S.C. Mohapatra, J.
1. This writ application has been filed under Article 226 of the Constitution of India for arrear salary, arrear pension and security deposit of the deceased husband of the petitioner outstanding with the State Government. Petitioner has also claimed pension under the Family Pension Scheme as widow of late A. D. Bhavanasi who expired on 10.10. 1968.
2. Late Bhavanasi was a ministerial servant under Madras Presidency.On formation of the Province of Orissa on 1.4.1935, he became an employee under the Provincial Government of Orissa. While continuing as such he retired on superannuation on 13.3.1957. Thereafter he was re-employed till 13.6.1959. While in service he was occupying a Government quarters on rent. After retirement he continued to occupy the same till his death and since then widow of late A. D. Bhavanasi and his legal representatives occupied the same. Late Bhavanasi filed a suit claiming to be the owner of the house which he lost. The State Government filed a suit for recovery of damages for illegal occupation of the quarters in 1968 in which Rs. 50/-per month was fixed as damages beginning from 13.6.1969.
3. Late Bhavanasi was to get Rs. 4,613. 48 paise, towards his arrear pay. He was also entitled to get Rs. 6,714/- towards the pensionary dues. Thus the total amount comes to Rs. 11, 327. 48 paise. It was stated in the counter affidavit that the petitioner was not entitled to family pension since late Bhavanasi retired much prior to the introduction of the Scheme. So far as security deposit, it was stated that late Bhabanasi has to pay Government dues for which the security was not refunded. As regards the pension, it was stated that late Bhavanasi dragged the State Government to litigation for which his pension was also liable to be reduced. Late Bhavanasi during his life time did not submit the pension papers. It was claimed in the counter affidavit that the State Government was entitled to recover Rs. 12,809/- from late Bhavanasi and his legal representatives including the petitioner and adjusting the amounts payable to him a sum of Rs. 1,431. 52 paise was yet to be recovered. It may be stated that the refund of Rs. 300/-, the security amount, has not been taken into consideration which would reduce the claim of the State Government to Rs. 1,181. 52 paise. In Commerce and Transport (Ports) Dipartment letter No. 2662/PO. dated 22. 7. 1980, the petitioner was requested to give her willingness for setting off the dues against the calculated dues of pension. She gave a reply in her letter dated 28. 7.1980 expressing her willingness for the same subject to the condition that Government would intimate her the total amount due to Government and the amount she is expected to get from the Government after deducting the amount payable by late Bhavanasi. As it was found that the Government dues were more than the dues payable to late Bhavanasi, no intimation was given to her.
4. This case reveals how the officers of the State Government take the law to their own hands without taking recourse to the remedy available in law.
5. On 13. 3. 1957, when late Bhavanasi retired, the provisions of the Civil Service Regulations and various executive orders and officers memoranda were applicable for grant of pension to the retired employees. Article 916 provides that the preparation of service statement and the verification of service shall be under-taken by the Head of the Office one year before the date on which an officer is due to retire on superannuation or on the date on which he proceeds on leave preparatory to retirement whichever is earlier and shall not be delayed till the officer has actually submitted the formal application for pension. After completing the verification provided in Article 915 the Head of the Office is to draw up the application in Form 25. Article 917 (a) provided ;'This should be done irrespective of the fact whether a formal application for pension has been received from the officer or not. Article 909 provides that the questions affecting the pension or pensionable service of an officer which for their decision depends on circumstances known at the time shall be considered as soon as they arise. Any question which for their decision depends on possible circumstances that may arise in future or on hypothetical conditions may be raised or discussed as soon as the permissible period for submission of formal application for pension under Article 907 begings. Under Article 22 provision for anticipatory pension has been made where the pension cannot be finally assessed immediately. Article 924 provides that the payment of anticipatory pension should be so arranged that it is not delayed beyond the first day of the month following the month in which the officer is due to retire. These provisions have been made keeping in view that an employee retiring gets his pension immediately so that he will not have the undue financial burden on him and can enjoy his retired life. No fact has been brought to our notice that this has been done, In 1977 when a new set of rules called the Orissa Pension Rules were made under Article 309 of the Constitution the same principle has been introduced therein also. In spite of these rules, there was much delay in finalising the pension cases of the employees The State Government was always anxious that the officers are not put to difficulty. Near about the ritirement of late Bhavanas circular was issued to all Departments of Government, Heads of Departments, District Offices and others for expeditious disposal of perision cases, in Circular Memo. No. O. & M.-106/57-217(86)-Gen. dated 6.1.1958 of the Political and Services Department. The relevant portion is extracted below :
'Delay in disposal of pension applications has been attracting the attention of Government for some time past. Quite a large number of instructions and circulars have been issued from the Finance Department with a view to their expeditious disposal. Government observe with concern that in spite of these instructions from time to time long delays continue to occur in sanctioning pension causing great hardship to the retired Government servants. Government attach the highest importance to control disposal of pension applications and to sanction of pension in time so that Government, servants are not put to any difficulty after their retirement..........'
The intention of the State Government and the rules relating to pension are so clear that non-filing of an application by a retired Government servant would not keep the machinery at halt. From what has been stated above a plea cannot be taken that as late Bhavanasi, did not. file the application for pension it was not given to him.
6. The Orissa Service Code makes provision in respect of residence of Government servants under Rules 104 to 115. These are the conditions of service of an employee to whom the Orissa Service Code applies. Rule 107-A, as it was prevalent in the year 1957 or even in 1959, reads as follows :
'107-A. If a Government servant to whom a residence is allotted is dismissed or retires from the service, the allotment, to him of the residence shall be cancelled, with effect from the date five days after the date of dismissal or retirement, as the case may be or with effect from the date on which the , residence is actually vacated, whichever is earlier :
Provided that while the allotment subsists under this rule, rent shall be charged at the same concessional rate as was being paid by the Government servant before dismissal or retirement and, if the residence was being occupied by him rent-free, no rent shall be charged.If a Government servant to whom a residence is allotted dies, the allotment shall be cancelled from the date of expiry of the period laid down in Rule 5 of Appendix 13 of the Orissa Travelling Allowance Rules. No rent shall be recovered for. the period.'
No evidence has been led that this rule has been followed by the officer allotting the quarters to late Bhavanasi. It is astonishing that the officers incharge of controlling the administration of quarters occupied by late Bhavanasi tolerated him till 1968 when a suit for damages on account of unauthorised occupation was filed. In this process, an officer who was retired was tolerated for about nine years to occupy a Government quarters to embolden him to file a suit claiming to be the owner of the Government quarters, though ultimately failed.
7. Even after getting the decree it was not executed. No evidence has been led to show that by the date of decree the pension amount was calculated. The matter was dealt in a very casual manner, as if to sympathise a retired Government officer, violating the norms of the rules and conditions of service applicable to him. It is in the year 1980, for the first time, as is disclosed from the Court Affidavit that the Commerce and Transport (Ports) Department addressed letterNo. 2562/PO. dated 22.7.1980 to the petitioner to give her willingness for setting off the dues against the calculated dues of pension. What were the dues payable to late Bhavanasi were not indicated in that letter. Naturally, a helpless widow, as she was, sent a reply that she should be intimated the amount due to the Govt. and the amount, she is expected to get from the Government after deducting the same from the dues. No reply was sent to her on the ground that on calculation it was found that still some more amount would be payable by late Bhavanasi. Rule of law has been observed by the officers of the State Government more in its breach.
8. Under Order 21, Rule 2(1), C. P. C, the decree-holder is to certify adjustment of the decretal amount or any part thereof to the Court which is to execute the decree and the same is to be recorded. Besides not executing the decree immediately, no certificate as provided under Order 21, Rule 2(1), C. P. C, has been given.
9. This is a peculiar case having its own difficulties for both the parties. While the conduct of the pensioner was not clear, the conduct of the authorities was also not above board, as discussed earlier. In the counter affidavit it has been disclosed that the petitioner has got no assets from which the balance amount can be recovered. The petitioner is an old ailing widow with one step forward to the grave as stated at the Bar. In the peculiar circumstances of the case, taking into account the liabilities and the conduct of both the parties, we feel that interest of justice would be served in case a consolidated sum of Rs. 2,000/-is paid to the petitioner by the 31st January, 1985. The State Government which has obtained the decree against late Bhavanasi will certify to the Court under Order 21, Rule 2(1), C. P. C., that the decree has been satisfied. The slate on both sides has thus become clean.
10. With the above directions, the writ application is allowed. In the facts and circumstances of the case, we make no order as to costs.
R.C. Patnaik, J.
11. I agree.