Service Of A Government Servant Does Not Qualify For Pension Unless Their Appointment, Duties, And Pay Are Regulated By Or Under The Orders Of The Government: Orissa High Court

A division bench of the Orissa High Court, comprising Mr. Chakradhari Sharan Singh (Chief Justice) and Mr. M.S. Raman (Judge), while deciding an Appeal in the case of State of Odisha & Ors vs. Banamali Samal & Ors held that the service of a government servant does not qualify for pension unless he is appointed and his duties and pay are regulated by the government or under the orders of the government.

Background Facts

The Respondents were directly appointed employees of the Integrated Tribal Development Agencies (ITDAs) and Micro Projects, which come under the ST & SC Development Department of the Government of Odisha. The department came out with a communication dated May 24, 2017, which stated that appointments to the Micro Projects did not confer the status of state government employees on such appointees, thus they were not entitled to pensionary benefits. The respondents challenged the said communication before the Orissa Administrative Tribunal (OAT), but the original application got transferred to the Orissa High Court upon abolition of the OAT, where a single judge bench allowed the writ petition of the respondents and passed the order dated October 20, 2022, directing the state government to extend the pensionary benefits to respondents. Aggrieved by the same, the State of Odisha (Appellant) filed the aforesaid Appeal, challenging the impugned orders passed by the learned single judge.

The appellant contended that the respondents were employees of the ITDAs or Micro Project agencies registered under the Societies Registration Act, and they cannot be treated as government servants for application of the Odisha Civil Services (Pension) Rules, (OCS) 1992. It was further submitted that the communication letter dated May 24, 2017 did not contain any decision to grant pensionary benefits to directly appointed staff of the ITDAs and Micro Projects.

On the other hand, it was contended, inter alia, by the Respondents that it was evident from the communication dated May 24, 2017 that a decision was taken to sanction pensionary benefits to the directly appointed retired staff. It was submitted that respondents were appointed under the ITDA or Micro Project Agencies, after following due process and their appointment letters were issued under the signature of the District Collector in his capacity as the ex officio Chairman of such agency. It was further contended that although the Micro Projects are the societies registered under the Societies Registration Act, they are under the direct control of the District Collector and the department of the State Government.

Findings of the Court

The court observed that the respondents were appointed by the district collector, who acted as the Ex-Officio Chairman of the Micro Projects, and the government did not have any control over the appointment or removal of the respondents. The court relied on the case of Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and another, wherein the Supreme Court held that the appellant, a teacher in ITDA did not hold an office of profit under the government, as he was appointed by the project officer who had the power to appoint or remove teachers. Although the government had control over the appointing authority, it had no direct control over the teachers as the ITDA being a registered Society had its own constitution.

The court while referring to OCS Rules, observed that the service of a government servant does not qualify for pension unless he is appointed and his duties and pay are regulated by the government or under orders of the government. The court observed that the respondents cannot be treated as employees of the government to qualify for pension and the letter dated May 24, 2017 did not contain any decision of the state government to extend the pensionary benefit to the directly appointed staff of ITDAs and Micro Projects. The court disagreed with the view taken by the learned single judge in the order dated October 20, 2022, and accordingly set it aside.

With the aforesaid observations, the appeal was allowed and consequently, the writ petition was dismissed.

Case No. : W.A. No. 1179 of 2023

Case Name: State of Odisha & Ors vs Banamali Samal & Ors

Counsel for Appellants : Mr. M.K. Khuntia (Additional Government Advocate)

Counsel for Respondents : Mr. Shashi Bhusan Jena (Advocate)

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