Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17430 of 2014 Along with W.P.(C) Nos.18848, 19627,20419 &20785 of 2014 and 329 of 2015 (In the matters of applications under Articles 226 and 227 of the Constitution of India, 1950). (In W.P.(C) No. 17430 of 2014) Manoj Kumar Mohapatra …. Petitioner(s) -versus- State of Orissa and Others …. Opposite Party (s) Advocates appeared in the case throughHybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr.Kamalakanta Nayak, Adv. Mr. S. K. Pattnaik, Sr. Adv. (for O.Ps.2 & 4) Mr.AmitavTripathy Mr. G. R. Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-25.09.2024 DATE OF JUDGMENT:-17.12.2024 Dr. S.K. Panigrahi, J. 1. Since common question of facts and law are involved in all the above- mentioned Writ Petitions, the same were heard together and are being Page 1 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 disposed of by this common judgment. However, this Court felt it apposite to deal the W.P.(C) No.17430 of 2014 as the leading case for proper adjudication of all these cases 2. In W.P.(C) No.17430 of 2014, the petitioner seeks an enhancement of the retirement age of employees (excluding Class-IV employees) of the Orissa State Transport Corporation (“OSRTC”) from 58 years to 60 years, in line with the Government Resolution dated 28.06.2014, which extended the retirement age of Government servants to 60 years by modifying Rule-71 of the Orissa Service Code. He claims that OSRTC acted arbitrarily in retiring him at the age of 58 years, despite the Government’s directive. I. FACTUAL MATRIX OF THE CASE:
Legal Reasoning
3. The brief facts of the caseare asfollows: (i) The Orissa State Road Transport Corporation is a statutory corporation established by the Government of Odisha under Section 3 of the Road Transport Corporation Act, 1950. In accordance with Section 34 of the Act, the OSRTC Employees (Classification, Recruitment, and Conditions of Service) Regulation, 1978, was framed, stipulating the age of superannuation. Regulation-118 of the said Regulation fixes the retirement age of OSRTC employees (other than Class-IV employees) at 58 years, while Class-IV employees and workmen are subject to a retirement age of 60 years. (ii) Regulation-118 was amended by a Notification dated 21.07.1997, but no substantial change was made to the age of retirement for the persons Page 2 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 employed in OSRTC as specific provisions have been made under the OSRTC Employees Regulation, 1978. (iii) The Government Resolution dated 28.06.2014 enhanced the retirement age of Government servants from 58 years to 60 years by amending Rule-71 of the Orissa Service Code and the relevant provisions of the Orissa Civil Services (Pension) Rules, 1992. However, this resolution did not impact the retirement age of OSRTC employees. (iv) The Department of Public Enterprises, Government of Odisha, through a resolution dated 02.08.2014, directed Public Sector Undertakings to consider enhancing the retirement age from 58 to 60 years, subject to fulfilling six conditions. PSUs were instructed to prepare proposals for this enhancement, which needed approval from their Board of Directors and the concerned administrative department. (v) The Board of Directors of OSRTC considered the matter in their meeting dated 06.05.2015 and forwarded a proposal to the Commerce & Transport Department under Letter No. 7500 dated 30.06.2015. (vi) The Commerce and Transport Department, through a letter dated 30.07.2015, approved the proposal for the enhancement of the retirement age from 58 to 60 years for OSRTC employees, and the decision was communicated to OSRTC. (vii) The OSRTC, without delay, issued an office order dated 30.07.2015, enhancing the retirement age from 58 to 60 years, with effect from the date of the order itself. (viii) The petitioner, who was employed as a conductor in the OSRTC (a Class-III post), was due to retire on 30.09.2014 upon reaching the age of Page 3 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 58. The petitioner retired on the said date, in compliance with the provisions of Regulation-118. (ix) The petitioner claims entitlement to continue in service post-retirement on the basis of the Government resolution dated 28.06.2014, which allegedly enhanced the retirement age for OSRTC employees. However, the resolution did not apply to OSRTC employees. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 4. (i) Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: The petitioner challenges the order of retirement dated 14.08.2014, arguing that OSRTC failed to implement the Finance Department’s Resolution dated 28.06.2014, which enhanced the retirement age from 58 to 60 years. The petitioner claims that OSRTC acted arbitrarily in retiring him at the age of 58 years, despite the Government’s directive. (ii) He contends that the Government’s order was intended to apply universally to all government employees, including those working with OSRTC. By not amending the Service Code, the petitioner argues, OSRTC could not override the Government’s order and fix a different cut-off date. He claims that the order issued by OSRTC was illegal and not supported by law. (iii) The petitioner submitted that OSRTC’s delay in implementing the government’s directive was unjustified. The eleven-month gap between the Board meetings, and the further delay in processing the proposal to the Government, was an intentional act to avoid granting the enhanced Page 4 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 retirement benefits to employees. He argues that this delay was not only unreasonable but also amounts to an act of bad faith. (iv) He further submitted that the legal precedent in the case of Mahendra Kumar Mohanty v. State1, which holds that once the Government has issued an order with a specified effective date, the statutory corporations, including OSRTC, cannot fix a separate cut-off date. The petitioner contends that the same reasoning applies in his case, and the government’s order should be effective from 28.06.2014, overriding OSRTC’s actions. (v) The petitioner argues that the Government’s Resolution, issued on 28.06.2014, should be applied retrospectively from the date of its issuance. According to the petitioner, there is no valid reason to delay the implementation of the retirement age enhancement, and OSRTC should be compelled to comply with the Government’s directive immediately. (vi) The petitioner prays for the restoration of his service until he reaches the enhanced retirement age of 60 years, as stipulated in the Government Resolution of 28.06.2014. He also seeks a declaration that the retirement order issued on 14.08.2014 is illegal and that he is entitled to continue in his position until the age of 60. (vii) The petitioner refers to several similar cases in which the retirement age enhancement order was applied retrospectively from the date of its issuance. These cases include W.P.(C) No. 18848/2014 (Late Ashok Kumar Ray), W.P.(C) No. 19627/2014 (Jagadis Ch. Mishra), W.P.(C) No. 12017 Supp-II OLR 289 Page 5 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 20419/2014 (Sarbeswar Khillar), and W.P.(C) No. 20785/2014 (Bharat Kumar Sahoo). The petitioner asserts that, in these cases, the Government’s order was applied as effective from the date of issuance, which, according to him, should also apply in his case. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 5. (i) The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: It is submitted that the resolution dated 28.06.2014, which enhanced the retirement age of Government servants, does not apply to OSRTC employees, as specific provisions regarding retirement age are governed by Regulation-118 of the OSRTC Employees (Classification, Recruitment, and Conditions of Service) Regulation, 1978. The petitioner’s claim to benefit from the resolution is, therefore, legally untenable. (ii) He further submitted that the petitioner retired on 30.09.2014 in accordance with the prevailing Regulation-118, which set the retirement age at 58 years for OSRTC employees (excluding Class-IV employees). As the petitioner retired before the order enhancing the retirement age came into effect on 30.07.2015, they have no legal right to continue in service beyond the date of retirement. (iii) The petitioner relies on the Finance Department’s resolution dated 28.06.2014, which is not applicable to OSRTC employees due to the specific statutory provisions governing their retirement age under OSRTC Regulation-118. The contention that the petitioner should be Page 6 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 allowed to remain in service after 30.09.2014, based on the Finance Department’s resolution, is therefore misplaced. (iv) The petitioner’s claim is similar to those made by employees of other public sector undertakings, which have been rejected by this Court in past judgments, including Sarat Chandra Tripathy v. Orissa Forest Development Corporation and Prasanta Kumar Mishra v. Registrar, Co-operative Societies. These precedents support the rejection of the petitioner’s claim in the present case. (v) The OSRTC followed the proper procedure as directed by the Department of Public Enterprises in their resolution dated 02.08.2014. The enhancement of the retirement age was considered by the Board of Directors of OSRTC, approved by the Commerce and Transport Department, and formalized by the office order issued on 30.07.2015. The petitioner, however, retired prior to the issuance of this order and cannot claim its benefits. (vi) Given the legal and factual background, the writ petition lacks merit and is liable to be dismissed. The petitioner has no entitlement to continue in service beyond the statutory retirement age as per OSRTC regulations, and the enhancement of the retirement age under the Government resolution and subsequent departmental orders does not benefit the petitioner, whose retirement occurred before the order came into effect. Page 7 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 IV. COURT’S REASONING AND ANALYSIS: 6. 7. Heard Learned Counsel for the parties and perused the documents placed before this Court. It is an undisputed fact that the petitioner’s retirement was on 30.09.2014, while the OSRTC’s resolution to increase the retirement age was passed on 30.07.2015, which is 10 months after the petitioner’s retirement. The central issue that needs to be addressed is whether the petitioner, having already retired, is entitled to the benefits of the decision to raise the retirement age. Specifically, the question is whether the resolution, passed after the petitioner’s retirement, can be applied to him retroactively, even though he had already reached the age of superannuation under the previous regulations. 8. The petitioner’s grievance arises from the delay in implementing the resolution passed by the OSRTC in 2014, which was only effectuated a year later. However, it must be recognized that policy decisions of this magnitude, such as increasing the age of superannuation, are not merely administrative adjustments, but have far-reaching financial ramifications. The organization must be afforded reasonable time to assess the fiscal impact of such a significant change. The complexities involved in evaluating the financial burden are undeniable, and a hasty implementation, without careful consideration, would be imprudent. Therefore, while the delay may be frustrating, it is imperative to acknowledge the necessity for thorough evaluation before embarking on the implementation of such an impactful policy. Page 8 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 9. The implementation of such a cut-off inevitably creates a scenario where some employees are left holding the bag, while others are afforded a different standing. However, this inherent hardship, arising from the differential treatment of employees, cannot, in and of itself, serve as a valid basis for the High Court to declare the decision arbitrary. The mere existence of hardship does not render the policy unreasonable or unjust. Disparities inherent in policy decisions are not, in themselves, a sufficient ground for legal intervention; rather, the Court must evaluate whether the decision was made within the bounds of legal authority and rationality. 10. In a somewhat similar case, New Okhla Industrial Development Authority and Another v. B.D. Singhal and Ors.,2 the appellant Authority (NOIDA) had proposed increasing the age of superannuation for its employees from 58 to 60 years. When the State Government rejected the proposal, the employees filed a writ petition, which was upheld by the Allahabad High Court. NOIDA was directed to reconsider the matter and resubmit the proposal to the State Government. The State eventually agreed, but made the change prospective. Aggrieved employees amended their petition, and the High Court ruled the decision should be retrospective, granting all consequential benefits. The State challenged this ruling, leading to a Special Leave Petition before the Supreme Court. The Supreme Court held that determination of the effective date for implementing changes 22021 SCC Online SC 466. Page 9 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 to the age of superannuation lies within the domain of the discretion of the government/authority. The Court made the following observations: “24. Whether the decision to increase the age of superannuation should date back to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut-off, some employees would stand on one side of the line while the others would be positioned otherwise. This element of hardship cannot be a ground for the High Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty-eight to sixty years on 28 November 2001, it had left the public sector corporations to take a decision based on the financial impact which would result if they were to increase the age of superannuation for their own employees. 25. From time to time the authorities of the State took a decision bearing upon the exigencies of service prevailing in each organisation.……….The State government had evidently determined that it was for each organisation to consider and determine the impact of the financial burden, and based on that the organisation was to submit a proposal for the approval of the government.” 11. In the landmark case of Dr.Prakasan M.P. and Ors. v. State of Kerala and Anr.,3 the Supreme Court firmly affirmed that judicial intervention is not warranted when the State, in its wisdom, makes policy decisions, such as extending the age of retirement, after due consideration of all relevant factors. The Court emphasized that the exclusion of certain individuals due to a cut-off date, while unfortunate, does not constitute 32023 INSC 772. Page 10 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 a ground for judicial interference. Unless such decisions are patently illegal, policy matters, particularly those grounded in economic realities, are beyond the reach of judicial scrutiny. The relevant excerpts are produced below: “Such a decision lies exclusively within the domain of the Executive. It is for the State to take a call as to whether the circumstances demand that a decision be taken to extend the age of superannuation in respect of a set of employees or not. It must be assumed that the State would have weighed all the pros and cons before arriving at any decision to grant extension of age. As for the aspect of retrospectivity of such a decision, let us not forget, whatever may be the cut-off date fixed by the State Government, some employees would always be left out in the cold. But that alone would not make the decision bad; nor would it be a ground for the Court to tread into matters of policy that are best left for the State Government to decide. The appellants herein cannot claim a vested right to apply the extended age of retirement to them the retrospectively and assume enhancement in age ordered by the State at a later date, they would be entitled to all the benefits including the monetary benefits flowing from G.O. dated 9th April, 2012, on the ground of legitimate expectation.” that by virtue of 12. Applying the abovementioned judicial precedents to the case in hand, this courtnotes that while the petitioner’s grievance is based on the delay in implementing the government’s directive, it must be acknowledged that large-scale policy changes such as extending the retirement age are rarely enacted without thorough consideration of their fiscal and operational implications. Therefore, it is not unreasonable for an organization like OSRTC to require time to assess Page 11 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 the financial impact and to seek approval from the concerned authorities before enforcing such a change. In this context, the delay, while unfortunate, does not appear to constitute a clear-cut case of arbitrariness, nor does it necessarily imply bad faith on the part of OSRTC. 13. It’s important to remember that OSRTC, as a statutory corporation, isn’t bound by the government’s resolution, which was meant for government employees under the Orissa Service Code. Laws and policies are not meant to reach back in time unless specifically stated, and here, there’s no rule that allows for that. Given the specific provisions of the OSRTC Employees Regulation, which fix the retirement age at 58 years (with the exception of Class-IV employees), and the lack of any amendment to these provisions prior to the petitioner’s retirement, the petitioner’s claim for retrospective application of the enhanced retirement age appears legally untenable. 14. Now that the matter of retrospective application has been laid to rest, it becomes crucial for this Court to examine whether, in the given circumstances, the petitioner harboured a legitimate expectation. This question goes to the heart of whether the petitioner, despite the clear statutory framework, had a justifiable belief that the enhanced retirement age would apply to him, an issue that demands careful scrutiny in light of both legal principles and the factual matrix of the case. 15. The doctrine of legitimate expectation is a cornerstone of public law, devised to thwart the capriciousness of executive actions by public Page 12 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:54 authorities. It embodies the anticipation of a benefit, remedy, or relief, an expectation rooted not in mere conjecture, but in a promise or well- established practice. This doctrine was aptly enunciated by the Supreme Court in the case of Union of India v. Hindustan Development Corporation4and was held as follows: “Time is a three-fold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again, it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.” and protectable. Every such 16. Likewise, in Jitender Kumar v. State of Haryana,5the Supreme Court drew a distinction between legitimate expectation on the one hand and anticipation, wishes and desire on other. It was observed as follows: “A legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and