Orissa High Court
Pradipta Kumar Pattanaik vs State Of Odisha And Others .... Opposite ... on 19 May, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.2879 of 2023
Pradipta Kumar Pattanaik .... Petitioner
Mr. Krishna Chandra Sahu, Advocate
-versus-
State of Odisha and others .... Opposite Parties
State Counsel
Mr. S.K. Patra, Standing Counsel
(For O.P. No.5)
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 19.05.2023
04. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard the learned counsel for the Petitioner, the learned Additional Standing Counsel appearing for the State-Opposite Parties and the learned Standing Counsel appearing for the Opposite Party No.5. Perused the writ petition as well as the documents annexed thereto.
3. The present writ petition has been filed by the Petitioner with a prayer to quash the impugned letter dated 23.11.2022 // 2 // under Annexure-16 and letter dated 26.11.2022 under Annexure- 17 and further for a direction to the Opposite Parties to sanction and disburse of disable family pension to him as due and admissible along with all consequential financial benefits by processing the pension application submitted by him within a stipulated period of time.
4. Mr. K.C. Sahu, learned counsel appearing for the Petitioner, at the outset, submitted that the father of the Petitioner, namely, one Benudhar Pattnaik was serving as a Compost Mistry under Agriculture District Officer, Kendrapara retired from Government service on 31.07.2006. Thereafter, the father of the Petitioner passed away on 05.11.2017. The mother of the Petitioner, namely, one Snehalata Pattnaik died on 29.01.2017, i.e., prior to the death of the father of the Petitioner. The father of the Petitioner after his retirement till his death on 05.11.2017 was getting pensionary benefits. The Petitioner, who is a permanently disabled person, was completely dependent on his parents.
5. After the death of the father of the Petitioner, the Petitioner who is having 77% disability as per disability certificate issued // 3 // by the competent medical authority on 31.12.2020 under Annexure-5 to the writ application. Thereafter, on 28.4.2021, the Petitioner applied for disabled family pension before the Opposite Party No.4 with the consent of other family members. The said application of the Petitioner was duly forwarded by the Agriculture District Officer, Kendrapara to the Chief District Agriculture Officer, Kendrapara and the Chief District Agriculture Officer, Kendrapara vide order dated 29.06.2021 forwarded the application of the Petitioner to the Opposite Party No.2.
6. While this was so, the Chief District Agriculture Officer, Kendrapara as per instruction of Opposite Party No.2, vide his letter dated 4.8.2021 forwarded the pension papers to the office of Opposite No.5. Since Opposite Party No.5-Principal Accountant General (A&E), Odisha, Bhubaneswar is the final authority in the matter, the Petitioner wait for a decision to be taken by the Opposite Party No.5.
7. More shockingly, the office of the Opposite Party No.5 vide letter dated 08.06.2022 returned the pension papers pertaining to the Petitioner to the office of Opposite Party No.3 // 4 // with a direction to resubmit the same after making a fresh medical examination with a clear disclosure with regard to the extent of disability of the Petitioner. On 19.7.2022, the Opposite Party No.4 wrote a letter to the CDMO, Kendrapara for medical reexamination of the Petitioner and for issuance of a fresh disability certificate specifically mentioning the details of disability. Accordingly, the CDMO, Kendrapara vide letter dated 16.08.2022 wrote a letter to the Superintendent of SCB Medical College, Cuttack for medical examination of the Petitioner with specific views as requested by the Opposite No.5. Finally, the Director-cum-Medical Superintendent, SCB MCH, Cuttack examined the Petitioner and finally opined that the Petitioner is having 71% of permanent disability vide his Certificate dated 30.08.2022. Further, it has been observed that with that kind of disability is unable to perform normal duties for earning his livelihood. Thereafter, on 12.10.2022, the Opposite Party No.3 has resubmitted the pension papers of the Petitioner to the Opposite Party No.5 along with his specific views. The Opposite Party No.5 most unfortunately vide letter dated 23.11.2022 again rejected the family pension proposal of the Petitioner by retuning // 5 // the Service Book of the Petitioner to the C.D.A.O., Kendrapara, who vide Memo dated 15.12.2022 has returned the same to the A.D.O., Kendrapara. Finally, vide letter dated 26.6.2022, the A.D.O., Kendrapara has intimated the Petitioner that the Accountant General, Odisha has returned the pension papers of the Petitioner. Being aggrieved by such decision of Opposite Party No.5, the Petitioner has approached this Court by filing the present writ petition.
8. Learned Additional Standing Counsel appearing for the Pension Sanctioning Authority and the State-Opposite Parties submitted that the Pension Sanctioning Authority after obtaining a certificate from the competent authority, i.e., CDM & PHO, Kendrapara, who in turn, prepared the report on the basis of the information provided by Director-cum-Medical Superintendent, Mental Health Institute, SCB MCH, Cuttack with regard to the disability of the Petitioner indicating that the Petitioner has 71% permanent disability and that the nature of disability is such that the Petitioner may not perform normal duties for earning livelihood, submitted the pension papers before the office of the Principal Accountant General (A&E), Bhubaneswar vide his // 6 // letter dated 12.10.2022 under Annexure-15. However, the office of the office of the Principal Accountant General (A&E), Bhubaneswar vide its letter dated 23.11.2022 returned family pension papers through the Pension Sanctioning Authority, i.e., Chief District Agriculture Officer, Kendrapara. Therefore, learned Additional Standing Counsel submitted that the PSA has not committed any illegality and they have not failed in discharging their duties. As such, the Petitioner cannot have any grievance against the Pension Sanctioning Authority. In such view of the matter, learned Additional Standing Counsel submitted that since the PSA has forwarded the pension papers to the Principal Accountant General (A&E), Odisha, Bhubaneswar, the Petitioner cannot have any grievance against the PSA. As such, the writ petition is not maintainable against the PSA.
9. Mr. S.K. Patra, learned Standing Counsel appearing for the Opposite Party No.5-Principal Accountant General (A&E), Odisha, Bhubaneswar, referring to the letter dated 23.11.2022 submitted that the case of the present Petitioner was duly considered by the Opposite Party No.5. He further contended // 7 // that in view of the clarification issued by the Finance Department vide letter dated 6.8.2022 to the effect that a dependent disabled child who is suffering from any disorder of disability after 25 years of age can be granted the benefits if manifestation of such disorder or disability occurred during life time of the Rtd. Govt. servant/pensioner. He further contended that in the present case, a Disability Certificate has been issued by the competent medical authority on 31.12.2020, which is after the death of the Government Servant /pensioner i.e. 05.11.2017. disorder Therefore, it was contended that such or disability has not occurred during life time of Rtd. Govt. Servant/Pensioner. Accordingly, the Petitioner was found not eligible to receive family pension and, therefore, the family pension papers were returned in original to the PSA. In such view of the matter, Mr. Patra submitted that the writ petition is devoid of merit and, accordingly, the same should be dismissed.
10. Having heard the learned counsels for the respective parties and upon a careful analysis of the contentions raised by the learned counsels before this Court, this Court observes that vide letter dated 23.11.2022 under Annexure-16, the Opposite // 8 // Party No.5 has rejected the disability family pension to the Petitioner solely on the ground that Medical Certificate in support of the disability was issued by the Medical Authority on 31.12.2020, which is after the death of the Government Servant/pensioner on 05.11.2017. In such view of the matter, it appears that the Opposite Party No.5 has presumed that the Petitioner had acquired the disability after the death of the Government Servant/pensioner. This Court on a careful analysis of the ground taken in rejection order dated 23.11.2022 is of the considered view that the same prima facie appears to be vague, baseless and presumptive.
11. On perusal of the OCS (Pension) Rules, 1992, more particularly, the provisions contained under Sub-rule (5) of Rule- 56 provides that if the son or daughter of a Government Servant is suffering from any disorder or disability of mind or is physically crippled or disabled so as to render him or her, unable to earn a living even after attaining the age of 25 years, the family pension shall be paid to such son or daughter for life subject to the conditions mentioned in the clause appended to Sub-rule(5) of Rule-56 of the OCS (Pension) Rules, 1992. Sub-
// 9 // clause (ii) of Clause-f to Sub-rule(5) of Rule-56 of the OCS (Pension) Rules, 1992 which was inserted vide amended dated 15.09.2015 to the Rules of 1992 provides that before allowing the family pension for life of any such son, daughter, the Sanctioning Authority shall ensure that the disability or disorder/handicap is of such a nature so as to prevent him or her from earning his or her livelihood, basing on the certificate obtained by the claimant from a Medical Officer not below the rank of Chief District Medical Officer setting out, as far as possible, the exact mental or physical condition of the child indicating the extent of disability suffered which is not less than 40%. OCS Pension Rules, 1992 is a rule framed and notified under the proviso to Article 309 of Constitution of India whereunder the Government of Odisha has formulated a set up rules to regulate the grant of pension, gratuity and other retirement benefits to the persons on retirement from service in connection with the affairs of State of Odisha. Rule-56(5) of the 1992 Rules which clearly provides that a disabled crippled son or daughter of a Government Servant/pensioner is entitled to family pension even after attaining the age of 25 years provided // 10 // the claimant/beneficiary produces a certificate from the CDMO indicating the extent and the nature of disability suffered by the claimant. Accordingly, the Pensioner has obtained a certificate issued by the Director-cum-Medical Superintendent, SCB MCH, Cuttack indicating that after evaluation and diagnosis it was found that the Petitioner is a Schizophrenia and his disability to be calculated 71% which is permanent in nature. Further, it has been observed by the competent medical authority under Annexure-14 vide letter dated 30.08.2022 that the nature of disability is such that the Petitioner is unable to perform normal duties for earning livelihood. According to this Court, the certificate issued by the competent authority clearly miss the requirement under Rule-56(5) of the OCS (Pension) Rules, 1992 thereby enabling the Petitioner to receive family pension even after attaining 25 years.
12. The rejection order dated 23.11.2022 issued by the Senior Accounts Officer of the office of the Opposite Party No.5 reveals that in view of the clarification issued by the Finance Department vide letter dated 06.08.2022 to the effect that a dependent disabled child who is a suffering from any disorder of // 11 // disability after 25 years of age can be granted the benefits if manifestation of such disorder or disability occurred during life time of the Rtd. Govt. servant/pensioner.
13. On a careful reading of the Finance Department clarification vide letter No.19813/F dated 06.08.2022, this Court is of the view that while issuing the clarification, the Joint Secretary to Government has exceeded his jurisdiction and in the shape of clarification an attempt has been made to amend the rules and to further incorporate certain pre-conditions for grant of disability family pension which are not available in sub- rule(5) of Rule-56 of the OCS (Pension) Rules, 1992. Therefore, the clarification dated 06.08.2022 runs contrary to the provisions contained in Rule-56 of OCS (Pension) Rules, 1992.
14. Accordingly, this Court has no hesitation to hold that the letter dated 06.08.2022 has been issued without having any jurisdiction and authority to issue such a letter. Moreover, the content of such letter are in conflict with the expressed provision contained in sub-rule(5) of Rule-56 of OCS (Pension) Rules, 1992. Accordingly, this Court has no hesitation to hold that letter dated 06.08.2022 of the Finance Department is illegal and // 12 // contrary to the rules.
15. In view of the aforesaid analysis of law as well as the fact of the case, this Court is also of the considered view that the order dated 23.11.2022 which has been passed keeping in view the clarification issued by the Finance Department vide letter dated 06.08.2022 is unsustainable in law and, accordingly, the same is hereby quashed. Further, the Pension Sanctioning Authority (Opposite Party No.3) is directed to resubmit the pension papers to the Opposite Party No.5 within a period of two weeks from the date of production of certified copy of this order by the Petitioner. Further, on such resubmission of the pension papers by the PSA (Opposite Party No.3), the Opposite Party No.5 shall do well to consider the case of the Petitioner in the light of the observation made hereinabove and strictly inconformity with the provisions of Rule-56(5) of the OCS (Pension) Rules, 1992 further keeping in view the disability certificate issued by the competent medical authority. Accordingly, it is directed that if there is no other legal impediment, the Opposite Party No.5 shall disburse the family pension in favour of the Petitioner within a period of four weeks // 13 // from the date of resubmission of the pension papers by Opposite Party No3.
16. With the aforesaid observations and directions, this writ petition stands disposed of.
( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 22-May-2023 12:24:09