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Orrisa HC allowed retirement benefits to an employee of a minority institution in contravention of O.E. Rules 1981

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A Single Bench of Justice B.R. Sarangi held that hindering the retirement benefits of petitioner will be a violation of his rights, as in two similar cases, petitioners were made available the retirement benefits, even after being retired in 1997 and were employees of minority institution.

The petitioner, appointed as an Assistant Teacher in the Mission Minority Primary School and retired from service in 1995, filed this writ petition seeking to quash order of 2005 rejecting his claim for getting pension and other retirement benefits along with interest.

The factual base of the case, is that in order to improve and create a literacy atmosphere within the children of backward class, more than 200 educational institutions were established by the Christian Community, managed by Catholic Board of Education, a registered society.

Mission Minority Primary Schools established by the Christian Community are protected under Article 30 of the Constitution of India and the primary schools, were brought under the grant-in-aid fold and became fully aided educational institutions. The petitioner joined this post in 1962.

The petitioner, being an employee of aided educational institution, having not been extended with the retiral benefit, approached filed a writ petition which was deposed with an observation that Inspector of Schools, shall scrutinize the pension papers and on scrutiny if it is found that the petitioner is entitled to pension, pass necessary orders for disbursement.

His claim for pension was rejected by the Inspector of Schools on the ground that his case is neither coming under the Orissa Aided Educational Institution Employees Retirement Benefits Rules, 1981 nor O.E. (Minority Managed Aided Educational Institution Employees “Method of Recruitment and Conditions of Service”) Order, 2003.

The petitioner contended that he was employed in a fully aided educational institution, and as per the resolution dated 11.07.1984 passed by the Government of Odisha in Education & Youth Services Department, the provisions of the Rules, 1981 are applicable to the institutions established and administered by minorities for extension of retirement benefits and that O.E. Order, 2003 is a beneficial one for payment of pension to the retirees.

The eligibility to grant retirement benefits to the employees of minority institutions no more remains res integra in view of the decisions of Orrisa Court in Patras Soreng v. State of Orissa, as well as in Benedict Xalxo v. State of Orissa & others. The petitioners in both writ petitions were retired prior to 1997 and were allowed to receive pension. The rejection order by the Inspector of Schools is violative of Articles 14, 21, 30(2) and 39(d).

The Standing Counsel for School and Mass Education Department contended that since the institution itself is a minority institution, Orissa Education Act is not applicable and the Order, 2003, where Rule 29(1) provides retirement benefits  to the employees of aided educational institution under minority managed institution retiring on or after 01.04.1997 and accordingly employees retiring on or after this date shall be eligible to get the pensionary benefits. Since the petitioner retired prior, even under the revised rules the pensionary benefits are not admissible to him.

The court alleged that; it is not in dispute that the institution is a fully aided educational institution. Therefore, employees of aided educational institution are entitled to retirement benefits, as provided in the Rules, 1981. Rule-3 of the Rules, 1981, however, states that the same shall apply, inter alia to the teaching staff, as was the petitioner, of such schools which come under the direct payment system. It is the requirement of the school to be under the “direct payment system” which has stood in the way of the petitioner in getting the benefit, and no pleadings have been made to that extent by opposite party that the school in question is not coming under the direct payment system.

The court suggested that it needed to examine nature and character of the institution from which the petitioner has retired. The word ‘minority’ has not been defined in the Constitution.

Section 2(c) of the National Commission for Minorities Act, 1992 defines the word ‘minority’ which as under: –

“Minority, for the purpose of the Act, means a community notified as such by the Central Government.”

The Government notified Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as minority communities on October 23, 1993. However, explanation (ii) to Art.25(2)(b) of the Constitution still provides that in sub-clause (b) of Cl. (2) the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly.”

In T.M.A. Pai Foundation v. State of Karnatak, considering Article 30 of theConstitution of India, the apex Court held as follows: –

“The word ‘minority’ occurring in Article 30 is not defined in the Constitution, but literally it means ‘a non-dominant’ group. It is a relative term and is referred to represent the smaller two numbers, sections or group called ‘majority’. In that sense, there may be political minority, religious minority, linguistic minority, etc.”

The Mission Minority Primary School having satisfied the requirements, is considered to be a minority educational institution, which was fully govt. aided.

Therefore, Rule 9(1) of the Orissa Education Rules, 1974 provides, after its amendment in 1976, that every employee of an aided educational institution shall ordinarily be paid in the month following the month to which the claim relates directly by the Government. The position, after the amendment in 1976, a member of the staff of an aided educational institution receives his salary directly from the Government, and, as such, such a school has to be regarded as under the direct payment.

The 1976 amendment however, leaves no manner of doubt that a school which is fully aided has to be regarded as one under the direct payment system, of which mention has been made in Rule-3.

The contention raised that since the petitioner retired from service in 1995, in view of the provisions contained in the Order, 2003, he is not entitled to get retiral benefit as the cut-off date has been fixed as 01.04.1997

But, at the same time, the judgments passed by Orrisa Court in Patras Soreng and Benedict Xalxo v. State of Orissa & others, where both the petitioners were made available the retirement benefits, even after being retired in 1997 and in both the cases the petitioners were employees of minority institution. Thereby, the ratios decided in those cases are squarely applicable to the present case and the petitioner cannot be discriminated on any count.

Therefore, the order passed by the Inspector of Schools, was not sustainable in the eye of law and was quashed. The opposite party was directed to pay pension and other retirement benefits as due.

The writ petition was allowed.

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