Orissa High Court
Suprava Jena vs State Of Odisha on 19 February, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.5399 of 2009
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Suprava Jena Aged about 37 years Wife of Late Sarat Kumar Das At/P.O.: Balarampur, P.S.: Ersama District: Jagatsinghpur ... Petitioner
-VERSUS-
1. State of Odisha Represented through Commissioner-cum-Secretary, School and Mass Education Department At: Secretariat Building, Bhubaneswar District: Khordha
2. Director, Secondary Education, Odisha At: Heads of Department Building, P.O.: Bhubaneswar, District: Khordha
3. Inspector of Schools Jagatsinghpur Education Circle At/P.O./District: Jagatsinghpur
4. Finance Department Represented through Secretary At: Secretariat Building P.O.: Bhubaneswar District: Khurda ... Opposite parties W.P.(C) No.5399 of 2009 Page 1 of 53 Counsel appeared for the parties:
For the petitioners : M/s. Mahendra Kumar Sahoo and Sanjib Kumar Rath, Advocates For the opposite parties : Mr. Biplab Mohanty, Additional Government Advocate P R E S E N T:
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 13.02.2024 :: Date of Judgment : 19.02.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE CHALLENGE BY THE PETITIONER:
Craving for benevolence, the petitioner, wife of Late Sarat Kumar Das, Classical Teacher of Janakadeipur G.P. High School, Sahada in Jagatsinghpur District, invoking provisions of Articles 226 and 227 of the Constitution of India, filed the present writ petition, wherein she beseeches the following relief(s):
"Under the above facts and circumstances of the case, it is humbly prayed that this Hon'ble Court be graciously pleased to issue rule NISI asking show cause from the opposite parties particularly opposite party No.4 as to why the petitioner as a beneficiary under the Group W.P.(C) No.5399 of 2009 Page 2 of 53 Insurance Scheme shall not be released of her entitled financial benefits of Rs.1,34,600/- instead of Rs.50,000/- in consonance with the said scheme at par with other employees governed under the said scheme and in the event insufficient show cause is filed, the said rule be made absolute by issuing appropriate writ/writs, direction/directions so as to enable the petitioner to receive rest of the amount under the Group Insurance Scheme within a stipulated time;
And/or in the alternative any other writ/writs, direction/ directions be passed so as to give complete relief to the petitioner;
And for which act of your kindness, the petitioner shall, as in duty bound, ever pray."
1.1. The grievance of the petitioner is that the opposite parties released Rs.50,000/- instead of Rs.1,25,000/- as per the revised Group Insurance Scheme towards sum assured and one time deposit of Rs.6,400/-. This apart she is entitled for an amount of Rs.3,200/-as financial assistance towards performance of obsequies.
THE PLEADINGS:
2. As the facts unfurled in the writ petition, it appears, being selected for the post of Classical Teacher, the husband of petitioner, Sahitya Acharya (Master in Arts, Sanskrit), joined on 25.06.1985 at Janakadeipur G.P. High School, Sahada under erstwhile Cuttack-III Circle, Cuttack (now in Jagatsinghpur Circle), which became W.P.(C) No.5399 of 2009 Page 3 of 53 Aided Non-Government Educational Institution within the meaning of Section 3(b) of the Odisha Education Act, 1969, with effect from 01.06.1994 by virtue of G.O. No.2594/SME, 23.08.1995 and the petitioner was entitled to draw Grant-in-Aid from this date.
2.1. The services of petitioner's husband got duly approved and he was allowed to receive equal scale of pay as attached to the said post at par with counterparts in Government Educational Institutions in terms of Rule 9 of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (for brevity, "Rules, 1974"). Accordingly, service book was opened in favour of the petitioner's husband like other employees of Aided Non-Government Educational Institutions (for short, "AEI") and time to time the scale of pay attached to the post of Classical Teacher has been revised.
2.2. The Group Insurance Scheme (in short, "GIS") was introduced with effect from 01.03.1974 as an optional Scheme for the Government employees. Thereafter, the said GIS became compulsory for Government employees with effect from 01.04.1976 by virtue of the Finance Department Resolution dated 15.04.1976. The GIS was also revised time to time in consonance with the introduction of different Odisha Revised Scale of Pay Rules. Although the said GIS was not initially available W.P.(C) No.5399 of 2009 Page 4 of 53 for the employees of AEI, said Scheme was made compulsory for all employees of AEI with effect from 01.04.1978 vide Education and Youth Services Department Resolution No.13322/EYS, dated 31.03.1978 and the rules and the procedures for effective implementation of the Scheme was introduced by the Finance Department in their Office Memorandum No.27085-F., dated 31.05.1978. Subsequent thereto, Finance Department Letter bearing No.37213 (13)-GIS(II) I/93-F, dated 28.08.1993 has come to be circulated with reference to earlier Office Memoranda.
2.3. The petitioner's husband, being an approved employee of AEI, a pass book bearing No. 3598 under GIS for the employees of Aided non-Government Educational Institutions was opened and deposits were made by deducting required amount from the salary as the AEI is solely entrusted with the drawing and disbursing and opening of pass book. Accordingly, on deduction in the pre-revised scale with effect from 01.01.1996, the pay range of the petitioner's husband was enhanced crossing the limit of Rs.5,601/- and above, which is evident from the pay revision statement vide Office Order No.5620 dated 26.05.2005 under the Odisha Revised Scale of Pay Rules, 1998 (for convenience, "ORSP Rules") and accordingly upon enhancement of the pay range being more than Rs.5,601/-, the quantum of one-time deposit W.P.(C) No.5399 of 2009 Page 5 of 53 of Rs.6,400/- became due to be deducted from the salary towards GIS. Hence the said amount of Rs.6,400/- has been deposited on 09.06.2005 as per the Scheme vide the GIS pass book (Annexure-3).
2.4. The petitioner's husband while continuing in his service as Classical Teacher expired on 24.03.2007. On such premature death, the petitioner was entitled to the total all financial benefits under the GIS, such as the sum assured of Rs.1,25,000/-, one-time deposit of Rs.6,400/-
and financial assistance for performance of obsequies of Rs.3,200/- (in toto Rs.1,34,600/-). It is affirmed by the petitioner that she has been paid only part of total claim of Rs.1,34,600/-.
2.5. It is asserted by the petitioner that as per revised Scheme, the deposit in respect of husband of the petitioner was duly made in the following manner by the drawing and disbursing authority, which is evinced from the GIS pass book (Annexure-3):
Deposits made under GI Scheme Date of entry in service (in case of new entrant) Salary bill for Amount of Progressive Date and signature of the the deduction deposit Executive Officer month/year towards GIS deposit December, 1,080.00 1,080.00 Sd/- 24.08.1996 1995 Administrative-cum-
Accounts Officer Office of the Inspector of W.P.(C) No.5399 of 2009 Page 6 of 53 Schools, Jagatsinghpur *** *** *** *** August 6/05 5,300.00 6,400.00 B.D. No.021425, dated 09.06.2005 and sent to F. Department vide T.O. Letter No.7135, dated 29.06.2005 Sd/- 06.09.2005 Administrative-cum-
Accounts Officer Office of the Inspector of Schools, Jagatsinghpur *** *** *** *** 2.6. Therefore, contending that the release of Rs.50,000/- is not in consonance with the terms of the Scheme, it is submitted that the petitioner has been discriminated inasmuch as other similarly circumstanced employees have been extended the benefit of Rs.1,34,600/-.
REPLIES OF THE OPPOSITE PARTIES TO THE CONTENTS OF THE WRIT PETITION:
3. Counter affidavit has come to be filed on 23.04.2013 by the opposite party No.3-District Education Officer, Jagatsinghpur.
3.1. It is stated by the opposite party No.3 at paragraph 6 of the counter affidavit that Late Sarat Kumar Das, being employee of AEI, was not entitled to avail all such benefits which are available to the Government Employees. Equal scale and facilities for employees of W.P.(C) No.5399 of 2009 Page 7 of 53 AEI are not admissible as available to Government servants. Late Sarat Kumar Das was under Grant-in-Aid fold with effect from 01.06.1994 and expired on 24.03.2007. The scale of pay of Late Sarat Kumar Das was revised under the ORSP Rules, 1998 notionally from 01.01.1996, but actual financial benefit was extended to him from 01.02.2005.
3.2. It is admitted that erroneous deduction, being made for the purpose of GIS, was sought to be rectified. Paragraph 7 of the counter affidavit runs as follows:
"That, in reply to the averment made in Paragraph 6, it is humbly submitted that Late Sarat Kumar Das was covered under Group Insurance Scheme and an amount of Rs.6400/- (1080/- + 5320/-) were deducted wrongly instead of Rs.2570/- from the salary of Late Sarat Kumar Das deceased Classical Teacher, Janakadeipur G.P. High School, Sahada and was sent to the Principal Secretary to Government, Finance Department vide Bank Draft No.021425, dated 09.06.2005, vide Letter No.7135 dated 29.06.2005 of the Inspector of Schools, Jagatsinghpur Circle, Jagatsinghpur including the GIS amount of other Aided High School employees of the total amount of the Bank Draft coming to Rs.8,08,400/- (Rupees Eight Lakh Eight Thousand Four Hundred) only."
3.3. It has been clarified by the answering opposite party that in terms of Resolution bearing No. 14254-- GIS-II- 41/94/F, dated 16.04.1994 of the Government of Odisha in Finance Department relating to "Group W.P.(C) No.5399 of 2009 Page 8 of 53 Insurance Scheme for the employees of Aided Non- Government Educational Institutions including 4 Universities of the State, R.E. College, Rourkela, Board of Secondary Education, Odisha, Cuttack and Council of Higher Secondary Education, Odisha, Bhubaneswar"
states thus:
"*** The question of extending further benefits under the Scheme at par with the Government employees with a view to providing higher insurance coverage to the family of the deceased employees was under consideration of the Government for sometime past and after careful consideration, Government have been pleased to decide that the Scheme shall stand modified to the extent as under:
1. Payment of one-time refundable deposit.--
Each and every employee under regular establishment shall make one-time refundable deposit during his/her service period as indicated below:
Sl. Pay range of Quantum of one-time
No. the employee refundable deposit
1. Upto Rs.1,060/- Rs.600/-
2. Rs.1,061/- to Rs.1,950/- Rs.1,080/-
3. Rs.1,951/- and above Rs.2,570/-
The existing employees who have already deposited the one-time refundable deposits at the old rates in accordance with the earlier Resolution/Office Memorandum referred to above shall have to deposit W.P.(C) No.5399 of 2009 Page 9 of 53 the balance/differential amount in order to reach the revised level of one-time deposit indicated above.
2. Benefit under the Scheme in case of untimely death while in service.--
(a) In the event of unfortunate untimely death of an employee while in service, his/her family shall be entitled to financial benefits at the enhanced rates as under:
Pay range of Quantum Sum Amount of Total employee of one-time assured financial deposit to under the assistance be GI Scheme for refunded performance of obsequies
1. Upto Rs. 600/- Rs.20,000/- Rs. 750/- Rs.21,350/-
Rs.1,060/-
2. Rs.1,061/- Rs.1,080/- Rs.30,000/- Rs. 1,250/- Rs.32,330/- to Rs.1,950/-
3. Rs.1,951/- Rs.2,570/- Rs.50,000/- Rs. 1,750/- Rs.54,350/-
(b) An employee after his/her retirement from service or relinquishing service on any ground whatsoever shall get refund of his/her one- time refundable deposits as indicated in column (4) of the above table given under para- 2(a) without interest.
***"
3.4. Thus, realizing erroneous deduction of Rs.6,400/- being made, the authority concerned sought to rectify the same and it has been explained in the counter affidavit as follows:W.P.(C) No.5399 of 2009 Page 10 of 53
"Finance Department in Letter No.4384/F, dated 01.02.2008 & which is enclosed as Annexure-B/3 has sanctioned the amount of assured sum to the beneficiary against the GIS Pass Book No.3598 belonging to late Sarat Kumar Das amounting to Rs.50,000/- in favour of Smt. Suprava Jena petitioner & wife of Late Sarat Kumar Das to which she is entitled. Smt. Jena the petitioner has received & admitted the amount of Rs.50,000/- vide Bank Draft No. MSA/65-386269 dt.25.01.08 but she had represented for sanction of Rs.1,25,000/-. The petitioner has also received and admitted the amount of Rs.6400/- i.e. one-time refundable GIS deposit vide Bank Draft No.214804, dated 23.03.2012 and financial assistance for performance of obsequies of Rs.1,750/- vide B.D. No.214805, dated 23.03.2012."
3.5. Affirming that though other employees have been accorded the higher slab of Rs.1,25,000/- as per their entitlement, there is no basis for the petitioner to contend that it was discriminated by grant of assured sum of Rs.50,000/-.
3.6. It is further pleaded by the opposite party No.3 that by virtue of Resolution bearing No.34360-- GIS-II- 57/2011/F, dated 05.08.2011 of the Government of Odisha in Finance Department it has been clarified that:
"*** After revision of pay in the Revised Scale of Pay Rules, 1998 and ORSP Rules, 2008, the Scheme has not been revised. Sanction and deposit of additional premium beyond entitlement (as per Finance Department Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994) is not allowed. Any W.P.(C) No.5399 of 2009 Page 11 of 53 excess deposit made beyond the entitlement as specified in the above resolution of Finance Department will not entitle the employee to claim enhanced assured sum under the Scheme as well as performances of obsequies, etc. Excess payment made by the DDO/Head of Office beyond the entitlement as specified above shall be recovered from the DDOs/Head of Offices or his subordinates responsible for such excess payment.
The above modified simplification of procedure shall come into force from the date of issue of the Resolution."
3.7. Thus, in sum and substance, it has been submitted by the opposite party No.3 that rectifying the mistake in excess deduction being made, the legitimate due has been disbursed to the petitioner, which she had accepted in 02.04.2012.
4. By way of rejoinder affidavit stemming on the Government of Odisha in Finance Department Resolution bearing No.8754-- GIS-(II)-2/1999-F, dated 09.03.1999, enclosed as Annexure-F/3 to the counter affidavit of the opposite party No.3, which came into force with effect from 01.04.1999, it has been urged by the petitioner that "in the instant case, the amount as one-time deposit of Rs.6,400/-, which has been deducted not only from the salary of the petitioner's husband but also from all the employees of aided institutions, as such, the deduction of the aforesaid amount being made on application of the principles of equality and equal treatment, now the opposite parties, W.P.(C) No.5399 of 2009 Page 12 of 53 who have deducted the same amount are estopped to say that the said amount was wrongly deducted from the petitioner's husband for which she shall not be entitled to". It has further been asserted that, "The revision of one-time deposit amount towards GIS being solely dependent on the revision of scale and the revised scale benefit being extended to the employees aided institutions, the consequential revision of one-time deposit deemed to be extended to the employees of aided institutions, in the absence of any express negative provision. Therefore, in the instant case, once deduction has been made on application of the principles of equal treatment, then the benefit cannot be denied on the basis of such deduction."
4.1. It is with respect to Resolution bearing No.34360-- GIS-
II-57/2011/F, dated 05.08.2011 of the Government of Odisha in Finance Department, as relied on by the opposite party No.3 in his counter affidavit, the petitioner has made fervent submission that subsequent to issue of aforesaid Resolution, another Finance Department Resolution bearing No.41803-- GIS-II-57/ 2011/F, dated 23.09.2011, came into force with effect from 01.10.2011, specified as follows:
"The employees not covered under the ORSP, Ruels 2008, shall be governed by the earlier Finance Department Resolution No.8754/F, dated 09.03.1999, Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994 as the case may be relating to the Scheme."W.P.(C) No.5399 of 2009 Page 13 of 53
4.2. With the aforesaid backdrop, the petitioner has claimed that the pay of the petitioner's husband has been fixed at Rs.8,575/- with effect from 01.02.2005, as is evident from Office Memo No. 5620, dated 26.05.2005 issued by the Inspector of Schools, Jagatsinghpur Circle, Jagatsinghpur. It is forcefully submitted that in view of aforesaid Resolution dated 23.09.2011, as the present case is covered under the ORSP Rules, 1998, but not the ORSP Rules, 2008, the benefits should have been extended to the petitioner as per the Finance Department Resolution dated 16.04.1994 as modified by the Finance Department Resolution dated 09.03.1999.
5. In response to aforesaid claim of the petitioner, by way of additional counter affidavit dated 05.09.2013, the opposite party No.3 submitted that as per the fitment of scale of pay and rate of deduction in the year 2005 as stipulated vide Finance Department Resolution No. 14254-- GIS (II) 41/94-F, dated 16.04.1994 read with Finance Department Resolution No.34360-- GIS-II- 57/2011/F, dated 05.08.2011, since the GIS was not revised for employees of AEI, deposit of additional premium beyond entitlement as per the Finance Department Resolution No.14251/F, dated 16.04.1994 is not allowed. In the said affidavit the opposite party No.3 attempted to justify that "the petitioner will get the W.P.(C) No.5399 of 2009 Page 14 of 53 benefit of GI Scheme pursuant to Resolution No.14251/F, dated 16.04.1994".
HEARING OF THE WRIT PETITION:
6. This matter was on board on 13.02.2024 under the heading "Admission". It is conceded by the counsel for the respective parties that the pleadings have been completed and can be disposed of on the narrow compass of interpretation of Finance Department Resolutions as to whether the petitioner is entitled to claim the benefits of GIS in terms of Finance Department Resolution No.8754/F, dated 09.03.1999 read with Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994, and therefore, the petitioner is entitled to sum assured to the extent of Rs.1,25,000/- coupled with financial assistance for performance of obsequies to the tune of Rs. 3,200/- and one-time refundable amount of Rs.6,400/-. Therefore, this Court heard Sri Mahendra Kumar Sahoo, learned Advocate for the petitioner and Sri Biplab Mohanty, learned Additional Government Advocate for the opposite parties.
SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
7. Sri Mahendra Kumar Sahoo, learned Advocate for the petitioner urged that it is apparent from Office Memo No.5620, dated 26.05.2005 issued by Inspector of W.P.(C) No.5399 of 2009 Page 15 of 53 Schools, Jagatsinghpur Circle, Jagatsinghpur that the revised scale of pay as per the ORSP Rules, 1998 of the deceased employee was Rs.4,750/- - 125 - Rs.7,500/- and his pay was fixed as on 01.01.1996 at Rs.4,750/-. It has been categorically stated that his pay on 01.02.2005 was arrived at Rs.8,575/-. He submitted that the factual aspects are not disputed by the opposite party No.3, but culled out the benefit under the Scheme in case of untimely death while in service at paragraph 4 of the additional counter affidavit dated 05.09.2013 to the effect that in terms of Resolution dated 16.04.1994, the petitioner is entitled to Rs.50,000/- as sum assured with amount of financial assistance for performance of obsequies at Rs.1,750/- showing quantum of one time- deposit to be refunded at Rs.2,570/-. He continued to argue strenuously that the opposite party No.3 ignored to refer to the Finance Department Resolution dated 09.03.1999 to the effect that said sum assured has been revised to Rs.1,25,000/- coupled with amount of financial assistance for performance of obsequies at Rs.3,200/- showing quantum of one time-deposit to be refunded at Rs.6,400/-. The opposite party No.3 has not objected to reliance placed by the petitioner in rejoinder affidavit on subsequent Finance Department Resolution dated 23.09.2011, whereby employees who are not covered under the ORSP Rules, 2008, are stated to be governed by Finance Department Resolution No.8754/F, W.P.(C) No.5399 of 2009 Page 16 of 53 dated 09.03.1999 read with Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994. Sri Mahendra Kumar Sahoo, learned counsel, therefore, strenuously submitted that the opposite party No.3 having merely laid stress on earlier Finance Department Resolution dated 05.08.2011 could not have justified the action of the opposite parties by referring to the terms of the Finance Department Resolution dated 16.04.1994.
8. Per contra, Sri Biplab Mohanty, learned Additional Government Advocate vehemently opposing the contentions of Sri Mahendra Kumar Sahoo, learned Advocate submitted that the petitioner has been extended the benefit in terms of appropriate Resolutions and the mistake being sought to be rectified and the petitioner having accepted the amount due as calculated in terms of Finance Department Resolution dated 16.04.1994, could not question the correctness of computation. He has pressed into service the contents of paragraphs 4, 5 and 6 of the additional counter affidavit filed by the opposite party No.3-District Education Officer, Jagatsinghpur, which are to the following effect:
"4. That, the Order No. GIS (II)-41/94--14254/F dated 16.04.1994 issued by the Finance Department, Government of Odisha, Bhubaneswar which is meant for the employees of Aided Non-Government High Schools etc. was in force at the time of W.P.(C) No.5399 of 2009 Page 17 of 53 deduction of one time G.I.S. refundable deposits in 2005 and the fitment of Scale of Pay, rate of deduction is mentioned below.
Pay Range Pay of Late Actual Amount Sum Financial
of the Sarat quantum of deposited assured Assistance
employee Kumar one time erroneo- for
in the pre- Das, refundable usly perform-
revised Husband deposit to ance of
Scale of the be made obsequies
(ORSP petitioner
Rules, under
1989) ORSP
Rules,
1998 in
the year-
2005
Rs.1,951/- Rs.5,875/- Rs.2,570/- Rs.6,400/- Rs. Rs.1,750/-
& above 50,000/-
The fitment of Scale of Pay and rate of deduction in the year, 2005 as stipulated vide the Resolution No. GIS (II) 41/94-- 14254/F, dated 16.04.1994 of Finance Department, Government of Odisha is enclosed as Annexure-A/3 of counter affidavit filed by the opposite party No.3, i.e., District Education Officer, Jagatsinghpur is quoted below.
Pay range of the employees Quantum of one-time refundable deposit
1. Upto Rs.1,060/- Rs. 600/-
2. Rs.1,061/- to Rs.1,950/- Rs.1,080/-
3. Rs.1,951/- & above Rs.2,570/-
Benefits under the scheme in case of untimely death while in service.--
Pay range Quantum of Sum assured Amount of Total payment
of the one-time under the GIS financial
W.P.(C) No.5399 of 2009 Page 18 of 53
employee deposit to assistance
be re-fixed for
performan
ce of
obsequies
(i) Upto Rs. 600/- Rs. 20,000/- Rs. 750/- Rs. 21,350/-
Rs.1,060/-
(ii) Rs.1,061/- Rs. 1,080/- Rs. 30,000/- Rs.1,250/- Rs. 32,330/-
to
Rs.1,950/-
(iii) Rs.1,951/- Rs.2,570/- Rs. 50,000/- Rs.1,750/- Rs. 54,320/-
and above
5. That, no guideline of the Finance Department was issued in regard to fitment of Scale of Pay and deduction of one-time G.I.S. refundable deposit for the employees of Non-Government Aided Educational Institutions including the Husband of the petitioner in between 1994 & 2005. The guideline/circular with regard to fitment of Scale of pay and rate of deduction of G.I.S. in favour of the petitioner in Resolution No. GIS (II)-41/94--14254/F, dated 16.04.1994 of Government of Odisha is enclosed as Annexure A/3 of counter affidavit.
6. That, pursuant to Resolution No. 34360-- GIS-II-
57/2011/F, dated 05.08.2011 of Finance Department, Government of Odisha and which stipulates the simplification of procedure of deposit and payments under Group Insurance Scheme for the employees of Aided Non-Govt. Educational Institutions, Board of Secondary Education, Odisha, Cuttack- etc. and which is enclosed as Annexure- G/3 ofthe Counter Affidavit and the relevant portion is quoted below:
'After revision of pay in the revised scale of pay Rules, 1998 and ORSP Rules, 2008, the scheme has W.P.(C) No.5399 of 2009 Page 19 of 53 not been revised. Sanctioned and deposit of additional premium beyond entitlement (as per FD Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994) is not allowed. Any excess deposit made beyond the entitlement as specified in the above resolution of F.D. will not entitle the employee to claim enhanced assured sum under the scheme as well as performance of obsequies etc.' The G.I. Scheme has not been revised for the employees of Non-Government Aided High Schools of the State including Late Sarat Kumar Das, husband of the petitioner and deposit of additional premium beyond entitlement as per F.D. Resolution No. 14251 dated 16.04.1994 is not allowed. So, the petitioner will get the benefit of G.I. Scheme pursuant to Resolution No. 14251, dated 16.04.1994."
8.1. It is with vehemence Sri Biplab Mohanty, learned Additional Standing Counsel contended that in terms of Resolution dated 16.04.1994, as the pay range of the deceased employee-petitioner falls under "Rs.1,951/- & above", the sum assured under GIS would be Rs.50,000/- with amount of financial assistance for performance of obsequies to the tune of Rs.1,750/- and quantum of one-time deposits to be refunded is at Rs.2,570/-. Such amount being disbursed and paid to the petitioner, nothing is payable by the opposite parties. Therefore, he prayed for dismissal of the writ petition.
DISCUSSIONS AND ANALYSIS:
W.P.(C) No.5399 of 2009 Page 20 of 539. As a prelude, it may be fruitful to have reference to what is interpreted by this Court in Dipti Roy & Others Vrs. State of Odisha & Others, 2004 (II) OLR 718 in the context of ORSP Rules, 1998. It has been observed by this Court as follows:
"11. The said Resolution bearing No.28933/V (S&M) E-
34/98-SME of the Government of Odisha, Department of School and Mass Education was published in the Supplement to the Odisha Gazette dated 10th December, 1999. Para 2(1) of the said Resolution stipulated as follows:
"2.(1)Save what is otherwise provided in this resolution, the revised scales of pay shall apply to the teaching and non-teaching staff in whole time employment of Aided Non-Government High Schools / Primary / Upper Primary Schools / Sanskrit Colleges and Tolls / Senior and Junior Madrasas, which are receiving Grants-in-Aid.
***
18. Most of the factual aspects averred in the writ petitions stand unassailed. Admittedly, in consonance with Rule 9 of the 1974 Rules, the member of the teaching and non-teaching staff working in different Private Aided Educational Institutions are entitled to receive the same pay, dearness allowance and subsistence allowance, etc. as admissible to their counterpart in the Government Educational Institutions. This rule casts an onerous duty upon the Government to see that different standards are not maintained in payment of salary W.P.(C) No.5399 of 2009 Page 21 of 53 or other allowances between the teachers working in Government Institutions and Private Aided Institutions.
19. *** As has been stated earlier the salary cost of teaching and non-teaching staff of Private Educational Institutions has to be same as that of their counterpart working in the Government Educational Institutions. Legislature in its wisdom having stipulated such a condition in Rule 9 of the 1974 Rules vis-à-vis the Grant-in-Aid Order, the State Government is legally liable to make provisions for payment of salary to the employees working in Private Aided Educational Institutions at par with their counterpart in Government Educational Institutions.
***
24. While arriving at such conclusion this Court has taken note of the fact that the State Government has already granted the revised scales of pay to the teaching and non-teaching staff of Private Aided Colleges. Providing aid to colleges is obligatory whereas providing funds for imparting education in High Schools/Upper Primary Schools and other schools is mandatory. The school teachers play an important role in building the nation. They definitely discharge pious duties with a crusade in their mind. They cannot be expected to discharge such pious and onerous duties while passing through financial stringencies. Surprisingly, this aspect was not kept in mind by the State."W.P.(C) No.5399 of 2009 Page 22 of 53
9.1. Identical view is also taken in Bijay Ketan Khatua Vrs. State of Orissa, 2015 (I) OLR 452 = 120 (2015) CLT 98. It has been held that:
"8. The connotation 'pay' attached to Rule 9 of the 1974 Rules means, the amount drawn monthly by a Government servant as pay which has been sanctioned for a post held by him substantively or in an officiating, capacity, or to which he is entitled by reason of his position in a cadre. In State Bank of India Vrs. K.P. Subbaiah, (2003) 11 SCC 646 = AIR 2003 SC 3016, the Apex Court held that pay is essentially a consideration for the services rendered by an employee and in the remuneration, which is payable to him. Remuneration is the recurring payment for the services rendered during tenure of employment. Pay and salary are necessarily not interchangeable concepts. Their meanings vary depending upon provisions providing for them.
9. As per Concise Oxford Dictionary, 8th Edn. (1990) the word "pay" in its ordinary significance in relation to service means "to give what is due for service done".
10. 1974 Rules has got its statutory force. Therefore, there should not be any deviation from the Rules. Rule 9(1) of 1974 Rules states that an employee of an aided educational institution shall draw the same pay and D.A. as is admissible to his counterpart in Government educational institutions and this benefit cannot be denied to the employee of aided educational institutions. When the facts are admitted that the petitioner is working as Instructor in Tailoring in aided educational institution in the W.P.(C) No.5399 of 2009 Page 23 of 53 scale of pay of Rs. 975-1660/- as per the ORSP Rules, 1989, the Instructors of the Government Colleges have been extended the benefit of scale of pay of Rs.1400-2600/- as per the said pay Rules, the authorities could not have denied the pay-scale admissible to the post Instructor in Tailoring in Government Colleges to such Tailoring Instructors working in Aided Colleges, who are working in the same working condition. Similar question came up for consideration in the case of Gajendra Kumar Mishra Vrs. State of Orissa, OJC No. 1036 of 1995 [disposed of on 28.01.2000] where this Court has already held by order dated 28.1.2000 that the Instructors in Tailoring in Aided Educational Institutions are also entitled to get the same scale of pay as available to their counterparts in the Government Colleges. So far as the post of Tailoring Instructors in Government Colleges is concerned, it is also equivalent to the Instructors in Tailoring in non- Government Colleges."
10. Such being the position as expounded by this Court, it is with unambiguous terms extended to the employees of AIE as follows:
"Group Insurance Scheme for the Employees of Aided Non-Government Educational Institutions No.37213 (13)--GIS (II) I/93-F Finance Department the 28th August, 1993 To The Department of Higher Education; Government of Orissa, Bhubaneswar W.P.(C) No.5399 of 2009 Page 24 of 53 Department of School & Mass Education, Government of Orissa, Bhubaneswar Director of Higher Education, Bhubaneswar Director of Secondary Education, Bhubaneswar Director of Elementary Education, Bhubaneswar Registrar, Utkal University, Vani Vihar, Bhubaneswar Registrar, Berhampur University, Bhanja Vihar, Berhampur Registrar, Sambalpur University, Jyoti Vihar, Sambalpur Registrar, Orissa University of Agriculture and Technology, Bhubaneswar Principal, University College of Engineering, Burla, Sambalpur Principal, Regional Engineering College, Rourkela Secretary, Board of Secondary Education, Orissa, Cuttack Secretary, Council of Higher Secondary Education, Orissa, Bhubaneswar Sub.: Group Insurance Scheme for the employees of Aided Non-Government Educational Institution including four Universities of the State, Regional Engineering College, Rourkela, Board of Secondary Education, Odisha, Cuttack, Council of Higher Secondary Education, Odisha, Bhubaneswar.
Ref.: Education and Youth Services Department Resolution No.13322-EYS., dated the 31st March, 1978, read with Finance Department Office Memorandum No.27085-F, dated the 31st May, 1978, Finance Department Office Memorandum No.25487-F., dated the 15th May, 1979, Finance Department Office Memorandum No.44639-F., dated W.P.(C) No.5399 of 2009 Page 25 of 53 the 3rd September, 1980, Finance Department Office Memorandum No.24501-F., dated the 21st June, 1985, Finance Department Office Memorandum No.6870-F., dated the 24th February, 1988.
The Group Insurance Scheme for all the employees in regular establishment of--
(i) Aided Non-Government Educational Institutions,
(ii) Four Universities, namely Utkal University, Berhampur University, Sambalpur University and Orissa University of Agriculture and Technology,
(iii) Regional Engineering College, Rourkela,
(iv) Board of Secondary Education, Odisha, Bhubaneswar has been made compulsory. ***"
10.1. It is affirmed by way of additional counter affidavit filed by the opposite party No.3-District Education Officer, Jagatsinghpur that with reference to Resolution dated 16.04.1994, since the pre-revised scale of pay under the ORSP, 1989 was at Rs.1,951/- and above, and the pay of Late Sarat Kumar Das, husband of the petitioner under the ORSP Rules, 1998 in the year 2005 was at Rs.5,875/-, the sum assured is calculated at Rs.50,000/- with financial assistance for performance of obsequies of Rs.1,750/- and actual amount of one-time refundable deposit was to be at Rs.2,570/- against which Rs.6,400/- was erroneously deducted. As it W.P.(C) No.5399 of 2009 Page 26 of 53 appears the opposite parties have admitted to have paid sum assured under the GIS at Rs.50,000/- with amount of financial assistance for performance of obsequies at Rs.1,750/- and quantum of one-time deposit refundable is at Rs.2,570/-. Glaringly, the counter affidavit and additional counter affidavit are silent as to adherence to amendment of the Finance Department Resolution dated 16.04.1994 by virtue of the Finance Department Resolution dated 09.03.1999.
10.2. It may be worthwhile to refer to Finance Department Resolution dated 09.03.1999:
"No. G.I.S.(II)-2/99-- 8754 /F. Government of Orissa Finance Department Resolution Bhubaneswar, the 09.03.1999.
Sub: Group Insurance Scheme for Government Employees.
The Group Insurance Scheme for Government Employees, which was introduced with effect from 01.03.1974 vide Finance Department Resolution No. 2594/F., dated 25.01.1974 as an optional scheme, was made compulsory with effect from 01.04.1976 in Finance Department Resolution No. 19013/F, dated 15.04.1976 with a view to providing financial benefits to the family of a Government employee who meets untimely death while in service. In 1985, the scheme was revised in Finance Department Resolution No. 21037/F, dated 18.05.1985 read with Resolution W.P.(C) No.5399 of 2009 Page 27 of 53 No. 47215/F, dated 31.12.1985 by doubling the quantum of one-time deposit as well as the benefits under the sum assured and revising the pay range due to introduction of revised pay range due to introduction of revised pay scales as per Pay Commission Report. Then in 1987 the Scheme was under revised in Finance Department Resolution No. 42944/F, dated 10.09.1987 by enhancing the quantum of one-time deposit as well as the sum assured. Since inception, the Scheme has gone a long way in providing some measure at social security to the families of deceased employees.
Now after introduction of revised pay scales as per ORSP Rules, 1989 the question of revising pay Range and enhancing benefits under the Scheme was under active consideration of Government. After careful consideration, Government have been pleased to decide that the Scheme shall stand modified to the extent as under:
1. Payment of higher assured sum.--
(a) In the event of untimely death of a Government employee while in service his/her family shall be entitled to not higher assured sum from Finance Department, as follows:
Pay Range of Employees Sum assured under the GIS
(i) Upto Rs.3,600/- Rs. 50,000/-
(ii) Rs.3,601/- to Rs.5,600/- Rs. 75,000/-
(iii) Rs.5,601 and above Rs. 1,25,000/-W.P.(C) No.5399 of 2009 Page 28 of 53
(b) A Government employee who survives the period of service shall not refund of his one-time deposit, without interest thereon after his/her retirement from service or on relinquishing the service on any other ground.
2. Contribution towards one-time refundable deposit.--
(a) In order to enable Government to pay higher benefits, every regular Government employee shall make one-time refundable deposit during his/her service period as indicated below:
Pay Range of Employees Quantum of one-time refundable deposit
(i) Upto Rs.3,600/- Rs. 1,000/-
(ii) Rs.3,601/- to Rs.5,600/- Rs. 2,700/-
(iii) Rs.5,601 and above Rs. 6,400/-
The regular employees who have already given the one-time deposit at the old rates in accordance with the earlier Resolutions referred to above, shall deposit the balance amount in order to reach the revised level of one-time deposit prescribed above.
(b) The balance amount of one-time deposit in order to reach the level of deposits as indicated above shall to realize from the regular Government employee in one lump sum by the end of April, 1999. To enable a Government employee to meet the additional amount of the deposit, an equivalent amount of advance of boarding interest may be granted. In case of a Government servant who enters Government service on or after 1st April, 1999, he/she may be granted an appropriate amount of interest free advance in W.P.(C) No.5399 of 2009 Page 29 of 53 order to enable him/her to make the one-time deposit.
(c) The amount of advance granted for the purpose shall be recovered in 10 equal monthly instalments from the salary for the month of April, 1999 payable in May, 1999. In case of a new entrant, the recovery of advance shall commence from his/her salary for the first month of his/her appointment.
Total financial benefit under the modified Scheme.--
In the event of untimely death of a Government employee while in service, his/her family shall be entitled to the following benefits:
Pay range Quantum of Sum assured Amount of Total payment of the one-time under the GIS financial employee deposit to assistance be re-fixed for performan ce of obsequies
(i) Upto Rs.1,500/- Rs.50,000/- Rs.1,800/- Rs. 53,300/-
Rs.3,600/-
(ii) Rs.3,601/- Rs.2,700/- Rs.75,000/- Rs.2,500/- Rs. 80,000/-
to Rs.5,600/-
(iii) Rs.5,601/- Rs.6,400/- Rs.1,25,000/- Rs.3,200/- Rs.1,34,600/-
and above
3. The above modifications shall come into effect from 1st April, 1999."
10.3. In the additional counter affidavit dated 05.09.2013 the opposite party No.3 emphasised upon entitlement of the petitioner in terms of Finance Department Resolution No. GIS (II) 41/94-- 14254/F, dated 16.04.1994 W.P.(C) No.5399 of 2009 Page 30 of 53 (Annexure-A/3 to the counter affidavit filed on 23.04.2013) and justified its action of disbursement of Rs.50,000/- towards sum assured under the GIS with financial assistance for performance of obsequies at Rs.1,750/- and Rs.2,570/- as quantum of refundable of one-time deposit. However, said opposite party in the additional counter affidavit conspicuously ignored to comment upon the status of modified Finance Department Resolution No. GIS (II) 2/99-- 8754/F, dated 09.03.1999 (Annexure-F/3 to the counter affidavit).
10.4. In the counter affidavit the District Education Officer-
opposite party No.3 has candidly admitted as follows:
"The petitioner has also received and admitted the amount of Rs.6,400/-, i.e., one-time refundable GIS deposit vide Bank Draft No.214804, dated 23.03.2012 and financial assistance for performance of obsequies of Rs.1,750/- vide Bank Draft No.214805, dated 23.03.2012."
10.5. When it is admitted by the opposite party No.3 that the petitioner was refunded Rs.6,400/-, it is obvious that the "pay range of the employee" is conceded as "Rs.1,951/-". Significantly, said amount of Rs.6,400/- is shown in the GIS pass book (Annexure-3) to have been deducted on 09.06.2005. Therefore, making statement in paragraph 4 of the counter affidavit that the deductions in GIS was made as per "the fitment of Scale of Pay and W.P.(C) No.5399 of 2009 Page 31 of 53 rate of deduction in the year, 2005 as stipulated vide the Resolution No. GIS (II)41/94-14254/F, dated 16.04.1994" is incorrect, as by then said Resolution has suffered modification by virtue of the Finance Department Resolution No. GIS (II) 2/99-- 8754/F, dated 09.03.1999. Nonetheless, in the counter affidavit the opposite party No.3 with respect to application of modified Finance Department Resolution No. GIS (II) 2/99-- 8754/F, dated 09.03.1999, submitted as follows:
"*** the Resolution No. GIS (II) 2/99-- 8754/F, dated 09.03.1999 of Finance Department, Government of Odisha is only applicable to Government employees but not to Aided High (School) employees."
10.6. To buttress, such a stance, the learned Additional Standing Counsel has taken this Court to Resolution No.34360-- GIS-II-57/2011-F, dated 05.08.2011 of Finance Department, Government of Odisha (Annexure- G/3 to the counter affidavit) wherein it has been stated that "after revision of pay in the Revised Scale of Pay Rules, 1998 and ORSP Rules, 2008, the Scheme has not been revised and deposit of additional premium beyond entitlement (as per Finance Department Resolution No.14251/F., dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994) is not allowed."
10.7. Such plea of the opposite party No.3 is unavailable for the same not only runs counter to legal position W.P.(C) No.5399 of 2009 Page 32 of 53 enunciated in the case of Dipti Roy (supra), but also contrary to Finance Department Resolution No.41803-- GIS-II-57/2011-F, dated 23.09.2011 (vide Annexure-7 available at rejoinder affidavit). Sri Mahendra Kumar Sahoo, learned Advocate for the petitioner has argued that the opposite party No.3 misdirected himself by taking shelter of the Finance Department Resolution dated 16.04.1994, as the same got revised/modified in the Finance Department Resolution dated 09.03.1999. Furthermore, after Resolution No.34360-- GIS-II- 57/2011-F, dated 05.08.2011, the very next month Finance Department has brought out another Resolution on 23.09.2011, which has conveniently been omitted by the opposite party No.3 in his replies.
10.8. For ready reference it may be beneficial to refer to Finance Department Resolution dated 23.09.2011, which stands thus:
"Government Of Orissa Finance Department **** No. 41803-- GIS-II-57/2011/F., dated 23.09.2011 RESOLUTION Sub.: Group Insurance Scheme for Government Employees, Employees of Aided Non-Government Educational Institutions, Board of Secondary Education, Odisha, Cuttack, Council of Higher Secondary Education, Odisha, Bhubaneswar, Four Universities, i.e., Utkal University, Vani Vihar, W.P.(C) No.5399 of 2009 Page 33 of 53 Berhampur University, Bhanja Bihar, Sambalpur University, Jyoti Vihar & Orissa University of Agriculture & Technology, Bhubaneswar & Employees working under NACs/Municipalities/ Municipal Corporations of the State.
Ref.: Finance Department Resolution No.8754/F, dated 09.03.1999, No.14251/F and 14254/F, dated 16.04.1994.
1. The Group Insurance Scheme for Government Employees which was introduced with effect from 01.03.1974 vide Finance Department Resolution No.2594/F, dated 25.01.1974 as an optional Scheme, was made compulsory with effect from 01.04.1974 in Finance Department Resolution No.19043/F, dated 15.04.1976 with a view to providing financial benefit to the family of a Government Employee who meets untimely death while in service.
2. Similarly, the employees of the
(i) Aided Non-Government Educational Institutions,
(ii) Four Universities,
(iii) Board of Secondary Education, Odisha, Cuttack,
(iv) Council of Higher Secondary Education, Odisha, Bhubaneswar were also covered under the Scheme subsequently vide erstwhile Education & Youth Services Department Resolution No.13322/EYS, dated W.P.(C) No.5399 of 2009 Page 34 of 53 31.03.1978 read with Finance Department Office Memorandum No.27085/F, dated 31.05.1978.
3. The Scheme was further extended to the employees of Urban Local Bodies (Municipalities/NACs/ Municipal Council & Municipal Corporation etc.) with effect from 01.04.1981 in H & UD Department Resolution No.8292/HUD, dated 05.03.1981 read with Finance Department Resolution No.25370/F, 05.06.1981.
4. Recently the benefit under the Scheme has been extended to the Teachers of Zilla Parishad who were appointed under regular establishment of Government vide Finance Department Office Memorandum No.37750/F, dated 29.08.2011.
5. Since inception, the Scheme has gone a long way in providing some measure of social security to the families of the deceased employee. The Scheme has been revised from time to time after revision of pay of the employees under different Pay Rules. The quantum of one-time deposit as well as the sum assured under the Scheme was last revised for the Government employees in 1999 after introduction of revised pay scales of ORSP Rules, 1998 in Finance Department Resolution No.8754/F, dated 09.03.1999 which is still in vogue.
6. The quantum of one time deposit and sum assured under the scheme for the employees of
(i) Aided Non-Government Educational Institutions,
(ii) Four Universities, W.P.(C) No.5399 of 2009 Page 35 of 53
(iii) Board of Secondary Education, Odisha, Cuttack,
(iv) Council of Higher Secondary Education, Odisha, Bhubaneswar and employees of Urban Local Bodies (Municipalities/ NACs/ Municipal Council & Municipal Corporation etc.) was last revised in 1994 after revision of Pay under ORSP Rules, 1989 as per Finance Department Resolution No.14254/F,dt.16.4.94 and No.14251/F,dt.16.4.94 respectively and the same are also still in vogue.
7. The implementation of the Scheme has already been simplified by decentralization of its operations by delegating powers to the field offices. Powers have already been vested with the Head of Offices/ D.D.Os for sanction and payment of assured sum under the scheme at their level without referring the case to Finance Department vide Resolution No.19307/F, dated 26.04.2011 and No.34360/F, dated 05.08.2011.
8. After introduction of ORSP Rules 2008, the question of revision of the Scheme and enhancing the benefits under the scheme was under active consideration of Government. After careful consideration, Government have been pleased to adopt a uniform policy both for Government and non- Government employees and to decide that the contribution and benefits under the scheme shall stand modified to the extent as per the Schedule given below:
SCHEDULE W.P.(C) No.5399 of 2009 Page 36 of 53 FIGURES IN RUPEES Employees Quantum of one- Sum assured Amount of drawing Grade time refundable under GIS in case financial Pay in Pay Band deposit of death while in assistance for under the ORSP (to be realized service performance of Rules, 2008 from the obsequies employee) (1) (2) (3) (4) Grade Pay upto 7,500/- 1,50,000/- 5,000/-
Rs.4,600/-
Grade Pay 12,000/- 2,50,000/- 5,000/- Rs.5,400/-
9. In case of existing employees, the balance amount of one-time deposit required to be paid, shall be realized from them in one lump latest by the end of October, 2011. To meet the additional amount of the deposit, an equivalent amount of interest free advance may be granted to the employee to be recovered in ten equal monthly installments from the salary bills of the employee concerned from October 2011 onwards.
10. A new entrant to service on or after 1st October 2011 to a regular establishment shall be granted an appropriate amount of interest free advance in order to enable him/her to make the one-time deposit as required under the scheme and the recovery of advance shall commence from the first month of his/her salary.
11. The Head of Offices/DDOs of Non-Govt. Aided Educational Institutions, four Universities, Board of Secondary Education, Odisha, Cuttack, Council of Higher Secondary Education, Odisha, Bhubaneswar and Urban Local Bodies may take steps to sanction such advances from their own sources for deposit of W.P.(C) No.5399 of 2009 Page 37 of 53 the enhanced GIS premium at one go which will be recouped by them from the monthly salary of the employees working under their Administrative control in 10 equal monthly installments or as to be decided by them.
12. The employees not covered under the ORSP Rules-2008, shall be governed by the earlier Finance Department Resolution No.8754/F, dated 09.03.1999, Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994 as the case may be relating to the Scheme.
13. The DDO/Head of Offices are to deposit the revised premium in one go through treasury challan by way of Transfer Credit of deposits to the Head of Account- "8443-Civil Deposit-800-other receipts- 0106-other deposits-16030- Deposits for the Government employees" in case of all Government servants borne in the regular establishment.
14. In case of the employees of Aided Non-Government Educational Institutions and others the premium is to be deposited in one go through Transfer Credit of deposits under the Head "8443-civil deposit-800- other receipts-0106-other deposits 16030-Deposit under Group Insurance Scheme (ii) 045-Deposit for Employees of Non-Government aided Educational Institutions & (iii) -046-Deposit for employees of Urban Local Bodies" as the case may be. Premiums under the Scheme shall not be remitted to Finance Department through Bank Drafts.
15. In case of death/retirement/relinquishing of service the legal heirs or the employee as the W.P.(C) No.5399 of 2009 Page 38 of 53 case may be shall be entitled to get the refundable deposits (actual deposits) only without any interest thereon. In addition to this, in case of untimely death of the employee while in service, his/her family shall be entitled to receive the benefits as specified in the Schedule above.
Provided that payment of GIS assured sum under the Scheme is linked to premium deposits made during the life time of the deceased employee.
The above modification shall come in force with effect from 1st October, 2011."
10.9. The opposite party No.3 in the counter affidavit as also in additional counter affidavit manifestly missed to have weighed aforesaid Finance Department Resolution dated 23.09.2011, more particularly paragraph 12 thereof. Bare reading of paragraph 12 of said Resolution dated 23.09.2011 makes it crystal clear that those employees who are not covered under the ORSP Rules, 2008, shall be governed by the earlier Finance Department Resolution No.8754/F, dated 09.03.1999, Resolution No.14251/F, dated 16.4.94 and Resolution No.14254/F, dated 16.04.1994 relating to the GIS. As it transpired from paragraph 4 of the Finance Department Resolution dated 09.03.1999, it modified Finance Department Resolution dated 16.04.1994, with effect from 01.04.1999. The case of the petitioner is, therefore, W.P.(C) No.5399 of 2009 Page 39 of 53 covered under the Resolution dated 09.03.1999 inasmuch as the deduction, as is reflected in the GIS pass book, has been made in the year 2005, i.e., at the revised rate.
10.10. At this juncture as a matter of undisputed fact reference can be made to Office Memo No.5620, dated 26.05.2005 issued by the Inspector of Schools, Jagatsinghpur Circle, which inter alia specified as follows:
"In pursuance of Letter No.7482, dated 30.03.2005 of Government of Odisha, School and Mass Education Department, Bhubaneswar and Letter No.18473, dated 26.04.2005 of the Director, Secondary Education, Odisha, Sri Sarat Kumar Das, Classical Teacher, Janakadeipur G.P. High School in Jagatsinghpur Circle under the Scheme of 609 Non-Government High School is allowed full Grant-in-Aid in the revised scale under ORSP Rules, 1998 for the month of February, 2005 during the year 2004-05 subject to the following conditions:
(a) The pay of employee is fixed at Rs.4,750/- in the revised scale of pay on 01.01.1996 in accordance with provisions contained in School and Mass Education Department Resolution No.28933 dated 15.10.1999 subject to the outcome of Misc. Case No.3916/2005 filed before the Hon'ble High Court by the School and Mass Education Department arising out of W.P.(C) No.5345/2004 filed by Dipti Roy & Others.W.P.(C) No.5399 of 2009 Page 40 of 53
(b) The period of notional fixation of pay shall cover the period from 01.01.1996 to 31.01.2005 and no arrears shall accrue for the said period.
(c) The pay for the month of February, 2005 is arrived as given below by adding number of increments admissible from 01.01.1996 to 31.01.2005:
Revised Pay fixed in Date of Notional pay Scale of pay ORSP Rules, 1998 next arrived by on ORSP on notional adding by Rules, 1998 01.01.1996 increment number of increments Rs.4,750/- As per School and Mass 01.01.1997 Rs.4,875/-
- 125 - Education Department 01.01.1998 Rs.5,000/- Rs.7,500/- No.28933, dated 01.01.1999 Rs.5,125/-
15.10.1999 01.01.2000 Rs.5,250/-
Rs.4,750/- 01.01.2001 Rs.5,375/-
01.01.2002 Rs.5,500/-
01.01.2003 Rs.5,625/-
01.01.2004 Rs.5,750/-
01.01.2005 Rs.5,875/-
The pay on 01.02.2005 is so arrived at
Rs.8,575/-."
10.11. Finance Department Resolution dated 09.03.1999 juxtaposed with Finance Department Resolution dated 23.09.2011 unequivocally points to construe that the revised/modified pay range of the petitioner as per Resolution dated 09.03.1999 is applicable on the facts and in the circumstances of the case.
CONCLUSION & DECISION:
11. Having analysed the pleading, carefully scrutinised the documents enclosed to the brief by respective parties and noticed the judgment rendered by this Court in the W.P.(C) No.5399 of 2009 Page 41 of 53 case of Dipti Roy and batch (supra) and Bijay Ketan Khatua (supra), this Court is of the considered opinion that the opposite parties have misconceived by stating in paragraph 9 of the counter affidavit filed through the opposite party No.3-District Education Officer, Jagatsinghpur that "the Resolution No. GIS (II) 2/99-
8754/F, dated 09.03.1999 of Finance Department, Government of Odisha is only applicable to Government employees but not to Aided High (School) employees". Reliance placed by the opposite party No.3 in his counter affidavit on Finance Department Resolution dated 16.04.1994 putting aside Finance Department Resolution dated 09.03.1999 is unwholesome.
11.1. It is baffling to note that even though the petitioner has brought on record the Finance Department Resolution No. 41803-- GIS-II-57/2011/F., dated 23.09.2011 by way of rejoinder affidavit, no comment or explanation with regard to implication of such Resolution, more especially paragraph 12 thereof, has been proffered by the opposite party No.3, but merely referred to the Finance Department Resolution No. 34360-- GIS-II- 57/2011/F., dated 05.08.2011 in his additional counter affidavit sworn to on 05.09.2013. From the conduct of the opposite parties it is quite clear that having disbursed Rs.50,000/- towards sum assured with Rs.6,400/- towards one-time fundable deposit and W.P.(C) No.5399 of 2009 Page 42 of 53 financial assistance of Rs.1,750 for performance of obsequies in the year 2012 (that too with a delay of around seven years from the date of death in the year 2007), they have attempted to justify that the petitioner is not entitled to Rs.1,25,000/- as revised by virtue of the Finance Department Resolution dated 09.03.1999.
11.2. In the light of the exposition of this Court in Dipti Roy (supra) and Bijay Ketan Khatua (supra) and in view of policy of the Government of Odisha as emanating from Finance Department Resolution No. 41803-- GIS-II- 57/2011/F., dated 23.09.2011 to the effect that "Since inception, the Scheme has gone a long way in providing some measure of social security to the families of the deceased employee. The Scheme has been revised from time to time after revision of pay of the employees under different Pay Rules. The quantum of one-time deposit as well as the sum assured under the Scheme was last revised for the Government employees in 1999 after introduction of revised pay scales of ORSP Rules, 1998 in Finance Department Resolution No.8754/F, dated 09.03.1999 which is still in vogue.", there is no escape for the opposite parties to wriggle out from obliging payment of the legitimate dues of the petitioner.
12. This matter can be considered on different prism. It is quite clear from the Finance Department Resolutions that since inception the GIS has gone a long way in W.P.(C) No.5399 of 2009 Page 43 of 53 providing some measure of social security to the families of the deceased employee. It is also as a matter of benevolence that the Government of Odisha, after careful consideration, have decided to adopt a uniform policy both for Government and non-Government employees. It is also liberally considered that in case of untimely death of employee while in service, the legal heirs of such employee are entitled to get the refundable deposits (actual deposits) in addition to the benefits as specified in the Resolutions. Since the Finance Department Resolution dated 09.03.1999 has sought to revise/modify the Finance Department Resolution dated 16.04.1994, and by virtue of the Finance Department Resolution dated 23.09.2011 it has been stated that the employees not covered under the ORSP Rules, 2008, would be governed by the earlier Finance Department Resolution No.8754/F, dated 09.03.1999, Resolution No.14251/F, dated 16.04.1994 and Resolution No.14254/F, dated 16.04.1994 relating to the GIS, liberal interpretation is required to be set forth.
12.1. It may be apposite to refer to Workman of Binny Ltd. Vrs.
Management of Binny Ltd., (1985) 4 SCC 325, wherein it has been emphasized that liberal approach is to be adopted in respect of welfare legislations. It is stated therein that:
W.P.(C) No.5399 of 2009 Page 44 of 53"It is trite law that in matters of welfare legislation, especially involving labour, the terms of contracts and provisions of law should be liberally construed in favour of the weak."
12.2. In All India Reserve Bank Retired Officers Association Vrs. Union of India, 1992 Supp (1) SCC 664 = AIR 1992 SC 767, the Hon'ble Supreme Court of India has held that, "*** the concept of pension is now well known, that it is not a charity and that it is in the nature of a social security plan to provide for the December of life of a superannuated employee."
12.3. Seized of the subject-matter in connection with "accident" vis-a-vis "worker", in the case of Regional Director, ESI Corpn. Vrs. Francis De Costa, 1993 Supp (4) SCC 100, the Hon'ble Supreme Court of India has expressed the following view:
"5. The Act seeks to cover sickness, maternity, employment injury, occupational disease, etc. The Act is a social security legislation. It is settled law that to prevent injustice or to promote justice and to effectuate the object and purpose of the welfare legislation, broad interpretation should be given, even if it requires a departure from literal construction. The court must seek light from loadstar Articles 38 and 39 and the economic and social justice envisaged in the Preamble of the Constitution which would enliven meaningful right to life of the worker W.P.(C) No.5399 of 2009 Page 45 of 53 under Article 21. The State is enjoined under Article 39(e) to protect the health of the workers, under Article 41 to secure sickness and disablement benefits and Article 43 accords decent standard of life. Right to medical and disability benefits are fundamental human rights under Article 25(2) of Universal Declaration of Human Rights and Article 7(b) of International Convention on Economic, Social and Cultural Rights. Right to health, a fundamental human right stands enshrined in socio-economic justice of our Constitution and the Universal Declaration of Human Rights. Concomitantly right to medical benefit to a workman is his/her fundamental right. The Act seeks to succour the maintenance of health of an insured workman. The interpretative endeavour should be to effectuate the above. Right to medical benefit is, thus, a fundamental right to the workman.
6. Moreover, even in the realm of interpretation of Statutes, Rule of Law is a dynamic concept of expansion and fulfilment for which the interpretation would be so given as to subserve the social and economic justice envisioned in the Constitution. Legislation is a conscious attempt, as a social direction, in the process of change. The fusion between the law and social change would be effected only when law is introspected in the context of ordinary social life. Life of the law has not been logic but has been experience. It is a means to serve social purpose and felt necessities of the people. In times of stress, disability, injury, etc. the workman needs statutory protection and assistance. The Act fastens in an insured employment, statutory obligation on the employer and the employee to W.P.(C) No.5399 of 2009 Page 46 of 53 contribute in the prescribed proportion and manner towards the welfare fund constituted under the Act (Sections 38 to 51 of the Act) to provide sustenance to the workmen in their hours of need, particularly when they become economically inactive because of a cause attributable to their employment or disability or death occurred while in employment. The fact that the employee contributed to the fund out of his/her hard-earned wages cannot but have a vital bearing in adjudicating whether the injury or occupational disease suffered/contracted by an employee is an employment injury. The liability is based neither on any contract nor upon any act or omission by the employer but upon the existence of the relationship which employer bears to the employment during the course of which the employee had been injured. The Act supplants the action at law, based not upon the fault but as an aspect of social welfare, to rehabilitate a physically and economically handicapped workman who is adversely affected by sickness, injury or livelihood of dependents by death of a workman."
12.4. A three-Judge Bench of the Supreme Court of India, in reference to the ESI Act, in Transport Corporation of India Vrs. ESI Corporation, (2000) 1 SCC 332 held that:
"27. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view W.P.(C) No.5399 of 2009 Page 47 of 53 to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment.
When two views are possible on its applicability to a given set of employees, that view which furthers the legislative intention should be preferred to the one which would frustrate it. ***
28. Dealing with this very Act, a three-Judge Bench of this Court in Buckingham and Carnatic Co. Ltd. Vrs. Venkatiah, AIR 1964 SC 1272 speaking through Gajendragadkar, J., (as he then was) held, accepting the contention of the learned counsel, Mr Dolia that:
'10. *** It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other W.P.(C) No.5399 of 2009 Page 48 of 53 which may not be able to further the object of the Act.' ***"
12.5. In Bombay Anand Bhavan Restaurant Vrs. ESI Corporation, (2009) 9 SCC 61, it was observed that:
"20. The Employees' State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees' State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The Courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects."
12.6. In The ESI Corporation Vrs. Radhika Theatre, (2023) 1 SCR 1045, referring to Bangalore Turf Club Limited Vs. Regional Director, ESIC, (2014) 9 SCC 657, it has been reproduced as follows:
21. The legislature enacted the ESI Act to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and W.P.(C) No.5399 of 2009 Page 49 of 53 to make provision in certain other matters in relation thereto. The provisions of the ESI Act apply to all the factories other than seasonal factories. The State Government with the approval of the Central Government is authorised to make the provisions of the ESI Act applicable to any other establishment or establishments. The provisions of the ESI Act provide that all employees in factories or establishments to which the ESI Act applies shall be insured in the manner provided under the ESI Act. Since the ESI Act is passed for conferring certain benefits to employees in case of sickness, maternity and employment injury, it is necessary that the ESI Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment."
12.7. This is an established rule of construction that the stranglehold of stark literalism has to be eschewed in order to give a rational meaning and content to the language used in the Resolutions through which policy of Government is well couched. When the material words are capable of two constructions, one of likely to defeat or impair the policy, purpose or object of the Resolution and whilst the other is likely to assist the achievement of the said policy, purpose or object, then Courts would prefer to adopt the latter construction. It may deserve saying that the terms of Resolution is best interpreted when contextual reading is given along with all other Resolutions on the subject and this Court is inclined to match the textual interpretation with that of the context.W.P.(C) No.5399 of 2009 Page 50 of 53
Having stated in Director of Enforcement Vrs. Deepak Mahajan, (1994) 3 SCC 430, that "mechanical interpretation of words and application of legislative intent devoid of concept of purpose and object will render the legislation insane", in Utkal Contractors and Joinery Pvt. Ltd. Vrs. State of Odisha, AIR 1987 SC 1454 it has been observed that "a statute is best understood if we know the reason for it". In Reserve Bank of India Vrs. Peerless General Finance & Investment Co. Ltd., AIR 1987 SC 1023 = (1987) 1 SCC 424, it has been succinctly spelt out as:
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be W.P.(C) No.5399 of 2009 Page 51 of 53 construed so that every word has a place and everything is in its place."
12.8. In Maniben Maganbhai Bhariya Vrs. District Development Officer, Dahod, (2022) 5 SCR 760, the Hon'ble Supreme Court of India in the context of social security legislations laid down as follows:
"13. When social security legislations are being interpreted, it always has to be interpreted liberally with a beneficial interpretation and has to be given the widest possible meaning which the language permits, known as Beneficial Interpretation. When a statute is meant for the benefit of a particular class and if a word in the statute is capable of two meanings, i.e., one which would preserve the benefits and one which would not, then the former is to be adopted.
14. Maxwell on Beneficial Construction holds the following:
'The construction of a statute must not strain the words as to include cases plainly omitted from the natural meaning of the language. Nevertheless, even where the usual meaning of the words falls short of the object of the legislature, a more extended meaning will be attributed to them if they are fairly susceptible to it. The relaxation of strictly literal rule of interpretation is known as beneficial construction.' ***"
12.9. Pious obligation of the Government, a model employer, has been reflected through the Resolutions to the effect W.P.(C) No.5399 of 2009 Page 52 of 53 that the GIS has been introduced to provide some measure of social security to the families of the deceased employee of Aided Non-Government Educational Institutions. In the wake of aforesaid view with respect to beneficial legislation, as put forth by the Supreme Court of India, there is no other construction possible than to observe that the employee having met with untimely death while in service as a teacher in AEI, the petitioner is entitled to be granted with the sum in terms of Resolution bearing No. 14254-- GIS-II-41/94-/F dated 16.04.1994, as stood modified by virtue of Finance Department Resolution bearing No.8754-- GIS-(II)- 2/1999-F, dated 09.03.1999, being envisaged in Finance Department Resolution bearing No.41803-- GIS-II-57/ 2011/F, dated 23.09.2011.
13. Under aforesaid premises, this Court is, therefore, inclined to direct the authorities concerned-opposite parties to disburse the rest of the amount as per revised/modified Resolution as observed in the foregoing paragraph(s) within a period of thirty days hence.
14. Accordingly, the writ petition stands disposed of in the above terms, but in the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN) Signature Not Verified JUDGE Digitally Signed Signed by: LAXMIKANTHigh Court of Orissa, Cuttack MOHAPATRA The 19th February, 2024//MRS/Laxmikant/Suchitra Designation: Senior stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Feb-2024 18:47:53 W.P.(C) No.5399 of 2009 Page 53 of 53