Orissa High Court
Niranjan Das vs State Of Odisha And Others .... Opposite ... on 2 January, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22658 of 2023
Niranjan Das .... Petitioner
Mr. Sameer Kumar Das, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Ms. Jyostnamayee Sahoo, ASC for O.P. Nos.1 to 3
Mr. Sudhir Kumar Patra, Advocate for O.P. No.4
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER
05. 02.01.2025
This matter is taken up through Hybrid Mode.
2. Challenging the Office Order No.14267/H & F.W. dated
16.06.2023 under Annexure-9 passed by the Commissioner-cum-
Secretary to Government in Health and Family Welfare
Department-opposite party no.1, wherein and whereby the
representation of the petitioner dated 21.09.2022 with a prayer to
compute the pre-interruption service period from 02.05.1972 to
01.02.1976 towards qualifying service to arrive at 25 years of
qualifying service to be eligible to avail full pension, was rejected
purported to be considered to comply with the direction contained
in the order dated 03.11.2022 passed in W.P.(C) No.29163 of 2022
by this Court for consideration of his representation, the petitioner
has approached this Court by way of this writ petition invoking
extraordinary jurisdiction under Articles 226 & 227 of the
Constitution of India with the following prayer(s):-
Page 1 of 15
"Under the above circumstances, it is therefore humbly
prayed that the Hon‟ble Court be graciously pleased to
quash the Office Order No.14267/H & F.W.
dtd:16.06.2023 under Annexure-9 and be pleased to direct
the Opp. Parties to grant the benefit of past service of the
petitioner for the period 02.05.1972 to 31.01.1976 towards
qualifying service to enable the petitioner to get full
pension as per the provisions of Rule-36 of the OCS
(Pension) Rules, 1992 and to grant him all consequential
benefits within a stipulated period as deem fit and proper;
And/or pass any other writ/writs,
order/orders/direction/directions in the fitness of the case.
And for this act of kindness as in duty bound the petitioner
shall ever pray."
3. The petitioner joined as Surveillance Worker on 02.05.1972
pursuant to the Order No.1940 dated 28.04.1972 in the Non-
Medical Unit, NMEP, Jeypore Unit and continued till 31.01.1976 as
in the pensionable establishment of the Government and he was
allowed with the GPF Account No.1169/PH(O).
3.1. The petitioner was terminated vide Office Order No.1710
dated 20.04.1976 with retrospective effect from 01.02.1976 as he
was no longer required in the Department.
3.2. On consideration of the appeal-petition dated 19.05.1988
filed by the petitioner before the Government to reinstate him in
service, the Government decided to appoint the petitioner as Class-
IV employee against a vacant post under the Chief District Medical
Officer under unreserved category in terms of General
Administration Department Order No.29815 dated 22.09.1989.
3.3. Pursuant to such decision of the Government as
communicated vide Memo No.37056/H, dated 06.11.1988, the
Director of Health Services vide Memo No.471, dated 09.01.1990
Page 2 of 15
issued instructions to the Chief District Medical Officer, Cuttack to
appoint the petitioner. Accordingly, the Chief District Medical
Officer, Cuttack vide Order No.2834 dated 18th March, 1990
directed the petitioner to appoint as Class-IV employee at the
disposal of Principal Tutor, A.N.M. Training Centre, Danagadi as
"PEON".
3.4. The Principal Tutor, A.N.M. Training Centre, Danagadi vide
Memo No.52, dated 09.03.1990 appointed the petitioner as PEON in
the scale of pay of Rs.570 to 790/-. Having continued as such, the
petitioner got retired from service on 29.02.2012 on attaining the
age of superannuation.
3.5. Since the petitioner has worked for a period of around 22
years from 09.03.1990 to 29.02.2012 in order to avail the benefit of
full pension, the petitioner made a representation on 21.09.2022
before the opposite party no.1 and approached this Court by way of
writ petition, bearing W.P.(C) No.29163 of 2022, which came to be
disposed of on 03.11.2022 with a direction to the opposite party
no.1-the Principal Secretary to Government in Health and Family
Welfare Department to consider the representation of the petitioner.
3.6. The Commissioner-cum-Secretary to Government in Health
and Family Welfare Department-opposite party no.1 vide Order
No.HFW-MSIII-CASE-0009-2023-14267/H&F.W., dated
16.06.2023under Annexure-9 refused to reckon the period of service rendered by the petitioner as Surveillance Worker under NMEP in Koraput from 02.05.1972 till his termination with effect from 01.02.1976 towards qualifying service to arrive at 25 years for Page 3 of 15 the purpose of grant of full pension under the Odisha Civil Service (Pension) Rules, 1992 (for short, "the OCS(Pension) Rules, 1992"). 3.7. Being dissatisfied with the order dated 16.06.2023 under Annexure-9, the petitioner has approached this Court by way of this writ petition.
4. Mr. Sameer Kumar Das, learned counsel appearing for the petitioner contended that the order of rejection is technical in nature and the Government ought to have considered the period of service rendered during 1972-1976. He urged that the rejection of claim of the petitioner by the opposite party no.1-the Commissioner-cum- Secretary to Government in Health and Family Welfare Department on account of misconstruction and misreading of the provisions of the Rule 36 of the OCS (Pension) Rules, 1992.
4.1. He strenuously argued that the petitioner having worked as Class-IV employee (Attendant in ANM Training Centre at Danagadi in the district of Jajpur) from 09.03.1990 to 29.02.2012 the length of service rendered as Surveillance Worker from 02.05.1972 till 31.01.1976 should have been added towards qualifying service for the purpose of extending legitimate benefit of full pension.
5. Learned Additional Standing Counsel appearing for the State-opposite party nos.1 to 3 submitted that since the term "termination" is conceded as "removal" from service in view of Rule 36(C) of the OCS (Pension) Rules, 1992, the order dated 16.06.2023 under Annexure-9 rejecting the claim of the petitioner in just and proper which warrants no interference.
Page 4 of 155.1. Referring to paragraphs 10 and 11 of the counter affidavit she has read to the Court the following:-
"10. That, in reply to the averments made in paragraph-9 of the Writ Petition, it is humbly submitted that the order of Opposite Party-01 rejecting the claim of the petitioner, vide order No.14267 dated 16.06.2023, was done after consideration of all aspects of pension rule and his tenure of service from available records at Govt. level, as his appointment as Class-IV, is a fresh appointment and the petitioner, has availed all consequent benefits, in the new posting. The two spells of service, i.e., pre and post-interruption period are altogether separate services and of two different grades and of two different District. There is no such provision nor is there any specific Govt. Order to count two spells of two different services together and to allow service benefits.
11. That, in reply to the averments made in paragraph-10 of the writ petition, it is humbly submitted that his service was "terminated" which is equivalent to "removal". Hence, there was no scope for consideration under Rule 36(a) & (b) of OCS (Pension), Rule 1992. Hence, the prayer of the petitioner was not considered, since Rule 36(a) & (b) are not applicable for consideration of pension of the petitioner."
6. Heard Mr. Sameer Kumar Das, learned counsel appearing for the petitioner, Ms. Jyostnamayee Sahoo, learned Additional Standing Counsel appearing for the State-opposite party nos.1 to 3 and Mr. Sudhir Kumar Patra, learned counsel appearing for opposite party no.4.
Page 5 of 157. On perusal of impugned order dated 16.06.2023 vide Annexure-9, it transpires that the opposite party no.1 has relied on Rule 36(c) of the Odisha Civil Services (Pension) Rules, 1992. For better appreciation, the contents contained in paragraphs-7, 9 and 10 of the said impugned order are reproduced hereunder:-
"7. The facts remain that Sri Niranjan Das had joined in service as Surveillance Worker under NMEP in Koraput on 02.05.1972. While continuing as such, he was terminated from service on 31.01.1976 on administrative ground. On persistent request, after 14 years, purely on sympathetic ground he was allowed an altogether new service as Attendant in ANM training centre Jajpur which is no way connected to the terminated service as Surveillance Worker, Koraput. He joined in the new job on 09.03.19990 and while continuing as such retired on 29.02.2012.
9. The two spells of service i.e. pre and post-
interruption period is altogether separate services and of two different District cadre. There is no such provision nor there is any specific government order to count two spells of two different service to allow service benefits.
10. Sub rule (c) of Rule 36 of OCS Pension Rules, 1992 reads that nothing in clause (a) & (b) of Rule 36 shall apply to interruption caused by resignation, dismissal or removal from service. Here, the Petitioner was terminated from service for prolonged unauthorised leave causing dislocation to Government duty and his issue is not covered under the relevant rules. In view of the above, the prayer of the petitioner to compute the pre-interruption service period of the petitioner from 02.05.1972 to 01.02.1976 towards qualifying service to arrive at 25 years of qualifying Page 6 of 15 service to be eligible to avail full pension @ 50% of last emoluments and sanction of the same is rejected, being devoid of merit.
The representation dated 21.09.2022 of the petitioner under Annexure-18 to the WP(C) No-29163 of 2022 is disposed of.
All concerned may be intimated accordingly."
8. It may be deserved to take note of provisions of Rule 36 of the Odisha Civil Services (Pension) Rules, 1992, which read as follows:-
"36. Condonation of interruption in service.--
(a) Upon such conditions as it may think fit in each case to impose, the authority competent to fill the appointment held by a Government servant at the time of condonation is applied for, may condone all interruptions in his service.
(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.
(c) Nothing in Clauses (a) and (b) shall apply to interruption caused by resignation, dismissal or removal from service.
Explanation (1).-- Counting of Military Service towards pension carries with it condonation of break, but the period of break itself does not count for pension. Explanation (2).-- In the case of ex-State employees absorbed under Government after the merger of the ex- State in Orissa, the entire period of ex-State service rendered prior to date of merger although interrupted by breaks due to resignation or otherwise shall count for Page 7 of 15 pension subject to the conditions prescribed in Rule 16 but the period of interruption will not count."
8.1. From the aforesaid sub-rule (c) of Rule 36 thereof envisages "resignation", "dismissal", "or removal from service".
9. Scrutiny of order dated 20.04.1976 vide Annexure-2 of the Non Medical Unit Officer, N.M.E.P., Jeypore Unit shows that "the temporary services of Sri Niranjan Das, Surveillance Worker, Boipariguda Section is no longer required in this Department and terminated from service on 01.02.1976".
10. Thus it is apparent that the words "resignation", "dismissal", "removal" and "termination" have different connotations and significant meaning attached to each of them. The word "termination" cannot be construed to have equivalent meaning attached to the expression "removal from service".
11. The order of the opposite party no.1 as quoted hereinabove reveals that there has been glaring factual error. It seems that the opposite party no.1 was under impression that the service of the petitioner was terminated "for prolonged unauthorised leave causing dislocation to Government duty". Such a reason is contrary to the reason cited in the order of termination dated 20.04.1976 issued from the Office of the Non Medical Unit Officer, N.M.E.P., Jeypore Unit (Annexure-2).
12. To draw distinction among the words, namely, "resignation", "dismissal", "removal from service" Sri Sameer Kumar Das, learned Advocate referred to Rule 13 of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 (for short, "the OCS (CCA) Rules, 1962").
Page 8 of 1513. Glance at said Rule it could be discerned that the present case of "termination" does not fall within the scope of neither "resignation" nor does it fall within the ambit of specified nature of penalties inter alia "removal from service which shall not be a disqualification for future employment" vide clause (viii) and "dismissal from service which shall ordinarily be a disqualification for future employment" vide clause (ix) of Rule 13 of OCS (CCA) Rules. Therefore, it is obvious that the State Government has misdirected itself by construing the term "termination" would be comprehended within the meaning of "removal" and "dismissal" as spelt out in clause (viii) and clause (ix) of Rule 13 of OCS (CCA) Rules so as to apply such meaning to the context of extending full pension under the OCS (Pension) Rules.
13.1. It may be noteworthy to take note of Explanation appended to Rule 13 of the OCS(CCA) Rules, 1962 which envisages as follows:-
"Explanation.-- The following shall not amount to a penalty within the meaning of this rule.--
(a) Withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment.
(b) Stoppage of a Government servant at the efficiency bar in the time scale on the ground of his unfitness to cross the bar.
(c) Non-promotion, whether in a substantive or officiating capacity, of a Government servant, after Page 9 of 15 consideration of his case, to a service, grade or post for promotion to which he is eligible.
(d) Reversion to a lower service, grade or post of a Government servant officiating in a higher service grade or post on the ground that he is considered, after trial, to be unsuitable for such higher service, grade or post, or on administrative grounds unconnected with his conduct.
(e) Reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation.
(f) Replacement of the services of a Government servant whose services have been borrowed from the Central or State Government or an authority under the control or a State Government at the disposal of the authority which had lent his services.
(g) Compulsory retirement of a Government servant in a accordance with the provision relating to his superannuation or retirement.
(h) Termination of the services.--
(i) of a Government servant appointed on probation
during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; or Page 10 of 15
(ii) of a temporary Government servant in accordance with the terms of his appointment; or
(iii) of a Government servant employed under an agreement in accordance with the terms of such agreement."
14. It is manifest from the above that "termination of the service" of the petitioner does not amount to penalty within the meaning of Rule 13 of the OCS (CCA) Rules, 1962.
This Court for reference may have regard to Shyamapada Patra Vrs. Union of India, 2024 SCC OnLine Cal 2376, wherein it has been observed as follows:
"9. The law regarding the termination of service of a probationer is no more res integra. The Hon‟ble Supreme Court in the case of Shamsher Singh Vrs. State of Punjab, (1974) 2 SCC 831 = (1975) 1 SCR 814, clarified that „No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount of removal from service within the meaning of Art. 311 (2) of the Constitution‟.
10. The petitioner was appointed as Mazdoor by a letter dated 1st August, 2008 which contained a specific clause to the effect that if any information given is found to be false, he would be liable for Page 11 of 15 removal from service. After filing of the verification form it was ascertained that the petitioner‟s actual date of birth is 16th March, 1974. He passed the VIII class examination from Moukhali Gopinathpur Gourabbala Vidyalaya and later got admission in class VII at Hotar Adarsha Junior High School on the basis of a fake certificate. Such fact was ascertained upon verifying the school records of Biraj Mohini Junior Basic School as well as that of the Moukhali Gopinathpur Gourabbala Vidyalaya and to wriggle out of such findings the petitioner sought to contend that he was not even a student of Moukhali Gopinathpur Gourabbala Vidyalaya by placing reliance upon a certificate issued by the Headmaster of Moukhali Gopinathpur Gourabbala Vidyalaya issued on 9th February, 2009.
11. There is no dispute as regards the proposition of law that the termination of services of a probationer under the rules of his employment is neither per se dismissal nor removal. However, if the order visits the employee with evil consequences or casts aspersions against his character or integrity, it would an order by way of punishment and the Court can certainly interfere. Going by the tenor of the termination order it is incomprehensible that the same is punitive in nature. It is not a case that in the said order any aspersion or any stigmatic remark had been cast upon the petitioner. It is also not a case that the petitioner had been discharged on the ground of misconduct or inefficiency or any other similar reason. In course of verification, it was found that he had produced false certificate and accordingly, the authorities issued a show cause notice and upon considering the reply furnished, the Page 12 of 15 termination order was issued. The desirability towards issuance of the termination order was not based on any allegation of misconduct."
In the present case, the termination is on account of non- requirement of service from 01.02.1976. Therefore, the termination of service of the petitioner was not on account of punitive measure.
15. Be that as it may, the clause (b) of sub-rule (2) of Rule 47 of the OCS (Pension) Rules, 1992 stipulated that "in case of a Government servant retiring before completion of 25 years of qualifying service, but after completion of ten years of service, the amount of pension shall be proportionate to the amount of pension admissible under clause (a) of sub-rule (2) and in no case the amount of pension shall be less than the minimum amount of pension of Rs.3500/- or as shall be fixed by Government from time to time and maximum up to 50% of the highest pay and Grade Pay admissible to the Government employee w.e.f. dtd.01.12.2008".
16. It is thus clear that in order to be entitled for full pension, the petitioner is required to 25 years of qualifying service. Furthermore it has been clarified in Rule 36(b) of the OCS (Pension) Rules, that 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. Since, in the present case, the petitioner has rendered 22 years of service from the date of subsequent appointment from 09.03.1990 Page 13 of 15 to 29.02.2012, he sought for addition of short fall of three years from the earlier service rendered under the same Government from 02.05.1972 to 01.02.1976.
17. For analogy, it may not be irrelevant to take note of Note-1 of the Rule 47:-
"Note-1. Provided that while determining pension in voluntary retirement cases, full pension is to be allowed for maximum twenty five years of qualifying service instead of thirty years w.e.f. dtd. 01.12.2008. Where the total qualifying service reckons to less than twenty five years the amount of pension shall be proportionate to the amount of pension admissible under clause (a) of this rule."
18. In view of the above discussion, this Court is persuaded to hold that the opposite party no.1-the Commissioner-cum-Secretary to Government in Health and Family Welfare Department has adopted hypothetical approach to disallow the full pension to the petitioner. Due to misconception of fact as already mentioned hereinabove, the Commissioner-cum-Secretary to Government in Health and Family Welfare Department having proceeded on the basis of erroneous factual foundation, i.e., prolonged unauthorised leave causing dislocation to Government duty, the impugned order dated 16.06.2023 issued by the opposite party no.1 cannot be sustained. Accordingly, this Court sets aside the said impugned order No.HFW-MSIII-CASE-0009-2023-14267/H&F.W., dated 16.06.2023 passed by the Commissioner-cum-Secretary to Government in Health and Family Welfare Department under Annexure-9.
Page 14 of 1519. This Court further directs the opposite party no.1 to consider grant of full pension by adding the services rendered from 02.05.1972 to 01.02.1976 towards reckoning of the qualifying service, i.e., 25 years. It is hoped that the entire exercise shall be completed within a period of three months from the date.
20. With the aforesaid observation and direction, the writ petition stands disposed of.
(M.S. Raman) Judge Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Jan-2025 12:14:52 Page 15 of 15