The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.288 of 2024 Binaya Kumar Sinha …. Petitioner Mr. B.K. Pattanaik, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Nikhil Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 16.01.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
Legal Reasoning
2. Heard Mr. B.K. Pattanaik, learned counsel appearing for the Petitioner as well as Mr. Nikhil Pratap, learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “Under the facts and circumstances of the case, the Petitioner fervently prays to this Hon’ble Court to be graciously be pleased to issue notice to the Opposite parties and after hearing the counsel for the parties issue writ of mandamus commanding the Opposite Parties to regularize the service of the petitioner from the date of appointment dated 01.11.1990 in place of 14.08.2015 till the date of // 2 // retirement for the purpose of continuity of service to get the pension and along with other service benefit by quashing the order no.19697 dated 05.10.2023 under Annexure-20. And issue such other writ, order or direction as will do complete justice to the petitioner.” 4. The factual backdrop leading to filing of the present writ petition, in a nutshell, is that the Petitioner was appointed initially as a NMR on 01.11.1990. The Petitioner continued to work as such till he was absorbed subsequently. While the Petitioner was discharging his duties uninterruptedly to the satisfaction of the authorities, on 17.10.2012, names of eligible employees were sent to Government for concurrence in respect of absorption of service of such employees, who were engaged prior to 12.4.1993. Such list includes the name of the Petitioner. It further appears that the Petitioner along with others earlier approached this Court by filing W.P.(C) No.20298 of 2013 for regularization of their service as Junior Assistant. Thus, the said
Decision
writ petition was disposed of by a coordinate Bench vide order dated 08.05.2015 with a direction to the Opposite Parties to consider the case of the Petitioner within four months from the date of communication of a copy of that order. 5. While the matter stood thus, the Opposite Parties finally, vide order dated 14.08.2015, absorbed the Petitioner against a regular post of Junior Assistant. On being appointed as a Junior Assistant against the regular post, the Petitioner continues to discharge his service against such post. Finally, on 14.01.2019, the Petitioner submitted a representation for regularization of his // 3 // service w.e.f. 01.11.1990. Since the authorities did not take any action on the representation of the Petitioner, the Petitioner was compelled to approach this Court by filing W.P.(C) No.25038 of 2023. The said writ petition was disposed of vide order dated 17.08.2023 with a direction to the Opposite Parties to consider the representation of the Petitioner dated 14.01.2019 within a stipulated period of time. After disposal of the above noted second writ petition filed by the Petitioner, though the Petitioner approached the Opposite Party No.3, the Opposite Party No.3 rejected the claim of the Petitioner for regularization of his service w.e.f. 01.11.1990. 6. Mr. Pattanaik, learned counsel appearing for the Petitioner, at the outset, submitted that the Opposite Parties have illegally rejected the case of the Petitioner for regularization of his service w.e.f. 01.11.1990 vide order dated 05.10.2023 under Annexure-20 to the writ petition. In the aforesaid context, he further contended that although similarly situated persons, namely, Dwarikanath Naik and Rashmi Ranjan Singh have been regularized in service by taking into consideration their past service, however, similar benefit has not been given to the present Petitioner. Further, referring to the rejection order, learned counsel for the Petitioner submitted that the Opposite Parties have tried to draw an artificial distinction between the Petitioner and the law laid down by this Court in Sk. Abdul Motalib v. State and others (W.P.(C) No.32200 of 2022 decided on 04.01.2023). He further contended that the Opposite Parties did not apply the law laid by this Court in Sk. Abdul Motalib’s // 4 // case (supra) by taking a plea that the above named Sk. Abdul Motalib’s case (supra) was working in the cadre of P.R.&D.W. Department, however, the present Petitioner belongs to the LFS Cadres. 7. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that the case of the present Petitioner cannot be equated with the two persons the Petitioner has referred to. He further contended that after disposal of the earlier writ petition, the case of the Petitioner has been duly considered by the Opposite Parties and since the Opposite Parties have found that the Petitioner is not eligible for regularization w.e.f. 01.11.1990, his prayer for such regularization has been rightly rejected. Learned Additional Standing Counsel further contended that with regard to admissibility of pensionary benefits under the OCS (Pension) Rules, 1992, the Opposite Parties have considered the same in the impugned rejection order under Annexure-20 to the writ petition and they have category held that since the Petitioner was appointed after the cut-off date, i.e. 18.1.2005, therefore, he is not covered under the OCS (Pension) Rules, 1992 in view of the Finance Department Notification dated 17.09.2005. It was also contended that the Petitioner was appointed as a Junior Assistant only in the year 2015, i.e. much after the Pension Rule was amended in the year 2005. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner shall be covered under the new pension scheme and not under the OCS (Pension) Rules, 1992. In the aforesaid background, // 5 // learned counsel for the Petitioner submitted that the present writ petition is devoid of merit and, as such, the impugned order under Annexure-20 does not call for any interference by this Court. 8. Having heard the learned counsels appearing for the respective parties and on a careful examination of the factual background of the present case as well as the materials on record and on a careful scrutiny of the impugned rejection order under Annexure-20, this Court is of the view that the sole question that falls for consideration in the present writ petition is as to whether the Petitioner is eligible to be covered under the OCS (Pension) Rules, 1992 or not. While replying to the aforesaid question, this Court is required to examine as to when the Petitioner was appointed and as to whether he can be given the benefits under the OCS (Pension) Rules, 1992 in view of the law laid down by this Court in various judgments. 9. On a careful scrutiny, it was observed that the Petitioner was initially appointed on NMR basis w.e.f. 01.11.1990 and such fact has not been disputed by the Opposite Parties. Thereafter, while the Petitioner was continuing as such, he was absorbed against a regular post of Junior Assistant on 14.08.2015 and is continuing in the said post as of now. Therefore, it is to be decided as to whether the Petitioner was appointed after 1.1.2005, which is the cut-off date pursuant to the amendment to the OCS (Pension) Rules, 1992. On a careful analysis of law, this Court observes that the question that is // 6 // involved in the present writ petition had already been answered by this Court in Sk. Abdul Motalib’s case (supra) as well as in Rabindra Kumar Jena v. State of Odisha and others (W.P.(C) No.36009 of 2021 decided on 07.12.2022). 10. In view of the aforesaid analysis, this Court is of the considered view that the impugned order dated 05.10.2023 under Annexure-20 to the writ petition is unsustainable in the eye of law. Accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.3 to consider the matter afresh by taking into consideration the judgments of this Court in Sk. Abdul Motalib’s case (supra) as well as in Rabindra Kumar Jena’s case (supra) and further while considering the grievance of the Petitioner, the Opposite Party No.3 shall also take into consideration the fact that the two employees, namely, Dwarikanath Naik and Rashmi Ranjan Singh, have been extended such benefits and, accordingly, dispose of the grievance of the Petitioner by passing a speaking and reasoned order within a period of two months from the date of communication of a certified copy of this order. 11. With the aforesaid observation and direction, the writ petition is disposed of. Signature Not Verified Debasis Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 20-Jan-2024 14:35:32 ( A.K. Mohapatra) Judge