Orissa High Court
State Of Odisha And Others vs Niranjan Biswal ......... Opp. Party on 30 August, 2018
Equivalent citations: AIRONLINE 2018 ORI 445
Author: S. Panda
Bench: S. Panda
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 6267 of 2018
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
State of Odisha and others ......... Petitioners.
-versus-
Niranjan Biswal ......... Opp. Party.
For petitioners : M/s-M.S. Sahoo,
Additional Government Advocate.
For O.P. : Mr. Manoj Kumar Mishra, Sr. Advocate
M/s-Tanmay Mishra and
D.K. Patnaik.
PRESENT:-
THE HONOURABLE KUMARI JUSTICE S. PANDA
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Date of Judgment: 30.08.2018
S. PANDA, J. The State of Odisha in Panchayati Raj Department
along with its functionaries, being the petitioners have assailed the
order dated 17.02.2016 passed by the Odisha Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No. 4396 (C) of 2010
wherein the present petitioners were directed to consider the
grievances of the applicants for grant of minimum pension by adding
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so much period of service from G.P. Secretary service with their
regular service as Village Level Workers to make them eligible to get
minimum pension and accordingly to pay them minimum pension
admissible from time to time from the date of their retirement.
2. The short fact of the case as delineated in the writ
petition tends to reveal that the present opposite party was initially
joined as Grama Panchayat Secretary on 05.09.1974. While he was
so continuing, pursuant to the resolution of the Panchayat Raj
Department dated 31.03.2008 and 07.02.2009 he was promoted to
the post of Village Level Worker ('V.L.W.' in short) by order dated
28.05.2009. While working as V.L.W., he retired from Government
service on 31.08.2010 on attaining the age of superannuation. After
his retirement, however, his case was not considered to get pension
and other retiral benefits on the plea that the service rendered by
him as Gram Panchayat Secretary prior to promotion as V.L.W. is
not a civil post and thereby he had not completed the minimum
qualifying period of 10 years of service to get the pension and retiral
benefits. Thus, the present opposite filed O.A. No. 4396 (C) of 2010
for a direction to the present petitioners to grant minimum pension
in faovur of the applicant by taking into account of his past service
rendered by him in the post of Gram Panchayat Secretary prior to
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his appointment as V.L.W. to the extent of short fall in accordance
with the OCS (Pension) Rules, 1992. He further prayed to release all
consequential and financial service benefits in favour of the
applicant accordingly. Similarly situated other employees have also
filed number of Original Applications with the self same prayer. All
such Original Applications were taken up together and disposed of
by the common impugned order dated 17.02.2016.
3. Learned Additional Government Advocate for the
petitioners submitted that the post hold by the applicant as Gram
Panchayat Secretary was not a civil post. The said service was
controlled under Gram Panchayat Act and Rules. Whereas the post
of V.L.W., which is a civil post was controlled by Orissa Village Level
Workers (Recruitment and Conditions of Service) Rules, 2008.
According to him the post of Gram Panchayat Secretary is not a
pensionable post under the Orissa Civil Service (Pension) Rules,
1992. In support of his contentions, he drew our attention of the
said rule to the following extent:-
Rule-18 provides the conditions subject to which service
qualifies. Sub Rule-2 (iii) prescribes the period of service paid from
contingencies shall not be counted for the purpose of pension.
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Sub Rule-6 of Rule-18 prescribes 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/pensionable 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.
Sub-Rule-6 was inserted by way of amendment on 01.09.2001.
4. He therefore, submitted that in view of these two
provisions, the person who are regularized after job contract period
and period of service paid from contigencies are getting pension.
Since the applicant is not coming under such provisions, his service
rendered as Gram Panchayat Secretary cannot be added for
computing the qualifying period of service for minimum pension. The
Tribunal since has not considered all such facts and passed the
impugned order, the same needs to be interfered with.
5. Learned counsel for the opposite party-applicant before
the Tribunal, however supported the impugned order and contended
that by notification dated 30.10.1998 the State Government has
promulgated an ordinance wherein the salaries of the Gram
Panchayat Secretary has been fixed. The Government has decided to
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pay them monthly consolidated remuneration of Rs.2200/- with
effect from 01.11.1998. The total expenses towards such
remuneration shall be borne by the State Government from
government contingencies. Therefore, they were getting salary from
the State Government. While working as Gram Panchayat
Secretaries, Orissa Village Level Workers (Recruitment and
Conditions of Service) Rules, 2008 came into force.
Rule-4 prescribes the Recruitment of Village Level Worker.
Sub Rule-1 of Rule-4 prescribes that the vacancies in the post
of Village Level Worker shall be filled up by means of selection from
amongst the Gram Panchayat Secretaries of the District in
accordance with Rule-8.
Sub Rule-2 of Rule-4 prescribes in case of non-availability of
eligible Gram Panchayat Secretaries the posts remaining unfilled,
shall be filled up by direct recruitment in accordance with Rule-9.
Rule-8 prescribes the Eligibility criteria and Procedures for
filling up the vacancies.
Sub Rule-1 of Rule-8 prescribes as follows:-
"In order to be eligible for appointment to the service, a
Gram Panchayat Secretary must have passed High School
Certificate Examination or any examination equivalent thereto
or have passed the Middle English School Examination or
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other examination of equivalent standard and have rendered at
least fifteen years of continuous services as Gram Panchayat
Secretary."
Sub-Rule 2 of Rule-8 provides that a Committee shall meet to
prepare a list of Gram Panchayat Secretaries of the district, suitable
for promotion to the post of V.L.W.. The case of such Gram
Panchayat Secretaries will be considered for promotion to the post of
V.L.W. in case they found suitable by the committee constituted for
such promotion. The Committee shall prepare a list of all Gram
Panchayat Secretaries of the district according to their date of
substantive appointment in the post of Gram Panchayat Secretary.
The Committee while considering the promotion cases of the suitable
employees and preparation of the list shall follow the provisions of
(i) The Orissa Civil Services (Zone of Consideration for
Promotion) Rules, 1988.
(ii) The Orissa Civil Services (Criteria for Promotion) Rules,
1992 and
(iii) The Orissa Civil Services (Criteria for Selection for
Appointment including Promotion) Rules, 2003.
Rule-9 of 2008 Rules however prescribes the procedure for
filling up the vacancies by direct recruitment.
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6. Learned counsel for the opposite party, therefore,
submitted that even if the Full Bench decision of this Court in the
case of Sri Adwait Chndra Jena v. Khandahata Grama Panchayat
and others, reported in 1998 (II) OLR 410 held that the post of Gram
Panchayat Secretary is not a civil post, however they are discharging
the duties under the State Government and getting their salaries
from the State Government as stated above. Their only contention
before the Tribunal was that after their services were regularized as
V.L.W. on promotion from the post of Gram Panchayat Secretary, a
few V.L.Ws. had not completed the qualifying period of service to get
the minimum pension. Therefore, the Tribunal recorded the two fold
submission of the applicants to the extent that:
(i) Entire service period of the applicants including G.P.
Secretary period is to be counted for pension.
(ii) If entire service period cannot be considered for pension,
then minimum pension is payable to the applicants.
According to him, the Tribunal, however considering all
such rules and regulations and the fact that a considerable length of
service the applicants have been rendered as Gram Panchayat
Secretaries, directed the present petitioners to add so much of period
of service from the G.P. Secretary service to that of the service of
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V.L.W. to make them eligible to get minimum pension. Hence the
order of the Tribunal need not be interfered with.
7. The Tribunal, while passing the impugned order, has
taken note of all the Rules and Regulations governing the field so far
as Gram Panchayat Secretaries are concerned as well as the Rules
and Regulations with regard to their promotion to the Village Level
Workers are concerned. While dealing with the 2nd submission of the
applicants regarding counting of service to get the minimum
pension, the Tribunal relied on the decision of this Court rendered in
OJC No. 2147 of 1991 dated 24.03.1992, i.e. in the case of
Settlement Class-IV Job Contract Employees Union, Balasore-
Mayurbhanj District v. State of Orissa and others. At
paragraph-10 of the judgment, this Court referred the decision
rendered by the Constitution Bench of the Apex Court in the case of
D.S. Nakara v. Union of India, reported in AIR 1983 SC 130 and
quoted relevant portion of the said judgment, to the following
extent:-
"antiquated notion of pension being a bounty, a gratuitous
payment depending upon the sweet will or grace of the employer,
not claimable as a right, and, therefore, no right to pension can be
enforced through court, has been swept under the carpet........".
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In paragraph-26, the goals which a pension scheme seeks to
subserve were noted. It was stated that a pension scheme
consistent with the available resources must provide that the
pensioner would be able to live (i) free from want, with decency,
independence and self respect, and (ii) at a standard equivalent
at the present retirement level. The Bench posed a question that
the approach being adopted by it may merit the criticism that if a
developing country like India cannot provide an employee while
rendering service a living wage, how can one be assured of it in
retirement. The question was answered by referring to the social
philosophy adopted by us. In paragraph-31, this aspect of the
matter was concluded by saying, inter alia, that pension is not an
ex-gratia payment, but it is a payment for the past service
rendered and it is a social welfare measure rendering socio-
economic justice to those who in the hey day of their life
ceaselessly toiled for the employer or an assurance that in their
old age, they would not be left in lurch."
8. The Tribunal also taken note of the Finance Department
Resolution, wherein it was decided that for the purpose of pension
and pensionary benefits to job contract employees, only their job
contract service period shall be added to the period of qualifying
service in regular establishment. It has also taken note of the
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circular issued by the Government in Revenue Department to the
extent that in case any job contract employee going to retire in a
particular year, his service may be regularized one month before his
retirement and they were entitled to get minimum pension.
9. In view of the discussions made hereinabove paragraphs,
this Court is of the opinion that the Tribunal has passed a reasoned
order. There is no error apparent on the face of it which warrants
interference by this Court in exercise of the jurisdiction conferred
under Article 227 of the Constitution of India.
The writ petition stands dismissed accordingly.
...........................
S. PANDA, J.
K.R. MOHAPATRA, J. I agree.
.................................... K.R. MOHAPATRA, J.
Orissa High Court : Cuttack The 30th August' 2018 /Arun