Dibakar Panigrahi v State

THE HON’BLE COURT DIRECTED THE STATE TO CHANGE INTO PENSION SCHEME UNDER STATUTE 289(3) OF ORISSA UNIVERSITIES FIRST STATUTE, 1990.

FACTUAL BACKGROUND

• This case relates to a Writ petition filed by the petitioner challenging the validity and legality of the order passed by the Opposite party No.1 and the office order issued by the Opposite party No. 2 to holding the petitioner as ineligible to change from Contributory Provident Fund Scheme (CPF) to Pension and General Provident Fund Scheme (GPF) as per statute 289(3) of the Orissa Universities First Statutes, 1990.
• Petitioners are employees of the Berhampur University joined before the year 1990. They have retired from service. The employees were provided with an option to choose between the Pension scheme or the Contributory provident fund scheme as per the statute 289 of the First Statute, 1990. The petitioners were not allowed to change their option from CPF to GPF.
• Even after several representation and request to do so, the authorities did not change the option from CPF to GPF. The University officials written letter to Opposite party No. 1 asking the permission for change of the option of the petitioner from CPF to GPF. But in reply of Opposite party No.1, it is stated that the change of option from CPF to GPF may be carried out as per under statute 289(1) of the First Statutes, 1990.
• As when the petitioner aggrieved by the opposite parties due to not taking any step to the concerned issue and approached the Hon’ble court in WP (C) No. 13757 of 2015 praying for allowing the petitioner to change from CPF to GPF.
• The Hon’ble Court disposed of the writ application setting aside the order of Opposite party No.1 and directed to change of option from CPF to GPF as per the Statutes 289(3) of Odisha Universities First Statute, 1990 within the period of three months.
• But Opposite party No.1 denied the prayer of the petitioners to allow them to switch from CPF to GPF and notified that to the Opposite party No. 2. Opposite parties have rejected the prayer of the petitioner on the ground that they have already exercised their option under statute 1988, their ineligible to exercise the same under statute 1990.

JUDGEMENT

The Court finds that the issue involved in the present case is completely covered by the judgment dated 03.08.23 in WP(C) No. 14751 of 2015. Here in Simanchal Rath Vs State of Odisha and Ors states that: -

That the petitioner had opted for CPF scheme on 18.04.1989 prior to the university first statute came into force in the year 1990. The university kept the petitioner under the CPF scheme. Since, it was submitted there was no scope on the part of the university to change opinion and bring petitioner under the pension scheme. Under statute 36 (1)(2) of the first statute it is provided that an employee is to exercise option as to whether he desires to remain under CPF scheme or Pension scheme and such exercise of option by the employees shall be final. The university has accepted and has been recorded in the service book of the petitioner. The petitioner had also exercise his option on 10.11.1993 to remain under the CPF scheme and also accepted by the university.

The relevant time for the purpose of statute 289 of the first statute 1990 is the time period between 1.1.1990 and 30.06.1990. It is also the admitted position of the parties, that the petitioner had not updated for any specific scheme within the prescript time limit as has been prescribed under statute 289 (1) of the first statute 1990.

Whether the petitioner has opted for any specific scheme in terms of the statute 289 or not? the petitioner had initially opted for CPF scheme i.e. prior to the statute 1990 came into force and thereafter after the cutoff date in the year 1993. However, so far the facts of the present case is concerned, it is an admitted fact that the petitioner had not opted for any specific scheme be it CPF or the pension scheme. Therefore, the law is to be analyzed keeping in view the aforesaid facts while applying the provision of the Statute 289 to the facts of the present case. On an analysis of facts, this Court is of the considered view that 289 (1) of the first statute 1990 provides that the petitioner should have opted for any specific scheme within the prescribed time i.e. from 1.1.1990 to 30.06.1990. However, the petitioner has not opted for any specific scheme within the aforesaid stipulated time as provided in statute 289(1) of the Statute, 1990. Therefore, irrespective of the fact that the petitioner had opted for any particular scheme either prior to the first statute came into force or after the prescribed time limit, the case of the petitioner is to be treated as a case where the employee of the University has not specifically opted for either the CPF or the pension scheme within the prescribed time limit as provided under statute 289 (1) of the first statute 1990.

18. Therefore, keeping in view the provision of statute 289, the case of the petitioner is to be governed under statute 289(3), that is, the deeming provision in case where the employee of the university has not opted for any scheme within the prescribed time limit as provided under statute 289 (1).

26. In view of the aforesaid analysis of law and facts further keeping in view the provisions contained in Statute 288 and 289 of the Odisha University First Statute, 1990, this Court directs the Opposite Parties to consider the cases of the petitioner in view of the legal position as has been discussed hereinabove as well as keeping in view the judgment of the Hon'ble Supreme Court in Sashi Kiran's case (supra) reported in 2022 SCC Online SC 594. Further it is directed that in the event the Opposite Parties come to a conclusion that the petitioner has not exercised any option under the Odisha University first Statute, 1990 as prescribed under Statute 289 within the prescribed time limit then the case of the petitioner is bound to be considered under statute 289 (3). Accordingly, the case of the petitioner is to be considered under statute 289 (3). It is needless to mention that the opposite parties are bound to extend the benefits accruing in favour of the petitioner by applying the said provision to the facts of the petitioner's case.

Therefore, at the time of quashing the order at Annexure- 9 and 10, this court dispose of the writ petition in the light of the judgment dated 03.08.2023 so passed in WP(C) No. 14751 of 2015.

REFERENCES

1. SIMANCHAL RATH Vs. STATE OF ODISHA & ORS.

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