JUDGMENT :

Dr. D.P. Choudhury, J.

This writ petition has been filed to direct the opposite parties for grant of pension and other pensionary benefits by regularizing the absence period of the petitioner, i.e., from 25.6.1983 to 2.1.2001 under concerned Leave Rules.

FACTS

2. The filtering details of the case of the petitioner are that the petitioner was appointed by the Secretary of the opposite party No.4 School vide appointment letter dated 25.10.1968 as Headmaster. The School was under Grant-in-Aid since 1.4.1961. The appointment of the petitioner has been duly approved by the opposite parties. Due to ill health of the petitioner he remained on leave from 21.9.1982 to 17.1.1983 and again remained on leave from 25.6.1983 and did not return to the service due to his acute illness. He was under medical treatment and in the meantime his normal retirement date 2.1.2001 passed. After being recovered, the petitioner approached the opposite party No.3 on 20.9.2012 for payment of pension.

3. Be it stated that the pay of the petitioner was fixed by the opposite party No.3 under ORSP Rules, 1974 and ORSP Rules, 1981 vide Annexures-4 and 5, respectively. It is stated that from 28.10.1968 to 24.6.1983 the petitioner remained in regular service but remained absent from 25.6.1983 till his date of superannuation, i.e., 2.1.2001. Since the petitioner has served more than 10 years of service on regular basis, as per Rule 8 (2) of the Orissa Aided Educational Institutions Employees Retirement Benefit Rules 1981 (hereinafter called “Rules 1981”), he is eligible for pension of the period of his qualifying service up to the date of his retirement. In spite of all the efforts by approaching the opposite parties the minimum pension was not allowed to him and he is suffering with acute financial hardship with his wife. Hence, this writ petition is filed seeking necessary reliefs.

4. Contrasting the petition, counter affidavit is filed by the opposite party No.3. It is the case of this opposite party that the writ petition is not maintainable because the petitioner became Government employee when the School was taken over by the Government in the Department of School & Mass Education since 1989 and the matter is to be adjudicated before the State Administrative Tribunal and not before this Court directly. It is the further case of this opposite party that the petitioner has neither produced any leave application nor produced any Medical Certificate to show that he remained on leave from 21.9.1982 to 17.1.1983 and again from 25.6.1983 till the date of retirement. Be it stated that the petitioner remained unauthorisedly absent from 1986 and abandoned his service. Since he has remained absent for more than five years unauthorisedly and as such abandoned his service, he is deemed to have been terminated. Hence, he is not entitled for payment of pensionary benefit.

SUBMISSIONS

5. Mr. Achary, learned counsel for the petitioner submitted that the petitioner was duly appointed as Headmaster by the then Managing Committee on 25.10.1968 in Bhimda M.E. School, Bhimda, in the district of Mayurbhanj and continuously served the School till 21.9.1982 but remained on leave since 21.9.1982 to 17.1.1983 and again joined the School on 21.1.1983 and for that he has also submitted the leave application which was duly approved. He further submitted that due to acute illness in his brain he did not attend the School from 25.6.1983. Since he became mad, he could be only traced out at Baripada in 2012 and went under treatment. On 20.9.2012 he made application for payment of pension as his normal superannuation was notionally made on 2.1.2001. According to him, the petitioner having served for more than ten years, he is entitled to pensionary benefit proportionately as per Rules, 1981 and the question of abandonment of service by the petitioner does not arise.

6. Mr. Achary, relying upon the decision reported in AIR 1971 SC 1409 (Deokinandan Prasad v. The State of Bihar and others) su