petitioner can be said to have been governed under the Pension Rule, 1981, on the premise that the post in question was created vide order dated 15.12.2008 and the services have been approved vide order dated 31.07.2012 with effect from 15.12.2018 after introduction of Rule-3 (A) of the Pension Rule. 1981. In order to advert to the contentious issue, the relevant provisions, Rule-3 (A), Not. 1981. In order to advert to the contentious issue, the relevant provisions, Rule-3 (A), Not. No. 5 of Rule-4 and Rule 2(a-1) of the Pension Rule, 1981 are re-produced herein below for reference- "3-A. Notwithstanding anything contained in these rules, all persons appointed to services and posts in Aided Educational Institutions on or after the 1st day of January, 2005 shall not be eligible for pension as defined under rule-3 of the said rules but shall be covered by the New Restructured Defined Contribution Pension scheme as specified below: XXX XXX XXX Note-5 of Rule-4: The period of qualifying service rendered by an employee under any non-Government Aided Educational Institution affiliated to any University of the State shall count for the purpose of pension and gratuity in the event of his/her absorption in any of the Universities of the State or in any organization under the control and management of the State Government and the State Government shall bear liability only for the period of service of the employee rendered against any approved post in such institution. 2 (a-1) Death-cum-Retirement Gratuity means the death-cum-Retirement gratuity payable under Rule-9;) 7. On conjoint reading of the aforesaid provisions of Rule, 1981, there is no ambiguity that non-obstante clause mentioned in Rule-3 (A) overrides the other provisions of the rule whereby the appointees to the services on post in aided educational institution or and after first of January, 2005 become ineligible for pension as provided under Rule, 1981. There is no denial of the fact that the petitioner's appointment relates back to 1987 but the much awaited demand for creation of the post saw the light of the day, after creation and approval of the post of peon in Sanskrit Tols in the year 2008 much after the cutoff date on 01.01.2005. Moreover, non-obstante clause in Rule-3(A) puts an embargo on the post appointees after 01.01.2005. The resolution of the Government dated 15.12.2008 regarding creation of post does not spell out to extend any benefits from an anterior date. Therefore, it has to be treated as prospective in nature. Section 7-B(2) of the Odisha Education Act, provides that every private educational institution shall appoint qualified teachers and non-teaching staff by making selection in accordance with the procedure and criteria prescribed by the State Government. Therefore, it has to be treated as prospective in nature. Section 7-B(2) of the Odisha Education Act, provides that every private educational institution shall appoint qualified teachers and non-teaching staff by making selection in accordance with the procedure and criteria prescribed by the State Government. The yardstick provided by the Government for appointment of teaching and non-teaching staff in different private educational institutions is one of the criteria for giving appointment. Any appointment beyond the yardstick is violative of Section 7-B (2) of the Odisha Education Act, 1969 and accordingly the said appointments are not recognized under the Odisha Education Act and Rules framed thereunder. It is relevant to mention that Clause-15 of the Odisha Education (Payment of Grant-in-aid to the High Schools and Upper Primary Schools) Order, 1994 which inter alia provides that Grant in aid shall be admissible in respect of the post, which are held by qualified teachers appointed in conformity with the procedure prescribed by the Government on the basis of approved staffing pattern/yardstick. Since the present petitioner was given appointment by the managing committee on 10.08.1987 against a post of peon in a Sanskrit Tol, which was not available in the staffing pattern/yardstick and accordingly grant in aid was not admissible in respect of such post and in absence of admissibility of grant in aid in respect of the petitioners post, as he was appointed beyond yardstick, he cannot be treated as an employee of aided educational institution. The post of peon was created w.e.f. 15.12.2008 and thereafter the services of the present petitioner was admissible for payment of grant in aid and accordingly his service has been approved for payment of grant in aid w.e.f. 15.12.2008 and in view of the same the present petitioner attained the status of an employee of an aided educational institution w.e.f. 15.12.2008. 8. The decision rendered in the case of Sarat Chandra Parida v. State of Odisha and others: 2015 (II) ILR-CUT-94 is not applicable to the case in hand, in view of the Rule-3 (A) of Rules, 1981. 8. The decision rendered in the case of Sarat Chandra Parida v. State of Odisha and others: 2015 (II) ILR-CUT-94 is not applicable to the case in hand, in view of the Rule-3 (A) of Rules, 1981. On the contrary, the decision cited by the learned Standing Counsel for the School and Mass Education Department reported in the case of M.P. Housing Board and another v. Manoj Shrivastava: (2006) 2 SCC 702 wherein it has been inter alia held that in order an appointment to be valid the said appointment must be following due procedure of law and must be against a sanctioned post and another decision the Hon'ble Supreme Court in the case of Veer Kunwar Singh University Adhoc Teachers Association and others v. Bihar State University (CC) Service Commission and others reported in (2009) 17 SCC 184 at paragraph-25 have categorically held that "creation of sanctioned posts is a sine quo non for recruitment to the post of lecturers" are squarely applicable to the case in hand. 9. On the cumulative effects of the facts, reason and judicial pronouncements, this Court is not inclined to accede to the prayer of the deceased-petitioner as well as substituted petitioners. Accordingly, the writ petition is dismissed being devoid of merit.