Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO. 4878 OF 2012 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Mohammad Yakub ..… Petitioner -Versus- Commissioner-cum-Secretary to Government of Odisha, Water Resources Department and others ….. Opp. Parties For petitioner : M/s. D.P. Jena, Sukanti Sahoo, R. Swain, J. Rout & S.M. Ali, Advocates For opp. parties : Mr. B. Mohanty, Addl. Government Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY DECIDED ON : 12.04.2024 DR. B.R. SARANGI,J. The petitioner, by means of this writ petition, seeks to quash the order dated 07.02.2012 passed in O.A. No.121 of 2012 under Annexure-4, by which the Odisha Administrative Tribunal, Bhubaneswar, while disposing of the said O.A., observed that since during the tenure of services the petitioner Page 1 of 15 // 2 was not brought to wages/regular establishment and, as such, at the time of his retirement he was not in pensionable establishment, at a later stage no direction can be issued for bringing over him from work-charged establishment to wages/regular establishment and, thereby, held that the relief sought cannot be entertained at the belated stage both on merits as well as on the ground of limitation. 2. The factual matrix of the case, in brief, is that the petitioner entered into service on 17.07.1968 as a Khalasi in M.I. Sub-division, Northern Minor Irrigation Circle, Sambalpur. Being a matriculate, on 01.01.1981, he became Junior Store Keeper in the same Sub- division. He retired from service, on attaining the age of superannuation, on 30.04.2005, after rendering 36 years 9 months 15 days. Earlier, for regularization of his services, the petitioner had approached the Odisha Administrative Tribunal, Sambalpur Bench, Sambalpur by filing O.As. No. 32(S) of 2005 and No. 27 (S) of 2006 and the Tribunal disposed of the said O.As. with a direction to the competent authority to consider the case Page 2 of 15 // 3 of the petitioner by treating the paper book as representation. 2.1. On 13.05.2011, opposite party no.4 sent the detail service particulars of retired work-charged employees to opposite party no.3 for bringing them to the wages establishment, wherein the name of the petitioner was also included. Opposite party no.1, vide letter dated 06.08.2011, communicated opposite party no.3 indicating that in terms of para-10 of the Finance Department Resolution dated 15.05.97, the consideration of regularization of retired work-charged employees with retrospective effect would be against the spirit of government resolution. 2.2. However, opposite party no.4 considered the cases of four persons from Northern Minor Irrigation Circle, Sambalpur, who were retired as work charged employees, and prepared a list, wherein petitioner was placed at serial no.1. Surendra Kumar Sahoo, who was at serial no.3 and had retired from service on 31.03.05, approached the Tribunal by filing O.A No. 112 of 2008 seeking direction for regularization of his service and Page 3 of 15 // 4 disbursement of his pensionary benefits and the Tribunal, taking note of the provisions of the Finance Department Resolution dated 15.05.1997, disposed of the said O.A., vide order dated 03.07.2009 under Annexure-3, with a direction to the opposite parties to treat the petitioner therein as regularized on 31.03.2005 and fix his pay in regular establishment on the date notionally and his service be made pensionable giving him the pensionary dues within a period of 6 months from the date of receipt of copy of the order. 2.3. Challenging the said order dated 03.07.2009 passed in O.A. No.112 of 2008, the State preferred writ petition before this Court and the said writ petition was dismissed and consequentially, Surendra Kumar Sahoo got pensionary benefits. Thereafter, the petitioner, claiming to be similarly situated with Surendra Kumar Sahoo, approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No. 121 of 2012 with a prayer to quash the letter dated 06.08.2011 under Annexure-2, wherein it was indicated that in terms of para 10 of the Finance Department Resolution dated Page 4 of 15 // 5 15.05.1997 the consideration of regularization of retired worked charged employees with retrospective effect would be against the spirit of Govt. Resolution. Though the petitioner cited the order dated 03.07.2009 passed in O.A. No.112 of 2008 under Annexure-3, the Tribunal, without going through the contents of Annexure-3, dismissed O.A. No. 121 of 2012, vide order dated 07.02.2012, taking into consideration other decisions of the Tribunal. Hence, this writ petition. 3.
Legal Reasoning
on record, this Court finds that there is no dispute with regard to the fact that the petitioner was serving in the work-charged establishment in M.I. Sub-Division, Sambalpur and he retired from his service on attaining the age of superannuation on 30.04.2005. After retirement, he claimed pensionary benefits and regularization of service from the initial date of appointment, but the same having not been extended, he approached the Odisha Administrative Tribunal, Sambalpur by filing O.A. No.32(s) of 2005 and the Tribunal, vide order dated 23.12.2005, disposed of the said O.A. directing opposite party no.1 to treat the O.A. as representation and dispose of the same within a period of six months from the date of communication of the order and communicate the result to the petitioner within a period of three weeks thereafter. But the same was considered and rejected vide order dated 04.03.2006. Challenging the said order, the petitioner again approached the Tribunal by filing O.A. No.27(S) of 2006 for regularization of his service and the Tribunal, vide order dated 15.05.2006, directed opposite party Page 10 of 15 // 11 no.1 to treat the Original Application as the representation of the petitioner and dispose of the same by a speaking order within a period of three months from the date of communication of the order. Thereafter, opposite party no.4 brought over the petitioner along with Surendra Kumar Sahoo and Banamali Khandei to wages establishment of M.I. Division and the name of the petitioner was placed at serial no.1 in the list. Opposite party no.1, on 06.08.2011, passed order directing opposite party no.3 that proposal for bringing over 20 nos. of work-charged employees (retired/died) to the wages establishment have been examined and observed by the Finance Department on 04.07.2011 that as per para-10 of the Finance Department Resolution dated 15.05.1997, the date of appointment should be reckoned for pensionary and other service benefits and consideration of regularization of retired work-charged employees with retrospective effect would be against the spirit of Govt. Resolution. Therefore, the petitioner again approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No.121 of 2012 challenging the order dated 06.07.2011 relating to rejection of Page 11 of 15 // 12 consideration of 12 nos. of work-charged employees and sought for direction to the opposite parties to disburse pension and pensionary benefits including DCRG in his favour taking into consideration the date of retirement on 30.04.2005. But the Tribunal, vide order dated 07.02.2012, dismissed the said O.A. It is contended that one Surendra Kumar Sahoo, who retired on 31.03.2005, had approached the Tribunal by filing O.A. No.112 of 2008 seeking direction for regularization of his service and disbursement of his pensionary benefits and the Tribunal, taking note of the provisions of the Finance Department Resolution dated 15.05.1997, disposed of the said O.A., vide order dated 03.07.2009, with a direction to the opposite parties to treat the petitioner, namely, Surendra Kumar Sahoo as regularized on 31.03.2005. Against the said order, the State preferred writ petition before this Court and the same was also dismissed, as a consequence thereof said Surendra Kumar Sahoo was granted pensionary benefits. Therefore, since the petitioner stands on the similar footing with Surendra Kumar Sahoo, he cannot be Page 12 of 15 // 13 discriminated in the matter of extending pensionary benefits as due and admissible to him. 7. It is well known that the provisions contained in the Odisha Work Charged Employees (Appointment and Condition of Service) Instruction, 1974 envisage that the work-charged employees are not entitled for payment of pension by the nature of assigned job as well as condition of engagement of work-charged employees. To the same effect is also Rule-18(2) of the Odisha Pension Rules. Thereby, the Tribunal is well justified in passing the order impugned and consequentially the claim of the petitioner for regularization of his service and extension of pensionary benefits cannot be sustained in the eye of law. Mr. Mohanty, learned Addl. Government Advocate has placed reliance on the judgment of the apex Court in Maheshwar Pandey v. State of Bihar, 2023 LiveLaw (SC) 371, wherein it has been held that the entire service as work-charged employee cannot be counted towards pension. The work-charged employees are not appointed on a substantive post. They are not appointed after due process of selection and as per the recruitment rules. Page 13 of 15 // 14 Consequentially, the services rendered as work charged cannot be counted for the purpose of pension or quantum of pension. 8. The above being the principle of law laid down by the apex Court, the same is binding on this Court. But fact remains, when the order dated 03.07.2009 passed by the Tribunal in case of Surendra Kumar Sahoo in O.A. No.112 of 2008 under Annexure-3 was challenged by the State before this Court, the same was dismissed and said Surendra Kumar Sahoo was extended with the benefit. Since petitioner’s name finds place at sl. no.1 of the said list, wherefrom Surendra Kumar Sahoo was given the benefit, the petitioner stands on similar footing with Surendra Kumar Sahoo and, therefore, he cannot be denied such benefit. 9. In the above view of the matter, the order dated 07.02.2012 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No. 121 of 2012 under Annexure-4 cannot be sustained and is liable to be quashed and is hereby quashed. In the peculiar facts and circumstances of the case, the opposite parties are Page 14 of 15 // 15 directed to pass appropriate order taking into account the grievance of the petitioner and keeping in view the case of Surendra Kumar Sahoo. 10. In the result, therefore, the writ petition is allowed. But, however, in the facts and circumstances of
Arguments
Mr. D.P. Jena, learned counsel appearing for the petitioner contended that the petitioner, while working as Junior Store Keeper in the work-charged establishment, M.I. Sub-Division, Sambalpur, retired from his service on attaining the age of superannuation on 30.04.2005 and, as such, by the time he retired, he had already served 36 years 9 months 15 days under the opposite party-authorities as Junior Store Keeper. Since prior to the date of retirement he was not brought over to wages/regular establishment, no pension and other retiral benefits were extended in his favour, for which he approached the Odisha Administrative Tribunal, Page 5 of 15 // 6 Sambalpur by filing O.A. No.32(s) of 2005 and the Tribunal vide, order dated 23.12.2005, disposed of the said O.A. directing opposite party no.1 to treat the O.A. as representation and dispose of the same within a period of six months from the date of communication of the order and communicate the result to the petitioner within a period of three weeks thereafter. But the same was considered and rejected vide order dated 04.03.2006. Challenging the said order, the petitioner again approached the Tribunal by filing O.A. No.27(S) of 2006 for regularization of his service and the Tribunal, vide order dated 15.05.2006, directed opposite party no.1 to treat the Original Application as the representation of the petitioner and dispose of the same by a speaking order within a period of three months from the date of communication of the order. Thereafter, opposite party no.4 brought over the petitioner, along with Surendra Kumar Sahoo and Banamali Khandei, to wages establishment of M.I. Division and the name of the petitioner was placed at serial no.1 in the list. It is further contended that opposite party no.1, on 06.08.2011, passed order directing opposite party no.3 Page 6 of 15 // 7 that proposal for bringing over 20 nos. of work-charged employees (retired/died) to the wages establishment have been examined and observed by the Finance Department on 04.07.2011, wherein it has been mentioned that as per para-10 of the finance Department Resolution dated 15.05.1997, the date of appointment should be reckoned for pensionary and other service benefits and consideration of regularization of retired work-charged employees with retrospective effect would be against the spirit of Govt. resolution. Therefore, the petitioner again approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No.121 of 2012 challenging the order dated 06.07.2011 relating to rejection of consideration of 12 nos. of work- charged employees and sought for direction to the opposite parties to disburse pension and pensionary benefits including DCRG in his favour taking into consideration the date of retirement as 30.04.2005. But, the Tribunal, vide order dated 07.02.2012, dismissed the said O.A. It is further contended that one Surendra Kumar Sahoo, who retired on 31.03.2005, had approached the Tribunal in O.A. No.112 of 2008 seeking Page 7 of 15 // 8 direction for regularization of his service and disbursement of his pensionary benefit and the Tribunal, taking note of the provisions of the Finance Department Resolution dated 15.05.1997, disposed of the said O.A., vide order dated 03.07.2009, with a direction to the opposite parties to treat the petitioner, namely, Surendra Kumar Sahoo as regularized on 31.03.2005. Against the said order, the State preferred writ petition before this Court and the same having been dismissed Surendra Kumar Sahoo was granted pensionary benefits. Therefore, since the petitioner stands on the same footing, he be extended the pensionary benefit as due and admissible to him. 4. Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties contended that admittedly the petitioner was working in the work-charged establishment and his service has not been regularized, in view of Rule-18(2) of the Odisha Pension Rules. Thereby, the Tribunal is well justified in passing the order impugned and consequentially the claim of the petitioner for regularization of his service Page 8 of 15 // 9 and extension of pensionary benefit cannot be sustained in the eye of law. He has placed reliance on the judgment of the apex Court in Maheshwar Pandey v. State of Bihar, 2023 LiveLaw (SC) 371, wherein it has been held that the entire service period as work-charged employee cannot be counted towards pension. The work- charged employees are not appointed on a substantive post. They are not appointed on due process of selection and as per the recruitment rules. Consequentially, the services rendered as work charged employee cannot be counted for the purpose of pension or pensionary benefits. 5. This Court heard Mr. D.P. Jena, learned counsel appearing for the petitioner and Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. Page 9 of 15 // 10 6. On careful appraisal of the materials available
Decision
the case, there shall be no order as to costs. G. SATAPATHY, J. I agree. (DR. B.R. SARANGI) JUDGE (G. SATAPATHY) JUDGE Orissa High Court, Cuttack The 12th April, 2024, Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: High Court of Orissa Date: 16-Apr-2024 14:00:04 Page 15 of 15