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1981 Supreme(Ori) 202
IN THE HIGH COURT OF ORISSA
R.N. Misra, R.C. Patnaik, JJ.
CHANDRA SEKHAR BHANJA (AND AFTER HIM) SMT. SITA DEVI AND OTHERS - APPELLANT
Versus
THE STATE OF ORISSA AND ANOTHER - RESPONDENT
O.J.C. No. 707 of 1977
Decided On : 02-12-1981
S.B. Nanda, for the Appellant; Government Advocate, for the Respondent
Employees of the ex-State of Dhenkanal were entitled to continue in service till the age of 60 years and their premature retirement was contrary to law. Their legal representatives were entitled to the benefits conferred by the Finance Department Resolution dated 14th December, 1977.
Headnote:
SERVICE LAW - SUPERANNUATION - AGE OF RETIREMENT - EX-STATE OF DHENKANAL - EMPLOYEES ENTITLED TO CONTINUE IN SERVICE UPTO THE AGE OF 60 YEARS - RETIREMENT PRIOR TO THAT - BENEFITS - FINANCE DEPARTMENT RESOLUTION DATED 14TH DECEMBER, 1977 - INTERPRETATION AND APPLICATION.
Fact of the Case:
Petitioner, an employee of the ex-State of Dhenkanal, was prematurely retired at the age of 55 years, contrary to the applicable Central Civil Service Regulations and the Orissa Service Code, which provided for a retirement age of 60 years. He filed a writ petition challenging his retirement, but it abated due to the Forty-second Constitutional Amendment and the availability of an alternate remedy under the Orissa Civil Services (Classification, Control and Appeal) Rules. He then filed an appeal with the Governor, but it remained pending for a long time.
Finding of the Court:
The court held that the petitioner was entitled to continue in service till the age of 60 years and that his premature retirement was contrary to law. It also held that the petitioner's legal representatives were entitled to the benefits conferred by the Finance Department Resolution dated 14th December, 1977, which provided for payment of pension, gratuity, and a lump sum amount to employees who were entitled to continue in service upto the age of 60 years but had been retired prior to that.
Issues: 1. Whether the petitioner was entitled to continue in service till the age of 60 years? 2. Whether the petitioner's premature retirement was contrary to law? 3. Whether the petitioner's legal representatives were entitled to the benefits conferred by the Finance Department Resolution dated 14th December, 1977?
Ratio Decidendi: 1. The court relied on the Central Civil Service Regulations and the Orissa Service Code, which provided for a retirement age of 60 years for employees of the ex-State of Dhenkanal. 2. The court held that the petitioner's premature retirement was contrary to law, as he was entitled to continue in service till the age of 60 years. 3. The court held that the petitioner's legal representatives were entitled to the benefits conferred by the Finance Department Resolution dated 14th December, 1977, as the resolution specifically provided for payment of benefits to legal heirs of deceased employees.
Final Decision: The court directed that the petitioner's legal representatives be brought on record and that the benefits payable to the original petitioner be worked out in terms of the Finance Department Resolution dated 14th December, 1977. The court also directed that the legal representatives be given one month's time to produce the requisite non-employment certificate and that the amount be disbursed to them within two months of production of the certificate.
JUDGMENT :
R.N. Misra, C.J. - Chandra Sekhar Bhanja, the original applicant in this petition under Article 226 of the Constitution claimed to have been born on 8-10-1916 and to have been appointed as a second clerk in the Forest Head Office of the ex-State of Dhenkanal with effect from 1-11-1934. He held a permanent appointment and under Article 459 of the Central Civil Service Regulations which were applicable to the said State, the retrial age was 60 years. Petitioner was thus entitled to serve upto 1976. With effect from 29-5-1947, the Orissa Service Code was enforced and with effect from 1st of January, 1948 the ex-State, of Dhenkanal merged with the province of Orissa. Petitioner came to serve under the absorbent province and was given promotion as Accountant. On 5-11-1963, he was confirmed in the promotional post. On 17-8-1971, Petitioner was informed that he was to superannuate with effect from 8-10-1971 and on that day he was prematurely retired. When the legal position became settled in regard to superannuation of employees of the ex-State of Dhenkanal, Petitioner applied in O.J.C. No. 1903 of 1975 to this Court on 1-9-1975. The said application was entertained and the State Government filed a counter affidavit, but in view of the Forty-second Constitutional Amendment and availability of an alternate remedy under Rule 23 of the Orissa Civil Services (Classification, Control and Appeal) Rules, the writ petition was held to have abated. Petitioner immediately moved the Governor under Rule 23 of the aforesaid Rules and even sent a reminder, but when there was no response, he ultimately filed this writ application on 8-9-1977 asking for quashing of the order of superannuation and other consequential service benefits. On 29-9-1977 rule nisi was issued. On 17-8-1978 in presence of learned Government Advocate for the State, a Bench of this Court passed the following order:
In course of the hearing of this case our attention has been drawn to the fact that the Petitioner has preferred an appeal against the impugned order before the Government in March, 1977. Mr. Nanda, the learned Counsel appearing for the Petitioner, states that the Petitioner has sent a reminder on 21-7-1977 (Annexure-6) for the disposal of the said appeal. It is not known why this appeal has been kept pending all this time though the law on this subject is now well settled by a series of decisions. As the appeal is pending we do not deem it proper to dispose of this writ petition at present. But considering the fact that the appeal is pending since a long time we direct that the same be disposed of by opposite party No. 1 within one month from the receipt of a copy of this order, with intimation to the Petitioner. If the appeal is not disposed of by the time above mentioned, this writ petition shall be taken up for hearing and, disposal soon thereafter.
Send a copy of this order to opposite party No. 1 by registered post at the cost of the Petitioner. Requisites for issue of the order shall be filed by tomorrow. This order is passed in the presence of the learned Government Advocate who stated that he will also communicate this order to opposite party No. 1.
Though the order was duly communicated as transpires from the records, there has been no disposal of the appeal as stated by counsel for the Petitioner.
2. No return has been made to the rule nisi by the opposite parties. We are, therefore, left with the uncontroverted averments in the writ application for our consideration.
3. During the pendency of the writ' application the original Petitioner died on 22-9-1978 and his widow and five daughters as legal representatives applied for being impleaded. On 22-12-1978 at the request of both the sides, the application for substitution was directed to be called on the date of hearing. That is how the said substitution petition has remained undisposed of till now.
Counsel for both sides were prepared to address supported by precedents regarding the disposal of the pet
