DR BHAGABAT NAYAK vs STATE OF ODISHA

Court
Odisha High Court





Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
IN THE HIGH COURT OF ORISSA AT CUTTACK


W.P.(C) No.2592 of 2026
CNR No.ODHC010035222026


(In the matter of an application under Articles 226 and 227 of the
Constitution of India)


Dr. Bhagabat Nayak …. Petitioner
-versus-
State of Odisha and others …. Opposite Parties


Advocate(s) appeared in this case:-
For Petitioner : Mr. D.N. Rath, Advocate

For Opposite Parties : Mr. S.K. Jee, A.G.A.
Mr. S.N. Nayak, A.S.C.
For O.P. Nos.1 to 3


CORAM: JUSTICE B.P. ROUTRAY


JUDGMENT
th

9 September 2026
B.P. Routray, J.
1. Heard Mr. D.N. Rath, learned counsel for the Petitioner, Mr.
S.K. Jee, learned Additional Government Advocate as well as Mr. S.N.
Nayak, learned Additional Standing Counsel for State-Opposite Parties
1 to 3.

2. The Petitioner has prayed for a direction to the authorities to
grant him regular pension quashing the impugned order dated
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
29.12.2025 passed by the Deputy Director, Department of Higher
Education, Government of Odisha under Annexure-13.

3. The case of the Petitioner is that, he initially joined as Lecturer
in English in Cuttack College, Nayabazar, Cuttack on 23.07.1985
which was a fully aided educational institution at that time. The
appointment of the Petitioner was approved w.e.f. 01.06.1989. The
Petitioner continued as such in different Non-Government Aided
Colleges and while serving as Reader in English in Kujang College
was relieved on 30.06.2014 with due permission of the authority to
enable him to join as Professor in Rajiv Gandhi University, Doimukh
in the state of Arunachal Pradesh. He then retired upon superannuation
form Rajiv Gandhi University on 29.02.2024. It needs to be stated that
there is no provision for grant of pension as per the statute of Rajiv
Gandhi University. The Petitioner thus claimed his pension in terms of
Odisha Aided Educational Institutions’ Employees Retirement Benefit
Rules, 1981 (in short, “1981 Rules”) for the period he rendered service
as Lecturer/Reader in different Non-Government Aided Colleges in
Odisha till 30.06.2014. The authority in Department of Higher
Education of Government of Odisha vide order dated 06.09.2025
(Annexure-12) directed for submissions of required documents for
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
grant of pro-rata pension in favour of the Petitioner. Accordingly, the
Controller of Accounts, Odisha in his letter dated 18.05.2026
(Annexure-1/A) granted pro-rata pension with admissible DCRG in

lump-sum to the tune of Rs.18,31,606/-.

4. The Petitioner objected to the same and refused to receive the
lump-sum amount towards pro-rata pension as directed at Anneuxre-
1/A claiming that he is entitled to regular pension in terms of 1981
Rules.

5 . Mr. Rath, learned counsel for the Petitioner submits that, the
period of service of the Petitioner from 23.07.1985 till 30.06.2014 as
Lecturer/Reader in English in different Non-Government Aided
Colleges in Odisha is admitted and thus by operation of the provisions
of the 1981 Rules, he should be granted regular pension for rendering
service around 29 years. It is also submitted that as the Petitioner was
relieved from Kujang College to enable him to join at Rajiv Gandhi
University, Arunachal Pradesh by the competent authority as per
different Annexures, there is no dispute with regard to his qualifying
service eligible for receiving the pension under 1981 Rules. He further
submits that the provisions of Odisha Civil Services (Pension) Rules,
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
1992 to grant pro-rata pension to the Petitioner is not attracted in the
case of the Petitioner since he was not a Government employee.
Therefore, the order of the authority directing for payment of pro-rata
pension instead of regular pension under 1981 Rules is grossly illegal
and the authorities should be directed for payment of regular pension in
favour of the Petitioner.

6. The State has filed its counter denying the contentions of the
Petitioner. While the period of service of the Petitioner rendered in
different aided educational institutions in Odisha is not disputed by
State-Opposite Parties, it is stated that the Petitioner since retired on
superannuation from Rajiv Gandhi University, he is not entitled to the
pension, but applying Rule 44 of the OCS (Pension) Rules and
considering his period of service rendered in Odisha, the provisions of
pro-rata pension was applied in the benefit of the Petitioner.

7. Mr. Jee, learned A.G.A. submits that the Petitioner has not
retired in terms of Rule 4 of 1981 Rules and therefore he is not entitled
to receive the pension under 1981 Rules. It is submitted by Mr. Jee that
certain contingencies of retirement have been prescribed under Rule 4
and the Petitioner is not found placed in such provisions of the rules of
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
1981 Rules and so, is not entitled to receive his pension as per said
Rules. It is further submitted that the claim of Petitioner at best can be
treated under Rule 44 of the OCS (Pension) Rules in order to make him
eligible to receive pro-rata pension and thus, the action taken on the
part of the authority to grant the pension on pro-rata basis is justified.

8. From the statement of facts mentioned in the writ petition as
well as in the counter affidavit, the admitted position remains that the
Petitioner rendered his service as a Lecturer in different Non-
Government Aided Colleges for the period from 23.07.1985 to
30.06.2014. It is seen from Annexures-3, 4, 5, 6 & 9 that, the
Petitioner, with due permission of the authority, was allowed to relieve
from the post of Reader in English of Kujang College permanently to
join as Associate Professor in Rajiv Gandhi University, Arunachal
Pradesh. The permission was granted by different authorities including
the Government of Odisha in the Department of Higher Education. As
per letter dated 15.01.2016 at Annexure-9, the Government of Odisha
has requested the Director of Higher Education to take expeditious
steps for releasing the pension and other pensionary benefits in favour
of the Petitioner as per the Rule at an early date. It is, therefore,
revealed that on the event of relieve of the Petitioner from Kujang
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
College, the same was treated as the order of permanent relieve from
his services. There is no whisper in the order at Annexure-9 regarding
applicability of pro-rata pension in terms of OCS (Pension) Rules,
1992.

9. Rule 3 of the OCS (Pension) Rules speaks that the Rules are
applicable to Government servants, appointed to posts and services
borne on pensionable establishment subject to such conditions
prescribed therein. It is true that the Petitioner was not a Government
servant on his initial appointment as Lecturer in Non-Government
Aided Colleges in terms of Rule 3 of the OCS (Pension) Rules.

10. The Petitioner’s service condition as Lecturer in various Non-
Government Colleges was governed under different Rules Viz. The
Odisha Education (Recruitment and Conditions of Service of Teachers
and Members of the Staff of Aided Educational Institutions) Rules,
1974, and other Rules including The Odisha Aided Educational
Institutions’ Employees Retirement Benefit Rules, 1981. Rule 3 of said
1981 Rules speaks that that such Rules shall apply to the teaching and
non-teaching staff of all recognized non-Government Educational
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
Institutions coming under the direct payment system. It reads as
follows:
“3. Application of the rules - These rules shall apply to the
teaching and non-teaching staff of all recognised non-
Government Colleges, High Schools, Senior Basic Schools and
M.E. Schools which come under the direct payment system and
all non-Government Primary Schools including Sanskrit Tols
and Junior Basic Schools fully aided by Government in
Education and Youth Services Department directly or through
Panchayat Samitis constituted under the Odisha Panchayat
Samiti Act, 1959 or through a Notified Area Council or
Municipality constituted under the Odisha Municipal Act, 1950:

Provided that Government may, by general or special order
as may be issued in that behalf, specify and other educational
institution or category of institutions and the staff working
therein to whom the rules shall apply.”

11. Rule 4 of 1981 Rules reads as under:
“4. Subject to the conditions in other rules under this Chapter, an
employee shall be, eligible for pension or gratuity, as the case
may be;

(1) on retirement by reason of his attaining the age of
superannuation; or
(2) on voluntary retirement or retirement by the appointing
authority after completion of thirty years of qualifying service or
the age of fifty years; or
(3) on retirement before the superannuation on medical
certificate of permanent incapacity for further service; or
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
(4) on termination of service due to the abolition of the post; or
(5) on closure of the College or school, as the case may be, due
to withdrawal of recognition of the said College or School or
other causes.”

12. The provisions contained in Rule 3 & 4 of 1981 Rules read with
the provisions contained in Rule 3 of the OCS (Pension) Rules makes it
clear that the provisions of OCS (Pension) Rules is not applicable to all
such employees governed under 1981 Rules. An employee of a
recognized non-Government Educational Institutions and coming
under the direct payment system are governed under the provisions of
1981 Rules for the purpose of grant of pension and other pensionary
benefits in their favour as per Chapter-II of said Rules. So far as the
status and exclusion of such service conditions of the employee of a
non-Government Aided Educational Institution, other than a
Government employee, is concerned, it is settled by this Court in
Adikanda Jena vs. State of Orissa and others, 1990 (I) OLR—234. It
is observed as follows:
“6. It being thus the conclusion that the suspensions were
ordered only in accordance with the provisions of Rule 12(2) of
the 1962 Rules the petitioners having been detained in jail
custody for more than forty-eight hours, it is to be seen as to
how far such Rules are applicable to the petitioners. As a matter
of fact, the learned counsel appearing for the opposite parties
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
candidly admitted the Rules to have no application to the staff of
the aided educational institutions. There is also otherwise no
provision in the conditions of service of the petitioner making
them liable to be placed under suspension if they are detained in
jail custody for more than forty-eight hours in connection with
any criminal case. The advice/approval of opposite party No.2
of 5-5-1989 to the suspension of the petitioners being under the
impression that the Rules are applicable to them was thus
misconceived and the resolution placing the petitioners under
suspension being exclusively based upon such view of opposite
party No.2 is equally vulnerable and cannot be sustained. The
petitioners being employees of an aided educational institution
are not ipso facto Government servants and the conditions of
service applicable to Government servants are not otherwise
applicable to them.”

13. In the instant case, the question falls for determination is to
whether the permanent relieve of the Petitioner from his service as
Reader of Kujang College, a non-Government Aided Educational
Institution, could be treated as the retirement in terms of Rule 4 of
1981 Rules enabling him to avail such benefits of pension and
pensionary benefits under the provisions of said Rules.

14. In P. Bandopadhya and others vs. Union of India and others,
(2019) 13 SCC 42 , the Hon’ble Supreme Court while dealing with the
case relating to eligibility to avail pensionary benefits has observed
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
that, upon voluntary exercise of option to get absorbed in regular
service of VSNL, it was deemed that the Petitioners have retired from
Government service. Paragraphs 8.4 to 8.6 of said decision reads as
follows:
“ 8.4. Rule 49(2) of the CCS (Pension) Rules, 1972 provides that
a government servant is entitled to receive pension on retirement
only after the completion of the qualifying service of 10 years.
[ Union of India v. Bashirbhai R. Khiliji , (2007) 6 SCC 16 :
(2007) 2 SCC (L&S) 292 : AIR 2007 SC 1935] On the other
hand, a government servant who retires before completing the
qualifying service of 10 years is entitled to service gratuity
under Rule 49(1) of the CCS (Pension) Rules, 1972. The
relevant extract of Rule 49 of the CCS (Pension) Rules, 1972 is
reproduced hereunder for ready reference:

“ 49. Amount of Pension .—(1) In the case of a government
servant retiring in accordance with the provisions of these rules
before completing qualifying service of ten years, the amount of
service gratuity shall be calculated at the rate of half month's
emoluments for every completed six monthly period of
qualifying service.

(2)( a ) In the case of a government servant retiring in accordance
with the provisions of these rules after completing qualifying
service of not less than thirty-three years, the amount of pension
shall be calculated at fifty per cent of average emoluments,
subject to a maximum of four thousand and five hundred rupees
per mensem.

( b ) In the case of a government servant retiring in accordance
with the provisions of these rules before completing qualifying
service of thirty-three years, but after completing qualifying
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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
service of ten years, the amount of pension admissible under
Clause (a) and in no case the amount of pension shall be less
than rupees three hundred and seventy-five per mensem;”
(emphasis supplied)

8.5. A conjoint reading of the statutory rules i.e. Rule 37 with
Rule 49 of the CCS (Pension) Rules, 1972, would make it
abundantly clear that the appellants were not entitled to
pensionary benefits since admittedly they did not have the
minimum qualifying service of 10 years, to make their service
pensionable with the Central Government. On absorption in
VSNL on 2-1-1990 there was a severance of their service with
the Central Government. The appellants would be entitled to the
retiral benefits under VSNL.

8.6. After exercising the option to be absorbed in VSNL, the
appellants are now estopped from seeking pensionary benefits
from the Central Government.”

15. As per Rule 6 of 1981 Rules, there would be calculation of
qualifying service eligible to receive pension and pensionary benefits.
Since the letter of the Government dated 15.01.2016 at Annexure-9
clearly stipulates for taking steps for release of pension and pensionary
benefits in favour of the Petitioner and till date the Government has not
withdrawn from said order issued under Annexure-9, the non-
applicability of 1981 Rules to Petitioner’s case to deny him from
getting the pensionary benefits is seen unjustified.

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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
16. Admittedly, the Petitioner was more than 50 years on
30.06.2014, i.e. when he was permanently relieved from the post of
Lecturer of English of Kujang College. Since there was a permanent
severance of Petitioner’s service, with due permission of the competent
authority, to enable him to join at Rajiv Gandhi University, Arunachal
Pradesh, the same can be interpreted as a voluntary retirement read
under Rule 4(2) of 1981 Rules. It is true that the Petitioner has initially
worked in a post eligible to receive pension and pensionary benefits
under 1981 Rules and then joined to such a post where no pensionary
benefits is available. For his service rendered in the establishment of
Non-Government Educational Institution governed under the
provisions of 1981 Rules, it would be unfair to exclude the Petitioner
from all such provisions of 1981 Rules. It is thus concluded that, for
grant of pro-rata pension attracting the provisions of OCS (Pension)
Rules in favour of the Petitioner would be illegal and arbitrary from the
applicability of the provisions of the 1981 Rules would be grossly
illegal. Thus, the Petitioner is held entitled and qualified under the
provisions of 1981 Rules to receive such amount of pension and
pensionary benefits.

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Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Sep-2026 15:20:27
17. In the result, the writ petition is allowed and the order dated
29.12.2025 under Annexure-13 and the order dated 18.05.2026 under
Annexure-1/A are set aside with a direction to the Opposite Parties to
grant pension and pensionary benefits admissible to the Petitioner for
the period of service rendered from 23.07.1985 to 30.06.2014, within a
period of four months from the date of receipt of certified copy of this
order by Opposite Party No.2.

(B.P. Routray)
Judge


















B.K. Barik/A.R.-cum-Senior Secretary
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