M.M. Das, J.
1. This Writ Petition has been filed by an ex-employee of the Orissa Lalitkala Academy (hereinafter referred to as 'the Academy') claiming payment of pension and other terminal benefits under the Orissa Academies Employees Provident Funds and Terminal Benefits Rules, 1994 (hereinafter referred to as 'the 1994 Rules').
2. The case of the Petitioner is that he first joined in service in the Directorate of Health Services under the Government of Orissa as an Artist in the year, 1962. While working thus, he applied for the post of Gallary Supervisor in the Academy and on being selected, he was relieved from the Government service and joined as Gallery Supervisor on 30.9.1965. The scale of pay of the Petitioner was revised as per the letter of the Government of Orissa, Tourism and Cultural Affairs Department dated 18.2.1974 read with its letter dated 21.5.1974. The post of Gallery Supervisor was upgraded to that of Assistant Secretary in a higher scale which was admissible to the officers of Class-II under the State Government as per letter dated 17.5.1977 of the Department of Tourism and Cultural Affairs. From 28.5.1977, the Petitioner started drawing such scale of pay and continued to work as Assistant Secretary against the said post.
3. By virtue of Clause-7 (a) of the Constitution of the Academy, the Petitioner was ordered to act as the Secretary of the said Academy for a period of one year by Order dated 30.3.1983 of the Government. The Petitioner, pursuant to the said letter, on assuming the office of the Secretary, intimated the same to the Government by letter under Annexure-5. Again by Order dated 19.5.1984 under Annexure-6, the Under Secretary to Government in the Department of Tourism, Sports and Culture, permitted the Petitioner to continue as Secretary of the Academy for a further period of one year with effect from 30.3.1984. The said period was extended from time to time by the Government. The Orissa Revised Scale of Pay Rules, 1985 came into effect from 1.1.1985 pursuant to which the scale of pay of the Petitioner i.e., Rs. 525-1300/- was revised to Rs. 1350-2975/-. In consonance thereto, the Petitioner's scale of pay was fixed at Rs. 2235/- by the Academy as per the pay fixation statement prepared by the Academy on 31.3.1985 which was approved by the Government on 25.4.1986 under Annexur-7 to the Writ Petition. The same was again reiterated in the office order of the Academy under Annexure-8. The period of service of the Petitioner having been extended from time to time by the Government, he continued as Secretary of the said Academy till there was again a pay revision by the Government in 1989, pursuant to which, the scale of pay of the Petitioner was fixed at Rs. 2000-3500/- vide Annexure-10. With effect from 1.4.1991, the post of Secretary of the Academy was up-graded from Class-II rank to Class-I rank (junior) at par with Class- I (junior) cadre of the Government service in the scale of pay of Rs. 2200-4000/- with effect from 1.4.1991 as per the Government letter dated 18.8.1992 annexed as Annexure-12/1 to the Writ Petition. Accordingly, the scale pay of the Petitioner was re-fixed pursuant to office order of the Academy dated 18.8.1992. The Petitioner on completion of age of 58 years, was to retire from service on being superannuated with effect from 31.3.1998. By letter dated 26.8.1997, the Academy wrote to the Government for approving the retirement of the Petitioner with effect from 31.3.1998. But as there was delay in communication of the order of the Government, which was ultimately issued on 12.5.1998, the Petitioner continued to discharge his duties from the date of his superannuation, i.e., on 31.3.1998 till 12.5.1998 and the Government by notification dated 12.5.1998 regularized the above period of service of the Petitioner under Annexure-18 to the Writ Petition.
4. Thus, from the above, it appears that the Petitioner continuously served in the Academy in different capacities from the year, 1965 and as the Secretary from 31.3.1983 till he was superannuated which was more than fifteen years.
5. On the above facts, the Petitioner has claimed that the Academy being a registered Society and by resolution dated 24.11.1973 of the Department of Tourism and Cultural Affairs, Government of Orissa, Rules having been framed with regard to regulating sanction of grant-in-aid to the Academy and further it being apparent from the Constitution of the Academy that the Authorities of the State have direct control over the employees of the Academy and under the Rules, 1994, the Petitioner is entitled to retiral benefits like pension, gratuity etc. as provided to the employees of the Universities in the Orissa Universities (first Statute) 1990 and other Rules and Regulations issued under the Orissa Universities Act, 1989. The Petitioner further claims that he has not drawn the employees share of his C.P.F. which is still with the authorities and has opted for pension and other pensionary benefits, and, accordingly, after retirement, he submitted his pension papers along with forwarding letter dated 10.11.1998, and, thereafter, has issued reminder in that regard for grant of pensionary benefits. In spite of the above, such benefits having not been granted in favour of the Petitioner, he has approached this Court under Article 226 of the Constitution for appropriate relief.
6. A counter affidavit has been filed by the Opp. Parties 1 and 2 being the State of Orissa and the Director of Culture, Orissa, denying the liability of the State to pay such retiral benefits to the Petitioner and, inter alia, stating that the Petitioner being an employee of the Academy which is not a State Government Organization, but a registered Society, the Petitioner has absolutely no right, under law to avail terminal benefits which are being granted to the Government employees and the organization being an Academy, is governed by its own rules and regulations and not by the rules and regulations which govern the Government employees. However, it has been stated in the counter affidavit that by the provisions of the constitution of the Academy, the State Government has been authorized to create posts and to provide Grant-in-aid to the Academy and the Petitioner being an employee of the Academy, was enjoying the benefits of up-gradation, who was not an employee of the State Government. It has been asserted in the counter affidavit that the Revised Scale of Pay Rules is not applicable to the employees of the Academy and the same was never applied as the authority for revising the scale of pay lay with the executive body and general body of the Academy. Rule 3 of the Rules 1994 has been quoted in the counter affidavit in support of the contentions of the Opp. Parties that the State is not liable to pay the retiral benefits. In support of the contentions raised in the counter affidavit, reliance has been placed on an order of this Court passed on 6.3.2000 in O.J.C. No. 8998 of 1996 (Dhirendra Nath Pattnaik, Ex-Secretary, Orissa Sangit Natak Academy v. State). The Opp. Parties have claimed that the Writ Petition being devoid of merit is liable to be dismissed.
7. A rejoinder affidavit has been filed by the Petitioner denying the contentions raised in the counter affidavit. It has been further asserted in the rejoinder affidavit that it is the Government, which has framed the rules governing the service conditions of the employees of the Academy and for implementation of such rules, the entire funding is being done by the Government. The Petitioner has averred that to carry out the various instructions of the Government, the Academy only passes resolution for smooth implementation of such rules and instructions. In a resolution dated 30.3.1976 published in the Orissa Gazette on 14.5.1976, the Government resolved to allow revision of pay scale for the employees of the Academy as admissible to their counter-parts in Government. This was done keeping in view the policy of the Government as laid down in paragraph 2 of the said resolution which has been annexed to the rejoinder affidavit as Annexure-34. The Petitioner has also annexed a letter of the Government dated 30.4.1996 as Annexure-35 wherein the Government issued instruction to the Director, Calture, Orissa to the effect that the pay fixation statements of the staff of the Academy are to be checked by the Director of Culture, Orissa and the Accounts Officer of the Directorate should function as the Treasurer of such organization. The Petitioner has referred to a number of other correspondences and resolutions of the Government in the rejoinder in support of his contention that it is the State Government which is in direct control of the services of all employees working under the various Academies in the State and on the above basis, the Petitioner has claimed that it is the State Government who is to provide the retiral benefits to an employee of the Academy.
8. Mr. Rath, Learned Counsel for the Petitioner drew the attention of the Court to the various resolutions and letters of the Government already referred to above to show that the Government in its Department of Tourism and Cultural Affairs, is in direct control over the employees of the Academies in relation to their fixation of pay, promotion and other service conditions.
9. It appears from the Annexure-22 which is a resolution dated 24.11.1973 of the Department of Tourism and Cultural Affairs, Government of Orissa, that the Government by the said resolution, which was published in the Orissa Gazette, framed 'Rules regulating sanction of Grant-in-aid to the Orissa Sahitya Academy/Orissa Sangeet Natak Academy/Orissa Lalitkala Academy and Orissa Council of Sports'. A bare reading of the said resolution clearly shows that all the above Academies including the Orissa Council of Sports were fully funded by the Government in shape of Grant-in-aid.
10. By the notification dated 8.12.1994 of the Sports, Culture and Youth Services Department, Government of Orissa, published in the Orissa Gazette on 30.12.1994, a set of rules have been framed by the said Department called as 'Orissa Academies Employees Provident Funds and Terminal Benefits, Rules, 1994. The Orissa Lalitkala Academy under which the Petitioner was serving has been included within the definition of the 'Academy' in the schedule. The relevant Clauses (3) and (4) of. the said Rules are quoted herein below:
3. Establishment of Funds-(1) There shall be established by the Academic Special Funds styled as the Pension Fund, the General Provident Fund and the Contributory Provident Fund.
(2) The Funds mentioned in sub-rule (1) shall be operated by the Committee as per such detailed procedure as may be determined by the Committee in consultation with the Government.4. Adoption of the provisions under the Orissa Universities Act for the Employees of the Academic- (I) Subject to the provisions contained hereinbefore, the provisions contained in the Orissa Universities Final Statutes, 1990 and other regulations and instructions issued under the Orissa Universities Act, 1989 of the Statutes thereunder (as amended from time to time) relating to Contributory Provident Fund, General Provident Fund, Pension, Gratuity and other terminal benefits shall be applicable to the employees of the Academic mutatis mutandis.(2) The Government may issue executive instructions for the guidance of the Academic on operational matters.
11. At this juncture for deciding the issue involved, it is felt necessary to refer to Rules 3, 4 and 5 of the Rules regulating sanction of Grant-in-aid to the various Academies including the Orissa Council of Sports framed as per resolution dated 24.11.1973 as stated earlier. The said Rules are quoted hereunder:
Rule 3-The purposes to which the grants to the Akademies and Sports Council may be applied include all objects expressly declared obligatory in their respective constitutions and in general everything incidental to the administration of the said purpose and the grants shall be applicable thereto subject to these rules or special orders as the Government may make or issue.
Rule 4- The Akademies and the Sports Council shall on or before the 31st of August of every year furnish their respective annual budget estimates for the coming year to the Director along with copies of the resolutions of the respective General Councils/Council adopting the said budget estimates.
Rule 5-The budget estimates on the expenditure side shall provide for (i) pay and allowances of the establishment, (ii) furniture, fixture and office equipments, (iii) fittings and replacements, (iv) water and lighting charges, (v) books, periodicals and other publications, (vi) construction and repairs, (vii) experimental operations, (viii) instruments, equipments and apparatus, (ix) printing and stationary charges, (x) telegram and telephone charges (xi) liveries and clothing, (xii) hot and cold weather charges, (xiii) law charges, (xiv) purchase and maintenance of motor vehicles, (xv) rents, rates, and taxes, (xvi) miscellaneous items of office expenditure, (xvii) expenses of attached recreation centres, (xviii) requirements for festivals and seminars, (xix) grants and awards to different affiliated bodies, recognized cultural institutions and individual artists and (xx) such other items of expenditure as may be necessary for carrying on the activities of the Akademies/Sports Council. In the receipt side of the budget estimates all items of anticipated revenue like interest on investments, sale proceeds of publications, miscellaneous recoveries, sale proceeds of unwanted articles and other items of receipts of miscellaneous nature shall be taken as credit.
12. It further transpires that the Government of Orissa by its notification dated 27.5.1995 published in the Orissa Gazette on 9.6.1995, framed a set of rules, called 'The Orissa Academies Conditions of Service Rules, 1998'. From the said rules, it is clear that the Government prescribed the various service conditions of the employees of the Academies.
13. A conjoint reading of the Rules 3, 4 and 5 of the Rules regulating the sanction of Grant-in-aid to the Academies and rules 3 and 4 of the Orissa Academies Employees Provident Funds and Terminal Benefits Rules, 1994 would go to show that the Government, as a matter of principle, decided that the employees of the Academies will be entitled to pension, general provident fund and contributory provident fund as retiral benefits, for which funds styled as pension funds, general provident funds and contributory provident funds shall be established by the concerned Academy and such funds shall be operated by the committee as per detailed procedure as may be determined by the committee in consultation with the Government. The provisions under the Orissa Universities Act shall be adopted for the employees of the Academies as contained in the Orissa Universities First Statute, 1990 and other Regulations and instructions issued under the Orissa Universities Act, 1989 or the statutes thereunder as amended from time to time relating to Contributory Provident Fund, General Provident Fund, pension, gratuity and other terminal benefits shall be applicable to the employees of the Academy, mutatis and mutandis.
14. Perusal of the Orissa Universities First Statute, 1990 discloses that every employee retiring on or after the 1st day of April, 1986 shall be entitled either to the benefit of the pension scheme as applicable to the State Government employees as amended from time to time or to the benefit of the Contributory Provident Fund of the University provided in Chapter- V of the said Statute. Clause 289 (1) of the said Statute specifies that the existing employees shall exercise their option under the Statute in writing either for the pension scheme or for contributory provident funds scheme within a period of six months from the date of the said Statute came into force.
15. The Petitioner has asserted in the Writ Petition that he opted for pension and other pensionary benefits as per the provisions of the Orissa Universities First Statute, 1990. The said assertion has neither been answered nor denied in the counter affidavit filed by the State.
16. As it is seen that rules framed under the resolution dated 24.11.1973 with regard to sanction of Grant-in-aid to the Academies, relevant provisions of which have been extracted earlier, clearly show that the purpose to which the grants to the Academies may be applied, include all objects expressly declared obligatory in their respective constitutions and in general, everything incidental to the administration of the said purposes and the grants shall be applicable thereto subject to those rules or special orders as the Government may issue and the Academies are required to furnish their respective budget estimates for the succeeding year to the Director along with copies of the resolutions on or before 31st August of every year. The budget estimates on the expenditure side are required to provide for pay and allowances of the establishment along with other expenditures including such other items of expenditure as may be necessary for carrying on the activities of the Academies. It is, therefore, clear that the Academies are required to establish pension fund etc. and the requirements for paying pension under the above quoted terminal benefits Rules, 1994 should be mentioned in the annual budget and upon such provision being made in the budget, the Government is to provide the said amount to the concerned Academy for payment of pension and other retiral benefits to its employees who have retired from the service.
17. In view of the above analysis, it is clear that the State Government cannot avoid its responsibilities from providing funds for payment of pension and other retiral benefits of the retired employees of the various Academies, more so when, the Government is exercising direct control over such employees with regard to their service conditions under the Orissa Academies Conditions of Service Rules, 1995, the grant-in-aid under the Rules regulating sanction of Grant-in- aid and the Academies/Employees Provident Fund and Terminal Benefits Rules, 1994.
18. This Court is, therefore, unable to accept the contention raised on behalf of the State that the Petitioner being an employee of Lalitkala Academy, the State Government has no responsibility and it is not legally bound to pay the retiral benefits including pension to the Petitioner. No doubt, the committee of the Lalitkala Academy is required to make the provisions for payment of pension and other retiral benefits to its employees in its annual budget. Upon making such provision, the State Government is required to provide funds for the above purpose.
19. In view of the above, this Writ Petition is allowed with a direction upon the Opp. Party No. 3 being the Secretary, Lalitkala Academy to make provision for the pensionary benefits along with all other retiral benefits including the arrears to which the Petitioner is entitled to receive, in the annual budget to be submitted to the Government as per Rule 3 of the Rules regulating sanction of Grant-in-aid by 31.8.2007. On such provision being made, the State -Opp. Party No. 1 is directed to provide the said funds required for payment of retiral benefits including payment of pension to the Petitioner as may be quantified in the budget, to the Lalitkala Academy, on receipt of which, the authorities of the said Academy will disburse the said amount to the Petitioner.
21. It is needless to mention that as the said Petitioner will be receiving pension every month, the Academy is required to make provision for the same in its annual budget every year.