The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1473 of 2020 M.Bhaskar Patra …. Petitioner Mr. B.K.Parida(2), Advocate State of Odisha -versus- CORAM: …. Opposite Party Mr. P.K.Muduli, A.G.A. JUSTICE A.K. MOHAPATRA ORDER 02.01.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State Opposite Parties. Perused the pleadings of the parties, the Writ Petition, as well as the documents annexed thereto. 3. By filing the representation the petitioner has prayed for issuance of a writ of mandamus directing the Opposite Parties to release the pensionary benefits along with accrued interest by setting aside the rejection letter dated 30.12.2019, under Annexure-7, issued by the Executive Engineer i.e. Opposite Party No.4. 4. The factual matrix as pleaded in the writ application in a nutshell is that the petitioner was initially engaged as a Khalasi in a work charge establishment, in the scale of Rs.45-1-55, without any break or interruption, on 01.11.1973. Accordingly, a service book was opened, // 2 // indicating that the date of entry of the petitioner in Government service is 01.11.1973. The extract of the aforesaid service book has been filed as Annexure-1 to the writ application. After his initial engagement in the Work Charge Establishment, the petitioner continued to discharge his duties sincerely and uninterruptedly. Thereafter, upon attaining the age of superannuation the petitioner has retired from service on 31.07.2006, pursuant to notice dated 12.04.2006 issued by the Opposite Party No.4. 5. The averments made in the writ application further reveals that pursuant to the FD Resolution dated 16.12.2008, the petitioner has been granted a benefit of an increment from time to time, vide office order dated 23.10.2010. Since the petitioner’s service was not regularized and he was not brought over to regular pensionable establishment, the
Legal Reasoning
petitioner was not granted the pensionary benefits. Being aggrieved by such decision of the Opposite Parties the petitioner initially approach the learned Odisha Administrative Tribunal, Bhubaneswar Bench, by filing O.A. No.36 (b/2009). The said O.A. was disposed of by the learned OAT vide order dated 05.09.2011 with a direction to the respondent to consider as to whether the applicant-petitioner can be brought over to any post of regular establishment, at least for a day before for his retirement, so as to enable him to get the minimum admissible pension. In the very same order, it was also made clear that he shall not be entitled to claim full benefit of work-charge establishment. 6. After disposal of the above noted O.A. the petitioner approached the Opposite Party No.4, on 18.12.2019, with a representation under Annexure-6. Since the Opposite Party No.4 did not take any final decision as directed by the learned O.A.T., the petitioner was compelled to approach this Court earlier by filing W.P.(C) No.24433 of 2019. The
Decision
said writ petition was disposed of by a coordinate bench of this court, // 3 // vide order dated 11.12.2019, by granting liberty to the petitioner to approach Opposite party No.4. Further direction was given to the Opposite Party No.4 to take a decision on the grievance of the petitioner within a period of six weeks from the date of communication of that order. 7. While the matter stood thus, the Opposite party No.4, pursuant to the order passed by tribunal as well as this Court in the earlier writ application, considered the case of the petitioner vide order dated 30.12.2019, under Annexure-7, and categorically arrived at the conclusion that the petitioner is not entitled to get any pensionary benefits. Being aggrieved by such rejection order the petitioner has approached this Court by filing the present writ application. Learned counsel for the petitioner submitted that the petitioner was initially engaged in the work-charge establishment and a regular service book was opened in favour of the petitioner. Thereafter, the petitioner was continuing in service without any interruption. It was further contended by the learned counsel for the petitioner that, for all practical considerations, the petitioner was treated as a regular Government employee with increments and benefits like SCP etc. at par with similarly placed regular government employee. However, the Opposite Parties did not bring the petitioner over to the regular pensionable establishment by the time of the petitioner attained the age of superannuation. Learned counsel for the petitioner contended that the petitioner, who was initially engaged on 01.11.1973, rendered his service as a Khalasi in the work-charge establishment for a continuous period 32 years till his superannuation on 31.07.2006. It was also contended that the petitioner is getting neither the EPF pension nor regular pension under the relevant pension rules. As a result of which the petitioner is facing a lot of financial difficulties in sustaining himself as well as his family. Learned counsel for the petitioner also contended // 4 // that similarly situated employees have also been extended such benefits by regularizing their service for at least a day before retirement. Learned counsel for the petitioner also contended that while disposing of the O.A. application the tribunal had specifically directed the opposite parties to consider the case of the petitioner and to bring over the petitioner to regular establishment for a day at least before his retirement and accordingly the petitioner may be granted the minimum admissible pension. In the aforesaid context learned counsel for the petitioner referred to the judgment of the Hon’ble Supreme Court in State of Orissa V. Narusu Pradhan, SLP No.22498 of 2012, by referring to the aforesaid judgment. Learned counsel for the petitioner submitted that the petitioner in those cases are similarly placed with the present petitioner, and pursuant to the direction of either this Court or the Supreme Court, they have been regularized in service for a day notionally, and thereafter, they have been given the minimum pensionary benefits as is admissible under the rules. Since the petitioner stands in a similar footing with the persons in whose case either this Court of the Hon’ble Supreme Court have passed the aforesaid orders, learned counsel for the petitioner submitted that the petitioner be extended similar benefits. It was also contended that the State Government and its functionaries shall maintain parity among its employees while granting service as well as pensionary benefits. Therefore, the failure of Opposite parties to extent similar benefits to the petitioner is violative of Article 14 & 16 of the Constitution of India. In view of the aforesaid factual position learned counsel for the petitioner submitted that the Opposite parties be directed to regularize the petitioner’s service for a day at least before his retirement, notionally, and accordingly the minimum pensionary benefits, as is due admissible in under the rules, be sanctioned and released in favour of the petitioner. // 5 // 8. Learned Additional Government Advocate, in course of his arguments, referred to the counter filed by the state opposite parties. In course of his argument learned Additional Government Advocate placed strong reliance on the averments made in the Para 4, 6, and 8 of the counter affidavit. He further contended that a specific stand has been taken by the said opposite parties that, the case of the petitioner has been considered pursuant to the order by the tribunal as well as this Court in the similar writ application, and authorities after due consideration the order of the view that the petitioner is not entitled to the pensionary benefits. Therefore, the prayer of the petitioner has been rejected. 9. In course of his argument learned Additional Government Advocate further contended that although the petitioner was initially appointed in the work-charge establishment as a Khalasi, however, he continued in the said work charge establishment till his superannuation. It was also contended that due to non-availability of posts in the regular establishment, and restriction imposed by the Finance Department vide memo dated 14.03.2001, the petitioner could not be brought over to the regular establishment. He further contended since the petitioner has superannuated in the work charge establishment, and his service were not regularized prior to his retirement, the petitioner is not entitled to the pensionary benefits under the O.C.S. Pension Rules, 1992. He further contended that in view of the Odisha work-charge Employees (Appointment and Condition of Service) Instruction, 1974, particularly in view of the instruction 11, the petitioner is eligible to contribute under EPF (pension scheme) under EPF & NP Act, 1952. Further, referring to the Para-6 of the counter affidavit, learned Additional Government Advocate stated that the petitioner given benefit ORSP rules 2008 and he has been extended the benefits of 2nd and 3rd SCP along with increments from time to time pursuant to the orders passed // 6 // by Opposite Party No.4. Learned Additional Government Advocate also referred to the Para-8 of the counter affidavit and submitted before this Court that, pursuant to order passed by the learned OAT, clarifications were sought from the W. R. Department Government of Odisha. Accordingly, the W.R. Department vide letter dated 30.05.2012 directed the Opposite party No.4 to pass a speaking order in the light of the views of the Government communicated vide letter No.1960 dated 06.08.2011. Thereafter, the Opposite Party No.4, Chief Engineer, Minor Irrigation, pursuant to the order tribunal rejected the claim of the petitioner vide his order dated 03.01.2013. In view of the aforesaid factual position the learned Additional Government Advocate submitted that the writ application is devoid of merit accordingly same should be dismissed. 10. On a careful analysis of the pleadings as well as the submissions by both sides, this Court of the considered view that, so far the factual aspects of the present case are concerned the same remains undisputed by both sides. Therefore, this Court has no hesitation in accepting the factual background as has been pleaded in the writ application. Thus, it is established that the petitioner was initially engaged as Khalasi in the Work-charge establishment on 01.11.1973. Further, it appears that a service book was opened in the name of the petitioner. It is also not disputed that the petitioner was working uninterruptedly and without any break as a Khalasi in the work-charge establishment till his superannuation in the regard 2006. Further, there is also no dispute that the petitioner was working uninterruptedly for a period of 32 years. Therefore, the question for consideration in the present writ application is, whether the petitioner is entitled to get pensionary benefits after working for 32 years continuously. Learned counsel for the petitioner in course of his argument referred to the judgments of this Court in State of Orissa V. Narusu Pradhan, SLP No.22498 of 2012, State of // 7 // Odisha vrs. Pitambar Sahoo, W.P.(C) No.24041 of 2017 (decided on 20.12.2017), which has been affirmed in SLP(C) Diary No.30806 of 2018 and Chandra Nandi vrs. State of Odisha and others, W.P.(C) No.19950 of 2011(decided on 03.02.2021) and Premananda Tripathy vrs. State of Odisha, W.P.(C) No.27950 of 2019 (decided on 03.02.2021), State of Orissa and others vrs. Jyostna Rani Pattanaik and others, W.P.(C) No.1534 of 2008, State of Orissa vrs. Pitambar Mohapatra, W.P.(C) No.13483 of 2012 and State of Orissa vrs. Radheshyam Mohanta, W.P.(C) No.12377 of 2009, which has been affirmed in SLP(C) No.36038 of 2020 which have been affirmed by the Hon’ble Supreme Court. This Court further observes that, although the petitioner was working in the Work-Charge Establishment, and in view of the circular of the State Government, the services of the petitioner should have been brought over to Regular establishment on working for 10 years in the work-charge establishment, the services of such employees are to be regularized in view of the State Government circular dated 15.05.1997. The aforesaid circular dated 15.05.1977 was issued by the State Government on the basis of the observation made by Hon’ble Supreme Court in the case of work charge employees. Therefore, as per mandate of the Hon’ble Apex court, and in view of the circular of the state Government dated 15.05.1977, the petitioner should have been brought over to the regular establishment on completion of 10 years in the work charge establishment. However, in the present case although the petitioner had worked 32 years continuously in the work-charge establishment he was not brought over to the regular establishment. A further perusal of the resolution dated 15.05.1977, which has been filed Annexure-B/4, reveals that pursuant to the directions of the Hon’ble Supreme Court, the State Government has issued the said resolution. It is further revealed that the workers in order to claim benefit under the said // 8 // resolution must have been engaged prior to 12.04.1993 and must have worked for 10 years under the administrative control of the Department concern directly. The said resolution also provides that the absorption in class 3 and 4 posts, against vacant posts, shall be made keeping in view the measures issued by the finance department on 10.12.1996 and on 07.02.1997. Such resolution also provides for appropriate treatment of the work-charge employees by regularly filling up the vacant posts, further, clause 10 of the resolution provides that the date of the regularizing shall be the date reckoned as the first appointment to the service, for pension and other service benefits. 11. Applying the principle laid down in the resolution dated 15.05.1997 of the Government of Odisha to the facts of that present case, this Court is of the considered view that the present petitioner almost satisfies all the requirements as has been provided therein. Unfortunately the petitioner could not be brought over regular establishment after working for 32 long years in the work-charge establishment. On perusal of the impugned rejection order, under Annexure-C/4, passed by the Opposite Party No.2 and, Annexure-7 by the Opposite Party No.4., this Court is of the considered view that the case of the petitioner has not been considered in its proper perspective and in the spirit of the law laid down Hon’ble Supreme Court in State of Orissa V. Narusu Pradhan, SLP No.22498 of 2012 and similar other judgments referred to hereinabove. This Court further observes that the petitioner is neither getting any pensionary benefits under the O.C.S. pension rules, nor is he getting any other pensionary benefit including the EPF pension. In such background it can very well be understood as to how the petitioner must be facing financial difficulties in sustaining himself and his family after working continuously for a period 32 years under the administrative control of the Opposite Party No.4. In view of the aforesaid factual background, and keeping in view // 9 // the legal position as has been enumerated by several judgments of this Court as well as the Hon’ble Supreme Court, particularly the judgment of the Hon’ble Supreme Court in Narusu Pradhan’s case supra, this Court is of the considered view that the impugned rejection orders under Anenxure-7 to the writ application as well as under Annexure- C/4 to the counter affidavit are unsustainable in law. Accordingly, the same are hereby quashed. Further, it is directed that, the opposite parties shall do well to bring the petitioner over to regular establishment for a day prior to his superannuation notionally. Accordingly, the service benefits as well as the pensionary benefits as is due and admissible to the petitioner be recalculated. Thereafter, the authorities and opposite parties shall do well to sanction and dispose minimum pensionary benefits to the petitioner as admissible under the O.C.S. Pension Rules, 1992, in the light of the law laid down in Narusu Pradhan’s case supra within a period of two months from the date of communication of certified copy of this order. 12. With the aforesaid observation, the writ application stands disposed of. 13. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 05-Jan-2024 17:40:18